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KSJ v GJA

KSJ v GJA

Case [2021] WASCA 98 31 May 2021

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KSJ -v- GJA [2021] WASCA 98
CORAM:   MITCHELL JA
BEECH JA
VAUGHAN JA

HEARD:   20 MAY 2021
DELIVERED          :   31 MAY 2021
FILE NO/S:   CACV 125 of 2020
BETWEEN:   KSJ
Appellant
AND
GJA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number            :   APP 36 of 2020

Catchwords:

Appeals - Appeal from decision made in proceedings under the Restraining Orders Act 1997 (WA) - Whether the District Court of Western Australia has jurisdiction pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act2004 (WA) to hear an appeal from a decision of the Magistrates Court of Western Australia to cancel an interim family violence restraining order - Whether the District Court of Western Australia had jurisdiction under s 64 of the Restraining Orders Act1997 (WA) - Whether decision to cancel an interim family violence restraining order is a decision 'in relation to a final order' - Whether effect of the magistrate's decision to cancel the interim family violence restraining order was to dismiss the application for a final family violence restraining order

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Restraining Orders Act 1997 (WA), s 64

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

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

Armstrong v Saxby [2016] WADC 87; (2016) 90 SR (WA) 1
CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297
Jackson v Chrisp [2012] WASCA 158
Komorowski v Ong [2019] WASCA 201; [2020] ALMD 1039
KSJ v GJA [2020] WADC 140
KSJ v GJA [2020] WADC 96
Laurent v Fates [2015] WASCA 226
Lewis v Sergeant Riley [2017] NSWCA 272; (2017) 96 NSWLR 274
Lovelady v Griffiths [2018] WADC 180; (2018) 96 SR (WA) 108
Mohammadi v Bethune [2018] WASCA 98
O'Grady v The Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356
Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404
PAR v JLT [2015] WASC 362
Rayney v AW [2009] WASCA 203
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105

JUDGMENT OF THE COURT:

Introduction

The appellant applied in the Magistrates Court of Western Australia for a family violence restraining order (FVRO) under pt 1B of the Restraining Orders Act 1997 (WA) against the respondent. The respondent is the partner of SH, who is the appellant's former partner. The appellant was granted, ex parte, an interim FVRO against the respondent. The application for an FVRO and the interim FVRO were to prevent contact between the respondent, on the one hand, and the appellant and her children, on the other hand.
The appellant's FVRO application was listed for final hearing but was adjourned several times, in part…

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 [2021] WASCA 98
Case: [2021] WASCA 98
Decision Date

CaseChat Overview and Summary

This case concerns an appeal from a decision of the District Court of Western Australia that an appeal to that court was incompetent. The appellant, KSJ, appealed to the District Court against a decision of a magistrate to cancel an interim family violence restraining order (FVRO). The District Court dismissed the appeal on the basis that it did not have jurisdiction to hear the appeal. KSJ then appealed to this court. The Court dismissed the appeal, finding that the primary judge was correct to find that the District Court does not have jurisdiction to hear an appeal from a decision to cancel an interim FVRO. The appeal to this court must be dismissed and there will be no occasion for this court to consider other complaints made by the appellant in the grounds and submissions.

Orders