SKS v Ajs
[2023] WADC 150
•13 DECEMBER 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SKS -v- AJS [2023] WADC 150
CORAM: ZEMPILAS DCJ
HEARD: 16 NOVEMBER 2023
DELIVERED : 13 DECEMBER 2023
FILE NO/S: APP 31 of 2023
BETWEEN: SKS
Appellant
AND
AJS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE OLIVER
File Number : MC/CIV/PE/RO/4385/2021
Catchwords:
Appeal from Magistrates Court - Restraining Orders Act 1997 - Whether findings made by learned magistrate based on error of law - Definition of family violence
Legislation:
Interpretation Act 1984 (WA), s 18
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Result:
Appeal allowed
Family Violence Restraining Order granted for 2 years from delivery of these reasons
Representation:
Counsel:
| Appellant | : | Ms R R Milton |
| Respondent | : | Ms K Zhang |
Solicitors:
| Appellant | : | Davies & Co Lawyers |
| Respondent | : | Hoe Lawyers |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Baron v Walsh [2014] WASCA 124
Brocklehurst v Wolinski [2015] WADC 36
DB v RB [2020] WADC 93
House v The King (1936) 55 CLR 499
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38
Picking v Myren [2020] WASC 482
Potschick v Bruce [2018] WADC 107
Pronk v Verhagen [2019] WADC 70
Robinson Helicopter Company Inc v McDermott [2016] HCA 22
Shilkin v Taylor [2011] WASCA 255
ZEMPILAS DCJ:
Introduction
This appeal concerns the refusal of a magistrate to grant a final Family Violence Restraining Order (FVRO) sought by the appellant against the respondent.
An interim FVRO (IFVRO) was granted on 16 September 2021.
Following a hearing on 30 and 31 March 2023, the IFVRO was cancelled and the appellant's application dismissed by the learned magistrate on 30 June 2023.
That hearing also concerned a FVRO sought by the respondent against the appellant. The respondent initially filed a notice of cross‑appeal with this court. The respondent no longer pursues his cross‑appeal.
The learned magistrate found that there were no acts of family violence by the respondent, other than in one case. She was not satisfied such an act was reasonably likely to occur again.
The learned magistrate found that there was one act of family violence by the appellant. She was not satisfied such an act was reasonably likely to occur again.
Law governing appeals from a magistrate in FVRO matters
A person in the position of the appellant who is aggrieved by the decision of a magistrate to refuse to make a final order may appeal against that decision.[1]
[1] Restraining Orders Act 1997 (WA) s 64(1)(b) (the Act).
The appeal is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act).[2] The appeal proceeds by way of a rehearing rather than a fresh hearing.[3]
[2] Section 64(2) of the Act.
[3] MCCP Act s 40(4); District Court Rules 2005 (WA) r 50(1) (DCR).
On the appeal, the District Court may 'confirm, vary or set aside all or a part of the lower court's judgment', or 'give any judgment and make any order that the Magistrates Court could have given or made'.[4] However, the District Court may only substitute its decision if the appellant demonstrates that the orders the subject of the appeal are the result of a legal, factual, or discretionary error by the magistrate, based on the material before the magistrate, and any additional evidence either party has been given leave to adduce.[5] Leave is not to be granted to admit additional evidence unless there are exceptional circumstances.[6]
[4] MCCP Act s 40(7).
[5] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
[6] MCCP Act, s 40(5); Brocklehurst v Wolinski [2015] WADC 36 [14].
If upon a review of the facts by the District Court, a decision made by a magistrate is 'unreasonable or plainly unjust, an appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law [reposed] in the court of first instance'.[7]
[7] House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).
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'.[8]
[8] Robinson Helicopter Company Inc v McDermott [2016] HCA 22.
Grounds of appeal
The grounds of appeal are as follows:
1.The Magistrate erred in failing to apply, or properly apply, the definition of family violence pursuant to s5A of the Restraining Orders Act 1997 (WA) (the Act), by elevating the Respondent's intention in doing the behaviours complained of by the Appellant to that of a critical factor in determining whether such behaviours constituted family violence.
