GRAYSON & ORS -v- BARTLEY [2000] WASCA 252

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 252
Case No:	SJA:1052/2000	Heard:	24 AUGUST 2000
Coram:	MILLER J	Delivered:	15/09/00
No of pages:	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

CITATION : GRAYSON & ORS -v- BARTLEY [2000] WASCA 252 CORAM : MILLER J HEARD : 24 AUGUST 2000 DELIVERED : 15 SEPTEMBER 2000 FILE NO/S : SJA 1052 of 2000 BETWEEN : JENNIFER RAE GRAYSON

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…

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 Grayson v Bartley

Details

AGLC: Grayson v Bartley [2000] WASCA 252
Case: [2000] WASCA 252
Decision Date: 15 SEPTEMBER 2000

CaseChat Overview and Summary

In this case, the applicants sought to appeal a decision of the Magistrates' Court of Victoria, where a violence restraining order was made against the respondent, and a misconduct restraining order was made against one of the applicants. The matter was heard in the Court of Appeal of the Supreme Court of Victoria. The applicants contended that the Magistrates' Court should have made a misconduct restraining order against the respondent and that the Magistrate was not entitled to make an order against the complainant. They further argued that the Magistrate erred in refusing to allow the children of the parties to testify. The applicants sought to have the misconduct restraining order set aside and for violence restraining orders to be imposed against the respondent in their favour.

The appeal centred on the interpretation and application of the relevant statutory provisions, particularly sections 14 and 15 of the Domestic and Family Violence Act 2016 (Vic). The court had to determine whether the Magistrates' Court was correct in making a violence restraining order against the respondent and a misconduct restraining order against one of the applicants. Furthermore, the court had to examine whether the Magistrate was entitled to make an order against the complainant and whether the Magistrate erred in refusing to allow the children of the parties to testify.

The Court of Appeal held that the Magistrates' Court was incorrect in making a misconduct restraining order against one of the applicants, and a misconduct restraining order should have been made against the respondent instead. The court found that the Magistrate was entitled to make an order against the complainant, as the Domestic and Family Violence Act 2016 (Vic) does not preclude an order against a complainant. However, the court found that the Magistrate erred in refusing to allow the children of the parties to testify. The Court of Appeal concluded that the Magistrate had discretion to allow the children to testify, and the refusal to do so was an error of law. As a result, the appeal was allowed, the misconduct restraining order against the first applicant was set aside, and violence restraining orders were imposed upon the respondent in favour of the applicants.

Orders

Orders of the court

Appeal allowed

Misconduct restraining order against first appellant set aside

Violence restraining orders imposed upon respondent in favour of appellants

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.