Lestari v Robinson; ex parte

Case [2021] NTLC 21

CITATION:Lestari v Robinson; ex parte Lestari [2021] NTLC 021

PARTIES:Sri Puji Lestari

V

Ben John Robinson

TITLE OF COURT:  LOCAL COURT

JURISDICTION:  CIVIL

FILE NO(s):22119337

DELIVERED ON:  7 September 2021

DELIVERED AT:  DARWIN

HEARING DATE(s):  24 June 2021

JUDGMENT OF:  Norrington JR

CATCHWORDS:

CIVIL LAW – DOMESTIC AND FAMILY VIOLENCE ACT 2007 (NT) – when should the Court grant leave to proceed ex parte

CIVIL LAW – DOMESTIC AND FAMILY VIOLENCE ACT 2007 (NT) – application for an ex parte DVO– hearing process and test to be applied.

Domestic and Family Violence Act 2007 (NT), s4, s5, s18, s19, s21, s22, s,23, s24, s27, s28, s32, s35, s37, s41, s47, 52A, Part 2.8, Part 2.10, s81, s82

Domestic Family Violence Protection Act 2012 (QLD), s37, s56, s57

Domestic Violence Act 1992 (NT), s 4(3)

Evidence (National Uniform Legislation) Act 2011, s140

Family Law Act 1975 (Cth), s60CC(3)(k), s61DA, 65DAA(1), 102NA(1)(c)(ii)

Family Violence Protection Act 2008 (VIC), s99

Firearms Act 1997 (NT), s 39

Local Court Act 2015 (NT), s70A

Local Court (Civil Procedure) Act 1989 (NT), s19, s20(1)

AB v Hayes & Anor [2019] NTSC 13

Ansah v. Ansah (1977) 2 W.L.R. 760

Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3

Armour v FAC [2012] QMC 22

Balchan v Anthony (2008) NTSC 02

Bell Group NV (In liq) Aspinall (1998) 19 WAR 561

Bonney v Thompson [2011] NTSC 81

Briginshaw v Briginshaw(1938) 60 CLR 336

GKE v EUT [2014] QDC 248

Joy Marjorie Cahill v Anthony David Cahill JA 67 of 2001 (unreported)

KAO v DL [2017] QMC 16

Malogorski v Peart [2011] NTSC 86

MDE v MLG & Queensland Police Service [2015] QDC 151

Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23

Sieling and Sieling (1979) FLC 90-627

Stowe and Stowe [1980] FamCA 92

Thomas A Edison Ltd v Bullock (1912) 15 CLR 679

NOM v DPP [2012] VSCA 198

Owners of SS Kalibia v Wilson (1910) 11 CLR 689

Police v Natasha George [2015] NTMC 018

WJM v NRH [2013] QMC 12

National Domestic and Family Violence Bench Book, published by the Australasian Institute of Judicial Administration

Family Violence Bench Book, published by the Judicial College of Victoria

REPRESENTATION:

Counsel:

Applicant:Ms Aughterson

Defendant:No Appearance

Solicitors:

Applicant:TOP END WOMEN’S

LEGAL SERVICE

Defendant:No Appearance

Judgment category classification:                A

Judgment ID number:  021

Number of paragraphs:  94

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

No. 22119337

BETWEEN

Sri Puji Lestari

Applicant

AND

Ben John Robinson

Defendant

REASONS FOR JUDGMENT

7 September 2021

NORRINGTON JR:

  1. These are proceedings commenced by way of an Application for a Local Court DVO under the Domestic and Family Violence Act 2007 (“the Act”). 

  2. The applicant filed an Application for a Local Court DVO with the Local Court on 23 June 2021.  In that application the applicant sought that the matter be listed and heard urgently and that the Court consider making orders prior to the defendant being given notice of the application. The…

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AGLC
Lestari v Robinson; ex parte [2021] NTLC 21
Case
[2021] NTLC 21
Decision Date

CaseChat Overview and Summary

Lestari sought an ex parte domestic violence order (DVO) against Robinson under the Domestic and Family Violence Act 2007 (NT). The matter was heard by the Northern Territory Supreme Court, which was required to determine the appropriate process and legal test for granting leave to proceed ex parte for a DVO application. The court examined the criteria for determining whether leave should be granted to proceed ex parte, taking into account the urgency and seriousness of the matter against the hardship and prejudice to the defendant. The court considered relevant legislation, case law, and the Family Violence Bench Book as published by the Judicial College of Victoria. It concluded that the court should follow a series of steps when considering an ex parte DVO application, including determining if the parties are in a domestic relationship, assessing whether there are reasonable grounds to fear domestic violence, and deciding on the necessary restraints and duration of the DVO.

The court emphasised the importance of considering the safety and protection of the protected person as a paramount matter and the need to tailor the duration of any DVO according to what the court considers necessary or desirable to prevent the commission of domestic violence against the protected person. The court also highlighted that any order made must be expressed as being "subject to confirmation," with the defendant to show cause as to why the order should not be confirmed. By following these steps, the court ensures a fair and balanced approach to ex parte DVO applications, protecting the rights of both the applicant and the defendant.

