KJ v SH - [2021] WADC 133

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KJ -v- SH [2021] WADC 133
CORAM:   STAUDE DCJ
HEARD:   29 OCTOBER 2021
DELIVERED          :   22 DECEMBER 2021
FILE NO/S:   APP 61 of 2021
BETWEEN:   KJ
Appellant
AND
SH
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE HALL
File Number            :   PER/RO/2234 OF 2020

Catchwords:

Appeal - Magistrates Court - Restraining Orders Act 1997 (WA) - Application to vary conduct agreement order - Whether magistrate failed to hear application - Whether breach of natural justice - Whether error shown in the decision to dismiss the application

Legislation:

Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	In person

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

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

Nil

STAUDE DCJ:

Introduction

This is an appeal against the decision of Magistrate Hall on 11 August 2021 dismissing KJ's application pursuant to s 45 of the Restraining Orders Act 1997 (WA) to vary a restraining order.
The right of appeal is found in s 64 of the Restraining Orders Act:
(1)A person aggrieved by the decision of a court -
(a)under section 23(1)(b) or 29(1)(b) to dismiss an application; or
(b)to do any of the following -
(i)make, vary or cancel a final order;
(ii)refuse to make, vary or cancel a final order;
(iii)make any other order in relation to a final order,
may appeal against that decision in accordance with this section.
(2)If the decision was made by the Magistrates Court, the appeal is to be made in accordance with Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 unless subsection (6a)(a) applies.
Section 43(7) of the Magistrates Court (Civil Proceedings Act) Act 2004 (WA) provides:
(7)The appeal court may -
(a)confirm, vary or set aside all or a part of the lower court's judgment;
(b)give any judgment and make any order that the Magistrates Court could have given or made;
(c)order a new hearing in, or trial of, the case to be held in the Magistrates Court;
(d)order the Magistrates Court to enter judgment in favour of a party;
(e)make an order as to the costs of the appeal and as to the costs in the Magistrates Court and, in an appeal to the Court of Appeal, as to the costs in the District Court;
(f)make any orders that are necessary as a result of other orders it has made.
Before dealing with the grounds of the appeal and their merits it is necessary to examine the procedural history of the matter in the Magistrates Court.
The following chronology of the proceedings is derived from the transcripts of hearings in the Magistrates Court and the Family Court and the documents in the electronic matter book which contains more than 2,000 pages.

