Taylor v Cowley-Cooper
[2001] WASCA 313
•14 SEPTEMBER 2001
TAYLOR -v- COWLEY-COOPER [2001] WASCA 313
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 313 | |
| Case No: | SJA:1070/2001 | 14 SEPTEMBER 2001 | |
| Coram: | McKECHNIE J | 14/09/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SHAYLENE RENE TAYLOR MATTHEW COWLEY-COOPER |
Catchwords: | Violence restraining orders Appeal on questions of fact No new principles |
Legislation: | Restraining Orders Act 1997 (WA) |
Case References: | Farrell v Farrell [2000] WASCA 269 Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990221; 7 April 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MATTHEW COWLEY-COOPER
Respondent
Catchwords:
Violence restraining orders - Appeal on questions of fact - No new principles
Legislation:
Restraining Orders Act 1997 (WA)
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr M S Hovane
Respondent : In person
Solicitors:
Appellant : Director of Legal Aid
Respondent : In person
Case(s) referred to in judgment(s):
Farrell v Farrell [2000] WASCA 269
Case(s) also cited:
Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990221; 7 April 1999
(Page 3)
1 McKECHNIE J: The appellant and the respondent lived together for four years as de facto husband and wife and had one child together.
2 On 20 March 2001 they separated and the following day the appellant applied for two violence restraining orders, one for herself and one for her child.
3 The respondent was summonsed to appear on 11 April 2001 but did not appear. The applications were listed before Mr Tarr SM. The appellant gave evidence as did her mother. At the conclusion, the learned Magistrate declined to make violence restraining orders. From this decision the appellant appeals substantially on grounds that the Magistrate made factual errors.
4 The general ground which is particularised is that the Magistrate erred in finding that the respondent was unlikely to commit a violent personal offence against the appellant or behave in a manner that could reasonably be expected to cause the appellant to fear that the respondent would commit such an offence for such a decision was unsafe, unsatisfactory and against the weight of evidence.
5 The first particular is that the Magistrate made an error when he found that the appellant in her evidence-in-chief had not given evidence of being hit by the respondent.
6 In the course of his short reasons the Magistrate said:
"It was later on that the applicant gave evidence, after she'd given evidence in-chief and after I'd spoken to her, that she said he'd hit her on a regular basis. There was no mention of that beforehand. But the behaviour was in a situation where they were living together in a relationship. The relationship is now over. The applicant said, as far as she's concerned, the relationship is over."
7 This statement is factually wrong because the appellant had given evidence in her in-chief that she had been hit once or twice a week.
8 The error was brought to the Magistrate's attention by the appellant's counsel who said:
"Your Worship, I just would say I do have on my notes that he hit her across the head and face often, approximately every one
(Page 4)
- to two weeks - every once or 2 weeks - and that is my fault that that evidence did not come out in-chief."
9 His Worship said:
"… Well, that - - as I said before, that was in the context of a relationship, one that was fairly - - well, there was violence in the relationship that went on for some 3 years. Now there's no excuse for that, but the relationship continued in that way. Once they stopped living together nothing has happened, and - -"
10 In the circumstances, I do not consider that the Magistrate's factual error of itself caused him to make a wrong decision. It is clear from his remarks, and other remarks I have not quoted, that he was aware this had been a violent relationship. He did not at any point reject the appellant's testimony.
11 The second particular is that the Magistrate made an error when he found that because the violence occurred during the relationship and now that the relationship was over it would be unlikely that there would be further violence.
12 The principal reason for the Magistrate's decision appears to be that the relationship had ended and there was no evidence that there would be any continuing interaction between the parties. There is the possibility of interaction in relation to access to the child, but this had not become an issue in the evidence before the Magistrate. He noted that the respondent's response was that he "… would get a lawyer and see the appellant in court".
13 It is argued that he failed to give sufficient weight to the three year history of violence by the respondent against the appellant, the fact that there was a child of the relationship and therefore it would be likely that there would be further dispute and conflict.
14 In support of this submission, counsel referred to Farrell v Farrell [2000] WASCA 269 per Miller J. However, that case, as is common with most, turned on its own facts. In that case the appellant was arguing that a restraining order should not have been made contrary to the Magistrate's findings. The factual situation, and in particular the relationship, both past and then current, were significantly different from the present case.
(Page 5)
15 The fact that a relationship has ended is a relevant factor. Whether or not it is a decisive factor in the making of a violence restraining order will depend on the circumstances of the case. In the first instance it is for the Magistrate to weigh that factor with others to determine whether or not to make an order. I am not persuaded that the Magistrate gave insufficient weight to any factor of violence in the presence of the child.
16 Ground (c) of the particulars is that the Magistrate made an error when he concluded that he could not make a restraining order based on the evidence of the way the parties "related to each other whilst in the relationship".
