There’s no doubt that pets play an important role in many Australian lives, even more so during the pandemic. A recent study showed that “one in five families acquired a new cat or dog during the pandemic”. [1] While family pets are often considered part of the family, the Family Law Act 1975 (Cth) (the Act) tells us otherwise.

Unfortunately for pet lovers, the legal landscape has not changed for many years when it comes to pets and separation. While we have seen amendments to the Act taking effect this year, the Act remains silent on the specific point of pets. Hence, authority has been established through case law, providing guidance for separating couples as to who keeps the family pet.

It has been reaffirmed time and time again that pets are to be treated as personal property under the Act, as distinct from children, when couples separate.[2] This means that akin to other types of property, the Court will consider factors such as who paid for and registered the pet when applying Part VIII of the Act.[3]

While it may be argued that these considerations fail to account for the emotional connection and affection we have for our pets, it has been stated that “questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case to them”. [4]

In the case of Davenport & Davenport (No 2) [2020] the Court considered whether or not an interim application for shared custody of a dog could be established. This is distinct from the usual application for property orders pursuant to Part VIII of the Act in relation to pets, as a shared living arrangement was proposed.

The husband who initiated this application, gave evidences as to the financial contributions he made for the dog, despite the fact the dog was registered in the wife’s name. In his affidavit, the husband asserted that he tried to “organise some pet custody agreement” but the wife had refused. [5] While arguably the husband’s argument is novel, there were some deficiencies in his application, as he failed to direct the Court to relevant legislation.

Judge Tonkin stated that “there is no provision under the Family Law Act… that would empower a court to make orders for shared custody of a pet”. [6] Hence, the application was dismissed, and the reason citied was the Court’s lack of jurisdiction.

While the Court has acknowledged that “as much as it will pain pet lovers”, there is no doubt that pets are personal property. [7] The Davenport case also highlights the flaws with informal pet custody arrangements.

With more families owning pets post COVID-19, perhaps we will see a push for a reimagination of the Act for pets to be treated akin to children. However, for now our advice remains the same:

• If you are the primary owner or carer of the family pet. be sure your registration information reflects this, and you have the ability to maintain the costs associated with owning the pet.
• Following separation, ensure the pet lives with you and/or you have made efforts to effect the same.
• Consider preparing an informal agreement which sets out the care arrangements for your pet.

Thanks to Emily O’Keeffe (Law Graduate at Lavan) for her contribution to this article.

This article first appeared in the July – August 2024 edition of Medicus Journal. Medicus Journal is the AMA (WA)’s award-winning journal distributed bimonthly to more than 4,000 doctors and decision-makers throughout Western Australia.  The Australian Medical Association (AMA) is the peak professional body for doctors in Australia.

[1] Research into pet ownership over COVID, News, La Trobe University

[2] Davenport v Davenport (No 2) [2020] FCCA 2766 [34].

[3] Grunseth & Wighton [2022] FedCFamC1A 132 [52- 67].

[4] Grunseth & Wighton [2022] FedCFamC1A 132 [63].

[5] Davenport v Davenport (No 2) [2020] FCCA 2766 [17].

[6] Davenport v Davenport (No 2) [2020] FCCA 2766 [44].

[7] Grunseth & Wighton [2022] FedCFamC1A 132 [63].