KSJ v GJA - [2020] WADC 140

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KSJ -v- GJA [2020] WADC 140
CORAM:   BIRMINGHAM QC DCJ
HEARD:   3 & 29 SEPTEMBER 2020
DELIVERED          :   9 NOVEMBER 2020
FILE NO/S:   APP 36 of 2020
BETWEEN:   KSJ
Appellant
AND
GJA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE GLUESTEIN
File Number            :   MC/PER/CIV/RO/1962/2019

Catchwords:

Appeal - Restraining Orders Act 1997 (WA) - Oral application for cancellation of interim family violence restraining order - Matters to be considered before cancellation - Not final order - Effect of cancellation of interim family violence restraining order on final order hearing - Right of appeal

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 109(2)
Magistrates Court Act 2004 (WA), s 9, s 10
Restraining Orders Act 1997 (WA), s 3, s 32(5), s 33, s 41(4), s 43(1a), s 45(4), s 47, s 49, s 64, s 72(1)(a)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr T R Kean (written submissions only)

Solicitors:

Appellant	:	Not applicable
Respondent	:	Kean Legal Barristers & Solicitors

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

Davern v Messel (1984) 155 CLR 21
KSJ v GJA [2020] WADC 96
PAR v JLT [2015] WASC 362
Re Magistrate G Smith; Ex parte Ives [2010] WASC 249

BIRMINGHAM QC DCJ:

This is an appeal from the decision of the learned magistrate to cancel the interim family violence restraining order (the interim FVRO) upon the appellant's oral application where the appellant was the protected person under that order.

