Ex Parte
[2025] WADC 17
•26 MARCH 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: EX PARTE ABC (pseudonym initials) [2025] WADC 17
CORAM: CORMANN DCJ
HEARD: 12 MARCH 2025
DELIVERED : 26 MARCH 2025
FILE NO/S: APP 77 of 2024
MATTER: IN THE MATTER of an Appeal
EX PARTE
ABC (pseudonym initials)
Appellant
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE TYERS
File Number : MC/CIV/PER/RO/6035/2024
Catchwords:
Appeal from Magistrates Court - Restraining Orders Act 1997 (WA) - Final Family Court parenting orders in place - Whether exceptional circumstances exist to warrant the grant of leave to adduce additional evidence - Family violence - Whether special circumstances exist that would make restraining order inappropriate - Application for interim order - Appeal dismissed
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(4)
Restraining Orders Act 1997 (WA), s 5A, s 10D, s 10E, s 10F, s 10G(2)(f)
Result:
Application for leave to adduce additional evidence on appeal dismissed
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
Solicitors:
| Appellant | : | Not applicable |
Case(s) referred to in decision(s):
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38
Nugawela v American Express Australia Ltd [2016] WADC 170
Shilkin v Taylor [2011] WASCA 255
TAH v The Public Advocate [2024] WADC 71
Yazarloo v Assadi [2003] WASCA 326
CORMANN DCJ:
Introduction
This is an appeal from a decision of a magistrate made on 4 November 2024 dismissing an application brought under the Restraining Orders Act1997 (WA) (RO Act) for an interim family violence restraining order (FVRO).
The appeal notice was lodged on 18 November 2024. The appeal is brought pursuant to pt 7 of the Magistrates Court (Civil Proceedings)Act 2004 (WA) (MCCP Act).
There are nine grounds of appeal alleging error on the part of the learned magistrate. The appellant also seeks leave pursuant to s 40(4) of the MCCP Act to adduce evidence that was not before the magistrate (additional evidence).
For the reasons set out below:
(a)the appellant's application for leave to adduce additional evidence is dismissed; and
(b)the appellant's substantive appeal is also dismissed.
Background
The appellant brings this appeal in respect of orders sought against her ex‑husband (DBP). The appellant and DBP have one daughter together, CC, who is presently aged 13.[1]
[1] Appeal Book (AB), Volume 1 filed 7 March 2025, page 15.
Final Family Court parenting orders made in 2019 under the Family Law Act 1975 remain in place between the appellant and DBP in respect of CC (Parenting Orders).[2] The Parenting Orders provide, amongst other things, that:
(a)DBP has sole parental responsibility for CC, and that in exercising that responsibility in relation to any 'major long‑term decisions', he is to notify the appellant and to seek and consider her opinion, but he is then authorised to make the final decision;
(b)CC is to live with DBP;
(c)CC shall spend time with the appellant 'as may be agreed in writing between the parents' and otherwise, on alternate Saturdays and on Mother's Day between the hours of 10 am and 6 pm; and
(d)CC shall communicate with the appellant as agreed between the parents, but, failing agreement, at least between 6.30 pm and 7.30 pm each Wednesday and each non‑contact Saturday.
[2] AB 31, AB 37.
Order 9 provided that for three months from when the orders were made, the appellant's telephone conversations with CC were to be supervised by DBP (or his nominee) and were not to be lengthy. The Parenting Orders also expressly authorised DBP during that period to terminate calls after 15 minutes, or at any time he considered the appellant's conversation with CC was inappropriate.
On or about 1 November 2024, the appellant filed an application under the RO Act for an FVRO in protection of herself, against DBP.[3] She filed an affidavit on the same day with annexures, affirmed 1 November 2024, in support of the application. The bases in the application included that DBP was denying the appellant access to CC by telephone and in person, interfering in the appellant's conversations with CC and telling her to end the call prematurely, and causing fear with his 'non' answering/'non' allowing of communications.
[3] AB 13 - AB 14.
At a hearing on 4 November 2024, the learned magistrate dismissed the application (being proceedings RO 6035 of 2024). The appellant then brought another application on the same bases which was heard and dismissed by a different magistrate, on the following day (5 November 2024) (proceedings RO 6090 of 2024).
By her notice filed on 18 November 2024, the appellant commenced this appeal against the decision in RO 6035 of 2024.
The magistrate's decision - 4 November 2024
The Magistrates Court transcript reflects that the reason for the decision to dismiss the application was primarily because the learned magistrate concluded that there were 'special circumstances', as contemplated by s 10D(2) of the RO Act that would make an order inappropriate.
The learned magistrate noted that:
… [while] the conduct [that is] alleged can amount to family violence, and that is that isolation from family members is legislated that can be [sic] family violence … The difficulty with this, though, is that these matters have been ventilated significantly within the Family Court.[4]
… the whole application is based upon non‑compliance [with final Family Court parenting orders].[5]
… There is a special circumstance, and that is the appropriate recourse is to go to the Family Court … which has not happened in years …[6]
[4] AB 239.
[5] AB 240.
[6] AB 241.
