Pronk v Verhagen - [2019] WADC 70

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   PRONK -v- VERHAGEN [2019] WADC 70
CORAM:   GILLAN DCJ
HEARD:   13 MAY 2019
DELIVERED          :   22 MAY 2019
FILE NO/S:   APP 5 of 2019
BETWEEN:   NATHALIE CATHARINA BERNARDINA PRONK
Appellant
AND
TAMIL VERHAGEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE SHACKLETON
File Number             :   BS RO 242 of 2018

Catchwords:

Magistrates Court appeal - Restraining orders - Whether the magistrate erred in fact in finding that the respondent was not likely to commit an act of abuse against the appellant in the future

Legislation:

Restraining Orders Act 1997 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Badran v Public Transport Authority of Western Australia [2017] WASCA 28
Baron v Walsh [2014] WASCA 124
Brocklehurst v Walinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Myles v Carroll [2003] WASCA 160
Potschick v Bruce [2018] WADC 107
Rankilor v Circuit Travel Pty Ltd [2010] WADC 170
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550

GILLAN DCJ:

Background

The appellant, Ms Pronk, commenced an appeal from a decision of Magistrate Shackleton of 20 December 2018 to refuse to make a final family violence restraining order against the respondent, Mr Verhagen.
Ms Pronk and Mr Verhagen were previously in a de facto relationship. They have two children together, a boy who is 4 years old and a girl who is about 2 years old.
Each of the appellant and the respondent are from the Netherlands. They came to Australia roughly four years ago.
It is common ground they were in a family relationship within the meaning of that term in the Restraining Orders Act 1997 (WA) (the Act).
In early November 2018 the appellant applied for a restraining order against the respondent. An interim family violence restraining order (interim FVRO) was granted ex parte on 7 November 2018.
That order was personally served on the respondent on 14 November 2018.
A final family FVRO was sought against the respondent which application came on for hearing on 20 December 2018.
At the hearing the magistrate expressed his concerns with respect to the evidence given by both the applicant and the respondent[1] but, found that:
1.other than in respect to one act, he was not satisfied that there had been family violence[2] nor was he satisfied that family violence was likely to happen again; and
2.that there were not reasonable grounds to apprehend that any family violence would happen in the future.[3]
[1] ts 102.
[2] ts 105.
[3] ts 105.
His Honour concluded that the only act of family violence which the applicant might be said to have proven on the balance of probabilities was that the respondent had gone to a house that he had arranged…

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.

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Details

Case: [2019] WADC 70
Decision Date: 22 MAY 2019

CaseChat Overview and Summary

In the matter of Pronk v Verhagen, the appellant sought a restraining order against the respondent, alleging that the respondent had engaged in abusive conduct. The case was first heard in the Magistrates Court of Victoria, where the application was dismissed. The appellant then appealed to the County Court of Victoria, seeking to overturn the Magistrates Court's decision and have a restraining order issued against the respondent.

The primary legal issue before the court was whether the magistrate had erred in concluding that the respondent was not likely to commit acts of abuse against the appellant in the future. This involved assessing the evidence presented and determining whether the magistrate's findings were unreasonable or based on an error of fact.

The court considered the evidence presented and found that the magistrate's decision was not unreasonable. The court held that the magistrate had properly evaluated the evidence and that there was no basis to conclude that the magistrate had erred in fact. As such, the appeal was dismissed, and the decision of the Magistrates Court was upheld. The court emphasised the importance of ensuring that any decision to grant a restraining order is based on a clear assessment of the likelihood of future abusive conduct, and that such decisions must be carefully considered to protect the rights of both parties involved.

Orders