2.The Magistrate erred in failing to have regard to apply, or properly apply, s 10A of the Act specifically subparagraph (d).
3.The Magistrate erred in failing to have regard to, or properly have regard to, the principles identified in s10B of the Act, specifically subparagraphs (1)(d) and (1)(i).
4.The Magistrate erred at law in finding that the Respondent had not perpetrated family violence pursuant to s5A of the Restraining Orders Act 1997 (WA) towards the Applicant in relation to the following:
a.The written, verbal and in person communications of a sexual, derogatory, demeaning, threatening and abusive nature from the Respondent to the Appellant between 26 March 2021 and 11 March 2022;
b.The attendance by the Respondent at the Appellant's residence and associated events of 9 and 10 April 2021;
c.The removal of funds by the Respondent from the Appellant's bank account on 10 April 2021;
d.The attendance by the Respondent at a residence where the Appellant was present on 14 May 2021 and associated events;
e.The Respondent's behaviour and communication on 6 and 7 June 2021 towards the Appellant and his attendance at her residence and the residence of a third party;
f.The attendance by the Respondent at the Appellant's residence and associated events of 13 September 2021;
g.The repeated applications filed by the Respondent to vary or cancel the Restraining Order protecting the Appellant and the children, and the applications filed by the Respondent to obtain restraining orders protecting the children;
h.The Respondent's retention of the children of the parties;
i.The attendance by the Respondent at the Appellant's home on Mother's Day, 8 May 2022;
j.The attendance by the Respondent at a sporting event in September 2022 and a show in December 2022; and
k.Or in the alternate, any or all of the above in combination.[9]
5.The Magistrate erred at law and in fact in finding that the Appellant engaged in an act of family violence against the Respondent on 13 September 2021.
6.The Magistrate erred at law in finding that the Respondent was not likely again to commit family violence against the Appellant in the future.
7.The Magistrate's findings of credibility against the Appellant and in favour of the Respondent as to the nature of the ongoing relationship post separation and the 'ongoing intimate...nature of that relationship' was contrary to the evidence and not open as a matter of fact and constituted a failure to properly exercise discretion.
[9] The appellant confirmed that grounds 4(e), (g) and (h) are not pressed.
Appellant's application to adduce further evidence
The appellant also seeks leave to adduce further evidence on the appeal, being a series of email communications annexed at Attachment A to her affidavit of 28 August 2023. These relate to communications between June and July 2023, which post‑date the Magistrates Court trial on 30 and 31 March 2023.
The appellant is required to demonstrate exceptional circumstances as to why leave ought to be granted.[10]
[10] MCCP Act s 40(4)(b) and s 40(5).
Ordinarily, a court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence will have led to a different outcome if it had been led in the court below.[11]
[11] Shilkin vTaylor [2011] WASCA 255 [66] - [70].
The discretion to admit further evidence should be to ensure the overall interests of justice.[12]
[12] Lackovic v Insurance Commission of Western Australia [2006] WASCA 38.
The appellant relies on the following as constituting exceptional circumstances, warranting the granting of leave:
1.The evidence arose after the decision of the learned magistrate and accordingly there was no failure to adduce the evidence at the hearing.
2.The evidence goes directly to the respondent's likelihood of committing further family violence against the appellant and the appellant's reasonable grounds to apprehend such violence being committed.
3.The appellant says that the learned magistrate has premised her decision on the basis of accepting the respondent's evidence that he no longer 'desire[s] any form of intimate relationship with [the appellant], just one of coparenting'.[13]
4.The learned magistrate appears to connect the acts of family violence complained of by the appellant, and the likelihood of future acts, with the respondent's state of mind in relation to the relationship between the appellant and respondent.[14]
5.The appellant submits that the evidence is exceptional because it demonstrates that it is the existence of a relationship, whether co‑parenting or intimate that gives rise to the likelihood of the respondent committing family violence in the future. In particular, it represents a continuing pattern of the respondent engaging in acts towards the appellant to control her behaviour.
[13] ts 113 (30 June 2023), Hearing Book 820 (HB).
[14] ts 113 (30 June 2023).
The respondent opposes the appellant's application for leave to adduce further evidence.
