OL v EH
[2025] ACTMC 8
•17 March 2025
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | OL v EH |
Citation: | [2025] ACTMC 8 |
Hearing Date: | 17 March 2025 |
Decision Date: | 17 March 2025 |
Before: | Chief Magistrate Walker |
Decision: | Section 44A of the Family Violence Act 2016 (ACT) does not apply to an extension of a final family violence order. A young person who was once protected by an order for a fixed period, and who has since become an adult, will not properly be included in the new form of the order. |
Catchwords: | FAMILY VIOLENCE ORDERS –– inclusion of child in extended family violence order where child now over the age of 18 years - Family Violence Act2016 (ACT) |
Legislation Cited: | Family Violence Act2016 (ACT) ss 8, 41, 42, 44A, 66, 83, 86 Sexual, Family and Personal Violence Legislation Amendment Bill 2023 (ACT) cl 10 Family Law Act 1975 (Cth) |
Parties: | OL ( First Applicant) ML (Protected Person) EH ( Respondent) |
Representation: | Counsel Self-Represented (Applicant) Self-Represented (Respondent) |
File Numbers: | FVO 163 of 2022 FVO 270 of 2025 |
CHIEF MAGISTRATE WALKER:
Introduction
1․The application before me is an application made by OL to amend a family violence order by way of extending that order for a further two years. The application was filed in court on 9 December 2024 and has been extended on a temporary basis to the date of contested hearing.
Matter History
2․On 21 February 2022, an interim family violence order was made in which OL and her daughter, ML, who at the time was a child, were named as protected persons. EH is the respondent. He is the ex-husband of OL. He is not the biological father of ML.
3․On 22 August 2022, the interim family violence order was made final on a “by consent and without admissions” basis. I will refer to the final order as the “original order”.
4․On 5 July 2024, an application was made to amend the original order by extending it. That original order was amended by way of temporary extension on 15 August 2024, 28 October 2024 and 18 December 2024. The last of those extensions was until 4.00 pm today.
5․OL and EH attended for their hearing unrepresented, and each gave evidence and was cross-examined by the other with the assistance of a Registrar.
Preliminary Issue
6․A preliminary issue arises. That is as to whether an amended order, if granted, may lawfully include ML as a protected person. ML was 17 years old when the original order was made and is now 19 years of age.
7․Prior to the insertion of section 44A in the Family Violence Act 2016 (ACT) (the Act), the original order would arguably have ceased to protect ML when she turned 18 years of age.
8․Section 44A of the Act provides:
(1)This section applies if:
(a) the court makes a family violence order; and
(b) a protected person is a child when the order is made.
(2)To remove any doubt, the order continues in force in accordance with the terms of the order and this Act when the protected person becomes an adult.
9․This provision makes it clear that a family violence order continues in its extant form despite a protected person turning 18. What is less clear is the effect of an amendment to the original order, particularly when the amendment sought is as to the length of the order. That is, whether the original order which is amended by extension, as is sought in this case, is an order which section 44A requires to continue in force with the named “child” as a protected person.
10․Section 86 of the Act provides:
(1) The Magistrates Court must, on application, amend a final order (the original order) by extending it for a stated period unless satisfied that a protection order is no longer necessary to protect the protected person from family violence by the respondent.
(2) If the parties consent to the application to amend the original order, the Magistrates Court must amend the original order without considering the matter mentioned in subsection (1).
11․The extension is contested in this case.
Decision
12․An extension of the original order is an amendment. The length of the order is one of the terms of the order. I have concluded that a term of the order is not a condition. I have had regard to sections 41 and 42 of the Act in making this determination.
13․Section 41 of the Act provides:
A final order made as a consent order may contain a condition that a final order made other than as a consent order may contain, but it is not necessary for the court to consider whether the condition is necessary.
14․Section 42 of the Act provides:
A condition in a family violence order may have effect for a period stated in the family violence order that is shorter than the period of the order.
15․Although I observe on an obiter basis that conditions may also be terms of an order, and I have regard to section 66 of the Act in doing so,[1] that is not a matter that I need to determine in the context of this application.
