DB v RB - [2020] WADC 93

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DB -v- RB [2020] WADC 93
CORAM:   GLANCY DCJ
HEARD:   13 MAY 2020
DELIVERED          :   29 JUNE 2020
FILE NO/S:   APP 98 of 2019
BETWEEN:   DB

AND
RB

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE T R HALL
File Number            :   PER RO 1325/2019

Catchwords:

Appeal from magistrate's decision to make final orders pursuant to Restraining Orders Act 1997 (WA) - Admissibility of evidence of overseas witnesses - Reliance on evidence of child witness - Admissibility of text messages - Hardship caused by making order for a term of two years

Legislation:

Magistrates Court (Civil Proceeding) Act 2004 (WA), s 16, s 40
Restraining Orders Act 1997 (WA), s 4, s 5A, s 10D, s 10F, s 10E, s 26, s 27, s 31, s 33, s 44A, s 64

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms N A Marshall

Solicitors:

Appellant	:	Not applicable
Respondent	:	Marshall Legal

Case(s) referred to in decision(s):

Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Cameron v Cole (1944) 68 CLR 571
Defendi v Szigligeti [2019] WASCA 115
Devries v Australian National Railways Commission (1993) 177 CLR 472
Frigger v Murfett Legal Pty Ltd [No 2] [2017] WADC 7
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Googe v Spoljaric [2017] WADC 99
House v The King (1936) 55 CLR 499
Ibrahim v The Honourable Justice Martin [2012] WASC 338
International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
J v Lieschke (1987) 162 CLR 447
Oshlack v Richmond River Council (1998) 193 CLR 72
Palmer v The Queen (1998) 193 CLR 1
Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301
Smart v Prisoner Review Board (WA) [2012] WASC 48
The Commissioner of Police v Tanos (1958) 98 CLR 383
Warren v Coombes (1979) 142 CLR 531
Webber by her next friend Esme Alice Nilsson v Insurance Commission of Western Australia [2009] WADC 53
Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212

GLANCY DCJ:

Procedural history

RB applied for an interim family violence restraining order (FVRO) against DB. On 25 March 2019 the application was heard in the absence of DB, pursuant to s 26(2) and s 27(1) of the Restraining Orders Act 1997 (WA) (RO Act), and on that day the court granted the interim order.
On 3 April 2019 DB filed an objection to the order being made final pursuant to s 31 and s 33 of the RO Act.
On 29 November 2019, after hearing evidence and submissions over two days, the magistrate made a final FVRO (Final Order) for the protection of the respondent, RB and her eldest daughter, TB. The Final Order was made for a term of two years which was ordered to commence on 25 March 2019, being the date on which the interim order was made.[1]
[1] ts 76, 29 November 2019; Final Order dated 29 November 2019.
DB has now appealed the magistrate's decision to make the Final Order.

Outcome

For the reasons set out below I have found each of DB's five grounds of appeal to be without merit. Accordingly I dismiss the appeal.

Jurisdiction

Appeals from final orders made under s 43 are provided for by s 64(1) of the RO Act. Section 64(2) provides that an appeal from a final order made by a magistrate is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act).
Section 40(1) of the MCCP Act, which forms part of pt 7, provides that a party to a case which is not a minor case may appeal to the District court against an order or judgment made by the Magistrates Court in the case.
Section 40 requires an appeal to be commenced within 21 days of the decision complained of. DB's appeal was commenced within time. Accordingly, this Court has jurisdiction to determine the appeal.

Nature of the appeal proceedings

The hearing of an appeal of this kind is not a hearing de novo.
The MCCP Act s 40(4) requires the court to decide the appeal on the basis of the record (s 40(4)(a)) and considering any new evidence which it may give leave to be adduced (s 40(4)(b)). Leave may only be given under the MCCP Act s 40(4)(b) in exceptional circumstances: s 40(5).
No leave to adduce new evidence was made by DB in the course of his appeal and no leave to do so was granted.
In order to succeed in an appeal the appellant must demonstrate a legal, factual or discretionary error by the magistrate: Frigger v Murfett Legal Pty Ltd [No 2] [2017] WADC 7 [9] - [15] (Bowden DCJ).
Perhaps the widest basis for an error of law, fact or discretion is that, if upon the facts, a decision is unreasonable or plainly unjust, an appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposed in the magistrate: House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).

Self-represented litigant

Although DB was legally represented at the Final Order hearing he appeared in person in this appeal.
Conversely, RB was self-represented at the Final Order hearing but legally represented at the hearing of the appeal.
In dealing with the appeal I have been cognisant of the fact that DB is a litigant in person. There are well established principles which govern the way in which courts should approach matters in such cases. Those principles were set out in detail by Gething DCJ in Googe v Spoljaric [2017] WADC 99 [13] - [15].
In summary, they are:
(a)a litigant in person should be afforded some latitude and the documents in which he articulates his case should be approached with some flexibility: Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J);
(b)the court needs to be careful to ensure that if a litigant in person has a case, it is not denied because of a poorly expressed document or submission: Ibrahim v The Honourable Justice Martin [2012] WASC 338 [21] (Beech J);
(c)at the same time, the court must ensure that any latitude given does not work an injustice to the other party: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
Those principles governed the way in which I approached this appeal.

