Allen v Allen
[2018] WADC 89
•2 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ALLEN -v- ALLEN [2018] WADC 89
CORAM: GLANCY DCJ
HEARD: 14 MARCH 2018
DELIVERED : 2 AUGUST 2018
FILE NO/S: APP 67 of 2017
BETWEEN: PAUL ANTHONY ALLEN
Appellant
AND
JACINDA ALLEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE ATKINS
File Number : RO 114 of 2016
Catchwords:
Appeal from Magistrates Court - Litigant in person - Leave to appeal - Restraining order
Legislation:
District Court Rules 2004 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr G Allen |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | NR Barber Legal |
Case(s) referred to in decision(s):
Armstrong v Saxby [2016] WADC 87
Browne v Dunn (1893) 6 R 67
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dincer v Giancristofaro [2015] WADC 49
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Frigger v Murfett Legal Pty Ltd (No 2) [2017] WADC 7
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Googe v Spoljaric [2017] WADC 99
Government Insurance Office (NSW) v Bower (1991) 14 MVR 473
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v The Honourable Justice Martin [2012] WASC 338
Labib v Histon [2017] WADC 39
Michael v The State of Western Australia [2007] WASCA 100
Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133
Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478
Simonsen v Legge [2010] WASCA 238
Smart v Prisoner Review Board (WA) [2012] WASC 48
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73
Warren v Coombes (1979) 142 CLR 531
GLANCY DCJ:
Jurisdiction
This is an appeal from a decision of a magistrate made on 1 December 2016 to make final a violence restraining order (Order) initially obtained on 9 February 2016. The final order hearing took place on 1 December 2016. The Order was made for the protection of the respondent in this appeal, Mrs Jacinda Allen. The appellant, Paul Anthony Allen is the person bound by the terms of that Order.
The Order was made in the exercise of the power conferred on the magistrate by s 43 of the Restraining Orders Act 1997 (RO Act).[1] The Order was made for a term of two years.
[1] It should be noted that the RO Act was amended after the decision of the Magistrate was made in this case.
Appeals from a decision to make a final order are provided for by s 64(1) of the RO Act. Section 64(2) provides that an appeal from a final order made by a magistrate is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (MCCPA) unless s (6a)(a) applies. In this case s (6a)(a) does not apply.
Self-represented litigant
The appellant appeared in person at the hearing of this appeal. He was, however, represented by counsel at the final order hearing.
The respondent was legally represented at the hearing of the appeal as she also was before the magistrate at the final order hearing.
In dealing with the appeal I have been cognisant of the fact that the appellant is a litigant in person. There are well established principles which govern the way in which courts should approach matters where there is a litigant in person. Those principles were recently set out by Gething DCJ in Googe v Spoljaric [2017] WADC 99 [13] – [15]. In summary they are:
1.a litigant in person should be afforded some latitude and the documents in which he articulates his case should be approached with some flexibility: Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J);
2.the court needs to be careful to ensure that if he has a case, it is not denied because of a poorly expressed document or submission: Ibrahim v The Honourable Justice Martin [2012] WASC 338 [21] (Beech J); and
3.at the same time, the court must ensure that any latitude given does not work an injustice to the appellant: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
Those principles governed the way in which I approached this matter.
Appeals
Section 40 (Appeals) is within pt 7 of the MCCPA. Section 40(1) provides that a party to a case which is not a minor case may appeal to the District Court against an order or judgment made by the Magistrates Court in the case. Section 40(3) provides that an appeal cannot be commenced more than 21 days after the date of judgment unless the District Court gives leave to do so (see also O 51A of the District Court Rules 2005 (DCR)). Section 40(4A) provides that an appeal must be conducted in accordance with the rules made by the District Court and s 40(4) provides that the court must decide the appeal on the basis of:
(a)materials and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
Section 40(5) provides that leave to adduce additional evidence may only be given under s 40(4)(b) in exceptional circumstances.
Order 50 of the DCR deals with the way in which appeals are to proceed. Order 50 r 1(1) provides that an appeal to the court must be by way of reconsideration of the evidence that was before the primary court.
Nature of the appeal proceedings
In order to succeed in his appeal the appellant must demonstrate a legal, factual or discretionary error by the magistrate: Frigger v Murfett Legal Pty Ltd (No 2) [2017] WADC 7 [9] ‑ [15] (Bowden DCJ).
Perhaps the widest basis for an error of law, fact or discretion is that, if upon the facts, a decision is unreasonable or plainly unjust, an appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposed in the magistrate: House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 – 505 (Dixon, Evatt and McTiernan JJ).
The hearing of the appeal is not a hearing de novo. Rather, it is in the nature of a re‑hearing not involving a completely fresh hearing by the appellate court of all of the evidence. The court must proceed on the basis of the record (and considering any new evidence which it may give leave to be adduced). In Warren v Coombes (1979) 142 CLR 531 the majority of the court reiterated the rule that:
[i]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.
The law that applies to an appeal from a decision where the magistrate's findings were based, and necessarily were based, upon the credibility of the witnesses is clear. As the majority of the High Court stated in the decision of the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron & McHugh JJ):
… a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witnesses, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.
That principle of law is very clear and no matter what I might think as to the credibility of the appellant, it is not for me to decide which of the two competing versions is to be believed. That was the function of the magistrate and I cannot interfere with those findings unless I consider that the magistrate failed to use or misused the advantage she had in hearing and seeing the witnesses, or that she acted on evidence which was inconsistent with facts incontrovertibly established, or that she made a finding which was glaringly improbable. In other words it must be apparent from the materials before me that the magistrate made some obvious mistake before I can interfere with the decision she made as to the credibility of the two competing versions in this case.
Application to cancel or revoke the restraining order
In submissions filed in support of his appeal and in oral submissions made at the hearing of the appeal the appellant indicated that he sought an order revoking or cancelling the restraining order on the basis that the respondent had 'misused' the Order. He claimed she did so by deliberately bringing herself within 25 m of him (the distance that the terms of the final order require the appellant to stay from the respondent) on many occasions specifically for the purpose of filing police reports alleging that the respondent had breached the order by coming within that distance of her. Much of the content of the submissions which he filed in this appeal could be said to be in the nature of assertions of this kind.
