SX v NT
[2020] ACTMC 20
•21 September 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | SX v NT |
Citation: | [2020] ACTMC 20 |
Hearing Date: | 16 July 2020 |
Last submissions: | 14 September 2020 |
DecisionDate: | 21 September 2020 |
Before: | Magistrate Theakston |
Decision: | The Court has jurisdiction to make an order under the Family Violence Act 2016 (ACT) and it is appropriate for the Court to exercise that jurisdiction. |
Catchwords: | FAMILY VIOLENCE ORDERS – jurisdiction to make a family violence order under the Family Violence Act 2016 (ACT) – where both parties have no ongoing connection to the Australian Capital Territory – Extra-territorial legislative power |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth) s 22 Commonwealth Constitution Domestic Violence and Protection Orders Act 2008 (ACT) (repealed) Family Violence Act 2016 (ACT) ss 6, 7, 16, 21, 34, 38, 43 Legislation Act 2001 (ACT) ss 122, 138, 139 Magistrates Court Act 1930 (ACT) ss 262, 256 Personal Violence Act 2016 (ACT) Service and Execution of Process Act 1992 (Cth) |
Cases Cited: | Haureliuk v Furler [2012] ACTCA 11 Jumbunna Coal Mine NL v Victoria Coal Miners Association [1908] HCA 95; (1908) 6 CLR 309 Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507 Port MacDonnell Professional Fishermen’s Assn Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340 Private R v Cowen [2020] HCA 31 R v Johnson [2018] ACTSC 242 Tunks v Onorato [2012] ACTSC 148 Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 |
Parties: | SX (Applicant) NT (Respondent) |
Representation: | Counsel Mr Hugh Jorgensen (Applicant) Mr Gary Hill (Respondent) |
| Solicitors Legal Aid ACT (Applicant) Mr Gary Hill (Respondent) | |
File Number: | FVO 85 of 2020 |
MAGISTRATE THEAKSTON:
Introduction
From time to time, the ACT Magistrates Court is requested to make a family violence order when one or both parties resides outside of the Territory. This is such a case. Here, both parties reside in New South Wales and have no ongoing connection with the Territory. Neither party works nor anticipates spending significant time in the Territory.
When those circumstances became apparent, I enquired of the parties on what basis did the Court have jurisdiction to make the orders requested? The parties expressed differing views and I allowed them the opportunity to prepare written submissions on the issue. Further submissions were sought due to the complexity of the issue. I am now of the view that the Court does have jurisdiction to make final family violence orders. These are my reasons.
Background
The parties had been in an intimate relationship that ended a number of years ago. Family law orders exist in relation to their children. Those orders provide the applicant mother with sole parental responsibility. They provide for the children to spend time with the respondent father every other weekend and part of the school holidays.
In January 2020, the applicant applied to this Court for family violence orders against the respondent. The children were included in that application as affected persons. At the first appearance, an interim order was made by an authorised deputy registrar sitting as the Court.
The applicant sought orders that included prohibiting the respondent from contacting or approaching her or the children and prohibiting him from attending specified locations in and outside of the Territory.
The grounds for the application included historic violence, failures by the respondent to comply with the family law orders, an email threat by the respondent and the applicant’s concern that the respondent would attend her home. Besides the concern that the respondent would attend the applicant’s home, it is not clear whether any of the other alleged events or risks occurred or existed within the Territory.
The applicant and the respondent habitually reside in Sydney and on the NSW South Coast respectively. Both locations are obviously outside of and a considerable distance from the Territory. However, during the period November 2019 to early March 2020, the applicant and her children resided in the Territory. It was during that period that the applicant made her initial application to this Court. Neither party now has any intention to return to, move to or spend any noteworthy time in the Territory.
There are two questions to resolve. The first is whether or not in these circumstances the Court has jurisdiction to make family violence orders? The second is whether the Court should exercise that jurisdiction?
Does the Court have jurisdiction?
The ACT Magistrates Court is a creature of statute and may only exercise the powers conferred on it by legislation: Tunks v Onorato [2012] ACTSC 148 at [130]. It must find a statutory power, conferred expressly or by necessary implication, in order to exercise a jurisdiction. Accordingly, the Court must look to the legislation in order to determine the question of jurisdiction.
