Grayson v Bartley
[2000] WASCA 252
•15 SEPTEMBER 2000
GRAYSON & ORS -v- BARTLEY [2000] WASCA 252
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 252 | |
| Case No: | SJA:1052/2000 | 24 AUGUST 2000 | |
| Coram: | MILLER J | 15/09/00 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Misconduct restraining order against first appellant set aside Violence restraining orders imposed upon respondent in favour of appellants | ||
| PDF Version |
| Parties: | JENNIFER RAE GRAYSON CHRISTOPHER GRAYSON DANIEL GRAYSON MICHELLE GRAYSON JOHN CHARLES BARTLEY |
Catchwords: | Restraining order Whether violence restraining order or misconduct restraining order should have been made Whether Magistrate entitled to make order against complainant Refusal of Magistrate to allow children to testify Whether power to do so |
Legislation: | Restraining Orders Act 1997, s 11, s 25, s 34, s 63(2), s 68 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- CHRISTOPHER GRAYSON
DANIEL GRAYSON
MICHELLE GRAYSON
Appellants
AND
JOHN CHARLES BARTLEY
Respondent
Catchwords:
Restraining order - Whether violence restraining order or misconduct restraining order should have been made - Whether Magistrate entitled to make order against complainant - Refusal of Magistrate to allow children to testify - Whether power to do so
Legislation:
Restraining Orders Act 1997, s 11, s 25, s 34, s 63(2), s 68
Result:
Appeal allowed
(Page 2)
Misconduct restraining order against first appellant set aside
Violence restraining orders imposed upon respondent in favour of appellants
Representation:
Counsel:
Appellants : Mr J B Hedges
Respondent : In person
Solicitors:
Appellants : Bruce Havilah & Associates
Respondent : In person
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MILLER J: Jennifer Rae Grayson ("Mrs Grayson") applied before Mr F Cullen SM in the Court of Petty Sessions at Midland on 2 March 2000 for violence restraining orders in favour of herself and her children against the respondent. Mrs Grayson gave evidence and she called one other witness. She sought to call the children as witnesses but was precluded by the learned Magistrate from doing so. The respondent gave evidence and called one witness. The learned Magistrate then summed up the facts of the case and decided that there should be a misconduct restraining order against the respondent and an identical misconduct restraining order against Mrs Grayson. No orders were made in relation to the children. The duration of the order was fixed at three years.
2 The appellants were given leave on 29 May 2000 to appeal from the decision of the learned Magistrate upon five grounds:
"(a) The Learned Magistrate erred in making a misconduct restraining order against the Respondent John Charles Bartley after making a finding that the Respondent had perpetrated acts of violence against the Appellant Jennifer Rae Grayson on a number of occasions:
(b) The Learned Magistrate erred in failing to consider the evidence of Jennifer Rae Grayson of acts of violence perpetrated by the Respondent against the Appellants Christopher Grayson, Daniel Grayson and Michelle Grayson;
(c) The Learned Magistrate erred in failing to apply Section 11 of the Restraining Orders Act 1997 by duly considering the matters raised in Section 12 properly or at all in relation to each or any of the Appellants;
(d) The Learned Magistrate denied the Appellants procedural fairness by refusing to hear and consider the evidence of the Appellants Christopher Grayson, Daniel Grayson, Michelle Grayson and Chad Sexton-Fink;
(e) The learned Magistrate misdirected himself that he had the power to make a restraining order against the Appellant Jennifer Rae Grayson in the course of the hearing of the Appellants' restraining order application against the Respondent.
(Page 4)
- (f) The Learned Magistrate erred in his finding that there were sufficient or any grounds to grant a misconduct restraining order against the Appellant Jennifer Rae Grayson."
3 On 9 August 2000 Templeman J granted to the appellants leave to adduce new evidence in the form of affidavits of each of the second, third and fourth appellants. His Honour noted that the second, third and fourth appellants were not to be cross-examined on the contents of their affidavits, the respondent having stated expressly that he did not wish them to be cross-examined. The order made by Templeman J included leave for the respondent to adduce in evidence an affidavit, and a direction was given that I should make such use of the affidavit evidence so filed as I saw fit.