Background

In the court below, the appellant has applied for a family violence restraining order against the respondent (the FVRO). The appellant had also initiated similar proceedings against her former partner, SH. The applications were brought pursuant to pt 1B of the Restraining Orders Act 1997 (WA).
The respondent is the current partner of SH.
The appellant was granted an interim FVRO on 13 May 2019, against the respondent. The interim FVRO and application for the FVRO was to prevent contact between the respondent and the appellant and the appellant's two children.
The FVRO applications relate to the alleged conduct of the respondent and SH towards the appellant and her children and an incident allegedly involving the respondent at the appellant's property on 9 May 2019.
The appellant's application was originally set down for a final order hearing on 11 November 2019, however when it became apparent that the final hearing could not proceed that day, the then presiding learned magistrate adjourned the hearing. The learned magistrate then proceeded to deal with the summons to produce issued by the appellant that sought to require the respondent to produce certain documents at the final hearing. The learned magistrate dismissed the appellant's summons to produce, upon the respondent's objection.
The appellant appealed the learned magistrate's decision and the matter was heard in this court over three days (20 April, 19 May, 9 June 2020) (the first appeal).
Pending the final determination of the first appeal in this court, the final hearing of the appellant's application for the FVRO was adjourned to 23 April 2020. On that day, it was agreed by the parties that the hearing could not proceed and was to be further adjourned to await the outcome of the first appeal.
Notwithstanding that the application was being adjourned, the learned magistrate then proceeded to question the appellant as to the basis of her application for the FVRO and matters relating to her first appeal. The learned magistrate further proffered his views in relation to the merits of the appellant's application and of the likely prospects of success on the first appeal.[1]
[1] ts 3 of 23 April 2020.
The appellant says that at that time she was upset and distressed by the court process when the following exchange between the appellant and the learned magistrate took place:[2]
[2] ts 12 - ts 14 of 23 April 2020.
KSJ, MS: I'm very concerned about this matter going on and ‑ ‑ ‑
HIS HONOUR: Sorry?
KSJ, MS: I'm very concerned about this matter going on and the ongoing impact on my children.
JSO: 10 weeks from now is 2 July.
HIS HONOUR: Sorry, what date in July?
JSO: The 2^nd.
HIS HONOUR: You're unavailable on 1 July, I see, Mr Kean. 2 July?
KEAN, MR: Thank you, your Honour.
HIS HONOUR: Ms KSJ, 2 July?
KSJ, MS: I can't continue to expose my children to what they're experiencing. I'm going to withdraw my application.
HIS HONOUR: Sorry?
KSJ, MS: I'm going to withdraw my application.
HIS HONOUR: What application?
KSJ, MS: The FVRO application.
HIS HONOUR: Watch out. Because you've got a lawyer on the other side.
KEAN, MR: She's a lawyer as well.
KSJ, MS: I understand, your Honour. I'm not a lawyer, Travis.
KEAN, MR: You have a law degree. You were admitted to the bar in South Australia.
KSJ, MS: I can read a statute. That's why I understood. There have been multiple rulings in my favour.
HIS HONOUR: You shouldn't be interpreting, Ms GJA, my - sorry, Ms KSJ – my intentions today to try and get you to withdraw. I was simply exploring what this case was all about, because when I read the volume of material on this file, a lot of questions are raised, particularly when I had the view that there are Family Court orders in place and that no prosecution has been made by DCP.
KSJ, MS: Yet.
HIS HONOUR: I know that that's a slow process, but, you know, after 10 months ‑ ‑ ‑
KSJ, MS: But the investigation didn't start until ‑ ‑ ‑
HIS HONOUR: And you tell me that you have an order against SH, your former husband, and that that order includes the children.
KSJ, MS: No. They - because we've got Family Court orders, they're ‑ ‑ ‑
HIS HONOUR: The children are not named on that order?
KSJ, MS: Not the final one, no, your Honour. They were on the interim one.
HIS HONOUR: Okay. So you've simply got an order against him. And then, of course, the Family Court orders prevail anyway.
KSJ, MS: Yes, they do, your Honour.
HIS HONOUR: And if there's a problem with the Family Court orders and the way the children are being looked after, that's a matter for the Family Court.
KSJ, MS: And DCP, your Honour. So DCP will sort that out.
HIS HONOUR: Yes. Yes. Are you wishing to discontinue this application today?
KSJ, MS: Yes, your Honour.
HIS HONOUR: Are you sure? Then subject to hearing from you, Mr Kean, I'm doing two things, at least: (1) cancelling the interim order made on 13 May 2019; subject to hearing from you, Mr Kean, dismissing the original application.
KEAN, MR: Your Honour, we would obviously be seeking costs in this matter. There is an issue – another firm is actually dealing with the District Court appeal. Now, am I to assume the District Court is going to be withdrawn as well?
KSJ, MS: We will have to sort that out. If this is no longer ‑ ‑ ‑
HIS HONOUR: I think, in fairness to Ms KSJ, Mr Kean, what I might do is cancel – because that's what I think Ms KSJ is inviting me to do - cancel the interim order today, adjourn the application for a mention towards the end of the month, which will be after 14 May, and if that appeal is discontinued or if a decision is made, I will know about that when it's back before me, and I will hear any costs argument, and you can respond to any costs argument. Subject to my making a direction now on Mr Kean's office that they provide you – and is email okay with you from Mr Kean's office?
KSJ, MS: Yes, your Honour. Yes, your Honour.
(emphasis added)
Thereafter the learned magistrate proceeded to formally make an order cancelling the interim FVRO and otherwise adjourned the matter to 26 May 2020 for the determination of costs and for the original FVRO application to be dismissed.
The appellant says that after 23 April 2020 she made enquiries to the police as to the status of the interim FVRO and was advised that the interim FVRO remained in force.
On 26 May 2020 the parties informed the learned magistrate as to the progress of the first appeal and sought a further adjournment of the application. At that time the appellant informed the learned magistrate that in the event of her appeal being successful she would thereafter proceed to trial for the FVRO.[3] The solicitor for the respondent did not contend that the appellant's application for the FVRO had been cancelled. Further, the fact of cancellation of the interim FVRO on 23 April was not referred to at that time.
[3] ts 98 of 26 May 2020.
On 27 May 2020, a Notification of Cancellation of Restraining Order on 23 April 2020 was issued by the Magistrates Court to the parties.
In the intervening period the appellant had proceeded with the first appeal with the hearing in this court on 19 May 2020 and judgment reserved.
On 29 May 2020 the respondent's solicitor filed an affidavit in the first appeal exhibiting the notice of cancellation of the interim FVRO.[4] Following further hearing on 9 June 2020, judgment on the first appeal was reserved.
[4] Affidavit of Travis Kean sworn 29 May 2020 in first appeal.
On 1 July 2020 the appellant's first appeal was upheld and the matter was remitted to the court below for the final hearing of the application: KSJ v GJA delivered 1 July 2020.[5]
[5] KSJ v GJA [2020] WADC 96.
On 10 June 2020, the appellant appealed to this court from the learned magistrate's decision to cancel the interim FVRO on 23 April 2020.

