Chapter 7 - Trusts, Wills and Family Law

This Chapter predominantly deals with two scenarios: first, circumstances where a person makes a will and wishes to leave assets on trust for the benefit of an animal or animals; and second, where a couple is separating or divorcing and they are in dispute over custody and visitation with respect to their animals.

The difficulties stemming from these situations arise due to the characterisation of animals as property. As such, animals lack legal ‘personhood’ and are not able to be the direct recipient of a gift. If a testator does not take this point into account when drafting a will, the trust in favour of the animal(s) may be declared invalid. By the same token, animals may be given or bequeathed in a will in the same manner as other property.

In a similar vein, the property status of animals means that in custody disputes, animals will be distributed as assets of the marriage without consideration of the animals’ interests. However, as the decision in Jarvis and Weston highlights, the interests of animals may indirectly be taken into account where these interests coincide with the best interests of the humans involved in the matter, such as children of the marriage.

Overall, the cases demonstrate how the law has failed to keep pace with society’s evolving relationship with companion animals.

7.1 Attorney General (NSW) v Donnelly (1958) 98 CLR

Prepared by Hollie Harber

Court

High Court of Australia

Facts

This case involved two appeals heard together. They both related to clauses in the deceased testator’s will.

The first concerned a trust which applied to a property named “Elmslea”. The testator granted the property to such Order of Nuns of the Catholic Church or Christian Brothers as the executors and trustees selected. The second concerned a trust over the residue of the testator’s estate, which was to be used to raise money for a Convent as selected by the trustees.

At first instance, Myers J held that the first trust was not void for uncertainty and that the second trust was so void. The testator’s widow and children appealed the decision made in respect of the first trust and the Attorney General appealed the decision made in relation to the second trust.

Section 37D of the Conveyancing Act 1919 (NSW) (‘the Act’) provides:

“(1) No trust shall be held to be invalid by reason that some non-charitable and invalid purpose as well as some charitable purpose is or could be deemed to be included in any of the purposes to or for which an application of the trust funds or any part thereof is by such trust directed or allowed. (2) Any such trust shall be construed and given effect to in the same manner in all respects as if no application of the trust funds or of any part thereof to or for any such non-charitable and invalid purpose had been or could be deemed to have been so directed or allowed.”

Issues

• Whether the trust created in the testator’s will via clause 3, in respect to the property known as “Elmslea,” was void for uncertainty
• Whether the trust created in the will via clause 5, as to the rest and residue of the estate both real and personal, was void for uncertainty

Decision and Reasons for the Decision

The first trust: that over “Elmslea”

In respect of the first trust, Dixon CJ and McTiernan J held that there was no territorial limitation upon the class of persons who could benefit from the trust. The intention of the trust was to empower to trustees to select, at their discretion, a group to gift the property with. It was not intended that the trust would only operate with respect to the presently existing members of the group. As the trust was capable of being supported in part by a charitable purpose, it was valid under s 37D of the Act.

In respect of the first trust, Williams and Webb JJ found that whether or not it possessed a charitable purpose was immaterial because the gift was not one in perpetuity; it was given to those individuals comprising the community selected by the trustees at the date of the testator’s death.

Kitto J held that the first trust described “large, but none the less quite definite, bodies of persons and gives the whole beneficial interest in ‘Elmslea’ absolutely to such of those bodies as the trustees select.” The trust was upheld.

The appeal brought by the testator’s wife and children was therefore dismissed.

The second trust: that over the residual property

In relation to the second trust, Dixon CJ and McTiernan J held that the trust had a charitable purpose because “most convents would be the object of legal charity”. It therefore attracted the operation of s 37D of the Act. As the uncertainties which were said to render the trust void would “not suffice to invalidate what otherwise would be a charitable trust”, the trust was found to be valid.

