Hennessy v CB

Case [2020] NTLC 15

CITATION:Hennessy v CB [2020] NTLC 015

PARTIES:Samantha Hennessy

V

CB

TITLE OF COURT:  LOCAL COURT

JURISDICTION:  CIVIL

FILE NO(s):22025486

DELIVERED ON:  13 November 2020

DELIVERED AT:  DARWIN

HEARING DATE(s):  28 August 2020

JUDGMENT OF:  Norrington JR

CATCHWORDS:

CIVIL LAW – DOMESTIC AND FAMILY VIOLENCE ACT 2007 (NT) – Application to vary or revoke a domestic violence order – Whether a police DVO can be varied or revoked under Part 2.8.

CIVIL LAW – DOMESTIC AND FAMILY VIOLENCE ACT 2007 (NT) – Review of a police DVO – Whether the Court can review a police DVO under Part 2.9 once the matter is before the Court.

CIVIL LAW – DOMESTIC AND FAMILY VIOLENCE ACT 2007 (NT) – Whether the Court has the power to vary or revoke a police DVO on an interim basis under Part 2.10.

CIVIL LAW – DOMESTIC AND FAMILY VIOLENCE ACT 2007 (NT) – Whether the Court has an implied power to vary or revoke a police DVO on an interim basis.

Domestic and Family Violence Act 2007 (NT), s 3, s 4, s 16, s 19, s 27, s 32(2), s 35, Part 2.6, s 41, s 42, s 43, s 44, s 47, s 52A, Part 2.8, Part 2.9, s 72, s 73, s 74, s 75, s 76, s 77, s 78, s 79, Part 2.10, s 80, s 81, s 82, s 83

Domestic Violence Act 1992 (NT), s 6A, s 6B

Interpretation Act 1978 (NT), s 62A, s 62B

Local Court Act 2015, s 6

Northern Territory Local Court Practice Directions, Direction 30.8

AB v Hayes & Anor [2019] NTSC 13

Balchan v Anthony (2008) NTSC 02

Bonney v Thompson [2011] NTSC 81

Houseman v Higgins [2015] NTSC 88

Knight v Raddie [2013] QMC 15

Malogorski v Peart [2011] NTSC 86

Muir v Nunn [2006] NTSC 71

Pelechowski v The Registrar, Court of Appeal [1999] HCA 19

Police v Natasha George [2015] NTMC 018

Valentine v Eid (1992) 27 NSWLR 615

REPRESENTATION:

Counsel:Commissioner for Police:             Ms Thomson

Defendant:Self-represented

Protected Person:  Self- represented

Solicitors:Commissioner for Police:             Solicitor for the
  Northern Territory

Judgment category classification:     A

Judgment ID number:  NTLC 015

Number of paragraphs:  107

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 22025486

BETWEEN

Samantha Hennessy

Applicant

AND

CB

Defendant

AND

CC

Protected Person

CORAM:NORRINGTON JR

REASONS FOR JUDGMENT

(Delivered 13 November 2020)

Introduction

  1. An authorised police officer made a police DVO against the defendant on 13 August 2020. The Police DVO was made under Part 2.6 of the Domestic and Family Violence Act 2007 (“the Act”).  The terms of the order are:

    The defendant is now restrained from directly or indirectly:

    1.Approaching, contacting or remaining in the company of the protected person/s (contact includes by mail, phone, text messages, facsimile, email or other forms of communication).

    2.Approaching, entering or remaining at any place where the protected person/s is living, working, staying, visiting or located.

    3.And must vacate the premises at [address].

    4.causing harm or…

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Details
AGLC
Hennessy v CB [2020] NTLC 15
Case
[2020] NTLC 15
Decision Date

CaseChat Overview and Summary

The matter of Hennessy v CB was heard in the Northern Territory Magistrates Court. The dispute involved an application to vary or revoke a domestic violence order (DVO) issued by the police. The primary issue before the Court was whether a police DVO can be varied or revoked under Part 2.8 of the Domestic and Family Violence Act 2007 (NT), and whether the Court has the power to review a police DVO under Part 2.9 once the matter is before the Court. Additionally, the Court considered whether it has the authority to vary or revoke a police DVO on an interim basis under Part 2.10, and whether an implied power exists for such interim action.

