Danks and McCabe (No.3)
[2016] FCCA 2367
•9 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANKS & MCCABE (No.3) | [2016] FCCA 2367 |
| Catchwords: FAMILY LAW – Property – contravention application – one count – failure to remove property – alleged contravention is not made out – contravention application dismissed – costs ordered. |
| Legislation: Family Law Act 1975, ss.112AB, 117, 117(2A) Federal Circuit Court Rules 2001 (Cth), Sch. 1 |
| Cases cited: Davint & Malburon [2015] FamCAFC 176 |
| Applicant: | MR DANKS |
| Respondent: | MS MCCABE |
| File Number: | MLC 4677 of 2012 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 31 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 9 September 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Lampe Family Lawyers |
ORDERS
Count 5 of the further amended application alleging contravention filed on 10 June 2014 is not proven on the balance of probabilities and the allegation is dismissed.
The Applicant pay the costs of the Respondent in respect of the remitted proceedings involving Count 5 fixed in the sum of $8,832. There be a stay on such payment of 90 days.
The Applicant otherwise pay the costs of the further amended application alleging contravention filed on 10 June 2014 as to Counts 1, 2 and 3 fixed in the sum of $7,000. There be a stay on such payment of 90 days.
IT IS NOTED that publication of this judgment under the pseudonym Danks & McCabe (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4677 of 2012
| MR DANKS |
Applicant
And
| MS MCCABE |
Respondent
REASONS FOR JUDGMENT
On the 3 February 2014, the Applicant filed a contravention application alleging breach of orders of the Court by the Respondent. That contravention application was amended by the Applicant on 12 February 2014 and further amended by him in an application filed on 10 June 2014.
Orders made by Judge Turner on 1 September 2014 dismissed the Applicant’s further amended contravention application of 10 June 2014 and provided for the Applicant to pay the Respondent’s costs.
By notice of appeal filed on 8 September 2014, the Applicant appealed against the orders made by Judge Turner on 1 September 2014. The Respondent opposed the appeal. The appeal proceeded before Strickland J in the appellate jurisdiction of the Family Court of Australia at Melbourne on 25 February 2015. In respect of that appeal, on 15 September 2015, His Honour ordered, relevantly, as follows:-
“1. The appeal be allowed in part.
2. Paragraph 1 of the orders made on 1 September 2014 be set aside to the extent that it dismisses count 5 of the Further Amended Application Alleging Contravention filed on 10 June 2014.
3. Paragraph 2 of the orders made on 1 September 2014 be set aside.
4. The oral applications of the parties for costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
5. The Notice of Appeal be adjourned for a directions hearing before his Honour Justice Strickland in the Melbourne Registry of the Family Court of Australia at 11.30am on Friday 25 September 2015.”
Strickland J, in his reasons for judgment dated 15 September 2015, noted that he listed the matter for directions to 25 September 2015 to consider whether he was able to re-exercise the discretion of the lower court, or whether he would be required to remit the matter for re-hearing. On 25 September 2015, in the appellate jurisdiction of the Family Court of Australia at Melbourne, His Honour Strickland J ordered that the further amended application alleging contravention, filed on 10 June 2014, insofar as Count 5 is concerned was remitted for re-hearing to the Federal Circuit Court of Australia before a judge other than Judge Turner.
Strickland J, in his reasons for judgment dated 15 September 2015, noted in paragraphs 59 and 60 therein the following:-
“59. Although the husband failed to direct any submissions to that aspect of the appeal, given that I will be allowing the appeal in part and setting aside that part of the order dismissing the application in relation to count 5, the order for costs cannot stand.
60. The order was in effect a global order providing for the husband to pay the wife’s costs “in accordance with Schedule 1 of the Federal Circuit Court Rules 2001”, being a sum of $11,001.50, within 60 days, and thus it is not possible to say what part of that relates specifically to count 5 or, indeed, any other count for that matter.”[1]
[1] Davint & Malburon [2015] FamCAFC176 at [59]-[60].
The Court notes that the appeal to the superior court was successful in relation to count 5 of the further amended application alleging contravention, but unsuccessful in relation to counts 1, 2 and 3, with count 4 not being the subject of a ground of appeal.
The relevant count to be re-heard by the Court in this proceeding is the Applicant’s allegation contained in his further amended application filed on 10 June 2014, that the Respondent contravened order 7.1 of the orders made by Turner FM (as his Honour then was) on 15 August 2012 on an unspecified date, time and place in that:-
“The Respondent without reasonable excuse claimed possession of property belonging to the Applicant and some belonging to third parties. Some of this property has been sold by the Respondent.”
The relevant order was a consent order which formed part of final property orders made between the parties and is as follows:-
“7. That unless specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
7.1 Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the house on the real property being deemed to be in the possession of the Respondent and in the shed being deemed to be in the possession of the Applicant.”
In support of his further amended application for contravention, filed 10 June 2014, the Applicant relied on affidavit evidence as contained in an affidavit affirmed by him on 2 August 2016. Some part of the Applicant’s affidavit contained matters which were largely irrelevant to the matter which the Court was required to decide on the remittal of the proceedings. Nevertheless the Court considered the totality of the evidence and determined that part of it which was particularly relevant commenced at paragraph 20 on page 6 of the affidavit.
The Respondent was, of course, not required to file an affidavit of evidence in proceedings of this type. However the Respondent was granted leave to file, and did file, an affidavit of evidence at the hearing following the making of a no-case submission by her Counsel, which was rejected by the Court. The relevant matters contained in the Respondent’s affidavit were put to the Applicant in cross- examination.
The Applicant appeared as a litigant in person and the Respondent was represented by Counsel. The Applicant cross-examined the Respondent. Counsel cross-examined the Applicant.
Statements of fact in these reasons are findings of fact on the balance of probabilities.
