B v H
[2024] WASCA 46
•29 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: B -v- H [2024] WASCA 46
CORAM: MITCHELL JA
HALL JA
TOTTLE J
HEARD: 10 APRIL 2024
DELIVERED : 29 APRIL 2024
FILE NO/S: CACV 80 of 2023
BETWEEN: B
Appellant
AND
H
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: BERRY J
Citation: [H] and [H] [2023] FCWA 139
File Number : AIP 5414 of 2021
Catchwords:
Restraining orders - Family law - Whether Family Court of Western Australia was correct in dismissing an application by the appellant, the adult son of the respondent's wife, for a family violence restraining order against the respondent pursuant to section 63 of the Restraining Orders Act 1997 - Whether making allegedly false statements in an affidavit in support of the respondent's claims in a property dispute constituted 'family violence' or provided reasonable grounds for the appellant to believe that the respondent will commit family violence against him
Legislation:
Restraining Orders Act 1997 (WA), s 4, s 5A, s 10D, s 10F, s 10H, s 63, s 64, s 69
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | No Appearance |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | KDK Family Law |
Case(s) referred to in decision(s):
Baron v Walsh [2014] WASCA 124
Lydon v Lydon [2008] WASCA 8
JUDGMENT OF THE COURT:
We are considering an appeal against a refusal by a judge of the Family Court of Western Australia to grant a family violence restraining order protecting the appellant from the respondent. For the following reasons, the appeal must be dismissed.
Factual and procedural background
This appeal arises out of Family Court proceedings between the appellant's mother and the respondent, to which the appellant is also a party. The appellant's mother and the respondent married on 28 May 2016 and separated on 16 January 2021.
The Family Court proceedings concern a property dispute between the appellant, the appellant's mother and the respondent. The appellant has been joined as a party to the Family Court proceedings on the basis that he claims (and his mother claims him to have) a one-third interest in real property located in a Western Australian country town (Property) of which his mother is the sole registered proprietor. In broad terms, the appellant claims his interest to have arisen by way of an estoppel by reason of his detrimental reliance on an oral agreement between the respondent, the appellant's mother, and the appellant. The alleged agreement was to the effect that the appellant would have such an interest in return for undertaking renovation work on the Property and another property (Previous Property), the sale proceeds of which were used to acquire the Property. The appellant also claims damages against the respondent for fraud or deceit arising out of the respondent allegedly feigning a terminal illness.[1]
[1] See the appellant's statement of claim dated 6 October 2021 in the Family Court proceedings (Blue AB 95 - 107).
In March 2021, shortly after the separation of the appellant's mother and the respondent, the appellant and the appellant's mother sought and obtained from the Magistrates Court of Western Australia interim family violence restraining orders against the respondent. Those orders were made under the Restraining Orders Act 1997 (WA) (RO Act). After various procedural steps, which it is unnecessary to set out in these reasons, conduct agreement orders were made under s 10H of the RO Act. Under s 10H, the conduct agreement orders do not involve any admission by the respondent, or finding by the court, of the matters alleged by the appellant and the appellant's mother. The conduct agreement order in favour of the appellant's mother expired on 4 November 2022. The conduct agreement order in favour of the appellant expired on 24 March 2023.
On 31 January 2023, the primary judge heard and determined various interim applications made in the Family Court proceedings by the appellant and the appellant's mother. Relevantly for present purposes these included:
1.An application by the appellant to strike out aspects of the respondent's defence and affidavits and dismiss the respondent's application for final relief on the basis that it was frivolous, vexatious or an abuse of process.
2.An application by the appellant's mother for injunctive relief in the same terms as the conduct agreement order which had expired in November 2022.
The primary judge dismissed both applications for reasons given orally on 31 January 2023, which were subsequently converted to written reasons. As to the appellant's application, the primary judge concluded:
At this stage of the proceedings the Court is not prepared to strike out any aspects of the [respondent's] evidence or his defence, nor is the Court prepared to restrain or otherwise prevent the [respondent] from relying upon matters which are allegedly inconsistent with previous evidence filed by him in other proceedings in this Court. The Court dismisses [the appellant's] application so far as it asserts the [respondent] to be making a frivolous or vexatious application. The competing applications of the parties require determination at trial at which time findings of the facts upon contested evidence may be made.
