BV (on behalf of M, N and O) v TP
[2016] WASC 228
•28 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BV (on behalf of M, N and O) -v- TP [2016] WASC 228
CORAM: KENNETH MARTIN J
HEARD: 23 MAY 2016
DELIVERED : 28 JULY 2016
FILE NO/S: SJA 1012 of 2016
BETWEEN: BV (on behalf of M, N and O)
Appellant
AND
TP
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S N VOSE
File No :RO 154 of 2015
Catchwords:
Appeal - Leave for ground - Violence restraining order (VRO) - Final order hearing - Children as special witnesses - Summary dismissal by Children's Court magistrate before evidence of children given - No final order - Power to dismiss application
Legislation:
Children's Court of Western Australia Act 1988 (WA)
Criminal Appeals Act 2004 (WA)
Evidence Act 1901 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr R M Klimek
Respondent: Mr G D Cobby
Solicitors:
Appellant: Klimek & Co Family Lawyers
Respondent: In person
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Baron v Walsh [2014] WASCA 124
CJH v The State of Western Australia [2013] WASCA 139
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
GWD v State of Western Australia [2010] WASCA 206
House v The King (1936) 55 CLR 499
Laurent v Fates [2015] WASCA 226
PAR v JLT [2015] WASC 362
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Victoria [2002] NSWSC 649; (2003) 29 Fam LR 157
Re W [2010] UKSC 12; [2010] 1 WLR 701
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Secretary to the Department of Human Services v Sanding (2011) 36 VR 221; [2011] VSC 42
Tames v Tames [2005] WASC 218
KENNETH MARTIN J:
Overview
I am dealing with an application for leave to appeal brought under pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act), in respect of a decision of a magistrate of the Children's Court (Magistrate Vose) of 4 February 2016. The learned Children's Court magistrate at that time had been dealing, at a 'final order hearing', with the application by BV, made under the Restraining Orders Act 1997 (WA) (RO Act) on behalf of BV's three children (not BV personally), for a final order violence restraining order (VRO), as against the respondent (TP), who is her estranged husband and the three children's father. The names of the parties have been anonymised. I shall at times refer to BV as the appellant and TP as the respondent.
BV and TP are married but separated. They have been living apart since October 2013. They have three school age daughters, M, N and O.
An interim VRO, on behalf of the children, was obtained by BV against TP (effectively ex parte) in August 2015 from another Children's Court magistrate.
There followed subsequent hearings in the Children's Court on 2 October 2015 and on 2 February 2016, the latter before Magistrate Vose. At the 2 February 2016 hearing there was discussion concerning the potential for TP to provide his voluntary undertaking not to contact the children in lieu, in effect, of the need for arguing over a final order VRO being made against him and which he opposed. There was no accord reached on that issue.
Two days later, on 4 February 2016, the substantive final order hearing began before Magistrate Vose. TP was legally represented. He still opposed any final order VRO. Counsel for the appellant began by leading evidence viva voce from BV (she had not, and did not then, seek any RO Act relief against TP).
After her evidence-in-chief had concluded, the learned magistrate interrogated BV's counsel over the likely content of the further evidence proposed to be given by each of the children, M, N and O. Their evidence was to follow in accord with earlier orders which had been made for a receipt of their evidence in the Children's Court, including by each of the children being declared a special witness (presumably pursuant to s 106R of the Evidence Act 1901 (WA)). That was in circumstances where oral evidence from a child is not generally received in proceedings under the RO Act, unless by s 53A(1)(b), the evidence is to be given, as it was foreshadowed here, in the Children's Court.
Having canvassed with BV's counsel the nature of the children's proposed evidence and the possible harmful effects of the experience of giving evidence upon the children, Magistrate Vose then ruled, in effect, that in all the circumstances, there was no prospect of BV succeeding in obtaining a final order VRO for the benefit of the children. He expressed a very strong disinclination against exposing the three children to the hearing process and, in particular, to cross‑examination by counsel for TP (see s 53D of the RO Act).
At that point, Magistrate Vose, without hearing any of the further evidence proposed to be led from the appellant (essentially from the children, plus one other person), summarily dismissed BV's application for a final order VRO.
The leave application to this court
An appeal notice lodged in this court on 2 March 2016 on behalf of BV (on behalf of her three children) seeks to challenge the summary dismissal decision of Magistrate Vose to end the VRO proceedings, after BV had given her evidence‑in‑chief as the first and, as it turned out, only witness on behalf of the applicants. That termination had transpired even before BV was cross‑examined and before the remaining proposed viva voce witness evidence on behalf of the applicants was led.
There is only one proposed ground of appeal for which leave is sought for this proposed appeal, under s 9 of the CA Act.
The sole proposed ground reads in the following terms:
The magistrate erred in law by summarily dismissing the proceedings after the first witness (the Applicant) gave oral evidence but before the first witness was cross-examined and before all the remaining evidence on behalf of the Applicant was presented, and therefore, before having considered all the evidence on behalf of the Applicant.
In terms of end relief that is sought within a proposed successful appeal (assuming leave to appeal is given), it was confirmed to me by counsel for BV that what is being sought is, in effect, an order from this court overturning the summary dismissal decision ‑ as regards the application for the final order VRO (ts 6). Then, BV also seeks a referral of the VRO application back to the Children's Court, for a pursuit of a final order VRO against TP, afresh.
The overall utility of such a relief journey, in circumstances where I am now told that proceedings between BV and TP are pending in the Family Court of Western Australia, looks questionable ‑ albeit I was also told those Family Court proceedings currently only relate to some property issues apparently unresolved as between TP and BV. It appears that parenting (ie, custody) orders as regards the three children are not currently being sought in the Family Court (see ts 3 and 21).
I note the parties' respective submissions, filed 9 May 2016 (appellant) and 18 May 2016 (respondent). Those submissions dealt with the proposed ground of appeal and with the jurisdiction of this court as regards s 64(1)(b) of the RO Act in relation to a decision of a Children's Court magistrate to dismiss a VRO application at a final order hearing.
This court's questionable appellate jurisdiction in the present circumstances of a dismissed final order VRO application
The appellant, on behalf of the three children, brings this appeal on the basis that s 64(1) of the RO Act, read with s 64(3) of the RO Act and in accord with s 41 of the Children's Court of Western Australia Act 1988 (WA), allows an appeal to this court, with the appeal being made under and subject to pt 2 of the CA Act. Part 2 of the CA Act deals with, inter alia, appeals to a single judge sitting in the General Division of the Supreme Court from a 'decision of a court of summary jurisdiction' - see s 6 and pt 2 div 2.
An appeal under pt 2 of the CA Act is in the nature of a rehearing: Criminal Procedure Rules 2005 (WA) r 64. The appeal court must decide the appeal on the evidence and materials that were before the lower court (CA Act s 39(1)), although the appeal court may admit other evidence: CA Act s 40(1)(e). The appeal court may ascertain what evidence and material was before the lower court in any way it considers sufficient: CA Act s 39(2).
For the purposes of the present application seeking leave to appeal, I hold BV's affidavit, sworn on 2 March 2016, containing its two attachments ‑ BV‑1 (a copy of an interim VRO issued against TP on 3 August 2016) and BV‑2 (a copy of the transcript of proceedings on 4 February 2016 before Magistrate Vose in the Children's Court for the matter PE RO 154 of 2015).
Provision of the transcript for the hearing of 4 February 2016 was in accord with r 65(1) of the Criminal Procedure Rules. That rule provides that for a party to commence an appeal under pt 2 of the CA Act, that party must lodge (inter alia) a copy of the primary court's transcript. Rule 58(1) defines 'primary court's transcript' to mean 'the transcript of the proceedings in the primary court'.
The appellant did not provide any other transcripts from the VRO proceedings in the Children's Court (ie, for the matter PE RO 154/2015), beyond the transcript for the hearing before Magistrate Vose on 4 February 2016. However, I have also had regard to a transcript for the hearing that occurred on 2 February 2016, which was part of the court file that was provided to this court by the Children's Court pursuant to r 66 of the Criminal Procedure Rules.
A directions type hearing on 2 February 2016 was held before Magistrate Vose in the Children's Court, with the same counsel appearing as would appear only two days later at the final order hearing, on 4 February 2016. As will be seen, issues dealt with at the hearing on 2 February 2016 related directly to the subsequent hearing on 4 February. Thus, while I am mindful an appeal court is not to engage in a 'frolic' of its own as regards the evidence and material that was before the lower court (Baron v Walsh [2014] WASCA 124 [81]), I am satisfied that the content of what was said at the hearing of 2 February 2016 may relevantly be said to constitute material that was before the court for the purposes of the dismissal decision the same magistrate reached on 4 February 2016 (and which is the subject matter of this appeal). I have also considered the transcript of proceedings for the hearing on 2 October 2015, in order to understand the orders made as regards the taking of evidence from the three children.
The first question that always arises is a jurisdictional question, as to whether there is scope to appeal to this court from a decision of a Children's Court magistrate to ‑ as it has been characterised by the appellant ‑ summarily dismiss an application for a final order VRO. In that realm, the respondent contends there is no permissible basis afforded under any relevant statute (appeals being entirely creatures of statute) to sustain a valid appeal in present circumstances.
