Who Gets the Dog

The question sometimes arises in family law disputes who gets to keep the family pets. Some would think that this question should be resolved on the basis of what is in the best interests of the pet and, if there is more than one pet, whether or not the splitting of pets is in the pets best interests. The Court however does not approach this particular dilemma based on similar considerations as are relevant to resolving issues regarding where children should live and spend time. Rather, a pet is an item of property to be dealt with as with all other items of property.

To that end, the Court must consider issues relevant to the acquisition and preservation of the pet and if relevant, any of the factors set out in section 75 (2) (for a married couple) and section 90 SF(3) (for a de facto couple) of the Family Law Act. These two provisions would ordinarily play little role in determining the question as these refer to issues more around the needs of the parties to the dispute. One could, however, envisage cases where the mental health of the parties (a possible factor under section 75 (2) (a) and section 90 SF (3) (a)) could be relevant depending upon a party’s dependency on a pet.

Save as to any such considerations, the Court is left with having to consider issues of who acquired and subsequently paid for the care of the pet. It therefore follows that matters of relevance will include:

  1. Who purchased the pet;
  2. Who paid for expenses relevant to the pet, such as veterinary fees;
  3. Who paid for food for the pet and any other general expenses including the costs of kennelling whilst the parties were away on holidays; and
  4. Who applied themselves to the care of the pet.

Ideally, if for example dog owners follow what is apparently the accepted best practice in having at least two dogs, then a logical solution would be the division of the chattels so that each party ended up with one dog. Whilst ordinarily groups of chattels are not divided, (such as a cutlery set) the writer contends that a dog for each party would be a “fair and equitable” result, in line with the Court’s primary obligation in finalising property matters.

A further matter which arises is at what stage the question as to with whom a pet should reside should be raised with the Court. Judge Cronin of the Family Court of Australia sitting in Melbourne in a recent decision handed down on 13 March 2018 in the case of Gaynor & Tseh [2018]FamCA 164 stated at paragraph 12 as follows:

  1. It is clear from reading the affidavits of the parties that there is much angst about whether this dog is being treated properly. The various claims for ownership by reference to registration, or undertaking the attendances on a vet, are hardly matters that would indicate it is appropriate in the circumstances to make an order here. Whilst one might sympathise with the applicant who asserts that he has an “emotional attachment” to the dog, so too, the respondent asserts a similar feeling but she desires the issue to be determined as part of an overall property settlement. Indeed, it will be obvious that there are significant factual disputes at play as to who undertook what tasks in relation to this dog.
  1. It is also significant to note in determining whether it is appropriate to make an order here, the dog has been in the possession of the respondent for some time. There appears no logical reason why it is urgent for the court to intervene to protect property

To that end, it appears any party who wishes to raise the question as to with whom a pet should live other than at a final hearing, must have a substantial ground to ask the Court to make an order on an interim basis.

What will be interesting, however, is if at the final hearing a decision is based on, or in part, on the fact as to with whom the pet has been living for some time. Such a consideration used to be relevant to questions regarding with whom children should live with arguments that the status quo should be relevant. Such an approach has now been deemed as not appropriate when dealing with parenting matters noting that the court is required to specifically follow the structure of section 60CC of the Family Law Act.

So, if you are facing the problem regarding with whom the pet should live, take care prosecuting any possible claim as the other issue that has been raised by judges is the waste of resources in paying for the cost of legal fees in pursuing such a claim. It is possibly accurate to argue that this is an appropriate observation so far as any legal proceedings involving disputes in family law are concerned.

Peter Le Souef

Accredited Family Law Specialist

Partner

MDLLAW

 

Peter has practised predominantly in the area of family law for the last seventeen years and is a Family Law Accredited Specialist with the Law Institute of Victoria and member of the Family Law Section of the Law Council of Australia. These family law updates are based on regular consideration of judgements of the Family Court or such other judgements issued by any Court which deals with family law matters.