The likelihood of those circumstances being repeated and the dog repeating the attack

1. There was a significant dispute between the parties regarding this criteria.

1. Dr Diana Rayment provided a report, dated 20 January 2023, at the request of Monash Council. The report stated that Dr Rayment had assessed Chief at the FFAR property and in a public location.
2. Dr Rayment reached the conclusion that she had no reason to believe that Chief presents a risk to human safety, beyond that associated with any healthy and socialised pet dog of his size.
3. Dr Rayment also concluded that Chief is reactive to unfamiliar dogs within a distance of greater than 25 metres, which is a distance greater than dogs would usually pass each other on the street. At the assessment, on seeing an unfamiliar dog, 'Chief' had a moderate increase in arousal, with barking, lunging and pulling on the lead. The report stated that Chief had been undertaking structured counterconditioning to other dogs for 11 months and was still showing signs of reactivity to unfamiliar dogs. In those circumstances, it was unlikely that he would make significant improvement without additional measures, such as medication and changes to the behaviour modification approach.
4. Dr Rayment's view was that Chief's responses were consistent with social aggression with an undetermined motivation. The pattern of Chief approaching and attacking dogs passing by his home is consistent with territorial aggression. Chief displays behaviours consistent with a fear aggression response towards unfamiliar dogs. Dr Rayment considered Chief to be 'dog selective' in that he uses aggression to manage exposure to unfamiliar dogs and is not able to directly interact with all sociable dogs. If Chief was allowed unmanaged access to unfamiliar dogs in future, it is likely that he will display aggression towards them. Dr Rayment stated that she would expect Chief to inflict similar bites in future, if allowed to use aggression against dogs, although his advanced age and body condition may affect his ability to do so.
5. Dr Rayment considered that Chief also experiences significant stress in novel environments. She recommended that the primary goals for management of Chief are to strictly limit his exposure to all interactions with unfamiliar dogs and to minimise exposure to unfamiliar environments. Management requirements may change with treatment by a Behavioural Veterinarian but given his previous biting of other dogs, strict management around unfamiliar dogs including muzzling will always be required.
6. In her report, Dr Rayment, in summary, made the following recommendations for the management of Chief:
   1. He must be kept in a yard with secure fencing through which he cannot access or touch an unfamiliar dog. Secure confinement by appropriate fencing to prevent contact with dogs will suffice to prevent injury to other dogs, there is no need for him to be confined to a Declared Dangerous Dog enclosure;
   2. Any time that Chief is in public or may encounter unfamiliar dogs, he should wear a muzzle and be restrained on a lead with a minimum of two points of contact. This is consistent with the requirements for management of a Declared Dangerous Dog;
   3. When in public, Chief must be handled by a competent adult capable of maintaining effective control of Chief at all times, including where uncontrolled and direct exposure to unfamiliar dogs;
   4. Chief's owner should minimise trips off Chief's home property, to limit his stress, until the stress is medically addressed;
   5. Declared Dangerous Dog controls to prevent injury to people are not required.
7. In relation to rehoming Chief, Dr Rayment stated that pet owners of typical skill tend to find these dogs challenging to manage and exercise in suburban areas, due to uncontrolled exposure to unfamiliar dogs when in public. Dogs of this presentation are far more common on larger rural properties, where their owners do not experience these challenges, as they do not need to exercise the dog in public areas.
8. Dr Rayment's report leads to the conclusion that Chief could potentially make some progress but there would be ongoing risk despite any successful treatment.