But if there is scope to seek leave to appeal, the next issue that arises is showing some arguable merit in the one ground of appeal that is sought to be advanced by BV.
Background
BV's affidavit of 2 March 2016 informs me that the three children of the marriage are: N, born in 1999 (currently 16 years old); M, born in 2000 (currently 15 years old); and O, born in 2003 (currently 13 years old).
BV relates she separated from her husband, TP, in around October 2013.
On 3 August 2015, BV applied urgently on M's behalf, seeking a VRO against TP in the Perth Children's Court. She did not apply for any VRO in her own right. That day there was a hearing at the Perth Children's Court before Magistrate Horrigan.
That urgent VRO hearing was held in the absence of the respondent: see RO Act s 26. At that hearing, an interim VRO of two years' duration was issued for the protection of M upon BV's application. But it was then extended that day in its terms to also operate for the interim protection of N and for O.
The terms of that interim VRO are appended to BV's affidavit, as attachment BV‑1. The terms of the two year interim VRO provided (in part) that the respondent, TP, must not:
•be in possession of a firearm, a firearms licence or obtain a firearms licence,
•behave in an intimidatory, offensive or emotionally abusive manner towards the Person Protected ([M]),
•except as set out in part B communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text messages or any other electronic means,
•post or cause to be posted on any social networking site (such a Facebook, Twitter and including any Blog) any message or image that depicts or refers in any way to the Person Protected,
•enter, remain upon or loiter near (redacted address) Currambine or any other premises where the Protected Person lives, works or is educated or be within 100 metres of the nearest external boundary of those premises
•approach within 100 metres of the Person Protected
•cause or allow any other person to engage in conduct of the type referred to in any of the preceding paragraphs of this order on your behalf
Part B of the interim VRO contained provisions by way of exception to the restraints that were otherwise ordered under pt A (seen above), if the respondent were to:
•comply with a court order made under the Family Law Act 1975 and Family Court Act 1997, allowing [the respondent] to live with, spend time with, or communicate with a child or children named in that order
•participate in and attend court events in proceedings in which the Protected Person and [the respondent] are parties or witnesses and to comply with any order or direction of a court.
Additional orders issued, as seen under pt C of that interim VRO, extending its operation beyond child M, to also operate for the benefit of her sisters N and O.
On 14 August 2015, TP filed a completed respondent's endorsement copy of the interim VRO at the Children's Court, indicating he objected to the interim VRO becoming final. That was within the 21 days allowed for an objection, pursuant to s 31 of the RO Act. The proceedings were then listed for a hearing on 2 October 2015: see s 33 of the RO Act for the procedure that applies when a VRO respondent makes an objection.
The hearing on 2 October 2015 was before Magistrate Crawford. TP appeared, but was not legally represented. BV was represented by Mr Sanghavi, from Klimek & Co (BV would have the same solicitors for the subsequent hearings on 2 and 4 February 2016). TP indicated that he would not consent to the interim VRO being made a final order VRO. Mr Sanghavi made an oral application for each of the three children to be declared as special witnesses. Though not stated, the application was presumably made by reference to s 106R of the Evidence Act. Magistrate Crawford, whilst noting her reservations about the children being called as witnesses, granted the application. Her Honour noted that the declaration meant that the children could give their evidence by a video link from a separate room in the court building.
Although the proceedings were then adjourned to a full-day trial hearing on 4 February 2016, it eventuated that there were two further hearings before then in the Children's Court ‑ on 28 January 2016 (before Magistrate Hogan), then on 2 February 2016 (before Magistrate Vose).
The hearing on 28 January 2016 appears to have been a single-party hearing of an application by TP for a witness to appear by a telephone link (which was granted), and at which TP appeared in person by telephone link.
At the hearing on 2 February 2016, Mr Klimek (of Klimek & Co) appeared on behalf of the three applicant children (but on the instructions of BV). Now, however, Mr Jones, a legal practitioner, appeared representing TP. Procedural and evidentiary issues bearing upon the nature and duration of the final order hearing set for 4 February 2016 were discussed, including numbers of witnesses to be called and the evidence to be adduced. As will be seen, it appears that ultimately BV sought to rely on upon oral evidence from witnesses, proposed to be given viva voce at the hearing commencing two days later. There was also discussion around the possibility of TP offering a written undertaking, in lieu of the matter proceeding to a trial on 4 February.
On 2 February, his Honour noted, in overall context, the effect that having to give evidence might have on the three children. He said:
The arguments about what's being said in the affidavit [of BV, relied on for the interim VRO hearing on 3 August 2015], which I haven't even read ‑ and I don't intend to read it unless it's drawn to my attention in the course of the trial, should we have a trial. That alone says to me that both sides should be saying, well, what can we do to prevent the girls from being cross-examined or having to give evidence. It might be in the witness room, remote, but the truth of the matter is that you will be probing. They will probably not distinguish all that much between Mr Klimek and you [Mr Jones], these questions. Some of the questions they will be challenged with. And ‑ so it will be an upsetting event for the girls. Which they're probably nervous about, even now (ts 45).
Nevertheless, the final order VRO hearing began before Magistrate Vose at 10.00 am at the Perth Children's Court, on 4 February 2016. As seen, at the end he refused to issue a final order VRO. Correlatively, the interim VRO ended at that time: see RO Act s 16.
The final order VRO hearing was inter partes in nature. It was contested, with both sides represented by legal practitioners. Mr Jones appeared again for the respondent.
As I indicated, BV gave evidence‑in‑chief viva voce at that hearing, led by Mr Klimek.
It would have been open to the appellant to have relied at the final order hearing upon any earlier affidavit material as a 'record of evidence' under s 42(4) of the RO Act, at that final order hearing ‑ provided she was available to be cross-examined upon that record of evidence, in accord with s 42(5)(a). However, that course was not chosen. Instead BV was led through her evidence-in-chief, viva voce by counsel. The appellant did not raise any issue in this appeal as to any failure to admit into evidence (and to take into account) at the final order hearing any evidence, oral or by way of affidavit, given at a prior RO Act hearing: see Baron v Walsh [69] ‑ [83].
A transcript of the evidence in respect of the Children's Court proceedings of 4 February 2016 is before me as attachment BV‑2 to BV's affidavit. BV's evidence-in-chief is recorded commencing at ts 36, continuing through to ts 58. At that point her counsel, Mr Klimek, concluded her examination‑in‑chief, by his chosen phrase, 'I present the witness'.
There are some transcription identification errors in the transcript for 4 February, which have a potential to mislead if not realised. The first error is in the counsel reference at ts 58 to 'Mr Sanghavi' (who is, in fact, the legal practitioner who was assisting Mr Klimek on that day). The correct reference should be to Mr Jones, who was appearing as counsel for the respondent, TP.
It was Mr Jones, acting for TP, who made this observation to his Honour:
Sir, is now a convenient time for the mid-morning break, or did you want me to start cross-examination and break at a latter point or what thoughts, your Honour? I'm happy to go. I'm happy to …
His Honour's response was:
I'm interested in hearing Mr Klimek if this sets out really the basis of the case.
There follow ensuing references in the transcript to his Honour's exchanges with 'Mr Sanghavi'. But that once again is incorrect. The correct reference should be thereafter to Mr Klimek.
Relevantly, an important exchange set out below then followed at the completion of BV's evidence‑in‑chief, commencing at ts 58. I have highlighted some sections of significance in bold:
KLIMEK, MR: Right. Really, the evidence from the girls is the most important aspect. It's the girls - - -
HIS HONOUR: Okay. What specifically are they going to be saying?
KLIMEK, MR: The girls are fearful of their father, [M] in particular. She's fearful that she will be followed. She's fearful that she will be kidnapped, that if there's no restriction that [TP] will go to her school or house.
HIS HONOUR: Sorry. Well, what's the basis for these fears?
KLIMEK, MR:Based on their relationship with him before separation, and then these incidents since. They have a very difficult relationship with him. They have a very low threshold. If they see him, they are fearful, and your Honour will see that they are actually fearful. It will be a matter of whether your Honour consider - - -
HIS HONOUR: If that's the case, where does that provide the basis for a - and if they've got medical conditions or whatever that place them as vulnerable - - -
KLIMEK, MR: They will display - - -
HIS HONOUR: - - - the father coming to the house after - you know, in the context of separation, to drop off a present that causes anxiety because the present is unwanted - - -
KLIMEK, MR: Yes.
HIS HONOUR: How is that the basis for a restraining order?
KLIMEK, MR: The - - -
HIS HONOUR: See, what I'm after here - if this is the best case, then there's a problem. There is a problem, and I really need to raise this now before we, number one, have the girls give evidence, because, given what you've said that makes it all the more concerning that they would be called to give evidence in a situation like this.
KLIMEK, MR:Yes.
HIS HONOUR: Now, if they've got anxiety issues as a result of medical conditions and - you know, and a Family Court issue - - -
KLIMEK, MR: There's no extended Family Court proceedings (indistinct) being raised.
HIS HONOUR: Well, a family break-up okay?
KLIMEK, MR: Yes. They have to deal with that, of course.
HIS HONOUR: There's a family break-up.
KLIMEK, MR: Yes, of course.
