Isenhood v WILLIAMS on behalf of a Child
[2008] WASC 70
•8 MAY 2008
ISENHOOD -v- WILLIAMS ON BEHALF OF A CHILD [2008] WASC 70
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 70 | |
| Case No: | SJA:1100/2007 | 14 APRIL 2008 | |
| Coram: | HASLUCK J | 8/05/08 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL ISENHOOD PAUL WILLIAMS ON BEHALF OF A CHILD |
Catchwords: | Appeal Appeal jurisdiction under Restraining Orders Act 1997 (WA) Jurisdiction held to be vested in District Court Miscellaneous powers of courts and judges Matters connected with conduct of defence Grounds of appeal relied upon by appellant insufficient in any event Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 7, s 6, s 9 Criminal Procedure Act 2004 (WA), pt 2, pt 3 Criminal Procedure Rules 2005 (WA), r 65 District Court of Western Australia Act 1969 (WA), s 76, s 77 Magistrates Court (Civil Proceedings) Act 2004 (WA), pt 7, s 43 Magistrates Court Act 2004 (WA), s 4, s 6(1), s 9, s 11 Restraining Orders Act 1997 (WA), s 7A, s 12, s 13, s 16(5), s 25, s 45, s 63C, s 64(1), s 64(2), s 72 |
Case References: | Butler v Bennett [2007] WADC 107 Doyle v The Commonwealth (1985) 156 CLR 510 Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 272 Lydon v Lydon [2007] WADC 122 Lydon v Lydon [2008] WASCA 8 Porteous v McNamara [1999] WASCA 123 Trimball v Piggott (1995) 14 WAR 329 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PAUL WILLIAMS ON BEHALF OF A CHILD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B A LANE
File No : PE 2240 of 2007
Catchwords:
Appeal - Appeal jurisdiction under Restraining Orders Act 1997 (WA) - Jurisdiction held to be vested in District Court - Miscellaneous powers of courts and judges - Matters connected with conduct of defence - Grounds of appeal relied upon by appellant insufficient in any event - Turns on own facts
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Legislation:
Criminal Appeals Act 2004 (WA), s 7, s 6, s 9
Criminal Procedure Act 2004 (WA), pt 2, pt 3
Criminal Procedure Rules 2005 (WA), r 65
District Court of Western Australia Act 1969 (WA), s 76, s 77
Magistrates Court (Civil Proceedings) Act 2004 (WA), pt 7, s 43
Magistrates Court Act 2004 (WA), s 4, s 6(1), s 9, s 11
Restraining Orders Act 1997 (WA), s 7A, s 12, s 13, s 16(5), s 25, s 45, s 63C, s 64(1), s 64(2), s 72
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr M T T Trowell QC & Ms N J Redman
Solicitors:
Appellant : In person
Respondent : Carr & Co
Case(s) referred to in judgment(s):
Butler v Bennett [2007] WADC 107
Doyle v The Commonwealth (1985) 156 CLR 510
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 272
Lydon v Lydon [2007] WADC 122
Lydon v Lydon [2008] WASCA 8
Porteous v McNamara [1999] WASCA 123
Trimball v Piggott (1995) 14 WAR 329
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- HASLUCK J:
Introduction
1 The appellant, Michael Isenhood, seeks leave to appeal against an order made pursuant to provisions of the Restraining Orders Act 1997 (WA) which was handed down in the Magistrates Court at Perth on 21 November 2007.
2 In addition to the issues raised by the notice of appeal in this matter, which was lodged pursuant to provisions of the Criminal Appeals Act 2004 (WA), there is a further issue to be resolved as to whether the appeal was properly instituted and as to whether I have jurisdiction to deal with the matters in question.
3 It will be useful to begin by describing the procedural history of the matter.
Background
4 The respondent, Paul Williams, has lived most of his life in Perth and has experience in the mining industry. It seems that in January 2001 he and the woman I will call 'Melanie' began living together. A child was born in October 2005, and was only a few months old when they separated in late February 2006.
5 In due course negotiations were undertaken in regard to arrangements for Mr Williams to see his daughter, although these negotiations were complicated by the respondent's absences owing to work commitments and difficulties of communication. This and other issues concerning the parties came before Thackray CJ of the Family Court of Western Australia in mid 2007.
6 By this time Melanie had formed a relationship with Michael Isenhood. Melanie was principally responsible for the welfare of her daughter, 'P', and this inevitably meant that Mr Isenhood was known to P, and to Mr Williams.
7 In early August 2007, at a time when the proceedings in the Family Court were still current, certain events took place at the home of the respondent arising out of interim arrangements for access. These events prompted Mr Williams to seek a violence restraining order on behalf of his daughter against Mr Isenhood.
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8 The violence restraining order application signed by Mr Williams was dated 3 September 2007. The proceedings were numbered 'PE2240/07' and the jurisdiction was said to be the Magistrates Court at Perth. An order was sought to prevent Mr Isenhood from behaving in a way that could reasonably be expected to cause fear that a child will be exposed to an act of family and domestic violence, from committing an act of abuse against the person sought to be protected, from exposing a child to an act of family and domestic violence.
9 The details of Mr Isenhood's behaviour were alleged to be as follows:
4/8/07: Threatening/aggressive behaviour at my home with [P] present.
7/8/07: Assaulted me in front of [P], causing harm and distress. The respondent has a criminal record and has been brought to the attention of DCD in [sic] respect behaviour against other children.
10 Before dealing with the outcome of the proceedings commenced by Mr Williams, it will be useful to look briefly at certain provisions of the Restraining Orders Act bearing upon an application for relief and upon the jurisdictional issues before me.
Restraining Orders Act
11 Section 25 of the Restraining Orders Act provides that if the person seeking to be protected is a child, an application for a violence restraining order may be made by a parent or guardian of the child in the prescribed form to the Magistrates Court.
12 By s 11B of the Act a violence restraining order may be made for the benefit of a child if the court is satisfied that the child has been exposed to an act of family and domestic violence committed by or against a person with whom the child is in a family and domestic relationship and the child is likely again to be exposed to such an act. A violence restraining order can be made if it is appropriate in the circumstances.
