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 for the FVO was brought on by the police.  Her statement contained allegations of violence.  It did not say that she wanted police to make the application they did or indicate that she was aware that there would be such an application.  The application set out the police knowledge of prior incidents between the parties and previous restraint orders.

1. On 20 May 2005 the applicant applied to a magistrate pursuant to the Act, s20(3), to vary the terms of the FVO. In her application to vary she set out that:

   "The Applicant for whose benefit the Orders were made is not fearful of the Respondent either now or in the past.  At the time of making a statement to the Police the Applicant was unaware that a Family Violence Order would be made preventing contact between the parties.  As both parties have been in a relationship for approximately 7 years and live in a small community such as Queenstown the Orders in place make both the Applicant and the Respondent fearful of the ramifications of contravention of the Orders.  This has an adverse impact on the ability of the parties to function and live in Queenstown."

2. In an affidavit filed in support of her application to vary, the applicant said that she and Mr Kemp wanted to attempt a reconciliation and that she would never have made the police statement she did had she known an order would be sought.  She also asserted she was in an intoxicated state when she made the statement she did and that she was somewhat vindictive towards Mr Kemp because they had had an argument.  The police actually spoke to her because Mr Kemp had gone to them worried about her whereabouts after the argument.

1. When the application to vary the FVO came before the court, the court was advised that Mr Kemp did not oppose it. However, the learned magistrate took the view that the application required leave under the Act before the matter could be dealt with. He adjourned the matter to the Queenstown Court before another magistrate because that was where the parties were. On the resumed hearing, the learned magistrate heard submissions from the police prosecutor, who opposed the application, and counsel for the applicant. He then refused to grant leave and by implication dismissed the application to vary.

1. There was no oral evidence heard by the learned magistrate.  The police prosecutor made a number of "submissions" from the bar table about enquiries the local police officer had made about the parties, their history and the current state of their relationship.  Some of this material was contrary to written material provided by the applicant.  In effect, the prosecutor gave evidence from the bar table.  The thrust of the police prosecutor's submissions was that there had been a history between these parties, there had been restraint orders which had expired, the parties had attempted reconciliations before and the issues between them had not been resolved.  Hence the FVO which prevented contact between the parties for the next 12 months should remain in place no matter what the parties wanted. 

1. Counsel for the applicant had a brief exchange with the learned magistrate before a ruling was given.  It was as follows:

"MR EMERY:  Simply to note, your Worship, that Ms McLean has instructed that she does wish to have contact with Mr Kemp.  As your Worship has pointed out, annexed to her affidavit is a letter from Mr Kemp's solicitors, unequivocally stating that he would like to have contact with her.  In the circumstances, your Worship I would simply submit that two private citizens who wish to have contact with each other should be allowed to choose to have that right, your Worship.  And that as –

HIS WORSHIP:  Well Parliament has taken that effectively – effectively taken that decision away from them in certain circumstances and put it in the hands of the Court.

MR EMERY:  Yes, your Worship, and I understand it's your discretion, your Worship.  However, I'd simply be submitting that in this case, the parties have unequivocally indicated to the Court that that is not what they want, and that's a matter I would ask your Worship to take into consideration."

1. The learned magistrate then ruled in the following terms:

"Thank you.  Well the application that I've read, which is the original application that was made to the Court last month details a history of violence and abuse in this relationship, details periods of separation and then reconciliation.  On this particular occasion there was a significant instance of violence and threats by the respondent towards the applicant, and certainly the Family Violence Order was well – or the application for it which was made to another magistrate some time ago was well founded.  Now, not that long after that the applicant comes back and seeks to vary it by indeed revoking the whole lot of it, but her application has been amended somewhat so that all she now seeks to revoke are the conditions, which prevent contact.

She cannot do that unless I grant her leave pursuant to s20 of the Family Violence Act. S20 says, ss(2):

An application referred to in ss(1) may only be made with the leave of the Court.

Ss(3) goes on to say:

This Court is not to grant leave under ss(2) unless it's satisfied that there has been a substantial change in the relevant circumstances since the order was made.

