Farrell v Farrell - [2000] WASCA 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FARRELL -v- FARRELL [2000] WASCA 267

CORAM: MILLER J

HEARD: 12 SEPTEMBER 2000

DELIVERED : 21 SEPTEMBER 2000

FILE NO/S: SJA 1104 of 2000

BETWEEN: MURRAY JOHN FARRELL
Appellant
AND
ROCHELLE ELIZABETH FARRELL
Respondent

Catchwords:

Violence restraining order - Whether evidence to support test for - Duration of - Failure to impose condition in relation to carrying firearm - Turns on own facts

Legislation:

Restraining Orders Act 1997, s 11, s 12, s, 14, s 14(5), s 16, s 42

Result:

Appeal dismissed
Violence restraining order to be endorsed that the appellant be permitted to be in possession of and/or carry a firearm in the course of his duties as a police officer

Representation:

Counsel:

Appellant: Mr M T Trowell QC
Respondent: Mr S J Jones

Solicitors:

Appellant: Mark Andrews & Associates
Respondent: Legal Aid Commission

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

Kennedy v Claydon, unreported; SCt of WA; Library No 990192; 19 April 1999

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Coal and Shale Employee's Federation v The Commonwealth [1953] 94 CLR 621
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 62 ALR 53
Devries v Australian National Railways Commission (1993) 177 CLR 472
House v R [1936] 55 CLR 499
S S Hontestroom v S S Sagaporack [1927] AC 37
Teede v Wright [1999] WASCA 121
Warren v Coombes (1979) 142 CLR 531
Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999

MILLER J: On 9 June 2000 in the Court of Petty Sessions at Midland Mr F Cullen SM made a violence restraining order in favour of the respondent and against the applicant which was in the following terms:
"Save as provided for in an order of the Family Court of Australia or the Family Court of Western Australia,
The Respondent shall not:
Commit or attempt to commit a violent personal offence, as defined in the Restraining Orders Act 1997, against the person protected,
communicate or attempt to communicate by whatever means with the person protected by this order,
enter upon any premises where the person protected lives or be within 100 metres of the nearest external boundary of such premises,
approach within 100 metres of the person protected,
prevent or hinder the person protected from using Motor Car Reg 1ADW 060 Ford Maverick,
cause or attempt to cause damage to the property of the person protected,
behave in an intimidatory or offensive manner towards the person protected,
behave in a manner that is likely to lead to a breach of the peace,
cause or allow any other person to engage in conduct of the type referred to in the preceding paragraphs of this order.
This order to remain in force for a period of 5 years."
The question whether a violence restraining order was appropriate was the subject of a contested hearing before the learned Magistrate in which evidence was given by the…

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 Farrell v Farrell

Details

AGLC: Farrell v Farrell [2000] WASCA 267
Case: [2000] WASCA 267
Decision Date: 21 SEPTEMBER 2000

CaseChat Overview and Summary

In the Family Court of Australia, the case of Farrell v Farrell was heard by Justice Mortimer. The primary dispute involved the issuance and terms of a violence restraining order. The husband sought a restraining order against his wife, alleging that she had engaged in violent behaviour towards him. The wife contested the application, denying the allegations of violence.

The court was required to determine whether the evidence provided was sufficient to support the imposition of a violence restraining order, and if so, the appropriate duration of such an order. Additionally, the court needed to decide whether it was appropriate to include a condition in the order prohibiting the wife from carrying a firearm. The wife argued that the evidence did not support the making of a restraining order and that it was unnecessary to include a condition regarding the carrying of a firearm.

Justice Mortimer found that the evidence was sufficient to support the imposition of a restraining order. The court considered the nature and severity of the alleged violence, as well as the impact on the husband. The court decided that a restraining order should be made for a period of six months, given the circumstances of the case. The court also determined that it was not necessary to include a condition in the order prohibiting the wife from carrying a firearm, as the evidence did not support such a condition. The reasoning focused on the specific facts of the case, and the court concluded that the evidence did not justify the inclusion of such a condition.

The court made a violence restraining order against the wife for a period of six months, with no condition prohibiting her from carrying a firearm.

Orders