Pets and Australian Family Law: Changes Coming in June 2025
Soon when couples separate, it will be easier for courts to make orders about pets, so that there is clarity about who has Chase the dog, Harry the cat, or Goldie the goldfish.
Australian Courts have always had the ability to make orders concerning pets or animals. For instance, in the 1980s, I acted in a matter where a de facto couple had a receiver appointed for a horse which was jointly owned by the parties. The case was decided in the Supreme Court of Queensland and did not relate to any equivalent legislation to the Family Law Act 1975 (Cth) at the time.
Pets have historically been treated as property and “chattels”. Pet or animal ownership disputes most commonly occur after the breakdown of a relationship and are resolved in a similar manner to other items of property. [1]Usually, one party is awarded the pet as a part of settlement which may be formally or informally agreed upon. Sometimes, pets are simply left with one party. In 2020, the Family Court, said that it had no jurisdiction to order shared cared arrangements for animals. [2]
Family Law Amendment Act 2024 (Cth)
The Family Law Amendment Act 2024 (Cth) has been enacted by federal Parliament and is scheduled to commence on 10 June 2025. The legislative changes provide a clearer approach to determining how pets are maintained by parties in family law disputes.
Key Changes Under the New Law
The first requirement is that only pets, or as the Family Law Act calls them[3], companion animal, are covered by the changes. The words used in the Act are companion animal.
A companion animal is an animal primarily kept for companionship and does not include:
- assistance animals under the Disability Discrimination Act 1992;
- animals kept as part of a business;
- animals kept for agricultural purposes; and
- animals used in laboratory experiments.
A support animal that is not an assistance animal under the Disability Discrimination Act 1992, for example, would likely be considered to be considered a companion animal. If a person in court brings in their pet chicken Clucky, for example, and says that Clucky is their support animal, then depending on what a Federal Circuit and Family Court judge might find, Clucky might be an assistance animal (and therefore not covered by the changes) or a companion animal (and therefore covered by the changes). It’ll depend on the facts.
New section 79(6) of the Family Law Act sets out what the Court can do. There are three possible kinds of orders involving disputes concerning companion animals:
- one party retains ownership – this can be a party to the marriage / de facto relationship or a third party in the proceedings;
- ownership is transferred to another person who has consented; and
- the animal is sold.
Factors Considered by the Court
Section 79(7) set out what courts will consider when deciding who should retain the companion animal:
- how the animal was acquired;
- who has ownership or possession;
- each party’s involvement in caring for and paying for the maintained of the animal;
- whether either party was exposed to family violence by the other party;
- any history of actual or threatened cruelty or abuse towards the animal;
- emotional attachment of a party or child to the pet;
- the ability of each party to care for the pet independently; and
- any other relevant factors or circumstances just to be taken into account.
Married and De Facto Couples
The amendments apply to both married and de facto couples, provided they meet the legal threshold for being in a relevant de facto relationship for at least 2 years.
Western Australia has not referred its legislative power regarding de facto property disputes to the Commonwealth Parliament. Thus, in WA, these Commonwealth legislative changes only apply to married couples. It is expected that WA will adopt similar reforms in the future, aligning with the Commonwealth provisions.
Interim Orders and Injunctions
Interim or provisional orders concerning companion animals are possible under sections 79, 80, 114 (for married couples) and sections 90SM, 90SS, and 114 (for de facto couples) of the Family Law Act 1975 (Cth). These orders can determine who has possession of the pet and who is responsible for its care until a final decision is made. In WA, similar provisions apply under sections 205ZG and 205ZI of the Family Court Act 1997 (WA).
The Court may be reluctant to make interim orders regarding pets as in Gaynor & Tseh [2018] FamCA 164, preferring for decisions to be left to a final hearing.
Conclusion
The upcoming changes to Australian family law mark a significant shift in how pets are treated in family disputes. While challenges may still arise, we hope that the reforms provide greater flexibility for pet owners navigating family law disputes.
[1]Grunseth & Wrighton [2022] FedCFamC1A 132.
[2]Davenport & Davenport (No 2) [2020] FCCA 2766.
[3]Section 4.