Background
The parties were in a de facto relationship from in or around (omitted) 1998 to in or around April 2010. In May 2003, the Respondent purchased real property situate at Property H in the State of Victoria (‘the real property’). The real property was purchased in her sole name and a mortgage encumbered the real property, that being with (omitted) Bank. Both parties had obligations with respect to the mortgage. The Applicant and Respondent lived on the real property.
In May 2010, the Respondent informed the Applicant that their relationship was over. The Applicant remained living on the property and the Respondent returned to it on frequent occasions, returning to reside in it on 17 June 2012, to the exclusion of the Applicant.
On 25 May 2012, the Applicant initiated proceedings in the Court for property orders. On 15 August 2012, that application was settled by way of final consent orders. Those orders provided, generally, that the Applicant would pay to the Respondent a sum of money by a due date and that, contemporaneously with the payment, the Respondent would do all acts and things necessary to transfer to the Applicant her interest in the real property at Property H in the State of Victoria. The Applicant would thereafter indemnify the Respondent in respect of the mortgage to (omitted) Bank and all rates, taxes and outgoings of or with respect to the real property. The Applicant was also to discharge the mortgage registered over the title in favour of the (omitted) Bank.
The orders of 15 August 2012 also provided generally that if the Applicant failed to make the payment and discharge the mortgage by the 15th of November 2012, being the date set out in the orders, then the Respondent, under the orders, had a right to elect, within seven days of that date, to retain the real property, and if she made such an election, and payment to the Applicant, various consequential orders followed. The orders also provided for those matters as set in order 7 of the orders as referred to in paragraph 8 of these reasons.
Subsequent negotiations proceeded between the parties, which included an agreement for settlement of the transfer of the real property to take place on 16 November 2012. Ultimately, the Applicant failed to make the payment due to the Respondent and the Respondent elected to make a payment to the Applicant as provided for in the orders and herself retain the real property.
The Applicant did not accept the Respondent’s election to purchase the real property. The Applicant took legal action to stop the Respondent from retaining the real property and sought essentially a discharge of the final property orders made by consent of the parties. The application issued by the Applicant in October 2012 was dismissed by orders of the Court made 16 November 2012. The Applicant sought leave to appeal and, if leave was granted, to appeal against the orders made by Turner FM (as he then was) on 16 November 2012. The Respondent opposed the application for leave to appeal, and the appeal (if leave were granted). The matter was heard in the appellate division of the Family Court of Australia by Strickland J with his Honour making orders on 20 January 2014 on that appeal as follows:-
“1. The application for leave to appeal be dismissed.
2. The appellant pay the costs of the respondent of and incidental to the application for leave to appeal and the appeal with such costs to be assessed in default of agreement.”
On 7 February 2014, the Respondent’s solicitor tendered (for the second time) payment to the Applicant pursuant to the final orders made by consent between the parties on 15 August 2012.
Meanwhile and on 3 February 2014, the Applicant had lodged the initiating contravention application which he subsequently then amended in the manner described at the commencement of these reasons.
Consideration
Section 112AB of the Family Law Act 1975 (Cth) (‘the Act’) is as follows:-
“ (1) A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) in any other case--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.”
Evidence
At the outset, I refer to the evidence of the Respondent in these proceedings when in the witness box, which was that she accepted that the property, the subject of the dispute, being three unregistered motor vehicles situate on or near the driveway of the real property (owned solely by her), were personal possessions and/or chattels of the Applicant, and that, although they were not in the shed and, therefore, specifically property of the Applicant pursuant to the final orders of 15 August 2012, they were nevertheless the property of the Applicant. Her evidence was further, that she had been happy for the Applicant to have the three unregistered vehicles in his possession and had attempted, over some period of time and with some purpose, to have the Applicant collect those items from the real property but without success.
Following the Respondent’s return to the real property and on 18 June 2012, the Applicant’s then solicitor wrote to the Respondent’s solicitor requesting that the Applicant be able to access his tools, equipment and machinery so that he could operate his business and obtain his personal belongings. On that same day, the Respondent’s solicitor wrote to the Applicant’s solicitor in response and advised the Applicant could enter the real property for the purpose he wished provided he undertook:-
“1.1.1 Not to enter upon the property for other than the sole purpose of driving from the property boundary to the shed on the property and from the shed on the property to the property boundary;
1.1.2 Not be on the property other than between the hours of 7am to 4pm;
1.1.3 Not have his car and life partner on the property;
1.1.4 That he and any visitor he has to the property will not come within five metres of the home save as set out in paragraphs 1.1 (for this purpose, it is assumed the shed is more than five metres from the house);
1.1.5 Not to engage in behaviour in relation to our client or any other person our client has on her property that would fall within the definition of “family violence” as defined in section 5 of the Family Violence Protection Act 2008;
1.1.6 Not to change or remove the lock(s) on the shed.
1.2 Our client retains the right to withdraw her consent to your client entering or remaining upon the property by notice in writing or verbally to your client and/or his legal representatives;
2 Your client’s personal belongings will have been placed in the shed for your client to collect.”[2]
[2] Letter from Wilson Lawyers to Holt & Macdonald Pty Ltd dated 18 June 2012.
By letter dated 19 June 2012, the Applicant’s solicitor confirmed acceptance of the terms proposed by the Respondent and sought access to the property from 20 June 2012. By letter dated 19 June, the solicitor for the Respondent advised the Applicant’s solicitor the Applicant could enter the property on 20 June 2012 in accordance with the agreed conditions.
By letter of 21 June 2012, the Applicant’s solicitor requested that the Respondent leave certain chattels in the shed for the Applicant. Those chattels included a computer keyboard and mouse, computer leads, a phone charger, a box of sanding discs, a collection of hand tools and a set of keys. The Respondent placed those items, as requested, in the shed.