1. Dr Gabrielle Carter, a registered veterinarian and veterinary specialist in Animal Behaviour, gave evidence for the applicant and adopted her two reports, dated 13 December 2023 and 1 October 2024. Dr Carter conducted a behavioural assessment of Chief on 6 December 2023.
2. Dr Carter had the report from Dr Rayment discussed above. Dr Carter stated that Dr Rayment's assessment and report were accurate and comprehensive and reflective of the history and observations Dr Carter also made.
3. Dr Carter stated that during the initial assessment, Chief's body language was showing signs of anxiety being lip licking, yawning and inability to settle. During a street walk, Chief was tense, had a lowered body position, his ears were back, his tail was low and he displayed lip licking. In Dr Carter's opinion, these behaviours were consistent with fear and anxiety.
4. Chief encountered two dogs on the street walk and further dogs in an assessment on the parade ground. In Dr Carter's opinion, Chief's behaviour during these assessments suggested that he experiences some anxiety around other dogs but is able to attend to the handler and take direction. He will be responsive to teaching more appropriate behaviour and engage in a behaviour modification program to reduce stress around unfamiliar dogs. Behaviour modification work should achieve good outcomes including that Chief is able to be safely managed in public.
5. Dr Carter's conclusions were, in summary, as follows:
   1. Chief has a Generalised Anxiety Disorder, characterised by heightened monitoring and reactivity in a range of environmental and social contexts, along with signs of anxiety, such as panting, increased heart and respiratory rates, lip licking and yawning;
   2. It is likely Chief has some degree of separation anxiety;
   3. Dr Carter agreed with Dr Rayment's assessment of Chief having a fear related aggression towards unfamiliar dogs and that there may be some additional territorial motivation.
6. Dr Carter's treatment recommendations were, in summary, as follows:
   1. Chief be trialled on an anti-anxiety medication, as reducing his anxiety could reduce some of his problems and assist in training;
   2. Management strategies to ensure unfamiliar dogs remain safe, include ensuring Chief is securely contained when at home and, when away from home, wears an appropriately fitted muzzle, is on leash with two points of contact and under effective control of a competent handler at all times;
   3. A behaviour modification plan with several goals including generally reducing fear and anxiety and teaching appropriate, successful and alternative responses to aggression, when Chief experiences fear or anxiety or feels threatened.
7. Dr Carter's view was that the full assessment of the depth of Chief's anxiety may only be revealed as they work through the behaviour modification plan and changes to the plan. Therefore, a definite time frame for rehabilitation cannot be provided. Significant improvement is likely over a six month period with continued improvement over months and years.
8. In Dr Carter's second report, dated 1 October 2024, she stated that she had been asked for an updated assessment based on the two recent sessions Chief had with Mr Liam Deans-Pope and new videos. Dr Carter stated that the process for the preparation of the report was to review the recent videos supplied and the case notes for Chief. Dr Carter indicated that the assessment was based on reports from the behavioural consultant, Mr Deans-Pope, working with Chief and Chief's carers indicating progress with behaviour modification around the presence of unfamiliar dogs. The video footage supports this assessment.
9. Dr Carter stated that Chief's anxiety was reduced and this likely results from the combined effects of medication and behaviour modification work.
10. Dr Carter's recommendations in the report, dated 1 October 2024, in summary, were as follows:
    1. Continued management of Chief safely around other dogs. Whilst Chief has made progress, given his previous history it is recommended that Chief is on leash at all times and under effective adult control when outside his home;
    2. The risk has been reduced; however it is prudent for Chief to continue to wear a fitted muzzle when outside the home, in case the handler unexpectedly lost control of the leash;
    3. Continued use of anti-anxiety medication with six monthly reviews;
    4. Chief is to continue to be securely contained when at home;
    5. Continue with behaviour modification program.
11. In her oral evidence, Dr Carter stated that the risk Chief poses has significantly reduced in the past year, with rehabilitation, medication and behaviour modification training. Her opinion was that with management, Chief does not pose a significant risk.
12. In cross-examination, Dr Carter confirmed that she agreed that Dr Rayment's assessment of Chief was accurate and comprehensive. Dr Carter also agreed that Chief has increased anxiety in unfamiliar places and responds to a person he is familiar with and particularly to food control.
13. Dr Carter confirmed that away from his home environment and where a helper dog was in the area for Chief's assessment, Chief showed signs of anxiety which was managed by the handler with treats and direction.
14. Dr Carter initially stated that she had undertaken a second assessment of Chief for the purpose of the report dated 1 October 2024. She later conceded that she had not personally undertaken a further assessment and her information for this report was from Mr Deans-Pope and the videos she had been provided with. She had not herself observed Chief in an unfamiliar environment for the second report. She was relying on information from Mr Deans-Pope that Chief had been working in urban environments. Dr Carter agreed that the videos she had been provided with showed Chief in familiar environments and being provided with treats.
15. Dr Carter stated in cross-examination that if Chief were to escape from his secure environment she imagines that he would avoid other dogs, but she does not know where he would end up. She also stated that it is yet to be determined if Chief needs anti-anxiety medication in the long term, but he needs it at the moment. Dr Carter agreed that if he did not get his medication and he was not maintained and handled as he should be, he is a risk in future.
16. Dr Carter's second report does not appear to contain the full re-assessment of Chief's anxiety condition as discussed in Dr Carter's first report.