I will address this issue by considering the service of initiating process, the construction of the Family Violence Act 2016 (ACT) and the power of the Legislative Assembly to enact legislation with an extra-territorially effect.
Service of initiating process
It was initially submitted that the question of jurisdiction could be determined by reference to the Magistrates Court Act 1930, s 262, which provides a test for jurisdiction in personal actions at law where a cause of action arose or the defendant was resident outside of the Territory. However, s 262 is expressly disapplied for proceedings under the Family Violence Act: see s 256.
Section 262 does, however, echo the common law principle that the location of service and the ability to lawfully serve a defendant may determine jurisdiction. In Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 at 323, Dixon CJ, Williams and Webb JJ concluded that ‘in an action in personam, the rules as to the legal service of a writ define the limits of the court’s jurisdiction’. If that common law principle applies here, it is answered by the respondent’s earlier submission to the jurisdiction and Part 2 of the Service and Execution of Process Act 1992 (Cth), which provide for the lawful interstate service of initiating process.
Construction of the Act
At common law, legislation is presumed to not have an extra-territorial effect: Jumbunna Coal Mine NL v Victoria Coal Miners Association [1908] HCA 95; (1908) 6 CLR 309 at 363. Murrell CJ in R v Johnson [2018] ACTSC 242 at [51] noted that this principle ‘does not impose a physical or geographical restriction on [a legislator] in the exercise of that power, but confirms that, in the absence of express provision, legislation should not be taken to assert extraterritorial effect.’ She also explained at [52] that the purpose of the Legislation Act 2001, s 122 ‘is to give statutory recognition to the presumption against legislation asserting extraterritorial effect’.
Section 122 provides relevantly:
Application to Territory
(1) In an Act or statutory instrument—
(a)a reference to an entity or position by name or description is a reference to the entity or position of that name or description in or for the Territory; and
(b)a reference to a place, jurisdiction or anything else by name or description is a reference to the place, jurisdiction or thing of that name or description in or for the Territory.
...
In certain circumstances, s 122 effectively inserts the words ‘in the Territory’ in a provision when the provision refers to an individual.
The Family Violence Act enables the ACT Magistrates Court to make a range of orders that impose boundaries with respect to the conduct of a respondent for the purpose of reducing the risk of family violence. This occurs in the context of similar orders being available in other Australian and New Zealand jurisdictions.
The Act also gives local effect to the national recognition scheme for domestic violence orders. That scheme envisages the automatic recognition of orders made in one jurisdiction by other appropriate jurisdictions. That scheme is in contrast to the arrangement provided earlier in the Domestic Violence and Protection Orders Act 2008 (ACT) (repealed) that required the formal registration of an interstate order before recognition within the Territory.
The objects of the Family Violence Act and how those objects are to be achieved are provided by ss 6 and 7:
6 Objects of Act
The objects of this Act include-
(a) to prevent and reduce family violence; and
(b) to ensure the safety and protection of people, including children who fear, experience or witness family violence; and
(c) to encourage perpetrators of family violence to be accountable for their conduct.
7 How objects are to be achieved
This Act aims to achieve its objects by –
(a) giving the courts power to make family violence orders to protect people from family violence, and
(b) create offences to enforce family violence orders; and
(c) ensuring that access to the courts is as simple, quick and inexpensive as is consistent with justice; and
(d) by recognising family violence orders made elsewhere in Australia and New Zealand.
Who may apply for an order
Section 16 of the Family Violence Act provides who may apply for an order and reads relevantly (excluding examples and notes):
Who may apply for protection order?
(1) An affected person may apply to the Magistrates Court for a protection order.
(2) The following people may apply to the Magistrates court for a protection order for an affected person:
(a)A police officer;
(b)A litigation guardian for the person or any other person with a right to apply for the person.
The application of the Legislation Act’s s 122 embellishment to this provision, would impose a geographic restriction on who may apply for a family violence order. The references to ‘affected person’, ‘police officer’ and ‘litigation guardian’ would be references to the same but only while they are within the Territory. That is, the applicant would need to be in the Territory when applying for the order.