HIS HONOUR: And, clearly, it's a bitter family break-up, okay?
KLIMEK, MR: It seems so.
HIS HONOUR: Clearly. But a family break-up that's bitter is not a basis for a restraining order, a violence restraining order. It's simply not. And, you know, I mean I have to look at this. I mean on the evidence that I've heard, if [TP] was still in the house I would be having this conversation with Mr Jones, saying, 'well, what's the basis for opposing this?' But he's not in the house. There has been very little contact since separation and, such as it has been, whilst it may have caused some anxiety, I cannot see that there is any ongoing threat. Him ringing up is a situation that has clearly been controlled, and what we're talking about is controlling annoyance.
KLIMEK, MR: What - - -
HIS HONOUR: Certainly, in relation to [N], in relation to [O] and [M], [M] in particular, there's anxiety there, but, I mean, as we've heard the evidence she [meaning O] went off to Queensland, had a wonderful time, and the evidence is that [TP] made an insensitive comment at the end of that. But that's not the basis for a restraining order.
KLIMEK, MR: If your Honour considers the girls to be genuinely scared of [TP], it's going to be a matter of whether it's reasonable for them, based on their experiences, to feel that they will be intimidated if they saw him with a (indistinct).
HIS HONOUR: In other words, grant a restraining order for therapeutic reasons for their benefit, for their mental health. Is that what you're suggesting?
KLIMEK, MR: Well, your Honour will have to decide if it's appropriate in the circumstances to.
HIS HONOUR: Well, I don't think that's a consideration at all.
KLIMEK, MR: No. What I'm saying about that is there's no Family Court proceedings on foot. If there were, then I think that would be difficult in whether it's appropriate in the circumstances.
HIS HONOUR: No, well, whether there is or not, there's a family breakdown.
KLIMEK, MR: Yes.
HIS HONOUR: And there's certain things that flow from that.
KLIMEK, MR: The girls - - -
HIS HONOUR: But I'm struggling - if this is the best case, I'm struggling to see that it is appropriate to call the girls to add to their anxiety.
KLIMEK, MR: The girls will have to give evidence that this witness cannot [referring to their mother who had completed her evidence‑in‑chief]. The youngest [referring to O] will give evidence of her being choked during the relationship. The - - -
HIS HONOUR: Yes. As I said, if [TP] was still in the house, without obviously hearing, you know, issues of denials and, you know, making determinations of fact, which of course is another issue altogether, but just on the basis of this as best-case scenario, the strongest position, if he was in the house, and that it could be established that these things occurred, a restraining order would be granted easily. But the question - that's not enough. That's not enough.
KLIMEK, MR: No. The - - -
HIS HONOUR: The issue, then, is there is a likelihood, unless restrained, the behaviour is going to continue and that's where you've got a problem.
KLIMEK, MR: Well, the ‑ ‑ ‑
HIS HONOUR: Anything beyond ‑ anything that I've heard in relation to what has occurred subsequent is not restraining‑order material, and certainly doesn't put the girls at any risk physically or psychologically.
KLIMEK, MR: The middle child, [M], there's also another incident where she did feel pursued when she was approached by the respondent, and these are girls that come from a relationship with [TP] of feeling sexualised and very uncomfortable in his presence as it is, such that the eldest child, [N], has been entirely estranged from him since the separation of her parents. Your Honour, I submit to the court that even ‑ - ‑
HIS HONOUR: Estrangement is not enough basis for a restraining order.
KLIMEK, MR: No, but based on her attitude at that particular time, even being in the proximity of [TP] would be intimidating her. She doesn't want to see him at all, and that has been communicated.
HIS HONOUR: And she controls that, doesn't she?
KLIMEK, MR: That has been ‑ ‑ ‑
HIS HONOUR: She has controlled it. Where's the need for a restraining order?
KLIMEK, MR: Well, she considers him going to her school, and there has been some evidence about that. She considers him coming to the house. There has been some evidence about that. She considers that he might see them out in the shops. There's some evidence from [M] about that.
HIS HONOUR: All right. Well, look, if that's the strongest case I think we bring this to a close now, because I just don't see that there is a basis for a restraining order, and I would be extremely, extremely concerned about these girls actually being put into the witness box to give evidence, [to] be cross-examined. That's going to add to their problems because - - -
KLIMEK, MR: I must - - -
HIS HONOUR: - - - I cannot see - - -
KLIMEK, MR: I respectfully submit, your Honour, that if they don't have the opportunity to be heard and possibly have a restraining order granted, they will be in a far worse position.
HIS HONOUR: Yes, well, I did foreshadow that that was a problem if you pressed on. You had an undertaking offered, which I thought was reasonable in the circumstances.
KLIMEK, MR: Your Honour will deal with - - -
HIS HONOUR: And, Mr Klimek, you chose not to accept that and, as Mr Jones said at the outset, the issue is really matters that are normal in the circumstances, and I'm not talking about what's alleged to have occurred prior to the marriage break-up. As I've indicated, if that can be established and he was still there I would have no hesitation in granting a restraining order. That covers one arm that needs to be proved, but the issue, then, is well, is there a likelihood of that sort of behaviour ongoing, and is it appropriate for a restraining order to be granted in all the circumstances for the protection? Is it needed for the protection of these girls? And if this is the best case, I'm of the view that it is simply not being made out.
KLIMEK, MR: I've said to your Honour that there is further evidence that only the girls can give.
HIS HONOUR: Well, you've said what that evidence, and I'm saying to you that if I accept it, it's still not enough, and that's why I'm really asking this now, before they give evidence and have to go through the process of cross-examination. I think it's appropriate to do that now. It's of great concern if you've got young people with anxiety issues having to be going through a process. I see that there is no risk, on the basis of what I've heard, of ongoing inappropriate contact.
KLIMEK, MR: The issue is that the girls, with their relationship with their father being as it is, would feel pursued on a very, very low threshold, even - - -
HIS HONOUR: Yes, well, that simply - I'm sorry, that doesn't - that's not enough. What you're really asking me is that these girls have issues and they should have a restraining order, not because, in rational terms, one is needed, but as therapy for them. Not as a way to protect them, but as a therapy. That's really how it seems to me.
KLIMEK, MR: What I'm suggesting to the court is that these girls are genuinely frightened of their father and they are frightened that if the restraining order isn't there they would feel, reasonable to them, that he would pursue - - -
HIS HONOUR: Okay, you might say that. I don't accept that as a basis for a restraining order so I think we bring it to a close now.
KLIMEK, MR: So your Honour is summarily dismissing the applicant's case?
HIS HONOUR: I am. I've heard the evidence now of the applicant, and I've heard what the girls are going to say. I do not wish them to be put through the trauma of having to give evidence and so I'm dealing with it now in a summary manner.
KLIMEK, MR: Your Honour will do what your Honour does.
HIS HONOUR: Yes. And just so that there can be no doubt whatsoever, the basis of me doing that is that, as I've said, I do not regard the second arm needing to be proved to have been established on the balance of probabilities, and so - - -
KLIMEK, MR: Your Honour, leave has been granted for the girls to appear.
HIS HONOUR: No. No, no.
KLIMEK, MR: That part has been heard.
HIS HONOUR: No, no. That's really what I'm trying to avoid at this stage by giving you the opportunity to tell me what their evidence is going to be, and I'm indicating to you that if I accepted it, it would not be enough. Okay? There it is. Matter dismissed.
Preliminary observations upon summary termination of the final order VRO application by the learned Children's Court magistrate
Two key matters (at least) are apparent from the transcript exchange I have just set out above.
First, the learned Children's Court magistrate was dealing with an inter partes final order VRO hearing at which, pursuant to the RO Act, the rules of evidence, subject to some statutory modifications, do apply. That position of formality, evidence‑wise, is in contradistinction to ex parte hearings: see RO Act s 44A. Final order hearings are also dealt with in some contradistinction to what are termed 'mention' hearings: see pt 4 of the RO Act.
Defined terms 'final order' and 'final order hearing' are found under s 3 of the RO Act, in these terms:
final order means a restraining order ‑
(a)made at a final order hearing;
(b)that becomes a final order under section 32;
(ba)made under section 40(3);
(bb)made under section 41(1) at a mention hearing with the consent of the respondent;
(c)made under section 49(1)(b) to vary a final order, being a replacement or additional final order made under that section; or
(d)that is a final order under section 63(4a) or 63A(3);
final order hearing means a hearing fixed under section 33(1), 40(3), 41(4) or 43A(7)(b).
A 'final order hearing' can occur for either a violence restraining order or a misconduct restraining order (MRO), which are also defined terms by s 3. Section 3 of the RO Act defines a 'violence restraining order' to mean an order made under that Act imposing restraints of the kind referred to in s 13.
So here, his Honour was presiding over a final order hearing where BV, on behalf of her three children, having earlier obtained an interim VRO, was seeking a final order VRO, at a fully contested hearing, where both sides were represented by legal practitioners. As noted, while the rules of evidence do not apply in respect of ex parte hearings (see s 44A(1) of the RO Act), there is an absence in the RO Act of any similar provision as regards a final order hearing.