1. Mr Liam Deans-Pope gave evidence for the applicant. Mr Deans-Pope is a certified dog trainer and behavioural consultant. He is not an expert dog behaviourist and his role is to apply recommendations made by others for training particular dogs. He has worked in a range of environments with dogs, including for Councils and in shelters. Mr Deans-Pope adopted his two witness statements. He gave oral evidence that he had trained Chief three times at the RSPCA premises and five times in total. On one occasion, he had taken Chief near the adoption kennels at the RSPCA to see if he could be disengaged from other dogs. Chief showed arousal, including lip licking and body tension. He would not engage if the dogs were more than 30 metres away. During the course of the training, Chief improved to be able to get within 10 metres. When Chief left the site that day, he came close to a border collie dog and Chief reacted to this dog.
2. Mr Deans-Pope gave evidence that in the session with Chief at the RSPCA on 5 January 2024, Chief was muzzled and in a harness. A helper dog was about 30 metres away. Chief was restrained by the handler and when Chief looked away from the helper dog, he received a food reward. Mr Deans-Pope worked with Chief until he could get within 10 metres of the helper dog without Chief reacting to the dog. Mr Deans-Pope stated that when Chief presented with signs of stress, he explained these signs to Ms Brennan, the proposed future owner of Chief, including setting of the ears, muscle tension and setting his tail.
3. Mr Deans-Pope gave evidence that at the fourth meeting with Chief on 24 September 2024, he conducted a street walk from Ms Brennan's suburban home. During the walk, they saw a dog walking with its owner on the opposite side of the street. Chief made to move towards the other dog and made some slight vocalisations but was quickly directed back by his handler and was taking food rewards.
4. In cross-examination, Mr Deans-Pope gave evidence that when Chief reacted during the street walk on 24 September 2024, the other dog was on the opposite side of the street and 'up a bit'. He guessed that the dog was 20 to 30 metres away. Mr Deans-Pope stated that the handler took two steps back to break the connection between Chief and the other dog and gave Chief a food reward.
5. Mr Deans-Pope gave evidence that he had not seen anything to indicate whether or not Chief was difficult to contain and therefore needed declared dangerous dog containment.
6. Mr Luke Helbling gave evidence for the applicant. He is employed full time at FFAR. He has experience working with dogs for the last eight years in environments such as pounds and doggie day care. Mr Helbling gave evidence that Chief has made progress since he first arrived at FFAR. He follows instructions, works with his handler on the lead and reducing his anxiety. He said that the video shown to the Tribunal demonstrates his improvement.
7. In cross-examination, Mr Helbling agreed that the video shows him using lots of treats with Chief and that Chief is seeking to engage with the walker. He agreed that when he was working with Chief, he was giving him treats and they were not in an unfamiliar environment but Chief still sometimes exhibited anxiety type behaviour. Mr Helbling agreed that when he worked with Chief, Chief was not off the lead with other dogs and that Chief gets on with some dogs but not others. Mr Helbling agreed that if Chief was to move to a different environment, he may be anxious due to this new environment.
8. In cross-examination, Mr Helbling agreed that Chief had the indications of experiencing anxiety and that a change of environment is one of the things that drives his anxiety. He also agreed that when he was carrying out activities with Chief, Chief was interested in taking food rewards. He agreed that Chief's behaviour was consistent with the behaviour described in Dr Rayment's report.
9. Monash Council submitted that in assessing the likelihood of the circumstances being repeated, consideration must be given to the dog and the circumstances of the dog currently and moving forward. Monash Council submitted that in Dr Rayment's assessment, Chief required constant management to moderate his arousal. The dog's reactions included barking and lunging at the end of the leash. He required redirecting to look away from an unfamiliar dog and his recovery time after these actions decreased during the session.
10. Monash Council argued that despite attempts at rehabilitation since relocating to Ms Adams' facility, Chief was unable to perform known behaviours outside the facility without leash restrictions by the handler. This was where the dog was being managed by a trained and knowledgeable handler. Monash Council submitted that Chief shows signs that are consistent with social aggression, has been assessed as dog-selective, uses aggression to manage exposure to unfamiliar dogs and is not able to directly interact with all sociable dogs.
11. Monash Council submitted that the assessment of Chief requires expert evidence to establish whether changes have occurred and, if so, whether they are dependent on certain states being maintained. Monash Council argued that if Chief is released from current restraints, the community will be dependent upon him being maintained by a person who has an investment in Chief to ensure that the community is protected.
12. Monash Council argues that there is no reliable evidence to satisfy the Tribunal of the circumstances in which Chief will be kept and the community protected.
13. The applicant submitted that due to the change of ownership to Ms Adams, there is no prospect that the circumstances of the attack would be repeated. Chief is registered and generally restrained by leash or housed in a council-approved dangerous dog cage. He is allowed off leash in a secure 8-foot-fence area of the property for exercise.
14. In response, Monash Council submitted that the current circumstances of Chief are that he lives on a farm under a Deed between the Monash Council and Ms Adams, which includes the dangerous dog declaration conditions and is always managed with treats. Chief likes to please the person he is with. The current behaviour of Chief is not a reflection of Chief if he was to find himself in public or another situation he is unfamiliar with.
15. The applicant argued that if the dangerous dog declaration is set aside and Mr Brennan, the proposed new owner, adopts him, there would be minimal chance of the circumstances being repeated. The proposed new owner is a knowledgeable and responsible dog owner with experience in reactive dogs. Chief would be registered and reside at the proposed owner's property with secure gates and high fences. Chief would be walked with appropriate equipment and protocols.
16. As discussed in the next section, the Tribunal finds that the nature of Chief has been somewhat modified but not to a sufficient extent. The risk to other dogs under the present circumstances of Chief is low. These circumstances being Chief living on a farm as suggested by Dr Rayment, having secure housing in the nature of dangerous dog declaration conditions making it unlikely that he could escape and having his behaviour modified on an ongoing basis including by the use of treats. He does not have uncontrolled exposure to unfamiliar dogs.
17. The Tribunal finds that the likelihood of the circumstances being repeated and Chief attacking another dog are higher if Chief were to be living in a suburban location as proposed by the applicant. Chief would not be secured under dangerous dog declaration type conditions, the chance of escape would be higher, the chance of uncontrolled exposure to unfamiliar dogs and unfamiliar places, which could increase Chief's anxiety, is higher. Although Ms Brennan and her husband are experienced handlers of similar dogs, they do not have the level of expertise which the current owners provide at FFAR, nor the land or facilities available at FFAR or another rural property.
18. The Tribunal finds that Chief continues to show signs of social aggression, although this has been managed in his current home with experienced handlers and trainers. The likelihood of the circumstances being repeated will also depend on his future ownership, handling, housing and provision of medication. The proposed change in location of Chief would significantly increase the chance of uncontrolled exposure to other dogs. The commitments of Ms Brennan are personal to herself and would not necessarily be fulfilled if, for some reason, Ms Brennan no longer owned Chief. Dr Carter's evidence, as referred to above was that if Chief did not receive his medication and was not maintained and handled as he should be, he is a risk in future. In Dr Carter's second report, despite stating that Chief did not pose a significant risk, continued to recommend conditions for the protection of other dogs from Chief. Dr Carter had also not undertaken a further assessment of Chief's anxiety, as she had discussed in her first report.
19. The Tribunal considers that Chief poses a greater risk to dogs compared to other dogs, if Chief were to relocate to a suburban location and no dangerous dog declaration was in place for Chief.