The learned magistrate also identified challenges with the form of restraint sought, being as to what 'restraint' could be imposed by reason of the alleged conduct of DBP:
HIS HONOUR: There is a difficulty with that, because if I was to grant a restraining order, it would simply - it would be very difficult to enforce, I would suggest, because it would simply be to restrain him from denying access to a phone to [CC] in accordance with Family Court orders. But it would have to be something along the lines of 'unreasonably' and whether that could be properly monitored …
… And, the difficulty is, I mean, this is - we're in WA. He's [located in another state] …
[ABC]:Correct. I'm hoping, though, that this will prompt him to stop defying the Family Court orders. That this will give us something to try and get communication back to her in the immediacy.[7]
[7] AB 222.
In the final passages:
HIS HONOUR: … whilst the isolation of family members can be family violence, and I utterly accept that, the appropriate course here is to return to the Family Court, which has not been attempted by her in any shape or form in a number of years. Even though what really is alleged here is a non‑compliance with the Family Court order, and that is the appropriate forum for that allegation to occur.
… What I'm concerned about also is that it's very one-sided. There may be potentially good reason for the respondent to withhold the phone.
I have doubts about the reliability of [ABC] given the way she conducted herself today, and the voluminous and very repetitive material provided to the court, and on an ex parte basis, am not prepared to make an order which makes otherwise lawful behaviour a crime. And it really ought to be dealt with by a court that seemingly took considerable evidence …
… the application is dismissed.[8]
[8] AB 242.
It is relevant that the appellant brought a second application in the Magistrates Court, heard and dismissed, on the day following the decision that is the subject of this appeal. In that matter, the magistrate was not satisfied that, further to the hearing on the day prior, there was any additional cogent evidence that would allow her to override that decision. That magistrate also expressed concerns that there were final Family Court parenting orders in place, which the appellant contended DBP was not abiding by. The magistrate noted that the appellant now applied for some form of restraint against DBP, resident in another state, to, in effect, attempt to enforce compliance with the Parenting Orders. As noted by the magistrate in also dismissing the application on 5 November 2024:
(a)the court may be able to restrain DBP from acting in certain ways, but it cannot force for the contact to occur, that is a matter for the Family Court; and
(b)based on what the appellant submitted, there were no grounds for an FVRO under the RO Act, but that rather, the appellant had a genuine complaint to do with the Parenting Orders, and that this was a matter for the Family Court.[9]
[9] ts 15 (5 December 2024).
District Court appeal
A decision of a magistrate to dismiss an application for an interim FVRO under s 29(1)(b) of the RO Act may be the subject of an appeal to the District Court.[10] The appeal is to be made in accordance with pt 7 of the MCCP Act,[11] and it is to proceed by way of a re‑hearing rather than a fresh hearing.[12]
[10] RO Act s 64(1)(a).
[11] RO Act s 64(2).
[12] MCCP Act s 40(4); District Court Rules 2005 (WA) (DCR) r 50(1); Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ).
This court must decide the appeal on the material and evidence that was before the Magistrates Court.[13] The court can give leave to admit other evidence, but only in exceptional circumstances.[14]
[13] MCCP Act s 40(4)(a).
[14] MCCP Act s 40(b), s 40(5).
The appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court.[15] It is not the role of the appeal court to retry the facts or substitute its own view of the facts for that of the magistrate.[16]
[15] DCR r 50(1).
[16] Yazarloo v Assadi [2003] WASCA 326 [9], [35] (Scott J); Brocklehurst v Wolinski [14]; Butler v Bennett [2007] WADC 107 [6].
Grounds of appeal
The notice raises nine grounds of appeal. In order to give context to these reasons, I have reproduced, as an annexure, a copy of the grounds in full.
In dealing with this appeal, I bear in mind that the appellant is a litigant in person, and she is entitled to some leniency in relation to the court rules.[17] Moreover:
(a)I am required to approach the documents in which she articulates her appeal with some flexibility;
(b)the court needs to be astute to ensure that, in a poorly expressed or unstructured document, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form; and
(c)a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[18]
[17] TAH v The Public Advocate [2024] WADC 71 [71] (references omitted) (TAH).
[18] TAH [71] (references omitted).
Having approached the appeal with those considerations in mind, as best I can discern, the grounds raise four areas of complaint against the learned magistrate's decision, as follows:
(a)first, an alleged error in the exercise of his discretion not to make an order because he concluded that special circumstances existed which would make the order inappropriate, as contemplated by s 10D(2) and s 10E(2) of the RO Act, (grounds 1 and 2);
(b)second, an alleged error being that the learned magistrate had wrongfully concluded that the restraints sought under s 10G(2) could not in fact be made, even if he was minded to grant an FVRO (ground 3);
(c)third, the learned magistrate erred in failing to consider the evidence that was adduced and that it established that the conduct or behaviours of DBP did amount to 'family violence' within the meaning in s 5A of the RO Act (grounds 4, 6, 7, 8 and 9); and
(d)fourth, the learned magistrate erred in failing to observe and apply the considerations in s 10F of the RO Act, and in particular, failing to consider the primary factors in s 10F(1)(a) ‑ s 10F(1)(c) (ground 5).
Ex parte hearing
For reasons contained in the transcript of a hearing on 19 February 2025, I allowed the appeal to proceed on an ex parte basis. In essence, my decision was based on the following:
(a)the court is empowered to make an FVRO in the absence of a respondent,[19] with any such order being interim;[20]
(b)a submission by the appellant as to an alleged safety risk if DBP was served without any 'restraint' having first been imposed by way of an interim order; and
(c)that this is an appeal under s 64(1)(a) of the RO Act of a decision under s 29(1)(b) and there could be no prejudice to DBP in circumstances where the original application was heard ex parte and for an interim order only; and
(d)finally, for me to require the appellant to serve her appeal notice would cut through a carefully thought through regime in the context of the protections afforded in the Magistrates Court in that jurisdiction, and such would not be in the interests of justice.
