You Take the Kids, I’ll Take the Dogs: Custody of Pets After Separation

For many, pets are considered to be members of the family and we assume that the custody of pets after separation will be determined in a similar manner to children, but this is not the case.

As the Court noted in Davenport v Davenport (No 2):

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”.

So then, what happens?

The courts have empathetically confirmed that pets are regarded as ‘chattels’ (i.e., an item of property), and ‘custody’ is to be determined by the Court “as an issue of the ownership of property”. Therefore, ownership of a dog will be determined in the same manner as a property settlement.

These proceedings involved a claim for property adjustment between a husband and wife in which an agreement was reached with respect to all issues except one – the custody of a dog (interestingly, the name and breed of the dog were omitted from the judgment). The husband claimed that he was the owner of the dog and sought orders for possession of the dog.

To determine who was entitled to possession of the dog, the Court was required to examine who in fact owned the dog. In considering this, the Court found that the $300 purchase fee paid by the husband was not, of itself, determinative of ownership. Further, despite the fact that the dog was registered in the husband’s name (which ordinarily demonstrates ownership), a culmination of factors weighed in favour of the wife being recognised as the owner of the dog at law – these factors included:

• That the wife cared directly, financially, and non-financially for the dog;
• Various vet bills were addressed to the wife at her address at her parents’ home, and while this was not conclusive proof of where the dog lived, it demonstrated that the wife was responsible for the maintenance and upkeep of the dog;
• The wife paid for all vaccinations, operations, food and accessories for the dog.

Thus, the husband’s claim for possession failed and the Court held that the dog remain in the possession and ownership of the wife.

This case concerned, amongst other things, an application for the return of a dog.

The Court recognised and sympathised with the husband’s “emotional attachment” to the dog but affirmed that the correct course was to determine the issue as part of an overall property settlement.

It was held that claims of ownership by reference to registration and claims of undertaking “the attendances on a vet” were not matters appropriate in the circumstances to compel the Court to grant the husband’s application to have the dog returned, particularly where the dog had been in the possession of the wife for some time.