G v C
[2020] SASC 134
•16 July 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
G v C
[2020] SASC 134
Judgment of The Honourable Justice Peek
16 July 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - JUDGE CLEARLY WRONG
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application to revoke or vary an Intervention Order.
On 5 June 2016, an interim intervention order was made against the applicant, G pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act). The protected persons were originally his ex-wife, C and their daughter, T. On 28 July 2016, T was deleted from the interim order. On 10 November 2016, the interim order was confirmed as a Final Order (the final order) with C as the sole protected person. Following a number of developments, G made an application to the Magistrates Court to vary/revoke the final order (the variation/revocation application). A Magistrate dismissed that application and G now appeals to this Court.
The Grounds of appeal may be distilled to the contentions that the Magistrate erred in his general approach to a variation/revocation application; in taking too narrow an approach to the range of circumstances that may be taken into account in such proceedings; and in his analysis of the concept of a “substantial change in the relevant circumstances” pursuant to s 26(4)(b) of the Act.
Held, allowing the appeal:
1. The Magistrate misdirected himself concerning the nature of the discretion to vary or revoke the final order. Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 15, 26 referred. Rana v Gregurev [2015] SASC 37 discussed.
2. The Magistrate erred in his approach to the variation/revocation application. Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 8, 11, 12, 18, 20, 26 referred. Cook v Galloway (2015) 124 SASR 444; Rana v Gregurev [2015] SASC 37 discussed.
3. The appellant is entitled to a variation of the final order. Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 12, 26 referred. Police v Siaosi (2014) 120 SASR 308; Proudman v Dayman (1941) 67 CLR 536 discussed; Cook v Galloway (2015) 124 SASR 444 applied.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 8, 11, 12, 15, 18, 20, 23, 26; Family Law Act 1975 (Cth), referred to.
Cook v Galloway (2015) 124 SASR 444, applied.
Rana v Gregurev [2015] SASC 37; Cook v Galloway (2015) 124 SASR 444; Police v Siaosi (2014) 120 SASR 308; Proudman v Dayman (1941) 67 CLR 536, discussed.
G v C
[2020] SASC 134Magistrates Appeal
PEEK J: Application to revoke or vary an Intervention Order.
On 15 June 2016, an interim intervention order (the interim order) was made against the applicant, Mr G (G) pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act). The protected persons were originally his ex-wife, Ms C (C) and their daughter, T.[1] On 28 July 2016, T was deleted from the interim order. On 10 November 2016, the interim order was confirmed as a Final Order (the final order) with C as the sole protected person. Following a number of further developments, G made an application to the Magistrates Court to vary/revoke the final order (the variation/revocation application). A Magistrate dismissed that application and G now appeals to this Court.
[1] The letters G and C are substituted for the names of the parties to lessen the risk of identification of their young daughter T.
The background facts
G was born on 11 March 1978 and C was born on 15 September 1982. In May 2007, G and C (the parties) commenced to live at Clarence Gardens (the Clarence Gardens matrimonial home). On 8 November 2009, their daughter T was born.
The marriage became troubled and C came to make allegations against G of improper behaviour towards herself but, more importantly, allegations of three occasions of sexual abuse of T (the T allegations). The first was alleged to have occurred in June 2014; the second on 5 January 2015; and the third on 20 February 2016.
On 7 March 2016, the parties separated. G moved out of the Clarence Gardens matrimonial home (where C remained) and commenced to live at Millswood.
On 18 March 2016, police interviewed G concerning the T allegations and G adamantly denied them. On 15 June 2016, the interim order was made with C and T being the protected persons.
On 6 July 2016, an alleged “breach” of the interim order occurred when each of the parties happened to attend at a shopping centre at the same time. The affidavit of G, sworn on 17 September 2019, refers to this matter thus: “I was served with a Breach of the Intervention Order on 9 July 2016 and I entered a plea of guilty and entered into a $1,000 one year good behaviour bond. That offence related to me coming into contact with the mother at a shopping centre which was entirely accidental.”
On 28 July 2016, T was removed as a protected person from the interim order, and on 10 November 2016 the final order was confirmed. G denied all the alleged grounds, but consented to the confirmation pursuant to s 23(3) of the Act.[2]
[2] Section 23(3) provides: “If a defendant disputes some or all of the grounds on which a final intervention order is sought but consents to the order, the Court may confirm the interim intervention order issued against the defendant as a final intervention order, or issue a final intervention order in substitution for the interim intervention order issued against the defendant, without receiving any further submissions or evidence as to the grounds”.