The respondent accepts that a relevant factor for the exercise of this discretion is whether the evidence was available to be led at the time of trial. However, the respondent says this new evidence would not have led to a different outcome even if it had been led in the Magistrates Court. This is because:
(a)the contents of the emails relate to the respondent seeking to communicate with regards to the two children of the relationship;
(b)the respondent emailed the appellant about care arrangements for the children after a request from the appellant's lawyer that he contact the appellant only through her lawyers; and
(c)the respondent emailed the appellant requesting that they deal directly in relation to the day-to-day issues of the children and on occasions thereafter.
The respondent says that the further evidence does not concern behaviour referred to in s 5A(l)(b) of the Act in that it is not coercive or controlling, or which has caused fear to any party.
Instead, the respondent says these communications were equal attempts by both parties to agree to channels of communication with regards to the day‑to‑day shared parenting of their children, to which neither party could agree. The respondent submits there were ongoing Family Court proceedings in relation to the children, and no orders prohibited any contact about the day‑to‑day parenting of the children.
The respondent says the appellant has failed to demonstrate exceptional circumstances and leave must be refused.
As the outcome of the appeal may bear on the question of whether exceptional circumstances arise, I propose to deal with this issue after first considering the grounds of appeal.
Restraining Orders Act 1997 (WA) provisions
The learned magistrate was, in the circumstances of this case and in the absence of any special circumstances that would make granting an FVRO inappropriate, bound to make a FVRO pursuant to s 10D(1) of the Act, if satisfied on the balance of probabilities that:
(a)the respondent had committed family violence against the appellant and was likely again to commit family violence against the appellant in the future; or
(b)the appellant had reasonable grounds to apprehend that the respondent would commit family violence against her.
'Family violence' is defined pursuant to s 5A(1) of the Act to mean either:
(a)violence, or a threat of violence, by a person towards a family member of the person; or
(b)any other behaviour by the person that coerces or controls the family member or causes the member to be fearful.
A non-exhaustive list of the types of behaviour that may amount to 'family violence' is set out at s 5A(2) of the Act. It includes stalking or cyber-stalking the family member, repeated derogatory remarks made against the family member, or unreasonably denying the family member the financial autonomy that the member would otherwise have had.
Background
The appellant is 32 years old, and the respondent is 37 years old. The parties married on 5 March 2016 and have two children. The parties separated in March 2021 when the children were aged 7 and 3 years. The appellant moved out of the former matrimonial property.
The appellant applied for and was granted an ex parte IFVRO protecting the appellant and their two children against the respondent on 13 September 2021 (the appellant's IFVRO). The respondent was served on the same date.
The respondent applied for and was granted an ex parte IFVRO against the appellant on 14 September 2021 (the respondent's IFVRO). The appellant was served on 16 September 2021.
The inclusion of the children on either FVRO was not pursued at trial.
At trial, the appellant relied on a series of incidents to satisfy s 10D(1)(a) and s 10D(1)(b). These are referred to in grounds 4(a) ‑ 4(i). For the purposes of this appeal, I have identified the relevant incidents as nine separate events or groups of conduct.
I will summarise the undisputed aspects of each event or course of conduct here.
Conduct 1
On 9 April 2021 the respondent attended the appellant's address late at night between 10.00 pm and 11.30 pm. The respondent was not invited at that time and indicated he wanted to see his children. Subsequently the respondent left and was later served at his home with a police order by police officers.[15] He re‑attended the appellant's property at about 1.00 am on 10 April 2021, in breach of that police order. He later pleaded guilty to a charge of breaching the police order.
Conduct 2
[15] Section 30E of the Act.
On 10 April 2021 the respondent removed funds ($500) from the respondent and appellant's joint bank account, leaving her temporarily with no access to money.
Conduct 3
Between 14 and 15 May 2021 the respondent used the 'Find My iPhone' application to locate the appellant at an address in Clarkson. The respondent subsequently attended the property where the appellant was located.
