Armour v FAC

Case [2012] QMC 22

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Armour v FAC [2012] QMC 22

PARTIES:

CARLEEN JANET ARMOUR

(applicant)

v

FAC

(respondent )

FILE NO/S:

MAG68052/12(2)

DIVISION:

Magistrates Courts

PROCEEDING:

Application for a Protection Order under the Domestic and Family Violence Protection Act 2012

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

21 November 2012

DELIVERED AT:

Southport

HEARING DATE:

25 September 2012

MAGISTRATE:

Costanzo JJ

ORDER:

Application granted.

CATCHWORDS:

FAMILY LAW – DOMESTIC VIOLENCE ― Meaning of ‘necessary or desirable’ ― Paramount principles to be applied ― Other relevant considerations ― Holding perpetrators of domestic violence accountable ― Subornation of aggrieved to give evidence against her own interest― Risk of further domestic violence ― Need for protection

Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 37, s 57, s 197, s 198 considered

Corporations Act 2001 (Cth), s 1323 compared

AB v Magistrates' Court at Heidelberg [2011] VSC 61

ASIC v Mauer-Swisse Securities Ltd (2002) 20 ACLC 1,530; [2002] NSWSC 684

Australian Securities and Investments Commission v Arafura Equities Pty Ltd (2005) 56 ACSR 429; [2005] QSC 376

Australian Securities and Investments Commission (ASIC) v Carey (No 3) (2006) 232 ALR 577; (2006) 57 ACSR 307; (2006) 24 ACLC 581; [2006] FCA 433

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334

Brunsgard v Daire (1984) 36 SASR 391

Connell v National Companies & Securities Commission (1989) 2 WAR 121; (1989) 1 ACSR 193, (1990) 8 ACLC 70

Conway v Jerram, Magistrate and NSW State Coroner (2010) 78 NSWLR 371; [2010] NSWSC 371

Cornwell v Commissioner of Australian Federal Police (1990) 24 FCR 544; 94 ALR 495

Corporate Affairs Commission (NSW) v Walker (1987) 11 ACLR 884; (1987) 5 ACLC 991

Corporate Affairs Commission (NSW) v Prime Commodities Pty Ltd (1987) 11 ACLR 584 at 587; (1987) 5 ACLC 787

Corporate Affairs Commission (NSW) v Walker (1987) 11 ACLR 884; (1987) 5 ACLC 991

Corporate Affairs Commission v ASC Timber Pty Ltd (1992) 10 ACSR 525; (1992) 11 ACLC 141

Corporate Affairs Commission v Lone Star Exploration NL (No 2) (1988) 50 SASR 24; (1988) 14 ACLR 499; (1988) 6 ACLC 1108

Knight v FP Special Assets Ltd (1992) 174 CLR 178

MAN v MAM [2003] QDC 398

Nadler v Police (2008) 257 LSJS 315; (2008) 187 A Crim R 347; [2008] SASC 242

Rejfek v McElroy (1965) 112 CLR 517; [1966] ALR 270

COUNSEL:

Chetty (constable) for applicant

respondent on own behalf

SOLICITORS:

Police Prosecutions for the applicant

respondent on own behalf

The Application

  1. This is a police application under the Domestic and Family Violence Protection Act 2012, seeking a protection order against FAC (the respondent) for the protection of LKJ (the aggrieved) from domestic violence.

    The Legislation

  1. The Domestic and Family Violence Protection Act 2012 (the Act), ss 1–2, commenced on the date of assent. The remaining provisions commenced on 17 September 2012. The application was filed…

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Details
AGLC
Armour v FAC [2012] QMC 22
Case
[2012] QMC 22
Decision Date

CaseChat Overview and Summary

In the matter of Armour v FAC, the parties were involved in a dispute concerning domestic violence and the necessity and desirability of a protection order under the relevant family law provisions. The court was tasked with determining whether the risk of further domestic violence and the need for protection were sufficiently established to warrant the issuance of such an order.

The primary legal issues before the court were whether the court could consider other relevant matters beyond the statutory principles when deciding if a protection order was necessary or desirable, and what level of risk assessment was required to justify the issuance of a protection order. The court had to balance the paramount principles of protecting the aggrieved from domestic violence with other considerations, including the likelihood of further acts of domestic violence and the need for risk management.

The court held that while the statutory principles were to be considered, the court was not limited to these principles alone. Other relevant matters could also be taken into account if they were pertinent to the risk of domestic violence and the need for protection. The court found that the need for protection did not have to be significant or substantial, but sufficient to make the order necessary or desirable in all circumstances. The court also considered that the risk of further domestic violence must actually exist, and that the court engages in a risk assessment and management process when making such orders.

The court granted the application, finding that the need for protection was sufficiently established to warrant the issuance of a protection order. The judgment underscored the importance of a comprehensive risk assessment and the consideration of all relevant factors in determining the necessity and desirability of a protection order.

Orders

Orders of the court

Application granted.

