Ts v DT
[2022] ACTSC 137
•10 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | TS v DT |
Citation: | [2022] ACTSC 137 |
Hearing Date: | 26 April 2022 |
DecisionDate: | 10 June 2022 |
Before: | Kennett J |
Decision: | Appeal is dismissed. Decision appealed from is confirmed. |
Catchwords: | APPEAL – FAMILY VIOLENCE – Appeal of the decision of a Magistrate to extend a final Family Violence Order under s 86 of the Family Violence Act 2016 (ACT) – where respondent to protection order claims factors outside of s 86 should be taken into account in extension decision – consideration of powers to amend protection orders |
Legislation Cited: | Family Violence Act 2016 (ACT) ss 6, 14, 28, 34, 35, 36, 37, 39, 82, 83, 86, 95, 96 Legislation Act 2001 (ACT) s 146 |
Cases Cited: | House v The King (1936) 55 CLR 499 TS v DT [2019] ACTSC 295 Ward v Williams (1955) 92 CLR 496 |
Parties: | TS ( Appellant) DT ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) H Jorgensen ( Respondent) |
| Solicitors Self-represented ( Appellant) Legal Aid ACT ( Respondent) | |
File Number: | SCA 31 of 2021 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 10 September 2021 Case Title: DT v TS Court File Number: FVO 489 of 2017 |
Kennett J:
Introduction
On 14 March 2019, Chief Magistrate Walker made a final Family Violence Order (the FVO) against the appellant (who is referred to in this judgment as TS). The respondent (DT) was the applicant for that order and the “protected person” referred to in it. The terms of the FVO were as follows:
1. The respondent is prohibited from:
(a)being on the premises of [the family home];
(i) except on one occasion in the company of a member of the Australian Federal Police for the purpose of collecting and returning personal belongings;
(b)being within 100 metres of the protected person(s)
(i) except when the respondent is attending at the protected person’s residence specified above in the company of the Australian Federal Police;
(ii) except at a Court or Tribunal proceeding;
(iii) except at a counselling or mediation session or restorative justice conference arranged with the protected person’s consent;
(c)contacting the protected person(s):
(i) except through a legal practitioner;
(ii) except at a counselling or mediation session or restorative justice conference arranged with the protected person’s consent;
(d)engaging in behaviour that constitutes family violence towards the protected person(s);
(e)causing someone else to contact the protected person(s), except as permitted by this order;
(f)causing someone else to do anything that is family violence in relation to the protected person(s)
THE COURT DIRECTS THAT:
2. The Registrar send a copy of this order to the ACT Register of Firearms.
[Personal particulars removed.]
The FVO was the subject of an appeal to this Court, which was decided adversely to TS ([2019] ACTSC 295), and a further appeal to the Court of Appeal which was also unsuccessful ([2020] ACTCA 43).
The background to the making of the FVO is set out in detail in the reasons of Collier J in the Court of Appeal ([2020] ACTCA 43 at [8]–[30]) and will not be repeated here, except to the extent necessary.
The FVO was due to expire on 13 March 2021. On 27 January 2021, DT made an application to extend the FVO for a further two years. The FVO was extended on a temporary basis by orders made on 12 March 2021, 21 April 2021 and 27 May 2021.
The substantive extension application came on for hearing before a Magistrate on 29 July 2021 but had to be adjourned part heard at the end of that day. The hearing was not able to resume until 10 September 2021, and on that day the Magistrate made the order which is the subject of this appeal (the extended FVO).
In that order, his Honour extended the FVO for a period of 12 months, rather than the two years sought by DT (although that 12 month period started from the date of the extended FVO rather than from the expiry of the original FVO). So far as is relevant in this appeal, the extended FVO is in substantially the same terms as the FVO set out at [1] above. His Honour removed paragraph (a)(i) as it had ceased to have effect, and amended paragraphs (a), (b) and (c) by adding provision for TS to be at the premises referred to in para (a) (the former family home), be within 100 meters of DT or contact DT where those things are done pursuant to an arrangement agreed in writing.
As expressed in the Notice of Appeal filed on 7 October 2021, the grounds of the appeal are 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.
TS expanded on these grounds in written submissions sent to the Court on 25 April 2022, and in oral submissions. His arguments, and his concerns about the extension of the FVO, focused on the fact that he has been excluded from the former family home for more than four years in circumstances where he does not have acceptable alternative accommodation and, he says, DT has a stable income which would allow her to obtain suitable accommodation outside the former family home. He suggested that the application by DT to extend the FVO was in reality a tactic designed to keep him out of the property and force him to accept an outcome adverse to his interests in proceedings in the Federal Circuit and Family Court. Those proceedings will be mentioned further below.
