Pronk v Verhagen - [2019] WADC 70

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   PRONK -v- VERHAGEN [2019] WADC 70
CORAM:   GILLAN DCJ
HEARD:   13 MAY 2019
DELIVERED          :   22 MAY 2019
FILE NO/S:   APP 5 of 2019
BETWEEN:   NATHALIE CATHARINA BERNARDINA PRONK
Appellant
AND
TAMIL VERHAGEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE SHACKLETON
File Number             :   BS RO 242 of 2018

Catchwords:

Magistrates Court appeal - Restraining orders - Whether the magistrate erred in fact in finding that the respondent was not likely to commit an act of abuse against the appellant in the future

Legislation:

Restraining Orders Act 1997 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Badran v Public Transport Authority of Western Australia [2017] WASCA 28
Baron v Walsh [2014] WASCA 124
Brocklehurst v Walinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Myles v Carroll [2003] WASCA 160
Potschick v Bruce [2018] WADC 107
Rankilor v Circuit Travel Pty Ltd [2010] WADC 170
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550

GILLAN DCJ:

Background

The appellant, Ms Pronk, commenced an appeal from a decision of Magistrate Shackleton of 20 December 2018 to refuse to make a final family violence restraining order against the respondent, Mr Verhagen.
Ms Pronk and Mr Verhagen were previously in a de facto relationship. They have two children together, a boy who is 4 years old and a girl who is about 2 years old.
Each of the appellant and the respondent are from the Netherlands. They came to Australia roughly four years ago.
It is common ground they were in a family relationship within the meaning of that term in the Restraining Orders Act 1997 (WA) (the Act).
In early November 2018 the appellant applied for a restraining order against the respondent. An interim family violence restraining order (interim FVRO) was granted ex parte on 7 November 2018.
That order was personally served on the respondent on 14 November 2018.
A final family FVRO was sought against the respondent which application came on for hearing on 20 December 2018.
At the hearing the magistrate expressed his concerns with respect to the evidence given by both the applicant and the respondent[1] but, found that:
1.other than in respect to one act, he was not satisfied that there had been family violence[2] nor was he satisfied that family violence was likely to happen again; and
2.that there were not reasonable grounds to apprehend that any family violence would happen in the future.[3]
[1] ts 102.
[2] ts 105.
[3] ts 105.
His Honour concluded that the only act of family violence which the applicant might be said to have proven on the balance of probabilities was that the respondent had gone to a house that he had arranged to rent on John Street contrary to the terms of the interim FVRO. He concluded that act could constitute family violence but he was not satisfied it was likely to occur again.
In addition he found that both sides had been poorly behaved over their children.
Accordingly the magistrate cancelled the interim FVRO and dismissed the applicant's application.

District Court appeal

A decision of the magistrate who refuses to make a final FVRO under the Act may be the subject of an appeal to the District Court.[4]
[4] Section 64(1)(b)(ii) Restraining Orders Act.
The appeal is to be made in accordance with the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) pt 7.[5]
[5] Section 64(2) Restraining Orders Act.
Ms Pronk instituted an appeal by an appeal notice dated 9 January 2019. The appeal was commenced within time.[6]
[6] Section 40(3) MCCPA.
The respondent, Mr Verhagen, did not file a notice of intention to defend and did not appear on the appeal. Nevertheless, it is for the court to be satisfied that there is a basis for an appeal.
This appeal is by way of a 'reconsideration of the evidence' before the Magistrates Court: s 40(4)(a) MCCPA, District Court Rules 2005 (WA) (DCR) pt 6 r 50(1). That is, it is to be undertaken by way of rehearing and as a rehearing the appellate powers of the District Court are only exercisable if the appellant demonstrates the decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error.[7]
[7] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]; Brocklehurst v Walinski [2015] WADC 36 [14]; Butler v Bennett [2007] WADC 107 [6], [10]; Potschick v Bruce [2018] WADC 107.
The court may give leave to admit other evidence, but only in exceptional circumstances.[8] In this case I informed Ms Plunk at the commencement of the hearing that I was obliged to decide this matter on the material that was before the magistrate and also that she had to establish that there had been an error before I could overturn the magistrate's decision.
[8] Section 44(b), s 40(5) MCCPA.
Part way through the appeal Ms Pronk indicated to me that she had a report from a counsellor that she had been seeing which she wanted to rely upon. That report was not before the magistrate at the time of the initial hearing.
I asked Ms Pronk if she wanted to make an application to rely on the report but told her that if she did so I would adjourn the matter to enable Mr Verhagen to be heard on the issue of whether any additional material should be relied upon. She declined to make an application to rely on additional material.
Ms Pronk provided a written outline of her submissions in letter form,[9] a second letter[10] and made oral submissions before me on 13 May 2019. I have taken all of these matters into account.
[9] Which I have marked 'MFIA'.
[10] Which I have marked 'MFIB'.
The essence of Ms Pronk's appeal is that the magistrate:
(1)Did not properly take account of what was said in support of her application; and
(2)Made errors in his factual findings.
There was no suggestion that he was mistaken as to the law to be applied.
In considering the matters raised by Ms Pronk I am conscious that she is a litigant in person and so I have approached the way in which she has articulated her appeal with a degree of flexibility. In particular I have independently turned my mind to whether there has been an error of law.