Procedural chronology

On 20 May 2020 Magistrate Millington made an interim family violence restraining order (FVRO) against SH as the person bound, protecting his two children TH and NH. The order was sought by KJ, the mother of the children, on their behalf, on the basis that SH had committed an act of family violence against NH by punching him on 26 April 2020, and that on 19 May 2020 at Perth Children's Hospital SH had approached the two children causing TH to become upset.
His Honour acknowledged that the parties were subject to a Family Court parenting order made on 20 June 2018. His Honour also noted that there was a conduct agreement order made on 16 March 2020 with respect to an interim FVRO against SH protecting KJ. (That matter has, like this one, consumed a lot of court resources. The parties have been litigating parenting matters in the Family Court of Western Australia and in the Magistrates Court for more than five years.)
His Honour said on the 'evidence' of KJ he was satisfied that there had been an act of family violence and that there was reasonable apprehension of the part of KJ that NH would be exposed to family violence again. His Honour also accepted on the evidence of KJ that the children were traumatised by their father's attendance at the hospital, finding that if his presence caused the children to 'react in that way' (though there was no finding as to what the reaction of the children was), it was an act of family violence irrespective of SH's intention.
The matter book does not contain any affidavit by KJ in support of her application for the FVRO and the transcript of proceedings on 20 May 2020 does not reveal that KJ gave any sworn or affirmed evidence of the facts on which the application was based. Section 44A (1) of the Restraining Orders Act provides that the rules of evidence do not apply and that a court may inform itself on any matter in such manner as it considers appropriate. I take it that his Honour's findings were informed by what KJ said in the hearing.
The order was made in the usual terms (prohibiting communication and contact), but provided that SH would not breach the order if he communicated through a lawyer or if he complied with a Family Court order.
At an ex parte hearing on 27 May 2020 before Magistrate Longden, SH appeared on his application for an order that the FVRO be cancelled. He had been served with the FVRO that morning. He applied for cancellation on the grounds that he had been advised by personnel at Perth Children's Hospital and the Department of Child Protection and Family Services (DCPFS) that they had grave concerns for the mental health of KJ. Magistrate Longden adjourned the hearing to 10 June 2020 and directed that KJ be served with the application.
On 10 June 2020 the matter came before Magistrate Randazzo. There was no appearance by KJ. There was no evidence that a summons had been issued or served. The hearing was adjourned to 17 June 2020. His Honour directed that a summons to attend be served on KJ. The time for service was abridged.
On 17 June 2020 the matter came before Magistrate Hills‑Wright. There was no appearance by KJ. The matter was adjourned to 23 June 2020. An order was made allowing substituted service of a summons by email. Again, the time for service was abridged.
On 23 June 2020 both parties appeared before Magistrate Hills‑Wright. His Honour noted that a parenting order had been made in the Family Court on 18 June 2020 that the children live with SH, who informed the court that he had sole custody. That order provided that it would prevail over the FVRO to the extent of any inconsistency with it. His Honour observed that the FVRO had no effect as it was overridden by the Family Court order. His Honour said he had no time to hear the cancellation application because of another matter that had priority. His Honour expressed concern that a full hearing of the cancellation application should not proceed in circumstances where Family Court proceedings were ongoing and involved, amongst other things, an independent children's lawyer. He considered that any prejudice to SH caused by the FVRO was ameliorated by the Family Court parenting order of 18 June 2020. KJ informed the court that she was not in a position to proceed with the final order hearing with respect to the FVRO because DCPFS had not provided its file on the children. His Honour vacated the final order hearing on 8 July 2020 and adjourned the cancellation application to 7 September 2020 for mention only.
On 7 September 2020 the matter came before Magistrate Scadden. SH informed the court that he continued to have sole care of the children pursuant to a Family Court order made 31 August 2020. The order provided that KJ undergo a mental health assessment and only spend time with the children while supervised. SH told the court that the Family Court was informed by a DCPFS memo, various police reports and the case assessment conference minutes. As he put it: 'This is an FVRO raised to protect my sons from me in circumstances where the Family Court, the DCP, the police and the hospital clearly find that the boys are best with myself'. Her Honour listed the final order hearing and the hearing of the cancellation application on 10 December 2020.
