Bonney v Thompson [2011] NTSC 81

 

PARTIES:                                         Bonney, Yvonne

 

                                                         v

 

                                                         Thompson, Keith

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA-AS 28 of 2011 (20937984)

 

DELIVERED:                                   7 October 2011

 

HEARING DATES:                           1 June 2011

 

JUDGMENT OF:                              KELLY J

 

APPEAL FROM:                               J NEILL SM

 

CATCHWORDS:

 

DOMESTIC AND FAMILY VIOLENCE ACT (NT) – Domestic violence order – appeal against refusal to extend order – failure to take into account evidence of previous violence – failure to take into account threats against family member – appeal allowed.

 

DOMESTIC AND FAMILY VIOLENCE ACT (NT) – CSJ DVO – Interim DVO - procedure

 

Domestic and Family Violence Act, s 4, s 5, s 18, s 19, s 19(2)(d), s 28, s 31, s 32, s 35, s 35(3), s 36, s 37, s 48, s 50, s 51, s 52, s 52A, s 53, s 54, s56, s 58, s 59, s 82, s 82(1), s 82(2), Part 2.4

 

Justices Act, s 163, s 177(2)

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     J Stirk

    Respondent:                                  J Tapueluelu

 

Solicitors:

    Appellant:                                     Central Australian Women’s Legal Service

    Respondent:                                  CAALAS

 

Judgment category classification:    B

Judgment ID Number:                       KEL 11020

Number of pages:                             18


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT ALICE SPRINGS

 

Bonney v Thompson [2011] NTSC 81

No. JA-AS 28 of 2011 (20937984)

 

 

                                                     BETWEEN:

 

                                                     YVONNE BONNEY

                                                         Appellant

 

                                                     AND:

 

                                                     KEITH THOMPSON

                                                         Respondent

 

CORAM:     KELLY J

 

REASONS FOR JUDGMENT

 

(Delivered 7 October 2011)

 

[1]       On 1 June 2011 I allowed this appeal against a decision of the Court of Summary Jurisdiction refusing an application by the appellant for an order extending a Domestic Violence Order (“DVO”) under the Domestic and Family Violence Act (“the Act”) and made the following consequential orders: 

The order of Mr Neill SM of 9 May 2011 is set aside.

An order in the same terms as the first three orders made by Bamber SM

on 4 April 2011 is made for a period of two years from today’s date.

The first three orders made by Bamber SM were in the following terms:

“The defendant is restrained from:

1.            harassing, threatening or verbally abusing the protected person directly or indirectly;

2.            assaulting or threatening to assault the protected person directly or indirectly;

3.            damaging or threatening to damage the property of the protected person directly or indirectly.”

[2]       I indicated that I would publish my reasons for allowing the appeal at a later date.  These are those reasons.  

[3]       After the decision to allow the appeal and make the above orders, and while in the process of writing these reasons, some additional matters came to my attention.  These are the subject of comment at the end of the reasons for decision.

Reasons for Decision

[4]       On 8 April 2010, on an application by the appellant, the Court of Summary Jurisdiction made a DVO against the defendant/respondent, Keith Thompson, the appellant’s ex-partner.  The DVO was made by consent and was to continue in force up to and including 7 April 2011.  The order was in the following terms:

“The defendant is restrained from:

1.            harassing, threatening or verbally abusing the protected person directly or indirectly;

2.            assaulting or threatening to assault the protected person directly or indirectly;

3.            damaging or threatening to damage the property of the protected person directly or indirectly;

4.            remaining at any place the protected person may be living, working, staying or visiting;

5.            approaching or contacting the protected person directly or indirectly, except in accordance with a parenting plan, family law orders, through a solicitor, mediator or Julie Wauchope or Donald Thompson in order to make arrangements for the children of the relationship namely, Kiraith Thompson and Shamus Thompson.”

[5]       On 29 March 2011 the appellant made application under s 48[1] of the Act to vary that DVO by extending the period the order would remain in force for a further two years.  The application was supported by an affidavit of the appellant sworn on 29 March 2011. 

[6]       On the first return date of that application, on 4 April 2011, the defendant had not been served with the application and on that date the Court made an interim order pursuant to s 52A of the Act and adjourned the application to 9 May 2011.  The notation made by the learned magistrate on the Court file was: “interim order in terms of current order to that date [ie 9 May 2011]”.

[7]       The next return date for the application to extend the order was 9 May 2011.  In the mean time, the defendant was “served” by the processes adopted by the clerk of the Court (which will be commented upon below) and the Court file was noted “served 13 April”.  