Did the magistrate err in not taking account of what was said?

I took this ground of appeal to mean that Ms Pronk was alleging that she had been denied natural justice in the hearing of the appeal.
In Rankilor v Circuit Travel Pty Ltd [2010] WADC 170, Birmingham DCJ discussed the requirements of giving natural justice in the Magistrates Court. In summary his Honour said:
1.That natural justice does not require an inflexible application of a fixed body of rules but rather requires fairness in all the circumstances including the nature of the jurisdiction, rules under which the tribunal was acting, the subject matter of the dispute and the statutory provisions governing the power of jurisdiction being exercised but that at its heart the requirement to record natural justice required a litigant to be given the opportunity to present his or her case: Rankilor [9], [12], [18] and [67].
2.With respect to unrepresented litigants the duty of the judicial officer was to assist litigants in person, would vary and depended on the litigation, the nature of the case and the litigant's intelligence and understanding of the law. Relevantly, the advice and assistance to an unrepresented litigant is what is necessary to reduce, so far as possible, the disadvantage they would suffer when faced by traps which the adversary system offer to the unwary and the untutored, to ensure that the unrepresented person does not, through a lack of legal skill or experience, fail to claim rights and put up arguments that they might otherwise have done: Rankilor [70] – [77].
3.The duty might extend to a judicial officer identifying any issue critical to the decision which is not otherwise apparent in the nature of the terms of the matter under consideration.
In this case the learned magistrate outlined in some considerable detail at the commencement of the hearing the way in which the hearing would be conducted and conducted the hearing in accordance with what he had said in that regard.
His Honour gave both parties the opportunity to present their evidence and to make final submissions to him based on that evidence.
A close reading of the transcript by me has convinced me that there was no failure to provide procedural fairness or natural justice in this case.

Did the magistrate make errors of fact?