The terms of the final order relevant to the present appeal were terms three and five which provided as follows:[3]
3. The defendant must not be within 50 metres of the protected person(s).
…
5. The defendant must not enter or remain within 50 metres of the boundary of the place of residence or place of employment of the protected person(s).
[3] The terms of the final order are to be found at the end of this judgment. (Those terms for the future are to be varied, with deletions indicated by strike through and additions indicated by bold type.)
The trial before Family Court Justice Berman
On 27 September 2017, G brought an application in the Family Court seeking settlement of property orders and parenting orders concerning T. He deposed that he sought custody of T (with some access for C) because he “was concerned about the mother’s mental health status and the fact that she continued to make allegations against me regarding the child T which I vigorously denied”.[4] The property orders were made by consent on 23 November 2017 but the matter of custody was disputed by C. The trial concerning parenting orders proceeded over nine days before Berman J, from 24 November 2017 to 6 December 2017 when judgment was reserved.[5]
[4] Affidavit of G sworn 17 September 2019.
[5] The proceedings were not conducted pursuant to s 69ZN of the Family Law Act 1975 (Cth) and consequently the rules of evidence applied.
On 23 February 2018, Berman J delivered a long and detailed judgment. It makes clear that the allegations of sexual abuse of T were made at a time when C was suffering from severe mental problems. In 2010, C was hospitalised following her suffering delusions that she was the target of a strange poisoning plot and/or was in danger from “bikies”. The Judge observed:
90. The mother agreed under cross examination that in 2010 she had previously accused the father of executing a plan to poison her via the air-conditioning ducts of her car. She had no direct evidence but rather, believed what she had been told by others. Whilst there was no direct evidence and no effort was made by her to ascertain whether the alleged method of poisoning was possible, she nonetheless considered that the threat was real.
91. In July 2010 the mother was hospitalised with the catalyst for her admission being her belief that she was the target of a poisoning plot.
92. She agrees the accuracy of the following presenting complaint to the hospital consequent to her admission on 25 July 2010:-
Paranoid behaviour. Been telling sister and mother that bikies are after her. Poisoning gas, etcetera.
93. Under cross examination, the mother conceded that there was no evidence at all that the father was attempting to harm her and there was a clear inconsistency in her subsequent allegation that the father was attempting to poison her as distinct from the history given to the hospital that she was under threat by bikies.
On 6 January 2015 (the day after the alleged date of the second incident of sexual abuse), C’s mother contacted the mental health crisis intervention to assess C’s mental well-being, and C was taken to Flinders Medical Centre for psychological treatment. Berman J observed (as to this second alleged incident):
86. The relevant child protection authority undertook a timely and expeditious investigation of the mother’s allegation. She accepted that as early as the afternoon of 6 January 2015 the attitude of the department was that no abuse was confirmed for the following reasons:-
Whilst the initial information is concer[n]ing, there are concerns about the mother’s mental health and therefore this has been taken into consideration when making this assessment. However, if further information is received assessment may need to be reassessed.
And
While information is concerning, it appears the mother is presenting as delusional. The mother was asking leading questions of the child and the notifier did not observe any bruising to the child, as the mother claimed. Mother has mental health issues that are interfering with her functioning, as evidenced by her requiring psychiatric assessment and a subsequent referral back to ACIS.
Berman J’s conclusions concerning the allegations of sexual abuse were as follows. As to the first allegation (June 2014), his Honour stated:
103. The mother’s evidence was redolent with inconsistency, supposition and unlikely coincidence. When faced with apparent and irreconcilable inconsistencies, the mother was unable to accept that her allegations were unfounded.
As to the second allegation (5 January 2015), his Honour stated:
88. The mother’s evidence was entirely unconvincing and I am unable to give it any weight.
As to the third allegation (20 February 2016), his Honour stated:
169. … The evidence supports the finding that the purported incident on 20 February 2016 did not occur. …
175. The unchallenged evidence of the paternal grandmother provides significant corroboration for the father’s version of events. …
178. The mother agrees that the allegations made by her in the text message to the paternal grandmother were untruthful and without substance.
Berman J concluded generally as to the sexual allegations:
317. Whilst the allegations made by the mother of the father perpetrating sexual abuse and sexual exploitation to the child and family violence towards the mother are wide ranging, she has failed to provide even the most rudimentary basis to support her assertions or even such that a global consideration would suggest that the father presents as a physical risk to the child.
318. The mother’s allegations do not amount to a disclosure and are without substantiation.
…
321. I have found that not only was the mother’s evidence exaggerated in respect of the specific incidents of sexual abuse and exploitation as alleged, but that they are entirely without substance. I specifically find that the alleged incident on 20 January [sic February] 2016 could not have occurred.
