The Supreme Court has declared section 4(3) of the Domestic Violence Act 1996 invalid under the Constitution because it did not set a short, fixed time limit for an interim barring order made without hearing the person affected. The Court also quashed the interim barring order made against D. K. and set aside the High Court’s decision refusing relief.
The judgment, delivered by Chief Justice Keane on 9 October 2002, arose from an order made by a District Court judge on 6 November 1998, on an ex parte application by D. K.’s wife, identified in the proceedings as L. K. The Supreme Court’s judgment records that the order was to remain in effect until the substantive barring-order application was determined, with a hearing date set almost three months later.
D. K. challenged the law, arguing that the procedure denied him fair procedures, including the opportunity to hear and answer the allegations. His wife’s sworn information alleged physical and verbal abuse and said she feared for her safety. D. K. disputed much of that account in an affidavit. Those accounts were recounted as part of the proceedings; the Supreme Court’s decision concerned the constitutionality of the statutory procedure.
The Court accepted that an ex parte order could be necessary to protect a spouse or dependants from immediate significant harm. But it said the order could remove a person from the family home and expose them to arrest and criminal penalties for non-compliance. The statute allowed an order to continue until the substantive application was decided, without requiring a prompt hearing or a short expiry period. A respondent could apply to have it discharged, but the Court said the law should not place the burden of initiating that challenge on someone against whom an order had been made in their absence.
The Court concluded that this failure to set a relatively short fixed period deprived respondents of the protection of the right to be heard in a way that was disproportionate, unreasonable and unnecessary. It did not hold that the legislature could not provide for ex parte interim barring orders; its ruling addressed how the legislation provided for them.
The appeal was allowed. The High Court order was set aside and replaced with a declaration that section 4(3) was invalid having regard to the Constitution, together with an order of certiorari quashing the District Court interim barring order. The judgment did not declare the whole 1996 Act invalid.