1. Monash Council submitted that Chief is a known quantity as discussed under heading 'circumstances of the attacks'. Despite Chief now being older and characterised by the applicant as a 'senior dog', he is a muscular dog and not presenting with degeneration.
2. The applicant submitted that Chief was previously not very sociable around other dogs because he did not get the chance to socialise. However, Chief is now much more sociable around other dogs due to the rehabilitation. It was argued that Chief's behaviour around other dogs has changed substantially through a combination of medication, behaviour modification training at FFAR and targeted behaviour modification training with Mr Deans-Pope.
3. The applicant also submitted that Chief is no longer a young and vigorous dog, as he is four years older than at the time of the incidents.
4. The Tribunal accepts that the nature of Chief is as described by Dr Rayment. Chief has a social and territorial aggression selectively to other dogs. His behaviour is consistent with a fear aggressive response to unfamiliar dogs. As described by Dr Carter, Chief has a Generalised Anxiety Disorder, which is characterised by heightened monitoring and reactivity in a range of environmental and social contexts. It is also likely that Chief has some separation anxiety, where he finds safety and security in the company of his caregiver and becomes anxious when separated from them.
5. While the Tribunal accepts that there has been some behavioural modification in Chief, the evidence before the Tribunal was that Chief still needs rewards for behavioural modification. That is, Chief still requires treats to ensure he modifies his behaviour. Treats are for the purpose of training a dog in correct behaviours and should not be required if the behaviour has been successfully modified. Further, there was no evidence as to Chief no longer experiencing or being able to manage separation anxiety, which has previously been an issue with his behaviour.
6. Dr Carter's report, dated 1 October 2024, indicates that Chief has made progress. Dr Carter did not personally examine and assess Chief for that report. While Dr Carter believed the risk from Chief had been reduced, she recommended continued measures, including anti-anxiety medication, secure housing of Chief, wearing a muzzle and being under effective control of an adult and on a leash when outside the property and continuing the behaviour modification program.
7. This report does not indicate that the risk from Chief to dogs is similar to the risk from well-adjusted dogs. Dr Carter's evidence, as referred to above was that if Chief did not get his medication and was not maintained and handled well, he will present a risk.
8. While the risk from Chief may have reduced, the Tribunal is not satisfied that:
   1. the risk due to Chief's nature is as low as indicated by the applicant;
   2. the current level of reduction in risk is permanent, as Chief's nature has not changed sufficiently;
   3. the risk would not be significant if Chief was in an unfamiliar environment; and
   4. the risk could be managed while on a leash without the use of treats, which should only be needed for training purposes and not ongoing behaviour modification.

