Ownership Of A Pet In A Family Law Dispute
Despite pet ownership being a hallmark of Australian life, it is not very common to see the Full Court of the Federal Circuit and Family Court of Australia, in an appeal judgement, making a specific comment on the ownership of a pet in a family law dispute.
In Grunseth & Wighton [2022] FedCFamC1A 132 (26 August 2022) the de facto Wife appealed an order which provided for the division of assets after a relationship of just under three years in the proportions 47.5% to her and 52.5% to the de facto Husband, as well as requiring the transfer of ownership of a pet dog.
The primary judgement devoted some 25 paragraphs to the determination of who was to own Roxy, and it concluded that the de facto wife was to transfer ownership of the dog to the de facto husband.
In reaching that conclusion the primary judge found that the de facto Wife was the registered owner of Roxy, had paid for Roxy and was at law her legal owner. However, the Court went further to state:
- Roxy was joint de facto property.
- It was conceded by her that the parties had purchased Roxy to be with the de facto husband’s daughter, who had chosen her from the litter, named her and been with the de facto wife when they had collected her.
- It was not appropriate to make an order to transfer ownership of Roxy to a third party who was not a party to the proceedings.
- However, given that Roxy was joint property, purchased at a time when the parties were intermingling funds and given the de facto husband had an emotional interest in the ownership of Roxy, the “justice and equity” resulted in it being appropriate to transfer ownership to the de facto husband.
In considering the de facto Wife’s appeal of those orders. The court considered the competing evidence and concluded that the de facto wife:
- Paid for Roxy’s purchase
- Paid for her desexing, registration, food, vaccinations, medications and grooming
Referring to the “emotional interest” referred to by the primary judge, the Full Court commented (commencing at 63):
As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant, and the Court is not, in effect, to undertake a parenting case in respect of them.
If the animals have significant value, they can be valued in the usual way. Of course, as with other assets, a party may have a particular reason for wishing to keep the animal and that can simply be dealt with in the ordinary course.
It is more difficult in the case of a family pet of limited financial value. If the ownership is contested, there is much to be said for each party making a blind bid for the pet, with the highest offer accepted and taken into account in dividing the property.
The appellant submitted that the primary judge erred in taking into account the emotional attachment of the respondent and his daughter Ms T, to Roxy and in failing to take into account the attachment of the appellant to Roxy.
These submissions are fundamentally inconsistent. However, we do not need to resolve them. For the above reasons, all the orders will be set aside, and the fate of Roxy determined as part of the re-exercise of discretion.
In ordering that Roxy should remain with the de facto Wife, the Court also considered the financial cost of Roxy and required the de facto Wife to pay the de facto Husband $800 which was Roxy’s purchase price, with the suggestion that he use this to assist his daughter to purchase another dog.
This case illustrates both the extent to which Australians are prepared to litigate for their beloved pets, but also the clear position of the court that issues such as emotional attachment and connection with an animal are irrelevant. Parties should take on board the wise words of the Full Court and if they genuinely wish to retain the pet, then they should put their money where their mouth is and make an offer to retain it, at a significant value.