Rawle v Calvar

[2022] WADC 27

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   RAWLE -v- CALVAR [2022] WADC 27

CORAM:   SHEPHERD DCJ

HEARD:   20 SEPTEMBER 2021

DELIVERED          :   22 MARCH 2022

FILE NO/S:   APP SHE 1 of 2021

BETWEEN:   ANDREW CHRISTIAN RAWLE

Appellant

AND

JOSHUA JAMES CALVAR

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE RIDLEY

File Number            :   MC/CIV/SHE/RO245/2020

Catchwords:

Appeal from decision granting an application for final family violence restraining order - Grounds of appeal from decisions in interlocutory applications - Right of appeal against a final order - Duties of the court to self‑represented litigants - Procedural fairness - Turns on its own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Restraining Orders Act 1997 (WA), s 3, s 10D, s 44A, s 64

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):

Allesch v Maunz [2000] HCA 40 [23]; (2000) 203 CLR 172

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225

Blenkinsop v Holland [2018] WADC 146

Brocx v Hughes [2010] WASCA 57

Butler v Bennett [2007] WADC 107

CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

Kickett v Starr [2013] WADC 52

KSJ v GJA [2021] WASCA 98

Licul v Corney [1976] HCA 6; (1976) 180 CLR 213

Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65

Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550

Sali v SPC Ltd (1993) 116 ALR 625; (1993) 67 ALJR 841

Smart v Prisoner Review Board (WA) [2012] WASC 48

Tobin v Dodd [2004] WASCA 288

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Woodley v Woodley [2018] WASCA 149

Yazarloo v Assadi [2003] WASCA 326

Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

SHEPHERD DCJ:

1.1     Introduction

1. Joshua Calvar was 18 years of age when he met Andrew Rawle. Mr Rawle was 32, or thereabouts, and was Mr Calvar's employer and manager at the bar where they both worked.  Mr Calvar and Mr Rawle began a relationship which started as employer‑employee, moved to one of friendship and then progressed to a relationship of cohabitation across a number of different locations, sharing a bed in some accommodation, not in others.  The relationship involved, at times, acts of sexual intimacy, punctuated by the use of illicit drugs and alcohol.   The relationship was not one which attracted any specific label at any given time, described later as a 'friends with benefits' or as an 'open relationship'.[1] 

   [1] Reasons for Decision, 13 January 2021, [37].

2. Mr Rawle and Mr Calvar entered into a lease agreement together and shared housing in South Hedland for a period of time.  Ultimately Mr Calvar determined that he wished to break the lease and move out.  Mr Rawle refused Mr Calvar's request to break the lease.  Mr Calvar moved out of the accommodation he shared with Mr Rawle and stayed at a friend's house.[2]  The relationship between the parties soured considerably thereafter.

   [2] ts 22 - ts 23, Final Order Hearing, 1 December 2020.

3. On 13 April 2020, Mr Calvar filed a Notice of Termination under the Residential Tenancies Act 1987 (WA) seeking to break his lease with Mr Rawle on the grounds of family violence.[3]

   [3] Exhibit 3, Final Order Hearing, 1 December 2020.

4. On 6 May 2020 Mr Calvar filed an application for a family violence restraining order (FVRO) against Mr Rawle.[4]

   [4] ts 26, Final Order Hearing, 1 December 2020.

5. At a later date Mr Rawle filed his own application for a FVRO against Mr Calvar.

6. The parties appeared before Magistrate Ridley in South Hedland Magistrates Court on 17 November 2020.  On that day the learned magistrate determined the interlocutory applications before her and adjourned the matter to a final order hearing on 1 December 2020.

7. On the morning of the final order hearing, Mr Rawle withdrew his application for a FVRO against Mr Calvar but maintained his opposition to Mr Calvar's application for a FVRO against him.

8. At the final order hearing Mr Calvar was represented by Mr Michael Barker, solicitor.  Mr Rawle represented himself.  Mr Calvar gave evidence in his application and was cross‑examined by Mr Rawle.  A number of exhibits were tendered by Mr Calvar in his evidence.  Mr Rawle elected not to give evidence in Mr Calvar's application for a FVRO against him.

9. During the course of the final order hearing it was conceded on behalf of Mr Calvar, and also by Mr Rawle, that the parties were in a 'family relationship' for the purposes of s 4 of the Restraining Orders Act 1997 (WA) (the ROA).

10. Having heard the evidence, the magistrate adjourned her determination of the matter and gave written reasons dated 13 January 2021 granting the FVRO against Mr Rawle for a period of two years from the date of service of the order.

11. The learned magistrate concluded that the relationship between the parties was 'an intimate personal relationship in that there was consensual sexual activity between the parties'[5] and that their relationship was 'of a domestic nature in which the lives of each were interrelated and the actions of one affected the other'.[6] 

    [5] Reasons for Decision, 13 January 2021, [8] - [9].

    [6] Reasons for Decision, 13 January 2021, [10].

12. In granting the order in favour of Mr Calvar, her Honour found that Mr Rawle had perpetuated family violence against Mr Calvar in the form of coercive and controlling behaviour, finding that Mr Calvar had been 'emotionally manipulated' by Mr Rawle over the course of many years.[7]

    [7] Reasons for Decision, 13 January 2021, [43] - [47].

13. Her Honour concluded that Mr Rawle did not have significant emotional insight into his own behaviour and that without a restraining order in place Mr Calvar was likely to continue to be coerced and manipulated by Mr Rawle and would find it very difficult to extract himself from the co‑dependent relationship which he had formed with Mr Rawle.[8]

    [8] Reasons for Decision, 13 January 2021, [46].

14. Mr Rawle appeals against the decision of the learned magistrate to grant the FVRO against him.

1. Grounds of appeal

1. Mr Rawle's Notice of Appeal pleaded 10 grounds.  In the hearing of this appeal on 20 September 2021, and during earlier appearances in this court,[9] Mr Rawle relied on only four grounds.

   [9] For example, in written submissions dated 22 July 2021 and in oral submissions before his Honour Judge Prior on 25 August 2021.

2. The four grounds of appeal are:

   1.The Magistrate erred at law in refusing the Appellant's application of 30 October 2020 seeking to restrain the Respondent's Counsel, Mr Michael Barker, from representing the Respondent in the proceedings due to a conflict of interest.[10] ('Conflict of Interest').

   2.The Magistrate was unable to impartially or objectively assess the evidence due to the multiple prejudicial applications, affidavits, letters and evidence provided to the court without leave by the Respondent and his Counsel. ('Documents not in Evidence').

   3.The Magistrate did not uphold her duty to a self‑represented litigant in circumstances where the conduct of Counsel for the Respondent was unprofessional, incompetent and unfairly prejudicial to the Appellant's case. ('Denial of Procedural Fairness').

   4.The Magistrate refused the Appellant's application to adjourn the Final Order Hearing in circumstances where there was an ongoing criminal investigation into the Respondent.[11] ('Police Investigation').

   [10] Argued on 17 November 2020.

   [11] Argued on 17 November 2020.

1. In the hearing of the appeal on 20 September 2021 Mr Rawle relied upon those four grounds, although they were at times conflated.  In the hearing of the appeal, Mr Rawle extended the ambit of the pleaded grounds arguing that there was no evidence upon which the magistrate could reasonably have made a FVRO against Mr Rawle.  This additional argument encompasses the duty that this court has in the hearing of this appeal to reconsider the evidence that was before the primary court.[12]

   [12] District Court Rules 2005 (WA) (DCR) r 50(1).

2. Mr Rawle did not seek leave to adduce new evidence in this appeal.  In those circumstances, the evidence to be reconsidered is the testimony of Mr Calvar and the 18 exhibits which were before the magistrate at the final order hearing on 1 December 2020.

1. The issues to be determined in this appeal

1. There are three issues to be determined in this appeal:

   1.Do Grounds 1 and 4 give rise to a right to appeal to the District Court?

   2.Was Mr Rawle afforded procedural fairness in the final order hearing?

   3.Did the learned magistrate err in finding on the evidence before the primary court that Mr Rawle behaved in a coercive or controlling manner so as to justify the making of the FVRO?

1. For the reasons that follow, none of the appeal grounds have merit and the appeal is dismissed.

1. Leave to appeal

1. Before turning to the substance of this appeal it is necessary to deal with the requirement of the court to grant leave to Mr Rawle to appeal out of time and to grant Mr Calvar leave to appear as a party to the appeal.

2. Mr Rawle lodged his appeal against the magistrate's decision granting the FVRO to this court on 3 May 2021. The appeal is therefore outside the 21‑day time period prescribed by s 40(3)(a) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA). Leave is therefore required for Mr Rawle to appeal outside the time limit.

3. Mr Rawle has sworn affidavits on 3 May 2021 and 2 June 2021 in support of his application for leave to appeal out of time.  In the two affidavits Mr Rawle has sworn in support of his application for leave to appeal out of time, he refers to a period of time he was in custody, the delays he had in receiving the transcript of the final order hearing, the magistrate's decision, the court orders and the delay in receiving legal advice.

4. Without considering the merits of Mr Rawle's appeal grounds, I am satisfied these issues adequately explain why he appealed a few months outside the appeal period.

5. I grant leave to Mr Rawle for the time to commence an appeal against the decision of the magistrate made on 13 January 2021 be extended to 3 May 2021.

6. In respect of Mr Calvar, DCR r 53 provides that on being served with an appeal notice a respondent may file a Form 8 (Notice of Respondent's Intention).  DCR r 53(6) provides that if a respondent does not file a Form 8 within 21 days or any extension of that period ordered by the court, the respondent is not entitled to take part or be heard in the appeal and is not a party to the appeal for the purposes of these rules.

7. Mr Calvar filed his Form 8 on 29 June 2021.  Under the timeframe provided for by the DCR that notice was due to be filed by 24 May 2021.  It was therefore late by a period of just over four weeks.

8. I am satisfied for the reasons Mr Calvar provided during the course of the hearing of the appeal that as an unrepresented litigant in the appeal he was not aware that he was to file a Form 8 with the court.  Upon becoming aware, he filed a Form 8 dated 29 June 2021 thereby indicating his intention to be a party to this appeal.  The filing of that Form was approximately four weeks out of time.

