Farthing v Phipps

CITATION:	Farthing v Phipps [2010] NSWDC 317
HEARING DATE(S):	18 October 2010
JUDGMENT DATE:	18 October 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Lakatos SC DCJ
DECISION:	Appeal allowed; Orders of Magistrate quashed
CATCHWORDS:	CRIMINAL LAW - Appeal against Apprehended Violence Order - MENTAL HEALTH - Utility of order made against mentally ill person - Capacity to understand terms of order
LEGISLATION CITED:	Crimes (Domestic and Personal Violence) Act 2007
CASES CITED:	R v Presser [1958] VR 45 John Fairfax Publications Pty Limited v The Ryde Local Court (2005) 62 NSWLR 512
PARTIES:	B Farthing K Phipps
FILE NUMBER(S):	2010/47914
COUNSEL:	M J Ierace SC P R Coady

JUDGMENT

1 HIS HONOUR: On 7 June 2010 the learned Local Court Magistrate, Mr Cheetham, made an order at the Manly Local Court pursuant to s 16 of the Crimes (Domestic and Personal Violence) Act 2007 directed towards the appellant Ms Phipps. The person in need of protection was Mr Farthing. The appellant has appealed to this Court against the making of the order.

2 I have read the short transcript of the Local Court hearing and also an extensive number of exhibits which were tendered before his Honour. There was a measure of common ground, in fact a great measure of common ground between the parties in the present appeal. Both Ms Phipps, the appellant, and Mr Farthing, the person in need of protection, are handicapped persons. Both of them in 2005 or thereabouts, were thrown together in a common accommodation situation, notwithstanding apparently some serious concerns, which were expressed by those persons who knew both of them, about the compatibility of the living arrangement. In that respect it is regrettable about how this turned out, because it appears that the parties were put together not through their own choice but by, no doubt, well meaning persons but apparently not well informed ones concerning potential problems which were to arise. Indeed, the problems did arise and they resulted in, if I can put it neutrally, the abuse and assault by Ms Phipps upon her housemate, Mr Farthing. That apparently was not a one off situation. It appears that there had been some considerable problems prior to that, all of which stem not from any malicious intent by either person involved it appears, but by a function of their psychological makeup.

3 The substance of the facts which were conceded are set out in Mr Farthing’s two affidavits, which were exhibits 1 and 2 before the Local Court. In the first affidavit of 16 March Mr Farthing says that in 2005 the Department of Ageing Disability and Homecare decided that a fellow client, namely Ms Phipps, of the House of No Steps Independent Living Program should move into his apartment. He says that she continued on a regular basis to verbally abuse and threaten him. Furthermore, he said that she often hit him and made threats including the use of a knife.

4 On the relevant day which gave rise to the events necessitating…