While your pet may be elevated to the status of a family member during your de facto relationship / marriage (is your pet part of your ‘My Family’ car sticker?), a pet is not referred to specifically at all in the Commonwealth or State legislations and therefore there are no ‘best interests’ principles to be applied when determining ownership and no ‘live with’ or ‘spend time’ with orders to be made (which reduces the scope for infinite litigation). While this may be unacceptable to some it has historically been the case and generally continues to be the case.
The Courts
The courts of Australia have varied slightly from this position. There have been orders made such that a dog could travel with the parties’ child as part of a parallel ‘spend time’ with order, although this was primarily in the best interests of the child and not the dog .
In the alternative, parties can obtain orders about their pets if considering them in terms of ‘property’ to be distributed. ‘Property’ can be defined as ‘a legally endorsed concentration of power over things and resources’ i.e. a ‘matrimonial cause’. By treating your family pet as a ‘thing’ it means that it is generally the case that one party is allocated ownership and possession over same and not compensated in turn, much like, for example, a commercially worthless painting which has sentimental value.
There are, of course, some pets to which a value is attributed e.g. breeding stock, show animals, or racing animals, and this thus attracts a cash (or superannuation) adjustment in the favour of the party not retaining the animal.
Who Retains the Animal
As to who retains the animal, thankfully in Australia most of these disputes are settled by consent. It has been held that there is no proper basis for making an order for a dog to be delivered to the Husband at an interim basis . However, this was in relation to the fact that there was a dispute about whose dog it was (the wife in the case said it was their daughters’) and the main problem was ascertaining the truth at an interim stage.
If disputes over pet ownership are eventually litigated, the probability is that a Court will consider the circumstances surrounding it and the weight of the evidence. So, depending on who has spent more time with the dog, where the dog has lived, or for example, who has primary custody of the children, the Court will need to make a decision allocating the dog to either party .
That’s if the Court deigns to hear the matter at all and doesn’t simply send the parties straight to an ADR (Alternate Dispute Resolution) or to sort it out between themselves!
1 see Tony Bogdanoski’s article, The Marriage of Family Law and Animal Rights: How Should Australian Family Law Approach the Rise of ‘Pet Custody’ Disputes [2006] AltLawJl 51; (2006) 31(4) Alternative Law Journal 216
2 Jarvis & Weston [2007] FamCA 1339 at 20 – 22 per Moore J
3 Murrandoo Yanner v Graeme Eaton (1999) (Unreported)
4 Hunter & Hunter [2012] FamCA 49 per Forrest J
5 Rogers v O’Farrell
If you’re looking for a family lawyer contact Gibson & Gibson:
Street Address: 4th Floor 190 St Georges Terrace, Perth WA 6000
Phone: +61 8 6313 6100