13 By s 12 when considering whether to make a violence restraining order and the terms of the order a court is to have regard to certain prescribed matters including the need to ensure that children are not exposed to acts of family and domestic violence and the wellbeing of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order.
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14 I note in passing that by s 12(1)(g) of the Act the matters to be considered include other current legal proceedings involving the respondent or the person seeking to be protected. The court may also have regard to any criminal record of the respondent.
15 Section 13 of the Act provides that a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent exposing a child to an act of abuse. By s 13(3) a restraint may be imposed on the respondent absolutely or on such terms as the court considers appropriate. By s 16(5) a final order remains in force for the period specified in the order or if no period is specified 2 years from the date on which the final order came into force. Section 45 allows for variation of an order.
16 The Act contains provisions allowing for a first hearing in the absence of the respondent prior to a final order hearing. By s 72 the practices and procedures to be followed are those applying in the Magistrates Court under the Magistrates Court (Civil Proceedings) Act 2004 (WA).
17 Finally, I note that by s 63C(2) of the Act the making or varying of a restraining order does not affect the civil or criminal liability of a person bound by the order.
The subject proceedings
18 The materials before me include the transcript of a hearing on 3 September 2007, being the day on which the respondent applied for interim relief. Counsel for Mr Williams explained that an order was being sought for the protection of Mr Williams' daughter P, who was then living with her mother Melanie. The learned magistrate was informed that there had been a trial in the Family Court on 11 July 2007 concerning arrangements to be made for P but the decision of that court had been reserved. In the meantime, application was being made for an 'interim order' as a consequence of the early August events.
19 Mr Williams gave evidence bearing upon the matters in question. It is not entirely clear to me from the materials before me as to what orders were made in regard to the application for interim relief. However, it is clear that interim relief was obtained and in due course Michael Isenhood was served with the application and related papers. Arrangements were made for the matter to be listed for a final hearing before Magistrate Lane on 21 November 2007.
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The hearing
20 At the hearing on 21 November 2007 the applicant for relief, being Mr Williams on behalf of his daughter P, was represented by counsel. Mr Isenhood as the respondent to the application for relief represented himself.
21 In the course of explaining to the unrepresented litigant what was to take place at the hearing, her Honour made it clear at the outset that it was 'a civil trial, not a criminal trial' with the result that factual matters were to be proved upon the balance of probabilities. Her Honour observed also that although orders could be made to make sure children were safe until Family Law Court orders were in place, it was the Family Law Court that had overriding authority with respect to children.
The Williams evidence
22 Mr Williams gave evidence to the effect that he was 40 years of age. His daughter P had turned 2 years of age a few weeks earlier on 25 October 2007. He had been having 16 hours a week of access to his daughter since his separation from Melanie. The arrangements were for Melanie to deliver P to his home on a Tuesday and Saturday for unsupervised access.
23 Mr Williams said that on 4 August 2007 Mr Isenhood accompanied Melanie to Mr Williams' home where the changeover was to occur. On that occasion Mr Isenhood allegedly got out of the car, threatened Mr Williams, tried to assault him, and said he would get Mr Williams. According to Mr Williams, he took the child, walked into the house, and that was that.
24 Mr Williams went on to say that as a consequence of the incident he set up a security camera which was used to film what occurred a few days later on 7 August when Mr Isenhood arrived with Melanie again. According to Mr Williams, when the car driven by Melanie pulled up, he approached the car to get his child. He told Mr Isenhood to leave his property as he was trespassing but as he (Williams) went to the back passenger car door to get the child Mr Isenhood grabbed him and punched him. After that Melanie took P out of the vehicle and the child was taken inside. A DVD with footage of the incident was played to the court.
25 Mr Williams said also in the course of his evidence that he laid a complaint of assault which was to be dealt with by the court in due course.
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- Mr Williams was cross-examined by Mr Isenhood at some length about these matters.
26 I note in passing that in the course of the cross-examination the learned magistrate pointed out to Mr Isenhood that whether an assault occurred was quite important because if it was found that he did assault Mr Williams then it was highly likely that a restraint order would be granted. She then said:
Even if you go through the trial in Joondalup in relation to the assault, if it is not granted here, the court can still impose one under section 63 of the Restraining Orders Act and you don't get a chance to appeal that because under section 63 of the Act the court imposes a final order.
27 She was there referring to the facility provided by s 63 of the Restraining Orders Act for a court (including a judicial officer considering a case for bail) before which a person charged with an offence is appearing to make a restraining order against that person, which is then to be regarded as a final order.
28 Her Honour then made these further observations:
Under section 12 there are lots of different issues that are taken into account. So they are completely different matters, but if I find an assault has occurred and that it is likely to occur again because of the relationship between the parties and that hasn't been sorted out, then I have nowhere to go, I have to grant a final order. That can be for any time from two weeks to life because the Act says that you can do that … The District Court are giving life ones and I have given life ones. Usually in relation to children. I do them until that child is 18… The reason I do that of course is the Family Law Court can override the order with respect to the child, but then a child at 18 can decide whether they want the order to go on, and at 18 they can come to the court and apply for the order.
29 She went on to note that in a criminal trial the criminal record of the accused person cannot be shown to the court, but a court hearing an application for a violence restraining order could look at the record and at other documents bearing upon situations of harm.
30 Put shortly, the learned magistrate was endeavouring to explain to Mr Isenhood as an unrepresented litigant that although he was not formally on trial in respect of the alleged assault (because these were civil proceedings subject to special statutory provisions prescribing the matters to be considered by the court), the nature of Mr Isenhood's conduct had to be carefully evaluated. Conduct in the nature of an assault in the presence
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- of the child sought to be protected was likely to weigh heavily against him.
31 Counsel for Mr Williams then adduced in evidence Mr Isenhood's criminal record and certain documents described as 'incident reports'. These were contained on the Department of Community Protection file and were said to be admissible pursuant to s 79C of the Evidence Act 1906 (WA) whereby business records and certain documents can be admitted, notwithstanding the rules against hearsay or secondary evidence of the contents of a document. The documents indicated that Mr Isenhood had some previous convictions and four children from a previous relationship had been removed from his care.