The primary judge dismissed the application by the appellant's mother for injunctive relief for the following reasons:
The [appellant's mother] refers to the [respondent's] allegedly increasingly aggressive and abusive behaviour by the end of 2018, and two or three major violent outbursts per week in January 2021.
The [appellant's mother] otherwise refers to the [respondent] staying as an inpatient for psychiatrist assessment at Fremantle Hospital from 27 August until 4 September 2020. The [appellant's mother] gives evidence of frequent and significant violent outbursts every few days by the [respondent] towards her during the relationship, including screaming and swearing, smashing his fists on the table, slamming doors, throwing items on the ground, smashing items, throwing punches and stopping just short of connecting with her head, staring at the [appellant's mother], waiting for her to give him food at the table.
The [appellant's mother] asserts that the [respondent's] application in these proceedings is a continuation of family violence designed to cause harm to her and [the appellant]. The [appellant's mother] also refers to the pleadings of the parties which do not constitute admissible evidence in these proceedings. The [appellant's mother] has not provided any evidence of behaviour by the [respondent] since separation in January 2021 which supports the making of a personal protection order.
In these circumstances the making of such an order is not proper and the [appellant's mother's] application is dismissed. The [appellant's mother] is free to make a further application in the future if she adduces fresh evidence which supports the making of further orders.
On 22 March 2023, the appellant applied to the Family Court for a family violence restraining order against the respondent in the same terms as the conduct agreement order that was about to expire. That application was supported by the appellant's affidavit affirmed on 22 March 2023. The appellant's affidavit identified, as alleged instances of continued 'family violence', the respondent traversing the appellant's interest in the Property and filing an affidavit which made a number of 'significantly derogatory, false and vexatious claims'.[2] The appellant alleged that the respondent, in his affidavit sworn on 14 July 2021 in support of an application for property orders, contained false statements about various matters. This included claiming that the appellant did not do certain work, that the respondent had done renovation works on the Previous Property and the Property, and that the respondent was in ill-health in 2018.[3]
[2] Appellant's affidavit affirmed 22 March 2023, par 45 (Blue AB 21).
[3] Appellant's affidavit affirmed 22 March 2023, pars 46 - 60 (Blue AB 21 - 25).
The appellant's application for a restraining order came before the primary judge on 19 June 2023, together with other interim applications in the Family Court proceedings. The other interim applications included a further application by the appellant's mother for injunctive relief in the same terms as the expired conduct agreement order. After a short exchange between the appellant and the primary judge in relation to the appellant's application for a restraining order, the primary judge said:[4]
I am going to interrupt you there. Because I have read your affidavit. None of the material that you have filed, in my view, is not matters you can't raise if you wish to do so in the Magistrates Court. You have made an application under section 63 [of the RO Act]. I am not programming this matter for a hearing, [appellant]. Your rights are not prejudiced by going to the Magistrates Court of Western Australia. If you have got a cogent case to make about a restraining order, you can file it in that court. This court isn't going to deal with it.
[4] Primary ts 19 June 2023, page 7.
After hearing submissions on the other interim applications before him, the primary judge gave ex tempore reasons, which were subsequently converted to written reasons. In those reasons, the primary judge said:
So far as the [appellant's mother] and the [appellant] seek orders for a Family Violence Restraining Order, or injunctions which mirror a Family Violence Restraining Order, the Court considers that such applications are a repetition of the issues raised in the applications previously filed by each of the parties and dismissed by the Court on 31 January 2023. The Court observes that [an appeal] against those orders was withdrawn.
Neither the [appellant's mother] nor the [appellant] adduce any evidence which requires the Court to reconsider the decision previously made in respect of these issues. The Court bears in mind that both the [appellant's mother] and [appellant] indicate that they have raised fresh evidence. To the extent that they have raised fresh evidence, the Court does not consider that those matters have sufficient weight to engage the Court’s consideration of those applications.
