TS v DT
[2025] ACTCA 6
•21 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | TS v DT |
Citation: | [2025] ACTCA 6 |
Hearing Date: | 10 May 2023 |
Decision Date: | 21 February 2025 |
Before: | McCallum CJ, Baker and Rangiah JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – FAMILY VIOLENCE – Appeal of extension to family violence order – whether the primary judge was correct to find the magistrate erred in finding factors outside of s 86 of the Family Violence Act 2016 (ACT) could be taken into account – whether the primary judge was required to undertake a review stricto sensu |
Legislation Cited: | Family Law Act 1975 (Cth) s 114Q Family Violence Act 2016 (ACT) ss 6, 7, 14, 34, 36, 37, 39, 82, 82A, 82B, 83, 84, 85, 86, 93, 95, 96 Magistrates Court Act 1930 (ACT) ss 208, 214, 218 Supreme Court Act 1933 (ACT) s 37E |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49; 384 FLR 119 Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Australian Capital Territory v Crowley [2012] ACTCA 52; 273 FLR 370 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 Eastman v The Queen [2000] HCA 29; 203 CLR 1 Stark (a pseudonym) v Hillam (a pseudonym) (No 2) [2022] ACTSC 272 TS v DT [2019] ACTSC 295 TS v DT [2020] ACTCA 43 TS v DT [2022] ACTSC 137; 369 FLR 228 |
Parties: | TS (Appellant) DT (Respondent) |
Representation: | Counsel Self-represented ( Appellant) B Harders ( Respondent) |
| Solicitors Self-represented ( Appellant) Legal Aid ACT ( Respondent) | |
File Number: | AC 37 of 2022 |
Decision Under Appeal: | Court: ACT Supreme Court Before: Kennett J Date of Decision: 10 June 2022 Case Title: TS v DT Citation: [2022] ACTSC 137 |
THE COURT:
Introduction
1․The names of the parties to this appeal have been anonymised to give effect to the prohibition in s 114Q of the Family Law Act 1975 (Cth) against the identification of parties to proceedings under that Act.
2․The appellant, TS, appeals from an order of the Supreme Court dismissing an appeal from an order of the Magistrates Court extending a final protection order made against him under the Family Violence Act 2016 (ACT). The respondent, DT, is the protected person under the order. TS and DT were married. They separated following an incident of domestic violence in 2007 in which TS assaulted DT and their teenage son during a dispute over the son’s attitude to tertiary education. During the incident, TS was brandishing a knife. As a result of those events, TS was convicted of two charges of common assault.
3․In 2008 or 2009, a house jointly purchased by TS and DT some time earlier became vacant. Having lived separately for some time, they agreed that they would both move into that house but remain separated under the one roof. That arrangement continued until 2017 when, following a further incident of domestic violence in which TS again produced a knife, on this occasion causing damage to an item of furniture, DT applied for a protection order against TS under the Family Violence Act. A special interim family violence order was granted against him.
4․The order prohibited TS from being at the family home. An order of that kind is referred to in the Family Violence Act as “an exclusion condition”. The discretion whether to include an exclusion condition in a family violence order is constrained by s 39 of the Act, considered below. TS moved out of the family home (as required by the exclusion condition) and stopped making mortgage payments from that date.
5․On 14 March 2019, Chief Magistrate Walker made a final protection order against TS under s 34 of the Family Violence Act. The final order retained the exclusion condition with an exception permitting TS to attend the premises on one occasion in the company of a member of the Australian Federal Police for the purpose of collecting and returning personal belongings.
6․TS unsuccessfully appealed to the Supreme Court from the Chief Magistrate’s order: TS v DT [2019] ACTSC 295. A further appeal to this Court from the decision of the Supreme Court was also unsuccessful: TS v DT [2020] ACTCA 43. The Chief Magistrate’s final order accordingly stood as a final protection order throughout and following the determination of those appeal proceedings.
7․The final protection order was due to expire on 13 March 2021. On 27 January 2021, DT made an application to extend the order for a further two years. That application was determined on 10 September 2021 by a magistrate (Magistrate Theakston). His Honour extended the order but only for 12 months from that date, rather than two years from the original expiration date, as sought by DT. The extended protection order was accordingly due to expire on 9 September 2022.
8․In the meantime, TS appealed to the Supreme Court from the magistrate’s order, again unsuccessfully. That appeal was determined by the appeal judge (Kennett J) on 10 June 2022: TS v DT [2022] ACTSC 137; 369 FLR 228. This appeal is from the decision of the appeal judge. As appears from the foregoing, this is TS’s fourth appeal concerning the final protection order.
