Ex Parte - [2025] WADC 17

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ex Parte

Details

AGLC: Ex Parte [2025] WADC 17
Case: [2025] WADC 17
Decision Date: 26 MARCH 2025

CaseChat Overview and Summary

In this case, the appellant appeals against a decision of the Magistrates Court of Western Australia, which dismissed her application for a final family violence restraining order (FVRO) against her ex-husband, DBP. The appellant sought the FVRO under the Restraining Orders Act 1997 (WA), claiming family violence by DBP, including denial of access to their daughter, CC, and interference with her communications with CC. The appeal was brought in respect of the decision in proceedings RO 6035 of 2024. The appeal was dismissed both in relation to the substantive decision and the appellant’s application for leave to adduce additional evidence.

The legal issues the court needed to decide included whether there were exceptional circumstances to grant the appellant leave to adduce additional evidence not before the magistrate, and whether special circumstances existed that would make the FVRO inappropriate. The appellant argued that the magistrate erred in dismissing her application for a FVRO and in refusing to grant leave to adduce additional evidence. The court needed to examine whether the magistrate’s conclusions were correct and whether the appellant's appeal had merit.

The court found that the magistrate had correctly dismissed the appellant's application for a FVRO because there were special circumstances that made the order inappropriate. The court also found that there were no exceptional circumstances to grant leave to adduce additional evidence. The court held that the magistrate’s decision was based on the existing Family Court parenting orders and the evidence of family violence presented. The court held that the magistrate's decision was reasonable and that the appeal was without merit. Consequently, the appeal was dismissed, and the decision of the Magistrates Court was upheld.

No further orders were made in relation to this appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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. 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 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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.