Abfahr v Abfahr
[2016] WADC 159
•18 NOVEMBER 2016
ABFAHR -v- ABFAHR [2016] WADC 159
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 159 | |
| Case No: | APP:38/2016 | 31 OCTOBER 2016 | |
| Coram: | MCCANN DCJ | 18/11/16 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal 38/2016 allowed Appeal 50/2016 dismissed Decision of the Magistrates Court made on 26 April 2016 set aside Matter remitted to the Magistrates Court for rehearing of the appellant's application | ||
| PDF Version |
| Parties: | ZOAD NAHIM ABFAHR ZIAD ABFAHR |
Catchwords: | Appeal from decision of the Magistrates Court refusing an application to set aside a final VRO Failure to take evidence into account Misconstruction of evidence Denial of procedural fairness Turns on own facts |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 s 40(4A), s (4), s (5), s 43(7) Restraining Orders Act 1997 s 26, s 27, s 28, s 29, s 33(1), s 40(3), s 41(4), s 42, s 43A, s 64 |
Case References: | Hood v Royal Perth Hospital (Unreported, WASCA, Library No 970658, 5 December 1997) Re F (2001) 27 Fam LR 517 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- APP 50 of 2016
- Appellant
AND
ZIAD ABFAHR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE GLUESTEIN
File No : FR RO 58 of 2016
Catchwords:
Appeal from decision of the Magistrates Court refusing an application to set aside a final VRO - Failure to take evidence into account - Misconstruction of evidence - Denial of procedural fairness - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 s 40(4A), s (4), s (5), s 43(7)
Restraining Orders Act 1997 s 26, s 27, s 28, s 29, s 33(1), s 40(3), s 41(4), s 42, s 43A, s 64
Result:
Appeal 38/2016 allowed
Appeal 50/2016 dismissed
Decision of the Magistrates Court made on 26 April 2016 set aside
Matter remitted to the Magistrates Court for rehearing of the appellant's application
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : Not applicable
Respondent : Not applicable
Case(s) referred to in judgment(s):
Hood v Royal Perth Hospital (Unreported, WASCA, Library No 970658, 5 December 1997)
Re F (2001) 27 Fam LR 517
- MCCANN DCJ:
Introduction
1 This is an appeal from a decision of a magistrate made in the Fremantle Magistrates Court on 26 April 2016 whereby the appellant's application to set aside a final violence restraining order (VRO) was dismissed.
2 The appellant filed two appeals (numbers 38 and 50 of 2016), both of which relied on the same ground of appeal (see [38]). I shall determine the earlier as the legitimate proceeding and shall dismiss the latter.
3 The respondent has filed a notice of his intention not to participate in the appeal and to abide by the decision of the court.
4 The appeal was originally listed for hearing before me on 29 August 2016. However, there was no appearance for the appellant. I elected to adjourn the matter indefinitely, rather than dismiss the appeal, as there was some evidence on the file as to her health problems.
5 The appellant subsequently wrote to the court requesting that the appeal be re-listed and the hearing took place on 31 October 2016.
Factual background and chronology
6 The appellant and respondent are husband and wife, but have been separated for some time. Their separation has been acrimonious. It is not necessary to go into the details.
7 On or about 4 February 2016 the respondent filed an application for a VRO against the appellant in the Fremantle Magistrates Court (application RO 58/2016). The application came on for hearing ex parte on 11 February 2016 and was adjourned to 25 February 2016 with no orders.
8 There was no appearance for the appellant on 25 February 2016. The respondent appeared on his own behalf and gave evidence. He also adduced evidence from an officer of the Department of Child Protection, Ms Cunningham.
9 The respondent testified that the appellant had been behaving in a threatening, irrational and abusive fashion towards him in the presence of their children (of whom he has legal custody).
10 Ms Cunningham testified that there is a DCP order in respect of the children for a period of two years.
11 At the conclusion of the hearing the magistrate granted a final VRO in the respondent's favour for a period of 24 months. The VRO was in common terms and, amongst other things, restrained the appellant from being within 200 m of where the respondent lived, or communicating or attempting to communicate with him except by prescribed means.
