American Cyanamid Co v Ethicon Ltd

1. The parties agree that any steps taken to relocate or rehome the animals must have regard to relevant animal welfare considerations.
2. These orders have been made with the consent of the applicant and the formal opposition of the respondent and intervenor on the basis that they contend steps should have previously been undertaken by the applicant to remove the animals.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cantu & Galloway has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 22 November 2023, Austin J made a declaration that Ms Cantu and Mr Galloway were in a de facto relationship for a period in excess of two years, thereby establishing jurisdiction for me to make an order under s 114(2A) of the Family Law Act 1975 (Cth) ("the Act") in respect to the parties' property.
2. The de facto wife's application concerns several animals, located at E Street, Town B NSW. I accept that those animals are owned by the applicant, and that to remove the animals, would be to deprive her of that property.
3. In this instance, the animals are described as property in accordance with the definition provided in s 4 of the Act. When considering whether to grant the injunctive relief sought, relevant authorities require that I assess whether there is a serious question to be tried: American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 2 WLR 316 at 323. I also must consider the balance of convenience: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398 at 398.
4. In considering whether there is a serious question to be tried, I have referred to the declaration by Austin J on 22 November 2023 that pursuant to s 90RD of the Act, the parties were in a de facto relationship from August 2019 to September 2022. Noting that:

(a) the Court has jurisdiction to potentially make orders in respect to a property adjustment between the parties; and that

(b) the removal of the animals, other than by the applicant, would necessarily deprive her of that property -

I am of the view that there is a serious question to be tried in respect to the allocation of property to be addressed at final hearing.

1. Next, I must consider the balance of convenience. In doing so, I refer to the affidavit of Ms Neal, the solicitor on record for D Bank, dated 12 May 2025, which sets out the extensive history of this matter within the state jurisdiction. The applicant has been aware since at least mid-2024 that orders were being sought for vacant possession of the property, including the animals. I acknowledge the considerable merit in the submissions by the respondent and D Bank that steps should have previously been taken by the applicant to have removed those animals by today's date.
2. Nevertheless, in considering the balance of convenience, I accept that the applicant has, in my view, acted appropriately in the period since interim orders were made on Monday, 12 May 2025 and has made proactive steps to ensure that the animals are removed from the property. She indicates, however, that she requires additional time in the order of approximately a week including two weekends for that to take place.
3. Accordingly, I am satisfied that the applicant has acted in goodwill, and I am satisfied that she has the intention to act in a bona fide manner to remove the animals from the property.
4. In considering the balance of convenience, I acknowledge the detriment to D Bank who is further delayed in taking steps to remedy any defects in the property and make it fit for sale. That process will be deferred for a period of approximately 10 days. I further acknowledge that interest is accruing against the respondent at the rate of $110 per day, which is a detriment that adversely impacts upon him.
5. Nevertheless, in attempting to achieve a balance in the respective considerations, I am satisfied that granting a 10-day grace period for the applicant to remove the animals represents a reasonable compromise.
6. Therefore, in the exercise of my discretion, I have made the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.