the applications. Those documents have been considered by the Tribunal.

• Application
• The notice
• Written submissions
• Emails
• Complaints
• Medical certificates
• Testimony
• Appendix to the notice
• Aerial photograph
• Telephone log
• Declarations

1. Oral evidence was also given by the landlord's agents, the tenant and the witnesses.

1. The Residential Tenancies Act 1995 (the Act) provides the legal basis for the application in sections 60, 209, 212, 322, 248 as follows:

60. Tenant must not cause nuisance or interference

(1) A tenant must not use the rented premises or permit their use in any manner that causes a nuisance.

(b) permit his or her visitors to use the rented premises or common areas; or

(c) otherwise permit the use of the rented premises-

in any manner that causes an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises.

209. Application for compensation or compliance order for breach of duty

(1) If a breach of duty notice is not complied with, the person who gave it may apply to the Tribunal for a compensation order or a compliance order.

(2) Subject to section 105 of the Fair Trading Act 1999, the Director may make an application under this section on behalf of the person who gave the notice without that person's consent.

(1) In the case of an application under section 209, if the Tribunal is satisfied that the person was entitled to give the notice and that it was not complied with it may make any or all of the following orders-

(a) the person in breach must remedy the breach as specified in the order;

(b) the person in breach must pay compensation as specified in the order;

(c) the person in breach must refrain from committing a similar breach.

(4) If an order is made against a tenant, resident or site tenant, the order must specify that if the order is not complied with, the tenant, resident or site tenant may be given a notice to vacate the rented premises, room, site or Part 4A site.

(1) A landlord may give a tenant a notice to vacate rented premises if the tenant fails to comply with an order of the Tribunal under section 212.

(2) The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.

(1) A landlord may apply to the Tribunal for a possession order for rented premises if the landlord has given the tenant a notice to vacate the premises (other than a notice under section 261 or section 263).

(2) A landlord may apply to the Tribunal for a possession order for rented premises if-

(a) the landlord has given the tenant a notice to vacate the premises under section 261 or section 263; and

(b) the tenant has not delivered up vacant possession of the premises.

(3) A landlord may apply to the Tribunal for a possession order for rented premises if-

(a) the tenant has given the landlord a notice of intention to vacate the premises; and

(b) the tenant has not delivered up vacant possession of the premises.

(1) The Tribunal must make a possession order requiring a tenant, resident or site tenant to vacate rented premises, a room and rooming house or a building, a site or a caravan on the day specified in the order if the Tribunal is satisfied-

(a) in the case of an application where notice to vacate has been given, that-

(i) the landlord, rooming house owner, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 289A or mortgagee was entitled to give the notice; and

(b) in the case of an application where a notice of intention to vacate has been given by a tenant, resident or site tenant, that the landlord, rooming house owner, caravan park owner, caravan owner or site owner acted reasonably by relying on the notice of intention to vacate; and

(c) that the landlord, rooming house owner, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 289A or mortgagee has complied with section 72 of the Victorian Civil and Administrative Tribunal Act 1998; and

(d) that the tenant, resident or site tenant is still in possession of the rented premises, room, building, site or caravan after the termination date specified in the notice to vacate or notice of intention to vacate.

(2) If an application for a possession order is made under section 322(3), 323(b), 323A, 324(3) or 324A(2)-

(a) the application must be heard within 14 days after the application is made; and

(b) the possession order must be made within 7 days of that hearing.

