Christensen & Wicks
[2022] FedCFamC2F 673
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Christensen & Wicks [2022] FedCFamC2F 673
File number(s): BRC 18406 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 30 May 2022 Catchwords: FAMILY LAW – Property adjustment orders – enforcement – person alleged to have contravened order not bound by order – liability as principal contravenor pursuant to s 112AB(1)(b)(i) of the Family Law Act 1975 (Cth) – liability as accessory pursuant to s 112AB(1)(b)(ii) of the Family Law Act 1975 (Cth) Legislation: Evidence Act 1995 (Cth) s 140
Fair Work Act 2009 (Cth) 550(2)
Family Law Act 1975 (Cth) ss 112AB(1)(a), 112AB(1)(b)(i), 112AB(1)(B)(ii), 112AD, 112AD(2)
Cases cited: Fairwork Ombudsman v Nobrace Centre Pty Ltd (2018) 329 FLR 385
Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell (2000) FLC 93-053
Giorgianni v The Queen (1985) 156 CLR 473
Johnson v Miller (1937) 59 CLR 467
Johnson v Youden [1950] 1 KB 544
National Coal Board v. Gamble (1959) 1 QB 11
Division: Division 2 Family Law Number of paragraphs: 64 Date of last submission/s: 12 October 2021 Date of hearing: 17 August 2021 Place: Brisbane Counsel for the Applicant: Mr Honchin Solicitor for the Applicant: KF Solicitors Counsel for the Respondent: Mr Tolton Solicitor for the Respondent: Jeff Horsey Solicitor ORDERS
BRC 18406 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CHRISTENSEN
Applicant
AND: MS WICKS
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
30 MAY 2022
THE COURT ORDERS THAT:
1.The amended application filed on 10 August, 2021 is dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym Christensen & Wicks has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT
By an application for contravention against Mr B, her former de facto partner, Ms Christensen alleges that Mr B contravened certain property adjustment orders made in the Federal Circuit Court of Australia on 10 November, 2017 between her and Mr B.
By this amended application for contravention filed on 5 August, 2021 against Ms Wicks, Ms Christensen alleges that Ms Wicks also contravened the property adjustment orders “and/or” aided and abetted Mr B’s alleged contraventions of certain aspects of them. Ms Wicks is Mr B’s niece and following the making of the orders to which I have just referred, Ms Wicks acted as something of a “go-between” between Ms Christensen and Mr B.
The contravention application against Mr B has not been heard. He cannot be found and it is believed that he has left Australia. Nonetheless, Ms Christensen has prosecuted this amended application against Ms Wicks.
Despite extensive argument about the form of the contravention application at an earlier directions hearing which led to the operative parts of the application being struck out and the applicant being given leave to re-plead the contraventions, in her written submissions delivered on 12 October, 2021 Ms Christensen sought further leave to amend the contravention application in the following way:
3. The Applicant seeks leave for the following amendments to the Contravention Application Counts:
(a)Count 1, 2 and 4 should reference the Applicant Ms Christensen being the person bound by Order 3) not Mr B, but that the Respondent intentionally prevented compliance of the Order by the Applicant or alternatively the Respondent aided and abetted Mr B in preventing compliance with the relevant order by the Applicant;
(b)Count 2 the reference in the Statement of the Alleged Contravention to Order 3 should say Order 4 as set out in the reference to the paragraph of the Order alleged to have been contravened.
She argues that the proposed amendments should be allowed because it was clear that her case was as set out in the proposed amendments rather than as was set out in the body of the amended contravention application as filed. She says that the evidence that she led in support of her application and each of the counts in it was consistent with the case she wishes to prosecute as set out in the proposed amendments.
I accept Ms Christensen’s argument that there is no injustice to Ms Wicks by permitting the proposed amendments. I do not consider that the foreshadowed amendments surprise the respondent because the proposed amendments cure what are obvious anomalies in the way in which the contravention counts have been pleaded.
