Companion animals and family law

A change in the vexed position of companion animals in relationship breakdowns?

Famously, when faced with a dispute between two women over who was the true mother of a baby, King Solomon threatened to divide the child in two with a sword. The true mother came forward, and begged King Solomon not to hurt the child; she’d rather the child live with the other woman than see the child die.¹ We all know that a child is not divisible in that way. When the relationship between parents breaks down, a child can’t be cut in two. However, the situation of companion animals in law is more difficult.

In Isbester v Knox City Council,² a case where a dog named Izzy faced potential “destruction”, the High Court of Australia observed at [30] that there are two possible ways to look at companion animals: an interest in a dog could simply be a property right, or the court could acknowledge “the importance of a domestic pet to many people.” In that particular case, the court did not find it necessary to decide. This ambivalence runs through the legal conception of ownership of animals: are animals simply “things” or something more?

Photo by Victor G on Unsplash. Chosen because this dog bears a distinct similarity to my late badly behaved and very beloved Jack Russell Terrier.

Nonetheless, as Jeremy Gans and I have noted in Guilty Pigs: the weird and wonderful history of animal law,³ for the purposes of the Family Law Act 1975 (Cth) (‘FLA’) companion animals are currently regarded as “property”, notwithstanding that for many people, they are profoundly different to a table, a car or a house. Therefore, under s 79(1) FLA (for married couples) and s 90SM(1) FLA (for de facto couples), courts must deal with companion animals as part of property settlement proceedings.

Hence in, in the recent case of Grunseth & Wighton,⁴ it was stated at [63]:

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.

Despite this, like the child before King Solomon, a companion animal is indivisible, and has an emotional importance which is not currently recognised by the law. This has led academics to suggest that the law should be amended to take into account the special place of companion animals in our lives.⁵ The inability of courts to effectively resolve disputes over companion animals means that, often, these matters are settled out of court.

Judges in some Australian family law cases have recognised that companion animals are more than property to those care for them. The most detailed such discussion is in Downey & Beale.⁶ Before they married, Ms Downey and Mr Beale bought a dog, which Mr Beale paid for. Nonetheless, Ms Downey considered that Mr Beale had bought the dog for her, and put herself down as ‘owner’ on veterinary bills, all of which she paid. After they married, the dog lived with Ms Downey’s parents. After their relationship broke down, Ms Downey kept the dog in her possession, but Mr Beale registered himself as the owner of the dog, and sought orders for the dog to be transferred to him under property settlement proceedings. Harman J said at [13] - [14]:

…I am conscious of that, opined by Roger Caras, “dogs are not our whole life, but they make our lives whole”. I am completely empathetic with the importance this issue holds for the parties and conscious that the parties and each of them may consider this sentient creature, this living being, as fundamentally important to them.

The law describes the manner in which this case is to be determined. (name omitted) [the dog] is a chattel and his ownership is to be determined by the Court as an issue of ownership of property.

At [19], his Honour went on to explain that family law tends to look at the assets of a marriage as divisible, but that the parties did not consider their dog in this light:

…Neither party seeks to apportion a value to (name omitted) and appropriately so. They do not argue that his worth is monetary. His worth is their love and affection for the creature as they express it.

His Honour decided that the dog belonged to the wife and that he would not make an order adjusting the property interests of the parties.

Things become messier when both children and companion animals are embroiled in a relationship breakdown. Rarely, a court can award “custody” of a companion animal to a child who is a party to the dispute, if it is decided that this is in the best interests of the child. Hence, in Jarvis & Weston,⁷ the court was prepared to order a dog to accompany a child, after the child expressed fear that his dog would not be looked after if it was left at his father’s house while he stayed with his mother.

Nonetheless, because courts must currently take a purely “property law” approach towards companion animals, there is always the terrible possibility that a companion animal is being used against a spouse, or against a child of the relationship. An example of this is in Walmsley v Walmsley (No. 3),⁸ where the husband, Mr Walmsley, gave away the family companion animals, and told Ms Walmsley that he was unable to get them back. One can almost hear the frustration emanating from the transcript when the judge orders the husband to give to the wife the name and the phone number of the person to whom he has purportedly given the companion animals. The judge suggests that the wife can ascertain what the true situation is herself.

There is evidence to show that some people exercise coercive control over their partners by threatening to hurt or kill companion animals, and that this disincentivises partners in abusive relationships from leaving.⁹ Companion animals may also be used by an abusive parent to control or manipulate their child, because of the special affection the child may have for the companion animal. This is tragic, because companion animals are particularly important to children who have suffered trauma.¹⁰ However, children cannot become registered owners of companion animals before they reach the age of 18.

Photo by Chris Abney on Unsplash Because I don’t want to discriminate against kitties.