9․By the time the appeal was heard, the order of the magistrate would have expired, but for a further extension granted by another magistrate which is the subject of a separate appeal to the Supreme Court.
Power to amend protection orders
10․Before explaining the magistrate’s decision and the appeal judge’s determination of the appeal against that decision, it is helpful to explain the powers of the Magistrates Court to amend protection orders. That topic is addressed in Part 5 of the Family Violence Act. The term “protection order” is defined in the Dictionary to the Act to mean an interim order or a final order. Part 5 includes provisions concerning “protection orders” generally, as well as provisions specifically directed to final protection orders.
11․The following provisions for amendment are made:
(a)section 82 confers a discretionary power (“the court may”) to amend a protection order on application by the protected person or applicant or the respondent;
(b)where an application for amendment is made, s 82A imposes a mandatory requirement, subject to exceptions, to hold a preliminary conference (“the court must … unless the court is satisfied” of certain matters). The object of the preliminary conference is “to find out whether the proceeding for the amendment may be settled by consent” and to ensure readiness for an early hearing;
(c)section 82B confers a discretionary power (“the court may”) to make a provisional amendment in an urgent case pending the determination of an amendment application;
(d)section 83 governs the exercise of the discretionary power conferred by s 82, providing that the court may amend a protection order “only if satisfied” of certain matters. Subsection 83(3) provides that an application for an amendment must state the grounds for the application and offers the following examples of grounds on which an order might be amended:
(i) the protected person has had a change in circumstances since the original order was made;
(ii) the original order restricts the respondent’s rights unnecessarily;
(e)section 84 confers a discretionary power (“the court may”) to amend a final order temporarily;
(f)section 85 confers a discretionary power to extend a general interim order that was made by consent;
(g)section 86 mandates the extension of a final protection order unless the court is satisfied that a protection order is no longer necessary to protect the protected person from family violence by the respondent.
12․As the term “protection order” is defined to include a final order, it must be taken that the respondent to a final order, or indeed the protected person or applicant for a final order, can apply to have the order amended in accordance with s 83. However, where, as here, the only amendment sought is an extension of the term of a final protection order, the application is governed by s 86, which ties the magistrate’s hand. That is because, unlike every other power to amend in Part 5, the power under s 86 to extend a final order is not discretionary. The court must, on application, extend the order unless satisfied in the terms of the section. Section 86 provides:
Final orders—extension
(1) The Magistrates Court must, on application, amend a final order (the original order) by extending it for a stated period unless satisfied that a protection order is no longer necessary to protect the protected person from family violence by the respondent.
(2) If the parties consent to the application to amend the original order, the Magistrates Court must amend the original order without considering the matter mentioned in subsection (1).
13․In accordance with that section, unless the magistrate was satisfied that the order was no longer necessary to protect DT from family violence by TS, he was obliged to extend the order.
Proceedings in the Magistrates Court
14․In the proceedings in the Magistrates Court, DT was legally represented while TS was not. DT had filed a written extension application which was served on TS in advance of the hearing. TS did not file his own application to have the order amended under s 83. However, it was tolerably clear at the hearing that his principal objection to the extension of the order was on hardship grounds by reason of the impact on him of the exclusion condition. By the time of the hearing, he had been kept out of his jointly owned home for four years. He told the magistrate that he was “practically homeless” at the time of the hearing. He gave evidence that he was living in a garage that was infested with rats and cockroaches and that he had been unable to secure employment. He was at that time receiving Comcare payments, having become unable to work many years earlier due to longstanding depression and anxiety.
15․Counsel for DT informed the magistrate that the family property was jointly owned and that there were proceedings in the Federal Circuit Court concerning that property. Those proceedings had been commenced only shortly before the hearing and had not advanced very far. The magistrate expressed the view that the issue of the property was “best dealt with clearly in the Federal Circuit Court”. He confirmed with TS that, if the order was not extended, TS was proposing to move back into the house.
16․The magistrate then explained to TS the operation of s 86 of the Family Violence Act. He explained the “original principles” for making an order in the first place, which required the applicant to establish reasonable grounds to fear family violence or that there had been family violence inflicted on her by TS. His Honour continued:
Now, [we’re] here at this stage of deciding whether or not to extend the original order. We need to keep in mind those original principles I’ve just described about was there family violence or is there fear of family violence, and the test again is does the affected person have reasonable grounds to fear family violence by the respondent.
