Citation: [2011] NSWDC 113
Court: District Court of New South Wales
Date: 12 August 2011
Judge: Cogswell SC DCJ
Background
The appellant and the first respondent were brothers, aged 50 and 46 respectively, who had been sharing the care of their elderly mother, aged 75 and suffering from a form of dementia. Significant tension had developed between the brothers over their mother's care arrangements, her assets, and the potential sale of the family home in Rozelle.
Two specific incidents gave rise to the Apprehended Violence Order (AVO) made against the appellant by a Local Court magistrate. The first occurred on 21 February 2010 at the family home, where a disagreement about a beach trip escalated into a heated confrontation involving all three family members, prompting police attendance. The second occurred on 1 March 2010 outside a hospital, where an argument about the mother's care continued into the car park and the appellant's brother drove away with the car door still open.
The appellant, who was self-represented, exercised his right of appeal to the District Court. The protected persons under the AVO were his mother and his brother.
Legal Issues
- Whether the protected persons had reasonable grounds to fear, and in fact feared, the appellant engaging in conduct amounting to intimidation or stalking within the meaning of s 19 of the Crimes (Domestic and Personal Violence) Act 2007.
- Whether, even if that fear was established, the conduct was sufficient to warrant the making of the AVO.
- Whether changed circumstances since the original order was made affected the appropriateness of continuing the order on appeal.
Decision
On appeal to the District Court, the judge heard the matter afresh and was entitled to consider fresh evidence, including evidence of events that had occurred after the magistrate's original decision. The judge confirmed that the District Court's role on such an appeal is not to identify error in the magistrate's reasoning but to independently determine the appropriate order.
The judge was satisfied, on the balance of probabilities, that both the mother and the brother had reasonable grounds to fear, and in fact did fear, the appellant engaging in intimidating or stalking conduct. The judge found the evidence established that both were exhausted by the appellant's behaviour across the two incidents.
However, the judge was not satisfied that the conduct was sufficient to warrant the making of the order at the time of the appeal hearing. The judge noted that the matter had been a family dispute that had escalated on a couple of specific occasions. Importantly, by the time of the appeal, the mother had sold the Rozelle property, purchased property near Ulladulla on the NSW South Coast with the brother's family, and was living settled and happily there, well removed from where the appellant resided in Sydney.
The judge concluded that, given those changed circumstances, the conduct no longer met the threshold of being sufficient to warrant the continuation of the order. The appeal was allowed and the AVO set aside.
Orders Made
- The appeal by the appellant against the making of the Apprehended Violence Order was allowed.
- The Apprehended Domestic Violence Order or Apprehended Personal Violence Order made in the Local Court was set aside, pursuant to s 20 of the Crimes (Appeal and Review) Act 2001 and s 84 of the Crimes (Domestic and Personal Violence) Act 2007.
- No costs order was made, as the appellant was self-represented and did not seek costs.
Key Takeaways
- A District Court judge hearing an appeal against an AVO does not review the magistrate's decision for error but determines the appropriate order afresh, and may receive and act upon fresh evidence reflecting circumstances that have changed since the original hearing.
- Under s 19 of the Crimes (Domestic and Personal Violence) Act 2007, the court must be satisfied of two distinct matters: first, that the protected person has reasonable grounds to fear, and in fact fears, the relevant conduct; and second, that the conduct is sufficient, in the opinion of the court, to warrant making the order. Both elements must be established.
- Where the first element is established but changed circumstances mean the conduct no longer meets the warranting threshold, the court may decline to continue the order even if the original grant was appropriate at the time.
- The District Court found that a genuine shift in living arrangements, placing significant geographical distance between the appellant and the protected persons, was a relevant factor in determining whether an AVO remained warranted.
- In dismissing the continued need for the order, the court made no finding of undue influence by either brother over their mother, treating that contested issue as irrelevant to the AVO determination.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 20
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 16, 19, 84
Cases: No cases were cited in the judgment.