Seah v MacINTYRE - [2010] WADC 186

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SEAH -v- MacINTYRE [2010] WADC 186

CORAM: SWEENEY DCJ

HEARD: 17 NOVEMBER 2010

DELIVERED : 15 DECEMBER 2010

FILE NO/S: APP 49 of 2010

BETWEEN: EDMOND KAN HWEE SEAH
Appellant
AND
BRADLEY STEVEN JAMES MacINTYRE
Respondent

Catchwords:

Violence restraining order - Sufficiency of the evidence - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004
Restraining Orders Act 1997

Result:

Appeal allowed - violence restraining order quashed

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: Not applicable
Respondent: Not applicable

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

Butler v Bennett [2007] WADC 107

SWEENEY DCJ: On 11 June 2010, following a hearing and the taking of evidence, his Honour Magistrate Tavener granted mutual violence restraining orders protecting the respondent from the appellant and vice versa. Partway through the hearing, the respondent consented to such an order being made against him, but the appellant objected and now appeals against that order. Both parties were unrepresented before his Honour and still are.

The nature of the appeal

This court's powers are contained within s 45 of the Magistrates Court (Civil Proceedings) Act 2004. The appeal is by way of rehearing: Butler v Bennett [2007] WADC 107. It is therefore necessary for the appellant to demonstrate error in the court below. I must decide the appeal on the material and evidence that was before his Honour.
This court will not interfere with the decision of the court below merely because it disagrees with the conclusion reached but, if it is established that his Honour acted upon a wrong principle, or allowed extraneous or irrelevant matters to impact upon his judgment, or failed to take into account some material consideration, then the judgment should be reviewed and this court may substitute its decision for that of the court below.

The ground of appeal

The appellant had a single ground of appeal to the effect that:
No reasonably instructed judge or magistrate with the evidence before the court could reasonably find that an act of family and domestic violence had occurred, namely the acts of intimidation and abuse pursuant to s 6(e) and s 6(f), namely causing a person to be pursued or that a threat to kill had occurred.
That ground was misconceived. The connection between the parties is that the appellant is the former de facto husband of Ms Ousby and they have children together. The respondent is Ms Ousby's current de facto husband and they also have children together. The children from both relationships therefore are related by blood and Ms Ousby and the appellant remain connected by their children.
Section 4(1) of the Restraining Orders Act 1997 provides:
4. Term used: family and domestic relationship
(1)In this Act —
family and domestic relationship means a relationship between 2 persons —
(a)who are, or were, married to each other;
(b)who are, or were, in a de facto relationship with each other;
(c)who are, or were, related to each other;
(d)one of whom is a child who —
(i)ordinarily resides, or resided, with the other person; or
(ii)regularly resides or stays, or resided or stayed, with the other person;
(e)one of whom is, or was, a child of whom the other person is a guardian; or
(f)who have, or had, an intimate personal relationship, or other personal relationship, with each other.
It is clear from that definition then that, while the appellant and Ms Ousby are in a family and domestic relationship, as are the respondent and Ms Ousby, the appellant and the respondent are not in a family and domestic relationship. Consequently the provisions of the Act relating to acts of 'family and domestic violence' have no application to this matter. In any event, as will emerge from my reasons below, his Honour made no finding that the appellant had committed an act of 'family and domestic violence'.
In discussions with the appellant, it emerged that the appellant's real complaint is that the evidence did not justify the making of a violence restraining order against him. During the course of argument, further complaints emerged to the effect that the learned magistrate reached his conclusion prior to having heard all of the evidence, prevented certain evidence from being explored, said that a violence restraining order was 'nothing' and also acted upon an erroneous basis that, if one party was to be successful in obtaining a violence restraining order against the other, then it followed that the other party must also succeed.
Given that the parties were unrepresented and given that no prejudice results to the respondent by my considering all of these arguments, I gave leave to amend the ground of appeal to capture the essential complaint that the evidence before the court did not justify the making of the order. I intend to regard the various other complaints as particulars of that ground.

The court's power to make a violence restraining order

The court's powers are contained in s 11A Restraining Orders Act 1997:
11A. When violence restraining orders may be made
A court may make a violence restraining order if it is satisfied that —
(a)the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected,
and that making a violence restraining order is appropriate in the circumstances.
The court is also to have regard to various matters set out in s 12:
12. Matters to be considered by court
(1)When considering whether to make a violence restraining order and the terms of the order a court is to have regard to —
(a)the need to ensure that the person seeking to be protected is protected from acts of abuse;
(b)the need to prevent behaviour that could reasonably be expected to cause fear that the person seeking to be protected will have committed against him or her an act of abuse;
(ba)the need to ensure that children are not exposed to acts of family and domestic violence;
(c)the wellbeing of children who are likely to be affected by the respondent’s behaviour or the operation of the proposed order;
(d)the accommodation needs of the respondent and the person seeking to be protected;
(da)the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or persons as are before the court or not;
(e)hardship that may be caused to the respondent if the order is made;
(f)any family orders;
(g)other current legal proceedings involving the respondent or the person seeking to be protected;
(h)any criminal record of the respondent;
(i)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise; and
(j)other matters the court considers relevant.
(2)A court is to have regard to the matters set out in subsection (1)(a), (b), (ba) and (c) as being of primary importance.
(3)In having regard to the matters set out in subsection (1)(da), a past history of applications under this Act is not to be regarded in itself as sufficient to give rise to any presumption as to the merits of the application.
The factors to which the court is to have regard however do not override the necessity to prove those matters set out in s 11A which give the court power to make the order. The standard of proof applicable is the 'balance of probabilities'.
So there are two means by which a person seeking an order may meet s 11A: the first is by proving that the person he wishes restrained has committed an 'act of abuse' as defined in the Act and then, in addition, proving that the respondent is likely again to commit such an act against him.
The second and alternative means is by proving that he reasonably fears that the person he wishes restrained will commit an act of abuse against him. This does not require him to prove that the person he wishes restrained has previously committed any act of abuse.
Whichever limb the person seeking the order satisfies, then additionally the court must be satisfied that it is appropriate to make a violence restraining order in all of the circumstances and, in doing so, the court will have regard to all of the factors set out in s 12.
The words 'act of abuse' do not mean simply abusive behaviour as a layman understands it. They are defined by the Act. Because the parties were not in a domestic and family relationship, an 'act of abuse' is defined to mean 'an act of personal violence' (s 3) which, in turn, is also defined. Section 6(2) of the Act provides:
6. Terms used: act of family and domestic violence and act of personal violence
(2)In this Act —
act of personal violence means one of the following acts that a person commits against another person with whom he or she is not in a family and domestic relationship —
(a)assaulting or causing personal injury to the person;
(b)kidnapping or depriving the person of his or her liberty;
(c)pursuing the person or a third person, or causing the person or a third person to be pursued —
(i)with intent to intimidate the person; or
(ii)in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person;
(d)threatening to commit any act described in paragraph (a) or (b) against the person.