9. I grant Mr Calvar an extension of time for the filing of the Form 8 to 29 June 2021 such that Mr Calvar is a party to the appeal and is entitled to take part and be heard in this appeal.

10. Whilst Mr Calvar was permitted to make oral submissions in the hearing of the appeal, the resolution of this matter does not depend on any submissions made by Mr Calvar.

1. Issue 1: Do Grounds 1 and 4 give rise to a right of appeal to this court?

5.1     Procedural history

1. In order to address the issues raised in this appeal it is necessary at this point to set out in more detail those parts of the procedural history to this matter that impact on this appeal.

2. At different times and pursuant to different applications, both Mr Calvar and Mr Rawle had applied to the Magistrates Court for a FVRO against the other.  For reasons which are not relevant to the disposal of this appeal, no interim FVRO had been made in respect of either party's application.

3. The matter was before the Magistrates Court in July 2020.  It was in contest between the parties subsequently as to whether at the conclusion of the July 2020 appearance there was any oral undertaking between the parties that there be zero contact between them.  Mr Calvar maintained that there was, Mr Rawle that there was not.  The evidence at the final order hearing was that there were breaches by both parties after the July 2020 appearance.

4. It is not necessary for me to determine factually whether there was any such undertaking.  Her Honour's reasons for decision dated 13 January 2021 make it plain that she did not consider any breaches of any such undertaking entered into 'to be relevant to my determination'.[13]  Having read the transcript of the final order hearing and the learned magistrate's reasons for decision, I agree with her Honour's conclusion in this regard.

5.2     The 17 November 2020 proceedings

5.2.1  Overview

[13] Reasons for Decision, 13 January 2021, [41] - [42].

1. On 17 November 2020 the parties were before her Honour, both parties having filed a number of applications.  The applications filed by Mr Rawle were:[14]

   (i)To seek leave to produce an affidavit to the court in support of his FVRO application;

   (ii)To adjourn the final order hearing due to an ongoing criminal investigation involving Mr Calvar; and

   (iii)To restrain Mr Calvar's Counsel, Mr Barker, from representing Mr Calvar on the basis that Mr Barker had a conflict of interest.

   [14] 17 November 2020.

2. The second and third of the applications brought by Mr Rawle on 17 November 2020 comprise grounds four and one in this appeal respectively.

3. Of the applications filed on behalf of Mr Calvar on 17 November 2020 only one is relevant for the purposes of this appeal, and that is Mr Calvar's application to permit him to present affidavit evidence in the trial.[15]

5.2.2  Applications to adduce affidavit evidence at the final order hearing

[15] ts 20, 17 November 2020.

1. Both parties had brought separate applications seeking leave to produce evidence by affidavit.  Those applications were subsequently withdrawn by both parties.  The magistrate ordered that both parties were to give oral evidence 'in the usual course' and be cross‑examined.  The magistrate ordered that all documents were to be maintained until the final order hearing and were to be given in evidence.  Further that no further affidavit evidence or documents were to be produced (to the court) and that the evidence 'will be given orally on the day of the final order hearing'.[16]

5.2.3 Application to adjourn because of a criminal investigation in New South Wales into Mr Calvar

[16] ts 9, ts 27 and ts 29, 17 November 2020.

1. As the relationship between the parties soured, Mr Rawle had laid a complaint alleging criminal conduct on the part of Mr Calvar arising out of an alleged incident in New South Wales in 2019.  Mr Rawle applied to adjourn the final order hearing on the basis that it might prejudice any investigation that was on foot in New South Wales into Mr Calvar.[17]

   [17] ts 24, 17 November 2020.

2. In dismissing Mr Rawle's application for the final order hearing to be adjourned on this basis, the learned magistrate noted that the only information she had before her was confirmation that there was an investigating officer and that a complaint had been made.[18]  The magistrate noted that there was no evidence before her of an offence which may or may not have occurred in New South Wales in 2019.[19]

   [18] ts 24, 17 November 2020.

   [19] ts 27, 17 November 2020.

3. Having regard to Mr Rawle's application for a FVRO against Mr Calvar, her Honour noted that there was no mention of a criminal offence in New South Wales in 2019.  Her Honour concluded that there was no suggestion that Mr Rawle was relying on that in his application for a FVRO against Mr Calvar.  Her Honour noted that whilst Mr Rawle had not relied on any investigation in New South Wales in his own application for an order against Mr Calvar, Mr Rawle was not confined in his evidence‑in‑chief to only those matters contained in his application.  Her Honour expressly stated that:[20]

   [W]hat [Mr Rawle] chooses to speak of in his evidence‑in‑chief ultimately will be a matter for him at the final order hearing.

   [20] ts 27 - ts 28, 17 November 2020.

4. In taking into account that anything said in the final order hearing could potentially be used as an inconsistent statement, her Honour concluded that both parties were equally prejudiced in that regard because they would both be subject to giving evidence on it if one party raises it or cross‑examines on it.

5. Her Honour concluded that there was not sufficient prejudice to Mr Rawle to adjourn the final order hearing until the New South Wales investigation was completed.  Her Honour noted that there was nothing to indicate when any police investigation might conclude and said that these proceedings, the respective cross‑applications for FVROs brought by each party, need to come to a conclusion.

6. Her Honour was ultimately not satisfied that there were sufficient grounds to adjourn the final order hearing by reason of any investigation in New South Wales into Mr Calvar and dismissed Mr Rawle's application.[21]

5.2.4  The application to restrain Mr Barker from representing Mr Calvar

[21] ts 28, 17 November 2020.

1. Mr Rawle argued that counsel for Mr Calvar, Mr Barker, had a conflict of interest in the proceedings and ought to be restrained from representing Mr Calvar at the final order hearing.

2. The learned magistrate identified that Mr Barker had never represented Mr Rawle in any proceedings, Mr Barker did not know Mr Rawle personally or anything about him that might impact on Mr Rawle's ability to present his case.  Her Honour noted that Mr Rawle's complaints appeared to be more about behaviour that occurred outside of the courtroom[22] and said this:[23]

   It won't be tolerated inside the courtroom.  Mr Rawle as a self‑represented litigant will be properly protected as all self‑represented litigants are.

   [22] ts 28, 17 November 2020.

   [23] ts 29, 17 November 2020.

3. Her Honour dismissed the application finding that she was not satisfied that Mr Barker had a conflict of interest in the proceedings.

4. All applications listed on 17 November 2020 were dismissed and the matters were adjourned to a final order hearing on 1 December 2020.[24]

5.3     The final order hearing 1 December 2020

[24] ts 29, 17 November 2020.

1. On 1 December 2020 the final order hearing took place.

2. None of the applications brought by Mr Rawle on 17 November 2020 were raised with her Honour either prior to the commencement of the final order hearing or during the course of the final order hearing itself.

5.4     The power to appeal the decision of the magistrate

5.4.1  The source of the power to appeal

1. Having set out the procedural history to this matter, it is necessary to examine the statutory source giving rise to a power to appeal a decision of a court making a FVRO.

2. The power to appeal a decision of a court making a FVRO is pursuant to s 64(1)(b)(i) of the ROA. Section 64(1)(b) provides that an aggrieved person may appeal against the decision of a court to 'make, vary or cancel, refuse to make, vary or cancel a final order or to make any other order in relation to a final order': s 64(1)(b).

1. Section 64 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.

   (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.

2. The term 'final order' is defined by s 3 of the ROA to mean any of the following:

   (a)in relation to a 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 s 32;

   (d)a restraining order made under s 40(3);

   (e)a restraining order made at a final order hearing;

   (f)a restraining order made under s 49(1)(b) to vary a final order, being a replacement or additional final order made under that section; and

   (g)A restraining order that is a final order under s 63(4a) or s 63A(3).

3. The term 'final order hearing' is defined in s 3 to mean a hearing fixed under s 33(1), s 40(3), s 41(4) or s 43A(7)(b) of the ROA.

4. The term 'final' may be used to distinguish a decision which disposes of an application by finally determining the rights of the parties from an interlocutory or interim decision which does not have that effect.[25]

   [25] As to the distinction between final and interlocutory decisions, see the discussion in CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [45] - [58].

5. The hearing of 1 December 2020 before the learned magistrate was a 'final order hearing' as defined in s 3 of the ROA.[26]  Her Honour made that clear in proceedings on 17 November 2020 and both parties proceeded on the basis that this was the case.  It is not disputed that the 1 December 2020 hearing, and the subsequent decision of her Honour delivered on 13 January 2021 in written reasons, finally determined Mr Calvar's application for a FVRO against Mr Rawle.[27]

5.4.2 The ambit of the right to appeal arising out of s 64 of the Restraining Orders Act 1997

[26] ts 29, 17 November 2020.

[27] ts 2, Final Order Hearing, 1 December 2020.

1. In KSJ v GJA[28] the Court of Appeal examined the right of appeal arising out of s 64 of the ROA. The following principles can be distilled from that decision.

   [28] KSJ v GJA [2021] WASCA 98 [82].

2. Firstly, that s 64(1) of the ROA must be taken to be intended to be exhaustive so as to exclude the general and broad right of appeal conferred by s 40 of the MCCPA against orders made in the course of proceedings in the Magistrates Court.[29]

   [29] KSJ v GJA [82].

3. In enacting s 64 of the ROA with its specific reference to pt 7 of the MCCPA, in which s 40 of that latter Act is contained, the legislature cannot be taken to have overlooked the rights of appeal in s 40 of the MCCPA.[30]

   [30] KSJ [85].

4. Secondly, in enacting s 64 of the ROA, the legislature has made elaborate provision stipulating the specific kinds of decisions under the ROA in respect of which a right of appeal against the decision is conferred. The right of appeal under s 64 of the ROA is limited to decisions of a court on the matters listed in s 64(1)(a) and s 64(1)(b) of the ROA.[31]

   [31] KSJ [86].

5. Thirdly, the general right of appeal under s 40 of the MCCPA encompasses proceedings under the ROA, there is no apparent need for, or purpose to be served by, the stipulation of the right of appeal under s 64 of the ROA. All of the species of decisions stipulated under s 64 of the ROA would be encompassed within s 40(1) of the MCCPA as orders made in the course of proceedings in the case or the judgment in the case.[32]

   [32] KSJ [87].

