DAVENPORT & DAVENPORT (No.2)

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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…

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Details
Case
[2020] FCCA 2766
Decision Date

CaseChat Overview and Summary

In *Davenport & Davenport (No.2)*, the Family Court of Australia considered an interlocutory application by the husband seeking orders for the "shared custody" of a dog. The wife opposed the application.

The central legal issue before Judge Tonkin was whether the Family Court possessed the jurisdiction to make orders concerning the shared custody of a pet animal in the context of family law proceedings.

Judge Tonkin reasoned that the *Family Law Act 1975* (Cth) confers jurisdiction on the Court to make orders with respect to the property of the parties to a marriage. However, the Court's jurisdiction is limited to making orders concerning the division of property, not the day-to-day care and control of pets. His Honour concluded that a dog is not property in the sense contemplated by the Act for the purpose of making such specific orders. Consequently, the Court lacked the jurisdiction to grant the husband's application for shared custody of the dog.

The application filed by the husband for interim orders for shared custody of the dog was dismissed.

Orders

Orders of the court

1.

The application filed by the husband for interim orders for shared custody of the dog is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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