…
323. Whilst I am left in no doubt that the mother believes the allegations, her evidence was unreliable and entirely unimpressive. There were a number of occasions when her evidence was clearly exaggerated and when faced with the reality that the particular allegations were either improbable or impossible, her concession that it was not in the child’s interests for her to believe that which has not occurred, was unconvincing.
…
328. It seems to me that in circumstances where the Court does not make a finding of unacceptable risk, all reasonable efforts should be made to explore and promote the clear benefits to this child of having a relationship with the father. To do otherwise would relegate this child forever to the mistaken belief that her father violated her trust and abrogated his responsibility as a parent.
329. The concern that arises on the evidence not just of the psychologist but also of the psychiatrist is that the mother’s behaviour may not simply be confined to her focus on the father but rather, may manifest itself into the future.
330. It is a complex matrix of potential adverse outcomes to the child that are likely to result from either the inability or perhaps less likely, the refusal of the mother to accept that the father does not present as a risk and thereafter to support any relationship being resumed.
…
371. The evidence does not support a finding that the father presents as a risk to the child. The mother does present a risk and the issue is whether that risk can be managed in circumstances where the psychologist considers that the best interests of the child will be served by her remaining in her mother’s care but resuming a relationship with the father.
Berman J made clear and positive findings favourable to G and critical of C. Pursuant to consequential orders made by his Honour, T commenced to live with C’s mother with G having custody of T for four nights per fortnight.
Events subsequent to the delivery of the judgment of Berman J
On 18 January 2018, by agreement between the parties following upon the property settlement, C moved to a house at Marleston (the Marleston house) about five to six kilometres from the Clarence Gardens matrimonial home, which G then reoccupied.
It became apparent that C was not prepared to abide by the orders made by Berman J. As an example, the Department of Child Protection (DCP) was notified of an incident at T’s school in which C attended and tried to prevent her mother from taking T.[6] On 18 May 2018, the DCP removed T from C’s custody pursuant to a Family Court order made that day. On 3 July 2018, an order was made by the Court that T be placed under the guardianship of the Minister for six months, and on 17 September 2018, an extension of that order was granted for a further six months.
[6] G was not present at the time. G would attend at the school to pick up T only when he had custody nights.
The Youth Court proceedings
On 13 March 2019, the DCP commenced guardianship proceedings concerning T against C in the Youth Court, with the first return date of 15 March 2019 being brought forward to 13 March 2019. Interim orders for the care and protection of T were made in terms of the application dated 13 March 2019.
The matters were adjourned from time to time with a trial date of 19 June 2019 being set for a contested hearing of the Minister’s application that the order that T be placed under the guardianship of the Minister be extended for a further 12 months. On 19 June 2019, the trial commenced before Youth Court Judge Eldridge and was then adjourned to continue on 8 and 9 August 2019. On 8 August 2019, the trial continued with C initially attending at the hearing but then absenting herself before she could be cross-examined by counsel for the DCP. She did not return to Court after the morning break and evidence was led concerning attempts to contact her. Non-appearance was proved at 2.18 pm and interim orders were made granting the Minister’s application that the order that T be placed under the guardianship of the Minister be extended for a further 12 months with the consent of both G and the representative of T.
Before the Court adjourned, counsel for the DCP stated that the DCP unequivocally accepted that the findings of Berman J in the Family Court judgment were correct. Inter alia he said:
Now, just to deal with what fell from the father’s representative. I understand it’s important to the father that I record the following on transcript. In opening this case, at no time did the chief executive suggest that any of the allegations of sexual abuse have been substantiated against the father.
Secondly, the chief executive in these proceedings was prepared and was going to make submissions to your Honour that the findings of fact of Berman J in the Family Court were correct and we were not going to depart from those. That has the effect, thirdly, that the chief executive does not and was not intending to put in these proceedings that there were any substantiated allegations of sexual abuse by the father against T.
On 13 December 2019, a letter signed by Ms Wood, Supervisor DCP, was sent to G stating that the DCP accepted in full the findings of his Honour Judge Berman during the Family Court proceedings.[7]
[7] A document within Exhibit A2.
As at the last date of 7 May 2020 on the Certificate of Record of the Youth Court provided to me, it appears that proceedings are continuing in that Court. During the course of the hearing of the appeal, I asked counsel about the current situation and counsel for the appellant replied in the following passage:
MR ROBINSON: Your Honour, I’m instructed that the situation is that the DCP is going to make an application for a long term guardianship order in respect of T. The practical consequence of that would be that she would then in effect be living with her father, the current arrangement is that she is -
HIS HONOUR: The guardianship order in favour of the client?
