The Federal Circuit and Family Court of Australia have recently returned to the often-anguished question suffered by many proud parents of man’s best friend following a separation: Can custody orders be made for pets?
Despite how many may feel about their furry friend; the Court has adamantly and repeatedly reiterated its position that the Family Law Act 1975 (Cth) (‘the Act’) makes no reference to Pets and in the absence another appropriate category, a Pet is considered a chattel for the purposes of family law matters.[1]
In Arena,[2] the Father sought an order in relation to the parties’ family dog to travel with the children between both parents households, despite the family pet being registered in the Mother’s name and living in the Mother’s household. The Father sought this order on the basis that the family dog formed part of the child’s therapeutic protocol assisting with the child’s special needs and that an order for the dog to travel between the households would fall under the paramount consideration of the the child’s best interest under section 60CA of the Family Law Act.[3] Relevantly, the Father had another therapy animal in his home, which Justice Curran inferred provided therapeutic value for the child.[4]
It was also determined that the ownership of the family dog had been dealt with in July 2022 by way of final property orders, which saw the following order made by consent:
- That within 14 days the Applicant Wife and Respondent Husband do all things and sign all documents to transfer registration of the [pet] to the Applicant Wife and from thereon, the Applicant Wife ensure that [the pet], travels with the children when they are spending time with the Respondent Husband where reasonably possible, or as further agreed between the parties.
Justice Curran declined at [58] any assertion made by the Father that the Mother had an obligation pursuant to Order 20 of the Property Consent orders to facilitate time between the Father and the pet, particularly highlighting the high conflict and tension between the parties.
Ultimately Justice Curran determined at [60], that “In summary, I do not have jurisdiction to make an order regarding a pet pursuant to parenting orders. Orders have been made by the Court as to the ownership of the pet and the transfer of such ownership has occurred. However, even if I had such jurisdiction, the tension such an order may create in my view, and the potential parental conflict that the children would be exposed to, outweighs any benefit to a child of such an order, whether at an interlocutory stage or on a final basis.”[5]
In Davenport,[6] Tonkin J also dismissed an application for the ‘shared custody of a dog’ for lack of jurisdiction, reiterating at [44] 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.”
The ownership for of a Pet can be dealt with, if necessary, via a Property Settlement Application. The Full Court in Grunseth[7] at [63] to [65], helpfully described an appropriate course parties might take when dealing with the contested ownership of Pets under the Family Law Act:
- As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case in respect to them.
- If the animals have significant value, they can be valued in the usual way. Of course, as with other assets, a party may have a particular reason for wishing to keep the animal, and that can simply be dealt with in the ordinary course.
- It is more difficult in the case of a family pet of limited financial value. If the ownership is contested, there is much to be said for each party making a blind bid for the pet, with the highest offer accepted and taken into account in dividing the property.
In matters where both parties are amicable and capable of facilitating an ongoing care arrangement for their Pet, there is absolutely nothing to suggest that parties cannot reach a private agreement about how best to manage the care arrangements for their pets; however, it is not open to the Court to infer jurisdiction of or enforce any private arrangement of that nature.
The full decision can be found here: https://classic.austlii.edu.au/au/cases/cth/FedCFamC1F/2024/22.html
[1] Gaynor & Tseh [2018] FamCA 164, [8], Cronin J.
[2] Arena & Arena (No 4) [2024] FedCFAMC1F 22.
[3] Ibid, 49, 56.
[4] Ibid, 49.
[5] Ibid, 60.
[6] Davenport & Davenport (No 2) [2020] FCCA 2766, [43], Tonkin J.
[7] Grunseth & Wighton [2022] FedCFamC1A 132, [63] – [65], Alstergren CJ, Aldridge & Brasch JJ.
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