Downey and Beale

[2017] FCCA 316

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOWNEY & BEALE [2017] FCCA 316

Catchwords:
FAMILY LAW – Final property adjustment – where the parties have reached an agreement regarding all financial issues between them, save one issue with respect to the ownership of an (dog breed omitted) named (name omitted).

Legislation:

Family Law Act 1975, ss.75(2), 78, 79
Federal Circuit Court Rules 2001, r.10.03

Companion Animals Act 1998 (NSW), ss.7, 9, 11

Evidence Act 1995, s.128
Aboriginal Protection and Restrictions of the Sale of Opium Act 1987 (QLD)

Cases cited:

Dred Scott v. Sandford, 60 U.S. 393 (1857)

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

Stanford v Stanford [2012] HCA 52

Other Articles Cited:

Lesley Petrie, “Animal Law: Animals as Property and the Implications for Veterinary Practice”, Flinders Law School, Proceedings of the AVA Annual Conference, Adelaide 2011.

Maja Visic, Jade Henderson, Brooke Gilbey, “Animals as Property under the Law”, 2013.

Applicant: MS DOWNEY

Respondent: MR BEALE

File Number: PAC 4165 of 2016

Judgment of: Judge Harman

Hearing date: 2 February 2017

Date of Last Submission: 2 February 2017

Delivered at: Parramatta

Delivered on: 2 February 2017

REPRESENTATION

Counsel for the Applicant: Mr Hogg

Solicitors for the Applicant: Maatouks Law Group

Solicitors for the Respondent: Mr Mitchell of Johnsons Solicitors and Attorneys

ORDERS

1. By consent Final Property adjustment Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.

2. Direct the solicitor for the Respondent to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.

3. Dismiss the Application in case filed 23 November 2016 and the Response thereto filed 31 January 2017.

4. Leave is granted to the wife to withdraw and discontinue without penalty as to costs, her Application for Contravention filed 31 January 2017.

5. Dismiss the Application of Mr Beale for an Order adjusting interest in property with respect to the chattel comprised of an (dog breed omitted) named “(name omitted)”.

6. Pursuant to section 78 of the Family Law Act 1975, the wife shall be and is hereby declared to be the owner of (name omitted) as and against the husband and consistent with Order 6 made above.

7. As far as necessary, the husband will do all things necessary to cause the former matrimonial dog, “(name omitted)”, registration to be transferred into the wife’s name alone.

8. All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

EXHIBIT ‘A’

1. That the interim Consent Orders of the 11^th October 2016 be vacated.

2. That the Husband will within 42 days of the date of these Orders, do all acts, and things necessary to refinance the ‘(omitted) Mortgage (No: (omitted)) into his name alone.

3. That simultaneously with Order 2 above:

   (a)The Wife will do all things and acts necessary to transfer to the Husband all her right title and interest in the former matrimonial home, better described as Property A (title reference (omitted)) here after referred to as ‘the property’;

   (b)The Husband will pay into the Wife’s Solicitor Trust Account the sum of $125,000.00.

4. That the Husband shall be entitled to sole occupancy of the property from the date of these Orders and will be solely responsible and indemnifying the Wife in relation to all mortgage payments and outgoings in relation to the property.

In Default

1. In circumstances where the Husband fails to comply with Orders 2 and 3b above:

   (a)The Husband shall provide vacant possession of the property with 7 days ensuring that the property is a fit and reasonable state of repair having regard to the condition of the property at separation.

   (b)The parties shall each take all necessary steps and execute all necessary documents to cause the property to be sold by auction forthwith and at the earliest date with the reserve to be set by the selling agent.

   (c)The parties appoint Byles Anjos Solicitors to act on the sale.

   (d)The parties appoint (omitted) Real Estate to act on the sale.

   (e)That the proceeds of sale be disbursed as follows:-

   1.   Payment of Agent’s commission and advertising expenses.

   2.   Payment of legal Costs.

   3.   Payment to the Wife of $30,000.00

   4.   The balance to be equally divided between the parties.

   (f)That in the event the Husband falls to sign any documents or vacate the property as ordered above with 7 days of a written request, the Wife has the right to sign all documents to give effect to these Orders and take possession of the property.

2. That each party will be entitled to retain all other items, chattels, superannuation, Jewellery, and items of personality in their names and possession.