The age at which a child could become a registered owner of a companion animal was one of the issues in Grunseth & Wighton,¹¹ mentioned above. Mr Wighton alleged that a dog named Roxy had been purchased for his daughter Ms T, a child from his previous relationship. There was evidence to indicate that the dog had in fact been purchased for Ms T, but she could not be registered as the owner of the dog because she was then under 18 years of age. Hence, the dog was registered in the name of Ms Grunseth. Because Ms T was not a party to the proceedings, and had no legal or equitable interest in Roxy, ownership of Roxy could not be transferred to her.¹² One hopes, if Roxy was truly bought for Ms T, and Ms T had affection for the dog, that Ms Grunseth allowed Ms T to have access to her.

The Federal government is not insensible to these problems. Recently, it has introduced the Family Law Amendment Bill 2024. Among the amendments are included the following additions to s 79 FLA and s 90SM FLA, governing property settlements for marriages and de facto relationships respectively:

Considerations relating to companion animals

(6)  In property settlement proceedings, so far as they are with respect to property that is a companion animal, the court may order:

(a)  that only one party to the marriage, or only one person who has been joined as a party to the proceedings, is to have ownership of the companion animal; or

(b)  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.

…

(7)  In considering what order (if any) should be made under this section with respect to the ownership of property that is a companion animal, the court is to take into account the following considerations, so far as they are relevant:

(a)  the circumstances in which the companion animal was acquired;

(b)  who has ownership or possession of the companion animal;

(c)  the extent to which each party cared for, and paid for the maintenance of, the companion animal;

(d)  any family violence to which one party has subjected or exposed the other party;

(e)  any history of actual or threatened cruelty or abuse by a party towards the companion animal;

(f)  any attachment by a party, or a child of the marriage, to the companion animal;

(g)  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;

(h)  any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

In the Second Reading Speech, Mr Dreyfus KC, the Attorney General, explained the rationale of these amendments:

Pets have an important place in many Australian families.

It is a terrible reality that pets are too often used and abused in cycles of family violence .

The bill proposes amendments that will apply particular considerations to pets—defined as 'companion animals'—in determining the ownership of the pet as part of a property settlement. This will allow a court to make orders giving ownership of a pet to one party following a relationship breakdown. In making such an order, the court will be able to consider factors such as any history of family violence during the relationship, the extent to which each party has cared for the animal, any history of cruelty to the pet by a party, and the relationships of a party or a child with the pet. This will help recognise pets as a unique type of property that deserves special considerations.

It is to be hoped that these amendments to the Family Law Act pass, because they will allow judges to undertake a far more nuanced approach to the situation.

In applying the law in future, Australian courts could be guided by the approach taken by the Supreme Court of New York in Travis v. Murray,¹³ where a “best interests of all” standard was applied. The court suggested a balancing act, similar to that suggested by the new s 79(7) or s 90SM(7), asking the parties to address several questions in a one day hearing:

Who bore the major responsibility for meeting Joey's needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis? Why did plaintiff leave Joey with defendant, as defendant alleges, at the time the couple separated? And perhaps most importantly, why has defendant chosen to have Joey live with her mother in Maine, rather than with her, or with plaintiff for that matter, in New York?

Perhaps if this Australian legislative amendment passes, the ownership of companion animals upon relationship breakdowns can be more fairly assessed than the current property-based approach. Judges will no longer be forced to treat companion animals like Solomon’s child.

1. 1 Kings 3:15 - 28, King James Version, because I like it.

2. [2015] HCA 20.

3. (Collingwood: Latrobe University Press, 2022) pgs. 63 - 67.

4. [2022] FedCFamC1A 132. See similarly Davenport & Davenport (No. 2) [2020] FCCA 2766, where Tonkin J decided that she had no jurisdiction to award shared custody of a dog.

5. Tony Bogdanoski, ‘Towards an Animal-Friendly Family Law: Recognising the Welfare of Family Law’s Forgotten Family Members’ (2010) 19(2) Griffith Law Review 197; Tony Bogdanoski, ‘The Marriage of Family Law and Animal Rights: How Should Australian Family Law Approach the Rise of 'Pet Custody' Disputes?’ (2006) 31 (4) Alternative Law Journal 216; Adam Jardine, Adam, Marilyn Bromberg, Nicholas Cardaci, ‘No More Fighting Like Cats And Dogs: It's Time For A New Pet Custody Model In Australia’ (2022) 19(1) Canberra Law Review 86.

6. [2017] FCCA 316 (Harman J).

7. [2007] FamCA 1339 (Moore J).

8. [2009] FamCA 1209 (Strickland J).

9. See Sophie Jaggers, ‘Harming or threatening pets would be a family violence offence under Tasmanian independent MPs push’, ABC News (5 August 2024).

10. Gail Gross, ‘The Benefits of Children Growing Up With Pets’, HuffPost (7 June 2015).

11. [2022] FedCFamC1A 132.

12. As Jarvis & Weston [2007] FamCA 1339 indicates, the situation might be different if Ms T was a party to the proceedings and her custody was at issue, and it could be shown that it was in her best interests for Roxy to accompany her.

13. 42 Misc. 3d 447, 977 N.Y.S.2d 621 (Supreme Court of New York, N.Y. County, 2013).