Every dog has its day – in the Family Court

Before amendments

Prior to 10 June 2025 and the recent amendments to the Family Law Act 1975 (the Act), our loyal companions were treated as mere property.

In the case of Davenport & Davenport (No. 2) [2020] FCCA2766, the husband sought a shared-care arrangement whereby the parties share custody of their dog. Justice Tonkin held that the Court did not have the power to order a shared-care arrangement for the dog.

In the case of Grunseth & Wighton [2021] FedCFamC2F 602, the parties argued over who would retain Ruby, the eight-year-old Spoodle. The Full Court held: 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 to them.

Recent amendments

The Act now legislates how the Court will determine pet ownership after separation. Pets are referred to as a ‘Companion Animal’, defined as an animal kept by the parties to a marriage or de facto relationship, or by an individual of a marriage or de facto relationship – primarily for the purpose of companionship.

The Court can make an order as to who retains the Companion Animal in consideration of:

• the circumstances in which the pet was acquired;
• who has ownership or possession of the pet;
• the extent to which each party cared for, and paid for, its maintenance;
• any family violence to which one party has subjected or exposed the other party;
• any history of actual or threatened cruelty or abuse by a party towards the pet;
• any attachment by a party, or a child of the marriage, to the pet;
• the demonstrated ability of each party to care for and maintain the pet in the future, without support or involvement from the other party; and
• any other fact or circumstance required to be taken into account, in the opinion of the Court.

The introduction of sections 79(6) and 79(7) of the Act indicates a shift in the value our society places on pets. The Court now recognises Companion Animals as sentient creatures capable of forming bonds with humans.

In determining a Companion Animal’s ownership, the Court will consider the traditional aspects of property ownership being acquirement, possession and maintenance, as well as the non-traditional aspects of property ownership; being the relationship shared between the Companion Animal and the parties, the parties’ respective treatment of it, and their individual abilities to maintain it.

In the near future, to determine the relationship shared between Companion Animals and owners, the appointment of animal specialists may be necessary to advise the Court on which party has a stronger relationship with the pet, and which party can best maintain the pet into the future.

What if my pet falls head over paws for my partner?

In determining pet ownership, the Court is to consider eight separate factors – and only one of the eight factors concerns the Companion Animal’s attachment to parties. If your Companion Animal’s loyalty wanes, you can still demonstrate your right to pet ownership by demonstrating the other seven factors.

Alternatively, we might just see an influx of people entering into Binding Financial Agreements in an attempt to oust the jurisdiction of the Court regarding their four-legged friend at separation.

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Thanks to Jessie Lonergan (Associate Lawyer) for her contribution to this article.
References available on request.