Forehan v Forehan - [2022] WADC 69

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   FOREHAN -v- FOREHAN [2022] WADC 69
CORAM:   LEVY DCJ
HEARD:   9 MAY 2022
DELIVERED          :   5 AUGUST 2022
FILE NO/S:   APP 5 of 2022
BETWEEN:   PATRICIA JANE FOREHAN
Appellant
AND
MICHAEL TERRY FOREHAN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   CAMPIONE SM
File Number            :   MC/CIV/PER/RO/3213/2021

Catchwords:

Appeal from Magistrates Court - Restraining Orders Act 1997 - Procedural fairness - Whether findings made by learned magistrate open on the evidence - Whether findings by learned magistrate open on the evidence - Whether aggregate of errors made by learned magistrate amount to a miscarriage of justice

Legislation:

District Court Rules 2005 (WA), r 50(10)(d), r 50(3)
Evidence Act 1906 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Restraining Orders Act 1997 (WA), s 10, s 23, s 64

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	In person

Solicitors:

Appellant	:	Mizen & Mizen
Respondent	:	Not applicable

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Browne v Dunn (1893) 6 R 67
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 197 ALR 201; (2003) 77 ALJR 989
House v The King (1936) 55 CLR 499
R v Ireland (1970) 126 CLR 321

LEVY DCJ:

Overview of the appeal

Patricia Jane Forehan (the appellant) appeals against the decision of a magistrate cancelling an interim Family Violence Restraining Order (FVRO) made against Michael Terry Forehan (the respondent) on 25 June 2021 and the dismissal of her application for it to be made final.
The final hearing took place before the learned magistrate on 17 December 2021. The only witnesses who gave evidence at the hearing were the appellant and the respondent. The appellant was represented by counsel. The respondent was unrepresented.
The appellant, who is 60 years old,[1] is the respondent's stepmother. Her late husband and the respondent's father, John Forehan, passed away in August 2021.
[1] Information for an application for a Family Violence Restraining Order or Violence Restraining Order filed with Magistrates Court on 25 June 2021.
The respondent is 57 years old.[2]
[2] Information for an application for a Family Violence Restraining Order or Violence Restraining Order filed with Magistrates Court on 25 June 2021; Exhibit 3 - Respondent's Firearms Licence.
There is a long history of animosity between the appellant and the respondent.
The catalyst for the appellant's application for a FVRO was an incident that occurred on 23 June 2021 at a property, a farm located just outside Guilderton on the Moore River (the farm). The appellant was at the farm alone.
According to the appellant, in the early hours of the morning, after discovering that the power to the farmhouse had been turned off (which the respondent admitted doing), she saw a person, that turned out to be the respondent, standing outside the farmhouse. She called police. He was later located by police on an adjoining property in the possession of a firearm (the farm incident).[3]
[3] Appellant, ts 17; Respondent, ts 38.
The appellant alleged that this was the final incident in a series of events that caused her to fear for her safety and made it necessary for her to apply for a FVRO.
The events leading up to the farm incident included an email sent by the respondent to the appellant on 14 December 2020, some six months prior to the farm incident (the December 2020 Email). The appellant alleged that the December 2020 Email contained threats to harm her.[4]

The Restraining Orders Act 1997 (WA)

[4] It was contended at the hearing before the learned magistrate that the December 2020 Email also impliedly contained threats to harm the appellant's sisters. However, this aspect was not pursued on the appeal - see counsel for the appellant's oral submissions, 9 May 2022, ts 10.

The learned magistrate was, in the circumstances of this case,[5] bound to make a FVRO pursuant to s 10D(1) of the Restraining Orders Act 1997 (WA) (the Act), if satisfied on the balance of probabilities that:
(a)the respondent had committed family violence against the appellant and was likely again to commit family violence against the appellant in the future; or
(b)the appellant had reasonable grounds to apprehend that the respondent would commit family violence against her.
[5] Pursuant to s 10(D)(2) of the Act, a magistrate can decline to make a FVRO if there are 'special reasons' not to. This issue does not arise in the circumstances of this case.
'Family violence' is defined pursuant to s 5A(1) of the Act to mean either:
(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.
A non-exhaustive list of the types of behaviour that may amount to 'family violence' is set out at s 5A(2) of the Act. It includes repeated derogatory remarks made against the family member (s 5A(2)(d)).
The appellant's case before the learned magistrate was that:
(a)the respondent had committed acts that constituted family violence against the appellant and was likely again to commit family violence against her in the future, or
(b)that in the absence of a FVRO, the appellant had reasonable grounds to apprehend that the respondent would commit family violence against her.[6]
[6] Counsel for the appellant's opening speech at the hearing before the learned magistrate, ts 14.
Counsel for the appellant before the learned magistrate relied upon both the December 2020 Email and the farm incident as constituting acts of family violence.[7]
[7] Counsel for the appellant before the learned magistrate, 17 December 2021, ts 59 - ts 62.
It was the appellant's case that the farm incident constituted an act of family violence in that the respondent's actions on the morning, including failing to turn the power back on and walking past the farmhouse window knowing that the appellant was present in the house, were done with the intention to intimidate or threaten the applicant.
The appellant contended that the December 2020 Email contained express or implied threats to harm the appellant.
Furthermore, it was submitted that given the history between the appellant and the respondent, there was a real risk that further threats would continue to occur if a final order was not made.
At the hearing before the learned magistrate on 17 December 2021, whilst counsel for the appellant identified those parts of the December 2020 Email which were said to constitute acts of family violence, namely 'threats',[8] she did not specifically identify those parts of s 5A of the Act that the appellant relied upon. Nor did counsel before the learned magistrate submit that the email contained repeated derogatory remarks and therefore constituted an act of family violence.
[8] Counsel for the appellant's closing submissions before the learned magistrate, ts 60.
Counsel for the appellant on the appeal however (who was not counsel at the hearing below), clearly identified the parts of the December 2020 Email that the appellant submitted either constituted a threat of violence by the respondent towards the appellant contrary to s 5A(1) of the Act (in the sense that it amounted to a threatened assault), or at the very least fell within the definition of 'family violence' in that it contained repeated derogatory remarks against the family member pursuant to s 5A(2)(d) of the Act.[9] The latter issue was raised for the first time on the appeal.
[9] Counsel for the appellant, 17 December 2022, ts 12 - ts 13.
Each part of the December 2020 Email said to constitute either a threat to harm the appellant or derogatory remark directed against her, is considered in detail at [268] - [ 311] below.

A 'family member' is defined pursuant to s 4(3) of the Act to mean a person who is 'in a family relationship' with another person.
Section 4(1) of the Act defines the term 'family relationship'. There is no issue that the appellant and respondent were, pursuant to the Act, in a family relationship.

The learned magistrate was not satisfied that the appellant had proved that the respondent had committed any act of family violence against her.[10]

Grounds of Appeal

[10] Learned magistrate's reasons, ts 74.

There are three grounds of appeal. Each ground is supported by multiple particulars.
Ground 1 contends that a miscarriage of justice occurred as the hearing lacked procedural fairness, was vitiated by factual and legal errors, and was inherently unfair to the appellant. Ground 1 focusses on the way in which the hearing was conducted by the learned magistrate and various rulings made by her Honour during the hearing. Ground 1 is supported by 12 particulars (described as 'Particulars of errors').
Grounds 2 and 3 essentially contend that a miscarriage of justice occurred as the findings made by the learned magistrate in reaching her decision to refuse to grant the appellant's application for a FVRO against the respondent were contrary to the evidence and were not reasonably open as a matter of law.
Ground 2 focusses on various findings or observations about the evidence made by the learned magistrate. There are seven particulars provided (described as 'particulars of findings not reasonably open') and set out in support of Ground 2.
Ground 3 specifically relates to the December 2020 Email sent by the respondent to the appellant (exhibit 1 at the trial). The appellant contends that a miscarriage of justice occurred as a consequence of the learned magistrate's failure to find that the contents of the email constituted an act of family violence pursuant to s 10D(1)(a) of the Act. There are two particulars set out in support of Ground 3.
The appellant contends that whilst individually each error may not amount to a miscarriage of justice, at least in combination they do.[11]
[11] Counsel for the appellant on the appeal, 9 May 2022, ts 14.

Legislation governing appeals from a magistrate in FVRO matters

A person in the position of the appellant who is aggrieved by the decision of a magistrate to refuse to make a final order may appeal against that decision (s 64(1)(b) of the Act).
The appeal is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) (s 64(2) of the Act).
Generally, the appeal proceeds by way of a rehearing rather than a fresh hearing: (MCCP Act) s 40(4), District Court Rules 2005 (WA) (DCR) r 50(1).
On the appeal, the District Court may 'confirm, vary or set aside all or a part of the lower court's judgment', or 'give any judgment and make any order that the Magistrates Court could have given or made' (s 40(7) MCCP Act). However, the District Court may only substitute its decision if the appellant demonstrates that the orders the subject of the appeal are the result of a legal, factual, or discretionary error by the magistrate, based on the material before the magistrate, and any additional evidence either party has been given leave to adduce:[12] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]. Leave is not to be granted unless there are special grounds: r 50(2) and r 50(3) of the DCR.
[12] No additional evidence was sought to be introduced on the appeal.
If upon a review of the facts by the District Court, a decision made by a magistrate 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 court of first instance': House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).

The evidence before the learned magistrate

The appellant's relationship with the respondent

In 2000, the appellant commenced a relationship with the respondent's father, John Forehan. She commenced living with him in 2001 and married him in 2008.[13] John Forehan suffered from dementia in the later stages of his life and, as already noted, passed away in August 2021.[14]
[13] Appellant, ts 14 and ts 15.
[14] John Forehan passed away approximately two months after the Interim FVRO was granted to the appellant. The final hearing did not occur until approximately four months after his death.
In 2014, the respondent made a request to his father to set up a permanent camp on the farm. The appellant said she discussed the matter with her husband John Forehan. She said that whilst they did not have a problem with the camp site, she and John Forehan agreed that they did not want either the respondent or his sister on the property when they were not there.[15] The appellant said that she sent an email to both the respondent and his sister, Anna, advising them that they were not permitted to be on the property unless either she or their father were there. The email, sent to the respondent on 14 March 2014 (the 2014 Email), was copied to John Forehan.[16] A copy of the 2014 Email was tendered in evidence.[17]
[15] Appellant, ts 16 and ts 28.
[16] Appellant, ts 18.
[17] Exhibit 2.
The content of the 2014 Email is set out at [224] and considered in more detail below at [202] ‑ [205] in relation to Particular 2.2, and [222] ‑ [240] in relation to Particulars 2.4 and 2.5.
According to the appellant, there had been issues between her and the respondent for many years. The appellant gave evidence of a number of incidents during which she said that the respondent 'lost control'.[18]

The incident over a parking bay

[18] Appellant, ts 20.

