Pet Custody
In Davenport & Davenport (No. 2) [2020] FCCA 2766 the Court addressed the issue of pet custody and determined whether it had jurisdiction to make orders for shared custody of a dog.
In this matter, the Husband made an application for interim orders for shared custody of ‘D’ the dog.
The Wife contended the Court lacked jurisdiction to make that order.
D Dog had remained with the Wife following separation as the Husband vacated the home.
In the Husband’s affidavit he deposed that he made numerous attempts to visit D the dog and organise some ‘pet custody agreement’ however the Wife refused. He argued that whilst D the dog was registered in the Wife’s name and she may have done more of the D care duties, he made financial contribution towards the dog by providing food, toys and visits to the vet. He also claimed he gave the wife cash to purchase the dog and paid for a new kennel and food bowl. The total costs expended on the dog were on his case $1633.
The Husband requested that the Court make an order that he spend time with ‘D’ “due to suffering pain and separation anxiety by not being allowed to have time with ‘D'”.
The orders sought by the Husband for access to D were:
- two days/nights per week at my home at B street, Suburb C;
- Transport arrangements for the Husband to collect and deliver D at an agreed location;
- Contribution of $20 per week towards the care of D.
The Husband was self represented at the Hearing.
Her Honour stated that the Husband’s application for ‘shared custody’ of the dog raised a jurisdictional issue.
The Wife sought orders for adjustment of the parties’ property interests. Under sub paragraph 4(c) of the FLA, Her Honour noted that ‘matrimonial cause’ means proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of then being proceeding arising out of the marital relationship.
Her Honour noted that she had power to determine the Wife’s application under section 79 of the FLA including her application that she retain possession of ‘D’ dog.
Her Honour noted that animals have traditionally been dealt with by the court as personal property.
It was then noted that the Husband’s application was seeking ‘shared custody’ of the dog, not possession of it on an interim or final basis.
Her Honour concluded “in my view the husband’s application is not an interlocutory application for the adjustment of property interests and does not fall within Part Viii of the FLA. In Strahan and Strahan the full court indicated that in any application for interim property settlement the court must consider whether there is jurisdiction to make the orders sought. I am satisfied the Court has no jurisdiction under Part VIII of the FLA to make an order for “shared custody” of a dog.”
Her Honour referred to the decision of Gaynor & Tseh [2018] FamCA 164 where Cronin J dealt with an application by the Husband for the return of the dog to his care where the dog was currently in the care of the Wife and relevantly His Honour said:
[8] “The FLA makes no reference to pets. It was conceded by the applicant that a dog does not fit within any other category of property than a chattel. Hard as that maybe for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property. Most significantly, the issue is the question of the alternation of a property interest on an interim basis.”
Cronin determined that it was not appropriate to exercise the power and require the dog be returned to the Husband.
In summary Her Honour determined that the dog was property and that she did not have jurisdiction to make orders with respect to ‘shared custody of ‘D’ the dog.
The application was dismissed for want of jurisdiction.
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