The primary judge therefore dismissed the application for injunctive relief by the appellant's mother and the appellant's application for a family violence restraining order. His Honour also made various orders programming the substantive application under the Family Law Act 1975 (Cth) for trial. The primary judge ordered that the respondent's costs be reserved.
Statutory provisions
Under s 63(2) of the RO Act, a court hearing proceedings under the Family Law Act may make a restraining order against a party to the proceedings. The restraining order may be made on the initiative of the court or at the request of a party to the proceedings.[5] The court is not to make a family violence restraining order under s 63 of the RO Act unless satisfied that there are grounds for making the order under s 10D of that Act and the court has regard to the matters set out in s 10F of that Act.[6]
[5] Section 63(3a)(a) and (b) of the RO Act.
[6] Section 63(4) of the RO Act.
Section 10D of the RO Act relevantly provides:
(1)A court may make an FVRO if it is satisfied that —
(a)the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or
(b)a person seeking to be protected … has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.
(2)If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.
The term 'family violence' is defined in s 5A(1) of the RO Act to mean:
(a)violence, or a threat of violence, by a person towards a family member of the person; or
(b)any other behaviour by the person that coerces or controls the family member or causes the member to be fearful.
Section 5A(2) of the RO Act provides a non-exclusive list of examples of behaviour that may constitute family violence. The list includes various forms of physical violence against a family member but also 'repeated derogatory remarks against the family member'.[7] It also includes 'stalking' the person.[8]
[7] Section 5A(2)(d) of the RO Act.
[8] Section 5A(2)(c) of the RO Act.
Under s 4(3) of the RO Act, a person is a family member of another person if the persons are in a family relationship. The appellant and respondent are in a 'family relationship' on the basis that the appellant is related to the respondent's spouse or former spouse (namely, the appellant's mother).[9]
[9] See s 4(1)(c) and s 4(2) (par (b)(i) of the definition of 'related') of the RO Act.
'Stalking' a person is defined in s 3(1) of the RO Act to include committing an offence under Chapter XXXIIIB of the Criminal Code (WA) against the person. Section 338E of the Code, in that chapter, creates offences of pursuing a person with intent to intimidate that person, or pursuing a person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person. The concept of 'pursue' is defined in s 338D to include 'to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise'. The term 'intimidate' in s 338D of the Code is defined to include causing mental harm to the person or to cause apprehension or fear in the person.
Section 10F of the RO Act identifies matters to which a court is to have regard when considering whether to make a family violence restraining order and the terms of that order. Putting aside matters which do not arise in the present case, these matters are:
(a)the need to ensure that the person seeking to be protected is protected from family violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them;
…
(e)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;
(f)hardship that may be caused to the respondent if the order is made;
…
(h)… current legal proceedings involving the respondent or the person seeking to be protected;
…
(k)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise;
…
(n)any other matters the court considers relevant.
Under s 10F(2) of the RO Act, the court is relevantly to have regard to the matters set out in s 10F(1)(a) and s 10F(1)(b) as being of primary importance.
Under s 63(4a) of the RO Act, an order made under s 63 of that Act is generally a final order.
Section 69 of the RO Act deals with the costs of applications under that Act. Section 69(1) relevantly provides that subject to s 69(2), a court may make such orders as to costs as it considers appropriate. Under s 69(2) of the RO Act:
A court is not to order an applicant for a restraining order to pay costs to the respondent unless it considers the application was frivolous or vexatious.
The appeal to this court
The appellant now appeals against the Family Court's refusal to make a final family violence restraining order to this court. Provision for such an appeal is made by s 64(1)(b)(ii) and s 64(6a)(b) of the RO Act read with s 211(3) of the Family Court Act 1997 (WA). Under s 211(3) of the Family Court Act, this court may affirm, reverse or vary the primary order and may make such order as, in the opinion of this court, ought to have been made at first instance.
The appellant's grounds of appeal are to the following effect:
1.The primary judge erred, in the first paragraph quoted at [10] above, in characterising the appellant's application as a repetition of an application heard on 31 January 2023, when the appellant had not made any application for a family violence restraining order during that hearing.
2.The primary judge's reasons quoted at [10] above do not correspond with the comments quoted at [9] above.