1. The Tribunal draws no inferences on the tenant's and her partner's preference to rely on a written declaration for their evidence. The declarations were sworn into evidence and the landlord permitted to ask questions about the declarations.
2. It is true that not all the tenant's neighbours attended the hearing to give evidence and two of the neighbours who attended during the making of the compliance order are absent from these proceedings. The Tribunal does not consider that their absence diminishes the strength of the evidence of the landlord's witnesses. The two neighbours have chosen, for whatever reason, not to give evidence, not just for the landlord, but for either party. The Tribunal could have been, but was not, asked to require them to attend and it can draw no inferences from their non-attendance.
3. The Tribunal accepts that the landlord engaged with the tenant early on, informing her about help available to her, attempting to contact her, organising mediation. The tenant's offer of ending any problem with the neighbours through voluntary relocation by way of a house swap is unpersuasive. The landlord has not consented to the swap at the time of the hearing. Neither does the Tribunal consider the argument that the rented premises require noise-proofing significant to the present application.
4. It was submitted that some of the evidence given to the Tribunal was hearsay. Section 98 of the Victorian Civil and Administrative Tribunal Act 1998, relieves the Tribunal of the rules of evidence. The Tribunal is required to act fairly and observe the rules of natural justice. To this end it has weighed all the evidence and made every endeavour to decide the matter according to the evidence and the law.
5. There have been varying accounts as to what has occurred since the making of the compliance order. The tenant alleged that her neighbours had colluded to remove her. The Tribunal is not persuaded that the witnesses who were neighbours of the tenant, had any hidden reason to want the tenant to leave the premises. Evidence was given that none of the witnesses had previously complained about any former tenant of the landlord. The Tribunal finds no reason for not regarding the applicant's witnesses as credible. The Tribunal is persuaded that there are inaccuracies in the declarations by Mr Hammond and the tenant. The declarations are directly contradicted by their oral evidence as to what happened during the tyre incident, and also by the landlord's logs of contact between the tenant and the landlord.
6. The tenant and her witness acknowledged in their evidence, to a certain extent, the behaviour complained of. They gave reasons for making noise, variously, due to the tenant's old car, the steep hill on which the premises were located, marital issues, children's exuberance, grief and stress.
7. The Tribunal does not regard the tenant's and her partner's behaviour to be trivial, neither was it occasional, or the normal noise expected of people living life generally. Their behaviour was not in the same vein as a one-off incident, such as a 21st party, where the occasion has passed and is unlikely to recur. The behaviour complained of included repeated yelling, slamming doors and arguing. It was claimed that the tenant or her partner approached neighbours and threatened them. It did not need to escalate to the point of illegality and neither did the neighbours have to lodge police reports or seek intervention orders for the behaviour to constitute a nuisance or interference with their peace. The mere fact that the tenant and her partner will be undergoing counselling is no assurance that the behaviour would not recur.
8. As to the validity of the compliance order on which the application was based, it was submitted that the tenant did not understand what she had agreed to. The Tribunal was given medical evidence that the tenant had been unfit to attend court on 6 September 2013, although she was present and agreed to participate on the day. The Tribunal was not given any evidence to corroborate the assertion that the tenant was incapable of consenting to the making of the compliance order of 8 January 2013, or that she did not know what she was consenting to. In the absence of any application to have the order set aside, it remains a valid order of the Tribunal.
9. The Tribunal is also not persuaded that there was any deficit in the notice, given that an annexure thereto described the incidents in sufficient detail to leave the tenant in no doubt as to the behaviour in question.
10. What is interference with the reasonable peace, comfort or privacy of an occupier of neighbouring premises is inherently subjective. The Tribunal finds, on the evidence, that the behaviour described after 8 January 2013 interfered with the reasonable peace of the neighbours, that it was not trivial and that it was recurrent.
11. It finds that the landlord was entitled to give the notice, that the tenant is still in possession and that in these circumstances section s.330(1) of the Act applies.
12. The tenant's representative mentioned the Charter briefly at the end of the hearing but provided little argument as to how and why it applied to these facts.
13. Section 13(a) of the Charter says relevantly:

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with:

1. The question for the Tribunal is whether there was an unlawful or arbitrary interference with the tenant's home and family, especially the children in her care. The other people whose rights under section 13 of the Charter are affected are the neighbours. They have a right to their privacy.
2. The landlord's representatives gave evidence that they engaged with the tenant in an effort to avoid having to apply for possession, including referring her to external organisations and arranging mediation with neighbours. The Tribunal considers the decision by the landlord to seek to regain possession was only made after it considered all other avenues had been exhausted. It did not act on a whim or react unreasonably to an inconsequential and transitory disturbance by the tenant. It did not act contrary to the objects of the Housing Act 1983. The Tribunal does not consider that the landlord acted arbitrarily in seeking the compliance order, giving the notice or making the application for possession.
3. The Residential Tenancies Act 1997 has provisions to enable landlords to regain possession of their premises, provided they do so in accordance with the Act and where the reasons for doing so are proven. The Tribunal considers that the compliance order, the notice and application were made lawfully, within the provisions of the Residential Tenancies Act 1997.
4. As the Tribunal is satisfied that the notice and the making of the possession application were neither unlawful nor arbitrary, section 13(a) of the Charter is not engaged.
5. Section 17(1) says:

Families are the fundamental group unit of society and are entitled to be protected by society and the State.

1. Section 17(2) of the Charter says:

Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

1. Section 7 of the Charter requires that the Tribunal consider whether a limit or intrusion on the right is justified. It states in part that:

(1)A human right my be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society...taking into account all relevant factors including -

(b)the importance of the purpose of the limitation; and

(d)the relationship between the limitation and its purpose; and

(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

1. While the family and in particular children are protected by the Charter, it does not mean that families or children can never be removed from public housing by legal means, where valid reasons to do so arise. It would otherwise bring about the absurd situation where public tenants, depending on their circumstances, might never be required to vacate, no matter what has arisen. The Tribunal finds that neither subsections 17(1) or (2) of the Charter are engaged in this case.
2. In light of the above findings, the Tribunal has determined to make a possession order in the terms indicated earlier.