I have already mentioned the admissibility of a 'record of evidence' from a prior hearing, subject to the qualification that, for a final order hearing, the person whose record of evidence is to be tendered must be available to be cross‑examined: see s 43(4)(b) and s 43(5)(a). As observed, that capability was not used for the taking of BV's evidence-in-chief. Nor was any issue relating to the force of any prior 'record of evidence' articulated in the appeal.
The second key feature to notice is that there appear to be multiple mechanisms under the RO Act by which either 'default' or 'consent' final VRO orders may issue ‑ see, for instance, s 32(1), if there is an absence of objection to an interim order becoming final; s 41(1), where the respondent consents to a final order being made at a mention hearing; s 42(3), where a respondent does not attend at a final order hearing but the applicant does; and s 43(2) and s 43(3), for a final order made with the consent of a respondent, but which does not constitute an admission by the respondent of all or any of the matters alleged in a VRO application.
However, this final order hearing contested before Magistrate Vose on 4 February 2016 did not fall within any of those consensual or default final order scenarios. This was a fully contested inter partes final order VRO hearing. The making of a final order VRO against the respondent was always opposed. At the end, no final order VRO was made. In fact, the outcome at the end of 4 February 2016 hearing in the Children's Court was the opposite. There was a complete absence of any 'final order'.
That negative circumstance raises the jurisdictional question as to whether, for the purposes of pursuing an appeal by s 64(1)(b) and (3) of the RO Act, there is a relevant 'decision' of the Children's Court that is a decision capable of being said to be 'in relation to a final order'. The respondent contends there is no jurisdictional basis for an appeal in such circumstances ‑ there being no final order, it follows that there can be no relevant 'decision' relating to that void.
Against that, the appellant contends that the summary dismissal of her application for a final order VRO is a 'decision' of the Children's Court that was made 'in relation to' a final order. On that basis, it is contended this court is given, via s 64(1)(3), appellate jurisdiction in relation to such a (summary) dismissal decision, towards which the appellant contends she is relevantly aggrieved.
That appellate jurisdiction controversy can be deferred to the end of these reasons.
I will simply observe now that if there is a relevant decision here that was made in respect of a 'final order', then the statutory pathway to the Supreme Court for an appeal by leave (noting that the Children's Court has been constituted here by a magistrate and not by a 'judge', as defined) is via s 64(3) of the RO Act, which provides:
if the decision was made by the Children's Court when constituted so as not to consist of or include a judge, the appeal is to be made in accordance with the Children's Court of Western Australia Act 1988 s 41.
Section 41 of the Children's Court Act is found within pt 5 of that legislation. It provides:
Subject to this Part, an appeal against a decision of the Court [ie, the Children's Court] when constituted so as not to consist of or include a judge may be made under and subject to Part 2 of the Criminal Appeals Act 2004.
Section 41 presents as being facultative or enabling, based on the use of the word 'may' and in providing that an appeal against a decision of the Children's Court (when not consisting of or including a judge) may be 'made under' and 'subject to' provisions of another statute.
Section 41 does not refer to any particular aspect of the jurisdiction conferred on the Children's Court under pt 3 of the Children's Court Act, except to limit its application, in effect, to decisions made by Children's Court magistrates. That omission is notable to the extent that pt 2 of the CA Act deals, as noted, with appeals from a 'decision' of a court of summary jurisdiction and s 19(3) of Children's Court Act provides that, in exercising the jurisdiction conferred by s 19 (and where the Court is constituted so as not to consist of or include a judge), the Children's Court is a court of summary jurisdiction.
Section 42A of the Children's Court Act provides, in similar terms to s 41, that 'an appeal against a decision or judgment of the Court when constituted so as to consist of or include a judge may be made under and subject to Part 3 of the Criminal Appeals Act 2004'. In CJH v The State of Western Australia [2013] WASCA 139 [28], which was an appeal by a juvenile offender against a conviction on indictment, Buss JA observed that the Court of Appeal's jurisdiction in respect of the appeal was conferred by s 42A.
The basic similarity between s 41 and s 42A, though noting relevant differences between the respective statutory frameworks for appeals under pt 2 and pt 3 of the CA Act and the additional wording present in s 42A (see 'which, with any necessary changes, applies as if …' and following), suggests that the effect of s 41 is to confer (or, at least, to confirm) the appellate jurisdiction of a single judge of the Supreme Court to hear and determine an appeal against a decision of a Children's Court magistrate, but with the appeal to be made under and subject to pt 2 of the CA Act.
In that context, the requirement that an appeal operating through s 41 be made under and subject to pt 2 of the CA Act, would appear to mean that the appealed 'decision' must be a 'decision' which is otherwise appealable under pt 2, subject to any contrary statutory intention apparent in the CA Act or any other statute. Notably, s 7(4) of the CA Act provides that s 7(1), (2) and (4) of the CA Act, which deal with the right of appeal available under pt 2, 'are subject to any other written law and in particular to the Children's Court of Western Australia Act 1988 Part 5'.
Section 6 of the CA Act defines a 'decision' of a court of summary jurisdiction, for the purposes of pt 2 of the CA Act (and unless the contrary intention appears), to mean a number of types of determination. At s 6(a) ‑ (g), those determinations are identified as:
(a)a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3);
(b)a decision ordering a permanent stay of a prosecution;
(c)a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
(d)a decision to acquit an accused of a charge;
(e)a decision to acquit an accused of a charge on account of unsoundness of mind;
(f)a sentence imposed, or order made, as a result of a conviction or acquittal;
(g)a refusal to make an order that might be made as a result of a conviction or acquittal;
(h)a decision as to costs;
(i)a decision made under the Criminal Investigation Act 2006 section 151.
As will now be seen, neither the making of an interim or a final order VRO, nor a dismissal of an application for an interim or final order VRO, present as a determination of a character that is identified in s 6 of the CA Act: see PAR v JLT [2015] WASC 362 [11] ‑ [12]. Nor, indeed, would a decision to summarily dismiss proceedings present as a determination as identified by s 6.
Part 5 of the Children's Court Act deals with the review and appeal of decisions and orders from that court. Leaving aside any application of s 64 of the RO Act for the moment, s 41 presents as the only provision in pt 5 that might potentially apply to a decision of a Children's Court magistrate made under the RO Act (pursuant to the jurisdiction to hear and determine applications under the RO Act conferred by s 20(2A) of the Children's Court Act and by s 7A(b) of the RO Act).
Other provisions in pt 5 of the Children's Court Act, notably s 40, s 42, s 42A and s 43, would not appear to apply in the present circumstances. Those sections deal with the review of sentences for criminal offences; the appeal of findings, orders, or other decisions made under the Children and Community Services Act 2004 (WA); and the appeal of decisions of the Children's Court by (or including) a judge.
Jurisdiction of the Children's Court
The Children's Court of Western Australia is a court of record: Children's Court Act s 5. It has such jurisdiction, and within jurisdiction may exercise such powers, as are conferred on it by statute: Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1. The Children's Court may also be taken to be given by implication whatever incidental jurisdiction or powers may be necessary for the effective exercise of that jurisdiction and those powers that are expressly conferred upon it: Grassby (16 ‑ 17) (Dawson J).
The Children's Court is a specialist jurisdiction within the court system of this state. Part 3 of the Children's Court Act deals with the jurisdiction of the Children's Court. Section 19(1) provides that the jurisdiction of the Children's Court is exclusive, as regards the hearing of a charge of an offence alleged to have been committed by a child. As noted, s 19(3) provides that in exercising the jurisdiction conferred by s 19, the Children's Court ‑ when constituted so as not to consist of or include a judge ‑ is a court of summary jurisdiction.
Section 20, in some contrast, then deals with the jurisdiction of the Children's Court to deal with matters not involving the hearing and determination of a charge of an offence alleged to have been committed by a child. Section 20(1) identifies the exclusive statutory jurisdiction which the Children's Court exercises to 'hear and determine all applications made with respect to a child' under the Children and Community Services Act s 29 or s 38(1) of the School Education Act 1999 (WA), and s 334 of the Health Act 1911 (WA).
Next, and of direct relevance as regards the issue of restraining orders and children, s 20(2A), (2) and (3) of the Children's Court Act provide further that:
(2A)Subject to this Act and the Restraining Orders Act 1997 section 52, the Court has jurisdiction to hear and determine all applications made to the Court with respect to a child under the Restraining Orders Act 1997.
(2) Section 172 of the Criminal Procedure Act 2004, with any necessary changes, applies in respect of the Court when it is exercising jurisdiction under subsections (1) and (2A).
(3) Subject to this Act, the Court has exclusive jurisdiction to hear PBO proceedings under the Prohibited Behaviour Orders Act 2010 relating to ‑
(a)a person who is under 18 years of age; or
(b)a person who has reached 18 years of age but who committed the relevant offence referred to in the Prohibited Behaviour Orders Act 2010 section 8(2)(a)(ii) while he or she was under 18 years of age.
As seen, the jurisdiction of the Children's Court to hear proceedings under the Prohibited Behaviour Orders Act 2010 (WA) (PBO Act) conferred by s 20 is exclusive in the terms provided by s 20(3)(a) and (b). But that is not said as regards the jurisdiction conferred under s 20(2A) in relation to the RO Act.
