Violence Restraining Order Mention Hearings

Kickett v Starr

The appeal point

The appeal case of Kickett v Starr[1] which was delivered on 15 April 2013 raises interesting questions about whether the listing procedure commonly adopted after an ex-parte VRO hearing is valid.

The appeal point in itself was not particularly noteworthy. The Court set aside the Magistrate’s decision to allow the Respondent’s application for leave to continue with her application to cancel the VRO. The Court held that the Magistrate at first instance erred in granting the Respondent leave to continue to apply to cancel the VRO against her on the grounds that the VRO was causing her hardship within the meaning of s46(4) (a)(iii) of the Act, which reads as follows:

(4)        Subject to subsection (3), at a hearing fixed under subsection (1) the court — 

(a)      is to grant leave for the person to continue the application to vary or cancel the order if it is satisfied that —

(iii)     in respect of an application to vary an interim order, there is evidence to support a claim that the restraints imposed by the order are causing the applicant serious and unnecessary hardship and that it is appropriate that the application is heard as a matter of urgency;

 

The Respondent was seeking leave to cancel a final order. The Court held that leave pursuant to s46(4) (a)(iii) was confined to interim orders only. The decision itself is not particularly surprising or interesting.

Obiter re Mention Hearings

Violence Restraining Order Granted

What is interesting is the obiter of Derrick DCJ in relation to the procedural approach commonly adopted by Magistrates Courts throughout WA after an interim VRO is granted. His Honour noted:[2]

 

During the course of the hearing of the appeal I was told by the appellant’s counsel that the practice of at least the regional magistrates courts in this State in cases such as the present where an interim VRO is made in the absence of the person bound by the order and the person bound by the order indicates he or she objects to the order becoming final, is to list the matter for a mention hearing, to inquire at that mention hearing if the parties have resolved their differences, and if they have not to then list the matter for a final order hearing.

                       

In the writer’s experience this is also the procedure adopted by many of the metropolitan Magistrates Courts. It is also important to note that Mention Hearings are commonly used by many magistrates as opportunities to explore settlement options.  Derrick DCJ commented as follows:

 

While I can appreciate the pragmatism of this approach, I doubt that it is authorised by the relevant provisions of the Act.  [3] … if a magistrates court makes a VRO at a hearing fixed under s26(2) [where  the Applicant chooses to have an interim hearing in the absence of the Respondent] …it seems to me to be strongly arguable that it does not under s29(1) have the power to also adjourn the matter to a mention hearing.[4]

 

… However, given that it is not necessary for me to express a definitive conclusion on the point in order to deal with the appeal, and given that I have not heard any detailed submissions on the point, I will refrain from expressing a definitive conclusion in relation to this issue.   [5]

 

 

 

 

S 29: Ex-Parte Interim Applications

 

To contextualise the remarks of Derrick DCJ it is important to note the text of s 29 of The Act.

29.     Order at hearing in absence of respondent

(1)      Subject to section 27, at a hearing fixed under section 26(2) the court may — 

(a)      make a violence restraining order;

(b)      dismiss the application;

(c)      adjourn the matter to a mention hearing; or

(d)      at the request of the applicant, discontinue the application.

(2)      If the court adjourns the matter under subsection (1)(c) the registrar is to fix a hearing and summons the respondent to the hearing.

 

Practical implications

 

If Derrick DCJ is correct there are significant practical implications including but not limited to the following:

(a)          Where the Court grants an interim VRO pursuant to s 29(1) (absent an application to vary or cancel) the next hearing must be a final order hearing.

(b)          Ordering a Mention Hearing where an interim VRO has been made unnecessarily delays (without statutory authorisation) a final order hearing.

(c)          The “Mention Hearing” listed by the Court in such circumstances is not a Mention Hearings within the meaning of s 3 of the Act.

(d)          Accordingly, are the orders made by the Court at the so called “Mention Hearing” pursuant to sections 40 and 41 valid? In particular, if the court makes an order pursuant to section 41(1) finalising an interim order by consent and without admission- does the Court have the power to make such an order?

Consent Orders

In relation to (d) above the writer’s view is as follows:

(a)          If the court pursuant to s29(1) (c) does no more than adjourn the application to a Mention Hearing then the full powers of the court pursuant to ss 40 and 41 are preserved and any orders made by the court are statutorily authorised.

(b)          Where the court makes an interim order pursuant to section 29(1)(a) and also adjourns the matter to a mention hearing pursuant to  s29(1) (c) then the court may not have the power to make orders pursuant to ss 40 and 41- particularly in relation to making an interim order final by consent.

The situation could possibly be resolved by simply saying that the second hearing is not a “Mention” Hearing but a procedural hearing. However, the notices issued by the court Registry specifically say “Mention Hearing Only”. Also, sections 40 and 41 orders can only be made at a Mention hearing.

Change in approach to listings

Anecdotal evidence suggests that most interim VROs are now being listed to final hearing without a Mention Hearing, so perhaps Derrick DCJ has effected change without determining the issue. However, many practitioners are of the view that Mention Hearings were very helpful in settling matters by undertaking or Consent and that opportunity may now be lost.