[1] Section 66 of the Act provides –
(1) This section applies if –
(a)a court intends to make a protection order; and
(b)the respondent is before the court.
(2) On making the protection order (other than a consent order), the court must explain to the respondent, in language likely to be readily understood by the respondent –
(a)the purpose, terms and effect of the order; and
NoteExplaining the effect of the order includes explaining any consequence that will automatically flow from the making of the order. For example, if relevant, that any firearms licence of the respondent will automatically be cancelled or suspended.
(b)the consequences that may follow if the respondent fails to comply with the order; and
(c)how the order may be amended or revoked; and
(d)that the order may be enforced or amended anywhere in Australia or New Zealand.
(3) Before making a consent order, the court must explain to the protected person, in language likely to be readily understood by the person, the matters mentioned in subsection (2) (a) to (d).
(4) A failure of the court to comply with this section in relation to a protection order does not affect the validity of the order.
16․I conclude that an amendment which extends an order changes the terms of the order.
17․I further conclude that section 44A of the Act does not apply to an extension of the order. Consequently, a young person who was once protected by an order for a fixed period, and who has since become an adult, will not properly be included in the new form of the order.
18․Thus, whilst the original order continues to protect the child even though they turn 18 during the life of that order, when extension is sought, the now adult will be required to seek an order in their own right if that is their wish. This means that when the applicant is required to turn their mind to the order, at the same time they will be prompted to consider the position of the “child” but that they are not required, because of s 44A, to contemplate that during the life of the original order. This ruling, of course, would not prevent that “child” relying on the history of the earlier application and orders.
19․I am buoyed in my interpretation of section 44A of the Act by a reading of the Sexual, Family and Personal Violence Legislation Amendment Bill 2023 (ACT) revised explanatory statement, which in its overview stated:
The Bill protects family and children by several amendments made to streamline family violence proceedings. In particular, the Bill promotes this in the amendment to allow final family violence orders to continue operating after a protected person turns 18 years of age. Currently, the Family Violence Act 2016 is silent on whether an order continues once a protected person turns 18 years of age, leading to inconsistent interpretations by police and justice system actors as to whether the order continues and whether the protected person remains protected or must re apply for a new protection order. The amendment (what is now section 44A of the Family Violence Act 2016 (ACT)) aims to address this issue to keep the family unit and children safe.
20․The explanatory statement specifically addresses clause 10, which is the new section 44A, and says the following –
This clause inserts a new section into the Family Violence Act 2016 (ACT) to explicitly provide that a family violence order continues to be in force even when the protected person attains the age of 18. The section applies when the court makes a family violence order and a protected person listed on that order is a child when the order is made, that the life of the order is to continue even after the protected person turns 18 years old.
The amendment explicitly clarifies that turning 18 years old does not stop the enforceability of the order. The order will remain in force until the end stated time or it is withdrawn by the applicant or protected person, an extension is made by the court or new orders are made by the court.
21․I interpolate that the explanatory statement identifies an extension as a point in time at which the order will be affected, having regard to the protected person having turned 18.
22․This clause may impact a child who is a protected person under a family violence order where the respondent is the parent, while being subject to an order or parenting plan made under the Family Law Act 1975 (Cth) which contain exceptions to allow contact or communication between the child and their parent.
23․If the parenting order or plan expires when a child or protected person turns 18 and the family violence order extends beyond the child’s or protected person’s 18th birthday, the protected person may need to seek an amendment of the family violence order if they wish to have contact with the respondent parent after they turn 18 years old.
24․Having reviewed this explanatory statement, it is clear to me that section 44A of the Act operates to provide continued protection to a young person after they turn 18, during the life of the existing order. To interpret the section to extend to including the “child”, now an adult, in any future, i.e. extended, order has the potentially adverse outcome of reducing their agency in respect to what protection they may as adults wish to have.
25․Having arrived at this conclusion, I propose to consider the application currently before me as applying to OL only.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker. Associate to Chief Magistrate Walker (Maddy Holloway) Date: 2 April 2025 |
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