Pet Custody in Family Law – Changes are Coming

By Karen Devey – Senior Associate

On 22 August 2024, the Family Law Amendment Bill 2024 (Bill) was introduced to Parliament. The Bill proposes further family law reforms, following the implementation of the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023, that came into effect on 6 May 2024.

The Bill seeks to make the law clearer about how property and finances are divided following the breakdown of a marriage or de facto relationship and to better address issues of family violence.

Amongst the proposed changes, the Bill also seeks to amend the Family Law Act 1975 (Act) to include pets (described in the Bill as ‘Companion Animals) as a specific type of property.

What is a Companion Animal?

A Companion Animal is defined as an animal kept for the purpose of companionship. Companion Animals are not limited by species.

Animals excluded from the definition include:

1. Assistance animals who provide support to a person with a disability.
2. Animals that are kept as part of a business, for agricultural purposes and/or kept for laboratory tests or experiments.

Where animals are kept for companionship and other purposes (such as sheep dogs, who are companions and also used for agricultural/business purposes), it will be for the Court to determine whether that animal is a Companion Animal or not.

Why are changes being made to pets in family law?

In the explanatory memorandum to the Bill, it is acknowledged that Companion Animals are sometimes used and abused in situations of family violence. Companion Animals are also sometimes used as a tool of coercion or control by one party.

The amendments are intended to support survivors of family violence to retain their Companion Animals, where this may not occur if Companion Animals continue to be treated as if they are any other type of chattel property.  

What will the Court consider when deciding ownership of pets under the proposed changes?

The Bill provides that the Court is to treat Companion Animals as property and will be required to consider the following factors to determine ownership:

The circumstances in which the pet was acquired.

1. Who has ownership or possession of the pet.
   
2. Any history of family violence during the relationship.
   
3. Any history of cruelty to the pet by a party.
   
4. The attachment/relationship of a party or a child with the pet. 
   
5. The extent to which each party has cared for, and paid for the maintenance of, the pet.
   

Consistent with the current approach, the Court will not be able to make orders about Companion Animals under Part VII (Children) of the Act.

How are pets presently treated under the Family Law Act 1975?


The proposed changes to the Act recognise Companion Animals as a unique type of property deserving of special consideration. However, under the current framework, pets are treated as chattel property, so effectively as part of the home contents.

In the matter of Downey & Beale [2017] FCCA 316, the parties were in dispute about the ownership of their pet dog. Both the husband and the wife sought to keep the dog. Neither party sought to ascribe any monetary value to the dog, and instead, both asserted that the dog’s worth was the parties’ love and affection for him.

The Court was empathetic about the importance of the dog to each of party, as a much-loved pet. However, as it stood (and still currently stands), the law dictated that the dog was to be treated as a chattel. The retention of the dog was determined by the Court as an issue of property ownership.

Relevantly to the question of ownership:

The dog was in the wife’s possession at the time of the hearing.

1. The husband had paid the purchase price for the dog in the amount of $300 while the parties were dating but before they started living together. The dog lived with the wife and her parents.
   
2. The wife asserted that she had selected the dog and the husband purchased the dog as a gift, although this was disputed by the husband. The Court did not make a finding either way, on the basis that to was not necessary to do so.
   
3. The wife asserted that she paid for the dogs’ food, vaccinations, operations and accessories. During the hearing, the wife tendered a bundle of bank statements and other documents for the payment of vet bills and other expenses for the dog. The bills referred to the wife as the dog’s owner.
   
4. The dog was not registered throughout the marriage. Some 8 months after the parties’ separation and once the ownership of the dog was clearly in dispute between the parties, the husband registered the dog in his name. Given the timing of the registration, the Court did not draw any inference of ownership from the registration.
   
5. The relevant Act in New South Wales (where the parties were located), the Companion Animals Act 1998 (NSW), describes an owner as the person with whom the animal is ordinarily kept or the registered owner. Ultimately, on the evidence the Court found the wife to be the owner of the dog.
   

Upon determining ownership, the Court did not adjust the wife’s legal interest in the dog as property.

His Honour said that s 75(2) of the Act did not assist and that there was no basis for any adjustment, and that the dog should remain with the wife. The Court made Orders for the husband to transfer registration of the dog to the wife.

Pets are valued members of many families in Australia. Treating Companion Animals as a special category of property is expected to be a welcome sought-after change to the Act.

If you are separating and need assistance with care arrangements for your pets, contact our experienced family lawyers for assistance, by calling 03 8672 5222.