The appellant was a director of a family‑owned company. The respondent had previously been employed by the company. He and the appellant shared an office. According to the appellant, in 2014 there was an incident where the respondent became extremely aggressive and abusive towards the appellant after she directed him to make his parking bay available to a temporary employee of the company.[19] She described the respondent as 'exploding';[20] refusing to take orders from her;[21] going for her in 'a really aggressive manner';[22] repeatedly throwing himself into a brick wall causing his head to bleed;[23] and becoming 'rigid with rage'[24] and 'advancing upon her'.[25] The respondent denied that this incident had ever occurred.[26]
[19] Appellant, ts 19.
[20] Appellant, ts 19.
[21] Appellant, ts 19.
[22] Appellant, ts 19.
[23] Appellant, ts 19.
[24] Appellant, ts 20.
[25] Appellant, ts 20.
[26] Respondent, ts 42 and ts 46.
According to the appellant, on another occasion she witnessed the respondent lose control over something that was completely disproportionate to the issue.[27]
[27] Appellant, ts 20.
The respondent denied ever having made a threat to the appellant.[28]
[28] Respondent, ts 46.
The appellant also said that there was an occasion in 2020 when the respondent's sister, Anna, had also attended the property and 'the police were called to remove her from the property'.[29]
[29] Appellant, ts 19.
Following that incident, the appellant said that she sent an email to both the respondent and Anna telling them, in her capacity as John Forehan's wife and holding an enduring power of attorney on his behalf, that they were 'not to attend the property at all'.[30] She said that she forwarded that email to the Lancelin Police.

Allegation that he threatened to shoot her and her husband

[30] Appellant, ts 19.

According to the appellant, she heard from other people that the respondent had told staff members that 'he had lain in wait across the road with a loaded firearm and the only reason he hadn't pulled the trigger was that he couldn't be sure that he couldn't [sic] get all three of us, meaning his father, the general manager and [her]'.[31] Police had apparently confiscated the respondent's firearms.
[31] Appellant, ts 20.
Although this evidence was clearly hearsay, the evidence was admissible pursuant to s 44A (1) of the Act.
The respondent denied that he ever made such threats.[32] He agreed that following this allegation, about six weeks after he left the family business, police arrived unannounced and temporarily confiscated his firearms.[33] However, the firearms were returned to him nine days later. He was never charged with any offence, nor was his licence revoked.[34] He also agreed that he was not permitted to return to the family business.[35]

Contact between the appellant and respondent in 2020

[32] Respondent, ts 33, ts 42 and ts 46.

[33] Respondent, ts 46.

[34] Respondent, ts 33.

[35] Respondent, ts 33.

In the two or so years prior to December 2020, communication between the appellant and the respondent was very intermittent.[36]
[36] Appellant, ts 24.
On 25 August 2020, the respondent met with his father, the appellant, and his sister at a restaurant in Kings Park on the occasion of his father's birthday. The appellant described the respondent as having 'acted very well' on that occasion.[37]
[37] Appellant, ts 24.
By Christmas 2020, John Forehan's dementia was severe. The appellant had an enduring power of attorney in relation to John Forehan.[38]
[38] Respondent, ts 39.
In early December 2020, an issue arose in relation to strata fees levied on a property occupied by the respondent. This resulted in a series of emails exchanged between the appellant and respondent, culminating in the December 2020 Email sent by the respondent to the appellant.[39]
[39] Exhibit 1.
The appellant contends that the December 2020 Email contained implied threats to harm her as well as her sisters made by the respondent. Whilst the respondent admitted that he wrote and sent the email,[40] he denied that he ever threatened either the appellant or her sisters.[41] The content of the December 2020 Email is considered further below in relation to Ground 3 at [255] ‑ [ 311].
[40] Respondent, ts 43.
[41] Respondent, ts 42.
Notwithstanding the email, according to the appellant, a couple of days after Christmas 2020 she invited both the respondent and his sister to have coffee with her and John Forehan at a café in Kings Park. The invitation was 'by email and text'.[42] Neither the respondent nor his sister took her up on the invitation.[43]

The farm incident - the appellant's evidence

[42] Appellant, ts 20.

[43] Appellant, ts 21.

On 22 June 2021, the appellant attended the farm and stayed overnight. She was expecting a plumber to attend the farm at 8.00 am the next morning.
At 6.30 am on 23 June 2021 she awoke and tried to turn the lights on inside the house. She decided to go 'to the stables to see if the electricity had tripped out'.[44] The stables are located about 20 m from the farmhouse.[45]
[44] Appellant, ts 15.
[45] Appellant, ts 17.
Whilst she was in the loungeroom of the farmhouse, before she went outside, she looked out through the loungeroom glass doors and saw a person in the doorway outside. The person shone a red laser light in her face.[46] The red light did not blind her, but it did scare her.[47]
[46] Appellant, ts 15 and ts 17.
[47] Appellant, ts 28.
The appellant screamed 'that's it'.[48] She then hid behind a limestone wall inside the house and called police.
[48] Appellant, ts 15
She did not recognise the respondent at the time of the incident, but did think there was a 'slight chance that it could be the respondent.[49] She then telephoned the farm's caretakers who lived on an adjoining property, also then owned by the appellant and John Forehan. She told them to check the adjoining property.
[49] Appellant, ts 16.
The police attended and located the respondent on the adjoining property about 50 minutes after her phone call to them.[50]
[50] Appellant, ts 17.
Later that day, she checked the electricity switch in the stables and discovered that it had not tripped. According to the appellant, it had been deliberately put into the 'off position'.[51]

The farm incident- the respondent's evidence

[51] Appellant, ts 17.

The respondent admitted that he attended the farm on 23 June 2021. He said visiting the farm was something he had done 'bimonthly for some time to go for a hunt'.[52] He did so in the knowledge that the appellant did not want him to attend the farm, but said that he was there in accordance with his father's permission.[53]
[52] Respondent, ts 36 and ts 47.
[53] Respondent, ts 47.
On 23 June 2021, he first attended the neighbour's adjoining property at about 3.00 am that morning and arrived at the farm at about 6.00 am.[54] On this occasion, as was his practice, he checked the property. This was done by walking through the farm. The respondent had a key to the farmhouse.[55] The farmhouse had been vacant for about two years and was rundown.[56]
[54] Respondent, ts 47.
[55] Respondent, ts 37.
[56] Respondent, ts 53.
Two months earlier, he attended the farm and checked on the property. At that time he noticed a light in the bathroom of the farmhouse. He believed that the light was emitted from some sort of Wi-Fi alarm system. He turned the power off in the belief that he was disabling the alarm, entered the farmhouse to check its condition, and then exited the house. He then turned the alarm back on.[57] The main power for the house was located in the farm's stables.
[57] Respondent, ts 47.
On 23 June 2021, not realising that the appellant was at the farm, he again turned the mains power off in the stables. He believed that this was necessary because he believed that there was a Wi-Fi alarm in the bathroom, which is how you get access to the main house. He subsequently discovered that the device he believed was a Wi-Fi alarm, was in fact a rodent sensor or rodent alarm.[58]
[58] Respondent, ts 37.
He readily acknowledged that his purpose in turning the electricity off on the morning of 23 June 2021 was to disable an alarm within the farmhouse. He was concerned that if an alarm went off it would alert the caretakers, who in turn would notify the appellant.[59] He left his firearm and pack in the stables[60] and walked to the farmhouse.
[59] Respondent, ts 49.
[60] Respondent, ts 50.
As he got to the main doors of the farmhouse, he noticed his father's Range Rover in the garage. This caused him to realise that the appellant was at the farm. He decided to immediately leave.
As he walked past the main doors to the house, he was surprised by the appellant who called out 'Oi'.[61] He was startled by the appellant and instinctively shone his 'map-reading torch at her' (not a red laser light as asserted by the appellant).[62] He denied shining the torch at the appellant in a threatening[63] or intimidating manner.[64]
[61] Respondent, ts 37.
[62] Respondent, ts 37 and ts 52.
[63] Respondent, ts 52.
[64] Respondent, ts 55.
He left the property without saying a word to her. He retrieved his firearm and pack from the stables,[65] and then left the property immediately as he was 'well aware' that the appellant did not like him being on the farm.[66] He did not turn the power back on before he left.[67]
[65] Respondent, ts 56.
[66] Respondent, ts 38.
[67] Respondent, ts 50 and ts 56.
Having left the farm, the respondent wandered along the riverbank. He saw police and the farm caretakers on the adjoining property near his vehicle. He walked over to them and introduced himself to them. At the time he was in possession of a firearm, bag, firearms licence, and keys to the farm.[68] He discussed with them his 'legal right to hunt there'.[69] He did not admit to them that he had been on the farm. He was allowed to leave with his personal property, including his firearm.[70]
[68] Respondent, ts 38.
[69] Respondent, ts 38.
[70] Respondent, ts 38.
He accepted that, on the morning of the farm incident, he did not admit to police that he had been on the farm. However, he said that this was because he was warned by the police officers that 'it could be used against him'.[71]

The map reading torch

[71] Respondent, ts 39.

The respondent denied that the device he shone in the appellant's face was a laser. The respondent said that he was carrying a map‑reading torch that day as it emitted a low‑level light which would not scare off game. It was therefore suitable for hunting purposes if he needed a light source.
The respondent apparently had the device at court but was not permitted to tender it in evidence.[72] He showed the learned magistrate a photo of the device he called a 'map‑reading torch'. The learned magistrate viewed a photo of the device and described it for the transcript.[73]

Subsequent contact between the parties after the farm incident

[72] Respondent and learned magistrate, ts .38.

[73] Respondent and learned magistrate, ts 38.

The last time the appellant saw the respondent was on 23 June 2021.
The last communication that the appellant had with the respondent was in about late October or early November 2021.[74] The respondent emailed her about matters to do with the John Forehan's estate.[75] Whilst there was some suggestion by the appellant in her evidence that this communication may have breached the interim FVRO made on 25 June 2021,[76] there was no evidence of precisely when that communication occurred, and the order was varied by another magistrate (Magistrate Holgate) to enable there to be email communication between the parties in relation to matters affecting the respondent's position as a beneficiary of a family trust.[77]

The farm - the respondent's connection to the farm

[74] The appellant referred to this communication occurring 'about a week or two after the last hearing', ts 25. The previous hearing was on 21 October 2021.

[75] Appellant, ts 25.

[76] Appellant, ts 25.

[77] Learned magistrate's reasons, ts 64.

The farm was purchased by John Forehan in the 1970s.[78] The respondent had a long history of hunting on the farm. From boyhood, he hunted feral animals on the property with his father.
[78] Respondent, ts 30.
As an adult, the respondent continued to attend the farm regularly with his father's consent. In an affidavit prepared for unrelated Family Court proceedings in August 2012, John Forehan deposed that both the respondent and his son often spent time on the farm, including camping and fishing on the farm.[79] The respondent also hunted on the farm with his own son.[80]
[79] Exhibit 6, par 9.
[80] Respondent, ts 30.
The respondent continued to attend the farm to hunt on the farm even after he received the 2014 Email. However, he did not stay on the property.[81]
[81] Respondent, ts 53.
Until the incident on 23 June 2021, the respondent hunted on the farm 'bimonthly'.[82] John Forehan held a firearms licence permitting him to possess and use 12 firearms, one of which was also licensed to the respondent.[83] The respondent had held a firearms licence since his 20s.[84] He was licensed to use and possess two firearms, including the one jointly licensed to his father.[85] The respondent also had the permission of other property owners to hunt on their property. This included Jonathon Watson in Pingelly; Dallas Dempster in Harvey; and Murray Wharton in Harvey.[86]
[82] Respondent, ts 47.
[83] Exhibit 3, John Terry Forehan's firearms licence.
[84] Respondent, ts 33.
[85] Exhibit 4, firearms licence.
[86] Respondent, ts 32.
The respondent claimed that he had always been allowed to attend the farm. Following his father's marriage to the appellant, whilst he was no longer permitted to stay in the farmhouse, he said that it was his father's wish that both he and his sister, and their children, were welcome to stay in the bunkhouse on the farm, whether the appellant was there or not.[87]
[87] Respondent, ts 40.
At the time of the farm incident on 23 June 2021, the farm was owned by John Forehan.[88] Whilst the respondent knew that the appellant did not like him being on the farm, he chose 'to ignore that because it [went] against his father's wishes. [His] father never had an issue with [him] attending the farm'.[89]
[88] Respondent, ts 39.
[89] Respondent, ts 38.
The respondent also unequivocally accepted that the appellant had an enduring power of attorney in relation to his father.[90] However, following John Forehan's death in August 2021, the respondent claimed that the farm was held by a family trust for the benefit of him and his sister Anna.[91]
[90] Respondent, ts 39.
[91] Respondent, ts 35.
The respondent admitted that the appellant had always claimed that she had a life‑time lease on the farm and that this was confirmed subsequent to his father's death when he read the will in September 2021.[92]

The respondent's mental health

[92] Respondent, ts 35 and ts 39.