[8]       The defendant did not appear before the Court on 9 May 2011.  The learned magistrate dealing with the application on 9 May accepted that the defendant had been properly served and went on to consider the substantive application.  On that date, the Court of Summary Jurisdiction dismissed the application for an extension of the DVO, and the present proceeding is an appeal against that decision pursuant to s 163 of the Justices Act.

[9]       Section 163 provides that a party to proceedings before the Court of Summary Jurisdiction may appeal to the Supreme Court from an order of the Court of Summary Jurisdiction on a ground which involves (inter alia) an error or mistake on the part of the Justices whose decision is appealed against on a matter or question of fact alone, or a matter or a question of law alone or a matter or question of both fact and law.

[10]     It seems to me that the learned Magistrate did make an error on a question of law and, as a consequence, one of fact also. 

[11]     There are nine grounds of appeal.  They include:

Ground 5:  “The Learned Magistrate erred in finding that previous evidence of violence is insufficient to extend an order for a period of two years;” and

Ground 8:  “The Learned Magistrate erred in failing to have regard to statements made to other family members of the Appellant in considering the reasonable fear of the Appellant.”

 

Ground 5:  The Learned Magistrate erred in finding that previous evidence of violence is insufficient to extend an order for a period of two years

[12]     In considering the affidavit material the learned magistrate said:

“Now, that application will not be granted if it’s solely based on the prior history in respect of which orders were made.”

[13]     The solicitor for the appellant submitted to the learned magistrate:  “I think you have to run them together in relation to this”, referring to the whole of the affidavit material before the Court including evidence of past domestic violence which occurred before the date of the original DVO. 

[14]     In response to that, his Honour said:

“Well, I’ve already said I’m not going to make the orders based on the past history in respect of which orders have already been made.”

[15]     He also said:

“But Ms Taylor, what you’re saying is that when there is a history of a serious violent relationship as there has been in this matter ….. that is alone sufficient for the court to continue to extend these orders indefinitely.  I don’t agree that’s the law.”

[16]     That seems to be an indication by the learned magistrate that he was not prepared to take into account evidence of the past history of violence which formed the basis of the earlier DVO (and was before his Honour in the affidavit in support of the original application and also referred to more briefly in the further affidavit of 29/3/11) in considering whether to extend the order.  This indication is supported by the notation placed on the court file by the learned magistrate:

“I not satisfied on the material (affidavit of 29/3/11) that there is a basis to extend the orders.  Application 29/3/11 is dismissed.”

 

This appears to indicate that the learned magistrate did not take into account the affidavit in support of the original application which was relied upon by the appellant on the application to vary the DVO.  

[17]     The failure by the Court to take into account the evidence of the past violent conduct of the defendant which led to the making of the original DVO was a failure to take into account plainly relevant material and as such amounted to an error of law.  Under s 53 and s 19(2)(d), in considering whether to make (or vary) a DVO, the Court not only may, but must take into account the defendant’s previous conduct whether in relation to the protected person or someone else in deciding whether to make (or vary) a DVO.

[18]     If the thrust of the learned magistrate’s remarks is understood to mean that an application to extend a DVO could not, as a matter of law, be granted solely on evidence of past domestic violence occurring before the date of the original order, then it seems to me that that too would amount to an error of law.  The question for the Court is whether it is satisfied that there are reasonable grounds for the protected person to fear the commission of domestic violence[2] against her or him.

[19]     There may well be circumstances in which the Court could be so satisfied based solely on past conduct occurring before the making of an earlier order. (Though, equally, there may be cases in which the Court may not be so satisfied.)  To hold that an application to extend a DVO could never be granted solely on evidence of past domestic violence occurring before the date of the original order, would be tantamount to saying that a DVO can never be extended unless it has been breached.  There is no warrant in the Act for so limiting the discretion to extend a DVO.

[20]     In fact in this particular case there was additional evidence of more recent events which the learned magistrate could and should have taken into account in assessing whether he was satisfied that there were reasonable grounds for the appellant to fear the commission of domestic violence against her by the defendant.  That is the evidence referred to below in relation to Ground 8.

Ground 8: The Learned Magistrate erred in failing to have regard to statements made to other family members of the Appellant in considering the reasonable fear of the Appellant

 

[21]     The appellant swore an affidavit on 29 March 2011 in which she deposed to certain events which occurred after the making of the original order.  She said that the defendant had approached the appellant’s daughter, asked for money and threatened to hit her; further, he approached his and the appellant’s children, asked them about her whereabouts and told the children to tell her to take them back to Ampilatwatja.  He also told the children to tell the appellant that it was dangerous staying in town and that she was looking for trouble by living in town.  Not surprisingly, in light of the past history of extreme violence committed against her by the defendant (deposed to in her affidavits of 6 November 2009 and 29 March 2011), the appellant construed these remarks as a veiled threat against her. 