THE ORDERS
The orders central to this application are consent orders for property adjustment made between Ms Christensen and Ms Wicks on 10 November, 2017. At the time the orders were made, both parties were legally represented. It is appropriate to set out the terms of the orders in their entirety:
THE COURT ORDERS:
1.That within 14 days of the date of this Order, the Applicant vacate the properties situated at Lot … RP …, or at C Street, Town D in the State of Queensland. The Respondent be solely entitled to the said property to the exclusion of the Applicant.
2.That within 30 days of the date of this Order, the Respondent pay to the Applicant the sum of $15,000.
3.That within 5 months of the date of this Order, the Applicant cause to be removed from Lot … RP …, or at C Street, Town D in the State of Queensland the dwelling constructed by the Applicant’s father, including water tanks attached to the dwelling and anything fitted to the dwelling.
4.That within 5 months of the date of this Order, the Applicant cause to be removed from Lot 240 RP 231102 or at C Street, Town D in the State of Queensland the two shipping containers stored on the property.
5.In complying with Order 1 herein, the Applicant leave the property situated at Lot … RP …, or at C Street, Town D in the State of Queensland the items of property listed in Schedule 1 herein.
6.That the parties retain all other property in their possession including bank accounts, superannuation, motor vehicles.
7.That each party indemnify the other in respect of any loans, liabilities or encumbrances in their sole name.
8.That each party bear their own costs in respect to these proceedings.
9.That for compliance with Order 3 herein, the Applicant gives 7 days’ notice to the solicitors for the Respondent.
By her (further) amended application for contravention, Ms Christensen now alleges that Ms Wicks:
(a)contravened order 3 in that on or about 17 December, 2017:
without reasonable excuse, following the giving of Notice to the Solicitor of the Respondent Mr B on 10/12/2017, the Respondent Ms Wicks with knowledge of the Order, intentionally prevented compliance with the Order by a person bound by it (being the Applicant Ms Christensen) and/or aided or abetted, a contravention of Order 3 by a person bound by the Order being Mr B and in doing so the Applicant has been deprived of the property to which she was entitled under the Order being:
“the dwelling constructed by the Applicant’s father, including water tanks attached to the dwelling and anything fitted to the dwelling”
(b)contravened order 4 in that on or about 17 December, 2017:
without reasonable excuse, following the giving of Notice to the Solicitor of the Respondent Mr B on 10/12/2017, the Respondent Ms Wicks with knowledge of the Order, intentionally prevented compliance with the Order by a person bound by it (being the Applicant Ms Christensen) and/or aided or abetted, a contravention of Order 4 by a person bound by the Order being Mr B, and in doing so the Applicant has been deprived of the property to which she was entitled under the Order being:
“two shipping containers stored on the property” and their contents excluding those items included in Schedule 1 of the Order.
(c)contravened order number 2 in that on or about 10 December, 2017:
without reasonable excuse, the Respondent Ms Wicks with knowledge of the Order, aided or abetted a contravention of Order 2 by a person bound by the Order being Mr B by assisting the Respondent Mr B to establish bank accounts and/or to transfer monies in order to:
(a) avoid the payment of monies as required under Order 2 to the Applicant: or
(b) to defeat attempts by the Applicant to recover said monies from the Applicant:
and in doing so the Applicant has been deprived of the property to which she was entitled under the Order being:
“$15,000.00” and interest thereon
(d)contravened order 6 in that on or about 17 December, 2017:
without reasonable excuse, following the giving of Notice to the Solicitor of the Respondent Mr B on 10/12/2017, the Respondent Ms Wicks with knowledge of the Order, intentionally prevented compliance with the Order by a person bound by it (being the Applicant Ms Christensen) or aided or abetted a contravention of Order 6 by a person bound by the Order being Mr B, and in doing so the Applicant has been deprived of the property to which she was entitled under the Order being:
“motor vehicles in the possession of the Applicant” at the date of the Order or their value
Although no point was taken by Ms Wicks, it seems to me that at least counts 1, 2 and 4 in the (further) amended contravention application may be bad for duplicity: Johnson v Miller (1937) 59 CLR 467. Each of those counts seems to allege that Ms Wicks either committed a contravention as the principal contravenor “and/or” as an aider or abettor (although count 4 only uses the word “or”). Different considerations apply to determining whether the respondent contravened the orders or aided and abetted a contravention.