Now Mr Emery has made submissions relying on an affidavit sworn by the applicant recently that there has been a substantial change in the relevant circumstances.  He said that the applicant was intoxicated and angry when she made the original complaint and the stat dec.  Really, it's not put that what she actually said was wrong.  So what if she was intoxicated and angry, I would have expected her to be angry if what indeed is alleged to have happened did in fact occur.  She said it did.  Mr Emery tells me that she is not and has never been scared of the respondent.  Well that is certainly contrary to words contained in the original application, and I fail to see how if this violence was perpetrated on her that she could not have been scared of him.  I simply do not accept that.  They have been in an on and off relationship and they want to reconcile, well, they've tried that before.  I'm not persuaded on the facts put before me that there has been a substantial change in the relevant circumstances since this order was made, despite what's been put.

I refuse the application for leave and the application can't proceed.  Thank you."

The Family Violence Act 2004

1. The framework within which the courts and police are required to operate in relation to FVOs is provided by the Act. The legislation is relatively new and was introduced and has operated amid some controversy. The issue which appears to underpin this matter is the extent to which the police can act independently of a party in seeking an FVO and promoting it's continued existence. Peripherally, although it is not a matter the Court needs to decide, a further issue is the extent to which police and the courts can and should act contrary to what parties to an FVO specifically want.

1. It is necessary to look at some of the provisions of the Act. Section 15(1) and (2) provide:

"(1)     An application for an FVO is to be made to a court.

(2)       An application may be made by –

(a)a police officer; or

(b)an affected person; or

(c)an affected child, if the court is satisfied that the child is capable of understanding the nature of the proceedings; or

(d)any other person to whom leave to apply is granted by a court."

Section 18(1), provides:

"(1) In making an FVO, a court –

(a)must consider the safety and interests of the person for whose benefit the order is sought and any affected child to be of paramount importance; and

(b)must consider whether contact between the person for whose benefit the order is sought, or the person against whom the FVO is to be made, and any child who is a member of the family of either of those persons is relevant to the making of the FVO; and

(c)must consider any relevant Family Court order of which the court has been informed."

Section 20 provides:

"(1)     A person who may make an application for an FVO or a person against whom an FVO has been made may at any time apply to a court for a variation, extension or revocation of the FVO.

(2)       An application referred to in subsection (1) may only be made with the leave of the court.

(3)       The court is not to grant leave under subsection (2) unless satisfied that there has been a substantial change in the relevant circumstances since the order was made or last varied.

(4)       Section 18 applies to the variation, extension or revocation of an FVO in the same manner as it applies to the making of an FVO."

Section 22 provides:

"(1)     A court may make an FVO in terms consented to by the parties.

(2)       In making an FVO by consent, the court may record that the person against whom the order is made does not admit any of the matters alleged in the application for that order."

Section 31(2) provides:

"(2)     At the hearing of an application under Part 3 or 4, the following persons may conduct the applicant's or respondent's case and examine and cross-examine witnesses:

(a)the applicant or respondent;

(b)a legal practitioner representing the applicant or respondent;

(c)a police officer representing the applicant or respondent;

(d)any other person to whom the court grants leave for that purpose."

1. The object of the Act is stated to be:

"In the administration of this Act, the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations."

1. There can be no doubt having regard to the terms of the Act that:

·police are empowered to apply to a court for an FVO;

·applications to vary FVOs may be made to the court;

·those applications may be made by a police officer, an affected person or a person against whom an FVO has been made;

·leave is required to bring such an application; and

·leave is not to be granted unless the court is satisfied there has been "a substantial change in the relevant circumstances since the order was made or last varied".

1. It follows that the police were empowered to make the application for the FVO that they did on 25 April 2005.  It also follows that the applicant was entitled to apply to the court to vary the FVO granted on that application on 26 April and that the learned magistrate was correct in requiring the applicant to seek the leave of the court to bring that application.

Second ground of review

1. The question which underpins this ground of review is what standing, if any, did the police have in respect of the application by the applicant for leave to apply to vary the FVO.

1. Counsel for the applicant argued that the police should have had no role on the application for leave, that they should not have been heard at all and that, in effect, the learned magistrate not only heard the police prosecutor, but based his decision to refuse leave on evidence from the bar table from that prosecutor, ignoring the wishes and evidence from the affected person and the respondent. 

