Magistrates - Jurisdiction and procedure generally - Procedure - Orders and convictions - Particular orders - Other orders - Family violence orders - Interim order - Form of Application - Admissibility of evidence.

Family Violence Act 2004 (Tas), ss15, 16 and 23.

Judgment Number: [2006] TASSC 105

1 On 13 October 2006 a magistrate, in the absence of the applicant, made an interim family violence order ("IFVO") against him pursuant to the Family Violence Act 2004 ("the Act"), s23. The applicant seeks a review of the making of that order.

2 On 13 October 2006 an application for a family violence order ("FVO") was filed with the court of petty sessions at Hobart. The application was made by "Debra Rabe, Court Support Services, Department of Justice". The person sought to be protected was Sonya Anne Remess. The relationship of Debra Rabe to the person sought to be protected was expressed to be "client". The application came on for hearing before a magistrate in the absence of the applicant. An IFVO was made for a period of 60 days and the application was otherwise adjourned to 21 November 2006.

"1 (a) That the Learned Magistrate erred in law in making an interim Order pursuant to the Family Violence Act 2004 when leave to make an Application under that Act had neither been sought nor granted.

(b) Alternatively, that the Learned Magistrate erred in law in granting leave to make the Application when the material before her was insufficient for that purpose.

2 That the Learned Magistrate erred in law in making an interim Order under the Family Violence Act 2004 when the evidence contained in the Application for the Order was entirely hearsay.

3 That the Learned Magistrate erred in law in making an Order under the Family Violence Act 2004 without allowing the Respondent to that Application an opportunity to be heard."

4 Ground 3 was abandoned at the hearing, counsel for the applicant conceding the learned magistrate was entitled to proceed in the absence of the applicant.

5 The Act, s15(2), provided:

(c) an affected child, if the court is satisfied that the child is capable of understanding the nature of the proceedings; or

(d) any other person to whom leave to apply is granted by a court."

6 Counsel for the applicant submitted that Ms Rabe was a person obliged to seek leave by reference to s15(2)(d), she did not do so, no leave was granted by the learned magistrate and, as a consequence, the learned magistrate had no jurisdiction to proceed to hear the matter and make an order. That is, leave was a pre-condition to jurisdiction.

7 There is no doubt Ms Rabe was a person required to seek leave pursuant to s15. She identified herself as such by the application she filed with the court. On the face of the transcript of the proceedings before the learned magistrate, Ms Rabe made no application for such leave and no grant of leave was made. Three issues need to be considered. Firstly, is leave a pre-condition to jurisdiction? Secondly, can the granting of leave be inferred from the conduct of the proceedings? Thirdly, if a grant of leave can be inferred, was there sufficient material before the learned magistrate to grant such leave?

8 To deal with the first question, it is necessary to look at the Act to see where the learned magistrate's jurisdiction to make an FVO came from. It is clear from a reading of the Act that s16 provides the basis for the court's jurisdiction and not s15. Section 16(1) provides:

"16 (1) A court may make an FVO if satisfied, on the balance of probabilities, that -

Section 23(1) provides the jurisdiction for a magistrate to make an IFVO. That section provides:

"23 (1) At any stage during proceedings under this Part, a court may make an interim FVO, whether or not it is satisfied of the matters set out in section 16(1)."

9 The Act, s15, on the other hand, provides for the classes of persons who may make applications for an FVO, some of whom may make an application as of right while others are required to seek leave.

10 I am satisfied that s15 provides for procedure and does not go to the very basis of the court's jurisdiction to make an order. I am encouraged in that view by the words of Dawson J, albeit in relation to different legislation, in Emanuele v Australian Securities Commission (1996 - [1997] HCA 20; 1997) 188 CLR 114 at 125, where he said:

"Section 459P does not confer jurisdiction on the Federal Court to make a winding up order; it does no more than identify the parties who may make an application, requiring leave to be obtained in the case of some of them including the Commission. ... The failure to obtain leave was a mere defect or irregularity in the exercise of that jurisdiction. It did not affect the validity of the order made, although it may have provided a ground for staying it or setting it aside."

11 The answer to the first question posed is that a grant of leave is not a pre-condition to jurisdiction.

12 The second and third questions posed can conveniently be dealt with together. They also involve a consideration of the matter raised by ground 2 of the review, that is the issue of hearsay evidence. Counsel for the applicant conceded that the proceedings before the learned magistrate were in the nature of an interlocutory proceeding and that the Evidence Act 2001, s75, was therefore to be considered. That section provides:

"75 In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source."

13 Counsel's submission was that nowhere in Ms Rabe's application were the sources of her information disclosed and hence the material in it was inadmissible. Insofar as ground 1 of the review was concerned, the argument was that the learned magistrate, in exercising her discretion as to whether or not to grant leave to Ms Rabe, should have had regard to the adequacy of the material before her. Since it was entirely hearsay, there was nothing in the material upon which the learned magistrate could properly have considered the question of leave.

