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Pets

On 10 June 2025 amendments to the Family Law Act commenced which vary the property adjustment provisions of the Act.


One change is to make specific provision for “companion animals”1


Now, trust me, this post will not be a lengthy treatise on the issue, but nor will it poke fun at the importance of those who care about their pets. One of my greatest privileges in life (and a benefit, for me, of online dispute resolution) is spending each day with my dogs, who lie on the couch in my room while I work, and occasionally
jump up to say hello. One of my dogs has clearly learnt the key words I use when winding up a meeting, as she jumps up from the couch as soon as I say those key words, knowing that I am finishing and a walk is imminent.


Sadly, much of the media attention has been a little excited and, to some extent,
misleading, such as the claim


Australian family law is set to recognise the family pet as a companion animal, not
just “property” in light of a relationship breakdown. 
The change means judges must now consider emotional bonds and who’s best placed to care for the pet going forward. It’s a big step toward treating pets like family, not furniture. So, a “custody battle” might now include the Labrador too“.2


I say that such coverage is “sad” as the one of the purposes of the changes is to specifically crystallise that “custody battles” cannot occur, as pets are property. The section says so much pretty clearly, referring to “property that is a companion animal…”3 .


So much should already have been abundantly clear from case law including Full Court authority such as Grunseth & Wighton [2022] FedCFamC1A 132 wherein it was stated:


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


What is new is having a specific section which provides that:


“…the court may make an order:

  • that the companion animal be transferred to another person; or
  • that only one party … is to have ownership of the companion animal; or
  • that the companion animal be sold.


The court may not make any other kind of order under this section with respect to the ownership of the companion animal.”


In deciding what order to make about a companion animal (being limited to who will possess and own the piece of property that is the animal or whether the animal will be sold) a court must consider only4:

  • the circumstances in which the companion animal was acquired;
  • who has ownership or possession of the companion animal;
  • the extent to which each party cared for, and paid for the maintenance of, the companion animal;
  • any family violence to which one party has subjected or exposed the other party to;
  • any history of actual or threatened cruelty or abuse by a party towards the companion animal;
  • any attachment by a party, or a child of the marriage, to the companion animal;
  • 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;
  • any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

Clear as mud.


One of the bases given for the amendment, and clear from the relevant considerations above, is to ensure that companion animals are not used as a “weapon” in disputes by parties who have perpetrated (or who are accused of perpetrating) family violence. Having regard to this, it is curious that one of the orders that can be made is for sale of a companion animal. One would think that this gives a perfect lever to cause distress and weaponise companion animals, by seeking a pets sale.


In any event, the reason that the amendments even came to mind for me was a comment by a lawyer in a mediation I conducted at the time the amendments were due to commence. They commented on a case I had once decided about a pet, in 2017, reported as Downey & Beale [2017] FCCA 316 (2 February 2017)


I don’t think that decision will have any impact at all. First instance decisions by trial judges rarely do (and especially when mine). But, in being reminded of it and re- reading it, I was reminded how a little bit of revolutionary fervour and politics could be hidden in the footnotes (and the footnotes, if you care to read them, are the best part of the decision).

  1. A term which has its own convoluted definition in s.4 but which excludes:
    (a) an assistance animal within the meaning of the Disability Discrimination Act 1992 ; or
    (b) an animal kept as part of a business; or
    (c) an animal kept for agricultural purposes; or
    (d) an animal kept for use in laboratory tests or experiments ↩︎
  2. ABC 2 June 2025 https://www.abc.net.au/listen/programs/lifematters/big-changes-coming-to-pet-
    custody-in-divorce-law/105365002     ↩︎
  3. Referring to “custody battles” regarding pets is, with respect, unhelpful, especially as such American
    language has not existed in the Family Law Act for decades and as orders can only provide that a
    party keeps the animal or it is sold-there is no sharing permissible. ↩︎
  4. This means that, unlike other property, contributions (ss.79(4) and 90SM) and financial
    circumstances (ss.79(5) and 90SF), are not the basis of determination. ↩︎

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