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District Court 3 March 2026

MR v R

[2026] NSWDC 28

Domestic & family violence
APPREHENDED VIOLENCE ORDER APPEALS AND REVIEWS

Citation: MR v R [2026] NSWDC 28
Court: District Court of New South Wales
Date: 3 March 2026
Judge(s): Abadee DCJ

Background

The appellant (MR) and the person in need of protection (the PINOP) were former domestic partners with three young children. MR had significant parental responsibility for the children while the PINOP worked full time. The relationship broke down, and the couple separated in June 2025, with concurrent proceedings in the Federal Circuit and Family Court concerning child parenting arrangements.

On 19 June 2025, the PINOP attended Muswellbrook Police Station and reported an incident she said occurred on 4 February 2025 — a delay of approximately four and a half months. Her account generated three domestic violence charges against MR. A provisional ADVO was made the following day, followed by an interim ADVO on 8 July 2025. On the day she reported to police, the PINOP also participated in a Domestic Violence Evidence in Chief (DVEC) recording.

On 12 September 2025, the Singleton Local Court (Magistrate Hockey) dismissed all three criminal charges against MR. The Magistrate found the PINOP to be a credible witness with impressive demeanour, but was not satisfied beyond reasonable doubt that the prosecution had proved its case — primarily due to deficiencies in the police investigation, including an inability to independently verify that the PINOP's phone notes were contemporaneous and the failure to interview a child who was a material witness. Despite dismissing the charges, the Magistrate made a final ADVO for two years, finding that the civil standard of proof on the balance of probabilities was met. MR appealed the final ADVO to the District Court.

  • Whether the Crown should be granted leave to adduce fresh evidence on appeal — specifically, a 2-minute-and-33-second portion of the PINOP's DVEC recording that was not played in the Local Court, which contained material relevant to the ADVO application (including the PINOP's expressions of fear and accounts of earlier intimidation and a prior physical incident).

  • Whether, if the Crown was permitted to adduce fresh evidence, the appellant should also be permitted to give fresh evidence — specifically, evidence about difficulties he had experienced complying with the ADVO since it was made.

  • Whether the interests of justice test under s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) was satisfied for the admission of each party's fresh evidence.

  • On the merits, whether the final ADVO should be confirmed, varied, or set aside — this required the appeal court to assess the evidence (including any fresh evidence admitted) and determine whether the statutory requirements under ss 16 and 17 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) were satisfied on the balance of probabilities.

  • The proper approach to an appeal by way of rehearing where credibility findings made by the Magistrate were in play and neither party sought to re-call the PINOP for further cross-examination on the fresh evidence beyond the DVEC content, and where the appeal court had to consider the advantages enjoyed by the trial court in observing witnesses.

Decision

Admission of Fresh Evidence

Abadee DCJ granted both parties leave to adduce fresh evidence. The unplayed portion of the DVEC had not been before the Local Court because it related to the ADVO application rather than the criminal charges — its absence from the hearing below was not the result of any tactical decision or fault of the parties but rather an oversight in how the criminal and ADVO proceedings were run on the same evidence. The Crown submitted, and his Honour accepted, that the content was plainly relevant to the ADVO proceeding. The appellant did not oppose the Crown's application, and the Crown did not oppose the appellant's application. Abadee DCJ was satisfied that the interests of justice warranted admitting the additional DVEC material (which included the PINOP's account of a prior physical incident, her expressions of fear for herself and the children, and her description of a pattern of verbal abuse and intimidation) and the appellant's evidence about post-order compliance difficulties.

The Merits of the ADVO

On the substantive appeal, Abadee DCJ considered the nature of the appeal as a rehearing under s 18 of the Crimes (Appeal and Review) Act 2001, noting the well-established principles from Fox v Percy and related authorities regarding the deference owed to a trial judge's credibility findings, particularly where those findings rest on demeanour. His Honour observed that the Magistrate had found the PINOP to be credible and was not satisfied only because the criminal standard of proof had not been met — the Magistrate expressly stated he held a "strong suspicion" that her evidence was true and found the civil standard was satisfied.

Abadee DCJ addressed the appellant's arguments, which centred on the contention that if the charges were dismissed, the evidentiary foundation for the ADVO was necessarily undermined. His Honour rejected this, reaffirming the well-established principle that an ADVO proceeding is civil in nature and requires proof on the balance of probabilities, not beyond reasonable doubt. The same evidence that fell short of the criminal standard could — and in this case did — satisfy the lower standard. His Honour noted that the fresh DVEC evidence, which included the PINOP's account of a prior physical altercation, her descriptions of intimidation and verbal abuse, and her expressed fears for herself and the children, reinforced the Magistrate's conclusion that the statutory prerequisites for an ADVO under ss 16 and 17 of the Act were established. The court also had regard to the appellant's own admissions in his ERISP — including that arguments occurred, that they moved to the bedroom to argue, and that he had told the PINOP she was "playing the victim" — which provided some corroboration of aspects of the PINOP's account.

On the question of the appellant's fresh evidence regarding compliance difficulties since the ADVO was made, Abadee DCJ considered this material but found it did not undermine the need for the order. The existence of practical inconvenience did not displace the court's satisfaction that the statutory preconditions for the order were met.

His Honour ultimately concluded that the Magistrate's decision to make the final ADVO was correct and should be upheld.

Orders Made

  • The Crown's application for leave to adduce fresh evidence (the balance of the DVEC recording) was granted.
  • The appellant's application for leave to give fresh evidence was granted.
  • The appeal against the final ADVO was dismissed.
  • The final Apprehended Domestic Violence Order made on 12 September 2025 was confirmed.

(Note: The full text of the judgment was truncated. The orders listed above are based on the reasoning disclosed in the available portion of the judgment. Practitioners should consult the full judgment for the precise terms of any orders made.)

Key Takeaways

  • Dismissal of criminal charges does not automatically defeat an ADVO, and the District Court reinforced with particular clarity that the different standards of proof (beyond reasonable doubt versus the balance of probabilities) mean the same evidence can fail to support a criminal conviction yet be sufficient to ground a final ADVO.

  • Where a DVEC recording contains distinct segments addressing criminal charges and an ADVO application respectively, the failure to play portions relevant to the ADVO hearing in the court below may necessitate a fresh evidence application on appeal. The District Court found that such recordings may contain material of direct relevance to ADVO proceedings that is simply not played during the criminal component.

  • Under s 18(2) of the Crimes (Appeal and Review) Act 2001, the "interests of justice" test was readily satisfied where the evidence had not been adduced below due to oversight rather than tactical choice, was plainly relevant, and neither party opposed its admission.

  • Consistent with Fox v Percy principles, credibility findings by the trial court remain significant on appeal by way of rehearing. The District Court noted that deference is owed to the Magistrate's assessment of witness demeanour and credibility, and that overturning findings grounded in demeanour-based credibility assessments presents a substantial difficulty for appellants.

  • Practical difficulties in complying with an ADVO after it has been made were held to be unlikely, on their own, to provide a basis for overturning the order on appeal. The District Court found that post-order inconvenience does not displace a court's satisfaction that the statutory preconditions for making the ADVO have been met.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 18