MR ROBINSON: No, in favour of the Department of Child Protection but that she would be living physically with her father in substitution of the existing arrangement which is that she spends five nights with him and the rest of the time with the maternal grandmother, that's the current arrangement.
HIS HONOUR: It sounds almost as though he would be a de facto guardian.
MR ROBINSON: Indeed your Honour, that’s what it amounts to.
HIS HONOUR: Why is it done in that way, just as a matter of interest?
MR ROBINSON: I’m not sure I’m the person to answer that your Honour. Apparently, your Honour, it is to forestall any further application by the mother that might be brought in the Family Court.
This was not challenged by counsel for the respondent.
The variation/revocation application to the Magistrates Court
On 17 September 2019, G filed the variation/revocation application in the Magistrates Court. Originally, the hearing date was to be 20 November 2011 and on 15 November 2019, SAPOL Brevet Sergeant Bretag emailed G’s solicitor in the following terms:
I just wanted to write and advise that I have tried to ring the PP on a number I obtain. Whilst she didn’t answer, I got a message bank and left a message advising of the hearing on 20/11. I added that we were not opposed to the revocation of the order and, if she didn’t attend on 20/11/19 to voice her disagreement with the revocation application, there was every likelihood it would be granted by the magistrate. I’ve updated the prosecutor who’s in court that day. I think we can safely say she is now fully aware of the application being made, and if she doesn’t attend there can be no recourse for her in future if the matter is discontinued.
It was not until 19 February 2020 that the application came before Magistrate Semmens for a contested hearing. On that day, the Magistrate heard some evidence from G but, without hearing any evidence from C, adjourned for a short period and then delivered an ex tempore judgment dismissing the application. His Honour subsequently ordered costs against G (and delivered reasons for the costs order on 5 March 2020).
The Grounds of appeal
There are some ten substantive Grounds of appeal, but they may be distilled to the contentions that the Magistrate erred:
-in his general approach to a variation/revocation application; and
-in taking too narrow an approach to the range of circumstances that may be taken into account in such proceedings; and
-in his analysis of the concept of a “substantial change in the relevant circumstances”.
The power of variation or revocation
Turning to the variation/revocation power, s 26 of the Act provides:
Division 4—Variation or revocation of orders
26—Intervention orders
(1) The Court may vary or revoke an intervention order on application by—
(a) a police officer; or
(b)a person protected by the order or a suitable representative of such a person given permission to apply by the Court; or
(c)if the defendant or a person protected by the order is a child and there is a State child protection order (being an order under section 38 of the Children’s Protection Act 1993 or a corresponding order made under section 53 of the Children and Young People (Safety) Act 2017) in force in respect of the child—the Minister responsible for the administration of that Act; or
(d) the defendant.
…
(3) An application for variation or revocation of a final intervention order may only be made by the defendant after the date fixed by the order.
(4) On an application for variation or revocation of a final intervention order by the defendant, the Court may, without receiving submissions or evidence from the protected person, dismiss the application—
(a) if satisfied that the application is frivolous or vexatious; or
(b)if not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied.
(5) The Court must, before varying or revoking an intervention order under this section—
(a)allow the Commissioner of Police, the defendant and each person protected by the order a reasonable opportunity to be heard on the matter; and
(b)have regard to the same matters that the Court is required to have regard to in considering whether or not to make an intervention order and in considering the terms of an intervention order.
…
The Magistrate’s approach to a variation/revocation application
The Magistrate here stated:
… The defendant can bring such an application. However, the test to be applied under s 26, in my view, is a two-step test.
First, the court must be satisfied of a ‘substantial change’ in the relevant circumstances since the order was issued or last varied as envisaged by s (26)(4)(b) [sic s 26(4)(b)].
Secondly, if that test is satisfied, the court must have regard to, if varying or revoking an intervention order under the section, the same matters of [sic as] the court is required to have in [sic] regard to considering whether or not to make an intervention order and in considering the terms of an intervention order. [Emphasis added]
The Magistrate here referred to “the test to be applied under s 26” (which deals generally with applications for variation or revocation) and then purported to delineate a “two-step test” for resolution of all such applications. However, in doing so, his Honour erred in a serious way in that he incorporated what is a summary disposal provision (s 26(4)(b)) into a test which is said to be applicable to the disposition of all applications.
Summary disposal provisions are quite common; they are often couched in terms similar to “frivolous or vexatious”, or may refer to unduly repetitious applications and so on. However, here the legislation provides for a substantial minimum time period for such an application[8] and no one could reasonably suggest that the present application is of the “frivolous or vexatious” variety. The tail is not to wag the dog; the “rule” (or usual disposition) is a full hearing, and the exception to that rule is summary dismissal – not vice versa. If the mandatory 12-month period has elapsed, the usual course is to hold a full hearing.
