Drummond and Piper

[2013] FamCA 278

FAMILY COURT OF AUSTRALIA

DRUMMOND & PIPER [2013] FamCA 278

FAMILY LAW – INJUNCTIONS – Preservation of property – where the applicant seeks an order that a motor vehicle in the possession of the respondent be returned to the applicant and that the respondent be restrained from removing that motor vehicle from the applicant until further order – where there is insufficient unchallenged evidence to support the order sought – application for injunction dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Drummond

RESPONDENT: Mr Piper

FILE NUMBER: ADC 4796 of 2011

DATE DELIVERED: 16 April 2013

PLACE DELIVERED: Darwin

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 16 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Read

SOLICITOR FOR THE APPLICANT: R J Cole & Partners

COUNSEL FOR THE RESPONDENT: Mr Heinrich

SOLICITOR FOR THE RESPONDENT: Michael W Speck and Co

Orders

1. The applicant has leave to file affidavits setting out the basis of the evidence in relation to the photographs and DVDs and leave to rely on the annexed DVDs and photographs PROVIDED THAT the affidavits are filed and served within twenty-eight [28] days from today and subject to any ruling by the trial Judge.

2. The respondent has a further twenty-one [21] days to file and serve any response to those affidavits.

3. Paragraph 2 of the Application in a Case filed on 14 March 2013 is dismissed.

4. The applicant has leave to file an affidavit of her mother (Ms Drummond Snr) setting out the relevant evidence upon which she seeks to rely such affidavit to be filed and served within twenty-eight [28] days and further consideration will be given to the leave to rely upon such evidence and the necessary video link arrangements for the evidence of the applicant’s mother to be determined either by the Registrar or the trial Judge at the further directions hearing prior to the matter being listed for final determination.

5. The respondent to file and serve within fourteen [14] days from today a written undertaking not to sell, dispose of, or otherwise encumber the Holden Statesman Caprice motor vehicle registration number … until the conclusion of these proceedings.

6. The question of costs of this application and payment of the ONE HUNDRED AND EIGHTY DOLLARS AND FIFTY CENTS [$180.50] incurred by the wife (in relation to the motor vehicle) is reserved for further determination by the trial Judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Drummond & Piper has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: ADC 4796 of 2011

Ms Drummond

Applicant

And

Mr Piper

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me the Application in a Case filed by the applicant on 14 March 2013 and the response to that application, filed on 5 April 2013 (the matter having been listed and previously adjourned to this morning before me). 

2. The first order sought relates to the DVDs and photographs.  I have already given my reasons and made orders in relation to that matter, being a matter in which steps should be taken to ensure that all appropriate evidence is clearly before the Court in the appropriate way, to assist the Court in determining the issue which is currently about to be listed for trial, when judicial availability allows to determine whether there has been a de facto relationship which falls within the current legislation.

3. Paragraph 2 seeks an order that the Holden Statesman Caprice in the possession of the respondent be returned to the applicant and that he be restrained from removing that motor vehicle from the applicant until further order.

4. The affidavit material in support of that application was also filed on 14 March 2013.  In response the respondent has filed an affidavit on 5 April 2013.  It is clear from submissions from counsel this morning that many of the matters in the affidavits fall within the ongoing dispute between the parties and there is no necessary agreement reached in relation to the material upon which the Court would make its decision.

5. The question of jurisdiction was raised.  On an interim basis the question of jurisdiction cannot be determined, because that is the very matter which is set down for hearing;  namely, whether this Court has jurisdiction to make an order in relation to the property of the parties, based upon the de facto property legislation now in the Family Law Act 1975 (Cth). The issue to be determined is the time at which the relationship between the parties as a de facto relationship broke down. They are years apart in the date of the alleged breakdown of the relationship.

6. Mr Heinrich for the respondent also raises the issue as to undertaking about damages. 

7. The applicant’s affidavit asserts that the vehicle was purchased in September 2010 and was registered in the name of the respondent.  She alleges that she was the only person who drove it whilst they were living together.  The respondent’s affidavit refers to an implication that he requires the vehicle which he has now taken back for business purposes.

8. The wife alleges that the separation took place in January 2011.  In fact that is alleged to be the time that the respondent says that the applicant moved out of the premises, not the time of separation.  It is clear, however, that the applicant retained the Holden Caprice motor vehicle until the husband took steps in December 2012 to take the motor vehicle back into his possession at a time when previously his solicitors requested the return of the vehicle and the applicant had sought to retain the vehicle.

9. The affidavit of the wife refers to the wife’s need for the motor vehicle.  It sets out the fact that she has been “extremely inconvenienced.”  She refers to having two casual based positions in an education role at Suburb B High School and Town C High School, the latter of which is within walking distance of her home.

10. The affidavit of the applicant, however, does not refer to any steps that she might have taken or her financial circumstances specifically which would allow the Court to determine that she is unable to obtain a suitable motor vehicle.  The difficulty in this matter is both the question of the possession of the vehicle and the injunction restraining the respondent from seeking the return of the vehicle pending the determination of the proceedings.

11. On the material before the Court in the current affidavit filed by the applicant, I am not satisfied that it is appropriate to make the injunction sought by the applicant in relation to the motor vehicle.  There is insufficient unchallenged evidence to support the significant order sought by the applicant.

12. I therefore dismiss paragraph 2 of the Application in a Case. 

13. In relation to paragraph 3, this is an application by the applicant for her mother to be given leave to file an affidavit and to appear by video link at the trial.  The affidavit, filed by the applicant in relation to that matter says at paragraph 14:

    In his trial affidavit filed on 3 October 2012, the respondent refers to the early part of our relationship when I was residing in the United Kingdom.  His description of our relationship is not accurate and on that basis I ask this honourable Court to order that my mother be at liberty to file an affidavit of her observations of our earlier relationship and to give evidence by way of video link.

14. At the hearing before me this morning I asked counsel to refer me to that part of the long affidavit of evidence‑in‑chief, filed by the respondent in October 2012, which relates to this part of the affidavit.  Submissions were made by the counsel for the respondent that the observations may possibly relate to a time in 1989, which would not be relevant to the issues that the Court will have to determine when this matter is listed for trial.

15. The Court is under some difficulty this morning in that the applicant is not present in Court.  Her counsel was unable to get further instructions and obviously at a short interim hearing was unable to wade through a very long affidavit to point to the relevant part to which the affidavit is referring.

16. It is, therefore, appropriate to give the applicant an opportunity to file an affidavit.  When that affidavit has been filed and served further consideration (appropriately by the trial judge) can be given to whether the affidavit can be relied upon, if that matter cannot be agreed or orders made by a registrar when the matter is further listed for final trial.

17. In relation to the motor vehicle it is also appropriate to take up the respondent on his offer.  He is directed to give a written undertaking to be filed and served within 14 days. 

18. I propose to reserve the question of costs for this application and the payments incurred by the wife for consideration of the trial judge.  In the circumstances that she seems to have employment and there are issues yet to be determined I am reserving the question of the payment of $180.50 and the parties’ legal costs of this application for further determination by the trial judge.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 16 April 2013.

Associate: 

Date:  24 April 2013