| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GREER -v- WALLAM [2014] WADC 11 CORAM : EATON DCJ HEARD : 20 JANUARY 2014 DELIVERED : 31 JANUARY 2014 FILE NO/S : ALB APP 1 of 2013 BETWEEN : ANGELA REBECCA GREER Appellant
AND
VERNARD OWEN WALLAM
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE WATT File No : CC AL RO 49 of 2013, CC AL RO 50 of 2013, CC AL RO 51 of 2013 Catchwords: Appeal - Restraining orders - Duration of orders for the protection of children - Jurisdiction to hear appeal from a magistrate in the Children's Court of Western Australia Legislation: Children's Court of Western Australia Act 1988
Restraining Orders Act 1997
Restraining Orders Amendment Act 2013 Result: Appeal dismissed
Representation: Counsel:
Appellant : Mr R G Hickson
Respondent : No appearance
Solicitors:
Appellant : Family Violence Prevention Legal Service
Respondent : Not applicable
Case(s) referred to in judgment(s):
1 EATON DCJ: This is an appeal filed on 8 October 2013 against orders made by her Honour Magistrate Watt sitting in the Children's Court of Western Australia at Albany on 20 September 2013. The appeal was filed within time. The respondent to the appeal is Vernard Owen Wallam ('the respondent') aged 36 years.
2 Having confirmed that the respondent was, in January 2014, a prisoner on remand at Hakea Prison, the appellant's solicitor caused a copy of the appeal notice and a covering letter with attachments, including a blank Notice of Respondent's Intention (Form 8) and a Video Link Booking Request to be sent by facsimile transmission to him at 'c/- Hakea Prison, Locked Bag 111, Canning Vale, WA, 6970'. The facsimile transmission was successful. The covering letter advised the respondent that the appeal was for hearing in this court on 20 January 2014 at 11.00 am, that he was not obliged to attend but could do so if he chose to do so and that he might, in lieu of personal attendance, appear by video link from Hakea Prison. 3 Rule 51(4) of the rules of this court relating to appeals to the court provides that an appeal notice must be served on the respondent either personally or, if the respondent is in a prison, by sending it to the superintendent of the prison by ordinary prepaid post. It does appear that service upon the respondent by facsimile transmission is not in accordance with the Rules of Court. Nevertheless, at the hearing of the appeal on the morning of 20 January 2014 the respondent was called by name. He did not appear. I determined that, for reasons which follow, the hearing should proceed notwithstanding the non-appearance of the respondent, the absence of any communication with the court by him and the failure of the appellant to strictly comply with the relevant rules. 4 The appellant is Angela Rebecca Greer ('the appellant') aged 33 years. The ground of the appeal is that 'the Magistrate erred in deciding that a violence restraining order protecting a child can only be issued for a period of six months'. The appeal is said to have been made pursuant to s 11B, s 5(a)(ii) and s 50A of the Restraining Orders Act 1997 (the Act). 5 The background to this matter is that the appellant and the respondent are wife and husband having been married in 2009. Prior to the marriage they had lived together, from time to time, over a period of about 12 years as de facto husband and wife. There are three children of the relationship, namely, Jordan Owen Wallam born 24 June 2000, Mahalia Kelly Rose born 24 August 2002 and Matilda Eileen-Rose Wallam born 1 November 2006 ('the children'). The parties to the marriage separated on 7 September 2010 and have lived apart since then. The children have remained in the care of the appellant. 6 On 16 December 2010 his Honour Magistrate Lawrence, sitting in the Fremantle Magistrates Court, on the appellant's application, made an interim order for the protection of the appellant, referred to in the order as Angela Rebecca Wallam, and the children. That order became final on 24 February 2011. Notification was given on that day that the orders in respect of the children were in effect from 24 February 2011 for two years. They would, therefore, expire on 23 February 2013. 7 On 13 February 2013 the appellant applied again to the Fremantle Magistrates Court to vary the orders made on the basis that they were about to expire and that there continued to be an ongoing threat to both the appellant and the children. I am informed that the application was not served in time and, in consequence, the orders made by Magistrate Lawrence expired. 8 On 21 February 2013 the appellant again applied, on this occasion, to the Magistrates Court in Albany for a violence restraining order (VRO) for her protection and that of the children against the respondent pursuant to the provisions of the Act. In support of her application the appellant alleged that a previous order had or was about to expire and that the respondent had continued to make threats of violence to her and the children. 9 On 27 February 2013 the appellant, for reasons which are not precisely clear, applied anew to the Children's Court at Albany for new restraining orders for the protection of the children. Simultaneously, it seems, the appellant applied to the Albany Magistrates Court for a restraining order for her own protection. Again, the basis was that the previous orders had expired and that there was a continuing threat to her and the children. 10 On the application made to the Children's Court interim orders were made for the protection of the children. Those orders became final and on 25 March 2013 the Children's Court at Albany gave notification that a final order would remain in force for six months from 3 March 2013. They would expire, therefore, on 2 September 2013. 11 On the appellant's application to the Magistrates Court at Albany an order was made for her protection for two years with effect from 27 February 2013. That would expire on 26 February 2015. 12 On 28 February 2013 the appellant's solicitor wrote to the registrar of the Albany Magistrates Court requesting a re-listing of her applications in respect of the children so that the orders made for their protection could also be made for two years. There was no reply. On 6 March 2013 the appellant's solicitor again wrote, this time to the magistrate who made the orders, her Honour Magistrate Watt, seeking a re-listing of the matters for the same purpose. Again there was no reply. 