6. Fourthly, s 64 is enacted in a context in which decisions under the ROA may be made by a variety of courts. Section 64(1) makes provision as to the scope of the right of appeal it confers, applicable to all cases, regardless of the court in which the decision is made. Section 64 then proceeds to stipulate the procedure for such an appeal in a manner that varies with the identity of the court which made the decision the subject of the proposed appeal. The scheme and structure of s 64 suggests an intention to make uniform provision as to the scope of decisions under the ROA which are capable of being appealed, regardless of the court in which the decision is made. That counts in favour of construing s 64 as making exhaustive provision for appeals in proceedings under the ROA.[33]

   [33] KSJ [89].

7. Fifthly, the construction adopted (above) does not produce results which are inconsistent with the general objects of the ROA or which lack a discernible legal policy justification.  The undesirable effect of appeals against interlocutory orders in delaying the final resolution of proceedings, and fragmenting proceedings with the attendant increased cost and inconvenience to the parties and the inefficient use of limited judicial resources, are well known and need not be elaborated.[34]

   [34] KSJ [90].

8. The court concluded that, taken together, these considerations sustain the conclusion that:

   (i)section 64 of the ROA regulates the scope of appeals under pt 7 of the MCCPA against decisions in proceedings under the ROA; and

   (ii)the legislature is to be taken to have exhaustively expressed in s 64(1) the decisions in proceedings under the ROA in respect of which a right of appeal under pt 7 of the MCCPA is conferred.[35]

5.4.3  The nature of the review

[35] KSJ [88].

1. The appeal is to be made in accordance with pt 7 of the MCCPA.[36] Section 40(4A) of the MCCPA, which appears within pt 7, provides that the appeal must be conducted in accordance with the DCR.

   [36] ROA s 64(2).

2. Section 40(4) of the MCCPA provides that the District Court must decide the appeal on the material and the evidence that was before the Magistrates Court and on any other evidence that it gives leave to be admitted.

3. Section 40(5) of the MCCPA provides that leave may only be given to admit additional evidence on the appeal in exceptional circumstances.

4. Rule 50(1) of the DCR provides that an appeal to the District Court must be by way of reconsideration of the evidence that was before the primary court unless the parties otherwise agree.

5. Rule 50(2) of the DCR provides that at the hearing of an appeal a party must not adduce evidence that was not adduced at the primary court except with leave of the District Court.

6. The provisions of s 40(4) of the MCCPA and r 50(1) and r 50(2) of the DCR make it clear that an appeal from a decision of a magistrate to the District Court is by way of reconsideration of the evidence that was before the primary court.

7. The ability of the District Court to receive and admit new evidence does not render the appeal a hearing de novo.[37]  It is not the role of the appeal court to retry the facts or to substitute its own view of the facts to that of the magistrate.[38]

   [37] Kickett v Starr [2013] WADC 52 [24]; Butler v Bennett [2007] WADC 107 [10].

   [38] Yazarloo v Assadi [2003] WASCA 326 [9], [35]; Blenkinsop v Holland [2018] WADC 146 (Gething DCJ).

8. A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'.[39]

   [39] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550.

9. Thus the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision made by the magistrate the subject of the appeal, was the result of some legal, factual or discretionary error.[40]

5.5    Conclusions on Issue 1: Do Grounds 1 and 4 give rise to a right to appeal to the District Court?

[40] Robinson Helicopter Company Inc v McDermott [43]; Allesch v Maunz [2000] HCA 40 [23]; (2000) 203 CLR 172, 180 - 181.

1. Having set out the relevant aspects of the procedural history to this matter and the statutory framework, it is apparent that Grounds 1 and 4 do not give rise to a right of appeal to this Court against the magistrate's decision.

2. It is clear on a reading of the procedural history of this matter and the transcript that the 17 November 2020 proceedings were interlocutory in nature.  The applications were directed at the manner in which the final order hearing listed for 1 December 2020 was to be conducted.  They included decisions such as:

   (a)whether the final order hearing ought properly to be delayed;

   (b)whether there were sufficient grounds to restrain counsel for Mr Calvar from representing him at the final order hearing; and

   (c)whether the evidence to be led at the final order hearing would comprise affidavit evidence (provided already or to be provided to the court) or whether the evidence would consist solely of the oral testimony of the parties and exhibits properly tendered during the course of the hearing.

3. The rulings made by the magistrate on 17 November 2020 went to the procedure and the conduct of the final order hearing and not matters substantive to the final order hearing.

4. Furthermore, the orders made on 17 November 2020 did not finally determine the rights of the parties in the principal case pending between them.[41]

   [41] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225; Licul v Corney [1976] HCA 6; (1976) 180 CLR 213; CDW v LVE.

5. The rulings made by the learned magistrate during the proceedings of 7 November 2020 were not orders made 'in relation to' a 'final order' for the purposes of s 3 and s 64 of the ROA.[42]

   [42] ROA s 64(1)(b)(iii).

6. None of the rulings the learned magistrate made on 17 November 2020 are therefore characterised as 'final orders' for the purposes of the ROA.

7. It follows that as Grounds 1 and 4 are not grounds of appeal against a 'final order' made by the magistrate, no appeal in respect of those grounds lies to this court.

8. I therefore dismiss Grounds 1 and 4.

1. Issue 2: Was Mr Rawle afforded procedural fairness in the course of the final order hearing?

6.1     Mr Rawle's submissions

1. Mr Rawle's grounds of appeal and the oral submissions made at the hearing of this appeal assert, broadly, that he was denied procedural fairness in the conduct of the final order hearing in the following four ways:

   (i)That the learned magistrate took into account documents that had not been tendered into evidence during the course of the hearing (pleaded Ground 2 of this appeal) (Procedural Fairness (1) 'Documents not in Evidence');

   (ii)Through the conduct of Counsel for Mr Calvar during the course of the final order hearing (Procedural Fairness (2) 'Conduct of Counsel');

   (iii)The learned magistrate's alleged failure to inform Mr Rawle about the status of documents marked for identification and not tendered into evidence (Procedural Fairness (3) 'Documents Marked for Identification'); and

   (iv)The lack of a reasonable opportunity for Mr Rawle to cross‑examine Mr Calvar in the final order hearing (Procedural Fairness (4) 'Cross‑Examination').

6.2     Litigants in person - General principles

1. Before examining the various aspects to Mr Rawle's Procedural Fairness argument, it is convenient at this point to set out the principles that apply to litigants in person and the requirements of procedural fairness.

2. In dealing with these issues, I recognise that Mr Rawle in the final order hearing was a litigant in person.  I acknowledge that both Mr Rawle and Mr Calvar are litigants in person in the conduct of this appeal.  As such, a litigant in person is entitled to some leniency in relation to compliance with the court rules.[43]  I approach the documents and oral submissions in which Mr Rawle articulates his claim with some flexibility.[44]

   [43] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].

   [44] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537, 543; Smart v Prisoner Review Board (WA) [2012] WASC 48 [10].

3. I need to be astute to ensure that, in a poorly expressed or unstructured document or submissions in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[45]

   [45] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21]; Tobin v Dodd [2004] WASCA 288 [15].

4. I recognise that a frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[46]

   [46] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150; Ibrahim v The Honourable Justice Carolyn Martin [21]; Glew v Frank Jasper Pty Ltd [10]; Tobin v Dodd [14].

5. The rules of procedural fairness are not fixed or immutable.  Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.[47]  In a curial setting there is no absolute right to have an action heard and determined on its merits.  What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard.[48]

   [47] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37].

   [48] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141].

6. What is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court.[49]

   [49] See Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon); Brocx v Hughes [2010] WASCA 57 [96].

7. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.[50]

   [50] Sali v SPC Ltd (1993) 116 ALR 625; (1993) 67 ALJR 841, 844; Aon [26] - [27].

8. The balance is struck by limiting the assistance given to a litigant in person to that necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[51]

   [51] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74].

9. As the Court of Appeal observed in Zerjavic v Chevron Australia Pty Ltd:[52]

   1.The court's obligation is to ensure a fair and just trial for all parties …

   2.A self-represented litigant is subject to the practice and procedure of the court as much as any other litigant …

   3.The court's obligation in the case of a self-represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair trial to both parties (the application of the principle depending on the circumstances of the case) … Among other things a trial judge should usually inform a self-represented litigant of the manner in which the trial is to proceed and his or her right to examine witnesses and object to evidence.  Also, it will usually be of importance to ensure that a self-represented litigant understands the distinction between evidence and submissions ...

   4.A trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised …

   5.All the more so the trial judge's role in providing information to the self-represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self‑represented litigant …

   [52] Zerjavic v Chevron Australia Pty Ltd [75].

10. In determining whether the learned magistrate afforded Mr Rawle procedural fairness, I also need to ensure that any latitude given to Mr Rawle as a litigant in person does not deprive Mr Calvar of his rights to procedural fairness and a fair hearing.[53]

6.3    The procedural fairness afforded to Mr Rawle at the final order hearing

[53] Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 [47]; Woodley v Woodley [2018] WASCA 149 [76]; Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51].

1. Before turning to address each component of Mr Rawle's denial of procedural fairness argument, it is useful to summarise those aspects of the final order hearing where the learned magistrate afforded Mr Rawle procedural fairness.

2. It is noted that prior to the commencement of the final order hearing the learned magistrate gave both parties the opportunity of raising any matter before the hearing commenced.  Mr Rawle did not raise any concerns he had at the time.

3. During the final order hearing on 1 December 2020 the magistrate did the following:

   1.Advised Mr Calvar's legal representative that details of settlement negotiations were irrelevant to the final order hearing.[54]

   [54] ts 3, ts 48, Final Order Hearing, 1 December 2020.

   2.Gave the parties a FVRO which set out the test for granting a FVRO under the ROA and explained what this meant.[55]

   [55] ts 6, Final Order Hearing, 1 December 2020.

   3.Advised that Mr Rawle was entitled to give his own evidence because he might disagree with Mr Calvar's evidence.[56]

   [56] ts 6, Final Order Hearing, 1 December 2020.

   4.Explained to Mr Rawle the purpose of cross‑examination.[57]

   [57] ts 8, Final Order Hearing, 1 December 2020.