[8] Section 15 of the Act.
It is to be observed that the effect of granting of an intervention order can be draconian. As was observed in Rana v Gregurev:[9]
[15] … because the concept of abuse is so broadly defined, it is also necessary for the courts to ensure that this broad jurisdiction is not itself abused by specious or unwarranted claims with their associated detrimental consequences to both the limited resources of the courts and to persons the subject of unmeritorious allegations. The necessary balance is achieved by investing the Magistrates with a great deal of discretion in the course they may take in any given case.
[9] [2015] SASC 37, [15] (Peek J).
In the present case, the Magistrate did not proceed on the basis that the application was “frivolous or vexatious”. Rather, his Honour thought that if there was apparently no ‘substantial change’ in the relevant circumstances since the order was issued or last varied, then he was required ipso facto to dismiss the application.
With respect, that is not the position. To take an explicative example, say a defendant is unrepresented[10] at the hearing of an application to confirm an interim order and inadequately refers to the factors militating against confirmation, with the result that the order is confirmed. The defendant may remain saddled with that misfortune for a period of 12 months; but that is not to say that he should be so saddled for ever after. If on a subsequent application he retains counsel who persuades the Court that all of the circumstances at the time of the confirmation of the final order had been such that the order should never have been confirmed, then the Magistrate would have a discretion to revoke or vary the order.
[10] Or perhaps represented by a very inexperienced legal practitioner.
I therefore consider that the Magistrate misdirected himself concerning the nature of the discretion to vary or revoke the final order. Accordingly, the appeal would be allowed on this basis alone. However, I consider that other grounds of appeal are also established as appears below.
Consideration
It is trite to say that in the context of the breakdown of a sexual relationship, allegations that are histrionic (or even downright false) may be made. Sometimes a party will take the view that it is best to make clear that the allegations are false, but to let the other party have an intervention order if it will calm the situation down; and this may be ever the more so if there is a concern for the mental health of the applicant. The route given by s 23(3) of the Act well accommodates such a situation and is not infrequently used. But sometimes, things change; and they have changed here.
The extent, and proper exercise, of the power to vary or revoke an intervention order is informed by a number of the provisions of the Act, including: the power to create intervention orders in ss 18 and 20; the permissible content (what “an intervention may do”) in s 12; the meaning and nature of “abuse” delineated in s 8; and the duration of an intervention order in s 11.[11] Two further such provisions to which reference needs to be made are s 26(5)(b) and s 6.
[11] Section 11 of the Act provides:
Section 26(5)(b) of the Act requires a Court considering a variation/revocation application to have regard to the same matters to which regard is had when making an intervention order.[12] Thus it provides:
(5)The Court must, before varying or revoking an intervention order under this section—
…
(b) have regard to the same matters that the Court is required to have regard to in considering whether or not to make an intervention order and in considering the terms of an intervention order. [Emphasis added]
[12] This will apply to all intervention orders, including a final intervention order confirmed in the circumstances referred to in s 23(3) (reproduced above at footnote 2).
This is important to a consideration of both whether an intervention order should be revoked and whether the terms of an intervention order should be varied.
Section 6 of the Act provides:
6—Grounds for issuing intervention order
There are grounds for issuing an intervention order against a person (the defendant) if—
(a) it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b) the issuing of the order is appropriate in the circumstances.
[Emphasis added]
The grounds for issuing an intervention order are here set out exclusively rather than inclusively. Further, the issuing authority must be satisfied not only that “it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person”, but also that “the issuing of the order is appropriate in the circumstances”. Thus, in Cook v Galloway, it was stated:[13]
[29] The role of a court in determining whether to confirm an intervention order will involve two inquiries. First, the court must be satisfied that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the applicant. Such a determination, ordinarily, will be informed by findings of fact about past events, made on the balance of probabilities. Second, the court must also be satisfied that the order is appropriate in the circumstances.
[13] (2015) 124 SASR 444, 451 (Nicholson J).
And in Rana v Gregurev, it was stated:[14]
[37] The position is, as the Magistrate correctly appreciated, that what was required was not just that the respondent Ms Gregurev had in the past committed an act of abuse against Mr Rana (if that were so) but rather that it is reasonable to suspect that she would, without intervention, commit an act of abuse against Mr Rana in the future; and that the issuing of the order is appropriate in the circumstances.
[14] [2015] SASC 37, [37] (Peek J).