14 As to the issue of leave, the Act is silent as to the factors to be considered by a court in determining whether or not to grant leave pursuant to s15(2)(d). The section, however, recognises that applications may be brought by persons other than affected persons for the protection of those persons. It also, in my view, by allowing a police officer, for example, to make an application without leave, recognises that an affected person may have sought help from that police officer or that such an officer may have acquired knowledge through his position, either from the affected person or otherwise, for the need for an application.

15 It must follow that similar considerations should apply when a court is determining the question of leave pursuant to s15(2)(d). That is, the court should consider the position of the person seeking leave, their relationship to the affected person and whether they may have acquired knowledge of the matters the subject of the application. In the present case the learned magistrate had before her an application in the form required by the court. The transcript discloses she had read the application prior to the hearing. On the face of that application:

- Ms Rabe was the manager, Victim Support Services and with the Court Support Service in the Department of Justice;

- the person to be protected was a client of hers; and

- Ms Rabe had information from various sources relating to Ms Remess and her perceived need for an FVO.

The transcript discloses the learned magistrate recognised Ms Rabe and called her to the front of the court, identifying her as Ms Remess' representative. It is clearly open to this Court to infer the learned magistrate had dealt with Ms Rabe before in circumstances similar to the present case.

16 The fact of Ms Rabe's position and her relationship with Ms Remess, standing alone, would have identified her as being a person in a position to provide assistance to Ms Remess and likely to have knowledge of her situation or access to such knowledge. It would have been entirely appropriate in those circumstances for the learned magistrate to grant leave, even without regard to the material in the later parts of the application.

17 The issue of leave should have been overtly addressed and it was perhaps unwise that neither the learned magistrate nor Ms Rabe did so. However, the issue was squarely before the learned magistrate on the face of the application. It is most likely both proceeded on the basis the application for such leave having been addressed on the face of the application, the grant of it was a formality. In my view, it is open to this Court to conclude that a grant of leave was implicit from the conduct of the proceedings, and I so find. That disposes of the second and third questions earlier posed.

18 Ground 1(a) and (b) of the review must therefore fail.

19 Ground 2 requires more detailed consideration. The learned magistrate had an eight page application before her, at the end of which Ms Rabe swore or affirmed that to the best of her knowledge and belief, the information contained in the application was true. Counsel for the applicant submitted that the entirety of the material in the application was hearsay and objectionable, even by reference to the Evidence Act 2001, s75, because Ms Rabe at no time disclosed the source of her information. She was obliged, he submitted, to do so and it was not sufficient for the court simply to make an assumption as to the sources of information.

20 In his submissions, counsel for the applicant made specific reference to Parts 6, 7 and 10 of the application. In doing so he treated them as separate and distinct parts unrelated to each other and the rest of the application. As to Part 6, the heading in the form reads "BASIS OF APPLICATION". Underneath that are a number of boxes which may be ticked to indicate the basis of the application. The person completing it is then asked to provide details of the alleged conduct and particulars of witnesses. As to Part 7 the heading is "URGENT ORDER (INTERIM FAMILY VIOLENCE ORDER)". The person is then asked to state briefly the reasons why an urgent order is sought. Under that heading Ms Rabe inserted "Please see details under other information. The current order has expired and the victim is extremely concerned for her safety".

21 The headings do not lend themselves to the provision of evidence. These parts are more akin to pleadings. That in Part 7 could also be said to be misleading because it uses the word "urgent" and yet nowhere in the Act, s23, being the section which allows the making of an IFVO, is the word "urgent" used. However the parts are categorised, they cannot in my view be taken out and assessed in isolation. They are integral parts of the one document and must be considered by reference to the whole.

22 In respect of the whole, it is apparent on the face of it that the application has been brought for the protection of Sonya Remess, she is Ms Rabe's client, Ms Rabe is part of a court support service, and she is the manager of Victim Support Services. It would be artificial not to conclude in relation to this type of application in those circumstances that the source of Ms Rabe's information was Ms Remess, Tasmania Police and/or the Safe at Home Interdepartmental Committee. That is the overwhelming inference to be drawn from the application as a whole.

23 As to Part 10, this is the information referred to in Part 7 as being that relied on to justify the making of an interim order. That Part is divided into five sections. As to the first section, counsel submitted simply, it was hearsay, there was no source identified, and therefore it was inadmissible. As to the second, third and fourth sections, it was conceded this material was from police reports, but it was not clear that the officers referred to were reporting from personal contact with Ms Remess or themselves relying on other information. This did not constitute disclosure of the source of information.

