Who keeps the Fur Baby?
In the recent Federal Circuit Court case of Downey & Beale [citation: Downey & Beale [2017] CCA 316], His Honour Judge Harman was put to task in deciding whether the former Husband or Wife was to keep their pet pooch.
After their separation and before the final Court Hearing, the parties had reached an agreement about all other issues in dispute, except who got to keep their pooch.
A summary of the facts of the case are that:
The Husband paid $300 to purchase the dog. The Wife told the Court that the Husband offered to pay for the dog as an early birthday gift for her. His Honour was of the view that payment of the purchase price did not in itself determine ownership;
The Wife argued that the dog was purchased after the parties met and whilst they were dating each other, and so ownership was a matter to be determined by the Judge;
The dog was living with the Wife and her parents in her parent’s home, and was therefore in her possession;
Once the parties married, the Husband then moved in with the Wife, her parents and the pooch;
The Wife provided evidence to the Court, including bank statements and receipts, to prove that she paid for all expenses, including food and vet bills for the pooch. Correspondence from the vet also referred to the Wife as the dog’s owner; and
The Husband asserted that he was and always had been the pooch’s owner and similarly, the Wife asserted that she was and always had been the pooch’s owner.
Turning to the legal considerations, the Judge reviewed the Companion Animals Act 1998 (NSW). Section 7 of that Act defines an “owner” as a person whom an animal is ordinarily kept, or the registered owner.
As at 4 November 2016, the registered owner was the Husband. Evidence before the Court said the Husband had only registered the pooch after the Wife’s Solicitor advised him that the Wife would be seeking an Order of the Court to state that she was the owner. The evidence before the Court was clear that the pooch was ‘ordinarily kept’ with the Wife.
His Honour was then faced with the decision of where the pooch was to live moving forward.
It was decided by His Honour that their beloved pet pooch would be considered under the law as a chattel, which falls within the meaning of “property” under the Commonwealth Family Law Act 1975.
As with all property disputes, the Judge was required to make an Order that would be “just and equitable.”
In parenting matters where a Judge is required to make a decision about where a child or children live, and/or how much time they spend and communicate with the other parent, the Judge is required to consider what would be in the best interests of the child.
In this matter, given the pooch was deemed to be ‘property’, the Judge was not required to consider the pooch’s best interests when deciding with whom the pooch should now live.
His Honour did however give consideration to contributions made towards the pooch in terms of caring for him, and financially providing for him. It was clear on the evidence that the Wife was responsible for the maintenance and upkeep of the pooch. His Honour found that the Wife clearly made a contribution towards the pooch, despite not having paid the initial cost to acquire him.
Ultimately, the Judge declared that the Wife is and was the owner of the beloved pooch; regardless of whom paid for the dog. To finalise their property settlement, the Husband was Ordered to transfer registration of the pooch to the Wife.
The difficulty His Honour had in having to decide this matter shines through within his Judgment, wherein it is noted that His Honour quoted Roger Caras who said: “dogs are not our whole life, but they make our lives whole.”