TS v DT

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Crowe AJ
• Judgment Date: 25 October 2019
• Date: 25 October 2019
• Docket Number: File Number: SCA 24 of 2019

[2019] ACTSC 295

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Crowe AJ

File Number: SCA 24 of 2019

TS

(Appellant)

and

DT

(Respondent)

Representation:

Counsel

Self-represented (Appellant)

B Hamack (Respondent)

Cases Cited:

CM v TM and Anor [2011] ACTSC 53

CP v Director-General of Community Services Directorate and Ors [2017] ACTSC 394

Greenwood v Barlee [2018] ACTSC 46

Peverill v Crampton [2010] ACTSC 79

Legislation Cited:

Court Procedure Rules 2006 (ACT) rr 5081, 5100, 5130

Domestic Violence and Protection Orders Act 2001 (ACT) s 40

Evidence Act 2011 (ACT) ss 91, 92

Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 48

Family Violence Act 2016 (ACT) ss 6, 7, 13A, 14, 31, 34, 35 36, 37, 38, 39, 65, 86, 92, 93, 95, 97, 98

Magistrates Court Act 1930 (ACT) s 209, div 3.10.2

Texts Cited:

Australian Law Reform Commission, Evidence (Interim)(ALRC Report 26), Report No 26 (1985) vol 1 para 776

APPEAL — FAMILY VIOLENCE — Appealing of the decision of a Magistrate to make a final Family Violence Order in accordance with s 34 of the Family Violence Act 2016 (ACT) — whether the Magistrate failed to take proper account of interim orders when making the final orders — whether the Magistrate failed to consider the appellant's living arrangements before making the final orders — whether the Magistrate failed to give proper weight to the living arrangements of the appellant before making the final orders — whether the Magistrate possessed enough evidence of instances of family violence before making the final orders — appeal dismissed

CRIMINAL LAW — EVIDENCE — Whether evidence of previous convictions relied-upon by the Magistrate should have been excluded — whether an application for leave to appeal out of time is an “instituted” appeal or review — where the Court was on notice as to the existence of the application — application of ss 91 and 92 of the Evidence Act 2011 (ACT) — Magistrate erred in taking account of convictions — error did not lead to miscarriage of justice

Decision:

See [93]

Crowe AJ

1 This is an appeal against a final Family Violence Order ( FVO) which was made against the appellant ( TS). The respondent ( DT) was the “protected person” referred to in the order. The order was made by Chief Magistrate Walker ( Chief Magistrate) on 14 March 2019. The orders of the Chief Magistrate were as follows:

Having heard an application dated 16 October 2017 regarding the behaviour of [TS] (‘the respondent’) in relation to [DT], under section 34 of the Family Violence Act 2016 the Court orders that for a period of 2 years from 14 March 2019:

1. The respondent is prohibited from:

• (a) being on the premises of [the family home];

  • (i) except on one occasion in the company of a member of the Australian Federal Police for the purpose of collecting and returning personal belongings;

• (b) being within 100 metres of the protected person(s)

  • (i) except when the respondent is attending at the protected person's residence specified above in the company of the Australian Federal Police;

  • (ii) except at a Court or Tribunal proceeding;

  • (iii) except at a counselling or mediation session or restorative justice conference arranged with the protected person's consent;

• (c) contacting the protected person(s):

  • (i) except through a legal practitioner;

  • (ii) except at a counselling or mediation session or restorative justice conference arranged with the protected person's consent;

• (d) engaging in behaviour that constitutes family violence towards the protected person(s);

• (e) causing someone else to contact the protected person(s), except as permitted by this order;

• (f) causing someone else to do anything that is family violence in relation to the protected person(s)

THE COURT DIRECTS THAT:

2. The Registrar send a copy of this order to the ACT Registrar of Firearms.

[Personal particulars removed.]

2 The appellant represented himself at the hearing before me. Mr B Hamack appeared on behalf of the respondent.

3 The Notice of Appeal filed by the appellant is dated 11 April 2019. The grounds of appeal were:

• (1) 2 years from 14 March 2019 is unreasonable (sic) because through an interim order I was already not allowed (sic) to go to my house from October 2017. So when this order expires I would be totally 3 and a half years banned from my house (sic).

• (2) At the hearing the respondent admitted that her son has a town house.