[19] RO Act s 29(1)(a); TAH [11].
[20] As defined in the RO Act s 3; TAH [11].
The evidence
Magistrates Court
In support of her application, the appellant filed an affidavit and annexures of approximately 190 pages.[21]
[21] Continued at AB 15 - AB 211.
In her affidavit, the appellant asserted that:
(a)the Parenting Orders do not give exclusive rights to DBP, rather they allow for both unsupervised telephone communication and in person time in favour of the appellant;
(b)she is seeking restraint orders against DBP to protect her relationship with CC through gaining access for the child to DBP's phone;
(c)CC has informed the appellant that DBP does not disclose to her when the appellant is calling, and further, that DBP takes the telephone and hangs up calls;
(d)CC sounded miserable, under pressure and stressed when told to end calls, and every conversation since 2017 has been marred by hang up, intimidation and physical violence in prematurely ending calls;
(e)CC and the appellant are at risk of untoward police interaction and this needs to be managed by the court; and
(f)restraint against DBP is the only way to stop years of abuses and cruel frivolity that he has acted with towards CC's relationships with others and as to her need for contact.
The affidavit also includes numerous specific allegations against police and other parties.
At pars 62 and 63, the appellant states that the orders sought are to restrain DBP in the following ways:
(a)from withholding property, namely a phone, from the possession of CC, which phone is required to enable her to communicate with the appellant in accordance with the Parenting Orders;
(b)from ending or requesting CC to end her calls prematurely or from insisting the phone be returned to him during the telephone time allowed under the Parenting Orders; and
(c)from entering into or remaining in CC's bedroom or presence during the allowed telephone time.
The affidavit annexes documents including:
(a)a copy of the Parenting Orders;
(b)a letter from her general practitioner (GP) dated 12 October 2024 stating that the appellant has 'resolved post‑traumatic stress disorder with some exceptions', and that the legal environment is 'problematic' for her where she directly attributes and associates the significant traumas to certain groups and persons;
(c)a psychological report dated 18 March 2022 opining on whether various information supplied by the appellant about alleged actions of DBP might constitute 'coercive control' as defined in the Criminal Law Consolidation (Coercive Control) Amendment Bill 2020 (SA);
(d)screenshots of text messages purporting to be from the appellant to DBP in relation to her requests for telephone time with CC and delivery of a parcel to CC;
(e)transcripts of recordings in 2020 and 2021 of conversations between CC and the appellant;
(f)email communications from the appellant to police during 2024 alleging, among other things, 'severe domestic violence' by DBP, that the welfare of the child is unknown and that she is being kept from access to a phone which she is allowed to use in accordance with the Family Court parenting orders;
(g)an affidavit made by a third party, PNA, dated 30 October 2024, in which he attests to having known the appellant since January 2024, and witnessed her making calls to CC that have gone unanswered or to answering machine;
(h)a psychological report dated 13 December 2019 prepared for use in the Family Court proceedings in relation to the writer's observations as to the then telephone communications between the appellant and CC; and
(i)a letter from a family therapist dated 28 September 2021 to the effect that she had been retained by the appellant to conduct a parenting capacity assessment for the purposes of submitting a report to the Family Court.
Leave to adduce new and fresh evidence on appeal
The appellant's application
The appellant applies for leave to adduce both new and fresh evidence.[22]
[22] As those terms are contemplated in Shilkin v Taylor [2011] WASCA 255 [66] - [68] (Shilkin).
The materials are composed of:
(a)an affidavit and annexures of the appellant's father, RWT, sworn 17 February 2025;
(b)a further affidavit of the appellant, made 6 March 2025;
(c)screenshots of telephone call logs of the appellant, dated 30 December 2024 to 23 February 2025;
(d)screenshots of text messages of the appellant dated 9 March 2025; and
(e)various email and other communications between the appellant and third parties in late 2024 and early 2025.
RWT's affidavit sets out both new and fresh evidence. In general terms, RWT deposes to:
(a)his own contacts (and absences of contact) with CC and some text message exchanges between he and CC pre-dating the appellant's application to the Magistrates Court;
(b)his attendance at a school assembly in December 2024 at CC's school and his efforts to have the appellant observe the ceremony via 'Facetime' and to speak to CC after the ceremony (given the appellant's inability to attend as she now resides in Western Australia (WA));
(c)various statements in the nature of hearsay, opinion or speculation. For example, as to his:
(i)'belief' that CC is unable to express her desire to speak to the appellant or their family while in DBP's household and that CC is not given an opportunity to communicate with the family;[23]
(ii)'belief' that DBP has 'coercive control' over CC in a manner that is harmful to CC; and
(iii)observations of DBP in the family law proceedings; that he was non-negotiable and 'fixated on winning at all costs', and that RWT considers DBP to be a 'domestic abuser'.[24]
[23] AB 352, Volume 2, JEP Affidavit.
[24] AB 353, Volume 2, JEP Affidavit.