Merits of appeal

The notice of appeal lists seven grounds of appeal:
1.The Magistrate made an error of law in cancelling the Restraining Order.
2.The Magistrate did not follow the Restraining Order Act when cancelling it
3.The Magistrate should have requested additional information and it is requested that this now be provided
4.The Magistrate did not follow the correct procedure
5.The Magistrate did not properly take into account the elements as required by the Restraining Order Act
6.If the Magistrate had heard the additional evidence it would have been obvious not to cancel it
7.The Magistrate's Court made an error in keeping the FVRO as valid.
It is apparent from the appellant's submissions that grounds 1 - 6 may be conveniently summarised into one, namely that the learned magistrate erred in failing to comply with the requirements of pt 5 of the Restraining Orders Act when cancelling the interim FVRO upon the appellant's oral application on 23 April 2020.
The seventh ground seemingly refers to the Magistrates Court's delay in notifying the parties that the interim FVRO had been cancelled. The order cancelling the interim FVRO was not extracted and served on the parties until 27 May. It is unclear why there was a delay in issuing the notice. The notice of appeal was lodged on 10 June 2020, some 7 ½ weeks after the learned magistrate's order of 23 April 2020. I am satisfied that given the parties were not given notice of cancellation until 27 May 2020, the notice of appeal was lodged in time and this ground is unnecessary.

