When a couple separates, often a dispute arises about where the family pet will live and whether the other members of the household will see them.
In Gaynor & Tseh [2018], the husband sought orders for the wife to return the family dog to him. At the time of the application, the dog was in the full time care and control of the wife. Each party alleged that the other had the day-to-day care responsibility for the dog. The husband alleged that he financially maintained the dog.
In reaching a decision that the Court did not have the jurisdiction [or power] to make the orders sought by the husband, His Honour said at paragraph [8] of his Judgement:
“The FLA makes no reference to pets. It was conceded by the applicant that a dog does not fit within any other category of property than a chattel. Hard as that maybe for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property. Most significantly, the issue is the question of the alternation of a property interest on an interim basis.”
More recently, in the matter of Davenport & Davenport (No. 2) [2020] the Court was asked to make a determination on the issue of pet custody where the Husband in that matter, sought an order for “shared custody” of a dog.
The Wife argued that the court had no power to make that order.
In the Husband’s affidavit he deposed that he made numerous attempts to visit the dog and organise some ‘pet custody agreement’ however the Wife had refused. He further argued that although the dog was registered in the wife’s sole name, he had made significant financial and non-financial contributions towards it.
The Husband requested that the Court make an order that he spend time with the dog “due to suffering pain and separation anxiety” which he had suffered due to the wife not facilitating such time.
Referring to the matter of Gaynor & Tseh [2018], Her Honour determined that it was not appropriate for her to make such an order. Her Honour determined that she did not have jurisdiction to make orders with respect to ‘shared custody of the dog. The application was dismissed for lack of jurisdiction.
If you have a query or concern regarding your family pet, we may be able to assist you. There may be other legal avenues which you could explore. Contact Tamara at Hillcrest Family Lawyers and arrange a consult.
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