By Mary Ann Gourlay, University of Technology Sydney
This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.
Citation: Jarvis & Weston  FamCA 1339
Court – Family Court of Australia
Judge – Moore J
Date of Judgment – 1 November 2007
FACTS OF THE CASE
Jarvis, the applicant, and Weston, the respondent, had separated and were in dispute over the final arrangements regarding the custody of their 11-year-old son. Areas of dispute included where the boy would live and the school which he would attend. The question of where the child’s dog should reside was also contested.
- The content of the custody arrangement in respect to the child.
- Whether the child’s dog should reside with his mother or father.
The custody arrangement
The Court held that the son was to stay for the greater part of the time with his mother and go to the school near her home. He was to stay with his father every second weekend. The burden of travel associated with attending school represented a practical difficulty with the father’s proposal. The Court found, “[w]hen his interests are weighed in the balance overall, the burden of such frequent travel on school days cannot be diminished. That fact, as well as the child’s need also to spend leisure time in his mother’s household, compels the adoption of the mother’s proposal as being more consistent with his best interests overall.”
Where the dog should reside
Once the arrangements for the child’s custody had been drafted, a dispute arose as to with whom the child’s dog would reside. The father took issue with the mother’s collection of the dog as the issue had not been raised previously and he wanted more time to think about it. He also claimed that the Court had no jurisdiction to make an order about the dog. With respect to the matter of jurisdiction, the Court stated that “whether the issue falls to be considered under the accrued, associated, inherent, or parens patriae jurisdiction of the Court it can be found should the need arise.” It then held that “The boy is attached to the dog. The dog is to go with the boy.”
Jurisdiction in the federal sphere is possible
Moore J made a decision about the dog in the federal jurisdiction of the Family Court of Australia, rather than treating the issue of the animal’s future as to be determined under state property law. Justice Moore acknowledged the arguments of the father’s legal counsel regarding lack of jurisdiction to decide the dog’s future may have been correct, but jurisdiction could be found “under the accrued, associated, inherent, or parens patriae jurisdiction of the Court”.
Recognition of the relationship between boy and dog
This is the most significant aspect of the decision. The relationship between human and animal was recognised and taken into consideration – “The boy is attached to the dog. The dog is to go with the boy”. There is no legally recognised framework within which to consider such emotional attachments. It is solely up to the discretion of the Court to decide how to evaluate and make a decision about acknowledging such relationships.
Distribution of the pet as property to a person not party to the custody dispute
It could be inferred that although the boy was not in actuality one of the disputing parties, marital “property” under dispute, in the form of the dog, was effectively distributed to him. The attachment of the boy to the dog trumped conventional property law rules. Here the Court is taking the attachment between human and animal into account in its decision about how to distribute marital property.
This case illustrates the need to have better legislative frameworks that are underpinned by a more complex approach to animals that goes beyond the definition of animals as property. It also points to the ability of the common law, in some circumstances, to move beyond the definition of animals as property and enable a more complex judicial approach to animals.