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………………Signed……………….. Presidential Member M Hassall REASONS FOR DECISION Introduction 1. This matter relates to an internal appeal within the Tribunal from a decision made 1 on 5 May 2026 dismissing proceedings commenced by Sebastian based on a finding of lack of jurisdiction. Sebastian has appealed from that decision. The 2 respondent is Michelle. Sebastian and Michelle were previously involved in a de facto relationship between the second half of 2022 and January 2026.

Procedural background 2. In March 2026, Sebastian lodged with the Tribunal what he described as a “Civil Dispute Application” in respect of “goods”. The good in question was a male 3 Dachshund dog called “Bingo” which Sebastian had purchased in October 2023 for $2,150. At the time, the parties agree, Sebastian and Michelle were one year into a roughly three-and-a-half-year de facto relationship. Bingo was much loved by both of the parties and in the material is referred to, at times, as a “son” of Sebastian.

3. The relationship between Sebastian and Michelle came to an end in January 2026. It appears the circumstances were acrimonious. I understand from the material that Bingo is presently living with Michelle. In that context, the order sought by Sebastian before the Original Tribunal was for Bingo to be returned to his custody. Sebastian styled his application as a simple civil action for the delivery of goods of which, he says, he was the sole and exclusive owner. In that context, clearly, the purchase cost of Bingo fell within the jurisdictional limit of the tribunal in civil matters.

4. Michelle’s position before the Original Tribunal, which she maintained in the appeal, was that the Tribunal has no jurisdiction to deal with Sebastian’s application because it is properly regarded as a type of proceeding which can only

1 The name Sebastian is a pseudonym and has been used for the purposes of confidentiality 2 The name Michelle is a pseudonym and has been used for the purposes of confidentiality 3 The name Bingo is a pseudonym and has been used for the purposes of confidentiality be dealt with by those courts specified in the Family Law Act 1975 (Cth) (Family Law Act) and which therefore must be dismissed.

5. The Original Tribunal agreed with Michelle. For reasons which I will come to, the Original Tribunal found that the Family Law Act vests exclusive jurisdiction in relation to matters which it covers in a limited range of courts, not including this tribunal, and that the claim relating to Bingo was such a matter. The Original Tribunal therefore dismissed Sebastian’s application.

Appeal to be heard as a new application

6. Under section 82 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), an appeal can be dealt with either as a new application or as a review of the original decision.

7. On 1 July 2026, the Tribunal directed that the present matter was to proceed as a new application, with the Tribunal to reconsider the issue of jurisdiction, and then, if required, determine the matter on its merits.

Does the Tribunal have jurisdiction to deal with the dispute?

8. The preliminary issue which I am required to decide is narrow. It is well known that certain courts exercise exclusive jurisdiction in relation to family law matters, including proceedings for the distribution of property following the breakdown of a marriage. For some decades now, the Family Law Act has also dealt with the distribution of property following the breakdown of a de facto relationship.

9. The term “de facto relationship” has a specific meaning in the Family Law Act. In these proceedings, no one has sought to persuade the Tribunal that that definition was not met in relation to Sebastian and Michelle. I note, among other things, that it is agreed that Sebastian and Michelle lived together in a marriage-like relationship for a period of at least three years.

10. The question is, therefore, has Sebastian established some particular legal or factual aspect of this case which means he is able to pursue his claim as an ordinary civil matter in this tribunal?

11. After reviewing the submissions of the parties and the relevant provisions of the Family Law Act, I have determined that the Original Tribunal was correct to determine that the Tribunal lacks jurisdiction in matters of this type.

The prohibition on a “de facto financial cause” being instituted other than in specified courts

12. Division 2 of Part 5 of the Family Law Act is entitled “Jurisdiction in de facto financial causes”. Subsection 39A(1) provides that a “de facto financial cause 4 may” be instituted under the Act in the Federal Circuit and Family Court of Australia, the Supreme Court of the Northern Territory or “a court of summary jurisdiction of a participating jurisdiction”.

13. Although subsection 39A(1) is permissive, its operation is clarified by subsection 39A(5), entitled “Proceedings only to be instituted under this Act”. Subsection 39A(5) provides (emphasis added): A de facto financial cause that may be instituted under this Act must not, after the commencement of this section, be instituted otherwise than under this Act.

14. Section 39A was inserted into the Family Law Act in 2008. As of 2026, therefore, a proceeding which is a “de facto financial cause” must not be instituted otherwise than under the Family Law Act. It should be noted that section 39A(6) provides that subsection 39A(5) has effect subject to subsection 90RC(5), which I refer to later in these reasons.