On 21 June 2012, the Applicant filed an application in a case in the proceedings then on foot between the parties and an affidavit in support. The Applicant claimed that because of the conditions placed on him attending at the real property, he could not work in his business on the real property as normal. Prior to his exclusion from the real property, the Applicant was running a car repair business from the shed on the property. The Respondent filed a response to the Applicant’s application in a case and affidavit evidence, and on 4 July 2012, consent orders were entered into between the parties, which were as follows:-
“1. All extant applications be adjourned to the Duty List on 15 August 2012 at 9.45am.
2. The Applicant file any further material on which he seeks to rely no later than 8 days prior to the adjourned hearing date and the Respondent in reply no later than 4 days.
3. That until further Order the Applicant have access to the shed at Property H (“the property”) between 7.00am and 8.00pm each day and otherwise in accordance with the letter from Wilsons Lawyers dated 18 June 2012.
4. That the Applicant have leave pursuant to Section 44(6) of the Family Law Act to proceed with his application herein.
5. All costs are reserved.
6. Certify for advocacy.”
At the time of the making of the final orders on 15 August 2012, the parties agree, in these proceedings on their evidence, and relevant to these proceedings the following motor vehicles were on the property:-
a)Three cars at the bottom of the driveway, unregistered;
b)Two cars in the paddock, unregistered;
c)One car between the house and the shed, unregistered; and
d)Four cars in the shed, only one of which was registered, and two of which were owned by third parties.
On 26 September 2012, following the making of the final consent orders, the (omitted) Council sent the Respondent a letter in which it was alleged that a “home occupation” was being run from the real property. That home occupation was contrary to the provisions of the (omitted) Planning Scheme. The correspondence from Mr J, building and planning compliance officer with the (omitted) Council, noted that under the Planning and Environment Act 1987 (Vic), any person who fails to comply with or contravenes a planning scheme is guilty of an offence. The correspondence further relevantly noted that council officers would inspect the real property of the Respondent on 4 October 2012.
In fact, Mr J had made an arrangement with the Applicant for an inspection to occur on 3 October 2012, and Mr J requested of the Respondent that the Applicant attend upon her property for the purposes of such meeting. By email dated 2 October 2012 to the Applicant, the Respondent gave her permission for him to attend the property to meet with Mr J of the (omitted) Council.
On 3 October 2012, Mr J attended the Respondent’s real property, as did the Applicant. After the inspection, Mr J told the Respondent that the Applicant had admitted to repairing cars on the property, and that Mr J had advised the Applicant such works must cease immediately.
On 4 October 2012, the Respondent applied for an Intervention Order against the Applicant at the Ringwood Magistrates’ Court and was granted an ex-parte interim order, returnable on 2 November 2012. The effect of that order was to prevent the Applicant from attending at the property.
By letter dated 15 October 2012 to the Respondent, the (omitted) Council advised that further to their inspection, the Council had concluded that a motor repair business was being conducted on the property, contrary to clause 35/06.1 (rural conservation zone) and clause 52-11.1 (home occupation) of the (omitted) Planning Scheme. The correspondence required the Respondent to, within 90 days from the date of the letter, being by 13 January 2013, to cease the use of the real property for the purpose of mechanical repairs.
On 2 November 2012, the Applicant consented to an Intervention Order on the application of the Respondent for 12 months without admissions. Contained in the order was an order that the Applicant return the chattels that he took from the Respondent when he broke into her home, which gave rise to the application for an Intervention Order. The Applicant complied with that order.
On 20 December 2012, the Respondent sent an email to the (omitted) Council requesting an extension of time to remove the motor vehicles and equipment from the real property as requested by them.
By letter dated 11 February 2013, the (omitted) Council advised the Respondent that she was required to “remove all unregistered vehicles on site” by 11 April 2013 from the real property. In the event there was a failure to do so, the Council indicated that it would issue a summons for the appearance of the Respondent:-
“…at the Magistrate’s Court, which may result in a criminal conviction and severe financial penalties.
Furthermore Council will initiate a Victorian Civil Administrative Tribunal (VCAT) enforcement order proceedings pursuant to the Planning and Environment Act 1987, Section 114 against you, to bring the subject site into compliance with the (omitted) Planning Scheme.”[3]
[3] Letter from Building and Planning Compliance Officer to Ms McCabe dated 11 February 2013.
By letter dated 25 February 2013, the Respondent’s solicitor wrote to the Applicant’s solicitor, providing a copy of the Council’s letter of 11 February 2013 (referred to in the preceding paragraph) and requiring the Applicant to remove all the vehicles to which he lay claim before 5pm on 28 March 2013. That correspondence also advised the Applicant that he could come on to the property, provided he gave an undertaking on his own behalf, or on behalf of any agent acting on his behalf, the terms of which were set out in that correspondence.
The above correspondence noted that the Respondent undertook not to take any action against the Applicant for breach of the Intervention Order obtained by her in him coming on to the property and removing the unregistered vehicles in accordance with the undertaking as set out in that correspondence. The correspondence further noted that if the Applicant did not remove the motor vehicles by 3 April 2013, the Respondent would arrange for the vehicles to be removed immediately, and thereafter take action to recover the costs of such removal from the Applicant.
By letter dated 25 March 2013, the Applicant himself wrote to the Council, requesting a further extension of 60 days. He said relevantly as follows in that correspondence:-
“…As I cannot nor can anyone else acting on my behalf attend the property without that being a breach of the Intervention Order and that any breach could find me arrested and incarcerated, I respectfully request that an extension of 60 days be granted so that the pending Family Law matter can first be resolved. An extension would also allow time for an application to be made to amend the Intervention Order, so I could attend for compliance issues at the Property H property.”[4]
[4] Letter from Mr Danks dated 25 March 2013.
