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…

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 T, R v L, KC

Details

AGLC: T, R v L, KC [2013] SASC 51
Case: [2013] SASC 51
Decision Date: 15 April 2013

CaseChat Overview and Summary

The case of T, R v L, KC is an appeal by the appellant against the dismissal of his application 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. The appeal was dismissed by the Magistrate on the ground that the Family Court was the proper forum in which the appellant should pursue the relief he seeks. The appellant, who is self-represented, has appealed against that dismissal. The background to the case is that the appellant is the father of two children, CRR born in 2007 and RGR born in 2009, and 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. Orders have been made in the FMC concerning the custody, access and protection of the children. The appellant is concerned that the children are subject to forms of abuse while living with the respondent and 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, with whom the respondent is then in a relationship.

The legal issues in this case are whether the Magistrate was correct in concluding that the Family Court was the appropriate forum in which the appellant should pursue his concerns and whether it was appropriate for the Magistrate to dismiss the application on that basis. The court considered the relevant principles of the Intervention Act, which is designed to protect 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. The court also considered the relevant provisions of the Family Law Act 1975 (Cth), which provides for proceedings relating to care and protection of children. The court found that 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.

The appeal was dismissed by the court. The court held that 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. The court emphasised that this decision concerns only the Magistrate’s decision concerning the inappropriateness of the proceedings in the Magistrates Court and did not consider the underlying issues or the merits of the appellant’s concerns. The court also noted that it is open to the appellant, if he wishes, to pursue his current concerns about the protection of the children in the Family Court. The court concluded that the appeal should be dismissed.

Orders

Orders of the court

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]).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

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.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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