The statutory framework

The circumstances in which the Magistrates Court may make a FVRO are set out in s 10D of the RO Act. That section provides as follows:
10DWhen FVROs may be made
(1)A court may make a 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, or a person who has applied for the order on behalf of that person, 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.
Thus, s 10D(2) compels the court to make a FVRO if the court is satisfied of the matters in s 10D(1)(a) or s 10D(1)(b) unless there is a special circumstance that would make the order inappropriate.
Where the term 'satisfied' is used in the RO Act it means 'satisfied on the balance of probabilities': s 3. Thus an applicant for a FVRO must prove the matters in s 10D(1)(a) and s 10D(1)(b) on the balance of probabilities.
The expression 'family relationship' used in that section is defined in s 4 of the RO Act as:
family 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.
The term 'family violence' is defined in s 5A of the RO Act as follows.
(1)A reference in this Act to family violence is a reference to -
(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.
(2)Examples of behaviour that may constitute family violence include (but are not limited to) the following -
(a)an assault against the family member;
(b)a sexual assault or other sexually abusive behaviour against the family member;
(c)stalking or cyber‑stalking the family member;
(d)repeated derogatory remarks against the family member;
(e)damaging or destroying property of the family member;
(f)causing death or injury to an animal that is the property of the family member;
(g)unreasonably denying the family member the financial autonomy that the member would otherwise have had;
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or a child of the member, at a time when the member is entirely or predominantly dependent on the person for financial support;
(i)preventing the family member from making or keeping connections with the member's family, friends or culture;
(j)kidnapping, or depriving the liberty of, the family member, or any other person with whom the member has a family relationship;
(k)distributing an intimate image of the family member without the family member's consent, or threatening to distribute the image;
(l)causing any family member who is a child to be exposed to behaviour referred to in this section.
(3)For the purposes of this Act, a person who procures another person to commit family violence is taken to have also committed the family violence.
The matters to be considered by the court when making a FVRO are found in s 10F of the RO Act. That section states:
(1)When considering whether to make an FVRO and the terms of the order, a court is to have regard to the following -
(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;
(c)the need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in paragraph (b) or otherwise being subjected or exposed to family violence;
(d)the accommodation needs of the respondent and the person seeking to be protected;
(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;
(g)any family orders;
(h)other current legal proceedings involving the respondent or the person seeking to be protected;
(i)any criminal convictions of the respondent;
(j)any police orders made against the respondent;
(k)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise;
(l)any police incident reports relating to the respondent;
(m)any risk assessment, or risk‑relevant information, relating to the relationship between the respondent and the person seeking to be protected;
(n)any other matters the court considers relevant.
(2)A court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance.
(3)In having regard to the matters set out in subsection (1)(e), a past history of applications under this Act is not to be regarded in itself as sufficient to give rise to any presumption as to the merits of the application.
Section 10E of the RO Act sets out when a FVRO can be made for children. It states:
(1)An FVRO may be made for the benefit of a child if the court is satisfied that -
(a)the child has been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child is likely again to be exposed to such violence; or
(b)the applicant, the child or a person with whom the child is in a family relationship has reasonable grounds to apprehend that the child will be exposed to family violence committed by or against a person with whom the child is in a family relationship.
(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.
(3)For the purposes of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.