The second basis of the appeal is that the magistrate made errors of fact.
At the hearing the onus was on Ms Pronk to satisfy the court on the basis of probabilities that:
1.Firstly that Mr Verhagen had committed family violence against her, and that he was likely to do so again;[11] or
2.There were reasonable grounds for the court to apprehend that the respondent would commit family violence against her in the future.
[11] Section 10D(a) to (b), s 10(1)(a), s 10(1)(b) the Act.
In Myles v Carroll [2003] WASCA 160, E M Heenan J observed that it was necessary for the court to have regard to the seriousness of the allegations when considering if an applicant for a family violence restraining order had satisfied the court on the balance of probabilities.[12]
[12] [12].
E M Heenan J said:
Accordingly, the court is required to reach a standard of persuasion about the reliability of a future prognostication. It is to the probability of repetition of violent, offensive or intimidatory conduct occurring in the future that attention must be directed, not to an analysis of the significance or effect of some conduct, isolated or continuing, which has taken place in the past. What has occurred in the past is, unquestionably, relevant and material but only to the degree to which it justifies the formation of a conclusion about the likelihood of future occurrence of behaviour which the legislation prohibits. This is not so much an exercise in determining the proof of past events but of concluding what, if any, significance can be attached to the them when considering the probability of future conduct occurring.
The findings of the magistrate that the Respondent had engaged in one only act of family violence and was not likely to engage in further acts of family violence in the future or that there were not reasonable grounds to apprehend that he would are findings of fact.
In an appeal against findings of fact made by a magistrate, the appellant, Ms Pronk, must do more than show that an alternative finding was available on the facts. She must show that a factual error was made by the magistrate. An appellate court should not interfere with the magistrate's finding of facts unless they are demonstrably to be wrong by 'incontrovertible facts or uncontested testimony, or they are "blaringly improbable" or contrary to compelling inferences'.[13]
[13] Robinson Helicopter Company Inc v McDermott [43]; Badran v Public Transport Authority of Western Australia [2017] WASCA 28 [65].
The definition of what constitutes family violence is a wide one. It is defined in s 5A(1) of the Act and is a reference and is defined in these terms:
(1)A reference in this Act to family violence is a reference to –
(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.
It was expressly conceded both before the magistrate and before the court that Mr Verhagen had never been physically violent towards Ms Pronk.
The second limb is the definition of 'family violence' in subsection (1)(b) is directed more widely and further guidance is provided by s 5A(2):
(2)Examples of behaviour that may constitute family violence include (but are not limited to) the following –
(a)an assault against the family member;
(b)a sexual assault or other sexually abusive behaviour against the family member;
(c)stalking or cyber‑stalking the family member;
(d)repeated derogatory remarks against the family member;
(e)damaging or destroying property of the family member;
(f)causing death or injury to an animal that is the property of the family member;
(g)unreasonably denying the family member the financial autonomy that the member would otherwise have had;
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or a child of the member, at a time when the member is entirely or predominantly dependent on the person for financial support;
(i)preventing the family member from making or keeping connections with the member's family, friends or culture;
(j)kidnapping, or depriving the liberty of, the family member, or any other person with whom the member has a family relationship;
(k)distributing an intimate image of the family member without the family member's consent, or threatening to distribute the image;
(l)causing any family member who is a child to be exposed to behaviour referred to in this section.
While examples of family violence are not limited to that list, Ms Pronk's submissions made it clear she was relying on the words in s 5A(1)(b) 'behaviour by the person that coerces or controls the family member or causes the member to be fearful' and the examples are in subsection (2)(d) and (h).
The test as to whether behaviour is coercive, controlling or which causes a person to be fearful is judged by an objective standard.[14]
[14] Baron v Walsh [2014] WASCA 124 [20].
In other words, the conduct in question, viewed objectively, must be capable of having one or more of those effects.
An applicant for a restraining order does not have to prove that they were coerced, controlled or were fearful but the subjective effect on the applicant can be relevant to whether the court should make a FVRO in all of the circumstances.
Pursuant to the Act, the court, if it finds that there has been family violence and it is likely to occur again or that there are reasonable grounds to consider that family violence might occur in the future, must make a FVRO unless there are special circumstances.
In this case Ms Pronk emphasised before the magistrate and this court that she was fearful of Mr Verhagen.
Having reviewed all of the evidence at the trial and the magistrate's reasons for decision, in my view it was open to the magistrate to conclude that he did not accept the whole of the appellant's evidence and the way in which she had viewed Mr Verhagen's actions.
In making that decision the magistrate did not simply rely on impression about Ms Pronk's reliability but pointed to Ms Pronk's evidence:
1.Referring to a trip Mr Verhagen had taken to the Netherlands which she described as 'the holiday' but which on cross‑examination Ms Pronk had to accept that during the times away he had been visiting with his mother who had cancer and had been earning money to pay child support.
2.About a mutual friend, Boots, who Ms Pronk claimed was her friend and that Mr Verhagen had attempted to take over that friendship, but where it became apparent they both knew and were friendly with Boots and that Ms Pronk had suggested that Mr Verhagen collect the children from Boots' house.
3.That, Mr Verhagen on one day should have waited somewhere other than in the driveway for the children to be ready for him to collect but where it transpired that Ms Pronk had changed the time at which they could be collected.
Ms Pronk in her evidence largely relied on generalised statements about the way in which, when they were cohabitating, she felt that Mr Verhagen had undermined her and did not get along with her family and a great deal on his shortcomings as a provider and as a father to the children.
Turning now to the event the magistrate found may have constituted family violence. That event concerned Mr Verhagen having come to live in the same street as Ms Pronk after he was served with the interim FVRO and, potentially, contrary to its terms.
The magistrate accepted Mr Verhagen's evidence that he had already made enquiries about moving into that street prior to him becoming aware of the interim FVRO. Mr Verhagen conceded in the course of his evidence that he should not have gone to the street.
Mr Verhagen said under cross‑examination by Ms Pronk:[15]
PRONK, MS: Isn't it true that you moved into John Street where you were not supposed to? --- Yes. And that was wrong of me, and after that I haven't been around John Street anymore … One day I spoke with my neighbour, asked him to come and stand on the other side of the road, because I wasn't able to have a normal chat with my neighbour, my friend, who I had to work with (indistinct) and that's the closest I've been to. Further, I've been (indistinct) from your place (indistinct) some stuff from my house, and I really want to go into my house, because I'm already homeless for one and a half months and camping and staying at lots of places, and meanwhile I'm – I already paid a month on rent on my place and I'm still not able to go to that place. I (indistinct) hoping that it would make things much easier for Sam and Sophie (indistinct) safety‑wise (indistinct) all sorts of situations. So looking at Sam and Sophie, looking at myself, and apparently doesn't work out for you.
[15] ts 97.
It was open to the magistrate, in my view, from that evidence to conclude that Mr Verhagen was unlikely to make the same mistake twice.
In reaching that conclusion I have paid careful attention to the evidence that was given by both parties, the concessions made during cross‑examination and also to exhibit 3 which was before the magistrate which was a bundle of translated text and email messages between the parties in the period between 7 May 2018 and 10 September 2018. Having read those text messages, I note that in those messages, there are certainly signs of tension and dispute but there are also signs of praise from Mr Verhagen to Ms Pronk and of signs of Ms Pronk withholding access to the children, as the magistrate found.
There is a mention in the text messages to Ms Pronk not feeling safe in Mr Verhagen's presence and only wanting to see him at mediation, when there is supervision or 'when you are dropping off/picking up the children'. There is also a request that Mr Verhagen not have a beer with Boots until Ms Pronk had left Boots' house.[16]
[16] Message 4 September 2018 at 0:03 am.
The exchange continued some hours later that day with respect to Ms Pronk's assertion that she was scared of Mr Verhagen and where Mr Verhagen said that she was making herself scared of him, she had no reason to fear him and ended with Ms Pronk changing the arrangement for the terms Mr Verhagen could have the children but confirming they should be collected from Boots' house.
There was no evidence at the hearing or anything in the text messages to suggest that Mr Verhagen did anything after that date other than wait in Ms Pronk's driveway, to prompt the application for the restraining order.
On the evidence at trial as a whole, Ms Pronk has not satisfied me that the magistrate erred in making the findings set out in his reasons and in drawing the conclusion he was not satisfied in all of the circumstances of the case that Mr Verhagen was likely to commit family violence towards Ms Pronk in the future.

