CL v GH; CL v EL; CL v ML [2025] ACTSC 317

Background:

4. EL is the former wife of the appellant. They were married from 2002 until 2022. They had three children. EL had a daughter from an earlier marriage. The daughter is ML. GH is ML’s husband.

5. On 8 May 2023 the Family Court made orders in the dispute between the appellant and EL. One of the orders (No 17) related to a residential unit in [xxxx]. The appellant was given sole use and occupation of the unit. The unit was at the time owned solely by the appellant. Order 17 states:

That the Wife shall provide the Husband with written confirmation on the next business day after she has vacated [the unit], and from that time, the Husband shall have the sole use and occupation of [the unit] (including the sole right to receive rental income if he chooses to do so).

6. On 29 January 2024 the appellant’s then solicitors wrote to ELs solicitors stating:

Accordingly, our client has moved out of [the unit]. Our client agrees to [the unit] (and other listed properties) being sold forthwith, and (a named real estate agent) be engaged as trustee for the sale. Please confirm your client’s position in this regard.

7. EL’s solicitors wrote back on 31 January 2024, relevantly stating:

With regard to the sale of [the unit], we propose in the first instance that our client be primarily responsible for the sale of the units rather than (the real estate agent) as this would represent a substantial saving to the parties. ….. Our client wishes to advise you that property cleaning, styling, and marketing photography will commence ASAP with a walk-through on Friday, 2 February 2024. Your client is advised of this date in light of ongoing FVO requirements regarding distance and the safety of our client.

8. The appellant’s solicitors did not accept or reject the proposal made in the letter of 31 January 2024. There was no response at all. Further, nothing occurred on 2 February 2024 as had been envisaged, perhaps consistent with EL’s solicitors not having received a response to their letter.

9. What did occur on 2 February 2024 was that there was a Family Court hearing during which the question of access, or anything else to do with the unit, were not ventilated. In particular no attempt was made to provide an exception to the scope of Order 17.

10. Notwithstanding the uncertainty arising from the just quoted correspondence, on 14 February 2024, during the currency of the above Family Court order, the respondents went to the unit and removed property from it.

11. EL was obviously concerned about her entitlement to enter the property on 14 February 2024 and so she contacted her lawyers (both solicitor and barrister) to ensure that she was able to go into the unit. They assured her that she was so entitled.

12. Having acted on the advice of her lawyers, EL cannot be criticised for entering the unit. As she was being assisted by her daughter and son-in-law, I think the same comment applies to them.

13. A different consideration, as will be seen below, arises from the actions that were taken once the trio entered the unit.

14. On 20 February 2020 the appellant complained to the police about the events of 14 February 2024.

15. The police contacted EL on the same day. She made a statement giving her version of the complained about events. Her lawyers, also on the same day, wrote to the appellant’s lawyers about the events.

16. On 23 February 2024 the appellant filed his application in the Magistrates Court seeking an order that the respondents were prohibited from being in the unit and various other orders, essentially relating to personal approach and contact.

17. Interim orders were made pending final orders.

18. In respect of the unit, the respondents defended the application on the basis that they understood they had permission to go to the unit in order to prepare it for sale.

19. The unit was sold on 25 November 2024.

20. The Magistrate gave an ex-tempore decision following the completion of the evidence and submissions.

Consideration:

21. In written submissions counsel for the appellant stated:

These proceedings concern the attendance by EL, ML and GH at the Unit on 14 February 2024, and their removal from that property of a substantial number of items belonging to the appellant.

22. The Magistrate concentrated on the same event. He stated:

A lot of the focus, really, of this matter has been the conduct of the respondents on 14 February, and whether that conduct was carried out in the context of family violence.

23. The Magistrate also gave his assessment of the definition of family violence within the Act. He said:

It is probably useful to, at this stage, refer to the definition of family violence within the Family Violence Act. It includes any of the following behaviour in relation to a family member of a person: physical violence or abuse, sexual violence or abuse, emotional or psychological abuse, economic abuse, threatening behaviour, coercion, or any other behaviour that controls or dominates the family member or causes the family member to fear for the safety or wellbeing of the family member or another person. It is clear from the application of [xxxx] that he believed that the entry of the three respondents into unit 502 caused him to fear for his safety or wellbeing.

24. His Honour then went on to identify what he regarded as the primary issue:

The question, really, I have to be satisfied is on the balance of probabilities, whilst he may have feared that, whether that was effectively what, in fact, happened.

