Rivers and Rivers

[2017] FamCA 33

FAMILY COURT OF AUSTRALIA

RIVERS & RIVERS [2017] FamCA 33

FAMILY LAW – ORDERS – Contravention – Where the Husband removed property from the former matrimonial home of his own volition – Application dismissed.
FAMILY LAW – ORDERS – Application for enforcement seeking the return of property removed from the former matrimonial home – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Rivers

RESPONDENT: Mr Rivers

FILE NUMBER: BRC 6267 of 2014

DATE DELIVERED: 23 January 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 23 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Barry.Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hackett

SOLICITOR FOR THE RESPONDENT: Hirst & Co

Orders

IT IS ORDERED THAT

1. The Application – Contravention filed 4 January 2017 is dismissed.

2. The Application in a Case filed on 4 January 2017 is dismissed.

IT IS NOTED THAT

A.Ms Bint, Solicitor, appeared on behalf of the Independent Children’s Lawyer and successfully sought leave to be excused from the proceedings today.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6267 of 2014

Ms Rivers

Applicant

And

Mr Rivers

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The Application – Contravention filed 4 January 2017

1. For the purpose of determining the Application made by Mr Hackett on behalf of the Respondent to the Application for Contravention currently before the Court, it is, I think, uncontentious to proceed on the basis that:

   a)at a date before the settlement of the sale of the former matrimonial home, the Respondent acted to cause property previously held in the former matrimonial home to be moved and placed in a storage facility (accepted, I think) within 100 kilometres of the former matrimonial home:  and

   b)he did so of his own volition.

2. The question, really, for the determination of the Application in relation to the Application for Contravention, is whether these actions are capable of constituting a contravention of the Order made, by consent, on 27 September 2016.

3. “Contravention” is as prescribed by s 112AB of the Family Law Act1975 (Cth), which provides that a Respondent will be taken to have contravened an order under the Family Law Act 1975 (Cth) if, and only if - where that person is bound by the order - he or she intentionally failed to comply with the Order or made no reasonable attempt to comply with it.

4. There is no suggestion made by Counsel who appeared for the Respondent that the Respondent is not bound by the Order;  rather, the submission is that the evidence relied upon by the Applicant is not capable of establishing that the Respondent intentionally failed to comply with the terms of the 27 September 2016 Order in the manner asserted.

5. Reference to the Application for Contravention filed on 4 January 2017 establishes that two allegations of contravention are particularised there. Both rely upon, and assert a contravention of Order 14 of the Order made 27 September 2016.

6. That Order is in the following terms:

   On or before the settlement of the sale of the former matrimonial home, the husband will cause, at his cost, all the contents of that property, other than any jet skis or signed photograph of [former PM], to be delivered to an address within 100km of the former matrimonial home nominated by the wife.

7. There is no term in the Order made on 27 September 2016 that imposes any obligation upon the Respondent to retain those items of property left in the former matrimonial home by the Applicant (when she left that property in compliance with Order 4 of the Order) in those premises.  His obligation pursuant to the Order is that which is contained within Order 14, to which I have already referred.

8. There is no evidence before the Court to establish that the Applicant has nominated an address for delivery in compliance with the terms of Order 14, or that – following the nomination and provision of that address - the Respondent subsequently failed to deliver property there. 

9. I do not accept the thrust of the submissions made by Counsel for the Applicant insofar as they touched upon prospective noncompliance with the terms of the order.

10. Counsel for the Applicant also referred the Court to Order 26, which is in these terms:

    Save as is provided for in this order, each party shall otherwise retain all property currently in that party’s possession or control.

11. At the time the Order was made, it appears uncontentious that the Applicant was in possession or control of the contents of the former matrimonial home - because she was living there: so much can be clearly inferred from the terms of Order 4 of the Order, which provided that, on or before 15 November 2006, she vacate that property, leaving the furniture presently in it, save for those items particularised at Orders 4(a) to (f) inclusive. 

12. It seems to me, therefore, that, absent Order 4, the Respondent could not have refused any request made by the Applicant for the property held within the former matrimonial home.  However, by the terms of that Order - she clearly evidenced her agreement to leave furniture in the property - other than, as I have said, those items specified in Orders 4(a) to (f).

13. Whilst it is the case, as I have said, that there is no obligation imposed upon the Respondent, by the terms of the Order, to hold the property left by the Applicant in the former matrimonial home when she vacated that property until his compliance with the terms of Order 14 of the Order, whether or not there is any other form of action that may arguably arise is not, in my view, relevant to a determination of the Application currently before the Court - which, of course, asserts an intentional failure to comply with an order.

14. I am not persuaded that the evidence relied upon by the Applicant is capable of establishing that the Respondent contravened the Order when he moved property previously held in the former matrimonial home into storage. 

15. I arrive at that conclusion, as I have said, because there is no term in the Order to prevent the Respondent from doing so.  There is no term in the Order which, for example, would provide that the parties agreed that the items of property left in the former matrimonial home by the wife when she vacated the same would remain in that property pending further agreement or settlement of the sale of the home.

16. For those reasons, then, I dismiss the first count of asserted contravention, as particularised at page 2 of the Application for Contravention filed 4 January 2017.

17. Insofar as the second particularised count of contravention is concerned, reference, obviously, needs to again be made to Order 14 of the Order made by consent on 27 September 2016.  As I have said, that imposes upon the Respondent the obligation to cause, at his cost, the contents of the former matrimonial home (other than jet skis or signed photograph of the former PM) to be delivered to an address within 100 kilometres of the former matrimonial home nominated by the wife. 

18. It is clear there is no evidence before me of an address nominated by the wife to which the property was to be delivered by the Respondent in compliance with the terms of Order 14.

19. For that reason, I am not persuaded that the evidence relied upon by the Applicant is capable of constituting those matters required to be made out for a successful prosecution of an Application for Contravention pursuant to s 112AB of the Act and I dismiss the Application for Contravention insofar as it particularises the asserted contravention at page 3 of that Application.

20. The consequence, therefore, is that the Application for Contravention filed 4 January 2017 is dismissed.

The Application in a Case filed 4 January 2017

1. There being no agreement between the parties as to the terms of any additional order, I am not persuaded to make the order sought, as described to be by way of enforcement of the existing Orders made by consent on a final basis between the parties on 27 September 2016.

2. Again, reference needs to be made to Order 14 of that Order, which imposes upon the Respondent the obligation “on or before the settlement of the sale of the former matrimonial home” to cause at his cost all of the contents of the former matrimonial home, being that property referred to in that Order (other than the jet skis or the signed photograph of the former PM) to be delivered to an address within 100 kilometres of the former matrimonial home nominated by the wife.

3. I am not persuaded, on the evidence before me, given the absence until today of the address nominated by the wife, that, as at the time the Application for enforcement was filed, there were appropriate grounds for making an order for enforcement.

4. I note, also, for the record, as I think quite properly conceded by Counsel for the Applicant, that orders in terms of Clauses 2(b) and 3 were not pressed. 

5. Nothing I have said should, of course, obviate the obligation imposed upon the Respondent as a consequence of the terms of the Order made by consent on 27 September 2016.

6. For those very short reasons - which I consider appropriate and all that is necessary to dispose of the Application in the manner in which it has proceeded before me - I dismiss the Application in the Case filed 4 January 2017.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 January 2017.

Associate:      KV

Date:              23 January 2017