When people separate from their spouse or de facto partner, there are generally two main issues that the parties focus on: parenting arrangements for the children of the relationship (if any) and the division of their property. There is a clear framework in the Family Law Act 1975 (Cth) (“the Act”) regarding these two matters.
But what about the pets of the relationship; is there such a thing as pet care arrangements? If so, does the Act allow for pet care arrangements?
Recent case law
A recent case in which this issue of ‘pet custody’ was considered is that of Davenport & Davenport (No.2) [2020] FCCA 2766. In this case, the husband and wife did not have any children together but did own a dog together. After the parties separated, the husband sought a shared custody arrangement for the dog with the wife. On the other hand, the wife refused to have a shared pet arrangement with the husband and sought sole ownership of the dog by way of property orders.
The Court considered whether it had jurisdiction under the Act to make the ‘pet custody’ arrangements as proposed by the husband. Importantly, the Court noted that the husband did not direct the Court to any section of the Act upon which he relied to bring his application for shared custody of the dog, nor did he direct the Court’s attention to any legislation in any non–federal jurisdiction that would allow the Court to consider his application for shared custody of the dog under the Court’s accrued or associated jurisdiction.
The Court ultimately found that Part VII of the Act deals with shared parenting issues – formerly referred to as custody issues – however those issues related to the ‘custody’ of children, and dogs (or other pets) are not included in the ordinary definition of children (although many pet owners would argue that pets should definitely be children). As such, the Court is unable to make orders about the shared ownership of a pet or both parties having an ongoing relationship with the pet, as it would for a child. Consequently, the Court dismissed the husband’s application.
How then does the Court consider pets in family law proceedings?
In the case Gaynor & Tseh [2018] FamCA 164 the Court said, “Hard as that may be for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property”. The Courts therefore deal with dogs and other pets as personal property under Part VIII of the Act.
Therefore, the same considerations that usually apply to property – such as the value, financial contributions and non-financial contributions – would apply to dogs and other pets. This would include things such as who paid for food, vet bills, pet insurance, grooming matters and accessories (the financial contributions) and who fed, exercised, took the dog to appointments or cleaned up after the animal (the non-financial contributions). Case law provides some other helpful considerations as well:
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- In the case Downey & Beale [2017] FCCA 316 the Court found that the person who paid for the dog should not be the only consideration. Specifically, the Court stated that “payment of a fee does not, of itself, determine ownership or determine the Order, if any, which might be made by this Court in adjustment of interests in property”. The Court also considered in this case whether the dog was registered and in whose name it was registered.
- In Delong & Rouse [2019] FCCA 1498, the Court considered who had possession of the pet and held that the husband was to keep the dog because he had possessed and cared for the dog in the two years since the parties separated.
- In Jarvis & Weston [2007] FamCA 1339 and Langley & Bramble [2008] FamCA 437 considered and decided that the animal should remain living with any children of the parties.
- In Poulos & Poulos [2016] FamCA 800, the court found that it was reasonable for the wife to seek additional spousal maintenance to allow her to obtain pet-friendly accommodation and take the dog with her, particularly in circumstances where the husband would continue to reside in the former matrimonial home.
However, it is important to note that although the courts don’t have the jurisdiction or power to make ‘pet custody’ arrangements, nothing prevents two pet owners from reaching an agreement without the need for court intervention that allows both owners to see or spend time with the animal.
If you have any questions about pet arrangements and your family law property settlement, please contact our office for a free initial consultation with one of our family lawyers.