Grounds 1 – 6

It is the appellant's submission that upon her oral application to withdraw her FVRO application, the learned magistrate ought to have required the appellant to make an application in the prescribed form and further, that he failed to properly take account of the matters set out in s 49B(1) and s 10F of the Restraining Orders Act before cancelling the interim FVRO.
Part 5 of the Restraining Orders Act sets out the procedure for cancellation of a restraining order.
Section 45(4) of the Act requires that any application to vary or cancel a FVRO is to be in the form prescribed by the Act.
Section 49B(1) relevantly provides:
49B.Matters to be considered by court generally
(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.
Relevantly s 10F of the Act provides:
10F.Matters to be considered by court generally
(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 49B refers to a FVRO without distinguishing between an interim or final order. It follows that the court must have regard to the matters set out in s 49B above when considering whether the interim order should be cancelled.
In supplementary submissions filed without leave, after I had reserved my decision, the appellant submits that the learned magistrate erred in failing to require the appellant to lodge the prescribed form for an application to cancel the interim FVRO, prior to making the order.[6] Whilst the submissions are significantly out of time, for the sake of completeness I have had regard to the matters raised by the appellant. In my opinion this argument has no merit.
[6] Appellant's written submissions dated 3 November 2020.
Section 9 of the Magistrates Court Act 2004 (WA) provides that the court has the jurisdiction conferred on it by that Act and by other written laws.
Section 10 of the Magistrates Court Act provides that the court's civil jurisdiction is set out in the Magistrates Court (Civil Proceedings) Act 2004 (WA).
Section 72(1)(a) of the Restraining Orders Act prescribes that if the matter is being heard by the Magistrates Court, the practices and procedures to be followed are those under the Magistrates Court (Civil Proceedings) Act, unless otherwise prescribed.
Rule 109(2) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) provides that a party may, with the leave of the court, make an application orally at any hearing.
Section 45(4) of the Restraining Orders Act¸ in the context of pt 5 of the Act, shows that the requirement for an application in the prescribed form is to notify parties[7] and to fix a hearing for the determination of the application.[8]
[7] Restraining Orders Act s 47.
[8] Restraining Orders Act s 49.
I do not consider that strict adherence to the requirement for a written form was necessary before the learned magistrate could deal with the appellant's oral application to withdraw her application for a FVRO. The parties were then in attendance before the court and the oral application facilitated the hearing of an application that would otherwise be fixed for hearing at a later date. Accordingly this ground of appeal fails.
I consider that the learned magistrate's seeming failure to have regard to the matters set out in s 49B of the Act more significant.
In support of her appeal, the appellant filed two affidavits sworn 10 June and 15 September 2020 respectively wherein she deposes as to her personal circumstances during the period leading up to the hearing on 23 April 2020. The appellant deposed that during the preceding months her children had been abused by their father SH, hospitalised and that she was then concerned for their welfare.
The appellant deposed that, when responding to the learned magistrate's questions on 23 April, she felt under intense pressure to not go on and a wave of nausea come over her. She says that her decision to withdraw the FVRO was made under pressure in 'the heat of the moment' and out of concern for the impact of the proceedings on her children.[9]
[9] Affidavit of appellant sworn 15 September 2020, pars 30 - 34, 68 - 71.
I accept the appellant's evidence and am satisfied on the probabilities that the appellant, as an unrepresented litigant, was then overborne by the court processes.
Whilst the transcript discloses that the learned magistrate was keen to ensure that the appellant fully appreciated the consequences of her request to withdraw her application, he seemingly did not then turn his mind to the requirements of s 49B of the Act and in particular those matters which he must first satisfy himself before acceding to the appellant's request.
In my view, the learned magistrate was required to satisfy himself that the appellant's request was freely given and not made whilst under undue pressure. Further, enquiries ought to have been made as to the welfare of the children who were also protected by the order.
In the circumstance where the appellant was then seemingly in a distressed state, the learned magistrate ought to have invited the appellant to take time to consider her position and thereafter make a formal application to withdraw the FVRO application if she still wished to do so. The final order hearing was to be adjourned to await the outcome of the first appeal in any event.
At the conclusion of the proceedings on 23 April the learned magistrate expressed the orders then made by him as follows:[10]
HIS HONOUR: For 26 May. Okay. Thank you. I now make formally an order that the interim order made back in May last year is cancelled. Adjourn to 26 May before me, 9.30, with priority, for determination of any costs application and ultimately for me to then close the file or dismiss the original application.
(emphasis added)
[10] ts 20 of 23 April 2020.
Significantly the learned magistrate did not make a final order dismissing the appellant's application for a FVRO. The final order hearing of the application was adjourned to a nominated date. Whilst the learned magistrate foreshadowed that upon resumption he would then dismiss the application and deal with the question of costs, no formal order was in fact made at that time. It follows that the appellant's application for a FVRO remains live in the court below until dealt with at the hearing when the matter resumes on 18 November 2020.
Such circumstance however impacts upon the appellant's right to appeal the learned magistrate's order dismissing the interim FVRO.
The appellant has commenced this appeal under s 64 of the Restraining Orders Act.
The right to appeal is not found in common law and is 'entirely a creature of statute'.[11] It follows that an appellate court's jurisdiction to hear and determine an appeal derives only from the governing legislation, in this case the Restraining Orders Act.
[11] Davern v Messel (1984) 155 CLR 21, 47.

