A v I - [2022] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
A v I
[2022] SASC 22
Judgment of the Honourable Justice Stein
17 March 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - NATURE OF APPEAL
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - REQUIREMENTS FOR MAKING ORDER
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
The appellant filed an ex parte application seeking an intervention order against the respondent, her son. The respondent has resided in a property owned by the appellant since 2002. In the application, the appellant sought, among other things, that the respondent vacate the property. The Magistrate refused the application. The appellant appeals the dismissal of the application on grounds which include that the Magistrate adopted an erroneously narrow definition of “abuse” and that the alleged abuse, including in relation to an asserted denial of financial autonomy through the control, possession and enjoyment of the appellant’s property, falls within the relevant definitions in the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“Act”).
Held, granting permission to appeal and dismissing the appeal:
1.The dismissal of the application was an interlocutory decision requiring permission to appeal.
2.The questions of law to be addressed in the appeal constitute sufficient basis upon which to grant permission to appeal.
3.The definition of “act of abuse” in the Act is broad and “unreasonable and non-consensual denial of financial autonomy” may include conduct relating to the control of real estate or aspects of a person’s financial affairs.
4.The phrase “without intervention” contained in s 6 of the Act is a reference to “without intervention” by virtue of the provisions of the Act.
5.The appellant failed to make out proper grounds for issuing an intervention order under the provisions of the Act in the particular circumstances of the matter.
6.Further, in the particular circumstances of the matter, the issuing of an intervention order under the Act would not be appropriate.

Acts Interpretation Act 1915 (SA) s 22; Family Law Act 1975 (Cth) s 4AB; Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 5, 6, 8, 10, 21; Legislation Interpretation Act 2021 (SA) s 14; Magistrates Court Act 1991 (SA) s 42; Residential Tenancies Act 1995 (SA); Supreme Court Criminal Rules 2014 (SA) r 104V, referred to.
Conant v The Queen (2021) 138 SASR 239; Draoui v Le [2021] SASCA 33; House v The King (1936) 55 CLR 499; Kiparoglou v Fantinel [2021] SASC 90; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Rana v Gregurev [2015] SASC 37; Shahin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126; White v Police [2018] SASC 124, applied.
Computer Edge Pty Ltd v Apple Computer (1984) 54 ALR; Licul v Corney (1976) 180 CLR 213, discussed.
Chevron Australia Holdings v Federal Commissioner of Taxation (2017) 251 FCR 40; Groom v Police (No 3) (2013) 231 A Crim R 1; Halbrook v Munsen [2021] FCCA 651; Janome v Janome [2019] FCCA 1036; Marley-Duncan v Police [2015] SASC 146; Neal v Kelley [2018] FCCA 2744; Owen v South Australia (1996) 66 SASR 251; Thakur v Police (2016) 125 SASR 180; Van Reesema v Police [2009] SASC 8; Whent v Marbrand [2017] FCCA 1873, considered.

A v I
[2022] SASC 22
Magistrates Appeal: Criminal
STEIN J:
Overview

The appellant filed an ex parte private application for an intervention order against the respondent, her son, on 5 May 2021, pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”). The application was refused by a Magistrate on 9 July 2021. That refusal is the subject of this appeal.
Background
Some of the history concerning a property in Hackham West (“Property”) is relevant to this appeal.
The appellant filed an affidavit sworn 5 May 2021 in support of the Application (“Supporting Affidavit”). According to the Supporting Affidavit, the respondent originally owned the Property. In mid-2002, he became unable to meet his mortgage payments. In February 2003, the appellant and her then husband purchased the Property for $70,000, using a loan of $25,000, savings and superannuation. The purchase was made, on the appellant’s case, on the understanding that the respondent could continue to reside at the Property until he could get back on his feet to re-purchase it. No agreement in relation to rent was made by the parties at the time.
The respondent has continued to reside at the Property since 2002. The appellant has continued to reside at her own residence. It appears the respondent has been unable or unwilling to re‑purchase the property.
On 3 April 2006, the Residential Tenancies Tribunal granted the appellant an order for vacant possession of the Property effective 18 April 2006. The Tribunal found there was a period tenancy in place for rent of $40 per week. The order for vacant possession was ultimately not enforced by the appellant.
In 2010, following her husband’s death, the appellant asked the respondent to pay rent of $100 per week for 12 months. It is not clear if, or how much, rent was paid following that request.
The appellant states she listed the Property for sale in early 2020. Sixty days’ notice to vacate was given to the respondent. The respondent did not vacate. He did not allow access to the Property to the appellant or her real estate agent for inspection. Vacancy was not enforced due to the COVID-19 pandemic.
On 23 September 2020, an order for vacant possession was sought from the South Australian Civil and Administrative Tribunal (“SACAT”) on behalf of the appellant. In a supporting affidavit filed by the appellant’s daughter, she deposes to a telephone conversation with a SACAT staff member on 25 September 2020 in which the staff member told her that the respondent was unlikely to satisfy the definition of “tenant” to engage the jurisdiction of SACAT under the Residential Tenancies Act 1995 (SA). The SACAT application was withdrawn on 25 September 2020.
On 29 September 2020, a letter of demand was posted to the respondent requiring him to vacate within 30 days. No subsequent action was taken.
On 5 May 2021, the appellant filed a private application for an interim intervention order in relation to “non-domestic abuse” (“the Application”). This was sought on the basis that it was considered reasonable to suspect the respondent would commit an act of abuse against the appellant by “causing personal injury”, “denial of financial, social or personal autonomy” and “causing damage to property”. The interim intervention order was sought on the following terms:
The defendant must not:
1.     assault, threaten, harass or intimidate the protected person(s);
…
5.     enter or remain within 50 metres of any boundary where the protected person(s) stays, resides or works;
…
7.     damage or take possession of personal property belonging to the protected person(s) and the following specified property: [none specified];
…
12.     cause, allow or encourage another person to do anything forbidden by this order.
Other orders:
Notwithstanding any other term of this order, the defendant may attend at the residence of the protected person or [the Property] by prior written agreement.
The defendant must:
14.     vacate the premises at [the Property] forthwith upon service of this order and not return to those premises unless this term is varied or dismissed by the Court.
The appellant in her Supporting Affidavit deposed to a wish to sell the Property but said that she was unable to do so while the respondent resided there. She stated that she cannot do anything at all with the Property. The appellant wished to use the proceeds of sale to support her during the later years of her life, including to fund nursing home care should that be required, and to spend before she passes away.