[22]     The proceedings before the learned magistrate were very brief, but there was an exchange between his Honour and counsel for the appellant in which his Honour appeared to take the view that the affidavit deposing to threats of violence made by the defendant against the appellant’s daughter was not relevant because it related to “a different person”, “a different adult, not in the company of the complainant, not living with the complainant”.  He also appeared to query how the statements to the children could be relevant – although he was interrupted by the then counsel for the appellant.

[23]     The failure to take into account the evidence of threats made by the defendant to the appellant’s daughter, it seems to me, was also an error – particularly in light of the provisions of s 19(2)(d), referred to above.  It was relevant to show that the defendant had not reformed, and was still prone to threats of violence (and possibly actual violence[3]) specifically against members of the appellant’s family.

[24]     Moreover, the evidence of the defendant’s remarks to the children ought not to have been considered in isolation and out of context as the learned magistrate seems to have done.  Taken in the context of the past history of domestic violence, her interpretation of the implied menace behind those comments seems to me to have been entirely reasonable.  Had the learned magistrate properly taken into account that prior history, the conclusion that the appellant had reasonable grounds to fear the commission of domestic violence against her by the defendant if an extension of the DVO was not granted, was almost inescapable. 

[25]     For the above reasons, I allowed the appeal and made the consequential orders set out in paragraph [1] above.

[26]     I did not extend orders 4 and 5 of the original DVO made on 8 April 2010, as counsel for the appellant on the appeal, Mr Stirk, quite properly drew to my attention the fact that, although the interim order made on 4 April 2011 by the learned magistrate was: “interim order in terms of current order to that date [ie 9 May 2011]”, the copy of that order prepared by the clerk of the Court and served on the defendant, set out only the first three of the five orders in “the current order”.  

[27]     It seems to me that the other grounds of appeal should be dismissed, and I will say something further about some of them in commenting on the additional matters, not raised on the appeal, that have since come to my attention.

Additional matters not raised in the appeal 

[28]     In preparing these reasons, it came to my attention that there were further defects in the procedure adopted by the clerk of the Court in effecting service on the defendant.  It also seemed to me that the procedure adopted by the Court of Summary Jurisdiction, on application by the appellant, was not the appropriate procedure under the Act in the circumstances.

[29]     The then counsel for the appellant, Ms Taylor, made the following remark to the learned magistrate on the hearing of the application to extend the DVO:

“I just can’t understand why the court made an interim order and now it’s dismissed.”

[30]     Further, she swore an affidavit for the purpose of this appeal in which she deposed: 

“9.     CAWLS always explains the court process to clients in relation to seeking a DVO.  Clients are advised that until service can be affected (sic) upon the defendant, CAWLS will seek an interim order on their behalf.  It is generally the clients’ understanding that when an interim DVO has been made, unless the defendant appears at Court to oppose the application, the interim DVO will be confirmed once service has been achieved.”

[31]     There seems to be a confusion in this paragraph (and in the procedure adopted by the clerk of the Court) between two concepts which are quite separate – a “CSJ DVO”[4], which should normally be made on notice[5], but which may be made in the absence of the defendant, and even in the absence of notice to the defendant under s 32 of the Act; and an interim DVO which may be made “at any time during the proceeding for a hearing of the application for a CSJ DVO” – again in the absence of the defendant or notice to the defendant, under s 35 of the Act.   These two procedures serve different purposes, and should enliven different procedures for service upon the defendant aimed at bringing to the defendant’s attention the orders which the applicant is seeking against him or her.

[32]     If the Court makes a CSJ DVO in the absence of notice to the defendant pursuant to s 32, then the provisions of ss 36, 37 and 82 apply: a copy of the order must be given to the parties by a clerk of the Court [s 36]; that copy of the order is taken to be a summons to the defendant to appear before the Court at the time and place shown for its return, to show cause why the DVO should not be confirmed by the Court [s 37]; the Court then holds a hearing at which time it may confirm the DVO (with or without variations), or revoke the DVO [s 82(1)].[6]  The Court must not confirm the DVO unless it is satisfied that the defendant has been given a copy of the DVO and the Court has considered any evidence before it and submissions by the parties [s 82(2)]. 

[33]     Because of the provisions of s 18 and s 19, before making a CSJ DVO under s 32 in the absence of notice to the defendant, the Court will already have considered a range of relevant matters (set out in s 19) and must have been satisfied “that there are reasonable grounds for the protected person to fear the commission of domestic violence against the person by the defendant” [s 18].  In those circumstances, an applicant may well have a reasonable expectation that, unless the defendant appears to oppose the confirmation of the DVO, it is likely to be confirmed – although of course the magistrate must still be satisfied of the requisite matters.