The hearing

In his application to the court for a violence restraining order against the appellant, the respondent asserted three things:
1.That on 11 April 2010 at 11.30 pm an act of intimidation was perpetrated by associates of the appellant at the respondent's place of residence;
2.That the appellant had been abusive, by insulting the respondent about his conditions, described as depression and anxiety; and
3.That the appellant's daughter had witnessed the appellant threatening the respondent's life, by saying 'You're dead'.
The second of those allegations, that the appellant had been abusive and insulting, would not be sufficient to amount to an 'act of personal violence' as defined. The first, however, might be described as 'pursuing' the respondent within the definition of 'act of personal violence' if it were proved that the appellant had counselled or procured those involved to commit such an act. The third allegation would also fall within the definition of 'act of personal violence' by way of a threat to commit an assault.
There were then two 'acts of personal violence' alleged in the respondent's application to the court. There was no suggestion that the appellant had assaulted the respondent, nor caused him any personal injury (nor that he had kidnapped him or deprived him of his liberty).
As to the first alleged incident, the respondent gave evidence before his Honour that on 11 April 2010 the appellant had sent 'some of his goons' around (ts 17). In cross‑examination the respondent explained that he was ill in bed and was later informed by Ms Ousby that, when the appellant arrived to pick up his children, he was dropped off by three friends and that he was then abusive and aggressive to her. The respondent said he heard that confrontation and came out of his bedroom and into the front yard to bring her inside. The appellant's cross‑examination of the respondent about that incident was stopped by his Honour and I consider that was because his Honour had already reached the view that the incident was not something he intended to place any weight upon.
On the respondent's description of that incident, it would not fall within the definition of an 'act of pursuit' and hence would also not fall within the definition of 'an act of personal violence'. At its highest, it was simply an aggressive interchange between the appellant and Ms Ousby.
Ms Ousby also gave evidence purportedly about this same incident (ts 28). She said that she and the respondent were watching TV when the respondent heard a loud noise and she followed him out the door and saw a white Ford reversing and it did a big burnout and there was screaming. She said she could not hear what they were saying and then the car took off. She said such an incident had never occurred before and she suspected that the appellant may have been involved.
Quite apart from the glaring inconsistencies between those two accounts, which hardly seem to be the same incident, there was simply no evidence from Ms Ousby connecting the appellant to the white car and the incident as described falls well short, in any event, of constituting an act of pursuit.
His Honour paid no regard to this alleged incident. He rightly characterised the evidence as amounting to hearsay and speculation (ts 28). His Honour remarked (ts 33) 'I take no notice of that incident because we're going nowhere with that one'. His Honour made no finding that the incident amounted to an 'act of personal violence' and it is apparent that this was not the basis of the violence restraining order granted against the appellant. That then was the first of the respondent's allegations in effect dismissed.
The second allegation made in the respondent's application to the court was that of a death threat made by the appellant and apparently witnessed by his daughter.
Prior to going into evidence, while his Honour was questioning him generally, the respondent asserted (ts 8) that on 8 April 2010 the appellant told him that he was a 'dead man'. He said the appellant's daughter was sitting right next to the respondent when it was said. He asserted that the threat had been preceded by 27 phone calls over 45 minutes. My understanding of his allegation is that the alleged threat was also made during a telephone call. His Honour stopped the respondent at that point, informing him that the matter would need to be the subject of evidence.
The appellant gave evidence that, on 8 April 2010, he did repeatedly call the respondent because he wanted to speak to his children and kept calling until that occurred, although he could not recall how many times he rang (ts 16). He found he was placed on speakerphone which he objected to. He accepted that he became angry (ts 14). He said he could not recall if the respondent had asked him to mind his manners but said that, if he had, he would have regarded that as a 'sociopathic thing to ask' (ts 16). Surprisingly, it was not put to the appellant that he had threatened the respondent during the calls. Rather, it was put to him that he had launched into a 'tirade of abuse'. The appellant accepted that he had, during that phone call, called the respondent first a psychopath and then a sociopath. He explained that he regards the respondent as a person who lies compulsively to feel better about himself and to make others feel bad (ts 16).
The respondent himself gave no evidence of the incident. In fairness to him, both parties were often encouraged to not go into detail, an issue I will mention again shortly.
Ms Ousby gave no evidence of any threat made by the appellant towards the respondent on any occasion. Much of her evidence consisted of complaints that the appellant was regularly rude to the respondent and entirely dismissive of him.
Finally, both parties were allowed to play an audiotape they had each made of a different phone call. Unfortunately they were not transcribed and the sound quality is such that they apparently cannot be transcribed. They were not tendered into evidence and there was unfortunately no discussion between his Honour and the parties as to whether or not that ought to occur.
During the hearing before me, the appellant was keen to play his audio‑recording to me so that I could hear it. The respondent, however, did not have his audio‑recording with him and I was not prepared to listen to one recording without being able to listen to both. In any event, the usual procedure in relation to the tendering of exhibits and the preservation of their integrity not having been followed, I considered it inappropriate to hear the recordings again. Had I considered it essential to my reasons to hear the recording I might have invited both parties to consider a further hearing whereby they consented to the tendering of each recording. The respondent, however, objected to my hearing the appellant's recording and in the circumstances I did not do so.
I can, however, draw certain inferences from the transcript. In discussion between the appellant and his Honour, the appellant remarked that his Honour had now heard the conversation and that he, the appellant, cannot be heard saying 'You're a dead man' as was alleged against him. No argument was raised with him on that point. His Honour made no comment about what could or could not be heard during the phone call and the respondent did not counter that the alleged words were audible on the tape.
Given its obvious significance to proceedings for a violence restraining order, I am satisfied that, had his Honour heard the appellant threatening the life of the respondent during that phone call, a specific finding to that effect would have been made. I infer that his Honour heard no such threat in the recording.
His Honour made no finding that a threat had been made during the phone call, or ever. Neither of the respondent's allegations, therefore, was made good.
There was evidence that the appellant had insulted the respondent and been dismissive of him on various occasions however, as previously stated, such behaviour does not amount to an 'act of personal violence' as defined by the Act.
I could find nothing in the transcript to suggest that his Honour made any finding that any 'act of personal violence' had been proved against the appellant. The order was not granted on the basis of the matters set out in s 11A(a) and it was for that reason and because of the misconceived reference to an act of 'family and domestic violence' that I invited the appellant to amend his ground of appeal.
Instead, his Honour relied upon the matters in s 11A(b). His Honour stated (ts 42):
Under the legislation – allow me to finish - - - the court may make a violence restraining order if it is satisfied a person who is seeking to be protected – Mr MacIntyre – (or) a person who has applied for the order on behalf of that person – reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected. Having observed both of you in court, and even your ability to interact through a third party – speak with a third party - I accept Mr MacIntyre has a reasonable belief that you may cause him harm.
The respondent had given evidence that he was 'very much' in fear of the appellant. His Honour must have accepted that evidence and considered the respondent's fear to be reasonably based.
The learned magistrate had the benefit of hearing and seeing the witnesses and also seeing how the parties related to each other. I have the transcript, but I accept that reading a transcript comes a poor second to actually being there. The advantage held by the first instance court which sees and hears the witnesses and tries the facts is to be given significant weight. This court will not lightly interfere with his Honour's findings of fact.
His Honour's findings of fact, however, are very briefly stated. On their face, they fall short of what is required by s 11A(b), which is that the person seeking to be protected have a reasonable fear that the other party will commit an act of personal violence, rather than may do so. There is a significant difference between 'will' and 'may'.