The Supporting Affidavit stated the appellant has become fearful of the respondent due to the respondent becoming angry when discussing the Property with the appellant. The appellant stated the respondent yelled at her and acted in an intimidating manner. She stated this had occurred for several years and that she had avoided raising the issue with the respondent for “a long time” as a result. The Supporting Affidavit refers to an incident when the respondent was said to have pushed the appellant toward a door, causing her to stumble over a doorstep. This occurred after the appellant requested the respondent to move out or purchase the Property. That event occurred five years ago, was witnessed by the appellant’s daughter and was reported to the police.
The Application was refused by a Magistrate on 9 July 2021.
The Magistrate’s reasons
In his reasons for decision dated 9 July 2021 (“Judgment”), the Magistrate noted the dealings between the parties in relation to the Property and the appellant’s attempts to obtain vacant possession. The Magistrate stated it was agreed that the respondent was previously permitted to reside at the Property subject to him paying rent and that the respondent had not, with the occasional exception, paid any rent to the appellant. The Magistrate also noted the appellant’s feelings of intimidation arising from the respondent’s anger and his shouting upon her requests to vacate the Property.
The Magistrate set out the grounds for issuing an intervention order as contained within s 6 of the Act and noted the definitions in the Act.
The Magistrate considered the incident causing the appellant to stumble (which had occurred five years prior) was “the only act which could be described as an act of abuse” and otherwise that the respondent “became angry whenever the applicant wanted to discuss the sale of the house”.[1]
[1] Reasons for Decision, 9 July 2021.
Noting that he was asked to find that it would be reasonable to suspect that the respondent would commit an act of abuse if he was asked to vacate, the Magistrate stated that, while the appellant’s fear may be genuine, he thought what the appellant really wanted was to have vacant possession of the Property.
The Magistrate considered he must be satisfied the respondent is likely to commit an act of abuse against the appellant. The Magistrate stated:[2]
He may become angry, which in the circumstances would be understandable but I am not convinced such a reaction could properly be described as an act of abuse. Indeed there has been no conflict between the Applicant and the Defendant in the last five years. In the absence of any conflict or act of abuse of recent times I cannot be so satisfied.
[2] Ibid.
General principles on appeal
The Act provides for applications for an intervention order to be made to the Magistrates Court.[3]
[3] Section 20(1) of the Act; “Court” is defined in s 3 of the Act.
This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) (“Magistrates Court Act”)[4] and Chapter 12A of the Supreme Court Criminal Rules 2014 (SA) (“Rules”).
[4] Groom v Police (No 3) (2013) 231 A Crim R 1, [22]-[28] (Sulan J).
Pursuant to r 104V(1)(a) of the Rules, the hearing is to occur by way of re‑hearing. The Court may in its discretion hear further evidence pursuant to r 104V(1)(c), and, if the interests of justice so require, s 42(4) of the Magistrates Court Act.
In order to interfere in the exercise of discretion, some error of the kind described in House v The King (“House v The King”)[5] must be demonstrated.
[5] (1936) 55 CLR 499.
In Draoui v Le,[6] Doyle J, in referring to House v The King, remarked:[7]
As such, the appeal is subject to the principles of appellate restraint in House v R. In accordance with these principles, an appellate court may intervene in two broad categories of case. First, if it is established that the judge below has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect them, has mistaken the facts, or has not taken into account some material consideration. Secondly, if it is established that the result embodied in the order made is, upon the facts, unreasonable or plainly unjust, such that it can be inferred that there has been a failure to properly exercise the relevant discretion, despite the precise nature or source of the error not being identifiable. These two categories of case are sometimes distinguished from each other by referring to them as process and outcome errors, or as specific and inferred errors.
[Citations omitted]
[6] [2021] SASCA 33.
[7] [2021] SASCA 33 at [71].
Preliminary question – interlocutory or final?
The appellant sought to bring the appeal by right under the provisions of the Magistrates Court Act.
Sub-sections 42(1) and (1a) of the Magistrates Court Act provide as follows:
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings).
(1a)   An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
The respondent’s written submissions contended the Judgment was interlocutory and therefore permission to appeal was required.
In oral argument, the appellant’s counsel submitted that the Judgment was final as it finally disposed of the matter as between the parties. He distinguished the case of a dismissal of an application for an interim intervention order from that of the grant of an interim intervention order or grant of a final order. Counsel for the appellant contended that, absent new and different circumstances, the appellant would be precluded from filing a fresh application based on the same facts as to do so would constitute an abuse of process. He therefore submitted that the Judgment finally deposes of the issues between the parties raised in the Application. In support of his position, counsel for the appellant referred to Rana v Gregurev (“Rana”) [8] in which Peek J entertained an appeal against the dismissal of an interim intervention order.
[8] [2015] SASC 37.
Counsel for the respondent submitted that if a grant of an application for an intervention order is interlocutory in nature, it must follow the dismissal of such an application is also interlocutory in nature. He submitted it would be open to a party to file a fresh application that would not be an abuse of process in the event additional material becomes available. He submitted that the matter is not finally disposed of, and is accordingly interlocutory, as a party retains the right to bring a future application.
In submissions, counsel referred to Licul v Corney (“Licul”)[9] and Computer Edge Pty Ltd v Apple Computer Inc.[10] In Licul the High Court considered the question of a distinction between final and interlocutory judgments. Gibbs J said:[11]
The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view – which was preferred by the Court of Appeal in Salter Rex & Co. v Ghosh – is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?
[Citations omitted]
[9] (1976) 180 CLR 213.
[10] (1984) 54 ALR.
[11] (1976) 180 CLR 213 at 225.
Chief Justice Barwick said that for an order to be final, it “must of its own force put an end to the action or proceeding between the parties”.[12]
[12] (1976) 180 CLR 213 at 219.
In Computer Edge Pty Ltd v Apple Computer Inc, Gibbs CJ said that in applying the test of whether or not the judgment finally determines the rights of the parties, the Court must consider the legal rather than the practical effect of the judgment.[13]
[13] (1984) 54 ALR 767 at 767-768.
Consideration
In Rana, the question of whether permission to appeal was required was not expressly addressed. The orders made by Peek J included an order for permission to appeal insofar as it was necessary. I do not regard the decision as authority for the proposition that the dismissal of an interim intervention order is a final judgment for the purposes of s 42 of the Magistrates Court Act.
