NSW Breach of consent orders, way to go.

[Treble]

Hi there. Recently got consent property orders. No children involved. Basically the orders said for me to pay a sum of money then on 14 days notice the OP move out. I paid but the trouble is that the OP skinned the place leaving a bare and dysfunctional ex matrimonial home. The property was mine originally (OP came later). Took white goods, equipment, linen, curtains, everything...all gone. Under the orders the OP entitled to retain only “personal property currently in their possession”
I’m going to seek some redress but don’t know what path to follow if I was to run the case myself. I have a good grounding in FL but am not qualified. Do I run with a Contravention Application or an application to vary and/or set aside the previous orders (S 79A)? Or both? If I seek damages how to I quantify them when I can’t identify, describe or value the things that were taken; nor are there any before/after valuations of real property that has been diminished in value because of removed fixtures?
Grateful for some guidance.

 

[Atticus]

Took white goods, equipment, linen, curtains, everything...all gone. Under the orders the OP entitled to retain only “personal property currently in their possession”

What proof do you have that it was your ex that took these goods?
Have you demanded them back?

If I seek damages how to I quantify them when I can’t identify, describe or value the things that were taken; nor are there any before/after valuations of real property that has been diminished in value because of removed fixtures?

They will not be valued at replacemnt cost only each articles second hand value.... If damage has been done to property in removing fixtures, a quote from licensed repairer is probably needed

 

[Treble]

Hi. I saw my ex loading the truck and reported to the police but they told me it was a civil matter and wouldn’t get involved. I wrote immediately after, saying that the court order had been breached and indicated further action if we couldn’t settle the dispute. I had no reply. There is some evidence available that items that were removed have been sold. Seems that enforcement order would not be satisfactory.
there was no damage from removal of fixtures.
I did read one case where in similar circumstances the aggrieved party received an award of damages.maybe that’s the way to go.

 

[Atticus]

Possibly going to be a long process, so you have to weigh up if the value of goods taken is ultimately going to be worth the cost & effort, remembering the court will only consider the second hand value of the goods removed.... You'll need some proof that the other party has taken them, & some estimate of value to include in supporting affidavit...

In the FCCoA you will need to file an initiating application for an enforcement order (contravention is more for a breach of parenting orders). You will also need to include the date & time of the removal of goods contrary to order, what steps you have taken to have goods returned, what you want the court to do & any other issues that may be relevant...

If the other party is employed, you may be able to seek a third party debt notice to the employer to garnish wages for whatever sum the court decides is appropriate....

Of course you want to avoid court & the hassles, so fingers crossed once the other party is served with the initiating application you can sort it out via mediation, agree on a sum to cover items taken & that will be the end of the matter

 

[Treble]

Thanks for you interest and comments.
I had shied away from enforcement as I figured its remedies are no longer useful because my reduced ability to identify/qualify/quantify through loss of control and of course evidence that some items have been sold. The evidence will clearly stack up that a breach of obligations occurred by going way beyond what was contemplated by the limitations of “personal property...in possession”. This I thought that s 79A(1)(c) was the best approach and leave it open for the court (if it gets that far) to find a breach occurred and order damages.

 

[Atticus]

Either way, you're probably going to need some sort of actual evidence that items were removed, by that person, & a value..... going the variation angle may still get it before the court, (ultimate aim is to serve papers & compel mediation & settle out of court) but you will probably need more convincing evidence in your supporting affidavit to have the application accepted.... Circumstances for a variation application may be a higher bar for acceptance.... Whatever application is going to be easiest to get so papers can be served is the best approach IMO

 

[Rod]

Go contravention and damages.

 

[Atticus]

If you're going to go the contravention application route, then you will need to file >>>> Application - Contravention pursuant to Part XIIIA of the Family Law Act ..... See Item 3, table 21.1 below

FAMILY LAW RULES 2004 - RULE 21.02 How to apply for an order

That won't give you the option of Third Party Debt notice though which an enforcement > Variation would... But as I said, ultimate aim is to compel the other party into action by serving papers & have them return items taken or compensate, out of court, or at least at conciliation conference.... Of course if they deny deny, then you will need some proof, not merely your word.