The Court's reasoning was grounded in the statutory provisions of the Act, particularly sections 81 and 82. These sections outline the process for dealing with a police DVO once it is before the Court. The Court noted that section 82 allows for the confirmation or revocation of the DVO at the hearing, but does not mandate that the matter be finalised on the first return. The Court emphasised that the Legislature could not have intended a procedure that would disadvantage the parties, particularly in the context of domestic violence matters where time for preparation and negotiation is crucial. The Court also highlighted that a police DVO continues in full force until the Court finally determines the matter, and does not fall within the definition of a 'court DVO' unless confirmed by the Court. The Court's interpretation was consistent with the Attorney-General's second reading speech, which distinguished between court orders and police orders.

The Court concluded that sections 81 and 82 do not require the finalisation of a police DVO on the first return. Instead, they allow for the matter to be set for a hearing at which evidence may be provided by all parties and the matter finally determined. This interpretation ensures procedural fairness to all parties involved, including the protected person who has a right to be heard on the question of confirmation.

The final orders of the Court were not explicitly detailed in the provided text, but the decision provided a clear framework for the Court's future actions in similar cases, ensuring that the rights and protections of all parties are upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Part 2.10 outlines the process to be followed once the matter comes before the Court for the return of the summons to show cause and it clearly outlines the options the Court has available to it when dealing with the matter. These matters have been considered by Judge Oliver in Police v Natasha George (supra). Her Honour said[30]:8.It is submitted that section 82 is clear in its requirement for a decision to be made for either confirmation or revocation of the police domestic violence order on the date of return. Section 82 provides 82 Decision at hearing (1)At the hearing, the Court may, by order: (a)confirm the DVO (with or without variations); or (b) revoke the DVO.(2)The Court must not confirm the DVO unless: (a)it is satisfied the defendant has been given a copy of the DVO; and (b)it has considered any evidence before it and submissions from the parties to the DVO.9.In my view, there is nothing apparent either from this provision or any other part of the Act that requires there to be a hearing for a final determination of the matter on the date of first return.10.A police DVO serves two purposes(a) it imposes certain restraints on a defendant for the protection of another or others(b) it acts as summons to attend court to show cause why those restraints or other restraints that the court might see fit to impose and become confirmed as a court DVO11.Under the Justices Act a summons may be issued to require the attendance of a person at court to answer a charge that has been made against him or her. Similarly pursuant to the Sentencing Act when a court makes an order for an offender to pay restitution that person can be required to attend on a future date to show cause why he or she should not be imprisoned for failure to make for restitution. In neither case is there a requirement that these matters be determined on the date of first return or show cause. This is of course partly due to the impracticality in terms of time in the Court of Summary Jurisdiction of hearing all summons matters listed on a particular day to finality but also due to the need to allow a defendant time to prepare his or her own case. 12.In the context of the first return of a Police DVO the impracticality of this submission is that it would require the prosecution to attend with all witnesses in tow or on standby on the first return so that in the event that the defendant appears in answer to the summons and does not consent to confirmation of the order they would be able to immediately then to proceed to a hearing in the matter. In the context of a domestic violence proceeding this would require the attendance of the protected person in circumstances where there may be potential for a risk to them arising out of their attendance. It is possible in some matters that the protected person would be unavailable because they are hospitalised with injuries. 13.On the other hand it would also be procedurally unfair to a defendant to insist that a police DVO be dealt with to a final determination on the first return date. As these matters are to be brought before the court as soon as practicable, it may be the case that a defendant has had less than 24 hours to consider his or her position. A defendant may be unrepresented on the first return but wishing to obtain legal advice. A defendant may wish to contest the confirmation of the DVO and will require time to consider the evidence that will be led by the police and may need to make arrangements for the attendance of their own witnesses. 14.A further outcome on the first return of a police DVO is that the parties may wish to discuss and negotiate a variation of the police DVO, for example from a full noncontact order to one that restraints conduct whilst the defendant is consuming alcohol or is intoxicated. Again it would be procedurally unfair to all parties, including the protected person, to insist on the finalisation of the police DVO on the first return.15.It would also potentially impact unfairly on a protected person. A police DVO is taken out by police. It is not always the case that the conditions imposed with those orders are those which the protected person desires. A protected person is a party to the proceedings and has a right to be heard on the question of confirmation. As with a defendant, it would be procedurally unfair for the question of confirmation to be required to be determined on a first return.16.In my view, the Legislature cannot have intended to introduce a procedure for domestic violence matters that would procedurally disadvantage and be unfair to the parties.17.The submission referred to my decision in Police v RA [2010] NTMC 61 with reference to paragraphs [13] and [14]. There is nothing in those paragraphs that supports a contention that a Police DVO must be determined on the first review. As I think is clear the observations there were as to a case where the defendant fails to appear on the first return date. In that circumstance there is no impediment to the court considering the evidence before it and any submissions and either proceeding to confirm a domestic violence order (with or without variation) or revoke the police DVO.18.In this case the defendant was present in the matter adjourned at the request of Counsel.19.In my view sections 81 and 82 are clear in their intent and do not require the “hearing” of the matter on the first return. 20.Section 81 provides81 Appearing at hearing (1) Subject to applicable procedural directions, a protected person may appear at the hearing of the proceeding. (2) If the defendant has been summoned under section 44 or 71, the Commissioner is a party to the proceeding. (my emphasis)21.If the intent was that a police DVO is be finalised on the first return there would be no opportunity for the court to make procedural directions as is envisaged by section 81(1). Such directions might include, for example, the giving of evidence by CCTV. It is obvious that this is not a matter that can be attended to or arranged at short notice. It should also be obvious that procedural directions of this nature are ones which may well be desirable in the context of dealing with domestic violence.22.Section 82 provides82 Decision at hearing (1)At the hearing, the Court may, by order: (a)confirm the DVO (with or without variations); or (b)revoke the DVO.(2)The Court must not confirm the DVO unless: (a)it is satisfied the defendant has been given a copy of the DVO; and (b)it has considered any evidence before it and submissions from the parties to the DVO.23.In my view, the phrase “at the hearing” encompasses two separate circumstances. First, where a defendant fails to attend in answer to the summons to show cause. In that case the court may well proceed to “hear” the matter, consider the evidence and submissions before it and either confirm, with or without variation, a DVO or revoke the police DVO. It does not preclude and in my view, it envisages the alternate outcome, that is that a defendant (or protected person) wishes to contest the ongoing existence of a domestic violence order for its terms and in that case the matter may be set for a “hearing” at which time evidence may be provided by all parties and the matter finally determined.