IT IS NOTED that publication of this judgment under the pseudonym Downey & Beale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4165 of 2016

MS DOWNEY

Applicant

And

MR BEALE

Respondent

REASONS FOR JUDGMENT

1. These proceedings involve a claim for property adjustment between a husband and wife, Ms Downey, the wife and Applicant, and Mr Beale, the husband and Respondent. 

2. The parties have been in active dispute with each other with respect to their financial issues for only a little time.  The proceedings were commenced by an Initiating Application filed 5 September, 2016.  Accordingly, the matter has been before the Court for only four months. 

3. The matter commenced with an Application brought on short notice.  It was alleged at that time that Interim relief was necessary to secure and protect the position of both parties but principally the wife.

4. Today is the second occasion that the matter comes before the Court. On the first occasion the matter was before the Court, 11 October 2016, an unusual step was taken – not unusual perhaps by reference to rule 10.03 of the Federal Circuit Court Rules 2001 but by the fact that the diary permitted that step to be taken.  The proceedings were listed for Final Hearing to occur 3 August 2017.  For reasons that will become apparent, that date is no longer required. 

5. A number of Interim and Interlocutory Orders were made by consent 11 October 2016 principally relating to the wife being permitted to inspect the parties’ home at Property A and thereafter its sale.

6. The proceedings were listed for Hearing and a direction that the parties attend mediation with a private Family Dispute Resolution Practitioner agreed between the parties.  Since that time, there has been ongoing negotiation. 

7. Since the matter was last before the Court the husband has made enquiry as to his ability to refinance the mortgage encumbering the home and to pay a sum certain to the wife.  The husband has obtained preliminary finance approval.  On that basis, the husband has filed an Application in Case seeking suspension or discharge of the Orders made by consent on the last occasion and requiring that the home be sold. It is that Application which sees the matter return before the Court today.

8. No attention need be given to the Application in a Case nor its efficacy as the parties have spent the day, a significant period from approximately 10am until nearly 4pm, negotiating.  With the assistance of their Counsel and their attorneys, the parties have reached an agreement with respect to all financial issues between them, save one. 

9. Orders have been made by consent which deals with the majority of the estate of the parties, if one defines “majority” by reference to monetary value. The Orders made by consent will permit the husband to refinance the mortgage encumbering the home and make payment to the wife of a sum certain. The Orders made by consent conclude with an Order (at Order 6 of the Minute of Order) that “…each party will be entitled to retain all other items, chattels, superannuation, Jewellery, and personality (sic) [personalty] in their names and possession”.  That Order is made with the reservation by the husband regarding the one issue extant between the parties and which is to be determined by the Court.

10. Whilst the matter is listed today for mention and directions only, the parties have provided their consent via their Counsel to allow the Court to hear and determine on a final basis the one issue outstanding. That issue would, on one view of the case (the husband’s), represent an exception to Order 6 of the Consent Orders. On another view (the wife’s) the issue is whether an Order should be made requiring the husband to effect a transfer of registration to her of a specific chattel. That chattel is a sentient creature being an (dog breed omitted) named (name omitted).[1] 

    [1] Animals such as dogs are personal property: chattels.  As described by Lesley Petrie, Adjunct Lecturer in Animal Law Flinders Law School – South Australia in “Animal Law: Animals as Property and the Implications for Veterinary Practice”, “Animals are property. That is, animals are ‘things’ over which legal persons hold legal rights”.  Further, see the excellent summary of law in the area by three QUT students Maja Visic, Jade Henderson and Brooke Gilbey in their paper “Animals as Property under the Law”, 2013 including (footnotes omitted) “Under the law in Australia and many other jurisdictions animals are afforded a status similar to that of inanimate objects, whereby they are the subject of absolute property” and “As a result of this proprietary status, animals are not afforded legal rights and are simply regarded as objects”.

11. It is to be observed, at least in the English-speaking world, that as recently as Lincoln’s Emancipation Proclamation, there were four classes of sentient creature who were capable of being the property of others.[2] Firstly, people (especially people of colour) bonded into slavery.[3] Secondly, women[4], who in many circumstances were not permitted to own property of their own and were seen in many contexts and in many jurisdictions as the property of their husband upon marriage (and prior to that the property of their fathers).  Even when no longer considered property it was still some few years before women obtained the vote.  Thirdly, children[5] and, fourthly, animals including companion animals such as (name omitted).  The latter category, sadly, remain classified as property of their owners rather than having some more temporal existence with consequent rights.[6]

    [2] And the use, exploitation, dispossession and, ultimately, the dehumanising of First Nations peoples and Indigenous inhabitants of invaded and colonised lands has built the present wealth of many nations, institutions and individuals.