12 Meanwhile, the appellant applied for a VRO against the respondent (application RO 113/2016). That application came on for hearing on 10 March 2016, together with her application in matter RO 58/2016 to dismiss or set aside the VRO that was made against on 25 February 2016.
13 The latter application was dismissed because the appellant had used the wrong form. Application RO 113/2016 was adjourned to 24 March 2016.
14 I am unable to find anything on either file to indicate what happened in court on 24 March 2016.
15 On 4 April 2016 the appellant's application to set aside the VRO against her came on for hearing ex parte. Her grounds were that she was medically unfit for the hearing on 25 February 2016 and could not attend. The matter was adjourned to 11 April 2016 to enable her to get medical evidence as to her unfitness on 25 February 2016. It was subsequently adjourned twice because she had not obtained that evidence.
16 The application was eventually heard on 26 April 2016. The learned magistrate was not satisfied that a medical certificate which the appellant adduced in evidence established that she was medically unfit to attend the hearing on 25 February 2016. His Honour dismissed the application and two other applications brought by the appellant against other family members (matters RO 176 and 177 of 2016) on the grounds of a lack of evidence.
The hearing on 26 April 2016
17 The hearing itself was very brief. The appellant appeared in person. There was no appearance for the respondent.
18 The learned magistrate said, 'You didn't come to court on 25 February, when there was a hearing listed for that?' The appellant replied:
Yes, sir, and the judge asked me for medical certificate and I have it in my hand with the other two. Like I (indistinct) like many attacks and I have three medical certificates and I get her what she wants. She wanted medical certificates.
19 I infer that the 'judge' who 'wanted medical certificates' was the magistrate on 4 April 2016 (ts 12).
20 The appellant tendered a medical certificate signed by her general practitioner, Dr Brad Gallagher, dated 14 January 2016. The certificate was evidently in a form that is prescribed for use by Centrelink. Dr Gallagher certified that:
(i) The appellant had been his patient since 11 November 2004.
(ii) The appellant suffered from an adjustment disorder with symptoms of low mood, anxiety and poor concentration arising from the breakdown of her marriage.
(iii) The illness was of long standing, but there had been a 'recent exacerbation' on 8 December 2015.
(iv) Past treatment had comprised medication and counselling. The appellant was currently receiving counselling and further counselling was planned.
(v) In Dr Gallagher's opinion the appellant was totally unfit for 'work or study' from 14 January 2016 to 14 March 2016.
21 The learned magistrate asked the appellant if she had anything else that she wanted to say, whereupon she had a number of harsh things to say about the respondent's treatment of her. The learned magistrate then said (ts 24 – 25 emphasis added):
Yes. I will give some reasons in respect to the application 58. That's an application whereby [the respondent] obtained a final violence restraining order against the [appellant] on 25 February 2016. [The appellant] has made an application to court to set aside that decision on the basis that she was unable, through medical reasons, to attend court that day. The medical certificate provided from – a form of medical certificate from Centrelink [sic: Dr Gallagher] simply says that the patient is unfit for work or study from 14 January to 14 March 2016.
It, however, does not give any explanation as to unfitness to come to court on 25 February 2016. I'm not satisfied there is a reasonable basis for failing to come to court on that date and the application therefore to set aside the VRO obtained by [the respondent] is dismissed.
22 The appellant interjected at this point and informed the learned magistrate that she had forgotten to show him a photograph she had of bruises on her legs. His Honour continued regardless:
Well, there is no indication given to the court that day that [the appellant] wouldn't be coming to court. Didn't give any message to the court to tell the court she was unable, for whatever reason, to come to court. I'm simply not satisfied it's appropriate under the provisions of section 43A for the order to be set aside and I refuse to set aside that order. The VRO order accordingly obtained by [the appellant] remains in place.
