SKS v Ajs - [2023] WADC 150

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
DB v RB [2020] WADC 93
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
Robinson Helicopter Company Inc v McDermott [2016] HCA 22
Shilkin v Taylor [2011] WASCA 255

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…

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 SKS v Ajs

Details

AGLC: SKS v Ajs [2023] WADC 150
Case: [2023] WADC 150
Decision Date: 13 DECEMBER 2023

CaseChat Overview and Summary

In the matter of SKS v Ajs, the appeal arose from a decision made by a magistrate under the Restraining Orders Act 1997. The appellant, SKS, contested the findings of the magistrate who had issued a restraining order against them, arguing that the order was based on an erroneous interpretation of the definition of family violence. The respondent, Ajs, sought to uphold the magistrate's decision, asserting that the order was justified and necessary for their protection.

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