Williams and Webb JJ identified that in accordance with s 37D of the Act “If the purpose is non-charitable but nevertheless valid the section has no operation. But once it is found that a trust directs or allows… the use of trust funds or any part thereof for a purpose that is charitable and also for a purpose that is non-charitable and invalid the section operates.” Their Honours held that the second trust was clearly charitable because the trustees were “authorised to provide amenities for orders of nuns which are charitable and one way of completely satisfying the testator’s intention would be to expend the whole of the trust funds in providing amenities for those communities alone”. As such, the appeal of the Attorney General succeeded.

Kitto J also found that s 37D of the Act operated to save the second trust.

The appeal brought by the Attorney General was therefore upheld.

Appeal

The decision was appealed to the Privy Council: Leahy v Attorney General of NSW [1959] AC 459. The Privy Council confirmed the decision of the High Court of Australia.

Significance of the Case

This case demonstrates the way in which a trust will not be void for uncertainty where at least one of its purposes is charitable. This may be significant for animal protection organisations wishing to establish charitable trusts.

7.2 Re Weaver; Trumble v Animal Welfare League of Victoria [1963] VicRp 40; [1963] VR 257

Prepared by Cathy Hoang

Court

Supreme Court of Victoria

Facts

Weaver, the testator, created a will dated 30 June 1957. Trumble was named as executor and trustee. The testator instructed Trumble to distribute real and personal property to certain relatives, friends and various institutions. The testator bequeathed £3000 on trust to the State School of Tewantin Queenslands Library, with the net yearly income to be spent purchasing books and materials. These aspects of the will were not contested.

The testator further bequeathed £5000 on trust to the Animal Welfare League, which was to receive interest from the amount on a yearly basis. He also left £2000 on trust to pay and apply the net income to the Walter Theo Weaver Bursary Trust at the State School Tewantin Queensland. The residue of the estate was left on trust to the Bursary Fund. The gifts of £2000 and the balance of the estate were contested as it was claimed that they breached the rule against perpetuities. The gift to the Animal Welfare League was contested on the basis that it was a perpetual gift of income for purposes which were not charitable.

Issues

• Whether the £2000 and balance of the residue gifted to the Walter Theo Weaver Bursary were valid
• Whether the bequest of £5000 to the Animal Welfare League was valid

Decision and Reasons for the Decision

Gifts to the Walter Theo Weaver Bursary

It was argued that these gifts offended the rule against perpetuities, which would render them invalid unless they were for a charitable purpose. The Court held that even though the money could be applied to purposes other than education by the successful recipient, it would nonetheless “stimulate students at the school to a greater interest in their studies and result in a higher standard of education throughout the school”. It was therefore held to be a gift for the advancement of education and was accordingly valid on the basis of its charitable character.

Bequest to the Animal Welfare League

It was claimed that the gift to the Animal Welfare League was not for charitable purposes and therefore breached the rule against perpetuities.

The Animal Welfare League first argued that, upon its proper construction, the gift was a capital sum of £5000. The Court rejected this, holding that “the scope and extent of the gift which the testator intended to confer was a perpetual gift of the income of the sum he named.”

Second, the Animal Welfare League argued that its objects were charitable as the organisation existed for a purpose beneficial to the community, and that the gift could therefore survive perpetuity. The Court accepted the principle enunciated in Re Grove-Grady; Plowden v Lawrence [1929] 1 Ch 557 and Re Wedgewood [1915] 1 Ch 113.The former case established that the relevant questions to be answered were: “(1) Is the trust for a purpose beneficial to the community? (2) If it satisfies that first test is it charitable?” In respect of the first question, where a trust was created in favour of animals, it would be critical that the charitable trust be of benefit to the public or a significant section of the public. The Court held that the trust incorporated a requisite public benefit: “Nor do I think that the humane feelings of mankind will not be stirred by steps taken to promote and improve the welfare of animals unless they are sick animals in need of medical attention or some other form of succour.” Upon consideration of the League’s objects, the Court came to the conclusion that it was charitable.

Finally, the Animal Welfare League submitted that if its objects were both charitable and non-charitable, the gift would be saved by s 131 Property Law Act 1958 (Vic). The Court had already found that the objects of the League were charitable, and therefore did not need to consider this argument.