There was also no reference to what significance, if any, his Honour attached to the fact that neither of the respondent's allegations had been made good. This was, with respect, deserving of some comment, given that the respondent's evidence was accepted despite this. His Honour made no comment as to whether the respondent was regarded by him as credible at all, on any aspect of his evidence, over and above the finding I have quoted.
The explanation given as to why the court regarded the respondent's fear as reasonable was very brief, given that there was no evidence that the appellant had ever committed an act of personal violence against the respondent to date, notwithstanding his obvious loathing of him. Section 11A(b) expressly contemplates such a situation of course, but there must be some basis for the fear that an 'act of personal violence' will occur and the fear must be reasonably based.
His Honour's finding that the respondent's belief was reasonable appears to be based exclusively upon his Honour's own observations of the manner in which the two men related to each other during the course of the hearing.
Evidence consists of not only what a witness says, but how he says it. The court is entitled to take into account the demeanour of a witness in assessing his credibility, but with due regard to the circumstances the witness finds himself in, including the anxiety which attaches to court proceedings.
The courtroom environment is not a relaxed and informal one at the best of times. But this was a hearing concerning violence restraining orders and both men had to deal directly with each other through cross-examination, a necessary feature of each being unrepresented, but hardly likely to proceed without tension. The transcript reveals no abusive behaviour on the part of either man, though there was obvious tension. On occasion the respondent belittled the appellant. Neither showed any disrespect to the court at all.
One can only place guarded weight solely on the demeanour of parties in such proceedings. Obviously, a court might itself witness an act of personal violence such as a threat, or other quite uncontrolled behaviour that in its own right tends to confirm that what a party alleges is true. But the court must also bear in mind that being the subject of a false or exaggerated accusation by a loathed acquaintance might also engender some overt hostility, as might a sense of frustration at not being allowed to present one's case fully.
Here, his Honour appears to have accorded the demeanour of the parties such weight as to elevate it to the primary evidence upon which the order was based, such that his Honour regarded the making of findings concerning credibility of the evidence actually given in support of the applications to be unnecessary.
There was ample evidence from which to conclude there existed an enduring atmosphere of tension and hostility between the two men, but the key question is whether there was evidence to justify the finding that the respondent reasonably feared that the appellant would commit an 'act of personal violence' against him.
Before I finally determine that issue, I turn now to the four further matters of which the appellant complains. My view of his main ground is somewhat influenced by the view I take of these issues. They are inextricably connected to each other.
The complaints are that his Honour erred in considering that he could not grant a violence restraining order against one party without granting one against the other, in preventing cross‑examination about the respondent's propensity to violence, in making his decision before hearing all of the evidence and in regarding a violence restraining order as 'nothing', occasioning no prejudice to a party over and above the restraints imposed by the order.
To consider these issues it is necessary to spend a little time examining how the proceedings unfolded. As I do so, I will deal with the appellant's complaints.
His Honour adopted the procedure of first questioning the parties, prior to asking them to give evidence, in order to help 'set the scene'. He questioned the appellant first, asking about the nature of the relationship between the parties, whether any Family Court proceedings had taken place and whether there were any orders in relation to access to the children and what contact there was between the parties.
His Honour then questioned the respondent. The first question asked of the respondent was 'Why do you need the orders to keep you separate?' (ts 8) to which, predictably, the respondent launched into evidence from the bar table about the appellant's conduct, which was then quickly discouraged. Not surprisingly, the appellant then wished to reply to the various allegations and began giving evidence from the bar table. Unfortunately, that somewhat set the tone for the rest of the hearing, with the parties observing no distinction between the giving of evidence on oath and mere submissions or, for that matter, interjections.
Speaking from the bar table however, the respondent alleged that the appellant was an unstable, drug‑addicted alcoholic who had assaulted Ms Ousby in the past and had threatened the respondent within earshot of the appellant's daughter. When asked why he opposed the making of a violence restraining order against him, the respondent explained that when the appellant previously obtained a violence restraining order against him, the appellant had maliciously and falsely alleged that he had breached the order. He also stated that he had been convicted after trial of one count of breaching the order and had been acquitted of another alleged breach.
His Honour then moved to the process of calling evidence. The appellant went first. It is not necessary for me to detail all of his evidence against the respondent, who has not appealed, except to indicate that he did allege that the respondent had physically assaulted him in a quite threatening manner and also denied ever having assaulted the respondent.
The respondent was then allowed to cross‑examine the appellant, encouraged by his Honour to attempt to 'maintain a degree of politeness' (ts 13). The appellant conceded that he had engaged in numerous hostile telephone conversations with the respondent, including having called him a 'sociopath'. A bone of contention between the parties was that he had to contact his children by calling the respondent's mobile phone, there being no landline at the respondent's home and Ms Ousby not owning a mobile phone at that time. For his own part, the appellant refused to provide his children with their own mobile phone, regarding them as too young. The telephone contact between the two men was predictably unpleasant.
At the conclusion of the appellant's evidence there was no evidence before the court that he had ever committed an 'act of personal violence' against the respondent and no evidence that the respondent feared, on reasonable grounds, that he would do so.
The respondent's cross-examination of the appellant extended over some three and a half pages of transcript before, in answer to one of the appellant's answers, the respondent said 'OK, that's your point of view and you're entitled to that' (ts 16). At that point his Honour stopped the cross-examination and stated:
If you sit down, I'll just tell you what I propose at the moment. Mr MacIntyre, just for completeness I'll have you – I'll call you to the witness box and ask you some questions and then I think I could probably come to a ruling but I wanted just a bit more information. (ts 16)
The comments at that point do rather suggest that his Honour had reached a view, or was at least very close to having reached a view, having heard from only one of the parties. The respondent then commenced giving evidence with his Honour questioning him. Very early in his evidence his Honour remarked:
It's clear and I don't know whether I need to hear any more evidence that the two of you, the more contact you have – and I put this to you under oath, the more contact you have with Mr Seah, the more likely there is going to be some – there may be some escalation, the potential of that escalation of trouble between you? (my emphasis)
The respondent replied: 'Yes, especially from him. Sorry, yes' (ts 17). Again, the comment is suggestive that his Honour had all but decided the case at that point. It also tends to confirm that his Honour had lost sight of the need to prove either an act of personal violence coupled with the likelihood of another such act, or a reasonable fear that an act of personal violence will occur, as opposed to might occur.
After a groundless interjection from the appellant that the respondent had not been sworn in, his Honour continued and the following exchange took place (ts 17):
HIS HONOUR: That's all right. So why do you want the order?
MACINTYRE, MR: Because I fear for my life, sir. I fear that if I'm not around my home, he could send some of his goons like he done on 11 April.
HIS HONOUR: So you are in fear of Mr Seah?
MACINTYRE, MR: Very much, sir.
HIS HONOUR: OK. Mr Seah, do you want to ask any questions of Mr MacIntyre, bearing in mind I virtually - - -
SEAH, MR: Yes, your Honour.
HIS HONOUR: I understand the position between you, so there is probably no need to dwell on the specifics.
Although his Honour did not complete his comment, the words 'bearing in mind I virtually …' very much suggest that, from his Honour's perspective, the necessary evidence was already before the court, as does the comment that specifics need not be dwelt upon.
Cross-examination of the respondent then commenced with the appellant questioning him about the alleged incident of 11 April 2010, the focus of the cross‑examination being whether or not the respondent had seen the events he had described. After the respondent said that he had heard the confrontation, his Honour interjected and the following exchange took place (ts 18 ‑ 19):
