N v N

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Mossop M
• Judgment Date: 25 February 2015
• Docket Number: File Number: SCA 50 of 2014
• Date: 25 February 2015

N

(Appellant)

and

N

(Respondent)

[2015] ACTSC 48

Before:

Mossop M

File Number: SCA 50 of 2014

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

PROCEDURE — Application to reopen appeal proceedings — whether there was a misapprehension of the facts or the relevant law — effect of the unavailability of a previously published authority — whether decision made on a ground which the person against whom the orders were made had no opportunity to argue — whether the possibility of revocation of the order warrants reopening — application dismissed

Cases Cited:

Autodesk v Dyason (No 2) (1993) 176 CLR 300

BL v SL and NM [2011] ACTSC 53

Castle Constructions Pty Limited v Sahab Holdings Pty Ltd (No 2) (2013) 87 ALJR 1159

Elliott v The Queen (2007) 234 CLR 38

House v The King (1936) 55 CLR 499

Nominal Defendant v Livaja [2011] NSWCA 121

Legislation Cited:

Domestic Violence and Protection Orders Act 2008 (ACT)

Supreme Court Act 1933 (ACT) s 9(2)(b)

Representation:

Counsel:

Mr J Lawton (Appellant)

Mr M Kukulies-Smith (Respondent)

Application

1 This appeal from a decision of the Magistrates Court granting a domestic violence order under the Domestic Violence and Protection Orders Act 2008 (ACT) ( the Act) was heard on 6 November 2014. I gave my decision on the appeal on 7 November 2014. The orders that I made were that the final order made by the Magistrates Court on 17 June 2014 was amended by deleting 31 December 2014 and inserting ‘4.15 pm on 7 November 2014’. The effect of that was to shorten the length of the final domestic violence order in place protecting the respondent from the appellant. The order made on the appeal has not been entered.

2 By application in proceeding dated 5 December 2014 the appellant seeks orders that the judgment given on 7 November 2014 be recalled and that the decision under appeal be set aside and the application for a final order be dismissed or, alternatively, that the final order be revoked. The relief sought is the same relief that was sought in the notice of appeal. The substance of the issue before me arising out of the present application is whether or not I should permit the hearing of the appeal to be reopened so as to allow the appellant to present further arguments.

The basis for the application

3 The appellant, in support of the application for leave to reopen the argument on the appeal, read the affidavit of Ronald Friesen. That affidavit annexed a transcript of the Court's reasons on 7 November 2014 and a copy of the decision of Refshauge J in BL v SL and NM [2011] ACTSC 53 ( BL).

4 The transcript of the argument on the appeal which occurred on 6 November 2014 was not put into evidence or otherwise available to the Court.

5 In the decision given on 7 November 2014 I concluded that the court below had exercised its discretion on the basis either of an erroneous finding of fact that there would be no loss of income arising from the matters given by the appellant in evidence or, if the Court did not make such a finding, then the Court erred in not having made a finding that there would be such a loss. The transcript of the reasons then continues:

In those circumstances, in my view, that is sufficient to demonstrate error, for the purposes of House v The King [ (1936) 55 CLR 499]. As a consequence it is necessary for me to re-exercise the discretion. Having regard to the fact that I am re-exercising the discretion at a time many months after the original order was made the factors relevant to the exercise of the discretion are influenced by the fact that there has, in fact, been an order in place since 18 June 2014 and that there is no evidence of any non-compliance with that order and hence no evidence of any ‘domestic violence’ in the statutory sense since 16 March 2014.

The position is that there was an assault on the respondent. That assault was a minor assault which occurred in circumstances which make it understandable, if not legally justifiable. There is clearly a significant degree of hostility on the part of the respondent towards the appellant. Any contact between the respondent and appellant would be unwelcome to the respondent and would potentially fall within the scope of conduct which is ‘harassing or offensive’ to the respondent. See s 13(1)(e) [of the Act].