However, once the text of the provision has been considered it is also necessary to consider the context and, in particular, the mischief the Act is intended to cure: see the Legislation Act 2001, ss 138 and 139 and Haureliuk v Furler [2012] ACTCA 11 at [19] – [30]. In this case there is no need to go to any extrinsic materials to ascertain that intent, as the objects of the Act and how those objects are to be achieved are included within the Act itself. Here it is clear that the Act is intended to address the risk of family violence by making available enforceable family violence orders, while ensuring access to those orders in a simple, quick and inexpensive way. The Act anticipates the application of interstate orders within the Territory, and local orders beyond the Territory. The practice of comity between the various Australian and New Zealand jurisdictions is maintained by the national recognition scheme, which includes the capacity to amend interstate orders.
Canberra is essentially a border town minutes in most directions from NSW. Family violence often involves the management of risk and it would be unremarkable for an applicant to find him or herself temporarily out of the Territory while simultaneously seeking the protection of a family violence order in the Territory. It would also be unremarkable for an initial application to be made by a duty lawyer on behalf of an applicant who is available only by telephone. In such circumstances, it would be manifestly absurd to adopt a literal application that the s 122 embellishments applied and require the applicant to be physically within the Territory at the time of the application. The better construction is that the Assembly intended the provision to be read without the s 122 embellishments, as this would best achieve the purpose of the Act. To do otherwise would defeat a number of key features of the Act.
For the above reasons, and while accepting it is not for the Court to rewrite legislation, and that I should be very slow to depart from the literal meaning of the Act, I am of the view that an applicant for a family violence order need not be physically present in the Territory when making that application.
Grounds for an application
The grounds for making an order are provided at ss 21 and 34 and read relevantly (excluding notes):
21 Interim orders – grounds for making
A court may make an interim order if satisfied that the order is necessary to do either or both of the following until the application for the final order is decided:
(a) ensure the safety of an affected person from family violence;
(b) prevent substantial damage to an affected person’s property.
34 Final orders – grounds for making
(1) A court may, on application, make a final order if satisfied that-
(a)the affected person has reasonable grounds to fear family violence by the respondent; or
(b)the respondent has used family violence against the affected person.
…
These provisions also refer to the affected person, as well as the respondent. Once again the application of the Legislation Act, s 122 embellishments could lead to a conclusion that those terms are augmented by requiring the affected person and respondent to be within the Territory at the relevant time.
For reasons similar to those above, I am of the view that this is not the case. It would be grossly counterproductive to the objects of the Act to employ those requirements anywhere in Australia, let alone here in Canberra – so very close to NSW. Other than in the most recent of times (due to the COVID-19 emergency), people in Australia enjoy the freedom to move across State and Territory borders without obstruction. People live in the Territory and work in NSW. People live in NSW and work or attend school here in the Territory. There is constant and frequent movement of people across the ACT – NSW border. It is readily conceivable that an applicant may need to rely upon violence that occurred minutes away in NSW as the basis for an order protecting him or her from violence here in the Territory. It is also conceivable that an applicant may need to rely upon a reasonable fear of violence more likely to manifest in nearby NSW, while simultaneously seeking protection from similar violence here in the Territory.
Conditions available under an order
Section 38 of the Act provides that a Family Violence Order is to include conditions that the Court considers necessary having regard to the paramount principle of protecting safety and the secondary principle parsimony. That provision goes on to provide a non-exhaustive list of available conditions. The non-exhaustive nature of that list means that the application of the s 122 embellishments to the conditions described within that list, would not confine the ambit of any other conditions the Court may impose.
That then leaves the consideration of any residual common law presumption that the Legislative Assembly did not intend the orders to have extra-territorial effect. The Act’s ratification of the national recognition scheme and the express extra-territorial application of the offence at s 43 of the Act for breaching a Territory order swiftly resolves that issue. It is an unavoidable conclusion that orders under the Act are intended to operate beyond the Territory. I also note, that in most cases, the enforcement of any Territory family violence order breached within another Australian or New Zealand jurisdiction, would be under that other jurisdiction’s law, while recognising the operation of the Territory order.
