53No underlying documents, for example bank statements or loan agreements, were provided to verify these amounts in that affidavit.
54No details of her husband's financial position were provided in this affidavit, other than to state that, due to the downturn in her husband's business, "the debt in my name is my sole responsibility". It is therefore unclear how her husband services the $365 per fortnight business loan repayment, particularly in light of evidence contained in Ms Banfield's affidavit affirmed 19 June 2012, which indicates that the payment is drawn from a bank account in her name. It was also unclear how her husband would pay for the improvements he offered to "personally...finance" in his email to the council dated 24 April 2012 referred to above.
55In the affidavit of 19 June 2012, Ms Banfield provided attached bank and loan statements. She stated that she was responsible for a mortgage, a personal loan and half of the balance of a business loan, held jointly in her name and that of her husband, Mr Powell, with the Commonwealth Bank of Australia ("CBA"). But not all of the statements were current. For example, the business loan in her and her husband's name was dated as at 11 January 2012 and the "Smart Access" statement was dated as at 30 April 2012.
56In this affidavit Ms Banfield stated that she had sought to consolidate her financial commitments into a single loan or similar restructure, but had requests declined by the CBA, the National Australia Bank ("NAB") and Aussie Home Loans due to her "financial overcommitment". With the exception of the latter financial institution, no objective proof of these requests was provided. Ms Banfield stated that her requests to consolidate loans at the CBA and NAB were declined verbally. Attached to her affidavit was a letter accompanying an online application to Aussie Home Loans dated 22 November 2011. Ms Banfield deposed that this application was also declined, although no proof of this was attached. But according to the financial information provided by her, Ms Banfield does not currently hold any loans with Aussie Home Loans.
57In its current state, I do not find this evidence satisfactory and place limited weight on it in the absence of any objective corroborating material. I also note that there is no evidence of any attempt by Ms Banfield to access her superannuation fund, as she earlier indicated that she would attempt to do.
58Further financial information was provided by Ms Banfield in her affidavit affirmed 26 June 2012. In particular, she reaffirmed that her husband's business, a bookshop in Bungendore, has suffered significant financial difficulties and that no income is currently derived from it. She also stated that financial records for the bookshop from 2008 to 2010 were lost when the business moved premises and, in any event, there has not been a tax return filed since that period because it has not generated any income. She stated that, as a consequence of the bookshop's financial failure, "our family has had to survive solely on my income". It is for this reason that she has had insufficient funds to proceed with the construction of the dwelling on the property. Again, no information was provided as to her husband's financial affairs.
59Ms Banfield deposed that the land on which the shed is located is 40 ha and is located approximately 45 minutes drive from Canberra. The property was purchased in 2007 in order to build a dwelling on it for herself, her husband and her two children. Because of the downturn in her husband's business, she has had insufficient funds to proceed with the construction of the dwelling.
60Initially, Ms Banfield lived with her family in a caravan. Later, she and her family moved to the shed, which her husband had constructed.
61She stated that the council informed her that if she was to continue living in the shed, the installation of a 45,000L water tank and a compliant septic system was required. But, Ms Banfield stated, this would cost $7,000 and would be "grossly uneconomic" because the shed was a considerable distance from the proposed construction site of the dwelling and to install the infrastructure would result in a cost thrown away once the dwelling was built.
62Ms Banfield also attested that:
Demolishing the shed was never an option because we had nowhere else to live and could not afford rental accommodation.
63As an alternative, therefore, a development application was submitted for the construction of a temporary kit shed to be erected on the property near the proposed development site ("the temporary shed"). It was envisaged that this would be fitted with the required water supply and septic system, with the expectation that these items could be redirected to the actual dwelling at a later date.
64A deposit of $1,500 has been paid for the temporary shed and a development application, together with a request for temporary occupancy, was lodged with the council and was approved on 17 October 2011. But, Ms Banfield stated that, due to her ongoing financial impecuniosity, the temporary shed had not yet been erected. Ms Banfield gave oral evidence that to erect the temporary shed and render it habitable would cost approximately $23,000.
65Ms Banfield also tendered evidence of an assessment completed by both a builder and structural engineer of the shed that she and her family are currently residing in. First, a report from Mr K Hopkins of Molongol Building Services, was annexed to her affidavit. Mr Hopkins is a licensed builder in the ACT and NSW. It is not clear when the report was drafted. The report states as follows:
The building has been erected and in use for 4 ½ years and is considered structurally sound an [sic] suitable to be classed as a storage shed.