HIS HONOUR: Okay. I've probably heard enough evidence because I now want to put propositions to you, so if you go back to your seat. I think – I may however hear from Ms Ousby shortly. That might be the – because I will tell you where I am at the moment.
SEAH, MR: Your Honour, what was just told then wasn't true.
HIS HONOUR: That's all right.
SEAH, MR: Sorry, your Honour.
HIS HONOUR: I don't have to – you can both be seated. There's clearly – both of you are clearly of the view that you are at risk of abuse either physical and certainly emotional and certainly even physical abuse from the other one.
MACINTYRE, MR: Yes, sir.
HIS HONOUR: You're both quite definite about that. I don't have to try and work out the minute details of how you've come to that position because you've been in that position now for a number of years. You're not particularly young men so there's obviously something that's not going to go away.
Mr Seah was given no opportunity to continue with cross‑examination. The first difficulty I see with his Honour's comments is that, with respect, his Honour does not have appeared to have directed his mind to the need on the part of each applicant to establish an act of personal violence, that is to say a physical assault or the threat of one, or the reasonable fear of one, as opposed to 'emotional abuse' which is not sufficient to ground a violence restraining order.
The second difficulty I see is that his Honour appears to have considered it no real part of his task to determine whether either party had committed, or was likely to, commit an act of personal violence. Given that each made that allegation against the other, a finding of fact about each allegation was likely surely to have a material bearing upon whether, alternatively, each had a reasonable fear that the other would commit an act of personal violence. Credibility was in issue and these were key factual issues.
Keen to resolve the matter expeditiously and fairly to both parties, it does seem to me, with respect, that his Honour dwelt more on whether the two men could ever be civil towards each other and whether there was a risk of the hostility escalating, than in considering each application individually on its merits, which necessitated some consideration of the past behaviour and future risk each individual posed to the other.
Shortly afterwards, the following exchange took place (ts 19 ‑ 20):
HIS HONOUR: You can sit down again and I'll tell you what I want to do. The order, if I grant both of you orders, because it's as you would appreciate I've listened to each of you, it's very difficult without going into great detail, calling witnesses, trying to work out if one person is at fault or you are both at fault, but in any event, the purpose of this hearing is not to do that. It's to see whether or not you need a violence restraining order to protect you to some extent to stop problems between you escalating. Now, I accept you have problems. I accept that you – it's probably in everyone's interest that you both have restraining orders against the other.
MACINTYRE, MR: I agree, your Honour.
HIS HONOUR: Yes.
SEAH, MR: Sorry, your Honour, I can't agree with that. I don't want that on my record. I don't believe it's justified. I do not want it on my record.
HIS HONOUR: It's not a record.
SEAH, MR: I have a clean slate your Honour. It is – it is – I have been privy to Mr MacIntyre's criminal records in the Family Court system and it does appear in your records. I don't want to have a VRO that is not necessary.
HIS HONOUR: It is not a criminal record. It means nothing. It's not something – it doesn't prevent you from travelling.
There is a consistent theme here. His Honour had obviously formed the view that the situation between the two men was very hostile, regardless of who caused it to become that way. That no doubt was correct.
That analysis loses sight, however, of the need of each applicant to prove either an 'act of personal violence' on the part of the other, or a reasonable fear that he would commit one. The past therefore was critical to that question. Where one party was disputing that he had ever committed an 'act of personal violence' and was disputing that he represented a risk of some future act, it was the task of the court to go into detail, hear witnesses and make findings of fact that went to those disputed issues. After all, the granting of a restraining order against one party only would achieve the effect, if complied with, of keeping the two men apart. If one man had committed an 'act of personal violence', or the other party had a reasonable fear that he would commit such an act, but the same could not be said of the other party, then only one restraining order should be granted.
As to his Honour's comment that a violence restraining order 'means nothing' and 'does not prevent you from travelling', these were obvious attempts to mollify an unrepresented person who was beginning to show signs of frustration with the process. There were more such interchanges to come as his Honour attempted to soothe the appellant's fraying nerves.
But a violence restraining order can only be granted against a person who has been proven to have committed an 'act of personal violence' or to have conducted himself in such a fashion as to cause another person, on reasonable grounds, to fear that he will do so. The fact that a person is subject to such an order gives others grounds to make that adverse inference against him. Further, it restricts his liberty and gives others grounds to conclude that he had conducted himself in such a way that a court considered restraints needed to be placed upon him. They are the social implications of a violence restraining order. And there are legal implications over and above the restraints imposed by the order. Were a person subject to such an order to assault the person sought to be protected, the existence of the order would be admissible evidence against him. It would also be an aggravating feature on sentence. And finally, of course, breach of such an order is a criminal offence.
A violence restraining order is therefore a matter of consequence and is not to be made lightly, although it certainly does not, as his Honour said, constitute a criminal conviction. With respect, his Honour's choice of words was unfortunate. Standing alone, this comment on the part of the court would not persuade me that his Honour erred in making the order, because it was clearly an attempt to soothe the appellant. The combination of these remarks however with his Honour's later comments, that he could not make an order against one without making an order against both and that it was not necessary to determine who the aggressor was or who was at fault, do lead me to conclude that the true focus of the hearing, which should have been on hearing the evidence and making the findings of fact necessary to ground any order, was rather lost in the effort of managing two unrepresented parties while also dealing with time constraints and other matters in the list.
There was then some further discussion between the appellant and the court whereby the appellant attempted to give further evidence from the bar table. He also indicated that he had a witness sitting at the back of the court. The respondent interjected and claimed 'the display that Edmond's putting on is just an example of how he speaks to people. It's much, much, much worse, the way he speaks to me'.
The appellant responded 'I'm very frustrated, your Honour' (ts 21). He asked to call his witness (the transcript attributes his request, incorrectly, to the respondent, but a later reference (ts 26) confirms that it was the appellant making the request).
His Honour at that point indicated that he thought he needed to hear from Ms Ousby, the respondent's de facto wife and his witness, but also indicated 'my concern is that I am also conscious of the time that you will need to pick up the children and so forth' (ts 21). That is a reference to the respondent having pointed out to his Honour at the outset of the hearing that the children had to be picked up by 3 pm by Ms Ousby.
His Honour then, who was obviously under the usual considerable pressures in the Magistrates Court, interrupted the hearing in order to speak to the lawyers on another matter to see whether that was going to make quicker progress than the hearing at hand, with a view to potentially interposing that hearing. This highlights the difficulty of managing a list of matters, more than one of which, indeed several of which, may require a full and lengthy hearing. I cannot help but think that time pressures had their part to play in the manner in which this matter was dealt with.
Once his Honour was able to return to the matter at hand, Ms Ousby gave evidence, questioned at first by his Honour. The respondent was then given an opportunity to lead evidence from her. She was asked whether she believed that the appellant was a threat to the respondent's wellbeing and safety. Her evidence was that she did believe he was a threat, 'because what he did to you in the past five or four years ago. He got you arrested for nothing' (ts 28).
That was a reference to the respondent's admitted conviction for breach of a violence restraining order some five years earlier. The basis upon which Ms Ousby considered the appellant to represent a 'threat' to the respondent clearly does not amount to fear that he would commit an 'act of personal violence'.
The respondent continued (ts 29):
MACINTYRE, MR: Do you, Lyn, yourself, do you believe that I am a threat to Edmond? - - - What do you mean? Can you explain what you actually mean?
MACINTYRE, MR: Edmond has stated that I am very much a threat to his life and his safety. Do you agree with what Edmond says? - - - No, I don't think that (indistinct) do that, no. No, you wouldn't do that. I've been in a relationship with you and I've never seen you at any time be like that. But yes, it's okay you argue but there's no physical violence.

