CM v TM and Anor

Case [2011] ACTSC 53

CM v TM AND ANOR
[2011] ACTSC 53 (30 March 2011)

FAMILY LAW AND CHILD WELFARE – protection orders – domestic violence orders – whether need for evidence of likelihood of future domestic violence – evidentiary onus on respondent – difference between domestic violence orders and personal protection orders – Domestic Violence and Protection Orders Act 2001 (ACT) ss 5, 6, 40, 41.
APPEAL AND NEW TRIAL – appeal from Magistrate’s Court – jurisdiction under Domestic Violence and Protection Orders Act 2001 (ACT) – nature of appeal – rehearing with power to admit further evidence.

Family Law Act 1975 (Cth)
Crimes Act 1914 (Cth), s 75(b)

Domestic Violence and Protection Orders Act 2001 (ACT), ss 5, 6, 9, 40, 41, 58, 59, 78, 79
Crimes Act 1900 (ACT)
Magistrates Court Act 1930 (ACT), pt X
Domestic Violence Act 1986 (ACT)
Court Procedures Rules 2006 (ACT), r 5103

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Fox v Percy (2003) 214 CLR 118
Pledge v Roads and Traffic Authority (2004) 78 ALJR 572
CSR Ltd v Della Maddalena (2006) 80 ALJR 458
Warren v Coombes (1979) 142 CLR 531
Jones v Hyde (1989) 63 ALJR 349
Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Briginshaw v Briginshaw (1938) 60 CLR 336
SI bhnf CC v KS bhnf IS (2005) 195 FLR 151
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Perkins v County Court of Victoria (2000) 2 VR 246
Pettitt v Dunkley [1971] 1 NSWLR 376
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Mifsud v Campbell (1991) 21 NSWLR 725
Stoker v Adecco Gemvale Constructions Pty Ltd and Anor [2004] NSWCA 449
Acuthan v Coates (1986) 6 NSWLR 472
Tez v Longley (2004) 142 A Crim R 122
Winwood v Burk [2002] TASSC 54
Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435

Alice Springs Town Council v Mpweteyerre Aboriginal Corporation and Ors (1997) 139 FLR 236

Australian Law Reform Commission (ALRC), Domestic Violence (ALRC:  Sydney, 1986) Report No 30
Seddon N, Domestic Violence in Australia:  The Legal Response (Federation Press:  Sydney, 1993) 2nd ed.
Naffin, N, Domestic Violence and the Law –a Study of s 99 of the Justices Act (South Australia) (Women’s Adviser’s Office, South Australia:  Adelaide, 1985)
The Community Law Reform Committee of the ACT, Domestic Violence – Civil Issues (ACT:  Canberra, 1995) Report No 11

No. SCA 41 of 2007

Judge:              Refshauge J
Supreme Court of the ACT

Date:               30 March 2011

IN THE SUPREME COURT OF THE       )
  )          No. SCA 41 of 2007
AUSTRALIAN CAPITAL TERRITORY    )          

CM

Appellant

v

TM AND ANOR

Respondents

ORDER

Judge:  Refshauge J
Date:  30 March 2011
Place:  Canberra

THE COURT ORDERS THAT:

  1. The time within which the Appellant may file the notice of appeal is extended to 1 June 2007.

  1. The appeal be dismissed.

  1. In 2003, the appellant, CM married the first respondent, TM, whom he had…

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AGLC
CM v TM and Anor [2011] ACTSC 53
Case
[2011] ACTSC 53
Decision Date

CaseChat Overview and Summary

In the case of CM v TM and Anor, the appeal concerns the granting of a domestic violence order and a personal protection order by the Magistrates Court of the Australian Capital Territory. The Appellant, CM, challenges the decision on the basis that the Magistrate did not properly consider the evidence required to establish the likelihood of future domestic violence. The Respondents, TM and another, argue that the orders were correctly made and should be upheld.

The legal issues central to this appeal include the onus of proof in relation to domestic violence orders under the Domestic Violence and Protection Orders Act 2001 (ACT). Specifically, the court must determine whether the Magistrate erred in not requiring evidence of a likelihood of future domestic violence before granting the order. Additionally, the court must clarify the distinction between domestic violence orders and personal protection orders and whether different evidentiary standards apply to each. The Appellant contends that the Magistrate failed to differentiate between these orders, whereas the Respondents maintain that the Magistrate correctly exercised their discretion.

The court found that the Magistrate did not err in granting the domestic violence order, as there was sufficient evidence of past domestic violence to justify the order. However, the court did note a misunderstanding regarding the evidentiary onus and the distinction between domestic violence orders and personal protection orders. The Magistrate had applied a higher threshold for the personal protection order, which aligns more closely with the statutory requirements. The appeal was dismissed on the basis that the Magistrate's decision was not materially affected by any perceived error. The court extended the time for filing the notice of appeal to 1 June 2007 to allow for any further proceedings.

The court did not make any further orders beyond the extension of the appeal period and the dismissal of the appeal.

Orders

Orders of the court

The time within which the Appellant may file the notice of appeal is extended to 1 June 2007. The appeal be dismissed.

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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