Medium Neutral Citation: P E v M U [2010] NSWDC 2
Hearing dates: 5/1/2010
Decision date: 07 January 2010
Jurisdiction: Civil
Before: Williams DCJ
Decision:
I uphold the appeal. The APVOs are set aside. The application for cross APVOs is likewise dismissed. As rational communication between the parties seems to have disappeared I would urge them to take advantage of the cheap and accessible means available to them for resolving issues relating to dividing fences, trees, dogs and other things by way of applications to the Local Court or the Land & Environment Court under the pieces of legislation that I have already referred to. I make a non-publication order of the parties names and identifying factors.
Catchwords: Apprehended Personal Violence Orders – appeal against refusal of annulment – nature of such applications – APVOs should not be given lightly or on defective evidence – criteria for making such orders
Legislation Cited: Crimes (Domestic and Personal Violence) Act
Dividing Fences Act
Companion Animals Act
Trees (Disputes Between Neighbours) Act
Category: Principal judgment
Parties: P E (Applicant)
M U (Respondent)
File Number(s): 2009/12/1768
Judgment
HIS HONOUR:
This matter is an appeal under the provisions of the Crimes (Domestic and Personal Violence) Act. The appellant is Mr E, the respondents are Mrs U, her son R U and her daughter B U.
The E’s and the U’s live next door to each other in a Sydney suburb. One house is owned by Mrs U and she lives there with her adult son and adult daughter. Mr E lives in the other with his partner, Ms H, who is expecting a child at Easter together with their young son.
Since 2007 relationships between the parties has deteriorated to the stage where Apprehended Personal Violence Orders (APVO) have been sought by each against the other. In an endeavour to resolve the matter his Honour in the Local Court referred them to a Community Justice Centre mediation which took place, unsuccessfully, over a three hour period in June last year. His Honour on 1 June 2009 adjourned the APVO hearing until 6 July 2009 to enable the mediation to take place. However, I stress that the 6 July 2009 was not a hearing date but a mention date. His Honour said to the parties on 1 June 2009 that:
“On 6 July you may not have to come back, hopefully you don’t, if you do, then come back on 6 July for mention of all the matters.”
The formal order that was made was that the matter was stood over for mention on that date.
On 6 July 2009, the U’s turned up at Court but not Mr E. His Honour then proceeded to hear the matter in Mr E’s absence taking evidence, very briefly, from Mrs U. In my view, there was not sufficient evidence available after hearing Mrs U for His Honour to make an order, but an order was made.
When Mr E was served with the order he made an application to annul it and that application was heard on 3 August 2009. His Honour did not accept Mr E’s explanation and declined to annul the orders. With respect I disagree with his Honour’s decision in the circumstances that pertained at the time. In my view, there was no proper basis to make the original orders in the first place and secondly, they should have been annulled given the circumstances explained by Mr E and the fact that the matter was not in for hearing on 6 July 2009 but for mention only.
In the interests of the expedition of this long running dispute it was not appropriate for me to refer the matter back to the Local Court as I could have.
Mrs U made an application for an adjournment to April because her lawyer was not available until then. That was opposed on the basis that Mr E was here and present and ready to deal with the matter and that his partner, Ms H, was expecting a child at Easter this year. I refused the application for those reasons and also again, in the interests of resolving or attempting to resolve this long running dispute between the parties.
Evidence in one form or another was given by Mrs U, Mr R U and Ms B U and Mr E and his partner. A large number of exhibits were tendered.
The facts are anything but clear. No one person’s evidence was such that the Court could rely on it, even on the balance of probabilities standard. Mrs U’s evidence was rambling, incomprehensible, disconnected, irrational and unreliable. There is also documentary evidence of this in Mrs U’s three page discursive response of 11 November 2008, to a half page request by Mr E dated 3 January 2008 which is now exhibit J in these proceedings.
Mr R U’s evidence was similar to Mrs U’s perhaps even more so. Barbara U’s evidence was rambling, emotive and unreliable.
Mr E did not give evidence in the accepted sense. I took the view that his statements from the bar table and his questioning and propositions put to the witnesses plus the documents and photos he tendered sufficiently set out his case, which at 4pm was still continuing with evidence from his partner, Ms H.
I did not invite the parties to address the Court because they had, in effect, been doing that all day. After initial attempts to limit the proceedings to a question and answer situation I could see that was doomed to failure so I tended to let the parties say what they wanted to say except where we seemed to be getting a very long way from the point. That being said, Mr E’s statements and observations were not always logical, consistent, accurate or reliable and often became rambling.