Now, when we go to the test for extending the order the challenge is on you. The onus is on you to demonstrate the order is no longer required. It’s not the other way around, which you might expect it to be but it’s not, and the test is this, that I am required to extend the order unless I am satisfied that the order is no longer necessary to protect the applicants from family violence by you. So the onus is reversed. It’s a decision the government has made, put it that way. So it’s a bit of an uphill battle for you.
17․The hearing proceeded on that basis, namely, that the onus was on TS to establish circumstances justifying not extending the order. Accordingly, the magistrate called upon TS to present his evidence first. At the outset of his evidence, TS referred to s 86 and confirmed that he understood that he bore the onus of establishing that a protection order was no longer necessary to protect DT.
18․TS gave evidence that he realised it was anger that had driven him to the incidents of violence and that he had made an effort to address that. He gave a detailed description of therapy he had received under the treatment of a psychiatrist and tendered medical reports to confirm that treatment. He noted that one of the reports recorded that his anger had substantially reduced and that he hardly ever got angry anymore. However, the magistrate noted that the report was there simply reporting what TS had said to the author; it did not express any opinion held or observation made by the author.
19․TS did not contend that the family violence order was no longer necessary. His principal concern was to have the exclusion condition removed. He gave evidence to the effect that he would agree to the extension of every other part of the order.
20․TS then took the magistrate to s 14(1) of the Family Violence Act. That section prescribes a list of mandatory considerations in deciding whether to make a family violence order, including at (e): “any hardship that may be caused to the respondent or anyone else by the making of the order”. In an attempt to keep TS on track, the magistrate responded that he was very familiar with the Act and the fact that TS’s hardship was a relevant consideration. He encouraged TS to address his current circumstances, rather than describing what the Act says.
21․Counsel for DT rose to his feet at that point to object on the basis that hardship is not a relevant consideration under s 86. The magistrate disagreed. His Honour said that, reading the Act as a whole, he was of the “very strong view that those two principles at [sections] 36 and 37 would still apply to the application before me today”. His Honour gave a “ruling” to that effect, with reasons.
22․TS proceeded to give detailed evidence of his living circumstances, contending (in effect) that the continuation of the exclusion order amounted to hardship falling within s 14(1)(e). He then turned to s 86. Although what he said on that topic was still part of his evidence, what followed was in truth in the nature of a submission. TS contended that the exclusion condition was no longer necessary because the family violence order had other clauses that protected DT (“those clauses that I can’t do anything to her, and if I do I have to face the consequences”). He contended that the exclusion condition was not necessary to protect DT because they had lived separated under the one roof for nine years and the particular incident in 2017 that led to the application for a protection order was a “one-off” when he was grieving after his mother had died. He also outlined a proposal he had put in writing to DT’s lawyer that would see DT leave the home and TS move back in. He said if that proposal was accepted, he would take full responsibility for the mortgage and house expenses.
23․DT then gave evidence. She said that, throughout the time when she and TS were living separated under the same roof (which she said was from 2009), she and her son and daughter were living in fear because TS was abusive, manipulating and controlling. She said her daughter left home and moved to Sydney in 2011 because “she couldn’t living this – with this person for the time is abusing and controlling”. Her son remained in the house because he was studying at ANU. She said TS was “very – very, very bad towards him”. TS objected to that evidence on the basis that the son no longer lives at the home and is not a protected person under the family violence order. The magistrate admitted the evidence for a limited purpose, namely, as going to DT’s state of mind.
24․DT said that, when TS came back to live in the house in 2009, she did not feel safe. She thought he would have changed after being dealt with for the first incident and being placed on a good behaviour bond, but she found after he moved back in that his attitude had not changed. She said he was controlling and was always yelling and screaming at her and calling her names like “bitch” and “cunt”. She said, “twenty years of married life I live in hell with him”. She felt that, having escaped from him twice, her life would be in danger if he came to live with her again. She referred to an email he had sent to their daughter in which he wrote “there are many men in Sydney and Melbourne very angry about what she [DT] did to me, so she needs myself”. DT clearly perceived that email as an indication that TS remained a threat to her.
25․At the conclusion of DT’s evidence, the magistrate told TS he was ready to hear from him as to why the order should not be extended. His Honour reminded TS that the test was that stated in s 86 of the Act and read the section out in full. That section includes the word “amend” three times. After the magistrate read the section, TS asked:
What is the amendment – there is a possibility of amending this Family Violence Order, is it?