The appellant gave evidence that the respondent had anger issues and had seen psychologists, paid for by the family company.[93] The appellant also said that the respondent had, in the past, sought psychiatric help.[94]
[93] Appellant, ts 25.
[94] Appellant, ts 25.
The respondent gave evidence that the only time he had suffered from mental health issues was in 2008 following a Family Court case involving the relocation of his son to Melbourne. He said that he suffered 'mild depression', consulted a psychiatrist on three occasions, and took antidepressants for six months.[95]

The December 2020 Email - Exhibit 1

[95] Respondent, ts 33.

In the period between 9 December 2020 and 14 December 2020 the respondent and appellant engaged in a chain of email correspondence. The first four emails were all sent on 9 December 2020. The final email in the chain, the December 2020 Email, was sent by the respondent to the appellant at 6.45 am on Monday, 14 December 2020.
The appellant submits that the December 2020 Email contained express or implied threats to harm her.
In addition to containing threats to harm her, the appellant also submits that the December 2020 Email contained repeated derogatory comments made by the respondent to the appellant.
The respondent denied that the words in the December 2020 Email were meant or intended to be threats against the appellant.
Relevant parts of the email chain, together with the full December 2020 Email, are reproduced below at [264] ‑ [265] and considered in detail with reference to Ground 3 of the appeal below.
Based upon the 2014 Email, the learned magistrate found that the respondent had previously been given conditional permission to be on the farm and drew the inference that the terms of the 2014 Email were known to John Forehan. In other words, the respondent was only permitted to be on the farm when the appellant and John Forehan were present and when their permission had been sought prior to the respondent's attendance at the farm.[96]
[96] Learned magistrate's reasons, ts 67 - ts 68, ts 70 and ts 71.
The learned magistrate found that she was not satisfied that the respondent had any legal or equitable interest in the farm.[97]
[97] Learned magistrate's reasons, ts 70.
The learned magistrate was not required to, and did not, make a finding as to whether the respondent was trespassing at the time of the farm incident. This issue is considered further in relation to Particular 2.2 at [200] ‑ [206] below.

Grounds of appeal

Ground 1 - Miscarriage of justice as the hearing lacked procedural fairness, was vitiated by factual and legal error and was inherently unfair to the appellant

There are three separate, but interlinked contentions made by the appellant in relation to Ground 1. First, the appellant contends that the hearing lacked procedural fairness. Secondly, the appellant submits that the learned magistrate made a number of legal and/or factual errors. Thirdly, so far as those errors are concerned, the appellant contends that some of the errors made by the learned magistrate during the hearing, or at least a combination of some or all of the errors, caused the trial process to be so unfair to the appellant that it occasioned a miscarriage of justice.[98] The appellant concedes that some of the alleged errors would not of themselves amount to a miscarriage of justice.[99] Counsel did not identify which of the alleged 'Particulars of errors' fell into that category.
[98] Counsel for the appellant on the appeal, 9 May 2022, ts 15.
[99] Counsel for the appellant on the appeal, 9 May 2022, ts 14.
It is therefore necessary to consider each of the issues that the appellant raises and contends were errors made by the learned magistrate during the course of the hearing. It is also necessary to consider whether the hearing lacked procedural fairness and/or leads to the conclusion that the hearing was so inherently unfair to the appellant that a miscarriage of justice occurred.

Particular 1.1 - The learned magistrate's observation that it was her job 'to make negative findings' in relation to the conduct of one or more of the parties (ts 3)

The role of a judicial officer in any hearing where facts are in dispute is to hear relevant and admissible evidence, and where necessary, make findings based upon the evidence.
It is important to note that the respondent was unrepresented at the hearing below. Consequently, at the start of the hearing the learned magistrate took time to explain to him, in simple terms, the rules and procedures to be followed in relation to restraining order hearings.
Whilst a magistrate is permitted, in appropriate circumstances, to make negative findings, the learned magistrate's comment that it was her job 'to make negative findings' in relation to the conduct of one or more of the parties,[100] did not properly explain the role and function of the presiding magistrate. In isolation, it was erroneous.
[100] The learned magistrate, ts 3.
However, the learned magistrate went on to briefly explain the law, including the definition of 'family violence' under the Act, and what the court needed to be satisfied of before it would make a FVRO.[101] The learned magistrate also explained to both the respondent and the appellant that the making of a FVRO was a serious matter.[102]
[101] The learned magistrate, ts 3 - ts 4.
[102] The learned magistrate, ts 3 - ts 4.
It appears that the learned magistrate was also attempting to 'sound out' the parties about the prospect of settling the matter without the need for a hearing.[103]
[103] The learned magistrate, ts 5.
The comment complained about by the appellant must be viewed in the full context of what the learned magistrate was attempting to explain to the respondent, that is what was likely to happen in the hearing.
Properly understood, the learned magistrate, prior to any evidence being called, was simply observing, without prejudging the matter, that it was her experience that these sorts of hearings often resulted in parties 'airing dirty linen in public'[104] and that her role often required her to make findings, based upon the evidence, that were negative to one or more of the parties involved. This was made clear when the learned magistrate went on to say the hearing was 'not about identifying everything that someone has done wrong'.[105]
[104] The learned magistrate, ts 3.
[105] The learned magistrate, ts 4.
Whilst it was not 'her job to make negative findings', the evidence led in restraining order hearings could result in a magistrate making negative findings against a party.
Nothing turns on this error.

Particular 1.2 - The comment that [the learned magistrate] was obliged to give the parties a 'warning in relation to costs' (ts 4)

There is nothing in the Act requiring a magistrate to warn parties about costs.
Subject to certain limitations,[106] there is a wide discretionary power under the Act for a court to make 'such orders as to costs as it considers appropriate' (s 69(1)). Save for frivolous or vexatious applications for a FVRO, an applicant for a FVRO cannot be ordered to pay costs to the respondent (s 69(1)).
[106] Section 69(2) and s 69(3) of the Act.
In addition to the pleaded Particular 1.2, in counsel for the appellant's written submissions he notes that the learned magistrate's other comments that 'costs follow the event'[107] was 'not strictly correct'.[108]
[107] The learned magistrate, ts 4.
[108] Appellant's written submissions dated 16 March 2022, par 17.
There are two parts to the learned magistrate's reference to costs. The first was directed to the respondent. The learned magistrate informed the respondent that if the appellant were successful in obtaining a FVRO against him, it was likely that the appellant would seek an order that he pay the appellant's legal fees which may well be a significant amount of money.[109] It was in this context that the learned magistrate also said that 'costs follow the event'.
[109] The learned magistrate, ts 4.
Given the learned magistrate's wide discretionary power to award costs to a successful applicant, the learned magistrate was simply foreshadowing what may occur if the appellant were successful. In any event, her comments to the respondent could hardly have prejudiced the appellant's position. If anything, it had a tendency to cause the respondent to consent to the application or agree to the resolution of the matter without proceeding to a hearing in fear that he may have to pay costs to the appellant.
The second part of the learned magistrate's comments about costs was directed to the appellant. The appellant contends that not only was the learned magistrate wrong about her stated duty to inform the parties about costs, but that it was 'improper' to warn the appellant that any award of costs in her favour would not cover her legal fees.[110]
[110] The learned magistrate, ts 5.
Taken in context, the learned magistrate was simply informing the appellant that even if she succeeded in obtaining a FVRO against the respondent, it was likely that any costs that may be awarded in her favour would not cover all of her legal fees.[111]
[111] The learned magistrate, ts 5.
Thus, whilst the learned magistrate was not legally required to warn the parties about costs, the learned magistrate was doing no more than informing the parties about what may occur in the event that they were unable to resolve the matter without proceeding to a hearing.
There is no merit in this issue.

Particular 1.3 - The learned magistrate's attempt to dissuade counsel for the appellant from canvassing a highly relevant proposition in relation to the layout of the property (ts 10, and ts 56 - ts 57)

and

Particular 1.9 - In considering the relevance of the layout of the property, the learned magistrate sought to curtail the particular line of questioning by the appellant's counsel, remarking that 'this is not a criminal case' (ts 57)

and

Particular 1.10 - The learned magistrate again sought to express her concern about how long the cross‑examination was taking: 'I'm just conscious of the time. I don't want this matter going part-heard into the New Year' (ts 57)

The appellant submits that the learned magistrate 'unfairly tried to dissuade counsel for the appellant from canvassing a highly relevant proposition in relation to the layout of the property', such conduct being 'both inappropriate and unfair'.[112]
[112] Appellant's written submissions, dated 16 March 2022, par 18.
The appellant also contends that the line of questioning was relevant, and its admissibility was not determined upon the basis of whether the proceedings were civil or criminal in nature.[113]
[113] Appellant's written submissions, dated 16 March 2022, par 24.
Furthermore, it is submitted that counsel for the appellant during the hearing before the learned magistrate kept her questions to the minimum required to establish matters relevant to the application.[114]
[114] Appellant's written submissions dated 16 March 2022, par 25.
It is not entirely clear from either Particular 1.3, or the appellant's submissions either at the original hearing or on the appeal, why the layout of the property was a highly relevant matter. For the purposes of the appeal however, I accept that the layout of the property was a relevant matter.
The first part of the trial transcript identified by the appellant (relevant to Particular 1.3) occurred during counsel for the appellant's opening address to the learned magistrate as follows:
Counsel for the appellant: Correspondence has previously been provided to the respondent prohibiting him from attending upon the applicant and her husband's property in Guilderton. On the morning of 23 June this year, the applicant woke up quite early and attended into the lounge room of that property to turn off her alarm. It became known to her that the electricity for the property had been turned off. She then turned to the doors – side doors of the property and saw a figure ---
Her Honour: So do we need to condescend [sic] to this amount of detail? Would it be ---
Counsel for the appellant: Certainly.
Her Honour: ---of more use just to say she suspected the respondent had entered her property?
Counsel for the appellant: She – certainly, your Honour. She suspected it was him. He was then – the respondent was then located by police on the property with a loaded firearm.[115]
[115] In fact, the respondent was not located 'on the property with a loaded firearm'. The respondent was located on an adjoining property. There was no evidence that the firearm was loaded.