3.The primary judge erred in failing to have regard to and follow the decisions of this court in Baron v Walsh,[10] and Lydon v Lydon.[11]
4.The primary judge erred in reserving the costs of the hearing without finding the appellant's application for a family violence restraining order to be frivolous or vexatious.
[10] Baron v Walsh [2014] WASCA 124 [60] - [68].
[11] Lydon v Lydon [2008] WASCA 8 [49] - [50].
If the appeal is allowed, the appellant asks this court to make a family violence restraining order against the respondent for a period of 2 years from 23 March 2023, and that the matter otherwise be returned to the Family Court before a different judge.
The respondent has filed a notice that he does not intend to take part in this appeal and will accept any order made by this court in the appeal other than as to costs.
Disposition of the appeal against dismissal of FVRO application
It is unnecessary to resolve grounds 1 - 3 on their terms. That is because, even assuming that one or more of those grounds were established, the material before the Family Court provided no proper basis for making a family violence restraining order against the respondent in favour of the appellant. Therefore, even if the primary judge made one or more of the methodological errors asserted by grounds 1 - 3, the primary judge's ultimate order dismissing the appellant's application for a family violence restraining order should be affirmed on appeal.
The main difficulty facing the appellant's appeal is that the only conduct of the respondent to which he deposed in support of his application was, in substance, resisting the appellant's claim to an interest in the Property and making false assertions in an affidavit in support of the respondent's claims. There is no proper basis on which, in the circumstances of the present case, that conduct can be found to constitute 'family violence' against the appellant or to provide reasonable grounds for the appellant to apprehend that the respondent will commit family violence against him. That is so even assuming the falsity of the statements made in the respondent's affidavit sworn on 14 July 2021. As such, the evidence on which the appellant relied did not establish either available ground on which the court might have made a family violence restraining order under s 10D(1) of the RO Act. Therefore, s 63(4)(a) of the RO Act prevented the Family Court from making an order under s 63 of that Act.
In reaching this conclusion, we accept that the concept of family violence is not confined to physical violence and that conduct such as, for example, 'repeated derogatory remarks against the family member' may constitute family violence.
We also accept that conduct such as the commencement of legal proceedings may in some circumstances, either alone or in combination with other conduct, constitute family violence within the broad definition of that term in s 5A of the RO Act. This point can be illustrated by the decision of this court in Baron.
Baron was concerned with an earlier version of the RO Act under which the relevant question was whether the person had behaved in an ongoing manner that was intimidating towards another person within the meaning of s 338D of the Code.[12] One of the grounds of appeal in Baron was that the judge in that case had erred in holding that recourse to legally available procedures could not be regarded as intimidation.[13] The conduct in Baron included making a complaint to a disciplinary body, commencement of proceedings in the Magistrates Court, multiple interlocutory applications in restraining order proceedings and a perjury complaint to police. The conduct also included threats to do so and to commence defamation proceedings.[14] In upholding the ground of appeal, McLure P (Mazza JA and Chaney J agreeing) observed:[15]
It can be assumed for present purposes that recourse to legally available procedures without more will not ordinarily constitute an act of abuse under s 11A of the [RO Act]. However, the intent or purpose with which legally available procedures are threatened or used can result in the commission of a tort (malicious prosecution, abuse of process) or a criminal offence. For example, a threat made with intent to cause or compel a person to settle an action is a criminal offence under s 338A of the Code … Further, the commencement or maintenance of legal proceedings for an improper collateral purpose is a tort … A knowingly frivolous and vexatious claim is also an abuse of process.
The magistrate found in effect that all of the respondent's actions listed above were undertaken for an improper collateral purpose, namely to bring the [RO Act] proceedings to a premature end, either by the appellant's unilateral action or by settlement. Moreover, the threats of action to bring about that outcome bring s 338A of the Code into play.
To threaten and/or take detrimental action against a person to achieve a collateral outcome is improper (at least) and is to behave in a manner that is intimidating, even if the action involves a person availing himself of legally available procedures. I do not intend to suggest that this is an exhaustive statement of behaviour that is intimidating.
[12] See Baron [13] - [19].
[13] See Baron [57].
[14] Baron [60] - [61].
