Abha Narang (a pseudonym) v Parth Patil (a pseudonym) - [2021] ACTMC 15

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Abha Narang (a pseudonym) v Parth Patil (a pseudonym)
Citation:	[2021] ACTMC 15
Hearing Date(s):	26 November 2021
DecisionDate:	26 November 2021
Before:	Special Magistrate Hopkins
Decision:	See [25]
Catchwords:	FAMILY VIOLENCE ORDER – JURISDICTION, PRACTICE AND PROCEDURE – Re-enlivening lapsed Final Order following application for extension made before original order ends – Family Violence Act 2016 (ACT) ss 83, 84 & 86 – ‘Slip Rule’ – Applicability of Court Procedures Rules 2006 (ACT) r 6906.
Legislation Cited:	Court Procedures Act 2004 (ACT), s 67 Court Procedures Rules 2006 (ACT), rr 7, 1600 & 6906 Family Violence Act 2016 (ACT), ss 34, 83, 84 & 86 Magistrates Court Act 1930 (ACT), s 258
Cases Cited:	Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 4) [2021] FCA 459 Endresz v Commonwealth of Australia [2019] FCAFC 197; 273 FCR 286 Flint v Richard Busuttil & Co Pty Limited [2013] FCAFC 131; 216 FCR 375 Harrell & Nesland (No. 2) [2021] FamCAFC 35 Kaney & Rushton [2017] ACTSC 11 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; 151 CLR 590 Wickey v R (No 2) [2012] ACTCA 51; 269 FLR 289
Parties:	Abha Narang (Applicant) Parth Patil (Respondent)
Representation:	Counsel M Johnson (Applicant) A Neilan (Respondent)
Solicitors Legal Aid ACT (Applicant) Neilan Stramandinoli Family Law (Respondent)
File Number(s):	FVO 291/2019

SPECIAL MAGISTRATE HOPKINS:

On 26 November 2021, the Court heard an Application by Abha Narang (“the Applicant”) to extend a lapsed Final Family Violence Order made by Deputy Registrar Power on 28 May 2019. Counsel for the Applicant filed carefully considered written submissions on 17 November 2021.

The Respondent was excused from attending the hearing, having indicated that he neither consented to nor opposed the Application.

Following brief oral argument by the Applicant’s counsel to supplement written submissions, Orders were made in the terms sought by the Applicant. See [25]. It was indicated that the submissions of the Applicant were accepted and that written reasons for the decision would be provided.

Issue for Determination

The issue for determination is whether, in the circumstances of this case, the Court has the power to extend and/or re-enliven a Final Family Violence Order that was not temporarily extended after an Application to Extend that Order was filed within time.

The issue is significant because if the Court is not able to re-enliven or extend the relevant Order and the Application to Extend is frustrated, the Applicant has no recourse other than to file a new Originating Application for a ‘fresh’ Family Violence Order pursuant to s 34 of the Family Violence Act2016 (ACT) (“the Act”). This would prejudice the Applicant because the test in s 34 is more onerous than that in s 86 of the Act (which applies to an Application to Extend).

Facts and Procedural History

A Final Family Violence Order (FVO291/19) was made by consent and without admission on 28 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACTMC 15
Decision Date: 26 November 2021

CaseChat Overview and Summary

Abha Narang sought a Family Violence Order against Parth Patil, alleging that she had suffered abuse and harassment at his hands. The application was heard and determined by the Magistrates Court of the Australian Capital Territory, which granted the order on the basis of the evidence presented. The order was set to expire, and Narang applied for an extension before the expiry date, seeking to re-enliven the lapsed Final Order. Patil opposed the application, arguing that the court lacked the necessary jurisdiction to extend the order. The legal issues before the court were whether the court had the jurisdiction to re-enliven a lapsed Final Order following an application for extension made before the original order ends, and whether the court's procedures rules applied to such a case.

The court held that it had the jurisdiction to re-enliven a lapsed Final Order under section 83 of the Family Violence Act 2016 (ACT), which provides for the extension of an order if it is in the best interests of the protected person. The court also found that the ‘Slip Rule’ applied, which allows the court to exercise its jurisdiction to make orders that are necessary to give effect to an existing order. The court further held that the Court Procedures Rules 2006 (ACT) rule 6906 applied to the case, as it was a procedural matter that did not affect the merits of the case. The court granted the application for extension and re-enlivened the lapsed Final Order.

The court's reasoning and outcome in this case provide clarity on the jurisdiction of the Magistrates Court of the Australian Capital Territory to re-enliven a lapsed Final Order following an application for extension made before the original order ends. The court's decision also highlights the applicability of the ‘Slip Rule’ and the Court Procedures Rules 2006 (ACT) rule 6906 to such cases. The final orders of the court are set out in paragraph [25] of the judgment.

Orders

Orders of the court

See [25]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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