West v R [2023] NSWDC 213

West v R [2023] NSWDC 213

While there was evidence sufficient for a finding that the grandfather held a relevant fear of harassment at some time, in all the circumstances, including the context of the family dispute and the application of the Family Court orders, the mother's conduct was not sufficient to warrant the making of an apprehended violence order. The magistrate made findings based on errors and interpreted the evidence incorrectly, and the risk of recurrence was negligible. The appeal must be allowed and the AVO set aside.

Jurisdiction
Australia
Judgment Date
22 June 2023
Procedural Posture
Appeal / Judgment on Appeal From Local Court Decision Granting Apprehended Domestic Violence Order
Outcome
Appeal allowed; AVO set aside
Legal Topics
['apprehended Violence Order' 'appeal Procedure' 'domestic Violence' 'jurisdictional Error']
['criminal Law'] ['apprehended Violence Order' 'appeal Procedure' 'domestic Violence' 'jurisdictional Error']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Judgment on Appeal From Local Court Decision Granting Apprehended Domestic Violence Order

Legal Issues

  1. 1 ['Whether there was evidence that the protected person (Benny Bennett) in fact had current fear required by section 16(1) of the Crimes (Personal & Domestic Violence) Act' 'Whether the magistrate erred in finding fears were reasonably based and whether conduct amounted to harassment or intimidation for purposes of AVO' 'Whether the conduct was sufficient to warrant making of the order under section 16(1)']

Ratio Decidendi

While there was evidence sufficient for a finding that the grandfather held a relevant fear of harassment at some time, in all the circumstances, including the context of the family dispute and the application of the Family Court orders, the mother's conduct was not sufficient to warrant the making of an apprehended violence order. The magistrate made findings based on errors and interpreted the evidence incorrectly, and the risk of recurrence was negligible. The appeal must be allowed and the AVO set aside.

Court Disposition

Appeal allowed; AVO set aside

Orders

  • ['Appeal allowed.' 'Orders made by the magistrate imposing conditions 1 and 8 are set aside and the application for AVO is dismissed.' 'In absence of compliance with order (4) below, each party bear their own costs.' 'By 6 July 2023 the appellant file and serve evidence in support of any application for costs with...