T, R v L, KC - [2013] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
T, R v L, KC
[2013] SASC 51
Judgment of The Honourable Justice White
15 April 2013
FAMILY LAW AND CHILD WELFARE - THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION - INJUNCTIONS - GENERALLY
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION - RELEVANT CONSIDERATIONS
The appellant applied to the Magistrates Court for an order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Intervention Act) for the protection of his two children - proceedings regarding the appellant and respondent, and their two children, are currently afoot in the Family Court of Australia, and orders in relation to the protection of these children have already been made in the Federal Magistrates Court - a Magistrate dismissed the appellant's application on the ground that the Family Court was the proper forum in which the appellant should pursue the relief which he seeks - the appellant appeals against that dismissal.
Held (dismissing the appeal): the Magistrate was correct to conclude that the Family Court was the appropriate forum in which the appellant should pursue his concerns and it was appropriate for the Magistrate to dismiss the application on that basis (at [23]).
Children's Protection Act 1993 (SA); Family Law Act 1975 (Cth) s 68B, s 68R, Part VII Divs 6 and 9; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 3, s 5, s 6, s 8, s 10, s 12, s 16, s 18, ss 20-23; Magistrates Court Act 1991 (SA) s 40, referred to.

T, R v L, KC
[2013] SASC 51
Magistrates Appeal

WHITE J. The appellant applied to the Magistrates Court for an order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Intervention Act) for the protection of his two children. A Magistrate dismissed his application on the ground that the Family Court of Australia was the proper forum in which the appellant should pursue the relief which he seeks.
The appellant, who is self‑represented, appeals against that dismissal.[1]
[1] The right of appeal arises under s 40 of the Magistrates Court Act 1991 (SA).
Background
The appellant is the father of two children, CRR born in 2007 and RGR born in 2009 (together “the children”). The respondent is their mother. The appellant and the respondent are separated.
The respondent commenced proceedings in the Federal Magistrates Court (FMC) in relation to the children. In the course of those proceedings, orders have been made under the Family Law Act 1975 (Cth) concerning the custody, access and protection of the children.
On 28 April 2010, the FMC made orders prescribing, amongst other things, limited times within which the children were to live with the respondent; providing that they should live with the appellant at other times; and restraining the respondent from allowing the children to come into contact with two named uncles.
Subsequently, on 5 December 2011, the FMC made orders which had the effect of enlarging the periods during which the children were to live with their mother, but restraining her from bringing the children into any contact at all with a named person, GAT, with whom the respondent was then in a relationship. That order remains in force. As the injunction made on 28 April 2010 has not been revoked, it seems that the order made on 5 December 2011 amounted to the imposition of an additional restraint.
On 10 May 2012, the FMC transferred the proceedings to the Family Court of Australia for trial. That trial is now listed for hearing in a circuit commencing on 19 August 2013.
The appellant is concerned that the children are subject to forms of abuse while living with the respondent. He is also concerned that despite the terms of the order made by the FMC on 5 December 2011, the respondent is allowing the children to come into contact with GAT.
The Intervention Orders (Prevention of Abuse) Act 2009
The general purpose of the Intervention Act is the protection of persons from domestic and non‑domestic abuse, including to assist in preventing the exposure of children to the effects of domestic and non‑domestic abuse (s 5). The word “abuse” in the Intervention Act is defined in an expansive way so as to include physical, sexual, emotional, psychological and economic abuse (s 8(1)). The expression “act of abuse” means an act which results in, or is intended to result in, physical injury, emotional or psychological harm, an unreasonable and non‑consensual denial of financial, social or personal autonomy, or damage to property (s 8(2)).
The Intervention Act contemplates that intervention orders may be made for the protection of persons from abuse. Interim intervention orders may be made by a police officer (s 18) and more formal and enduring orders may be made by the Magistrates Court (ss 20-23). Intervention orders may take a variety of forms but mostly they will prohibit a defendant from engaging in specified forms of conduct (s 12). The Intervention Act contains a number of principles to which the Magistrates Court must have regard when considering making an intervention order (s 10), as well as requiring the Court to have regard to other matters.
In the present case, the appellant sought an intervention order to restrain the respondent and members of her family from engaging in a wide range of activities in relation to the children. In particular, the order would preclude the children from continuing to live with the respondent altogether and, indeed, from having any contact at all with her.
Was the Magistrate Correct?
The appellant supported his application in the Magistrates Court with two affidavits, each sworn by himself. Each set out the basis for his concerns about the protection of the children. The Magistrate did not hear any further evidence about the matters to which the appellant deposed, taking the view, as indicated earlier, that the Family Court was the appropriate forum in which the appellant should pursue his concerns. The Magistrate dismissed the application on this basis, and accordingly did not make any decision concerning the underlying merits of the appellant’s application.
I consider that the appellant has not demonstrated any error in the Magistrate’s decision. On the contrary, for the reasons which follow, I consider that the Magistrate’s decision is correct.
