The short answer is no according to the Federal Circuit Court in 2020.
The full case can be found here: https://jade.io/article/784174?at.hl=davenport+v+davenport+2020
Or below;
FEDERAL CIRCUIT COURT OF AUSTRALIA
DAVENPORT & DAVENPORT (No.2) [2020] FCCA 2766
Catchwords:
FAMILY LAW – Jurisdiction – whether Court can make orders for “shared custody” of a dog – interlocutory application dismissed for want of jurisdiction.
Legislation:
Family Law Act 1975 (Cth), ss.4, 39(5AA), 79, 80, 111AA, Part VII
Federal Circuit Court of Australia Act 1999 (Cth), ss.8, 10
Constitution of the Commonwealth, s.71
Cases cited:
Benford & Benford [2012] FMCAfam 8
Downey & Beale [2017] FCCA 316
Fencott & Mullen (1983) 152 CLR 570
Gaynor & Tseh [2018] FamCA 164
Davenport & Davenport [2020] 2765
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166
Valceski & Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36
Warby & Warby [2001] FamCA 1469
Applicant: MS DAVENPORT
Respondent: MR DAVENPORT
File Number: BRC 787 of 2020
Judgment of: Judge Tonkin
Hearing date: 21 September 2020
Date of Last Submission: 21 September 2020
Delivered at: Brisbane
Delivered on: 8 October 2020
REPRESENTATION
Counsel for the Applicant: Ms R. Horsley
Solicitors for the Applicant: Michael Lynch Family Lawyers
The Respondent appeared in person:
ORDERS
The application filed by the husband for interim orders for shared custody of the dog is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Davenport & Davenport (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE
BRC 787 of 2020
MS DAVENPORT
Applicant
And
MR DAVENPORT
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves an application by the husband for interim orders for “shared custody” of ‘D’ the dog. The wife contends the Court lacks jurisdiction to make that order. Though the parties are separated the parties are hereafter referred to as husband and wife for convenience.
Background
The parties commenced cohabitation in 2015, were married in 2017 and separated under one roof on 5 April 2019. There are no children of the marriage. The duration of the relationship was approximately 3 years and 8 months.
According to the wife on 8 May 2020 the husband vacated the former matrimonial home at B Street, Suburb C. He claims he was forced out of the property. That issue remains in dispute.
On 30 May 2019 the wife through her solicitors requested that the husband not attend the B Street, Suburb C property. On 31 May 2019 the husband’s then solicitors wrote to the wife advising that the husband sought to attend the property to spend time with ‘D’ the dog and attend the garden. He had retained possession of keys to the property.
On 10 July 2019 the wife contends that without her consent the husband attempted to enter the B Street, Suburb C property by using keys to the front gate. She had changed the locks and he was unsuccessful entering the property.
On 31 July 2019 the wife received advice from the husband’s solicitor that they no longer acted for the husband.
On 13 August 2019 the husband filed an application for a Protection Order with the husband as the aggrieved person. He listed the grounds as the wife’s refusal to allow him to collect property from the B Street, Suburb C property and her refusal to allow him access to ‘D’ the dog.
On 20 August 2019 the wife’s solicitor wrote to the husband offering him a “Keep the Peace Police” visit to allow him access to the B Street, Suburb C property supervised by police to collect his items from the property.
On 19 September 2019 the husband wrote to the wife’s solicitor advising that he had reconsidered the need for his Protection Order application and was withdrawing that application. He filed a Notice of Withdrawal of proceedings and that matter was listed for a procedural hearing on 3 October 2019.
According to the wife on 3 October 2019 in the Magistrates Court the husband reneged on his agreement to withdraw the Protection Order application and sought to defer his withdrawal until the “Keep the Peace Police” visit had occurred so he could collect items. She deposed that the Magistrate struck out the husband’s Protection Order application on the basis according to the wife that the application had no prospects of success and the matters raised by the husband were matters properly before the Family Court. Determination of that issue is beyond the scope of this judgment.
On 15 December 2019 the husband wrote to the wife’s solicitor advising that he was issuing the wife with an ultimatum to commence contributing towards “sole occupancy of the house at a rate of $600 per week” otherwise he intended to move into the house on Christmas Day and the wife and he could have one floor of the house each.
The wife deposed that she vacated the property on 23 December 2019. On 7 January 2020 the husband collected the keys to the B Street, Suburb C property from the wife’s solicitor.
Litigation history
On 22 January 2020 the wife commenced proceedings seeking interim and final orders with respect to adjustment of property interests under section 79 of the Family Law Act 1975 (Cth).
