Crawford v Police - [2007] SASC 373

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CRAWFORD v POLICE
[2007] SASC 373
Judgment of The Honourable Justice Kelly
26 October 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against decision refusing to vary or revoke a domestic violence restraining order – whether the term of the restraining order is excessive – whether the Magistrate erred in refusing to revoke the order or in failing to insert sunset clause – whether Magistrate gave too little weight to the changed circumstances since the making of original order – whether Magistrate took irrelevant matters into account – consideration of Magistrates Court Rules 1992 Rule 103 – consideration of Domestic Violence Act 1994 section 12.
Held: Appeal dismissed – breach of requirement in Rule 103 does not render judgment void and of no effect – Magistrate was correct to apply principles set out in ss 12 (1a) and (3) in determining application – Magistrate considered relevant factors in making decision – Appellant was not entitled at the hearing to contest circumstances in which original order was made – Magistrate was correct to consider whether permission should be granted in terms sought in his application.
Domestic Violence Act 1994 (SA) s 6 s 12; Magistrates Court Rules 1992 (SA) r 103, referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1988) CLR 355, applied.

CRAWFORD v POLICE
[2007] SASC 373
Introduction

Mr Crawford, the appellant, appeals a decision of a magistrate on 26 June 2007 refusing to vary or revoke a domestic violence restraining order made on 2 February 2005. The appellant says that the term of the domestic violence restraining order is excessive and the magistrate was wrong in either refusing to revoke the order altogether or in failing to insert a sunset clause which would have the effect of the order lapsing on 31 December 2007.
Before identifying the issues which arise for consideration it is necessary to set out some of the background relevant to the determination of the appeal.
Background
The appellant and his former partner lived together for 15 years. They have three children. The parties separated in March 2004. Thereafter legal proceedings were commenced in both the Family Court and the District Court concerning the property of the relationship and the three children. Both actions are yet to be resolved.
On 15 November 2004 an interim restraining order against the appellant was granted in the Port Adelaide Magistrates Court. On 2 February 2005 a magistrate varied and confirmed the order by consent of both the appellant and his former partner. The order has been on foot since that date.
On 24 March 2006 the appellant filed an application to vary the restraining order by deleting clause 5, which dealt with the appellant’s contact with his children. On 22 September 2006 a magistrate, without objection, varied clause 5 to permit the appellant contact with his children by way of mobile phone calls, email and ordinary mail.
On 27 November 2006 the appellant amended his original application to vary the restraining order to seek revocation of the order in its entirety or alternatively the insertion of the sunset clause.
The trial on that application eventually proceeded before a magistrate (a different magistrate to the magistrate who varied the order on 22 September 2006) on 11 April 2007. At the trial the appellant was represented by legal counsel although at the hearing of this appeal he was unrepresented.
On 26 June 2007 the magistrate dismissed the application and published reasons.
Issues on Appeal
The appellant complains about a number of matters. In summary those complaints are:
That the magistrate erred in her interpretation of s 12 of the Domestic Violence Act 1994 and in applying s 12 to the facts.
That the magistrate gave too little weight to the change in the appellant’s circumstances since the making of the original order in November 2004.
That the magistrate erred in admitting evidence which was irrelevant and/or hearsay.
That the magistrate failed to deliver the judgment within two months in accordance with Rule 103 of the Magistrates Court Rules 1992 (SA).
The appellant sought an extension of time in which to file his notice of appeal. I note that the magistrate delivered the judgment on 26 June 2007 and the appellant filed the notice of appeal on 16 July 2007. The notice was filed in accordance with the time prescribed by the Supreme Court Rules and the appellant does not therefore need any extension of time within which to commence the appeal.
At the outset I deal with a complaint that the magistrate did not comply with Rule 103 of the Magistrates Court Rules by failing to deliver the judgment within 60 days from the date of it being reserved.
Rule 103 states:
3. Where the court has reserved its decision, it must give final judgment within two months of the date it was reserved.
Although the obligation to deliver a final judgment within two months is couched in apparently mandatory terms, the rules as a whole are silent as to the consequences of the failure to deliver a judgment within the times specified in them.