However, because the issue was not raised and I heard no argument upon it, I will not deal with it further.
THE LAW
Part XIIIA of the Family Law Act 1975 (Cth) is a self-contained code. Section 112AD of the Act provides for sanctions for failure to comply with orders which are not parenting orders. Unsurprisingly, the onus of proving a contravention rests upon the person alleging the contravention – in this case Ms Christensen. The standard of proof is that set out in s 140 of the Evidence Act 1995 (Cth).
Section 112AD of the Act provides that if a court is satisfied that a person has, without reasonable excuse, contravened an order under the Act the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under s 112AD(2) of the Act.
The phrase contravened an order under the Act is defined in s 112AB of the Act. It deals with two types of contravenors. The first are persons who are bound by the order. Such a person can contravene an order under the Act if they intentionally failed to comply with the order or make no reasonable attempt to comply with. The second category of persons who might be said to have contravened an order under the Act is anybody else who is not bound by the order but has:
(a)intentionally prevented compliance with the order by a person who is bound by it; or
(b)aided or abetted a contravention of the order by a person who is bound by it.
It is uncontroversial that Ms Wicks was not a person who is bound by the order said to have been contravened. Ms Christensen’s case is that Ms Wicks either intentionally prevented compliance with the order (or parts of it) by Ms Christensen or alternatively, she aided or abetted a contravention of the order by Mr B.
In Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell (2000) FLC 93-053 the Full Court of the Family Court of Australia said of s.112AB(1)(a) and (1)(b):
68. …. A person intentionally prevents another person from complying with an order by intentionally doing an act which prevents compliance with the order by the person bound by it….
69. The requisite elements for s 112AB(1)(b)(ii) appear to be that there has to be an aiding and abetting of the contravention of an order by a person bound by the order. What is aided and abetted is a contravention of the order by a person bound by it. There is nothing in the section which makes it necessary to demonstrate that those who aid and abet the contravention of the order must be shown to have done so in a manner which was contumelious or contumacious or in any way defiant of the authority of the court.
The phrase “aided or abetted” appears throughout the law in a number of contexts. For example, it appears in the criminal law and in industrial and employment law (s 550(2) of the Fair Work Act 2009 (Cth))
In the criminal context, before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence: Johnson v Youden [1950] 1 KB 544 at 546. In this respect, wilful blindness or a deliberate shutting of one’s eyes to what is going on is equivalent to knowledge: Giorgianni v The Queen (1985) 156 CLR 473 at 481, (quoting Youden):
[The aider or abettor] need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence.
Additionally, it is necessary that “the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result. In other words, both knowledge of the circumstances and intention to aid, abet, counsel or procure are necessary to render a person liable as a secondary party: cf. National Coal Board v. Gamble (1959) 1 QB 11, at p 20”, Giogianni at 482. Gibbs CJ summed up the position as follows at 487-488:
My view of the law may be summed up very shortly. No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.
The same approach has been taken in the industrial law context, the principles being eloquently summarised in Fairwork Ombudsman v Nobrace Centre Pty Ltd (2018) 329 FLR 385 at [280] and following.
Applying the same approach, to aid or abet a contravention of an order made under the Family Law Act requires a party to know all the essential facts which made what was done a contravention of the relevant order. The evidence must prove to the relevant standard that the contravenor intentionally aided or abetted the acts of the principal contravenor – someone who must have been bound by the order. However, whilst an aider and abettor must know the essential matters which constitute the relevant breach, he or she need not actually know that a contravention of a relevant order has been committed because they may not know that the facts constitute a contravention of the order in question.
THE EVIDENCE
Ms Wicks denied each of the contraventions when put to her (through her counsel).
