Table of contents
- Introduction
- What is the new law?
- How have the courts dealt with pet disputes in the past?
- How do courts deal with disputes about pets after separation?
- Why can’t I get ‘shared custody’ of my dog?
- What factors will the court take into account?
- What if the pet was a gift for my child?
- What other options are available (other than the courts)?
- What if the pet is a support or assistance animal?
- What next?
Introduction
In Australia, pets are often treated as members of the family, and this is particularly obvious with dogs. The cost of, and demand for, designer dog breeds like cavoodles and labradoodles is high. They are given human names like Lucy and Max – not Rover and Fido - and are more likely to live indoors than outdoors as they did in the past.
But who keeps the pet when a relationship breaks down? In parenting disputes, arguments about where the pet lives may reflect the parents’ fears and desires about where the children live. Similarly, parties often seek that the court treat their pets like children when it comes to making orders about where the pet should live. Changes to the law will commence on 11 June 2025. As a result, the Family Law Act 1975 (Cth) (FLA) will clearly set out the process for determining who keeps ownership of companion animals, like dogs and cats.
What is the new law?
Currently, pets are considered to be property. From 11 June 2025, pets will be considered to be “companion animals” and will be a specific category of property. Different considerations will apply when dealing with companion animals than when dealing with other property.
The reforms also recognise that a victim of family violence may not leave the relationship because of a fear that there will be a dispute about not only where the children live, but also a pet. One of the most important changes is that a history of family violence will be relevant as to who retains a pet.
Joint ownership of a companion animal will not be permitted. The companion animal can only have one owner.
The matters to be considered in making an order about a companion animal are set out in the new s 79(7) (and s 90SM(7) for de facto couples), so far as they are relevant:
(a) the circumstances in which the companion animal was acquired
(b) who has ownership or possession of the companion animal
(c) the extent to which each party cared for, and paid for the maintenance of, the companion animal
(d) any family violence to which one party has subjected or exposed the other party
(e) any history of actual or threatened cruelty or abuse by a party towards the companion animal
(f) any attachment by a party, or a child of the marriage, to the companion animal
(g) the demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party; and
(h) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
This will change the law. In cases decided in the past, family violence was not relevant. Factors (a)-(c) have been important in the few reported cases on pets, but the new list of factors is much longer and also includes matters not relevant to other items of property.
However, the past case law does provide some assistance with the interpretation of the new provisions.
How have the courts dealt with pet disputes in the past?
Historically, disputes about dogs and other pets have rarely been decided by the family law courts even though separating couples may have difficulty deciding who keeps the pet. A major impediment is that the sentimental value of a dog or cat significantly outweighs their monetary value. It is often not cost-effective to litigate, particularly if it is the only issue in dispute.
Generally, given the pressures on their time, if a judge is faced with the choice of spending time hearing a case and writing a judgment on where a dog should live or spending the same time on where a child should live, the proper choice is to devote scarce judicial resources to the decision about the child.
One early example of a dog dispute was Jarvis & Weston [2007] FamCA 1339. There was a brief discussion by the court as to whether there was jurisdiction to make orders with respect to the child’s dog. Judge Moore decided that the dog should travel between the houses of the parents along with the child. This is not an order commonly made and may even be less common under the amendments.
In Arena & Arena (No 4) [2024] FedCFamC1F 22, the court refused to make an order regarding the family pet because of the tension that such an order might create between the parents, potentially exposing the children to conflict.
In Gaynor & Tseh [2018] FamCA 164, the parties, who were also involved in a parenting dispute, asked the court to make an interim property order about the dog - an order ending a final hearing. The court, whilst recognising the importance of the issue of the dog to the parties, held that the decision could be deferred to the final hearing and preferred to use the available time to make interim parenting orders. The amendments give the court express power to make interim orders (or temporary orders pending a final resolution) with respect to companion animals, but the courts will still have the same time constraints as they did in the past and may need to prioritise which issues should be resolved first. Another matter where there is a dispute about parenting arrangements may be given priority over a dispute about a pet, resulting in that pet dispute being adjourned for hearing on another day.