Accordingly, the Court found that the provisions in the will created a valid charitable trust in favour of the Animal Welfare League.

Significance of the Case

This case demonstrates the way in which a trust created for the protection of animals must satisfy the requirements of being for a charitable purpose and of public benefit. Significantly, the Court identified as important, the fact that the Animal Welfare League “may devote its energies and resources to the welfare of animals of all kinds is clearly on the authorities not in itself sufficient to deprive the league of its charitable character”. However, the Court also noted that the organisation devotes its energy to the welfare of all animals and this “might lead the Court to the conclusion that the benefit of a gift to the public might be outweighed by some proved detriment”.

7.3 Arrington v Arrington 613 SW 2D 656 (1981)

Prepared by Lucinda Vale

Court

Court of Civil Appeals of Texas, Fort Worth

Facts

Albert Arrington and Ruby Arrington were married on 2 February 1963. Prior to the marriage, Mrs Arrington owned property that included an automobile, mutual fund stocks, household furniture, appliances and fixtures, a house, some Southwest National Bank stock and personal effects. The dog, Bonnie Lou, was given to Mrs Arrington ten years prior to the litigation. Mr Arrington owned about twelve used cars, one-half of a golf course, a driving range lease, two chest-of-drawers, and twelve units. He also owed taxes and debts.

The divorce suit trial commenced 17 April 1979 and concluded 20 April 1979. The trial Court ordered a division of the property between Mr and Mrs Arrington. Mr Arrington adduced a number of arguments, including with respect to Bonnie Lou. In particular, although Mr Arrington had initially agreed that Mrs Arrington should have custody of Bonnie Lou as long as he had reasonable visitation rights, he later changed his mind. Mr Arrington argued that should have been appointed managing conservator (that is, given custody) of Bonnie Lou rather than visitation rights. Mr Arrington also took issue with other aspects of the property division.

Issues

• Whether Mr Arrington or Mrs Arrington should have custody of Bonnie Lou
• Whether the balance of the property should have been distributed as it was

Decision and Reasons for the Decision

Bonnie Lou

The Court identified the way in which the office of “managing conservator” was created to apply to human children rather than dogs. It observed that "[a] dog, for all its admirable and unique qualities, is not a human being... A dog is personal property, ownership of which is recognized under the law”. As Bonnie Lou was given to Mrs Arrington over ten years prior to the case, she was entitled to keep the animal. The Court thus found against Mr Arrington’s claim that he should have custody of Bonnie Lou, hopeful that both parties would “continue to enjoy the companionship of Bonnie Lou for years to come within the guidelines set by the trial court”.

Even though animals are legally treated as personal property, the Court spoke in terms that illustrate how society appreciates and loves dogs as domestic pets, or even as family members.

The other items of property

The Court affirmed the decision of the trial judge with respect to the other aspects of the property division.

Significance of the Case

This case reinforces the proposition that animals are treated as property under law. The companionship of Bonnie Lou was easily resolved under property concepts. Significantly, the Court identified that both parties had a relationship with Bonnie Lou and expressed concern for the continuity of those relationships, “We are sure there is enough love in that little canine heart to ‘go around’. Love is not a commodity that can be bought and sold or decreed. It should be shared and not argued about.’”

7.4 In re The Marriage of Jay E. Stewart and Joan Kaye Wilson Iowa 356 N.W.2d 611 (Iowa Ct. App. 1984)

Prepared by Jae-Hee Park

Court

Court of Appeals of Iowa

Facts

Following divorce proceedings, Wilson appealed to the Iowa Court of Appeal contending that the division of property handed down by the trial Court was inequitable and that she should have been awarded alimony. In addition, she sought to reverse the trial Court’s decision that awarded to Stewart, her ex-husband, custody of their dog, Georgetta, whom he had gifted to her as a Christmas present.