On 7 December 2020 the matter came before Magistrate De Vries. A lawyer for Centrecare appeared to object to a summons to produce documents issued by KJ. Centrecare objected to produce documents because it was a family counselling organisation for the purposes of s 10B of the Family Law Act 1975 (Cth). Section 10E provided that evidence of anything said by or in the company of a family counsellor conducting family counselling is not admissible in any proceedings. KJ maintained that the subpoenaed material did not relate to family counselling. She was seeking production of a parenting assessment report. His Honour adjourned the hearing of the objection to the trial.
On 10 December 2020 the matter came before Magistrate Maclean. KJ was presented by Mr Merenda of counsel who indicated that the summons issued to Centrecare could be withdrawn by agreement. Counsel indicated that KJ was seeking an order restraining SH from behaving in a threatening or intimidating manner towards the children and behaving in an emotionally abusive manner towards the children. He said an order in these terms would leave undisturbed whatever the Family Court had put in place. Counsel said that nothing was sought that would inhibit SH's ability pursuant to the Family Court order to have the children live with him. SH submitted that the matter should be dealt with by the Family Court. SH informed the court that he had been served with a statement of claim or case statement that day and required an adjournment to consider it. His Honour sought to resolve the matter by proposing that KJ accept an undertaking by SH, but the resolution of the matter on that basis was rejected by counsel on behalf of KJ. The matter was adjourned to 3 March 2021.
On 16 February 2021, Mr Hartley acting for KJ, sent an email to the Magistrates Court informing the court that the parties had agreed to resolve the matter by a conduct agreement order, a copy of which signed by the parties was attached. The court responded by informing KJ's lawyer that a form 49 (memorandum of consent order) was required. That memorandum was duly signed by the parties on 19 February 2021.
The terms of the conduct agreement were:
1.the person bound consents to a conduct agreement order pursuant to s 10H of the Restraining Orders Act 1997 in the terms set out below, without any admission or finding, for a period of two years from 20 May 2020;
2.each party bear their own costs and there be no order for costs;
3.the applicant withdraws the application and the application be otherwise dismissed; and
4.the person bound solely consents to this conduct agreement order on the basis that the respondent does not make any variation applications in respect of this conduct agreement order.
Part A orders. Except as set out in Part B, the person bound shall not:
1.be in possession of a firearm, a firearms licence or obtain a firearms licence;
2.behave in an intimidatory, offensive or emotionally abusive manner towards the persons protected;
3.harass the persons protected by any electronic means, including by using the Internet and any social network application (such as Facebook) to refer in a derogatory manner to the persons protected;
4.when the persons protected are in the applicant's care, not to enter or remain upon [address given] or be within 50 m of the nearest external boundary of those premises;
5.when the persons protected are in the applicant's care, remain within 10 m of any property (including vehicles) of, or under the control of, the applicant;
6.not to [sic] prevent the persons protected from making or keeping connections with their family, friends or culture;
7.cause or allow any other person to engage in conduct of the type referred to in any of the preceding paragraphs of this order on your behalf.
Part B, the person bound will not breach the orders in Part A if you:
1.communicate with the persons protected through an Australian legal practitioner as defined in the Legal Profession Act 2008;
2.comply with a court order or parenting plan, made under the Family Law Act 1975 and the Family Court Act 1997, allowing you to live with, spend time with, or communicate with a child or children named in that order or the plan;
3.instruct a process server or bailiff or other person to serve any legal process requiring service on the persons protected;
4.participate in and attend court events in proceedings in which the persons protected and you are parties or witnesses, and to comply with any order or direction of a court;
5.engage in any mediation as directed or ordered by a court, or other mediation as agreed in writing by the parties and as arranged by a mutually agreed third-party.
The conduct agreement order was made by Magistrate Watt on 22 February 2021. Clause 4 of what might be called the preamble is curious for the reason that it refers to the 'person bound' (being SH) consenting to the order on the basis that 'the respondent does not make any variation applications'. No party is described as 'the respondent', yet it would make sense if it referred to the applicant (KJ). I have not been addressed on this aspect of the conduct agreement order, but would be inclined construe the order accordingly. As I have not heard from the parties, however, it would not be fair decide the appeal on this basis.