Consistently with this position, TS did not suggest that he wished to return to live in a spousal relationship with DT. Although his Notice of Appeal seeks to have the extended FVO set aside in its entirety, what TS envisaged was that he and DT would return to living separately under one roof as they had done between 2008 and 2017. However, if he was not successful in setting aside the provisions preventing him from approaching or contacting DT, he sought an outcome in which he would be allowed to live in the former family home and she would be required to move elsewhere.
The statutory scheme
10. Before considering the reasons of the Magistrate and the submissions of TS in more detail, it is necessary to mention relevant provisions of the Family Violence Act 2016 (ACT) (the Act).
11. The power to make the FVO was conferred by s 34 of the Act. The power is discretionary. The only preconditions for making an order are that “the affected person has reasonable grounds to fear family violence by the respondent” or “the respondent has used family violence against the affected person”. However, the exercise of the discretion as to whether to make an order, and the contents of the order, are governed by other provisions of the Act.
12. First, s 14 of the Act lists a number of matters which must be taken into account by a court in deciding whether to make an order. Relevantly, they include:
14Matters to be considered—family violence orders
(1)In deciding whether to make a family violence order, a court must consider the following:
…
(b)the affected person’s perception of the nature and seriousness of the respondent’s alleged conduct;
…
(d)the accommodation needs of the affected person and any child of the affected person or respondent;
(e)any hardship that may be caused to the respondent or anyone else by the making of the order;
….
13. Division 3.6 of the Act is headed “Conditions of family violence orders” and contains a number of provisions governing what are referred to as the “conditions” of an order. It is apparent from these provisions that the word “conditions” is intended to refer to prohibitions that may be imposed on the respondent to an order (including conditions that may be imposed on their freedom to, for example, be on particular premises or approach or contact a particular person), rather than conditions to which the order itself is subject.
14. The provisions of Division 3.6 include the following.
(a)Section 36 provides that, in deciding the conditions to be included in an 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”.
(b)Section 37 requires the court to ensure that the conditions included in an 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”.
(c)Section 39 applies to what are termed “exclusion conditions”—defined in sub-s (4) to mean a condition prohibiting the respondent to an order from being on premises where he or she “lives”. Subsection 39(1), upon which the appellant placed considerable reliance, provides as follows:
39Exclusion 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 mention in paragraph (b)(i) to find alternative accommodation.
15. The provisions mentioned so far concern the matters that must be considered in deciding whether to make a family violence order, and what the contents of that order should be.
16. Generally, an order remains in force for two years, although a shorter or longer period may be stated: s 35.
17. The extension of a family violence order beyond its initial term is treated by the Act as a form of amendment of the order, which is dealt with by Part 5. Provisions in Part 5 refer to a “protection order”, which is defined to mean either an interim or a final family violence order.
18. Section 82 allows the protected person, the applicant for the order (if they are not the protected person) or the respondent to the order to apply to the Magistrates Court for an amendment. Section 83 then provides the general power for the Magistrates Court to amend a protection order. It is as follows:
83 Amendment of protection orders
(1)The Magistrates Court may amend a protection order only if satisfied that—
(a)amending the order will not adversely affect the safety of the protected person or a child of the protected person; and
(b)the order as amended could be made on application for a protection order; and
(c)if the amendment would reduce the protection of a child who is 15 years old or younger—the child is no longer in need of the greater protection provided by the unamended protection order.
(2)If the protection order has been amended by being extended, the order must mention that it has been extended.
(3)An application for an amendment must state the grounds for the application.
Examples
1the protected person has had a change in circumstances since the original order was made
2the original order restricts the respondent’s rights unnecessarily
(4)An application for an amendment must be made before the original order ends.
(5)If the parties consent to the application to amend the protection order, the Magistrates Court must amend the order regardless of whether or not—
(a)the grounds mentioned in subsection (1)(a), (b) and (c) have been made out; or
(b)the court has considered those grounds.
19. Section 86, which is the key provision under which the Magistrate proceeded, is as follows:
86 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 mention in subsection (1).
20. The relationship between s 86, s 83 and the other provisions of the Act does not seem to have been considered in any of the decided cases. The correct understanding of that relationship is important to the resolution of the issues in this appeal.
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.