The Isenhood evidence
32 Mr Isenhood gave evidence on his own behalf concerning the nature of his relationship with Melanie. As to the crucial incident on 7 August he said that when they turned up in the car Mr Williams came charging out of the house, and made some provocative remarks. Melanie wanted to get the child P out of the car but Mr Williams would not allow that to happen. Thus, Mr Isenhood 'sort of got in the way of [P] and Paul so he couldn't get her out of the car, and that's when he was pushing me out of the way. He had his arm - I believe he had his arm on me like that, across my chest and he was just pushing me back …'.
33 Mr Isenhood went on to say that Mr Williams was pushing him and then 'a little assault took place'; that is, 'he had his arm on me and I hit him'. He believed he hit him on the face whereupon Mr Williams fell to the ground. After that Melanie got P and Mr Williams took the child inside. Mr Isenhood and Melanie got back in the car and left.
34 In the course of his evidence Mr Isenhood said that the four children from his previous relationship were still in the care of the Department as their mother was not fit to take care of them. He went on to say that he would like to resume his relationship with Melanie. He said that Melanie's daughter P was 'not in harm' although she was 'exposed to the rough treatment that me and Paul had that day'.
35 Under cross-examination Mr Isenhood agreed that Mr Williams was heading towards the left hand side of the car where P was restrained in the baby seat. He denied that he got out of the front passenger seat with a view to restraining Mr Williams from getting his daughter out of the car, and he denied that he was trying to get in the way. He did not give a clear explanation as to why exactly he had got out of the car at that moment.
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36 Under further cross-examination he agreed that he was a drug user at one stage of his life. He was referred to a previous altercation involving his father and brother and acknowledged that he had done an anger management course.
37 Mr Isenhood was taken through his record. He agreed that on 27 October 2006 he was convicted for aggravated assault occasioning bodily harm and was fined $3,000. This was an assault on his previous female partner. He agreed that on 16 September 2005 he was convicted for breaching a violence restraining order involving his former partner. He agreed that he had a conviction for stealing on 27 March 2003, a prior conviction for fraud, and a conviction of giving a false name and address to the police. He had a conviction for aggravated burglary on 2 April 2002. He had spent time in prison in Western Australia and in New South Wales.
38 Mr Isenhood acknowledged that as recently as September 2007 the Department for Community Protection had conveyed to him that they had concerns about his being an ongoing risk to children, although those concerns were referable to his past relationship not to his current relationship. He had told them that the problems on the domestic violence side of things were mostly the fault of his previous partner. He was unhappy about the assessment the Case Officer was going to make because that was based on his past conduct.
39 During the course of these exchanges Mr Isenhood said that the Department was in error in referring to five children of the previous relationship and in asserting that he did not want to have anything to do with the children. He did not agree with the Department's assessment that he was someone who was a risk to children.
40 Mr Isenhood was then invited to call witnesses in support of his case.
Mr Isenhood's witnesses
41 Mr Isenhood began by calling as a witness his father, Peter Isenhood. It appears from the transcript that Mr Isenhood's objective was to lead evidence about his previous relationship with his own children. To that end, Mr Isenhood Snr gave evidence to the effect that he had never seen his son cause any harm to any child.
42 The witness then commenced to express an opinion about the capacity of his son as a parent. Objection was taken to the expression of an opinion by a witness without expert qualifications. This led to further
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- exchanges, from which it emerged that the witness had never seen Mr Isenhood with the child P.
43 It was put to Mr Isenhood by the learned magistrate at this stage that the witness could not really offer useful evidence in a case which was principally concerned with the question of whether Mr Isenhood had been involved in an altercation in the presence of the child P and the question of his relationship with that child generally. At that stage Mr Isenhood indicated that he would ask no further questions of his father, and there was no request for cross-examination.
44 Mr Isenhood then presented three witnesses who were neighbours of Melanie. They gave evidence to the effect that over a number of months they had seen Mr Isenhood in the company of Melanie and her daughter P and were of the view that he had a proper and benign relationship with the little girl. Under cross-examination they acknowledged that they were not familiar with his background and did not know that he had a criminal record.
45 Melanie gave evidence to the effect that, in her view, her relationship with Mr Isenhood did not give rise to any risk to her daughter P as he was very supportive. She confirmed also that she was present on 7 August 2007 at Mr Williams' house when she drove up his driveway in order to drop off her daughter P. She said that Mr Williams came racing down to the back door of the car and by the time she got around to the other side of the car Mr Williams had the door open to get his daughter from the back seat.
46 She said that words were then exchanged between the two men and she was telling Mr Williams to get away from the car as she was the one who always got P out of the car. At that stage P was just sitting in her seat.
47 Melanie said that Mr Williams pushed Mr Isenhood back against a pillar but the latter regained his stance. Mr Williams had his arm across Mr Isenhood's chest and then the latter punched Mr Williams in the side of the head. This caused him to fall down. In the meantime, she got P out of her car seat. Once Mr Williams had stood up and regained his composure she handed P to him and he walked off into the house. She and Mr Isenhood got back into the car and drove home. She agreed that P could see directly what was going on.
48 Counsel for Mr Williams cross-examined Melanie at some length about the nature of her relationship with Mr Isenhood and the events of
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- 7 August. She agreed that she did not hear Mr Williams threaten Mr Isenhood on the day in question but she was of the view that Mr Williams had provoked him and 'if someone is provoked they can take what measures they deem fit to protect themselves'.
49 The parties were then invited to present closing addresses. Counsel for Mr Williams said that in seeking a violence restraining order on behalf of the child her client relied principally upon the fact that there was an assault committed in front of the child. She relied also upon Mr Isenhood's past conduct including that he had committed a serious criminal offence as recently as 9 May 2007.
50 Mr Isenhood conceded that he did have a 'bit of a temper' when he was provoked by people but pointed out that the question of his liability with respect to the altercation (if any) had yet to be determined in the courts. He submitted that there was no risk to Melanie or P or any likelihood of serious trouble again. His relationship with Melanie and her daughter had been adversely affected by the interim order made previously which ought not to have been made, and should not be confirmed.
