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Pet Custody and consideration of Pets in Family Court Proceedings

Aug 22, 2016

Carr & Co

Pet Custody and consideration of Pets in Family Court Proceedings

A family will generally consider their pet to be invaluable, but how does the Family Court attribute a value to a pet? How does the Family Court decide who gets to keep the beloved family pet in the event of a separation?

Property or persons? – Current Law in Australia

Pet Custody and consideration of Pets in Family Court ProceedingsMany spouses may consider the family pet to be a member of the family. Unfortunately the Family Court does not give the level of consideration to pets that some parties may desire.

There is no reference to animals in the Family Law Act 1975 (Cth) (“the Act”). Previous cases have, however, established that the Family Court should treat pets as property which is to be included in the property pool available for division between the parties. This means that pets will be considered in a similar way to any other household item that needs to be distributed fairly among the parties.

Under section 79 of the Act the Family Court has the power to make orders with respect to the property of the parties to a marriage. Therefore, given pets are regarded as property, this allows the Family Court to make orders about who will have ownership and possession of a pet.

The value of pets

The value attributed to a pet is generally quite low as, the court will consider the “market value” of the pet. It is likely that a fairly nominal value will be attributed to the pet in comparison to other assets.

There are, however, situations where a pet may be attributed a significant value, for example if it is a pedigree show dog/cat. In such circumstances, the parties may need to provide evidence to assist the Family Court in attributing an appropriate value to the pet (such as a sworn valuation).

Who will get to keep the pet?

If the parties to a relationship breakdown are in a dispute about who is to retain ownership of the family pet, the Family Court will consider the merit of each parties’ applications in a similar way to the way in which the Court would consider who is to retain a car or the family business.

If your Family Law matter involves the care of children, the Family Court is required to consider the “best interests” of the children as the paramount consideration. In doing so, the Family Court may award the possession and ownership of the family pet to the party who has the majority care of the children by consideration of the best interests of the children. This may give the children a sense of familiarity and stability following the breakdown of their parent’s relationship.

In determining which party is to retain ownership of the family pet, the Family Court has commonly had regard to the following:

  • Which parties’ name the pet is registered in.
  • Which party undertakes the majority of the responsibilities involved in caring for the pet.
  • Which party has appropriate housing for the pet.

Can we share “custody” of the pet?

The Family Court can make orders for parties to effectively “share custody” of a pet. However, it is unlikely that the Family Court would make such orders unless agreed to by both parties.

Carr & Co have been involved in matters which required the drafting of lengthy orders regarding the ownership, possession and shared care of pets.

Movement towards “best interests”

As referred to above, in parenting cases the Family Court will consider the “best interests” of the children when determining which parent the children are to live with and how much time they are to spend with each party. There is some thought that the Family Court should attribute a similar level of consideration to who the family pet should live with.

In 2010, Switzerland held a referendum regarding a proposal by animal rights activists to appoint independent lawyers for pets subject to a “custody” dispute. Ultimately the Swiss population voted against the proposal. If the citizens had voted to implement the initiative each pet would have a lawyer to represent its’ “best interests” at taxpayers’ expense.

Although many people may think that their pet warrants consideration of the Family Court similar to the level attributed to the children, the issue becomes how would a Court actually consider the best interests of a pet?