    [3] That is not to suggest that slavery and similarly inhuman, racist and discriminatory practices ceased completely in the United States or other jurisdictions in 1863.  In the antebellum United States, direct and bonded slavery was quickly replaced with Jim Crow Laws and segregation following Dred Scott v. Sandford, 60 U.S. 393 (1857) and continuing until Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), and beyond, which were and the effects of which remain no less debilitating to communities of difference as evidenced by the Black Lives Matter movement. First Nations tribes were dispossessed upon white colonisation and the subject of genocidal practices as evidenced by the Trail of Tears and the Bended Knee Massacre amongst way too many examples continuing even after the great Civil War conflagration ended (and the Sioux continue to have their treaty rights disrespected at Little Rock). In Australia “Blackbirding”, Missions, Protectorate Offices, payment in rations or withholding of wages continued for Aboriginal and Torres Strait Islanders and other Islander and Asian folk, including, child migrants until the 1960s and similarly in Canada, New Zealand and every part of the world reached by the English Colonial invaders. In South Africa, Apartheid was introduced (borrowing heavily from the Queensland Aboriginal Protection and Restrictions of the Sale of Opium Act 1897) and continuing until 1994. Just as the preamble to the United States Declaration of Independence opening “we hold these truths to be self-evident: that all men are created equal” was rendered vile and deceptive by the reality that many of its authors and signatories owned slaves, so the espoused humanitarian beliefs of the English speaking world betrayed the racism of legislation and policy of the majority.

    [4] And that is not to ignore the struggles for equality still faced by women in the world and especially the ongoing address of reproductive health and freedom reflected by, for example, the recent Women’s Marches in the US.

    [5] The conception of the “innocence of childhood” is a relatively recent concept.  The exploitation of children as labourers (bonded or otherwise) continued until well into the 20^th century, including the horrific experiences of the Stolen Generations and child migrants.

    [6] Again, this is not to suggest that struggles to achieve full, complete and effective equality does not continue for many.  As Phil Ochs sang, “There’s many kinds of slavery and we’ve found many more” (“What are you fighting for?).

12. That is the dispute between these parties. The husband seeks an Order, perhaps an exception to Order 6 of the Orders already made by consent, that the wife transfer to him ownership of (name omitted). The wife seeks that Order 6 would include and incorporate (name omitted)’s ownership and that she, having his possession, would be declared that creature’s owner and thus the wife seeks that the husband transfer to her registration of the animal, pursuant to the provisions of the Companion Animals Act 1998 (NSW).

13. Nothing that is contained within these reasons is intended to depart from legal principle, nor intended to be in any way flippant.  I am conscious of that, opined by Roger Caras, “dogs are not our whole life, but they make our lives whole”.  I am completely empathetic with the importance this issue holds for the parties and conscious that the parties and each of them may consider this sentient creature, this living being, as fundamentally important to them. 

14. The law describes the manner in which this case is to be determined.  (name omitted) is a chattel and his ownership is to be determined by the Court as an issue of ownership of property. 

15. Each party, by their respective Initiating Application or Response, sought certain Orders and a declaration that each party retain all property in their respective possession.  Those documents were filed on 5 September 2016 and 10 October 2016 respectively.

16. On one view, (name omitted) being in the wife’s possession at the point in time when the Initiating Application and Response were filed, the nett effect of the relief that each party sought was to declare (name omitted) as the property of the wife.  That is especially so as at the point that each party filed their respective Application, (name omitted)’s ownership was not registered. 

17. The parties have not given detailed evidence in these proceedings.  There is some brief evidence contained in the Affidavit of the wife, sworn or affirmed 2 September 2016 and filed 5 September 2016, and similarly brief Affidavit evidence by the husband in his Affidavit sworn or affirmed 10 October 2016 and filed 10 October 2016. I am not critical of the brevity of the evidence.  Those Affidavits were filed by the parties in compliance with their obligation under the Federal Circuit Court Rules 2001 to provide sufficient information to the Court to understand their dispute. The documents were also intended to allow agitation of Interim issues. They were not intended to set out the totality of evidence that the parties would give if the matter proceeded to a Final Hearing.  However, it is the evidence that is available. 

