Family pets and separation from a family law perspective

Australians love their pets. In fact, almost two-thirds of Australian households have a pet today and over 90% have had a pet at some time in their lives. Interestingly, households with women and children are most likely to have a pet.

When a relationship breaks down, it can become very distressing when a family pet becomes part of the dispute. This is especially true when children share a loving bond with the family pet. Suddenly, the issue of who “owns” the pet and who the pet will live with becomes a source of stress.

THE MISCONCEPTION AROUND PETS AND SEPARATION

There is a misconception that the Federal Circuit and Family Court of Australia has the power to make orders similar to parenting orders that set out who the pet lives with and how the pet will spend time with the other “pet parent”.

The 2020 decision of Davenport, saw a husband file an application seeking interim care arrangements for the beloved family dog. This case confirmed that the Court does not have the power to make any “live with” or “spend time with” arrangements for pets.

The Judge in the case of Davenport went on to say that:

“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”.

Davenport upheld the long list of authorities that establish that a dog, or any other pet, is regarded as property and not a child, for the purposes of the Family Law Act 1975. Therefore, a pet is to be considered as part of the overall question of “who gets what” when parties separate.

INFORMAL PET PARENTING PLAN

That doesn’t mean that parents of fur babies are not able to come to an informal pet parenting plan that stipulates:

  • Who the pet will live
  • How they will spend time with the other pet parent
  • Who will contribute towards the costs of feeding, grooming, vet bills and pet insurance.

Pet parents can enter into these informal arrangements between themselves. However, this requires a high degree of communication, understanding and a low conflict relationship.

Separated parents sometimes include the pet going along with the children when they spend time with the parent whom they usually don’t live with as part of parenting orders too. This can assist the children in transitioning from one parent’s household to the other parent’s household and provide comfort and security.

PETS AND FAMILY VIOLENCE

Pets are specifically mentioned in the Family Law Act when it comes to family violence. Section 4AB of the Family Law Act specifically refers to conduct that intentionally causes death or injury to an animal as constituting family violence.

Research tells us that family violence survivors often hesitate or delay leaving abusive relationships as they simply cannot take the family pet with them. Recent Australian studies indicate that nearly 50% of women in violent relationships have experienced the deliberate killing of a family pet by the hands of their intimate partner.

In recognition of this, the RSPCA runs a Safe Beds For Pets program. It provides a safe place for family violence survivors to keep their pets – away from the public and away from the perpetrator. This is a temporary situation until they can be reunited with the family violence survivor.

TO CONCLUDE

If you have separated (or are thinking of separating) and have a family pet, you should try and settle the dispute regarding who the pet lives with and how, if at all, the pet spends time with your ex-partner. If you cannot resolve the dispute, the pet will be considered part of the property dispute that remains.

Pets and separation | Beanstalk Single Mums Pin

Lydia Shelly

Lydia Shelly

Lydia Shelly is an experienced family lawyer and the principal of Shelly Legal, a boutique family and litigation law firm. Lydia has been a single mother and understands the reality of single parenting, coparenting and raising two wild boys and a mini-Schnauzer called Arnold.

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