Ms Christensen gave evidence by affidavit sworn by her on 5 August, 2021 and filed on 10 August, 2021. Ms Wicks gave evidence by sworn affidavit filed on 17 August, 2021. Both witnesses were cross-examined.
Ms Christensen’s evidence establishes that she was in a de facto relationship with Mr B. They lived together at C Street, Town D, Queensland. Their de facto relationship endured between August, 2002 and January, 2017. As I have already said, consent property adjustment orders were made between them on 10 November, 2017.
Ms Christensen alleges that, despite demand, Mr B defaulted on his obligations under the order. She says that he did not pay her the $15,000 required by order 2. There is no reason to doubt her evidence about that. Ms Wicks did not seek to prove that Mr B had not breached order 2 as alleged by Ms Christensen. I find that Mr B has not paid Ms Christensen $15,000 in accordance with order 2 of the orders made on 10 November, 2017.
Orders 3 and 4 of the consent orders required Ms Christensen to cause certain items to be removed from the C Street, Town D property within 5 months of the making of the orders. Thus, they had to be removed by 10 April, 2018. The orders say nothing about how they were to be removed, or how Ms Christensen should “cause” them to be removed. The items were substantial in nature and size – a dwelling and two shipping containers.
The consent orders for property adjustment between Ms Christensen and Mr B were made following a mediation between them. Ms Wicks attended the mediation as a “support person” for Mr B. Her evidence was that she had attended the mediation, had participated in the mediation in the sense that she supported her uncle, was privy to what was discussed and knew of the agreements reached by the parties. She said that she participated in the mediation and listened in. Her evidence in cross-examination establishes that she knew that the parties had agreed that Ms Christensen could remove the dwelling, shipping containers and her other property from the C Street, Town D property as part of the property settlement.
Although Ms Wicks swore that she had not seen any orders made in consequence of the parties’ mediated agreement until she was served with this contravention application (in its original form), cross-examination revealed that she had in fact seen the orders before then, although she disavowed ever having read them. She expected that the orders contained the agreements that the parties had reached at the mediation. The point attracted some attention from the parties because Ms Wicks asserted that Ms Christensen and Mr B agreed that Ms Christensen or her family could not enter upon the C Street, Town D property– hence the requirement for Ms Christensen to “cause” the relevant property to be removed.
After referring to some text messages from Ms Wicks to Ms Christensen, Ms Wicks gave this evidence in cross-examination:
So without any knowledge of what was in the actual orders you were happy to pass on those sorts of messages, were you? You’re nodding your head, yes. So what do you mean? --- Yes, I did. But I was present in that mediation. So my – I assumed that the information and the discussion was in the order. So I didn’t actually read the order once it was filed through the courts. But I went on the assumption of what conversations I was privy to. So I absolutely – when I sent those messages – believed that the information I thought was in the orders – I was – I was acting – I was saying the right things. I didn’t realise that I wasn’t – I didn’t have the accurate information.
Right. Well, see, earlier you told me that you were doing all this off the word of your uncle? Yes.
Well, you’re now saying that you’re doing it off your own bat? No, I’m saying that my uncle asked me to contact Ms Christensen. I’m saying that my uncle instructed me to have – to take over for him and I did say in that text message that as per the orders. But I didn’t know the exact contents of the orders.
So you’ve taken on yourself ? Yes.
the responsibility of dealing with this and imposing controls on Ms Christensen’s access to the property. You knew the dwelling was hers – the – her – the dwelling that her father built? Correct.
You knew the shipping containers were hers. Yes. So you’ve got to speak because the ? Sorry.
It is clear from Ms Wicks’s evidence that she did know that orders had been made between Mr B and Ms Christensen. She knew that Ms Christensen remained the owner of some property on the C Street, Town D property and that provision had been made for the retrieval of that property by Ms Christensen. She appears to have been mistaken about the ability of Ms Christensen to enter the C Street, Town D property to retrieve her property or assist in its retrieval. The orders are however, ambiguous about that. The use of the word “cause” could well indicate that Ms Christensen was not to retrieve the property herself but to have someone else do it for her.