22. Generally, the power to make an amendment depends on the Magistrates Court being satisfied as to the three matters set out in s 83(1)(a), (b) and (c). With that hurdle having been cleared, the use of the word “may” indicates that the power to amend is discretionary: Legislation Act 2001 (ACT) s 146. Although in some cases a provision using the word “may” is construed as conferring a power coupled with an implied duty to exercise that power if the circumstances prescribed for its exercise are met (eg, Ward v Williams (1955) 92 CLR 496, 505–506), I do not think such reasoning is applicable to s 83. The matters set out in s 83(1)(a) and (b) are in their nature no more than basic preconditions for considering a proposed amendment: that the safety of the protected person will remain protected, and that the order as amended would be one that the court is entitled to make. Paragraph (c), meanwhile, addresses a particular category of case and will often not arise. I do not think the legislature can be taken to have intended that, in every case where these basic preconditions are satisfied, an amendment if sought must be made. Further, if s 83(1) were to be construed as importing a duty (rather than a discretion) to make an amendment, it would be necessary to identify the terms of the amendment that was required to be made; and the terms of the provision provide no basis for doing that. If the intention had been to require the Magistrates Court to make an amendment in the terms sought by the applicant, one would expect that to be spelt out. The better view is that the power to amend in s 83 is discretionary.
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.
24. Turning to the criteria that apply to decisions about the making of a family violence order (including those found in ss 14, 36, 37 and 39), it may well be that these provisions have a role to play in a decision under s 83 as to whether and in what way an order should be amended. Textually, that is at least plausible because the order as amended under s 83 must be one that the Magistrates Court would have had power to make as an original order. That logic does not apply, however, to s 86. The decision whether the order should be extended is governed, as explained above, by a single criterion that yields a yes or no answer. If the answer is that the order is to be extended, there is some discretion as to the period of the extension; however, there is no textual route for the importation of provisions that apply to the making of an original order. It may be that some of these provisions embody general principles which could be said to apply by implication. However, an application to extend an order is not, without more, an invitation to reconsider and re-draft particular provisions of that order. Having regard to the whole of s 86, what emerges is that 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”. If the period of necessity appears to be indefinite, a period must nevertheless be “stated”, at least in order to ensure that the continuing need for the order will be reviewed at some future time.
25. The other aspect of s 86 that should be mentioned is that it requires the Magistrates Court to be positively “satisfied” that a protection order is no longer necessary before it can refuse to extend the order. In the context of a curial proceeding, it is not inappropriate to describe that formulation as casting an onus of proof on to the respondent to the order. If there is insufficient evidence for the Magistrates Court to reach a conclusion about the continued necessity for the order, it must be extended. At least in a practical sense, therefore, it is up to the respondent to the order to show that it is no longer necessary.
26. What I have said about s 86 of the Act in the previous paragraphs relates only to an application to extend the term of a family violence order. There is nothing to prevent such an application being combined with, or at least heard at the same time as, an application to amend the “conditions” contained in the order. (The Magistrate in effect proceeded in this way in the present case, although no written application seems to have been made for the amendments that his Honour made to the FVO as extended. No party complains in the appeal about those amendments.) However, that possibility does not negate the important differences between the tests to be applied for extension (under s 86) on the one hand, and amendments generally (under s 83) on the other. The two tests raise very different issues and need to be the subject of distinct thought processes. It is not insignificant that the test in s 86(1) is framed in terms of whether “a protection order” is no longer necessary, and therefore does not focus on the terms of the order that is in place. The legislature therefore appears to have intended that the Magistrates Court would grant an extension unless persuaded that no restrictions on the respondent to the order were warranted, and then proceed to deal with any issues that might be raised about the continuing suitability of particular terms in the order.
The proceeding in the Magistrates Court
27. At an early stage of the hearing in the Magistrates Court, TS (who represented himself) referred to the consideration of “hardship” required by s 14 of the Act, and his Honour indicated an acceptance that that was a relevant consideration. Mr Jorgensen, who appeared for DT below and also appears in this appeal, intervened, drawing attention to the language of s 86. He submitted that the only issue arising under s 86 was whether the order was no longer necessary to protect his client from family violence by TS; and that the considerations mentioned in s 14, as well as the requirements of ss 36 and 37, therefore had no work to do. His Honour then announced what he described as a “ruling” to the effect that the principles embodied in ss 36 and 37 “apply” in determining whether or not to extend an order under s 86.
28. At this stage TS had been affirmed as a witness and was in the process of presenting what was, in substance, a mixture of evidence and argument. Having completed that address, he was cross-examined by Mr Jorgensen. That cross examination continued on the second day of the hearing.
