Bonney v Thompson - [2011] NTSC 81

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)

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

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…

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.

Continue reading Bonney v Thompson

Details

AGLC: Bonney v Thompson [2011] NTSC 81
Case: [2011] NTSC 81
Decision Date: 07/10/2011

CaseChat Overview and Summary

Bonney v Thompson involved an appeal against the refusal to extend a domestic violence order (DVO). The applicant, Bonney, sought an extension of the DVO against the respondent, Thompson. The dispute centred on whether the Magistrate erred in failing to consider evidence of past violence and threats against family members in granting the extension. The appeal was heard in the Supreme Court of the Northern Territory. The court was required to determine whether the Magistrate's decision was legally sound, particularly whether the Magistrate erred in not considering evidence of past violence and threats made against family members. The court also had to assess if the Magistrate's reasoning for not extending the DVO was in accordance with the provisions of the Domestic and Family Violence Act (NT).

The court found that the Magistrate erred in not considering the evidence of past violence, which was relevant and necessary for the decision-making process under the Act. The court held that the Magistrate's indication that past history could not be the sole basis for extending the DVO, and the notation on the court file stating that there was no basis to extend the orders, demonstrated a failure to take into account material evidence. This failure amounted to an error of law. The court further found that the Magistrate did not consider statements made by the respondent to other family members, which also constituted an error. The court concluded that the Magistrate's approach to the application was legally flawed and the appeal was allowed.

The court ordered that the matter be remitted to the Magistrate for reconsideration in light of the errors identified. The Magistrate was instructed to properly consider the evidence of past violence and threats against family members in making a decision on the application for the extension of the DVO.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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;” andGround 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 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.” 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. 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.” 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.” 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. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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