Despite the capacity of the Court to deal with such matters without applying the strict rules of evidence, which the Court is enabled to do under s67 of the Act, there are limits as to what the Court can do and where parties choose to represent themselves the Court is often placed in an invidious position particularly where all the parties are unrepresented. However, the consequences of an APVO being made are of sufficient seriousness that the Court should not act on unproved disputed allegations, vague and contradictory testimony and incomprehensible and unreliable evidence, not to mention that the evidence may also be irrelevant or inadmissible. APVOs should not be made lightly by the Court given the serious criminal consequences of a breach of such an order and should only be made on relevant and reliable evidence following the intent and the meaning of the legislation. If an APVO is made inappropriately, rather than calm a developing situation it can tend to inflame it by giving apparent legitimacy to inappropriate conduct.
It was quite apparent that the issues between parties has caused a significantly emotional reaction in all of them and that also clouded the true picture even further.
As stated above, these proceedings are governed by the Crimes (Domestic and Personal Violence) Act . Section 10 sets out the objects of the Act in regard to personal violence which is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship . The section says that it aims to achieve that objective by enabling Courts to make orders to protect people from violence, intimidation, harassment and stalking by means of safe, speedy and in-expensive access to the Court and by ensuring alternative dispute resolution procedures are engaged wherever possible. Intimidation is defined in s 7 of the Act to mean:
“Conduct amounting to harassment or molestation of the person or an approach made to the person by any means that causes the person to fear for his or her safety or any conduct that causes a reasonable apprehension of injury to a person, or to a person with whom he or she has a domestic relationship, or violence or damage of any person or property. For the purpose of determining whether a person’s conduct amounts to intimidation a Court may have regard to any pattern of violence, especially violence constituting a domestic violence offence, in the person’s behaviour.”
Stalking is defined in s 8 of the Act to include:
“The following of a person about or the watching or frequenting the vicinity of or an approach to a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity. For the purpose of determining whether a person’s conduct amounts to stalking a Court may have regard to any pattern of violence, especially violence constituting a domestic violence offence, in the person’s behaviour.”
In the circumstances of this case I am satisfied that there has been no actual personal violence inflicted by any party on the other nor has any conduct been engaged in that would amount to stalking as defined by the legislation. That leaves intimidatory conduct which is conduct amounting to harassment or molestation or contact by one person with another such as would cause that other person to fear for their safety.
Harassment is not defined in the Act but in its legal sense it refers to ongoing behaviours which are found to be threatening or disturbing . Likewise, molestation is also not defined but again in its legal sense it refers to behaviours which are found to be ongoing and unwanted and of a pestering, interfering or sexual nature .
Regrettably APVOs are being sought and even more regrettably obtained in many circumstances where an order is not justified thereby bringing the objects and purpose of this piece of incredibly vague legislation into even further disrepute. Given the stated purposes of the legislation APVOs should not be used to regulate disputes between neighbours that are capable of being dealt with under other legislation such as the Dividing Fences Act , the Companion Animals Act or the Trees (Disputes Between Neighbours) Act or that are the proper function and province of other bodies such as Local Councils. APVOs should not be used as a tool to achieve an end unrelated to the stated purposes of the Act.
At best the evidence in this case might establish a case of harassment by the opposing parties against each other. There certainly seems to have been somewhat irrational responses to real or perceived incidents that most people would regard as so minimal as to not be worth any further consideration. Given the object of the Act, being the safety and protection of persons who experience violence outside a domestic relationship, the degree of harassment would need to be substantial and substantive to warrant the intervention of the Court and in my view that is not the case here.
If I had the power I would refer the parties for counselling. Unfortunately, I do not have such power nor, short of finding a matter established, do I have any power, as used to be the case, to compel the parties to keep the peace between each other.
I uphold the appeal. The APVOs are set aside. The application for cross APVOs is likewise dismissed. As rational communication between the parties seems to have disappeared I would urge them to take advantage of the cheap and accessible means available to them for resolving issues relating to dividing fences, trees, dogs and other things by way of applications to the Local Court or the Land & Environment Court under the pieces of legislation that I have already referred to. The exhibits can be returned. I will direct that a copy of my reasons be taken out as soon as possible and made available to the parties.
I make a non-publication order of the parties names and identifying factors.
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Amendments
11 May 2020 – Corrected paragraph numbering