18. With the consent of the parties, that evidence has been supplemented – if it might be so described – by submissions put by Counsel.  Those submissions have included a relation of the instructions of each of the parties.  Neither takes exception that material is related from the bar table rather than by the parties on oath.  Neither party seeks to cross-examine the other.  Thus, the case can be dealt with by reference to the evidence as it presently stands and application of legal principles thereto. 

19. As the High Court of Australia has made clear in Stanford v Stanford [2012] HCA 52, the first step in any determination of the property interests of parties and adjustment thereto is to determine the nett assets and liabilities of the parties. In that regard there is no dispute. Neither party seeks to apportion a value to (name omitted) and appropriately so. They do not argue that his worth is monetary. His worth is their love and affection for the creature as they express it.

20. The Court is also required, as the High Court of Australia again made clear in Stanford v Stanford, to determine for the purpose of any controversy with respect to property adjustment whether an Order should be made and whether it is just and equitable for it to be so.  I accept – and the parties do not seek to dissuade me – that the Court has jurisdiction to make either of the Orders that are sought, whether, as sought by the wife, an Order in aid of a property adjustment Order or declaration or whether, as the husband seeks, a separate Order as to delivery up of the property that is (name omitted). 

21. The issue of justice and equity or even appropriateness might be viewed in a broader context in this case.  Whilst there is no dispute that the Court has jurisdiction and that there is no circumstance that would preclude the exercise of that jurisdiction, it must be determined whether any change should occur to ownership as it presently exists as regards (name omitted). 

22. It is difficult to determine who, in fact, purchased (name omitted) let alone who is (name omitted)’s “owner.”  There is no controversy that the $300 fee paid for (name omitted)’s purchase was paid by the husband.  However, payment of a fee does not, of itself, determine ownership or determine the Order, if any, which might be made by this Court in adjustment of interests in property. 

23. Whilst the parties are very much agreed that payment was made by the husband the parties are very much at odds as to the circumstances in which that payment was made. 

24. The wife’s evidence with respect to (name omitted)’s acquisition and that which would be relevant to the circumstances of his upbringing – if it might be so described – is set out in paragraphs 7 to 11 and 50 to 56 of her Affidavit. The wife describes that the parties met in January 2011, were engaged in January 2012 and that in February 2013 they purchased a property at Property A.  They did not immediately move into that property.  In fact, they did not move into the property at all before their separation from each other.  The property would appear to have been either tenanted or used for some other purpose.

25. The parties were married on (omitted) 2014.  The parties agreed that they did not cohabit or at least not on a fulltime basis prior to marriage.  From the date of marriage until the date of their separation, either 12 or 18 March 2016, the wife asserting the earlier, the husband the later date (but nothing turns upon that) the parties lived together at the home of the wife’s parents. This would appear to have been as the property at Property A was being renovated. It would seem from the balance of evidence in the case, indeed from the controversies between these parties on the first return date that the property is still in a state of partial completion or renovation. 

26. The relevance of the above chronology, at least in the wife’s case, is that she asserts that (name omitted), the dog, was purchased after the parties had met and whilst they were dating each other rather than cohabiting and that, as a consequence of the parties not cohabiting until marriage, that from the date of purchase of young (name omitted) he remained living with her and her parents at her parents’ home and was thus in her possession. 

1. At paragraphs 50 to 56 of the Affidavit, dealing specifically with (name omitted), the wife describes that she had desired in September 2011 to adopt a puppy.  She describes that she looked for a dog online for some time and ultimately discovered (name omitted).  Something about him appealed to her and she arranged to go and see him.  She describes that it was her intention to buy the dog and with the intention that he would be hers and stay with her at her (her parents’) home.  The wife asserts that her then fiancé and subsequent husband came with her to see the dog and offered to pay for (name omitted) to gift him as an early birthday present for the wife.  The wife was born on (omitted) and (name omitted) was purchased some few months before the wife’s birthday. 