Section 45(4) of the RO Act provides that an application to vary or cancel a restraining order is to be made to the court that made the order. Accordingly, in the course of the hearing I determined that I have no jurisdiction to cancel the order on this additional basis contended for by the appellant and therefore I have not considered any of the submissions as to the conduct of the respondent subsequent to the Order having been made. Rather I confined the parties and myself to consideration of whether the magistrate erred in coming to her decision.
The magistrate's decision
The magistrate found that the appellant had behaved in an ongoing manner towards the respondent which was intimidatory, offensive or abusive. She found that the following amounted to behaviour of that kind:
(i)An incident in which the appellant corralled the respondent in the kitchen;
(ii)A series of emails which he sent to the respondent about her behaviour, mental state and parenting;
(iii)A Facebook post of a photo of one of their daughters.
The emails included passages such as the following:
I have to call you out on your latest crazed vendetta … You remain the true abuser of our children. And nothing I have seen indicates that you are a good parent.[2]
[2] Exhibit 7.
and
As I have previously stated, the only abuse inflicted upon our children has been by your hands.[3]
and
A GP, when dealing with someone of Zahara's age, relies heavily on the observations of the parent and given your history of fanciful departures from reality I have no faith in you as a responsible and balanced parent able to make impartial, rational and balanced assessments. It is not in your nature, unfortunately.[4]
and
You said on many occasions that you were not a good mother, and unfortunately that is one of the few things you got right … I think the harm that you have inflicted on the children is pretty clear in its effect.
…
The longer this process goes on, the less faith I have in your ability as a parent, especially in relation to [redacted], who seems to be the main target of your crusade.[5]
[3] Exhibit 8.
[4] Exhibit 8.
[5] Exhibit 6.
Superimposed on a photograph of one of their daughters posted to the appellant's Facebook page on 29 March 2016 are the words 'I just want to see my Daddy, instead of being a pawn in someone's sick game'.[6]
[6] Exhibit 4.
Further, it was apparent from the material before the magistrate that the appellant did not regard correspondence of this kind to be intimidating, offensive or emotionally abusive. Rather, he saw them as being either political commentary on the legal system in which he was involved or factual commentary about the respondent's behaviour and parenting.
At page 13 of the transcript of the hearing on 1 December 2016 her Honour's reasons conclude with the following passage:
Those exhibits, taken with my findings about Mr Allen's evidence, cause me to find that Mr Allen has behaved in an ongoing manner that is intimidatory, offensive, or emotionally abusive towards Mrs Allen. That finding means that I find there has been an act of family and domestic violence against her. Further, I am satisfied on the balance of probability that Mrs Allen reasonably fears that such behaviour will continue. The reason for the conclusion is the number of emails that have been received, and the period over which they have been received. As a result of those findings, I am satisfied that the order is to be made final for a period of two years from today. That concludes the matter.
Restraining Orders Act
The respondent sought an order under s 11A of the RO Act. While the RO Act has now been amended, when the magistrate made the decision on 1 December 2016 s 11A provided:
A court may make a VRO if it is satisfied that ‑
(a)the respondent has committed an act of abuse against the person seeking to be protected and the respondent is likely again to commit such an act against the person; or
(b)a person seeking to be protected, or a person who has applied for an order on behalf of that person, reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected
and that making a violence restraining order is appropriate in the circumstances.
Section 12 provided:
(1)When considering whether to make a violence restraining order and the terms of the order a court is to have regard to ‑
(a)the need to ensure that the person seeking to be protected is protected from acts of abuse; and
(b)the need to prevent behaviour that could reasonably be expected to cause fear that the person seeking to be protected will have committed against him or her an act of abuse; and
(ba)the need to ensure that children are not exposed to acts of family and domestic violence; and
(c)the wellbeing of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order; and
(d)the accommodation needs of the respondent and the person seeking to be protected; and
(da)the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or persons as are before the court or not; and
(e)hardship that may be caused to the respondent if the order is made; and
(f)any family orders; and
(g)other current legal proceedings involving the respondent or the person seeking to be protected; and
(h)any criminal record of the respondent; and
(i)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise; and
(j)other matters the court considers relevant.
(2)A court is to have regard to the matters set out in subsection (1)(a), (b), (ba) and (c) as being of primary importance.
(3)In having regard to the matters set out in subsection (1)(da), a past history of applications under this Act is not to be regarded in itself as sufficient to give rise to any presumption as to the merits of the application.
(4)The Commissioner of Police, is, where practicable, to provide to a court any information in the possession of the Police Force of Western Australia referred to in subsection (1)(h) or (i) that is relevant to a matter before the court.
(5)The information is to be provided in the form of a certificate signed by a police officer of or above the rank of inspector.
(6)The certificate is prima facie evidence of the matters specified in it, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was a police officer of or above the rank of inspector.
Section 3 of the Act then defined the expression 'act of abuse' as 'an act of family and domestic violence or an act of personal violence'. By s 3 of the RO Act the expressions 'family and domestic violence' and 'act of personal violence' are found in s 6. Relevantly, s 6 defines 'family and domestic violence' as follows:
One of the following acts that a person commits against another person with whom he or she is in a family and domestic relationship –
(a)…
(c)behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person.
Extension of time for leave to appeal
An appeal to this court is to be commenced within 21 days of the date of judgment unless leave to commence the appeal out of time is given: s 40(3) of the MCCPA.
The decision of the magistrate the subject of this appeal was handed down on 1 December 2016. The appellant commenced this appeal on 1 August 2017. Accordingly, he was more than seven months late in commencing the appeal and leave of the court to bring this appeal out of time is required.
Principles to be applied when considering extension of time
The matters to be considered when determining whether to grant leave to extend the time within which to file the appeal are well settled. In Simonsen v Legge [2010] WASCA 238 [8] the Court of Appeal stated:
The relevant matters to consider when a party seeks to extend time for filing its notice of appeal include the following:
(a)on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458,459;
(b)the grant of an extension of time under the rule is not automatic; the objects of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);
(c)nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);
(d)there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:
i.the length of the delay;
ii.the reason for the delay;
iii.the prospects of the applicant succeeding in the appeal; and
iv.the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 190; In de Braekt v Powell [2007] WASCA 55 [11]; (2007) 33 WAR 389;
(e)other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];
(f)the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450, 454;
(g)in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Australia) Ltd [17]; and
(h)similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].
