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District Court 13 April 2021

Wotton v Wotton

[2021] NSWDC 282

Domestic & family violence

Citation: Wotton v Wotton [2021] NSWDC 282
Court: District Court of New South Wales
Date: 13 April 2021
Judge: Montgomery DCJ

Background

The appellant was a son living in a household with his elderly father (the protected person) and mother. The family home was a site of ongoing and serious domestic tension, including a long-running dispute over the appellant's use of the household shower. This friction had escalated to the point where the father had installed a water shut-off device in his bedroom to control the appellant's access to hot water.

A physical confrontation occurred, giving rise to two charges of common assault against the appellant. Both charges were dismissed by the Local Court magistrate, who found the father had been the physical aggressor on the day in question. Despite the not-guilty verdicts, the magistrate made an Apprehended Domestic Violence Order (ADVO) against the appellant. Importantly, the appellant had not opposed the making of the ADVO in the Local Court.

The appellant appealed to the District Court against the ADVO. His case on appeal relied substantially on the magistrate's own findings, accepting them as an accurate characterisation of the evidence.

  • Whether the ADVO was properly made given that the appellant was found not to have been the instigator of the relevant confrontation and was acquitted of both assault charges.
  • Whether the absence of actual fear on the part of the protected person (the father) was a barrier to the making of an ADVO under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  • Whether section 16(2) of that Act applied so as to dispense with the need to establish that the protected person actually feared a personal violence offence.

Decision

Montgomery DCJ dismissed the appeal. The Court accepted the appellant's characterisation of the evidence below, including that the father had physically approached the appellant and that the appellant had not sought out or pursued the confrontation. Nevertheless, the Court found that the making of the ADVO was justified on the basis of the broader context of sustained and serious household disharmony.

The Court turned to section 16(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which provides that a court need not be satisfied the protected person actually fears a personal violence offence will be committed. The father, aged 92 or 93, had told police he was not fearful of the appellant. The Court acknowledged that statement but noted section 16(2) expressly removes the requirement for proven fear.

Under section 16(2)(c)(ii), the relevant question is whether there is a reasonable likelihood that the defendant may commit a personal violence offence against the protected person. Given the history of sustained and volatile confrontation within the household, including at least one instance of physical altercation, the Court was satisfied on the balance of probabilities that such a reasonable likelihood existed. The appeal was dismissed on that basis.

Orders Made

• The appeal is dismissed

Key Takeaways

  • Under section 16(2)(c)(ii) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a court is not required to find that the protected person actually fears a personal violence offence. A reasonable likelihood that the defendant may commit such an offence is sufficient.
  • An acquittal on associated assault charges does not, of itself, preclude the making of an ADVO. The court's assessment of whether an order is warranted draws on the full context of the parties' relationship and history of conflict.
  • A statement by the protected person to police that they are not fearful of the defendant does not automatically defeat an application for an ADVO where section 16(2) applies.
  • In dismissing the appeal, the District Court assessed risk by reference to the pattern and severity of ongoing household conflict rather than treating the precipitating incident as an isolated event.
  • The decision illustrates that the statutory framework for ADVOs is expressly designed to operate even where the protected person does not subjectively acknowledge being at risk, provided the objective circumstances support a reasonable likelihood of future violence.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 16(1), 16(2)
- Criminal Appeal Act 1912 (NSW), s 18

Cases:
- Fox v Percy (2003) 214 CLR 118