Farthing v Phipps [2010] NSWDC 317

Farthing v Phipps [2010] NSWDC 317

Although there was evidence that would otherwise justify an apprehended violence order, the weight of the expert, solicitor and Guardianship Board evidence showed that Ms Phipps did not have sufficient understanding of the order or its terms to comply with it. Under s 17 of the Crimes (Domestic and Personal Violence) Act 2007, that incapacity was a relevant matter: the order would not protect Mr Farthing but would unfairly expose Ms Phipps to criminal process for unintended breach. The appeal was therefore allowed and the Local Court order quashed.

Jurisdiction
Australia
Judgment Date
18 October 2010
Procedural Posture
Appeal Against Apprehended Violence Order / District Court Appeal From Manly Local Court Order Made on 7 June 2010
Outcome
Appeal allowed; Orders of Magistrate quashed
Legal Topics
['apprehended Violence Order' 'capacity to Understand Court Orders' 'fitness to Plead' 'cognitive Impairment' 'fairness of Imposing Orders Carrying Criminal Consequences']
['criminal Law' 'domestic and Personal Violence' 'mental Health'] ['apprehended Violence Order' 'capacity to Understand Court Orders' 'fitness to Plead' 'cognitive Impairment' 'fairness of Imposing Orders Carrying Criminal Consequences']

Case Brief

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Procedural Posture

Appeal Against Apprehended Violence Order / District Court Appeal From Manly Local Court Order Made on 7 June 2010

Legal Issues

  1. 1 ['Whether the Presser fitness to plead test applied so that the AVO proceedings were fundamentally unfair to Ms Phipps because of her mental condition.' 'Whether an apprehended domestic violence order should be made where the defendant lacks capacity to properly understand and comply with its terms.' 'Whether making the order would serve to protect Mr Farthing or would merely expose Ms Phipps to criminal process for unintended breach.']

Ratio Decidendi

Although there was evidence that would otherwise justify an apprehended violence order, the weight of the expert, solicitor and Guardianship Board evidence showed that Ms Phipps did not have sufficient understanding of the order or its terms to comply with it. Under s 17 of the Crimes (Domestic and Personal Violence) Act 2007, that incapacity was a relevant matter: the order would not protect Mr Farthing but would unfairly expose Ms Phipps to criminal process for unintended breach. The appeal was therefore allowed and the Local Court order quashed.

Court Disposition

Appeal allowed; Orders of Magistrate quashed

Orders

  • ['The appeal by the appellant against the order made by the learned magistrate is allowed.' 'The order made by the learned magistrate is quashed.']