4 It is convenient to deal with ground (e) of the grounds of appeal first. That was the way the matter was approached by counsel for the appellants at the hearing, and for good reason, as this ground was clearly established. It contends that the learned Magistrate misdirected himself that he had the power to make a restraining order against Mrs Grayson in the course of the hearing of her application for a restraining order against the respondent. The relevant observations made by the learned Magistrate for making such an order against Mrs Grayson were as follows:
"What I have to do then is decide whether or not an order should be made in the terms as they now are, or in some other terms which may be appropriate in the circumstances. It also seems fairly clear to me, because of the way in which the parties have conducted themselves over the last seven years, that perhaps consideration ought to be given to the placing of restraining orders on both parties.
Now, I say that at this point simply because it is a provision of the Restraining Orders Act that a magistrate may at a hearing in certain circumstances make other orders which would affect the other party. That is, of course, that the order before me may well in this case be a violence order and could be made into a misconduct order, or I may, given that I am satisfied that I ought to do it, place an order upon Ms Grayson not to approach Mr Bartley. That of course would be a fair decision to make, I would have thought, in relation to the situation; again bearing in mind, of course, that an order such as this is not a criminal conviction.
(Page 5)
- …
What I intend to do therefore, in accordance with section 43 of the Restraining Order Act, is make identical orders with regards to each of the parties before me. Not violence orders, but misconduct orders. I do that because I am of the view that, given the circumstances and what has been expressed by Mr Bartley and the distance that is now between the two parties - that is, the geographical distance across the city - that for me to make an order which prevents contact by either party would be equitable and be something that I ought to make.
Now, what I intend to do is to make identical orders against both Ms Grayson and Mr Bartley that neither of them communicate or attempts to communicate with each other in any way at all. The order says 'by any means whatsoever', which means telephone, writing, or by a third party."
5 Although the learned Magistrate made no reference to any particular section of the Restraining Orders Act 1997 ("the Act"), it seems that his Worship was referring to s 63(2) of the Act when he referred to "a provision of the Act". That section provides that a court before which a person charged with an offence (my emphasis) is appearing may make a restraining order against that person or any other person who gives evidence in relation to that charge. The side note to the section ("making restraining orders during other proceedings") gives an indication that it is to be in other proceedings that such an order might be made. In this case the respondent had not been charged with any offence at all. Further, he had made no application for a restraining order under the provisions of s 25 of the Act, which require any application for a violence restraining order to be made in a prescribed form. Although the respondent argued on the hearing of the appeal that s 68 of the Act entitled the learned Magistrate to make the order he did, that section does not, in my view, authorise a court to make a restraining order in circumstances in which his Worship did in this case. It provides that when making a restraining order a court may extend an order to operate for the benefit of a person (my emphasis) named in the order in addition to the person protected by the order. It could not be said that the making of a restraining order against Mrs Grayson was an order made "for her benefit" as it was clearly an order made to her detriment. Again, the side note to the section gives an indication of its intention. It is "orders may be extended to apply to other people". The clear intention of the section is that other persons (such as children) may have the benefit of a restraining order extended to
(Page 6)
- them in circumstances where the person seeking the order has been protected by the making of such an order. For these reasons I am of the view that the learned Magistrate erred in making a restraining order against Mrs Grayson and that order should be set aside.
6 The primary ground of appeal is that the learned Magistrate erred in making a misconduct restraining order against the respondent and not a violence restraining order. The distinction between the two is made clear by the sections which deal respectively with them. A violence restraining order may be made pursuant to s 11 of the Act where a court is satisfied that unless restrained, a respondent is likely to:
(i) commit a violent personal offence against the applicant; or
(ii) behave in a manner that could reasonably be expected to cause the applicant (or if the application is made by another person on behalf of the applicant, that other person) to fear that the respondent will commit such an offence;
7 A misconduct restraining order may be made under s 34 of the Act in circumstances where a court is satisfied that:
(a) unless restrained, the respondent is likely to -
(i) behave in a manner that could reasonably be expected to be intimidating or offensive to the applicant and that would, in fact, intimidate or offend the applicant;
(ii) cause damage to property owned by, or in the possession of, the applicant; or
(iii) behave in a manner that is, or is likely to lead to, a breach of the peace;
and
(b) granting a misconduct restraining order is appropriate in the circumstances.