The second part of the transcript identified by the appellant, relevant to Particulars 1.3, 1.9 and 1.10 appears as follows:[116]
[116] Hearing before the learned magistrate, ts 57 - ts 58.
Counsel for the appellant: And you would agree that that's an aerial view of the farm?
Respondent: Correct.
Counsel for the appellant: Now, the west is the left-hand side of that photograph. Would you agree?
Respondent: It is.
Counsel for the appellant: And we can see - and I have a copy, if your Honour would be assisted by it.
Her Honour: Why is it relevant, given the admissions that have been made?
Counsel for the appellant: Your Honour, it's relevant due to the positioning of particular buildings and their location on the property.
Her Honour: I'm struggling to see that. This is not a criminal case.
Counsel for the appellant: Certainly.
Her Honour: All right. I will see the copy.
Counsel for the appellant: Now, Mr Forehan, you agree that the furthest - the structure - we can see a white roof - or what appears to be a white object the furthest to the right of that image, about two-thirds of the way across?
Respondent: Starting from left to right, it goes stables, bunkhouse, main house, garden, and garage, up the top of the picture.
Counsel for the appellant: Perhaps you could just mark those on that image, and that will - - -
Her Honour: For what purpose? I'm just conscious of the time. I don't want this matter going part-heard into the New Year.
Counsel for the appellant: Your Honour, that will finalise the issue with one further question, if you - - -
Her Honour: How is it relevant? If there's only one further question, then you can ask that.
Counsel for the appellant: Certainly.
Respondent: I - I'm ready when you are.
Counsel for the appellant: Perhaps if you could just hold that up, so we can see we're on the same page?
Respondent: Okay. So that's the carport.
Her Honour: I understood that?
Respondent: Main house, bunkhouse, stables, power point.
Counsel for the appellant: All right. And you came from the westerly direction?
Respondent: If it's from this direction, yes. Okay.
Her Honour: So that won't show up. So you've just marked the left‑hand side of that photo?
Respondent: Sorry. My pen doesn't work on - - -
Counsel for the appellant: That's all right.
Her Honour: Yes, that's okay. I've read it into the transcript anyway?
Respondent: Okay.
Counsel for the appellant: And you're indicating to the lower part of that photograph, if you can just hold it up, not where the driveway is marked. Is that correct?
Respondent: Yes. Not where the driveway is.
Counsel for the appellant then tendered the aerial photograph marked by the respondent.[117]
[117] Exhibit 8.
It is obvious from the comments made by the learned magistrate that her Honour was anxious to expedite the hearing and ensure that any irrelevant evidence be avoided. An opening address is not evidence. Its purpose is to outline the case to be presented by a party and to assist the tribunal of fact to understand the case to be presented. Counsel for the appellant who appeared before the learned magistrate accepted that the issue she was outlining during her opening could be expressed without descending into more detail.
In relation to the learned magistrate's later interruptions during the cross‑examination of the respondent, including the comment 'this is not a criminal case' (set out above), it is apparent that the learned magistrate was simply trying to understand the relevance of the need to explore the layout of the property and tender an aerial photograph in circumstances where the respondent had admitted attending the property. Counsel for the appellant submitted to the learned magistrate that her line of questioning was relevant to the layout of the property (although did not explain why it was relevant).
In any event, the learned magistrate did not prevent counsel from either exploring the issue further in cross‑examination or from tendering the aerial photograph,[118] both of which occurred.
[118] Exhibit 8.
The learned magistrate's interruptions during counsel for the appellant's cross‑examination of the respondent did create an impression that the learned magistrate was anxious to expedite the matter. However, the learned magistrate was in charge of a busy Magistrates Court operating under all the usual pressures of that court. Once counsel submitted there was a need for the questions, the learned magistrate allowed counsel to proceed.
Whilst the fact that the case before the learned magistrate was civil in nature, not criminal, did not affect the question of relevance or admissibility, no prejudice to the appellant's case arose in circumstances where counsel was permitted to explore the issue in cross‑examination and tender the aerial photo.
There is no merit in relation to Particulars 1.3, 1.9 or 1.10.

Particular 1.4 - The learned magistrate told the respondent that the appellant's counsel 'will explain to you that it does not cut off the criminal proceedings (if the application is granted)'[119]

[119] Learned magistrate, ts 12.

During the appellant's counsel's opening address, she informed the learned magistrate that the respondent, as a result of the farm incident, had been charged with a criminal offence, 'trespass', and that the charge had not been resolved.[120]
[120] Appellant's counsel at the hearing before the learned magistrate, 17 December 2021, ts 11.
Consequently, the learned magistrate was careful to explore with the respondent whether he wanted to proceed with the hearing at a time when, if he chose to give evidence, he may undermine any defence he may have in relation to the criminal charge or otherwise prejudice his criminal matter.[121] It was in the context of that discussion that the learned magistrate made the comment complained of by the appellant.
[121] See the learned magistrate's discussion with the respondent at ts 11 - ts 13.
Quite obviously, the appellant's counsel had no duty or obligation to explain the effect of any order or finding made by the learned magistrate as a consequence of the appellant's FVRO application. There is no evidence that counsel for the appellant did explain anything to the respondent.
Whilst the learned magistrate's comment was clearly erroneous, counsel for the appellant did not object to the comment and nothing arose as a consequence of the comment. It had no bearing on the proceedings.
There is no merit in this particular.

Particular 1.5 - After some reference to the attendance of the police and their having apprehended the respondent after the event in question, the magistrate observed 'well that is hearsay and that is the critical issue isn't it' (ts 17)

This particular complains about the comment made by the learned magistrate to the appellant's counsel during the appellant's evidence‑in‑chief.
Whilst the appellant was giving her evidence, she began to describe what she had been told by police about them locating the respondent on an adjoining property in possession of a firearm. The learned magistrate interrupted the evidence and told her counsel that she needed 'to be careful about this evidence'.[122] It is clear the learned magistrate was alluding to the fact that the appellant was straying into the area of hearsay evidence.
[122] Learned magistrate during the appellant's evidence, ts 17.
It is in this context that the learned magistrate made the comment 'that's hearsay and that's the critical issue, isn't it?'.[123] However, despite the learned magistrate's warning, counsel for the appellant persisted with the evidence, including positively leading the appellant on what the police told her.[124]
[123] Learned magistrate, ts 17.
[124] Appellant, ts 17.
The written submissions filed by the appellant in support of this particular assert as follows: [125]
After some reference to the attendance of the police and they having questioned the respondent about the incident (during which interview he deliberately concealed the fact that he had been on his father's property; ts 38) after the event in question the Magistrate (at ts 17) observed 'well that is hearsay and that is the critical issue isn't it' (ts 17). However, it was not the 'critical issue' and the evidence was admissible in the proceedings, notwithstanding that it may have been based on hearsay. It was a question of weight, not admissibility that arose.
[125] Appellants written submissions, dated 16 March 2022, par 20.
The appellant is correct that, notwithstanding the fact that the evidence was hearsay, it was admissible. Hearsay evidence is admissible in hearings relating to applications for a FVRO.[126] Such applications are not subject to the rules of evidence.[127] Furthermore, a court hearing an application for a FVRO is permitted to 'inform itself on any matter in such manner as it considers appropriate'.[128] Thus, as the appellant correctly submits, the issue is one of weight, not admissibility.
[126] The Act, s 44A(c).
[127] The Act, s 44A(a).
[128] The Act, s 44A(b).
It is clear however, that the learned magistrate was well aware that hearsay evidence was permitted in FVRO applications pursuant to the Act. The learned magistrate had noted that fact prior to making the comment complained about.[129] Furthermore, during the respondent's evidence, the learned magistrate later noted that hearsay evidence was admissible and that once admitted, it was a question of weight for the court to determine.[130] This issue is further considered in relation to Particular 1.8 below at [153] ‑ [156].
[129] Learned magistrate, 17 December 2021, ts 16.
[130] Learned magistrate, 17 December 2021, ts 39.
The learned magistrate's comment 'that's the critical issue' must be seen in the context in which it was made. It was clearly a reference to the fact that the type of evidence the appellant was giving was hearsay. It was not a statement that the 'critical' question of whether the evidence was admissible depended on whether it was hearsay. The learned magistrate also needed to ensure that the proceedings were fair to the unrepresented respondent.
There is no suggestion that the learned magistrate prevented the evidence from being led. The learned magistrate did not rule the evidence to be inadmissible. Nor is there any indication that the learned magistrate did not take the evidence into account.
Furthermore, later in his evidence, the respondent admitted that the police spoke to him on the adjoining property and at that time he was in possession of a firearm.
Before leaving this particular, as noted at [133] above, the appellant asserts that when the respondent spoke to the police on the morning of 23 June 2021, he 'deliberately concealed the fact that he had been on his father's property'.[131] This was a reference to the respondent's evidence about speaking to the police on the morning of the farm incident.[132] The submission asserts some deceit on the part of the respondent.
[131] Appellant's written submissions, dated 16 March 2022, par 20.
[132] See appellant's evidence, ts 38 - ts 39.
The irresistible inference to be drawn from the respondent's evidence was that, after attempting to raise with the police officers the fact that he had been on the farm, he was cautioned by police about his right to silence and that anything he did say could be used against him in evidence.[133]
[133] Respondent, ts 38 - ts 39.
In fact, as noted at [125] above, the respondent was charged with a criminal offence relating to the farm incident. Despite the pending criminal proceedings and the risk that he was taking in proceeding with the FVRO hearing prior to the resolution of the criminal charge, the respondent readily admitted that:
1.he was on the farm at the relevant time; and
2.that he knew that the appellant did not want him to be there.
To assert a deliberate deceit on the part of the respondent in these circumstances was, at best, erroneous. This issue is also addressed further in relation to Particular 2.1 at [185], and [188] ‑ [190] below.
Particular 1.5 does not raise any matter that caused prejudice to the appellant's case and has no merit.

Particular 1.6 - The learned magistrate disallowed an appropriate objection by the appellant's counsel (ts 27)

During the respondent's cross‑examination of the appellant, he put the following question:
Respondent: Have I ever received any correspondence whatsoever from my father denying me access to the farm?
Counsel for the appellant objected to the question on the basis that it was 'not something that the [appellant] could answer'.[134]
[134] Appellant's counsel, 17 December 2021, ts 27.
If the question went to something that only the respondent could answer, then the learned magistrate was wrong to overrule the objection. However, the question was allowed, and the answer given by the appellant was, if anything, damaging to the respondent's case. The appellant's answer was as follows:
Appellant: I have no idea whether you've received correspondence, Michael, but I am aware that you have been told.
Consequently, even if the objection was wrongly overruled, no prejudice arose to the appellant's case in the circumstances.
There is no merit in Particular 1.6.

Particular 1.7 - In considering a question that related to the torch, the magistrate commented that her own husband and children used similar torches 'all the time' (ts 38)

The appellant submits that this comment was 'irrelevant and inappropriate and tended to trivialise the fear felt by the appellant'.[135]
[135] Appellant's written submissions, dated 16 March 2022, par 22.
The comment made by the learned magistrate was made in the context of the respondent showing her a photo of the torch he said he had used on 23 June 2021. As already noted at [71] above, it appears that the respondent was not been permitted to bring the device into court.[136] It was therefore necessary for the learned magistrate to describe what she was being shown for the transcript.
[136] Discussion between the learned magistrate and respondent, ts 38.
The learned magistrate, in describing the item, was doing no more than pointing out that the torch in question was a common item and the sort that she was personally familiar with.
There is no merit in Particular 1.7.

