TAYLOR -v- COWLEY-COOPER [2001] WASCA 313

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 313
Case No:	SJA:1070/2001	Heard:	14 SEPTEMBER 2001
Coram:	McKECHNIE J	Delivered:	14/09/01
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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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

CITATION : TAYLOR -v- COWLEY-COOPER [2001] WASCA 313 CORAM : McKECHNIE J HEARD : 14 SEPTEMBER 2001 DELIVERED : 14 SEPTEMBER 2001 FILE NO/S : SJA 1070 of 2001 BETWEEN : SHAYLENE RENE TAYLOR

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…

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 Taylor v Cowley-Cooper

Details

AGLC: Taylor v Cowley-Cooper [2001] WASCA 313
Case: [2001] WASCA 313
Decision Date: 14 SEPTEMBER 2001

CaseChat Overview and Summary

In the case of Taylor v Cowley-Cooper, the parties involved were Taylor and Cowley-Cooper. The dispute arose in the context of violence restraining orders. The matter was heard in the Supreme Court of Queensland, which was asked to determine an appeal on questions of fact. The central legal issue was whether the trial judge had erred in making certain findings of fact, and if those errors had impacted the outcome of the case.

The court considered the nature of the appeal, which was limited to questions of fact. It was not open to the appellate court to substitute its own findings for those of the primary judge unless those findings were clearly wrong. The court examined the evidence and the primary judge's reasons to assess whether the findings were open to the trial judge, and whether they were indeed clearly wrong. The court held that the findings were not clearly wrong and that the primary judge had correctly exercised his discretion in making the orders. The appeal was ultimately dismissed, and the original orders remained in place.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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