• (3) The magistrate gave the order without seeing whether I have accommodation or not.

• (4) The respondent gave only one incident that happened 10 years ago where a musical instrument was broken (indiscernible)… where were the other incidents (sic) no pattern of violence previously.

4 Unfortunately, on the return date of the Notice of Appeal on 23 May 2019 the appellant was overseas. He “appeared” before the Deputy Registrar over a very poor telephone line. He had failed to provide a draft index of appeal papers as required by r 5130 of the Court Procedure Rules 2006 (ACT) ( CPR). As a result no index has been settled and indeed, no appeal papers have been prepared.

5 The matter came before the Deputy Registrar again on 6 June 2019. Again, the appellant appeared by telephone from Sri Lanka. The parties indicated that neither intended to apply to call further evidence. The respondent wished to adjourn the listing hearing to consider making an application to stay the appeal, having regard to criminal proceedings which were under way against the appellant (as to which see [14] – [17] below). The Deputy Registrar adjourned the hearing to 20 June 2019.

6 The respondent filed the Application in Proceeding seeking a stay of the proceedings on 20 June 2019. That Application was supported by copies of the transcript of the hearing before the Chief Magistrate on 21 February 2019, and that of her reasons for decision which were delivered on 14 March 2019. The Application was made returnable on 15 July 2019.

7 At the hearing on 20 June 2019, the Deputy Registrar granted leave for the respondent to serve the Application in Proceeding and supporting documents on the appellant by email. He also directed the appellant to appear in person or by legal representative at the hearing of the Application in Proceeding (the appellant had again appeared by telephone on this occasion).

8 On 15 July 2019, the Application for a stay of the appeal came before me. On that occasion Mr Hamack appeared for the respondent. The appellant did not appear in person, by telephone or by a lawyer. Mr Hamack confirmed service of the Application. I stood the matter over to the next hearing before the Deputy Registrar, which was on 25 July 2019.

9 The appellant appeared by telephone before the Deputy Registrar on that date. He listed the Application for hearing before me on 9 August 2019 and made a direction in similar terms to that made on 20 June 2019 as to the appearance or representation of the appellant.

10 On 9 August 2019, the appellant appeared by telephone from Sri Lanka and Mr Hamack again appeared for the respondent. Unfortunately the quality of the telephone line was very poor, making it extremely difficult to hear the appellant. After hearing from Mr Hamack, I determined that it was not appropriate in all the circumstances to order a stay. I stood the matter over with the intent of trying to arrange for a hearing time of the substantive appeal when the appellant could be available by land line from Sri Lanka, having regard to the time difference.

11 On that basis the matter was eventually listed for hearing at 1:00pm on 30 September 2019. The arrangements for a landline connection were not required as the appellant appeared in person.

History of Proceedings

12 It was a little difficult to follow precisely what had occurred in the Magistrates Court. Initially, when making his submissions on the appeal, the appellant said that he had understood the proceedings in the court below to relate only to the interim order which had been made against him on 16 October 2017. In relation to that matter, he had filed an Application in Proceeding on 9 January 2019 seeking a variation which would permit him to return to the jointly owned residential property. The appellant said that he understood that it was the extension of the interim order and his variation application which were the subject of the hearing on 21 February 2019. He tendered a copy of his Application in Proceeding to support this proposition.

13 On this point, Mr Hamack tendered a copy of the Application for a Family Violence Order, dated 16 October 2017. That document (which omits “Annexure A”) makes it reasonably plain that the respondent was seeking a final order with a duration of two years, as well as an interim order. That she was seeking a final order was confirmed by the respondent's representative in opening before the Chief Magistrate on 21 February 2019 (see T 3 l30–32).

14 The situation was complicated by the fact that the appellant had been charged with criminal offences arising from an altercation he had with the respondent and their son on 7 October 2017. Those charges were heard over various dates in 2018, culminating in findings of guilt in relation to three common assault charges and one damage to property charge. Two other charges were dismissed. The appellant was sentenced to a Good Behaviour Order for one year on 21 January 2019. He then filed an application for leave to appeal out of time in relation to the convictions. That leave was granted by McWilliam AsJ in this Court on 15 March 2019. The appeal was heard on 18 April 2019 and her Honour delivered her decision allowing the appeal on 8 May 2019.

15 The ground on which the appellant succeeded was that the Magistrate...