Particular 1.8 - In response to her own question to the respondent the magistrate observed that because the respondent's father was deceased hearsay evidence was 'admissible under the Evidence Act' (ts 39)

The comment that the appellant complains about arose in the context of the learned magistrate's invitation to the respondent, who was unrepresented, to give evidence about 'any conversations or communications that [he] had with [his] father'[137] who had passed away approximately four months prior to the hearing.
[137] Discussion between the learned magistrate and respondent, ts 39 - ts 40.
The particular, as framed, misstates and misrepresents what the learned magistrate actually said, which was:[138]
Her Honour: All right. And do you want to give any evidence which are [sic] admissible because your – and hearsay is admissible. It's a matter for me what weight, in terms of prejudice I give it, but because your father is deceased, hearsay evidence is admissible under the Evidence Act anyway.
[138] Learned magistrate, ts 39.
The learned magistrate was noting three things about the potential hearsay evidence that might be given by the respondent. First, as the learned magistrate had done earlier (see [135] above), she was pointing out that the Act permitted hearsay evidence to be admitted in FVRO proceedings.[139] Secondly, that if admitted it would be a matter for the learned magistrate to give what weight was appropriate to the hearsay evidence. Thirdly, that the Evidence Act 1906 (WA) allowed hearsay evidence where the statement was made by a person who was now deceased.
[139] The Act, s 44A(c).
Noting the limited exceptions to the hearsay rule contained in the Evidence Act, which in certain circumstances permits the hearsay evidence of a deceased person to be admitted in evidence,[140] the appellant's written submissions asserts that the learned magistrate's observation gave 'rise to a concern as to the [learned] magistrate's overall appreciation of the rules of evidence and the exceptions to the hearsay rule available under the Evidence Act'.[141] If that was the case, the appellant does not explain what error was made and, if so, how that affected the appellant's case.
[140] The Evidence Act 1906 (WA), s 79C permits any statement in a document to be admitted in evidence without calling the author if he or she is dead.
[141] Appellant's written submissions, dated 16 March 2022, par 23.
Nothing said by the learned magistrate gives rise to such a conclusion. Whilst it is doubtful that oral evidence of what the respondent's father had told him could have been admitted pursuant to the Evidence Act, any hearsay evidence the respondent may have been able to give about what he was told by his father about the matter was nonetheless relevant and admissible pursuant to the Act. The learned magistrate was well aware of that fact. Furthermore, the Family Court affidavit tendered in the hearing was admissible pursuant to the Evidence Act (see [241] below).
There is no merit in this particular.

Particular 1.11 - In reference to the rule in Browne v Dunn[142] her Honour erroneously told the appellant's counsel that you 'didn't put that to him'

[142] Browne v Dunn (1893) 6 R 67.

The appellant submits that a 'critical issue at the hearing was whether the respondent attended at the premises in the knowledge that he was prohibited from doing so'.[143] The appellant submits that the learned magistrate erred by remarking that counsel for the appellant had not during, cross‑examination, put to the respondent that he had attended the farm 'in the full knowledge that [he] knew he was not to attend there'.[144]
[143]Appellant's written submissions, dated 16 March 2022, par 26.
[144] Appellant's counsel's closing address to learned magistrate, 17 December 2021, ts 61.
The appellant identified various points during the respondent's evidence where this issue was raised.
Leaving aside those parts of the appellant's evidence relevant to the issue, the appellant also notes that the respondent readily acknowledged that at the time of the farm incident, he was aware that the appellant did not want him to attend the farm.[145] That was undoubtedly the case. However, the respondent also maintained that he had his father's authority to attend the farm and chose to ignore what the appellant had said about his right to be there.[146]
[145] Respondent's evidence-in-chief, ts 38 and cross-examination, ts 47.
[146] Respondent's evidence-in-chief, ts 40 and cross-examination, ts 47.
In cross‑examination, the appellant's counsel specifically put to him the following:[147]
Appellant's counsel: And you knew at the time that you weren't to attend that property?
Respondent: No, that's not correct. I knew at the time that [the appellant] didn't want me to attend the property, but I've only ever listened to what my father has to say.
[147] Respondent's evidence in cross-examination, ts 47.
Thus, whilst the learned magistrate was in error by suggesting to counsel for the appellant that the matter had not been put to the respondent, there are three important matters that the appellant has not addressed.
First, the appellant has not explained how the error made by the learned magistrate may have had any impact on her Honour's findings of fact or decision to dismiss the application for a FVRO.
Secondly, whilst the proposition that the respondent attended the farm knowing he was not permitted to be there was put to the respondent, he did not accept it. He made the distinction that whilst he did not have the appellant's authority to attend the farm, he had his father's authority to be there.
Thirdly, there was no evidence to contradict the respondent's evidence that he did not know that the appellant was at the farm when he first attended on the morning of the farm incident, which was what the learned magistrate found.[148]
[148] Learned magistrate's reasons, ts 72.

Fourthly, the learned magistrate noted in her reasons that the respondent was aware that the appellant did not want him to attend the property.[149]
[149] Learned magistrate's reasons, ts 68 - ts 69.
Whilst the learned magistrate erroneously suggested that the matter had not been put to the respondent, no miscarriage of justice arises in relation to this issue.

Particular 1.12 - In his closing remarks the respondent asserted that he was no threat to the appellant, only living 300 m from where she did, went to the same supermarket and walked in the same park. The magistrate observed 'I didn't realise. That is an important matter, but that wasn't brought to my attention'

The respondent did not give evidence that he lived and shopped in the same vicinity of appellant.
The appellant submits (counsel for the appellant's written submissions),[150] that the learned magistrate fell into error by 'elevating [the respondent's comments in closing] to the status of evidence', in circumstances where no weight should have been given to the comment at all.
[150] Appellant's written submissions, dated 16 March 2021, par 27.
This particular has no merit for a number of reasons.
First, the appellant does not seem to challenge the proposition that the information conveyed to the learned magistrate was important information that was relevant to determining whether the application for a FVRO should be given.
Secondly, the learned magistrate was entitled to take the information into account. The Act permits a court dealing with an application for a FVRO to 'inform itself on any matter in such manner as it considers appropriate'.[151] Consequently, the learned magistrate was not bound to give the information no weight.
[151] The Act, s 44A(b).
Thirdly, leaving aside the specific events detailed by the appellant, there was no allegation made by the appellant that the respondent had either approached her at her home, or at any stage approached her in the area that they lived. Consequently, the information complained of by the appellant could only have been relevant if the court were first satisfied that the respondent had committed family violence against the appellant, or there were reasonable grounds for the appellant apprehending he would commit family violence against her. In such circumstances the court would be required to consider whether the respondent was likely again to commit family violence against that person in the future,[152] or whether reasonable grounds existed for the appellant's belief.[153] It may also have been relevant to the question of whether 'special circumstances' existed such that the making of a FVRO was inappropriate.[154]
[152] The Act, s 10D(1)(a).
[153] The Act, s 10D(1)(b).
[154] The Act, s 10D (2).
It was open to the appellant to give this evidence if it contributed to whether there were reasonable grounds for her to apprehend that the respondent would commit family violence against her. She did not so assert.
Since the learned magistrate was not satisfied that any act of family violence had been committed by the respondent against the appellant, and consequently there were no reasonable grounds for her to apprehend that the respondent would commit family violence against her, it ultimately had no bearing on the outcome.
No error was made by the learned magistrate. If I am wrong about that, the error did not prejudice the appellant's case and no miscarriage of justice occurred. There is no merit in this particular.

Conclusion in relation to Ground 1

As identified above, there were errors made by the learned magistrate.
In some cases, an error, or a combination of errors, one of which alone would not be sufficient, could amount to circumstances where the trial was so unfair as to lead to a conclusion that the trial as a whole was so unfair as to amount to a miscarriage of justice.[155]
[155] R v Ireland (1970) 126 CLR 321, 331 (Barwick CJ).
However, when the totality of the evidence and findings is considered, none of the matters raised in relation to Ground 1, individually or in combination, can be said to have so lacked procedural fairness, or were so vitiated by factual or legal errors, or was so inherently unfair to the appellant, that the trial could be said to have miscarried.
Ground 1 is dismissed.

Ground 2 - A miscarriage of justice occurred as the findings made by the learned magistrate in reaching her decision were contrary to the evidence and were not reasonably open as a matter of fact

The appellant relies upon seven 'particulars of findings not reasonably open' on the evidence in support of Ground 2.[156]

Particular 2.1 - The learned magistrate's finding that the respondent was 'a particularly honest witness'

[156] Note: The appellant's written submissions dated 6 March 2022 erroneously refer to various incorrectly numbered particulars. There are only seven particulars (2.1 - 2.7), but the written submissions deal with Particulars 2.1 and 2.2 together, although they are unrelated. The last of the particulars is dealt with on the basis that it was Particular 2.8, but there is no such particular on the 'Appellant's Amended Grounds of Appeal filed pursuant to the order made by Registrar Kubacz on 5 April 2022'.

In her reasons for dismissing the appellant's application for a FVRO, the learned magistrate said as follows:[157]
In relation to the respondent's case, I have to say I have found him to be one of the most honest and frank respondents that have ever given evidence in restraining order proceedings before me. I, as is my duty, gave the respondent instructions, warnings and advice in relation to the criminal proceedings forthcoming in Joondalup. He chose to proceed and made many admissions against his interest. He did not argue that it was not him on the property, and in fact he was brutally honest about all of the details that occurred.
[157] Learned magistrate, ts 67, 17 December 2021.
The appellant, in both the written submissions and the oral submissions made by counsel on the appeal, submits that, given the respondent's evidence, it was not open for the learned magistrate to find that he was a 'credible and honest witness', let alone a 'particularly honest witness'.[158]
[158] The appellant's written submissions, dated 6 March 2022, par 28.
The appellant points to a number of aspects of the respondent's evidence that the appellant submits precludes a finding that the respondent was honest. They are:
1.First, that the respondent, in his evidence, admitted that his conduct in turning off the power to the farmhouse on the morning of the farm incident was deliberate. He admitted that he did this so that the caretakers would not be alerted to his presence at the property. Thus, the appellant submits that he had deliberately set out to deceive the caretakers.
2.Secondly, the respondent had 'not been frank with police about having been on the property at all on the night [sic] in question'.[159]
[159] The appellant's written submissions, dated 6 March 2022, par 29.
The learned magistrate was under no misapprehension about why the respondent had taken steps to ensure that he was not detected by the farm caretakers. Indeed, the learned magistrate made a finding that when he turned off the power, it was done so that he did not alert them to his presence at the farm.[160]
[160] Learned magistrate's reasons, ts 72.
It is important to note that the appellant's underlying contention at the hearing of the application for the FVRO was that the respondent had either threatened the appellant or otherwise intimidated her whilst at the farm. The learned magistrate however, found that whilst the respondent did turn the power off, and it was done so as not to alert the caretakers, 'the power was not turned off as a means of frightening the [appellant] or disabling her'.[161]
[161] Learned magistrate's reasons, ts 72 - ts 73.
As to essentially misleading the police, it is necessary to look at what the respondent actually said in evidence:[162]
I had my firearm licence, keys to the property and they had no issue and they let me go with my firearms. They - I didn't admit to them that I had been on my father's property because every time I - I introduce the subject, they warned me that it could be used against me. So I kept that information to myself until now. I mean, it was pretty obvious.
[162] ts 38 - ts 39.
In his oral submissions on the appeal, counsel submitted that the respondent, in his evidence, effectively accepted that he lied to the police.[163] This was an inaccurate characterisation of the respondent's evidence.
[163] Counsel for the appellant on the appeal, 9 May 2022, ts 21.
The respondent did not, in his evidence, accept that he had lied to police. As has already been noted at [139] ‑ [142] above, rather than deliberately misleading the police as alleged, the respondent noted that when he raised the subject matter of being on the property with police, he was cautioned by the police. Nonetheless, he was of the view that 'it was pretty obvious' to the police that he had been on the property.
As already noted earlier, on an appeal, this court may infer that in some way there has been a failure to properly exercise the discretion which the law reposed in the learned magistrate in considering matters such as the credibility of a witness, if it is satisfied that the decision was unreasonable or plainly unjust.[164]
[164] House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).
The issue here is whether the learned magistrate's finding that the respondent was 'a particularly honest witness' was, as submitted by the appellant, contrary to the evidence and not reasonably open as a matter of fact.
The test on an appeal in relation to whether the learned magistrate made such an error, as noted in Fox v Percy,[165] is one in which Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission[166] set down, namely:
If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' [121] or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' [122]'.
[165] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 197 ALR 201; (2003) 77 ALJR 989.
[166] Devries v Australian National Railways Commission(1993) 177 CLR 472, 479.
Added to that is the limitations of an appellate court, as compared to the primary judge or tribunal's position, described by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [23] as follows:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share [31]. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [32].
For the following reasons, there is no merit in either of the issues raised by the appellant.
First, the learned magistrate had the benefit of seeing and hearing the respondent's evidence. On appeal, this court is limited to the transcript. In that way the learned magistrate enjoyed a considerable advantage over this court.
Secondly, a failure to inform police of a fact that would amount to an admission against interest in circumstances where a person had been cautioned, could not properly be construed as 'a lie' or 'being deliberately misleading'. Given the circumstances, the respondent was exercising his fundamental right to silence. The submission that he was not being frank is misconceived.
Thirdly, the learned magistrate's conclusion that he was an honest witness cannot be viewed in isolation. Whilst the appellant has focussed on two issues, neither of which the learned magistrate considered to be adverse to his credibility, the finding needs to be considered in light of all of his evidence, including, where necessary, considering the appellant's evidence. In that regard it is important to note that much of the respondent's evidence went uncontradicted. Furthermore, the learned magistrate's finding was properly supported given that the respondent, in evidence before her, despite the warnings she properly gave him with respect to the right to silence and the dangers of potentially incriminating himself, 'frankly' admitted numerous matters that were adverse to his interests. For example, the respondent admitted that the person the appellant saw outside the farmhouse was him, despite the fact that, the respondent did not positively identify him (at the time of the incident, the appellant said that she thought there was a 'slight chance' it was him).[167]
[167] Appellant, ts 16.
The learned magistrate was entitled to, and properly did, rely upon the frank admissions that the respondent made as supporting her conclusion that he was an honest witness. It was clearly open on the available evidence for the learned magistrate to find that the respondent was a credible and honest witness.