Extra-territorial legislative power
The Australian Capital Territory (Self-Government) Act 1988 (Cth), established the Territory as a body politic. It also established the various components of government, including the Legislative Assembly. At s 22, the Act provides that the Legislative Assembly ‘has power to make laws for the peace, order and good government of the Territory’. That formula is not unique and is used for example in the Australia Act 1986 (Cth), s 2 with respects to Australian States.
The High Court in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340 acknowledged that formula as the accepted touchstone when determining the validity of extra-territorial State legislation that was otherwise within power. At 372 the Court explained:
It is now established that what is essential to the extra-territorial operation of a State law is a connexion between the enacting State and the extra-territorial persons, things and events on which the law operates.
The Court went on to adopt the comments by Gibbs J in Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507 at 518:
a relevant connexion between the persons or circumstances on which the legislation operates and the State … should be liberally applied, and that legislation should be held valid if there is any real connection — even a remote or general connexion — between the subject matter of the legislation and the State.
The enactment of the ACT (Self-Government) Act postdates this jurisprudence, and I see no reason why the above test should not also apply to Territory legislation with a potential extra-territorial effect. Further, this limit on the legislative power of the Legislative Assembly would translate to a jurisdictional limitation on the Court, in a way similar to how the limit on the defence power under the Commonwealth Constitution has been held at various times to translates to a jurisdictional limit on Australian Defence Force disciplinary tribunals: See for example Private R v Cowen [2020] HCA 31.
For the reasons above, I am of the view that the construction of the Family Violence Act does not restrict the Court making an order when the parties are outside of the Territory, when the relevant history between the parties occurred outside of the Territory or when the orders may have an effect beyond the Territory.
However, the above limitation on the extra-territorial operation of a Territory law, must limit the meaning of the Act and therefore limit when the Court can make an order. Adjusting the relevant test for present purposes, the question to be asked is:
Is there a real connection, even a remote or general connection, between a party or the risk of family violence on the one hand and the Territory on the other?
If the answer is in the affirmative the Court has jurisdiction to make the order.
In the instant case, the applicant was living in the Territory at the time of her initial application and feared violence occurring within the Territory. Accordingly, there is a real connection between her, her children and the risk of violence on the one hand and the Territory on the other. Considering the liberal way in which the test is to be applied, the objectives of the Act and the maintenance of comity between the jurisdictions evidence by the national recognition scheme, I am of the view that the connection remains, even if circumstances changed subsequent to the filing of the initial application. Accordingly, I find that the Court has jurisdiction to make the orders sought.
Should the Court exercise jurisdiction?
The question about whether a Court should decline to exercise jurisdiction because there is an alternative forum was addressed in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538. The majority observed at [30] that the following principles applied:
First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of the process and the rationale for the exercise of the power to stay is the avoidance of injustice between the parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised ‘with great care’ or ‘extreme caution’.
At [31] and [51], the majority concluded that the test would be met if ‘having regard to the circumstance of the particular case and the availability of the foreign tribunal, the local court is a clearly inappropriate forum for the determination of the dispute’ (emphasis added). The majority reject the tests described as the ‘natural forum’ or ‘more appropriate forum’.
In the instant case the respondent argued that it would be more convenient for the applicant to travel to a Sydney court, the separate family law proceedings were well advanced with a final hearing listed in August and neither party had an ongoing connection with the Territory. There was nothing identified here that could support a conclusion that proceedings before this court were oppressive, vexatious or an abuse of process, such as to lead to an injustice to the respondent or anyone else.
In those circumstances the respondent has not discharged the requisite onus.
Conclusion
In conclusion, I am of the view that the ACT Magistrates Court has jurisdiction to make an order under the Family Violence Act, notwithstanding the parties do not reside in the Territory and have no ongoing connection with the Territory. I am also of the view that it is appropriate for the Court to exercise that jurisdiction.
Finally, I note that elements of the above discussion may or may not apply to similar questions about the corresponding Personal Violence Act 2016 (ACT). I have not addressed their application in this decision.
| I certify that the preceding forty-two [42] paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Theakston Associate: Neerja Thirunavukarasu Date: 21 September 2020 |
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