   5.Explained to Mr Rawle that Mr Calvar will give his evidence before Mr Rawle.  Mr Rawle could then give his account and then Mr Rawle would be cross‑examined by Mr Calvar's counsel.[58]

   [58] ts 11, Final Order Hearing, 1 December 2020.

   6Gave Mr Rawle the opportunity to raise anything before the evidence commenced.[59]

   [59] ts 12, Final Order Hearing, 1 December 2020.

   7Refused permission for Mr Calvar to refer to his notes when he was giving evidence.[60]

   [60] ts 13, Final Order Hearing, 1 December 2020.

   8Stopped the legal representative for Mr Calvar asking Mr Calvar leading questions.[61]

   [61] ts 14, ts 38, Final Order Hearing, 1 December 2020.

   9Refused to accept documents tendered by Mr Calvar's legal representative which contained hearsay material.[62]

   [62] ts 17, ts 21, Final Order Hearing, 1 December 2020.

   10.Refused to allow Mr Calvar's legal representative to tender documents through Mr Calvar that he was not a party to.[63]

   [63] ts 29, Final Order Hearing, 1 December 2020.

   11.Stopped Mr Calvar's legal representative making comment on Mr Calvar's evidence during his evidence.[64]

   [64] ts 24, ts 40, Final Order Hearing, 1 December 2020.

   12.Stopped Mr Calvar's legal representative from providing his opinion on what a document meant.[65]

   [65] ts 32, Final Order Hearing, 1 December 2020.

   13.Stopped Mr Calvar's legal representative from giving evidence on behalf of Mr Calvar.[66]

   14.Stopped Mr Calvar's legal representative from asking questions that were conclusions for her Honour to determine.[67]

   15Advised Mr Rawle that he could not submit evidence of other people's beliefs.[68]

   16Allowed Mr Rawle to directly question Mr Calvar in cross‑examination notwithstanding s 44C of the ROA.[69]

   17Allowed Mr Rawle to tender documents.[70]

   18Gave the same guidance to Mr Rawle as to how to cross‑examine Mr Calvar in relation to documents put to him.[71]

   19Ensured Mr Calvar's legal representative asked in re‑examination questions of Mr Calvar which arose from cross‑examination.[72]

   20.Explained to Mr Rawle what MFI meant and the process by which a document marked for identification could become an exhibit in the final order hearing.[73]

   21.Allowed Mr Rawle considerable latitude in both the length and breadth of his cross‑examination of Mr Calvar and in the manner in which that cross-examination was conducted.

   22.Allowed Mr Rawle to ask in cross‑examination many questions that were, strictly speaking, objectionable.  They involved for example Mr Rawle asking multiple questions within the one question,[74] asking irrelevant questions[75] and often involved Mr Rawle purporting to give evidence or to give statements of fact or evidence from the bar table,[76] including expert evidence.[77]  The learned magistrate allowed all of those questions to be asked without interrupting.

   [66] ts 24, ts 27, Final Order Hearing, 1 December 2020.

   [67] ts 37, Final Order Hearing, 1 December 2020.

   [68] ts 51, Final Order Hearing, 1 December 2020.

   [69] ts 4, ts 5, ts 50 - ts 87, Final Order Hearing, 1 December 2020.

   [70] ts 58, Final Order Hearing, 1 December 2020; Exhibits 11 - 20.

   [71] ts 53, ts 67, ts 69, Final Order Hearing, 1 December 2020.

   [72] ts 75, Final Order Hearing, 1 December 2020.

   [73] ts 78 - ts, 79 Final Order Hearing, 1 December 2020.

   [74] See for example ts 57, ts 63, ts 64, ts 70, ts 71, ts 74, Final Order Hearing, 1 December 2020.

   [75] See for example ts 82 - ts 83, Final Order Hearing, 1 December 2020.

   [76] See for example ts 70, Final Order Hearing, 1 December 2020.

   [77] See for example ts 76, Final Order Hearing, 1 December 2020.

1. I turn now to address the different components of Mr Rawle's Denial of Procedural Fairness argument.

6.4     Procedural Fairness (1) - Documents not in Evidence

1. The first way in which Mr Rawle asserted that he was denied procedural fairness in the conduct of the final order hearing also comprises the second ground of appeal.

2. In this ground Mr Rawle argued that it would have been impossible for the magistrate to have remained impartial having sighted documents sent to the court prior to, and after, the 1 December 2020 hearing.[78]

   [78] ts 21 - ts 22, Hearing of the Appeal, 20 September 2021.

3. Mr Rawle therefore argued that the learned magistrate had taken into account materials that were not tendered into evidence in the course of the trial.

4. In pursuing this ground of appeal Mr Rawle identified these documents to comprise:

   (a)a 25‑page affidavit filed with the court on 2 October 2020;

   (b)a significant number of pages of affidavits across nine separate Form 23 applications that were submitted at the beginning of November 2020; and

   (c)a 30‑page letter to the court filed 'without leave' after the final order hearing on 1 December 2020 had taken place but before the decision was delivered.[79]

   [79] ts 22, Hearing of the Appeal, 20 September 2021.

5. Mr Rawle submitted that by reason of the materials filed with the court by counsel for Mr Calvar which were not documents tendered in the course of the trial as exhibits, there was 'some element of apprehension or bias' on the part of the magistrate.[80]  None of those documents are before the court.

   [80] ts 37 - ts 38, Hearing of the Appeal, 20 September 2021.

6. Her Honour made it clear in the 17 November 2020 proceedings that the final order hearing would proceed by way of oral evidence with cross‑examination.  On 17 November 2020 her Honour expressly stated that no documents should be filed at the court.  There is nothing in the conduct of the final orders hearing that suggests that her Honour departed from that ruling.  I refer to the following exchange between the magistrate and counsel for Mr Calvar during the final order hearing:[81]

   [81] ts 10, Final Order Hearing, 1 December 2020.

   HER HONOUR:          So whatever is on the files, I've not looked at and won't have regard to.  The evidence is what is given in court today and what you consider is relevant and is tendered to me.

   BARKER, MR:            Okay.  The affidavit - we filed an affidavit - it was my error.  I filed an - I asked my client to file an affidavit on 2 October.  I'm not relying on that and if you could disregard - - -

   HER HONOUR:        As I say, I haven't read any of it and - - -

   BARKER, MR:          I was just confirming.  Yes

   HER HONOUR:        No, that's fine.

   HER HONOUR:        I will deciding it on the evidence in the trial.

   BARKER, MR:          Yes.  Thank you.

   HER HONOUR:          Yes.  So if there's any document that you're wanting me to have regard to, you are to tender it through your witness.

   BARKER, MR:         Okay.  Thank you Honour.

7. I am satisfied the magistrate made her decision only on the evidence which was before her at the final order hearing on 1 December 2020 for the reasons that follow.[82]

   [82] ts 10, Final Order Hearing, 1 December 2020.

8. In reaching her decision, her Honour specifically directed herself that she must decide the matter based only on the evidence presented in court.  In this matter that comprised the testimony of Mr Calvar and the 18 exhibits which were tendered by him.[83]

   [83] Reasons for decision, 13 January 2021, [13] - [14].

9. In her reasons dated 13 January 2021 the magistrate expressly states the following:[84]

   [13]I must decide the matter based only on the evidence presented in court.  In this case the evidence comprises witness testimony of the applicant and the 18 exhibits which have been tendered by him.

   [14]I must assess the evidence objectively without bias or preconceptions, prejudice or sympathy and I cannot speculate about evidence not before me.

   [84] Reasons for Decision 13 January 2021, [13] ‑ [14].

10. There is no evidence before the court that the learned magistrate took into account anything other than what she specified, namely the oral evidence of Mr Calvar and the 18 exhibits tendered.

11. Mr Rawle has not established that the magistrate took into account any documents not comprising the exhibits tendered at trial.

12. Ground 2 of this appeal is therefore dismissed.

6.5     Procedural Fairness (2) - The Conduct of Counsel

1. The second limb of Mr Rawle's denial of procedural fairness argument comprises his third ground of appeal.  Ground 3 pleads that the magistrate did not uphold her duty to a self‑represented litigant in circumstances where the conduct of counsel for the respondent was 'unprofessional, incompetent and unfairly prejudicial to the Appellant's case'.

2. I summarise the components of Mr Rawle's submissions under this Ground in four parts:

   (i)Mr Barker ought not have had any dealings in these proceedings;

   (ii)Mr Barker's conduct during the final order hearing put Mr Rawle at a 'significant disadvantage';[85]

   (iii)Mr Barker's comments to the court that Mr Rawle had sent him emails that were 'offensive and rude' and that those emails were themselves the definition of family violence;[86] and

   (iv)Mr Barker's representation of Mr Calvar was the reason (or part of the reason) why Mr Rawle elected not to give evidence at the final order hearing.

   [85] ts 29, Hearing of the Appeal, 20 September 2021.

   [86] ts 28 Hearing of the Appeal, 20 September 2021

3. In respect of (i), Mr Rawle argued that Mr Barker ought not to have had any dealings in these proceedings for two reasons. Firstly, because Mr Barker was potentially a witness in the hearing and secondly, because Mr Barker had an 'overwhelming personal interest'[87] in this matter.

   [87] ts 35, Hearing of the Appeal, 20 September 2021.

4. There was no evidence adduced by Mr Rawle in the hearing of this appeal to enable any assessment to take place as to the prospect of Mr Barker being called to give evidence as a witness.  Mr Rawle did not raise this with the magistrate either on 17 December 2020 nor on 1 December 2020 either prior to the commencement of the final order hearing or during the final order hearing.  It is therefore not a matter before me for determination.  To the extent that Mr Rawle relies on any out of court conduct on the part of Mr Barker those complaints are matters properly to be determined by the Legal Practice Board.

5. Whilst it is not necessary in order to determine this appeal, I make the following observations.  Counsel for Mr Calvar was not called to give evidence as a witness in the final order hearing.  The potential for him to be called as a witness appears to have arisen by virtue of the dealings that he had with Mr Rawle as a self‑represented person (although initially represented by solicitors) in acting for Mr Calvar.  To this extent any solicitor dealing directly with a self-represented litigant is at risk of becoming a witness in proceedings where the conduct surrounding the dealings between the parties is relevant to a fact in issue at the hearing.

