WHO GETS CUS­TODY OF FIDO?

The Morning Bulletin - - NEWS - PAULA PHELAN Paula Phelan is a fam­ily lawyer with spe­cial­ist ac­cred­i­ta­tion in this area from the Queens­land Law So­ci­ety. She has been a lawyer for 22 years and is the di­rec­tor of Phelan Fam­ily Law, a Rock­hamp­ton le­gal firm spe­cial­is­ing in fam­ily law only.

WHO gets the fam­ily pet?

Many fam­i­lies have pets and more of­ten than not the re­la­tion­ship with them is strong. This is par­tic­u­larly the case when there is young chil­dren in­volved. The at­tach­ment to Fluffy or Ma­jor grows to a point where they are in fact an in­te­gral part of the fam­ily.

The ques­tion of who gets the pet in the event of a re­la­tion­ship break­down can be a dif­fi­cult one. Although in most cases the dol­lar value of the an­i­mal is not high, the level of emo­tional at­tach­ment usu­ally is.

Un­der Aus­tralian fam­ily law, pets are con­sid­ered “chat­tels’” This means that they are a per­sonal pos­ses­sion and re­garded as an item of prop­erty.

As such, they are ca­pa­ble of be­ing in­cluded in the prop­erty pool as an as­set when cou­ples sep­a­rate. The court can de­cide who is to re­ceive the pet in the same man­ner as if they were deal­ing with fur­ni­ture or the fam­ily cars.

The ques­tion of who is to re­ceive the pet if there is no agree­ment is de­ter­mined by look­ing at the re­la­tion­ship each party has with the an­i­mal.

Does the pet have a par­tic­u­larly strong con­nec­tion with one party as op­posed to the other?

Who took re­spon­si­bil­ity for the pet’s well-be­ing, health and up­keep dur­ing the re­la­tion­ship and af­ter separation?

Of­ten chil­dren will have a strong con­nec­tion with the fam­ily pet, par­tic­u­larly if it has been a part of their life from early child­hood.

To en­sure min­i­mal dis­rup­tion, the court may de­cide that the pet will stay with the par­ent that the chil­dren will spend the ma­jor­ity of their time with.

In a case of Downey v Beck, the par­ties had ne­go­ti­ated the set­tle­ment of their prop­erty dis­putes ex­cept for one item, the own­er­ship of the dog.

The wife sought an or­der that the hus­band trans­fer reg­is­tra­tion of the dog to her­self.

The court held there was no dis­pute that the pur­chase price was paid by the hus­band, but this alone did not de­ter­mine own­er­ship.

Dur­ing the mar­riage, the dog lived with both par­ties and lived solely with the wife fol­low­ing separation.

Dur­ing that pe­riod, the wife alone paid for the up­keep of the dog in­clud­ing all vet­eri­nary bills.

The hus­band reg­is­tered the dog in his name eight months af­ter separation and af­ter the wife had signed an af­fi­davit as­sert­ing own­er­ship of the an­i­mal.

The wife also gave ev­i­dence at the court hear­ing that re­gard­less of who paid for the dog, it was pur­chased for her as a gift.

The court de­cided that the wife was the owner of the dog, had pos­ses­sion of the dog and had con­trib­uted to the main­te­nance and up­keep of the an­i­mal.

Photo: Con­trib­uted

FAM­ILY MEM­BER: Who’ll get the cus­tody of the fam­ily pet af­ter you split?

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