“De facto financial cause” includes a proceeding in which a claim of exclusive ownership of property is asserted

15. “De facto financial cause” is defined in section 4 of the Family Law Act as including (emphasis added): Proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them …

4 Emphasis added.

16. The final words of this part of the definition make plain that it captures proceedings with respect to the distribution of any and all property owned by the parties, whether jointly or exclusively by one or the other of them.

17. “Distribute” is defined in section 4 as meaning: (a) in relation to: (i) property, and financial resources, of the parties to a de facto relationship or either of them … includes conferring rights of obligations in relation to the property or financial resources …

18. It follows from the definitions of “de facto financial cause” and “distribute” that Sebastian’s claim in respect of Bingo the dog meets the definition of “proceedings between the parties to a de facto relationship with respect to a distribution, after the breakdown of the de facto relationship, of the property of … either of [the parties]”.

19. Sebastian asserts that he should have custody of Bingo. Michelle asserts that she should have custody. In my view, nothing turns on the use of the word “distribute” in the way that Sebastian contends. Whilst in one linguistic sense the giving of custody of Bingo either to Sebastian or Michelle might not seem like ‘distribution’ of property, an examination of decisions in this jurisdiction shows that it has been given precisely that meaning. Virtually every case that is litigated in the family law jurisdiction involves an assertion by one party or the other that ownership and/or custody of a particular item should be awarded to that party exclusively. In many cases, those claims are accompanied by assertions that that party only is the proper legal owner of the item in question. If Sebastian’s submissions were correct, the relevant provisions of the Family Law Act would be deprived of a significant part of their operation. I therefore reject that argument.

Section 90RC does not preserve the operation of State or Territory laws in relation to the subject relationship

20. Part VIIIAB of the Family Law Act is entitled “Financial matters relating to de facto relationships”. Section 90RC, to which I have already made reference (in my discussion of section 39A), is entitled “Relationship with State and Territory laws”. It was incorporated into the Family Law Act in 2008. Subsection (2), entitled “State and Territory laws do not apply to financial matters”, provides: (2) Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law: (a) deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and (b) deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships).

21. Subsection 90RC(2) was the subject of detailed submissions by Sebastian. Ultimately, if I understood those submissions correctly, I agree with Sebastian that the provision has a relatively narrow operation in the sense that it only excludes the operation of State or Territory laws which apply explicitly to “financial matters relating to the parties to de facto relationships arising out of the breakdown of those relationships”. The provisions of the ACAT Act do not fit in this category. They are general provisions; they neither seek to nor in fact deal only with “de facto relationships”, nor even more particularly only with “financial matters following a breakdown of de facto relationships”.

22. I turn next to subsection 90RC(3), which has the effect that in certain circumstances State or Territory laws can apply notwithstanding the provisions of the Family Law Act. Subsection 90RC(3) provides that: Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory in relation to a financial matter relating to the parties to a de facto relationship arising out of the breakdown of the relationship if: (a) a court cannot make an order under this part in relation to that financial matter because of section 90SB, 90SD or 90SK; and (b) there is no part VIIIAB financial agreement that is binding on the parties dealing with that financial matter.

23. In the present matter, the courts specified in the Family Law Act would not be deprived of jurisdiction under any of sections 90SB, 90SD, or 90SK.

24. Section 90SB has the effect that certain de facto relationships will not attract the jurisdiction of the relevant courts – for example, if the de facto relationship in question had a duration of less than two years. None of the matters set out in section 90SB is in issue here.

25. Section 90SD imposes a geographical requirement in the context of a claim for spousal maintenance. There is no suggestion that the present matter could involve a claim for spousal maintenance, and in any event the relevant geographical requirement is satisfied in the present matter, given that both parties resided in the ACT during the relationship.

26. Section 90SK imposes the same geographical requirement in relation to claims for property division following the end of a de facto relationship. The geographical requirement is satisfied in this case.

27. It follows that subsection 90RC(3) has no application in the present case, as none of the prerequisites in paragraph (a) are made out. Putting it another way, the relationship between Sebastian and Michelle is one in respect of which a court vested with jurisdiction under section 39A of the Family Law Act would have power to make, amongst other things, an order for the distribution of property following the end of their relationship.

28. I noted earlier in my reasons that subsection 39A(6) provides that subsection 39A(5) is subject to section 90RC(5), which in turn provides that, despite subsection 90RC(2), “Parliament does not intend that de facto financial provisions are to apply to the exclusion of a law of a State or Territory if the law is prescribed in regulations made for the purposes of this subsection”.

29. I simply note that I have been unable to find any law prescribed for the purposes of subsection 90RC(5). Neither party suggested that the ACAT Act is such a law.