26․The magistrate responded:
Well, potentially. And I think that is still open, certainly in circumstances where I need to always apply the principle of parsimony, which is described at section 36 of the Family Violence Act.
27․His Honour then read aloud s 37 (the transcript says s 36 but the section his Honour read is and always has been s 37):
Least restrictive principle
A court must ensure the conditions included in a family violence order are the least restrictive of the personal rights and liberties of the respondent as possible that still achieve the objects of this Act and give effect to section 36.
28․He then read s 36 (the transcript says s 28 but the section his Honour read is and always has been s 36):
Safety of affected person and children paramount
In deciding the conditions to be included in a family violence order, a court must give paramount consideration to the safety and protection of the affected person and any child directly or indirectly affected by the respondent’s alleged conduct.
29․The application of those sections is considered below.
30․Upon being told there was potentially a possibility of amending the order, TS raised two further issues concerning the conditions of the family violence order:
(a)the prohibition on communication, which TS said was going to be “a real headache” during the sale of the family home;
(b)a condition prohibiting him from taking possession of personal property reasonably needed by DT. Under that topic, TS raised a question concerning the family dogs.
31․TS otherwise made submissions concerning hardship based on his living circumstances. He submitted that DT was “hanging onto [the house], basically, for other reasons than safety”. He submitted that, if she was concerned for her safety, she could go somewhere else and rent a property.
32․TS confirmed that he was only challenging the exclusion condition, not the extension of the protection order. He said:
And I’m only telling to take off this amendment, that I can’t come to the premises. The other things can be there that I can’t harass her or I can’t do things like that, because those are criminal offences.
33․TS then referred to s 39(b)(ii) of the Family Violence Act. In order to explain the submission he made, it is necessary to set out the whole section:
Exclusion conditions
(1)In deciding whether to include an exclusion condition in a family violence order, a court must consider the following:
(a) as primary factors—
(i) the physical, emotional and psychological needs of the protected people; and
(ii) any disability the protected people have; and
(b) as secondary factors—
(i)the accommodation needs of, and options for accommodation available to, the protected people, the respondent and any child of the protected person or respondent; and
(ii) the length of time required for a person mentioned in paragraph (b)(i) to find alternative accommodation.
34․TS submitted that it would be “much faster” for DT to obtain alternative accommodation. He said:
I ask your Honour to tell her – to give it the weight it requires, because section 86 is merely on safety. And we have got rid of the safety problem, if the accommodation – whoever can get faster or better – quicker accommodation goes to where that is”.
35․After hearing submissions from TS, and without calling on counsel for DT, the magistrate indicated that he would be extending the order but would want to hear from the parties as to “what those orders precisely should be and for how long they should be”. His Honour then immediately gave detailed ex tempore reasons for extending the order.
36․In his reasons, the magistrate stated that the application was that the family violence order be “amended to allow an extension” and that “the test ultimately is contained at s 86”. He noted that family violence has a broad definition and that it includes emotional or psychological abuse, threatening behaviour, coercion and any other controlling or dominating behaviour that causes fear.
37․The magistrate then said:
Now, notwithstanding the existence of section 86, which sits on its own to some degree, I will apply, as I have in the past, a number of other key principles from the Act when deciding whether or not it is appropriate to make that order.
38․As will be explained, the appeal judge held that the magistrate erred in having regard to those other “key principles”.
39․The magistrate first referred to s 6 of the Family Violence Act, which sets out the objects of the Act, and then summarised what he took to be the key principles to be applied, including the principle of parsimony, which his Honour summarised neatly as “this idea of not doing more than what is necessary”.
40․The magistrate then noted that the matter involved an exclusion condition and said that, as that was the case, “the principles described at s 39 would also be appropriate”. His Honour then undertook a careful and detailed assessment of the evidence on that issue including the history of the relationship and the incidents that had given rise to the application for the family violence order. The magistrate accepted that DS had “ongoing fear” of living with TS and described that as “not surprising”.
41․The magistrate then turned to the countervailing considerations under s 39. He considered the hardship on TS of being kept out of his house and said he had “some strong sympathy” for TS’s submission that the Family Violence Act should not be used as a way of determining property rights, including ownership or possession. However, he rejected TS’s proposal that he could return to the house as being unrealistic. He also rejected the proposal that DS should be required to leave the house to make way for TS to move back in, given that she had been paying the mortgage for four years. Being satisfied that DS still held a legitimate fear of further family violence, the magistrate concluded (in the terms of s 86) that he could not be satisfied that a protection order was no longer necessary to protect the protected person from family violence by the respondent.