[15] Baron [63] - [65].
However, in the present case there is no repeated ongoing conduct of the type found to have occurred in Baron and to have been engaged in for a collateral purpose of the kind identified in Baron. The conduct alleged by the appellant in the present case involved the respondent resisting the appellant's claim of an interest in the Property and advancing his own application for property orders. The appellant says that statements made in the respondent's affidavit in support of his own position are demonstrably false, that he finds them deeply hurtful and is fearful that people will believe the respondent's evidence.[16]
[16] Appeal ts 9.
The statements identified by the appellant were made in a single affidavit sworn by the respondent on 14 July 2021 in support of his application for property orders. That affidavit was filed in accordance with cl 12.2 of the Family Court's Case Management Guidelines, which relevantly requires an application seeking final or final and interim property orders to be accompanied by an affidavit in support of the orders sought. The affidavit was filed almost 2 years prior to the hearing on 19 June 2023. The evidence before the primary judge did not identify any more recent conduct which was said to support the court making a family violence restraining order.
The statements made in the respondent's affidavit appear, at least generally, to be material to the resolution of the appellant's claim of an interest in the Property and the property orders sought by the respondent against the appellant's mother. Whether the statements are true will be a matter for determination at the trial of the Family Court proceedings. But even if the appellant succeeded in showing the statements to be false, that would not make the filing of the affidavit an act of pursuing the appellant with intent to intimidate him, or pursuing the appellant in a manner that could reasonably be expected to intimidate him. As noted at [6] above, the primary judge dismissed what was in effect an application for summary judgment by the appellant and there has been no appeal against that order. The respondent's opposition to the appellant's claim of an interest in the Property has not been shown to be frivolous, vexatious or an abuse of process.
In our view, the statements made by the respondent in opposition to the appellant's claim of an interest in the Property in the Family Court proceedings are not capable of amounting to 'stalking' for the purposes of s 338D and s 338E of the Code. Nor do they constitute 'repeated derogatory remarks' against the appellant. The respondent's opposition to the appellant's claim of an interest in the Property cannot be regarded either as violence, or a threat of violence or behaviour that coerces or controls the appellant or causes him to become fearful. It is not family violence as defined in s 5A of the RO Act. The evidence of:
1.the respondent's opposition to the appellant's claim of an interest in the Property; and
2.a single affidavit sworn almost two years previously,
was not, in the present circumstances, capable of satisfying the court either that the respondent had committed family violence against the appellant or that the appellant had reasonable grounds to apprehend that the respondent would do so.
The appellant also refers to the context of the previous family violence prior to the separation of the appellant's mother and the respondent in January 2021.[17] However, the appellant did not place evidence of that alleged previous family violence before the primary judge or this court. As noted at [4] above, the making of the previous conduct agreement orders did not involve any admission by the respondent or finding by the court that the respondent had engaged in that conduct. In any event, the conduct referred to is alleged to have last occurred about 2.5 years prior to the hearing of the appellant's application for a family violence restraining order without any evidence of repetition or threatened repetition since the separation of the appellant's mother and the respondent.
[17] Appeal ts 8 - 10.
For these reasons, the order of the primary court dismissing the appellant's application for a family violence restraining order was correctly made. The appeal against that order must be dismissed.
Disposition of the appeal against order reserving costs
There is no merit in the appeal against the orders reserving the respondent's costs of the matters dealt with on 19 June 2023, including the appellant's application for a family violence restraining order. The reservation of the respondent's costs was not confined to the appellant's application for a family violence restraining order but extended to the myriad of applications and issues dealt with on 19 June 2023. The only effect of that order is to preserve the respondent's ability to pursue an order for costs at a later stage of the Family Court proceedings, which would ordinarily be at the point when those proceedings were finally determined.
If the respondent were to pursue an order for his costs of the appellant's application for a family violence restraining order at some later time, then at that time the court would need to have regard to the terms of s 69 of the RO Act. But an order which merely reserves the question of the costs of that application is not inconsistent with s 69 of the RO Act. Ground 4 of the appellant's appeal to this court is not established.
Orders
For the above reasons, the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
29 APRIL 2024
0
2
1