Reasons for decision
51 The learned magistrate handed down her ruling immediately following the closing addresses. She noted that she was dealing with an application made by Mr Williams on behalf of his daughter P, and that there was no issue that he was entitled to make such an application. She noted that it was not a criminal proceeding with the result that disputed evidentiary issues had to be resolved upon the balance of probabilities in accordance with the civil standard of proof.
52 Her Honour referred to s 12 of the Restraining Orders Act and the matters that must be considered in determining whether to make an order and in settling the terms of the order.
53 In her Honour's view it was clear that an incident had occurred in the presence of the two-year-old P. This was apparent from the DVD film footage. It was apparent that Melanie was screaming quite loudly in the incident although it was difficult to determine what the two men were saying to each other. She had no doubt that the child had seen and heard what occurred.
54 Her Honour went on to say that she had to take into account other current legal proceedings involving the child as the person seeking to be
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- protected, being the current Family Law Court proceedings. She said that on the evidence before her it was clear that the children from Mr Isenhood's former relationship were in the care of the Department of Community Protection because of neglect and because of having been exposed to acts of family and domestic violence. This was because of both the mother and father's drug addiction and use of alcohol. She gave weight to a passage in a departmental report to the effect that Mr Isenhood presented as being defensive and lacking any insight into why his behaviour was at any risk to children as he blamed his previous partner and children for his behaviour.
55 Her Honour went on to refer to the evidence of the neighbours. It was clear from what had been said by them and by Melanie that Melanie would resume her relationship with Mr Isenhood immediately if she could. In her Honour's view, this meant that P was at risk because there was the potential that events adverse to the child's welfare might occur.
56 Her Honour found that an incident occurred on 7 August 2007 in which Mr Isenhood punched Mr Williams in the presence of the child. She would not make any 'criminal findings with respect of that'. However, she was of the view that P was at risk not only potentially but also in reality.
57 The learned magistrate then said that she was going to confirm the restraint order with respect to P. However, in doing so, she was conscious that if the Family Law Court made a different finding the orders of that court would have an overriding effect because the Family Law Court had exclusive jurisdiction with respect to children. She was of the view that the violence restraining order should be in place until P was 18 years of age because such an order was subject to the Family Law Court.
Notice of appeal
58 On 19 December 2007 Mr Isenhood lodged an appeal notice in the form and in the manner allowed for by r 65 of the Criminal Procedure Rules 2005 and pt 2 of the Criminal Appeals Act 2004. In due course I will return to the question of whether it was open to him to challenge the magistrate's ruling in this way.
59 By the appeal notice he applied to the Supreme Court for leave to appeal against the order made on 21 November 2007; that is, a final violence restraining order until P is 18-years-old. The grounds of appeal were as follows:
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- 1. The magistrate imposed a sentence that was excessive.
2. The magistrate wrongly stopped evidence being given by a witness that was relevant to my defence.
3. The magistrate took into account a report from the Department of Child Protection that was incorrect.
4. Fresh evidence has become available.
5. The magistrate decided I was guilty of an offence which does not go to court until March 2008.
6. My lawyer was not able to be present due to hospitalisation therefore I was not given the opportunity to be properly represented.
60 On 17 January 2008 Blaxell J made various ex parte orders concerning the hearing of the appeal including that the application for leave to appeal and the appeal were to be listed and heard together. Further, within 21 days the appellant was to lodge and serve an affidavit in support of the proposed grounds 4 and 6.
61 As a consequence of these orders Mr Isenhood filed an affidavit sworn 6 February 2008 which reads as follows:
1. I am the appellant in these proceedings.
2. I make this affidavit in support of the appeal notice SJA 1100 of 2007.
3. In January 2008 Mr Williams admitted to other parties that he provoked me and set me up for the incident in August 2007. He also admitted that he and his lawyers obtained copies of subpoenaed documents from the Family Law Courts when there was no order for their reproduction.
4. Mr Williams has declared under oath two different versions of the August 2007 incident.
5. One week prior to the final hearing my lawyer advised me he was going into hospital and was not available, therefore leaving insufficient time to obtain another lawyer.
62 The matter was then listed for hearing before me. In accordance with the orders made by Blaxell J the respondent, by his legal advisors, filed and served written submissions. Mr Isenhood failed to comply with the direction concerning written submissions but as no objection was taken to this by the opposing party I was prepared to overlook
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- Mr Isenhood's default in that regard, having regard to the fact that he was unrepresented.
63 The materials before the court at the hearing of the matter included the various exhibits received in evidence by the magistrate at the hearing on 21 November 2007. In addition a copy of reasons for decision handed down by the Family Court of Western Australia on 28 March 2008 was before the court. It emerged that as a consequence of orders made by the Family Court on 28 March 2008 Melanie was restrained by injunction from bringing her daughter P within 100 metres of Michael Isenhood or permitting Michael Isenhood to have any contact with P.
64 The order just mentioned formed part of a series of orders described as orders made on an interim basis only. It was open to both the mother and the father of the child to have liberty to apply to the Family Law Court in the event of any breach by the other parent of the injunctions contained in the orders.
Jurisdiction
65 At an early stage of the hearing before me an issue arose as to whether the proceedings had been properly commenced and as to whether the Supreme Court had jurisdiction to deal with the matter.
66 I said that I would reserve my decision concerning that issue. However, for the time being, as both parties were before me and had come prepared to argue their respective cases, I would permit the parties to present their arguments as if the proceedings had been validly instituted.
67 It will now be useful to look at various statutory provisions and legal principles bearing upon the procedural issues and the conduct of appeals under the Criminal Appeals Act.
Statutory provisions and legal principles
68 In Porteous v McNamara [1999] WASCA 123 Wheeler J noted that the restraining orders legislation was introduced primarily to deal with what is known as domestic violence. In cases of that kind, the police were reluctant to act because, amongst other reasons, they took the view that proof to the criminal standard was unlikely. It was thought that an order obtained on the civil standard of proof restricting certain types of conduct for the future would provide some protection.
