Can I share my pet with my ex?

Lessons from the Federal Circuit and Family Court of Australia

Pets are beloved members of many Australian families and form an integral part in many households.

When a marriage or de facto relationship breaks down, the decision of who should retain ownership of the family pet can be very emotional. This leaves many parties considering whether they can look to the Court for formal orders in relation to their pets, and whether the Court could order joint pet “custody” or make pet orders akin to a “spend-time with” parenting order.

This article will explore the types of orders that the Court can make in relation to pets with reference to a recent family law decision which considered whether the Court can order that a pet is to travel with the parties’ child for “spend time with” one parent.

The Family Law Act (Cth) 1975

The Family Law Act defines a “companion animal” as an animal kept by the parties or either of them, primarily for the purpose of companionship. A companion animal is not an assistance animal as defined in the Disability Discrimination Act, or an animal kept as part of a business, agricultural purposes, or for use in laboratory tests or experiments.

1. That only one party is to have ownership of the companion animal; or
2. That the companion animal be transferred to another person who has consented to the transfer; or
3. That the companion animal be sold.

The Court may not make any other kind of order with respect to the ownership of the companion animal.

The Family Law Act provides the Federal Circuit and Family Court of Australia (“the Court”) the power to make the following orders in relation to a companion animal:

In considering what order should be made, the Court is to consider:

1. The circumstances in which the animal was acquired;
2. Who has ownership or possession of the animal;
3. The extent to which each party cared for and paid for the maintenance of the animal;
4. Any family violence to which one party has subjected to or exposed the other party;
5. Any history of actual or threatened cruelty or abuse by a party towards the animal;
6. Any attachment by a party or a child of the marriage to the animal;
7. The demonstrated ability of each party to care for and maintain the animal in the future without support or involvement from the other party;
8. Any other factor circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.

So, can you share your pet with your ex?

Wright & Berger [2025] FedCFamC2F

In Wright & Berger the Court considered an application in relation to property and parenting.

The parties were able to resolve most of the issues including in relation to parenting. With respect to property, the only item in dispute was the parties 16-year-old dog, which was adopted by the mother approximately 14 years prior.

The father proposed that:

1. The dog shall be owned by the mother;
2. The parties shall be responsible for 50% of the veterinary and registration costs;
3. The father shall care for and house the dog during the times in which the child is ordered to spend time with him;
4. The parties shall transfer to dog to each other’s care at specified locations or as agreed;
5. The parties shall inform each other within 24 hours of any serious illness or injury sustained by the dog and provide details to the other of any veterinary details/reports/referrals/prescriptions within 24 of receipt;
6. The parties be permitted to provide a copy of any orders to the vet or health care professionals to obtain information about the dog’s medical care.

Counsel for the father submitted that the scope of what the Court is to consider when making orders in relation to companion animals, did not extend so far as to prevent the Court from using its broad discretionary powers as to the “use” of property, seeking to establish a distinction between “care” and “use”.

The mother’s position was in opposition of the arrangements proposed by the father and simply sought an order or declaration to confirm her ownership of the dog. Counsel for the mother submitted that given that the Family Law Act limits the Court to three options for dealing with companion animals (as expressed above), and as the father’s proposal conceded ownership of the dog to the mother, insofar as the Court has the power to make orders, the matter was dealt with.  

Judge Forbes confirmed that the Court’s jurisdiction to make orders in relation to the ownership of pets is vested in the Court’s powers to make orders in respect of property. The Court does not have the power, pursuant to the parenting powers afforded by the Family Law Act, to make orders imposing a ‘shared custody’ arrangement of an animal.

The judge considered the factors required by the legislation and held that there is no room for a broader discretion to make ancillary orders of the type proposed by the father. The judge also referenced the “clean break” principle where the Court must, as far as practicable, make orders as will finally determine the financial relationships between the parties and avoid further proceedings between them.

Whilst the judge did consider that there is benefit to the pet being present during the time the child spends with the father, he confirmed that the Family Law Act does not permit the Court to make such an order.  

Ultimately, an order was made declaring the mother to be the owner of the dog.

In summary, the Court will not make an order that a pet is to be shared between parties. Such an arrangement could only be facilitated on a “good faith” basis between parties if they are in agreement to share the care of the pet and manage those arrangements between themselves. The arrangement would not however be able to be formalised by way of Court order as the Court does not have the power to make such an order.

Do you have questions about your family law matter? Speak with one of our Family Law Solicitors at Solari & Stock today. Reach out to our Sutherland Shire Solicitors today on 8525 2700 or click on the Book Now button below. Our experienced Family Law Solicitors include Riccarda Stock, Nicole Quirk, Shweta Kumar, Nikita Ward, and Mia Doncevski.

Article by Mia Doncevski
Image created in Canva