13 Section 25 of the Act presently provides that an application for a VRO may be made by a person seeking or by a parent or guardian of the child who is sought to be protected. The section further provides, in subsection (3), that an application for a VRO made in person is to be made in the prescribed form to - (a) if the respondent is a child, the Children's Court; or (b) if the respondent is not a child and the person seeking to be protected is a child, the Children's Court or the Magistrates Court; or (c) otherwise, the Magistrates Court. 14 That section was amended by the Restraining Orders Amendment Act 2013 (No 14 of 2013) which came into effect on 4 October 2013, the day of Royal assent. It deleted s 25(3) of the Act and inserted a provision in lieu thereof in the terms mentioned in the preceding paragraph hereof. It also deleted s 20(1)(c) of the Children's Court of Western Australia Act 1988 and inserted s 20(2A) in the following terms: Subject to this Act and the Restraining Orders Act 1997 section 52, the Court has jurisdiction to hear and determine all applications made to the Court with respect to a child under the Restraining Orders Act 1997. 15 Section 20, prior to the amendment, provided that the Children's Court of Western Australia had exclusive jurisdiction to hear and determine all applications made with respect to a child under the Act. The impact of the amendment was to delete the reference to 'exclusive' jurisdiction to hear and determine all applications made with respect to a child. The phrase 'with respect to a child' is capable of multiple meanings. An application for an order restraining a person who is a child would be an application 'with respect to a child'. Equally, an application brought by a child for a restraining order would be an application 'with respect to a child'. Arguably an application brought by a parent or guardian seeking protection for both the parent or guardian and a child or children in his or her care might be an application 'with respect to a child'. 16 When Magistrate Watt dealt with the appellant's applications on 20 September 2013 s 25(3) of the Act provided that an application for a violence restraining order made in person is to be made in the prescribed form to - 17 When Magistrate Watt dealt with the appellant's applications on 20 September 2013 s 20(1)(c) of the Children's Court of Western Australia Act provided that the Children's Court of Western Australia had exclusive jurisdiction to hear and determine all applications made with respect to a child under the Act. 18 A comparison between the terms of s 25(3) of the Act and s 20(1)(c) of the Children's Court of Western Australia Act as at 20 September 2013 reveals a tension with the former providing that the appropriate forum for an application for a violence order if the respondent is a child is the Children's Court of Western Australia but otherwise the Magistrates Court and the latter conferring exclusive jurisdiction on the Children's Court of Western Australia to hear and determine all applications made 'with respect to a child' under the Act. It is not surprising that some magistrates took the view that the Children's Court was the appropriate forum for all applications under the Act with respect to a child whether the child be an applicant, a respondent or the child of an applicant parent or guardian. 19 At that time the amendment (No 14 of 2013) had not come into effect. 20 In his second reading speech in respect of the Restraining Orders Amendment Bill 2013 the Attorney General, the Hon Michael Mischin (North Metropolitan) said as follows: In cases of apprehended violence in a domestic context, an applicant seeking a violence restraining order under the Restraining Orders Act 1997 may have children that he - or more commonly she - is also anxious to protect. Section 68 of the act allows a court to extend the operation of any order made in favour of a parent to also protect the applicant's children. However, since the introduction of recent amendments to the Restraining Orders Act 1997 in May 2012, the government has become aware of a practice having developed among some magistrates of not utilising section 68, requiring a parent to make a separate application to the Children's Court of Western Australia for a violence restraining order to protect their children. Consequently, distressed parents need to attend two separate courts in order to gain protection for themselves and their children. This was never intended by the legislation and is plainly an onerous and unnecessary burden for a parent already suffering from violent abuse. The bill proposes an amendment to s 25 of the act to make it unequivocally clear that a child applicant, or a person making an application on behalf of a child, or both, may be granted a VRO in the Magistrates Court. At the same time, this amendment retains the spirit and intent of the original 2012 amendment that sought to allow for a child seeking the protection of a restraining order to be heard in the Children's Court, with all the sensitivities of that jurisdiction. 21 Section 68 of the Act, referred to by the Attorney General, provides that when making a restraining order a court may extend the order to operate for the benefit of a person named in the order in addition to the person protected by the order. If an order is so extended the provisions of the Act apply to the named person as if that person were the person protected by the order. It follows from the section that, when making a restraining order, a magistrate may extend the order to operate, not only for the protection of the applicant mother (or father, as the case may be), but also for the protection of her (or his) children. 22 In the matter before me clearly, the respondent is not a child. The appellant is an adult seeking to be protected and a parent seeking orders also for the protection of the children. As such, as provided for by the Act, the Magistrates Court has jurisdiction. In my view a magistrate sitting in the Magistrates Court could and should deal with the application/s as, in effect, a family unit seeking protection under the Act. Arguably, having regard to the terms of s 25(3) of the Act, the Children's Court does not have jurisdiction if the applicant is an adult parent or guardian seeking protection for both herself (or himself) and for a child or children in her (or his) care. 23 It does appear as though the problem outlined by the Attorney General in his second reading speech had an impact upon the way in which the appellant approached her application for restraining orders for the protection of herself and her children. She, an adult and parent, applied to the Children's Court at Albany for a VRO to protect her children and to the Albany Magistrates Court for a VRO for her own protection. This splintering of what should have been one application for the protection of one family unit was compounded by the magistrate's misunderstanding of the effect s 50A of the Act which provides that a restraining order that is a final order made against a child is to have a duration of six months or less, unless the order is made under s 63A. This was not an order made under s 63A of the Act. This was not an order made against a child. Rather, it was an order made, on the application of a parent for the protection of a child. 