Ts v DT - [2022] ACTSC 137

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 TS v DT [2020] ACTCA 43 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…

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 Ts v DT

Details

AGLC: Ts v DT [2022] ACTSC 137
Case: [2022] ACTSC 137
Decision Date: 10 June 2022

CaseChat Overview and Summary

Ts, an appellant, sought to appeal the decision of a Magistrate to extend a final Family Violence Order under section 86 of the Family Violence Act 2016 (ACT). The respondent, DT, had raised objections to the extension, claiming that factors outside of section 86 should be considered in the decision-making process. The appeal was heard and determined by the court.

The court needed to decide whether the Magistrate had the power to take into account factors outside of section 86 in the extension decision and whether the Magistrate exercised their powers correctly. The court also needed to consider the powers to amend protection orders and whether the Magistrate had the authority to make such amendments.

The court found that the Magistrate had correctly exercised their discretion and had not erred in law. The court held that section 86 of the Family Violence Act 2016 (ACT) did not preclude the consideration of factors outside of the section, and the Magistrate had appropriately exercised their powers to extend the final Family Violence Order. The court also held that the Magistrate had the authority to amend the protection orders as part of the extension process. The appeal was dismissed, and the decision of the Magistrate was confirmed.

Orders

Orders of the court

Appeal is dismissed. Decision appealed from is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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