Issues

• Whether Wilson or Stewart should have custody of Georgetta

Decision and Reasons for Decision

The Court of Appeal affirmed the decision of the trial Court, refusing to award alimony and gave custody of the dog to Stewart.

The trial judge had considered a number of matters when determining which party should have custody over Georgetta. This included the fact that the dog accompanied Stewart to his workplace, spent a substantial portion of the day with Stewart and remained with Stewart when the couple separated.

Sackett J who delivered the opinion of the Appeal Court confirmed that a dog is personal property and “while courts should not put a family pet in a position of being abused or uncared for, we do not have to determine the best interests of a pet”.

Significance of the Case

The case reinforces the status of animals as property as the decision places dogs in a similar category to other household chattels in the equitable distribution of assets during divorce proceedings. While dogs are perceived as members of the family, this is not acknowledged by many American jurisdictions, including Iowa, Pennsylvania (Desanctis v. Pritchard 803 A.2d 230 (Pa. Super. Ct.2002), and Florida (Bennett v. Bennett 655 SO.2d 109 (Fla.App. 1 Dist.,1995).

In New Jersey, a different approach is developing, with the Superior Court of New Jersey in the Appellate Division recognising that pets should be classified as a special category of property with “subjective value” to their owners (Houseman v Dare 966 A.2d 24 (N.J. Super. Ct. App. Div. 2009). Similarly, the Supreme Court of the New York County took into consideration the “best interests” of the pet in determining which party had custody of a 10-year-old cat (Raymond v Lachmann 695 N.Y.S.2d (N.Y.App.Div. 1999).

7.5 Murdoch v A-G (Tas) (No 2) ( 1992) 1 Tas R 117

Prepared by Alexandra Jackson

Court

Supreme Court of Tasmania

Facts

Gibson, the testator, left part of his estate “to DAVID BROWN Veterinary Surgeon…for the benefit of animals generally.” Gibson did not know Brown personally, but he knew that he was associated with the Tasmanian Animal Protection Society and that he provided veterinary services to the society for free. By the time Gibson died and his will was considered, Brown had been dead for many years.

It was argued for the Public Trustee that the provision in the will did not create a valid charitable trust because a gift “for the benefit of animals generally” is not a gift for charitable purposes and that the gift therefore failed.

Issues

• Whether the gift was a gift to David Brown absolutely
• Whether a gift for “the benefit of animals generally” constitutes a valid charitable bequest

Decision and Reasons for the Decision

The gift failed.

An absolute gift

It was held that the gift was not a gift to Brown absolutely.

A gift for the benefit of animals a valid charitable trust

It was also held that a gift for “the benefit of animals generally” was not a charitable gift, because it would not always benefit the community.

It was established in Leahy v The Attorney-General (NSW) [1959] UKPCHCA 3; (1959) 101 CLR 611 that a trust cannot be created for a purpose or object, as opposed to a trust created for a person or corporation, unless the purpose or object is charitable. A trust should be able to be performed by the Attorney-General, otherwise it must be performed by the person who will be the beneficiary of the trust. Since Brown was not the proper beneficiary of the gift in this case, the trust needed to be a gift for charitable purposes, otherwise there would be no one to perform it and it would fail.

Zeeman J analysed previous cases and found that valid gifts for the benefit of animals can also be said to benefit humans. He looked at Re Wedgwood [1915] 1 Ch 113 wherein Swinfen-Eady LJ stated that:

a gift for the benefit and protection of animals tends to promote and encourage kindness towards them, to discourage cruelty, and to ameliorate the condition of the brute creation, and thus to stimulate humane and generous sentiments in man towards the lower animals, and by these means promote feelings of humanity and morality generally, repress brutality, and thus elevate the human race.

Zeeman J noted that this statement clearly did not say that a gift for the purposes of animals is, without more, charitable; in fact it highlighted that preventing cruelty to animals benefits humanity by encouraging kindness towards humans. The Court differentiated between ‘protection’ and ‘benefit’ – a trust for the protection of animals is a valid charitable trust for the reasons adopted in Re Wedgwood [1915] 1 Ch 113. A trust for the “benefit” of animals is not a valid charitable trust because charitable gifts need to be for a “general public purpose beneficial to the community.”