The Court notes that the Respondent’s solicitor was not copied into the above correspondence, and that the Respondent had no knowledge of the Applicant’s request. Further the Applicant had lodged appeal proceedings and was awaiting an outcome in respect thereto that he hoped would see him back as occupier of the real property.
By letter of 27 March 2013, the (omitted) Council advised the Respondent that they had received the above described letter from the Applicant, and had, in accordance with the request, extended the time within which compliance was to occur to 27 May 2013.
By email dated 9 May 2013 from the Respondent to the Applicant, and a Mr B, the Respondent said as follows:-
“Mr Danks and Mr B,
as you are both aware, the Shire of (omitted) requires that all unregistered cars are removed from the Property H property by May 27th.
This is regardless of the outcome of the appeal or any other legal action. Ideally, I would like *ALL* the cars to be returned to their owners. I have no desire to destroy or dispose of anyone else’s property. If I do not remove these cars then I can be subjected to criminal charges, and I hope you both appreciate that as a (occupation omitted) I can’t possibly let that happen.
Mr B: Would you please contact the owners of the cars currently located in the shed at Property H, and advise them that the cars must be removed by May 20th. Alternatively, you can provide me with their contact details and I will contact them myself. I have no way of knowing who owns these vehicles so cannot currently contact them. I am relying on you to ensure that these cars can be reclaimed by their owners. I will happily grant access to the property for the cars to be removed as long as you or the owners contact me directly. If the cars are not removed by May 20th (or alternative arrangements made) I will have no choice but to dispose of them. I reiterate that I have no desire to destroy or remove vehicles that do not belong to me, but I have no choice in this matter. The council requires that the cars be removed and I will not expose myself to potential criminal charges.
Mr Danks: Please arrange for your cars to be removed from the property. I am happy if a representative of yours collects the cars. I only stipulate that they must contact me directly to arrange the removal. As my solicitor has already stated, I will not pursue a breach of the intervention order if your nominated agent collects the cars and does not abuse or intimidate me in any way. I have contacted Mr T about the (omitted) vehicle and as it is registered, it can remain on the property for the time being.
Regardless of the outcome of the appeal, or any subsequent legal action, these cars must be removed. I know you do not believe me, but I have done nothing to contribute to the council’s action. I simply have to comply.
If the cars are not removed or arrangements have not been made to remove them then I will have no choice but to organise their removal. * * I am making your deadline a week before mine, as I need time to organise the removal of the cars should you both choose to ignore this letter.
I will endeavour to make myself or my agent available at your convenience to ensure the cars can be returned to their owners.
Please don’t make this any more difficult than it already is. I would happily leave the cars in situ if circumstances permitted. I hold no animosity toward either of you. I simply need to comply with the council order.
I look forward to your cooperation.
Regards, Ms McCabe.”
By email dated 13 May 2013 to the (omitted) Council, the Applicant again sought a further extension of time of 90 days to comply with the Council’s demands. By email dated 16 May 2013, the Council advised the Applicant that it had extended the time to comply with its direction to 14 August 2013.
By letter dated 17 May 2013, the Applicant’s solicitor wrote to the Respondent’s solicitor confirming the extension of time by the Council to 14 August 2013. The Applicant requested that no property belonging to the Applicant or any property entrusted to him by any third party be removed or disposed of by the Respondent
By email dated 20 May 2013, Mr B advised the Respondent that because the Applicant had received an extension of time from the Council, he was unable to assist with her request to remove the vehicles. Mr B was clearly acting on the instruction of the Applicant and made no genuine attempt to reclaim any property that may have been owned by or entrusted to him.
By email dated 22 May 2013 from the Respondent to (omitted) Council, the Respondent said, relevantly as follows:-
“I am the only registered owner of Property H.
I have just received a letter from my solicitor Geoff Wilson which informed me that an extension has been granted to allow a third person to arrange to remove unregistered cars from my property. This is the second time this has happened. As the property owner I request to see all correspondence both received by the council and written by the council relating to my property regarding an extension. I did not apply for the extension and had no knowledge of it until informed by my solicitor. I see it as a breach of privacy that the council is corresponding with a third person about my property, especially as I was not consulted or informed about the decision.
Please note that I currently have a family violence intervention order against Mr Danks effective until November 2013. Under the intervention order he is not permitted to attend the property or to be within 200 metres of it. I am happy to provide a copy of the order if required.
I removed the unregistered cars that belonged to me from the property in November 2012 and am paying to have them stored. Why is Mr Danks allowed to store cars on my property without my consent, free of charge? I have complied with the council orders to date and will continue to do so.
Could you please advise how I can apply to have the extension rescinded.
Please be advised that I expect to be consulted on all matters relating to my property and I did not give my permission for the council to deal with anyone, other than myself, in all matters related to my property.
The current council order requires me to have the cars removed by May 27th. I have been in the process of arranging this and until the extension was granted I was on track to have this completed. As I have had to put all efforts to remove these cars on hold I request that you grant me an extension until June 3rd 2013.”
On 24 May 2013, the (omitted) Council telephoned the Applicant and told him that the Council were revoking the extension they had previously granted to him.
By letter of 27 May 2013, the solicitor for the Applicant wrote to the Respondent’s solicitor noting that the Council’s extension of time had been revoked. Urgent undertakings by the Respondent were sought to not dispose of any property whether it belonged to the Applicant, or third parties, pending the outcome of the Applicant’s appeal of the final property orders of 15 August 2012.
By correspondence of 31 May 2013 to the Applicant’s solicitor, the Respondent’s solicitor wrote relevantly, as follows:-
“Our client is now faced with a deadline of 1 June 2013. In their letter to our client dated 15 October 2012, the Council clearly states that the failure to comply with their requirements “will result” in the issuing of a summons which may result in a “criminal conviction”.