The appellant's own further affidavit is lengthy and abstruse. It sets out both new evidence in relation to historical alleged events and behaviours, and also fresh evidence in relation to recent alleged developments. It also makes a series of allegations about the conduct of DBP. For example:
(a)par 3 as regards an alleged attempt to pervert justice by criminally defrauding the appellant of funds in an application for child support payments to the department rather than through the courts, and in pars 4 - 5 as regards historical alleged behaviours of a similar nature;
(b)pars 8 - 18 and 33 - 37 setting out allegations against him said to constitute further evidence of financial abuse and family violence; as well as multiple allegations against police as to their alleged refusal to intervene or take action in light of his alleged behaviours; allegations against him of manipulation of the legislature, courts and justice system and of interference with the appellant's technology and preparation of documents for the court proceedings;
(c)pars 19 - 20 as regards screen shots of call logs and text messages said to be from the appellant's telephone to DBP from December 2024 demonstrating all calls made as being unanswered or going to message bank, and no replies from him to the appellant's text messages requesting to speak with CC;
(d)pars 21 - 23 and 29 - 30 recounts of multiple reports made by the appellant to state police since 7 December 2024 as regards alleged family violence offending of DBP;
(e)par 38 an allegation of a 'sexual predatory background case involvement' at CC's home; and
(f)pars 39 - 47 allegations by the appellant against multiple third parties including CC's school, the state ambulance service, CC's friendship and sporting networks, and CC's healthcare practitioners as regards attempts to isolate CC from the appellant and to refuse to supply lawful information to her about CC.
Exceptional circumstances - The relevant law
The appellant is required to demonstrate exceptional circumstances as to why leave ought to be granted to adduce the additional evidence.[25]
[25] MCCP Act s 40(4)(b) and s 40(5).
In Shilkin v Taylor,[26] Newnes JA observed of the discretion to admit new evidence:
It is evident that so far as the material in that affidavit is sought by the appellant to be admitted on the appeal, it is in the nature of new evidence, rather than fresh evidence; that is, it is evidence which, with the exercise of reasonable diligence, could have been discovered by the appellant prior to the hearing before the magistrate of the application to set aside the default judgment.
A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance. Where the evidence was deliberately withheld, that will be a factor which weighs heavily against the admission of the evidence on appeal … Even where that is not the case, ordinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led below. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial (or in this case, of a full trial): …
On an appeal of the present kind, this court may give leave for additional evidence to be admitted only in exceptional circumstances: Magistrates Court (Civil Proceedings) Act, s 42(3)(c), s 42(4). It is not helpful to attempt to describe what would constitute 'exceptional circumstances' for the purpose of s 42(3)(c). The variety of circumstances that might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose. It is sufficient to say that in this case no exceptional circumstances have been made out.
[26] Shilkin [66] - [68] (references omitted) (Newnes JA, with whom Pullin & Buss JJA agreed).
Leave to admit additional evidence should not be used to rectify perceived weaknesses in a case already presented.[27]
[27] TAH [112] (Gething DCJ); Nugawela v American Express Australia Ltd [2016] WADC 170 [16], [20] (Bowden DCJ) (Nugawela).
Ordinarily, a court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence will have led to a different outcome if it had been led in the court below.[28]
[28] Shilkin [66] - [70].
With one possible caveat, an appellant cannot assert that a magistrate made an error in coming to a decision based on facts which were not then before the court. It follows that evidence to this effect should not be admitted on appeal. The possible caveat is where the allegation is that the facts were not before the court due to the magistrate failing to allow the appellant procedural fairness.[29] This is not one such case.
[29] TAH [114].
Finally, the discretion to admit further evidence should be to ensure the overall interests of justice.[30]
Do exceptional circumstances exist to warrant granting leave to adduce the additional evidence?
[30] Lackovic v Insurance Commission of Western Australia [2006] WASCA 38.
The new evidence summarised in [30(a)], [30(c)], [31(a)], [31(b)], [31(e)] and [31(f)] appears to set out additional or further instances of similar alleged occurrences of family violence. This is namely, the alleged isolation of CC from the appellant and from her grandfather and broader family members.
In written submissions, the appellant asserts that the reason for the new evidence was that the 'material was previously unable to be gathered'.[31] As to the appellant's further affidavit and 'fresh' evidence, (e.g [30(b)], [31(c)] and [31(d)]) she contended that this was 'new material mixed with background material' that should be brought to light to explain the new material, and that it offers the 'most up to date account'.
[31] Written submissions dated 6 March 2025, page 3.
At the hearing, the appellant further submitted that:
(a)much of the information is 'fresh' evidence because the situation is continuing.[32] That is, she asserts that the alleged behaviour has continued where, had the restraints applied for been made by the magistrate, this would have constrained those ongoing behaviours;
(b)the application was for an interim order rather than a final order, and therefore she had not had a chance to prepare and submit all the relevant information that one would have done for a final/substantive hearing;[33]
(c)the appellant suffers with post-traumatic stress disorder (PTSD) arising from the marital breakdown and the previous participation by DBP in the Family Court proceedings and this limits her ability to participate in the court proceedings and be fully prepared;[34]
(d)she had attempted to make the original application as succinct as possible and focused only on the violence of the relationship between herself and CC and not more broadly;[35] and
(e)initially, in her evidence framed in the Magistrates Court, the appellant had been concerned with the lack of ability to communicate with CC, but the new evidence goes into the broader absence of alleged supports for and isolation of CC by third parties (school, sporting clubs etc), which she now alleges is relevant.[36]
[32] ts 49.