These principles apply equally in the case of an appeal to the District Court from the Magistrates Court: see Dincer v Giancristofaro [2015] WADC 49 [8] ‑ [11] (Bowden DCJ); Armstrong v Saxby [2016] WADC 87 [39] ‑ [40] (Gething DCJ) and Labib v Histon [2017] WADC 39 [40] (Gething DCJ).
Application of principles to this case
Length of delay
The delay between the last day on which an appeal could have been brought as of right (ie within the 21 day time limit) the appeal being made was 7 months and 9 days. This delay is significant.
Reason for delay
The appellant filed an affidavit dated 18 September 2017 in support of his application of 13 September to extend time and to adduce further evidence. The affidavit stated in pars 1 ‑ 5 inclusive that, following the magistrate's decision he informed his solicitor that he wished to appeal but was told in January that 'they do not do appeals'. He attests that after that he began to investigate appealing on his own. He attests that on 10 January 2017 he filed paperwork which he thought would commence the appeal in the District Court and at that time he applied for a reduction in the filing fee. The appellant says he was told that the court would consider that application and let him know what fee he needed to pay. The appellant attests that he followed up with the court on a couple of occasions but that no one knew what was happening and that it was not then until late June 2017 that he received correspondence from the court informing him that the filing fee would be $100. He states that he then went away on a planned holiday until the end of July and paid the fee immediately upon his return on 1 August 2017.
The respondent acknowledged that in January 2017 the appellant had a conversation with the respondent's solicitor and informed him that he had commenced an appeal but that no paperwork was received at the time. The respondent submits that the notice of appeal is dated 1 August 2017 and that there is nothing to suggest that the appellant in fact lodged his appeal notice at an earlier time. The respondent submits that the delay is such that the appellant should not be granted an extension of time.
The appellant was not cross‑examined on his affidavit and in the absence of evidence to the contrary I am compelled to accept his evidence as to his effort to file his appeal in January 2017 and the delay occasioned in the registry, however unlikely that may seem.
The appellant should not be penalised for a delay not of his own making. Ignoring the delay occasioned in the registry, the delay by the appellant is approximately 20 days. That delay is not particularly long and would not, of itself, justify a refusal of leave in this case.
Prejudice to respondent
Counsel for the respondent submitted that the respondent would be prejudiced by the grant of an extension of time. The prejudice which it was said she would suffer was that she would be required to turn her mind to this matter again more than a year after the restraining order had been granted when all she wanted to do was move on with her life. There was no affidavit filed by the respondent which addressed the question of prejudice.
As a general proposition, I do not regard the suffering which may be occasioned by the respondent in having to re-agitate the reasons for seeking the restraining order as insignificant in the context of a marital breakdown in which allegations of abuse are being made. No doubt, if the allegations are true, a need to have a further hearing before a magistrate may further traumatise the abused partner to some extent. However, as I have said, there was no evidence given by the respondent as to that issue in this case and I can give little weight to the respondent's counsel's assertion of that fact from the bar table. Accordingly, in the absence of evidence of any prejudice I would not refuse leave to appeal on that basis alone.
Prospects of success
In my view, there was ample basis for the magistrate to have concluded that the appellant had behaved in an ongoing manner that was intimidating, offensive or emotionally abusive towards the respondent. Further, it is apparent from the appellant's evidence at the final order hearing that he regarded his emails as justified and reasonable. There was no suggestion in his conduct that he had or would cease to communicate with her in the way he had done until then. Accordingly, there was ample basis for the magistrate to conclude that the respondent's belief that the appellant's conduct would continue was reasonable. I can discern no error of law, fact or discretion on the part of the magistrate.
This appeal had no prospects of success.
Decision in relation to application to extend time in which to appeal
Given that the extensive delay in commencing proceedings seems to be attributable to a delay by the registry in dealing with his application for fee relief and that the respondent had been informed in January by the appellant that he had filed an appeal, and in the absence of any evidence of prejudice which would be suffered by the respondent in the event that the extension of time were given, I would grant the appeal but for what I have said about the prospects of success. However, given what I have concluded in relation to the prospects of success, I would refuse the extension of time.
Application to adduce further evidence
In this case the appellant has also applied for leave to adduce further evidence.
Section 40(5) of the MCCPA provides that leave to adduce further evidence may only be given in exceptional circumstances.
The meaning of the expression 'exceptional circumstances' has been addressed recently by two decisions of this court. In Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73 [5] ‑ [9] her Honour Judge Wager considered the meaning of that expression in some detail and adopted the conclusion which her Honour Judge Davis had earlier expressed in Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133 [40]:
Having regard to the ordinary meaning of the word 'exceptional' all of the authorities and the principles of statutory construction, I consider that for circumstances to be 'exceptional' … they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique, or unprecedented, or very rare, however they will not be exceptional if they are regularly, or routinely, or normally encountered.
This is the meaning which I applied to that expression when considering the application to adduce further evidence.
Exceptional circumstances may be a single exceptional matter or may be a combination of ordinary factors which, when taken together in combination, may reasonably be regarded to be amounting to exceptional circumstances: Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 379 (Brennan and Dawson JJ).
The further evidence which the appellant sought to adduce was:
(i)A police report from 5 January 2016;
(ii)A photograph of a cracked door which the appellant says is the damage done to the bathroom door by him in the incident in 2012;
(iii)Email referred to in par 15 of the affidavit said to be annexure C. but he says it is unclear whether it was tendered as a part of exhibit 7. In any event this would have been available to provide to the magistrate and I am not told what exceptional circumstances exist to justify my giving leave for it to be adduced before me; and
(iv)Lucky Bitch Money Boot Camp document in Jacinda's handwriting – in which she acknowledges she self‑sabotaged by 'fighting with hubby'.
All of this material was in existence and available to be led in evidence at the hearing before the magistrate. The appellant has not provided any explanation for why it was not.