When the appellant commenced cross-examination of Ms Ousby, the following exchange took place (ts 32):
SEAH, MR: You've stated that Mr MacIntyre is not an aggressive person. Have you ever had need to have a violence restraining order held against him yourself?
MACINTYRE, MR: That has absolutely nothing to do with this, your Honour? - - - I am sorry. That was a very, very long time ago. It is nothing to do with you.
SEAH, MR: Is it true that Bradley MacIntyre held a knife to you?
MACINTYRE, MR: Your Honour, this has nothing to do with this and it is absolute codswallop? - - - (indistinct) I dropped that VRO anyway so really what happened (indistinct) to you it's your – I don't ask what's happening in your relations so - - -
SEAH, MR: Are you aware that Mr MacIntyre - - - - ? - - - (indistinct)
Are you aware that Mr MacIntyre has been charged with two assaults in your own household? - - - (indistinct)
HIS HONOUR: Wait. Wait. Wait. Let him finish.
MACINTYRE, MR: Your Honour, I would like to call that you put an end to these proceedings and rule with a decision now because this is getting out of hand.
HIS HONOUR: It's all right. No, please. Sit.
SEAH, MR: Are you aware that Mr MacIntyre has had two assault incidents occur in your own premises? - - - No, what are you talking about?
MACINTYRE, MR: That is absolutely untrue.
SEAH, MR: Your Honour, if you would like Mr MacIntyre's records.
HIS HONOUR: No. I understand. I understand.
MACINTYRE, MR: Its all lies, your Honour. This is absolutely baseless lies and - - -
HIS HONOUR: I will just sort it out now.
MACINTYRE, MR: Yes. That would be much appreciated.
HIS HONOUR: Thank you. Just one minute.
MACINTYRE, MR: I am just fed up with the lies.
HIS HONOUR: Ms Ousby's right. Her relationship with Mr MacIntyre is not the subject of this hearing.
SEAH, MR: Ms Ousby stated that Mr MacIntyre has no aggressive nature. She's had place to have at least two 24 hour restraining orders and put an interim restraining order in place, your Honour. For her to state that he has no aggressive nature at all and also have had those incidents where police have put restraining orders against him is ludicrous.
HIS HONOUR: I think the issue is whether or not she thought he was aggressive to you.
That issue was then dropped. After some little discussion between the appellant and his Honour, his Honour effectively stopped the cross‑examination and asked a few more questions himself. The appellant was permitted to ask one last question, on which nothing turns.
Through Ms Ousby then, the respondent had led evidence both as to his own good character and to the effect that he posed no threat to the appellant.
The appellant's position clearly was that, while he accepted that he bore animosity towards the respondent and had insulted him on occasion, he posed no threat to him. By contrast, he asserted that the respondent did pose a threat to him. It was also clear that the appellant was asserting that he was a person of no prior record, while the same could not be said for the respondent.
From Ms Ousby's answers, it appears there was something in the appellant's contention that the respondent had behaved in such a way as to warrant her seeking an order against him. The fact that she later 'dropped' the violence restraining order might not have detracted from the force of the cross‑examination, had it been allowed to continue.
If indeed the respondent is a person with a tendency to violence, either currently or in the past, then that was directly relevant to rebut Ms Ousby's evidence that he did not pose a threat. Any evidence of acts of violence or threatening behaviour towards Ms Ousby, or anyone else, was relevant and admissible pursuant to s 31A Evidence Act as propensity evidence.
The respondent had announced to the court, though not on oath, that one of the reasons he sought the order was that the appellant was an unstable, drug‑addicted alcoholic who had assaulted Ms Ousby in the past. If Ms Ousby had been subject to domestic violence at the respondent's hands, then that certainly would have impacted upon his credibility in making such allegations.
The respondent's criminal record, whatever it contained (it having been volunteered before me that there is a criminal record), might also have tended to prove a propensity to violence. If it did, it was relevant and admissible. The appellant raised this for the first time in the passage quoted above and had not cross‑examined the respondent about his record. It must be noted however that his cross‑examination of the respondent was stopped shortly after it began.
Further, if Ms Ousby had been subjected to domestic violence at the respondent's hands, then that may have impacted upon her credibility, in that she might have been more likely to support her partner in his stance. The cross‑examination was proper on that basis also.
The appellant was entitled to cross‑examine Ms Ousby about whether or not, to her knowledge, the respondent had been charged with two assaults. This court will never know what the answer would have been, of course, but the questions were proper. And the transcript does not reveal, as was contended before me, that the cross‑examination of Ms Ousby was stopped due to the appellant's intimidation of her – it was stopped on the ground of relevance.
If more authority to hear the evidence were needed, s 12 dictates that the court is to have regard to 'the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or person' (s 12(da)), 'any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise' (s 12(i)) and 'any criminal record of the respondent' (s 12(h)).
The prevention of that line of cross-examination was, with respect, an error. Had the cross-examination been allowed to continue, it is possible, indeed likely given the answers Ms Ousby did give, that material evidence, adverse to the respondent and therefore favourable to the appellant, would have been put before the court.
After the completion of Ms Ousby's evidence, his Honour informed the parties (ts 34):
I will tell you my position and then you may well want to call another witness. It's up to you. It might be easier. From the court's perspective and my perspective my concern is if the two of you continue to interact the way you are something may happen. Now, I am not going to work out who is the aggressor and who's not the aggressor. It doesn't matter to the extent that sometimes a passive person becomes aggressive and visa versa. I have a lot of experience in the criminal law and it doesn't matter who initially is the aggressor, someone may overreact. My problem is keeping you two apart. Now, it's not likely that the two of you will stay apart voluntarily, which would be the best outcome.