In Kiparoglou v Fantinel,[14] Kourakis CJ confirmed that a dismissal of an ex parte application for an intervention order is interlocutory in nature. He said:
[2]The dismissal of an ex parte application for an intervention order is an interlocutory order. It is necessarily so because the respondent is not present. There cannot be a final determination of any issue as between an applicant and any other person in the absence of an opposing party.
[3] For that reason, notwithstanding the dismissal of an ex parte application for an intervention order, another application might subsequently be made. True it is that as a matter of procedure the Magistrates Court, on a subsequent application, may insist on the identification of a change in circumstances. That requirement is not based on the finality of the earlier order of dismissal. It is a rule of practice governing the hearing of interlocutory applications which is calculated to guard against an abuse of process.
[4] If a respondent were present, findings made on the application for an intervention order may bind the parties as to whether past alleged incidents did or did not occur and whether these justified the making of an intervention order. An issue estoppel would arise. However, that is not generally the case on an application for an interim intervention order and it is not this case.
[14] [2021] SASC 90.
It is also not this case. The application was brought ex parte and the dismissal of the application was an interlocutory order.
Permission required – special reasons
It follows that permission to appeal is required pursuant to s 42(1a)(c) of the Magistrates Court Act.
Counsel for the appellant submitted that special reasons were made out. He submitted that the requirement for special reasons to appeal an interlocutory matter stems from case management principles and the presumption against fragmentation of proceedings. Among other matters, he pointed out that, in this case, there could be no fragmentation of the proceedings. He submitted that there is an important question of law to be decided and the error in the Magistrate’s judgment is manifest on the face of the record.
In Shahin v El-Shafei; El-Shafei v Shahin,[15] Parker J considered the operation of s 42(1a)(c) of the Magistrates Court Act. He agreed with the view of Sulan J, expressed in Groom v Police (No 3),[16] that the words “before commencement or completion of the trial” in s 42(1a)(c) only operate when they are relevant and that the Court has power to grant permission for an interlocutory appeal if it is satisfied that there are special reasons why that would be in the interests of the administration of justice.[17]
[15] (2018) 132 SASR 126.
[16] (2013) 231 A Crim R 1.
[17] (2018) 132 SASR 126 at [44]-[45].

Justice Parker considered prior authorities[18] in relation to the meaning of “special reasons”, and the difference between “special reasons” in the context of the “usual” categories of cases and a case of permission to appeal in respect of an intervention order. In the latter context, Stanley J in Thakur v Police held that an arguable case by itself will generally be sufficient to establish special reasons.[19] Parker J considered the observations of Stanley J had considerable force, but that he did not need to resolve the issue on the basis that he considered there were significant questions of law to be addressed and that was sufficient basis upon which to grant permission.
[18] See Van Reesema v Police [2009] SASC 8; Marley-Duncan v Police [2015] SASC 146; Thakur v Police (2016) 125 SASR 180.
[19] (2016) 125 SASR 180 at [26].
In this case, following the same reasoning employed by Parker J, I consider there is sufficient basis upon which to grant permission to appeal. The matters raised by the appellant require consideration of the meaning of the phrase “unreasonable and non-consensual denial of financial […] autonomy” within s 8(2)(c) and s 8(5) of the Act (“the Phrase”). It does not appear that the Phrase has been considered in the context of the Act.
Appeal grounds
The appellant relied on the following grounds of appeal:
1.   The Learned Magistrate erred in dismissing the application for an interim intervention order:
a.     By adopting an erroneously narrow definition of ‘abuse’;
b.    By finding the applicant was not suffering abuse;
c.     By misapprehending the basis upon which the applicant alleges she is suffering abuse;
d.    By find [sic] the applicant was not at risk of future abuse.
As the grounds of appeal are significantly inter-related and require consideration of the interpretation of the Act, I will deal with them together.
Appellant’s submissions
The appellant’s counsel submitted that the Magistrate erred as a matter of law in his application of the relevant test under the Act. Counsel asserted the failure could be characterised as a failure to take into account relevant considerations or a failure to exercise the jurisdiction. He submitted that the Magistrate adopted an unduly narrow definition of abuse under the Act and erred in failing to consider at all the financial and economic aspects of the allegations raised. He contended that the absence of any reasons relating to the material put on behalf of the appellant concerning asserted acts of financial abuse constituted a clear error within the parameters of House v the King.[20]
[20] (1936) 55 CLR 499.
The appellant’s counsel submitted that the Magistrate’s focus on physical abuse as the basis for granting an intervention order was clearly inconsistent with the statutory language and stated purpose of the Act. He submitted that while concerns relating to physical abuse were raised and relied upon, these were derivative of the true issue, which was financial abuse. That abuse was said to occur by the respondent denying the appellant financial autonomy and denying her the control, possession and enjoyment of her property (“asserted financial abuse”).
The appellant’s counsel emphasised that “abuse” under the Act is defined to include “economic abuse” in s 8(1). An act is an “act of abuse” against a person within the meaning of s 8(2) if it results in or is intended to result in “an unreasonable and non-consensual denial of financial, social or personal autonomy”. Examples of the Phrase are set out in s 8(5) of the Act including, relevantly, “denying the person the financial autonomy that the person would have had but for the act of abuse”;[21] “causing the person through coercion or deception to […] relinquish control over assets or income”[22] and “without permission, removing or keeping property that is in the ownership or possession of the person or used or otherwise enjoyed by the person”.[23] The appellant’s counsel supported his submissions by reference to the principles and objects of the Act set out in ss 5 and 10 of the Act.
[21] The Act s 8(5)(a).
[22] The Act s 8(5)(e)(i).
[23] The Act s 8(5)(f).
The appellant submitted that the Magistrate’s view that there had been no conflict between the parties in the last five years was indicative of the Magistrate’s misapprehension as to the nature and breadth of the meaning of abuse.
The appellant contends that there is a risk which plainly arises on the evidence that, without intervention, the respondent will continue to commit acts of abuse. That is, that the respondent will continue to occupy the Property, prevent the appellant’s enjoyment of the Property and deny her financial autonomy as a result.