As regards jurisdiction conferred by s 20 and the nature of the applications with respect to a child that might come before the Children's Court, the Children and Community Services Act deals with, inter alia, protection orders for children ‑ see pt 4 and pt 5 of that legislation. Section 29(1) of the School Education Act makes it an offence, for which the statutory penalty of a fine applies, for a person to employ (or allow to be employed) a child of compulsory school age during the hours when the child is required to attend school or to otherwise participate in an educational programme of a school. Similarly, s 38(1) of that Act requires a parent of a child of compulsory school age who is enrolled at a school to ensure that the school attendance requirements provided for in s 23 are complied with by the child, and further provides that the penalty for a breach of those attendance requirements is a fine. Section 334 of the Health Act deals with abortions. As regards the jurisdiction of the Children's Court under that Act, see in particular s 334(9) which allows a woman who is a dependant minor to apply to the Children's Court for an order that a custodial parent not be informed of and given the opportunity to be involved in the decision regarding whether an abortion is to be performed.
As a consequence of the jurisdiction conferred upon the Children's Court to hear and determine what is clearly a range of different matters with respect to children, the judicial officers of that court become highly skilled and experienced in dealing with such matters: see, eg, Re Victoria [2002] NSWSC 649; (2003) 29 Fam LR 157 [163]; Secretary to the Department of Human Services v Sanding(2011) 36 VR 221; [2011] VSC 42 [28]. In that regard, I note what was said by Bell J in Sanding about appellate courts being cautious before interfering with decisions of the Children's Court (in that state) 'concerning the procedures to be followed in the exercise of its specialist jurisdiction' [28].
Hence, in that overall context, it will be seen that s 20(2A) of the Children's Court Act confers a non-exclusive jurisdiction upon the Children's Court, allowing it to issue orders under the RO Act, with respect to children. Section 20(2A) dovetails with s 7A(b) of the RO Act. Section 7A in the RO Act says:
An order imposing restraints may be made under this Act by -
(a)the Magistrates Court hearing an application under s 25, s 38 or s 45; or
(b)the Children's Court hearing an application under s 25, 38 or 45; or
…
Section 25 of the RO Act deals with VRO applications made in person to a court. Section 38 deals with applications for MROs. Section 45 deals with applications for variations or cancellations of VROs or MROs (whether they are orders which have been made on an interim basis, or whether they have been made as final orders).
What may now be observed as the joint jurisdictions of the Magistrates Court and the Children's Court conferred under s 7A of the RO Act becomes clearer, once s 25 of the RO Act, addressing VROs, is considered.
Section 25 lies within pt 2 div 3 of the RO Act. It envisages the application for a VRO being made in person by someone seeking to be protected under s 25(1)(a), or by a police officer on behalf of that person. Additionally, where the person seeking to be protected is a child, the application may be brought on behalf of the child by a parent or guardian of that child, or by a child welfare officer: see s 25(2)(a). Most relevantly, is s 25(3) of the RO Act, which says:
An application for a violence restraining order made in person is to be made in the prescribed form to -
(a)if the person is a child, the Children's Court; or
(b)if the respondent is not a child and the person seeking to be protected is a child, the Children's Court or the Magistrates Court; or
(c)otherwise the Magistrates Court. (my emphasis)
In the present circumstances, the persons who would receive the protections of a VRO were the three children ‑ upon the application of their mother on their behalf. But the VRO application respondent, TP, plainly was not a child. He is the children's father.
Hence, this VRO application could have been made in the first instance to the Magistrates Court (under s 7A(a) of the RO Act), rather than to the Children's Court (under s 7A(b)). Had the alternate pathway to the Magistrates Court been used, then, assuming there had eventually issued a VRO decision of the Magistrates Court that was in relation to a final order (for the purposes of meeting s 64(1) of the RO Act), the applicable appellate framework would have been very different to the present scenario. This result is curious.
By s 64(2) of the RO Act it is provided:
If the decision was made by the Magistrates Court, the appeal is to be made in accordance with Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 unless subsection (6a)(a) applies.
Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) sets down an appellate pathway to the District Court of Western Australia: see s 40. The character of such an appeal, having regard to s 43, carries the distinct flavour of an appeal against the decision of a magistrate acting in the civil jurisdiction of the Magistrates Court (see also s 5 and s 8 of that Act). That appellate pathway presents as not requiring leave to appeal, provided the appeal is commenced within 21 days after the date of the judgment: see s 40(3).
The present scenario of an exercise of RO Act jurisdiction by the Children's Court to grant a VRO as against an adult (with the objective of protecting a child) is by s 20(2A) of the Children's Court Act. The appellate pathway from the Children's Court in present circumstances is not readily discernible as being civil in character. Rather, the pathway to this court is, as seen, via s 64(3) and then (in turn) via s 41 of the Children's Court Act, leading ultimately to pt 2 of the CA Act.
In the appellate realm of pt 2 of the CA Act, leave to appeal is required in respect of each ground of appeal: see s 9(1) and (2), discussed by the Court of Appeal in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] - [56]. As already seen, there is only the one ground of appeal for present circumstances.
As regards the statutory appeal frameworks for the applications identified under s 20 of the Children's Court Act, several observations can be made:
(1)Section 42(1) of the Children's Court Act provides that any finding, order, or other decision on the hearing of an application under pt 4 or 5 of the Children and Community Services Act (when the Children's Court is constituted so as not to consist or of include a judge) may be 'the subject of an appeal' made in accordance with pt 2 of the CA Act.
(2)Section 29 and s 38(1) of the School Education Act deal with offences punishable by fines. Those offences would appear to be, with the possible exception of a minor parent, offences that would be committed by adults. The effect of s 20(1)(b) of the Children's Court Act is, in effect, to extend the jurisdiction of the Children's Court, so that the court can hear and determine all applications made with respect to a child in any proceedings relating to a s 29(1) or s 38(1) offence, even if the child is not the person who is charged with the offence. (Note that s 38(2) provides that a child of compulsory school age who is enrolled at a school must also comply with the attendance requirements provided for under s 23 of the School Education Act ‑ a breach of that requirement carrying a possible penalty of a $10 fine).
(3)Section 334(10) of the Health Act says that there is no appeal or review of any kind of an order made by the Children's Court under s 334(9).
(4)Section 37 of the PBO Act provides for appeals of decisions made under that Act in terms very similar to those of s 64 of the RO Act. Sections 37(1) to (3) of the PBO Act provide:
(1)A person aggrieved by the decision of a court in PBO proceedings may appeal against that decision in accordance with this section.
(2)If the decision was made by the Magistrates Court, the appeal is to be made in accordance with the Magistrates Court (Civil Proceedings) Act 2004 Part 7.
(3)If the decision was made by the Children's Court when constituted so as not to consist of or include a judge, the appeal is to be made in accordance with the Children's Court of Western Australia Act 1988 section 41 as if the decision were a decision referred to in that section.
In contrast to s 64(3) of the RO Act, s 37(3) of the PBO Act includes the words 'as if the decision were a decision referred to in that section'. Those words present as being in the nature of a deeming provision, such that ‑ for the purposes of the appeal right provided for in s 37(1) ‑ their effect is that a decision made under PBO Act could be taken to be a decision referred to under s 41 of the Children's Court Act.
In sum, the jurisdiction enjoyed by the Children's Court under s 20 (as regards decisions made by magistrates of that court) relates to applications for which:
(a)an express appeal right is provided for under the Children's Court Act itself (ie, for findings, orders or other decisions on the hearing of an application under pt 4 or pt 5 of the Children and Community Services Act, pursuant to s 42(1));
(b)an appeal right may possibly arise under pt 2 of CA Act via the facultative gateway of s 41 of the Children's Court Act (ie, decisions relating to applications made with respect to a child in proceedings relating to s 29 and s 38(1) offences under the School Education Act);
(c)there is to be no right of appeal or review whatever (ie, an order under s 334(9) of the Health Act, pursuant to s 334(10)); or
(d)a right of appeal arises through a provision of another act, with that other act further providing that the appeal be made in accordance with s 41 of the Children's Court Act (ie, decisions by a Children's Court magistrate made under the RO Act or the PBO Act, pursuant to s 64 and s 37 of those Acts, respectively).
In the case of scenarios (a), (b) and (d), it can be seen that the manner in which an appeal will be made and determined will follow from pt 2 of the CA Act. Thus, for whatever reason, it seems the legislature intended that appeals arising from applications heard and determined by a Children's Court magistrate pursuant to the jurisdiction conferred by s 20 of the Children's Court Act are to be made under and subject to pt 2 of the CA Act (unless a contrary intention is apparent). That pt 2 statutory framework picks up a requirement to obtain leave to appeal under s 9 of the CA Act.
For completeness, I note that s 4 of the Children's Court Act provides that s 36 of the Magistrates Court Act 2004 (WA) applies to judicial officers in the Children's Court, thereby providing an additional, albeit limited, supervisory mechanism by this court.
As I said, I shall defer for consideration to the end of these reasons the contentious issue as whether or not there is an appellate jurisdiction in this court open via s 64 of the RO Act in relation to a 'final order' for present circumstances. I will assume so, for the present.