42․Having stated his intention to extend the order, the magistrate called on the parties to address him as to the form of the orders that should be made. His Honour ultimately made an order in substantially the same terms as the final order, with minor amendments allowing contact by agreement (in writing) to facilitate the sale of the property. The order prohibited the respondent from being at the property except as agreed in writing; prohibited him from being within 100 metres of DT or contacting her with specified exceptions including with her agreement in writing; prohibited him from engaging in behaviour that constitutes family violence towards DT; prohibited him from causing someone else to contact DT except as permitted by the order; and prohibited him from causing someone else to do anything that is family violence in relation to DT.
Appeal to the Supreme Court
43․The appeal from the Magistrates Court to the Supreme Court was brought pursuant s 93 of the Family Violence Act. That section confers a right of appeal against “an appealable decision” (the definition of which includes a decision to amend a final order). However, the section is silent as to the nature of the appeal.
44․In Stark (a pseudonym) v Hillam (a pseudonym) (No 2) [2022] ACTSC 272, Mossop J stated at [4] that an appeal pursuant to s 93 is an appeal by way of rehearing. While no authority is cited for that proposition, it is, with respect, plainly correct. The nature of an appeal is to be determined by the proper construction of the terms of its grant: Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124; at [2]. In Dwyer, the High Court noted the “fourfold distinction” drawn in previous decisions of the Court between different kinds of appeal, while also noting that these categories cannot represent a closed class. The four categories identified were:
(i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo.
45․The right of appeal conferred by s 93 of the Family Violence Act has features that indicate it falls within the third category, relevantly including:
(a)an obligation to consider the evidence given in the proceedings in the Magistrates Court, power to draw inferences of fact and a qualified power to receive further evidence: s 95 of the Act;
(b)broad powers in the disposition of the appeal including power to confirm, reverse or amend the order; to make the order that, in all the circumstances, the court considers appropriate, or refuse to make an order; or to set aside the order, completely or partly, and remit the proceedings to the Magistrates Court for further hearing: s 96 of the Act.
46․The conclusion that the appeal is by way of rehearing on the evidence before the trial court and any evidence admitted by the appellate court finds further support in the fact that s 96 is in substantially the same terms as s 218 of the Magistrates Court Act 1930 (ACT). That provision sets out the powers of the Supreme Court in criminal appeals from the Magistrates Court under s 208 of the Magistrates Court Act, which are governed by s 214 of that Act. While the provisions governing the receipt of evidence in such an appeal (contained in s 214 of the Magistrates Court Act) differ from the provisions of s 95 of the Family Violence Act in some important respects, it is significant that each Act contemplates the kind of appeal that will be determined by reference to the evidence that was before the Magistrates Court and such further evidence as the Supreme Court admits.
47․Such appeals are to be distinguished from the fourth category acknowledged in Dwyer, appeals by way of a hearing de novo. A hearing de novo proceeds in effect as if the hearing from which the appeal is brought had not taken place, whereas a rehearing is a process for the correction of error. In an appeal by way of rehearing, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error”: Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23].
48․In Alexander v Bakes [2023] ACTCA 49; 384 FLR 119, the Court of Appeal (Mossop, Baker and Abraham JJ) noted the principles to be applied in an appeal governed by s 214 in assessing whether there is a material legal, factual or discretionary error in a Magistrate’s decision. A convenient summary of those principles is set out in the decision of Baker J in Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 (published the day after Alexander v Bakes) at [40] as follows:
(i) The onus is on the appellant to demonstrate that there is error in the Magistrate’s decision: Alexander v Bakes at [22], citing Allesch v Maunz [2000] HCA 40; 203 CLR 172 at 180 [23] and Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 at [19].
(ii) It is incumbent on the appellant to identify the alleged error in the Magistrate’s decision in their grounds of appeal: Alexander v Bakes at [22], citing Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [8]; R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [127].
(iii) The appellate court must observe the ‘natural limitations’ of proceeding on the record, noting the disadvantages of an appellate court in comparison to the trial judge, both in evaluating witness credibility, and in being deprived of the “feeling” of a case: Alexander v Bakes at [20], citing Fox v Percy at 125 [23]. See also Garay v The Queen (No 3) [2023] ACTCA 2 at [31].