In my view the failure to deliver a judgment within the time prescribed by this rule does not have the effect of invalidating the judgment. It is obviously desirable that all judicial officers strive to comply with the object of the rule, namely to deliver judgments in a timely fashion. However, it is a regrettable fact that sometimes pressure of workloads and available resources lead to the delivery of judgments considerably outside the timeframes prescribed by the rules. In this case it was only two weeks but the fundamental principle remains the same.
The remarks of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at 388 and 389 are, in my opinion, apposite in reaching an understanding of the rules in this regard.
An act done in breach of a condition regulating exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.
The object of Rule 103 is to ensure as far as possible that courts deliver final judgment in a timely manner. However, to require strict compliance with the timeframe in all cases would result in great injustice, inconvenience and expense. For this reason alone I do not consider that a breach of the requirement in Rule 103 renders the judgment void and of no effect. In my view therefore there is no substance in this ground of appeal.
The Relevant Principles
Section 12 of the Domestic Violence Act 1994 (the Act) governs the circumstances in which an application may be made to vary or revoke a domestic violence restraining order.
The section states:
12.     Variation or revocation of domestic violence restraining order.
(1)The Court may vary or revoke a domestic violence restraining order on application –
(a)     by a member of the police force; or
(b)     by a person for whose benefit the order was made; or
(c)     by the defendant.
(1a)An application for variation or revocation of a domestic violence restraining order may only be made by the defendant with the permission of the Court and permission is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied.
(2)     A firearms order cannot be revoked unless the court is satisfied –
(a)     that the domestic violence restraining order should be revoked in its entirety; or
(b)     that the defendant has never been guilty of violent or intimidatory conduct and needs to have a firearm for purposes related to earning a livelihood.
(3)The Court must, before varying or revoking a domestic violence restraining order under this section –
(a)allow all parties a reasonable opportunity to be heard on the matter; and
(b) have regard to the same factors that the Court is required to have regard to in considering whether or not to make a domestic violence restraining order and in considering the terms of a domestic violence restraining order (see section 6).
A defendant may only make an application to vary or revoke a restraining order with the permission of the court. Permission will only be granted when the court is satisfied there has been substantial change in the relevant circumstances since the order was made or last varied.
Section 12(3) requires the court to have regard to the factors set out in s 6 of the Act which relevantly provides as follows:
6. Factors to be considered by the Court.
(1)     In considering whether or not to make a domestic violence restraining order and in considering the terms of a domestic violence restraining order, the Court must have regard to the following:
(a)     the need to ensure that family members are protected from domestic violence;
(b)     the welfare of any children affected, or likely to be affected, by the defendant’s conduct;
(c)     the accommodation needs of family members and any children of the defendant;
(ca)    any relevant family contact order of which the court has been informed;
(cb)   how the domestic violence restraining order would be likely to affect contact (in accordance with a relevant family contact order or otherwise) between –
(i)the person for whose benefit, or against whom, the order is sought; and
(ii)    any child of, or in the care of, either of those persons;
(d)     hardship that may be caused to the defendant or to any other person as a result of the making of the order;
(e)     if considering whether to direct the defendant to return property to a family member or to allow a family member to recover or have access to or make use of property – the income, assets and liabilities of the defendant and the family member;
(f)    any other legal proceedings between the defendant and a family member;
(g)     any other mater that, in the circumstances of the case, the Court considers relevant.
(2)The Court must consider the factors set out in subsection (1)(a) and (b) as being of primary importance.
The Appellant’s Submissions
The appellant firstly contended that as a magistrate had already varied the restraining order on 22 September 2006, he must have been satisfied at that time that there had been a substantial change in the relevant circumstances. Therefore, in the appellant’s submission, the magistrate in April 2007 ought to have proceeded on the basis that a substantial change in the relevant circumstances had already been proved to the satisfaction of the court.