Background

Background to the litigation

The risk of further domestic violence and the need for protection must actually exist. There is no stated necessity that the need or the risk be significant or substantial. The need for protection of an aggrieved must be sufficient, however, to make it necessary or desirable to make the order in all the circumstances. Discussion: What facts and circumstances can be taken into account? Clearly, in deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court must, under s 37(2)(a), consider the principles mentioned in section 4. However, the Act does not say that the court can not consider other matters. If they are relevant the court may also have regard to other matters. Under the ‘repealed Act’, section 20, the court was required to be satisfied that the respondent had committed an act of domestic violence against the aggrieved (and that a domestic relationship existed between the 2 persons) and that respondent was likely to commit an act of domestic violence again or, when the act of domestic violence was a threat, that the respondent was likely to carry out the threat. In relation to section 20 of the repealed Act, in MAN v MAM [2003] QDC 398 at [20] McGill DCJ held that: “‘Likely’ in my view does not in the statute mean more probable than not, but it must at least involve a real, not remote likelihood, something more probable than a mere chance or risk”. His honour went on to say: “The Magistrate ought to have been considering whether the evidence indicated that there was some real, significant likelihood that the respondent spouse would commit an act of domestic violence in the future”. The ‘likelihood’ test is no longer mandated but it may still, logically, be a relevant consideration. If a respondent is likely to commit some act of domestic violence against an aggrieved again in future then a court may find that the need to protect the aggrieved is sufficient to make it necessary or desirable to make the order in all the circumstances. Of course, under the new Act there may now be circumstances where, even in the absence of the degree of likelihood previously required, the making of a protection order may be found to be necessary and/or desirable to protect an aggrieved from domestic violence. To understand what may be considered relevant under section 37 of the Act, to determining if it is necessary or desirable to protect the aggrieved from domestic violence by making a protection order, it may be useful to see what other jurisdictions do. Comparison of State Laws ACT: Domestic Violence and Protection Orders Act 2008 (ACT) In the Australian Capital Territory, a protection order can be either a domestic violence order or a personal protection order. Under s 46 the court may make a final protection order if it is satisfied on the balance of probabilities that either:(1) the respondent has engaged in domestic violence; or(2) the respondent has engaged in personal violence towards the aggrieved person and may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

There is also an element of risk assessment and risk management in the judgment the court must make under section 1323. See Australian Securities and Investments Commission (ASIC) v Carey (No 3) (2006) 232 ALR 577; (2006) 57 ACSR 307; (2006) 24 ACLC 581; [2006] FCA 433; where French J at [26], [27], [30], [31], [33] to [35] held: [26] The circumstances in which the court may make orders under s 1323(1) are wide as indicated by the words “necessary or desirable … for the purpose of protecting the interests of a person …”. There is an element of risk assessment and risk management in the judgment the court is called on to make. It follows, and has been accepted, that there is no requirement on the part of ASIC to demonstrate a prima facie case of liability on the part of the relevant person or that the person’s assets have been or are about to be dissipated — Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 7 ACLC 467 at 476 (Powell J); Australian Securities and Investments Commission v Adler (2001) 38 ACSR 266; [2001] NSWSC 451 at [7] (Santow J). (my underlining)[27] The nature and duration of orders made under s 1323(1) can be fashioned by the court to reflect its assessment of any risk of dissipation of the assets of a person under investigation. (my underlining)[30] … For the reasons already canvassed the court, in making orders under s 1323, engages in a risk assessment and management process. The logic of the section assumes that the court will not always have before it evidence of the kind that would be necessary and admissible in proceedings to establish definitively the nature and extent of the assets of the persons under investigation and their liability to aggrieved persons. Nor will it necessarily have before it evidence of the kind that would establish definitively that dissipation of assets has occurred or is likely to occur or that flight is imminent.[31] The logic of s 1323 requires the court to be able to act on evidence which might not be admissible in civil or criminal proceedings leading to a definitive determination of the rights and liabilities of the parties. Hearsay evidence may therefore be received and acted upon, not as proof of the truth of its content but as evidence of the existence of a risk or possibility that gives rise to the necessity for or desirability of a protective order. … .[33] Accepting that there is a possibility that penalty proceedings may be taken against one or more of the defendants in this case that does not, in my opinion, render the present application an application for the imposition of a penalty or an application incidental to such proceeding. As already noted, evidence may be relied upon of a hearsay or opinion character in these proceedings which might not be admissible in penalty proceedings. … . [34] It was submitted for the second defendant that because ASIC seeks an order that the reasonable costs of the receivers and managers whose appointment it seeks should be payable from the collective assets of the defendants, that fact itself gives the present application the character of a penalty proceeding. In my opinion however, the submission is misconceived. An order for the payment of costs out of the collective assets of the defendants would not of itself amount to the imposition of a penalty. Although it may effectively deprive defendants of some of their property that imposition is not by way of punishment for any contravention of the law.[35] Objection was also taken to the admissibility against the second defendant of transcripts of examinations of other parties conducted under s 19 of the ASIC Act. …, the transcripts of the examinations conducted under s 19 can be relied upon as tending to establish the possibility that circumstances exist which give rise to the necessity or desirability of a protective order. What is in evidence here is the fact that the statement was made in the course of a s 19 examination. The fact that the statement was made, rather like the hearsay evidence referred to earlier, may support an inference that circumstances exist that make a protective order necessary or desirable. It is not necessary to rely upon such evidence for the purpose of establishing the truth of the statement made.” (my underlining)