According to RSPCA statistics for 2018, 62% of Australian households have a pet and 13% plan to obtain one in the next 12 months. There are 20 dogs and 16 cats for every 100 people.
Given these figures you would think the issue of animals and animal rights would be of some interest to the Government, right? Wrong. The position taken by the Family Court which operates according to the Family Law Act is to include pets as an item of property and part of the asset pool available for division. This will usually be relevant if the pet is income earning or valuable in its own right.
Ownership Disputes
While it is relatively rare to have a dispute about ownership of a pet, as against say a herd of dairy cows or a prize bull, issues can arise. The Court will take into consideration the equitable and legal rights of each person in relation to the pet and assess who is the registered owner, who paid for the pet, who paid for the pet’s continual maintenance and upkeep?
Most often family lawyers see disputes where pets are used as levers against the other party during property negotiations while shared care arrangements of pets are the stuff of anecdotes by family lawyers, there is no case law which would support a Court making an order for a shared care arrangement in circumstances where as an item of property such an arrangement would arguably breach Section 81 of the Family Law Act which states that Orders of the Court should finalise as far as practicable the financial relationship between the parties.
What about the children?
There are of course cases which recognise the importance of the family pet to children of the family and in which orders have been made that the pet remain with children and consequently the parent with whom they principally reside.
In the main, other than as described above, it would be a brave litigant and lawyer that tried to run a case relating to a household pet given the expense of family law litigation and the limited judicial resources available to the Court.
As a consumer we seek out free range products, protest live exports, clamour for cruel practices such as greyhound racing and puppy farms to be banned – why do we not press for a greater focus on the importance of our household pets that many of us treat as family?
We would do well to follow the lead of jurisdictions overseas. Many States of America grant pets rights and most recently the Orleans County Supreme Court made an order of habeas corpus relating to “Happy”, an elephant from the Bronx Zoo.
At Tiyce & Lawyers we are pet people. We get it. We can help.