With respect to his Honour, consideration of the criteria in s 11A did require some consideration of whether each party was an 'aggressor'. The court needed to be satisfied either that an 'act of personal violence' had occurred, or that the party seeking to be protected had reasonable grounds to fear that one would be committed against him. That need not require a finding of fact as to who began the animosity, but it does require consideration of the criteria laid down.
I cannot accept that s 11A should be interpreted in such a way as to justify the making of a violence restraining order against a party on the sole basis that the party seeking to be protected may himself commit a violent act which might in turn provoke a respondent into defending himself and overreacting. If one party only is the aggressor and one party only is likely to commit an 'act of personal violence' then one party only should be made subject to the restraints of a violence restraining order, even if there exists the possibility, as surely will often be the case, that the other party may, in the event that he is assaulted, react or even overreact. As was discussed earlier, s 11A(b) requires there to be proof that the party seeking to be protected reasonably fears that the other party will commit an 'act of personal violence', not merely that he may do if sufficiently pushed.
With respect, his Honour's approach in this passage is consistent with his view, expressed below, that both or none would be granted an order, without the need to dwell on specifics as to who was at fault.
A moment later the following exchange took place (ts 35):
HIS HONOUR: As I say, the relationship between you is such that you can't be together.
MACINTYRE, MR: That is correct, sir.
HIS HONOUR: So we're agreed on that bit. How we achieve that, we either do it by agreement, which is unlikely – unfortunately, Mr Seah, I can't impose a violence restraining order on Mr MacIntyre and not on you.
SEAH, MR: Your Honour, why would that be?
HIS HONOUR: Because your attitude – however it started four years ago – five years – four years ago – it's now at the stage where no matter what Mr MacIntyre does, whatever you do, both of you interpret it as aggression, and that's got to stop.
If his Honour's expressed view, that he could not grant a restraining order to one and not both, was simply his Honour's way of saying that the evidence established against each man that he had either committed an act of personal violence or that there was reasonable grounds for the other to fear that he would do so, then there would be nothing in the appellant's complaint on this issue.
All one can glean from the passage quoted, however, is that his Honour had reached the view that each party had become overly sensitive about the other's conduct and considered the other to be aggressive. If anything, then, his Honour's remark tends to suggest that he felt neither party was truly at risk, but each unreasonably considered himself to be so, a situation his Honour considered to be unacceptable. Unacceptable it may well be, but it does not fall within the criteria for the granting of a violence restraining order. I consider that his Honour was expressing his genuine view that the making of an order against one and not the other would simply be unfair, a view reiterated later.
The parties then engaged in discussion about whether each was aggressive. His Honour reluctantly agreed, after some more discussion, to hear the appellant's audio recording mentioned earlier in this judgment. The respondent indicated that, if the appellant was going to play his audio‑recording, he wished to play his, to which his Honour responded (ts 37):
That's what I wanted to try and avoid. My current position – and I'm reluctant to move from it – having listened to both of you - is - - -
After having been interrupted by both parties his Honour then continued (ts 37):
Okay, that's fine. You've said that before. I understand, I understand. If you sit. We are still at the position where – we're right with your violence restraining order in that, in effect, you don't oppose it as long as he has one. I don't see the imposition of a violence restraining order as impacting on your – and this is for Mr Seah's benefit – it has not impacted on your record. It's not going to impact on your Family Court proceedings because there are none.
The appellant expressed his frustration because he regarded his honour as being at stake, to which his Honour replied (ts 38):
I'm not concerned about your honour as such. What I am concerned about is stopping an escalation of violence between the two of you. I think it is unnecessary – I hope, normally, it would be unnecessary between – I appreciate you are in an unfortunate position where you are connected through Ms Ousby and you can't avoid that, and it's just going to get worse – because there is no stain on your character and, quite frankly, if you told people that your former partner's partner has an issue with you and has got a restraining order against you and you against him, it's a nil all draw.
After further discussion his Honour then agreed to hear the two audiotapes.
After listening to the tapes and some more tense interchange between the parties his Honour commented (ts 39):
No more, no more, thank you. You sit. Mr MacIntyre, sit, please. Sit, sit. Thank you. Mr Seah, sit. Normally I would seek submissions from you, but I think I understand both your positions. I haven't heard from your witness, but I don't think I need to. There's two choices here: only issuing one restraining order on Mr MacIntyre is not a reasonable option, it's not a fair option because – although you may not see it, Mr Seah – the potential for you to be angry towards him or abuse him – although I accept it's probably less than Mr MacIntyre – is still there. I prefer not to grant restraining orders at all, but if I do, because of the nature of the relationship, it must be against both of you.