Importantly, s 6(b) (“the issuing of the order is appropriate in the circumstances”) is to be taken to address not only the question of whether an intervention order should be made at all, but also the question of the precise terms of such an order if it is to be made.
Relevant circumstances to be considered by the Court
The appellant contends that in all of the circumstances the final order should either be revoked or at least varied.
In about February 2019, C left the Marleston house in which she had been living subsequent to the property settlement, and moved into premises at Winston Avenue (the Winston Ave house), only about 450 metres from the Clarence Gardens matrimonial home in which G was (and still is) living. It is to be emphasised that it is at this address that G presently has part time custody of T for five nights of the week (T spending the rest of her time with C’s mother). It is also at this address that G and his partner (with whom he has a child “X”) propose to live and make the full-time home for both T and their child “X”. And, as noted above, the full-time de facto guardianship of G is strongly supported by the DCP and appears very likely to happen.
The effect of this initiative of C in moving to the Winston Ave house was to substantially change the practical effect of the terms of the final order in several important aspects.
The possibility of future accidental breaches of the final order by G
Since he became aware that C had moved to the Winston Ave house, G has believed that this act of C (in moving so close to a person from whom she alleges she needs to protect herself with an intervention order) was deliberately provocative; was designed to provide further occasions upon which she might be able to erect “breaches” by him of the final order; and has much to do with the fact that her daughter T is to be found at those premises at times of custody by G. In the absence of any contrary explanation, and having regard to the troubled mental health of C, that is not an unreasonable view for G to take in all of the circumstances that have occurred.
The drafting of the final order
Apart from everything else, the appellant is entitled to a variation of the final order in that, as a matter of law, term three is void in that such a prohibition is not supported by the grant of power in s 12 of the Act.
In Police v Siaosi, it was stated:[15]
[18] It is axiomatic that in providing that “an intervention order may do any one or more of the following”, s 12(1) both creates and delineates a statutory power. The exercise of such a statutory power has severe effects on the liberty of the individual subject to it. It follows that each mandatory term in an intervention order must be clearly and specifically authorised by the words of s 12(1).
[19] This is a matter of elementary law. It also conforms with elementary fairness to a person the subject of an intervention order. It is highly important that the terms of such intervention orders are specific and certain so that the persons subject to them can be in no doubt as to the meaning and extent of the mandatory orders that are applicable. It may be added that it should also be of commensurate importance to persons who create, administer or enforce intervention orders to be sure as to the precise ambit, and limit, of their terms.
[15] (2014) 120 SASR 308, 312 (Peek J).
Thus s 12 addresses what an intervention order may do. The matter of prohibiting a defendant from being in a particular area or place is dealt with in an exclusive manner in placita (1)(a) to (1)(d) as follows:
12—Terms of intervention order—general
(1) An intervention order may do any 1 or more of the following:
(a)prohibit the defendant from being on, or within the vicinity of, premises at which a protected person resides or works;
(b)prohibit the defendant from being on, or within the vicinity of, specified premises frequented by a protected person;
(c) prohibit the defendant from being in a specified locality;
(d)prohibit the defendant from approaching within a specified distance of a protected person;
…
There is a distinction here which is important. It is the distinction between a a category of prohibition directed to a particular place (being each of placita (a) (b) and (c)) on the one hand, and a second category of prohibition directed to the defendant being a particular distance from the protected person (being only placitum (d)) on the other hand.
In the first category, the prohibition draws to the attention of the defendant a particular place, and then forbids him to be there. This is seen in its most stark form in placita (c) and (b) in which the locality or premises, respectively, must be each expressly set out. But it also applies to placitum (a) in that Parliament has determined that the location of the premises at which a protected person resides or works at a particular time is an objective fact; and that the onus will be on the defendant to make sure that he avoid those particular premises.
However, in the second category (placitum (d) only), the prohibition merely refers to the protected person and then prohibits the defendant approaching within a specified distance of that protected person. The difference in wording is both intentional and stark.
In the first category, it is acceptable to couch a prohibition in terms of “in” or “on” or “in the vicinity of” a particular place because that place is objectively known to the defendant; and if he goes there, woe unto him.[16] But in the second category, there is no geographical focal point. What is prohibited is a state of affairs – a distance between the defendant and the protected person – and who can say where the protected person might be at any particular time. Accordingly, the quite different word “approach” is chosen; and that is because what is prohibited is a deliberate or knowing approaching of the protected person as distinct from the defendant simply finding himself inside premises where, unknown to the defendant, the protected person is already present.
[16] A decision as to whether a defence may be open to a defendant who goes into a supermarket and, to his horror, later finds himself being served at the checkout by the protected person (who had just started working there and of which development he was unaware) will have to await another day.