(iv) Where an appellant identifies the ground of appeal as being that the verdict is unreasonable, the Court will proceed on the basis that the appellant challenges the Magistrate’s ultimate factual finding: Alexander v Bakes at [23]. Where an appellant wishes to challenge an intermediate finding, such a challenge should be pleaded as a specific ground of appeal: Alexander v Bakes at [23].
49․In the decision under appeal in the present case, the appeal judge made remarks by way of obiter dicta which might be taken to suggest that an appeal under s 93 of the Family Violence Act is more in the nature of a hearing de novo. His Honour said at [45]:
Section 96 is framed in terms similar to those in which power is commonly conferred on merits review tribunals. When it is read with s 95, there can be no doubt that the Court is intended to come to its own view if it can, on the merits, as to the correct or preferable decision. There may be room for argument as to whether any particular appealable error needs to be identified in the decision below before that duty arises. In the present case, as explained above, there was an error of principle in the reasoning of the Magistrate. In the case of an exercise of judicial discretion, such an error requires the appellate court to consider for itself how the discretion should be exercised, according to principles established since at least House v The King (1936) 55 CLR 499, 505.
50․To the extent that those remarks might be understood to suggest that s 93 confers an appeal in the nature of a hearing de novo, with respect, the decision should not be followed. An appeal pursuant to s 93 of the Family Violence Act, having substantially the same features as an appeal governed by s 214 of the Magistrates Court Act, is clearly by way of rehearing and one in which the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.
51․The grounds of appeal as expressed in the notice of appeal filed 7 October 2021 were as follows (errors in original):
1. The decision is unreasonable and not supported by evidence.
2.cross jurisdictional issues. The magistrate was totally focused on issues with property settlement under the jurisdiction of the federal circuit court, than what was before him in his own magistrate court, kicking the can into another jurisdiction. It clearly shows that this is a property matter and not a safety issue. corruption of the Family Violence Act in order to get property.
3. Evidence presented that was beneficial to me was totally ignored.
4. my lack of accommodation and resulting hardships was not considered.
5. my human rights and ownership rights have been abused by keeping me out of my house for the last 4 years and now with the order given becomes 5.
6.sex discrimination by allowing my wife to stay in the house without moving out while i because i am male have to be out for 5 years because of my gender. If men and women are treated equally then she should have been in the house for 2.5 years and then move out because she is permanent APS employee earning higher income than me.
7.disability discrimination as ample evidence was given about my depression while my wife does not have any disability.
8.There was much more time spent in the court for property matters than on other matters.as such the court was corrupted by matters not in its jurisdiction and as such its decision is heavily flawed.
52․Those grounds were premised on the correctness of the approach adopted by the magistrate, which reflected his understanding of s 86. As already noted, the appeal judge found error in the magistrate’s construction of that section. One of TS’s complaints in this Court is, in substance, that the appeal judge found error but that somehow TS’s appeal was still dismissed. The explanation for that apparent anomaly is that the magistrate’s error was not any of those particularised by TS but, rather, was in having regard to a broader range of considerations than was appropriate. This led the magistrate, when considering whether to extend the final order, to give detailed and careful consideration to TS’s interests, including the hardship of being excluded from the jointly owned home for such a considerable period of time. On the proper confines of s 86, those considerations were irrelevant (as counsel for DT had argued).
53․Accordingly, the central issue in the appeal is the correctness of the appeal judge’s construction of s 86.
54․His Honour commenced his analysis by noting that the relationship between s 86, s 83 and the other provisions of the Act had not been considered in any of the decided cases. After undertaking a careful analysis of the Act, his Honour said at [21]:
It is tolerably clear from the terms of ss 83 and 86 that, while an application for extension of a family violence order is treated at least in a procedural sense as an application for amendment, extensions are a special class of amendment.
55․After discussing the nature of the discretionary power under s 83 to amend an order, the appeal judge continued at [23]:
On the other hand, according to the terms of s 86(1), the Magistrates Court “must” extend a final order when asked to do so, “unless” it is satisfied that an order is no longer necessary to protect the protected person from family violence by the respondent to the order. The only discretion that can be found in s 86(1) is as to the period of the extension. Thus, s 86 creates a class of case in which an extension must be granted. Implicitly, also, in any case not falling within that class, an extension must not be granted. Although that does not follow as a syllogism, it is hard to imagine that the legislature intended to empower the Magistrates Court to impose continued limitations on the liberty of the respondent to an order where it is satisfied that such limitations are no longer necessary. So understood, s 86 leaves no room for the application of the general rule in s 83(1), either as to the preconditions set out there or as to the discretion that arises when those preconditions are met.