The legal threshold for a VRO under the RO Act
As the prior consideration of the corrected transcript of the final order VRO hearing of 4 February 2016 has highlighted, Magistrate Vose necessarily and correctly focussed upon the statutory threshold for obtaining a VRO at that final order hearing. Decisions of this court have considered the thresholds applicable to obtaining a VRO under the RO Act: see Tames v Tames [2005] WASC 218 [46], [53] and Baron v Walsh.
The present application raised the somewhat unique circumstances of children seeking (by their mother) a VRO against their father: see s 11B, inserted under amendments to the RO Act by the Acts Amendment (Family and Domestic Violence) Act 2004 (WA). Section 11B says:
A violence restraining order may be made for the benefit of a child if the court is satisfied that -
(a)the child has been exposed to an act of family and domestic violence committed by or against a person with whom the child is in a family and domestic relationship and the child is likely again to be exposed to such an act; or
(b)the applicant, the child or a person with whom the child is in a family and domestic relationship reasonably fears that the child will be exposed to an act of family and domestic violence committed by or against a person with whom the child is in a family and domestic relationship
and that making a violence restraining order is appropriate in the circumstances.
Section 4(1) defines a 'family and domestic relationship' as:
(1)In this Act ‑
family and domestic relationship means a relationship between 2 persons ‑
(a)who are, or were, married to each other; or
(b)who are, or were, in a de facto relationship with each other; or
(c)who are, or were, related to each other; or
(d)one of whom is a child who ‑
(i)ordinarily resides, or resided, with the other person; or
(ii)regularly resides or stays, or resided or stayed, with the other person;
or
(e)one of whom is, or was, a child of whom the other person is a guardian; or
(f)who have, or had, an intimate personal relationship, or other personal relationship, with each other.
Section 6(1) defines an 'act of family and domestic violence' as:
(1)In this Act ‑
act of family and domestic violence means 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)assaulting or causing personal injury to the person;
(b)kidnapping or depriving the person of his or her liberty;
(c)damaging the person's property, including the injury or death of an animal that is the person's property;
(d)behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person;
(e)pursuing the person or a third person, or causing the person or a third person to be pursued ‑
(i)with intent to intimidate the person; or
(ii)in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person;
(f)threatening to commit any act described in paragraphs (a) to (c) against the person.
Section 12(1) of the RO Act identifies a series of factors that a court is to have regard to, in considering whether or not to issue a VRO and its terms. The multiple factors are too numerous to repeat. However, as regards the particular position of children as VRO protected persons, s 12(1)(ba) identifies:
the need to ensure that children are not exposed to acts of family and domestic violence.
Then, s 12(1)(c) specifies a further consideration, as regards children:
the wellbeing of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order.
By s 12(2) of the RO Act, the two considerations I have just identified under s 12(1)(ba) and s 12(1)(c) (along with s 12(1)(a) and (b)) are highlighted as being factors of 'primary importance' in a VRO assessment, where children are concerned.
On my assessment, the lengthy exchange which I have earlier set out as between counsel for the applicants and the learned Children's Court magistrate at the end of BV's examination‑in‑chief on 4 February 2016, shows his Honour was fully alive to the applicable legal thresholds of the RO Act for issuing a VRO. This is seen by reference to the need for an identification, applying an objective standard, as regards 'reasonable' fears of a child, in relation to acts of family and domestic violence, as well as to the protective needs of children, as regards exposure to acts of family and domestic violence and then, the wellbeing of children vis-à-vis a respondent's behaviour and the operation of a proposed VRO.
In short, I am of the view that the learned magistrate understood perfectly that the court's task was to determine, on the balance of probabilities, whether it was satisfied that at least one of the criteria in s 11B(a) or (b) of the RO Act had been met and that the making a VRO was appropriate in all the circumstances.
The giving of oral evidence by a child in VRO proceedings
In assessing the alleged error attributable to the learned magistrate, the following three important issues at least must present.
First, it is necessary to further characterise the nature of the decision by the learned magistrate that is the subject matter of this appeal. As will be seen, I am of the view that the decision to dismiss the VRO application should be viewed as being allied to (in the sense of being conjoined to) the learned magistrate's decision that the three children should not be called to give their oral evidence and be cross‑examined in that process. In other words, it would be inappropriate to look for error in the decision to dismiss the proceedings at that stage of the appellant's case, without also considering the views the learned magistrate had obviously reached upon whether the three children ought to be called to give evidence.
Second, at the hearing on 2 October 2015, Magistrate Crawford had declared each of the three children to be a 'special witness', presumably pursuant to s 106R of the Evidence Act. Section 106R provides, relevantly:
106R. Special witnesses, measures to assist
(1)A judge of a court may make an order ‑
(a)declaring that a person who is giving, or is to give, evidence in any proceeding in that court is a special witness; and
(b)directing that one or more of the arrangements referred to in subsection (4) are to be made for the giving of that evidence; and
(c)providing for any incidental or related matter.
(2)An order may be made under subsection (1) on application by a party to a proceeding, on notice to the other parties, or of the court's own motion.
(3)The grounds on which an order may be made are that if the person is not treated as a special witness he or she would, in the court's opinion ‑
(a)by reason of physical disability or mental impairment, be unlikely to be able to give evidence, or to give evidence satisfactorily; or
(b)be likely ‑
(i)to suffer severe emotional trauma; or
(ii)to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily,
by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject‑matter of the evidence, or any other factor that the court considers relevant.
…
(4)The arrangements that may be made under this section are ‑
(a)that the person have near to him or her a person, approved by the court, who may provide him or her with support;
(b)that the person have a communicator while he or she is giving evidence;
(c)in any proceeding for an offence, that an arrangement of the kind described in section 106N(2) or (4) is to be made.
…
(5)The court may at any time vary or revoke an order in force under this section.
Section 3 of the Evidence Act defines a 'judge' to include a magistrate of the Children's Court.
It would appear, then, that by s 106R(5) of the Evidence Act Magistrate Vose enjoyed an express power to revoke an earlier order declaring each of the children to be a special witness. Thus, a submission from counsel during the hearing on 4 February 2016 that 'leave has been granted' for the children to give evidence was not entirely correct, to the extent it implied that the court did not then hold the power to reconsider the status of each of the children as a 'special witness', for the purposes of s 106R of the Evidence Act.
The power in s 106R(5) is in the nature of a discretion (ie, the court 'may at any time') and is not made contingent upon a party making an application for an order then in force to be varied or revoked. Further, such an express grant of power can be said to carry with it everything reasonably necessary for its exercise ‑ including such implied powers as are requisite: Grassby (16).
Third, the jurisdiction conferred upon the Children's Court to hear and determine VRO applications with respect to a child includes, pursuant to s 53A of the RO Act, the ancillary power to receive oral evidence from a child. Specifically, s 53A provides:
(1)A child is not to give oral evidence in any proceedings under this Act unless ‑
(a)a court makes an order allowing the child to give oral evidence; or
(b)the evidence is given in the Children's Court.
(2)A court is not to make an order under subsection (1)(a) unless the court, having weighed the availability of other evidence and the interests of the child, is satisfied that exceptional circumstances exist which, in the interests of justice, justify the making of the order.
It is notable that the capacity to receive oral evidence from a child conferred on the Children's Court by s 53A is in terms distinct to the more‑constrained circumstances in which other courts can receive such evidence.
The circumstances in which a child may give oral evidence in VRO proceedings is further dealt with by s 53B, s 53C and s 53D of the RO Act. Those provisions provide, inter alia, that the evidence of children be given by video link (if those facilities and equipment are available); that a child witness be entitled to have a person (or persons) present to provide support; and that an unrepresented person not be permitted to cross-examine a child directly.
As regards the overall procedures that apply in VRO proceedings where a child is to give oral evidence and the particular powers that are afforded to the Children's Court in that regard, it is also notable that s 53F of the RO Act provides that a child is not to be summonsed to a hearing of an application, unless the hearing is to be held in the Children's Court or if a court makes an order allowing a child to be summonsed if it is satisfied that exceptional circumstances exist which, in the interests of justice, justify summonsing the child.
The provisions in the RO Act which deal with the giving of oral evidence by a child are similar to provisions contained in s 106A to s 106S (and including s 106R) of the Evidence Act. That portion of the Evidence Act was inserted by the Acts Amendment (Evidence of Children and Others) Act 1992 (WA) (though there have since been multiple further amendments made and additional provisions inserted). The 1992 Acts Amendment Act contained a package of reforms that, as was observed by Mazza JA in GWD v State of Western Australia [2010] WASCA 206 (Pullin and Buss JJA agreeing), 'substantially modernised the way the evidence of children was taken and received by a court' [35]. The reforms implemented by the 1992 amending legislation were based on recommendations of the Law Reform Commission of Western Australia in its report headed 'Report on Evidence of Children and Other Vulnerable Witnesses (Project No 87)', published in April 1991 (the report is available at That report had recommended, inter alia, that a child could give evidence by a video link from a remote room.
For present purposes, it will now be seen that s 53A, s 53B and s 53C of the RO Act are similar in terms to s 106R, s 106N and s 106E of the Evidence Act, respectively. Likewise, s 53D mirrors s 106G of the Evidence Act ‑ the latter provision providing that an unrepresented accused is not entitled to cross‑examine a child (or another person identified as a 'protected witness' for the purposes of s 106G).
