Suter v Suter - [2003] WASCA 169

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…

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 Suter v Suter

Details

AGLC: Suter v Suter [2003] WASCA 169
Case: [2003] WASCA 169
Decision Date: 1 AUGUST 2003

CaseChat Overview and Summary

The case of Suter v Suter was brought before the Family Court of Australia in which the primary issue was the appropriateness of granting a Violence Restraining Order. The parties involved in the dispute were the appellant, Mr Suter, and the respondent, Mrs Suter. The central issue was whether the Family Court was justified in granting a Violence Restraining Order against Mr Suter, which was sought by Mrs Suter on the basis of alleged domestic violence incidents.

The legal issues at hand were primarily centred on whether the Family Court had sufficient evidence to substantiate the allegations of domestic violence and whether it was appropriate to grant a Violence Restraining Order in the circumstances presented. The court was required to consider the credibility of the evidence presented by both parties, the impact of the alleged incidents on the safety and wellbeing of Mrs Suter, and the broader context of the relationship between the parties.

In reaching its decision, the Family Court thoroughly examined the evidence provided by both parties. The court found that the allegations of domestic violence, while serious, did not meet the threshold required for the grant of a Violence Restraining Order. The court emphasised that each case must be assessed on its own facts and that the decision to grant such an order must be based on a comprehensive evaluation of the evidence and the specific circumstances. The court concluded that, in this instance, the evidence did not warrant the imposition of a Violence Restraining Order. Consequently, the order was set aside, and the matter was remitted back to the Magistrates’ Court for further consideration.

Orders