Section 6 of the Intervention Act provides:
There are grounds for issuing an intervention order against a person (the defendant) if—
(a)it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b) the issuing of the order is appropriate in the circumstances.
On its face, s 6 seems to require that the Magistrates Court be positively satisfied of the two matters to which it refers, which includes satisfaction that the issuing of the order is “appropriate” in the circumstances.
Section 10(1) and (2) are also important. In general terms s 10(1) requires the Court to have regard to the importance of preventing abuse and of preventing children from being exposed to the effects of abuse. However, s 10(2) also requires the Court to have regard to orders made under the Family Law Act 1975 (Cth) or under the Children’s Protection Act 1993 (SA):
(2)The following must also be taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:
(a) any relevant Family Law Act order or Children's Protection Act order of which the issuing authority has been informed;
(b) how the intervention order would be likely to affect contact (in accordance with a relevant Family Law Act order or Children's Protection Act order or otherwise) between—
(i)    the protected person or the defendant; and
(ii)     any child of, or in the care of, either of those persons;
(c)     any relevant agreement or order for the division of property under the Family Law Act 1975 of the Commonwealth, or the Domestic Partners Property Act 1996 or a corresponding law of another jurisdiction, of which the issuing authority has been informed;
(d)     if considering whether to prohibit the defendant from taking possession of property or to require the defendant to return property to a protected person or to allow a protected person to recover or have access to or make use of property—the income, assets and liabilities of the defendant and the protected person (to the extent that the issuing authority has been informed of those matters);
(e)     any other legal proceedings between the defendant and protected person of which the issuing authority has been informed.
Finally, it is to be noted that an order under the Intervention Act will be invalid to the extent of any inconsistency with a “Family Law Act order”[2] of a kind referred to in s 68R of the Family Law Act (although the Court is empowered to resolve that inconsistency by exercising its power under s 68R) (s 16(1)). The orders made by the FMC on 28 April 2010 and 5 December 2011 are Family Law Act orders as defined.
[2] A Family Law Act order is defined in s 3(1) of the Intervention Act to mean “an order, injunction, undertaking, plan, recognisance or other form of obligation imposed or agreement made under the Family Law Act 1975 of the Commonwealth.
The general principle of the comity of the courts, and the terms of ss 10(2) and 16, made it appropriate for the Magistrate to have regard to the Family Law Act orders which I summarised above.
The fact of the matter is that the Family Court of Australia is now seized of the dispute between the appellant and the respondent as to the custody and care of the children. The FMC has previously exercised the powers available under the Family Law Act 1975 (Cth) to make orders for the custody, access and protection of the children. In doing so, the FMC was, presumably, exercising its power to make “parenting orders” under Part VII, Division 6 of the Family Law Act 1975 (Cth) and to issue injunctions under Part VII, Division 9. Section 68B of the Family Law Act 1975 (Cth) specifically authorises the Family Court and the FMC to make such order or grant such injunction as it considers appropriate for the welfare of children. The Family Court has the power to vary an injunction order to take account of changing circumstances.
In other words, it is apparent that the jurisdiction of the FMC has already been invoked in relation to the protection of the children; that the FMC has in fact exercised that jurisdiction; and that the proceedings have now been referred to the Family Court. Those circumstances alone indicate that it is appropriate for the Family Court to retain control of the arrangements for the protection of the children until the completion of the trial, and for the FMC and the Family Court to supervise compliance with the orders made by the FMC. If the respondent is breaching the orders made on 28 April 2010 or 5 December 2011, it is for one or other of those Courts to deal with those contraventions. That is especially so given the appellant’s acknowledgement that he contemplates that the orders which he seeks under the Intervention Act would be in the nature of interim orders, pending the determination of the proceedings in the Family Court.
A number of other matters point to the same conclusion. The Courts should endeavour to avoid a multiplicity of proceedings dealing with the same subject matter. The appellant is represented in the Family Court proceedings, as are the children themselves. In this way, account will be taken of their interest as well as the interests of the present parties.
The powers of the Family Court under the Family Law Act 1975 (Cth) are no less extensive than those of the Magistrates Court under the Intervention Act. It has the power to review the existing orders in the event of changed circumstances and its orders are capable of enforcement in an effective way.
It would have been particularly inappropriate for the Magistrate to make orders contradicting or abrogating the orders of the FMC. As noted, that would have been the inevitable effect of the orders sought by the appellant.
For these reasons, the Magistrate was correct to conclude that the Family Court was the appropriate forum in which the appellant should pursue his concerns. That being so it was appropriate for the Magistrate to dismiss the application under the Intervention Act.
I emphasise that this decision concerns only the Magistrate’s decision concerning the inappropriateness of the proceedings in the Magistrates Court. Like the Magistrate, I have not considered the underlying issues, or the merits of the appellant’s concerns. It is open to the appellant, if he wishes, to pursue his current concerns about the protection of the children in the Family Court.
Conclusion
For the reasons given above, I dismiss the appeal.