29. DT then gave evidence. As TS was unrepresented and was not permitted to cross-examine her, a Deputy Registrar of the Court attended and asked her a series of questions which had been drafted by TS.
30. After the close of the evidence, the Magistrate invited submissions from TS and reminded him of the terms of s 86 of the Act. Asked by TS whether there was a possibility of amending the FVO, his Honour expressed the view that “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 [Act]”. His Honour also referred to s 28.
31. After hearing the submissions of the appellant, his Honour announced that he would be extending the FVO. He proceeded to give oral reasons.
32. Acknowledging that s 86 “sits on its own to some degree”, his Honour said that he would apply “a number of other key principles from the Act when deciding whether or not it is appropriate to make that order”. He then referred to the objects of the Act (contained in s 6) and to ss 14, 36 and 37. He noted that, in addition to those provisions, he needed to take into account “the affected person’s perception of the nature and seriousness of the respondent’s conduct, the accommodation needs of the affected person, and any previous family violence order made in relation to the respondent”. He then observed that, because the FVO involves a condition that prevents the appellant residing in the former family home, “the principles described at section 39 would also be appropriate”, and went on to summarise the effect of that section.
33. Following that exposition of the statutory scheme, His Honour referred briefly to the events which formed the background to the making of the FVO. He also referred to evidence of DT concerning what she said was daily abuse, and evidence (not directly challenged) that she harboured an ongoing fear in relation to the appellant, particularly if they were to reside in the same house.
34. His Honour then turned to the arguments of TS. TS emphasised that there was a family home which both parties had contributed to, and an incident whereby he had been required for some four years not to be in that home while his wife had been allowed to stay there. He said that he had suffered hardship, including currently living in very unsatisfactory conditions in a garage.
35. It is useful to set out the core of his Honour’s reasoning in full (minor grammatical errors in the transcription have been corrected):
The respondent appears to have approached these proceedings on the basis that it’s open for him to return to the family home and continue to cohabitate with his wife. I don’t think that’s a realistic option. The applicant has clearly indicated that that would cause her significant difficulty, and she has a basis, from experience, to fear that concern. I just don’t think that’s something the court can entertain. So the question really is who should take or continue to have possession of the home until the issue of property is resolved.
Unfortunately, the question of property has not really been dealt with until very recently when application was made to the then Federal Circuit Court. I understand that as recently as the past week, an order was made in the Federal Circuit and Family Court of Australia, essentially a self-executing order, by Judge Neville that if the respondent in these proceedings does not file his response to the applicant’s application in those proceedings by 23 September this year, the orders sought by the applicant in these proceedings will be made on a final basis.
And I understand the orders sought by her are for her to essentially receive full equity in the home, be that the home itself or once it has been realised by sale. I understand this is not being challenged by the respondent here, that he has to date not engaged in a meaningful way with those proceedings, including making relevant disclosures and filing a response to the applicant in these proceeding’s application in those proceedings. I think that is a fairly unusual set of circumstances, and failure to actually engage in the court process is something that should not be rewarded. And it’s unfortunate.
I might just pause here and note that in family law proceedings, most – the vast majority of family law proceedings in relation to property are resolved by agreement. That doesn’t happen always straight away, but they are ultimately resolved by agreement, and very few matters actually run to a hearing. It’s in both the parties here, both their interests to do what they can to try and resolve that. That involves full disclosure of financial arrangements and then a meaningful conversation as to applying the principles from the Family Law Act as to how things should be divvied up between the parties.
It’s the way forward for both the applicant here and the respondent here. I would encourage both parties to do what they can to in good faith engage in a negotiation to try and resolve that matter. Of course, if the respondent here fails to take any action in the other court, then those self-executing orders will take effect before the end of September.
In the circumstances where the applicant has had possession of the family home for some four years in the absence of the respondent, where there’s a contest as to who should take what equity from that family home, where there are those self-executing orders in favour of the applicant, the applicant says – and this has not been challenged – that she has contributed almost solely to the payment of the mortgage and beyond since 2014, to my mind it would be grossly inappropriate to adjust the possession arrangements by making an order that would mean that the applicant would be required to leave that house and allow the respondent to move in.
As I said before, it’s not appropriate here to allow the respondent to return to live with the applicant in the home. Essentially, the home is no longer the home of the respondent. It was some four years ago. What really is in issue here is who gets what in relation to the pool of assets between the parties, and that’s something for the other court and not for me. I am satisfied that there remains a fear – a legitimate fear held by the applicant here that there may be further family violence, and therefore it is appropriate to extend the orders. And put in a way that directly engages with the test at section 86, I cannot be satisfied that a protection order is no longer necessary to protect the protected person from family violence by the respondent.
