DAVENPORT & DAVENPORT (No.2)

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

1. 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

1. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. On 31 July 2019 the wife received advice from the husband’s solicitor…