The above comment really confirms that his Honour's earlier comment, that he could not impose a restraining order on the respondent without also making an order against the appellant, was not a comment on the state of the evidence, but was a desire to achieve fairness. With the greatest of respect to his Honour, there is no basis for such a position within the terms of the Act. The criteria are either satisfied, or they are not. That may result in an order being made against one party, but not the other. His Honour was concerned obviously to achieve an equitable result, but if that approach leads to a party being made the subject of an order when he has not committed any 'act of personal violence' and when there is no reasonable basis for fearing that he will do so, that is not an equitable result. The passage quoted does suggest that the criteria of the Act were lost sight of in the interest of achieving an ostensibly fair outcome.
Further, his Honour's expressed concern was about the potential for the appellant to become angry or abusive, conduct which is insufficient to ground a violence restraining order. His Honour also considered the risk of that occurring was less than the risk of the respondent behaving in that fashion.
The appellant remonstrated once more with the court, arguing that the respondent was only consenting to a restraining order against him because the evidence justified one but that he, the appellant, regarded the making of a restraining order against himself as shameful and objected to it.
Another exchange took place between the appellant and his Honour where his Honour explained that a violence restraining order was no stain on his character and not unusual in these circumstances. Again the appellant launched into a frustrated attempt to reiterate some of the evidence he had given, at which point his Honour then announced his decision (ts 42) which I have quoted earlier but which, for the ease of the reader, I repeat:
Under the legislation… the court may make a violence restraining order if it is satisfied a person who is seeking to be protected – Mr MacIntyre – (or) a person who has applied for the order on behalf of that person – reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected. Having observed both of you in court and even your ability to interact through a third party – speak with a third party - I accept that Mr MacIntyre has a reasonable belief that you may cause him harm.
His Honour also commented to the appellant (ts 42):
I don't think you are in a position to appreciate the level of animosity you have towards Mr MacIntyre.
Finally, the following exchange took place (ts 43):
HIS HONOUR: That's fine – well you understand my reasoning.
SEAH, MR: Yes, your Honour, I understand.
HIS HONOUR: Just from watching both of you – you cannot contact one another.
SEAH, MR: I have been told, your Honour, that I can get abrupt in court and I'm frustrated. I'm very nervous. I hate being in the same room as this gentleman because he scares the hell out of me. You know, he said to me on the phone – I had a violence restraining order in place before, your Honour.
HIS HONOUR: I understand, Mr Seah. I also understand that with that level of emotion - - -
SEAH, MR: I am not unstable, your Honour.
HIS HONOUR: I'm not suggesting you are unstable. What I am suggesting is, with that level of emotion it may well be that you are not a danger until such time as you have enough and the best way to stop you having enough or snapping or becoming very angry is - - -
SEAH, MR: OK, your Honour if I may. When I was told by my daughter that she was hit by Bradley MacIntyre, I didn't go and seek retribution. That was when – this is how my violence restraining order - - -
HIS HONOUR: No, no, no. No more, Mr Seah. No more.
SEAH, MR: OK. Thank you.
HIS HONOUR: You understand the basis is there must be a circa [sic] breaker between the two of you. You may feel more aggrieved than Mr MacIntyre but the situation cannot continue.
The hearing then continued with discussions about the practicalities and requirements of the mutual orders.
The appellant's four complaints about the manner in which the hearing proceeded are made out.
His Honour did claim that a restraining order was 'nothing' and 'no stain' on a person's character. I cannot agree with his Honour's comments. I am mindful however that his Honour was trying to soothe a person who was becoming frustrated and, had I no other concerns about the matter, I would not interfere with his Honour's finding on the ground of an unfortunate choice of words made in such trying circumstances.
His Honour did proceed on the basis that simple fairness dictated the making of mutual restraining orders or none at all, a stance which may be attractive in a pragmatic way, but has no basis in the Act. That was, with respect, an error. That error justifies this court reviewing the decision to grant the violence restraining order against the appellant.
His Honour did prevent cross-examination about the respondent's propensity to violence, an issue which was of significant relevance and might, had it been allowed to continue, have tended to prove that the respondent was the likely aggressor and might have significantly impacted upon the credibility of both the respondent and to a lesser extent his witness, Ms Ousby. I find that was an error.
I cannot be satisfied that the failure to allow the cross‑examination did not affect the outcome of the case. His Honour obviously did not consider that it would, but that was surely because his Honour did not consider it necessary to determine whether either person seeking to be protected was in fact the sole aggressor who consequently ought to be the only person restrained by the court. With respect, I consider that approach was flawed.
His Honour did appear to all but make his decision after hearing from only one party, the appellant. Certainly the appellant did not give evidence tending to prove that he had committed any 'act of personal violence' or posed any threat. Following only very little evidence from the respondent the learned magistrate did give fairly clear indications that he had come to the view mutual orders should be made, notwithstanding that the respondent's allegations that the appellant had committed two 'acts of personal violence' were not apparently accepted.
Of course, one needs to make considerable allowance for the dynamics of conducting a hearing with two unrepresented parties and it is important also to not minutely analyse every word that fell from his Honour's lips as though he was delivering a written judgment with time to consider and reconsider his language. I see no error in a court 'thinking aloud' to give guidance to the parties as to what is relevant or what is in contention and the like. If the evidence did clearly justify the making of mutual orders, there would be no error in a court indicating so once the position became clear, even if that occurred quite swiftly.

