Peter Gray v Janice Burt
[2005] ACTSC 93
•23 September 2005
PETER GRAY v JANICE BURT [2005] ACTSC 93
(23 September 2005)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No SCA 30 of 2005
Judge: Bennett J
Supreme Court of the ACT
Date: 23 September 2005
IN THE SUPREME COURT OF THE )
) No SCA 30 of 2005
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PETER GRAY
Appellant
AND:JANICE BURT by her next friend HEATHER McGREGOR (COMMUNICTY ADVOCATE)
Respondent
ORDER
Judge: Bennett J
Date: 23 September 2005
Place: Canberra
THE COURT ORDERS THAT:
This appeal is deemed to be a proceeding on an application for a protection order for the purposes of the Domestic Violence and Protections Orders Act 2001 (ACT) so that sections 100 and 101 of that act and a restriction on the publication of reports about the appeal proceedings as prescribed in those sections apply.
The appeal is dismissed with no order as to costs.
On 22 October 2003 a Domestic Violence Order (‘the Order’) was made by the Deputy Registrar of the Magistrates Court pursuant to the Protection Orders Act 2001 (ACT) in relation to the respondent. On 24 May 2004 the Order was varied by consent. In particular the Order restrained and prohibited the appellant from taking certain actions in relation to the respondent. Annexed to the Order was reference to a prearranged contact agreement. It is to be noted that the Order was made by consent with reference to that attachment.
The appellant applied to have the Order revoked. Magistrate Somes declined to revoke the Order and ordered that the appellant’s application be dismissed with costs. It is from that decision that the appellant appeals to this Court. The grounds of his appeal, as set out in the notice of appeal, assert that Magistrate Somes erred in concluding that there were insufficient grounds to revoke the Order made by consent and that His Honour erred in failing to revoke the Order.
There is no dispute that the learned Magistrate applied the correct test in assessing whether or not the Order should be revoked. The test is set out in section 31(3)(a) of the Domestic Violence and Protection Orders Act 2001 (ACT) (formerly entitled the Protection Orders Act 2001). His Honour considered the various matters in relation to the evidence and then set out the test as follows:
The test that has to be applied today is whether I am satisfied that the order is no longer necessary for the protection of [the respondent].
The fact that during the physical relationship between the appellant and the respondent the respondent suffered three separate fractures of her legs is not disputed. The respondent had no history of such injuries prior to that physical relationship and has no history of such injuries subsequent to that physical relationship.
It is clear from his Honour’s reasons that he accepted the evidence that two of the injuries were occasioned subsequent to sexual relations occurring between the parties and recurred as part of the physical relationship. He concluded that it was clear that the physical nature of the relationship represented a genuine risk on the evidence before him to the well-being of the respondent. His Honour accepted all of the evidence put by the various witnesses in coming to this conclusion. It is accepted by the appellant that that was the basis for his Honour’s reasons but the appellant submits that there were three errors on the part of the Magistrate in coming to that conclusion.
The first error so asserted was that the Magistrate failed to take into account the fact that the injuries occurred while the respondent resided in an apartment, was partially under the care of the appellant and was not receiving the same degree of care as she does today. I do not see that as a relevant consideration, bearing in mind that the basis of the decision was the physical relationship between the parties. The evidence before his Honour, to which his Honour referred, was that both parties expressed a desire to continue the physical relationship between them. If it was that physical relationship that caused the injuries, it is hard to see how the location where the injuries occurred was a relevant consideration.
The second matter said to be relevant that his Honour failed to take into account was evidence about counselling that the parties had commenced and intended to continue. Counsel for the appellant informs me that there was no evidence before his Honour that that counselling had been concluded. Nor indeed was there evidence as to the effect of that counselling on the likelihood of absence of injury to the respondent if the physical relationship between the appellant and respondent were to resume. Accordingly, I do not see that as a relevant consideration.
The third matter raised by Ms Keys, who appears for the appellant, is that his Honour failed to take into account the likelihood of future sexual contact between the parties in circumstances where the appellant is now under full-time supervision at Hartley Court. On one view it might be said that the onus was on the appellant to show that there was no such risk of future sexual contact. However, the evidence before his Honour was that the appellant had had a sexual relationship with the respondent while she was living at Hartley Court. I note that the Magistrate did consider the fact that such a relationship was likely to continue in those circumstances.
Ms Keys also raises as a matter that the Magistrate should have taken into account and in Ms Keys’ view did not; the rights of the respondent. In particular she refers to the Disability Services Act 1991 (ACT), which provides for the fact that persons with disabilities have the same basic rights as other members of Australian society and gives particulars of those rights. I would have thought that such a concept did not need an Act to support it and should have been taken into consideration in any event.
I note that the Magistrate specifically referred to the expressed wishes of the respondent to continue the relationship with the appellant. His Honour specifically referred to her right to have a physical relationship if she so desired. However, his Honour concluded that the risk to the respondent resulting from such a relationship was such that he was unable to be satisfied that the order preventing such a relationship was no longer necessary for her protection. I repeat that there was unchallenged evidence before the Magistrate that it was the physical relationship between the parties that caused the respondent to suffer three separate fractures of her legs.
In all the circumstances, and in considering the matters raised by Ms Keys, I cannot see that there was appellable error on the part of the Magistrate. Accordingly, it follows that the appeal should be dismissed. I note that the respondent is not seeking for costs so there will be no orders to costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Bennett.
Associate:
Date: 23 September 2005
Counsel for the appellant: J. Keys
Counsel for the respondent: K. Archer
Date of hearing: 23 September 2005
Date of judgment: 23 September 2005
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