69 I note in passing that in Butler v Bennett [2007] WADC 107 Bowden DCJ has provided a very useful review of the decided cases
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- bearing upon the scheme of the legislation and the principles to be applied in dealing with applications for relief.
70 When the Restraining Orders Act was enacted in 1997 provision was made in s 4 of the Act for an application under s 25 for a violence restraining order to be made by a Court of Petty Sessions. At that time the operative point of reference was the Justices Act 1902, being the legislation governing proceedings in a Court of Petty Sessions.
71 Section 65(2) of the Restraining Orders Act then provided that an appeal was to be made to the Supreme Court in accordance with pt VIII of the Justices Act. The relevant provisions of the Justices Act provided for an appeal by leave to a judge of the Supreme Court by any person aggrieved by a decision of the Court of Petty Sessions.
72 Some years later the duties and powers of magistrates in Western Australia became the subject of significant legislative changes.
73 Section 4 of the Magistrates Court Act 2004 (WA) provided that a court of record called the Magistrates Court of Western Australia was to be established. By s 6(1) a magistrate was to have the functions imposed or conferred on a magistrate by laws that apply in Western Australia including that Act and other written laws.
74 By s 9 the Magistrates Court of Western Australia has the jurisdiction conferred on it by the Act in question and by other written laws. Section 10 provides that the court's civil jurisdiction is set out in the Magistrates Court (Civil Proceedings) Act 2004 (WA).
75 The court's criminal jurisdiction is set out in s 11 of the Magistrates Court Act. The court has jurisdiction, inter alia, to hear and determine a charge of a simple offence or an offence that can be dealt with summarily. By s 11(2)(e) the court has jurisdiction to deal with any case that, under a written law, is to be dealt with by a court of summary jurisdiction. In exercising its criminal jurisdiction, the court is said to be a court of summary jurisdiction. The jurisdiction is to be exercised subject to the Criminal Code (WA) and the Criminal Procedure Act 2004.
76 The Criminal Procedure Act 2004 deals in pt 3 with prosecutions in courts of summary jurisdiction and in pt 4 with prosecutions in superior courts. Part 5 contains provisions applicable to any prosecution.
77 Appeals from courts of summary jurisdiction are governed by the provisions of pt 2 of the Criminal Appeals Act 2004. Section 6 of the Act
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- provides that unless the contrary intention appears a 'decision' of a court of summary jurisdiction means a judgment entered under certain specified provisions of the Criminal Procedure Act; a decision ordering a permanent stay of a prosecution; a decision to convict or acquit an accused of a charge; a sentence imposed or order made as a result of a conviction or acquittal; the refusal to make an order that might be made as a result of conviction or acquittal, a decision as to costs.
78 I note in passing that the definition of 'decision' does not include any decision or ruling or order made pursuant to provisions of the Restraining Orders Act.
79 Section 7 of the Criminal Appeals Act provides that a person who is aggrieved by a 'decision' by a court of summary jurisdiction may appeal to the Supreme Court against the decision. By s 7(4) except as provided by this section, no appeal lies against a decision of a court of summary jurisdiction.
80 Section 9 of the Criminal Appeals Act provides that the leave of the Supreme Court is required for each ground of appeal. Leave is not to be given unless the Supreme Court is satisfied that the ground has a reasonable prospect of succeeding. The Criminal Procedure Rules 2005 contain various provisions bearing upon appeals from courts of summary jurisdiction including r 65 as to the institution of an appeal.
81 I pause here to observe (as indicated in earlier discussion) that the matter before me was purportedly instituted as an appeal pursuant to r 65 and pt 2 of the Criminal Appeals Act. This step was taken, it seems, in a belief that it was to be an appeal against the ruling of a magistrate sitting as a court of summary jurisdiction.
82 The applicant for leave to appeal, Michael Isenhood, is an unrepresented litigant (as I have indicated) and it may be that he was not fully informed as to the effect of the recent legislative changes. The changes in question have resulted in the repeal of those provisions of the Restraining Orders Act which contemplated that a violence restraining order would be made by a Court of Petty Sessions. A new statutory regime has been created governing the powers and duties of magistrates.
83 Section 7A of the Restraining Orders Act provides that an order imposing restraints may be made 'under this Act' by the Magistrates Court hearing an application under s 25 of the Act. Section 25(3) provides that an application for a violence restraining order made in person is to be made in the prescribed form to the Children's Court (if the respondent is a
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- child) or otherwise to the Magistrates Court. As I mentioned earlier, s 72 of the Act provides that the practices and procedures to be followed are those applying in the Magistrates Court under the Magistrates Court (Civil Proceedings) Act.
84 Importantly, s 64(1) of the Restraining Orders Act provides that a person aggrieved by the decision of a court in relation to a final order may appeal against that decision in accordance with this section. Section 64(2) provides specifically that if the decision was made by the Magistrates Court, the appeal is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) unless subs (6a(a)) applies (that is; unless the decision was made by a court hearing proceedings under Family Court Act 1997 or the Family Law Act 1975).
85 It emerges from pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 that appeals from the Magistrates Court in the exercise of its civil jurisdiction are to be taken to the District Court.
86 It was against this background that Bowden DCJ provided an accurate summary of the present position concerning appeals in Butler v Bennett in these terms:
2 Prior to the amendments to the Restraining Orders Act, operative from 1 May 2005 appeals from a Magistrate's decision to grant or refuse a restraining order were heard by the Supreme Court. Effective from 1 May 2005 they are now dealt with by the District Court.
3 Pursuant to s 64(1)(2) of the Restraining Orders Act a person aggrieved by the decision of the Magistrate may appeal against that decision, such an appeal is to be in accordance with Part VII of the Magistrates Court (Civil Proceedings) Act2004, that Act provides the appeal must be commenced within 21 days after the date of judgment (Magistrates Court (Civil Proceedings) Act 2004 s 40(3)) and be conducted in accordance with the rules made by the District Court (s 40(3)(b)). The appeal must be decided on the material and evidence that is before the Magistrates Court (s 40(4)). Further, the District Court Rules provide that an appeal must be by way of reconsideration of the evidence that was before the primary court, unless the parties otherwise agree (R 50(1)).
