Mark William WALBURN v Alexander Frederick WALBURN [2011] NSWDC 113

Mark William WALBURN v Alexander Frederick WALBURN [2011] NSWDC 113

Although the two incidents established that Alexander Frederick Walburn and Joan Walburn had reasonable grounds to fear, and in fact feared, conduct by Mark William Walburn in which they would have been intimidated or felt stalked, the conduct was not sufficient in the circumstances at the time of appeal to warrant an Apprehended Violence Order. The incidents were blow-ups of an ongoing family issue, and subsequent changes, particularly Mrs Walburn's move away from Sydney to near Ulladulla, meant the order was no longer warranted.

Jurisdiction
Australia
Judgment Date
12 August 2011
Procedural Posture
Criminal Appeal Against Making of Apprehended Violence Order / District Court Appeal Heard Afresh From Order of Magistrate Gilmore Dated 5 November 2010
Outcome
Appeal allowed; Apprehended Violence Order set aside.
Legal Topics
['apprehended Domestic Violence Order' 'apprehended Personal Violence Order' 'reasonable Grounds to Fear' 'intimidation or Stalking' 'appeal by Way of Rehearing']
['criminal Law' 'apprehended Violence Orders'] ['apprehended Domestic Violence Order' 'apprehended Personal Violence Order' 'reasonable Grounds to Fear' 'intimidation or Stalking' 'appeal by Way of Rehearing']

Case Brief

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Procedural Posture

Criminal Appeal Against Making of Apprehended Violence Order / District Court Appeal Heard Afresh From Order of Magistrate Gilmore Dated 5 November 2010

Legal Issues

  1. 1 ['Whether Alexander Frederick Walburn and Joan Walburn had reasonable grounds to fear, and in fact feared, the commission by Mark William Walburn of a personal violence offence or conduct amounting to intimidation or stalking.' 'Whether the conduct relied upon was sufficient to warrant the making or continuation of an Apprehended Violence Order.']

Ratio Decidendi

Although the two incidents established that Alexander Frederick Walburn and Joan Walburn had reasonable grounds to fear, and in fact feared, conduct by Mark William Walburn in which they would have been intimidated or felt stalked, the conduct was not sufficient in the circumstances at the time of appeal to warrant an Apprehended Violence Order. The incidents were blow-ups of an ongoing family issue, and subsequent changes, particularly Mrs Walburn's move away from Sydney to near Ulladulla, meant the order was no longer warranted.

Court Disposition

Appeal allowed; Apprehended Violence Order set aside.

Orders

  • ['Under s20 of the Crimes (Appeal and Review) Act 2001 and in accordance with s84 of the Crimes (Domestic and Personal) Violence Act 2007, the appeal by Mr Mark Walburn against the making of the Apprehended Violence Order is determined by setting aside the order.']