It is not one individual utterance, however, but the combined effect of the manner in which the hearing proceeded and his Honour's various comments, which leads me to conclude that his Honour formed a view fairly early because his Honour also held the views that either both applications would be granted or none and that mutual and ongoing hostility was sufficient grounds for the granting of mutual orders. I find those views reveal error.
It was because of those views that the respondent's potential propensity to violence against Ms Ousby and perhaps others was dismissed as irrelevant. It was because of those views that the parties were discouraged from dwelling on details of what happened in the past. And presumably it was because of those views that his Honour displayed no interest in the respondent's acknowledgment that he had been previously convicted by a court after trial of breaching a violence restraining order protecting the appellant.
It can only have been the parties' demeanour and the dynamics between them in court which influenced his Honour. This brings me full circle to the appellant's main contention, that there was insufficient evidence to justify the making of the order against him.
Having reviewed what evidence there was before the court, I am not satisfied that there was sufficient basis for the making of the order. In essence, the respondent's evidence was to the effect that he had three reasons for his fear: that the appellant had telephoned him repeatedly, screamed at him over the phone to 'put my girls on now' and denigrated him, calling him names; that the appellant might 'send the goons around' as he had done previously and that the appellant had threatened his life within earshot of his daughter.
The second and third allegations were either rejected, or were not accepted. Certainly no finding was made accepting either allegation and that is hardly surprising given the quality of the evidence supporting those allegations. The fact that the appellant has insulted and abused the respondent, a fact he accepts, does not amount to his having committed an 'act of personal violence'.
Further, I cannot be satisfied that the respondent's evidence as to his fear should be accepted, or that any order should be made protecting him from the appellant, without some detailed exploration of his own possible propensity to violence towards Ms Ousby, of his criminal record and his prior conviction for breaching a violence restraining order protecting the appellant. These were matters to be considered under s 12, as was the appellant's apparent lack of criminal history. That evidence not having been canvassed during the hearing, I am not in a position to assess those matters.
And finally, I am not satisfied that the obvious tension displayed between the parties during the hearing, which forced two parties who loathe each other to cross‑examine each other, should, of itself, carry such weight with a court as to justify the making of a violence restraining order, unless something quite compelling occurred. This hearing was trying, but the tension displayed was to be expected.
For these reasons I allow the appeal and quash the violence restraining order made against the appellant.
I have not been invited to substitute any other order, such as a misconduct restraining order, and in any event I would not be prepared to do so without a complete hearing which is not the role of this court. And of course the fact that there is a violence restraining order still on foot against the respondent ought to have put an end to all interaction between the parties anyway.
But the appellant should be mindful that nothing in this judgment prevents the respondent from again seeking a violence restraining order, or for that matter a misconduct restraining order, which is aimed at 'intimidating or offensive' behaviour or behaviour that 'is, or is likely to, lead to a breach of the peace', should there be any future conduct which satisfies the criteria of the Act.