In support of her application the wife filed an affidavit on 22 January 2020 and deposed inter alia that she was the sole registered owner of a 6 year old female dog named ‘D’. She said she purchased the dog prior to the marriage when the parties were cohabiting. She deposed in her affidavit at paragraph 68 to adopting ‘D’ from a rescue service in 2017 annexing documents in support of the purchase and registration. ‘D’ has been in her full time care since separation. She deposed that she wished to retain the dog as part of her property settlement.
On 10 March 2020 the husband filed a response seeking inter alia that “final orders application by the applicant be rejected as the applicant has not undertaken any genuine effort at mediation.”
Further, he sought interim orders as follows:
“1. Interim orders application by the applicant be rejected as the applicant has not undertaken any genuine effort at mediation;
2. The parties be directed to participate in a genuine effort at mediation of the financial dispute;
3. The parties agree to the appointment of a private mediator from a list of potential mediator names and the costs of the mediation be shared equally by both parties;
4. Interim orders be granted for the respondent to have shared custody to ‘D’ the dog;
5. Costs of $2732.60 be awarded to the respondent and be paid by the applicant for personal loss and anxiety cause to the respondent by the applicant engaging in vexatious initiating application to the Federal Circuit Court for final and interim financial orders while rejecting all offers of mediation from the respondent over 9 months;
6. Ms E and the firm of Michael Lynch Family Lawyers are directed to cease efforts to approach the respondent at his workplace for any reason and all future documents requiring hand service be to his home address.”
In his affidavit in support of his response filed on 10 March 2020 he deposed that he had made numerous attempts to visit ‘D’ the dog and organise some “pet custody agreement” however the wife had refused. He did not dispute that the wife was the registered owner of ‘D’. He argued that the wife may “have done more of the ‘D’ care duties”, however he made a financial contribution towards the dog providing food, toys and visits to the vet. He claimed he gave the wife cash to purchase the dog and paid for a new kennel and food bowl. He annexed documents he said supported payments of $1633 for items relating to ‘D’. He requested the Court make an order that the husband spend time with ‘D’ “due to suffering pain and separation anxiety by not being allowed to have time with ‘D’.”
He sought the following orders for “access to ‘D’”:
“a. Two days/nights per week at my home at B Street, Suburb C;
b. Transport arrangements for the husband to collect and deliver ‘D’ at an agreed location such as a park or third party location such as E Store;
c. Contribution of $20 per week towards the care of ‘D’.”
On 11 March 2020 the husband filed a further affidavit claiming that the wife’s application was vexatious and an abuse of process maintaining that she had ignored his efforts to engage in Alternate Dispute Resolution processes prior to commencing proceedings.
On 17 March 2020 the matter came before Registrar Webb in the Discrete Property Listings in accordance with the practice implemented by the Court. Registrar Webb made a number of orders (Orders 1 – 14) (mostly procedural) to advance the property application. She adjourned the matter to 29 April 2020 for further procedural hearing. Order 14 of the orders made by the Registrar provides “the husband’s application in a case be adjourned before a Judge to 17 August 2020 for hearing.” She made a number of Notations including that the husband obtain legal advice regarding the Court’s power to make orders sought by the husband on an interim basis.
On 7 April 2020 the husband filed an amended response seeking final orders that the hearing before Registrar Webb “be cancelled and transferred to the Docket judge or another judge” and asserted that the wife’s application was an abuse of process. He sought interim orders for the parties to agree to the appointment of a mediator and attend mediation and that the husband’s application for shared custody of ‘D’ the dog “be brought forward to a date as soon as possible and by video.” He asserted that the dog was kidnapped by the applicant for the purposes of stress and anxiety to the respondent.
He sought interim orders as follows:
“1. The wife’s application be rejected as the applicant has not undertaken any genuine effort at mediation;
2. The parties are to agree to the appointment of a private mediator and costs to be shared equally by both parties;
3. If after mediation a property settlement is not agreed the parties can then make application for interim and final orders to the FCC;
4. That the hearing set by Registrar Webb to take place before a Judge on 17 August 2020 and dealing with an interim order sought by the respondent for shared custody to ‘D’ the dog be brought forward to a date as soon as possible and as a video hearing. The dog is kidnapped by the applicant for the purposes of stress and anxiety to the respondent.”
On 13 April 2020 the husband filed a further amended response as follows:
“1. Final Orders application by the applicant is rejected;
2. The parties are directed to undertake private negotiation and mediation in an attempt to resolve the property dispute and as a pre-requisite before any application for final or interim orders can be lodged with the Federal Circuit Court.
3. The hearing before Registrar Webb set for 29 April 2020 be cancelled and transferred to the Docket Judge or another judge at the first available date.