Family Court orders

At the time of the making of the interim FVRO on 20 June 2020, the parties were subject to Family Court order dated 22 June 2018 that included orders as to parenting arrangements.
On 18 June 2020 further orders were made to the effect that the orders made on 22 June 2018 that related to parenting arrangements be suspended and that until further order, the children live with SH and spend time with KJ on such terms as may be agreed in writing. That order provided further:
This is an order to which s 68Q of the Family Law Act 1975 applies and to the extent that this order is inconsistent with the family violence order made in the case between the parties on 20 May 2020 in the Magistrates Court at Perth being complaint number MC/CRV/PER/RO/2234/2020 the aforesaid parenting order shall prevail and the family violence order is invalid to the extent of the inconsistency.
The order of 18 June 2020 also provided that the children be independently represented at further hearings 'due to the allegations of concerns in re [sic] to the mother's mental health and concerns into the highly conflictual relationship between the parties'.
It is not in dispute that pursuant to that order and subsequent orders made on 5 October 2020 and 27 April 2021 SH has the sole care of the children. On the latter date an order was made that a named child psychologist be appointed a single expert witness to enquire into and report on certain matters relating to the children.

The application to vary

On 19 July 2021, according to the Magistrates Court record, KJ lodged two applications: one, an application to vary or cancel a restraining order, and the other, an application to vary or cancel a conduct agreement order. Both were signed by KJ and both appear to have been signed by the same registrar. Each application is endorsed with the same date and time for hearing, being 11 August 2021 at 9.30 am.
The application with respect to the conduct agreement order is numbered 2234 of 2020 (the number of the original proceedings for the FVRO) and specifies the date of the order as 22 February 2021 (the date on which Magistrate Watt made that order).
The orders sought in the application to vary the conduct agreement order are:
1.The Family Court orders between the applicant, the person bound in favour of the person protected dated 20 June 2018 be revived by the court.
2.The Family Court orders that suspended the Family Court orders between the applicant, the person bound in favour to the person protected dated 20 June 2018 be discharged by this court.
3.The Family Court orders dated 20 June 2018 made by consent are varied as follows: the person bound is restricted by injunction and an injunction is granted, and must not
4.[sic] isolate, deprive contact with or restrict the person protected from their family, friends or other sources of support.
5.State or comment verbally or in writing that the person bound had or has been awarded sole care or sole custody of the protected person.
6.State or comment verbally or in writing that the person protected can only see their mother if their mother is supervised.
7.State or comment verbally or in writing that the Family Court magistrate made an order that the applicant must have a mental health assessment.
8.state or comment verbally or in writing until further of the court [sic], anything that will or is likely to, could or possibly, to mislead another person about the contents or operation of any court orders relating to the person protected.
9.Prevent the person protected from having contact with, seeing, walking over to, speaking to or communicating with the applicant (their mother).
10.Weaponise the person protected to coercively control the applicant, their mother.
11.Do an individual action or a series of action [sic] that could be considered to intimidate, isolate or control the person protected.
12.Engage in an action or series of action that may, could or do cause the protected person to experience fear, alarm or distress.
The duration of the FVRO is extended by five years.
The application, appropriately redacted, is annexed (annexure A). The other application is not numbered and does not specify the date on which the FVRO was made. No FVRO as such existed. I consider it to be redundant.
It is immediately apparent from the terms of the application to vary that it is directed exclusively at orders, including parenting orders, made by the Family Court. It does not seek any variation of the conduct agreement order.
Prior to the hearing KJ lodged supporting documents, a list of which is also annexed to these reasons (annexure B). I have had regard to those documents for the purpose of this appeal. While several documents directly relating to the children are included, they deal with matters that precede the making of the interim FVRO by Magistrate Millington in June 2020. There is no evidence among the materials lodged in support of the application for variation of any acts of family violence against the children other than those that were alleged as the basis for the initial order. On the other hand, many of the documents relate to the Family Court proceedings. (KJ made it clear to me in her submission in the appeal that she was asking the court to provide relief that the Family Court would not give her, namely, contact with her children.)
The matter came before Magistrate Hall on 11 August 2021. His Honour indicated that he had before him an application to vary the conduct agreement order. His Honour noted that the original interim FRVO had been cancelled when the conduct agreement order was made.
Having referred to the terms of the application, his Honour said it should be addressed to the Family Court as it sought the variation of Family Court orders. KJ submitted that there was extensive material before the court that was not before the Family Court. She claimed that the court had jurisdiction under s 68R of the Family Law Act to set aside and vary the Family Court orders.