The combined effect of the relevant provisions of the Evidence Act and the RO Act is to expressly confer upon a magistrate of a Children's Court a jurisdiction and a range of powers to effectively manage RO Act proceedings in relation to the giving of oral evidence by a child. That court may also be said to possess, by implication, whatever incidental jurisdiction or powers may be necessary for the effective exercise of that jurisdiction and those powers which are expressly conferred.
What s 160R(5) confers by express terms, and what other provisions of the Evidence Act and the RO Act may deliver by implication, is power to determine ‑ at any time and at the court's own initiative ‑ whether a child ought (or ought not) to be called to give oral evidence. In that context, the criteria as expressed in s 106R(3) and the overarching protective mechanisms set in place for the giving of oral evidence by children (and other vulnerable witnesses) by s 106R (and allied provisions in the Evidence Act) and s 53A to s 53F of the RO Act, reflect what is a clear legislative intention that courts, in managing RO Act proceedings, are to be vigilant and alive to the potential harm that the giving of oral evidence may cause to a child witness. The assessment of that harm, of course, must be considered and weighed together with what is really required to deliver justice to all parties in the context of the proceedings, including the affording of procedural fairness to a party seeking to lead the evidence from a child.
It is relevant, in this context, to note what was said ‑ albeit in a distinct jurisprudential context ‑ by the Supreme Court of the United Kingdom in Re W [2010] UKSC 12; [2010] 1 WLR 701 [23] ‑ [26], [30]. Lady Hale SCJ observed at [24] and [26]:
When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child …
…
[T]he court is entitled to have regard to the general evidence of the harm which giving evidence may do to children, as well as to any features which are particular to this child and this case. That risk of harm is an ever-present feature to which, on the present evidence, the court must give great weight. The risk, and therefore the weight, may vary from case to case, but the court must always take it into account and does not need expert evidence in order to do so.
For me, it is at the end very clear here, at least, that the learned magistrate exercised appropriate vigilance. He reached a view that each of the children were likely to experience some level of harm, if allowed to give oral evidence and that the evidence proposed to be led from the children, such as it was foreshadowed and explained to him by counsel for BV and could also be inferred from the evidence‑in‑chief of BV, would not present as anywhere sufficient as a basis for the granting of a final order VRO.
As regards procedural fairness considerations, an applicant for a final order VRO will normally be afforded (inter alia) a reasonable opportunity to be heard and to advance their case by the leading of evidence and the making of submissions. However, as was noted by the plurality in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156] (referring to observations of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam[2003] HCA 6; (2003) 214 CLR 1 at [37]), it is also the case that:
The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision‑making but in terms which have more general and immediate application, '[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them. (footnotes omitted)
The lengthy exchange between the learned magistrate and counsel for the appellant at the end of BV's evidence‑in‑chief, manifests on four occasions (which I highlighted in bold) the learned magistrate's, entirely proper, on my view, expressed concerns over exposing these three children as witnesses to the process of giving evidence, including their likely cross‑examination by counsel for TP. That consideration was being weighed by him as against the forensic worth of what was foreshadowed as their likely evidence by counsel, in the overall exercise of obtaining a final order VRO.
The respondent, TP, was represented by counsel. The children were exposed to a likelihood of being cross‑examined at the completion of their evidence-in-chief. That would have been under direct questioning ‑ in distinction to a scenario regulated by s 53D of the RO Act, which provides that an unrepresented respondent who wished to cross‑examine a child would need to put their allowed questions via the judicial officer or person approved by the court: see s 53D(b).
The strong and repeated concerns expressed for the welfare of the children in such a process by Magistrate Vose, on my assessment, was a proper and significant consideration bearing upon his ultimate following decision to summarily terminate at that point the application for a final order VRO, as he did. That only happened as now seen, following his lengthy discourse and probing of the appellant's counsel as to the likely factual character of the foreshadowed further evidence that was proposed to be next led from the three children. On any view, what was foreshadowed as that evidence by counsel was vague and unconvincing.
Beyond the foreshadowed evidence by each of the children it appears that an occupational therapist adult witness (the child M's occupational therapist) had also been summoned to appear. Her evidence was also not heard in the resulting circumstances.
BV's evidence‑in‑chief
I have not dwelt to date upon the evidence-in-chief elicited from the mother, BV. It commenced at ts 36 extending to ts 58. Then she was, in effect, presented by counsel for a cross-examination, after her evidence-in-chief. She was not cross‑examined, as events transpired.
It is not presently necessary to traverse across BV's rather brief evidence‑in‑chief in any great detail. No argument has been put to me on the present application that any aspect of her evidence has been misunderstood by his Honour.
The content of her evidence‑in‑chief was very general and somewhat disjointed. It did not identify any real concrete facts, as to a risk of exposure to an act of family and domestic violence perspective, going towards satisfying the requirements of s 11B of the RO Act.
Of course, as will be remembered, BV was not seeking the VRO against her estranged husband to protect herself. She was only seeking it for her three children.
BV was, in effect, seeking the final order VRO in the same terms as the (then) existing interim VRO, which had issued ex parte in respect of her three children as protected persons some six months earlier, at 3 August 2015.
The learned Children's Court magistrate's characterisation of BV's evidence as being inadequate, towards meeting the legal threshold for a VRO (adduced as it was in-chief viva voce and not by reference to the earlier record of the affidavit of BV which she had (presumably) adduced on behalf of her children for the interim VRO), was more than justified on my reading of the transcript, if that is relevant. The evidence that emerged in‑chief from the leading of BV was indeed inadequate towards showing a relevant risk of an act of family and domestic violence from TP in the circumstances, as against any of his three children.
I pause to note that a dismissal of the application for a final order on 4 February 2016 carried the correlative consequence, via s 16(4)(b) of the RO Act, of also terminating the prior interim VRO automatically - when the final hearing was concluded as it was, without a final order VRO being made.
The one ground of appeal: arguable merit?
The essential issue then as regards the sole ground of appeal in respect of which leave to appeal is sought, is whether the learned Children's Court magistrate has erred, in summarily dismissing (as and when he did), the application for the final order VRO, at the conclusion of BV's evidence-in-chief. That question really raises two sub-issues: first, whether the learned Children's Court magistrate held power to take that crucial step, as and when he did. Second, assuming his Honour held that power, whether it was appropriate in all the circumstances to exercise it, as he did. The latter question is obviously one of discretion - in a situation where an appellate court should be loath to intervene unless there has been some demonstrable error of legal principle exhibited in the process of exercising the discretion: House v The King (1936) 55 CLR 499.
A third sub-issue which presents is the pragmatic question of the end relief that is ultimately sought, in the event that leave to appeal were to be granted and the appeal allowed by a setting aside of the summary dismissal decision. As confirmed by counsel for BV at the hearing, what is then effectively sought is the remission of the application back to the Children's Court for a full de novo rehearing of the final order VRO application. Relief of that kind can be sought, in effect, under s 14(1)(e) of the CA Act.
Under s 14(1)(f) of the CA Act, this court, on a pt 2 appeal, can also make orders under s 36(6) of the Magistrates Court Act ‑ a power that would, in effect, amount to an exercise of a power to issue review orders in the character of (for all intents and purposes) prerogative relief by writs of certiorari and mandamus: see Magistrates Court Act s 36(1)(a)(ii).
For present circumstances, I might evaluate the argued failure of the learned Children's Court magistrate to hear the balance of all the other evidence as foreshadowed by counsel for the appellant as possibly amenable to an application for a s 36 review order ‑ that is, in effect, an order to compel the learned magistrate (if he were a party to the proceedings) to comply with a duty to hear the as foreshadowed evidence. A review order akin to mandamus would usually issue to follow the anterior review order in the nature of certiorari ‑ thereby quashing, in effect, the summary dismissal decision of the VRO proceedings.
Section 14(1)(f) of the CA Act appears to countenance the review order course against a magistrate as being open here, notwithstanding a formal absence of the relevant presiding officer as a party to the appeal ‑ for the purpose of quashing the order and the quasi mandamus. Such an omission would not create a practical difficulty, given the universal practice for the relevant judicial officer in such circumstances of entering a submitting appearance to the result of the review process: see R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
For the reasons which follow, in my view, the learned magistrate did hold the power to summarily dismiss the present final order VRO application as and when he did. Moreover, in my view, his discretionary exercise of power in the prevailing circumstances was justifiable as regards the protection of these children.
The power of the Children's Court magistrate to summarily dismiss the VRO application at a final order hearing
Addressing the question of power, it is first important to appreciate the fundamentally protective character of the jurisdiction exercised in the Children's Court by judicial officers.
The decision of the Court of Appeal in Laurent v Fates [2015] WASCA 226 also has some relevance here, particularly at [44] ‑ [51], where the court considered the power of a magistrate in the Magistrate's Court to dismiss an application for an MRO on the ground that the application constituted an abuse of process.
I have already noted s 20(2A) of the Children's Court Act, which provides the Children's Court with a non-exclusive jurisdiction, in hearing and determining applications made with respect to children under the RO Act.
