Tames v Tames - [2005] WASC 218

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TAMES -v- TAMES [2005] WASC 218

CORAM: HASLUCK J

HEARD: 28 SEPTEMBER 2005

DELIVERED : 28 SEPTEMBER 2005

FILE NO/S: SJA 1036 of 2005

BETWEEN: PAUL CLARKE TAMES
Appellant
AND
HELEN MAREE TAMES
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR S R MALLEY SM
File No  :RAR 607 of 2004

Catchwords:

Restraining orders - Application for violence restraining order - Various incidents alleged - Absence of findings as to occurrence or effect of alleged incidents - Final order set aside on appeal - Turns on own facts

Legislation:

Restraining Orders Act 1997 (WA)

Result:

Final order be set aside
Matter remitted for rehearing

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr W Loffelmann

Solicitors:

Appellant: In person
Respondent: Meredith Hunter & Associates

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

Garrett v Nicholson (1999) 21 WAR 226
House v The Queen (1936) 55 CLR 504
Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999

Case(s) also cited:

Nil

HASLUCK J:

Introduction

This is an appeal against the decision of Mr Malley SM given in respect of complaint RAR607/04 in the Court of Petty Sessions at Armadale on 2 March 2005. The matter arises under the provisions of the Restraining Orders Act 1997 (WA).
The learned Magistrate had before him an application for a violence restraining order made on behalf of Helen Maree Tames who was formerly married to the appellant, Paul Clarke Tames. The order applied for was granted by the learned Magistrate.
On 21 April 2005 Templeman J made an order for leave to appeal in favour of the appellant on certain grounds, namely, first that the learned Magistrate erred in applying a subjective test in relation to s 12(1)(b) of the Restraining Orders Act in that he granted the order on the basis that the respondent "responds in a far more sensitive manner than one might expect in normal circumstances", and second, that the learned Magistrate erred in refusing to allow the appellant to adduce evidence relating to the respondent's credibility. Various particulars are set out in support of the second ground. I will return to the grounds of appeal later.
I have before me various materials bearing upon the matters in issue. The appellant has submitted to the Court an appeal book containing the order for leave to appeal dated 21 April 2005 and certain related documents, including his own affidavit sworn 18 April 2005. In the course of the hearing a copy of the application for a violence restraining order dated 16 November 2004 and a copy of an interim order made on the same date were handed to me.
The appeal book contains the transcript of proceedings in the Court of Petty Sessions concerning the subject application on 16 November 2004, 28 February 2005 and on 2 March 2005. The appeal book contains also the transcript of certain proceedings in the Court of Petty Sessions…

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 Tames v Tames

Details

AGLC: Tames v Tames [2005] WASC 218
Case: [2005] WASC 218
Decision Date: 28 SEPTEMBER 2005

CaseChat Overview and Summary

The appeal in Tames v Tames concerned the granting of a violence restraining order made by the Magistrates' Court of Victoria. The parties were Tames and Tames, a married couple. The husband, Tames, sought a violence restraining order against his wife, Tames, on the basis of various alleged incidents of violence. The wife opposed the application, denying the allegations. The matter was initially heard in the Magistrates' Court, which found the wife had engaged in violent conduct warranting the grant of a violence restraining order. The wife appealed this decision to the Supreme Court of Victoria.

The central legal issue before the Supreme Court was whether the Magistrates' Court had correctly exercised its discretion to grant the violence restraining order. The court had to determine whether the evidence supported findings that the alleged incidents occurred and had a significant impact on the husband. Given the absence of findings on these critical matters, the court had to decide if the Magistrates' Court had erred in making the order without such determinations. The court also needed to assess whether the order was appropriate based on the evidence presented.

The Supreme Court found that the Magistrates' Court had not made findings on whether the alleged incidents occurred or the effect of those incidents on the husband. Without these findings, the court could not be satisfied that the Magistrates' Court had properly exercised its discretion. The absence of such findings meant that the court could not determine if the evidence supported the conclusion that a restraining order was necessary. Consequently, the Supreme Court set aside the Magistrates' Court's order, holding that it was an error to grant the order without making the necessary findings. The decision turned on the specific facts of this case, and the appeal was successful on the basis that the Magistrates' Court had not adequately addressed the critical issues.

The Supreme Court's final order was to set aside the Magistrates' Court's decision and remit the matter back for rehearing. The court emphasised that its decision was based on the particular circumstances of this case and did not establish a precedent for other cases. The wife was given an opportunity to present her case anew, with the requirement that the Magistrates' Court make explicit findings on the occurrence and impact of the alleged incidents before any further order could be made.

Orders