24 With respect, as to the second, third and fourth sections of Part 10, I disagree. The Evidence Act, s75, requires the person adducing the evidence to adduce evidence of its source. Ms Rabe has done so, clearly identifying the sources of her information as Constable Wells and Constable Smith. Counsel for the respondent referred the court to Bray v F Hoffman - La Roche Ltd [2002] FCA 243, where Merkel J said at pars112 to 117:

"There was some dispute between the parties as to whether s 75 only made admissible in an interlocutory proceeding first hand hearsay, and not second hand or more remote hearsay.

Section 75 is to be construed in the context of Pt 3.2 of the Evidence Act. The structure of Pt 3.2 is for Div 1 to set out the class of evidence excluded under the hearsay rule and for subsequent Divisions of the Part to set out exceptions to that exclusionary rule. The Australian Law Reform Commission, on whose report (ALRC 25) the Evidence Act was based, explained the exceptions to the hearsay rule as being based on the premise that the best evidence available to a party should be received (ALRC 25, vol 1 para 678).

Division 1 of Part 3.2 defines the hearsay rule, the key provision of which is in s 59(1):

'Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.'

Divisions 2 and 3 of Pt 3.2 distinguish between first hand hearsay and secondhand and more remote hearsay. Division 2 provides for certain exceptions to the hearsay rule in respect of 'first hand hearsay' which is defined as a previous representation made by a person who has personal knowledge of an asserted fact. Division 3 is entitled 'Other exceptions to the hearsay rule'. One of those 'other' exceptions is provided for in s 75.

The distinction between the category of exception contained in Div 2 and the category of exception contained in Div 3 appears to be based on the view of the Australian Law Reform Commission (ALRC 26, vol 1, par 678) that second hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility. Division 3 creates exceptions to the hearsay rule in respect of a number of categories of second hand and more remote hearsay which fall within those criteria.

It is consistent with the meaning, structure, and purpose of Pt 3.2 to construe s 75 as creating a further exception to the hearsay rule in respect of hearsay evidence adduced in an interlocutory proceeding that is not admissible under Div 1 and not within an exception to the hearsay rule contained in Div 2. In my view, there is no proper basis for importing a requirement that s 75 is limited to first hand hearsay as defined in s 62 for the purposes of Div 2. The safeguard against reliance on hearsay evidence, where its prejudice outweighs its probative value, is s 135 which confers upon the Court a discretion to exclude such evidence."

25 I am satisfied in the circumstances that those parts of Part 10 are admissible and were capable of being relied upon by the learned magistrate.

26 As to the first and last sections of Part 10, Ms Rabe made a number of disjointed statements which are not obviously placed in any time sequence. She makes no direct statement as to the source of her information. However it is quite obvious there are three, Ms Remess, the Safe at Home Interdepartmental Committee and Tasmania Police. Again, it would be artificial to reach that conclusion but then rule the sections inadmissible because Ms Rabe did not say a particular form of words.

27 The purpose of the Evidence Act, s75, is to remove the need, on an interlocutory application, for a party to present all their evidence from all the relevant witnesses and to instead present it in a summary fashion through one person who has been given the evidence by those witnesses. It allows a party to in effect tell a court - this is what our case will be - without going to the expense of fully presenting the case. It needs to be considered in the context of the proceedings being dealt with.

28 The Act, s23, allows a magistrate to make an interim order whether or not they are satisfied as to the matters about which they would need to be satisfied on a final hearing, namely that a person has committed family violence and might do so again. The discretion thereby granted is obviously very wide and should perhaps be constrained only by the object of the Act which is stated in s3 to be "In the administration of this Act the safety, psychological wellbeing and interests of people affected by family violence are the paramount consideration".

29 I am satisfied the first and last sections of Part 10 are admissible. I am also satisfied the learned magistrate did not make an error in relying on such material.

30 Ground 2 of the notice to review must therefore fail.

31 Counsel for the applicant also raised another point which was not however the subject of the review. That was that there was no material at all before the learned magistrate to justify any order which extended to the children of the parties. Ms Rabe was specifically asked about this by the learned magistrate and she responded, "To my knowledge he has made no threats or has not harmed the children in any way, or no threats towards the children." The learned magistrate responded by saying, "I think I would err on the side of caution then and make an order in relation to the children." However she recognised, in the manner in which she limited the order she made, that it was not appropriate to make an order preventing the applicant from approaching his children.

32 It is well recognised that children in families where domestic violence is a factor can be affected by such violence whether or not they are directly subjected to it. While I accept that there was limited material available to the learned magistrate upon which to base the orders made, which included the parties' children, the learned magistrate had a broad discretion. The interim nature of the order which she clearly made in the context of erring on the side of caution was recognised by the duration of the order and an acknowledgement that the issue could be revisited. Insofar as counsel for the applicant sought to agitate a matter not raised by the notice to review, I am not satisfied he has demonstrated any error on the part of the learned magistrate.