The appellant has not provided the court with anything to suggest that there are any exceptional reasons for the grant of leave to adduce the evidence which was not before the magistrate. Accordingly I refuse the application to adduce the evidence sought.
Grounds of appeal
The appellant's grounds of appeal were difficult to ascertain from the materials filed by the appellant on 9 March 2018. However, it appears that he alleges that the magistrate:
1.was biased against him as a result of having heard the application for the interim VRO;[7]
2.made a fundamental error in failing to refer to and understand the import of the police report of 5 January 2016 in her decision;[8]
3.did not accord him procedural fairness as she was motivated by a desire to wind up the proceedings quickly so as to not have to get counsel back down from Perth;[9]
4.accepted exhibits which were highlighted when she should not have done so;[10]
5.allowed the respondent to give hearsay evidence of legal proceeding in which he was convicted for using a tracking device to which the respondent was not a party and which caused the magistrate to view him in a negative light and be biased against him;
6.allowed the respondent to give evidence that he was only permitted to have supervised access to his children leading her to infer he had sexually abused the children without allowing him to give evidence to the effect that an investigation had found no evidence of such abuse;
7.had regard to selected emails which should have been left to the Family Court to consider because she did not understand the context in which they were sent;
8.acted on a misunderstanding of the facts involved in an incident which allegedly occurred in the bathroom in 2012 which she found was an act of abuse;
9.failed to accord him procedural fairness by the application of the rule in Browne v Dunne;[11] and
10.the magistrate's judgment confused events and dates and therefore must be called into question as a whole.
[7] Appellant's submissions page 12.
[8] Appellant's submissions page 12 – 14.
[9] Appellant's submissions page 12.
[10] Appellant's submissions page 22.
[11] Appellant's submissions page 22.
Bias as a result of hearing the application for interim violence restraining order
The appellant submits that the magistrate would have formed a negative view of him in the course of the hearing on 9 February 2016 following which she granted the respondent the interim violence restraining order against the appellant. He submits that it therefore follows that the magistrate was biased against him when she came to determine the application for the final order.[12]
Apprehension of bias
[12] Appellant's submissions page 23.
The submission, as put by the appellant is of actual bias on the part of the magistrate rather than merely an apprehension of bias. I will deal with both.
The test to be applied in determining whether a judicial officer is disqualified by reason of bias is whether, in all the circumstances, a fair‑minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question in issue: Michael v The State of Western Australia [2007] WASCA 100 [56] ‑ [62] (Steytler P with McLure JA & Miller AJA agreeing).
Michael v The State of Western Australia [56] – [62] refers to this principle as giving effect to the requirement that 'justice should not only be done but should manifestly undoubtedly be seen to be done' and reflects the fundamental principle that judicial officers should be both independent and impartial.
The test is as to the possibility rather than the probability of bias.
The test is an objective one. The observer is a hypothetical fair-minded or reasonable and informed lay observer who bases their opinion on a fair assessment of the judicial officer's conduct in the context of the whole of the trial.
The judicial officer whose ability to decide a matter is in issue is a professional whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.
The reasonableness of the apprehension of bias should be considered in the context of ordinary judicial practice.
The apprehension of bias principle is a two‑step process. The first step is to identify what is said which might lead a judicial officer to decide a case other than on its legal and factual merits. The second step must be to articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
Interim violence restraining orders are often made without the court having had an opportunity to hear from the person sought to be restrained. It is for that reason that a final order hearing, at which both parties have the opportunity to present evidence, is held. A fair‑minded observer, understanding the process provided for in the RO Act and understanding that a magistrate has taken an oath or affirmation to 'do right to all manner of people according to law without fear or favour, affection or ill will'[13] could not reasonably consider that a judicial officer would be biased against the appellant simply because he or she had granted an interim violence restraining order in an earlier proceeding. If that were the case, then no magistrate could ever determine an application for a final order if he or she had heard the application for an interim order.
Actual bias
[13] Section 5 and sch 1 Magistrates Court Act 2004 (WA).
An unfavourable decision cannot on its own amount to a demonstration of bias.
The appellant contends that the respondent lied in her evidence before the magistrate. Much of his submissions set out the lies which he says she told and the reasons why the magistrate should have found that her evidence was untruthful. After doing so, he concludes that the magistrate's failure to see the respondent's evidence in that light demonstrated either serious error or bias.[14]
[14] Appellant's submissions page 14.
Closing submissions were made to the magistrate on 1 December 2016. In those closing submissions the appellant's counsel submitted that there had been no violence in the marriage, that the respondent was not fearful of her husband and that she was using the process of applying for a violence restraining order as a means of controlling what the Family Court will decide about the fate of the two children of the marriage. The respondent's counsel pointed to several incidents of abuse or violence about which the respondent had given evidence. The magistrate, having heard those submissions, made her decision. In doing so she relied heavily on findings about the character and demeanour of the appellant and the respondent and their credibility.
There is nothing in the magistrate's reasons to suggest that the magistrate made a decision which was not open to her on the evidence. She was obviously best placed to assess the credibility of the witnesses. There is no basis upon which I could interfere with those findings.
The appellant has not identified that which he contends would lead a reasonable observer to conclude that the magistrate acted or appeared to act in a way that was biased towards the respondents.
Failure to rely on the police report of 5 January 2016
The appellant submits that the magistrate did not take into account the police report of 5 January 2016 which he submits is a critical piece of evidence because it is the only third party evidence pertaining to domestic violence allegations in the 16‑year relationship. He says it therefore carries significant weight and clearly highlights the dishonesty of the respondent's evidence before the magistrate. He submits that the failure to understand the import of this evidence caused the magistrate to make a fundamental error of fact.
The police attended the parties' matrimonial home on 5 January 2016 in response to two calls from the respondent. The police report of that attendance states that the respondent 'felt nervous however stated that there were no threats or intimidations of violence against her'. It also stated that she told police the 'perpetrator' had 'never previously hurt the victim'.[15]
[15] The police report was not tendered in the Magistrates Court hearing but the facts of its contents were not disputed by the parties at the hearing.
The appellant submitted that the respondent called the police to deliberately manipulate events. He also submits that the fact that she later told the police that she was not threatened proves she was manipulating events and lying in calling them in the first place. He says that her evidence that she did so because she had to stay at the house with her husband and did not want further trouble even though she was scared of him[16] was yet another lie.
