Suter v Suter
[2003] WASCA 169
•1 AUGUST 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SUTER -v- SUTER [2003] WASCA 169
CORAM: WHEELER J
HEARD: 25 JULY 2003
DELIVERED : 1 AUGUST 2003
FILE NO/S: SJA 1042 of 2003
BETWEEN: ROBERT JOHN SUTER
Appellant
AND
ELIZABETH JOY MARSDEN SUTER
Respondent
Catchwords:
Violence Restraining Order - Appropriateness of grant - Turns on own facts
Legislation:
Restraining Orders Act 1977 (WA)
Spent Convictions Act 1988 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr H O Moser
Solicitors:
Appellant: In person
Respondent: Kaeser Kroon
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
House v R (1936) 55 CLR 499
McKenzie v Picken [2002] WASCA 113
WHEELER J: This is an appeal from an order of a Magistrate in March this year granting a final Violence Restraining Order with a two year duration in favour of the respondent against the appellant. The appellant and the respondent are husband and wife, and the order was granted approximately six months after their separation. There was a dispute before his Worship as to the precise date of the separation. One can readily see how such a dispute might arise, given that it appears that there had been occasions in the past on which the respondent had indicated that she was ending the relationship but following which the relationship had nevertheless continued. It is not, in my view, necessary to examine either those previous attempts at separation, or to ascertain the precise date of the parties' separation. The fact the parties had been separated for some months was a factor which the appellant submitted was of some importance, but it is clear on any view that the separation was, as I have noted, of at least six months duration by the date of the hearing before his Worship.
The parties are the parents of three children born in 1996, 1998 and 2001, who reside with the respondent. There are Family Court orders which permit the appellant to have reasonable contact with the children, which contact is apparently defined by orders which include orders for supervised hand over. As far as I can tell, the precise terms of those orders were not before his Worship. A copy of the relevant order was annexed to the respondent's submissions, but as it formed no part of the material before his Worship I disregard it. However, the general terms of the contact orders are discernable from the evidence of each of the parties.
It appears that each of the parties has qualifications in veterinary science. They appear to have lived separately to a significant degree even when the marriage was on foot. Although the precise reasons are not clear, it appears that for reasons connected with their work and with the maintenance of a country property, Mrs Suter lived at Dardanup, while the appellant lived in Perth, with them spending weekends, holidays and other spare time together.
Although there were differences between the parties in their evidence of course, there were a number of important matters which appeared broadly to be common ground. The appellant accepted, during the course of his evidence, that he had on a number of occasions during the currency of the marriage behaved in a violent way towards the respondent. It was common ground that as the result of an incident between the appellant and the respondent on 7 September 2002 the appellant was in February 2003 convicted of common assault, fined and ordered to pay costs. That conviction was the subject of spent conviction order. It was conceded by the appellant that in breach of the interim Violence Restraining Order he had sent a letter to the respondent about contact with the children, although it is to be noted that his evidence on that point was that since the respondent had communicated with him on the subject, he had formed the view that she was consenting to correspondence of that kind. It was also common ground that there was an incident on the road between Bunbury and Mandurah in which the appellant and the respondent coincidentally happened to be on the road in close proximity at the same time in their vehicles. It was the respondent's evidence that in effect the appellant had kept his vehicle in proximity to hers for some considerable distance although she was endeavouring to pull away, and that at some stage he had passed her and shortly thereafter the appellant braked sharply, causing the respondent to brake very suddenly and swerve in order to avoid an accident. The parties' children were in the appellant's car at the time. The respondent agrees that an incident involving a near accident occurred on that road, but his evidence was to the effect that he noticed at a set of traffic lights that the respondent was in the lane next to him, and he passed her without making eye contact, travelling faster than she was, although within the speed limit. It was his evidence that she then sped up and weaved through the traffic and effectively tailgated him for 15 kilometres; at a police radar station he slowed down suddenly so that he could stop and report the tailgating. He accepted that the respondent's vehicle had nearly collided with his as a result. It was disputed by the appellant that there was any incident occurring at Christmas time when the children were being handed from one parent to the other. In relation to that incident, it appears that his Worship accepted the evidence of the respondent that on that occasion the appellant became enraged and rushed towards her in such a manner that she became fearful and locked herself in the car. His Worship went on to observe that having done so the appellant simply drove off. It is conceded that that last remark was an error of fact, to the extent that it appears to convey that the husband (the appellant) was the first to leave. The evidence of the respondent was that she had driven off first, after locking herself in her car.
The appellant has six grounds of appeal, two having been added by leave at the hearing of this appeal. There is some overlap between them. For that reason, it is convenient to deal with them in categories, rather than seriatim.