36. His Honour then considered the period for which the FVO should be extended, concluding that a period of one year from the date of his order was appropriate. Next, his Honour canvassed with the parties the question whether, given that the house is likely to be sold as a consequence of the family law proceedings, provision ought to be made for TS to have access to it in order to remove any belongings of his that remain there. The result of that discussion was the amendments to the terms of the order which have been mentioned above.
Resolution of the appeal
37. In his written submissions in response to TS’s grounds of appeal, Mr Jorgensen focused on defending the reasoning of the Magistrate. He did not expressly address the relationship between s 86 and other provisions of the Act, or call into question the overall approach of the Magistrate. However, in oral submissions, Mr Jorgensen repeated the submission summarised at [27] above.
38. That submission substantially accords with what I consider to be the correct understanding of the provisions, as set out above. 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.
39. My acceptance of this submission of Mr Jorgensen exposes an error by his Honour that at least overlaps with Ground 9 in TS’s notice of appeal. However, it also leads me to reject the main point of TS’s argument (that his accommodation needs should be taken into account pursuant to s 39 of the Act). Further, it does not necessarily follow from the exposure of this error that his Honour’s actual decision on the extension application was wrong or that it should be set aside on appeal.
40. Further written submissions were invited from the parties as to how the Court should proceed in these circumstances.
41. TS’s further submissions argued that the present appeal is an appeal in the strict sense and that the Court is limited to deciding the issues raised in the grounds of appeal. He also sought to support the position that the provisions of Division 3.6 should be taken into account in deciding whether to extend a family violence order under s 86.
42. Mr Jorgensen’s further submissions referred to s 96 of the Act, which defines the powers of this Court in an appeal as follows:
96Powers of Supreme Court on appeal
On appeal, the Supreme Court may―
(a)confirm, reverse or amend the decision or order appealed from; or
(b)make the decision or order that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c)set aside the decision or order appealed from, completely or partly, and remit the proceedings to the Magistrates Court for further hearing, subject to the directions the Supreme Court considers appropriate.
43. Mr Jorgensen submitted that the Court should proceed under para (b) to make the order it considers appropriate, on the basis of the evidence before the Magistrate, or alternatively proceed under para (a) and confirm the decision under appeal.
44. It should also be noted that, under s 95 of the Act, the Court is required to consider the evidence given in the proceeding from which the appeal arose, and has the power to draw inferences from that evidence and receive further evidence. No further evidence was tendered in the appeal.
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.
46. It is therefore not sufficient merely to observe that the Magistrate made a finding, in the last paragraph of the extract set out above, which in terms addresses the issue in s 86(1). This Court must consider for itself whether that conclusion is correct, and whether the period of extension stated in his Honour’s decision was appropriate.
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. This is for the following reasons.
(a)The language of s 86(1) calls for inquiry into whether an order is “no longer” necessary, and thus focuses on the time of the decision whether to extend. In the present case, the decision to make the FVO was affirmed at two levels of appeal and I therefore take it to be correct. TS thus 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. He did not really attempt to do so, except by tendering some medical reports from 2020–2021 indicating that he was receiving treatment for a psychiatric disorder. Instead, apart from emphasising his own needs and interests, his evidence and his cross-examination (through the Deputy Registrar) of DT sought mainly to re-litigate events prior to 2019 and question her motives for having sought the FVO.
(b)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.
48. For the same reasons, I do not think it would be appropriate to reduce the period for which his Honour extended the FVO. That period expires on 10 September 2022.
49. In his further written submissions, Mr Jorgensen sought to contend that the Magistrate was obliged to extend the FVO for a period of two years and that this Court should now do so. This amounts in substance to a notice of contention and, given the late stage at which the point was raised, I will not allow it to be advanced. In any event, I do not think a case has been made for disturbing this discretionary aspect of the Magistrate’s decision. The ongoing need for a protection order may change considerably if, for example, the proceedings in the Federal Circuit and Family Court are resolved in a way that includes the sale of the former family home. It is not inappropriate for the matter to come back before the Magistrates Court later in the year so that a further extension, if sought, can be considered in the light of the circumstances at that time.
Orders
50. The orders of the Court will therefore be as follows:
(1) The appeal is dismissed.
(2) The decision appealed from is confirmed.
| I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |