Mcphee Lawyers


09 March 2017

Who keeps Spot?


The recent Federal Circuit Court of Australia decision in Downey and Beale [2017] FCCA 316 provides an interesting analysis of the Court’s jurisdiction to make Orders in relation to pets.

The husband and wife in this matter were able to reach agreement regarding all financial issues between them save for one issue with respect to the ownership of their dog.

His Honour Judge Harman expressed his empathy to the parties, acknowledging the importance this issue held for them and in doing so quoted Roger Caras who said, “dogs are not our whole life, but they make our lives whole.

Although the decision of His Honour omits the name of the dog for privacy reasons we will adopt the name of Spot for the purposes of this discussion.

When it came to making a determination as to where Spot would live, His Honour identified that Spot is a chattel. Chattels fall within the meaning of property under the Family Law Act. As with all property matters the Court is required to make an Order that is “just and equitable” between the parties.

Interestingly, because Spot is classified as an item of property, as opposed to something akin to a child, the Court is not required to consider Spot’s interests when determining where he should live.

There were limited facts before the Court in relation to Spot however the Court was able to make findings in regard to the following matters:

  1. The husband paid the $300 fee for the purchase of Spot.  Judge Harman considered the payment of the fee however did not itself determine ownership.
  2. Spot was purchased while the parties were dating and as a consequence of the parties not cohabitating until marriage, Spot lived with the wife at her parent’s home. Spot was therefore in the wife’s possession during this time.
  3. Upon marriage the husband moved into the wife’s parent’s house to live with the wife and Spot.
  4. The wife asserted that she paid for all of Spot’s vaccinations, operations, food and accessories while he was living with her at her parent’s house.
  5. The husband asserted that he is and always has been Spot’s owner.  The wife similarly asserted that she was and always has been Spot’s owner.
  6. The husband registered ownership of the Spot eight months after separation. This was after he had been placed on notice by the wife’s solicitors that she would be claiming ownership of Spot.

His Honour referred to Companion Animals Act 1998 (NSW) to seek guidance on the issue of who owned Spot. Section 7 of that Act provides the definition of “owner” as being “the person by whom an animal is ordinarily kept or the registered owner”.

His Honour found that although the husband had registered the ownership of Spot following separation, the wife was the person with whom Spot was ordinarily kept and was the owner.

After finding that Spot was owned by the wife, Judge Harman had to decide where Spot should live.  His Honour considered that Section 79 of the Family Law Act (which provides the Court with the power to transfer ownership of property) provided very little that was of assistance with the matter.  His Honour could find however on the evidence that the wife had contributed to Spot’s care directly and financially as well as directly and non-financially and it was clear that the wife was responsible for the maintenance and upkeep of Spot.  Judge Harman found that clearly the wife had made a contribution to Spot even if she did not initially pay to acquire him.

In finding that Spot should remain with the wife His Honour commented that both parties had argued their case on the basis of who owned Spot and that His Honour considered that the wife was the owner of Spot at law.

The Court’s jurisdiction to make Orders in relation to Spot is grounded in treating Spot as an item of property.  When making Orders in relation to property of a marriage, apart from assessing the contributions made to that piece of property, the Court is required to make Orders that are “just and equitable” in the circumstances.

As such, the evidence presented to a Court when there is a dispute over a pet, should be directed to why it is “just and equitable” for that pet to remain living with one party or the other. Ownership of Spot was identified as an important factor in this case however, as with all property disputes, the Court has the power to look past ownership and make Orders that it considers to be just and equitable in the circumstances.

If we can assist with your family law matter please contact us today.

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