Fur kids and custody – what does the law say?

5-November-2020 Family Law By Simone Green

With many people increasingly treating their pets as family members, even as substitute children, it comes as no surprise that ‘custody’ battles ensue when a couple breaks up and arrangements need to be made for the care of the ‘fur kids’. Streeterlaw’s Accredited Specialist Family Lawyer, and unashamed pet enthusiast, Simone Green discusses the heated topic of pets and divorce.

At present, there is a gaping hole in the Australian law with respect to the treatment of pets in family separation. The Family Law Act 1975 provides the structure for the Courts to determine disputes regarding parenting arrangements for their children and property adjustment; but is silent when it comes to the rights of pets and what is in a pet’s best interest. This is however often a point of great distress for separating couples who look to the law to make decisions about the care of pets, when negotiations between themselves have failed.

The case of Downey & Beale [2017] FCCA 316 (2 February 2017) was one such example where the Court was asked to adjudicate on the single issue they could not settle by consent; being who should retain the family dog. Sadly, the dog is unnamed in the judgment, (perhaps to protect his identity?), let’s call him Fido.

The judge empathised with Fido’s plight, being a sentient being, and no doubt a very well- loved family member, citing Roger Caras, “dogs are not our whole life, but they make our lives whole”. The judge was however bound to follow the established legal principle which views animals as chattels, and as such, the issue of Fido’s ownership was to be determined as an issue of ownership of property.

To determine who was Fido’s legal ‘owner’, the judge looked to the definition in the Section 7 of the Companion Animals Act 1998 (NSW) which defined “owner”, as the person by whom an animal is ordinarily kept, or the registered owner. The Court considered evidence of Fido’s initial purchase and who had him in their possession. While the husband had paid for Fido, it was as a gift to the wife prior to the marriage; and while he registered the dog; it was done 8 months after separation. As such, the Court determined that registration was not enough to demonstrate Fido’s ownership and declared the wife Fido’s owner as he was in

her possession. Both parties had made financial and non-financial contributions to the Fido during the marriage and as such, contributions were considered equal. Notwithstanding, poor Fido could not be shared as neither the husband nor wife sought this as an order, so the Court determined to make no order altering Fido’s ownership. Fido remained in the wife’s ‘custody’.

When negotiating the care of pets following separation keep in mind the following:

  1. Costs of maintaining and housing the animal – if renting this may make it more difficult to find pet friendly accommodation.
  2. The effect of separation from a treasured family pet on children.

A popular option is that the ‘transportable pets’ (dogs, rabbits or well-behaved cats for example) travel with the children between houses if there is a shared care arrangement.

  1. Who is best positioned to provide care for the pet.
  2. Stress to the pets in being removed from their ‘siblings’ both furry and human.

If you would like to discuss issues of pet custody or any aspect of family law call us today on 02 8197 0105. Pet photos are always encouraged!

If the issue of pet custody remains a problem, there are alternatives to Court to resolve the issues and facilitate a resolution such as mediation.

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