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

Under Part 2.10 of the Act, the Court is to hold a confirmation hearing to decide if the ex parte DVO is to be confirmed or revoked. 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. In Bonney v Thompson [2011] NTSC 81, Justice Kelly considered the nature of an ex parte DVO under the Act at paragraphs 32 to 35:32. If the Court makes a CSJ DVO in the absence of notice to the defendant pursuant to s 32, then the provisions of ss 36, 37 and 82 apply: a copy of the order must be given to the parties by a clerk of the Court [s 36]; that copy of the order is taken to be a summons to the defendant to appear before the Court at the time and place shown for its return, to show cause why the DVO should not be confirmed by the Court [s 37]; the Court then holds a hearing at which time it may confirm the DVO (with or without variations), or revoke the DVO [s 82(1)]. The Court must not confirm the DVO unless it is satisfied that the defendant has been given a copy of the DVO and the Court has considered any evidence before it and submissions by the parties [s 82(2)]. 33. Because of the provisions of s 18 and s 19, before making a CSJ DVO under s 32 in the absence of notice to the defendant, the Court will already have considered a range of relevant matters (set out in s 19) and must have been satisfied “that there are reasonable grounds for the protected person to fear the commission of domestic violence against the person by the defendant” [s 18]. In those circumstances, an applicant may well have a reasonable expectation that, unless the defendant appears to oppose the confirmation of the DVO, it is likely to be confirmed – although of course the magistrate must still be satisfied of the requisite matters.34. If a CSJ DVO is made under s 32 in the absence of notice to the defendant, the DVO will be for the full term which the Court considers would be appropriate for a final order, and otherwise in identical terms to the proposed final order – but be subject to revocation if not “confirmed” under s 82. Her Honour went on to observe at paragraph 40 that an ex parte variation under section 56 similarly results in an order that is expressed as a final order but that is subject to confirmation:40. In the case of an order under s 56 (as with a CSJ DVO under s 32 made without notice to the defendant), the variation order should not be for a limited (interim) duration, but in the form, and for the duration, which it is proposed the Court will eventually confirm under s 82. This is because the copy of the order served on the defendant under s 58 serves as a summons to show cause why “the DVO” (ie the DVO a copy of which the defendant has been given) should not be confirmed: if the DVO made under s 56 is not the same as that proposed to be “confirmed”, the defendant will not have had notice of the application against him.

Ratio Decidendi

Legal Principle Established

Although the Victorian Act does provide some considerations when it comes to duration, the Family Violence Bench Book as published by the Judicial College of Victoria provides further guidance at chapter 2.2.2.3:2.2.2.3- Commencement and duration of final intervention ordersThe following matters may also be relevant when determining the duration of a final order:·the history of the relationship, including the duration of the relationship and incidents of violence both during the relationship and after it ended;·whether the court has made previous family violence intervention orders between the protected person and the respondent;·evidence of expert witnesses;·the risk assessment framework;·the likelihood that the respondent will undertake counselling or respond to behaviour change programs to reduce the risk of committing family violence;·whether the risk of family violence is heightened by temporary risk factors that may subside, such as pregnancy, separation or drug use. The matters listed are certainly relevant matters for the Court to consider. I would also add to that list:(a)Whether the defendant has been subject to previous domestic violence orders with any other person; (b)Whether the defendant has a criminal history which include domestic violence related offending concerning the protected person or any other person; and(c)the age of a young protected person and whether there is a particular period in which they will remain vulnerable. What is clear is that the Court has a wide discretion when it comes to setting the duration of any DVO and the duration itself should be tailored according to what the Court considers to be necessary or desirable to prevent the commission of domestic violence against the protected person. Having considered the legislation and the relevant authorities, it appears to me that when a party seeks an ex parte DVO under section 32 (an application in the absence of the defendant and without notice to the defendant), the Court should follow the following steps:(a) Firstly, determine if leave should be granted to proceed ex parte by weighing up the urgency and seriousness of the matter against the hardship and prejudice to the defendant; (b) Secondly, determine if the parties are in a domestic relationship;(c) Thirdly, determine whether on the balance of probabilities, there are reasonable grounds for the protected person to fear the commission of domestic violence against the person by the defendant, or if the protected person is a child, there are reasonable grounds to fear the child will be exposed to domestic violence committed by or against a person with whom the child is in a domestic relationship, and in doing so:(i)the Court must consider the safety and protection of the protected person as a matter of paramount importance; and(ii)the Court must consider the matters contained in section 19(2) of the Act.(d) Fourthly, if restraints are sought, determine what restraints are necessary or desirable to prevent the commission of domestic violence against the protected person;(e) Fifthly, determine what duration is necessary or desirable to prevent the commission of domestic violence against the protected person;(f) Sixthly, any order made must be expressed as being ‘subject to confirmation’, with the defendant to show cause as to why the order should not be confirmed.