6. In respect of (ii) Mr Rawle complains about counsel for Mr Calvar's behaviour during the final order hearing.  Mr Rawle argues that Mr Barker's conduct in the hearing put Mr Rawle at a 'significant disadvantage'.  Mr Rawle identified the significant disadvantage in the following way:[88]

   I think perhaps the way that he would refer to his client as 'mate' or 'josh' throughout the proceedings.  That he did not stand up and object to some of the questions I said. … He did not object to anything.  He just stood up and interrupted my conversations - my cross‑examination multiple times without objection … Her Honour told him to sit down a number of times.  I think it was just perhaps extremely unprofessional and … it really affected what I was doing on the day as a self‑represented litigant I guess is the word.

   [88] ts 29, Hearing of the Appeal, 20 September 2021.

7. To the extent that Mr Barker used Mr Calvar's first name or was inappropriately familiar with Mr Calvar in the final order hearing, I am not satisfied that this had any adverse affect on Mr Rawle.  During the course of the hearing the magistrate informed Mr Barker that the appropriate way to address Mr Calvar was by the use of his last name.  There is no merit in this submission.

8. Mr Rawle also relied on the number of objections and the manner in which Mr Barker sought to object to parts of Mr Rawle's cross‑examination as comprising a denial of procedural fairness.  A review of the transcript reflects that the magistrate dealt with the conduct of the final order hearing in a manner that was both fair and appropriate to both parties.  The magistrate properly dealt with Mr Barker's objections, even if he did not formally say 'I object' before articulating his objection. 

9. That the magistrate informed Mr Barker of court room etiquette and trial procedure during parts of the final order hearing did not prejudice Mr Rawle in the conduct of his case.[89]  It did not result in any unfairness to Mr Rawle.  Mr Rawle conceded during the hearing of the appeal that the magistrate was very fair to him.[90]

   [89] ts 6, ts 9, ts, 83, ts 85, ts 87, Final Order Hearing, 1 December 2020.

   [90] ts 29 Hearing of the Appeal, 20 September 2021.

10. There is no merit in this submission.

11. In respect of (iii) Mr Rawle submitted that Mr Barker made comments to the magistrate that Mr Rawle had sent a significant number of emails to him that were 'offensive and rude' and that those emails of themselves were the very definition of family violence.[91]

    [91] ts 28, Hearing of the Appeal, 20 September 2021.

12. As the trier of fact magistrates are often required to put to one side any matters that are irrelevant or which form no part of the evidence upon which their decision is to be made.

13. For the reasons I have reached in section 6.4, there is no basis for concluding that the magistrate did anything other than what she said she had done, namely that she assessed the application on the oral testimony of Mr Calvar and the 18 exhibits tendered in the course of the hearing.  I have no doubt that her Honour's decision was, as she said it was, based solely on the evidence she saw and heard in the course of the final order hearing.

14. There is no merit to this submission.

15. As to (iv) Mr Rawle raised at the hearing of this appeal that during the final order hearing he felt apprehensive or intimidated at the prospect of giving evidence and being cross-examined by Mr Barker.

16. This was not a matter that was raised before the magistrate either prior to the commencement of the final order hearing nor at any stage during the final order hearing.

17. It was not a matter raised by Mr Rawle in his Notice of Appeal nor in his written submissions in support of his appeal.  It was raised for the first time in the hearing of the appeal.

18. There is no support for that submission from a review of the transcript of the final order hearing.  Following a lengthy cross‑examination of Mr Calvar which her Honour had permitted Mr Rawle to conduct himself directly, Mr Rawle was afforded the opportunity to give evidence in the final order hearing.  He declined to do so.

19. This is not a matter in respect of which there is any evidence before this Court and is therefore not a matter before me for determination in this appeal.

20. Having reviewed the transcript in its entirety I am not satisfied that there was any degree of intimidation by Mr Barker (or at all) that resulted in Mr Rawle being denied the reasonable opportunity to be heard by giving evidence in his case. A review of the final order hearing reflects that the magistrate exercised appropriate control over the conduct of the hearing.

21. In summary, I can see nothing from the transcript of the final order hearing that indicates that the trial was conducted in a manner that impacted adversely on Mr Rawle.  As Mr Rawle acknowledged during the hearing of this appeal, the magistrate was entirely fair to both parties.

22. To the extent that Mr Rawle raises issues about any conduct or alleged misconduct of Mr Barker occurring outside of the court room they are  matters for the Legal Practice Board and are not matters for me to determine in this appeal.

23. Mr Rawle has not established Procedural Fairness (2).

24. Ground 3 therefore fails.

6.6     Procedural fairness (3) - Documents Marked for Identification

1. It is convenient to deal here with Mr Rawle's complaints that the magistrate failed to explain that two documents marked for identification would not be admitted into evidence unless he gave evidence.

2. Mr Rawle argues that that deprived him of procedural fairness and caused him prejudice in his case.

3. During the hearing of the appeal Mr Rawle was unable to identify those documents on which he had cross‑examined Mr Calvar during the final order hearing that were subsequently marked for identification but not tendered into evidence.  Neither could Mr Rawle point to that part of the transcript of the final order hearing where that had occurred.

4. Having reviewed the transcript of the final order hearing it appears to me that there were only two documents that were marked for identification and not subsequently tendered into evidence.  They were MFI 18, described as 'Google account', and MFI 19, described as 'Google account recovery email 12 July 2020'.  They were documents shown by Mr Rawle to Mr Calvar in cross‑examination.

5. The transcript of the final order hearing reflects that the magistrate explained that the document taken as MFI 19 (with the same reasoning applying to MFI 18) was marked for identification because Mr Calvar did not have knowledge of the document.

6. The following exchange then took place:[92]

   Mr Rawle:'What does MFI stand for, Your Honour, I'm sorry?'

   Her Honour:         Marked for identification.  So it's not an exhibit unless …

   Mr Rawle:Got you.

   Her Honour:        --- you give evidence and you tender it as an exhibit.

   Mr Rawle:Thank you.

   [92] ts 78 - ts 79, Final Order Hearing, 1 December 2020.

7. To the extent that in the hearing of this appeal Mr Rawle submitted that the learned magistrate never explained what MFI meant and that a document marked for identification was not an exhibit unless (here Mr Rawle) gave evidence and tendered it as an exhibit is inaccurate and is not borne out by the transcript.

8. At the point that the two documents were marked for identification, Mr Rawle had not informed the magistrate that he did not intend to give evidence in the hearing.

9. I note that the magistrate did not appear to rely on the two documents marked but not tendered into evidence as forming any basis of her decision to grant Mr Calvar's application.  Further, having reviewed those documents in determining this appeal, there is nothing in those documents which would alter the determination of the merits of Mr Calvar's application.

10. There is no merit in Mr Rawle's assertion that he was denied procedural fairness by the magistrate not explaining the process of documents marked for identification becoming exhibits in the trial.  That assertion is not borne out by the transcript and is not a reflection of the procedural fairness that the learned magistrate in fact afforded Mr Rawle.

6.7    Procedural Fairness (4) - Reasonable Opportunity to Cross‑Examine

1. I turn now to the next category of procedural fairness that Mr Rawle asserts he was denied, an adequate opportunity to cross‑examine Mr Calvar.

6.7.1 Mr Rawle's submissions

1. Mr Rawle complained that he had 42 minutes in cross‑examination 'on a one hour direct'.  I take this to mean that Mr Rawle was confined to 42 minutes in cross‑examination whereas Mr Calvar had an hour in examination‑in‑chief.

2. Mr Rawle complained further that he was constantly interrupted by counsel for Mr Calvar during his cross‑examination, and those interruptions were made without counsel objecting.

3. Mr Rawle summarised that he felt it was quite unfair on the day that there was a lack of time allowance and that he 'had a heap of cross‑examination questions for Mr Calvar on the day that I couldn't get through barely 50 per cent of them …'.[93]

   [93] ts 31, Hearing of the Appeal, 20 September 2021.

4. Further, Mr Rawle asserts that the magistrate asked him to 'speed up' and said to him 'You have a couple of questions left or two minutes left' and Mr Rawle followed her Honour's direction on that.[94]

6.7.2 Review of the proceedings and the magistrate's approach

[94] ts 31 - ts 32, Hearing of the Appeal, 20 September 2021.

1. Her Honour implemented her powers under s 16 of the MCCPA and limited the time taken in relation to this trial.[95]  Prior to the commencement of the trial, her Honour informed the parties that she was allowing 30 minutes in examination‑in‑chief for both parties.  Her Honour expressly stated that cross‑examination will similarly be limited to half an hour.[96]  Her Honour indicated that she will be flexible in relation to time if required.[97]

   [95] ts 5, Final Order Hearing, 1 December 2020.

   [96] ts 7, Final Order Hearing, 1 December 2020.

   [97] ts 8, Final Order Hearing, 1 December 2020.

2. The magistrate did place both parties under time limits for presenting their cases.  I consider this was not only appropriate in a busy Magistrates Court where there are parties waiting for their allocated court time, but also appropriate to focus the parties on the relevant issues in dispute.  In fact the transcript reveals that the magistrate afforded both parties considerable flexibility in the implementation of those guidelines.  Her Honour allowed Mr Calvar time to complete his evidence‑in‑chief.  It is apparent from the transcript that counsel for Mr Calvar was aware of, and curtailed his examination‑in‑chief, in accordance with her Honour's time constraints.

3. The transcript reflects, in fact, that her Honour informed Mr Rawle at 4.16 pm that he had gone for an hour (emphasis added) but that she was giving Mr Rawle another 10 minutes.[98]  Her Honour reminded Mr Rawle later on that he had a 'couple of minutes'[99] following which Mr Rawle continued to cross‑examine Mr Calvar for some time.

   [98] ts 78, Final Order Hearing, 1 December 2020.

   [99] ts 82, Final Order Hearing, 1 December 2020.

4. Whilst the transcript does not reflect the actual time the learned magistrate permitted Mr Rawle to continue to cross‑examine Mr Calvar, the transcript of that extension, that extra 'couple of minutes', runs into some pages.

