Si bhnf CC v KS bhnf Is - [2005] ACTSC 125

HUMAN RIGHTS ACT

SI bhnf CC v KS bhnf IS
[2005] ACTSC 125 (2 December 2005)

DOMESTIC VIOLENCE AND PROTECTION ORDERS – procedure for obtaining a protection order – whether order purported to be made by “unidentified magistrate” valid if order in fact made by a registrar – expiry date of interim orders

DOMESTIC VIOLENCE AND PROTECTION ORDERS – conflict between Domestic Violence and Protection Orders Act 2001 (ACT) s 49 and s 51A(2) – how to resolve that conflict using a legislative interpretation approach consistent with Human Rights

HUMAN RIGHTS – right to a fair hearing – whether Domestic Violence and Protection Orders Act 2001 (ACT) s 51A could displace that right to enable a final protection order to be made in a party’s absence – whether purported decision of the ACT Magistrates Court made ex parte can be subject to judicial review by or appeal to the ACT Supreme Court

HUMAN RIGHTS – freedom of movement – how to weight the right of one individual to enjoy freedom of movement against the right of third person to do same – Domestic Violence and Protection Orders Act 2001 (ACT) s 6(2); Human Rights Act 2004 (ACT) ss 8, 18

HUMAN RIGHTS – rights of children – rights of children when respondents in relation to protection orders

Domestic Violence and Protection Orders Act 2001 (ACT), ss 6, 8, 10, 12, 15, 16, 18, 19, 23, 23A, 26, 33, 34, 36, 38, 40, 41, 42, 48, 49, 51, 51A, 52, 53, 55, 58, 60, 78, 97, 106
Human Rights Act 2004 (ACT), ss 8, 11, 13, 15, 16, 18, 21, 28, 30, 37, 38
Domestic Violence and Protection Orders Regulation 2002 (ACT), ss 46, 48, 90, 91
Court of Petty Sessions Act 1930 (ACT)
Magistrates Court Act 1930 (ACT), ss 4, 5, 6, 7, 18, 23
Legislation Act 2001 (ACT), Pt 14.2, s 142
Magistrates Court Rules (ACT), Pt 4 r 28, Pt 4 r 10
Magistrates Court (Civil Jurisdiction) Rules 2004, ss 221, 222
Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), s 86
Great Charter (Magna Carta), Article 20

Human Rights Bill 2003

Constitution, ss 71, 122
Domestic Violence and Protection Orders Amendment Act 2005 (ACT)
Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 24, 48
Judiciary Act 1903 (Cth), s 39

Ryan v Registrar of Motor Vehicles (1997) 129 ACTR 4

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322
Spratt v Hermes (1965) 114 CLR 226
Kelly v Apps (2000) 98 FCR 101
Harris v Caladine (1991) 172 CLR 84

Nowak “UN Covenant on Civil and Political Rights (Kehl am Rhein: NP Engel 1993) at p 216ff in relation to freedom of movement and third parties

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 33 of 2005

Judge: Higgins CJ
Supreme Court of the ACT

Date: 2 December 2005

IN THE…

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.

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Details

Case: [2005] ACTSC 125
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Chief Justice Higgins allowed an appeal against a personal protection order made in the absence of the appellant, Si bhnf CC. The appeal raised questions as to the validity of the order, which was made by a Deputy Registrar, and the operation of s 51A of the Domestic Violence and Protection Orders Act 2001 (ACT). The court considered the appeal on the basis of the appellant’s contention that the order should be set aside for failure to give him an opportunity to be heard. The court also considered whether the order was consistent with the Human Rights Act 2004 (ACT). The court found that the order was invalid and set it aside. It found that the order was made by an officer of the ACT Executive and not by a magistrate. The court found that the order was not consistent with the Human Rights Act and was inconsistent with the proper separation of powers between the legislature and the judiciary. The court found that the order was inconsistent with the right to a fair hearing and the right of a child to be properly represented by an adult guardian. The court also found that the order was inconsistent with the right to a judicial determination according to the rules of natural justice. The court held that s 51A of the Domestic Violence and Protection Orders Act 2001 (ACT) empowered but did not mandate the making of a final order in the absence of a conforming objection. The court held that s 51A of the Act did not oust the other provisions of the Act relevant to the making of a final order. The court held that s 51A of the Act did not preclude a magistrate from declining to make a final order against a minor who had no litigation guardian. The court held that s 51A of the Act did not preclude a respondent to an order made ex parte from applying to set it aside. The court held that the order was invalid and set it aside.

Orders