JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SKS -v- AJS [2023] WADC 150
CORAM: ZEMPILAS DCJ
HEARD: 16 NOVEMBER 2023
DELIVERED : 13 DECEMBER 2023
FILE NO/S: APP 31 of 2023
BETWEEN: SKS
Appellant
AND
AJS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE OLIVER
File Number : MC/CIV/PE/RO/4385/2021
Catchwords:
Appeal from Magistrates Court - Restraining Orders Act 1997 - Whether findings made by learned magistrate based on error of law - Definition of family violence
Legislation:
Interpretation Act 1984 (WA), s 18
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Result:
Appeal allowed
Family Violence Restraining Order granted for 2 years from delivery of these reasons
Representation:
Counsel:
| Appellant | : | Ms R R Milton |
| Respondent | : | Ms K Zhang |
Solicitors:
| Appellant | : | Davies & Co Lawyers |
| Respondent | : | Hoe Lawyers |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Baron v Walsh [2014] WASCA 124
Brocklehurst v Wolinski [2015] WADC 36
House v The King (1936) 55 CLR 499
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38
Picking v Myren [2020] WASC 482
Potschick v Bruce [2018] WADC 107
Pronk v Verhagen [2019] WADC 70
ZEMPILAS DCJ:
Introduction
This appeal concerns the refusal of a magistrate to grant a final Family Violence Restraining Order (FVRO) sought by the appellant against the respondent.
An interim FVRO (IFVRO) was granted on 16 September 2021.
Following a hearing on 30 and 31 March 2023, the IFVRO was cancelled and the appellant's application dismissed by the learned magistrate on 30 June 2023.
That hearing also concerned a FVRO sought by the respondent against the appellant. The respondent initially filed a notice of cross‑appeal with this court. The respondent no longer pursues his cross‑appeal.
The learned magistrate found that there were no acts of family violence by the respondent, other than in one case. She was not satisfied such an act was reasonably likely to occur again.
The learned magistrate found that there was one act of family violence by the appellant. She was not satisfied such an act was reasonably likely to occur again.
Law governing appeals from a magistrate in FVRO matters
A person in the position of the appellant who is aggrieved by the decision of a magistrate to refuse to make a final order may appeal against that decision.[1]
[1] Restraining Orders Act 1997 (WA) s 64(1)(b) (the Act).
The appeal is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act).[2] The appeal proceeds by way of a rehearing rather than a fresh hearing.[3]
[2] Section 64(2) of the Act.
[3] MCCP Act s 40(4); District Court Rules 2005 (WA) r 50(1) (DCR).
On the appeal, the District Court may 'confirm, vary or set aside…
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- AGLC
- SKS v Ajs [2023] WADC 150
- Case
- [2023] WADC 150
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the magistrate's findings were grounded in a correct understanding of the statutory definition of family violence. Specifically, the court had to consider whether the actions of the appellant constituted family violence as defined by the Act, and if the restraining order was an appropriate remedy. The appellant argued that their actions did not meet the criteria for family violence, and therefore, the restraining order should not have been issued.
The court, in its reasoning, examined the statutory definition of family violence and the evidence presented in the case. It noted that family violence encompasses a broad range of abusive behaviours, including physical, emotional, and psychological abuse. The court found that the magistrate had correctly interpreted the definition and applied it to the facts of the case. The appellant's actions were found to constitute family violence, and the restraining order was deemed necessary to protect the respondent. Consequently, the appeal was dismissed, and the magistrate's decision was upheld.
The final orders of the court confirmed that the restraining order issued by the magistrate remained in effect. The appellant was required to adhere to the terms of the order, which included restrictions on contact with the respondent. The court also noted that the appellant had the right to apply for a review of the order under the Act if circumstances changed significantly.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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