Particular 2.2 - The 'finding that the respondent visiting the property was permissible'[168]

[168] Erroneously referred to as Particular 2.3 [sic] in the appellant's written submissions, dated 16 March 2022.

The appellant submits that the learned magistrate's finding that the respondent visiting the property was 'permissible' amounted to an 'error of fact'; 'ran contrary' to comments made by the respondent in the December 2020 Email; and was a 'critical finding' that 'was not reasonably available on the evidence'.[169] Upon a proper analysis of the learned magistrate's reasons, none of these contentions have been made out.
[169] Appellant's written submissions, dated 16 March 2022, par 31.
First, the appellant's ground of appeal and supporting submissions are taken out of context and do not fully reproduce what the learned magistrate actually said in relation to the question of whether it was 'permissible' for the respondent to attend the property. The learned magistrate said as follows:[170]
[The respondent] said that he was aware of the email that was sent in 2014. That was actually quite a lovely email exchange between the parties. In relation to that, he was not banned from the property; he was given condition [sic] permission to be at the property. He was instructed - and it's from the applicant's email address, but it is signed 'Patricia and Dad'.
2014 predates the loss of Mr Forehan Senior's licence, and I do not know what his state of mind was at that time, but I've got no reason to think that he was not a party to that email.
So visiting was permissible, but only when the applicant and her husband were present, and only after permission had been sought.
(underlining and emphasis added)
[170] Learned magistrate's reasons, ts 67 - ts 68, 17 December 2021.
Later, the learned magistrate said:[171]
Clearly, Mr Forehan knows that the applicant does not want her [sic] to be present. He gave evidence about knowing that the applicant caused the caretakers to call the police when his sister was on the property without permission.
It was his evidence that whilst he knows that the applicant does not wish him to be at the property, he goes by what his father says.
[171] Learned magistrate's reasons, ts 68.
And further to the issue of whether the respondent had permission to attend the property at the time of the farm incident, the learned magistrate ultimately said:[172]
So ultimately it's going to be a decision for the Joondalup Magistrates Court as to whether the respondent committed the offence of trespass. All of the civil defences to the tort of trespass will be available to the respondent, and no doubt he will get legal advice as to the availability of other defences under the Criminal Code involving honest claim of right and mistake, but that is a matter for a different court.
[172] Learned magistrate's reasons, ts 70 - ts 71.
Secondly, it is clear from what the learned magistrate said that her reference to the respondent visiting the property as being 'permissible', was not only qualified by the need for the appellant to be present at the time, but also on the basis that permission to do so was given by the appellant and her husband (John Forehan). Furthermore, the learned magistrate did not, contrary to the appellant's assertion, conclude that at the time of the farm incident the respondent was permitted to attend the property. The learned magistrate was merely noting that the earlier background included circumstances in which the respondent had previously been allowed to attend the farm. The 2014 Email made that clear.[173] The learned magistrate made it clear that her reference to the respondent's 'permission' to attend the farm needed to be viewed in the context of the history between the parties. This was demonstrated when the learned magistrate considered the respondent's state of mind at the time of the farm incident, noting that it was the respondent's evidence that he chose to ignore the appellant's views in the belief that his father had granted him permission to attend the property.
[173] Exhibit 2.
It was not necessary for the learned magistrate to make a finding as to whether, at the time of the farm incident, the respondent was permitted to attend the farm, and her Honour did not make that finding as asserted by the appellant.
Particular 2.2 is misconceived and has no merit.

Particular 2.3[174] - The magistrate observed that the appellant had never contended that at the time in question the respondent had been armed (ts 69)

[174] Erroneously referred to as Particular 2.4 [sic] in the Appellant's written submissions.

This particular focusses on a number of alleged errors that the appellant contends were made by the learned magistrate in relation to the issue of whether the respondent was armed with a firearm at the time that the appellant saw him outside the farmhouse during the farm incident.
First, the appellant contends that the learned magistrate was in error when she told counsel for the appellant at the hearing below that the appellant 'had never contended' that the respondent had been armed at the time that the appellant saw him outside the farmhouse. The appellant does not however, challenge her Honour's finding that the respondent did not have a firearm with him when he was outside the window of the farmhouse.
Secondly, the appellant contends[175] that the learned magistrate made further errors relevant to this issue which flowed from her Honour's misconceived view that the appellant's counsel had breached the rule in Browne v Dunn.
[175] Appellant's written submissions, dated 16 March 2022, par 32.
Before considering the issues raised by the appellant in relation to this part of the Ground 2, it is important to note the evidence that had been led at the hearing in relation to the issue of whether the respondent had been armed at the relevant time.
Fundamentally, there was no evidence that the respondent was armed with a firearm when the appellant saw him outside the window of the farmhouse. The appellant, in her evidence said that she saw 'a person in the doorway' and that person 'lifted up a laser light' which was red and was 'on her face'.[176] She did not allege that he was armed with a firearm at the time.
[176] Appellant's evidence, ts 15.
In his evidence-in‑chief, the respondent said that as he walked past the main doors of the farmhouse the appellant surprised him by calling out. In response, he 'shone a map‑reading torch at her as [he]walked away'.[177] He denied that the object he shone in the appellant's face was a laser light.
[177] Respondent's evidence, ts 37.

There is no merit in Particular 2.6.

Particular 2.7[208] - The magistrate's proposition the evidence of the respondent having attended upon the psychologist was hearsay (ts 71)

[208] Erroneously referred to as Particular 2.8 [sic] in the appellant's written submissions.

The appellant, in the written submissions, contends that the learned magistrate erred in fact and law by concluding that 'she ought to disregard or give little weight to the evidence of the respondent having attended upon a psychologist because it was hearsay' and that since the respondent confirmed that he had attended upon a psychologist, it 'was properly before the Court as evidence of its truth'.[209]
[209] Appellant's written submissions, dated 16 March 2022, par 37.
As with a number of other issues raised by the appellant during this appeal, the submissions misstate what the learned magistrate said. The learned magistrate's comments and finding relevant to this issue were as follows:[210]
In relation to the [appellant], it was her case that the respondent suffered from mental health issues. I find that the [appellant] exaggerated that evidence. It was of limited utility. And there was some hearsay evidence in relation to the respondent attending upon a psychologist, and she knew that because her husband had paid for it, and attempts by her husband to get him to see a psychiatrist.
I accept the evidence of the respondent that he was diagnosed with mild depression. Not unsurprisingly, as a result of some very distressing and contested Family Court proceedings, he was on antidepressants at that time. The email from Dr Perdo's secretary is really of limited utility, but she states what the court knows, and there are many, many people in the community, including lawyers and judicial officers, who have been diagnosed with anxiety and depression.
The stance of the [appellant] was to try to paint the respondent as being unstable, but there's no admissible or persuasive evidence in relation to that at all. She described him as having anger issues, and, again, that doesn't lead the court to any adverse finding against the respondent.
[210] Learned magistrate's reasons, ts 71.
First, the learned magistrate was correct that, in so far as the appellant's evidence of whether the respondent attended upon a psychologist, the appellant's evidence was hearsay.
Secondly, the learned magistrate did not conclude that 'she ought to disregard or give little weight to the evidence of the respondent having attended upon a psychologist because it was hearsay' (emphasis added) as contended by the appellant.
Rather, after hearing the respondent's evidence about his past mental health issues, the learned magistrate was entitled to find, and properly did, that the appellant's hearsay evidence about the issue was of 'limited utility'.[211]
[211] Learned magistrate's reasons, ts 71.
There is no merit in Particular 2.7.

Conclusion in relation to Ground 2

For the reasons set out above, there is no merit in any of the Particulars set out under Ground 2. Where errors were made by the learned magistrate, none of the issues raised in relation to Ground 2, individually or in combination gives rise to a miscarriage of justice.
Ground 2 is dismissed.

Ground 3 - A miscarriage of justice was occasioned by the failure of the learned magistrate to find the contents of Exhibit one [sic], being an email dated 14 December 2020 from the respondent to the appellant ('the email') did constitute an act of family violence pursuant to s 10D(1)(a) of the Restraining Orders Act 1997 ('the Act') when such a failure to make a finding was not reasonably open as a matter of fact or law

Particular 3.1 - It was not reasonably open to find that the content of the email did not satisfy the requirements of the Act when regard is had to the relevant provisions of the Act

and

Particular 3.2 - The content of the email, itself entitled 'Truth and Consequence' was, on any reasonable view, threatening in itself when regard is had to the relevant provisions of the Act

Given the ground of appeal as pleaded, including the two particulars relied upon, and the submissions made on the appeal, there are a number of issues that need to be addressed from the outset.
First, neither the ground of appeal nor the two particulars set out above refers to the December 2020 Email containing 'repeated derogatory remarks' and therefore constituting an act of family violence. However, the issue is raised in both the appellant's written submissions[212] and the oral submissions of counsel at the hearing of the appeal.[213]
[212] Appellant's written submissions, dated 16 March 2022, par 41.
[213] Counsel for the appellant on the appeal, 9 May 2022, ts 5.
The case before the learned magistrate was run on the basis that the December 2020 Email contained express or implicit threats made by the respondent against the appellant and her sisters. Counsel for the appellant at the hearing below did not argue that it constituted an act of family violence on the basis that it contained repeated derogatory remarks contrary to s 5A(2)(d) of the Act. This issue is now raised for the first time on the appeal. Thus, it cannot be said that the learned magistrate made a finding against the appellant on this issue as the case was run before her Honour.
Secondly, Ground 3, as pleaded, complains that the learned magistrate erred by failing to find that the December 2020 Email 'did constitute an act of family violence pursuant to section 10D(1)(a) of the [Act]'.[214] The ground of appeal does not contend that the learned magistrate erred by failing to find that 'the appellant had reasonable grounds to apprehend that the respondent will commit family violence against her' contrary to s 10D(1)(b) of the Act. Yet, the appellant's written submissions (see par 44) seem to suggest that, despite the absence of such a ground of appeal, that the learned magistrate erred in this regard. Consequently, although it is not a pleaded ground of appeal, this issue is canvassed below.

