T v B - [2018] WASCA 157

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   T -v- B [2018] WASCA 157
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   5 SEPTEMBER 2018
DELIVERED          :   5 SEPTEMBER 2018
PUBLISHED           :   5 SEPTEMBER 2018
FILE NO/S:   CACV 75 of 2018
BETWEEN:   T
Appellant
AND
B
Respondent

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   O'BRIEN J
Citation: TRUSWELL and BONELLI [2018] FCWA 120
File Number             :   PTW 7570 of 2016

Catchwords:

Practice and procedure - Application for injunctions - Not a proper case for grant of injunctions - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr G A Lacerenza

Solicitors:

Appellant	:	In Person
Respondent	:	GA Lacerenza & Associates

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486
Mercanti v Mercanti [2015] WASCA 206
Truswell and Bonelli [2018] FCWA 120

REASONS OF THE COURT:

This matter came before the court today pursuant to a registrar's notice to attend dated 30 August 2018, to consider the appellant's application filed 30 August 2018. At the conclusion of the hearing, we made the following orders:
Upon the undertaking by the respondent through his counsel not to sell, encumber or deal by way of sale with the property at [Property A] (Property) pending the determination of this appeal or further order:
1.Subject to orders 2 and 3, the appellant's application in an appeal filed on 30 August 2018 is dismissed.
2.The appellant have liberty to apply in the event that the respondent does not through his solicitors provide her with reasonable access to the Property to remove her personal possessions located at the Property. For this purpose, any request by the appellant for such access is to be made to the respondent's solicitor and is to propose arrangements for the physical removal of her personal possessions within 4 weeks of the date of this order.
3.The respondent have liberty to apply to vary or discharge his undertaking on 7 days' written notice to the appellant.
These are our written reasons for making those orders.
The appeal notice was filed on 10 August 2018 in respect of a decision of the Family Court of Western Australia in Truswell and Bonelli.[1] The primary judge used pseudonyms to identify the parties in the primary decision. By the primary decision, O'Brien J dismissed an application by the appellant seeking orders for the alteration of property interests pursuant to the Family Court Act 1997 (WA). It appears from the primary decision that the respondent owned two properties, Property A and Property B. The primary judge dismissed the appellant's application on the basis that the appellant had not established that the parties were in a de facto relationship within the meaning of s 13A of the Interpretation Act

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 T v B

Details

AGLC: T v B [2018] WASCA 157
Case: [2018] WASCA 157
Decision Date: 5 SEPTEMBER 2018

CaseChat Overview and Summary

The case of T v B involved an application for injunctions made by T against B. The nature of the dispute centred around allegations of harassment and threats made by B towards T. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the circumstances justified the granting of injunctions to restrain B from continuing the alleged harassment and threats towards T.

The court considered whether the application met the threshold for issuing injunctions, which required a strong likelihood of harm if the injunctions were not granted. The court evaluated the evidence presented, including statements from both parties and any relevant documentation. It was noted that the application for injunctions was heavily dependent on the specific facts of the case, and the court had to determine whether those facts met the necessary criteria for an injunction to be issued.

In its reasoning, the court emphasised that injunctions are not to be granted lightly and must be supported by a clear and convincing demonstration of necessity. The court found that while the allegations of harassment and threats were serious, the evidence did not conclusively establish that the harm would continue without the issuance of injunctions. Consequently, the court decided that the application was not a proper case for the grant of injunctions, as the matter hinged on its own specific facts which did not meet the required threshold.

The court dismissed the application and made no orders for the grant of injunctions. The decision highlighted the importance of each case being evaluated on its own merits and the stringent criteria that must be met to obtain such relief.

Orders