1. The applicant submitted that this factor appears to be directed at the owner of the dog at the time of the offending and her conduct is not relevant as she no longer owns the dog.
2. The Tribunal considers this to be a neutral factor.

The skill of the owner and those likely to be in charge of the dog in controlling the dog

1. Monash Council argued that the applicant looks at the issue from one perspective, being of the dog. However, the Tribunal is required to consider the relevant matters and determine whether there is a need to impose controls on Chief to ensure community safety. Monash Council submitted that many decisions turn on whether the decision maker is comfortable that the owner will do the right thing. It was argued that in this case, there was insufficient information to assess the proposed owners of the dog. There is also no reason why the declaration would affect the adoption of the dog by the proposed new owners.
2. Monash Council argued that the applicant's animal rescue organisation had rehomed dogs which attacked other dogs and the rehoming had resulted in further incidents of dogs being attacked.
3. The applicant argued that the evidence before the Tribunal supported the proposition that Ms Adams and FFAR have the necessary skills to control Chief. She submitted that the percentage of attacks on other dogs following re-homing by FFAR was very low. It was also submitted that Ms Brennan had developed significant skills with reactive dogs before she became involved in the behavioural modification training of Chief. Her additional training with Chief has enhanced her skills and ability to control Chief. It was submitted that Ms Brennan's partner also has the relevant skills and experience with dogs such as Chief.

The conduct of the owner since the incident in attempting to minimise future risk

1. The applicant submitted that Ms Adams and the staff at FFAR, including Mr Helbling, who has had considerable contact with Chief, have extensive experience with dogs like Chief. The potential new owner has significant experience with dogs like Chief.
2. The Applicant's written submission states at [65]:
   1. Both Ms Adams and Ms Brennan have taken numerous steps to minimise any future risk. These include:
      1. Funding provided by FFAR to pay for the services of Dr Carter and Mr Deans-Pope
      2. Providing additional medication (Trazadone) for Chief as suggested by Dr Carter
      3. Arranging and attending the initial session with Dr Carter and Mr Deans-Pope
      4. Ms Brennan having additional behavioural modification sessions with Mr Deans-Pope
      5. Enhancing Chief's general sociability with other dogs at Gladysdale and, through his involvement with Mr Helbling, Ms Jeganathan, volunteers and others ensuring that his behaviour improves further.
3. Chief is no longer owned by the owner at the time of the offending. The Tribunal finds that Ms Adams and Ms Brennan have taken substantial, and costly, steps to attempt to minimise the future risks from Chief.