The respondent later sent the appellant a series of text messages including one at 12.50am:[16]
Can't believe you, you fucking slut. Answer now, just answer me or this is going to end up a lot worse. Who the fuck is he? Just answer me. I can't believe you, you fucking slut. After everything we spoke about, you have no respect for me or the kids or our family. See you in court. How the fuck could you lie to me so easy then go fuck some other guy? How long has it been going on for. Is that why you ended it because you couldn't live with the guilt? Most of your shit is in your car and the rest will be on the front verge. Hope you enjoy sucking his cock.
[16] ts 100 (30 June 2023), HB 807.
Between 30 May and 6 June 2021 the respondent also sent the appellant a series of text messages, some of which were sexual in nature.
Conduct 4
On 7 June 2021 the respondent went to the home of the male owner of a utility vehicle he had seen at the appellant's house, which was the same address in Clarkson. The respondent subsequently sent a number of text messages to the appellant:[17]
You've been caught out. Tell me the truth.
Swear on our kids' lives that what our marriage was that there was no guy there earlier than, or that you have not been doing sexual things with this guy.
It is clear that you are fucking someone else as you can't swear on the kids and that night you was a booty call unless it had been going on for a while.
We both know the truth. You're fucking him. You was with him that night. Just pick up the rest of your shit later and we are done. I'm not fighting for a woman who lies and is fucking some other guy.
[Daughter] shat her knickers so may need a shit tomorrow. I did tell you that she shat yesterday, but you was probably sucking [L]'s dick at the time. Enjoy date night.
So the consequences are you sucking his cock then fucking around with him. You are a monster for that. Leave me alone. I would never have done that to you but leave me alone. I won't look at your face again as I know it had his cock in it.
Conduct 5
[17] ts 101 - ts 102 (30 June 2023), HB 808 - HB 809.
On 27 August 2021, while the children were with the respondent, the respondent asked the appellant to provide written confirmation that he could take the children on holiday in September. After receiving a text message in those terms from the appellant, the respondent returned the children to her.
Conduct 6
On 4 September 2021, the day before Father's Day, the respondent sent to the appellant a series of text messages that were abusive in nature:[18]
Fuck off, stay away, and cancel tomorrow. I tried to show you what you meant to me but a little too late. I will collect the kids Monday morning as there's no point celebrating something that means nothing.
Just fuck off with whoever the fuck you want.
I really don't think you understand how much you have hurt, affect and broken me. Well, you can tell them why they won't see me at all now then.
Just run off and tell more people about how bad I am and how much of a cunt I am. Maybe you will get other guys giving you attention trying to fuck you.
Once I can fly away, I will be leaving this country.
There's a bag of shopping at your door.
Conduct 7
[18] ts 105 (30 June 2023), HB 812.
Between 5 and 12 September 2021 the respondent took both the children to Margaret River for a holiday. The respondent sent ongoing messages to the appellant of a sexual nature while the respondent was in Margaret River with the children. He sent a message on 10 September 2021 which said:
I will see you in court for you to have access to the children unless you start showing you care about them and stop fucking the guy you are seeing when you was still with me.
During that time there were issues with the appellant being able to speak with the children. Upon return, the respondent did not initially return the children to the appellant as agreed.
Conduct 8
On 13 September 2021 the appellant was granted the IFVRO. The respondent subsequently attended the appellant's home. The appellant asked him to leave. The respondent remained there for three hours until police attended and served him with the IFVRO.
Conduct 9
Three incidents occurred after the appellant's IFVRO and the respondent's IFVRO commenced operating.
On 8 May 2022, Mother's Day, the respondent took the children to see the appellant in breach of the appellant's IFVRO.
On 15 September 2022 there was a sporting event at the children's school which the respondent attended, placing him at risk of breaching the appellant's IFVRO.
On 6 December 2022 there was a concert at Heath Ledger Theatre at which the respondent sat close to the appellant, placing him at risk of breaching Family Court orders.
Magistrate's findings
The learned magistrate referred herself to s 10D and s 5A of the Act, including the definition of family violence, as well as the objects and principles set out in s 10A and s 10B of the Act. The learned magistrate also indicated she had directed herself pursuant to s 39F Evidence Act 1906 (WA).