8 As the terms of a violence restraining order clearly indicate, such an order is aimed at preventing violence to another, whereas a misconduct restraining order is aimed at preventing intimidatory or offensive
(Page 7)
- behaviour on the part of a person towards another; causing damage to property; or behaving in a way such as to lead to a breach of the peace. The purpose of the orders is therefore quite separate and distinct.
9 In the present case the learned Magistrate considered that it was appropriate to make "an order" against the respondent, saying:
"Now, I am satisfied that the behaviour of Mr Bartley in the past towards Ms Grayson has been of a level that requires the intervention of the court by the making of an order."
10 Immediately prior to reaching that conclusion the learned Magistrate had said:
"As I have said, there is no doubt of course there has been a lot of ill feeling and discontentment and violence between the parties on a number of occasions which has resulted in injuries being caused to Ms Grayson, and of course Mr Bartley says that on one occasion he was also injured."
11 During the course of the hearing the learned Magistrate made it clear that he had been persuaded that evidence given by Mrs Grayson of violence to her by the respondent had established that fact. Indeed, he discouraged the calling of the children to give evidence in that respect because of the conclusion that he had reached. The relevant passage is as follows:
"HIS WORSHIP: Well, I mean what's the point in bringing children into the court to be --- to be traumatised and have matters dragged up that they may or may not have witnessed in the past, you know?
MS GRAYSON: They have witnessed in the past.
HIS WORSHIP: Well, you know I don't --- I don't agree with --- that they should be called at all.
MS GRAYSON: They've experienced violence from Mr Bartley.
HIS WORSHIP: I don't think --- I don't think --- I don't think that it's a matter that ought to be --- to be done. I ought not to countenance bringing children into this court and have matters put to them that may well have had some detrimental effect upon them. He hasn't --- he hasn't denied or asked you
(Page 8)
- questions in relation to any of those matters that were raised by you when the children were present.
MS GRAYSON: About the assaults.
HIS WORSHIP: And I specifically asked him on two occasions to ask questions in relation to violence. And he hasn't. Well, there's only one conclusion I can draw from that. All right. Well, I don't --- I don't think the children ought to be called and I won't listen to them."
12 There was ample evidence before the learned Magistrate that Mrs Grayson was the recipient of violent acts on the part of the respondent. Sergeant Duncan Frost gave evidence of numerous incidents during 1999 (and before) when police had been called to the house of the parties in Mahogany Creek and complaints of assault had been made by Mrs Grayson. Mrs Grayson's complaints were inadmissible, but no objection was taken to the evidence. In any event, the importance of the evidence was that it established that police had been called on numerous occasions to the house in relation to allegations of domestic violence. The respondent cross-examined Sergeant Frost and elicited from him that Mrs Grayson had complained of receiving bruises to the eyes and face on one occasion and of severe swelling, bruising and bleeding from the nose, eyes, cheeks and temple area on another.
13 Mrs Grayson herself gave evidence that the relationship between herself and the respondent had been a very violent one, there had been assaults against her and threats against herself and her children and notwithstanding separation of the parties, the problem had not ceased. She gave evidence of an incident on 23 October 1999 when the respondent had thrown his food over the kitchen wall, roof and ceiling. She said:
"I went to sleep on the lounge. About half an hour later he came back out and just started hitting, kicking, dragging me off the lounge, kicking me with his feet into my face, and when I looked up my middle child, Daniel, was standing there with the guitar, about to hit him on the head with the guitar to stop hitting me. And I just yelled at Daniel not to do it, because when John gets violent he will hit out at anybody."
14 There were numerous other incidents related by Mrs Grayson to similar effect and it is unnecessary for the purpose of these reasons to detail them. It is sufficient to say that there was ample evidence of violent
(Page 9)
- behaviour on the part of the respondent towards Mrs Grayson and her children.