How do courts deal with disputes about pets after separation?
In Australia, the current law and the forthcoming amendments, treat pets as property. The amendments make this clear if, there was any doubt. Some parties now tend to argue that disputes about pets should be decided in accordance with the best interest principles which apply to children, and look to the checklist of factors applicable to children in s 60CC of the FLA. However, these principles only apply to disputes about parenting arrangements for children.
In Downey & Beale [2017] FCCA 316, Judge Harman applied the property settlement principles laid out in s 79 of the FLA because pets, unlike children, are property. The parties had negotiated the settlement of their property dispute except for one item, being the ownership of their dog. The wife sought an order that the husband transfer the registration of the dog to her. Judge Harman said (at [12]):
Nothing that is contained within these reasons is intended to depart from legal principle, nor intended to be in any way flippant. I am conscious of that, opined by Roger Caras, “dogs are not our whole life, but they make our lives whole”. I am completely empathetic with the importance this issue holds for the parties and conscious that the parties and each of them may consider this sentient creature, this living being, as fundamentally important to them.
There was no evidence as to the dog’s value and the breed was not reported. The parties did not argue that the worth of the dog was monetary, and Judge Harman said (at [19]):
“His worth is their love and affection for the creature as they express it”.
Even though Judge Harman recognised the sentimental value of the dog, he treated it as property or a chattel under the law.
In Grunseth & Wighton [2022] FedCFamC1A 132, Judge Harman’s reasoning in Gaynor was upheld by the Full Court of the Federal Circuit and Family Court of Australia. One ground of an appeal related to a spoodle, Roxy. The Full Court confirmed that animals are property and that questions of attachment are not relevant (at [46]). A court cannot, in effect, undertake a parenting case in respect to them.
The Full Court said with respect to dealing with pets in proceedings under s 79 of the FLA (at [63]):
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.
Why can’t I get ‘shared custody’ of my dog?
Sometimes, disputes about who retains the pet appear similar to disputes about children, with competing proposals for sole residence, shared care and spending time with the pet. However, the courts have been very hesitant to make orders for any kind of shared custody arrangement or equivalent, and such an approach does not appear likely to be permitted once the amendments commence.
In Davenport & Davenport (No.2) [2020] FCCA 2766, the husband sought orders for “shared custody” of the parties’ dog. The court dismissed his application, stating that the court did not have jurisdiction under the FLA to make the type of order sought by the husband, saying:
“The Court is aware that for many people pets are regarded as members of the family however, there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creatures that we share the planet with that would empower a Court to make orders for shared custody of a pet”.
Similarly, in Castaneda & Castaneda [2023] FedCFamC1F 1017, Justice Altobelli refused to put in place a rotational system for the family’s dogs, as requested by the husband. The father sought that one dog remain with him full time and that the other dogs remain with the mother full time, save for a rotational system to be put in place for the school holidays. Justice Altobelli, referring to Grunseth, held that the dogs were property. Therefore, the court could not consider the mother’s argument that the dogs were “brothers” and could not be separated. Distinguishing Grunseth, Justice Altobelli did not allow the parties to make a blind bid for the dogs given the financial disparities between the parties. However, this financial disparity was taken into account when he held that the mother should have ownership of the dogs given that (at [178]) “the father has the financial means to purchase a new dog. The mother does not.”
This clearly reflects the court’s view that the dogs were property.
What factors will the court take into account?
In Downey & Beale, the court determined who owned the dog by considering who paid for the dog and other evidence of financial contributions or non-contributions to the dog. These factors are included in the new s 79(7), although other factors will also be considered.
There was no dispute that the husband had paid for the dog but the court said that this did not determine who owned the dog. The parties disagreed as to the circumstances in which the purchase was made. Each asserted that they were the owner of the dog.
In accordance with the approach set out by the High Court in Stanford v Standford (2012) FLC ¶93-518, Harman J examined the existing legal and equitable interests of the parties in the dog.
The wife relied on her payment of the veterinary bills and the purchase of items for the dog. She produced veterinary bills addressed to her and which described her as “owner”.