In addition to the dwelling and water tanks dealt with by order 3 and the shipping containers dealt with by order 4, it is Ms Christensen’s case that there were also some vehicles, perhaps vintage vehicles, in various states of disrepair or decomposition which she says were in her possession at the date the orders were made and so were her property for the purposes of order 6. She seems to allege that Ms Wicks contravened the orders or aided and abetted a contravention because she did not permit Ms Christensen to remove those vehicles after Ms Christensen had vacated the property.
There is an annexure to Ms Christensen’s affidavit which is a hand written list of various items, including what appears to be some vehicles, although I cannot tell how many vehicles are referred to in the note. Apart from that note, there is no sworn evidence from Ms Christensen as to the nature or extent of the vehicles which she says are the subject of contravention count 4.
Order 6 is curious in that it seems to deal with possession of personalty, rather than title or ownership. The underlying assumption might be that the possessor of particular property will become the owner of it at law to the exclusion of the other. If that is the intention, it might be a property adjustment order by which the title to chattels which might have been jointly owned by Ms Christensen and Mr B is transferred to the party who has possession of them on the day the orders were made, although it is not expressed in that way. Alternatively, it might be a declaratory order declaring title to property solely owned by one or other of the parties, although it is not expressed in that way either. On one view the order might simply maintain the status quo as to ownership of various personalty such that jointly owned chattels remain jointly owned but it is intended to regulate the possession of them, however, that seems unlikely.
Whatever is the case, the chattels that are the subject of order 6 are not subject to an entitlement to remove them in the same way as those dealt with in orders 3 and 4. Whilst Ms Christensen may have remained the owner of the vehicles, the orders seem to contemplate that she would remove all of her personal property (save for that dealt with in orders 3 and 4) from the property when she vacated it pursuant to order 1. To the extent that she left property behind when she vacated the C Street, Town D property that is not covered by orders 3 and 4, she remains the legal and equitable owner of that property, subject to any argument that she may have abandoned that property by leaving it behind. I will return to the vehicles later in these reasons.
Ms Christensen’s evidence is that the five month time frame agreed upon by the parties and reflected in the orders was necessary so that she could have builders and other trades obtain measurements and perform work on the dwelling the subject of order 3 so as to prepare it to be removed and transported off the C Street, Town D property. No doubt that was something that both parties saw as entirely reasonable.
The orders do not limit Ms Christensen’s access to the C Street, Town D property to only one occasion. It could reasonably be expected that removal of the relevant items would take more than a day to accomplish. I am satisfied that the order 3 and probably order 4 envisaged reasonable access to the property so as to remove the relevant items, not simply “one-off access”.
Order 9 provided for the giving of seven days’ notice to Mr B’s solicitors, although the order does not say what was required of the content of the notice. Presumably the reference in order 9: “for compliance with Order 3 herein”, meant that the notice was to deal with the removal of the item set out in that order. On the face of the orders, no notice was required for the removal of the items set out in order 4, although one might reasonably think that the notice requirement was intended to apply to both orders but because of an accidental slip or omission the text of the order did not provide for that. I find that the notice requirement provided in order 9 applied to both orders 3 and 4.
On 4 December, 2017 Ms Christensen commenced her attempts to make arrangements with Mr B to remove the items pursuant to orders 3 and 4 from the property. She sent him a text message in perfectly reasonable terms as follows (he is referred to as “Mr B”) (faithfully reproduced, errors in the original):
Good morning Mr B
Could you please tell me when it would be convenient for us to access the house and containers at the rear of your property as I would like to have these things removed as quickly as possible.
Firstly i would like to remove the containers and vintage cars however this can not be done in one day.
Could I please request access for 3 consecutive days during the week as I would rather not impact your weekends.
If you could reply as soon as conveniently possible I would be grateful.