87 It emerges, then, that in the circumstances of the present case it was not in fact open to Mr Isenhood as the party seeking to appeal against the magistrate's ruling to pursue an appeal by lodging an appeal notice pursuant to r 65 of the Criminal Procedure Rules and provisions of the Criminal Appeals Act. The ruling in question does not fall within the
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- definition of a 'decision' of a court of summary jurisdiction set out in s 6 of the Criminal Appeals Act, with the result that a right of appeal is not available to him under s 7 of the Criminal Appeals Act (because he is not a person aggrieved by a 'decision' of a court of summary jurisdiction). Further, various provisions of the Restraining Orders Act and related legislation make it clear that an appeal from a ruling made by a magistrate exercising a civil jurisdiction of the Magistrates Court under the Restraining Orders Act is to be taken to the District Court.
88 Accordingly, as to the jurisdictional issue, consistently with the reasoning of Bowden DCJ in Butler v Bennett, I am of the view that as a judge of the Supreme Court I do not have jurisdiction to deal with the matter brought before me because the purported appeal has not been instituted in the manner prescribed by the relevant legislation.
89 I note in passing that in Lydon v Lydon [2007] WADC 122, being a decision handed down by Bowden DCJ shortly after Butler v Bennett, the learned judge described the jurisdictional position in the same terms; that is, that since 1 May 2005 appeals concerning the grant or refusal of a restraining order are dealt with by the District Court. When that matter was later taken on appeal, the Court of Appeal raised no objection to his Honour's summary. The matter was not fully explored but the Court of Appeal's decision can be regarded as a tacit approval of the proposition that the jurisdiction to deal with appeals concerning restraining orders is vested in the District Court: Lydon v Lydon [2008] WASCA 8.
Further observations
90 It follows from my review of the relevant provisions that I do not have jurisdiction in this matter. In other words, I do not have power to deal with the matters raised by Mr Isenhood's appeal notice. In my view, if the appellant, Michael Isenhood, wishes to pursue an appeal against the ruling of the learned magistrate it will be necessary for him to institute an appeal to the District Court in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004.
91 However, I am conscious, as I indicated in earlier discussion, that the issues raised by the grounds of appeal were fully argued at the hearing before me, having regard to the provisions of the Restraining Orders Act. A further question therefore arises as to whether I should express any views about the contentions of the parties.
92 In circumstances where I have held that I do not have jurisdiction I would not normally be inclined to do so. The matter should have been
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- brought before the District Court. It is true that the Supreme Court is a superior court of unlimited jurisdiction and has power to transfer cases to a lower court in certain circumstances, such as those described in s 17 of the Supreme Court Act 1935 (WA). However, it is clear from s 20 of the same Act that as to its appellate work the court's jurisdiction is to hear and determine any matter that the court or a judge is empowered by a written law to hear and determine. When a power is expressly conferred on the court subject to a condition, a judge cannot, by relying on inherent powers, escape from the necessity of ensuring that the condition has been fulfilled: Doyle v The Commonwealth (1985) 156 CLR 510 at 518. In the absence of a dispensing power, the explicit rule cannot be disregarded: Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 272 at 385.
93 However, I am conscious also that the District Court of Western Australia Act 1969 (WA) contains certain provisions dealing with the remission of actions or matters to the Supreme Court. Section 76 of the Act provides that a judge of the Supreme Court may, upon the application of any of the parties to an action or matter brought in the District Court, if he thinks fit, order that the action or matter be tried or heard in the Supreme Court. By s 77, where it appears to a District Court judge that any action or matter brought before the court ought from its nature be determined by the Supreme Court, he may make an order remitting the action or matter to the Supreme Court.
94 In Trimball v Piggott (1995) 14 WAR 329 Malcolm CJ observed at 331 that the scheme of the legislation is to avoid proceedings being brought on and dismissed in one court and then having to be brought again in another court with a consequence to the costs involved by following that procedure. He noted that an order under s 76 may only be made upon the application of any of the parties but an order under s 77 contemplates that a District Court judge may act of his own motion.
95 It might be argued, notwithstanding the views I have expressed, that as a superior court the Supreme Court had or should have assumed jurisdiction of the matter before me. Alternatively, it might be said that in a case of an unrepresented litigant some orders or directions should have been made transferring the case to the District Court which allowed for the appellant's appeal notice to be characterised as the institution of an appeal to the District Court, in the expectation that the matter might then have been remitted to the Supreme Court.
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96 I am therefore of the view, for the sake of completeness, and in case arguments of this kind be taken further, that I should address the various grounds of appeal.
Relevant principles
97 In earlier discussion I referred to the valuable review of the statutory provisions and decided cases undertaken by Bowden DCJ in Butler v Bennett. For present purposes, it will be sufficient to draw out of the review one or two points of particular relevance to the issues before me and to refer also to some additional provisions of the Restraining Orders Act.
98 Bowden DCJ noted that the Appeal Court's powers are contained in s 43 of the Magistrates Court (Civil Proceedings) Act. The appeal court has power to confirm, vary or set aside all or a part of the lower court's judgment or to give any judgment or make any order that the Magistrates Court could have given or made. It is the clear intention of the relevant provisions to limit the nature of the appeal which lies to the District Court to that of a rehearing with the result that the appellate court is to act on the evidence presented in the court below and must be satisfied that some error has been made in the exercise of the magistrate's decision.
99 It emerges also from the review that the scheme of the Restraining Orders Act is designed as a protective mechanism to enable the court to intervene before violence actually occurs and to prevent that or the fear of violence being reasonably engendered. However, a violence restraining order is not to be made lightly, and regard must be had to the legal rights of the parties.
100 I noted in earlier discussion that, by s 63C of the Act, a court may make or vary a restraining order even though the respondent has been charged with, or convicted of, an offence arising out of the same conduct as that out of which the application for the order arose.