5. Whilst Mr Rawle complains that his cross‑examination was incomplete, as he conceded in the hearing of the appeal, at no stage did Mr Rawle inform her Honour that he was only 'halfway through' his cross‑examination nor that he required more time in order to complete his cross‑examination.

6. At no stage did Mr Rawle inform her Honour that he was not finished with his cross‑examination; he simply finished with: 'I have no further questions your Honour'.[100]

   [100] ts 87, Final Order Hearing, 1 December 2020.

7. I note further that the magistrate informed Mr Rawle that the cross‑examination would need to be conducted in accordance with s 44C of the ROA.  Her Honour relaxed that requirement very quickly into Mr Rawle's cross‑examination and permitted him to cross‑examine Mr Calvar directly.

8. During the course of Mr Rawle's cross‑examination he was granted considerable latitude to ask very detailed questions containing assertions of fact and multiple questions within the one question.

9. Her Honour did not intervene during the cross‑examination where she could have, instead allowing Mr Rawle's cross‑examination to flow uninterrupted.

10. Where counsel for Mr Calvar objected or interjected in Mr Rawle's cross‑examination, her Honour often told counsel to sit down, or she otherwise minimised the interruption caused by counsel for Mr Calvar.

11. In my view the interventions by the magistrate in Mr Rawle's cross‑examination of Mr Calvar were restrained, in favour of Mr Rawle, and measured.

12. Mr Rawle has not established that he was denied a reasonable opportunity to cross-examine Mr Calvar.

1. There is no merit in this ground.

1. Ground 4 - Police Investigation ground

1. For the reasons given at sections 5.4 ‑ 5.5 above this ground of appeal fails.

1. Reconsideration of the evidence

8.1     Mr Rawle's submissions

1. Mr Rawle argued that he had a:[101]

   [R]easonable apprehension of bias given the weight of the evidence and exhibits that were presented on the day, there was no evidence of coercion.  There was no evidence of manipulation in the determination of the magistrate.

   [101] ts 37, Hearing of the Appeal, 20 September 2021.

2. Mr Rawle argued, in summary, that none of the exhibits that were tendered into evidence could have led to any finding that he manipulated or coerced Mr Calvar.  Mr Rawle developed this submission to argue that the magistrate only reached that conclusion 'from the overwhelming volume of paperwork that had been put in by counsel for the respondent or by the respondent … if I'd seen that information beforehand it would have led me down a path'.[102]

   [102] ts 37, Hearing of the Appeal, 20 September 2021.

3. Mr Rawle then confirmed that despite what her Honour says and made clear during the course of the 17 November 2020 proceedings, the final order hearing and in her reasons for her decision, she cannot not have been affected by all of the other material that was before the court.  Mr Rawle said that he felt that anybody who had seen those documents would be in a similar position.[103]

   [103] ts 38, Hearing of the Appeal, 20 September 2021.

4. This is a recitation of Ground 2 which I have dismissed for the reasons given in section 6.4.

5. Mr Rawle argues that there was no evidence upon which the magistrate could properly have come to her conclusion that he perpetrated family violence against Mr Calvar in the form of coercive and controlling behaviour.[104]  To this extent Mr Rawle raises the duty of the judge hearing this appeal to reconsider the evidence before the magistrate.

   [104] Reasons for Decision [43].

6. I turn now to reconsider the evidence before the magistrate.

8.2     The evidence before the magistrate

8.2.1  Mr Calvar's evidence at the hearing

1. Mr Calvar gave evidence that he met Mr Rawle in around May 2018 in Sydney when Mr Rawle hired him for a job at a bar called World Bar.  Mr Calvar was 19 at the time, Mr Rawle in his early thirties.[105]  Mr Rawle was the licensee and Mr Calvar's boss.[106]

   [105] ts 18, Final Order Hearing, 1 December 2020.

   [106] ts 18, Final Order Hearing, 1 December 2020.

2. Mr Rawle and Mr Calvar lived together for a period of time in Sydney, which Mr Calvar described as including lots of fights, arguments, a lot of drugs and was 'toxic'.[107]  Mr Calvar described suffering his own mental health issues including trying to kill himself.  Mr Calvar described the circumstances of him moving to Port Hedland where Mr Rawle had moved because of Mr Rawle's threats of suicide.[108]

   [107] ts 19, Final Order Hearing, 1 December 2020.

   [108] ts 19 - ts 20, Final Order Hearing, 1 December 2020; Exhibit 2.

3. Mr Calvar gave evidence that having moved to Port Hedland he and Mr Rawle lived together in different accommodation.  Mr Rawle would send him messages saying that there was someone at the front of the house when there was not and that Mr Rawle was trying to isolate him.[109]

   [109] ts 22, Final Order Hearing, 1 December 2020.

4. Mr Calvar gave evidence that whilst he and Mr Rawle initially shared a bed, when they had their own place they had separate beds but there were times when Mr Rawle would ask to sleep with Mr Calvar.  Mr Calvar's evidence was that he would say no and Mr Rawle would knock and say the same thing and Mr Calvar would say no again, following which Mr Rawle threw the furniture around.  This scared Mr Calvar so he let Mr Rawle sleep next to him.[110]

   [110] ts 22, Final Order Hearing, 1 December 2020.

5. Mr Calvar gave evidence, in summary, that he wanted to break the lease he had with Mr Rawle.  He tried to call Mr Rawle and ask him to break the lease; Mr Rawle refused to do so.

6. On 5 or 6 April 2020, or thereabouts, Mr Rawle sent Mr Calvar a text message informing Mr Calvar that he had been to the police station, at that stage for 'informal advice', alleging that Mr Calvar had sexually assaulted Mr Rawle.  In that text message Mr Rawle informed Mr Calvar that he was advised by the police that a 'possible course of action would be to discuss the incident together and come to an understanding on how to move forward if I felt that what happened was not assault' and stating that the police urged Mr Rawle to report it formally if he believed it was an offence.  Mr Rawle ended the message by stating that 'I'm asking you if you would like to discuss these incidents further, so that I can make an informed decision'.[111]  As a result of that text Mr Calvar went to talk to Mr Rawle and they had pizza together and Mr Rawle brought up that Mr Calvar had potentially raped him.[112]

   [111] Exhibit 4, Final Order Hearing, 1 December 2020.

   [112] ts 25, Final Order Hearing, 1 December 2020.

7. On 8 April 2020, Mr Rawle sent Mr Calvar a 14‑page email called 'The light between us' documenting 'the last two years of us'.  The email states: 'In a few days time it's been exactly two years since we met and became friends'.  The email then depicted 'the tragic story of a man that fell in love with a boy'.[113] The email documented, using barely veiled third person personas, the relationship between Mr Rawle and Mr Calvar over the past two years.[114]  The story of 'Andre and James' reflected in the email, was Mr Calvar said, clearly the story of Andy (Mr Rawle) and Josh (Mr Calvar).

   [113] Exhibit 9, Final Order Hearing, 1 December 2020.

   [114] ts 41, Final Order Hearing, 1 December 2020; Exhibit 9.

8. Having left the accommodation he had shared with Mr Rawle, Mr Calvar filed a family violence report on 13 April 2020.[115]

   [115] ts 23, Final Order Hearing, 1 December 2020; Exhibit 3.

9. Mr Calvar stated that he had applied for a FVRO because:[116]

   I knew he [Mr Rawle] was never going to let me go, he was never going to get over me, he was never going to move on.

   [116] ts 26, Final Order Hearing, 1 December 2020.

10. Mr Calvar gave evidence that he did not wish to have any contact with Mr Rawle,[117] that by reason of the things that Mr Rawle was telling him, for example, that Mr Calvar was a liar, a psychopath and an abuser, Mr Calvar would do things that he did not want to do.  Mr Calvar gave evidence that he would do sexual acts with Mr Rawle, not because he wanted to do them but because he was trying to be a good friend and that Mr Rawle had told him that a good friend would do anything for a friend.[118]

    [117] ts 15, Final Order Hearing, 1 December 2020.

    [118] ts 15, Final Order Hearing, 1 December 2020.

11. Mr Calvar gave evidence that he felt Mr Rawle manipulated him into sexual acts with him and that Mr Rawle controlled him.[119]  Mr Calvar said that Mr Rawle gave him drugs and he (Mr Calvar) would drink too much, take Xanax and pass out.  Mr Calvar gave evidence that he would then wake up with his pants off with Mr Rawle telling him that Mr Calvar had come on to him when Mr Calvar had no recollection of anything, including taking his pants off, except passing out.[120]

    [119] ts 15, Final Order Hearing, 1 December 2020.

    [120] ts 15, Final Order Hearing, 1 December 2020.

12. Mr Calvar gave evidence that Mr Rawle would want Mr Calvar to talk to him about Mr Rawle's mental health and that when Mr Calvar had to go to bed as he had to be up at six am to work Mr Rawle would get upset with him and tell him that Mr Calvar should not go to work because Mr Calvar should be with Mr Rawle to help him with his mental health.[121]

    [121] ts 16, Final Order Hearing, 1 December 2020.

13. Mr Calvar tendered a 16‑page letter written by Mr Rawle to him,[122] hand delivered to Mr Calvar's work in around April 2020, as evidence that Mr Rawle was obsessed with him and that Mr Rawle was never going to let Mr Calvar go. I return to that letter in a moment.

    [122] Exhibit 5, Final Order Hearing, 1 December 2020.

14. On 29 September 2020 Mr Rawle emailed Mr Calvar through his solicitor notification that Mr Rawle had made a report to the police about publications allegedly made by Mr Calvar that Mr Rawle considered to be defamatory of him.[123]

    [123] ts 33 - ts 34, Final Order Hearing, 1 December 2020; Exhibit 6.

15. In email correspondence from Mr Rawle to Mr Calvar's lawyer, copied to Mr Calvar, Mr Rawle wrote that he would be seeking damages for what Mr Rawle alleged were false statements contained in Mr Calvar's affidavit.  Mr Calvar gave evidence that he took this action of Mr Rawle to be a threat.[124]

    [124] ts 36 - ts 37, Final Order Hearing, 1 December 2020; Exhibit 7.

16. Mr Calvar gave evidence that Mr Rawle filed defamation proceedings against him on 6 October 2020.[125]

    [125] ts 48, Final Order Hearing, 1 December 2020.

