Who Gets The Dog? Your Pets Are The New Legal Battleground

Pets and the Law - Who Gets The Dog?
The custody of pets is becoming a priority issue in many family disputes before the courts. What are your rights?

Cats and dogs play a vital role in family life in Australia.

There are now over 24 million pets in Australia and around 62% of Australians own at least one. Of those, around 38% of Australian households have a dog (4.8 million) and 29% (3.9 million) have a cat.

And this doesn’t account for the 4.2 million birds Aussies keep as pets. Chickens, fish, guinea pigs and lizards make up the bulk of the rest of Australia’s pet world.

The Australian Constitution does not mention animals specifically, apart from fish (but this relates directly to fisheries), so the laws governing animals fall to states and local councils.

If you have a companion or support animal, there are two important pieces of legislation you should know about: Prevention of Cruelty to Animals Act 1979 (NSW) and Companion Animals Act 1998 (NSW).

Because we are based on the NSW Central Coast, we’ll look closely at how the laws in NSW protect you and your pets. But at the bottom of this article, you will find links to some animal organisations in your state or territory. 

Pets And Property 

Are Pets Allowed In Apartments?

A unanimous NSW Supreme Court decision found pet bans in strata to be against strata scheme legislation, because blanket bans of any kind are “harsh, unconscionable, or oppressive”. They agreed “restricting the lawful use of each lot, on a basis that ‘lacks a rational connection’ with the enjoyment of other lots and/or common property, is beyond the power to make by-laws conferred by section 136”. And so, the Tribunal is able to invalidate a by-law that blanket bans pets.

How Neighbours Can Deal With Pet Disputes

The main legislation that deals with the control of domestic animals in NSW is the Companion Animals Act 1998 and the Companion Animals Regulation 2018. These set out the responsibilities of dog and cat owners and provide local councils with a range of measures to prevent animals causing harm to people and property. The Environmental Protection Authority (EPA) website provides information on the causes and ways to deal with the problem of excessive barking in dogs.

The Law Society of New South Wales steps out how and when to complain. If you feel you have been unfairly targeted by a neighbour, or your concerns are falling on deaf ears, we are here to help with legal advice.

Who Gets The Dog Or Cat?

The Family Law Court does not consider “shared custody” or “visitation” of pets like it does when a couple shares the care of children. So, when marriages end or couples break up, often the pets become a major battleground.

Many animal rights activists believe treating animals like property is inhumane, as pets are aware and experience complex emotions. 

Overseas, some countries follow a “best interest” philosophy when making decisions regarding pets.

In Australia, however, the Family Law Act will look at:

  • Who purchased the pet? 
  • Who takes care of it? 
  • Who feeds it?
  • Who pays for the insurance? 
  • Whose name is it registered in? 

These factors help determine who is the “owner” of the pet overall, and ultimately help determine whether you are able to hold onto the pet alone or with your former partner.

We can help you sort through the legal questions in relation to this and other matters.

Pets And Wills

While you cannot directly bequeath money to your pet in the event of your death, you can create a testamentary trust for the maintenance of your pets. You can gift your animal to a family member or close friend and provide money, with conditions, to that person. Pets are considered property in Australia, just like cars and houses. Because of this, they cannot inherit money. To explore your will options, give us a call.

Vet Negligence And Your Pet

If you believe your vet has treated your pet in a cruel or inhumane way, you may be entitled to compensation. Contact us to see if we can help you explore your options.

Assistance And Service Animals

There are laws to protect people with assistance and service animals. If you feel you have been unfairly discriminated against, or denied entry to a location with your service animal, you can seek legal assistance from us.

Pets And Your Legal Rights – Related Links

Prevention of Cruelty to Animals Act 1979 (NSW)

Companion Animals Act 1998 (NSW)

The Department of Agriculture, Water and the Environment

Dog And Cat Board (South Australia) 

Dog control (Tasmania)

Pets And Animals (Tasmania)

Animal Welfare (Victoria)

Pets And Wildlife (ACT)

Pets And Animals (Queensland)

Pets And Animals (WA)

RSPCA (WA)

New changes to renting laws in the Northern Territory (NT)

Animal By-Laws (NT)

Pet Registry (NSW)

Dogs And Cats (NSW)

Pets And The Law – FAQs

Is it illegal to drive with a pet in Australia?

Australia’s laws on driving with pets differ from state to state. The law prohibits driving with a pet in your lap, and it’s a very dangerous practice. Generally, fines are in excess of $200 plus a few demerit points depending on the state. Pets are not allowed between the handlebars and the rider on motorbikes. All dogs on utes should be restrained to prevent them from falling off or getting injured. If the vehicle is moving, neither a bike, motorbike, nor driver can lead a walking animal. Animal endangerment can also lead to fines and jail time issued by the RSPCA.

Can you shoot a dog/animal on your property in Australia?

The laws vary from state to state. In Australia, wild and feral dogs can be shot if they are on a rural property, you have permission from the landowners, and your licence is valid. While wild dogs can be shot legally in most cases, roaming domestic dogs cannot be shot except in limited circumstances. For more information, consult state laws.

What are my legal rights if I buy a sick or injured pet?

Animal breeders and sellers in Australia must ensure their pets are in good health before they sell them. You may be entitled to compensation if you have bought a new pet with a pre-existing preventable condition, or which is otherwise diagnosed as predisposed to developing a condition as a result of the breeder’s actions prior to purchase.

What are the pet laws in Australia?

You are required to microchip, register and desex your dog or cat in your state or territory. And you must apply for a licence if you have more than three cats or dogs in your home.

What exotic pets can you have in Australia?

All states and territories are quite strict on exotic animal ownership, except the Northern Territory, which appears to have relaxed the rules somewhat.

Are there prenups for pets?

This is especially true in America. To avoid the court process, they’re a good idea in Australia. Several law firms are now offering “petnups” to couples looking to avoid problems if their relationship ends.

For any issue relating to pets and your legal rights, Ryan and Seton Lawyers offer progressive advice. Contact us today to see how we can help you.

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