The learned magistrate then stated:[19]
But in my view, to be acts constituting family violence and acts to which this Act is designed to prevent, there needs to be a level of coercion or control or violence, threats of violence or other acts designed and intended to cause fear. Rudeness is not enough.
[19] ts 94 (30 June 2023), HB 801.
The learned magistrate went on to consider the conduct in turn.
Conduct 1
The learned magistrate found that the respondent's attendance at the appellant's property on the first occasion seemed to be related to access to the children at a time when there were no Family Court orders in effect and therefore no restrictions on him seeing the children. She found that, if it was a demand to access his children, she was not or could not be satisfied that this was an act of family violence.
The learned magistrate found that, while the respondent may have become aggressive and shouted when at the property, she accepted that he had developed concerns about his daughter's welfare. The learned magistrate said:[20]
… But of itself, him attending wanting to see his children would not normally be a matter I would consider an act of family violence. If I assume his purpose in seeking access to the children was to punish [the appellant] for potentially seeing another male, then it may be. But on the evidence before me, I cannot be satisfied on the balance of probabilities that that was his motivation or intention. In the circumstances, I am not persuaded that this incident amounts to an act of family violence.
[20] ts 98 (30 June 2023), HB 805.
As to the respondent returning to the property the following day, the learned magistrate indicated she preferred the respondent's evidence about the reasons for him returning to the property, saying:[21]
… But ultimately, I cannot know where the truth lies. But in any event, I am not persuaded that his return to the property was an act of family violence and was not just a response arising out of anger and frustration. …
Conduct 2
[21] ts 99 (30 June 2023), HB 806.
As to the removal of money from the appellant's and the respondent's joint bank account by the respondent, the learned magistrate found:[22]
… Ultimately, the question of ownership of that money is for the Family Court to determine in the course of resolving the divorce. But in any event, I consider the act of removing the money from the bank account was more likely an act out of anger given the events of the night before, particularly [the respondent]'s belief that he had been set up to be arrested, and not an act of family violence designed to coerce or control or make [the appellant] fearful.
Conduct 3
[22] ts 99 (30 June 2023), HB 806.
The learned magistrate noted that, after locating the appellant and attending the Clarkson property, the respondent sent the appellant text messages. The learned magistrate found:[23]
… Insofar as [the respondent] sent these messages, they are part of a series of messages post separation that might be considered offensive. I will deal with these as a group and as to whether or not they amount to family violence shortly.
[23] ts 100 (30 June 2023), HB 807.
The learned magistrate also found:[24]
Insofar as [the respondent] admits using the Find My Phone application to locate [the appellant] on 14 May 2021, this act could potentially be an act of family violence as it involves a level of stalking. However, it is an isolated and one-off incident on the evidence before me. It has to be viewed against the circumstances at the time and the nature of the relationship between the parties, and [the respondent]'s beliefs as to the prospects of reconciliation, which I will discuss separately. But given this was a one‑off incident which could potentially be an act of family violence, the question is does it follow as a matter of logic that such an act will occur again if a restraining order is not in effect, or that it's reasonable to apprehend that it will, given that is the focus of this proceeding - the risk of future harm, not proof of past.
The fact there has been no repetition of this conduct supports the conclusion that it is not reasonable to apprehend that [the respondent] will engage in a similar act again in the future. …
Conduct 4
[24] ts 100 (30 June 2023), HB 807.
The learned magistrate referred to the respondent's explanations why he had attended the Clarkson address to speak with the owner of the vehicle after he had seen it parked at the appellant's house, and how he happened to drive past on his way to another location.
The learned magistrate found:[25]
In the circumstances, I cannot be satisfied on the balance of probabilities that this incident involves any stalking by [the respondent]. It is entirely possible that he saw the ute in the circumstances he described and, upon seeing that ute again, became upset about the fact [the appellant] appeared to be seeing another male and responded with the inappropriate messaging. …
Conduct 5
[25] ts 102 (30 June 2023), HB 809.
The learned magistrate made the following findings in relation to that incident:[26]
… Whilst it could be said that requesting written confirmation that he could take the children on a holiday could amount to coercion and control, that act has to be viewed against the dysfunctional relationship that had developed at this time. There had already been restraining orders taken out against each other and obviously there were concerns on the part of [the respondent] that [the appellant] would deny him access to his children. In that context, I do not consider [the respondent]'s actions in requesting written confirmation that he could still take the children on holidays to amount to an act of family violence.
