Franks v Franks

The proceedings concerned an application for an apprehended violence order (AVO) before the Local Court. The applicant alleged procedural unfairness, claiming they were unaware of the time and place of the hearing, and that an error occurred in the failure to grant an adjournment. The matter came before the Court of Appeal of New South Wales, constituted by Basten, Barrett and Hoeben JJA.

The primary legal issues before the Court of Appeal were whether the applicant had been afforded procedural fairness, specifically in relation to their awareness of the hearing and the refusal of an adjournment. Additionally, the Court considered whether an ancillary property recovery order made in the context of an AVO application fell within an expanded meaning of an AVO for the purposes of an appeal, and whether an application for an AVO constituted a criminal proceeding for the purposes of determining the availability of a right of appeal under the relevant legislation.

The Court reasoned that the applicant's solicitor had been aware of the hearing time and place and had sought, but not pressed, an adjournment. This indicated that the applicant, through their legal representative, had sufficient notice. Furthermore, the Court determined that an ancillary property recovery order did not constitute an AVO for the purposes of an appeal under section 84 of the *Crimes (Domestic and Personal Violence) Act 2007* (NSW). The Court also found that an application for an AVO is not a criminal proceeding in the relevant sense for the purposes of an appeal under sections 44 and 70 of the *Local Court Act 2007* (NSW).

The summons was dismissed.