Kind Regards,
Ms Christensen
Ms Christensen received no reply from Mr B directly. She received a text message from Ms Wicks on 6 December, 2017 as follows (faithfully reproduced, errors in the original):
Ms Christensen. Any correspondence will come directly through me or your lawyers but you are not to contact Mr B again. As per the court agreement you and any of your family are not permitted to enter the property at C Street, Town D again. In consultation with QPS you will receive a trespassing notice and face prosecution. Any workman wishing to enter the property are required to contact me directly and must have insurances to complete removal to ensure Mr B property is protected. As you have not complied with the court order the cost of lawns and all maintenance will be at your expense. The property will be secured therefore no one will have access without this process occurring. This is not to prove difficult but to ensure my uncles property and welfare are safe and secure. Please feel free to have them contact me directly and I am happy to assist them accordingly. You are welcome to send me confirmation and details of what will need to occur and I will ensure your belongings are moved appropriately. I am sure you are as anxious to have this matter finalised as is Mr B however this will be done correctly. Just to advise there is also someone at the premises 24 hours a day and they will contact police accordingly so please be aware of this should you wish to not honour the order or our directives.
Regards Ms Wicks
This message from Ms Wicks, confrontational in its tone, contains assertions not made out in the evidence before me. No “court agreement” was proved in evidence other than the orders to which I have already referred. The suggestion that Ms Christensen nor any member of her family could not attend upon the property for the purposes of retrieving the relevant property is not supported by the orders. The orders oblige Ms Christensen to “cause” the relevant property to be removed. The orders make no provision as to how that is to occur. Whilst I have earlier referred to a possible ambiguity in this order, there is no prohibition upon Ms Christensen (nor anyone else) entering the property for the purposes set out in the orders. If that had been agreed, then it would have been an easy matter to include a prohibition to that effect in the orders. Nor is there any requirement that any workman wishing to enter the property contact Ms Wicks directly or have any particular insurance. Again, if that was thought necessary, a provision to that effect could easily have been in included in the orders. The threat of Police involvement and prosecution was as outrageous as it was unnecessary and inappropriate.
It seems uncontentious and in any event Ms Christensen’s evidence satisfies me, that she then formally gave seven days’ notice of her intention to carry out her obligations under orders 3 and 4 as required by order 9 of the consent orders. Her unchallenged evidence is that on 10 December, 2017 she sent an email to Mr B’s solicitor in these terms (faithfully reproduced, errors in the original):
I am emailing you to as per instructions in final court orders (p)BRC4736/2017, I would like to give 7 days notice to enter the property at C Street, Town D for 3 consecutive days the hours being 8am to 5pm. to remove the shipping containers and vintage cars. Also in this time frame we are hoping to secure an electrician to disconnect the power to the dwelling owned by my father as mentioned in 3. on final court orders. The days that I would require are 18th, 19th and 20th of this month December. Could you please email as soon as possible with a reply so I can coordinate container cranes, tow companies and tradesmen.
Kind Regards,
Ms Christensen
Displaying a complete lack of professional courtesy, Mr B’s solicitor did not respond to Ms Christensen at all. Ms Christensen’s evidence is that she followed up her email with a text message to the solicitor, but still received no response.
Instead, she received a further text message from Ms Wicks on 11 December, 2017 in the following terms (faithfully reproduced, errors in the original):
Ms Christensen. There is no point in liaising with Mr B lawyer. We are not engaging their services as there is no need. And you are not paying his legal fees. As previously stated if you require access advise and we will organise this. Mr B will let me know asap his working hours to ensure he is at the property when said service people are attending. As also previously advised you or any of your family are not permitted on the property under any circumstances. You are leaving the gas bottles leaking proved enough your capabilities and disregard for his safety and well-being. Therefore please provide me details of the company and have them call me.
Again, this message is infected with misconception. The orders did not require that the time that Ms Christensen selected to access the property meet with Mr B’s approval. There was no condition in the orders that he, or anyone else, be present when Ms Christensen was causing the removal of the relevant property. Nor was Ms Christensen obliged to deal with Ms Wicks at all.
On the morning of 13 December, 2017 at 6:31am, Ms Christensen sent another text message to Mr B trying to organise for there to be access granted to the property so she could carry out her obligations under the orders. She reiterated that she wished for access on the days earlier specified by her. She received no response to that text message from Mr B.