The magistrate's decision

It was common ground before the magistrate that parties were in a family relationship at the time of the hearing.[2]
[2] ts 66 - ts 67, 29 November 2019.
A review of the transcript reveals that the magistrate heard evidence of a generalised nature about DB subjecting his wife to physical and sexual assaults and to acts of controlling behaviour throughout their marriage and about specific occasions on which it was said that DB committed acts of family violence. The magistrate's reasons reveal that he was satisfied, on the balance of probabilities, that DB had committed the following acts of family violence against RB:
1.a sexual assault on 18 March 2019;[3]
2.the letting down of her car tyres on 22 March 2019, which he found to be an act of controlling behaviour;[4]
3.a physical assault which occurred as part of the same incident on 22 March 2019 and in which RB's tyres were let down;[5] and
4.a physical assault which occurred when RB was getting ready for work one morning.[6]
[3] ts 73 - ts 74, 29 November 2019.
[4] ts 73, 29 November 2019.
[5] ts 73, 29 November 2019.
[6] ts 73, 29 November 2019.
The magistrate was also satisfied that RB had reasonable grounds to apprehend that DB would commit acts of family violence against her. The magistrate's findings in respect to those issues were expressed as follows:[7]
HIS HONOUR: So I'm satisfied that [DB] has committed acts of family violence against [RB], being the sexual assault, being the physical assault on more than one occasion, and I'm talking about the specific allegations, not the general incidents. I do accept that now [DB] is no longer living under the same roof, that the likelihood of it happening again is reduced.
However, I'm satisfied from [RB's] evidence that given the dynamics of the relationship, given the power imbalance in the relationship given that the marriage, according to [DB] is not formally over until that is dealt with back in Malawi - I'm satisfied that [RB] reasonably fears or apprehends that unless restrained [DB] could commit a further act of violence in the future pursuant to section 10D, subsection (1)(b). That being the case, I am of the view, that it is appropriate to make a family violence restraining order for the protection of [RB]. In my view there is no special circumstance to not make that order.
[7] ts 74, 29 November 2019.
The magistrate also considered whether DB and RB's three children should also be protected.
The magistrate was satisfied on the balance of probabilities that DB had committed the following acts of family violence against TB:
1.a physical assault, an incident that occurred on an occasion after they had arrived home from the library;[8] and
2.a physical assault, an incident in 2017 which took place after TB had called RB 'dumb or stupid'.[9]
[8] ts 74, 29 November 2019.
[9] ts 74, 29 November 2019.
The magistrate found that he was also satisfied on the balance of probabilities that TB had been exposed to family violence, being the assault upon RB which occurred in the incident on 22 March 2019 in which DB also let down RB's car's tyres and a second incident in which she came into the room and witnessed her father assaulting her mother.[10]
[10] ts 74, 29 November 2019.
He was also satisfied that RB had reasonable grounds to apprehend that TB may be exposed to a further act of family violence and that TB herself had reasonable grounds to apprehend that she could be subjected to further family violence herself.[11]
[11] ts 74 - ts 75, 29 November 2019.
The magistrate found that there was no evidence that the two younger children had been assaulted by DB and that there was very little direct evidence that they had been exposed to the family violence committed against RB and TB.[12] The magistrate also found that because DB no longer lived in the family home and because he was granting the Final Order for RB's protection, he was not satisfied on the balance of probabilities that the two younger children would be exposed to family violence in the future or that there was a reasonable apprehension that they would be so exposed.[13] Accordingly, he did not include the two younger children as persons to be protected by the Final Order.
[12] ts 75, 29 November 2019.
[13] ts 75, 20 November 2019.

Grounds of appeal

DB's notice of appeal advanced five grounds of appeal. I have dealt with each in turn below.

Ground 1

Ground 1 asserts:
The honorable [sic] judge did not accept my crucial witnesses to the claims made by my wife. My witnesses had important information which could have helped the margstrate [sic] realise that my wife is a liar and had planned everything from the start.
The notice of appeal does not specify who those witnesses were said to be. In his written submissions DB referred to witnesses who were in Malawi who the magistrate would not allow him to call and to police officers who he would like to give evidence in the appeal.

The proposed witnesses in Malawi

On 27 September 2019 the magistrate received an application from the appellant seeking leave for two witnesses, a LB and a CT, to appear by audio link from Malawi.[14] It was said that LB had lived with the parties for 10 years while they resided in Malawi and CT had lived with the parties in Australia for a year between 2014 and 2016.[15] In his affidavit in support of his application to call the witnesses DB said that he wished to call them to give general evidence about his behaviour towards his wife and children within the home during the time when each witness lived with the parties.[16]
[14] Magistrate Court of Western Australia (Civil Jurisdiction) Form 23 - application dated 27 September 2019.
[15] ts 49, 29 November 2019.
[16] Magistrates Court of Western Australia (Civil Jurisdiction) Form 2, affidavit of DB dated 27 September 2019.
The magistrate refused to grant DB leave to call those witnesses. In doing so the magistrate said:[17]
HIS HONOUR:         Look, I wouldn't be granting leave for that witness to give evidence by video or audio link from Malawi. I don't think it has got much weight. I mean, there's specific allegations made by [RB] that probably [DB] had to concentrate on, being the allegation of sexual assault, the allegation of physical assault.
BROOKES, MR:      Yes.
HIS HONOUR:         And generally, just because somebody - and same in relation to the other witness - I mean (1) it's logistically difficult because they're in Malawi. I don't think we would be able to have a video link up to Malawi. It would have to be organised in advance. (2) Telephone link ups aren't of very much value I don't think.
BROOKES, MR:      Okay.
HIS HONOUR:         You can't see the witness. Thirdly, you know, allegations of domestic violence often don't occur in front of members of the public or people outside the family. So - - -
BROOKES, MR:       If I - - -
HIS HONOUR:         I don't think that evidence would be of a lot of weight anyway.
[17] ts 3, 29 November 2019.