Spent Conviction
As I understand it, there are two submissions concerning the way in which his Honour referred to the conviction for assault for which a spent conviction order was made. One is to the effect, as I understand it, that by reasons of ss 25 ‑ 27 inclusive of the Spent Convictions Act, his Worship should not have received evidence concerning the conviction, nor had regard to it. Those provisions are found within Div 2 of Pt III of the Spent Convictions Act. However, s 14 provides that:
"(1)Nothing in Division 4 affects ‑
(a)the procedure of, or evidence admissible in, proceedings of a court or tribunal that applies the laws of evidence ... ".
His Worship was sitting as such a court, and evidence of the assault conviction and of the spent conviction order were admissible in proceedings before him.
The appellant also referred to the criteria governing the making of a spent conviction order, and pointed out that the prerequisite to the making of such an order was a finding by the court making it that it was unlikely that the person would commit such an offence again. It was submitted that the court making the order had found that the appellant was unlikely to commit such an offence again and that the offence was of a trivial nature, and it was submitted that his Worship should therefore have placed no weight, or alternatively little weight, on that conviction. There are certain difficulties with this submission. As a matter of law, a finding of that kind on conviction for a criminal offence, presumably on the complaint of a complainant police officer, gives rise to no issue estoppel as between different parties in an application pursuant to the Restraining Orders Act. Put more simply, the finding of the earlier Magistrate in relation to the assault conviction binds both the appellant and whoever brought the prosecution to establish the appropriateness of a spent conviction order in that case, but does not preclude the respondent in different proceedings and for a different purpose, from attempting to place a different light upon the offence. In any event, leaving aside technical questions of issue estoppel, the enquiry where a violence restraining order is contemplated encompasses a much broader range of matters than those dealt with in relation to the question of whether the making of a spent conviction order is appropriate. It may well be, in relation to an application for a violence restraining order, that even an offence of a relatively trivial nature may assume significance; it may also be that, against the background of the evidence as to conduct generally which is admissible in relation to a violence restraining order but would not generally be admissible on prosecution for an assault, that a different light is shed upon the question of whether a person is likely to offend either in a similar or a different matter in future.
In my view, it was open to his Worship to have regard to the spent conviction as a matter of law. It was for him to place such weight as he considered appropriate upon it against the background of the other evidence. As to the circumstances of the offence, it is plain from his Worship's reasons that he considered the evidence of the parties as to those circumstances and made his own findings, which were broadly adverse to the appellant, which led him to form the view that that incident was of significance.
The fact of the separation
Two of the grounds of appeal deal with the fact of the separation and the appropriateness of the making of an order against that background. It is submitted that, given that there had been no incidence of violence since 7 September and, on the appellant's submission, no behaviour by him since the making of the interim order which could reasonably be expected to cause the respondent fear of personal violence, there was therefore no need for the making of the final order. It was further submitted that there was no or insufficient evidence before his Worship suggesting that there would be any reason for concern that such incidents might occur in the future and that by virtue of the fact of the separation his Worship could, on the contrary, be satisfied that it was unlikely that the occasion for behaviour by the appellant which would justify a restraint, would occur.
His Worship had regard to a number of factors in forming the view that it was necessary to make an order of the kind sought. He referred to the fact that, as conceded by the appellant, there had been violence in the relationship in the past. He referred to the conviction in relation to the incident of 7 September, and the facts of that incident as he found them to be. His Worship also plainly preferred the evidence of the respondent that there had been an incident on the previous Christmas Day when the appellant had behaved in a manner which could, at the least, be regarded as threatening. In relation to the incident on the road to Mandurah, his Worship noted that on the appellant's own account his conduct in braking suddenly put at risk not only his own family but other road users. The appellant points out that whatever offence may have been committed by him on that occasion, if any, it was not a "violent personal offence" as defined in the Restraining Orders Act. That of course is true, but it was open to his Worship to regard it as a further matter tending to suggest that the appellant had acted, and might continue to act, impulsively in disregard of the respondent's personal safety. His Worship also referred to some forwarding of mail, which he regarded as in part technical and trivial but as also evidencing a tendency to disregard restraints in relation to his wife.