[34]     If a CSJ DVO is made under s 32 in the absence of notice to the defendant, the DVO will be for the full term which the Court considers would be appropriate for a final order, and otherwise in identical terms to the proposed final order – but be subject to revocation if not “confirmed” under s 82. 

[35]     An interim DVO, made pursuant to s 35 is a different kind of order.  It may be made at any time – before all of the evidence is in, or even before any of the evidence is in.[7]  Under normal circumstances, as in the case of an interim injunction, it would be expected that an interim DVO under s 35 would be made for a limited period only – for example until the resumed hearing of an application which has been adjourned for some reason.  It cannot be expected that the magistrate making an interim DVO will necessarily have been able to consider all of the matters set out in s 19 or be satisfied that a CSJ DVO should be made.  In those circumstances, there can be no legitimate expectation that an interim DVO will be “confirmed”. 

[36]     In fact the “confirmation” procedure under s 36, s 37 and s 82 (which was adopted by the clerk of the Court in this case) is not appropriate where an interim DVO has been made.  Rather, it would seem that the appropriate mechanism would be for the defendant to be served with the application for a DVO, for any further affidavits to be filed and served, and for the Court to proceed to a hearing on notice.[8]  At that hearing, the Court will consider the evidence and any submissions, take into account the matters set out in s 19, and apply the test in s 18, and then either make a CSJ DVO or dismiss the application and revoke the interim DVO.  [Section 35(3) sets out the times when the interim DVO will cease to be in force and the CSJ DVO (if made) will take effect.]    

[37]     In this case, it appears from the Form 1 (the form of statutory declaration of service upon a defendant approved by the Chief Magistrate under s 126 of the Act) that the application to vary the DVO by extending it for two years was never served on the defendant – only the interim order (wrongly reciting the first three orders only) and a summons “to show cause why the attached order should not be confirmed”.

[38]     In the case of an application to vary a DVO, s 52 provides that the Court may vary (or revoke) the DVO only if (inter alia) the persons who in the opinion of the Court have a direct interest in the outcome have had an opportunity to be heard on the matter.  However, an interim variation order may be made under s 52A pending the outcome of the application to vary the DVO.  As with an interim DVO made under s 35, one would normally expect an interim variation order under s 52A to be made for a specific, limited time, for example until the adjourned hearing date for an application for variation. 

[39]     Notwithstanding the provisions of s 52, there is provision in s 56 of the Act for a DVO to be varied on an application made without notice to an affected party if the Court is satisfied that it is not practicable to comply with s 52.  If an order is made without notice under s 56, the provisions of s 58 and 59 come into play, a copy of the notice must be given to the parties (and the Commissioner) [s 58], and the copy given to the defendant is taken to be a summons to show cause why the DVO should not be confirmed by the Court [s 59].  

[40]     In the case of an order under s 56 (as with a CSJ DVO under s 32 made without notice to the defendant), the variation order should not be for a limited (interim) duration, but in the form, and for the duration, which it is proposed the Court will eventually confirm under s 82.  This is because the copy of the order served on the defendant under s 58 serves as a summons to show cause why “the DVO” (ie the DVO a copy of which the defendant has been given) should not be confirmed: if the DVO made under s 56 is not the same as that proposed to be “confirmed”, the defendant will not have had notice of the application against him.

[41]     An applicant should not apply for an interim variation order under s 52A, unless an interim order is really required for some reason – for example an urgent order is required to restrain imminent threatened domestic violence before the applicant has time to prepare the necessary affidavits, or an adjournment of the application is necessary for some reason.

[42]     If an interim order is made for a limited time, then the clerk of the Court should serve the defendant with the application to vary the DVO, along with any supporting affidavits, and also a copy of the interim variation order (as required by s 54 of the Act) and notice of the adjourned hearing date.  In the case of an interim variation order, the clerk should not adopt the show cause procedure set out in ss 58 and 59 of the Act. 

[43]     If the applicant for a variation order (for example extending the time of an existing order) has had time to prepare the application properly, then the application should normally be made on notice to the defendant as required by s 52 or, if (for some reason) it is not practical to comply with s 52, the application should be made without notice to the defendant under s 56.  The clerk should then adopt the “show cause” provisions under s 58 and s 59.