After DB gave his evidence and before both parties made their closing submissions the magistrate again referred to the application for leave to call the two witnesses. He said:[18]
HIS HONOUR: Yes. Look, I'm unlikely to allow it. I just think, even at its highest, it wouldn't carry much weight with me. [DB] has denied the acts of sexual assault and physical violence. There has been some general complaints and some specific complaints. I'm really dealing - I'm really going to be only putting weight on the specific allegations where there have been details given. And, in relation to the general allegations, I don't put much weight on them, because there has been specifics.
So, even if these two witnesses were to give evidence and say. 'Look, we live with them and we didn't see anything', that wouldn't really persuade me to grant or not grant the order, because I'm going to be concentrating on the incidents that have been given specific evidence in relation to being the sexual assault in March, the physical assault in March, the physical assault in April and the allegations by [TB]. So even calling these people by phone, their evidence would not have much weight. So I really just don't think it is necessary to have people giving evidence by telephone from Malawi which don't address the specific incidents which are the ones I'm going to concentrate on.
[18] ts 59, 29 November 2019.
The court is not bound by the rules of evidence in final orders hearings under the RO Act and the court may inform itself on any matter in such a manner as it considers appropriate: s 44A(i) RO Act. Unless the RO Act provides otherwise, the court may also refuse to admit or limit the use to be made of evidence if it is satisfied it is just and equitable to do so or the probative value of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial or misleading or confusing: s 44A(2A). In addition, s 16 of the MCCP Act gives the court extensive powers to control and manage cases, including the power to limit the number of witnesses (including expert witnesses) that may be called in relation to an issue.
Nevertheless, whatever approach that is taken by the magistrate, it is axiomatic that the magistrate is obliged to afford procedural fairness to the parties.[19]
[19] Cameron v Cole (1944) 68 CLR 571, 589; The Commissioner of Police v Tanos (1958) 98 CLR 383, 396; J v Lieschke (1987) 162 CLR 447, 456; International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [194]; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 [37].
Ground 1 is essentially a complaint that the magistrate did not accord DB with procedural fairness; that by refusing to allow him to call witnesses, the magistrate denied him a fair hearing.
In order to determine whether the magistrate failed to accord DB procedural fairness, it is first necessary to identify the content of the requirements of procedural fairness.
The fundamental requirement of procedural fairness is that a party is given a reasonable opportunity to be heard. In effect that means ensuring that the parties are given a reasonable opportunity to present their case by evidence, information and submissions.[20]
[20] Defendi v Szigligeti [2019] WASCA 115 [47].
As the Court of Appeal stated in Defendi v Szigligeti [2019] WASCA 115 [48]:
The requirements of procedural fairness are not fixed and immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.
(footnotes omitted)
In his reasons the magistrate expressed the view that the evidence which the proposed two witnesses could give was of little weight because they were not present when the specific incidents occurred and were only able to give general evidence of the relationship between DB and RB which was observed when they lived with DB and RB.
DB could only have been denied a fair hearing if the evidence that the proposed witnesses could give was relevant to the determination of the matters set out in s 10D of the RO Act.
In the application made for leave to call these witnesses it is said that CT shared a house with DB and RB from 2013 ‑ 2014. In his evidence at the hearing before the magistrate DB said CT had lived with him in about 2014 - 2016.[21] The application states that DB and RB had lived for 10 years in the same home in Malawi as the other proposed witness, LB. Given that DB gave evidence that he moved to Australia in 2012, LB had not been in a position to observe DB's conduct towards his wife approximately five years before the acts of family violence were said to have occurred.
[21] ts 49, 29 November 2019.
DB accepted at the hearing of the appeal that neither witness was present when the alleged acts of family violence were said to have occurred and, thus, they had no evidence to give in relation to these incidents. Accepting the evidence that CT last lived with the B family in 2016 and the earliest of the incidents of family violence of which the magistrate was satisfied occurred in 2017, I consider that CT's observations of DB's conduct towards his wife were irrelevant, those observations not having been made at a time contemporaneous with the incidents.
For the same reasons, given that LB had not lived with the B family for approximately five years, I consider that her evidence would also have been irrelevant and therefore inadmissible.
In my view there is another reason why the evidence of those proposed witnesses would not have been admissible. Evidence which merely bolsters the credibility of a party or witness is inadmissible.[22] The purpose for which the proposed witnesses were to be called was to support DB's evidence that he was not a man who was violent towards his wife. As such, it was intended to be led to bolster DB's credit. The refusal to allow DB to call inadmissible evidence cannot result in a failure to afford DB procedural fairness.
[22] Palmer v The Queen (1998) 193 CLR 1 [49] (McHugh CJ).
In those circumstances the magistrate did not fail to afford DB a fair hearing in refusing to allow him to call either of those two witnesses. He made no error of fact or law and did not err in the exercise of his discretion in refusing to allow DB to call either of the two proposed witnesses.