In response to that text message Ms Christensen received a further text message from Ms Wicks at 7:07am as follows (faithfully reproduced, errors in the original):
Ms Christensen – Mr B will not be responding to you. I am your point of contact.and Mr B representative. As stayed you or family are not permitted on property. Mr B is not available due to work however myself and another family member are available for removalists on monday, tuesday and wednesday. Person attending property will need to contact me to arrange access. Mr B has requested they show public liability insurance is as per the agreement.
The Monday, Tuesday and Wednesday referred to in that message were the 18th, 19th and 20th of December, 2017 respectively – the days nominated by Ms Christensen for the carrying out of the removal of the relevant items as nominated in her email of 10 December, 2017.
Soon thereafter at 7:23 AM on 13 December, 2017, Ms Christensen received a text message from a person she accepts was Mr B in the following terms:
all contact through
[mobile phone number given]
The mobile phone number in the text message was Ms Wicks’s mobile telephone number.
On a date which is not apparent from the evidence, Ms Christensen attended at the gate of Mr B’s property but found the gates to the property locked with a large padlock and chain. She does not say that it was on any of the dates that she nominated for her access. She does not say that she had anyone else (e.g., tradesmen or crane operators she had engaged to move the items) with her. The locked gates prevented her entry. That the gate was locked was probably not surprising and no doubt it was the reason for Ms Wicks observation in her last message that “Person attending property will need to contact me to arrange access”.
It is more than likely than not, I find, that Ms Christensen attended the property and found the gates locked on 17 December, 2017. I reach that conclusion because there is no evidence of her attending on any other date and the date of contravention in each of counts 1 and 2 (which each involve access to the property) is alleged to be 17 December, 2017.
The access that Ms Christensen required by her notice was between the hours of 8.00am and 5.00pm on the 18th, 19th and 20th of December, 2017. It is uncontroversial that neither Ms Christensen nor anyone acting on her behalf received access to the property for the purposes of the orders. However, no evidence suggests the request was made to Ms Wicks by anyone, including Ms Christensen, for that access on those dates at those times. Not unreasonably, Ms Wicks in her message of 13 December, 2017 had asked to be contacted to organise access on the “monday, tuesday and wednesday”.
There is no evidence that Ms Wicks did anything on 17 December, 2017 to intentionally prevent Ms Christensen from complying with the orders. There is no evidence that Ms Wicks placed the lock on the gate to prevent Ms Christensen from accessing the property and in any event having a locked gate to the property of itself was not a contravention of the orders in circumstances where Ms Wicks had invited Ms Christensen to contact her, or have her agents contact her to organise access on the days nominated by Ms Christensen.
Ms Christensen does not establish to the requisite standard that Ms Wicks intentionally prevented compliance with the order by Ms Christensen. According to Ms Wicks’ message of 13 December, 2017 she stood ready to permit access by Ms Christensen’s agents on 18, 19 and 20 December – the very days Ms Christensen had requested. Whilst there was some issue about whether Ms Christensen would be permitted access herself, if access was granted to her agents to carry out the relevant work, then there would be no failure to comply with the order. There is no suggestion that the agents would not be granted access.
In the absence of any evidence that establishes that Ms Christensen or her agents attempted to access the property on 18, 19 or 20 December, 2017 as Ms Christensen requested and that access was refused, counts 1 and 2 in the (further) amended contravention application, insofar as they allege that Ms Wicks intentionally prevented compliance with the order by Ms Christensen.
Further, to the extent that those counts alleged that Ms Wicks aided or abetted a contravention of orders 3 and 4 by Mr B, the counts cannot succeed. The uncontroversial evidence is that Ms Wicks was asked by Mr B to organise or co-ordinate Ms Christensen’s access to the property for the purposes of orders 3 and 4. Mr B’s text message of 13 December, 2017 bears that out. If Ms Wicks’ actions did not amount to a contravention of the orders and she was acting as Mr B’s agent, then it cannot be said that he contravened the orders. There is no allegation that Mr B did anything beyond what was done by Ms Wicks. If Mr B did not contravene the orders, there is no contravention to which Ms Wicks was an aider or abettor.
