Wife Declared Owner of the Parties’ Dog in Family Law Proceedings

 

In a recent case of Downey & Beale [2017] FCCA 316 (2 February 2017) Judge Harman heard a property case where the husband and wife were able to reach agreement regarding all financial issues between them except for one issue with respect to the ownership of their dog.

When it came to making a determination as to where their dog would live, His Honour identified that their dog is a chattel. Chattels fall within the meaning of “property” under the Family Law Act 1975. As with all property matters, the Court is required to make an order that is “just and equitable” between the parties.

There was no controversy that the husband paid $300 to purchase the dog. His Honour considered the payment of this amount, however, did not itself determine ownership. The wife argued that the dog was purchased after the parties had met and whilst they were dating each other rather than cohabiting. The dog remained living with her and her parents at her parents’ home and was thus in her possession. The wife asserted that the husband offered to pay for the dog as an early birthday gift to her.

Additionally, the wife tendered her bank statements and other documents relating to the payment of expenses in relation to the dog. This included the dog’s vaccinations, operations, food, vet’s bills and accessories while the dog was living with her. The vet’s documents referred to the wife as the owner of the dog.

Judge Harman referred to the Companion Animals Act 1998 (NSW) (the “Animals Act”) to seek guidance on the issue of who owned the dog. That Act imposes certain obligations upon owners of companion animals, including a dog. Pursuant to section 9 of the Animals Act, it is a requirement to register the dog’s ownership within six months of acquisition. There was no dispute that this did not occur in this case.

As per s 7 of the Animals Act, the of definition of ‘owner’, is a person by whom an animal is ordinarily kept or the registered owner. By that definition as at 4 November, 2016 the registered owner was the husband. At any time prior to 4 November 2016, the person by whom the animal was ordinarily kept was the owner. That was clearly the wife as there is no controversy that following the separation the dog lived with the wife.

Ultimately, Justice Herman held that the wife is and was the owner of the dog. Irrespective of who paid for the dog, it was purchased for her as a gift. The husband was directed to do all things necessary to transfer registration to the wife.

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