McLean v Kemp

[2005] TASSC 100

[2005] TASSC 100

CITATION:              McLean v Kemp [2005] TASSC 100

PARTIES:  McLEAN, Natalie Jane
  v
  KEMP, Matthew Benjamin

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 3/2005
DELIVERED ON:  18 August 2005
DELIVERED AT:  Burnie
HEARING DATE:  18 August 2005
JUDGMENT OF:  Tennent J

Edited edition of reasons for judgment given orally

CATCHWORDS:

Magistrates - Procedure – Orders – Particular orders – Family violence orders – Application for leave to vary – Who may conduct an applicant's or respondent's case at the hearing of such an application.

Family Violence Act(Tas), 2004.
Aust Dig Magistrates [156.5]

REPRESENTATION:

Counsel:
             Applicant:  S Wright
             Respondent:  N/A
Solicitors:
             Applicant:  Crisp Hudson & Mann
             Respondent:  N/A

Judgment  Number:  [2005] TASSC 100
Number of paragraphs:  35

Serial No 100/2005
File No LCA 3/2005

NATALIE JANE McLEAN v MATTHEW BENJAMIN KEMP

REASONS FOR JUDGMENT  TENNENT J

(DELIVERED ORALLY)  18 August 2005

1. The applicant in this matter, Ms Natalie McLean, has moved the Court to review a decision of a magistrate made on 24 May 2005 to refuse an application pursuant to the Family Violence Act 2004 ("the Act"), s20(2), for leave to vary a family violence order ("FVO").

Grounds of review

1. The grounds of the review were:

-that the learned magistrate erred in law and in fact in not granting the applicant leave in accordance with the Act, s20(3), in that there was a substantial change in the relevant circumstances;

-that the learned magistrate erred in law and in fact in allowing the police prosecution to be heard on the application contrary to the Act, s31(2), in that both the applicant and the respondent were represented;

-that the learned magistrate erred in law and in fact in not accepting that the applicant was not scared of the respondent in that the only evidence before the court was the evidence of the applicant stating that she was not scared of the respondent;

-that the learned magistrate erred in law and in fact in not granting the application to vary and/or revoke the FVO by consent in accordance with the Act, s22, as the application was not opposed by the respondent.

1. At the hearing of this notice to review, counsel abandoned the last 2 grounds.  Counsel also tendered to the Court correspondence which indicated that neither the respondent to the FVO nor the police sought to be heard on the hearing of this review.

Background

1. The background to this matter is that on 24 April 2005 Matthew Kemp, the applicant's former partner, was arrested by the police to facilitate the making of an FVO.  He appeared in an out of hours court and was remanded in custody to reappear on 26 April.  On 25 April the police lodged a written application for an FVO, attached to which was a statement taken from the applicant.  On 26 April 2005 Mr Kemp consented to the making of an FVO without admissions.  The court record disclosed that the applicant was not present in court when the application…