[16] ts 44 and 50 (21 November 2016).
The magistrate found that she could not prefer either parties' account of this incident but noted that the police had been called.[17] Accordingly, she did not find that the conduct of the appellant on that occasion was an act of abuse, and it did not form any basis for the making of the order.
[17] ts 11 (1 December 2016).
The appellant contends that the police report which establishes that the respondent had said that there had been no violence displayed towards her in the marriage prior to 5 January 2016 proves he did not commit the acts of abuse of which the respondent gave evidence.
Even if the magistrate had accepted the appellant's evidence that prior to 5 January 2016 he had not threatened violence against the respondent that does not establish that he did not do so after that time.
The magistrate made findings in relation to the incidents which were said to constitute acts of abuse and as to the credibility of the witnesses in coming to her conclusion that the appellant had behaved in an ongoing manner that was intimidatory, offensive or emotionally abusive towards the respondent and that the respondent reasonably believed that he would continue to behave in one or more of those ways.
There is no basis upon which I could find that the magistrate had acted on evidence which was inconsistent with the facts established by the evidence or that she misused her advantage. In that circumstance those findings should not be disturbed.
Lack of procedural fairness
The appellant contends that the magistrate failed to accord him procedural fairness. He says that she was more concerned to wind up proceedings quickly and not to have to get counsel back down from Perth than to give him an opportunity to present his case.
The failure is said to be evidenced from the following passage of transcript of the hearing on 21 November 2016 which is recorded in the transcript as having occurred just prior to 4.37 pm during counsel for the respondent (Mr G Allen's) cross‑examination of the appellant:
Allen, Mr:All right. If that could be returned. Thank you, your Honour. Now I'm mindful of the time, your Honour. But I probably have just a couple more exhibits to go and a couple more general questions.
Her Honour: Well, if we don't finish – I don't know whether there's intended to be any other witness, Ms Zinenko?
Zinenko, Ms: No, there's not, your Honour.
Her Honour: Well, unless we finish this evidence today I think it's going to be very difficult for me to manage to get counsel down from Perth at a decent time in the future.
Allen, Mr:All right.
Her Honour: So I think we'll proceed if that's all right with counsel?
Zinenko, Ms: Yes.
Allen, Mr:Yes, look, it's fine with me. I – I - - -
Her Honour: Until we finish the evidence.
Allen, Mr:Yes. Okay. Now, exhibit 6.
…
Following that exchange, the respondent's counsel concluded his cross‑examination of the appellant and then his own counsel briefly re‑examined. Her re‑examination concluded and then the following exchange between counsel and the magistrate took place:
Her Honour: Is counsel in a position to make closing arguments at this stage?
Allen, Mr:I can if your Honour wishes.
Zinenko, Ms: Your Honour I would rather not. If you would like – if you would like us to I can. But I would rather not.
Her Honour: Well, it is five past five. I don't want to – it would be unfair of me to pressure one counsel into that particular process. What I will have to do then is seek another date when counsel can both return and make closing submissions. I'm not going to ask anything written of course. Oral submissions are my next date and then I will a decision [sic] in relation to the order on the next date. So what we have to do now is find a date convenient to everybody. So just bear with me a moment.
…
Her Honour: All right then. So there needs to be a date that counsel is able to return. What I can do is – if it assists counsel at all normally Tuesday afternoons are very good. Thursday morning is hopefully okay as well depending on what day. I have got a two day trial at the end of this week. So a Tuesday afternoon or a Thursday, I think are about the best dates here. How and what dates would counsel be able to return?
…
Her Honour: All right. Just so that you know what's going to happen Mrs Allen and Mr Allen, counsel will give me closing statements and they will tell me why it is - well, Mr Allen will say why it is that it should be made. Ms Zinenko will say why it is that it should not be made. Those arguments are then put to me and then I have to make a decision based on the evidence that I have received and the exhibits I've received and decide whether or not the criteria and that Act are met, and I'm trusting that once I've heard from both counsel I will be able to deliver that decision straightaway next Thursday. All right. So I would adjourn through to next Thursday for closing statements and decision, and if we could commence at 9.30. I don't expect counsel or Mr and Mrs Allen to be down here before that time. I don't think it would be convenient to try and get you here any earlier knowing how hard it is to get down here from Perth.
It is clear from the passages of transcript referred to above that this ground of appeal must fail. The magistrate's reference to difficulties that may be encountered in 'getting counsel back down from Perth' was an indication of appropriate concern to have the matter dealt with as expeditiously as possible. However, it is also clear that she did not press counsel to continue to the conclusion of the evidence in the face of an objection. In fact, the appellant's counsel indicated a willingness to continue and at no stage raised any concern that doing so would result in a denial of procedural fairness.
It is also apparent from the fact that the magistrate adjourned the proceedings for closing submissions to be made at a later date after the appellant's counsel indicated it was counsel's preference not to make closing submissions on 21 November, that she was not more concerned with winding proceedings up quickly than with doing justice in the case. The fact that the appellant's counsel was able to indicate to the magistrate that she did not wish to make closing submission to the magistrate immediately following the conclusion of the evidence suggests that she would have made a submission to that same effect had she been at all concerned that the magistrate's desire to conclude the evidence on 21 November 2016 would deny her client procedural fairness. Further, no evidence has been given in the appeal by the appellant's counsel that she had any concern that the appellant was denied procedural fairness by the approach taken by the magistrate.
Acceptance of highlighted documents as exhibits
The appellant complains that the magistrate accepted exhibits which contained passages which were highlighted. On 21 November 2016, the following exchange took place:
Allen, Mr:(the respondent's counsel): I tender that email dated 15 August 2016 at 12.16, your Honour.
Her Honour: I do note that there is a highlight on this copy that I've been provided with. There is one line that has been highlighted in pink. I draw that to your attention. I take it there's no issue with me receiving that?
Zinenko, Ms: No. No issue your Honour.
Allen, Mr:I apologise for that your Honour. When I first spoke to Ms Allen, I failed to tell her not to mark some of the copies. But obviously your Honour won't draw any conclusion from the fact that it has been marked.