[33] ts 49.
[34] ts 50 - ts 51, ts 62.
[35] ts 50.
[36] ts 52.
In my view, leave should not be granted to produce any of the additional evidence. No exceptional circumstances have been established by the appellant as to why it should be permitted. The errors alleged to have been made by the magistrate go to two key areas. The first, that he erred in finding that special circumstances for the purposes of s 10D exist that would render an order for restraint order inappropriate. Second, a series of alleged failures by the magistrate to consider the evidence that was adduced to establish that family violence existed, and that the making of an order was mandated in order to protect CC by reason of the RO Act provisions.
On the back of those alleged errors, there are no exceptional circumstances that exist to indicate that the discretion should be exercised to allow the production of new evidence of the same alleged behaviours that pre‑date the magistrate's decision, nor, for fresh evidence. It is not an exceptional circumstance that the appellant was seeking an interim order and had not yet 'prepared her case fully' for an inter‑parties hearing in which final orders would then be sought.
It also cannot be categorised as an exceptional circumstance that behaviours alleged by the appellant are continuing. That is an unsurprising allegation by any appellant whose application was dismissed.
It is also not an exceptional circumstance that the appellant is self‑represented and submits that she has difficulty attending court proceedings and preparing materials. I accept that the appellant produced a letter from her GP indicating that she has resolved PTSD 'with some exceptions' and that the legal environment is 'problematic' for her. The GP ultimately stated that the 'treatment in this environment' is the separation of the parties. I do not however consider that letter is evidence of 'exceptional circumstances' that would permit me to adduce either new or fresh evidence. And notably, the appellant, between the period 19 February and 12 March 2025 and in the conduct of this appeal, filed some 40 emails with my associate as well as 35 documents and five revisions of written submissions. This is in a context where there could not reasonably have been considered to be any urgency in the application originally brought in the Magistrates Court, given the alleged length of time of DBP's conduct since the Parenting Orders were made.
The materials that the appellant now seeks to adduce seem to me to be in the nature of attempts to rectify her perceived shortfalls of her application. In any event, they do not assist the court in determining whether the learned magistrate made an error of the nature contended for. The appellant's decision to apply to produce those materials on appeal reveals no exceptional circumstances.
Ultimately:
(a)new evidence of the same alleged behaviours is not relevant to whether the magistrate erred in determining that special circumstances exist for the purposes of s 10D;
(b)the production of new evidence is not relevant to an alleged error by a magistrate to consider the evidence that was before him and to apply the relevant provisions of the RO Act in determining whether restraints should be imposed by reason of the alleged incidence of family violence;
(c)the production of the additional evidence could not, in my view, lead to a different outcome for the appellant if she had led it in her original application. This includes because of the practical and enforceability difficulties identified by both magistrates in terms of the 'restraints' that had been applied for, and that the learned magistrate was in any event satisfied that the conduct described could constitute 'family violence'. Furthermore, it is also because the magistrate had expressed concern as to ABC's reliability in terms of the materials produced; and
(d)the alleged continuing behaviours of DBP, and the alleged failures of state police in dealing with the appellant's complaints are also irrelevant to whether the magistrate erred in the ways contended for.
None of the reasons given by the appellant, nor the evidence itself, enlivens the discretion for me to permit the additional evidence.
Restraining Orders Act 1997 (WA)
The application for an FVRO was required to be determined by the learned magistrate in accordance with the relevant provisions in s 10B - s 10F.
Section 10B sets out the principles to be observed in performing functions under the RO Act relating to FVROs, such as:
(a)the need to ensure that persons at risk of 'family violence' are protected from that violence, (s 10B(1)(a));
(b)the particular need to ensure the wellbeing of children by protecting them from 'family violence', (s 10B(1)(c)); and
(c)that complex emotional factors arising from coercion, control and fear often make it difficult for victims of 'family violence' to report the violence, (s 10B(1)(e)).
Section 10D
Section 10D(2) provides that the magistrate must make the order if he or she is satisfied that a respondent has committed family violence against the person seeking to be protected and is likely to do so again in the future, unless there are 'special circumstances' that would make the order inappropriate.
Section 10D(3) provides that 'special circumstances' do not exist simply because the applicant can apply, or has applied, for a particular family order.
Relevantly, s 10D formed part of a suite of amendments to the RO Act introduced by the Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 (2016 Bill). There has not yet been judicial consideration given in WA as to what might constitute 'special circumstances' for the purpose of s 10D.
The Explanatory Memorandum to the 2016 Bill (EM) notes that, while s 10D(1) largely replicated the former s 11A, there are some important differences. The previous s 11A referred to a requirement that in the exercise of discretion, the court must be satisfied that making a restraining order was 'appropriate in the circumstances'. That requirement was not retained by s 10D. Instead, the nature of the court's discretion is now dealt with separately, and in a modified manner, in s 10D(2).
The court's discretion is narrower in s 10D. By s 10D(2) if the court is satisfied of the matters in s 10D(1)(a), then it must (not may) make the order unless there are 'special circumstances' that would render it inappropriate. The EM notes that for the purposes of s 10D(2):
In considering whether 'special circumstances' exist, the court will be required to have regard to the principles set out in s 10B. Special circumstances may be said to exist where the making of an order would create a clear inconsistency with the principles; for example, where the person seeking protection is not the person in the relationship most in need of protection or is a perpetrator of family violence who is attempting to use the RO Act as a means of further controlling the respondent.
