OC v Ux
[2019] ACTMC 25
•25 July 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | OC v UX |
Citation: | [2019] ACTMC 25 |
Hearing Date(s): | 27 June 2019 |
DecisionDate: | 25 July 2019 |
Before: | Magistrate Stewart |
Decision: | See paragraph [4] |
Catchwords: | FAMILY VIOLENCE ORDERS – disclosure - fairness in proceedings – Family Violence Act 2016 (ACT) s 60B not a stalking horse for non-disclosure |
Legislation Cited: | Family Violence Act2016 (ACT) ss 7, 12, 13A, 60A, 60B, 71A, 73 Court Procedures Rules 2006 (ACT) rr 1401, 3802 |
Parties: | OC (Applicant) UX (Respondent) |
Representation: | Counsel Ms R Munk (Applicant) UX (Respondent in Person) |
File Number(s): | FVO 105 of 2019 |
MAGISTRATE STEWART:
BACKGROUND
On 25 March 2019, the Applicant was granted interim orders pursuant to the Family Violence Act2016 (ACT) (‘FV Act’). The Respondent was served with those orders and he opposed the granting of final orders. The matter was listed for hearing in this Court on 27 June 2019.
The Respondent is self-represented.
The Applicant, through her legal representative, successfully sought to adjourn the hearing on 27 June 2019 – the day of the hearing. During that application, I attempted to determine the grounds that were to have been alleged had the hearing commenced. There was some reluctance to particularise the allegations to be relied upon notwithstanding the fact that this was the day of the hearing.
I directed that all allegations to be relied on at hearing were to be particularised to the Court. These are the reasons for that decision.
REASONS
Firstly, lest there be any doubt, pursuant r 3802 of the Court Procedures Rules 2006 (ACT), r 1401 applies to FV Act matters. The Court has power to give a direction on its own initiative.
Justice is paramount in the FV Act. Section 7 sets out how the objects of the FV Act are to be achieved, and, specifically s 7(c) reads “[by] ensuring that access to the courts is simple, quick and inexpensive as is consistent with justice”. Section 12 of the FV Act is headed “Principle about procedures”. That section reads “Procedures for this act are to be as simple, quick and inexpensive as is consistent with achieving justice.” There is no mention of the FV Act not operating according to law other than s 13A, which specifically abandons mandatory compliance with the rules of evidence.
Ms Munk for the Applicant submitted that s 60B of the FV Act can be relied upon to assert that there is no requirement to particularise all of the allegations of family violence to be heard at hearing.
Section 60B reads:
An applicant for a protection order may in a hearing of an application for a protection order—
(a) Rely on information other than information stated in the application; and
(b) Present additional information to support the application.
The initial application, filed on 29 January 2019, stated the following grounds under the section entitled “History of family violence”:
26.1.2019 – Abusive and threatening behaviour in front of our/my son. Intimidating quite close to my body/face.
24.1.2019 – Emotional abuse, loud in a public area. Yelling about, money, my family threatening to take [N]. All whilst holding my child. This went on for 2 hours in the public area. Unable to feed [N] or get him home to a safe place.
Whilst I recognise that the section of the initial application form contains the words “What is the most recent incident of family violence by the respondent?”, it also contains the words “(attach extra pages if more space is needed)”. No further pages were attached by the Applicant, who may well have been unrepresented at that time. The present nature of the application form does not obviate the need for full disclosure to a respondent prior to hearing.
Once the allegations were fully particularised, the Applicant’s case was found to contain multiple further and different allegations including an allegation of actual violence. The case was therefore entirely different to that disclosed in the 29 January 2019 application.
In the absence of a direction for disclosure, the Court was shielded from the true nature and extent of the allegations to be raised at the hearing. As a consequence, in the absence of directing that full particulars be divulged, the Court had no ability to provide the matter with an accurate listing length, priority and date.
Also, and most importantly, whilst the Respondent may have been aware of the broad nature of some of the other allegations through separate family law proceedings, he had no warning that these further allegations were to be relied upon at hearing in this jurisdiction. Had he been legally represented, then his legal representative may have also been labouring under such a misapprehension.
This is not the intent of the FV Act. The FV Act contemplates full disclosure of allegations to be relied upon at hearing. That full disclosure of the allegations to be raised at hearing is to occur well prior to the actual hearing date. Otherwise, there would be little prospect of a Respondent filing a notice of grounds of defence pursuant to s 60A of the FV Act, or no need for the existence of the power of the Court under s 71A to order disclosure of further particulars of an application. One has no ability to request further particulars if one is not aware of the basic nature of the particular.
The FV Act contemplates that, sometimes, further incidents of what might amount to family violence might occur in between the filing of applications and the final hearing date. Section 60B exists so that these acts may be raised and relied upon at hearing.
In some cases where this happens, as a matter of fairness and justice, an adjournment may be required to allow the respondent time to fully prepare their case against fresh allegations.
However, s 60B is not to be utilised as a stalking horse for non-disclosure of existing allegations. Using s 60B in such a way may well cause unnecessary delays and adjournments in hearings for family violence orders, and may well, in some circumstances, give rise to a basis for an application for costs pursuant to s 73(2)(b) of the FV Act.
I suggest that an appropriate time for the filing and serving of particulars of existing allegations to be relied on at hearing is at least seven (7) days prior to the date when the listing date of the hearing is fixed. If an applicant declines to provide particulars in such a way, a party may utilise s 71A of the FV Act with the leave of the Court, or a party may seek a direction for disclosure pursuant to r 1401 of the Court Procedures Rules 2006 (ACT). This will enable the Court and the parties to properly assess the true nature, extent and length of the hearing prior to listing.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Stewart Associate: Angus Brown Date: 25 July 2019 |
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