The dog was unregistered until 8 months after separation when the husband registered the dog in his name. He did this after the wife had given notice in her affidavit that she asserted ownership of the dog.
Section 7 of the Companion Animals Act 1998 (NSW) gives a definition of “owner” being the person by whom an animal is ordinarily kept or the registered owner. According to that definition, after 4 November 2016, being the date that the husband registered the dog as his, he was the owner. At any time prior to the date of registration, the person by whom the dog was ordinarily kept was the owner, and that was clearly the wife as the dog lived with her after separation.
Judge Harman considered the issue of contributions under s 79 of the FLA. Although the husband contributed the funds to the purchase of the dog prior to the marriage of the parties, the wife had clearly made contributions to the maintenance and improvement of the asset. Veterinary bills addressed to the wife at her address at her parents’ home were not conclusive proof as to where the dog lived, but clearly demonstrated that the wife was responsible for the maintenance and upkeep of the dog to the extent of attending to veterinary appointments and payment.
The wife also gave evidence that irrespective of who paid for the dog, it was purchased for her as a gift. The Judge did not venture into the territory of jurisprudence regarding gifts and equitable relief, as he was already satisfied that the wife was the owner of the dog, had possession of the dog and had contributed to the dog, so that it was not appropriate for any order to be made varying ownership of the dog.
Orders were made to:
- Dismiss the application of the husband for an order adjusting interests in property with respect to the chattel comprised of the dog (name omitted).
- Pursuant to s 78 of the FLA declare the wife as the owner of the dog as and against the husband.
- As far as necessary, require the husband to do all things necessary to cause the registration of the former matrimonial dog (name omitted) to be transferred into the wife’s name alone.
In Rowlinson & Bradford (No 2) [2024] FedCFamC2F 1241, Judge Betts accepted that as the dog was registered in the wife’s name, at law and for regulatory purposes she was regarded as the dog’s owner. He then considered having determined that the dog was owned by the wife and had lived with the wife since separating 4 years earlier, whether or not there was a principled basis or a reason to transfer the dog into the husband’s name. Judge Betts refused to do so, adding (at [63]).
“Though not strictly necessary, I would also add that transferring the dog to the Husband seems somewhat cruel to the children and to the dog, who would be thereby forced it to ‘lose’ its canine compassion. The dog may be property at law but is not a piece of furniture. It is a living being and should be treated with compassion: s 90SF(3)(r)”.
There had been family violence. Judge Betts found in the earlier case of Rowlinson & Bradford [2023] FedCFamC2F 1484, that both parties had perpetrated family violence on occasion “although the husband’s violence was at a higher level and of a coercive nature”. At separation, the husband assaulted the wife and broke her mobile phone. He was criminally charged and later fined. The police took out an Apprehended Violence Order to protect the wife and the children. The husband did not see the children for 2 ½ years. These matters were not relevant in this case but once the amendments commence, family violence will be expressly relevant as one of the 8 factors the court can consider.
What if the pet was a gift for my child?
In Grunseth, there were two dogs registered in the wife’s name and in her possession and control: Roxy and Patricia. The husband argued that he should keep Roxy because Roxy was bought as a companion for Ms T, the respondent’s daughter from a previous relationship, Ms T chose the name from a list of names supplied by the wife and attended with the wife to collect Roxy. He also argued, although this was disputed by the wife, that he gave $800 to Ms T to pay for Roxy. The trial judge found that the purchase price was paid by the wife.
The primary judge devoted 25 paragraphs to the issue of Roxy who was held to be joint de facto property. The matter was decided in favour of the husband largely because the dog was purchased for Ms T.
The wife lodged an appeal against the primary judge’s orders with respect to the ownership of Roxy and other issues. She argued that she paid for the purchase of Roxy and paid for Roxy’s de-sexing operation, food, vaccinations, medications and grooming as well as arranging the various services.