The Second Reading speech notes that 'special circumstances' that would make an order inappropriate are intended to include:
… a situation in which the primary aggressor in a relationship is seeking an order against the victim. This is consistent with the proposed new principles of the [RO] Act, including the principle of the need to recognise that perpetrators of family violence might seek to misuse the protections available under this act to further their violence, and the need to prevent that misuse.[37]
[37] Hon M Mischin (Attorney General), 'Extract from Hansard', 14 September 2016, page 2.
Grounds 1 and 2: s 10D(2) and s 10E(2) 'special circumstances'
The appellant contends that the learned magistrate erred in finding that 'special circumstances' existed. In written submissions, the appellant asserts that:
(a)the magistrate is 'unable to use the appellant's ability to apply to the Family Court for orders as a special circumstance/consideration';
(b)the alleged evidence as to 'coercive control' and 'psychologist witness statements' are not congruent with non-compliance but are congruent to violence; and
(c)the magistrate engaged in repetitive badgering of her by 'unlawfully and predominantly' referencing during the hearing that she could apply to the Family Court.
Grounds 1 and 2 involve the exercise of the magistrate's discretion not to impose an order where he concludes that there are 'special circumstances' that would make it inappropriate. I have therefore combined the consideration and determination of those grounds together. The learned magistrate concluded that the special circumstance that existed was that the appropriate recourse was to go to the Family Court which he said had not happened in years.[38]
[38] AB 241.
However, it is clear that the learned magistrate's conclusion in that respect is not based simply on the proposition that the appellant had 'recourse' to the Family Court. Rather, it was reached in the context of:
(a)an extensive and long‑standing history between ABC and DBP as a result of which the final Parenting Orders had been made in the Family Court jurisdiction;
(b)when first made, the Parenting Orders had expressly permitted DBP to supervise the calls between CC and the appellant, and/or to terminate the calls after 15 minutes or at any time that he concluded that the appellant's conversation with CC had become inappropriate. Even though the learned magistrate accepted that those provisions had been temporary, he noted that the Family Court had been sufficiently concerned to make such express provision from the outset;[39]
(c)a lengthy amount of time had passed since the Parenting Orders were made and there was no information before the magistrate about what had transpired since. Despite attempts, he did not receive clear information about whether the appellant had made further applications in that court in relation to compliance with the orders and whether there might again be a lawful basis for involvement by DBP in the appellant's communications with CC;
(d)the matters had been extensively ventilated in the Family Court with substantive decisions made as regards access and contact with CC by the appellant and DBP, and now the appellant was in a different jurisdiction which did not have the benefit of the extensive material previously considered;[40]
(e)instead, there had been 'voluminous and very repetitive material provided … on an ex parte basis … [which] really ought to be dealt with by a court that seemingly took considerable evidence';[41] and
(f)there may be potentially good reason for DBP now to withhold the telephone.[42]
[39] AB 231.
[40] AB 232.
[41] AB 242.
[42] AB 249.
In that regard, the magistrate took steps during the hearing to get an understanding of the context and background surrounding the Parenting Orders, and the circumstances in which it fell upon him to consider the application. The magistrate was clearly concerned about whether he had sufficient information relevant to his consideration by reason of the extensive proceedings in another jurisdiction. For example, his Honour identified that it appeared to him that the Family Court may have already ruled on the issues or bases for the appellant's application and he wished to ensure he had, at the very least, access to the full judgment at least in respect of one of the appellant's applications in that jurisdiction. This was made unnecessarily difficult in circumstances where the appellant would not be forthcoming with the relevant judgment and attempted to produce only an extract of the judgment.[43]
[43] AB 233 - AB 238.
While in the end result, the appellant agreed to, and did, produce a full judgment related to those orders, in my view, the magistrate was correct to form concerns about the decision to apply in the Magistrates Court, and whether it may be an attempt to use the FVRO regime to 'get around' the Family Court.
The learned magistrate also made legitimate enquiries to understand why it was, if DBP had been non‑compliant with the orders over some years, the appellant had not applied to the Family Court. In my view, the answers given by the appellant were non‑responsive and not reassuring as to why she had not returned to that jurisdiction and what was her purpose in the Magistrates Court.[44]
[44] For example, AB 221, AB 222.
The learned magistrate was correct to conclude that special circumstances existed that would make an order imposing restraints inappropriate. As contemplated by the EM, special circumstances may be said to exist where the making of an order would create a clear inconsistency with the principles. The example given is where the person seeking protection is not the person in the relationship most in need of protection or is a perpetrator of family violence who is attempting to use the RO Act as a means of further controlling the respondent.
I am not suggesting that this case is one where DBP is the person most in need of protection, nor that the appellant is a perpetrator of family violence and who is attempting to use the RO Act as a means of further controlling him. However, the Parenting Orders, as summarised in [6] above, are significant when those orders, for reasons that were not in evidence before the magistrate and where DBP was not a party to this application, gave him sole parental responsibility for CC. Furthermore, at least historically, they had expressly authorised him to supervise calls with the appellant, and to terminate calls after 15 minutes, and otherwise, to terminate calls if he deemed the appellant's conversation inappropriate. Those orders were made in a jurisdiction which had the benefit of much more information and evidence. It appeared that the appellant had come to the Magistrates Court to seek orders, in essence, in a complete vacuum and in bypass of that jurisdiction.