Our client has twice offered in writing access for your client to come upon the property to remove the motor vehicles but your client has refused these offers on the basis that the Intervention Order prevents him from doing so. We note that your client has not made any application to vary the Intervention Order, nor given his consent to any application our client may make to vary the Intervention Order.
Our client is merely seeking to avoid a criminal conviction and rid herself of the exorbitant storage costs that she has been forced to incur by not being able to use the shed. Her intention is not to dispose of anyone’s property.
To both these ends, our client advises that;
1. She undertakes that no property belonging to your client or any property entrusted to him by any third party will be removed from the property or disposed of provided that the council grants a further extension.
2. She will be removing the motor vehicles in the shed from the shed onto the property, but not off the property, so that she can use the shed.”
On 1 June 2013, the (omitted) Council’s deadline elapsed.
The Intervention Order
By letter dated 4 June 2013, the Applicant’s solicitor wrote to the Respondent’s solicitor saying, amongst other things, that the Applicant had received advice from the Registrar of the Ringwood Magistrates’ Court that he did not have grounds to apply to vary the Intervention Order and indicated that the Respondent could apply without leave to vary the Intervention Order which would then entitle him to enter the property. That correspondence also stated that the Applicant did not want his vehicles removed from the shed because that would expose the vehicles to deterioration from weather and also expose them to the risk of theft.
By letter of 7 June 2013, the Respondent’s solicitor wrote to the Applicant’s solicitor in response reiterating point one of their letter of 31 May 2013. That correspondence further indicated that the Respondent would make application to the Magistrates’ Court to vary the Intervention Order made on 2 November 2013 to allow the Applicant to enter upon the property provided that:-
a)the Applicant removed all motor vehicles from the property within seven working days of any order made by the court to vary the current intervention order.
b)the terms of the variation were set out in schedule A to the correspondence.
c)the Applicant was to provide all necessary consents to the Respondent for the purposes of her making an application to vary the current Intervention Order.
d)all motor vehicles not removed within the provided for timeframe would be deemed to be abandoned by the Applicant and could be removed and disposed of by the Respondent.
By letter dated 1 July 2013, the Respondent was advised by the (omitted) Council that they wished to inspect the property on 16 July 2013. Ultimately, the inspection took place on 11 July 2013. By letter dated 16 July 2013, the Respondent was advised by the Council that she had until 16 August 2013 to “…reduce the number of vehicles on the site to a total of four.”
That correspondence also noted that the Council had determined not to take any enforcement action in the matter providing the required remedial action was completed to their satisfaction, but that should a further contravention or failure to comply occur, then such determination should not be relied upon, as a more strict approach would be adopted in such circumstances. The Council noted that failure to comply with its requirements:-
“…will result in the council issuing a summons for your appearance at the Magistrates Court which may result in a criminal conviction and severe financial penalties”
and again made reference to the initiation of proceedings in VCAT.
By letter of 2 August 2013, the Respondent’s solicitor wrote to the Applicant’s solicitor saying, in part:-
“Unless the motor vehicles are removed from the property by 5 pm, 11 August 2013, our client will have them removed from the property.”
Other matters were noted in that correspondence including that if the Respondent was required to remove the vehicles, the costs would be the responsibility of the Applicant; that the Respondent undertook not to rely on the Applicant’s conduct in removing the vehicles as a basis for alleging there had been a breach of the Intervention Order; and that the Respondent would not be making any application to vary the Intervention Order but would provide a letter of consent to support any application made by the Applicant, subject to her approving the terms of the variation.
By further letter of 7 August 2013, the Council advised the Respondent that time for compliance had again been extended to 7 October 2013.
On 29 August 2013, the Respondent was served with an application by the Applicant to revoke the Intervention Order. Such application was listed for hearing on 13 September 2013. On that day, the Applicant’s application was heard and adjourned to 3 December 2013. The existing Intervention Order was also extended in its operation to 3 December 2013. Importantly, at the hearing on 13 September 2013, the following exchanges took place between the Magistrate and the Applicant:-
“HIS HONOUR: …I will allow him, if that can be arranged, and go to the premises in the company of a Police Officer to collect his personal property from the shed
…
MR DANKS: No. I don’t want that.
HIS HONOUR: You don’t want that? Don’t say I didn’t try.
…
I’m prepared to let you go to the property in the presence [of a] police officer, or someone chosen by the Applicant, to collect your property from the shed, but not to remain at the shed and working in the shed. I wouldn’t have a bar of that.
MR DANKS: Okay. That’s fine.
HIS HONOUR: You don’t want to go to the shed to go and collect your property?
MR DANKS: No.
HIS HONOUR: Well, it’s on the tape, and you can take a note of it.
…
Well, I will leave the existing order in. You must comply with all those orders…”
And later:-
“HIS HONOUR: The funny thing about denial of access to the property prevents him from access to work tools, well that’s the very thing they are prepared to allow you to do, but you can’t have it both ways
MR DANKS: We’re talking about tons of equipment. I’ve got one machine, on its own it’s two and a half tons, your Honour.
HIS HONOUR: Well, I’m not stopping you getting it, are you saying you ‑ ‑ ‑
MR DANKS: I know. I’m not going to go and hire a factory to put it in and hire a crane truck to transport it.
HIS HONOUR: Well, in the meantime
MR DANKS: There’s tens of thousands of dollars
HIS HONOUR: …It gathers dust in the shed.
…
MS ILIAS [Counsel for the Respondent]: But, your Honour, there are cars on the property also that Council have required to have them removed from that property.
HIS HONOUR: Whose cars? Whose are they?
MS ILIAS: They belong to Mr Danks in relation to his work. We’re asking him to remove those items, he’s obviously now refusing, to take them.
MR DANKS: It doesn’t matter…
HIS HONOUR: You’re going to be the loser.
MR DANKS: No.
MS ILIAS: Those cars have to be removed.
