Pet custody common in Family Court

Pet custody common in Family Court

HHG Legal Group Managing Director Simon Creek

Guest Columnist

IT’S safe to say pets are a very welcome addition to most Australian families and many consider the family pet to be a member of the family.

As a result, in recent times, there has been an increase in separating couples arguing through the Family Court for custody of their pets.

The law:

  • In the Family Law Act 1975 (Cth) there is no reference to animals, however case law suggests pets should be treated as personal property.
  • In terms of value, most pets are domestic pets and have no monetary value. If the animal is a pedigree 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 asset pool.
  • 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.

Pet custody disputes should be dealt with in mediation rather than litigation.

If the parties 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.

Who retains the pet?

To prove you should get to keep your fur-baby, there are a few things you should do:

  1. Make sure you are registered at your city shire as the owner of the pet.
  2. Be on the microchip record.
  3. Vet receipts to show that you were the one to take the pet to the vet.
  4. Take your pet to puppy school/cat school – (if there is one).
  5. Be able to provide a home for your pet after the divorce (especially important if you have a very large furry companion who needs lots of space to run around).
  6. Be the person who feeds the dog and takes it for walks.
  7. Always have some pet treats in your pocket (just in case, in an unlikely event a mediator tests a dog by seeing which parent it will come to).
  8. Have bonding sessions with your pet (whoever has the most significant attachment is likely to be awarded as sole pet parent).

Shared custody?

The Family Court can make orders for parties to “share custody” of a pet.

However, it is unlikely that the Family Court would make such orders unless agreed to by both parties.

However, much like child custody disputes, pet owners should remember to do what is in the best interests of their pet, aka man’s best friend.