The benefit to humans can be indirect. In Attorney-General for South Australia v Bray [1964] HCA 3; (1964) 111 CLR 402, the High Court found that a gift for “homeless, stray and unwanted animals” would not be for charitable purposes unless on its proper construction it referred to domestic animals, in which case it would benefit the community.

Tasmania had no law to save trusts for mixed charitable and non-charitable purposes. It was held that certain things that benefit animals would benefit humans, but that others would not. Therefore, the gift was not a valid charitable gift. In a jurisdiction that did provide for trusts for mixed charitable and non-charitable purposes, the position would perhaps have been otherwise as some activities benefitting animals are charitable because they also benefit humans e.g. rescuing stray domestic animals. The case of Attorney General (NSW) v Donnelly [1958] HCA 1; (1958) 98 CLR 538 provides an example of legislation which saves trusts which exist for both charitable and non-charitable purposes.

Significance of the Case

This case demonstrates that a gift made to assist animals for their own sake is not regarded as charitable for the purposes of a charitable trust. To be deemed charitable, the object of the trust either benefits humans, or serve to prevent cruelty to animals, rather than be for the benefit of animals generally.

7.6 Bennett v Bennett 655 So.2d 109 (1995)

Prepared by Mansum Margaret Wong

Court

District Court of Appeal of Florida, First District

Facts

In the final judgment of dissolution of marriage, possession of the divorced couple’s dog, Roddy, was granted to Mr Bennett, and Mrs Bennett received visitation rights. She would be able to access the dog every other weekend and every other Christmas. Mr Bennett appealed against the decision, claiming that the trial court erred in conferring a right of visitation upon Mrs Bennett.

Issues

• Whether Mrs Bennett should have been awarded visitation rights with tespect to Roddy

Decision and Reasons for the Decision

The Court of Appeal held that the trial judge had erred in granting Mrs Bennett visitation rights.

The Court found that the trial judge was incorrect to order visitation rights in relation to Roddy. The Court noted that under the law of Florida, animals are viewed as personal property, notwithstanding the fact that a dog may be considered a family member. It identified that “[t]here is no authority which provides for a trial court to grant custody or visitation pertaining to personal property”.

The Court considered it “unwise” to grant companion animals a special status in the context of dissolution cases. It noted that there would be difficulties and complications with respect to the enforcement and supervision of animal visitation rights.

Significance of the Case

This case illustrates the way in which the law deems animals to be personal property, regardless of the wide conceptualisation of them as members of the family. It also differentiated between children and animals in the context of family law proceedings, indicating that arrangements which could be made for the protection of children were not available to animals.

7.7 Perpetual Trustees Tasmania Ltd v State of Tasmania [2000] TASSC 68

Prepared by Cathy Hoang

Court

Supreme Court of Tasmania

Facts

Thompson, the testatrix, gifted her “dutiable estate” or “residual estate” to Matterson, her trustee, for “his use absolutely” (clause 8). However, she also proclaimed that this property was to be used for the purposes, and in support of, “animal welfare”; the trustee was given absolute discretion to determine how the property was used in this respect (clause 9). The Perpetual Trustees Tasmania Ltd instituted proceedings in the Supreme Court of Tasmania to investigate the objective intentions and desire of the will drafted by the testatrix.

Issues

• Whether Matterson received an absolute gift of the entire residuary estate or only that property upon which duty is payable by reason of Thompson’s death
• If the gift was limited to the property upon which duty was payable by reason of Thompson’s death, whether the clause committing the property to animal welfare constituted a valid charitable trust

Decision and Reasons for the Decision

The extent of the gift to Matterson

The Court emphasised that the gift to Matterson in clause 8 was to be interpreted in light of the other powers extended to him in the will. It identified the way in which the will contemplated that Matterson may decline to act as trustee and noted that it was “inconceivable that the testatrix intended to vest all or portion of her estate to a stranger”. Any construction of clause 8 as an absolute gift would have also rendered other provisions of the will redundant. For these reasons, the Court found that “[t]he term ‘absolutely’ relates to the discretionary purpose stated in clause 9. Clause 8 is a direction which coupled with clause 9 sets out the terms of the bequest”. There was no bequest to the trustee created by clause 8.