His Honour made a number of observations (ts 3 - ts 4) to the effect that:
1.Everything that was raised in the application was in the Family Court jurisdiction.
2.Family Court orders overrode restraining orders as a general rule.
3.If a restraining order were to be inconsistent with the Family Court order and it was not appropriate that the Family Court order override the restraining order, the Family Court order could be amended, but only in very limited circumstances.
4.The power was exercised very sparingly in exceptional circumstances.
KJ submitted that exceptional circumstances existed for the purposes of s 68R (ts 4). The following exchange occurred:
KJ:May I make submissions on the section 68 ---
His Honour: No, you can't, because if that's what you're seeking to do - I can see what you're seeking to do. You're basically asking me to put on a Family Court jurisdiction hat and revive some orders made on 20 June, suspend other Family Court orders, vary Family Court orders. I'm not going to do that. I'm not a Family Court magistrate. I don't have that legal background. I don't have that legal expertise. I'm magistrate in this court. It's a separate court to the Family Court. Magistrates in the Family Court, they have Family Court background and experience; I don't. I've experience making restraining orders, but this sort of Family Court, you know, order, like I said, in the exceptional circumstances, it is not complicated, yes, we will do it, but I have never done it. So it does exist for a very limited purpose. But really what you are asking me to do is make Family Court orders and that's Family Court jurisdiction. I can't do that. You have to make an application in the Family Court.
KJ argued that s 68R was applicable because there had been extensive family and domestic violence of which there was evidence before the court that was not before the Family Court. She said that in the Family Court she could not issue subpoenas without leave and it took time for them to be returned. She said the transcripts made it clear that she had 'drawn these issues to the Family Court's attention, including the independent children's lawyer, and nothing has moved'.
His Honour then addressed the application itself:
His Honour:    I was just looking at the current conduct agreement order - not to prevent the person protected from making or keeping connections with their family, friends or culture. And you've got in here - not to isolate, deprive contact with, or restrict the person protected from their family, friends or other sources of support. So it's a similar clause.
KJ:The existing clause has no effect, at the moment. Where the person bound has done exactly that for 7 ½ months, and the police, despite section 35 of the police act, the police refused to take a statement, or take a report of any kind, where he breaches it.
His Honour:    So how are you saying it has been breached?
KJ:By him restricting the children from having contact with their mother.
His Honour:    Yes. So this, again, this is Family Court. This really is Family Court – it overlaps with the restraining orders court [sic], but this has a foundation in the Family Court. The Family Court orders override restraining orders. So if you address this in the Family Court, and you get Family Court orders, they will override this restraining order – or conduct agreement order. So there is no need to vary it.
KJ:With all due respect, your Honour, it is my submission that it – not it should, it must be varied. Not just .4, but five, six, seven, eight, nine, 10 and 11. And 12.
His Honour observed that those matters did not relate to the children, but to KJ. His Honour said (ts 8):
Well, you might want to bring your own application for a restraining order because these points you've raised more relate to your protection rather than the protection of the children. In my view, this is about him not doing certain things towards you. So you should address that in your restraining order, not in the restraining order that extended for the children. Because it probably is more related to your protection, rather than their protection.
His Honour, informed by KJ that she had already obtained her own restraining order, remarked that she would be better off making variations to her order. KJ submitted that the impact on the persons protected under the order was that 'their father's misrepresentations mean that the children are prevented from seeing me'.
His Honour responded (ts 10):
The foundation is in the Family Court. … His actions in misrepresenting the family court orders, or talking to the children about the state of the orders, it's all matters for the Family Court. They can make orders saying not to denigrate the other person, you not to discuss this. They've got the power, which I don't have, to interview the children, to have an independent children's lawyer. In this court, children can't be witnesses without leave of the court.
KJ maintained that there were multiple transcripts of interviews of the children that were not before the Family Court. When asked why those documents could not be brought before the Family Court, KJ said that it was a question for the independent children's lawyer who, she submitted, did not represent the best interests of the children. She adverted to complaints she had made to the Legal Practitioners' Complaints Committee and to Legal Aid WA. His Honour suggested that she make those submissions in the Family Court. KJ said that she had and that she had advocated for the independent children's lawyer to subpoena the material, but this had not been done. His Honour, in dismissing the application, made it clear that the problems she was encountering with the independent children's lawyer had to be resolved by the Family Court. Essentially, as I read the transcript, his Honour dismissed the application on the grounds that it was an abuse of process.

Legislative provisions

As this appeal involves coexisting court orders made by the Magistrates Court and the Family Court of Western Australia respectively, it is necessary, before addressing the substance of the appeal, to refer to the relevant legislative provisions. The Restraining Orders Act and the Family Law Act each recognise that an FVRO may overlap with a parenting order. (The relevant provisions of the Family Law Act are mirrored in the Family Court Act 1997 (WA).)

Family Law Act

Division 11 of the Family Law Act deals with family violence. According to s 8N the purposes of div 11 are, relevantly, to resolve inconsistencies between family violence orders and orders made pursuant to the Family Law Act. An FVRO made under the Restraining Orders Act is a family violence order: Family Law Act, s 4.
Section 68P obliges a court making an order under the Family Law Act that is inconsistent with an existing family violence order to specify that it is inconsistent, give a detailed explanation in the order of how the contact that provides for is to take place, and explain the order to the parties in language that they are likely to readily understand.
Section 68Q(1) provides that to the extent that an order under the Family Law Act that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child, is inconsistent with an existing family violence order, the family violence order is invalid. Section 68Q(2) and s 68Q(3) provide for the making of a declaration that the order is inconsistent.
Section 68R deals with the power of a court making a family violence order to revive, vary, discharge or suspend an existing order made under the Family Law Act. Section 68R is as follows:
Power
(1)In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend:
(a)a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or
(b)a recovery order (as defined in section 67Q) or any other order under this Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or
(c)an injunction granted under section 68B or 114, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or
(d)to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child:
(i)an undertaking given to, and accepted by, a court exercising jurisdiction under this Act; or
(ii)a registered parenting plan within the meaning of subsection 63C(6); or
(iii)a recognisance entered into under an order under this Act.
(2)The court may do so:
(a)on its own initiative; or
(b)on application by any person.
Limits on power
(3)The court must not do so unless:
(a)it also makes or varies a family violence order in the proceedings (whether or not by interim order); and
(b)if the court proposes to revive, vary, discharge or suspend an order or injunction mentioned in paragraph (1)(a), (b) or (c) - the court has before it material that was not before the court that made that order or injunction.
(4)The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order.
Relevant considerations
(5)In exercising its power under subsection (1), the court must:
(a)have regard to the purposes of this Division (stated in section 68N); and
(b)have regard to whether spending time with both parents is in the best interests of the child concerned; and
(c)if varying, discharging or suspending an order or injunction mentioned in paragraph (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order - be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction.
Note: Sections 60CB to 60CG deal with how a court determines a child's best interests.
Registration of revival, variation, discharge or suspension of orders and other arrangements
(6)The regulations may require a copy of the court's decision to revive, vary, discharge or suspend an order, injunction or arrangement to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court's decision.
It can be seen that s 68R(1) empowers the Magistrates Court in proceedings to make or vary a family violence order to revive, vary, discharge or suspend a parenting order (for present purposes) made under the Family Law Act. By s 68R(3), however, the court must not do so unless it also makes or varies a family violence order and the court has before it material was not before the court that made the parenting order.
It is clear, in my view, that by virtue of s 68Q(1), a parenting order that is inconsistent with an existing FVRO renders that order invalid to the extent of that inconsistency. In other words, the parenting order overrides the FVRO.
It is also clear that the s 68R jurisdiction only arises where the Magistrates Court makes or varies a FVRO and has before it material that was not available to the Family Court.