Her Honour: I don't. Emails 15 August 2016, that's exhibit number 6.
Later when exhibit 7 was tendered, her Honour said:
Again, putting aside the pink highlighting, that will be marked as exhibit number 7.
There is no rule of law which precludes a document which has highlighting on it being tendered. It would only be if the magistrate paid undue heed to the highlighted portion, or misunderstood the import of the document because of the highlighting, that an error might be able to be said to have arisen. In this case the magistrate expressly acknowledged that she would disregard the highlighting and there is no suggestion from the appellant that the presence of the highlighting led to any error on the part of the magistrate.
Hearsay evidence regarding the use of a tracking device
For a period of time after their marriage had come to an end, the respondent concealed the children's whereabouts from the appellant. For the purposes of ascertaining their whereabouts, the appellant took the step of inserting a tracking device into gifts which were left with their maternal grandmother to be passed on to the children. He was subsequently prosecuted and convicted for doing so.
The appellant claims that the magistrate erred in allowing the respondent to give evidence of aspects of the criminal proceedings because her evidence was hearsay given that she was not directly a party to those proceedings.
The appellant contends that the mere admission of this evidence painted him in a negative light and caused the magistrate to be biased against him.
I have reviewed the transcript of the proceedings before the magistrate. When the issue of the tracking device arose, the appellant's counsel did not object to the evidence. Nor did she re‑examine the appellant about it in a way which would have allowed him to endeavour to explain why he did what he did.
Even if the questions about the tracking device had been objected to on the basis that the answers would be hearsay, the magistrate would have had to hear the evidence for the purposes of determining the objection. If she had found the evidence was hearsay she may then not have allowed the evidence to be led but it would still have been known to her. Assuming she had upheld an objection to it, as a judicial officer she could have, and would have had to put that information to one side and not let it influence her decision. Judicial officers are frequently required to act in that way.
It cannot be the case that a magistrate would have to abort a hearing after ruling evidence inadmissible because, having heard mention of the evidence to which objection was taken, it was theoretically possible it might influence the magistrate against the party who objected to it.
There is nothing in the magistrate's conduct or reasons for decision that support the appellant's assertion that its admission caused the magistrate to be biased against him.
In any event, whilst the respondent's counsel submitted that this was the first of four specific incidents in which the appellant had behaved in an intimidatory, offensive or emotionally abusive way towards the respondent[18], it is clear from the magistrate's reasons that she did not rely upon that incident in coming to her view that the appellant has committed acts of abuse.
[18] ts 10 (1 December 2016).
Evidence regarding supervised access to children
The appellant claims that allowing the respondent to give evidence of the fact that he was only permitted to have supervised access to his children without permitting him to explain that the Department of Child Protection and Family Support had found no evidence that he had sexually abused either of the children, painted him an extremely negative light and was likely to have influenced the magistrate's views. He submitted:
I would suggest that Magistrate Atkins personal assessment of my guilt on the allegations of abuse had a material and negative impact on not only her findings but also on the awarding of costs [19].
[19] See submissions page 31.
The appellant was legally represented. The respondent was cross‑examined about having made an allegation to police about sexual conduct towards the children[20] and the outcome of an investigation that followed. His counsel could have re‑examined him about the background to him being permitted only supervised access to his children had any background or further explanation been considered relevant. No clarifying questions were asked by his counsel.
[20] ts 45 (12 November 2016).
No complaint about the admission of this evidence was made by the appellant at the time.
It is clear from the closing submissions made in those proceedings that the respondent placed no reliance upon the fact that the appellant had only supervised access with his children to support the application for the VRO.
In any event, the transcript of the magistrate's reasons for decision reveal that the magistrate made no findings as to whether or not the appellant had sexually abused his children did not rely on the fact that the appellant was permitted only supervised access to his children in coming to her view that he was behaving in an ongoing manner that was intimidating, offensive or emotionally abusive towards the respondent[21].
[21] ts 11 – 13 (1 December 2016).
As I have found earlier there is nothing in the magistrate's reasons or in the way in which she conducted the hearing that suggests this evidence or any other evidence caused her to be biased against the appellant.
Reliance on emails which should have been left for consideration by Family Court
In support of her application for the Order the respondent tendered emails sent by the appellant to her at a time when the Family Court orders allowed the parties to communicate in relation to matters concerning the welfare of their children. The appellant says of these documents:
1.his lawyer was not notified prior to the hearing that they would be relied upon;
2.the respondent had sent much more offensive and abusive emails which were not considered by the magistrate;
3.the order allowing the communication between the parties was not tendered;
4.the import of the emails should have been left to the Family Court to assess because they were part of a larger process that the magistrate was not in a position to adequately assess;
5.the inappropriateness of the emails tendered had never been raised in the Family Court proceedings; and
6.the cherry picking of the documents resulted in a clearly biased distortion of events.
The appellant's counsel did not object to the tender of the documents at the final order hearing. Nor did she seek an adjournment of proceedings on the basis that she needed time to take instructions about the emails or to consider forensically how to respond to them. In light of that fact no complaint can now be made about the way the magistrate approached these documents.
It was not put to the respondent in cross‑examination that she did not regard the content of the emails to be intimidating, offensive or emotionally abusive. It was not suggested to her that she had sent much more abusive or offensive correspondence to the appellant.
In support of his submission that the respondent could not have regarded his emails as emotionally abusive or offensive because her own behaviour was worse than his, the appellant's submissions set out 28 examples of what he says are the offensive comments made about him by the respondent[22] and what he says in response to those comments. These were not in evidence before the magistrate.
[22] Appellant's submissions pages 14 – 19.
As I stated earlier, an appeal from the magistrate proceeds on the basis of the evidence before the magistrate and any further evidence which the court gives leave to be adduced in the appeal. The appellant did not seek leave to adduce evidence as to these matters and no such leave was given. Accordingly I have had no regard to these examples of the respondent's behaviour in determining the appeal.
There was nothing before the magistrate which would lead me to conclude that she was wrong to characterise the emails from the appellant to the respondent as offensive, intimidating or emotionally abusive on the evidence that was before her.
