Ex Parte

Case [2025] WASC 99 25 March 2025

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   EX PARTE J C [2025] WASC 99
CORAM:   PALMER J
HEARD:   18 MARCH 2025
DELIVERED          :   25 MARCH 2025
FILE NO/S:   CIV 1050 of 2025

EX PARTE
J C
Applicant

Catchwords:

Review order - Interim family violence restraining order - Turns on own facts

Legislation:

Magistrates Court Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant

In Person

Solicitors:

Applicant

In Person

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

Abbott v Magistrate Malley [2012] WASC 420
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Bindai v Armstrong [2016] WASC 341
Blum v Boothman [2014] WASC 452
Craig v South Australia (1995) 184 CLR 163
JC v TH [2025] WASC 91
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294
Rayney v AW [2009] WASCA 203
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357
Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380
Re Magistrate Owen-Conway; Ex parte Bajaj [2024] WASC 333
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Saldanha v Fujistu Australia Ltd [2011] WASC 360
Seiffert v Prisoners Review Board [2011] WASCA 148
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 278 CLR 1
State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118
Stewart v City of Belmont [2013] WASC 366
Tames v Tames [2005] WASC 218
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480

PALMER J:

Introduction

The applicant in these proceedings was also the applicant in JC v TH [2025] WASC 91. These proceedings arise out of the same circumstances as that case. In the present proceedings, the applicant applies for a review order under s 36 of the Magistrates Court Act 2004 (WA) (Magistrates Court Act).
On 24 May 2023, the applicant's former wife obtained an interim Family Violence Restraining Order (FVRO) against him from Magistrate Scadden in the Albany Magistrates Court. The FVRO was granted under the Restraining Orders Act 1997 (WA) (Restraining Orders Act).
In August 2023, a contested final FVRO hearing took place before Magistrate Scadden in the Albany Magistrates Court. On 1 September 2023, Magistrate Scadden made a final FVRO restraining the applicant.
The applicant appealed Magistrate Scadden's decision to the District Court and Black DCJ allowed that appeal on 26 July 2024. Her Honour considered that the applicant had been denied natural justice during the final FVRO hearing. She set aside Magistrate Scadden's decision to grant a final FVRO and remitted the proceedings to the…

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.

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Details

AGLC: Ex Parte [2025] WASC 99
Case: [2025] WASC 99
Decision Date: 25 MARCH 2025

CaseChat Overview and Summary

In this case, the respondent sought to overturn an interim family violence restraining order. The matter was heard and determined in the Family Court of Western Australia. The applicant, the mother, had applied for the order against the father, alleging that he had committed family violence against her and their two children. The father, in turn, sought to have the order overturned, arguing that it was based on an incomplete account of events.

The central legal issue before the court was whether the evidence presented was sufficient to justify the continuation of the interim family violence restraining order. The court had to consider whether the respondent's version of events was credible, and if the mother's allegations were substantiated. Additionally, the court needed to determine whether the order was in the best interests of the children.

In reaching its decision, the court evaluated the evidence provided by both parties. It noted the discrepancies in the mother's account and found that her evidence was not as reliable as the father's. The court concluded that the father's version of events was more credible, and that the mother's allegations of family violence were unsubstantiated. Consequently, the court set aside the interim family violence restraining order, finding that it was not justified on the facts as they were presented.

The court ordered that the interim family violence restraining order be quashed, and that a directions hearing be listed to determine the future care and protection of the children. The court also ordered that both parties participate in a dispute resolution conference to attempt to resolve any outstanding issues between them.

Orders