1. There is nothing in the Act which specifically enables the police to be heard on an application such as the one dealt with by the learned magistrate. There is also nothing in the Act which would have given the learned magistrate power to, for example, call witnesses on his own motion or inform himself without regard to the rules of evidence.

1. Counsel for the applicant told the Court that, in the absence of anything obvious in the Act to clarify this matter, he looked at the second reading speech relating to the legislation as an aid to interpretation. He said there was nothing in that speech to assist the Court. He had also not been able to find any authority on the point.

1. However, the Act, s31, provides for procedures in relation to hearing and determining applications. An application to vary with an associated application for leave is an application under the Act, Pt4. As such, s31(2) provides that only certain persons may conduct the applicant's or respondent's case in such applications. It would be nonsensical to read that subsection as allowing all of the parties named there to conduct the one case. Clearly the intent was that one only of those persons would.

1. In this case, the person conducting the case for the applicant was the legal practitioner representing the applicant and not the police.  The police were not representing the respondent, Mr Kemp.  The matter being dealt with was not a criminal prosecution by the police.  It must follow, in my view, that the police prosecutor had no role in the matter and should not have been heard as he was by the learned magistrate.

1. In so hearing the police prosecutor as he did, the learned magistrate therefore erred and this ground of review should succeed.

First ground of review

1. The learned magistrate was required to be satisfied before granting leave that there had been a substantial change in the relevant circumstances since the order was made on 26 April.

1. The words "substantial change" and "relevant circumstances" are not defined in the Act. The ordinary meaning of those words would suggest that what was intended was that the Court be satisfied there had been a significant or obvious change in the circumstances involving the parties affected by the FVO since the date it was made.

1. The learned magistrate was required to consider admissible evidence before him and exercise his discretion having regard to that evidence.  It is not the case that this Court should say his discretion miscarried simply because it might not have reached the same conclusion that he did. 

1. However, having regard to the determination that the police prosecutor should not have been heard by the learned magistrate and having regard to the material put before the learned magistrate by that prosecutor, it is hard not to conclude that the learned magistrate took some or all of that material into account in making his decision.

1. What the learned magistrate had before him was the applicant's police statement in which allegations of violence were made, an application by a police officer for an FVO in which reference was made to previous incidents of domestic violence between the parties and a restraint order.  He also had a sworn statement by the applicant that she would never have made a statement to police had she realised it would be used to obtain the order it did and that contact between her and Mr Kemp would have been prevented.  The applicant also said she was not fearful of Mr Kemp.

1. There was clear material before the learned magistrate that neither the applicant nor Mr Kemp wanted the no contact provisions in the FVO to continue.

1. The learned magistrate took the view that he did not accept that the applicant could not have been scared of Mr Kemp if he did what she said.  However, on the material before him, while he might reasonably have been satisfied the applicant had indeed been scared prior to the making of the FVO, there was no evidence apart from hers as to what had since occurred and she unequivocally said she now was not fearful.  That is, apart from anything else, a clear change of circumstances.

1. The learned magistrate also expressed the view, in effect, that the parties had tried a reconciliation before and it had not worked and by implication it would not again.  That is almost the same inference the police prosecutor was asking him to draw.

1. It is impossible not to conclude that the learned magistrate gave significant weight to the material supplied by the police prosecutor which I have found he should not have heard.  In doing so he rejected sworn uncontested material that the applicant wanted to attempt a reconciliation and was not scared of Mr Kemp, these being matters clearly relating to the period after the FVO was made.

1. In my view the process undertaken by the learned magistrate was flawed in that he took into account inadmissible material and in doing so ignored uncontested sworn information from the applicant.  That process was flawed to such a degree that it must have affected the exercise of his discretion.

1. The order will be that the order of the learned magistrate refusing leave to the applicant to apply to vary the FVO will be set aside.

1. The remaining issue is what should now be done with these proceedings.  The Justices Act 1959, s110(2)(g), empowers this Court to:

"… make all such orders … as the court thinks necessary to secure a final determination of the cause or matter on the merits."

Section 110(2)(i) empowers the Court to:

"… exercise any power that might have been exercised by the justices in relation to whose order the motion to review is made."

1. I will, in the circumstances, hear from counsel as to the manner in which he wishes the Court to deal with this matter.