66Mr Adam Gillett, a senior design engineer with Jones Nicholson Pty Ltd Consulting Engineers, provided a structural engineering report on 30 April 2012. His report notes that the structure "has not been completed". It is Mr Gillett's analysis that:
... the structure will be adequate for use as a shed when completed ... it is recommended that this structure be completed as soon as possible to ensure structural adequacy. The following should be done as a minimum.
Ensure all internal timber posts are bolted to the slab, with an angle plate or similar, as has been done on one post.
Use galvanised steel straps to tie down the steel rafters at each of the internal timber posts ...
We can confirm that if the above items are rectified the structure will be adequate for its intended use as a shed/storage structure.
67It is abundantly clear that, contrary to the submissions of Ms Banfield, neither expert has endorsed the use of the shed as a structure suitable for human habitation. Any suggestion made by Ms Banfield to this effect is rejected.
68The cost of these two reports was, according to Ms Banfield's evidence, approximately $2,000.
69Ms Banfield stated that she had not previously lodged a development application in accordance with the consent orders because of conversations that her husband had had with the council indicating the council would in all likelihood refuse consent for the shed.
70An examination of the correspondence between Mr Powell and the council, contained in the affidavit of Mr Alan Bradbury, the solicitor for the council, sworn 22 May 2012, indicates that this characterisation of the council's conduct is inaccurate. At all times the council indicated that any such application would be considered on its merits. The council did, however, express its difficulty in determining any development application in light of the ongoing contempt proceedings. But, in any event, in the main this evidence post dates the time for compliance with the Court orders.
71Finally, Ms Banfield stated that she has a history of depression which has now manifested itself with anxiety related problems brought about by the stress of dealing with these proceedings and attempting to improve her financial position. Evidence to this effect was given by Dr Jill Brown in a short letter dated 21 June 2012, annexed to Ms Banfield's latest affidavit.
72This evidence is also unsatisfactory. First, it does not state Dr Brown's qualifications to give this evidence. Second, and more importantly, it does not state the causal nexus, if any, between her depression and the acts and omissions that have given rise to these contempt proceedings or Ms Banfield's inability to comply with the orders. Having said this, the Court accepts that she is currently suffering from depression, and that these proceedings are exacerbating her condition.
73The council relied on a surfeit of evidence (particularly in light of Ms Banfield's guilty plea), namely:
(a)three affidavits of Mr Alan Bradbury, the solicitor for the council (sworn 12 April, 22 and 24 May 2012), detailing the history of non-compliance by Ms Banfield with the orders;
(b)two affidavits of Ms Kylie Coe, the Coordinator of Development Services for the council (affirmed 8 March and 28 May 2012), concerning the lodging of a development application for the temporary shed and the lodging of a development application for the existing shed;
(c)one affidavit of Mr Peter Bascomb, the General Manager of the council (affirmed 10 April 2012), deposing to Ms Banfield's request made on 21 December 2011 for a further extension of time to comply with the orders, which was refused via email to her husband, Mr Powell, who had authority to act on her behalf at the time; and
(d)three affidavits of Mr Trevor Fuller, the Environmental Services Officer employed by the council (affirmed 22, 26 and 28 May 2012), which are relevantly discussed in further detail below.
74In his affidavit affirmed 22 May 2012, Mr Fuller stated that, first, there are a number of unapproved structures and dwellings in the council's local government area. And second, that his inquiries into the availability of alternative rental accommodation in the Bungendore and Queanbeyan areas revealed that there was a range of accommodation containing two or more bedrooms from $260 per week.
75In his affidavit affirmed 26 May 2012, Mr Fuller detailed his observations pursuant to various inspections of the property from 2008 to 2011. Photos of his inspections were annexed to his affidavit. In particular he observed during his inspection on 1 September 2010, that the shed still appeared to be under construction. He also observed a pipe protruding onto open ground that was connected to an inside toilet that had been installed. Inside the pipe he observed a brown substance that he believed to be raw effluent.
76These observations were responded to by Ms Banfield in an earlier affidavit affirmed by her on 19 April 2012. In addition to complaining about the "discriminatory, unfair and unprofessional conduct of the Respondent Council" and alleging various unspecified breaches of the Local Government Act 1993, Ms Banfield denied that the pipe observed by Mr Fuller was connected to the toilet or discharged effluent. Rather, the toilet was used as a composting facility and was emptied daily.
77In the absence of any analysis by a suitably qualified expert, I do not accept that what Mr Fuller observed was raw effluent and I accept the evidence of Ms Banfield in this regard.