MR DANKS: They must produce relevant bylaws. They need to produce relevant bylaws to enforce any of those…
HIS HONOUR: They will be taking action against her.
MR DANKS: Section 114 of the Planning and Environment Act says that (a) go her, (b) the occupier of the property, or(c) any other person in association with that property.
HIS HONOUR: So, she’s the occupier, they would probably go her.
MR DANKS: They could go me.
HIS HONOUR: She’s the ratepayer, but she says she’s not responsible, you won’t collect them. You say you won’t.
MR DANKS: Well, I can’t collect them.
HIS HONOUR: I’m giving you the opportunity to go in there and collect them.
MR DANKS: Well, I will take the opportunity to remove cars, but I’m not going to take out…it’s going to cost me $20,000 to remove my equipment.
…
MS ILIAS: If Orders could be varied for Mr Danks to attend the property to collect…
HIS HONOUR: The offer was made for him to go there and remove stuff from the shed, that’s what his application was.
MS ILIAS: Yes.
HIS HONOUR: But he doesn’t want that.
MS ILIAS: No. I’ve spoken to him, and he wants to come back to the property to work there.
HIS HONOUR: (inaudible)
MS ILIAS: Will you come in and remove the cars?
HIS HONOUR: Nothing to stop…he can authorise…
MR DANKS: Nobody can do what I’m not allowed to do according to the order.
HIS HONOUR: You’re not listening to me. I said he could authorise the removal of those cars from the property. That wouldn’t be…he wouldn’t be breaching the order?
MS ILIAS: No.
HIS HONOUR: If he’s authorising someone else to remove the cars from the property, I wouldn’t have thought (inaudible) if you want me to put in an express clause, I will – indicate literal words …um… “An authorised officer of the respondent may attend, with the permission of the aggrieved family member, to collect, you know, various motor cars”...
MS ILIAS: Yes.
HIS HONOUR: Are they registered in your name, these cars, or not registered in...
MR DANKS: Most of them aren’t registered.
HIS HONOUR: Do you know what number of them are unregistered? How many cars are there?
MR DANKS: Five.
MS ILIAS: Ten.
…
HIS HONOUR: So that we can arrange to change clause 10 around to enable him or someone authorised by him with the permission of her, for him to collect the following items… Ford (omitted), Holden, so and so, something like that. At least we have achieved something today. What would happen if…
MR DANKS: I would prefer…
HIS HONOUR: Where would the cars go to if they are removed?
MR DANKS: I’ve got nowhere. If I were to take them I would have to pay storage on them. They’re close to collectables.
HIS HONOUR: Well, what do you want done with them? You can’t have it both ways. If they remain there, they’re probably gathering dust. Well, I’m giving you the opportunity to try to come to some arrangement with the Council so that we can get someone to attend…
MR DANKS: Well, all I have to do to satisfy Council is to remove one car, and if they will authorise me to come and collect it, I will quite happily come and collect it.
HIS HONOUR: Why one car, if there’s 10 there, isn’t it…
MR DANKS: There’s 10 there. There’s four…there’s five outside the shed and there’s only – according to the council, there can only be four. So I need to remove one.
HIS HONOUR: (inaudible)
MS ILIAS: The council order says that all unregistered cars must be removed from the property.
…
HIS HONOUR: …I would have thought if she writes to council because he won’t authorise them to be removed, um, the council will probably get them removed.
MS McCABE [the Respondent]: Well, they can, but – but they can charge me with leaving them there and breaching the Council order. I want to comply with the council order and remove the cars and have it finished.
HIS HONOUR: Well, why don’t we do that then -get all the cars removed. Where are you going to put them?
MR DANKS: I have nowhere to store them.
HIS HONOUR: Well, you can’t have it both ways. She’s prepared to comply with the Council, but you won’t let her remove...
MR DANKS: That’s right. I’m 90 per cent confident if the appeal judgment comes in my favour this afternoon, then nothing has to be removed.
HIS HONOUR: What’s on this afternoon?
MR DANKS: Well, who knows, when my judgment’s is going to come in?
HIS HONOUR: ...this afternoon?
MR DANKS: Judgment is reserved, the hearing was in April.
HIS HONOUR: You don’t know it’s going to be this afternoon?
MR DANKS: That’s what I’m saying your Honour, that if it was to come through this afternoon, the entire thing could get tipped over the other way.
HIS HONOUR: Anyway, you can’t come to some arrangement. I’m quite happy to change that order around…
MR DANKS: I’m quite happy to come and collect the cars myself personally.
HIS HONOUR: Uhm?
MR DANKS: I’m quite happy to come and collect the cars myself personally.
MS ILIAS: So that would be the cars in the shed?
MR DANKS: No, the ones outside of the shed.
HIS HONOUR: Dispute about where they are?
MS ILIAS: Yes.
HIS HONOUR: Thank you. I can’t get anywhere.”
At the time of the above hearing in the Magistrates’ Court, the judgment in the Applicant’s appeal from the orders of 15 August 2012 was reserved. As is evident from the above exchanges and his ongoing behaviour, the Applicant’s intention was to leave all of the unregistered cars on the real property owned by the Respondent pending the outcome of that appeal. This took no account of the Respondent’s then propriety rights or of her efforts to comply with order 7 of the orders made 15 August 2012.
On 14 September 2013, the Respondent sent an email to Mr B asking him to collect his customer’s motor vehicles and requiring him to contact her by 30 September 2013. If he did not do so the unregistered cars would be removed from the property. That email stated, as set out in paragraph 86 of the affidavit of the Respondent, sworn 31 August 2016.
“Mr B, I have tried everything to allow you to collect your customer’s cars, but I will try one last time.
The situation as it currently stands is that the council has given an extension until October 7th. The judge said on Friday that there was no problem with you collecting the cars and that it would not affect the intervention order. I suggest you speak to a police officer if you are unsure.