As regards the practice and procedure of the Children's Court whilst exercising the jurisdiction conferred by s 20, I note s 37(2)(b) of the Children's Court Act. This provision, subject to its preface, says:
The practice and procedure of the [Children's Court] when it is exercising the jurisdiction conferred by s 20 shall be that provided by the Magistrates Court (Civil Proceedings) Act 2004 and the rules of court made under that Act by the Magistrates Court.
Reference must then follow to the Magistrates Court (Civil Proceedings) Act, particularly to pt 3 of that Act and the general procedure provisions found there, and notably s 13, which establishes the obligation to ensure cases are dealt with 'justly' ‑ an obligation which is said to include a duty to ensure that cases are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible.
Section 15 of the Magistrates Court (Civil Proceedings) Act empowers the court to act on its 'own initiative', in an exercise of power, unless there is provision to the contrary. It may also act where appropriate, without allowing submissions from the parties, or hearing the parties. Broad powers conferred under s 16(1), include the power under s 16(1)(t) to:
take any other action or make any other order for the purpose of complying with section 13.
Likewise, there is express power by s 17 of the Magistrates Court (Civil Proceedings) Act to strike out all or part of a case statement if no reasonable grounds for a claim are disclosed or its purpose is otherwise wrongful ‑ as regards that power, see Laurent v Fates [48].
In my view, in the present circumstances, Magistrate Vose held power to terminate the final order VRO application proceedings, at the time he did. I note again what I said earlier, as regards the power ‑ express and implied ‑ of the Children's Court to manage VRO proceedings in relation to the giving of oral evidence by a child.
The dismissal of the final order VRO application came about in unique circumstances, where the learned magistrate had heard and evaluated the evidence-in-chief of the mother of the three children, BV. At that point, he had clearly, by his remarks to counsel, assessed it as being inadequate to support a final order VRO, as was sought for the children.
But beyond that, and most importantly, with an eye to the proposed evidence in person from the three children as was then imminently foreshadowed, the learned magistrate specifically asked their counsel for an indication as to the nature of the evidence proposed to be led from the children. In answer to those specific enquiries, the learned magistrate received only the barest of general indications as is seen in the transcript containing the exchanges with counsel.
From what little his Honour was told by those exchanges, it is apparent that the learned magistrate was then strongly affected by a protective concern for the wellbeing of the children as witnesses, particularly as they would very likely be cross‑examined by counsel for TP. Magistrate Vose was fully entitled to ask for and to rely upon the answers he received from the applicants' counsel ‑ towards the indicative nature of the forthcoming evidence. Factually, he was told little, other than to receive what was a bare regurgitation of the porous terminology used in the RO Act, as regards the children's suggested apprehensions as to 'pursuit', or as to their being 'intimidated' (see s 6(1)(e) of the definition of 'act of family and domestic violence'). But no concrete facts to support the invocation of those opaque and rather protean words were forthcoming. Consequently, the learned magistrate was moved to act to bring the VRO final order proceedings to a halt at that point.
The learned magistrate, in circumstances where both parties were legally represented, was entitled to be guided by the indication he received as to the (inadequate) evidence foreshadowed from children. He was fully entitled at his own initiative then to render a protective assessment, as he did, that what was foreshadowed would be inadequate to support a final order VRO in terms being sought against TP and that the process of giving evidence might be harmful to vulnerable children. Making such a call was precisely his protective and specialist role to discharge as regards children.
Once it is accepted that the learned magistrate held a summary termination power of the kind his Honour exercised in these circumstances, there is little further that can sensibly be offered as a criticism as regards the decision to exercise the power in the manner that it was. There is no House v King error of principle which manifests towards his decision.
It is apparent the learned magistrate was acutely aware of the fact that TP and BV had been living separately and apart since October 2013. His evaluation of the factors as assembled under s 11B of the RO Act (and the matters identified in s 12) needed to be rendered in the final order hearing. There can be no criticism of the learned magistrate for drawing a distinction between the level of risk or threat to children at times when the parties were living under the one roof, in contrast to the level of risk in the period after October 2013 where they were not living together and where contact was minimal.
From the point of separation there had been minimal contact, save for one incident in relation to TP's apparently unwanted home delivery of a present that had been uncollected from a post office box for one of his daughters, to the residence, on one occasion. Evaluations as to threat and risk in those respects were fully within the purview of a specialist judicial officer exercising the jurisdiction conferred upon by that court by the Children's Court Act and the RO Act.
In the circumstances, there is no arguable merit in the sole ground of appeal sought to be pursued in this application. Leave to appeal must, accordingly, be refused.
In the circumstances, it is strictly unnecessary for me to address the other jurisdictional issue as to whether there is any right of appeal against a refusal or dismissal decision of a Children's Court magistrate in terms of not granting a final order VRO. Nevertheless, since the matter was argued, I will express some brief views upon that issue.
Is there a basis to seek leave to appeal under s 64(3) of the RO Act?
In my view, the answer to this jurisdictional question must be in the negative. Section 64(1) and (3) of the RO Act provide:
(1)A person aggrieved by the decision of a court -
(a)under section 23(1)(b) or 29(1)(b) to dismiss an application; or
(b)in relation to a final order,
may appeal against that decision in accordance with this section.
…
(3)If the decision was made by the Children's Court when constituted so as not to consist of or include a judge, the appeal is to be made in accordance with the Children's Court of Western Australia Act 1988 section 41.
As seen, s 41 of the Children's Court Act facilitates or enables an appeal by leave against a decision of the Children's Court to be 'made under and subject to' pt 2 of the CA Act to a single judge of the Supreme Court.
As noted earlier, a refusal of a final order VRO, on this occasion by way of the summary dismissal of that application, does not readily fit within the description of a 'decision', as regards the definition of 'decision' found in s 6 of the CA Act.
The essential question is whether, by reference to s 64(1), there was here a decision of the Children's Court 'in relation to a final order', thereby meeting the threshold for a statutory right to appeal, under s 64(1)(b).
That section must be construed not only within its immediate text, but also by reference to its context, residing as it does within pt 3 div 6 of the RO Act and, furthermore, by reference to its overall legislative purpose: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [4], [47].
In my view, the surrounding (or accompanying) provision of s 64(1)(a) of the RO Act provides an important and proximate signpost. That subsection explicitly confers a right of appeal, where there has been a decision of the Children's Court to 'dismiss an application', but only in the two limited scenarios. The two limited dismissal scenarios referred to are, first, a s 23(1)(b) scenario, where an interim application for a VRO was sought over the telephone and where that application was dismissed and, second, a s 29(1)(b) scenario, where the dismissal situation was an ex parte hearing (ie a hearing in the absence of the respondent pursuant to s 26(2) of the RO Act) seeking an interim VRO at a first hearing.
The two s 64(1)(a) expressly recognised dismissal scenarios indicate for me, that the legislature, in enacting s 64, was actively cognisant of scenarios of potential dismissal upon applications for a restraining order (ie, for either a VRO or an MRO), both in the context of interim orders and in relation to final orders, as s 64(1) read as a whole, displays.
While the legislature explicitly designates the two s 64(1)(a) scenarios of VRO application dismissal for which there are to be appellate avenues, there is nothing seen in s 64(1) that specifically addresses the very obvious potential of a VRO dismissal scenario in relation to an unsuccessful VRO final order application.
In my view, the text of s 64(1)(b) 'in relation to a final order' would be unduly and inappropriately stretched ‑ indeed, grammatically tortured ‑ were it to be found that a refusal or dismissal of a final order application would amount to a decision of the Children's Court 'in relation to a final order'. A 'final order' is, as is clear from the definition of the term in s 3 of the RO Act, an order that has been 'made' by a court (pursuant to s 11A or s 11B, in the case of a VRO), or which 'becomes' a final order under s 32, and which operates through the terms of an MRO or a VRO imposed on a respondent (which, in the case of a VRO, may include any restraints imposed on the respondent pursuant to s 13). The construction as is proposed by BV disrespects the chosen language of s 64(1). Moreover, it would have been easy for the legislature to have expressly said that there is an avenue of appeal against a decision to dismiss an application for a VRO or MRO at a final order hearing. There is no such express avenue of appeal, and that omission is telling, in my assessment. (This is also in a context of s 42(1) and s 43A, which relate to a dismissal in the circumstances of default of appearance by an applicant at a final order hearing.)
That the terms of s 64(1)(b) manifest as they do presents strongly against BV's argument that there is an avenue of appeal, ultimately to pt 2 of the CA Act, in present circumstances. In my view, there is no basis for an appeal under s 64 of the RO Act against the dismissal by a Children's Court magistrate of an application for a final order VRO.
This was an argument that was noted, but ultimately not dealt with by the Court of Appeal in Laurent v Fates [39]. I do not assess the observation at [47] in those reasons as detracting from my negative conclusion upon the jurisdictional question.
Moreover, there is no basis, as I assess the RO Act as a whole, where further relevant underlying relevant facts might emerge, that would inhibit the making of a fresh VRO application seeking interim restraining order relief.
It also goes without saying there is no longer term constraint against seeking wider and more permanent holistic relief in the more suitable curial environment in a family breakdown scenario, as in the present case, in the Family Court of Western Australia.
0
17
6