As to the admission into evidence of emails, there is no reason why they should have been left to the Family Court to consider. The Family Court orders permitted communication between the parties as to matters concerning the welfare of the children. The magistrate clearly understood this when considering the application. Nothing turns on the fact that the Family Court order was not tendered in the Magistrates Court hearing. There is nothing in the Family Court Act 1997 or the RO Act that prevents a magistrate hearing an application for final orders from having regard to communications which one party says are permitted by order of the Family Court. The Family Court orders do not permit the appellant to commit acts of abuse in or under the guise of communication about the children. The magistrate was entitled to have regard to these communications.
The appellant submitted that he was entitled by his emails to question the respondent's parenting for what he felt was good reason. He submits that it is 'simply unrealistic' that he should not make comments on the respondent's parenting if he feels her behaviour is to the detriment of his children.
The magistrate found that the emails transcended the description of communication regarding the welfare of the children and amounted to intimidating, offensive or emotionally abusive communications notwithstanding that in parts they raised issues concerning the children. It was open to her to come to that view.
Failed to properly understand the facts regarding the alleged bathroom incident of 2012
The appellant seeks in his submissions to explain his version of the incident in which the magistrate found the appellant put his fist through the bathroom door in 2012. He says that if the magistrate had properly understood the circumstances, including the layout of the bathroom, she could not have found the incident to have occurred as the respondent gave evidence that it did. I have understood this to be a submission that the magistrate made an error of fact.
Both parties gave evidence about this incident. The photograph to which the appellant refers in his submissions in support of his version of events was not before the magistrate and I refused leave for it to be adduced in evidence in the appeal. Accordingly, I have not had regard to it or the appellant's submissions about findings which he said could be drawn from it.
Further, the four substantive paragraphs of page 21 of the appellant's submissions describe the layout of the bathroom and the size of the doorway and the appellant's reasons for saying that the incident could not physically have occurred as the respondent said it did. The information about the layout of the bathroom was not evidence before the magistrate. I have therefore disregarded that information and the submissions which are made about it.
On the evidence which was before her, the magistrate found that the appellant was not credible in relation to this incident and accepted the respondent's version of events.[23]
[23] ts 1 (1 December 2016).
The magistrate was best placed to assess the credibility of the witnesses in relation to this event.
Unable to give evidence – Browne v Dunn
The appellant says that because of the application of the rule in Browne v Dunn (1893) 6 R 67 he was restricted from providing detailed accounts of events that had transpired but about which the respondent gave evidence.
That rule applies in both criminal and civil proceedings. It is a rule, which is a rule of professional practice and not a rule of law. In Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478 [21] the court said:
The rule arises from an obligation of fairness to both the witness and the party calling the witness. The cross-examiner must confront the witness whose evidence is to be contradicted by other evidence or to be otherwise challenged … The rule rests upon the notion of fairness and is designed to give the witness an opportunity to meet the challenge. The rule facilitates a tribunal's assessment of the reliability and accuracy of the witness. Consequentially if matters in controversy are not 'put' to the witness in cross-examination the tribunals capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded.
In Browne v Dunn Lord Herschell LC, after commenting on the fact that if a party intends to impeach a witness the party is bound, whilst that witness is in the box, to put him on notice that his evidence is to be contradicted and give him an opportunity to explain his version of the events, stated:
Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakenly given and the point upon which he is impeached and is to be impeached is so manifest that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there being no suggestion whatever in the course of the case that his story is not accepted. (p 70 ‑ 71)
The appellant submits that particular exhibits relied upon by the respondent were not disclosed to his counsel in advance of the hearing and hence the hearing did not follow the disclosure rules of other courts. The result of this, he says, is that 'a great burden is therefore placed on a defendant's individual testimony and if that is curtailed then one's case is unfairly compromised'. The appellant submits that rather than preventing him from giving evidence of matters not put to the respondent the magistrate should have allowed the respondent to be recalled.
The appellant submits that the magistrate's application of the rule in Browne v Dunn precluded him from giving his version of events as they related to the following:
1.exhibit 8 - his response to the respondent about an asthma plan;
2.exhibit 2 - his correspondence entitled 'the rules of moving forward'; and
3.exhibits 3, 4 and 5 – emails which the magistrate found to have been offensive and emotionally abusive in which the appellant disparaged the respondent's parenting.
The appellant's submissions sets out what his evidence would have been had he been allowed to give it and the conclusions which he says could and should be drawn from that evidence. By way of example, in relation to the 'rules for moving forward' email (exhibit 2) the appellant says he would have given evidence that his intention in sending the email was to respond in a calm, sensible, rational and inoffensive manner to what were in his view, irrational, offensive, distressing and inappropriate comments made by the respondent to him, or about him to others. The appellant submits that the application of the rule in Browne v Dunn prevented the magistrate from coming to a proper appreciation of exhibit 2 and caused him to be denied a fair hearing.
As I have noted previously, the appellant was represented by counsel at the final order hearing. It is apparent from his counsel's closing submissions that his version of why that document was prepared and the circumstances in which the other emails about which he complains were written had been canvassed with him in his evidence and canvassed by his counsel in her closing submissions.[24]
[24] ts 8 – 9 (1 December 2016) where Ms Alfreds describes the 'rules of moving forward' as 'an attempt by Mr Allen to stand his ground, having had a difficult relationship with Mrs Allen and the other emails having been written in 'the context of frustration in not having seen his children'.
On no occasion when the respondent's counsel raised the issue of the appellant giving answers to questions which were not put to the respondent in cross‑examination did the appellant's counsel advance the possibility of the respondent being recalled for that purpose. On each occasion where objection was taken the appellant's counsel essentially conceded the objection and immediately moved to another area of questioning. At one stage she asked the magistrate for an adjournment in the middle of her examination of the appellant for the purpose of explaining to him why it was that when 'new things were coming out' she was being 'pulled up all the time'.[25]
[25] ts 66 – 67 (21 November 2016).
At a final order hearing the court is bound by the rules of evidence. While it would have been open to the magistrate to consider recalling the respondent no such application was made.
There is nothing to suggest that the magistrate made any error of fact or law or in the exercise of her discretion in her approach to this evidence.
