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
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
Joy Marjorie Cahill v Anthony David Cahill JA 67 of 2001 (unreported)
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
Owners of SS Kalibia v Wilson (1910) 11 CLR 689
Police v Natasha George [2015] NTMC 018
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:
These are proceedings commenced by way of an Application for a Local Court DVO under the Domestic and Family Violence Act 2007 (“the Act”).
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
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
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.