Re CR - [2024] VSC 197

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2024 0076

IN THE MATTER of the Bail Act 1977 (Vic)

- and -

IN THE MATTER of an application for bail by CR

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JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2024
DATE OF RULING:	19 April 2024
CASE MAY BE CITED AS:	Re CR
MEDIUM NEUTRAL CITATION:	[2024] VSC 197

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CRIMINAL LAW — Bail application — Charges of contravene a family violence intervention order, persistently contravene a family violence intervention order and stalking — Alleged victim is applicant’s estranged husband — Estranged husband and five children protected by the family violence intervention order — Children also subject to interim accommodation orders imposed by the Children’s Court — Alleged breaches of orders — Compelling reason test — Compelling reason conceded by respondent — Unacceptable risk alleged — Applicant a 44 year old woman with a very limited criminal history — First time in custody — Very unlikely to receive a custodial sentence if found guilty — Substantial bail guarantee — Family support — Poor mental health but undergoing treatment — Bail granted —Bail Act 1977 (Vic) ss 3AAA, 4E & 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Tovey	Balmer & Associates
For the Respondent	Ms C Foot	Victoria Police

HER HONOUR:

Introduction

CR[1] (‘the applicant’) applies for bail on five charges of contravene a family violence intervention order (‘FVIO’), one charge of persistently contravene a FVIO and one charge of stalking.
[1]The parties have been anonymised to protect the identity of the children.

Background

All the alleged offending concerns the applicant’s estranged husband, AK, and five of their six sons - JK (aged 15), GK (aged 13), IK (aged 10), BK (aged 8) and RK (aged 4) (‘the children’). The couple have one other son, DK (aged 12), who lives with his paternal grandparents. Based on the material I have seen, the family can fairly be described as dysfunctional and the Department of Families, Fairness and Housing - Child Protection (‘Child Protection’) are involved.

The applicant and AK separated in late 2022, but remained living under the same roof. The applicant was finally excluded from the Caulfield North family home (‘family home’) by an interim accommodation order made by the Children’s Court in June 2023, following breaches of earlier interim accommodation orders. As a result, the applicant has been living between family members and hotels. There are current interim accommodation orders in relation to all children. JK, GK, IK, BK and RK live with AK in the family home.

On 28 September 2023 an interim FVIO was made, naming AK and the children as protected family members and the applicant as the respondent. It was served on the applicant the same day. The interim FVIO prohibited the applicant from going within 200 metres of the family home, and prohibited contact between the applicant, IK, BK and RK, unless in accordance with a Child Protection order. Contact…

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 Re CR

Details

AGLC: Re CR [2024] VSC 197
Case: [2024] VSC 197
Decision Date: 19 April 2024

CaseChat Overview and Summary

Re CR was a bail application in the County Court of Victoria. The applicant, a 44 year old woman, was charged with contravening a family violence intervention order, persistently contravening a family violence intervention order, and stalking. The alleged victim is her estranged husband, who along with five children, is protected by the family violence intervention order. The children are also subject to interim accommodation orders imposed by the Children’s Court. The central legal issues were whether the compelling reason test had been met and whether the applicant presented an unacceptable risk.

The court was satisfied that the compelling reason test was met because the respondent conceded this point. The court then turned to the issue of unacceptable risk. The court found that there was an unacceptable risk that the applicant would fail to appear if released on bail, because she had a very limited criminal history and was facing the prospect of incarceration for the first time. Additionally, the applicant was very unlikely to receive a custodial sentence if found guilty, she had a substantial bail guarantee, and she had family support. The court also noted that while the applicant had poor mental health, she was undergoing treatment. The court was satisfied that the applicant did not present an unacceptable risk.

The court granted the applicant bail. The court ordered that the applicant remain on the same bail conditions as imposed by the Magistrates’ Court, which included residing at a specified address and not contacting the alleged victim. The court also ordered that the bail application be listed for mention in two weeks’ time to review the bail conditions.

Orders