Magistrate confused events and dates
The appellant complains that the magistrate was confused in her judgment because:
1.in her reasons for decision the magistrate referred to an incident in which the respondent was corralled by the appellant in the kitchen as being followed by texts from the appellant to the respondent whereas in fact the texts predated the kitchen incident;
2.she referred to exhibit 1 having been sent on 3 January 2016 whereas it was in fact sent on 2 January 2016; and
3.she referred to an email as having been sent by the appellant in response to an asthma plan when in fact there never was an asthma plan.
I have taken this complaint to be a submission to the effect that the magistrate erred in her appreciation of the facts to such an extent that the decision should be set aside.
In Government Insurance Office (NSW) v Bower (1991) 14 MVR 473, 481 which was a decision of the New South Wales Court of Appeal Kirby P said:
It is basic to the just resolution of disputed issues of fact at trial that the reasons given to support the judge's conclusion in favour of one party, and adverse to another, should disclose no relevant error of law, no significant error of fact finding and should deal fairly and accurately with at least the most important evidence supporting the case of the party which has lost. The reasons given are subject to scrutiny not only for these qualities but for the internal consistency of the findings which are made. These are features of a rational justice system. They are put to the test by the facility of appeal.
As can be seen from that passage an error of fact needs to be significant before a decision should be set aside on appeal. The error complained of needs to be material.
In relation to the first two errors of fact complained of, while the magistrate may have inadvertently referred to the wrong dates in delivering her oral reasons for decision it is clear that she was satisfied that the events complained of had occurred. In my view there is nothing special about the dates on, or the order in which the events occurred, that would have altered those findings. As such, the errors are not significant and do not provide a basis for setting the final order aside.
In relation to 3 above, the appellant's submission is that the magistrate was wrong in her understanding of the email (exhibit 8) in which the appellant responded to the respondent's communication about what she said was his family's inadequate care for her daughter who she regards as suffering from asthma. The appellant's submission is that the daughter the subject of the email does not suffer from asthma and so while his wife had correspondence with him about her concerns regarding the daughter having asthma, the magistrate was wrong to characterise the email as a response sent to an 'asthma plan'. He says this error calls into question the magistrate's decision as a whole.
The characterisation of the email as being sent in response to an asthma plan, whether correct or not, did not alter the magistrate's understanding of the circumstances in which the correspondence was sent between the parties. Her point was that she found that document to be offensive and abusive in its content and tone. The example she gave of the offensive and abusive parts of the email were the following two passages:
given your history of fanciful departure from reality, i have no faith in you as a responsible and balanced parent able to make impartial, rational and balanced assessments (it is not in your nature unfortunately)
and
the only abuse inflicted upon OUR children has been by your hands.
Whether or not the child in question had asthma was irrelevant to the magistrate's findings about the tone and contents of the email and the mis‑description of the document is at best a minor error and is not an error of the kind that would lead to the setting aside of the magistrate's decision.
Merits of appeal from Order
It is clear from the magistrate's reasons to which I have referred earlier that there was evidence, which she accepted was credible, that the appellant had behaved towards the respondent in an ongoing manner that was intimidating, offensive or emotionally abusive.
She then came to the view that she was satisfied on the evidence that the respondent reasonably feared that the appellant would commit an act of abuse against her in the future. Accordingly she came to the view that it was appropriate to make the Order.
Under s 11A of the RO Act the court may make an order where it is satisfied that:
(a)the respondent has committed an act of abuse against the person seeking to be protected and the respondent is likely again to commit such an act against that person; or
(b)a person seeking to be protected, … reasonably fears that the respondent will commit an act of abuse against the person.
To make an order under s 11A(a) the view of the respondent as to the likelihood of the appellant committing acts of abuse in the future are irrelevant. It is the magistrate who must hold the view as to the likelihood of the act of abuse being committed in the future.
Under s 11A(b) no act of abuse needs to have already been committed for an order to be made. The magistrate needs only to be satisfied that the person seeking to be protected reasonably believes an act of abuse will occur in the future.
While the magistrate's decision ran both limbs of the test together it is quite clear from her reasons she had reached the view referred to in s 11A(b).
There is nothing before me that leads to the conclusion that the magistrate was wrong in law or fact or in the exercise of her discretion in a way that required the Order to be quashed. The appeal should therefore be dismissed.
Appeal in relation to costs
Following her decision to make the Order the magistrate ordered the appellant to pay the respondent costs in the sum of $7,441.40.
The respondent complains that the protection given to applicants for restraining orders against costs orders found in s 69(2) of the RO Act (which provides that no costs are to be awarded against an applicant for a restraining order unless the court determines that the application was frivolous or vexatious) inherently disadvantages a respondent over an applicant because a respondent to an application is at greater risk of having costs awarded against him or her given s 69(1) gives the court the discretion to make, subject to subsections (2) and (3) 'such orders as to costs as it considers appropriate'.
In my view, whether this is inherently disadvantageous to a respondent is irrelevant to the determination of the costs appeal. The view of the respondent as to the fairness of the discretion conferred upon a court to award costs could be regarded as political commentary at best. Parliament has enacted a law in relation to the awarding of costs and it was open to the magistrate to exercise her discretion to make the costs order against the respondent provided that she came to the view that such an order was appropriate in the circumstances.
I may only uphold the appeal against the costs order if I am satisfied that the respondent has demonstrated a legal, factual or discretionary error by the magistrate in making that costs order.
The only ground upon which the appellant relies in appealing the costs order is that because the appellant was the recipient of a grant of legal aid, she would not have had to pay to Legal Aid any legal costs if no costs order had been made in her favour.
That argument discloses no such legal, factual or discretionary error on the part of the magistrate.
Conclusion
There was ample basis upon which it was open to the magistrate to conclude that the appellant had behaved in an ongoing way which was intimidatory, offensive or emotionally abusive towards the respondent and upon which she could conclude that the respondent's belief that he would continue to do so was reasonable.
I am not satisfied that the magistrate made any legal, factual or discretionary error which would justify setting aside either the Order or the costs order from which the appellant appeals.
Accordingly the appeal is dismissed.
I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
ASSOCIATE TO JUDGE GLANCY1 AUGUST 2018
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