Calabro v Semple - [2013] WADC 93

CALABRO -v- SEMPLE [2013] WADC 93

Last Update: 26/06/2013

CALABRO -v- SEMPLE [2013] WADC 93
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 93
Case No:	APP:102/2012	Heard:	27 MARCH 2013
Coram:	BRADDOCK DCJ	Delivered:	13/06/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	14	Judgment Part:	1 of 1
Result:	Extension of time granted to lodge appeal Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	Jurisdiction: MAGISTRATES COURT OF WESTERN AUSTRALIA Coram: MAGISTRATE LAWRENCE File Number: JO 707 of 2012
Parties:	DOMINIC CALABRO KYLIE NICOLE SEMPLE
Catchwords:	Appeal Violence restraining order Act of family or domestic violence Intimidating, offensive or emotionally abusive -Turns on own facts
Legislation:	Magistrates Court (Civil Proceedings) Act 2004 pt 7 Restraining Orders Act 1997 s 3, s 4, s 6, s 40, s 43, s 64
Case References:	Butler v Bennett [2007] WADC 107 House v The Queen (1936) 55 CLR 499 Lydon v Lydon [2008] WASCA 8 Walsh v Baron [2012] WADC 165

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : CALABRO -v- SEMPLE [2013] WADC 93 CORAM : BRADDOCK DCJ HEARD : 27 MARCH 2013 DELIVERED : 13 JUNE 2013 FILE NO/S : APP 102 of 2012 BETWEEN : DOMINIC CALABRO

Appellant

AND

KYLIE NICOLE SEMPLE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE LAWRENCE

File No : JO 707 of 2012

Catchwords:

Appeal - Violence restraining order - Act of family or domestic violence - Intimidating, offensive or emotionally abusive -Turns on own facts

(Page 2)

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 pt 7
Restraining Orders Act 1997 s 3, s 4, s 6, s 40, s 43, s 64

Result:

Extension of time granted to lodge appeal
Appeal dismissed

Representation:

Counsel:

Appellant : In person

Respondent : Mr H J Paiker

Solicitors:

Appellant : Not applicable

Respondent : Paiker & Overmeire

Case(s) referred to in judgment(s):

Butler v Bennett [2007] WADC 107
House v The Queen (1936) 55 CLR 499
Lydon v Lydon [2008] WASCA 8
Walsh v Baron [2012] WADC 165

(Page 3)

BRADDOCK DCJ

Introduction

1 Dominic Calabro and Kylie Nicole Semple were formerly in a de facto relationship. The relationship lasted for about five years and produced two children who are now aged five and seven. The relationship came to an end in April 2007. Since which time the parties have lived separately, and arrangements have been made whereby Mr Calabro spends time with his children.

2 On 29 May 2012, Ms Semple made an application for a violence restraining order, in the Joondalup Magistrates Court. The application was based upon two incidents, one on the night of 28 May 2012 at 5 Medina Place in Balga and the other on 11 May 2012, when Ms Semple was collecting her daughter from Mr Calabro's residence in Balcatta. Ms Semple further alleged that there had been over the last five years behaviour which resulted in her feeling…

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 Calabro v Semple

Details

AGLC: Calabro v Semple [2013] WADC 93
Case: [2013] WADC 93
Decision Date

CaseChat Overview and Summary

Dominic Calabro and Kylie Nicole Semple were in a de facto relationship for five years and have two children together. The relationship ended in April 2007, and the parties have lived separately since that time. On 29 May 2012, Ms Semple applied for a violence restraining order in the Magistrates Court, alleging that Mr Calabro had acted in an intimidating, offensive and emotionally abusive manner towards her. The application was heard by Magistrate Gluestein on 6 June 2012, and an interim violence restraining order was granted. Mr Calabro appealed against the confirmation of the order to the District Court, filing 15 grounds of appeal on 14 December 2012. The appeal was heard on 27 March 2013, and the decision was handed down on 13 June 2013. The court found that there was no evidence of any acts of physical violence, but there was evidence of escalating behaviour by Mr Calabro towards Ms Semple which amounted to emotional abuse. The court found that the magistrate was correct in confirming the violence restraining order, and the appeal was dismissed.

Orders