Accordingly, I find neither grounds 1 or 2 made out.
Remaining grounds
The seven remaining grounds set out alleged errors by the learned magistrate in either failing to consider and apply relevant provisions of the RO Act (s 10E(2), s 10F), or, failing to consider the evidence adduced and to conclude that there had been 'family violence' within the definition in s 5A of the RO Act.
Ground 3: Failure to 'establish' that the restraints sought could not be made
Ground 3 appears to be directed to the form of restraint and the orders sought by the appellant in her application.
In written submissions in support of ground 3, the appellant stated:
I accuse the magistrate of forms of psychological battery in the terminology he used being that of terminology of accusations of my ex‑husband in referring to a family law case as him having being given voluminous material and of which for this case it wasn't; the material being less than one volume only. I believe hes [sic] attained information on his own and that argument came from a tradie who rarely used technology. Ground 3 seeks to establish that in his diversions to subject matter the Magistrate failed to dispell [sic] by way of any law the ability of what the order had sought to be made.
The submissions and contentions made by the appellant here (and generally) were difficult to follow, many portions were illogical and contained unsubstantiated allegations and irrelevant matters. However, as best I can understand, the appellant's contention in ground 3 is, in effect, that the learned magistrate erred by not concluding that an order for restraint in the way sought by the appellant could, in fact, be made.
The learned magistrate indeed identified challenges as to the form of restraint/s sought. In that regard, he said:
… if I was to grant a restraining order, it would simply - it would be very difficult to enforce, I would suggest, because it would simply be to restrain him from denying access to a phone to CC in accordance with Family Court orders. But it would have to be something along the lines of, 'unreasonably' and whether that could be properly monitored - I don't know. And … the difficulty is, I mean, this is - we're in WA. He's [located in another state].[45]
[45] AB 229.
At the hearing on the following day, that magistrate also identified challenges with the restraints sought.[46] And she said:
… [the appellant] seeks in this court to interfere with the Family Court orders and try and impose an obligation for [DBP] to hand the phone to [CC]. My view is that this court can't impose such a requirement.
It can restrain [DBP] from acting in certain ways, but it can't force the contact to occur. That really is a matter for the Family Court …[47]
[46] AB 484, AB 485.
[47] AB 486.
While the challenges identified by both magistrates are real, the learned magistrate did not actually conclude in his reasons that restraints could not ultimately have been made. That is, there is nothing in the transcript to reflect a conclusion that, had he determined that, in the presence of evidence of 'family violence' and no 'special circumstances' that would render an order inappropriate, restraint would not have been available in some form under s 10G.
The magistrate merely identified challenges with imposing a form of restraint on DBP in the ways contended for. In my view, the learned magistrate made no error in that respect because, having determined that 'special circumstances' existed that would make an order inappropriate in any event, he exercised a discretion which had the end result of not needing to further explore whether restraints could practically be imposed. I do not consider it was incumbent upon the magistrate to further explore or ascertain whether a form of order under s 10G could have been made.
Having said that, the purpose of the RO Act is to prevent or restrain someone from particular behaviours or patterns of behaviour. What the appellant sought was a positive order to require DBP to do something; to hand a phone to CC or make CC available to take the telephone call. Those positive obligations are the remit of the Family Court, and could not properly be dealt with by an FVRO in the Magistrates Court.
The appellant also contended in relation to s 10G that, had the learned magistrate properly considered those provisions, he would have changed his view that the application was simply about 'non‑compliance'. She asserted that instead, he would have concluded that the conduct in fact constituted 'family violence' and that he must impose restraints to ensure protection of CC.
However, I do not consider that there was any failure of the magistrate to give due consideration to that provision, for the reasons previously outlined. Further, I do not consider it was the magistrate's conclusion that the application was 'simply' about non‑compliance. There are numerous references in the transcript by the magistrate acknowledging that the conduct complained of could constitute 'family violence'. His concern, rightfully, was as to the existence of special circumstances which he concluded would make any order that he may be able to render, inappropriate.
Grounds 4, 6, 7, 8, 9: Failure to consider the evidence and to conclude there had been family violence
In general terms, the appellant contends that the learned magistrate erred in failing to properly consider the evidence adduced and to conclude that the evidence established that the conduct or behaviours of DBP, and the length of time for which they had ensued, did amount to 'family violence' within the meaning in s 5A of the RO Act.
In my view, the learned magistrate correctly and clearly contemplated that the conduct complained of by the appellant could constitute family violence:
HIS HONOUR: … I've read the voluminous materials that you've provided.
…
…
So I've read it, and I'm aware that isolation from family and friends can amount to family violence, I'm aware of that.[48]
…
… I am satisfied that the conduct that's alleged can amount to family violence, and that is that isolation from family members is legislated that can be family violence, absolutely. The difficulty with this though, is that these matters have been ventilated significantly within the Family Court.[49]
[48] AB 225.
[49] AB 246.
The transcript clearly reflects the learned magistrate's understanding of the evidence and submissions as to what were the alleged behaviours and he concluded it could constitute family violence. The learned magistrate made no error in failing to further consider, or consider at all, the matters in s 10F and s 10G(2).
Ground 5: Failure to consider and apply the considerations in s 10F
Finally, I understand the appellant to contend that the learned magistrate erred in failing to consider and apply the considerations in s 10F of the RO Act, and in particular, the primary factors in s 10F(1)(a) - s 10F(1)(c).
