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District Court 30 March 2023

AA v R

[2023] NSWDC 74

Domestic & family violence

Citation: AA v R [2023] NSWDC 74
Court: District Court of New South Wales
Date: 30 March 2023
Judge: Scotting DCJ

Background

The appellant and the protected person (referred to in the judgment as the PINOP) are former spouses with two children. A consent apprehended domestic violence order (ADVO) had been in place since November 2020 for a period of two years. In August 2021, police commenced fresh proceedings seeking a further ADVO, relying on conduct including Facebook posts made by the appellant in March and April 2021, an interaction at a property auction in June 2021, and two visits by the appellant to the PINOP's residence in July and August 2021.

A final ADVO was made by Magistrate Donnelly at Sutherland Local Court on 2 September 2022 for a 12-month term. The appellant appealed to the District Court against the making of that order.

On appeal, the prosecution conceded that the Facebook posts were the most significant conduct and that the other events were innocuous. Scotting DCJ accepted that concession, finding that the magistrate had erred by treating the home visits and the auction interaction as significant. The appeal therefore turned entirely on the Facebook posts.

  • Whether the magistrate erred in finding that the home visits and auction interaction were relevant to the making of the ADVO.
  • Whether the Facebook posts, considered alone, provided a sufficient basis for making the ADVO under s 16 of the Crimes (Domestic and Personal Violence) Act 2007.
  • Whether the ADVO, if warranted at all, should be varied in its duration or conditions.
  • Whether the fresh ADVO application, filed while a prior consent order remained in force, was an abuse of process.

Decision

Scotting DCJ identified a preliminary procedural concern: because an ADVO was already in force when the August 2021 application was filed, the proper course would have been to apply to vary the existing order rather than commence fresh proceedings. The judge acknowledged there was some force in an abuse of process argument but declined to resolve it, instead treating the second application as an application to vary the existing order and proceeding to determine it on the merits.

On the Facebook posts, the court found that the content, published while the parties were engaged in contested family law proceedings, contained references suggesting that men involved in the family court system could be driven to lash out with extreme violence, and that fathers treated unfairly might react violently against former partners or children. The PINOP was not a Facebook friend of the appellant and had blocked him, but mutual friends could see the posts. The court was satisfied that the PINOP had reasonable grounds to fear the appellant based on those posts, and that the risk, although small, was linked by the appellant's own words to a risk of extreme violence.

The court also accepted that the additional orders, prohibiting the appellant from approaching the PINOP's home or workplace and from contacting her except through her legal representative, were justified and not an unnecessary intrusion on his rights. However, given the absence of any further incidents and the pending conclusion of family law proceedings, the court found that the ADVO need only extend until shortly after the scheduled final family law hearing in late May 2023.

The appeal was allowed in part, with the order varied to expire on 26 May 2023, coinciding with the anticipated conclusion of the family law proceedings, after which the Federal Circuit and Family Court of Australia could address any further need to regulate the appellant's conduct.

Orders Made

  • Appeal allowed in part.
  • The ADVO made by the magistrate is varied so that it expires on 26 May 2023.
  • In all other respects, the magistrate's orders are confirmed.

Key Takeaways

  • The District Court confirmed that, on an appeal under s 18 of the Crimes (Appeal and Review) Act 2001, the appellate court must identify factual, legal or discretionary error before intervening, but is ultimately obliged to give the judgment that ought to have been given at first instance.
  • Where a consent ADVO is already in force, a fresh application seeking substantially the same protection may raise abuse of process concerns. The proper course is generally an application to vary the existing order.
  • Social media posts referencing violence in the context of family law disputes can, in appropriate circumstances, satisfy the requirement under s 16 of the Crimes (Domestic and Personal Violence) Act 2007 that the protected person have reasonable grounds to fear the commission of a domestic violence offence or intimidatory conduct, even where the protected person did not see the posts directly.
  • Under s 9(1) of the DV Act, the objects of the Act require a court to "ensure" the safety of protected persons. The District Court interpreted this as requiring steps that will make safety certain, meaning that even a small risk of violence may justify the making or extension of an order.
  • Duration of an ADVO may be calibrated to specific foreseeable circumstances. Here, the order was shortened to align with the conclusion of family law proceedings, as the court considered that context the principal driver of the risk.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 84
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 9, 16, 17

Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- Director of Public Prosecutions v Best [2016] NSWSC 261 (referenced but not further analysed)