17 It is important to put the comment by the Magistrate into context. I have already quoted a portion of the Magistrate's judgment which refers to the relationship. After dealing with other matters he then continued:
"I don't believe I can make an order just on the basis of the way the parties related to each other during the time they were living together. There are always the strains in a marriage if it's a volatile type relationship as this one seems to have been. As the applicant said, she herself would get aggressive with him and that would lead to some sort of arguments, swearing and physical contact. While they're not within that relationship, it's unlikely that there's going to be that sort of contact. When he came around to see her 8 weeks ago and spoke to her mother, he made some mention then of taking legal action in relation to the son.
I don't think there's any evidence before me to suggest that unless he's restrained by a violence restraining order, an order which should not be granted lightly, that he's likely to make contact with her in an inappropriate way. He's had an opportunity to, it would seem, but he hasn't done anything since they separated."
18 In context, I do not consider that the Magistrate was acting on a wrong principle of law. I consider that his comments were directed solely to the evidence in the particular case. Of course, the fact that there has been a violent relationship is a relevant factor, sometimes persuasively so. In the present case, having regard to all the evidence, the Magistrate was not persuaded that that factor alone, in the particular circumstances, justified the making of an order. I am unable to conclude that he erred in doing so.
(Page 6)
19 Ground 2(d) reads:
"The learned Stipendiary Magistrate made an error when he found that the Respondent had done nothing since the parties were separated when [the mother] gave evidence that the respondent had telephoned her residence a number of times looking for the Applicant and was aggressive."
20 In relation to the telephone calls, the mother's evidence was as follows:
"And how many times do you thing (sic) you've spoken to him on the phone since they've separated?---Since they've separated, about three. Yes, and he just kept saying he wants to see her and if she doesn't see him, he'll see her in court.
What's his manner like on the telephone?---Sort of aggressive; not really over the top, but yes, he sort of meant business, if you know what I mean in the voice. Sort of, like, 'I'll get to see her in court.'
Mm?---And he said 'I'll get my son'."
21 The appellant's evidence was that she had not actually spoken to the respondent, although he had telephoned her mother's house.
22 In the circumstances, I do not consider that the description of the few telephone calls in combination with the other evidence would have justified the making of a restraining order.
23 Appeal ground 2(ii)(a) relates to the son and it is said that the Magistrate failed to consider the respondent's behaviour towards the appellant's eldest son.
24 The Magistrate's reasons on this are as follows:
"The only evidence in relation to the application in support of a restraining order for the son is that during the course of the relationship he said, 'Shut up, drink your bottle. Shut up, go to sleep.' He'd do that once or twice a day and he pushed him off the bed once. He's under investigation now in relation to an injury to the oldest child. That child has been put into foster care, the police are involved and the Family and Children's Services organisation is involved in relation to, I would have
(Page 7)
- thought both children, but certainly in relation to the child, Dean."
25 I do not consider it can be said that the Magistrate ignored the evidence in relation to the older child; on the contrary he took it into account.
26 Grounds 2(ii)(b) and 2(ii)(c) arise out of a comment made by the Magistrate:
"One of the reasons why the applicant wants a restraining order is that she said she was afraid that he will take the child. Well, that's no reason for me to make a restraining order. This is not the court that should make orders which restrict a parent from seeing a child. She can make an application to the Family Court in relation to that and they can go to counselling and make whatever arrangements need to be appropriate, in view of all the circumstances, so that there can be contact by both parents."
27 In the course of her evidence the appellant was asked by the Magistrate:
"And what's your attitude going to be in any access if he asks to see his son?---I would like it if he could have somebody watching him at the times that he sees my son.
So you would allow supervised access?---Yes, I would."
28 A restraining order in relation to the son would have the effect of denying access to the respondent.
29 This is a relevant consideration to be weighed, along with apprehended or actual violence, in making a decision whether to grant or refuse a restraining order.
30 I do not read the Magistrate's reasons as doing any more than noting that questions of access would have to be sorted out in another court. This has to be seen against a background where the Magistrate was not, in any event, convinced of any real or threatened danger of violence to the child. I consider that the Magistrate was not acting on a wrong principle.
31 As to ground 2(ii)(d) which reads:
"The learned Stipendiary Magistrate made an error by finding that there was insufficient evidence to support the granting of an
(Page 8)
- order when evidence had been led of verbal abuse, pushing and throwing the Applicant when she was 6 months pregnant with this child."
32 That general evidence was related to the appellant, rather than to the son. There was however evidence that he had pushed Quaid off a bed. It was taken generally into account by the Magistrate, who noted that the relationship had been characterised by violence.
33 In particular, the difficulty for the appellant in making good this submission is that the relationship has in fact ended and there are no present issues as to access.
34 I am not persuaded that the Magistrate made any legal error. The appeal is principally on the weight to be attributed to certain factors under the Restraining Orders Act. Those matters are for the Magistrate and an appeal on those grounds is difficult. It is not enough to show that another court might have attributed different weight to those factors when the appellant carries the burden of proof.
35 In all the circumstances, I am not persuaded that the Magistrate fell into error and I dismiss the appeal.
0