Police officers

In his written submissions DB referred to his desire to call the police officers who attended his home. He said that when they attended his home they said to him that they could not see any sign of violence. He said that he would like them to give evidence to that effect.[23]
[23] Appeal book, page 18, appellant's written submissions.
At the final order hearing DB gave evidence that when the police attended his home on 22 March 2019[24] he asked them if they saw any sign of violence in the house and they responded 'No, but we don't care about that. We have received a call'.[25] His evidence of their response was hearsay. The police officers were not called to give evidence at that hearing.
[24] ts 50, 29 November 2019.
[25] ts 51, 29 November 2019.
RB's counsel submitted that evidence from the police officers should not be permitted to be given in the appeal for several reasons. First, because it would not constitute new evidence as it was available to be called at the final order hearing. Second, because it did not go to the heart of the matter. Third, because there were no witness statements from the officers and therefore it could not be certain that they would even give evidence in accordance with DB's recollection of their discussion. Finally, because there were no exceptional circumstances justifying the admission of the evidence.[26]
[26] ts 24, 13 May 2020.
DB, not being legally represented, may not have understood that it was necessary to make an application for leave to call additional evidence in the appeal and, as I have already noted, no such application was made.
In any event, I would not have granted leave to call the evidence. There are several reasons why that is so. First, there was in fact no additional evidence to be admitted in the appeal. There were no witness statements before the court from the police officers concerned and nor was there any indication that, if time were given for such statements to be prepared, the police officers would have given the evidence. It did not appear from any of the materials before the court that DB had even ascertained the identity of the police officers concerned. Second, even if they did give evidence in the terms indicated by DB, the fact that, on the occasion when they were called to the home, they said to him that they did not see any indications of violence is of little probative value. Many of the actions which are, by s 5A of the RO Act, acts of family violence do not involve acts of physical violence and, of course, acts of physical violence done to individuals can occur without leaving any visible physical signs which might be seen by a police officer attending the home. Even if no signs of violence were seen by police on that one occasion that would not have impacted upon the magistrate's assessment of whether or not he was satisfied other incidents of family violence occurred. Finally, DB was represented by counsel at the final order hearing and he did not seek to call the police officers to give evidence.
In my view, there were no exceptional circumstances able to be discerned that would have caused me to grant leave to adduce evidence from these police officers at the hearing of the appeal.

Conclusion in respect of ground 1

Ground 1 is without merit and fails.

