Pets are classified as the property of their owners, rather than creatures with consequential rights. Pets, particularly in the wake of COVID-19 and the various lockdowns since 2020 have become more and more popular. The rise of “COVID puppies” for instance is a prime example of human needs and the value they place on companionship.
In the case of Downey & Beale [2017] FCCA 316, Judge Harman highlighted the way in which the law treats pets:
The law describes the manner in which this case is to be determined. [the pet] is a chattel and his ownership is to be determined by the Court as an issue of ownership of property.
This means the following will be considered:
Who purchased the pet;
Who is the registered owner;
Who was responsible for maintaining the pet (i.e. walking, feeding, paying for vet bills); and
Who is in possession of the pet?
It is important to consider the above factors together, as payment for purchase alone does not by itself determine ownership. Ownership must be determined before the Court can make any order for adjustment of interests. It is difficult to ascertain the value of a pet, when its worth for many is not considered monetary but, in the love, and affection, they have for it.
“Shared custody” of a pet, is sometimes considered between ex-partners. Whilst this is an agreement that parties can come to informally between themselves when they are amicable, at law this is not something that will be adjudicated by Courts. In Davenport v Davenport (No. 2) [2020] FCCA 2766, Judge Tonkin confirmed that:
Even if the court did have jurisdiction to make the order sought by [party] for shared custody of the dog, it would not be appropriate to exercise that jurisdiction on an interim basis given the significant conflict between the parties. [The party’s] application for shared custody also does not fall within Part VII of the Family Law Act.
Part VII of the Family Law Act deals with children, their best interests and how the Court approaches parenting orders. There is no reference to pets within the Family Law Act.
If you or someone you know is considering what to do with their pet between an ex-spouse or partner, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters, including adoption matters.
If you would like advice in relation to your family law matter, contact our office at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.