The insight of the owner into the future risk posed by the dog

1. In cross-examination, it was put to Dr Carter that Ms Adams in her email to Dr Carter requesting the first report, had described Chief in the following terms:

Chief is just an anxious, sooky boy of almost 9 years of age who is desperate to love and be loved, who shows fear reactivity to unknown dogs (he ignores plenty of mine here now) and just needs to be in a home where he isn't allowed to roam the streets!

1. In response, Dr Carter agreed that this description was not a true reflection of Chief, the potential harm this dog could cause to the community and was not consistent with the report of Dr Rayment which Ms Adams was in possession at the time of the request to Dr Carter.
2. Monash Council submitted that the applicant stated that Chief was not properly housed, socialised, trained or restrained and allowed to wander when in the possession of the previous owner. Monash Council submits that the applicant does not address the actions of the dog in the attack, but blames the previous owner.
3. The applicant submitted that both Ms Adams and the proposed new owner are very aware of the risks posed by reactive dogs and they have done all that is possible to minimise such risks.
4. The Tribunal is satisfied that Ms Adams lacks some insight into the risk posed by Chief, as indicated by the above evidence.

The welfare of the dog's owner and of others affected by the dog's behaviour

1. The applicant submitted that both Ms Adams and the proposed new owner are concerned for the welfare of Chief. They would both like him to see out his life with a caring owner and family. They are both cognisant of the risks and have adopted means to minimise risks.
2. The Tribunal is satisfied that Ms Adams and Ms Brennan are seeking what they see as the best outcome for Chief. They would no doubt be disappointed if the dangerous dog declaration stayed in place.

1. In written submissions, the applicant proposed that in lieu of a dangerous dog declaration, the Tribunal make a menacing dog declaration under the Act. In closing submissions, the applicant accepted the submission of Monash Council, that the Tribunal did not have jurisdiction under the Act to make such a declaration. The Tribunal therefore can only either affirm the decision to make the dangerous dog declaration or set aside the decision, meaning there would be no additional restrictions imposed on Chief.
2. Due to the material discussed earlier in these reasons addressing the criteria referred to in Bennett as relevant to the present matter, the Tribunal considers Chief poses a greater risk to dogs compared to other dogs, were Chief not to be restrained by a dangerous dog declaration. Importantly, the Tribunal notes, in particular:
   1. Dr Rayment's opinion that given Chief's previous biting of other dogs, strict management around unfamiliar dogs, including muzzling of Chief will always be required;
   2. In Dr Carter's second report, despite stating that Chief did not pose a significant risk, still recommended conditions for the protection of other dogs from Chief;
   3. Dr Carter has not undertaken a further assessment of Chief's anxiety, as she discussed in her first report;
   4. Dr Carter's opinion was that if Chief did not receive his medication and was not maintained and handled well, he is a risk in future.
3. The Tribunal is not satisfied that the risk due to Chief's nature is as low as claimed by the applicant or that the current level of reduction in risk is permanent as his nature has not changed sufficiently. The Tribunal considers that the risk would be significant if Chief was in an unfamiliar environment, as there is no evidence that the risk could be managed while on a leash without the use of treats, which should only be needed for training purposes and not ongoing behaviour modification.
4. There is an unacceptable risk from Chief, if he is not subject to a dangerous dog declaration. Although the Tribunal has no reason to doubt that Ms Brennan would be a responsible and conscientious dog owner, there are risks beyond her control, which require a dangerous dog declaration to apply to Chief.
5. The Tribunal has therefore reached the conclusion that it should affirm the decision under review to impose a dangerous dog declaration on Chief.

[1] (General) [2010] VCAT 1436 at [7].

[2] (Review and Regulation) [2013] VCAT 607 at [62] to [64].