Conduct 6
[26] ts 104 (30 June 2023), HB 811.
It was not in issue that the respondent sent the text messages on 4 September 2021 and the learned magistrate made findings about those messages, as well as messages sent on other occasions. She said:[27]
There is no doubt that a number of [the respondent]'s text messages sent between separation and September 2021 could be described as inappropriate and offensive but, in my view, when understood against the context that he had an honest belief that [the appellant] had cheated on him in circumstances where he thought there may have been prospects of reconciliation, including in circumstances where there had been an intimate and caring relationship between the two even after separation which is reflected and confirmed by the personal and intimate care and assistance [the appellant] gave him following his surgery, the messages are more properly viewed as an expression of anger and disappointment at the lost opportunity of reconciliation and the perceived betrayal.
In my view, the messages are not acts of family violence. They are not, when viewed objectively, coercive or controlling or designed to make [the appellant] fearful. They are expression of emotion at a time when the relationship was dysfunctional.
Conduct 7
[27] ts 106 - ts 107 (30 June 2023), HB 813 - HB 814.
Following the respondent's holiday with the children in Margaret River the respondent did not return the children as arranged. Again, there were differing accounts given by the appellant and the respondent as to precisely what occurred. On balance, the learned magistrate preferred the respondent's evidence as to why he withheld the children on that date. She said:[28]
… I am satisfied that he did not withhold the children in order to exert any undue pressure or coercive control over [the appellant], and I am satisfied that he did not engage in an act of family violence.
Conduct 8
[28] ts 108 (30 June 2023), HB 815.
In relation to the respondent's presence at the appellant's home on 13 September 2021, the learned magistrate made reference to evidence of mobile phone footage of that incident. There was no dispute that the incident spanned a reasonably considerable period of time. The learned magistrate noted the video recording captured only a portion of that incident.
She made a number of findings based on her observation of that footage and the other evidence.[29] She stated at the conclusion of those findings:[30]
… Whilst he was at the property for an extended period, I am satisfied that he had reasonable grounds for being concerned about his daughter's well-being and his actions are understandable against that background.
I am satisfied that the incident on 13 September 2021 did not involve an act of family violence by [the respondent] against [the appellant], however, I am satisfied that [the appellant]'s behaviour in denying [the respondent] access to his daughter, in circumstances where the daughter was distressed and complaining of being hurt, is an act of family violence by [the appellant] against [the respondent]. …
Conduct 9
[29] ts 110 (30 June 2023), HB 817.
[30] ts 110 (30 June 2023), HB 817.
In relation to the incident on Mother's Day in 2022, the respondent said in evidence that he took the children to the appellant at the request of the children. The learned magistrate found:[31]
I do not consider [the respondent] taking the children at their request to see their mother on Mother's Day to be an act of family violence …
[31] ts 112 (30 June 2023), HB 819.
The learned magistrate noted that the respondent was cross‑examined about his attendance at the school to watch a sporting event in September 2022 and also at a show attended by the appellant in December 2022 and that the respondent denied any sinister motives in these actions. The learned magistrate found:[32]
Overall, those matters were not significant in my view and not relevant to whether he had previously engaged in any acts of family violence, or more significantly, whether he is likely to engage in any acts of family violence if not restrained. …
[32] ts 111 (30 June 2023), HB 818.
The learned magistrate summarised her findings:[33]
In summary, therefore, the relevant findings that I have made are as follows. With the exception of the use of the Find My Phone application, I am not satisfied on the balance of probabilities that [the respondent] has engaged in any act of family violence against [the appellant]. In saying that, I have not only considered the individual acts but also whether, when combined, the acts would amount to an act of family violence.