Counsel for the appellant submitted that the appellant had exhausted all avenues reasonably open to her to otherwise remove the respondent from the Property. He did not contend that no other alternative avenues were available. Rather, he put his submissions on the basis that no other alternatives were reasonably open, taking into account the costs which would be associated with the appellant bringing proceedings to obtain an order for eviction. He contended that, in the circumstances, the Court should conclude that the issue of an intervention order is appropriate within the meaning of the second limb of s 6 of the Act.
Respondent’s submissions
Counsel for the respondent submitted there was no error in the way the Magistrate dealt with the isolated incident of the applicant being pushed. He maintained that the asserted physical abuse set out in the appellant’s affidavit was insufficient to warrant a suspicion the respondent would, without intervention, commit an act of abuse or that the issuing of the order would be appropriate.
In relation to the asserted financial abuse, the respondent’s counsel submitted that the relevant material was placed before the Magistrate, the appellant was represented by counsel and the argument in relation to financial abuse was put to the Magistrate. He submitted it was therefore unlikely the Magistrate misapprehended the basis of the appellant’s submissions. I understood this submission to amount to a contention that, despite not expressly referring to financial abuse in his reasons, the Magistrate nevertheless had the question of financial abuse before him and rejected it.
Counsel for the respondent submitted that the interpretation of “abuse” contended for by the appellant’s counsel was too broad and that, in any event, the Magistrate was correct in finding there was no abuse. He pointed to the fact that the appellant and respondent do not reside in the same home and do not interact frequently at all. He submitted it was relevant that an interim intervention order would have the same impact on the respondent as eviction through a civil action.
Counsel for the respondent raised a floodgates argument. He submitted that if such a broad interpretation of the definition of abuse is accepted, this would enable other applications for intervention orders which could not have been contemplated by Parliament. He used examples of potential creditors applying for interim intervention orders against debtors on the basis of asserted denial of financial autonomy or control over assets, and landlords seeking to evict tenants through use of the Act.
Counsel for the respondent contended the Court should disregard any submissions about the appellant taking other steps to attempt to remove the respondent from the Property. He submitted there is nothing in the Act that indicates the Court should give weight to circumstances that the applicant has exhausted other avenues for relief.
Counsel for the respondent submitted that the practical implication of the making of an interim intervention order is the eviction of the respondent in circumstances in which he would not be accorded the procedural fairness that would have been afforded to him had the matter been brought in a civil jurisdiction.
Counsel for the respondent submitted that the Magistrate correctly applied the second limb of s 6 of the Act (that is, the application is not appropriate) or, in the alternative, that this Court should find the intervention order should not be made on the basis it is not appropriate in the circumstances.
In order to determine whether there has been identified an error of the kind within House v the King, I must consider the Judgment and the application of the Act in the circumstances of this matter.
Magistrate’s Judgment
In stating that the incident causing the appellant to stumble was “the only act which could be described as an act of abuse” it is not entirely clear whether the Magistrate failed to consider the asserted financial abuse or whether the Magistrate considered the asserted financial abuse and either concluded that the conduct did not fall within the definition of abuse within the Act or concluded that it was not appropriate to grant the order sought.
The affidavit material before the Magistrate contained the factual background upon which the appellant founded the case put in relation to asserted financial abuse and the background chronology set out in the Judgment indicates the Magistrate was aware of those facts. I was not provided with substantive information about the content of submissions made to the Magistrate concerning the asserted financial abuse.
In reaching his conclusion, the Magistrate refers only to one defined aspect of “act of abuse” under the Act, that is, the emotional and psychological harm aspect:[24]
“Abuse” is defined to include physical, sexual, emotional, psychological or economic abuse and act is an “act of abuse”. [sic] if it results in or is intended to result in emotional or psychological harm.
Emotional or psychological harm is defined to include “distress, anxiety or fear, that is more than trivial.”
[24] Reasons for Decision, 9 July 2021.
The Magistrate only refers to the respondent’s angry response and shouting (when asked to vacate) and states that while the appellant’s fear may be genuine, the respondent’s anger could not properly be described as an act of abuse.
The Magistrate states that he had been asked to find that if the respondent was asked to vacate he may commit an act of abuse and continued:[25]
That fear may be genuine but I think what the Applicant really wants is to have her son out of the property. I have some sympathy for the Applicant but if I am to make an Intervention Order I must be satisfied the Defendant is likely to commit an act of abuse against his mother. He may become angry, which in the circumstances would be understandable but I am not convinced such a reaction could properly be described as an act of abuse. Indeed there has been no conflict between the Applicant and the Defendant in the last five years. In the absence of any conflict or act of abuse of recent times I cannot be so satisfied.
[25] Reasons for Decision, 9 July 2021.
The Judgment does not expressly address why the matters put in relation to asserted financial abuse did not justify a grant of an interim intervention order.
I cannot determine from the Judgment whether the Magistrate considered the factual material in relation to the asserted financial abuse but concluded it did not justify the grant of an interim intervention order, or whether he failed to consider the material in relation to asserted financial abuse (possibly as a result of the way submissions were put).
If the Magistrate considered the factual material in relation to the asserted financial abuse and concluded it did not justify the grant of an interim intervention order, he failed to give any reasons for that conclusion. If the Magistrate failed to consider material put to him in relation to asserted financial abuse, he failed to address a relevant matter.
I therefore consider an error of the kind required by House v The King[26] is made out.
[26] (1936) 55 CLR 499.
In considering the exercise of the discretion afresh, I must consider the proper interpretation of the Phrase and whether the definition of “act of abuse” is wide enough to cover the asserted financial abuse.
Relevant provisions of the Act
Objects of the Act
Section 5 of the Act sets out objects of the Act including—
(a) to assist in preventing domestic and non-domestic abuse, and the exposure of children to the effects of domestic and non-domestic abuse, by providing for—
(i) the issuing of intervention orders; and
(ii) the issuing of associated orders relating to problem gambling and tenancy agreements.
...
Grounds for issuing an intervention order
Two matters must be satisfied before a Court can find grounds for issuing an intervention order.
6—Grounds for issuing intervention order
There are grounds for issuing an intervention order against a person (the defendant) if—
(a)it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b) the issuing of the order is appropriate in the circumstances.
Act of abuse
The term “act of abuse” takes its meaning from s 8 of the Act. That section provides, relevantly:
8—Meaning of abuse—domestic and non-domestic
(1)Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse.
