SX v NT - [2020] ACTMC 20

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(Self-Government) Act 1988 (Cth) s 22 Commonwealth Constitution Domestic Violence and Protection Orders Act 2008 (ACT) (repealed) Family Violence Act 2016 (ACT) ss 6, 7, 16, 21, 34, 38, 43 Legislation Act 2001 (ACT) ss 122, 138, 139 Magistrates Court Act 1930 (ACT) ss 262, 256 Personal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…

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 SX v NT

Details

AGLC: SX v NT [2020] ACTMC 20
Case: [2020] ACTMC 20
Decision Date: 21 September 2020

CaseChat Overview and Summary

SX and NT were before the Magistrates Court of the Australian Capital Territory in a dispute concerning the jurisdiction to make a family violence order under the Family Violence Act 2016 (ACT). Both parties claimed to have no ongoing connection to the Australian Capital Territory, raising questions about the court's ability to issue such an order. The dispute arose out of a series of incidents of family violence between the parties, which occurred outside the ACT, and involved allegations of assault, threats, and other forms of abuse.

The central legal issue before the court was whether it had the jurisdiction to make a family violence order under the Family Violence Act 2016 (ACT) when both parties had no ongoing connection to the Australian Capital Territory. The court was required to consider the scope of its extra-territorial legislative power and whether it could extend to making such orders in circumstances where the parties had no ongoing connection to the ACT. Additionally, the court needed to assess whether the circumstances of the case warranted the exercise of the court's jurisdiction.

In determining the jurisdiction to make the order, the court considered the extra-territorial legislative power of the ACT and the nature of the alleged family violence. The court found that the Family Violence Act 2016 (ACT) provided for the making of family violence orders in circumstances where the court considered it appropriate to do so, even if the parties had no ongoing connection to the ACT. The court noted that the Act was designed to protect victims of family violence and that its extra-territorial reach was intended to ensure that victims could access the protections of the Act regardless of where they were located. The court also considered the severity and frequency of the alleged family violence and concluded that it was appropriate for the court to exercise its jurisdiction in this case. The court found that it had the jurisdiction to make an order under the Family Violence Act 2016 (ACT) and that it was appropriate for the court to exercise that jurisdiction. The court made a family violence order, prohibiting the respondent from engaging in further family violence against the applicant.

The final orders made by the court included a family violence order prohibiting the respondent from engaging in further family violence against the applicant, as well as other related orders to ensure the safety and protection of the applicant. The court's decision affirmed the extra-territorial reach of the Family Violence Act 2016 (ACT) and the court's ability to make orders in circumstances where the parties have no ongoing connection to the ACT, provided that it is appropriate to do so.

Orders

Orders of the court

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.

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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