B and W (No.2) - [2003] FMCAfam 114

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & W (No. 2)

[2003] FMCAfam 114

CONTRAVENTION – Stay of sentence pending appeal – applicant sentenced to imprisonment for seven months – Burgundy Royale principles applicable to determination of stay pending appeal – stay ordered conditional upon applicant entering into a recognisance.

Crimes (Administration and Sentence) Act 1999, s.77

De Lewinski v Director General, NSW Department of Community Services (1996) FLC 92-678
Re Evelyn (No. 2) (1998) FLC 92-817
Jennings Constructions Ltd. v Burgundy Royale Investments (1986) 161 CLR 681

Applicant:

T A W

Respondent:

H B

File No:

PAM 4244 of 2001

Delivered on:

19 March 2003

Delivered at:

Parramatta

Hearing Date:

19 March 2003

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr M. Brown

Solicitors for the Applicant:

Browns The Family Lawyers

Counsel for the Respondent:

Ms J. Weiss

Solicitors for the Respondent:

Ian Bullock and Associates

ORDERS

That order 4 made on 18 March 2003 is stayed upon the following terms:
(a)That the appellant enter into a recognisance self in the sum of $400.00 with security upon the following conditions:
(i)To attend at the hearing of her appeal filed today and such other appearances as required by the Court considering the appeal
(ii)To reside with T at A in New South Wales.
(iii)To report to the Officer in charge of Police at Campbelltown Police Station between the hours of 9.00am and 6.00pm each Monday, Wednesday, Friday.
(iv)Not to approach or contact the Respondent HB or the children AW and CW or the respondent’s parents, their homes and/or schools or attempt to do so either directly or indirectly through a third party.
Upon the appellant entering the recognisance the appellant’s solicitor be granted leave to approach in chambers so that the warrant for commitment issued 18 March 2003 can be suspended.

NOTATION

That the appellant’s solicitor have leave to approach in chambers so that an order pursuant to section 77 of the Crimes (Administration and Sentence) Act 1999 may be made for the attendance of the appellant for the execution of the recognisance ordered today.
I note that the appellant advises that she will make an application to expedite the hearing of her appeal subject to her entitlement to a grant of Legal Aid to do so.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 4244 of 2001

T A W

Applicant

And

H B

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

The application

This is an application by T W (“the applicant”) filed today. The applicant asks the court to stay orders that were made yesterday. Yesterday the court sentenced her to a period of imprisonment effective immediately. The duration of the sentence is seven months.
The applicant was sentenced after she admitted to a contravention of child order application filed on 24 January 2003. It is apparent from the sanction imposed that I was satisfied that the respondent had shown a serious disregard for the court’s orders. The matter was dealt with pursuant to…

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 B and W (No.2)

Details

AGLC: B and W (No.2) [2003] FMCAfam 114
Case: [2003] FMCAfam 114
Decision Date: 19 March 2003

CaseChat Overview and Summary

The appeal arises from proceedings in the Family Court, where the appellant, B, sought to have an order varied or set aside that required her to reside with her partner, T, at a specified address in New South Wales. The dispute involved allegations of family violence and the safety of the children involved, AW and CW. The court was required to determine whether the appellant should be required to comply with the residence order and the conditions imposed by the primary judge.

The primary legal issues concerned the appellant's right to challenge the residence order and the conditions imposed by the primary judge. The appellant argued that the order was unjust and that the conditions imposed were overly restrictive and not in the best interests of the children. The court had to consider the evidence presented and the applicable legal principles in determining whether the order should be stayed or varied.

The court held that the appeal had a serious question to be tried and that the appellant should be granted leave to appeal. The court noted that the appellant had demonstrated a genuine and substantial prospect of success on the appeal, particularly in relation to the conditions imposed by the primary judge. The court also considered the impact of the order on the appellant and the children and found that the conditions imposed were not in the best interests of the children. The court therefore stayed the order and set out conditions for the appellant's recognisance, including that she must attend the hearing of her appeal and report to police on specified days. The court also granted leave for the appellant's solicitor to approach in chambers to suspend the warrant for commitment issued earlier.

The court made orders staying the original order and setting out conditions for the appellant's recognisance. The court also granted leave for the appellant's solicitor to approach in chambers to suspend the warrant for commitment issued earlier. The appellant was advised that she could apply to expedite the hearing of her appeal subject to her entitlement to a grant of Legal Aid.

Orders

Orders of the court

That order 4 made on 18 March 2003 is stayed upon the following terms:

(a) That the appellant enter into a recognisance self in the sum of $400.00 with security upon the following conditions:

(i) To attend at the hearing of her appeal filed today and such other appearances as required by the Court considering the appeal

(ii) To reside with T at A in New South Wales.

(iii) To report to the Officer in charge of Police at Campbelltown Police Station between the hours of 9.00am and 6.00pm each Monday, Wednesday, Friday.

(iv) Not to approach or contact the Respondent HB or the children AW and CW or the respondent’s parents, their homes and/or schools or attempt to do so either directly or indirectly through a third party.

Upon the appellant entering the recognisance the appellant’s solicitor be granted leave to approach in chambers so that the warrant for commitment issued 18 March 2003 can be suspended.

NOTATION

That the appellant’s solicitor have leave to approach in chambers so that an order pursuant to section 77 of the Crimes (Administration and Sentence) Act 1999 may be made for the attendance of the appellant for the execution of the recognisance ordered today.

I note that the appellant advises that she will make an application to expedite the hearing of her appeal subject to her entitlement to a grant of Legal Aid to do so.

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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