Restraining Orders Act

Section 3(1) of the Restraining Orders Act defines 'final order' to include, in relation to an FVRO, a conduct agreement order, and 'restraining order' to mean an FVRO. Section 51 provides that a reference to 'family order' is a reference to a parenting order made under the Family Law Act or the Family Court Act1997 (WA), as is relevant to the case, that deals with, relevantly, the person or persons with whom a child is to live.
Section 10E provides:
(1)An FVRO may be made for the benefit of a child if the court is satisfied that -
(a)the child has been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child is likely again to be exposed to such violence; or
(b)the applicant, the child or a person with whom the child is in a family relationship has reasonable grounds to apprehend that the child will be exposed to family violence committed by or against a person with whom the child is in a family relationship.
(2)If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.
(3)For the purposes of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.
Section 10F provides:
(1)When considering whether to make an FVRO and the terms of the order, a court is to have regard to the following -
(a)the need to ensure that the person seeking to be protected is protected from family violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them;
(c)the need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in paragraph (b) or otherwise being subjected or exposed to family violence;
(d)the accommodation needs of the respondent and the person seeking to be protected;
(e)the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or persons as are before the court or not;
(f)hardship that may be caused to the respondent if the order is made;
(g)any family orders;
(h)other current legal proceedings involving the respondent or the person seeking to be protected;
(i)any criminal convictions of the respondent;
(j)any police orders made against the respondent;
(k)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise;
(l)any police incident reports relating to the respondent;
(m)any risk assessment, or risk‑relevant information, relating to the relationship between the respondent and the person seeking to be protected;
(n)any other matters the court considers relevant.
(2)A court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance.
Section 10H provides:
(1)If, at any stage of proceedings under this Act relating to an FVRO, the respondent agrees (a conduct agreement) to the making of a final order imposing restraints of the kind referred to in section 10G (a conduct agreement order), the court may make the order without being satisfied there are grounds for making an FVRO in the same terms.
(2)A conduct agreement does not constitute an admission by the respondent of all or any of the matters alleged in the application for the relevant FVRO.
(3)A conduct agreement order is not an FVRO, but is taken to be an FVRO for the purposes of this Act.
(4)The registrar must cause a conduct agreement order to be prepared and served on the respondent.