I will deal next with count 4. I have set out the terms of order 6 above. If it is the case that the order imposed an obligation upon Mr B to permit collection of the items set out in order 6 in the same way as the items dealt with in orders 3 and 4, for the reasons I have already given, no contravention has been proved.
That is not to say that Ms Christensen lost her entitlement to that property (or the property dealt with in orders 3 and 4). The facts would strongly suggest no abandonment of that property by her. She remained the legal and equitable owner of it. However, it seems that the property the subject of orders 3, 4 and 6 (specifically the vehicles) has now been sold by Mr B.
Mr B sold the property in November, 2018 and received the net proceeds of sale. Ms Christensen received none of the sale price. The chattels to which she was entitled were probably sold as part of the real property given their apparent affixation to the land. Perhaps the shipping containers and the vehicles had been removed prior to sale. Whatever is the case, an action in conversion might well lie against Mr B and Ms Wicks for the disposal of that property that did not belong to Mr B. But those matters do not assist to establish a contravention of the orders by Ms Wicks, either as a principal or an accessory.
The evidence further establishes, and I am satisfied that:
(a)Ms Wicks held an enduring power of attorney for Mr B and acted in that capacity on behalf of Mr B for the sale of the C Street, Town D property;
(b)upon the sale of the property, the net sale proceeds of $375,650.24, were deposited into Bank E account number …20 – a joint account in the names of Mr B and Ms Wicks;
(c)the next day there were five withdrawals whereby a total sum of $370,760.22 was transferred to Bank E account number …84 – a joint account in the names of Ms Wicks and her husband Mr F;
(d)on 9 November, 2018 Ms Wicks then made two transfers from account …84 totalling $308,000 to another Bank E account number …15 –another joint account held in the names of Ms Wicks and her husband Mr F;
(e)also on 9 November, 2018, $300,000 was withdrawn from account …15 by way of cheque number …46 made out to Ms Wicks;
(f)the funds withdrawn from account …15 by way of cheque number …46 in favour of Ms Wicks were deposited in the trust account of Jeff Horsey Solicitors on 4 December, 2018 – Mr B’s solicitors.
From these facts I am asked to infer that Ms Wicks was complicit with Mr B in putting the proceeds of sale of the C Street, Town D property out of her reach. Ms Christensen argues that Ms Wicks has aided and abetted a contravention of order 2 which required Mr B to pay $15,000 to her within 14 days of the making of the orders.
To succeed on this count, Ms Christensen must prove to the requisite standard that Ms Wicks knew that Mr B had not paid Ms Christensen $15,000 as required by order 2. In the absence of that fact, Ms Christensen does not prove all that Ms Wicks knew each of the essential facts that constitute the contravention. That she dealt with the proceeds of sale of the C Street, Town D property is unremarkable given the uncontroversial evidence that she held a power of attorney from Mr B that authorised her to act in the sale on his behalf.
Ms Wicks’ unchallenged evidence was that she did not know that Mr B had not paid Ms Christensen the $15,000 he had agreed to pay her until the contravention application was commenced. She swore and I accept, that she assumed that he paid her the $15,000 shortly after the mediation and she never spoke of the payment with Mr B. Ms Christensen confirmed in cross-examination that she had never told Ms Wicks that she had not been paid, or that the money was to be paid from the proceeds of sale of the C Street, Town D property.
Ms Christensen does not establish that Ms Wicks had the requisite intention and connection to Mr B’s contravention such that it might be said that she aided and abetted his contravention of order 2 of the consent orders.
CONCLUSION
Ms Christensen does not establish that Ms Wicks has contravened the property adjustment orders made on 10 November, 2017 as she alleges. The amended application filed on 10 August, 2021 (as further amended as set out earlier in these reasons) must be dismissed.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Judge Jarrett. Associate:
Dated: 30 May 2022
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