(2)     An act is an act of abuse against a person if it results in or is intended to result in—
(a)     physical injury; or
(b)     emotional or psychological harm; or
(c)     an unreasonable and non-consensual denial of financial, social or personal autonomy; or
(d)     damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.
(3)     Emotional or psychological harm includes—
(a)     mental illness; and
(b)     nervous shock; and
(c)     distress, anxiety, or fear, that is more than trivial.
…
(5)    Unreasonable and non-consensual denial of financial, social or personal autonomy—examples
Without limiting subsection (2)(c), an act of abuse against a person resulting in an unreasonable and non-consensual denial of financial, social or personal autonomy may be comprised of any of the following:
(a)     denying the person the financial autonomy that the person would have had but for the act of abuse;
(b)     withholding the financial support necessary for meeting the reasonable living expenses of the person (or any other person living with, or dependent on, the person) in circumstances in which the person is dependent on the financial support to meet those living expenses;
(c)     without lawful excuse, preventing the person from having access to joint financial assets for the purposes of meeting normal household expenses;
(d)     preventing the person from seeking or keeping employment;
(e)     causing the person through coercion or deception to—
(i)    relinquish control over assets or income; or
(ii)     claim social security payments; or
(iii) sign a power of attorney enabling the person's finances to be managed by another person; or
(iv)    sign a contract for the purchase of goods or services; or
(v)     sign a contract for the provision of finance; or
(vi)    sign a contract of guarantee; or
(vii)sign any legal document for the establishment or operation of a business;
(f)      without permission, removing or keeping property that is in the ownership or possession of the person or used or otherwise enjoyed by the person;
(g)     disposing of property owned by the person, or owned jointly with the person, against the person's wishes and without lawful excuse;
(h)     preventing the person from making or keeping connections with the person's family, friends or cultural group, from participating in cultural or spiritual ceremonies or practices, or from expressing the person's cultural identity;
(i)      exercising an unreasonable level of control and domination over the daily life of the person.
The Act expressly covers a wide array of relationships in which acts of abuse may occur, including in relationships where one person is a child of the other (regardless of age) or where persons are otherwise related to each other by or through blood (s 8(8)).[27]
[27] The Act classifies abuse into “domestic abuse” and “non-domestic abuse” (s 8). Abuse within a parent-child relationship is classed as domestic abuse (s 8(8)). Some consequences flow from the classification of the abuse into one or other category, including prioritisation of hearings for domestic abuse matters (see for example, ss 9 and 15A). I note that the appellant’s application for an interim intervention order classified the application as one in respect of non-domestic abuse, despite the provisions of s 8(8) of the Act. No submissions were made about this.
Principles for intervention against abuse
Section 10 sets out various principles for intervention against abuse including:
10—Principles for intervention against abuse
(1) The following must be recognised and taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:
(a)     abuse occurs in all areas of society, regardless of socio-economic status, health, age, culture, gender, sexuality, ability, ethnicity and religion;
(b)     abuse may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour;
(c)     it is of primary importance to prevent abuse and to prevent children from being exposed to the effects of abuse;
…
(2) The following must also be taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:
…
(d)     if considering whether to prohibit the defendant from taking possession of property or to require the defendant to return property to a protected person or to allow a protected person to recover or have access to or make use of property—the income, assets and liabilities of the defendant and the protected person (to the extent that the issuing authority has been informed of those matters);
…
(4) An issuing authority may take into account any other factor the authority considers relevant in the circumstances.
Consideration of provisions of the Act in relation to financial autonomy
I now turn to consider the question of what may constitute abuse in the form of “an unreasonable and non-consensual denial of financial autonomy” within the meaning of s 8(2)(c) of the Act.
Neither counsel was able to point to any authority in the context of the Act that addressed the question of interpretation of the Phrase.
Counsel for the appellant relied on the intended breadth of the Act, as stated in its objects and the principles in s 10, to support a broad interpretation of the Phrase. He submitted that the conduct of the respondent in the present case was a form of elder abuse.
General principles of statutory interpretation
Consideration of the proper interpretation of the statutory provisions commences with consideration of the text, context and purpose of the Act. In Conant v The Queen, Lovell, Doyle and Livesey JJ said:[28]
The method to be applied in construing a statute to ascertain the intended meaning of the word used is well settled. In assigning legal meaning to the words of a provision, the court starts with a consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Consideration of context in its widest sense includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. The purpose of the statute informs the interpretive task throughout. The text of the statute is important, for it contains the words being construed, and a very general purpose may not detract from the meanings of the words. The consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context and purpose of the provision. When a literal meaning of words and the statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of the statute is to be preferred.
[28] (2021) 138 SASR 239at [30].

The primary object in the process of statutory construction is to construe the provision so that it is consistent with the language and purpose of all of the provisions of the Act. The meaning of the provision must be determined by reference to the language of the Act as a whole. Legislation is to be construed on the basis that its provisions are intended to give effect to harmonious goals.[29] A court construing a statutory provision must strive to give meaning to every word of the provision.[30]
[29] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70] per McHugh, Gummow, Kirby and Hayne JJ.
[30] Project Blue Sky Australian Broadcasting Association (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ.
Consideration of the ordinary and grammatical meaning of the words and consideration of context and purpose are inter-related and have at their heart the aim of discerning the meaning of the words used in the legislation. The task begins and ends with the words used, however, context is indispensable and gives “the place, the wholeness and the relational reality to words”.[31]
[31] Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (2017) 251 FCR 40 at [3] per Allsop CJ.
Where a legislative provision is reasonably open to more than one construction, a construction that promotes the purpose or object of the Act must be preferred.[32]
[32] Acts Interpretation Act 1915 (SA) s 22; now Legislation Interpretation Act 2021 (SA) s 14.
The Court may have regard to reports of Parliamentary debates to determine the mischief to which the legislation is directed and to discern the underlying purpose of the legislation.[33]
[33] Owen v South Australia (1996) 66 SASR 251 at 255-6 per Cox J; at 257 per Prior J.
Objects, purpose and context
I will not repeat the objects of the Act and the principles contained in s 10 of the Act which are set out above. The definition of “abuse” in the Act deliberately broadens the concept of abuse beyond that of physical injury or damage to property.
There is no definition of “financial autonomy” in the Act. The examples in s 8(5) of the Act, against the background of the objects and principles, provide context for the interpretation of the Phrase.