Ground 2

Ground 2 is expressed as follows:
The honourable margistrate [sic] made his decision on evidence given by my daughter who was not present in the two incidences claimed. She had been coached.
At the hearing on the 26 June 2019 the magistrate granted RB's application for an order allowing TB to give evidence at the hearing.[27] At the time of the hearing TB was 15 years old.
[27] ts 87, 26 June 2019.
The permission of the magistrate was required by s 53A of the RO Act which provides that that a child cannot give oral evidence in proceedings under the RO Act unless a court makes an order permitting it. Section 53A(2) provides that a court is not to make an order for a child to give evidence unless, after weighing the availability of other evidence and the interest of the child, it is satisfied that exceptional circumstances exist which, in the interests of justice, justify the making of the order.
The magistrate allowed TB to give evidence because he came to the view that her evidence would assist the court because she was potentially a third party to some of the alleged incidents of family violence.[28] Having regard to that fact and to her age and her willingness to give evidence, the magistrate was satisfied that it was in the interests of justice, that she be permitted to give evidence.[29] No ground of appeal contends that the magistrate erred in making that order.
[28] ts 86, 26 June 2019.
[29] ts 86, 26 June 2019.
TB gave evidence that she witnessed her father committing acts which would constitute family violence towards her mother on three occasions. She also gave evidence of two occasions where she said that her father had acted towards her in a manner that would amount to the commission of acts of family violence.
The first incident was referred to by the magistrate as the 'teacup incident'. TB gave evidence that she thought the incident had occurred in the previous year (ie: 2018). In her evidence she said that her mother was not feeling well and was sitting on the couch when her father came into the room carrying a cup of tea and began mocking her and coming near her. She said her mother hit the tea cup out of her father's hand causing it to hit him in the face with the result that he received a small cut to his eyebrow. She said that after that, her father started hitting her mother who then went outside. She said that her father followed her mother outside where he continued to hit her. TB gave evidence that after the incident her father asked her to put a plaster on the cut on his brow.[30]
[30] ts 9 - ts 12, 29 November 2019.
In his grounds of appeal and in his submissions DB claims that TB was not present when the tea cup incident occurred and submitted that could be proved because her evidence differed from what he said in evidence happened in the course of the teacup incident.[31]
[31] Appeal book, page 17, appellant's written submissions.
DB gave evidence that he recalled RB and his son throughout the teacup incident were present but that TB was not.[32] It was never put to TB in cross‑examination that she was not present when this event occurred. On the contrary, she was asked by DB's counsel to describe what both the appellant and the defendant did in the course of the incident.[33]
[32] ts 42, 29 November 2019.
[33] ts 24 - ts 28, 29 November 2019.
In his reasons, the magistrate acknowledged that TB's evidence about the teacup incident differed in some respects from that which was given by both RB and DB and said that he would not expect all three witnesses to give exactly the same version of the incident.[34] He found that TB's evidence was honestly given notwithstanding those differences.[35]
[34] ts 71, 29 November 2019.
[35] ts 71, 29 November 2019.
The second incident of family violence for which DB says his daughter was not present was the incident that the magistrate was satisfied occurred on 22 March 2019 and involved DB deflating RB's car's tyres. TB gave evidence of seeing her father deflating the car tyres. In her evidence she said that while she was on the bus with her brother and younger sister she had received a message from her mother telling her to come home, that when she arrived home she had noticed that neither her mother nor her mother's car were present. Her evidence was that she then went to the bedroom to charge her phone and when she went back outside, her mother's car was there but her mother was not. She said she returned to her bedroom until her brother called for her to see what her father was doing and that it was then that she saw him deflating the tyres.[36]
[36] ts 16, 29 November 2019.
On this occasion it was never put to her in cross-examination that she was not present when the incident occurred. She was not cross‑examined about this incident at all.
In his written submissions DB claims that his daughter had been coached to give evidence about these two incidents. During her cross‑examination this possibility was canvassed with her by DB's counsel in the following way:[37]
Now, have you discussed what evidence you're going to give today with your mother? - - - No, not really like that, I knew what I was going to say.
So you haven't discussed it at all with her or you have discussed it but only a little bit? - - - Not like discussed the evidence but, like, Mum just mentions she asked me that 'Do you know what you are going to say?' and the I said 'Yes, I know'.
Okay. And did you tell your mother what evidence you were going to give? - - - I - probably just the one about this year because I didn't really have time to talk about – I don't really have time to talk about, Like, everything with her. And - - -
You have been living with your mother – you currently live with your mother though, don't you? - - - Yes, yes.
So you would have ample opportunity to discuss this with your mother, wouldn't you? - - - Yes, but it's not really matters that I was to sit down and discuss with someone. Okay.
Okay. So has your mother asked you to say certain things in court today? - - - No.
[37] ts 32 - ts 33, 29 November 2019.
The magistrate made the following observations and findings about TB's evidence:
HIS HONOUR: I found [TB] to be an honest witness. I take into account she's only 15, but she was very adamant about what happened. She was cross‑examined appropriately by Mr Brookes, and she was adamant that she saw her father assault her mother, that she was there, and that her father let her mother's tyres down. I found her to be a compelling witness, I thought she gave her evidence well, and she stuck to her evidence.[38]
[38] ts 72, 29 November 2019.
The magistrate found TB to be an honest and compelling witness. He regarded her evidence as credible and corroborative of her mother's accounts of those incidents of family violence directed towards RB which TB said she had witnessed.
In Warren v Coombes (1979) 142 CLR 531 the majority of the court said:
[i]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.
Where an appeal is made from a decision where the findings were based, and necessarily were based, upon the decision-maker's assessment of the credibility of the witnesses, it is accepted that the original decision‑maker was best placed to make determinations as to credibility, having seen and heard the witnesses give evidence.
As the majority of the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron & McHugh JJ):
… a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witnesses, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was ‘glaringly improbable'.
In other words, it must be apparent from the materials before me in the appeal that the magistrate made some obvious mistake before I can interfere with the finding made based on his assessment of the credibility of the witnesses in this case.
DB's ground of appeal essentially contends that the magistrate erred in finding that he was satisfied on the balance of probabilities that the incidents of family violence had occurred in reliance on his finding that TB was a credible witness. Having reviewed the transcript of the entirety of the evidence, I am not satisfied that the magistrate has failed to use or misused his advantage or acted on evidence that is inconsistent with facts incontrovertibly established by the evidence or that he made a finding that was glaringly improbable in light of the totality of the evidence.[39] His finding as to TB's credibility was open to him to make based on an assessment of the way in which she gave evidence, and having regard to the entirety of the evidence.
[39] Devries v Australian National Railways Commission (479) (Brennan, Gaudron & McHugh JJ).
Finally, it is worth noting that while the magistrate accepted TB was an honest witness about the tea cup incident, it was not one of the specific acts of family violence relied upon in reaching his decision to make the Final Order.

Conclusion in respect of ground 2

This ground of appeal fails.

Ground 3

Ground 3 contends as follows:
The honorable [sic] allowed evidence in the form of a text message as valid evidence. This text message had no date and was sent to an overseas number.

