KM v TVL HC WN CIV-2012-485-303

Parties

Procedural Posture

Appeal Under Domestic Violence Act 1995 / High Court Reserved Judgment on Appeal From Family Court

Legal Issues

1. 1 Whether the Family Court erred in dismissing the applicant's protection order application under r194 of the Family Court Rules
2. 2 Whether the judge failed to give mandatory weight to the applicant's subjective perception and the effect of past behaviour pursuant to s14(5) of the Domestic Violence Act 1995
3. 3 Whether the Family Court had jurisdiction to impose pre-conditions/leave requirements on future protection order applications and whether those conditions were lawful

Ratio Decidendi

Judge Moss did not err in dismissing KM's protection order application because she properly considered KM's subjective perception under s14(5) while legitimately taking into account the lapse of time and the absence of recent indicia supporting a reasonable fear; however the imposition of pre-conditions requiring evidence of post-1 January 2012 violence and leave to apply was beyond jurisdiction because no abuse of process was found and KM had inadequate notice, so those conditions were quashed.

Court Disposition

Appeal allowed in part: Family Court dismissal of the protection order application upheld; conditions imposed on future applications quashed

Orders

• Family Court decision dismissing KM's protection order application on merits is upheld
• The pre-conditions imposed by Judge Moss on any subsequent application (requirement of post-1 January 2012 creditable account of domestic violence and leave to be sought) are quashed for lack of jurisdiction