The December 2020 Email (Exhibit 1)

[214] Ground 3 of the Appellant's Amended Grounds of Appeal.

The appellant relies upon the December 2020 Email, the final email in the chain sent by the respondent to the appellant in the period between 9 December and 14 December 2020, as constituting 'an act of family violence'.[215] The December 2020 Email is titled 'Truth and consequence', which the appellant submits was on its face threatening (see Particular 3.2).
[215] Counsel for the appellant on the hearing of the appeal, 9 May 2022, ts 5 - ts 6.
The email chain commenced with an email sent by the respondent to the appellant at 8.55 am on 9 December 2020 and concluded with the final email sent by the respondent to the appellant at 6.45 am on 14 December 2020 (the December 2020 Email). In total, there were three emails sent by the respondent to the appellant, and two from the appellant to the respondent. It is therefore important to consider the December 2020 Email in context in considering the appellant's contention that the learned magistrate erred by failing to find that it constituted an act of family violence.
There is no doubt that the tone of each successive email sent by the respondent to the appellant displayed an increasing level of anger and resentment towards her. The first email (sent by the respondent to the appellant at 8.55 am on 9 December 2020), apparently related to strata fees applied to the respondent's home. The email also included the respondent's request or demand that he be consulted about 'strata fee increases before [they were] just lumped on [him]'. He also alleged that the appellant had at some stage taken out an 'illegal mortgage' over his home.[216]
[216] Exhibit 1, email sent by the respondent to the appellant at 8.55 am on 9 December 2020.
The appellant responded to the first email at 10.02 am the same day. Her response included an explanation about why a mortgage was taken out on the respondent's house, as well as addressing the increased strata fees. It also included:
Michael you are simply a tenant who has a brilliant deal so don't press your luck!
(Emphasis added)
The third email in the chain (the respondent's second), was an acrimonious response sent by the respondent to the appellant at 5.13 pm the same day. It was sent in answer to the appellant's previous response. It included the respondent's interpretation of how his father came to purchase the property he was living in for his benefit. The respondent also alleged that the appellant had:
… taken so much from this family already.
The fourth email in the chain, sent by the appellant to the respondent at 9.03 pm that same day, was the appellant's response to the respondent's preceding email. The response sent by the appellant was lengthy. It again discussed the circumstances in which the house the respondent lived in had come to be purchased for his benefit. It also included:
… we have always said, when your dad passes, it was our intention to bequeath it to you and as far as I am concerned that's still the case but time will tell wont it? It is interesting that you and Anna who have contributed so very little, who have never really been a comfort to your father or I and have caused so much grief over the years, have such high expectations, it's really very sad, I guess that's how buzzards feel … or rather don't feel!
You have to live with yourself Michael and that can't be easy but good luck to you, I bear no real malice towards you but please remember, you are the person who, in recent history, amongst other things, has threatened harm to your dad and I, have been unbelievably rude on numerous occasions, spent the funds put aside for your son's education (which you promised you would never do under any circumstances) and instead of cherishing the opportunity of living in that home by looking after it, have trashed it for want of a better word, sorry to be so blunt in my analysis but, there it is. I would have loved things to be different and we tried hard to make it so, but have sadly learnt that kindness, gentleness and honesty are just seen as a weakness by you and Anna. Right now, all my love, care and energy is focused on your dad and his needs as well as ensuring that the businesses continue to thrive yet you seem determined to try to bring more of your misery and neediness into our lives?
Please don't contact me anymore about matters that really have nothing to do with you, I will not reply to anymore of your nonsense and I take this opportunity to wish you a Happy Christmas.
(Emphasis added)
As already noted, the final email in the chain, the December 2020 Email, was sent by the respondent to the appellant at 6.45 am on 14 December 2020. It is reproduced in full below (with emphasis added):
You are so full of shit.
I really don't give a flying fuck about dads [sic] assets, your [sic] welcome to them you greedy cunt, but!
This house is mine, it's always been mine and until my son inherits it, it will remain mine. You may think you have the legal high ground but I dare you to fuck with me over this, I fucking double dare you.
Stick your veiled threats about my tenuous situation here right up your well travelled arsehole.
I can't be fucked defending myself over all your other bullshit allegations, life's too short.
Your [sic] a psychopath in the truest sense of the term so I understand your limited humanity and outrageous greed. No one has a good word to say about you. The anger you showed in your last email proves that you don't like being investigated and caught with your sticky little fingers in yet another cookie jar not your own.
Say what you like about me, I'm far from perfect, but you are an adulterous, gold digging, murdering whore and I don't care how much you and dad love each other, the way you've handled the responsibility of managing not just my poor old man but my sister and my own affairs has been despicable.
Dad said we could trust you, ha what a fucking laugh. Listen to your lizard brain and never hold my home over me again because you sure as shit won't like my reaction.
I was also amused to hear you decided to involve your sisters in our family affairs, you must really hate them. Not to worry as we all love a trifecta.
You know I'll never see my dad again because I'll never go near you again and your [sic] like a fucking remoras.
Well anyway that's my rant and I hope we both really understand each other now. Basically don't fuck with me and I'll show you the same courtesy. As a great man once said, 'id [sic] rather eat shit soup with hitlers [sic] ghost' than spend a second in your foul fake company, so let's just leave it at that.
Oh please wish dad a Merry Christmas from all his real family and then go fuck yourself. Boy I feel much better now.
Respectfully,
Michael Terry Forehan
First born male heir apparent or fucking apparently not.
P.s. I suppose returning to the farm is out of the question now.

The learned magistrate's finding in relation to the December 2020 Email

The learned magistrate's findings with respect to the December 2020 Email were as follows:[217]
In relation to the email sent in December, that contains strong language. Essentially, that email is a rant. The respondent has a sense of grievance in relation to the applicant's marriage to his father, unfortunately describing her as the 'latest squeeze'. That letter does not contain any threats, intimidation, coercion whatsoever. I remain utterly unpersuaded by the submissions of the applicant on that point.
Essentially, it's a diatribe expressing anger in relation to the way that matters are playing out, and the thrust of the letter is 'don't cross me', but I accept the respondent's contention that he meant that he would take legal action. There is absolutely no threat to harm, damage property or anything of that ilk in the email whatsoever.
[217] Learned magistrate's reasons, ts 72.
After dealing with all other incidents raised during the hearing, including the farm incident, the learned magistrate concluded:[218]
As I've said, these circumstances don't fit neatly within any of the definitions set out in section 5A. This is, in my view, quite an unusual case in terms of the matters that come before the court. There have been no threats. There have been no acts of control or coercion. Given the findings that I have made regarding the behaviour of the respondent and his state of mind, I reject the submission that he was acting in this way and doing these things to intimidate or to cause the applicant to be fearful.
Accordingly, the applicant has not proven that there has been an act of family violence as required under the legislation, and therefore the interim family violence restraining order as varied on 21 October is cancelled, and the application is dismissed.

The appellant's submissions in relation to the December 2020 Email

[218] Learned magistrate's reasons, ts 74.

The appellant contends that the December 2020 Email, 'when considered in its entirety', was such that its 'tenor, context and the terms used represented an act of family violence as [defined] in the Act'.[219]
[219] Appellant's written submissions, dated 16 March 2022, par 39.
The appellant submits that the content of the December 2020 Email amounted to an act of family violence in that it contained both repeated derogatory comments and express or implied threats of harm made by the respondent to the appellant and her sisters (although the alleged threat towards the appellant's sisters was not pursued on behalf of the appellant).[220]
[220] Counsel for the appellant, 9 May 2022, ts 7.
The appellant submits that the December 2020 Email was not sent in response to the appellant's previous email (sent by the appellant at 9.03 pm on 14 December 2020),[221] and that 'it came out of the blue and contained in itself unwarranted and unmerited threats and derogatory remarks'.[222]
[221] Counsel for the appellant, 9 May 2022, ts 6.
[222] Counsel for the appellant, 9 May 2022, ts 6.
At the appeal, the appellant identified the parts of the December 2020 Email that are alleged to be either repeated derogatory comments made to her contrary to s 5A(2)(d) of the Act, or a threat of violence contrary to s 5A(1)(b) of the Act. The relevant statements or comments are as follows:[223]
[223] Counsel for the appellant, 9 May 2022, ts 7 - ts 12.

'Threats'

•'Truth or consequence' (the email heading).
•'This house is mine, it's always been mine and until my son inherits it, it will remain mine. You may think you have the legal high ground, but I dare you to fuck with me over this, I fucking double dare [sic] you'.
•'… and never hold my home over me again because you sure as shit won't like my reaction'.
•'Well anyway that's my rant and I hope we both really understand each other now'. 'Basically don't fuck with me and I'll show you the same courtesy'.

'Derogatory Comments'

•'Never gonna [sic] happen fucker'.
•'I really don't give a flying fuck about dads [sic] assets, your [sic] welcome to them you greedy cunt, but!'.
•'Stick your veiled threats about my tenuous situation here right up your well travelled [sic] arsehole'.
•'Your [sic] a psychopath in the truest sense of the term …'
•'… I understand your limited humanity and outrageous greed'.
•'No one has a good word to say about you'.
•'… you don't like being investigated and caught with your sticky little fingers in yet another cookie jar not your own'.
•'… but you are an adulterous, gold digging [sic], murdering, whore ...'.
•'… listen to your lizard brain ...'.
•'You know I'll never see my dad again because I'll never go near you again, and your [sic] like a fucking remoras [sic]'.
•'As a great man once said, 'id [sic] rather eat shit soup with hitlers [sic] ghost than spend a second in your foul fake company …''.
•'Oh please wish dad a merry Christmas from all his real family and then go fuck yourself'.

In relation to the threats, counsel for the appellant submitted that the heading of the email itself, as well as each of the statements identified and set out above, needs to be considered in the context of what subsequently occurred during the farm incident, and each constituted an implied or express threat made by the respondent to assault or bring harm to the appellant.[224]
[224] Counsel for the appellant on the appeal, 9 May 2022, ts 8 - ts 10.
Consequently, the appellant submits that the learned magistrate erred by failing to find that the respondent's statements in the December 2020 Email constituted an act of family violence.

