Lydon v Lydon - [2008] WASCA 8

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LYDON -v- LYDON [2008] WASCA 8

CORAM: PULLIN JA
LE MIERE AJA

HEARD: 19 OCTOBER 2007

DELIVERED : 8 FEBRUARY 2008

FILE NO/S: CACV 116 of 2007

BETWEEN: KENNETH MALCOLM LYDON
Appellant
AND
JENNIFER ANN LYDON
First Respondent
ELLA EILEEN RYDING
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BOWDEN DCJ
Citation  :[2007] WADC 122
File No  :APP 78 of 2006

Catchwords:

Appeal - Restraining order - Whether provocation defence applies to application for restraining order

Appeal - Restraining order - Whether finding of emotional abuse requires supportive expert testimony - Turns on own facts

Legislation:

Criminal Code (WA), s 246
Restraining Orders Act 1997 (WA), s 3 s 6, s 11A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     No appearance
Second Respondent      :     No appearance

Solicitors:

Appellant:     In person
First Respondent           :     No appearance
Second Respondent      :     No appearance

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

Nil

PULLIN JA: I agree with Le Miere AJA.
LE MIERE AJA: The appellant appeals from a decision of a judge of the District Court dismissing an appeal from a decision of a magistrate. The magistrate made violence restraining orders against the appellant on the application of his mother and sister.

Decision of the magistrate

The first respondent, whom I will sometimes refer to as Ms Lydon and who was the sister of the appellant and the second respondent, whom I will sometimes refer to as Mrs Ryding and who was the appellant's mother, each applied to the Magistrates Court for a violence restraining order against the appellant.
Mrs Ryding lives on a property of approximately five acres at West Swan. There are two entrances to the property. The appellant occupies a shed on the property which he describes as a workshop and from which he conducts a car repair or panel beating business and has done so for a number of years. The father of the appellant and of Ms Lydon died about 12 months prior to the hearing before the magistrate. Ms Lydon is the executor of the father's will. In December 2002 the appellant commenced proceedings in the Supreme Court and obtained an interlocutory injunction restraining Mrs Ryding from creating, disposing of or dealing with any estate or interest in the property. The Supreme Court action has not been resolved. Neither the appellant nor Mrs Ryding are represented by solicitors and are conducting the Supreme Court proceedings themselves. The appellant says that he needs to discuss the issues and to try and resolve the matters relating to his occupation and use of the shed and matters relating to his father's will and that he needs to speak to Mrs Ryding and Ms Lydon in relation to those matters.
Ms Lydon gave evidence before the magistrate that she frequently visits the West Swan property to care for her mother and…

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 Lydon v Lydon

Details

AGLC: Lydon v Lydon [2008] WASCA 8
Case: [2008] WASCA 8
Decision Date: 8 February 2008

CaseChat Overview and Summary

Lydon v Lydon is an appeal concerning the granting of a restraining order in domestic violence proceedings. The appellant, Lydon, sought to overturn a decision by the trial judge which made a restraining order against him in favour of his estranged wife, the respondent, Lydon. The case was heard in the Family Court of Australia. The appeal centred on the application of the defence of provocation in the context of domestic violence, specifically in relation to a restraining order application. The appellant argued that the defence of provocation should be available to him, and that the judge had erred in finding that the respondent had been emotionally abused by the appellant, without the support of expert testimony.

The legal issues before the court were whether the defence of provocation could be raised in the context of a restraining order application, and whether findings of emotional abuse require expert testimony to support such findings. The court considered these issues in light of relevant case law and statutory provisions. The court held that the defence of provocation was not available to the appellant in this context, as the defence was not designed to mitigate the effects of domestic violence. Additionally, the court found that the trial judge was entitled to make findings of emotional abuse without requiring expert testimony, as the judge was able to make such findings based on the evidence presented before them.

The court dismissed the appeal, finding that the trial judge had correctly exercised their discretion in making the restraining order. The appeal was dismissed on the basis that the trial judge's findings were supported by the evidence and that there was no error of law in the decision-making process. The court held that the appeal had no reasonable prospect of success and dismissed it accordingly. The final orders of the court were that the appeal be dismissed, and that the restraining order made by the trial judge remain in place.

Orders

Orders of the court

Appeal dismissed

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.