56․His Honour accordingly concluded at [24] that the decision whether to amend a final order by extending it is governed “by a single criterion that yields a yes or no answer”. It followed that there was “no textual route for the importation of provisions that apply to the making of an original order”.
57․Applying that interpretation of s 86, the appeal judge concluded at [38] that the magistrate erred:
On that understanding, and with respect, the Magistrate approached this matter on an incorrect basis. His Honour’s approach was incorrect in that it treated the question of an extension as a discretionary exercise, involving the application of considerations drawn from the provisions of the Act which govern the making of a family violence order. It was also incorrect insofar as it characterised the “possession” of the former family home as an important issue, and contemplated the appropriateness of allowing the appellant to return to the home (and implicitly or explicitly requiring the respondent to leave) as an issue relevant to the grant of an extension.
58․Having found error, the appeal judge proceeded to consider how the appeal should be determined. In accordance with his analysis of s 86, his Honour did so by considering “whether [the magistrate’s conclusion that the order should be extended] is correct, and whether the period of extension stated in his Honour’s decision was appropriate”.
59․As to this question, the appeal judge noted that TS “needed to show some change in his attitude or the circumstances of the parties since then that would significantly reduce (if not eliminate altogether) the threat that he was found to pose to DT”. His Honour held (at [47]) that:
If anything, TS’s evidence and his approach to the case (including this appeal) tended to confirm that there remains a need for DT to be protected from the prospect of violence by him. He tended to minimise the event in 2017 that had led to him being convicted of common assault and to the making of the FVO, and described the incident in ways that diverged from the agreed statement of facts upon which his sentencing had proceeded (which was in evidence below). He emphasised what he regarded as his right to return to the former family home—and force DT to leave the home if she did not wish to share it with him—without appearing to recognise or accept the reasons why he had been required to leave and stay away. TS’s evidence in the Magistrates Court and the cross-examination of DT indicated that there was ongoing conflict between them about several matters including property in Sri Lanka, and that he was far from being at peace with what had occurred. His medical reports (the most recent of which is dated September 2021) suggest some progress up to February 2021, but that he was still anxious and requiring medication at that stage and still receiving treatment in September 2021.
60․The appeal judge concluded at [47]:
Having reviewed the evidence, I am not satisfied that a protection order is “no longer necessary” to protect DT from family violence by TS.
Appeal to this Court
61․The appeal to this court is brought pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT).
62․In the previous decision of the Court of Appeal in these proceedings, Elkaim J suggested that, being an appeal from an appeal, a requirement for leave to appeal should have been imposed. His Honor said at [3]:
There is one other point that I would like to make. This is an appeal from an appeal. The appellant had a right to appeal from the decision of Crowe AJ, the primary Judge (s 37E of the Supreme Court Act 1933 (ACT)). He also had a right to appeal from the decision of the Chief Magistrate to the Supreme Court (s 93 of the Family Violence Act 2016 (ACT)). In my view his rights of appeal should have been restricted to the latter appeal, namely from the Magistrates Court to the Supreme Court. Any further appeal should have been subjected, at the least, to a requirement that there be a grant of leave to appeal.
63․Neither of the other members of the Court as constituted for that appeal commented on those remarks. The suggestion that any further appeal should have been subjected to a requirement for leave cannot be accepted. Except in the case of an appeal against an interlocutory order of the court constituted by a single judge, an appeal under s 37E lies as of right. This Court has no authority to impose a requirement for leave to appeal in the case of a statutory appeal as of right. Appeals are “creatures of statute”: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at [14]. It is, with respect, not for the court to superimpose a requirement for leave where none is imposed by the statute that creates the right of appeal being invoked.
64․An appeal pursuant to s 37E(2)(a) of the Supreme Court Act is an appeal by way of rehearing. In order to succeed, the appellant must establish error on the part of the appeal judge: Australian Capital Territory v Crowley [2012] ACTCA 52; 273 FLR 370 at [5].
65․The central complaint raised by the grounds of appeal in the appeal to this Court is that the appeal judge did not consider the grounds before him. Ground 1 is that the grounds before the appeal judge (set out above) were “completely ignored by his Honour and not addressed at all by him”. Ground 2 continues “so all the abovementioned must be addressed by the Court of Appeal”. Ground 3 is that the appeal judge “has only addressed s 86 of the Family Violence Act”. Ground 4 is the appeal judge “did not treat this appeal in the strict sense and it is limited in jurisdiction”.