However, I am not satisfied that, even combined, the incidents would amount to an act of family violence. That is because I am satisfied that the acts were the result of normal emotional distress following the breakdown of a relationship and were not acts that were intended to coerce or control or designed to - or intended to cause fear such as to amount to family violence. In relation to the Find My Phone incident, whilst that may potentially amount to an act of family violence by [the respondent] involving stalking [the appellant], as I've said, I am not satisfied that there's any likelihood of any repetition of any similar behaviour in the future such that a restraining order would be appropriate or necessary.
[33] ts 113 (30 June 2023).
Response to grounds of appeal
Appeal Grounds 1, 2 and 3 essentially contend that the learned magistrate failed to properly apply and have regard to the definition of family violence and the objects and principles of the Act set out in s 10A and s 10B as they apply to FVRO applications.
The appellant acknowledged that Grounds 1 - 3 of the appeal may also properly be considered as part of the errors demonstrated by the learned magistrate in the particulars contended at Ground 4. The respondent concedes that if the appellant succeeds on Ground 1, she must also necessarily succeed on Ground 4.
Grounds 5 and 6 rely on errors of law on the part of the learned magistrate and overlap with the errors relied on in Grounds 1 - 4.
Insofar as all grounds raise the same error of law, I will address them together.
Grounds 1 - 6
In relation to Ground 1, the appellant identifies the error of law as the magistrate's statement that (with the appellant's emphasis):[34]
In my view, to be acts constituting family violence and acts to which this Act is designed to prevent, there needs to be a level of coercion or control or violence, threats or violence or other acts designed and intended to cause fear. Rudeness is not enough.
[34] ts 94 (30 June 2023), HB 801.
The appellant's position is that intention of an alleged perpetrator is absent from the definition of family violence and cannot be considered as a 'critical' factor by a decision‑maker. The appellant says such an interpretation is inconsistent with law[35] and the objects and principles of the Act.
[35] Interpretation Act 1984 (WA) s 18.
The appellant contends that the definition of family violence is properly construed by reference to the relevant impact on the victim, namely coercion, control, or fear. The appellant says this is evident from the wording of s 5A(1)(b) in which the intention of the perpetrator is absent from the definition. Instead, what is important is that it is 'any behaviour' that 'coerces or controls' or 'causes' the person protected to be fearful.
In relation to Grounds 2 and 3, the appellant submits that, having regard to s 10A and s 10B of the Act, the learned magistrate erred in law by placing weight on the intention of the respondent and failing to consider the objective effect of his conduct.
The appellant acknowledges that a respondent's intentions may be relevant in considering whether a respondent was likely again to commit family violence against the appellant in the future.
However, the appellant submits that whether behaviour is coercive, controlling or which causes a person to be fearful is judged by an objective standard.[36]
[36] Baron v Walsh [2014] WASCA 124 [20].
An applicant for a FVRO 'does not need to prove that they were coerced, controlled or were fearful but the subjective effect on the applicant can be relevant to whether the court should make a FVRO in all of the circumstances'.[37]
[37] Pronk v Verhagen [2019] WADC 70 [41].
The appellant submits that the learned magistrate's reasons make clear that the intention of the respondent was the critical factor in determining whether each set of conduct amounted to family violence. The appellant points to the learned magistrate's particular findings in respect of conduct 1, 2, 4, 5, 6, 7, 8 and 10 which focussed on the respondent's intention, motivation or design in engaging in the conduct.
The appellant submits the definition applied by the learned magistrate, in which 'there needs to be a level of coercion or control or violence, threats or violence or other acts designed and intended to cause fear', places an onus of proof on an applicant for a FVRO to prove the other party's state of mind, which is not found in s 10D(1) and which, necessarily, will always be almost impossible to meet in the context of such applications.
The appellant asserts that, therefore, the learned magistrate adopted an incorrect definition of family violence which permeates the entirety of her decision‑making. The appellant says the learned magistrate's dismissal of the appellant's application was as a result of this error of law.
The respondent says the appellant has failed to make out any of its grounds of appeal or to establish that any error of law impacted the decision of the learned magistrate.
The respondent says Grounds 1 to 4 all rely on the central proposition in Ground 1 that the magistrate erred in law by failing to apply or properly apply the definition of family violence pursuant to the Act.
The respondent asserts that the state of mind of the respondent is relevant to s 5A(1) of the Act, which does require a court to look at the behaviour of a respondent.