25. His Honour was referring back to his previous paragraph where he had raised the appellant’s belief, or otherwise, that the entry by the respondents into the unit “caused him to fear for his safety or well-being.”

26. While his Honour was completely correct in his description of family violence, his Honour did not approach the existence of family violence in one particular aspect. This aspect is the subject of ground one in the appeal which relates to damage to property.

27. The making of a final order under the FVA is dictated by s 34(1):

34 Final orders—grounds for making (1) A court may, on application, make a final order if satisfied that— (a) the affected person has reasonable grounds to fear family violence by the respondent; or (b) the respondent has used family violence against the affected person.

28. The definition of family violence is contained in s 8. By subsection (2) family violence includes:

(b) damaging property.

29. Combining s 34 with s 8(2)(b) it can be seen that family violence may be constituted by a family member damaging the property of the other family member. This is not to say that every damage caused by one family member will entitle that person to a FVO. There could be many cases where the damage is so minor or perhaps accidental that an order would not be made. It is clear from s 34 that the court, in considering an application for a FVO, has a discretion as to whether the order should be made.

30. In this matter, his Honour has not given any consideration to the establishment of family violence in the manner just described. There was significant evidence of damage to property. For example:

(1) GH had removed a security doorbell, valued in the order of $500-$700, from the unit and disposed of it. (2) EL had regarded 12 boxes of documents as “rubbish”, in particular as “boxes of crap”. The documents were in fact subpoenaed documents associated with the family law case between the appellant and EL. According to the appellant’s sister, who gave evidence, although the boxes were returned they were in an “highly dishevelled” state such that their cost of preparation had been wasted. She stated: Someone had gone through those boxes, ripping pages out, turning them upside down, and rendering all of that legal material, 12 boxes, which I understand costs $9000. I understand that they were rendered useless.

31. The learned Magistrate, had he considered this material, could have come to a view that notwithstanding the damage, which he may or may not have accepted as having occurred, in the exercise of his discretion that a FVO ought not be made.

32. Unfortunately, because his Honour had not considered the s 34 and s 8 combination that I have outlined above, his Honour, in turn, did not consider the discretion. The respondents submitted that he had not done so because no submission was made to him that he should do so. I think there is merit in the submission although I do not think that merit is enough to justify my not interfering in the decision.

33. His Honour, as seen above, chose to describe the definition of family violence without reference to the ‘damage’ argument and there was enough put before him to raise the issue. Not only was there cross-examination about the damage, to both the doorbell and the 12 boxes but the submissions made on behalf of the appellant, for example at Transcript 78.27, made it clear that the destruction of property was central to the appellant’s contentions.

34. While his Honour did make a finding that the 12 boxes were not delt with any ‘malicious intent’ that is a finding that might have been relevant to the exercise of discretion which would only have arisen after a finding of family violence based on damage to property.

35. The result of the above is that I think the appeal must be allowed. The appellant submitted that I should make final orders including orders preventing EL from committing any act of family violence. I decline to do so. I think the matter must be returned to the Magistrates Court where the damage to property element of family violence can be properly examined as well as whether or not the discretion embedded in s 34 should be exercised in the appellant’s favour.

36. I note here that although the appeal will be in the appellant’s favour against all of the respondents, the applications for a FVO against ML and GH will not be remitted because it is accepted that they now live abroad and have no present intention of returning.

37. Because I was asked to give my decision before a hearing concerning a FVO in ELs favour occurs tomorrow morning I do not propose to examine in detail the other three grounds of appeal. I think it is sufficient for me to observe that none of them would have succeeded.

38. In relation to costs, although the appellant has succeeded, he has only done so because an important element of family violence was not considered below. In addition, I think, having regard to the actions of EL in confirming her entitlement to enter the property (rightly or wrongly) and to the overall background to the matter, there is a viable possibility that notwithstanding the existence of family violence, because of the damage to the property, that the discretion might be exercised not to make an order under s 34.

Orders:

39. I make the following orders:

40. The appeals in each of the three matters (SCA 45/2024, SCA 46/2024 and SCA 47/2024) are allowed.

41. The applications in matters SCA 45/2024 and SCA 47/2024 are dismissed.

42. Matter No SCA 46/2024 is remitted to the Magistrates Court to be decided according to law. 4. No order is made as to the costs of the appeal in all three matters.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim.

Associate: N Dwyer

Date: 22/07/2025