Legal principles and procedure
23 The Restraining Orders Act 1997 (the Act) provides for a range of VRO's to be made by the Magistrates Court to prohibit or control various forms of behaviour. Orders can be made on an interim or final basis.
24 Sections 26, 27, 28 and 29 provide for applications to be heard and orders made by various means. An interim VRO can be made in the absence of the person sought to be restrained.
25 Subsections 33(1), s 40(3), s 41(4) or s 43A(7)(b) provide for a final VRO to be made at a hearing provided that the respondent is present.
26 Section 42(2) applies in the event that the respondent does not attend a final VRO hearing. Subject to s 42(3), the court is required to hear the matter in the absence of the respondent if it is satisfied that the respondent was notified of the hearing or served with a summons requiring his or her attendance.
27 Pursuant to s 43A, a VRO made under s 42 in default of appearance by the respondent may be set aside under certain conditions.
28 Pursuant to subsection (6), the court is required to set aside the final VRO if it is satisfied that the respondent 'had reasonable cause not to attend the hearing at which … the restraining order [was] made'.
29 Pursuant to subsection (7), where the court sets aside a final VRO pursuant to subsection (6) the registrar of the Magistrates Court is to fix a new hearing as soon as practicable.
30 Pursuant to subsection (9), at the hearing fixed under subsection (7), the court is to re-hear the matter under s 42.
31 In short, if the appellant's application had been successful on 26 April 2016 there would have been no VRO in place. Another final VRO hearing would need to be listed.
Appellate principles
32 Pursuant to s 64 of the Act, a decision of the Magistrates Court in respect of a final VRO may be appealed in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (MCCP Act).
33 In this case the appeal lies to the District Court. The relevant provisions of s 40 of the MCCP Act are as follows:
(4A) The appeal must be conducted in accordance with rules of court made by the District Court.
(4) The District Court must decide the appeal on —
(a) the material and evidence that were before the Magistrates Court; and
(b) any other evidence that it gives leave to be admitted.
(5) Leave may only be given under subsection (4)(b) in exceptional circumstances.
34 Pursuant to s 43(7) of the MCCP Act, on the hearing of an appeal, this court may:
(a) confirm, vary or set aside all or a part of the lower court's judgment;
(b) give any judgment and make any order that the Magistrates Court could have given or made.
35 An appeal is by way of rehearing. It is necessary for the appellant to demonstrate an error on the part of the learned magistrate.
The appeal
36 The appellant sought to adduce various documents in evidence in the hearing before me. I have decided not to receive them in evidence, but many of them were already on the record in the Magistrates Court proceedings.
37 The appellant also sought to give evidence from the bar table in relation to the current state of affairs between herself and the respondent. I also decline to take that information into account.
38 The appellant is not legally trained and English is not her first language. She relies on one ground of appeal, namely, the learned magistrate 'did not listen to me'. I understand that ground to comprise two interrelated propositions. First, the learned magistrate denied her procedural fairness and, second, his Honour failed to have regard to the evidence.
39 In my opinion there is considerable force in those contentions.
40 I appreciate that the pressure of business in the Magistrates Court (and in particular the Restraining Orders list) is significant and that difficult matters must frequently be dealt with expeditiously and summarily. Nevertheless, in my view the learned magistrate proceeded with excessive haste and, accordingly, fell into a number of errors.
41 First, the learned magistrate misconstrued Dr Gallagher's medical certificate. My reasons are as follows:
(i) His Honour appears to have treated it as a certificate from Centrelink, whereas it was in fact a form of medical certificate that happened to be prescribed for Centrelink purposes. It was signed by the appellant's treating doctor who obviously had significant knowledge and experience of her case.
