As couples are choosing not to have children or to have children later in life, pets are increasing in popularity and often the fur baby is the most loved member of a family. Therefore, it is no surprise that pet custody has become a prime battle ground for couples who are separating.
Partner, Geoff Wilson and Associate, Helen Davison offer some tips on how to navigate this area for pet lovers going through separation, and discuss the recent case of Davenport v Davenport (No.2) [2020] FCCA 2766 which considered whether separating couples can apply for ‘custody’ of their pets.
In Davenport v Davenport the wife purchased a dog, given the pseudonym “D”, from a rescue shelter prior to the couple living together. D was registered in the wife’s sole name. The husband claimed he contributed $1,633 in costs towards D’s food, a new kennel, toys and visits to the vet.
Upon separating D lived with the wife. The wife commenced property proceedings in the Federal Circuit Court of Australia and sought property orders that she keep D as part of the final property settlement. The husband did not seek property orders in relation to D, instead he claimed that the wife kidnapped D and sought interim orders that he have “shared custody” of D.
Judge Tonkin referred to earlier cases which had considered this issue and restated that a dog is regarded as property. Her Honour considered Part VIII of the Family Law Act (FLA), which deals with the property of married couples, and held that this part did not include any provisions about “shared custody”. Her Honour then considered whether an order could be made for D under Party VII of the Family Law Act which deals with “custody” issues of children. Her Honour commented at [43] “those issues related to the “custody” of children and not dogs or other pets”. As a consequence, Her Honour concluded that the husband’s application did not fall under the parenting part of the FLA.
Ultimately, Judge Tonkin found that there was no power under the FLA that allowed the court to make an order for “shared custody” of a dog, and as a result the husband’s application was dismissed. The wife’s application to retain D as part of her final property settlement remained on foot and was dealt with by the court at a later time.
Judge Tonkin concluded the judgement by stating: “The Court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creatures that we share the planet with that would empower a Court to make orders for shared custody of a pet.”
Summary
- There is no reference in the FLA to animals, however, case law suggests pets should be treated as property and applications can be made to retain pets as part of a property settlement.
- In terms of value, most pets are domestic pets and have no monetary value and are not included in the property pool. If animals are owned for the purpose of breeding or livestock then they may be determined to have a monetary value. If that is the case, the pet and its value is to be included in the property pool.
- Whilst it was not an issue before the Court, in the context of parenting arrangements for children under Part VII of the FLA, it may be possible to obtain orders directed to arrangements for pets of the children including injunctive relief where it is in the best interests of the children.
- It is the practice of our firm that wherever possible we encourage our clients to settle disputes outside of court. A dispute over which person is to retain the family pet is no different. Disputes about pets can be resolved through negotiations or mediation. Agreement should also be reached agreement about who is responsible for the pet’s expenses. Once an agreement is reached, it can be documented in a consent order or binding financial agreement.
- For victims of domestic and family violence there are support providers that can assist with accommodation, food and vet care for family pets (subject to availability).
If you require any advice regarding pets and separation, please contact our Family and Relationship law team.