Who Gets the Dog? New Pet Laws in Australian Family Law

For many families, pets are far more than property. They are companions, confidants and often considered members of the family.

Historically, however, the Family Law Act treated pets in much the same way as any other item of property. This often led to frustration for separating couples who wanted the Court to consider the emotional bond between a person and their pet.

Recent amendments to the Family Law Act have changed that position. The legislation now specifically recognises “companion animals” and provides guidance about how ownership disputes should be determined following separation.

What Is a Companion Animal?

A companion animal is generally an animal kept primarily for companionship.

The legislation excludes:

• Assistance animals;
• Animals kept as part of a business;
• Animals kept for agricultural purposes; and
• Animals used in laboratory testing or experiments.

While the definition appears straightforward, disputes may still arise in some circumstances. For example, a working dog may also be a beloved family pet. In those situations, the Court may need to determine the animal’s primary purpose.

Can the Court Order Shared Custody of a Pet?

No.

One of the most significant aspects of the new legislation is that the Court cannot make parenting-style orders for pets.

Unlike children, there is no legislative framework for a pet to “live with” one party and “spend time with” the other.

Instead, the Court may order that:

• One party retain ownership of the companion animal;
• The animal be transferred to another person who agrees to take ownership; or
• The animal be sold.

In practical terms, the Court must determine who will ultimately own the pet.

How Does the Court Decide Who Keeps the Pet?

The legislation sets out a number of factors the Court must consider.

How the Pet Was Acquired

The Court may consider:

• Who wanted the pet;
• Who selected the pet;
• Who named the pet;
• Who paid for its purchase; and
• The circumstances surrounding the acquisition.

Ownership and Possession

Relevant considerations may include:

• Whose name appears on registration records;
• Who currently has possession of the pet; and
• Who became the primary carer after separation.

Care and Financial Support

The Court will examine which party has primarily cared for and maintained the animal.

This may include evidence regarding:

• Feeding and daily care;
• Veterinary appointments;
• Grooming;
• Training and obedience classes;
• Exercise and walking;
• Medication and health care expenses; and
• General responsibility for the animal’s wellbeing.

Family Violence

The Court must consider any family violence to which one party has subjected or exposed the other.

This is an important development. In appropriate cases, the Court may conclude that retaining ownership of a companion animal is beneficial to a victim-survivor’s recovery and wellbeing.

Cruelty or Abuse Towards the Animal

Evidence that a party has abused, threatened or mistreated a pet may be highly relevant.

This includes situations where an animal has been used as a tool of coercive control during a relationship.

Attachment to the Pet

The Court may consider the emotional attachment between the animal and:

• Either party; and
• Any children of the relationship.

This reflects the reality that pets often play a significant role in family life.

Future Care Arrangements

The Court will also consider which party is best placed to care for the animal moving forward.

Relevant factors may include:

• Housing arrangements;
• Financial capacity;
• Availability to care for the pet;
• The animal’s health needs; and
• The practical ability to provide long-term care.

What Should You Do If There Is a Dispute About a Pet?

If you are separating and there is likely to be disagreement about a family pet, it is important to start gathering evidence early.

Useful evidence may include:

• Registration records;
• Veterinary invoices;
• Pet insurance documents;
• Photographs;
• Training records;
• Microchip information;
• Grooming receipts; and
• Evidence of day-to-day care responsibilities.

The more evidence available regarding ownership, care and attachment, the easier it will be to establish why the pet should remain with you.

A Practical Example

Consider a family dog that was purchased during the relationship. One party may have paid for the dog, but the other may have been responsible for feeding, walking, grooming and taking the dog to veterinary appointments. The children may also have a strong attachment to the animal.

In these circumstances, the Court will look beyond whose name is on the receipt and consider the overall circumstances, including past care arrangements, emotional attachment and which party is best able to care for the animal in the future.

Need Advice About a Family Pet After Separation?

Disputes about family pets can quickly become emotional and complicated. The new companion animal provisions mean that the Court will now consider a range of factors beyond simple ownership when deciding who should retain a pet after separation.

If you are separating and concerned about who will keep your dog, cat or other companion animal, our experienced family lawyers can provide practical advice about your rights, the evidence that may assist your case, and the options available to resolve the dispute.

At Powell Family Law, we regularly assist clients with all aspects of family law property settlements, parenting matters and domestic violence issues. We can help you understand how the new laws apply to your circumstances and work towards a practical resolution that protects both your interests and the wellbeing of your companion animal.

Contact Powell Family Law today to arrange a consultation.