The examples contained in s 8(5) in relation to the various kinds of financial, social or personal abuse are expressly stated as not limiting s 8(2)(c) (being the inclusion of unreasonable and non-consensual denial of financial, social or personal autonomy within the definition of “act of abuse”).
The list of examples of what may constitute unreasonable denial of financial, social and personal autonomy in s 8(5) are broad and varied. The examples of what constitutes a denial of each of financial or social or personal autonomy are not separated. It is clear from the examples that these concepts can overlap. For example, causing a person through coercion or deception to sign a power of attorney enabling the person’s finances to be managed by another could constitute a denial of financial autonomy as well as a denial of personal autonomy.
Some of the examples contain direct references to “finance” or “financial” using various phrases (“financial autonomy” in sub-s 8(5)(a); “financial support” in sub-s 8(5)(b); “financial assets” in sub-s 8(5)(c); a “person’s finances” in sub‑s 8(5)(e)(iii); “a contract for the provision of finance” in sub-s 8(5)(e)(v)). Others do not use the word “finance” or “financial”, but relate to potential impacts on a person’s income, expenditure, assets and liabilities. Such examples include:
1.the concept of pecuniary resources (such as contained in the example of preventing a person from seeking or keeping employment (and thereby earning an income) (sub-s 8(5)(d)));
2.the concept of expenditure (such as contained in the example of causing a person to sign a contract for the purchase of goods or services (sub‑s 8(5)(e)(iv)));
3.concepts of assets and income (such as contained in the example of causing a person to relinquish control over assets or income (sub‑s 8(5)(e)(i)));
4.the concept of liabilities (such as contained in the example of causing a person to sign a contract of guarantee (sub-s 8(5)(e)(vi))); and
5.the concept of property (such as contained in the example of keeping property, or the example of disposing of property owned by the person against their wishes (sub-s 8(5)(f), (g))).
The Act provides that abuse can consist of isolated incidents or patterns of behaviour (s 10(1)(b)).
Each of the examples in s 8(5) are separate, stand-alone examples. In order to constitute an act of abuse it is not necessary for more than one, or in fact any, of the examples to have eventuated. By way of illustration, the specified examples could contemplate a person being subject to an act of abuse through being prevented from being able to meet ordinary household or living expenses (sub-s 8(5)(b) and (c)) even if the person is the owner of property still within their control. Conversely, they could contemplate a person relinquishing control over assets through coercion or deception (sub-s 8(5)(e)(i)) despite that person having sufficient financial support or access to joint financial assets to be able to meet their living or household expenses.
Given the stated purposes of the Act, the principles set out in s 10, the breadth of the examples in s 8(5), the fact they are non-exhaustive and the inclusion of references (directly or indirectly) to concepts of income, expenditure, assets, liabilities and property, I consider context and purpose support a broad definition of the concept of financial autonomy. In particular, I consider they favour a definition which is not limited strictly to concepts of money and liquid assets, but can incorporate a broader concept of finances including assets (such as real property) and liabilities. I also consider the Act envisages financial autonomy as a potentially compartmentalised concept. That is, the concept of financial autonomy does not necessarily have to relate to the entirety of a person’s financial affairs and could include consideration of aspects of a person’s financial affairs. For the purposes of the Act, a person thus could have financial autonomy in respect of one aspect of their affairs but be denied financial autonomy in respect of another aspect. Of course, whether or not the definition will be met in any particular case will depend significantly on the facts of the individual matter.
I consider it would be inconsistent with the objects, purposes and intended breadth of the Act to read down the definition of what is contained within the concept of “acts of abuse”.
Ordinary and grammatical meaning of the words
My view in relation to the breadth of the concept of “financial autonomy” in the Act is supported by the ordinary meaning of the word.
The Macquarie Dictionary defines “autonomy" as including “independence; self-sufficiency; self-regulation”.[34] The Oxford English Dictionary defines autonomy, among other contexts, as including “liberty to follow one's will; control over one's own affairs; freedom from external influence, personal independence”.[35]
[34] Macquarie Dictionary (online at 10 February 2022) ‘autonomy’.
[35] Oxford English Dictionary (online at 10 February 2022) ‘autonomy’.
Self-control and self-sufficiency are concepts common to the dictionary definitions. The concept of control also appears common to the examples contained in s 8(5) of the Act. For example, “denying” or “withholding” from a recipient or “preventing” a recipient from doing something connote a control by the perpetrator and, conversely, a lack of control in the recipient, as does causing a recipient to do something by “coercion or deception”.
The Macquarie Dictionary defines the noun “finance” as including “the conduct or transaction of money matters”. It defines “financial” as “relating to monetary receipts and expenditures, relating to money matters, pecuniary” and “having ready money”.[36] The Oxford Dictionary defines “finance” to include “the management of money”.[37] It defines “financial” as, among other things, “pertaining, or relating to finance or money matters”.[38] These definitions are not inconsistent with my view.
[36] Macquarie Dictionary (online at 10 February 2022) ‘financial’.
[37] Oxford English Dictionary (online at 10 February 2022) ‘finance’.
[38] Oxford English Dictionary (online at 10 February 2022) ‘financial’.
I thus consider the ordinary meaning of “financial autonomy” is the ability of a person, independently, self-sufficiently and free from the control of another, to make decisions about aspects of, or all of, their finances and/or financial affairs in the broadest sense. This is consistent with the objects, purpose and context of the words in the Act.
Second reading speech
The second reading speech is also consistent with, and supports, my view concerning the breadth of the Act.
The second reading speech states that the concerns giving rise to the reforms are the prevalence of domestic violence and its potentially lethal consequences, where domestic violence is described as the use of violence by one person to control another and includes any abuse that occurs in intimate relationships. [39] The second reading speech indicates that the Bill acknowledges in its definition of abuse not only the obvious forms of physical violence, but also other controlling behaviours typical of violence that takes place under cover of a private, familial relationship and that can be concealed from the world at large, trapping the victim.
[39] South Australia, Parliamentary Debates, Legislative Council, 28 October 2009, 3793, G E Gago.
In the explanation of clause 8, the second reading speech states that the clause describes the many potential aspects of abuse. The extensive examples included are designed to expand on, and more effectively describe, what was referred to as intimidating or offensive behaviour in the repealed legislation.[40]
[40] South Australia, Parliamentary Debates, Legislative Council, 28 October 2009, 3800, G E Gago.