DB's third ground of appeal is that the text messages which were tendered by RB, which became exhibit 2, should not have been admitted in evidence by the magistrate as they were not 'valid evidence'.[40]
[40] Appeal book, page 6, appellant's written submissions.
I note that at the hearing they were tendered without objection by DB's counsel.
The text messages were, on RB's evidence, messages which she had sent to her sister in which she said, essentially, that she was very sad because she had been raped. Her evidence was that she sent them shortly after the incident had occurred. DB says that because the messages had been sent to an unknown number they were not valid evidence, by which I take it he means they were inadmissible.
As I have already said, s 44A(i) of the RO Act provides that the court is not bound by the evidence in a final order hearing and the court may inform itself on any matter in such a manner as it considers appropriate.
While the probative value of the text messages, or the weight which he gave to them, may have been an issue for the magistrate to consider, the magistrate did not err in law in admitting them into evidence as they were relevant to the matters to which he was required to have regard.

Conclusion in respect of ground 3

This ground is without merit and fails.

Ground 4

Ground 4 asserts:
The honorable [sic] magistrate disregarded the fact that in one incidence claimed by my wife I was not the aggressor. My wife attacked me for no reason and cut my eye. I pushed her back and this happened 3 years ago.
The incident to which DB is referring to in this ground of appeal is the 'tea cup incident'. As noted in relation to ground of appeal 2, DB's evidence was that his wife knocked the cup of tea from his hand and that the tea cup hit his face resulting in a cut to his face. He gave evidence that in response to being hit in the face with the tea cup he slapped RB once.[41] RB and TB each gave evidence that DB slapped RB multiple times.[42]
[41] ts 42 - ts 43, 29 November 2019.
[42] ts 41 - ts 44, 29 November 2019; ts 66, 26 June 2019.
As I have already noted at [79] the magistrate did not rely upon this incident as one of the acts of family violence which he was satisfied that DB had committed against RB.
In any event, the fact that DB may not have been the instigator of the events described as the teacup incident does not detract from the fact that DB has acknowledged that he acted violently towards his wife in the course of that incident.

Conclusion in respect of ground 4

Ground of appeal 4 has not been made out and must fail.

Ground 5

Ground of appeal 5 asserts:
The decision made by the honorable [sic] judge is very excessive. The decision was made based on three incidences which happened years apart. This does not reflect a marriage which is constantly in violence if all the claims made are true. I have lived outside our property since March 2018 with no access to any asset of money me and my wife kept together but when giving the decision the honourable [sic] magistrate gave the order for 2 years. This is unbearable for a father to live outside with no access to family assets for claims which were not genuine
This ground of appeal, although perhaps inelegantly expressed, really raises three complaints about the magistrate's decision:
(a)that it was not open on the evidence for the magistrate to be satisfied of the matters in s 10D(1) or s 10D(2) of the RO Act;
(b)even if he had been so satisfied, he ought to have found that special circumstances existed which meant that making the order was inappropriate; and
(c)the magistrate erred in imposing a term of two years.
I deal with each of those matters below. Because (b) and (c) are interrelated I will deal with them together.

That it was not open on the evidence for the magistrate to be satisfied of the matters in s 10D(1) or s 10D(2)

DB might be correct when he says that his marriage was not constantly in violence. But that is not the precondition to the making of a final order under the RO Act. Section 10D(1) of the RO Act provides that a final order must be made where the magistrate is satisfied of the matters set out in s 10D(1)(a) or s 10D(1)(b) unless special circumstances exist which would make the making of the order inappropriate.
An examination of the reasons reveal that the magistrate correctly applied the test and was satisfied of each of those matters. There is no merit in that complaint.

The magistrate erred in not finding that special circumstances existed that meant that the making of a final order was inappropriate. The magistrate erred in making the term of the Final Order two years.