101 By s 63C(2) the making or varying of a restraining order does not, except as provided by the Act, affect the civil or criminal liability of a person bound by the order in respect of the same conduct as that out of which the application for the order arose.
102 These provisions suggest that a magistrate dealing with an appeal for a restraining order according to civil procedures is not bound by the requirements of the criminal law in determining whether an order should
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- be made. This is borne out by the reasoning of the Court of Appeal in Lydon's case. Pullin JA and Le Miere AJA made these observations:
Section 11A of the Act provides that a court may make a violence restraining order if it is satisfied that, amongst other things, the respondent has committed an act of abuse. Act of abuse is defined by s 3 to mean 'an act of family and domestic violence or an act of personal violence'. Act of family and domestic violence is defined in s 6(1) of the Act to mean one of the acts specified in the six following paragraphs that a person commits against another person with whom he or she is in a family and domestic relationship. Paragraph (a) is the act of 'assaulting or causing personal injury to the person'.
Bowden DCJ observed that the appellant contended that because of the reference to 'assault' in s 6 of the Act, that in considering whether there has been an assault within the meaning of the Code and therefore within s 6 of the Act, one would have to consider the defence of provocation. Bowden DCJ said that that was misconceived because the basis upon which the magistrate found an act of abuse committed by the appellant towards each of the respondents was that he was emotionally abusive towards them. Bowden DCJ said that s 246 of the Code only applies to offences of which assault is an element and could not apply and does not apply to 'emotional abuse'. Bowden DCJ went on to observe that the actions of the respondents in the appeal were not irrelevant as to whether or not a restraining order ought to be granted. Their conduct is a matter to be taken into account.
Bowden DCJ made no error in dealing with the ground of appeal before him. This ground of appeal has not been made out. [32] - [34]
Ground 2
104 The second ground of appeal was that the magistrate wrongly stopped evidence being given by a witness that was relevant to Michael Isenhood's defence.
105 This ground of appeal concerns the evidence of Mr Isenhood's father, Peter Isenhood. It will be recalled that Mr Isenhood Snr gave evidence to the effect that he had never seen his son cause any harm to any child. However, after various exchanges by those at the hearing, he was precluded from expressing an opinion about his son's capacity as a parent and was unable to say anything about the altercation on 7 August or the nature of his son's relationship with the child P. It was against that
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- background that Mr Isenhood indicated that he would ask no further questions of his father.
106 It emerges from earlier discussion that at the hearing the learned magistrate was principally concerned with the encounters that had taken place on 4 and 7 August and the effect of the encounters upon the child. These were the matters raised by the application for an order and were matters of particular importance having regard to the considerations described in s 12 of the Restraining Orders Act. Accordingly, it is not surprising that her Honour gave particular attention to evidence bearing upon the 7 August incident and the question of whether similar incidents might occur that would be prejudicial to the child's welfare.
107 Nonetheless, I accept that evidence bearing upon Mr Isenhood's character and the nature of his relationship with his own children was relevant and admissible. It was for that reason, as I have indicated, that his father was permitted to give some evidence to the effect that he had never seen his son cause any harm to any child. The question raised by the second ground of appeal is whether he was precluded from presenting further evidence to the same effect.
108 In my view, the learned magistrate acted correctly in upholding an objection to the expression of an opinion by Mr Isenhood Snr of the kind proposed and in ruling (in effect) that no attempt should be made to lead evidence from him about the altercation or the nature of his son's relationship with the child P because he had no first hand experience of those matters.
109 These rulings did not expressly amount to a determination that further evidence of any kind would not be received from Mr Isenhood's father. It might be argued that in the case of an unrepresented litigant the presiding magistrate might have explained to Mr Isenhood more clearly that her rulings were limited to specific issues. However, the fact remains that after the exchanges concerning the specific issues Mr Isenhood indicated that he would ask no further questions of his father. In these circumstances, I am not persuaded, as suggested by the second ground of appeal, that her Honour stopped evidence being given by a witness. Her Honour had received some evidence from the witness of a general kind and was entitled to assume that Mr Isenhood did not wish to proceed further with that aspect of the matter.
110 Accordingly, I am not prepared to hold that this ground of appeal has been made out.
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Ground 3
111 The third ground of appeal is that the magistrate took into account a report from the Department of Child Protection that was incorrect.
112 Under cross-examination, Mr Isenhood said that he did not agree with the conclusions reached by the Department in relation to a conversation he had on 3 October 2007. He put it to the court that he never said to them that he had five children and did not want anything to do with them 'so they made a mistake there'. To my mind, nothing turns upon the alleged error as to the number of the children because the nature of Mr Isenhood's relationship with the children previously in his care was fully canvassed during the course of the cross-examination and it cannot be said that the alleged mistake gave rise to an error that was perpetuated or proved to be influential. The learned magistrate noted that Mr Isenhood did not appeal the care and protection order in relation to his children.
113 The Department records were received in evidence without objection, and thus became admissible for all purposes including assertions which might otherwise have been characterised as hearsay. To my mind, having regard to the considerations mentioned in s 12 of the Act, the records were relevant to a live issue before the court; that is, the question of Mr Isenhood's previous relationship with small children and his capacity as a carer.
114 In her reasons for decision the learned magistrate found that the records were relevant. She noted that Mr Isenhood did not dispute that the four children from his previous relationship were in the care of the Department because of neglect, being exposed to acts of family and domestic violence referrable to drug and alcohol abuse by the parents, and Mr Isenhood lack personal insight into the circumstances leading to the Department's action.
115 Accordingly, I am not persuaded that the magistrate took into account a report that was incorrect in any essential respect. The report and the matters contained in it were relevant to an issue before the court and, having been received in evidence, the magistrate was entitled to give weight to the matters mentioned in the report. This ground of appeal fails.
Ground 4
116 The fourth ground of appeal is that fresh evidence has become available.
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117 This ground of appeal relates to the matters referred to in Mr Isenhood's affidavit sworn 6 February 2008, being the affidavit mentioned earlier. The assertions contained in the affidavit as to what Mr Williams is alleged to have said to certain other parties are hearsay assertions, and as such are inadmissible.