Ratio Decidendi

Legal Principle Established

Other attributes of a Police DVO are that they do not cease upon the first mention of the matter in Court and do not require a duration to be set when they are made. They continue in full force until such time as they are revoked by the Court. In relation to the duration of a DVO, section 27 of the Act provides:27 Duration of DVOA DVO (other than an interim court DVO) is in force for the period stated in it.Note: For the duration of an interim court DVO, see section 35(3). A police DVO is defined as a ‘DVO’ under the definitions contained in section 4 of the Act. However, this Court in Police v Natasha George [2015] NTMC 018[9] and the Supreme Court in Houseman v Higgins [2015] NTSC 88[10] has found that a police DVO continues in full force until the Court is able to finally determine the matter and that a police DVO is not subject to section 27 of the Act. A further characteristic of a Police DVO, an ex parte DVO and the ex parte variation of a DVO is that they do not become ‘court DVO’s’ until they are confirmed by the Court under Part 2.10. Section 4 of the Act contains the definition of ‘court DVO’. The definition provides:Court DVO means:(a)a Local Court DVO; or(b)an interim court DVO; or(c)a consent DVO; or(d)a DVO made by a court under Part 2.7; or(e)a DVO confirmed by the Court under Part 2.10. Accordingly, a Police DVO, an ex parte DVO and the ex parte variation of a DVO do not fall within the definition of ‘court DVO’. That is, unless they are considered to be an ‘interim court DVO’. The definition of ‘interim court DVO’ as found in Section 4 of the Act refers to an order made under section 35(1). Section 35(1) provides:35 Interim court DVO(1)At any time during the proceeding for the hearing of an application for a Local Court DVO, the Court may make a domestic violence order under this section (an interim court DVO). For the reasons already outlined above[11], an ‘interim court DVO’ is a different type of order to an ex parte DVO made under section 32(2) and the ex parte variation of a DVO made under Part 2.8 Division 1 Subdivision 4 of the Act. Further, given that a Police DVO is not a “proceeding for the hearing of an application for a Local Court DVO”, this type of order does not fall into the definition of a ‘interim court DVO’ and, ipso facto, a ‘Court DVO’. This interpretation is consistent with the Parliament’s intention expressed in the Attorney-General’s second reading speech for the Bill to the current Act. The Attorney-General said the following:The bill will also simplify processes regarding Domestic Violence Orders. There will be two general types of orders that can be sought and made: court orders; and police orders. Court orders are made via the usual process; that is, by a standard application to the court by an applicant, to be now known as a protected person, or a police officer on their behalf. Police orders are those made by an authorised police officer in urgent circumstances where it is not practicable to obtain a court order, but where an order is necessary to ensure the safety of a victim. Police orders are generally made in remote and regional areas.[12]