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Pets in Family Law

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Our dog is part of the family but my ex-partner wants to take her with them.

 

Family law proceedings are a stressful and emotional time. Children are uprooted from their routine and may suffer trauma as they are torn between two households.

A pet can be a great source of comfort and distraction from the stress surrounding the adults.

Unfortunately, the pet can become another source of contention as children live between parents. Where there are no safety issues and parents can communicate effectively to bring about the best outcome for the children, they can come to an arrangement where the dog stays at the house where the children are spending time. So when they go to their father’s house for the weekend or half the holidays, the dog comes too.

For couples without children, the pet may complete the family and each party has an emotional attachment.

In several cases the Family Court is now faced with making decisions about who “owns” the family pet.

 

Pets are Property 

Despite our love for our pets as another child in the family, the Court considers a pet is “property”.

Judges then have to decide who owns the dog just as they have to work out the property rights of the parties of the property pool of the former matrimonial home, furniture and household items.

In the case of Downey & Beale [2017] FCCA 316 Judge Harman sympathised with the parties and how important the dog was to the family. The Court analysed the facts available about who owned for the dog and who cared for the dog.

Although the husband had initially purchased the dog for $300 when the parties were first going out, the dog had lived with the wife at her parents’ home and continued to live there when the parties married and the husband moved into their home.

The wife’s evidence was that she paid for the dog’s food, toys, vaccinations and operations.  The husband registered ownership of the dog, eight months after separation when the wife’s solicitors had alerted him that she would be seeking ownership.

The Judge determined that the wife owned the dog as she had the dog’s care and the dog remained living with her. He ordered that the wife be declared the owner of the dog and for the husband to cause the registration of the dog to be transferred to the wife’s name only.

 

Other Options: Mediation

 

Instead of going to Court, parties can attend Mediation to resolve their dispute and even seek an assessment from an expert in animal behaviour. The expert can write a report similar to the Family Report detailing what home and care is best.

The Family Court already has significant delays where Judges have long lists of cases involving safety issues for children. Avoiding Court and attempting to resolve matters amicably with the help of an impartial mediator may help reduce the stress where parties can share and children will still have their beloved pet with them.

As Judge Harman noted, “dogs are not our whole life, but they make our lives whole”. Although pets are property in the eyes of the Family Court, the need to consider the best interests of the children who are attached to the family pet, may inform decisions in the future.

If you require legal advice and/or services relating to these matters, please feel free to contact us or visit our Sydney CBD office. 

The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.

 

David H. Cohen & Co