[44]     It seems that in this case, an interim order was made under s 52A and then the clerk of the Court purported to serve on the defendant the documents required by ss 58 and 59 (appropriate for a variation order made under s 56, but not for an interim variation order under s 52A).  Moreover, the copy of the interim variation order (which was required to be served on the defendant by s 54 of the Act) was defective in that it did not recite all of the orders made and did not state the date when the interim order was to expire.  More importantly for present purposes, the defendant was not served with a copy of the application to vary the DVO (or the supporting affidavit).  The upshot of all that is that the defendant was not given proper notice of the nature of the application being made by the applicant before the hearing on 9 May 2011.  He was not informed that the applicant was applying to extend the currency of the existing five orders for a period of two years.

[45]     That means that the orders I made on 1 June 2011 may well have been beyond my power to make.

[46]     Section 52 of the Act provides that the Court may vary or revoke a DVO only if persons who, in the opinion of the Court, have a direct interest in the outcome have had an opportunity to be heard on the matter. 

[47]     It is clear that the defendant (the person against whom the DVO was granted and sought to be extended) had a direct interest in the application to extend the DVO. It is equally clear that, as he received no notice of the application, he did not have an opportunity to be heard on the matter at the hearing on 9 May 2011.

[48]     Section 177(2) of the Justices Act provides:

Upon the hearing of the appeal the Supreme Court may:

(c)     affirm, quash, or vary the … order, or adjudication appealed from, or substitute or make any …. order, or adjudication which ought to have been made in the first instance.

[49]     That seems to me to limit the power of this Court to quashing the order by the CSJ and substituting “any order which ought to have been made at first instance”.  By reason of s 52, the learned magistrate would have been precluded from making an order on 9 May 2011 varying the DVO by extending it (or any part of it) for two years.  Therefore, the consequential order I made on 1 June 2011 allowing the appeal and extending the first three orders of the original DVO by two years was not an order which ought to have been made at first instance.

[50]     The provisions of s 52 of the Act were not drawn to the attention of the learned magistrate at first instance and no objection was taken to his finding that “service” had been effected.  Likewise, on the hearing of the appeal, my attention was not drawn to the defects in the order prepared by the clerk of the Court (other than the fact that two of the five orders had been left out); the distinction between an interim variation order made under s 52A and an order made under s 56 which is subject to confirmation by the Court; the fact that the inappropriate procedure was adopted by the clerk of the Court in this case; or to the provisions of s 52.  These matters have come to my attention only on preparing these reasons.  On considering these matters, it seems to me that I have made an order which is not one that ought to have been made at first instance and one that, therefore, I had no power to make under s 177(2) of the Justices Act.    

[51]     Fortuitously, the defendant has not been denied natural justice in the process because he appeared by his legal representative at the hearing of the appeal (and was present in court himself).  His legal representative had previously been given copies of the appeal documents (which did set out the nature of the orders sought) by solicitors for the appellant.  The defendant/respondent was therefore aware that the appellant was seeking an order from this Court extending the DVO for two years and, so informed, gave instructions to his legal representative, which were communicated to the Court, that he did not wish to be heard on the matter.  

[52]     Nevertheless, I made an order which, on my reading of the Justices Act, I did not have the power to make.  It also seems to me that I cannot retract or revise that order as I am functus officio, and if the matter is to be corrected, it must be by the Court of Appeal.

[53]     I direct that:

(a)         the appellant provide a copy of these reasons to the solicitor who appeared (briefly) for the respondent/defendant on the hearing of the appeal; and

        either party have liberty to apply should they wish to make submissions on the question of whether I am functus officio, and (if not) whether the consequential orders I made on 1 June 2011 should be set aside.



[1]         s 48 sets out who may apply for a variation or revocation of a DVO, s 50 provides for the form of the application, s 51 provides for notice of the time and place of the application to be given to (inter alia) the parties by the clerk of the Court, and s 51 provides that the Court may make an order varying or revoking a DVO on application (under s 48) or on its own motion.

[2]         “Domestic violence” is defined in s 5 of the Act.

[3]         The affidavit deposed that “fortunately one of my nephews was also present and told Keith not to hit [the daughter].”

[4]         ie a Domestic Violence Order made under Part 2.4 of the Act, more particularly defined in ss 4 and 28.

[5]         Section 31.

[6]         The equivalent provisions in the case of an application such as the one in this case, for a variation of a DVO, are contained in s 56 [ex parte application – equivalent to s 32] followed by notice of the order [s 58 – equivalent to s 36] which acts as a summons to the defendant to show cause [s 59 – equivalent to s 37]. 

 

[7]         The equivalent section, providing for the making of an interim variation order is contained in s 52A.

 

[8]         See s 31 in the case of an application for a DVO, and s 51 in the case of an application for a variation of a DVO.