Ms Pronk has not demonstrated that these findings are wrong by incontrovertible facts or uncontested testimony or that they are glaringly improbable or that they are contrary to compelling inferences.
I adopt what was said by E M Heenan J in Miles [42] – [43]:
42… rather the appellant's case is that insufficient weight was attributed to the evidence by the learned Magistrate and insufficient weight attributed to the past behaviour of the respondent and the effect that this would have upon the appellant. With all respect, I cannot accept these submissions for it seems to me that the learned Magistrate was fully aware of the statutory criteria and addressed them directly. It is not just the appellant's reaction to the past conduct of the respondent and her fears and apprehensions, however real, about the risk of repetition which is determinative. The court must reach its own conclusion as to whether or not the respondent is likely to commit a violent personal offence against the applicant, in the case of a VRO, or to behave in a manner that could reasonably be expected to be intimidating or offensive to the applicant and would in fact so intimidate or offend her, in the case of an MRO, or to behave in the future in a manner which could reasonably be expected to cause the appellant to fear that he would commit such a violence offence (in the case of a VRO) and so on. It is the estimate of the likelihood of the commission of such future conduct which the court must make and this is clearly what the learned Magistrate in this case addressed at the end of the trial.
43As there has been no error of law or principle shown to have been committed by the learned Magistrate at the trial, nor any evidence overlooked or misconstrued, I do not see that there are any grounds which have been demonstrated to overrule or vary any of the findings which were made in this case.
The findings by the magistrate that Mr Verhagen was not likely to commit further family violence against Ms Pronk and there were no reasonable grounds to think that he would, meant that the preconditions of the power of the court to make a final FVRO were not present. I am not prepared to disturb the finding as to Mr Verhagen's future conduct on the appeal and there is no statutory basis on which this court could order a final FVRO as an outcome of the appeal. The appeal should be dismissed.
Mr Verhagen did not defend this application and there was no legal practitioner retained by either party. The appropriate costs order is there is no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ED
Associate to her Honour Judge Gillan
22 MAY 2019