118 It follows that Mr Isenhood cannot succeed on this ground of appeal.
Ground 5
119 The fifth ground of appeal is that the magistrate decided that Mr Isenhood was guilty of an offence which did not go to court until March 2008.
120 It was common ground at the hearing before me that in March 2008 Mr Isenhood was acquitted of the assault charge arising out of the 7 August incident. However, as I noted in earlier discussion, the proceedings before the learned magistrate were civil proceedings (to be resolved according to the civil standard of proof). Moreover, it is clear from s 63C of the Restraining Orders Act and from what was said by the Court of Appeal in Lydon's case that the magistrate was not required to make a finding as to whether an assault had occurred having regard to the various considerations and defences dealt with by the Criminal Code (WA), being considerations of a kind often addressed by courts exercising criminal jurisdiction.
121 The learned magistrate was conscious of this when she correctly observed, in the course of her reasons for decision, that she was not sitting in the criminal jurisdiction. She did not need to make any findings beyond reasonable doubt and in relation to provocation or self-defence or any of those other issues, because they were issues raised in criminal trials and not in a civil trial (ts 106). She simply found that Mr Isenhood punched Mr Williams in the presence of the child and would not make any 'criminal findings with respect of that'.
122 However, she went on to find that P was at risk not only potentially but also in reality because of the nature of the confrontation that had occurred.
123 It follows from all of this that the learned magistrate did not, as suggested by this ground of appeal, decide that Mr Isenhood was guilty of an offence which had yet to be determined. She was making a finding of an entirely different kind, having regard to the considerations prescribed
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- by s 12 of the Restraining Orders Act. She did not err in proceeding in that manner. This ground of appeal fails.
Ground 6
124 The sixth ground of appeal is that Mr Isenhood's lawyer was not able to be present due to hospitalisation and therefore he was not given the opportunity to be properly represented.
125 The affidavit sworn by Mr Isenhood on 6 February 2008 bears upon this issue. It is said at par 5 of the affidavit that one week prior to the final hearing his lawyer advised him he was going into hospital and was not available, therefore leaving insufficient time to obtain another lawyer.
126 However, when one turns to the transcript of the hearing before the magistrate I notice (ts 49) that Mr Isenhood referred to certain other factors bearing upon the question of representation. He said that because his wallet was not 'full of hundreds' he could not afford lawyers, and that was why he was 'here today on my own'. He added that his last lawyer was going to let him pay the lawyer off but he pulled out and had to go to hospital yesterday. He did not have enough time to get another lawyer to hopefully let him pay off.
127 The transcript shows also that at the commencement of the hearing Mr Isenhood did not complain of the absence of representation or refer to the matters mentioned above. He did not apply for an adjournment. He confirmed that he was representing himself and was then provided with a lengthy explanation by the magistrate as to the nature of the matters in issue and how the hearing would be conducted.
128 It is important to understand, as appears from the decided cases, that the application for and obtaining of orders under the Restraining Orders Act is a form of proceedings which will often have to be conducted expeditiously, and this must be kept in mind by judicial officers in deciding how to proceed.
129 In the circumstances of the present case, I am not persuaded that an error of law was made in allowing the hearing to proceed, notwithstanding that Mr Isenhood was not represented. His lack of representation was not raised as an issue at the commencement of the hearing. There appeared to be a need to proceed expeditiously and Mr Isenhood, himself, appeared to be agreeable to that course. This ground fails.
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Ground 1
130 The first ground of appeal is that the magistrate imposed a sentence that was excessive.
131 Mr Isenhood's use of the word 'sentence' underlines the misconception dealt with earlier as to the nature of the proceedings. These were not criminal proceedings which might lead to the imposition of a penalty or 'sentence' but civil proceedings concerned with the grant or refusal of a protective order concerning a child thought to be at risk. However, at the hearing before me both parties in a pragmatic way recognised that Mr Isenhood was complaining about the terms of the final restraining order which was said to apply until the child P was 18 years of age.
132 I described the magistrate's reasoning in that regard in earlier discussion. I noted also that by s 13 of the Act a restraint may be imposed absolutely or in such terms as the court considers appropriate. By s 16(5) a final order remains in force for the period specified in the order or if no period is specified for a period of 2 years. Section 45 allows for variation of an order.
133 Having found that Mr Isenhood had punched Mr Williams in the course of an altercation taking place in the presence of the child, the magistrate was of the view that a restraining order should be made. It emerges from a review of the statutory provisions that she had a broad power as to the duration of any order made. To my mind, the existence of a facility to vary the terms of an order has a bearing upon the way in which the power is to be exercised.
134 The learned magistrate gave reasons for restraining Mr Isenhood until the child reached the age of 18 years. These included that the incident involving the punching of the child's father by Mr Isenhood had taken place and that the child was exposed to it. Mr Isenhood had an extensive criminal record and there was evidence of neglect in respect of the children previously in his care, accompanied by a lack of insight by Mr Isenhood into his behaviour in regard to that matter. Considerations of this kind were sufficient to justify the making of an order for a period exceeding the prescribed statutory period of 2 years. The magistrate was also entitled to take account of the fact that proceedings were current in the Family Court which might have an overriding effect on any order made.
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135 In these circumstances, I am not persuaded that the learned magistrate erred in making an order in the terms referred to earlier. This ground of appeal fails.
Summary
136 The jurisdiction to deal with appeals concerning the grant of refusal of violence restraining orders sought pursuant to the Restraining Orders Act is vested in the District Court. The purported appeal (SJA 1100/2007) brought by Michael Isenhood against Paul Williams on behalf of P pursuant to an appeal notice dated 19 December 2007 is dismissed on the grounds that the Supreme Court does not have jurisdiction to deal with the matter. Further, and in any event, the grounds of appeal relied upon by Mr Isenhood have not been made out. It follows from this finding that the matter ought not to be transferred to the District Court. If it be held that the Supreme Court has or ought to have assumed jurisdiction in respect of the appeal, the appropriate order is that the appeal be dismissed. I will hear from the parties as to whether any further orders or directions are required.
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