In Re Magistrate G Smith; Ex parte Ives, Hall J observed in reference to the Restraining Orders Act, that:[12]
It is clear that the legislature has provided a process for appealing restraining orders. It must have been intended that such process would be used in circumstances where it applies.
[12] Re Magistrate G Smith; Ex parte Ives [2010] WASC 249 [7].
Section 64(1) of the Restraining Orders Act provides:
64.Appeals
(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.
(emphasis added)
Section 23(1)(b) and s 29(1)(b) refer to telephone applications and hearings in the absence of the respondent and do not apply to the order made by the learned magistrate.
Section 3 of the Restraining Orders Act further provides:
final order means any of the following -
(a)in relation to an FVRO, a conduct agreement order;
(b)in relation to a VRO or MRO, a consent order;
(c)a restraining order that becomes a final order under section 32;
(d)a restraining order made under section 40(3);
(e)a restraining order made at a final order hearing;
(f)a restraining order made under section 49(1)(b) to vary a final order, being a replacement or additional final order made under that section;
(g)a restraining order that is a final order under section 63(4a) or 63A(3);
The cancellation of an interim order cannot be said to fit the definition of a 'final order' under s 3 of the Act.
The question that arises is whether the cancellation of an interim order, in that it affects the continuance of a final FVRO hearing, constitutes a 'final order' for the purposes of s 64(1).
This question was considered in a different context in PAR v JLT, which concerned an appeal against the making of an interim order. Fiannaca J observed that s 64 of the Restraining Orders Act applied for persons:[13]
aggrieved by decisions made under that Act … there is no provision for an appeal against a decision to make an interim violence restraining order.
[13] PAR v JLT [2015] WASC 362 [7].
Although PAR v JLT concerned the making of an interim order, this would extend also to a decision cancelling an interim order as both decisions are an exercise of power conferred by the Restraining Orders Act.
The decision of the learned magistrate to cancel the interim order was a decision made under pt 5 of the Act.
Section 32(5) of the Restraining Orders Act provides that if an interim order has become a final order because the person bound by the order did not object, the interim order becomes final without the need for a hearing.
Section 33 provides that if the person bound by the order objects to the interim order becoming final, a hearing must be fixed for the objection to be heard. In practice the matter is listed for a final order hearing. These are the circumstances in the present case.
A final order hearing is to be conducted in accordance with div 2 of the Act.
The respondent submits that once an interim FVRO is dismissed, there is no order remaining that can become a final order at a later final order hearing. The respondent pointed to s 43(1a), which states that at a final order hearing, the court can make a final order in respect of a violence restraining order (VRO) or misconduct restraining order (MRO). That s 43(1a) does not refer to an FVRO, the respondent submits, distinguishes the making of a final FVRO from other orders contemplated by the Restraining Orders Act.[14]
[14] Respondent's written submissions dated 12 October 2020.
It is important to note that s 43(1a) referring to the making of a VRO or MRO, does so in the context where the final order for a VRO can be made even if the original application was for an MRO, and vice versa. It provides specific options if the circumstances give rise to it. That the section does not refer to an FVRO does not mean a final FVRO cannot be made at a final order hearing, however it would be distinguished on the grounds that a final FVRO can only arise from an application for FVRO and not from an application for another order. Further, it is important to note the opening words of s 43(1a),
43.Making final order
(1)Subject to section 42, at a final order hearing a court may make a final order of the type, and with the terms, the court considers appropriate.
(1a)Without limiting subsection (1), at a final order hearing, a court -
(a)may, subject to Part 2, make a final order for a VRO even if the application was for an MRO;
(b)may, subject to Part 3, make a final order for an MRO -
(i)even if the application was for a VRO; and
(ii)even if an interim order is in force.
indicating that s 43(1a) does not contemplate the only outcomes from a final order hearing.
It is apparent that the relationship between an interim FVRO and the ongoing application for FVRO, is that an interim order will not be made without an application for FVRO, however an FVRO application for final order is not reliant on the existence of an interim order. For example, s 29 of the Act permits the court, at an application for FVRO in the absence of the respondent, to adjourn the matter to a mention hearing without being required to grant an interim FVRO or VRO. Under s 41(4), the matter can then be set down for a final order hearing, subject to s 40.
As the application for a final FVRO cannot be said to be dependent on the existence of an interim order, the cancellation of the interim order cannot be considered a 'final order' under the Act.
Insofar as this appeal is from the cancellation of the interim FVRO, the appeal must fail for want of jurisdiction and be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AZ
Associate to the Judge
6 NOVEMBER 2020