…
1. Interim orders application by the applicant is rejected;
2. Interim order is granted for the respondent to have shared custody of ‘D’ the dog and to include:
i. Applicant as main custodian with ‘D’ resident with the applicant for five days/nights per week;
ii. Respondent to have shared custody with ‘D’ resident at the respondent’s home for two days/nights per week;
3. The 17 August 2020 date set by Registrar Webb to hear the respondent’s application for joint custody of the dog be urgently brought forward to an earlier hearing date.”
On 13 April 2020 the husband filed a third affidavit arguing that the parties should be required to attend private negotiation and mediation and largely repeating the evidence in his affidavit filed on 10 March 2020 concerning ‘D’. In his affidavit he complained that he had sent a letter to the Court dated 12 March 2020 requesting that the procedural hearing set for 17 March 2020 be transferred to the Docket Judge. The letter was addressed to the “Senior Judge – Federal District Court – Family Law dated 12 March 2020” though the date of 12 March 2020 had been overwritten in pen deleting a typed date. He sought interim orders for shared custody of ‘D’ the dog with the applicant to remain as main custodian with ‘D’ resident with the applicant five days/nights per week and the respondent to have shared custody with ‘D’ resident at the respondent’s home for 2 days/nights per week. He sought that the date set for hearing on 17 August 2020 be urgently brought forward to hear the application for joint custody of the dog. He claimed he was suffering mental stress and depression due to not having access to ‘D’ the dog.
On 14 April 2020 the husband filed a fourth affidavit arguing that the wife’s lawyer was engaging in a vexatious application and an abuse of process by putting pressure on the husband as a self–represented person. On 20 April 2020 the husband filed an application for review of the Registrar’s decision. That matter was subsequently dismissed.[1]
[1] Davenport & Davenport [2020] FCCA 2765.
On 21 August 2020 the matter was listed before me for hearing the husband’s interlocutory application for shared custody of the dog. During the morning of the hearing the husband represented himself whilst the wife was represented by Counsel. The matter proceeded by audio link.[2] During the hearing the husband acknowledged that his application for review of the Registrar’s decision had largely been overtaken by subsequent events, including the Conciliation Conference which had occurred on 26 May 2020. He indicated to the Court that he did not intend to pursue his application for review of the Registrar’s decision and that application was dismissed. The wife made an application for costs and I made directions for the parties to file written submissions on that issue. The husband indicated that he wanted his interim application for shared custody of the dog ‘D’ to be heard. The matter was stood down not before 2.00pm for interim hearing. During the intervening period the husband forwarded to the Court a medical certificate indicating his inability to conduct the hearing. The matter did not proceed.
[2] The matter proceeded electronically via audio link pursuant to sections 66 to 69 of the Federal Circuit Court of Australia Act 1999 (Cth) and Joint Practice Direction 2 of 2020 – Special Measures in Response to COVID-19
On 21 September 2020 the matter was listed for mention. The husband indicated he was pressing his application for “shared custody” of the dog and sought a decision from the Court. No further documents or submissions were filed on this issue.
Application for “shared custody” of ‘D’
The husband’s application for “shared custody” of the dog raises a jurisdictional issue.
Section 71 of the Constitution of the Commonwealth (“the Constitution”) provides that the judicial power of the Commonwealth is vested in the High Court of Australia and such other federal courts as the Parliament creates inter alia. Section 77 of the Constitution gives courts vested with the judicial power of the Commonwealth the authority to exercise that power over a given subject matter.
The Federal Circuit Court was created as “a court of law and equity” by section 8 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCC Act”). Pursuant to section 10 of the FCC Act the Court has “such original jurisdiction as is vested in it by laws made by the Parliament (a) by express provision…” The Family Law Act 1975 (Cth) (“FLA”) is one such law made by Parliament by express provision. Each of the parties brings an application under the FLA.
Subsection 39 (5AA) of the FLA provides that subject to this Part and to section 111AA, the Federal Circuit Court of Australia has, and is taken always to have had jurisdiction with respect to matters arising under this Act in respect of which matrimonial causes (other than proceedings of the kind referred to in subparagraph (a) (ii) or paragraph (b) of the definition of matrimonial causes in subsection 4 (1)) are instituted under this Act.
The wife seeks orders for adjustment of the parties’ property interests. Under subparagraph 4 (ca) of the FLA “matrimonial cause” means relevantly “4 (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings (i) arising out of the marital relationship.” The Court has power to hear and determine the wife’s application for adjustment of property interests under section 79 of the FLA. The parties were married on 12 October 2017 and separated under one roof on 5 April 2019. The proceedings brought by the wife are proceedings with respect to property of the parties to the marriage arising out of the marital relationship.
