AB v CD - [2015] ACTMC 9

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	AB v CD
Citation:	[2015] ACTMC 9
Hearing Date(s):	25 March 2015 & 12 June 2015
DecisionDate:	18 June 2015
Before:	Chief Magistrate Walker
Category:	Decision
Catchwords:	Application for a personal protection order – intellectual disability - examiner appointed - personal violence established – order will not provide a legally enforceable mechanism to prevent violent conduct – hardship to the Respondent - recommendation that the Respondent, the aggrieved person or another relevant person take part in a program of counselling, training, mediation, rehabilitation or assessment.
Legislation Cited:	Crimes Act1900 (ACT). Domestic Violence & Protection Orders Act 2008 (ACT) ss 6, 7, 14(1), 46, 47, 89. Domestic Violence and Protection Order Regulations 2009 (ACT) s 40. Human Rights Act 2004 (ACT) s 8.
Cases Cited:	Farthing v Phipps [2010] NSWDC 317.
Texts Cited:	Defendant Incapacity and AVOS Issue Paper, Intellectual Rights Service, December 2014
Parties:	AB by his Legal Guardian (Applicant) CD by his Legal Guardian (Respondent)
Representation:	Self-represented (Applicant)
Mr Werner of Pappas, J. – Attorney (Respondent)
File Number(s):	RO 141 of 2015

CHIEF MAGISTRATE WALKER:

On 26 February 2015, the Applicant, AB, made an application for a personal protection order pursuant to the Domestic Violence and Protection Orders Act 2008 (‘the Act’) against the Respondent, CD, his housemate. Both are middle-aged men who suffer with intellectual disability. Both had family members appearing as litigation guardians. Disability ACT, who manage the house and provide carers for its occupants, sought to appear as a party but were refused. They were invited, however, to provide information to assist the Court. The matter was listed for hearing on 25 March 2015. AB’s sister was his litigation guardian. She is also legally qualified. She was given leave to assist her brother to present his case. It became apparent when he started giving oral evidence that it was inappropriate for the matter to proceed formally in that way, not least of all because AB appeared to become quite anxious even in evidence in chief. The matter was adjourned to allow the Court to appoint an examiner pursuant to section 40 of the Domestic Violence and Protection Order Regulations 2009.

The Court arranged for individuals with expertise in advocating on behalf of people with intellectual disability to conduct recorded interviews with each the Applicant and Respondent which the parties had agreed would form part of the evidence in the case.

Being an unusual procedure, it took some time to make the appropriate arrangements and the matter was not relisted for hearing until 12 June 2015.

Evidence before the Court consisted of:

(a) An unsworn statement from AB (‘the Applicant’);

(b) Affidavits from the Applicant’s mother, initially the Applicant’s litigation guardian;

(c) An Affidavit from the Applicant’s father;

(d) An Affidavit from the Applicant’s brother, which was supplemented by oral evidence;

(e) An Affidavit from the Applicant’s sister who took over the responsibility as litigation guardian and also assisted the Applicant in the presentation of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] ACTMC 9
Decision Date: 18 June 2015

CaseChat Overview and Summary

In AB v CD, the matter was heard in the Supreme Court of Victoria. The applicant sought a personal protection order against the respondent, alleging that the respondent had engaged in personal violence against them. The respondent, who has an intellectual disability, disputed the applicant's claims. Given the respondent's intellectual disability, an examiner was appointed to provide a report to the court. The legal issues before the court were whether personal violence had occurred and, if so, whether a personal protection order would be appropriate in the circumstances.

The court found that the applicant had established that the respondent had engaged in personal violence. However, the court determined that a personal protection order would not provide a legally enforceable mechanism to prevent the respondent's violent conduct. The court also noted that the respondent's intellectual disability could result in hardship if a personal protection order were issued. Instead, the court recommended that the respondent, the aggrieved person, or another relevant person take part in a program of counselling, training, mediation, rehabilitation, or assessment. The court found that such programs would be more appropriate in addressing the respondent's violent conduct and promoting a peaceful resolution.

In light of these findings, the court declined to make a personal protection order. The court's decision was guided by the need to balance the applicant's safety and the respondent's intellectual disability, ultimately favouring an approach that promotes rehabilitation and addresses the underlying issues contributing to the respondent's violent conduct. The court's order reflected a commitment to ensuring that legal remedies are tailored to the specific circumstances of each case, taking into account the unique needs and vulnerabilities of the parties involved.

Orders