The second reading speech indicates the mischief to which the Bill was directed and emphasises the breadth of the definitions of abuse given the many and varied ways in which abuse can occur.
Authorities from other contexts
I have also had regard to cases[41] discussing similar concepts in other contexts.[42] Although assistance may be derived from considering decisions concerning the same or similar words or phrases in other legislation, considerable care must be taken in light of potentially differing statutory text, context and purpose. In the cases I reviewed, the independence or otherwise of the parties and the ability of a party to make their own decisions in relation to financial expenditure appear to have been relevant considerations. I do not consider those authorities are inconsistent with the views I have reached.
[41] Neal v Kelley [2018] FCCA 2744 at [76]; Janome v Janome [2019] FCCA 1036 at [189], [199]; Halbrook v Munsen [2021] FCCA 651 at [157]; Whent v Marbrand [2017] FCCA 1873 particularly at [197](h).
[42] In particular, s 4AB of the Family Law Act 1975 (Cth) which includes an example of “unreasonably denying the family member the financial autonomy that he or she would otherwise have had” in the definition of family violence.
Examples of unreasonable and non-consensual denial of financial autonomy
I now turn to consider specific examples upon which counsel for the appellant relied.
Denying the person the financial autonomy they would have had – s 8(5)(a)
The first example in s 8(5) of the Act upon which counsel relied in relation to unreasonable and non‑consensual denial of financial, social or personal autonomy is denying a person the financial autonomy the person would have had but for the act of abuse.
In this case, apart from the dealings in relation to the Property, the appellant and respondent have operated their financial affairs separately. There is no intermingling of their finances. The respondent does not have access to or control of the appellant’s access to a bank account. The respondent does not control the appellant’s financial independence. The parties live separately in both a physical and broader sense. The respondent has, however, through his refusal to leave the Property, impacted the appellant’s ability to deal with the Property. Given the conclusions I have reached above, I do not consider that the fact the respondent’s conduct relates only to the Property and thus only to one aspect of the appellant’s financial affairs would necessarily preclude a finding that the conduct could constitute a denial of financial autonomy. Nor do I consider that the fact the respondent’s conduct relates only to a physical asset, being real property, would necessarily preclude such a conclusion. I also do not consider that the fact the respondent’s conduct is largely passive (in that it takes the form of ignoring and failing to respond to requests to vacate) would necessarily preclude such a conclusion. Despite the conduct taking this form, it still results in the respondent maintaining control and preventing the appellant from assuming her control of the Property.
Causing a person through coercion or deception to relinquish control over assets – s 8(5)(e)(i)
The second potential example upon which the appellant relied was causing a person through coercion or deception to relinquish control over assets. I do not consider there was any evidence before the Magistrate of any deception or coercion. The affidavit material before the Magistrate indicates the context in which the respondent was allowed to occupy the home was consensual.
Without permission keeping property in the ownership of the person – s 8(5)(f)
The appellant also relied on the example in s 8(5)(f) of a person, without permission, keeping property that is in the ownership of the person.
This gives rise to the need for me to consider whether this example includes real property. The sub-section refers to property, not to personal property. There are a number of references throughout the Act to “property”. For example, s 8(2)(d) refers to “damage to property”. Section 8(4)(g) refers to “entering or interfering with property in the possession of the person” and s 8(4)(p) refers to causing damage to property. Section 8(5)(g) includes a reference to disposing of property owned by the person. Section 12(5) enables the Court to make an order against the defendant in relation to premises despite the fact the defendant has a legal or equitable interest in the premises or “property”. There are other references to “property” in the Act.
I note that a reference to “entering” property could include personal property such as a vehicle, or real property. A reference to disposing of property could include chattels as well as real property.
In contradistinction to the references to “property”, there are specific references to “personal property” in the Act. Section 12(1)(g) of the Act specifically enables the Court to impose terms of an intervention order which prohibit the defendant from taking possession of specified “personal property” reasonably needed by a person. Section 12(1)(j) enables the imposition of a term requiring the defendant to return specified “personal property” and s 12(1)(k) enables the imposition of a term requiring the defendant to allow a person to recover or have access to or make use of specified “personal property”.
Taking into consideration the varying references to property, as opposed to personal property, and taking into account the objects and purposes of the Act, I consider the reference in s 8(5)(f) is not restricted to personal property and can include real property.
It follows from the analysis above that the conduct of the respondent in relation to the Property could potentially fall within the definition of an unreasonable and non-consensual denial of financial autonomy.
Given this conclusion, I do not consider it necessary to address all of the other examples in s 8(5)(b) and (c) of the Act relied upon by counsel.
However, I do not consider that the exercise of the discretion afresh warrants a different outcome to the refusal of the application for an interim intervention order by the Magistrate on the basis that, for the reasons set out below, I do not consider there to be grounds for issuing an intervention order in the circumstances of this case.
Grounds for issuing an intervention order
Section 6(a) – meaning
The issue of an intervention order requires, firstly, a finding that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse.
The reasonable suspicion which will be sufficient for the purposes of s 6(a) is not simply that the defendant will commit what constitutes an act of abuse within the meaning of the Act, but rather that such act will be committed absent intervention.
The words “without intervention” must be given some meaning.[43]
[43] Project Blue Sky Australian Broadcasting Association (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ.
I consider the use of the word “intervention” in the Act is a reference to intervention by virtue of the provisions of the Act. For example, the objects of the Act include preventing abuse by providing for the issuing of intervention orders and providing various powers in connection with intervention orders. The reference to intervention against abuse is a reference to intervention pursuant to the provisions of the Act and an intervention order is an order under the Act. An intervention program manager is a person having general oversight of intervention programs and coordinating the implementation of relevant court orders. An intervention order can require a defendant to undertake an intervention program. An intervention program is a program which, among other things, provides supervised treatment, rehabilitation and behaviour management, and the failure to comply with such a program constitutes a breach of the intervention order. I therefore consider the reference to “without intervention” in s 6(a), in the light of the objects, purposes and context, must mean without intervention under the provisions of the Act, that is, without intervention in the form of an intervention order.
I consider that the respondent’s submissions in relation to potential floodgates (as being a reason to narrow the definition of the Phrase) are addressed both through the application of the words “without intervention” in s 6(a) and also through the breadth of the discretion invested in the Magistrates pursuant to s 6(b) of the Act.
