Feathers fly as pets dragged into custody rows

In a relationship break-up there are laws governing the custody of the kids and division of superannuation, but the fate of the family parrot, dog or cat is a different matter.

While there is an emerging "pet jurisprudence" overseas and a push to adopt the language of parenting disputes when dealing with animals after separation Australia lags.

"There are profound limitations in our legislation as to how pets will be dealt with and that is essentially at law they are personal property," says federal magistrate Joe Harman. "If they are breeding animals as part of a business then they become a business asset essentially. If they are purely companion animals they are really personal property like photos and CDs."

Litigants who come to Federal Magistrates Court or Family Court seeking custody or visitation rights for a pet are inevitably bound to be "frustrated and disappointed", Mr Harman says.

He cites a family law case in which Stevie the parrot had been given as a gift to the son of a separating couple. The judge made orders leaving the parrot in the care of the wife and son, who had special needs, and primarily lived with her.

When the father sought orders seeking access to the bird (for the purposes of breeding, he said), the judge declined.

Beyond the "sideshow", Mr Harman says treatment of pets can also be an important pointer to the courts as to the incidence of family violence in a relationship and can carry evidentiary weight in deciding certain parenting cases.

While cases that actually come to court over the retention or ownership of pets are scant, family lawyers are also being importuned to give legal advice on pets. Kuppy Nambiar, from Mathews Family Law, says dogs and cats in particular "can effectively be part of a family".

In a recent case she was involved in there was a notation made in the interim court orders that the family dog accompany a child travelling between the residences of his separated parents.

"This case was not really about adults sharing the dog, it was more a reflection of the parents wanting to provide comfort and security to a small child."

In a less amicable case, the firm was also involved in a dispute which never reached court where the parties fought over who should keep the urn containing the ashes of a long-deceased dog. In another case, the warring exes negotiated detailed arrangements for the "shared care" of two dogs.

"They each had the dogs in their care on alternate weeks and their arrangement included strict changeover times and locations as you would have had for children," Ms Nambiar said.