S and C
[2004] FMCAfam 631
•12 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & C | [2004] FMCAfam 631 |
| FAMILY LAW – Contravention of order of this court – contravention found proved – contravention relating to property. |
Family Law Rules 2004; r.21.01(c)
| Applicant: | G S |
| Respondent: | C D C |
| File No: | MLM 7591 of 2001 |
| Delivered on: | 12 July 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 12 July 2004 |
| Judgment of: | Bennett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr S. M. Fookes |
| Solicitors for the Applicant: | Victoria Legal Aid |
| The Respondent appearing in person |
ORDERS
The court having found that the husband has contravened paragraphs
1 and 5 of the Orders of 20 May 2002 without reasonable excuse THE COURT ORDERS:THAT the husband within 7 days of service of this order upon him entering into a Bond pursuant to Section 112AF of the Family Law Act in the sum of $1000 subject to the following condition that within 4 months he is to ensure that the following chattels be made available for collection by the wife from the storage facility, Access Self Storage:
(a)Antique Dressing Table
(b)One Rug (coffee table rug)
(c)Light Shade x4
(d)Prints
(e)Chesterfield Lounge and 2 Tub Chairs
(f)Coffee Table
(g)Large Mirror
(h)Microwave
(i)Clothes Racks
(j)Old Medical Journal
(k)Mother of pearl checked top brass pocket antique ashtray.
And that not less then 7 days before the date on which the chattels can be so collected the husband notify the wife through her solicitors Victoria Legal Aid Reference number 03F481109, and said storage facility in writing of the date on which the chattels will be made available and at the time provide the wife with means of access to the chattels (be that by key or written authorisation).
THAT within 7 days of the service of this Order upon him, the husband attend upon an officer of the Federal Magistrates Court and enter into a bond before such officer and the officer, before the husband enters into the bond, explain to the husband in language likely to be readily understood by him, the purpose and effect of requiring him to enter into the bond and the consequences that may follow if he fails to enter into the bond or having entered into the bond, he fails to act in accordance with it.
THAT the husband pay the wife’s costs in relation to this Application fixed in the sum of $500 within 9 months of the date of these orders.
THAT the Application for Contravention filed 11 May 2004 be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 7591 of 2001
| G S |
Applicant
and
| C D C |
Respondent
REASONS FOR JUDGMENT
This matter comes before me in relation to an application for contravention of an order. The Form 18 application is pursuant to r.21.01(c) of the Family Court Rules 2004 in that it does not relate to a breach of a parenting order or an order in relation to children.
The application was filed by the wife on 11 May 2004. It is supported by an affidavit sworn by her on 10 May 2004. The respondent, Mr C, filed an affidavit of some 11 paragraphs sworn on 2 July 2004.
Mr Fookes of counsel appears for the wife and Mr C appears on his own behalf.
The order in respect of which the contravention application is made was made by Phipps FM on 20 May 2002. It was an order by consent and it required that the husband return to the wife some 11 items enumerated and described as subparagraphs (a) to (k) of paragraph 1 of orders made on that day. Paragraph 5 of those orders provided that the husband pay the storage fee as soon as possible and anticipates to be one to three months.
Documents to which I was referred were:-
a)The wife’s Form 18 application filed 11 May 2004;
b)The wife’s affidavit sworn 10 May 2004;
c)The husband’s affidavit sworn 2 July 2004.
The contravention that the wife alleges is that at no time did the husband return the items to her as paragraph 1 provided that he do, paragraph 1 reading:
That the husband forthwith return to the wife the following items:
That is to be read in conjunction with paragraph 2 of the notations that the delivery of the items in storage was to take place at the storage facility. It is common ground that the items at the time the order was made were stored at Access Self-Storage in South Melbourne in unit number 4092 in the name of the husband who, for those purposes, was known as “S. T”.
The husband conceded in evidence before me that at the expiration of some three months following the orders, that is August 2002, he had endeavoured to pay amounts outstanding to the storage facility. Exhibit CDC1 to the husband’s affidavit discloses, as at 4 August 2002 the amount of $80.30 was remaining as outstanding storage fees.
The wife contends that it was not until all of those outstanding storage fees were paid that she would be entitled to collect the chattels from storage or take delivery of them. Indeed, when one looks at paragraph 1 to the notation to the orders, it is restated that paragraph 1 of the consent orders is subject to the husband paying storage fees, as described in paragraph 5, and they are the storage fees that he was required to pay as soon as possible.
The husband says that he has complied with the relevant provisions of the order. He gave evidence that by 11 August 2002, he had received a few telephone calls about delivering the goods to the wife. Furthermore, the wife had telephoned him and he had advised her that there was only about $80 owing in relation to the storage facility and that the wife said to him that she would assume responsibility for that debt, in particular he said that she said, "That's okay". Shortly thereafter, he handed the keys to the storage facility to the wife and he told some people at the storage facility that the wife could collect the goods.
The husband's further evidence is that by participating in the telephone call, delivering the keys and advising the storage facility people that he -
Believed I'd taken care of the facility. It wasn't until I received notices about the account going further into debt that I made further payments.
The delivery of the keys to the wife was put to the wife in cross‑examination. She denied that she had received the keys. She also denied participating in a telephone conversation in which she waived the husband's obligation to pay the amount owing to the storage facility.
It is common ground that from August 2002 to 11 January 2003 the husband made six further payments in relation to the storage facility and he says that he did so because he understood that the goods may well be sold if the storage fees were not paid and that he was unsure of his legal position but thought that he should "secure the goods" by which I mean save them from being sold.
If it was the case that the wife did waive the $80 owing on the storage facility and that the husband did hand actual control of the goods to the wife in August 2002, I would find that he had complied with his obligations under the order. The question in this case therefore turns upon whether the husband and the wife did as he alleges.
In this case I find that he did not do as he alleges.
It is a matter of whether or not I believe the husband or the wife. In this case where their evidence is at variance on this issue I accept the evidence of the wife. At times in giving his evidence the husband was hesitant and vague in some answers. More significantly I rely on the fact that the husband made several payments for the storage facility after the time (August 2002) at which he alleges he had passed control of the facility to the wife. I interpret his actions thus as being more consistent with not having passed control of the storage facility to the wife and believing that he was still under an obligation to maintain the chattels safely.
Therefore, I am satisfied as to the first count that the husband has not delivered the goods described in paragraphs 1(a) to (k) and I am also satisfied as to the second alleged contravention, that he has not paid the storage fees which were due.
I am not asked to make orders about the husband’s application filed on 2 July 2004 and I do not do so. I note that it is returnable on 24 August 2004 in the duty list.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Bennett FM
Associate: R.Campbell
Date: 14 July 2004
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