Dividing the Dogs: The Case of Arwen & Arwen

In late 2025, the Federal Circuit and Family Court of Australia delivered one of the first judgments applying the new framework — in a case where two dogs were the last thing standing between a separated husband and wife. We have previously outlined the new law concerning companion animals here, and now we explore a detailed example based on this case.

The Case: Arwen & Arwen [2025] FedCFamC1F 765

The parties in Arwen had already fought their way through years of bitterly contested parenting and property litigation. By the time Justice McGuire came to finalise the property orders, most of the big-ticket items had been carved up. What remained were two dogs — both much loved by the couple's children, and both much wanted by each parent.

Neither party was willing to give up either dog. There was no formal valuation of the animals, no evidence that one spouse had been the dominant carer, no evidence about who had paid for food, vet bills, or registration. There was simply a deadlock — and a judge now required, for the first time under the new law, to work out what to do about it.

How the Law Now Treats the Family Pet

From 10 June 2025, the Family Law Amendment Act 2024 (Cth) introduced a specific framework for what it calls "companion animals." The legislation defines a companion animal as an animal kept primarily for companionship. Assistance animals, livestock, animals used in a business, and laboratory animals are all expressly excluded. Most household pets — dogs, cats, rabbits, birds — will comfortably fit the definition.

Importantly, pets are still a form of property under the Family Law Act 1975 (Cth). The amendments do not suddenly treat animals like children. You cannot have "custody" of a dog in the same sense you have parental responsibility for a child. In fact, the Act now specifically prohibits the court from making orders for shared care or joint ownership of a companion animal. A judge's options are limited: award the animal to one party, order that it be transferred to a consenting third person, or order that it be sold.

What has changed is the list of factors the court must weigh. Under the new section 79(7), the court is required to consider matters such as how the animal was acquired, who has possession, each party's contribution to the animal's care, any history of family violence, any history of cruelty or threatened cruelty to the animal, the emotional attachment of each party (and any children) to the animal, and each party's demonstrated ability to care for the animal going forward. It is a meaningful shift — one that acknowledges pets are not quite the same as a dining table, even if the law still treats them within the property framework.

What Justice McGuire Decided About the Dogs

Here is where Arwen became genuinely interesting. Justice McGuire observed that both parties desperately wanted both dogs, that the children were fond of them, and that the evidence simply did not allow him to determine who had been the dominant carer or financial provider. He was, in his own words, reluctant to descend into competing claims about emotional attachment or sentimental value.

His Honour even paused to note — with some dry humour — that judges of the past had sometimes embraced "the wisdom of Solomon" by ordering disputed items sold, citing legendary court orders to "sell the vase" or "sell the valuable sports automobile." Under the new framework, selling the dogs was a legally available option.

But the Court did not go there. In the absence of evidence that separating the two dogs would cause harm — to the dogs or to their value — and without evidence of an overwhelming attachment weighing things one way, Justice McGuire ordered that each party retain one dog. The wife was given first choice. The husband would keep the other. One pair of dogs; two households.

What This Case Means for You

If you are separating and pets are part of the picture, there are a few things worth knowing.

First, you should be aware that the court cannot order shared care, no matter how equitable that might feel. If you want your dog to spend weekends with your ex-partner, that has to be a private agreement between you. A court will not draft a parenting plan for the poodle. If you and your former partner can reach an amicable arrangement through negotiation or mediation, a shared arrangement remains possible — but it is an agreement, not an order.

Second, evidence matters. If you want to keep the family pet, think about what you can actually prove. Who is registered as the owner? Who is on the microchip? Who pays the vet bills, buys the food, walks the dog, books the grooming appointments? If family violence is part of your situation — including threats or actual harm to the animal — that evidence is now squarely relevant. The new framework was, in part, designed to protect victim-survivors who have felt trapped in violent relationships because they could not safely take their pet with them.

Third, think practically about the future. The court will consider your demonstrated ability to care for the animal going forward, without needing support from the other party. That means your living arrangements, your working hours, and your financial capacity all come into play. A cute puppy photo on your phone is not enough.

Finally — and Arwen illustrates this vividly — if you end up in court without good evidence on your side, the outcome can be unpredictable. Justice McGuire did his best with what was put in front of him, but the parties walked away with one dog each, in part because nobody had put forward enough evidence to justify a different result. Preparation, in pet matters as in any property matter, is everything.

Thinking About Your Own Situation?

At Surge Legal, we help clients navigate the full spectrum of family law property matters, including the increasingly common question of who keeps the family pet. Whether you are negotiating a settlement, preparing consent orders, or heading toward a contested hearing, we can help you think through how the companion animal framework applies to your circumstances — and what evidence will matter most.

Call us on (02) 8551 7851, contact us online, or book a consultation. You can also read more about our work in this area on our Property Matters and Consent Orders pages.

This article is a general summary of Arwen & Arwen [2025] FedCFamC1F 765 for information purposes only. It does not constitute legal advice. Please contact Surge Legal to discuss your individual circumstances.