As part of her application for final property orders the wife is seeking an order that she retain possession of ‘D’ the dog. In her affidavit she deposed that she is the registered owner of the dog ‘D’ and purchased him from an animal rescue shelter. The husband claims that he provided the wife with cash to purchase the dog. That matter remains in dispute. The dog is currently in the wife’s possession.
To date Courts have dealt with pets and other animals as personal property. The term “personal property” is defined in Butterworth’s Legal Dictionary as “all forms of property other than real property; that is all forms of property other than land and interests in land (excluding leaseholds).” Personal property is traditionally divided into two classes: chattels real (which includes interests in land for a fixed term of years and annuities issuing out of such interests) and chattels personal (which includes all other forms of personal property both tangible and intangible). The term “chattel” is defined in the Legal Dictionary as a moveable possession; any property that is not freehold land. There is no precise definition of a chattel at common law it can be a real or personal chattel. A chattel personal can be classified as either a chose in possession (items capable of being the subject of actual possession) or a chose in action (items that cannot be physically possessed but are recoverable by action). A chose in possession is an item of tangible personal property that is capable of physical possession by the owner and transfer by delivery such as a book or a chair in other words a moveable possession. The authorities[3] establish that a dog is regarded as property being a chattel or personal property. I am satisfied that the Court has jurisdiction to hear and determine the wife’s application for final orders that she retain the dog as part of the property dispute. That matter has not been listed for trial.
[3] Benford & Benford [2012] FMCAfam 8 (24 January 2012); Downey & Beale [2017] FCCA 316 (2 February 2017).
The husband seeks interlocutory orders for “shared custody” of the dog ‘D’. He does not seek equivalent orders with respect to retaining possession of the dog ‘D’ on an interim or final basis.
There is no doubt that the Federal Circuit Court has the “…authority and duty to decide whether a controversy brought before it lies within the limits of its jurisdiction…” (per Gibbs CJ in Ex Parte Green at 193, citing Reg. v Federal Court of Australia; Ex parte W.A. National Football League [1979] HCA 6; (1979) 143 CLR 190).
The husband did not direct the Court to any section of the FLA upon which he relied to bring his application for “shared custody.” Under Part VIII of the FLA[4] ‘D’ the dog would be dealt with as the personal property of the parties. Section 80 of the FLA sets out the general powers of the Court to make orders with respect to Part VIII applications. The Court has the power under section 80 (1) (i) to make an order by consent and under section 80 (1) (k) to make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section) which it thinks it is necessary to do justice.
[4] Under Part VIII of the Family Law Act 1975 (Cth) the Court has power to hear and determine applications for property, spousal maintenance and maintenance agreements.
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 (interim property orders) [2009] FamCAFC 166; (2011) FLC 93-466, 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 that the Court has no jurisdiction under Part VIII of the FLA to make an order for “shared custody” of a dog.
In Gaynor & Tseh [2018] FamCA 164 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. His Honour said as follows:
“[8] The Family Law Act 1975 (Cth) (“the Act”) 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 may be 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 alteration of a property interest on an interim basis.”
Cronin J determined it was not appropriate to exercise the power and require the dog be returned to the husband. The husband in this case does not seek that order.
Further the usual order (under section 79 of the FLA) is a once and for all order made after a final hearing. The husband does not seek to retain possession of the dog ‘D’ on a final basis. Even if I am wrong with respect to the Court’s jurisdiction to make orders for shared custody of the dog, I am not satisfied that in the circumstances that it is appropriate to exercise that power on an interim basis. There is significant conflict between these parties as demonstrated in affidavits filed by the husband.
The husband did not direct the Court’s attention to any legislation in any non–federal jurisdiction that would allow the Court to consider his application for “shared custody” of ‘D’ the dog under the Court’s accrued or associated jurisdiction. See Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Warby & Warby [2001] FamCA 1469; (2002) FLC 93-091; Fencott & Mullen (1983) 152 CLR 570; Valceski & Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36.
Nor did he identify any provision under the Family Law Act to found jurisdiction for “shared custody” of the dog. Formerly Part VII of the FLA dealt with “custody” issues however those issues related to the “custody” of children and not dogs or other pets. The Macquarie Dictionary defines child (plural children) as “a baby or infant, a boy or girl, a son or daughter, any descendant.” In Law “a young person within a certain age determined by statute.” ‘D’ the dog is none of the above. I am not satisfied that the husband’s application falls within Part VII of the FLA.
The Court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creatures that we share the planet with that would empower a Court to make orders for shared custody of a pet.
Conclusion
The application for shared custody of ‘D’ the dog is dismissed for want of jurisdiction.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 8 October 2020