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District Court 18 October 2010

Farthing v Phipps

[2010] NSWDC 317

Domestic & family violencePublic order & justice offences
CRIMINAL LAW MENTAL HEALTH CAPACITY TO UNDERSTAND TERMS OF ORDER

Citation: Farthing v Phipps [2010] NSWDC 317
Court: District Court of New South Wales
Date: 18 October 2010
Judge(s): Lakatos SC DCJ

Background

The appellant, Ms Phipps, was the subject of an Apprehended Violence Order (AVO) made by a Local Court Magistrate under the Crimes (Domestic and Personal Violence) Act 2007. The order was sought by Mr Farthing, who lived in the same supported accommodation arranged by the Department of Ageing, Disability and Homecare. Both individuals have intellectual and cognitive disabilities.

The two had been placed together from around 2005, reportedly despite concerns raised by people familiar with them about their compatibility. Over time, a pattern of verbal abuse and physical violence emerged, including an incident on 10 February 2010 in which Ms Phipps struck Mr Farthing across the back of the head and neck in the presence of a home care assistant. Mr Farthing gave evidence that he remained in fear of Ms Phipps and that the two might still encounter each other at social venues in the Northern Beaches area, even after being relocated to separate residences.

The Magistrate found sufficient grounds for the AVO and made a six-month order. Ms Phipps appealed to the District Court, arguing that her cognitive impairment meant she could not properly understand or comply with the order.

  • Whether the factual threshold for making an AVO under the Crimes (Domestic and Personal Violence) Act 2007 was satisfied on the evidence.
  • Whether Ms Phipps' significant cognitive and psychiatric impairment meant the proceedings were conducted unfairly, by reference to the fitness-to-plead principles in R v Presser.
  • Whether, even if the threshold was met, it was appropriate to impose an AVO on a person who lacked the capacity to understand its terms, given that breach of an AVO carries criminal consequences including possible imprisonment.
  • Whether making the order would actually serve to protect Mr Farthing in those circumstances.

Decision

The District Court accepted, as the Magistrate had found, that the factual basis for making an AVO was plainly established. Mr Farthing had a domestic relationship with Ms Phipps within the meaning of the Act and had reasonable grounds to fear personal violence from her. The court expressed no doubt on that point.

However, the court declined to resolve the appeal on the broader fitness-to-plead argument. Lakatos SC DCJ expressed considerable sympathy for the underlying principle but concluded that, given the state of the existing authorities, it was not his role to advance the law on that question.

Instead, the appeal was allowed on a more targeted ground. The weight of the expert and lay evidence, including the opinion of psychiatrist Dr Peter Wurth, the evidence of Ms Phipps' solicitor, and a finding by a Guardianship Board representative that Ms Phipps did not understand the domestic violence legislation, collectively established that Ms Phipps lacked sufficient understanding of the order's terms to comply with them. Psychiatric reports from Manly Hospital confirmed she had little or no understanding of the legal processes involved.

The District Court held that imposing an order in those circumstances would not protect Mr Farthing and would instead expose Ms Phipps to criminal liability for unintentional breaches. The order was quashed.

Orders Made

  • Appeal allowed.
  • Orders of the Magistrate quashed.

Key Takeaways

  • The District Court held that, even where the factual grounds for an AVO are clearly established, the utility and fairness of the order must be assessed in light of the respondent's cognitive capacity to understand and comply with its terms.
  • A psychiatric diagnosis or intellectual disability alone is not necessarily determinative; the court conducted a detailed review of the evidence to assess whether this particular respondent had sufficient comprehension of the order's requirements.
  • Where a person cannot genuinely understand an AVO, making the order does not necessarily protect the protected person and may instead create an unjust risk of criminal exposure for the respondent through unintentional breach.
  • The court declined to extend the R v Presser fitness-to-plead principles to AVO proceedings, noting that doing so would represent a development of the law beyond what the available authorities supported at District Court level.
  • Consistent evidence across multiple sources, including specialist psychiatrists, a Guardianship Board representative, and the respondent's own solicitor, proved decisive in establishing the incapacity finding.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 5, 5D, 16

Cases
- R v Presser [1958] VR 45 (fitness-to-plead principles)
- John Fairfax Publications Pty Limited v The Ryde Local Court (2005) 62 NSWLR 512