The respondent's evidence in relation to the December 2020 Email

There was no issue that the respondent was the author of the December 2020 Email and sent it to the appellant.
Much of the content of the email was put to the respondent during counsel for the appellant's cross‑examination of him before the learned magistrate. It was suggested to him by counsel for the appellant that he had threatened the appellant by the words:
Listen to your lizard brain and never hold my home over me again because you sure as shit won't like my reaction.
The respondent said that the words did not amount to a threat but was a warning to the appellant that he 'wouldn't accept her trying to steal [his] house lightly'.[225] He explained that the difference between a'threat' on the one hand, as opposed to a 'warning' on the other hand, was that 'a threat is intimidation, and a "warning" is just letting people know that you have concerns'.[226]
[225] Respondent, ts 43 - ts 44.
[226] Respondent, ts 44.
The respondent was asked about the words:
Basically don't fuck with me and I'll show you the same courtesy.
Again, the respondent said that it related to the house he resided in and it did not contain any threats. It was again a 'warning'.[227]
[227] Respondent, ts 44.
In relation to the words:
I was also amused to hear you decided to involve your sisters in our family affairs, you must really hate them. Not to worry as we all love a trifecta.
The respondent said that the appellant 'had taken things out of the Forehan family, and that she had involved her entire family in the same kind of outrageous dealings'.[228] He said that he just wanted to let the appellant know that he 'knew what she had done' and that he was 'expressing [his] concerns'.[229] Again, he maintained that the words were neither a 'warning', nor a 'threat'.[230]

Merits of Ground 3

[228] Respondent, ts 45.

[229] Respondent, ts 45.

[230] Respondent, ts 45.

Despite the appellant's contention that the December 2020 Email was unsolicited, on any analysis, the final email in the chain was clearly sent, at least in part, as a direct response to the appellant's previous email (the fourth email in the chain) which was sent by her to the respondent at 9.03 pm on 9 December 2020.
The content of the respondent's final email expressly responded to things said by the appellant to him in her earlier email, including a direct reference by the respondent to the appellant's 'anger [that she] showed in [her] last email …'.
The fourth email in the chain, sent by the appellant to the respondent, may well have been sent in anger given the language employed by the appellant. Parts of the appellant's email to the respondent contained derogatory and antagonistic language, including the following comments or statements:[231]
[231] Exhibit 1, email sent by the appellant to the respondent.
•'we have always said, when your dad passes, it was our intention to bequeath it to you and as far as I am concerned that's still the case but time will tell wont it'.
•'you and Anna who have contributed so very little'.
•'[you]have never really been a comfort to your father'.
•'[you]have caused so much grief over the years'.
•'I guess that's how buzzards feel … or rather don't feel!'.
•'You have to live with yourself Michael and that can't be easy'.
•'[you] have been unbelievably rude'.
•'[you] spent the funds put aside for your son's education (which you promised you would never do under any circumstances)'.
•'instead of cherishing the opportunity of living in that home by looking after it, have trashed it'.
•'you seem determined to try to bring more of your misery and neediness into our lives?'.
•I will not reply to anymore of your nonsense.
Consequently, the final email in the chain (the December 2020 Email), said to contain both threats and derogatory remarks made by the respondent to the appellant, needs to be viewed in light of the inflammatory and derogatory remarks made by the appellant to the respondent in her earlier email. This is relevant when considering whether it was open for the learned magistrate to conclude that the December 2020 Email was simply a 'rant' and did not constitute a threat of violence against the appellant.
As already noted, the appellant was required to satisfy the magistrate on the balance of probabilities of at least one of the two limbs set out at s 10D(1) of the Act before a FVRO could be made against the respondent.
Either the magistrate had to be satisfied that:
(a)the respondent had committed family violence against the appellant and was likely again to commit family violence against that person in the future; or
(b)the appellant had reasonable grounds to apprehend that the respondent will commit family violence against her.
Thus, so far as the December 2020 Email is relevant, the foundation for either of the two limbs implicitly depended on a finding that the December 2020 Email constituted an act of family violence. That must be so given the tests of the likelihood of future conduct set out at s 10(1)(a) and s 10(1)(b) of the Act, namely:
(a)that the appellant 'was likely again to commit family violence against that person in the future'; or
(b)The appellant had 'reasonable grounds to apprehend that the respondent will commit family violence against her.
(emphasis and underlining added)
The learned magistrate was not satisfied that the December 2020 Email did constitute an act of family violence.
As already noted, 'family violence' is defined by the Act to include a threat of violence by a person towards a family member of the person (s 5A(1)(a)), as well as repeated derogatory remarks (s 5A(2)(d)).

Was it open for the learned magistrate to conclude that the December 2020 Email did not contain threats of violence?

The learned magistrate found that the December 2020 Email contained 'strong language'; was a 'rant'; and was 'a diatribe expressing anger in relation to the way that matters [were] playing out'.[232]
[232] Learned magistrate's reasons, ts 72.
The learned magistrate also accepted the respondent's submission in his closing address that the only 'threat' he was expressing was in the context of legal proceedings, rather than threatening violence.[233] Her Honour found that there was 'absolutely no threat to harm, damage property or anything of that ilk in the email whatsoever'.[234]
[233] Respondent's submissions to the learned magistrate, ts 63.
[234] Learned magistrate's reasons, ts 72.
On the evidence before the learned magistrate, particularly in light of her findings that the respondent was an honest and credible witness, it was open for her Honour to find that there was no threat of violence made by the respondent against the appellant.

Did the learned magistrate err by failing to find that the December 2020 Email contained repeated derogatory remarks and therefore constituted an act of family violence?

First, as already noted at [257] above, counsel for the appellant at the hearing before the learned magistrate did not submit that the December 2020 Email constituted an act of family violence on the basis that it contained repeated derogatory remarks. Reliance was placed on what counsel submitted were 'threats', which were identified as follows:[235]
•'You may think you have the legal high ground but I dare you to fuck me over with this. I fucking double dare you'.
•'Listen to your lizard brain and never hold my home over me again, because you sure as hell won't like my reaction'.
•'I was also amused to hear you decided to involve your sisters in our family affairs. You must really hate them. Not to worry as we all love a trifecta'.
•'Basically don't fuck with me and I will show you the same courtesy'.
[235] Counsel for the appellant's closing submissions, before the learned magistrate, ts 60.
Nonetheless, although counsel at the hearing below did not address s 5A(2)(d) of the Act, nor make any submissions to the effect that the respondent had committed an act of family violence by making repeated derogatory remarks to the appellant, the learned magistrate noted that repeated derogatory remarks could constitute behaviour that fell within the definition of family violence pursuant to the Act.[236]
[236] Learned magistrate's' reasons, ts 65.
Despite the fact that content of the December 2020 Email was not relied upon at the hearing below as constituting repeated derogatory remarks, on the appeal, the appellant now submits that the learned magistrate erred by failing to find that it did contain repeated derogatory remarks and was therefore an act of family violence.
Consequently, even though it was not part of the appellant's case below, the issue is addressed below.

Did the December 2020 Email contain 'repeated derogatory remarks'?

There is no doubt that all of the identified comments made by the respondent to the appellant in the December 2020 Email were derogatory in nature. Furthermore, on one analysis, there are twelve separate derogatory comments in the email. In that sense, it could be said that the email contained 'repeated derogatory remarks'.
It is unclear whether the legislature intended the word 'repeated' to mean derogatory comments made on more than one occasion or event (in other words, at different times), or whether it would it was intended to include multiple derogatory comments made during a single event.
During the Second Reading speech of the Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 made by Mrs L M Harvey, Minister for Police, on 16 November 2016 in the Legislative Assembly, she noted that:[237]
The new FVROs will be supported by a contemporary definition of 'family violence' that largely replicates the definition of 'family violence' in the commonwealth Family Law Act 1975. It removes the concept of an 'act of abuse' and instead provides that family violence means violence, or threats of violence, by a person towards a family member, or other behaviour by the person that coerces, controls or causes the family member to be fearful. Significantly, the new definition also includes cyberstalking and the distribution of intimate images - colloquially referred to as revenge pornography - as examples of behaviour that may constitute family violence.
[237] Second Reading speech presented in the Legislative Assembly, page 8189b.
Nothing was said specifically about the term 'repeated derogatory remarks'.
The Second Reading speech made by the Hon Michael Mischin, Attorney General, relating to Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 in the Legislative Council on 14 September 2016 was in a similar vein. No mention was made as to what 'repeated derogatory remarks' meant.[238]
[238] Second Reading speech, Legislative Council, page 5933b.
It is however clear that the category of behaviour that the term 'repeated derogatory remarks' fell into was one that caused the person the subject of the remarks to be fearful.
Assuming that s 5A(2)(d) Act could be satisfied by proving that two derogatory comments made on one occasion could constitute 'repeated derogatory remarks' (and it is doubtful that the legislature intended that the phrase 'repeated derogatory remarks' should be interpreted to include such a circumstance, as opposed to requiring that derogatory remarks be made on at least two separate occasions),[239] in the circumstances of this case, an act of family violence was committed by the respondent.

If the learned magistrate erred by failing to find that the 'repeated derogatory remarks' constituted an act of family violence, was there a miscarriage of justice?

[239] See Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 Second Reading Speech, Mrs L M Harvey (Scarborough - Minister for Police).

In the event that the learned magistrate erred by failing to find that the December 2020 Email contained repeated derogatory remarks made by the respondent to the appellant, and therefore an act of family violence, had been committed by the respondent, nonetheless no miscarriage of justice resulted from such a failure for the reasons that follow.
As noted at [285] - [286] above, it is not enough for a magistrate to find that an act of family violence had been committed by the respondent. A magistrate must also be satisfied on the balance of probabilities that either the respondent was likely again to commit family violence against the appellant in the future, or the appellant had reasonable grounds to apprehend that the respondent would commit family violence against her.
The learned magistrate, having concluded that none of the other statements or comments in the December 2020 Email constituted threats made by the respondent to the appellant, standing alone, the December 2020 Email was not sufficient to satisfy the test, on the balance of probabilities, that the respondent was likely again to commit family violence against the appellant in the future, or that the appellant had reasonable grounds to apprehend that the respondent would commit family violence against her.
First, unlike the alleged threats, it was not part of the appellant's case before the learned magistrate that the derogatory remarks constituted either an act of family violence or reasonable grounds that he would commit violence against her in the future.
Secondly, the respondent in the December 2020 Email, when he said, 'You know I'll never see my dad again because I'll never go near you again and your [sic] like a fucking remoras',[240] made it clear that he had no intention of having contact with the appellant in the future.
[240] Exhibit 1 - December 2020 Email.
Thirdly, the respondent's actions during the farm incident, which on the evidence the learned magistrate properly concluded was an attendance at the farm for the purposes of hunting, not confronting the appellant, included him taking steps to avoid contact or a confrontation with the appellant after discovering that she was at the farm. This reinforced the respondent's assertion made in the December 2020 Email that he did not intend to 'go near [her] again'.
Fourthly, even if the 'repeated derogatory remarks' constituted an act of family violence, the evidence before the learned magistrate did not support a conclusion, on the balance of probabilities that:
(a)He was likely to again commit an act of violence; or
(b)The appellant had reasonable grounds to believe he would commit an act of family violence.
Furthermore, so far as the latter aspect is concerned, the appellant's implicit contention that she held a belief that the respondent was likely to commit an act of family violence was completely at odds with her actions of inviting the respondent to have coffee with her at a café in Kings Park approximately two weeks after receiving the December 2020 Email,[241] which she alleged contained threats to harm her.

Conclusion in relation to Ground 3

[241] Appellant, ts 20.

For the reasons set out above, Ground 3 has not been made out and is dismissed.

Conclusion and final orders

None of the matters raised in the appeal, including any errors made by the learned magistrate, either singularly or in combination, gives rise to a conclusion that a miscarriage of justice resulted.
None of the grounds of appeal have been made out and the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy
5 AUGUST 2022