2. The dog was paid for – there is no dispute – by the husband and taken home. There is controversy as to who took him home.  The wife asserts that (name omitted) went home with her and that she paid for all vaccinations, operations, food and accessories for (name omitted) as he was living with her and her parents since adoption, i.e., continuously since September 2011. 

3. The wife describes that the first time that she was aware of any contrary allegation by the husband was receipt by her, through her attorneys, of correspondence from the husband’s attorneys dated 6 May 2016.  That correspondence is annexed to the wife’s Affidavit material, and the relevant portion thereof at page 10 of the Affidavit reads:

   We are instructed that your client is refusing to make available for collection our client’s dog, a (dog breed omitted) named (name omitted), which is currently residing at your client’s parents’ property [as was and is the wife].  Our client purchased this pet five years ago, and it went with him to your client’s house when he moved in with your client.

4. The wife then asserts:

   …(name omitted) has never been Mr Beale’s dog and has always lived with me and my parents. 

5. Thus, the wife would suggest the dog had never lived with the husband and has always lived with her. 

6. The husband for his part, in answering those portions of the wife’s Affidavit, offers the following at paragraph 20, (that relating specifically to the purchase and care of (name omitted)):

   I disagree that (name omitted) is Ms Downey’s pet.  (name omitted) has always been my pet dog. Ms Downey did come with me the day I purchased (name omitted), however, I did not purchase him as a gift for Ms Downey.  He did live with us at Ms Downey’s parents’ house because that is where we lived together.

7. In relation to the wife’s allegations at paragraphs 7 to 11 as to the chronology of the relationship between the parties, the husband is silent, save to assert that the parties separated on 18 March 2016. Thus, I accept the wife’s evidence in paragraphs 7 to 10 of her Affidavit as unchallenged. That, of course, does not place the dog in the wife’s possession. It simply describes where the wife lived and, following marriage, where the parties lived together. 

8. The wife tenders in her case a bundle of bank statements and other documents relating to the payment of expenses regarding (name omitted).  They include payment of vet’s bills, purchase of items for the dog at (omitted) and similar expenditures clearly relating to a pet. Documents produced in relation to the dog’s attendance upon vets are issued in the name of Ms Downey.  In total, there are five such documents.  Each of the documents refers to Ms Downey as “owner”. One can assume that the dog described in those documents is, in fact, (name omitted).  No issue is taken that it is not. 

9. If one is to commence with identifying the present legal and equitable ownership of the property of these parties, one must first determine who is the owner of (name omitted) before determining whether any Order for adjustment of ownership should be made. 

10. It is to be remembered that the husband asserts that he is and has always been (name omitted)’s owner.  The wife similarly asserts she is and has always been (name omitted)’s owner. Some guidance as to “ownership” is given by the Companion Animals Act 1998 (NSW). That Act imposes certain obligations upon owners of companion animals, including a dog such as (name omitted), including, at section 9 of the Act, to register the dog’s ownership within six months of acquisition. There is no dispute that this did not occur, irrespective of who acquired (name omitted) or had his possession, although it is not fatal to any claim asserted by either party.

11. Further and to the extent that there might be some suggestion of wrongdoing – certainly it is described as a criminal offence to fail to register a companion animal – a section 128 certificate (Evidence Act 1995) will be issued to each of the parties regarding the totality of their evidence and is done so of the Court’s own motion. One would hope that there would be no call upon that certificate in defence of any action. 

12. Section 11 of the Act similarly describes that certain changes must be notified with respect to ownership or occurrence of certain events. Those obligations would not appear to assist as there had not been registration prior to 4 November, 2016, that being some little time after these parties separated. On any version of events the parties had already been separated for nearly eight months before (name omitted) was registered for the first time.

13. Ordinarily one might take registration of ownership as demonstrating some tacit corroboration of an assertion of ownership.  However, in circumstances whereby the registration has occurred:

    a)8 months after separation; and

    b)When there is clear notice of a claim of ownership by the wife, she having asserting same in an Affidavit sworn or affirmed on 9 September, 2016 and served sometime prior to 10 October, 2016;

    I do not propose to draw such inference. 

14. Registration after separation and notice of the wife’s claim and undertaken for the first time some years after (name omitted)’s acquisition might well be seen as self-serving.