15 Mrs Grayson was cross-examined by the respondent, but despite the learned Magistrate's invitation to the respondent to cross-examine her on the subject matter of the violent assaults which she had alleged, the respondent declined to do so. All that he did was put to Mrs Grayson that injuries received by her in a 1995 incident were inflicted by another person. This she adamantly denied. When the respondent himself came to give evidence he made no denials in relation to the evidence given by Mrs Grayson. To the contrary, he admitted having assaulted Mrs Grayson, saying that "Mrs Grayson and I have assaulted each other in the past, as the Sergeant gave evidence". There was also evidence of threatening telephone calls made by the respondent to Mrs Grayson.
16 In all the circumstances, it is puzzling that the learned Magistrate should have decided against the making of a violence restraining order and deciding to make a misconduct restraining order instead. The matters to be considered by the court in determining whether or not a violence restraining order should be made are listed in s 12 of the Act in the following terms:
"(a) the need to ensure that the applicant is protected from personal violence;
(b) the need to prevent behaviour that could reasonably be expected to cause fear that the applicant will suffer personal violence;
(c) the welfare of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order;
(d) the accommodation needs of the respondent and the applicant;
(e) hardship that may be caused to the respondent if the order is made;
(f) any family orders;
(g) other current legal proceedings involving the respondent or the applicant;
(h) any criminal record of the respondent;
(Page 10)
- (i) any previous similar behaviour of the respondent whether in relation to the person to be protected or otherwise; and
(j) other matters the court considers relevant."
17 Careful consideration of the evidence in this case establishes that matters (a), (b) and (c) were at least made out. They are the matters of "primary importance" to be considered by the Court. In my view, the learned Magistrate had no option but to make a violence restraining order and should have done so. I would therefore set aside the misconduct restraining order imposed against the respondent and substitute for it a violence restraining order for the same period.
18 Ground (b) contends that the learned Magistrate erred in failing to consider the evidence of Mrs Grayson of acts of violence perpetrated by the respondent against the children. There was evidence given by Mrs Grayson in this respect, but it had been her intention to call the three children to give specific evidence. Ground (d) contends that the learned Magistrate denied to Mrs Grayson procedural fairness by refusing to hear and consider the evidence of those children. Grounds (b) and (d) are therefore tied together.
19 I have already quoted the passage in which his Worship refused to allow the children to be called. He first said he did not think that they ought to be called but then said he would not listen to them. Earlier, Mrs Grayson had put to the learned Magistrate that the children were there at the court, they were in fear, and they wished to give evidence. The right to call the children resided with Mrs Grayson. It needs no authority to state that the responsibility of deciding what witnesses should be called and in what order they should be called in any civil proceedings is solely a matter for counsel appearing for a party or, where a party appears in person, that party: See Cross on Evidence, 5th Aust ed, J D Heydon, par 17075. In my view, the learned Magistrate had no power to refuse Mrs Grayson the opportunity of calling the children.
20 The new evidence which is before me in the form of affidavits of the children illustrates quite clearly that in each case they were the subject of violence from the respondent. The second appellant has deposed in his affidavit that on an occasion in October 1999 the respondent punched him about six times, causing him to fall to the ground. The third appellant has deposed that in October 1999 there was an argument between the first appellant and the respondent in which he was embroiled and in which the respondent tried to hit the first appellant, causing him on that and other
(Page 11)
- occasions fear. The third appellant has deposed that on a number of occasions the respondent hit him with his fists. The respondent in his own affidavit does not seek to answer any of these allegations. Indeed, what is contained in the affidavit is essentially irrelevant to the determination of the appeal.
21 I am of the opinion that the learned Magistrate ought to have made restraining orders in favour of the second, third and fourth appellants and it seems appropriate that I should now make those orders. They will be in the same terms as the violence restraining order which I have substituted for the misconduct restraining order in favour of the first appellant.
22 The result is that I allow the appeal of the appellants and
(1) set aside the misconduct restraining order imposed by the learned Magistrate upon the first appellant;
(2) make violence restraining orders under s 11 of the Act in favour of each of the appellants against the respondent for the period of three years nominated by the learned Magistrate.
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