I am sure that the final order was not drafted by the present Magistrate and accordingly I am free to say that the drafting of term three is really quite egregious; it is as if the drafter has surveyed the limited heads of power in s 12 of the Act and then decided to ignore them. The drafter purports to enact a prohibition with the very broad words “must not be within X metres of the protected person” when the available relevant head of power would support only the more narrow formulation “must not approach within X metres of the protected person”.
Finally, I must say that I have difficulty in understanding the following passage in the Magistrates reasons:
G also claims at paragraph 8 of his affidavit he ‘accidentally breached the order’ previously and the inference that arises is that he would not like to do so again.
Breaches of intervention orders, I point out, are strict liability offences that cannot be committed ‘accidentally’. The mere crossing of paths ‘accidentally’ say in a public place unintentionally or in a supermarket is not automatically a breach. I cannot see why he would have admitted any such breach if it was accidental. …
I would have thought that a hallmark of a strict liability offence is that one can commit it “accidentally” (in the sense of ‘unintentionally’, I assume). Thus, most road traffic offences are strict liability offences – one does not have to know that one is exceeding a speed limit, let alone intend to exceed it.
While his Honour said that he “could not see why he (the defendant) would have admitted any such breach if it was accidental”, it is the case that just about all police officers, and a large percentage of the legal profession, would assume that if a term in an intervention order prohibits the defendant from “being within X metres of the protected person” and the defendant admits to being within X metres of the protected person, there is no substantive defence (although a conviction may well not be recorded, particularly if the defendant pleads guilty).[17]
[17]If the doctrine of Proudman v Dayman (1941) 67 CLR 536 is considered at all, the problem in a particular case may well be that a defendant in these circumstances does not make a “mistake” (because he does not address the matter of whether the protected person may be present); and even if he does make a mistake, it may well not be of the required honest and reasonable kind.
Of course, if it were clear that a person would not be guilty of such a charge if his presence within X metres of the protected person were accidental, then it would be obligatory for a Magistrate to strike out a tendered plea of guilty made on that obviously insufficient basis of fact. But no such rejection of the plea occurred when the defendant did plead guilty in those very circumstances; and nor does it occur when others plead guilty in similar circumstances.
The ability of G to travel efficiently to and from his home
A secondary (but nevertheless cumulative) matter militating in favour of the appellant’s application, is that C’s change of address has meant that the effect of term five now becomes that G is not permitted to travel on Winston Avenue past C’s present residence. This has caused substantial inconvenience for G since Winston Avenue is a main road over which he has always travelled for work and other purposes, it being the nearest direct route. Again, his consent to the terms of the final order had been given in very different circumstances concerning the respective places of residence of the parties.
As to this aspect, the Magistrate stated:
I found G to be an honest and forthright witness who obviously carries concerns about the continuation of the intervention order. I accept his evidence from the topics upon which he gave evidence except, for his evidence that travelling onto Winston Avenue is the ‘only’ route he can travel in some circumstances. A cursory glance at the map of Exhibit A1 shows why that is not necessarily correct and I reject that part of his evidence only. Although inconvenient, there are other routes he can take. Otherwise, I accept his evidence on all other topics.
It is to be remembered that on 19 February 2020 the Magistrate delivered an ex tempore judgment shortly after the end of the evidence, and at a time when he would not have had the transcript of that morning’s evidence. Reference to that transcript shows that the appellant stated that he always took the route down Winston Avenue past the site of the respondent’s now residence because it was the quickest direct route having regard to a number of streets being blocked off (by Council). In cross-examination, he agreed with the proposition that there are other less convenient routes that could be taken. A fair reading of G’s evidence is that he did not state that “travelling onto Winston Avenue is the ‘only’ route he can travel in some circumstances”; rather, his evidence was that Winston Avenue is the only convenient or efficient route in some circumstances. There was no reason to reject G’s evidence in this respect as the Magistrate apparently did.
Conclusion - variation of the present final order
Just before reservation of judgment on the appeal, the parties were requested to convey to the Court, within a certain period, their positions concerning a variation of the final order as an alternative to revocation.
The appellant wished to have the final order revoked; in the less preferred alternative, to have variations in terms of “Alternative Draft A”; and in the still less preferred further alternative, to have variations in terms of “Alternative Draft B” (both drafts being supplied to the representatives of C as well as the Court).
The respondent’s position stated in a letter from counsel for the respondent was (in full): “The Respondent does not want any variations to be made. However, the Respondent is happy to leave this issue in the hand [sic] of the Court for determination”.