DB submitted that there were special circumstances that existed in his case that meant that it would have been inappropriate for the magistrate to make the Final Order. At the hearing of the appeal they were said to have been:
i.that the making of the Final Order had caused him hardship because he had been forced to live away from the family home without any access to assets; and
ii.that, because he was on a student visa which was due to expire, and consequently, he and his family, including RB would have been returning to Malawi, no order was needed.
I have already set out the matters to which s 10F(1) directs the court to have regard when considering whether to make a FVRO. Section 10F(2) provides that the matter in s 10F(1)(a), s 10F(1)(b) and s 10F(1)(c) are the matters which the court must regard as being of primary importance. Those 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;
(c)the need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in par (b) or otherwise being subjected or exposed to family violence.
Hardship which would be suffered by DB by the making of a final order is clearly a matter to which the magistrate must have had regard. But it was not a matter of primary importance in determining whether to make the Final Order. Further, in order for hardship to be taken into account by the magistrate there must have been evidence of the asserted hardship put before the magistrate.
At the hearing of the appeal DB submitted that he has suffered financial hardship as a result of the making of the Final Order because RB has retained all of their financial assets. He says that he has been unable to complete his study, which was the reason for the family coming to Australia, because he has not been able to attend his home to obtain the required materials. He submitted that he has also been reliant on friends allowing him to stay with them for accommodation.[43]
[43] ts 17, ts 20, 13 May 2020; Appeal book, page 18, appellant's written submissions.
A review of the transcript of the hearing before the magistrate reveals that:
i.DB gave evidence that he had accommodation with a friend at the time of the hearing;[44] and
ii.although there was a brief exchange about the parties' division of assets during DB's cross-examination (which the magistrate halted as he viewed it as straying 'into the area of family law'),[45] no evidence was led as to any hardship which DB would suffer in the event the Final Order were to be made and no submissions were made by DB's counsel about this issue.
[44] ts 57, 29 November 2019.
[45] ts 57, 29 November 2019.
In that circumstance, even though DB may now find himself facing hardship as a result of the terms of the Final Order (a matter about which he made submissions at the hearing of the appeal but about which no evidence was, or was sought to be, put before the court), it cannot be said that the magistrate erred by failing to take hardship into account in coming to his decision.
In the appeal DB also submitted that because he had been intending to return with his family to Malawi at the expiry of his student visa, there existed special circumstances which made the making of the Final Order inappropriate. That circumstance being, that there was no need for RB to receive the protection of such an order from an Australian court.
The evidence before the magistrate was that DB and RB were to remain in Australia from the time of the conclusion of the Final Order hearing in November 2019 until at least February 2020.[46]
[46] ts 4, 26 June 2019.
As I have already noted, it was not submitted to the magistrate that DB's intention to return to Malawi was a special circumstance that meant making a final order was inappropriate. Rather, DB's submission was that an order was unnecessary.
DB now complains that the term of the order was excessive; that the magistrate erred in setting the length of the term and in not finding that special circumstances existed which meant that no order should have been made.
Section 16A of the RO Act provides that a final order made at a final order hearing remains in force (unless the respondent to the order is a prisoner) for the period specified in the final order or, if no period is specified, for a period of two years from the date on which the Final Order came into force. In this case the magistrate ordered that the Final Order would remain in force for two years commencing on 25 March 2019.
In my view the magistrate did not make an error of fact or law in setting the term or exercising his discretion as to the term. While DB may have intended to return to Malawi in February 2020, the magistrate could not have been certain that he would do so. In some cases individuals do remain in Australia after a visa has expired. In other cases visas can be extended and in others, individuals can move from one visa to another. An intention to return to Malawi was no more than that. DB did not, in fact, leave Australia in February 2020.
The making of the order of a term of two years does not prevent DB from returning to Malawi if he so chooses or is required to do so. Nor does it prevent RB or the children from leaving Australia.
The intention to leave the country at some point in the future did not constitute special circumstances that rendered the making of the Final Order inappropriate. Having found that the circumstances in s 10D(1)(a) and s 10D(1)(b) existed and having before him evidence that DB was intending to remain in Australia for some months, the magistrate made no error in deciding that a final order protecting RB and TB from further acts of family violence by DB was appropriate.
While it may have been open to the magistrate to impose a different term, and DB views the term as harsh, the magistrate did not err in fact or law or in the exercise of his discretion in setting the term of the Final Order.

Conclusion in respect of ground 5

Ground 5 is without merit and fails.

Conclusion

For the reasons which I have set out above, I have found each of the grounds of appeal advanced by DB to be without merit. Accordingly, I would dismiss the appeal.

Costs

At the hearing of the appeal RB's counsel indicated that she would seek an order that DB pay the costs of the appeal in the event that the appeal were dismissed.
DB submitted that he opposed such an order being made because he had no money with which to pay any costs.
While costs of the appeal are in the discretion of the court, it is usual for an unsuccessful appellant to be ordered to pay the costs of the appeal.[47]
[47] Oshlack v Richmond River Council (1998) 193 CLR 72 [67].
The possibility that the costs of the appeal awarded to a successful party may not actually be paid does not lead me to conclude that I should exercise my discretion and make no order as to costs. A successful respondent is not to be denied a costs order because the appellant is, or at least claims to be, presently without means.[48]
[48] Webber by her next friend Esme Alice Nilsson v Insurance Commission of Western Australia [2009] WADC 53 [32]; Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212 [5].
RB's counsel indicated to the court that she considered that she had spent more time preparing for the appeal than may be thought to have been necessary because she wished to ensure that RB received the best representation possible. In that circumstance, I consider it appropriate that costs be taxed if they are not able to be agreed between the parties. Accordingly, I will order that the appellant pay the respondent the costs of the appeal to be taxed, if not agreed.

Orders

I will make the following orders:
1.The appeal is dismissed.
2.The appellant to pay the respondent's costs to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
Associate to Judge Glancy
26 JUNE 2020