Groves (a pseudonym) v Everette (a pseudonym) - [2023] ACTSC 27

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Groves (a pseudonym) v Everette (a pseudonym)
Citation:	[2023] ACTSC 27
Hearing Date:	22 February 2023
DecisionDate:	22 February 2023
Before:	Loukas-Karlsson J
Decision:	See [42]
Catchwords:	APPEAL – APPEAL FROM MAGISTRATES COURT – appeal from decision of Registrar not to list a matter on an urgent basis for the hearing of an application to temporarily extend a family violence order – where matter remains listed in Magistrates Court – whether court has jurisdiction to hear such an appeal – no decision made to refuse to amend the family violence order – jurisdiction of Supreme Court not enlivened at this stage
Legislation Cited:	Family Violence Act 2016 (ACT) ss 70A, 70B, 84, 86, 92 Court Procedures Rules 2006 (ACT) rr 3803, 6256
Parties:	Gianna Groves (a pseudonym) ( Appellant) Beckett Everette (a pseudonym) ( Respondent)
Representation:	Counsel B Harders ( Appellant) No appearance ( Respondent)
Solicitors Legal Aid ACT ( Appellant) No appearance ( Respondent)
File Number:	SCA 9 of 2023
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: The Registrar Date of Decision: 16 February 2023

Loukas-Karlsson J:

Introduction

1․At the outset I underline that courts must do their best to ensure that family violence matters are dealt with as expeditiously as possible. This matter has come before me on a duty basis. There was no appearance on behalf of the respondent. The appellant indicated this was due to issues of service and tendered evidence showing that service had been attempted four or five times (on 17 February 2023 at 12.45pm and 5.45pm and on 18 February at 10.18am, 12.45pm and 4.40pm at two addresses). The evidence before me did not indicate if the last attempt was properly described as an attempt or merely a discussion with an individual who did not have any useful information. That evidence also indicated that the respondent may now be residing with another individual somewhere in the Ballarat area, but that the process server was not sure of that address. In the result I was satisfied that the hearing could proceed in the absence of the respondent.
2․The appellant is seeking to appeal from a decision of the Registrar of the Magistrates Court refusing to list an application for a temporary extension of a Final Family Violence Order for urgent hearing.
3․What follows is a brief summary of the matters that led to the application being listed before me. The summary is drawn from the affidavit of Samuel Carmichael affirmed on 21 February 2023 which was read on the application. Mr Carmichael is the solicitor with carriage of the matter for the appellant.
4․Mr Carmichael received instructions to act on behalf of the appellant on the afternoon of 16 February 2023 as a Final Family Violence Order entered in the appellants favour was due to expire at 11.59pm that evening.
5․On instructions, Mr Carmichael filed an application for an extension and amendment of the order pursuant to s 86 of the Family Violence…

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.

Continue reading Groves (a pseudonym) v Everette (a pseudonym)

Details

AGLC: Groves (a pseudonym) v Everette (a pseudonym) [2023] ACTSC 27
Case: [2023] ACTSC 27
Decision Date

CaseChat Overview and Summary

The appeal in Groves (a pseudonym) v Everette (a pseudonym) [2023] ACTSC 27 involved Gianna Groves, the appellant, seeking to appeal against the decision of the Registrar of the Magistrates Court not to list an application for a temporary extension of a Final Family Violence Order on an urgent basis. The respondent, Beckett Everette, did not appear in court. The appellant argued that the court had jurisdiction to hear the appeal under section 92 of the Family Violence Act 2016 (ACT), which outlines the appealable decisions by the Magistrates Court. The court was required to determine whether it had jurisdiction to hear the appeal and whether there was a refusal to amend a final order.

Justice Loukas-Karlsson found that the court did not have jurisdiction to hear the appeal at that stage as no decision had been made to refuse to amend the family violence order. The court concluded that the decision to not list a hearing on an urgent basis or the requirement for personal service of the application on the respondent were internal listing matters of the Magistrates Court. As a result, the jurisdiction of the Supreme Court had not been enlivened at that point. However, the court noted that the Magistrate retained the power to vary or amend the order of the Registrar requiring personal service before the hearing of the urgent application and to proceed with the hearing of the application for the temporary extension.

In light of this, Justice Loukas-Karlsson adjourned the matter without making a decision on the application in proceeding or the appeal. The appellant was granted leave to seek to have the matter re-listed on 24 February 2023 depending on what occurs in the Magistrates Court on 23 February 2023. The court also granted leave to seek orders expediting the appeal or any amendment to the notice of appeal. The decision emphasized the importance of ensuring that family violence matters are dealt with as expeditiously as possible and the need to protect victims and alleged victims of domestic violence by ensuring that they are protected by those orders.

Orders