Whether a valid charitable trust was created

The Court distinguished the decision in Murdoch v The Attorney-General (1992) 1 Tas R 117 where a gift to a named veterinary surgeon “for the benefit of animals generally” was held not to be a charitable trust because the trust was construed to be for the benefit of animals, rather than the public. In the current case, Slicer J found that a bequest for “animal welfare” was a trust that could be deemed as charitable and also found that the word “welfare” is a term that connotes public interest. According to Slicer J:

a gift for the benefit of animals generally cannot be said to be for the benefit of the community. But the protection of homeless or unwanted animals, the suppression of cruelty to animals and the provision of veterinary treatment for stray animals have been held to be ones of charitable purpose… The rationale that in order to be charitable the terms of a trust must be of benefit to humankind can be accepted when the prevention of cruelty to animals, the prevention of the destruction of species, imbalance within the environment within the environment with the attendant harm to animals, are matters which enhance the life of humans.

Slicer J found that the predominant purpose of the trust was charitable, and as such, even if “welfare” could be said to connote charitable and non-charitable purposes, it would nonetheless be valid (Variation of Trusts Act 1994 (Tas) s 4). It was held that Thompson’s intention was unambiguous: “[t]he evidence shows that her predominant purpose was for the protection and care of animals who were neglected, abandoned or otherwise at risk.” As such, the will was found to create a valid charitable trust.

Significance of the Case

The case emphasises that the prevention of cruelty to animals and the protection of homeless or unwanted animals may be acceptable charitable purposes as they “enhance the life of humans”. The reasoning in the decision also highlights the anthropocentricity of the legal system; beneficial legal constructs such as charitable trusts are only available where human interests are furthered by their application.

7.8 Jarvis and Weston [2007] FamCA 1339

Prepared by Mary Ann Gourlay

Court

Family Court of Australia

Facts

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.

Issues

• The content of the custody arrangement in respect to the child
• Whether the child’s dog should reside with his mother or father

Decision and Reasons for the Decision

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.”

Significance of the Case

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.

7.9 Houseman v Dare 405 NJ Sup 538 (2009)

Prepared by Cathy Hoang

Court

Superior Court of New Jersey

Facts

Houseman, the appellant, and Dare, the respondent, had been engaged to be married for thirteen years and had jointly purchased a pedigree dog for $1500. They registered the dog with the American Kennel Club, declaring that they both owned the dog.

The couple had a strained relationship, which resulted in the termination of their engagement. Dare wished to retain the residence, and he purchased Houseman’s interest in the property. When Houseman left the residence, she took the dog with her. Houseman claimed that she and Dare had reached a verbal agreement that Houseman would receive possession of the dog and one half of the value of the house. Although Houseman would not have sought more than a half share of the house if she were not to receive the dog, she emphasised that her primary concern in the course of the negotiations with Dare was possession of the dog.

Houseman allowed Dare to take the dog for visits. Houseman claimed that when she asked Dare to reduce the agreement to writing, he told her she could trust him and that he would not keep the dog away from her. In late February 2007, Houseman left the pet in the care of Dare whilst she was on vacation. Upon her return, she requested that the dog be returned to her, which Dare refused to do. Houseman commenced legal action against Dare, claiming specific performance of the oral arrangement and her right of ownership of the pet.

Dare sold the residence and received more than double the amount that was given to Houseman.

The trial Court held that Dare had taken unfair advantage of Houseman by giving her less than half of the interest in their residence. It was satisfied that there was an agreement pertaining to the dog, and as such, the trial Court ordered Dare to pay Houseman $1500, the monetary value of the dog.