(ii) The learned magistrate evidently drew a distinction between the certification of the appellant as 'unfit for work or study' and certification of her being 'unfit to attend court'. In my respectful opinion that approach to the construction of the document (and the outcome) was too superficial and failed to actually address the issue at hand. Also, I am satisfied that he made an express error by holding that the certificate did 'not give any explanation' as to the appellant's unfitness. There was a detailed explanation within the certificate, namely the particulars set out at [20] above which stated that the appellant had a number of significant symptoms which, one would think, would directly impinge on her ability to prepare for, attend and participate in a final VRO hearing, especially if her husband was going to be present at that hearing. In this respect it is noteworthy that Dr Gallagher certified that the appellant was totally unfit for work or study for a period of two months – she was seriously ill. In my respectful opinion the learned magistrate's misconstruction of Dr Gallagher's certificate was an error of law which falls within the appellant's ground of appeal. (See Hood v Royal Perth Hospital (Unreported, WASCA, Library No 970658, 5 December 1997)).
42 Second, apart from the matters referred to at [21] and [22] which raised potentially new grounds or matters for consideration, the hearing comprised a very short exchange in which the learned magistrate pointed out (and impliedly requested an explanation) that the appellant had not attended the final VRO hearing on 25 February. She gave a brief explanation in which she referred to 'many attacks' (of her symptoms, one could infer) and her medical certificates. She was then asked if she had anything else she wanted to say, but was given no assistance at all in that regard. The learned magistrate asked her no questions about 'the attacks' or the contents of the medical certificate and gave no indication that he had made a decision and was about to deliver it, which he then did.
43 Whilst it was not the learned magistrate's responsibility to conduct the appellant's case for her, he ought to have pointed out what she needed to address in her evidence more fairly. This is particularly so given the documented history of the appellant's recent psychiatric symptoms which could have been impacting on her ability to represent herself as at 26 April. Indeed, she forgot to tender some photographs that she had. In my respectful opinion, it was not enough to simply ask her if she had anything else to say after she tendered the medical certificate. (As to a judicial officer's role in respect of an unrepresented litigant: see Re F (2001) 27 Fam LR 517 [209] – [253]). This was not a case where the appellant obfuscated by her own advocacy. Rather, it was a case where she was not afforded an opportunity to properly represent herself.
44 Third, the learned magistrate relied on a reason that was not raised with the appellant, namely her failure to inform the court that she would not be able to attend on 25 February 2016. I am unable to see how that fact supported his Honour's ultimate conclusion as to the reasonableness or otherwise of her excuse for failing to attend court unless, in his view, it signified a deliberate election on her part. But, that sort of finding would have to be put to her for comment first. Further, on any view of the matter the applicant's omission might have been due to her illness and/or it could be evidence of the impact of the illness on her (as I suspected viz-a-viz her non-appearance in this court on 29 August 2016).
45 In my opinion, the second and third matters referred to above also fall within the ground of appeal.
46 In conclusion, in his understandable desire to deal with the matter expeditiously the learned magistrate failed to consider relevant evidence or misconstrued relevant evidence, and failed to accord procedural fairness to the appellant.
47 Therefore, in my opinion, the appellant's ground of appeal has been made out and the appeal should be allowed.
Disposition of the appeal
48 In my opinion the hearing on 26 April 2016 miscarried and the learned magistrate's order dismissing the appellant's application should be set aside. I turn now to consider what should happen next.
49 There are two alternatives. First, remit the matter to the Magistrates Court for rehearing. Second, deal with the application on the merits and make the order that should have been made.
50 I favour the first option for three reasons. First, in my view the hearing on 26 April 2016 was no hearing at all. Second, the court hearing the appellant's application to set aside the final VRO should have evidence as to the current circumstances.
51 Third, and in any event, in my view it is preferable for the existing VRO to remain in place pending the resolution of the appellant's s 43A application.
Conclusion
52 For these reasons I make the following orders:
1. Appeal 38 of 2016 is allowed.
2. Appeal 50 of 2016 is dismissed.
3. The order of the learned magistrate made on 26 April 2016 is set aside.
4. The appellant's application pursuant to s 43A of the Act is remitted to the Magistrates Court for rehearing by another magistrate.
0
0
2