17. On 22 October Mr Rawle emailed Mr Calvar's lawyer, copied to Mr Calvar stating:[126]

    Given that I did not hear from you or your client, I have advised police to continue their investigation of sexual assaults.

    [126] ts 36 - ts 37, Final Order Hearing, 1 December 2020; Exhibit 7.

18. Mr Calvar tendered other emails received from Mr Rawle after the filing of Mr Calvar's application for a FVRO.

19. Mr Calvar gave evidence that his understanding, in summary, of all of the correspondence from Mr Rawle, together with Mr Rawle filing his own application for a FVRO against Mr Calvar, was to continue contact with Mr Calvar, to make him continue to talk to Mr Rawle 'to work this out'.[127]

8.3     The findings of the magistrate

[127] ts 40, Final Order Hearing, 1 December 2020.

1. The learned magistrate's findings of fact are set out comprehensively in her reasons for decision dated 13 January 2021.

2. The findings by the magistrate of Mr Rawle's controlling and coercive behaviour were based on the magistrate's assessment and weighing of the evidence including the 18 exhibits and Mr Calvar's evidence.[128]

   [128] Reasons for Decision [43].

3. The magistrate set out the evidence of Mr Calvar of the controlling and coercive behaviour of Mr Rawle included:[129]

   (a)Threats of suicide by Mr Rawle to coerce Mr Calvar to remain with him and continue the relationship;

   (b)Manipulation and emotional control to force Mr Calvar to continue conversations he did not wish to participate in;

   (c)Repetitive requests and emotional outbursts, including throwing furniture, to coerce Mr Calvar to allow Mr Rawle to sleep with him;

   (d)Emotional manipulation in claiming the applicant was not being a good enough friend;[130]

   (e)Controlling the applicant by denying him other friendships;

   (f)Maintaining they were simply friends whilst treating the applicant like a boyfriend; and

   (g)Causing the applicant to doubt his own beliefs and feelings (colloquially known as gas lighting).

   [129] Reasons for Decision [28].

   [130] ts 19, Final Order Hearing, 1 December 2020.

4. Paragraph 39 of the learned magistrate's reasons read:

   The mental manipulation of the applicant [a reference to Mr Calvar] by the respondent [a reference to Mr Rawle] is evident in particular in the handwritten letter of Mr Rawle [exhibit 5] and the emails and letters sent by the respondent [Mr Rawle] between 19 September and 26 October 2020 [exhibit 6, 7 and 8].

5. It is plain from reading her Honour's reasons in their entirety, including the full text of [39], that her Honour's conclusions about the mental manipulation of Mr Calvar by Mr Rawle was founded on the oral evidence of Mr Calvar, together with the handwritten letter Mr Rawle wrote to Mr Calvar (exhibit 5) and the emails and letters sent by Mr Rawle to Mr Calvar's counsel Mr Barker (exhibits 6, 7 and 8), some of which were copied to Mr Calvar.

8.4     The magistrate's findings on demeanour and credibility

1. The thrust of Mr Rawle's cross‑examination of Mr Calvar was that he (Mr Calvar) had previously lied to police and to the court and therefore his evidence was unreliable.[131]

   [131] Reasons for Decision, 13 January 2021, [29] - [38].

2. Mr Rawle also sought in his cross‑examination to demonstrate that it was he (Mr Rawle) who was the victim of acts of family violence at the hands of Mr Calvar.[132]  That position was maintained by Mr Rawle despite Mr Rawle withdrawing his application for a FVRO against Mr Calvar on the morning of the final order hearing.

   [132] ts 85; Final Order Hearing, 1 December 2020.

3. The magistrate's decision, based on the oral evidence of Mr Calvar, together with the exhibits, involved findings of the credibility of Mr Calvar as a witness.

4. Her Honour considered that Mr Calvar impressed as immature.  Her Honour assessed Mr Calvar's evidence, which she considered was 'confused,' against the context that he was 18 at the time he met Mr Rawle who was then approximately 32 years of age and as Mr Calvar's employer/manager, was in a position of power over Mr Calvar and in a position of trust in respect of Mr Calvar.

5. Her Honour's assessment of the credibility and reliability of Mr Calvar's evidence was viewed, properly, in the context of his maturity and the context of his age, and vulnerability in respect of Mr Rawle.

6. Her Honour further noted that the use of illicit drugs and alcohol were a significant factor throughout the relationship and that may well have been a factor which went to Mr Calvar's lack of memory as to when and how incidents occurred.[133]

   [133] Reasons for Decision, 13 January 2021, [30].

7. Her Honour concluded that Mr Calvar had not deliberately lied about the nature of his relationship with Mr Rawle, having told the real estate agent and the court that he and Mr Rawle were roommates and friends only but having told police that they were in an intimate relationship.[134]

   [134] Reasons for Decision, 13 January 2021, [30].

8. What Mr Calvar in fact told the court on his initial application for a FVRO was that any relationship with Mr Rawle and any intimacy between him and Mr Rawle was only agreed to by him under duress from Mr Rawle.

9. Her Honour found that having separated himself from Mr Rawle for a time, and having explained the situation to police and others, Mr Calvar was able to identify for himself the abuse that he was suffering at the hands of Mr Rawle.

10. Her Honour concluded that it was not, therefore, a situation where Mr Calvar had deliberately lied about the nature of the relationship with Mr Rawle, but one where he 'readily accepted the complexion placed upon it by others'.[135]

    [135] Reasons for Decision, 13 January 2021, [36].

11. Her Honour noted that this was perhaps 'a further indication of Mr Calvar's immaturity and susceptibility to manipulation which might be readily exploited by someone older and wiser'.[136]

    [136] Reasons for Decision, 13 January 2021, [36].

12. Her Honour concluded that the confusion demonstrated by Mr Calvar in his evidence did not reflect upon his honesty or reliability and that his confusion 'is demonstrative of the complex emotional factors arising from coercion, control and fear'.[137]

8.5     Reconsideration of the evidence

8.5.1 Review of Mr Calvar's evidence at the final order hearing

[137] Reasons for Decision, 13 January 2021, [38].

1. Having reviewed the evidence of Mr Calvar about the nature of the relationship, unchallenged by Mr Rawle, I am satisfied that the parties were in a 'family relationship' for the purposes of s 4(2) of the ROA at the relevant time.

2. I come to that conclusion having regard to the unchallenged evidence of Mr Calvar that:

   •The parties lived together in various places over a period of time.

   •That included sharing a bed together for extended periods.

   •When not sharing a bed together there were times that Mr Rawle would come to Mr Calvar's room to ask to sleep with him.[138]

   •When Mr Calvar said no Mr Rawle would knock again and when told no again Mr Rawle threw furniture around.  This scared Mr Calvar and Mr Calvar allowed Mr Rawle to sleep next to him.[139]

   •Acts of sexual intimacy took place between the parties, often in the context of Mr Calvar taking drugs.

   •Mr Calvar was supplied drugs by Mr Rawle.

   •Mr Calvar drank alcohol, took Xanax and then passed out to awaken with his pants off and Mr Rawle informing him that Mr Calvar had come on to him.[140]

   •That each was co-dependent on the other, and that the actions of one affected the life of the other.

   [138] ts 22, Final Order Hearing, 1 December 2020.

   [139] ts 22, Final Order Hearing, 1 December 2020.

   [140] ts 15, Final Order Hearing, 1 December 2020.

3. Much of Mr Calvar's oral evidence was not challenged by Mr Rawle at the final order hearing.  Mr Rawle's cross‑examination tended to try and establish that the two men were only friends, notwithstanding the concession that the parties were in a 'family relationship' for the purposes of the ROA.

4. Mr Rawle's cross‑examination also tended to try and establish that it was he who was the victim of acts of family violence at the hands of Mr Calvar and not the other way around.  This was despite Mr Rawle withdrawing his application for a FVRO against Mr Calvar on the morning of the final order hearing.

5. Much of Mr Calvar's oral evidence was supported by the exhibits tendered at the final order hearing.  Following from the magistrate's findings in respect of Mr Calvar's evidence at par 191 above with which I agree, I note the following:

   (i)Paragraph 191(a) is supported by exhibit 2 at trial[141] and was unchallenged by Mr Rawle at the final order hearing.

   (ii)Paragraph 191(b)[142] is supported by exhibits 4, 6 and 7 at trial and was unchallenged by Mr Rawle at the final order hearing.

   (iii)Paragraph 191(c) was unchallenged by Mr Rawle at the final order hearing.[143]

   (iv)Paragraph 191(d)[144] is supported by exhibit 5.

   (v)Paragraph 191(e) is unchallenged by Mr Rawle at the final order hearing.

   [141] ts 20 - ts 21, ts 74, ts 91 - ts 92, Final Order Hearing, 1 December 2020.

   [142] ts 24 - ts 25, ts 34 - ts 35, ts 36 - ts 37, ts 40, Final Order Hearing, 1 December 2020.

   [143] ts 22, Final Order Hearing, 1 December 2020.

   [144] ts 19; ts 26, Final Order Hearing, 1 December 2020.

6. The evidence of Mr Calvar in respect of par 191(f) was somewhat confused.[145]  Mr Rawle cross‑examined Mr Calvar to the effect that he (Mr Rawle) had never said at any point that he and Mr Calvar were in a relationship with each other, that Mr Rawle had always said he was a friend and Mr Calvar believed that Mr Rawle was his friend.[146]  Mr Calvar agreed with those propositions.

   [145] ts 60, Final Order Hearing, 1 December 2020.

   [146] ts 52 - ts 53; ts 60, Final Order Hearing, 1 December 2020.

7. Mr Calvar's evidence was that it was not a relationship like a boyfriend type of relationship but looking back on it, 'it typically was that'.[147]  

   [147] ts 60, Final Order Hearing, 1 December 2020.

8. Mr Calvar gave evidence that Mr Rawle had driven him places, lent him money and had become upset when Mr Calvar was spending time with other friends.

9. Mr Calvar gave evidence about the acts of sexual intimacy between them, often in the context of illicit drug use and (Mr Calvar's) intoxication with alcohol.

10. Mr Calvar expressly referred in his evidence to the declarations of love expressed to him by Mr Rawle in exhibit 5 and implicit in exhibit 9[148] which is headed: 'This is the tragic story of a man that fell in love with a boy'.