You need to contact me by September 30th to arrange for the removal of the cars in the shed, via email or text to (omitted). The council has said there is no option for a further extension. I intend to comply with the council order, and I will remove all unregistered cars from the property by the required date.
I reiterate, I have no desire to destroy or sell anyone else’s property, but if I have to do so to comply with the council order then I will. I have no other option.
Please do the right thing and allow these cars to be returned to their owners.
Regards,
Ms McCabe.”
Mr B responded in extraordinary and passive aggressive fashion, given he claimed some interest in the motor vehicles, to the above email stating:-
“Ms McCabe,
I have spoken to the police and have been told that “she said the judge said” would not be a valid excuse for breaking an intervention order. If the Order was not officially varied then the Order remains the same. They told me that the council letter is only a letter and that the council would have to apply for an enforcement order through VCAT before they would be able to take any action. They said this is a matter of civil disobedience and you should not be in fear of prosecution particularly as you can easily prove that it is not you involved in any alleged breach of council bylaws. They suggested you seek proper legal advice as you could face criminal charges of theft and destruction of property if you were to take it upon yourself to remove or dispose of any property not belonging to you. It was said that the threat of prosecution from the council would never justify committing a crime. They further suggested you should notify everyone in writing, that you have told of your intention to dispose of property, that you no longer intend to do so as it was pointed out that if property was to go missing you could be liable for its disappearance. It was further suggested that you write a letter to the council explaining the situation and requesting they suspend taking any further action until such time as the issues of the intervention order and the pending Federal Court judgment have been resolved.
Regards
Mr B”
As at 25 September 2013, there were eight unregistered motor vehicles outside the shed. There were three at the bottom of the driveway and five other unregistered motor vehicles on the property, including two halves. On 26 September 2013, the Respondent sold the three motor vehicles in the driveway. The receipt she put in evidence before the Court in respect of the sale of the three vehicles, all being Holdens, was a total sum of just $800.
On 27 September 2013, the Respondent had five unregistered motor vehicles outside the shed on the property. On that date, the Applicant issued an application in a case seeking an injunction restraining the Respondent from disposing of any assets of third parties. That application was returnable on 7 October 2013. On 7 October 2013, Judge Connelly made orders as follows (being the date for the Council’s deadline for the removal of the motor vehicles):-
“1. The Applicant de facto husband collect, or arrange for another person or persons to collect, the four motor vehicles stored in the shed at Property H, Victoria, between 10:00am and 4:00pm or either 8 October 2013 or 9 October 2013.
2. To the extent that paragraph 1 herein is inconsistent with the Intervention Order made 13 September 2013 at the Magistrates’ Court in Ringwood, Case No. (omitted), these Orders prevail.
3. Otherwise, the application of the de facto husband be dismissed.”
On 8 October 2013, the Applicant removed his motor vehicles from the shed. On 9 October 2013, the (omitted) Council attended and inspected the property. On the following day, the Applicant threatened to report the cars the Respondent had sold on 26 September 2013 were stolen if they were not returned.
In or about November 2013, two-half cars in the paddocks were removed by third parties leaving three unregistered cars and the Respondent’s car on the property.
On 3 December 2013, the Applicant’s application to revoke the Intervention Order and the Respondent’s application for an extension of Intervention Order were listed. The Applicant consented to an extension of the Intervention Order for a six-month period. In January 2014, the Applicant’s application for leave to appeal the making of the final property orders was dismissed.
On 9 May 2014, an appeal lodged by the Applicant against the decision of Judge Connolly of 7 October 2013 was heard, and Strickland J made orders by consent the effect of which was that the Applicant could attend the property and collect the chattels contained within the shed and two nominated unregistered motor vehicles within 45 days of those orders.
By letter dated 16 June 2014, sent by the Respondent’s solicitor to the Applicant, the Applicant’s attention was drawn to the fact that the 45-day time limit, set in the orders of the Full Court of the Family Court of Australia made on 9 May 2014 for the Respondent to collect his chattels from the shed on the Respondent’s property, was fast approaching. The Applicant was advised also that:-
“We are instructed to advise that our client will facilitate the collection, by you or your agent, of the chattels in accordance with the order on any day between now and the end of the 45-day period provided you give two days’ notice of any day on which you wish to collect the chattels, and that you agree to collect those chattels between the hours of 9 am and 5 pm.”
By letter dated 17 June 2014, the Applicant sought an extension of time to comply with the Full Court of the Family Court of Australia order of 9 May 2014 to, in effect, 14 July 2014. The Respondent did not agree to any such extension.
By letter of 20 June 2014 from the Respondent’s solicitor to the Applicant, the solicitor advised the Applicant relevantly that:-
“1. She [the Respondent] does not wish there to be any change to the orders made by Justice Strickland on 9 May 2014 and as a party the subject of the orders you should comply with it. Our client will do all she can to accommodate any and all requests made to her to access the property to assist the applicant in complying with the orders.
2. However, in the event that you do not collect the chattels within the timeframe set out in the order, our client will consider any request by you to access the property to remove the chattels outside the timeframe set out in the order as it is in all parties interests for the chattels to be removed as soon as possible.”
The Applicant did not collect all the items within the timeframe as ordered.
On 19 August 2014, the Respondent issued an application in a case in which she sought orders, amongst other things, that within 21 days the Applicant remove the contents of the shed and the two named unregistered vehicles. That application in the case was heard on 3 September 2014. Consent orders were made that day. They are were follows:-
“1. Within 28 days, the Respondent de facto husband (and/or agents of the respondent de facto husband as agreed with the applicant de facto wife) collect the chattels contained within the shed at Property H (“the said Property”) and the two (2) unregistered motor vehicles (being the (omitted) Holden and (omitted) Holden) (“the said Chattels”) at a time agreed between the parties by text messages or email.