Houseman appealed the pre-trial determination that pets are personal property lacking the unique essential value to be the subject of an award of specific performance. She challenged this as a matter of law.

Issues

• Whether an agreement providing for ownership of a dog may be the subject of an award of specific performance

Decision and Reasons for the Decision

The appeal was allowed and the case remanded to the trial Court to re-consider the order for specific performance and to re-examine the oral agreement made between the parties.

The Court identified that the award of specific performance is available where “money damages cannot compensate the injured party for the special subjective benefits he or she derives from possession.” The Court also stated that “consideration of special subjective value is equally appropriate when a court is called upon to exercise its equitable jurisdiction to resolve a dispute between joint owners of property that cannot be partitioned or sold without hardship.”

The Court indicated that it and courts in other jurisdictions had recognised that pets have this special “subjective value”. There would be no reason for a court of equity to be more reluctant to resolve competing claims for possession of a companion animal based on the “sincere affection” of one party than to resolve competing claims to an inanimate object on the basis of a relationship with the donor.

It was held that the trial court erred by declining to consider the operation of the oral agreement. The Court identified that in the context of property division, agreements about property that is jointly held are material. It was held that the special subjective value of the dog could be gleaned from Houseman’s testimony about the animal’s importance to her, and her efforts to enforce her right of possession. The fact that Houseman had indicated what the dog’s financial value could not be “viewed as a concession that the stipulated value was adequate to compensate her for loss of the special value given her efforts to pursue her claim for specific performance at trial.” Dare did not establish that an order for specific performance would be harsh or oppressive to him, and any order which enabled him to retain possession of the dog simply because he had possession of him or her at trial would “reward him for his breach”.

The Court remanded the matter to the trial court to examine the oral agreement and the propriety of an award of specific performance.

The trial court’s conclusions regarding the amount due to Houseman for her interest in the residence and jointly held savings account were affirmed.

Significance of the Case

This case exemplifies the way in which the remedy of specific performance may be available to enforce property division agreements applying to companion animals. While reiterating the property status of an animal, the case emphasises that animals have a unique subjective value of the kind that allows them to be the subject of an award of specific performance. It is also significant to note that consideration is usually only given to the relevant party’s interest in the animal, not on the welfare or best interests of the animal. The Court stated, “We are less confident that there are judicially discoverable and manageable standards for resolving questions of possession from the perspective of a pet, at least apart from cases involving abuse or neglect contrary to public policies expressed in laws designed to protect animals.”

7.10 Walmsley and Walmsley [2009] FamCA 1209

Prepared by Richard Hanson

Court

Family Court of Australia

Facts

This case concerned both parenting and property settlement issues which were precluding the Walmsleys from reaching a final agreement. With respect to the property, the Walmsleys disputed their respective contributions. There was also a dispute as to the possession of the Walmsleys’ companion animals. Mr Walmsley claimed that he had given the animals away and that he could not recover them. The Walmsleys were also contesting the arrangements for custody over the children.

Issues

• Whether the companion animals could be recovered
• The nature of the parenting and property settlement

Decision and Reasons for the Decision

Recovery of the companion animals

Strickland J ordered a conference between the parties and specifically ordered that Mr Walmsley provide details of the persons to whom the pets were given. Her Honour identified how the animals’ return could facilitate the conclusion of an agreement, noting that:

if the pets can be returned…that would then lead…to a settlement of the property settlement issue because the husband has indicated that he would be prepared to consider and look at accepting the proposal of the wife which she would be prepared to make in the event that she gets the pets back.

The parenting and property agreements

The Court held that the matters pertaining to property settlement and parenting arrangements would need to be resolved by reference to evidence.

Significance of the Case

In this case, the Court prioritised the recovery of the companion animals as their absence was preventing the conclusion of an agreement between the parties, rather than because of Mrs Walmsley’s patent and irreplaceable bond with the animals. In this way, the Court’s reasoning was influenced by the property status of animals, which encourages consideration of animals’ instrumental, rather than intrinsic, value.