    [148] ts 88 - ts 89, Final Order Hearing, 1 December 2020.

11. Mr Calvar clarified that whilst from his side he believed he and Mr Rawle were only friends, albeit with a sexual relationship, Mr Calvar started (over time) to see that it was not just friendship because of the letters that Mr Rawle sent him telling him that he was his soulmate, saying that he loves him and saying that he will never get over him[149] and the email documenting 707 days of their 'friendship'.[150] 

    [149] ts 88 - ts 89, Final Order Hearing, 1 December 2020; Exhibit 5.

    [150] ts 89, Final Order Hearing, 1 December 2020; Exhibit 9.

12. I am satisfied that any apparent confusion by Mr Calvar in the label attributed to his relationship with Mr Rawle is explicable on the basis that what the parties in fact shared was not the label they gave openly in public or the label they acknowledged formally between themselves.

1. Having read the transcript, whilst Mr Calvar may have said on occasions that he was confused, some of those occasions can be attributed to confusion about dates,[151] the manner in which the questions were asked by Mr Rawle,[152] the multiplicity of some of Mr Rawle's questions[153] and the interjections.[154]

   [151] For example, ts 69, ts 73, Final Order Hearing, 1 December 2020.

   [152] For example, ts 59, Final Order Hearing, 1 December 2020.

   [153] For example, ts 64, Final Order Hearing, 1 December 2020.

   [154] For example, ts 59, Final Order Hearing, 1 December 2020.

2. Having regard to the entirety of his oral evidence, in my opinion Mr Calvar maintained his evidence that he was isolated and manipulated by Mr Rawle, that he feared that Mr Rawle was never going to let him go, that Mr Rawle was never going to get over him and that Mr Rawle was never going to move on.[155]

   [155] ts 26, Final Order Hearing, 1 December 2020.

3. Mr Calvar's evidence was, in substance, consistent with his assertions that Mr Rawle had acted in a coercive, manipulative and controlling manner.  That evidence was not successfully challenged in cross‑examination by Mr Rawle.

4. To the extent that Mr Calvar was unable to put a definitive label on the relationship between him and Mr Rawle, or that he at times defined their relationship as one of friendship, it is not inconsistent with the blurred nature of the relationship.  Ultimately both parties accepted at the final order hearing that they were in a family relationship.

5. The magistrate gave careful consideration to her findings in respect of the credibility of Mr Calvar's evidence.  The magistrate was in the best position to see and assess Mr Calvar as he gave his evidence.  Mr Rawle has not satisfied me that the magistrate erred in her findings about Mr Calvar's credibility and the reliability of his evidence.

6. I do not see any basis for determining that the magistrate's assessment of the credibility and reliability of Mr Calvar ought to be overturned.

7. The totality of the oral evidence of Mr Calvar, supported by exhibits 5 and 9, are capable of leading to a finding that Mr Rawle loved Mr Calvar, was obsessed with Mr Calvar, and struggled when their relationship ended.  The behaviour of Mr Rawle in attempting to further control and manipulate Mr Calvar is evident from exhibits 6, 7 and 8.

8. The magistrate's conclusion that the exhibits tendered by Mr Calvar do demonstrate 'the type of emotional manipulation'[156] exerted by Mr Rawle towards Mr Calvar is a conclusion open on those exhibits.

8.5.2  Review of the exhibits before the magistrate

[156] Reasons for Decision, 13 January 2021, [30].

1. It is necessary to say something briefly and, separately, about the exhibits tendered at the trial.  The magistrate's decision was based on a combination of Mr Calvar's evidence and the exhibits tendered at trial.  I have considered and read all of the exhibits tendered at trial.  To the extent that I fail to mention any exhibit particularly, that is not to suggest that I have not taken all exhibits into account.  It is not necessary to refer to all of them.

2. Exhibit 2 is a series of text messages between the parties from 3 November 2019.  In those messages Mr Rawle threatened to commit suicide and Mr Calvar tried to persuade him not to.  In the messages Mr Rawle said:

   I just don't want to be alive anymore. No one gives a fuck. I'm done mate.  Its just too much … I'll call you to say goodbye shortly.

   And

   I can't listen to it anymore, you gave it away.

3. Exhibit 5 is a 16‑page handwritten letter from Mr Rawle[157]  delivered to Mr Calvar's workplace on or around 20 April 2020.  That letter is headed 'To the greatest friend I have ever known Josh' signed 'your loving friend Andy'.   In that letter Mr Rawle said to Mr Calvar:

   [157] Exhibit 5, Final Order Hearing, 1 December 2020.

   (a)that Mr Calvar had 'abandoned' their friendship;

   (b)that he (Mr Rawle) 'broke down, and you chose not to help me';

   (c)'It pains me so much to know that after everything I have done for you, as a friend, you couldn't give me five minutes when I was at my lowest';

   (d)that Mr Calvar was the reason Mr Rawle had never killed himself, 'you are the person I was waiting for';

   (e)'I wanted you to succeed in your life more than I have in mine - because I cared for and loved you so much more than I cared for or loved myself. You were always my priority';

   (f)'In every sense of the word, I love you in every way';

   (g)'I love the real you';

   (h)'I love you so much Josh';

   (i)'I will always be here for you, I will always love you and I will always hope that one day you want to reconnect';

   (j)'My friendship with you was honestly the best thing that has ever happened in my shitty life and I will never get over you not least because you never explained why';

   (k)'You walked out on our friendship.  I know that the next 30 years of my life will be spent fighting the demons of why I lost you'; and

   (l)'You are my soul mate you always have been and always will be - and I will never find another'.

4. That letter demonstrates the intensity of Mr Rawle's feelings for Mr Calvar, it informs Mr Calvar that he was the reason why Mr Rawle never killed himself and that was because Mr Rawle was waiting for Mr Calvar.  Mr Rawle declares in that letter that he loves Mr Calvar 'in every way'.  That letter also demonstrates emotional manipulation by Mr Rawle in telling Mr Calvar that he had abandoned him and that he had done so having witnessed Mr Rawle reach breaking point.

5. The intensity of Mr Rawle's feelings for Mr Calvar is demonstrated in several parts of that letter, for example:[158]

   My friendship with you was honestly the best thing that has ever happened in my shitty life and I will never get over you, not least because you never explained why you walked out on our friendship.  I know the next 30 years of my life will be spent fighting the demons of why I lost you.

   And:[159]

   You are my soulmate, you always have been and always will be and I will never find another.

   [158] Exhibit 5, page 13.

   [159] Exhibit 5, page 16.

6. On 19 September 2020 Mr Rawle wrote to Mr Calvar's solicitor, Michael Barker.[160]  In that correspondence Mr Rawle informed Mr Barker that because of issues he was experiencing at the hands of Mr Calvar, he had been left with 'little option but to reapply for a restraining order'.  Mr Rawle then said:

   You may or may not be aware that I have also provided a statement to WA police regarding two sexual assaults and a physical assault your client committed against me in NSW … WA police have passed this information to NSW police … who are in the process of investigating this matter, prior to what I understand will shortly be a warrant issued for his arrest in NSW, which will be carried out by WA Police.  I would be grateful if you would contact me in person, as soon as practicable, so that I can propose an amicable way forward for both of us.  I have sought legal advice and will be engaging a lawyer on Monday.  I am happy to discuss with you prior to that my proposal.

   [160] Exhibit 6, Final Order Hearing, 1 December 2020.

7. Subsequent correspondence from Mr Rawle to Mr Barker, copied to Mr Calvar, variously threatened Mr Calvar with making a false report to the police, advising Mr Barker that he (Mr Rawle) had recorded a conversation he had had with Mr Calvar on 6 April 2020 to prove that Mr Calvar's attempts at breaking the lease and the subsequent application for a FVRO are 'fabricated and false',[161] and serving a Concerns Notice on Mr Calvar for defamation.[162]

   [161] Exhibits 7 and 8, Final Order Hearing, 1 December 2020.

   [162] Exhibit 7, Final Order Hearing, 1 December 2020.

8. The emails at exhibits 6, 7 and 8 are capable of demonstrating Mr Rawle's continued attempts to have Mr Calvar discuss matters with him, and to mediate the FVRO.  Those emails variously carry with them the implicit threats that Mr Rawle will pursue his complaints of sexual assault allegations to police and that Mr Rawle will pursue defamation proceedings against Mr Calvar unless in effect, Mr Calvar meets with and mediates with Mr Rawle.

9. Those emails demonstrate Mr Rawle's continued manipulation of Mr Calvar after Mr Calvar had lodged his application for a FVRO against Mr Rawle.

10. My review of exhibits 2, 4, 5, 6, 7 and 8 lead me to conclude that there was ample evidence from which the magistrate could conclude, together with the oral evidence of Mr Calvar, that Mr Calvar was manipulated and coerced by Mr Rawle.

11. I consider that exhibit 9, whilst not expressly referred to by her Honour in her Reasons for Decision, is also evidence of the nature of the intensity of Mr Rawle's feelings for, and preoccupation with, Mr Calvar.

12. As the learned magistrate noted, Mr Rawle did not give evidence as was his right.  There was, accordingly, no evidence that the behaviour of Mr Rawle, as attested to by Mr Calvar and as reflected in the exhibits, was anything other than deliberate.

13. The totality of the evidence is sufficient to support the magistrate's findings that Mr Rawle engaged in acts of manipulation and coercion in respect of Mr Calvar.

8.6     Conclusions

1. The approach to be taken on appeal is not to substitute my own decision but to determine whether there was any error made by the magistrate in reaching her conclusion.    There is nothing in the learned magistrate's findings of fact that have been demonstrated to be wrong by 'incontrovertible facts or uncontested testimony'.  None of the magistrate's finding of fact are 'glaring improbable' or 'contrary to compelling inferences'.[163]

   [163] Robinson Helicopter Company Inc v McDermott.

2. Mr Rawle has not demonstrated that the magistrate erred in reaching her conclusion.

3. The appeal is dismissed.

1. Orders

1. Mr Rawle's appeal against the magistrate's final orders made 13 January 2021 is dismissed.

2. As both parties were not legally represented on this appeal, there will be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

JC

Associate to the Judge

22 MARCH 2022