The Full Court agreed with the primary judge that it was the mutual intention of the parties that Roxy was purchased for Ms T, but Ms T was not a party to the proceedings, had no legal or equitable interest in Roxy, and therefore it was not appropriate for the court to make an order transferring the ownership of Roxy to Ms T. The amendments permit orders to be made to a transfer of ownership to a person who is not a party to the proceedings provided that person has consented to the transfer.
The Full Court concluded that the wife should retain Roxy and in the absence of Roxy being on the parties’ list of assets and liabilities and any evidence advanced by the parties as to Roxy’s current value, a value of $800 was allocated to Roxy in the wife’s side of the balance sheet.
In Castaneda, Justice Altobelli took into consideration the importance of the family dogs to the children. This was in reference to s 79(4)(e) FLA, which refers to property interests, and its consideration of s 75(2), in particular s 75(2)(o) (any fact or circumstances which the justice of the case requires to be taken into account). Justice Altobelli cited this as one of the reasons for which the dogs should remain with the mother (with whom the children lived).
What other options are available (other than the courts)?
Parties faced with a dispute about the interim possession and/or ownership of a dog cannot rely upon the Family Law Courts to give their dispute priority over, for example, disputes about arrangements for children. So, what other options do the parties have? Possibilities include:
- Mediation
- Arbitration
- Assessment by a specialist in pet behaviour.
The last of these options involves the parties asking an expert to help resolve the dispute: a “Pet Report” rather than a “Family Report”. There is no precedent for this type of report.
One such specialist is Daniel Mannix of the Victorian Dog Training Academy. He has qualifications in dog psychology, behaviour and training. Mr Mannix said that if he was asked to make an assessment, he would be able to make a clear recommendation as to with whom the dog should live. He would take into account who has put the most time in building a relationship with the dog, which is typically obvious. He would not recommend someone who is contributing to or enabling behaviours in the dog that could develop to be problematic for the dog in the long term. He would also look at how appropriate the proposed dwelling is for the dog’s individual needs.
The matters Mr Mannix would take into account, sound suspiciously like “best interest” factors. However they are described, a judge with a busy duty list might find it easier to make an interim decision about who should keep the pet with the assistance of a report from an expert which resolves the factual disputes set out in competing affidavits. And if the judge cannot make a determination because of time constraints or because it is an interim hearing, having a Pet Report might help the parties to resolve the dispute themselves.
What if the pet is a support or assistance animal?
It seems logical that a support or assistance animal should remain with the person who needs that animal. The animal will however, be property and therefore arguably should be valued. It is difficult to find reported cases where this has occurred. It seems likely that a court would only place a modest value on the animal or otherwise deal with the animal in a way which did not affect the division of the other property.
In Arena & Arena (No 4) [2024] FedCFamC1F 22, the family pet functioned as a support animal for one of the children of the relationship, X. The mother refused to allow the pet to travel with the children when they were spending time with husband. The appellant father also owned a therapy animal at his home which could support X.
Judge Curran concluded (at [62]) that:
“I do not have jurisdiction to make an order regarding a pet pursuant to parenting orders. Orders have been made by the Court as to the ownership of the pet and the transfer of such ownership has occurred. However, even if I had such jurisdiction, the tensions such as order may create in my view and the potential parental conflict that the children would be expressed to outweighs any benefit to a child of such an order …”
The amendments to the FLA dealing with companion animals specifically exclude support and assistance animals within the meaning of the Disability Discrimination Act 1992 (Cth).
What next?
The provisions in the Family Law Amendment Act 2024 which deal with companion animals, will commence operation on 11 June 2025. Given this delay and the problem of the court having scarce resources and the cost of litigation, it may be some time before a full understanding of how these provisions will be interpreted, and the circumstances in which the court will intervene to make orders as to which party should keep the companion animal.
The original article, “Who gets to keep Roxy? Why can’t we share the care of Charlie?” appears on the Forte Family Lawyers website and has been reproduced with permission.
© Copyright - Jacqueline Campbell of Forte Family Lawyers and Wolters Kluwer/CCH. This paper uses some material written for publication in Wolters Kluwer/CCH Australian Family Law and Practice. The material is used with the kind permission of Wolters Kluwer/CCH.