For a time, I considered that the order should simply be revoked, and that course still has its attractions. It is to be remembered that s 26(5)(b) of the Act requires a court considering a variation/revocation application to have regard to the same matters to which regard is had when originally making an intervention order; and that s 6 of the Act addresses those very matters thus:
6—Grounds for issuing intervention order
There are grounds for issuing an intervention order against a person (the defendant) if—
(a) it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b) the issuing of the order is appropriate in the circumstances.
[Emphasis added]
There is much to be said in favour of a contention that when one heeds s 6, it is not now reasonable to suspect that the defendant will in the future, without intervention, commit an act of abuse against the protected person. Thus, in Cook v Galloway,[18] Nicholson J stated:
[29] The role of a court in determining whether to confirm an intervention order will involve two inquiries. First, the court must be satisfied that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the applicant. Such a determination, ordinarily, will be informed by findings of fact about past events, made on the balance of probabilities. Second, the court must also be satisfied that the order is appropriate in the circumstances.
…
[38] The relationship is well in the past. The landscape at the time of the trial had significantly changed with the opportunity for further engagement between the appellant and respondent greatly diminished. Further, on the evidence, the respondent has shown no desire or proclivity to seek out the appellant.
[39] After taking into consideration the nature of the previous confrontations between the appellant and the respondent, the lack of any intimidatory behaviour by the respondent following her leaving the house and the reduced scope or likelihood for future interaction, I, like the Magistrate, do not find that it is reasonable to suspect that the respondent will, without intervention, commit an act of abuse against either the respondent or his son. In reaching this conclusion, I have had regard to the very broad definition of “abuse” in section 8. [Emphasis added]
[18] [2015] SASC 36, [29], [38]-[39].
However, in the present circumstances, procedural and otherwise, I have decided that it is appropriate to vary the order in terms drawn from both Alternative Drafts “A” and “B”. The present Final Intervention Order, with the additions and deletions presently ordered by this Court, will be as follows:[19]
[19] The document will be retyped in final form.
1.The defendant must not assault, threaten, harass or intimidate the protected person
(s).2.The defendant must not follow or keep the protected person
(s)under surveillance.3. The defendant must not be within 50 metres of the protected person(s).4.3. The defendant must not contact or communicate with the protected person(s)either directly or indirectly in any way (including phone, letter, cards, SMS messages, E-mail, Facsimile, Facebook, Skype etc).5.4. The defendant must not knowingly enter or knowingly remain within5025 metres of the boundary of the place of residence or place of employment of the protected person(s). However, notwithstanding the previous sentence or other parts of this order, the defendant may travel on a roadway past the frontage of any such places (irrespective of whether the protected person is or is not present there) in the course of bona fide travel from one place to another.6.5. The defendant must not damage or interfere with the premises where the protected person(s)is staying, residing or is employed.7.6. The defendant must not damage or take possession of personal property belonging to the protected person(s).8.The defendant must not enter or be within 50 metres of the boundary of any education or care facility attended by the protected person(s) and/or including specifically the following Westbourne Park Primary School.9.7. The defendant must not publish on the internet or by any electronic means any material about the protected person(s).10.8. The defendant must not cause, allow or encourage another person to do anything forbidden by this order.11.9. Notwithstanding the other terms of this order contact is permitted at dispute resolution or at a court hearing under the Family Law Act 1975, the Children’s Protection Act 1993 or at any other court or tribunal hearing.12.10. Notwithstanding the other terms of this order contact is permitted in accordance with an order of a court exercising jurisdiction under the Family Law Act 1975.13.11. Notwithstanding the other terms of this order contact is permitted by a solicitor or police.14.12. Any firearm, ammunition or part of a firearm in the possession of the defendant and any licence or permit held by the defendant authorising possession of a firearm, ammunition or part of a firearm must be surrendered to the Registrar of Firearms forthwith.15.13. For so long as this intervention order remains in force, any licence or permit held by the defendant authorising possession of a firearm, ammunition or part of a firearm is suspended and the defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm, ammunition or part of a firearm. The defendant is prohibited from possessing a firearm ammunition or part of a firearm in the course of his or her employment.Disposition and Orders
I make the following orders:
1The appeal is allowed.
2The orders made by the Magistrate including costs orders are set aside.
3The intervention order confirmed on 10 November 2016 will be varied in the terms as set out in the judgment herein.
I will hear the parties as to the costs of the application in the Magistrates Court and of this appeal.
(1) An intervention order is ongoing and continues in force (subject to any variation or substitution of the order under this Act) until it is revoked.
(2) Consequently, an issuing authority may not fix a date for the expiry of an intervention order or otherwise limit the duration of an intervention order.
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