One might argue, by reason of the transcript at least, that express consideration of the factors in s 10F might not have been given by the learned magistrate. These factors include an important primary requirement to have regard to:
(a)the need to ensure that the person seeking to be protected is protected from family violence (s 10F(1)(a));
(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 (s 10F(1)(b)); and
(c)the need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in (b) or otherwise being subjected to or exposed to family violence (s 10F(1)(c)).
However, the learned magistrate was alive to the important fact that final Parenting Orders were in place. Such orders are in place to provide for the best interests of a child and are reached in that jurisdiction only after extensive evidence and information about the child is examined. Such orders contain significant features directed towards the child's wellbeing, and they are made for a reason and based on historical matters. Further consideration by a magistrate in an application for an FVRO as to the wellbeing of the child, in a vacuum, or as to other factors in s 10F would have been a futile exercise, in circumstances where the learned magistrate properly concluded that special circumstances existed. He simply could not reasonably or appropriately make orders in the FVRO jurisdiction arising out of the implementation, operation or otherwise in respect of those Parenting Orders and in the particular circumstances of this case.
What final orders are appropriate?
For the reasons outlined, the appeal should be dismissed.
No other orders are required.
ANNEXURE
GROUNDS OF APPEALGrounds:
1.The magistrate incorrectly applied (made an error in law applying) section 10D(2) 'special circumstances' to circumstances of the case, being that of Family Law Orders and ability to apply to Family Court, of which, under Section 10D(3) such orders and ability to apply to another court does not simply make such a 'special circumstance' that would make an order inappropriate.
2.The magistrate failed to consider section 10(E) for the protection of the child, namely section 10E(1)(a) and 10E(1)(b), of the Restraining Orders Act 1997 and, in any event, section 10(E)(2) where the court MUST make the restraint order unless there are special circumstances of which there are not.
3.The magistrate failed to establish in any way why restraint as allowed by law under 10G(1)(a) and 10G(2)(f) and 10(2)(a) and (b) of the Restraining Orders Act 1997 could not be made perverting the course of justice as otherwise allowed under such Act.
4.The magistrate failed to establish in any way how the affidavit and annexed material of evidence failed to raise evidence of family violence and in accordance with section 10D(1)(a) and section 10D(1)(b) with powers under 10D(2) of the Restraining Orders Act 1997; orders should have been [made] restraining the behaviour of [DBP] to withhold necessary property, his mobile telephone [XXX XXX 875], from [CC] in accordance with restraint able to be made under section 10G(2)(f), the magistrate further failed protection of the child as empowered by law to under section (2)(a) and section 2(b) to prevent and restrain DBP from interferring [sic] with the child's phone calls (including being in and around the child's person) during court ordered time for the child to spend with the appellant by telephone on Wednesday's and Saturday's between the hours of 6:30pm and 7:30pm weekly.
5.The magistrate failed to make the appropriate considerations under section 10F of the Restraining Orders Act 1997 given the longevity of behaviour (described and evidenced by affidavit and annexures) to the magistrate of which there was no indication of any end to such situation in the immediate or otherwise future with no contact being made at all by DBP despite numerous evidences of requests made to him and supplied at Annexures of the evidence
6.The magistrate failed to take into consideration the reports of the same behaviours of DBP to ignore requests for information on the child or discuss the child circumstance, to coercively control and interfere in contact to the child and witnessed accounts of the same behaviours by DBP causing apprehension and fear of further violence ranging from the period 2019 to 2021 by psychological and witness reports attained and supplied under Annexures 3, 5, 6, 8, 11.
7.The magistrate failed to take into account paragraphs 19, 20, 21, 22, 24, 25, 26, 28, 30, 31, 32 of the appellant's affidavit affirmed 1/11/2024 and its Annexure 7 (consisting from Annexure 7A to 7BF) as to longevity of requests made to DBP as to access to the child as per order 8 of the Parenting Orders and fears held for the child where no responses from DBP were causing fear and apprehension of continuation of exclusion from the child's life and concerns for being able to make contact to the child in regard to section 5A(2)(i) and (2)(l) as to need of the appellant to have DBP's behaviour restrained to stop the ongoing violence of which medical affects on the appellant were evidenced at paragraphs 50, 51 and Annexure 4 of the same affidavit.
8.The magistrate failed to establish how complete breach of Order 8 of the Parenting Orders with no communication at all to the appellant from CC or from DBP as to the whereabouts, well being nor any reason for denial of access to the child for the purpose of order 8 of the Parenting Orders is not directly 'family violence' as defined by section 5A, namely (2)(h) as to need of the child to have access to a financial asset (the phone), (2)(ha), (2)(i) and (2)(l) of the Restraining Orders Act 1997 of which is and was shown also as being supported by the Family Law Act 1975 section 65NA as being an offence; an offence requiring restraint to stop the ongoing adverse and damaging behaviour that was causing apprehension and fear of violence and continuation of violence from DBP as allowed by section 10D of the Restraining Orders Act 1997.
9.The magistrate failed to take into account in his deliberations and decision both the stipulations of the Restraining Orders Act 1997 and the Crimes (Domestic and Personal) Violence Act 2007 and Family Law Act 1975 as set out from paragraph 65 to 74 of the appellant's affidavit affirmed on the 1 day of November 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SI
Associate
26 MARCH 2025
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