KSJ v GJA - [2020] WADC 140

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KSJ -v- GJA [2020] WADC 140
CORAM:   BIRMINGHAM QC DCJ
HEARD:   3 & 29 SEPTEMBER 2020
DELIVERED          :   9 NOVEMBER 2020
FILE NO/S:   APP 36 of 2020
BETWEEN:   KSJ
Appellant
AND
GJA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE GLUESTEIN
File Number            :   MC/PER/CIV/RO/1962/2019

Catchwords:

Appeal - Restraining Orders Act 1997 (WA) - Oral application for cancellation of interim family violence restraining order - Matters to be considered before cancellation - Not final order - Effect of cancellation of interim family violence restraining order on final order hearing - Right of appeal

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 109(2)
Magistrates Court Act 2004 (WA), s 9, s 10
Restraining Orders Act 1997 (WA), s 3, s 32(5), s 33, s 41(4), s 43(1a), s 45(4), s 47, s 49, s 64, s 72(1)(a)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr T R Kean (written submissions only)

Solicitors:

Appellant	:	Not applicable
Respondent	:	Kean Legal Barristers & Solicitors

Case(s) referred to in decision(s):

Davern v Messel (1984) 155 CLR 21
KSJ v GJA [2020] WADC 96
PAR v JLT [2015] WASC 362
Re Magistrate G Smith; Ex parte Ives [2010] WASC 249

BIRMINGHAM QC DCJ:

This is an appeal from the decision of the learned magistrate to cancel the interim family violence restraining order (the interim FVRO) upon the appellant's oral application where the appellant was the protected person under that order.

Background

In the court below, the appellant has applied for a family violence restraining order against the respondent (the FVRO). The appellant had also initiated similar proceedings against her former partner, SH. The applications were brought pursuant to pt 1B of the Restraining Orders Act 1997 (WA).
The respondent is the current partner of SH.
The appellant was granted an interim FVRO on 13 May 2019, against the respondent. The interim FVRO and application for the FVRO was to prevent contact between the respondent and the appellant and the appellant's two children.
The FVRO applications relate to the alleged conduct of the respondent and SH towards the appellant and her children and an incident allegedly involving the respondent at the appellant's property on 9 May 2019.
The appellant's application was originally set down for a final order hearing on 11 November 2019, however when it became apparent that the final hearing could not proceed that day, the then presiding learned magistrate adjourned the hearing. The learned magistrate then proceeded to deal with the summons to produce issued by the appellant that sought to require the respondent to produce certain documents at the final hearing. The learned magistrate dismissed the appellant's summons to produce, upon the respondent's objection.
The appellant appealed the learned magistrate's decision and the matter was heard in this court over three days (20 April, 19 May, 9 June 2020) (the first…

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 KSJ v GJA

Details

AGLC: KSJ v GJA [2020] WADC 140
Case: [2020] WADC 140
Decision Date: 9 NOVEMBER 2020

CaseChat Overview and Summary

The appeal involves two parties, KSJ and GJA, and concerns an interim family violence restraining order issued under the Restraining Orders Act 1997 (WA). The dispute arose when KSJ made an oral application to the Magistrates Court for the cancellation of the interim order. The application was subsequently dismissed, leading KSJ to appeal to the Supreme Court.

The court was required to determine several legal issues, including what factors should be considered before cancelling an interim family violence restraining order, whether such an order is considered final, and the implications of cancelling the order on the final hearing. Additionally, the court had to consider the right of appeal in this context. The central issue was whether the trial magistrate erred in dismissing the application for cancellation without providing reasons.

The court held that the trial magistrate's decision was not in error, as the application for cancellation of the interim order was not a final order. The court reasoned that the interim order was subject to review and could be cancelled if the party seeking cancellation demonstrated that it was appropriate to do so. The court found that the magistrate did not need to provide reasons for dismissing the application, as it was not a final order. Furthermore, the court noted that the cancellation of the interim order did not affect the right of appeal regarding the final order. The appeal was dismissed as the trial magistrate's decision was within their jurisdiction and did not constitute a legal error.

No additional orders were made by the court, as the appeal was dismissed. The decision highlights the procedural requirements for applications to cancel interim family violence restraining orders and reaffirms the distinction between interim and final orders in this context.

Orders