24 Section 16 of the Act deals with the duration of violence restraining orders. It provides that a VRO comes into force when it is served on the person who is bound by the order, or if a later time is specified in the order, at that time. Any other interim order, or a final order, lapses if it is not served on the respondent within two years, or any shorter period specified in the order, of the order being made. 25 It provides further that an interim order remains in force until one of the following occurs - (a) a final order in respect of the matter comes into force; (b) a final order hearing in respect of the matter is concluded without a final order being made; (c) the interim order is cancelled or expires; or (d) in the case of a telephone order, 3 months elapse from the time the order came into force. 26 Finally, subsection (5) provides that a final violence restraining order remains in force for the period specified in the order, or if no period is specified, 2 years. 27 A person protected by a restraining order or a parent of such a person, being a child, may apply pursuant to pt V of the Act to vary or amend the terms of an order, including its duration. In effect, the appellant in the matter before me was attempting to vary the orders made for the protection of the children so that their duration was extended from six months to two years, to bring the protective orders for the benefit of the children in line with those made for the benefit of the appellant. 28 On 20 September 2013 Magistrate Watt, sitting in the Children's Court of Western Australia at Albany gave judgment on the application before her. She said: This is an application for an interim violence restraining order under section 11A of the Restraining Orders Act 1997. The applicant in this matter is Angela Greer and she applies on behalf of her children, Mahalia, Matilda and Jordan. They previously had orders. They're Children's Court orders so, of course, they can only be made for a maximum of six months and they have recently expired. 29 The magistrate proceeded to make orders for the protection of the children for six months only, rejecting counsel's submission that the Act provides for orders of up to two years duration in respect of both children and adults. The magistrate indicated that she did not agree with that proposition. 30 It should be noted that the magistrate, sitting in the Children's Court purported to deal with the application before her pursuant to s 11A of the Act. Under that section the Magistrates Court, not the Children's Court, may make a restraining orderif it is satisfied that the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person; or a person seeking to be protected, or a person who has applied for the order on behalf of that person, reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected, and that making a VROis appropriate in the circumstances. 31 The effect of the magistrate's ruling and orders placed the appellant in a difficult and impractical situation. She had the benefit of a restraining order for a period of two years but was obliged to apply every six months for the renewal of the same protection for her children. 32 The appeal to this court is brought against the decisions made by her Honour Magistrate Watt in the Children's Court of Western Australia at Albany. It is an appeal pursuant to r 51 of the District Court Rules 2005. 33 Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 provides for appeals from the Magistrates Court to this court. It provides that a party to a case that is not a minor case may appeal to this court against - 34 An appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so. It must be conducted in accordance with rules of court made by this Court. This court must decide the appeal on - 35 Section 41 of the Children’s Court of Western Australia Act provides that an appeal against a decision of the Court when constituted so as not to consist of or include a judge may be made under and subject to pt 2 of the Criminal Appeals Act 2004. Magistrate Watt was sitting alone as a Children's Court magistrate. Section 7 of the Criminal Appeals Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. 36 Section 64 of the Act confirms the position by providing that a person aggrieved by the decision of a court in relation to a final order, may appeal against that decision in accordance with that section. It provides that if the decision was made by the Magistrates Court, the appeal is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act unless s (6a)(a) applies. It does not in the matter before me. 37 Section 64 of the Act further provides that if the decision was made by the Children's Court when constituted so as not to consist of or include a judge, the appeal is to be made in accordance with the Children's Court of Western Australia Act s 41. It follows from the foregoing that this court does not have jurisdiction to determine the appeal. 38 An appeal to a single judge under the provisions of the Criminal Appeals Act against a decision cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise. The appellant, if she chooses to pursue an appeal by that route, is well out of time but may still be given an extension of time, that being a matter of discretion. That will be a matter for the Supreme Court. Given that there is, in my view, a cloud over whether the appellant's initiating process in the Children's Court of Western Australia at Albany was in accordance with the law, it may be more sensible for the applicant to apply anew to the Magistrates Court at Albany in her capacity as parent or guardian of the children for orders for the protection of the children in the hope that final orders might ultimately be made synchronizing the protection of the restraining orders presently in existence for her benefit with those granted for the benefit of the children.
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