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Many Canberrans are proud to be a part of a progressive community that strongly values animals and feels they deserve to have a quality of life that reflects that intrinsic value.
The ACT Legislature has recently added to its progressive track record by recognising animal sentience for the first time. The new law changes the legal status of animals in the ACT from being ‘property’ to ‘sentient beings’.
This column explores some issues relating to how this new ACT animal welfare legislation interacts with family law disputes, including who keeps the pets after a relationship split.
What is animal sentience?
The new ACT legislation has altered the status of animals, including pets in the Territory. Our furry friends are no longer just property, but sentient beings. This recognises that pets subjectively feel and perceive the world around them.
The legislation gives basic rights to animals by ensuring they’re given appropriate care.
Sentient beings or property?
Although the Family Law Act 1975 (Cth) does not have a provision dealing specifically with animals, the Courts have considered pets and have deemed them as a person’s property under the Act.
In the Walmsley case, for example, the Court valued pure-bred dogs of the marriage at $3,000. The Court deemed the dogs as an asset and ownership was allocated to Ms Walmsley.
What if the pets have no monetary value?
In Jarvis & Weston, the Court found that the family dog had no monetary value. The Court ordered that the dog live under the care of Ms Jarvis.
This was because the child of the marriage lived with the wife, and the child shared an emotional bond with the dog.
What factors do the Courts consider when deciding who gets to keep the family pet?
Currently, the Courts generally consider these factors when deciding who keeps the family pet:
- Who was the primary caregiver of the pet?
- Who feeds, walks and baths the pet, and takes it to the vet?
- Under which name is the pet registered (if it is registered)?
- Who paid for the pet if it was bought?
- Who pays for the pet insurance, vet bills, food and other needs?
- Does the pet share an emotional bond with any children under the parent’s care?
- Which parent has the financial means and lifestyle necessary to properly care for the pet?
While these factors consider the interests of the pet, they largely focus on ownership of the pet, costs of maintaining the pet and the effect the pet’s living arrangements will have on parents and their children.
What are the implications of the ACT legislation for family law?
Since the family law system is governed by Commonwealth law, the family law courts are not bound by ACT law. However, this does not mean that ACT laws aren’t relevant to family law matters.
For example, if a party is convicted under the new ACT laws for failing to provide their pet with appropriate care, a Court may take this into account in a family law matter when considering if members of that party’s family have been exposed or are at risk of being exposed to family violence. This is because Section 4AB(2)(f) of the Family Law Act 1975 lists ‘intentionally causing death or injury to an animal’ as an example of a behaviour that may constitute family violence.
More broadly, the new ACT laws may indicate a shift in social attitudes with animal rights. This, in turn, may influence the direction of family law decisions.
Is your relationship changing?
If your relationship is changing, and you’re concerned about what will happen with your loved ones, including your pets, get formal legal advice from family law experts, such as Debra Parker and the team at Watts McCray.
ABOUT THE AUTHOR
This expert column was prepared by Debra Parker, Accredited Specialist in Family Law and in Dispute Resolution at Watts McCray Lawyers in Canberra.
Debra is an accredited family law specialist and practices in Canberra. She was made a member of the Australian Institute of Family Law Arbitrators and Mediators in 1992 and is a Nationally Accredited Mediator with the Mediator Standards Board.
She is also a member of the Family Law Section of the Law Council of Australia and the Law Society of the ACT, and is the only family lawyer in the ACT with double Specialist Accreditation in both Family Law and in Dispute Resolution, as recognised by the Law Society of NSW.
Debra has been recognised in the National Doyle’s Guide as both a leading Family Lawyer and leading Mediator in the Australian Capital Territory for the past four years running. She was a finalist in the 2019 Mediator of the Year Award presented by the Australasian Law Awards in 2019.
Meet Debra Parker.
This editorial was created in partnership with Watts McCray Lawyers. For more information on sponsored partnerships, click here.