In the City of Sydney, where there are more than two dogs for every child, it is not surprising that recent trends highlight an increasing acknowledgment of non-human family members in property settlement disputes. This raises the question: who keeps the family dog in property settlements?
Views prior to the Family Law Amendment Act
Previous decisions have treated pets as personal property, categorising them alongside tangible assets like motor vehicles and sentimental items. However, this approach disregards the emotional aspect and companionship of pets to those parties involved in proceedings.
The Court has addressed those limitations in the judgments handed down in property matters.
In Downey & Beale (2017) FCCA 316, the husband and wife had resolved the division of assets in their property dispute. The remaining item in contention was the ownership of the parties’ dog. The husband registered the dog in his name, but the wife kept it at her parent’s house. The wife paid for the dog’s care. Following separation, the dog remained with the wife.
The only issue was under section 79, pets (unlike children) are property. Judge Harman concluded:
[12] Nothing that is contained within these reasons is intended to depart from legal principle, nor intended to be in any way flippant. 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.
[19] His worth is their love and affection for the creature as they express it.
Judge Harman acknowledged that the value of pets is not solely monetary. However, the court restricted him to treating the dog as chattel when making orders. The Court determined that in the circumstances, the dog was to remain with the wife, irrespective of the husband’s claim.
In another case, Grunseth & Wighton [2022] FedCFamC1A 132, the Court considered the question of ownership of pets in the context of de fact proceedings. Under the Act, the law regarded Roxy, the family’s spoodle, as property. However, the court did not assign her a ‘monetary value’ for the purposes of the division of property.
The case was an appeal from a primary judgment granting the husband possession of Roxy. The court decided this due to his daughter’s attachment to the dog from a previous marriage.
The Court 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.”
On appeal, the court overturned the primary Judge’s decision and ordered the wife to retain Roxy. The findings were as follows:
- The wife registered Roxy in her name
- The wife covered the costs associated with Roxy’s care and desexing operation; and
- The daughter has no legal or equitable interest in Roxy, and therefore it is not appropriate to make an order transferring ownership to a non-party to the proceedings.
On broader terms, the Court concluded the following regarding the treatment of pets in property matters:
“If the animals have significant value, they can be valued in the usual way. Of course, as with other assets, a party may have a particular reason for wishing to keep the animal, and that can simply be dealt with in the ordinary course.”
“It is more difficult in the case of a family pet of limited financial value. If the ownership is contested, there is much to be said for each party making a blind bid for the pet, with the highest offer accepted and taken into account in dividing the property.”
Updated considerations under section 90SF(3)
The application of section 90SF(3)(r) gives increased flexibility to the Court to consider the welfare of pets, an owner’s sentiment, and the pet’s relationship with family members in determining property disputes.
s 90SF Matters to be taken into consideration in relation to maintenance
(3) The matters to be so taken into account are:
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
Although broad, this provision gives the Court sufficient discretion to address unique and distinct issues that other parts of the Act may not explicitly address.
The recent case of Rowlinson & Bradford (No 2) [2024] FedCFamC2F1241 represents the progressive nature of the law and allows the Court to maintain its level of practicality and empathy in the decision-making process.
Rowlinson & Bradford (No 2) [2024] FedCFamC2F 1241 – A progressive approach to who keeps the family dog in property settlements
These proceedings before the Federal Circuit and Family Court of Australia addressed the issue of pets, applying section 90SF(3) in a dispute between parties to a de facto relationship who shared two dogs during the course of their 10-year relationship. Following their separation in September 2020, the dogs remained with Ms Rowlinson and the children of the relationship. Mr Bradford sought an order to obtain ownership of one of the dogs, asserting that he shared a strong bond with it.
Ms Rowlinson contents that it is in the dogs’ interest to remain together in her care (as they had always lived together). She also alleged that Mr Bradfords had been abusive towards the dogs during the relationship.
The following facts were considered by the Court (not in dispute):
(a) The dog is registered in the name of the Wife, so that at law and particularly for regulatory purposes she is regarded as the owner;
(b) The dog is in fact one (1) of two (2) family dogs;
(c) both dogs have always lived together; and
(d) both have stayed living with the Wife and children since separation in September 2020.
Justice Betts made the following findings:
“[61] In my view, there is no principled basis to transfer the dog into the Husband’s name at this stage.
[62] Though not strictly necessary, I would also add that transferring the dog to the Husband seems somewhat cruel to the children and to the dog, who would be thereby forced it to ‘lose’ its canine companion. The dog may be property at law but it is not a piece of furniture. It is a living being and should be treated with compassion: s 90SF(3)(r).”
(Author note: Kudos to Justice Betts)
The court determined that Ms Rowlinson would retain both dogs, and it rejected Mr Bradford’s proposed order.
Traditionally, people have considered pets as animals, possessions, or ‘property’. However, Justice Bett’s decision emphasises that pets are more than that. Families cherish and value pets as members who deserve care and consideration. The Court highlighted the importance of compassion, recognising the well-being of the parties and the dogs in the decision-making process
Implications on who keeps the family dog in property settlements following this case
This ruling is expected to significantly impact family law and property settlement disputes. The Court has shown a willingness to move away from a rigid property-based approach to pets. It is now considering factors such as welfare, companionship, and existing living arrangements.
Furthermore, it allows the court to determine issues on a case-by-case basis in jurisdictions where various factors come into play.
What’s next for deciding who keeps the family dog in property settlements?
The amendments to the Act provide a progressive step forward, particularly as courts apply provisions such as section 90SF(3)(r) in family law disputes. Rowlinson & Bradford (No 2) highlight the ability to balance legal principles with empathy and the differing familial dynamics. As views and values evolve, pets are likely to receive more recognition in family law matters. This could lead to care arrangements similar to those made in parenting proceedings (farfetched, but who knows!).
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