OX v ED

[2023] ACTMC 55

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

OX v ED

Citation: 

[2023] ACTMC 55

Hearing Date: 

7 December 2023

Decision Date: 

7 December 2023

Before:

Special Magistrate Christensen

Decision: 

(1)  Application to extend family violence order granted.

(2)  Application by the respondent to amend the order to remove child protected persons refused.

Catchwords: 

FAMILY VIOLENCE ORDER – amendment to extend order – application of TS v DT – the court must extend the order unless positively satisfied that an order is no longer necessary –unacceptable risk to child protected persons’ safety

Legislation Cited: 

Family Violence Act 2016 (ACT) ss 83, 84, 86

Cases Cited: 

TS v DT [2022] ACTSC 137

Parties: 

OX ( Applicant)

ED ( Respondent)

Representation: 

Counsel

A Allan ( Applicant)

B Rutzou ( Respondent)

Solicitors

HWL Ebsworth Lawyers ( Applicant)

Legal Aid ( Respondent)

File Number:

FVO 360 of 2021

SPECIAL MAGISTRATE CHRISTENSEN

REASONS FOR DECISION:

INTRODUCTION

1․By way of application filed 25 January 2023, OX seeks an extension of a family violence order issued on 14 July 2021. The order sought to be extended, per the most recent extension of the order of 03 August 2023, is an order that includes OX as a protected person along with four of the children that she shares with the respondent.

2․The respondent resists the application for extension in relation to all protected persons and by way of cross‑application filed 07 December 2023, the respondent seeks an amendment to the order such that there be removal of the child protected persons from the order.

LAW

3․The application for an extension is brought pursuant to s 86 of the Family Violence Act 2016 (ACT) (Family Violence Act).

4․The application for amendment is brought pursuant to s 83 of the Family Violence Act.

5․The differing applications necessitate different considerations. The applicant for the extension submitted that the determination in respect to the extension application, in essence, determines the application for the amendment. I accept that this is the appropriate approach for the purposes of this matter.

6․The parties helpfully provided the decision of Kennett J in TS v DT [2022] ACTSC 137 (TS v DT) as to the interaction between ss 83 and 86 of the Family Violence Act. It is clear from that authority that the sections contemplate different considerations and further that there is nothing to prevent an application for extension being combined with or at least heard at the same time as an application to amend: see TS v DT at [26].

PRELIMINARY MATTER: S 83(4)

7․A preliminary matter I have found necessary to consider is that s 83(4) curiously provides that an application for an amendment must be made before the original order ends. This suggests that an amendment application cannot be brought in respect to an extended order. It also suggests that the legislature contemplated an application for an extension under s 86, a particular “class of case” (as the section was described as being concerned with by Kennett J in TS v DT at [23]). It is concerned only with the terms of the order sought to be extended, and not otherwise.

8․No submissions were made by either party with respect to the effect of this subsection where the application brought here, on 07 December 2023, has been made well after the end of the period of what would seem, on its face, to be the original order. The phrase “original order” is not defined for the purposes of this section.  However, it is defined in respect to other sections in the Family Violence Act, including s 86, as relating to the “final order”. The definition of “final order” in the Family Violence Act providing this means a protection order that is not an interim order or after-hours order and includes an order amending a final order.

9․This particular subsection was not the subject of consideration in TS v DT, in circumstances where the relevant order there was seemingly one that was a temporary amendment to the final order. TS v DT does make plain that the court can consider both forms of application.

10․The time available has not enabled me to form a settled view as to the implications of sub-s (4) on the amendment application. My preliminary view when reading the Family Violence Act as a whole is that s 83 does contemplate an amendment application for an extended final order. That is, one that has been amended per s 86, which is the form of order currently in place here. That is, the application is correctly brought. However, I conclude that it is unnecessary for me to resolve this issue to finalisation given the decision I otherwise make in this matter. It is a matter that would benefit from legislative clarification.

SECTION 86 APPLICATION

11․The starting point in this matter is then the application for an extension pursuant to s 86. With reference to TS v DT, the question for the court is “whether the order is no longer necessary to protect the protected person from family violence by the respondent”. As Kennett J provided in TS v DT, that decision yields a “yes” or a “no” answer.

12․It was submitted by the applicant that for the purposes of s 86, the focus of the court is on the order itself, that is the original order, and not a consideration of the individual protected persons the subject of the order.

13․I conclude that this is the correct approach applying TS v DT. As his Honour said at [24]-

An application to extend an order is not, without more, an invitation to reconsider and re-draft particular provisions of that order.

14․In TS v DT, at [23], his Honour further provides that the court –

“must” extend a final order when asked to do so, “unless” it is satisfied that an order is no longer necessary… [t]he only discretion that can be found in s 86(1) is as to the period of the extension.

15․I have given consideration to the contrary position, that is, that the court can, or should, consider the extension application with reference to the individual protected persons.  I have concluded that even if this is the better or proper approach that it is not ultimately of consequence here given the overall decisions that I make.

Evidence

16․As to the evidence in respect to the court's determination, his Honour provides in TS v DT at [25] that the section requires the court –

to be positively “satisfied” that a protection order is no longer necessary before it can refuse to extend the order… At least in a practical sense, therefore, it is up to the respondent to the order to show that it is no longer necessary.