15. Neither party sought, in their substantive Application and Response, any Order that would affect ownership or transfer of ownership of (name omitted).  All that was sought was a general declaration of ownership of any property in the possession of each party.  The nett effect of such relief, if granted on the Application of either party, would have been a declaration that the dog remained the property of the wife, who had his possession at all relevant times. 

16. Section 7 of the Companion Animals Act 1998 (NSW) provides a definition of “owner”, being the person by whom an animal is ordinarily kept or the registered owner.  Certainly, 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 marriage of the parties that (name omitted) lived with the parties jointly and that following separation (name omitted) lived with the wife.

17. Ultimately, on the evidence that is available and applying the rules of evidence thereto, I accept that the wife is and was the owner of the dog.  That is not to suggest that the husband is disbelieved.  However, the direct evidence I have available from the wife, on oath, is that referred to in her above Affidavit, including the chronology of the relationship of the parties. That does not determine with whom the dog lived.  However, in combination with paragraphs 50 to 56, I am satisfied that the wife’s evidence should be preferred. 

18. The reference in correspondence annexed to the wife’s material is the only direct reference to the dog’s ownership by the husband and it is a mere assertion. 

19. The issue remains whether an Order should be made adjusting interests in the property that is (name omitted). It is difficult to appropriately apply the balance of the legislative provisions that is an assessment of contribution and section 75(2) factors. It beggars belief to contemplate how section 75(2) of the Family Law Act 1975 would be of assistance in this determination, unless one were to place some value upon love and affection.  One would hope, in this neoliberal world that we have not yet come to the point where even love and affection are commoditised. 

20. Having regard to section 79 of the Act and the issue of contribution, it is readily apparent that there is very little that would be of assistance. There is no dispute that the husband contributed the funds to purchase (name omitted) prior to the marriage of the parties. That much is clear. Contributions can be determined with certainly as to the acquisition of the asset. But there are also clearly determinable contributions to the maintenance and improvement of the asset. On the wife’s case – and it is inferentially if not directly corroborated by the material that is tendered in her case – the wife has contributed to (name omitted)’s care directly and financially as well as directly and non-financially. The various vet bills with respect to the dog dated 18 October and 26 November 2011 together with March 2012 and January 2013 are addressed to the wife at her address at her parents’ home. That is not conclusive proof that this is where the dog lived, but clearly it demonstrates that the wife was responsible for the maintenance and upkeep of the dog to the extent of attending to such vet appointments and payment thereto. In those circumstances, clearly the wife has made a contribution to this creature, even if she did not initially pay to acquire him.

21. There is also the issue of the wife’s evidence that, irrespective of who paid for the creature, it was purchased for her as a gift.  I need not venture into the territory of jurisprudence regarding gifts and equitable relief.  I am already satisfied the wife was the owner of the creature, has had possession of the creature and has contributed to the creature in such a fashion that one could not assert that it is appropriate for any Order to be made varying ownership. 

22. As I have indicated, section 75(2) of the Act could not assist in this determination. If (name omitted) was a service animal, a Seeing Eye dog for example, these factors might come into play. There is no argument that they do. Each party argues their case on the basis of ownership and as I have determined that the wife is the owner at law (or was at the time that each party filed their Application or Response) that is the end of the matter.

23. There is no basis for any adjustment.  Indeed, if satisfied that an Order should be made, the best that one could do – no doubt entirely unsatisfactorily to both parties – would be to find contributions equal and to affect the division of the asset. Neither party seeks it.  They each seek to retain the entirety of the chattel and appropriately so.  The wife owns (name omitted) at law and shall retain him.

24. In those circumstances and for those reasons I am satisfied that there should be no Order made with respect to an adjustment of interests in the chattel comprising the (dog breed omitted) (name omitted).  On that basis, (name omitted) would remain in the possession and ownership of the wife. 

25. I am satisfied that I need do nothing further than to take the two steps:

    a)Dismissing the Application for an Order with respect to (name omitted).  (name omitted)’s ownership would then be addressed by paragraph 6 of the Minute of Consent Orders in accordance with which Orders have already been made; and

    b)Make Order 7 of the Orders that are proposed in the Minute of Order, an Order which has not been made by consent. However, I am satisfied that Order 7 is purely a machinery Order to give effect to the declaration which precedes it and which further assists the parties to identify and fully comply with their obligations under the Companion Animals Act 1998 (NSW).

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 23 February 2017