2. In the event that agreement cannot be reached as to collection for the purposes of paragraph 1, the Respondent shall be entitled to attend upon the said Property within the 28 day period to give effect to paragraph 1 between the hours of 9am and 5pm on weekdays upon the provision of two (2) days notice of his intention to do so.
3. In the event that the respondent fails to collect (or cause to be collected) all of the said Chattels within 28 days, the de facto wife be at liberty to sell altogether out of court any of the said chattels remaining at the said Property and upon completion of sale, the proceeds of sale be applied:
a. First, to pay all costs, commissions and expenses of the sale;
b. Second, to pay all reasonable expenses of the applicant de facto wife in giving effect to the sale (including but not limited to removal fees);
c. The balance to the husband.
4. The respondent pay the applicant’s costs of this Application in a Case of $3,156.50.
5. The Applicant de facto wife’s Application in a Case otherwise be dismissed.”
During the month of September 2014, the Applicant finally attended the property, on a number of occasions, and removed his property.
Following the orders made by Strickland J on 9 May 2014 and given the consequent delay by the Applicant, the Respondent made arrangements for chattels, not in the shed and not in the house, but which remained residual on the property and which she considered to be in the ownership of the Applicant, to be placed in a storage unit with (omitted) in (omitted) for the Applicant to collect, or otherwise deal with. The Applicant was advised by the Respondent’s solicitor how to access the storage unit and when he could access it. He was further provided with a copy of the contract of the Respondent with (omitted) and advised that, if he had not collected the chattels from the storage unit by 5pm on 27 September 2016, the chattels would be removed from storage and destroyed. That correspondence was forwarded to the Applicant on 29 August 2016.
The storage fee per calendar month of $380 has been paid by the Respondent. This was an unnecessary expense incurred solely because of the Applicant’s non-compliance with Court orders and aberrant behaviour.
Conclusions
It is clear, on the evidence, that the Council required the Respondent to remove unregistered vehicles from the real property. It is clear, on the evidence, that the Applicant had ample opportunity to remove the unregistered vehicles, which he claimed belonged to him, or third parties who had entrusted those vehicles to him – a matter which the Respondent accepted – from the real property.
On 13 September 2013, a judicial officer, in proceedings between the parties was willing to make any order necessary to achieve the outcome of the Applicant removing his unregistered vehicles from the property. The Applicant did not wish to do so, as he was confident that his appeal in respect of the final property orders would be successful, and that, ultimately, he would regain possession and occupation of the real property. He, of course, would still have had to deal with the local Council in respect of his breach of their various planning codes. He was unsuccessful in his appeal.
There is nothing further the Respondent could have done to have the Applicant collect items of property which he claimed as his, or those of third parties in his care. The Applicant used the existence of the Intervention Order to achieve his ends when it was patently clear that the order could have been varied and/or other action taken and other orders sought so as to enable him to remove his unregistered vehicles from the property. The actions taken by the Respondent were reasonable, just and necessary. As she said in evidence she was happy to give the Applicant his motor vehicles back but “he wouldn’t take them.” The Respondent had good cause and excuse to act in the manner in which she did. The behaviour of the Applicant throughout this long saga was, as described in the foregoing tortuous correspondence, harassing and misguided. His intent was to not remove his chattels and personal property from the Respondent’s (solely registered) real property. To have continued an argument that the Respondent was in breach of an order of the Court because of his refusal to act when given ample opportunity by her to collect his property, in circumstances where the Respondent would face prosecution from the local Council, is to continue litigation as an end in itself. The Applicant’s purpose was to cause stress and expense to the Respondent in the continuation of this application. It is an application entirely without merit.
Costs
The Respondent claims the costs of this proceeding, which involved a directions hearing and final hearing, together with the preparation of the matter. The Respondent also sought costs in respect of the earlier hearing of the contravention application, wherein, some counts were found proven and not overturned on appeal. This is because the earlier costs order, in its entirety, was set aside by the appeal court.
Section 117 of the Act deals with the question of costs. Section 117(2A) of the Act sets out the matters for the Court to consider in the exercise of its discretion to award costs. The costs claimed in the proceedings are by reference to Schedule 1 of the Federal Circuit Court Rules 2001 (Cth). In respect of these proceedings there have been two Court dates and the preparation of the matter. The costs applicable are $2,162 together with a daily hearing fee of $294 together with a 50 percent advocacy loading of $147 up to completion of the first Court date. Thereafter a preparation fee of $4,608, a hearing fee of $1,081 and an advocacy loading of $540.50 are appropriate. The total costs amount thus in accordance with scale is $8,832 approximately. This amount I note will not cover the solicitor client costs incurred by the Respondent. Additionally, I shall allow an amount in respect of the earlier hearing which included two Court dates and found three contraventions proven. I propose that amount be slightly reduced in terms of preparation fee to provide for any doubling up of work done. I am not aware that the Respondent filed an affidavit in that proceeding although the Respondent did file written submissions. In the exercise of my discretion I determine an amount of $7,000 would be appropriate. When looking to the Applicant’s income I am told by him it is $18,000 gross a year approximately. The Applicant’s assets he claims to be $10,000 to $20,000. The Respondent’s assets are approximately $130,000. Her income it is submitted is approximately $110,000. Neither party is in receipt of legal aid.
The Applicant has been wholly unsuccessful in this proceeding. The Applicant’s conduct in litigating this matter, in light of the factual circumstances as described in these reasons, could be described as vexatious. He remains clearly very aggrieved by the actions of the Respondent and by the legal system. It is unlikely that his pursuit of litigation will stop here.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 9 September 2016
Key Legal Topics
Areas of Law
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Civil Procedure
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Commercial Law
Legal Concepts
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Costs
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Remedies
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Stay of Proceedings
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Res Judicata
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