17․The evidence here was to the effect that the last occasion of family violence directed towards the applicant was in September 2021, with this amounting to a contravention of the order. The last occasion of family violence involving the child protected persons was, as I understand it on the evidence, in November 2020. The relationship between the parties was one that was longstanding and one that will, at least in terms of there being potential for future interactions, be one that will continue due to their roles as parents to the shared children.

18․To the extent that it is necessary for me to draw any conclusion as to the family violence behaviours exhibited during the relationship and whether they are established, I observe that it was a relationship characterised by at least physical violence, controlling behaviour and that it extended to behaviour in which children heard, witnessed or otherwise were exposed to family violence or the effects of such behaviour. 

19․The applicant expressed in her evidence her concern that the order not being extended could result in the children being disrupted in their current positive environment.

20․The evidence in respect to the applicant included that she is currently in the Alexander Maconochie Centre and there is a prospect that she may be for some years to come. To my mind though, that is not an answer to the need for whether protection continues to be necessary. The terms of the order themselves extend to a prohibition on causing someone else to contact the protected person or persons except as permitted by the order. The applicant's status as a remanded detainee does not secure her safety in the absence of an order.

21․The evidence before the court also included the positive progress that the respondent is making with the treatment that he is receiving under a detention order, which was made following convictions in relation to some of the acts of family violence. It is apparent that the respondent is engaging positively with the treatment, and as said in evidence, he is progressing really well.

22․However, the evidence from the respondent’s primary nurse also included, as I understood it, that she would definitely have concerns about the respondent's ability to keep himself safe and to not cause harm to others if he was in the community without the treatment supports currently available to him.

Consideration

23․It can be readily concluded that the respondent, while making positive steps, does still have some way to address his physical, mental health and cultural traumas. He remains not only a risk to himself, but also to other community members, having regard to his criminal history, which was part of the evidence in the hearing, by implication the risk relates also to family members.

24․I conclude that I cannot be, and am not, satisfied that the protection order is no longer necessary to protect the protected persons from family violence by the respondent. The application for an extension will be granted as sought. That is, on the current terms until 14 July 2025.

SECTION 83 APPLICATION

25․Turning then to the application for an amendment pursuant to s 83 of the Family Violence Act and the differing considerations that apply to this section, the court must be satisfied that –

83 Amendment of protections orders

(1)The Magistrates Court may amend a protection order only if satisfied that–

(a)amending the order will not adversely affect the safety of the protected persons or a child of the protected person, and

(b)the order as amended could be made on application for a protection order; and

(c)if the amendment would reduce the protection of a child who is 15 years old or younger – the child is no longer in need of the greater protection provided by the unamended protection order.

26․The issues for consideration here are those pursuant to sub-s (1)(a) and (c).  In TS v DT, Kennett J provided at [22] that the power to amend in s 83 is discretionary, and at [24] that the other criteria that apply to decisions about the making of a family violence order as provided by the Family Violence Act may have a role to play in the decision.

Evidence

27․As to s 83(1)(a), the evidence included that the previous contraventions of the order did not involve the children and it was emphasised on behalf of the respondent that there has not been a concern in relation the children since November 2020. Further, it was emphasised that there has been complete compliance by the respondent with the terms of the family law orders that have been in place since 2014.

28․The applicant's evidence was to the effect that the last occasion involving the children – that is, in November 2020 – was one that occurred without permission, and I accept that the reliability of this evidence has to be considered in the context of what is contained in the Australian Federal Police’s Police Realtime Online Management Information System records.

Consideration

29․However, of more significance to my mind is the evidence of the respondent's current and future wellbeing. This evidence is such that there is an unacceptable risk that removing the children from the order would adversely affect their safety. While the respondent is making positive progress in his treatment, it remains that he has a long journey ahead before there can be any level of confidence that he has rehabilitated from being a recidivist family violence offender.

30․The court cannot, and does not conclude, that amending the order by removing the children will not adversely affect their safety. The family violence order provides a level of protection, described in submissions as consequences or accountability with reference to s 6 in the objects of the Family ViolenceAct, that is not available solely by the family law orders.

31․In addition, the current terms of the order are the least restrictive conditions, this being a consideration pursuant to s 37, with contact with the children not being entirely prohibited. Further, having regard to the s 14 criteria, the children's welfare is relevant, with the applicant emphasising the importance of not disrupting the children and no hardship has been submitted as existing as a result of the order currently including the children.

32․While unnecessary to determine given the conclusion as to sub-s (1)(a), for the same reasons I cannot and do not conclude that the children under the age of 15 years are no longer in need of the greater protection provided by the unamended protection order.

ORDERS

33․The orders of the court are as follows –

(a)The application by OX for an extension of the family violence order, issued on 14 July 2021, is granted on current terms until 14 July 2025.

(b)The application by ED for an amendment of the family violence order, issued on 14 July 2021, is refused.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of a revision from a transcript of the oral reason for decision of her Honour Special Magistrate Christensen delivered in court.

Associate: Susie Kim

Date: 22 May 2024