In my view this argument is misconceived. The variation made on 22 September 2006 was not opposed by either party. It was in effect a consent order. In these circumstances the provisions of s 12(1a) did not apply and there was, for the purpose of the variation, no requirement on the court to make an inquiry in accordance with the provisions of that subsection.
On the other hand the subsequent application made by the appellant for a complete revocation of the order, or variation by the insertion of a sunset clause, was opposed. The hearing of that application was subject to the provisions of s 12 (1a) and accordingly the magistrate was required to satisfy herself of the matters set out in ss 12(1a) and (3).
In my respectful view the magistrate was correct to treat the application as one made under the provisions of s 12(1a) and to apply the principles set out in ss 12(1a) and (3) in deciding the application.
The appellant’s next complaint is that the magistrate gave too little weight to the changed circumstances since the making of the original order. He submitted that there were compelling changes in the relevant circumstances such that the magistrate should have been satisfied there had been a substantial change for the purpose of the section. He pointed to the fact that he had never been charged with nor convicted of a criminal offence and that there had been no breaches of the order since November 2004. He had in the meantime successfully completed an anger management course, formed a new relationship and consented to a number of orders in the Family Court concerning the children. He also submitted he was suffering under severe hardship by losing job opportunities as a result of the restraining order remaining in place.
These were all important factors to be taken into account. However, it cannot be overlooked that in determining the application the court was required by s 6 of the Act to consider the need to ensure that family members are protected from domestic violence and the welfare of the appellant’s children is of primary importance. The magistrate heard evidence from his former partner and two children. Each expressed fears about past violence, abuse and intimidation re-occurring if the restraining order was to be lifted.
It is plain from the magistrate’s reasons that she took all of these factors into account. In the end she decided that the most significant factor existing at the time when the original restraining order was made remained on foot – namely the unresolved bitter disputes giving rise to the litigation in the Family Court and the District Court. She observed that those disputes were still pending.
In my respectful view the magistrate’s reasons, when read in their entirety, disclose that what concerned her most was this lack of resolution of the primary dispute between the parties. That had been the genesis of the very bitter dispute between the appellant and his former partner which led to the making of the restraining order in the first place. I consider that this conclusion was open on the evidence before the magistrate
It was further submitted that the magistrate took into account irrelevant matters. The appellant pointed to the evidence of his former partner at pages 25 and 26 of the transcript. In this passage she explained to the court the basis of her belief that if the restraining order was lifted the appellant would continue to intimidate and harass her and her family. She referred to difficulties that she had had with selling a motor vehicle and to a conversation with the seller at the car yard. She asserted that the appellant had made it difficult for her to sell the car. She also referred to a letter sent by the appellant to her accountant threatening legal proceedings if she continued to operate the business accounts.
In my view the appellant’s complaint is misconceived. In the passages of evidence referred to, the appellant’s former partner was doing no more than explaining to the court the basis of her belief. In doing so she referred to communications which she had had with various third parties. On the basis of communications with those third parties she formed the belief that the appellant was continuing to harass and intimidate her despite the restraining order being in place. That evidence, which included evidence about events subsequent to the making of the restraining order, was relevant to the issue which the magistrate had to decide, namely whether the restraining order should be varied or revoked.
For these reasons I do not consider there is any substance in the complaint that the evidence was inadmissible and irrelevant.
I have read the transcript of the hearing before the magistrate. In my view the magistrate was correct to proceed on the basis that the appellant was not entitled at that hearing to contest the circumstances in which the original order was made. Her task was to consider whether permission should be granted to the appellant in the terms sought in his application. She could only grant permission if satisfied that there had been a substantial change in the relevant circumstances since the order was made. It is apparent from the transcript and the magistrate’s reasons that she carried out this task conscientiously and reached the conclusion that notwithstanding some positive indicators, no sufficient change had at that time occurred. In light of the pending proceedings it is quite understandable why the magistrate could have reached that view.
For these reasons this appeal should be dismissed. I note that this does not mean that the appellant cannot, at an appropriate time, make a fresh application when the relevant circumstances change.