30. It follows that, although section 90RC had some prominence in the reasons of the Original Tribunal, in my assessment it ultimately has no relevance to the jurisdictional question which will determine the outcome of these proceedings. Declarations and alterations of property interests in relation to a de facto relationship

31. Section 90SL of the Family Law Act provides that in proceedings between the parties to a de facto relationship, after the breakdown of the relationship, the court “may declare the title or rights, if any, that a party has in respect of the property”.

32. As I have noted, Sebastian’s case is that all the evidence points to him being the sole owner of the dog, Bingo. Effectively, what he has sought before the Tribunal is a declaration to that effect and enforcement of associated ownership rights, being an order for the return of Bingo to his custody. His proceedings therefore fall within the scope of what would be covered by section 90SL.

33. Subsection 90SM(1) provides that in property settlement proceedings, after the breakdown of a de facto relationship, the court may make such order as it considers appropriate (emphasis added): (a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property …

34. Michelle claims that, regardless of who paid for the original purchase of Bingo, she should be declared to be Bingo’s owner moving forward. It follows that Michelle’s response may properly be characterised as an application for the type of order envisaged by paragraph 90SM(1)(a).

Pets are a form of property

35. It is appropriate to note at this point that there is no doubt that a pet owned by one or the other of the parties to a relationship comes within the meaning of ‘property’ in section 90SM of the Family Law Act. The decision of the Federal Circuit Court of Australia in Davenport v Davenport (No 2) [2020] FCCA 2766 is an example of a case in which the court determined that a pet dog is to be treated as “property” for the purposes of the Family Law Act (and therefore could not be the subject of an order for shared custody, as proposed by one of the parties).

36. If there were any doubt about that proposition, it was resolved in 2024 by the addition to the Family Law Act of provisions dealing specifically with a ‘companion animal’, defined in section 4 as meaning “an animal kept by the parties to a marriage, or either of them, or the parties to a de facto relationship, or 5 either of them, primarily for the purpose of companionship”. Neither Sebastian nor Michelle has suggested that the dog, Bingo, does not meet the definition of “companion animal”; indeed, the material indicates that he was treated as a member of their family.

37. In the context of de facto relationships, subsection 90SM(6) provides that in 6 property settlement proceedings, “so far as they are with respect to property that is a companion animal”, the court may make one of the following orders (and no other order): (a) that only one party to the de facto relationship, or one other 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 is to be transferred to another person who has consented to the transfer; or (c) that the companion animal is to be sold.

38. It follows from what I have said that there is absolutely no doubt that the legislative intention is that, in relation to the types of de facto relationships covered by the Family Law Act, only the courts specified in section 39A will have 7 power to make orders relating to “companion animals”.

It does not matter that proceedings under the Family Law Act have not been commenced

39. The remaining question to be considered is whether the fact that, as I understand it, neither party to date has commenced property distribution proceedings under the Family Law Act means that the jurisdictional provisions to which I have referred are not engaged. This is part of Sebastian’s contention. I do not agree.

40. The effect of subsection 39A(5) is to bar proceedings commenced other than in accordance with the Act, that is, in the courts named in subsection 39A(1). It follows that it is irrelevant whether proceedings have been commenced in another

5 The definition is subject to various exclusions which are not relevant in this case. 6 “Property settlement proceedings” is defined as meaning, in relation to the parties to a de facto relationship, “proceedings with respect to the property of the parties, or either of them”: Family Law Act, s 4. 7 The orders able to be made by such a court are restricted to those specified in subsection 90SM(6), having regard to the considerations set out in subsection 90SM(7). court; the bar applies regardless. Nothing in section 90RC is inconsistent with that conclusion.

41. Sebastian contends that the outcome at which I have arrived is absurd, because it means that what he says is a straightforward ownership dispute about a single item of property can only be brought in one of the courts named in section 39A, notwithstanding that it is otherwise clearly within the jurisdictional limit of an entity like ACAT.

42. There is some logic in that submission. However, there is also logic in the position that has been adopted by the federal legislature. If Sebastian’s approach were adopted, it would mean that the parties to a former marriage or de facto relationship could commence a multiplicity of proceedings in different courts or tribunals with respect to different items of property, in each case with the relevant party asserting that the dispute in question is a discrete ownership dispute capable of being dealt with in the civil jurisdiction of the relevant tribunal or court.

43. That is obviously undesirable for a range of reasons, including that it could lead to courts and tribunals making contradictory findings about the relationship and ownership issues arising in it, and to courts or tribunals without the accumulated expertise of the courts identified in section 39A dealing with the types of matters that regularly arise in family law disputes.

Conclusion

44. For reasons outlined above, I am satisfied that the decision of the Original Tribunal was correct. I therefore order that the appeal be dismissed.

……………………………….. Presidential Member M Hassall

Date of hearing: 31 July 2026 Appellant: Audio-visual link Respondent: Audio-visual link