Section 45 provides, in part:
(1)An application to vary or cancel a restraining order may be made by -
(a)the person protected by the order; or
(b)a police officer on behalf of the person protected by the order; or
(ba)in the case of an application to a court exercising criminal jurisdiction, the person conducting the prosecution on behalf of the person protected by the order; or
(c)the person bound by the order.
Section 49B provides, relevantly:
(1) When considering whether to vary or cancel an FVRO, the court is to have regard to -
(a)the matters referred to in section 10F; and
(b)if the application for the variation or cancellation is made by the person protected, whether or not it is possible that threats have been made against, or some other pressure has been brought to bear on, the person protected.
Section 65 provides that if a court does not have jurisdiction to adjust a family order the court is not to make a restraining order that conflicts with that family order.
Section 66 provides:
(1)A court before which an application for a restraining order has been made must, at a time determined by the court to be appropriate in the circumstances, request the applicant to provide information (being information of which the applicant is aware) -
(a)about the existence of -
(i)unless subparagraph (ii) applies, any family order to which the applicant is a party; or
(ii)if the application is being made on behalf of another person, any family order to which the person for whose benefit the order would be made is a party;
and
(b)about the existence of -
(i)unless subparagraph (ii) applies, any pending application for a family order in which the applicant is a party to the family court proceedings; or
(ii)if the application is being made on behalf of another person, any pending application for a family order in which the person for whose benefit the order would be made is a party to the family court proceedings.
(2)If a court, on making a request under subsection (1), or in any other circumstances, becomes aware of an existing family order, or proceedings for a family order, the court must -
(a)take steps to obtain a copy of any family order or, if that is not reasonably practicable in the circumstances, information about the terms of any family order; and
(b)without derogating from section 65, take the terms of any family order, or the terms of a family order that are being sought in a pending application for a family order, into account (to the extent that those terms are known to the court) when making a restraining order (including an order agreed between the parties) under this Act.
(3)A restraining order is not invalid merely because of any failure to comply with this section.
No question was raised below or on appeal as to whether a conduct agreement order can be varied or cancelled pursuant to s 45. Section 10H(3) provides that although a conduct agreement order is not an FVRO, it is taken to be one for the purposes of the Act, meaning that a breach of a conduct agreement order is treated as a breach of a FVRO. As no issue has arisen in this respect, I will proceed on the basis that a conduct agreement order is a FVRO for the purposes of s 45.

Grounds

From the notice of appeal dated 30 August 2019 the following grounds can be discerned:
(a)The court did not hear the application and thereby denied the applicant procedural fairness.
(b)The court erred by not providing written reasons as required by the Restraining Orders Act, and otherwise provided insufficient reasons.
(c)The court did not turn its mind to the requirement in s 49B(1)(a) and (b) of the Restraining Orders Act to have regard to s 10F.
(d)The court erred in law and fact by focusing on the Family Court proceedings rather than ensuring the protection of persons at risk of family violence, preventing behaviour and the wellbeing of children.
(e)The court erred in law by failing to consider the jurisdiction conferred on the court by s 68R of the Family Law Act.

Determination

Each ground fails, because the application itself had no prospect of success. It was appropriately dismissed in a summary manner.

The learned magistrate did hear the application in substance, even if by his words he appeared to stop KJ from developing her submissions. The application was, as his Honour pointed out, defective in that it sought to vary Family Court orders in a way that involved no variation of the conduct agreement order. His Honour did not give formal reasons, but said he declined the application because it related to variation of Family Court orders the court was not empowered to make.
By s 68R(3) of the Family Law Act (and its Family Court Act analogue, s 176) the Magistrates Court may not interfere with a Family Court parenting order, ie: revive, vary, discharge or suspend such an order, unless it also makes or varies a FVRO in the proceedings. Assuming for present purposes that the conduct agreement order is a FVRO that can be cancelled or varied pursuant to s 45, the application did not in fact seek any variation that, if made, would enable the court to deal with the Family Court orders in any of those ways. Having regard to the coexisting legislative schemes, such interference would only be justified to the extent that it was necessary in order to give effect to the variation.
His Honour was correct to say that the power to vary a Family Court parenting order was used sparingly in exceptional cases. There was no evidence before the magistrate in this case of any circumstances that warranted a variation of the conduct agreement order. The supporting documents, as I have observed, contained no evidence of any change of circumstances other than the failure of KJ in the Family Court proceedings to obtain the outcomes she desired. The learned magistrate made a similar observation. It was clear to his Honour that KJ was misusing the procedure of the Magistrates Court with respect to FVROs in an endeavour to overcome obstacles that she faced in the Family Court where, properly, the children were independently represented.
The application was liable to be struck out. His Honour's reasons may have been expressed more clearly, but were sufficient to dispose of an incurably flawed application that was misconceived, and was in my view an abuse of process.

Conclusion

For these reasons the appeal must be dismissed.

Annexure A

Annexure B

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Staude
22 DECEMBER 2021