I now turn to consider s 10(2) (which is relevant to a decision whether it is appropriate to issue an intervention order) before I return to my conclusions in relation to the application of s 6.
Section 10(2)
Section 10(2) of the Act provides that, in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order, certain matters must be taken into account.[44] Relevantly, s 10(2)(d) provides that, if considering whether to require the defendant to return property to a protected person or to allow a protected person to recover or have access to or make use of property, the income, assets and liabilities of the defendant and protected person (to the extent the issuing authority has been informed of those matters) must be taken into account.
[44] I note that in the case of non-domestic abuse s 21(4)(a) requires the Court to consider whether it might be appropriate and practical for the parties to attempt to resolve the matter by mediation or other means. Although the interim intervention order was stated as based on non-domestic abuse, I consider the relationship in question to fall within the definition of domestic abuse and therefore this requirement does not apply.

Section 10(2)(d) appears among a set of other sub-sections which require the Court to consider other legal proceedings or entitlements under other legislation, including orders of other Courts (such as the Family Court) or agreements or orders pursuant to legislation in relation to the division of property or contact with children.
Section 10(2)(d) does not fit neatly into this grouping of sub-sections. Nevertheless, it reinforces the view I have reached above in relation to the breadth of the concept of financial autonomy. It implies the definition is broad (by referring to income, assets and liabilities). It also suggests the question of whether conduct relates only to one aspect of a person’s financial affairs may be relevant in the exercise of discretion as to whether or not to make an order, and the terms of any such order. The relativity of the financial position of the parties is therefore a relevant consideration in the exercise of the discretion pursuant to s 6(b) of the Act.
Evidence relevant to the financial position of the parties was not put before the Magistrate. The parties filed affidavit material in relation to their respective financial positions and asked that I consider it in determining the appeal. The affidavit of the appellant relevantly deposes to her owning another property in addition to the Property, with combined value of about $700,000. She receives a Centrelink pension. The affidavit of the respondent deposes to him owning assets to the value of about $37,000, together with superannuation to the value of about $161,000 and earning an income as a tow truck driver of approximately $50‑55,000 per year. In general terms it can be said that the appellant has much greater non-liquid assets than the respondent, but the respondent likely receives a greater, albeit fluctuating, income. Although I have received and referred to the affidavit material for completeness, I did not need to take it into consideration for the reasons articulated below.
Section 6 – application
The appellant lives with her daughter in another property owned by the appellant. As I set out above, the appellant and respondent live separately and have, in relevant respects, little to do with each other. Apart from the Property, they operate independently of each other. The appellant stated in her affidavit filed in support of the intervention order that “If I have to go into a nursing home I will need to sell at least one of the properties to fund my care”. She states a desire to be able to spend her money before she passes. The appellant thus wishes to evict the respondent. The respondent originally resided in the Property with the consent of the appellant and resided there for a considerable period with the appellant’s consent. An opportunity to evict him arose and an order was obtained but the appellant failed to enforce that order and require the respondent’s eviction. Years have passed. The respondent may (or may not) have available to him arguments as to whether he ought not be evicted.
The appellant had open to her other avenues through which she could seek to evict the respondent from the Property. They potentially include proceedings in the South Australian Civil and Administrative Tribunal or civil proceedings based on allegations of trespass. The appellant’s counsel contended that it would be unreasonable to expect her to take the course of issuing proceedings given the associated costs, including the filing fee.
I understand the appellant’s desire to remove her son from the Property without incurring significant costs and I appreciate that there are costs associated with the commencement and conduct of proceedings. However, I do not consider the potential incurring of cost is sufficient to justify the conclusion that the appellant has exhausted all avenues available to her. Nor do I consider it justifies the conclusion that, but for intervention under the Act (in the form of an intervention order), the respondent will commit an act of abuse within the meaning of the Act. The application for an intervention order is aimed to achieve the eviction of the respondent. This is not a case in which the parties have co-habited and eviction is sought from the property occupied by the protected person for the purposes of protection of the protected person. This is a case in which the appellant seeks an order under the Act which will have the practical effect of eviction and in circumstances in which the respondent would become subject to the other consequences prescribed by the Act. As Nicholson J said in White v Police.[45]
… To be made the subject of an intervention order following a contested hearing is a very serious matter. An intervention order can impose significant restrictions on freedom of movement. It contains obligatory firearms restrictions including the automatic suspension of any licence held and a prohibition from possession of a firearm. Such an order potentially exposes the person to criminal sanctions (including imprisonment) if it is contravened and in certain circumstances the person will lose the presumption of bail otherwise conferred by section 10 of the Bail Act 1985 (SA).
[Citations omitted]
[45] [2018] SASC 124 at [24].
I therefore do not consider there are grounds for issuing an intervention order against the respondent in all of the particular circumstances.
In case I am wrong in my conclusion in relation to the interpretation or application of s 6(a) in the circumstances, I proceed to consider the exercise of the discretion under s 6(b) of the Act.
In Rana v Gregurev, Peek J said of the breadth of the Act:[46]
[14] A primary purpose of the legislation is to protect people when it is reasonable to suspect that somebody (a defendant) will, without intervention, commit an act of abuse (whether against the applicant or some other person(s)). The importance of such protection is reinforced by various provisions in the Act, including the very broad definition of “abuse” (s 8), the recitation of the objects of the Act and the broad principles to be applied (ss 5 and 10), and the enactment of a presumption against “exercising the discretion to dismiss the application if the applicant alleges an offence involving personal violence or an offence of stalking under s 19AA of the Criminal Law Consolidation Act 1935.”
[15] However, because the concept of abuse is so broadly defined, it is also necessary for the courts to ensure that this broad jurisdiction is not itself abused by specious or unwarranted claims with their associated detrimental consequences to both the limited resources of the courts and to persons the subject of unmeritorious allegations. The necessary balance is achieved by investing the Magistrates with a great deal of discretion in the course they may take in any given case.
[Citations omitted]
[46] [2015] SASC 37 at [14]-[15].
For the same reasons I have set out above in concluding there are not proper grounds for issuing an intervention order under s 6(a), I would refuse to exercise the discretion in favour of the appellant. I do not consider the issue of an intervention order under the Act is appropriate in all of the circumstances of this case.
Orders
I would make the following orders:
1.I grant permission to the appellant to appeal.
2.I dismiss the appeal.