There is no up to date evidence as to the state of compliance with the orders relating to the property settlement made by the Federal Circuit Court, although the likelihood is that those matters are substantially complete. There is no identifiable circumstance which would indicate a likelihood of the appellant making or coming into contact with the respondent. The terms of ss 6 and 7 of the Act, in particular s 7(1)(a), compel very great weight be given to ‘ensuring’ the aggrieved person is protected from domestic violence. That is said to be ‘the paramount consideration’.

The principle in s 7(2) that orders made under the Act must be ‘the least restrictive of the personal rights and liberties of the respondent’ is expressly qualified by the need to still give effect to s 7(1). Notwithstanding these strongly worded directives, s 47 contemplates that there is a balancing exercise to be undertaken. The balancing exercise is one that is heavily weighted towards the protection of the relevant person. In situations where there has been a single event prompting the application, which is in ordinary circumstances unlikely to be repeated, there must inevitably be an assessment as part of the balancing exercise of the extent of the risk of further domestic violence in the broadly defined statutory sense occurring in the future.

Having said that it is important to note that s 46 of the Act indicates that it is not necessary for the court to be satisfied in cases of ‘domestic violence’, as opposed to ‘personal violence’, that the person to be constrained ‘may engage’ in domestic violence during the time the order is proposed to operate, if the order is not made (cf s 46(1)(a) with s 46(1)(b).) This indicates a lower threshold for the making of orders in the case of applications for orders, based on ‘domestic violence’.

Because in a case like this what is involved is a decision dealing with relatively minor future risks, there is a significant degree of discretion as to what is necessary to give effect to the principles for the making of protection orders in s 7 to which I have referred. There will inevitably be a significant degree of speculation and impression in the process of assessing what is necessary to ‘ensure’ protection from domestic violence.

In the present case I am satisfied that, even having regard to the terms of ss 6 and 7 of the Act, the continuation of the present order is not necessary. It appears to me that any risk of ‘domestic violence’, as defined in s 13 is at a level which is so low that it is no longer necessary to ensure that the respondent is protected from domestic violence. In reaching that conclusion I have taken into account in particular the potential for there to be significant ongoing financial consequences for the appellant by reason of the maintenance of the order. I note, however, that no evidence is available that indicates that the appellant's security clearance has, in fact, been lost or downgraded.

I am not satisfied that I should interfere with his Honour's order so far as it relates to the past. That is because even though his Honour erred in either rejecting the appellant's evidence or failing to make adequate findings of fact about the existence or risk of financial harm that would arise from the continuation of the order, it was nevertheless reasonably open to conclude that an order should be made.

Those circumstances were:

• a) the provisions of the Act which were very heavily weighted towards the elimination of risk;

• b) the undoubted hostility and sensitivity of the respondent to any contact with the appellant;

• c) the fact that the events of 16 March 2014 involved a breach of the undertakings given by the appellant:

• d) the relatively short period since there was an active confrontation between the two; and

• e) the potential for further tension arising out of the working out of the property settlement between the appellant and the respondent's mother.

I do not see that any useful purpose would be served by setting aside the order ab initio. It is not a case where one of the jurisdictional requirements for the making of the order, such as the existence of ‘domestic violence’ was missing. Further, the evidence did not extend as far as indicating that the mere existence in the past of a domestic violence order which has now expired would cause additional harm to the appellant. In the event of the appeal being allowed the appellant did not seek costs. In my view it is appropriate to make no order as to costs.

The orders of the Court are:

• 1. The final order made on 17 June 2014 is amended by deleting ‘31 December 2014’ and inserting ‘4.15 pm on 7 November 2014’.

• 2. There is no order as to costs of the appeal.

6 The appellant puts forward three bases upon which he submits that the power to recall the judgment can be exercised.

7 The first is that the decision of the ACT Supreme Court in BL was not available to the Court at the time of the hearing. The parties were agreed that the decision was not available on the Supreme Court's website or upon searches of the usual publishers of the Court's decisions and that it only came to the attention of counsel for the appellant after the hearing. The appellant submitted that Refshauge J's consideration of whether a domestic violence order should be made in circumstances where the particular incident was a ‘one-off’ should be applied. Counsel for the appellant submitted that the reasons in BL were inconsistent with the approach adopted in the...