His Worship clearly considered, as it was open to him to do, that the past conduct of the appellant afforded a reasonable predictor of future conduct. As to the fact and significance of the separation, his Worship noted that the relationship between the parties was not at an end. He noted that there was clearly a need for further dealings with the parties, apparently in relation to the contact with the children, and he also noted the absence of any suggestion that all issues relating to the property of the marriage had been settled between the parties. In my view, there was ample evidence before his Worship from which an inference could be drawn that the parties would continue, by reason of the need to resolve issues arising from the marriage and from the separation, to deal with each other in situations which the appellant might find stressful. For example, I note that it was put to the appellant in cross‑examination that the respondent had not been trying to be obstructionist in relation to seeing the children, but rather that she had agreed to orders being made. His response was: "That's not my perspective". It is clear from the letter which he wrote in relation to contact with the children that the scheduling of such contact had caused some difficulty in the past, which might well lead to an inference that such difficulties would persist. His Worship, in his reasons, noted that "It's not beyond the realms of possibility that the parties may continue to have to engage in stressful discussions as regards the property of the marriage". The appellant points to the reference to possibility as speculation on his Worship's part. In my view his Worship was expressing his findings in an understated way, but having regard to the evidence before him, and having regard to the usual procedures for dealing with property of a marriage which requires negotiation for settlement or litigation, it was plainly open to his Worship to draw and inference that there would in all probability at some time in the future be such discussions which might well be stressful for the appellant. Having regard to all those matters, his Worship considered that there was a "compelling case" and referred to the "need" of the respondent to be protected by a restraining order. It is true that, as the appellant points out, his Worship nowhere expressed himself in terms of the Act, that the granting of violence restraining order was "appropriate in the circumstances", but in my view a fair reading of his Worship's reasons makes it clear that he was so satisfied for the reasons which he gave.
Error fact
It is conceded on both sides that his Worship made an error of fact in relation to the Christmas Day incident in concluding that the appellant drove away from the scene first. However, in my view, nothing turns on that error of fact. If anything, his Worship's finding that the appellant voluntarily left the scene is rather more favourable to the appellant than otherwise. It is capable of carrying the inference that the appellant briefly behaved in a threatening manner but then voluntarily desisted and left, whereas the respondent's version of events tends to suggest that there was no further opportunity for the appellant to behave in a threatening manner.
Hearsay evidence
It is submitted that his Worship erred in admitting evidence given by the respondent that the appellant had told her that he had been violent to a former wife. During the course of argument on the appeal, I accepted that, if such evidence had been given for the purpose of establishing its truth, that is, if it had been given in order to establish that the appellant had been violent to a former wife, the admission of the evidence was in error. The use made of that evidence by his Worship appears to have been twofold. On p 17 of the appeal book he refers to confirmation, apparently recently received by the respondent as to the appellant's conduct in the former marriage, as a factor tending to suggest that the fear which she expressed was "genuine and sincere". The question of the genuineness of the respondent's fear was not a central issue which his Worship had to decide. Section 11 of the Restraining Orders Act requires the making of a prediction as to the future behaviour of a respondent to an application, which finding rests upon the satisfaction of the court, not upon any subjective fear of the applicant for the order and therefore assists in determining the issues which do arise under s 11 of the Restraining Orders Act. In my view, at that passage at p 17, his Worship was looking not to the question of whether such violent conduct had occurred in the previous marriage, but rather to the respondent's state of mind. Information which she had received, accurate or not, would be relevant and admissible for that purpose.
However, I note on p 16 of the appeal book that his Worship refers to evidence of the appellant "indicating that not only was this particular relationship peppered and punctuated by violence at his hands, but that his other earlier marriage was also peppered and the subject of violence precipitated at his hands upon his then wife". It is the case that the appellant, during the course of his evidence, gave evidence that he had informed the respondent that he had been violent to his previous wife during the currency of the earlier marriage. He did not, to put it accurately, actually concede that he had behaved in such a manner; rather, his evidence was limited to what he had told the respondent. It is the appellant's argument that he had in any event only given such evidence because of the evidence given by the respondent, which evidence was not admissible for the purpose of establishing what had occurred during the currency of that earlier marriage. However, as I have noted, it does appear to me that that evidence was admissible for the limited purpose for which I have mentioned. Had the appellant been legally represented, there might have been a discussion at the time as to the purpose for which the evidence was being admitted when the respondent gave evidence, and he might well, properly advised, have chosen himself to say nothing about the matter. However, his evidence was before the court and it appears to me to have been prompted by a reference to evidence of the respondent which was admissible, albeit only for a limited purpose.
In my view, the ground of appeal concerning the admission of the respondent's evidence cannot be made out, and although it is unfortunate that the appellant did not appreciate at the time the limited purpose for which the respondent's evidence on that point was admissible, his own evidence was not prompted by the improper reception of evidence which should not have been admitted at all. This ground of appeal therefore is not made out.
In any event, I have already referred to the appellant's evidence that there had been a number of occasions of violence perpetrated by him upon the respondent during the course of the marriage. That marriage had taken place in 1995. It seems to me that even if his Worship had had no regard to anything allegedly occurring prior to 1995, there were ample grounds justifying the order which he made, and that the omission of such evidence would not have affected his findings in any respect. I would not be prepared to quash the order upon this ground even if it were made out.
For the reasons which I have given, it is my view that this appeal must be dismissed.
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