Nicky Neville-Jones, Principal Lawyer
Over the last 2 years there have been significant changes concerning family parenting and property matters via amendments made to the main act for family law matters in Australia the Family Law Act 1975 (the Act).
This article provides a brief overview of how separating parties can seek interim and final orders for the declaration of ownership, transfer or even sale of their pets, now that Pets are included under the Act.
“Companion animals” pursuant to the Act
Pursuant to the Act, domestic animals owned as part of the family more, commonly known as “pets” are referred to as “companion animals”. This might include a dog, cat, rabbit, guinea pig, parrot or other common pets in Australian households owned for the sole purpose of companionship.
Animals not owned for companionship such as animals used in agriculture, science, owned in business (such as a racehorse) , assistance animals or animals kept for a dual purpose do not fall under the definition of “companion animals” pursuant to the Act.
Therefore a pet dog who lives indoors with a couple who then separate would be considered a “companion animal” but if the same couple also owned a large property and had some sheep, these animals would not be considered “companion animals”. This does not mean the couple cannot decide who ends up keeping the sheep, but this it will be based on them still be considered a form of property not distinct from other items like real property or a motor vehicle.
As mentioned above, as the Court now has the power to make orders about “companion animals” this includes orders in relation to who might own the pet long term, whether ownership of the pet needs to be transferred from one party of the relationship to the other or otherwise the Court in rare cases can also make orders that the pet be sold.
The Family Law Act does not give the Court the power to make orders for “shared ownership” of a pet, wherein the parties of the relationship “share” the pet between their 2 households on a final basis.
In making these orders the Court needs to consider a number of factors, which include:
- the circumstances in which the companion animal was acquired;
- who has ownership or possession of the companion animal;
- the extent to which each party cared for, and paid for the maintenance of, the companion animal;
- any family violence to which one party has subjected or exposed the other party;
- any history of actual or threatened cruelty or abuse by a party towards the companion animal;
- any attachment by a party, or a child of the marriage, to the companion animal;
- the demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party;
- any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
As “companion animals” is a new concept in family law in Australia, there are a limited amount of cases that have been decided applying the new laws. Previously the Courts were sometimes willing to make orders regarding pets, but it was difficult and the decisions could sometimes be unpredictable as the Court did not have any guidelines.
These changes have also been introduced to protect victim survivors and their pets by recognising that orders regarding “companion animals” might be needed to protect parties and/or children in family law cases that contain allegations of family violence.
Like all parenting and property cases in family law, not all cases need to proceed to Court. If a party cannot decide who is to retain the pet long term after separation, they might wish to consider attending a Mediation to negotiate a resolution of the dispute.
Please contact us on +61 3 8600 8888 or reach out via email to make an appointment for individual advice regarding your family law matter.