66․The reference to an appeal in the “strict sense” is misplaced. In saying so, we intend no criticism of TS but only to assist him to understand the nature of the appeal. We apprehend what TS meant in contending that the appeal judge did not treat the appeal “in the strict sense” is that his Honour did not take a strict approach to the appeal in that he did not consider and determine the grounds of appeal put forward. The expression has a different meaning in this context.
67․The term “in the strict sense” is the English translation of the Latin phrase, stricto sensu. An appeal strictu sensu is a narrower kind of appeal than an appeal by way of rehearing. As stated in the passage from Dwyer cited above, an appeal in the strict sense means an appeal where the issue is whether the judgment below was right on the material before the trial court. The present appeal is neither an appeal in the strict sense nor a hearing de novo (a hearing of the matter afresh). It is an appeal by way of hearing in which the appellant must establish error on the part of the appeal judge.
68․The appeal judge’s conclusion as to the proper construction of s 86 of the Family Violence Act was plainly right, for the reasons his Honour gave at [21]-[26]. Parts of that analysis are set out above. In summary, his Honour concluded:
(a)although an application for extension of a family violence order is treated at least procedurally as an application for amendment, extensions are a special class of amendment;
(b)the power to amend in s 83 is discretionary, subject to the Magistrates Court being satisfied as to the matters set out in the section;
(c)by contrast, s 86 “creates a class of case in which an extension must be granted”. This follows from the terms of s 86(1) which provides that the Magistrates Court “must” extend a final order when asked to do so, “unless” it is satisfied that an order is no longer necessary to protect the protected person from family violence by the respondent to the order, the only discretion being as to the period of the extension;
(d)implicitly, in any case not falling within the class of case in which an extension must be granted, an extension must not be granted;
(e)the criteria that apply to decisions about the making of a family violence order (including ss 14, 36, 37 and 39) might be relevant in deciding under s 83 whether to amend an order in a case other than an application for an extension. However, the decision whether the order should be extended is governed by a single criterion, namely, whether the court is “satisfied that a protection order is no longer necessary to protect the protected person from family violence by the respondent”. An application to extend an order is not, without more, an invitation to reconsider and re-draft particular provisions of that order.
(f)the period of the extension is to be fixed having regard to all the circumstances of the case and, in particular, an assessment (to the extent that it can be made) of the period for which an order is likely to remain “necessary”;
(g)it is up to the respondent to the order to show that the order is no longer necessary;
(h)there is no reason an application for an extension cannot be heard at the same time as an application to amend the conditions of the order, so long as it is kept in mind that the two tests (for amendment under s 83 and for an extension under s 86) raise very different issues and need to be the subject of distinct thought processes.
69․The application before the magistrate was DT’s application for an extension. That application was governed by a single criterion, namely, whether the magistrate was satisfied that a protection order was no longer necessary to protect the protected person from family violence by the respondent. In making that assessment, the magistrate was, with respect, wrong to have regard to the provisions that apply to the determination whether to make a family violence order. The “special class” of amendment applications, being applications for the extension of a final order, treat those issues as closed for the purposes of the extension application. The appeal judge was right to hold that the magistrate erred in his approach to DT’s application.
70․That said, as both the magistrate and the appeal judge acknowledged, it is always open to a respondent to make their own amendment application. Although no formal amendment application was made by TS, the magistrate heard his submissions concerning amendments to some of the conditions of the order. That was not inappropriate and indeed was in keeping with the objects of the Act and the guidance of s 7 of the Act, which seeks to ensure that “access to the courts is as simple, quick and inexpensive as is consistent with justice”. However, as explained by the appeal judge, when an extension application is met with a request to vary the conditions of an order, it is important for the court to keep in mind that the two tests raise very different issues and need to be the subject of distinct thought processes.
71․Returning to TS’s central complaint, the reason the appeal judge did not consider and determine each ground of appeal “in the strict sense”, and was not required to, is that those grounds were premised on the correctness of the magistrate’s understanding that the principles that apply in determining whether to make a final order, including the requirement to consider hardship, were relevant in determining DT’s application for an extension. That understanding was wrong. The appellant has not demonstrated error in the appeal judge’s decision.
Orders
72․For those reasons, we make the following order:
(1)The appeal is dismissed.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |
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