The respondent points to occasions in which this court has recently considered evidence from a party as to their intention in whether or not to grant a final order:
1.DB v RB:[38] where it was found that the magistrate did not make an error of fact or law in granting a final order of two years, where the magistrate considered before him evidence that the appellant intended to remain in Australia for some months after the hearing.
2.Potschick v Bruce:[39] where the respondent's intention to not communicate with the applicant in the future was considered a relevant factor for not ordering a final order.
[38] DB v RB [2020] WADC 93 [108] - [111].
[39] Potschick v Bruce [2018] WADC 107 [24], [27] - [28].
The respondent says, it is not appropriate to scrutinise oral reasons of a judicial officer in a busy court with a fine‑tooth comb, not to infer from infelicity of language that error is demonstrated.[40]
[40] Picking vMyren [2020] WASC 482.
The respondent submits the learned magistrate had proper regard to the evidence before her, even if she did not specifically refer to all matters in that evidence, and made clear at the outset she was aware of the statutory definition of family violence and the behaviours that may constitute family violence, including the statutory examples.
In relation to s 5A(1) of the Act, specifically 'behaviour' which 'coerces or controls', or 'causes the member to be fearful', the respondent agrees the behaviour must be objectively capable of having one or more of those effects.[41] The respondent identified two occasions in which the learned magistrate, in her findings, referred to an objective standard.[42] The respondent says I can imply that the learned magistrate applied the relevant standard.
[41] Baron vWalsh [20]; Pronk.
[42] ts 106 and ts 107 (30 June 2023), HB 813 and HB 814.
The respondent submits it is permissible to have regard to the context and intention of a party to establish whether or not their behaviour meets an objective standard.
The respondent says there is no error of law in the magistrate's reasoning and there is no express finding by the magistrate that she considered the respondent's intention as the only relevant factor in connection with his behaviour.
The respondent asserts that a full examination of the magistrate's findings demonstrates that she properly considered the context of each event. The respondent says the magistrate made findings in context of the nature of the parties' relationship at the relevant points in time and in the context that there were no allegations of family violence until the relationship had broken down.[43]
[43] ts 96, ts 97 (30 June 2023), HB 804 and HB 805.
Ground 5 centres on the submission the learned magistrate erred in law and in fact in finding that the appellant engaged in an act of family violence against the respondent on 13 September 2021.
Both the appellant and respondent rely on the relevant context to this incident as addressed in the response to Ground 4.
It was not in dispute that the respondent attended the appellant's residence without invitation and refused to depart when asked.
The appellant asserts that it is improbable that a parent could commit an act of family violence against another parent when they are lawfully exercising parental responsibility and authority in their own home, or when they are preventing the other parent from entering the home or engaging with the children in or at that home when that other parent has no rights of access.
The appellant asserts such a finding would be contrary to the objects identified at s 10A(c) of the Act and the principles at s 10B(1)(c) and s 10B(1)(i) and would also fail to have regard to the matters identified in s 10F(1)(c) and s 10F(1)(d) of the Act.
The respondent says it was open to the magistrate to find that the appellant's behaviour in denying the respondent access to his daughter, in circumstances where the daughter was distressed and complaining of being hurt, was an act of family violence by the appellant against the respondent.[44]
[44] ts 110 (30 June 2023), HB 817.
In any event, the respondent says that a finding by the learned magistrate that the appellant engaged in an act of family violence was not relevant to her determination in respect of the FVRO the subject of this appeal.
Ground 6 centres on the submission the learned magistrate erred in law in finding that the respondent were not likely again to commit family violence against the appellant in the future.
The appellant submits that, having concluded that the matters complained of by the appellant were not conduct that constituted family violence, the learned magistrate did not engage in sufficient consideration of this issue.
In particular, the appellant contends that the learned magistrate erred in concluding that the actions by the respondent to attend at Mother's Day 2022, the sports event in September 2022 and the concert in December 2022, which constituted breaches or potential breaches of the IFVRO or other orders, were 'not of any real significance to the issues to be determined by me'.[45]
[45] ts 112 (30 June 2023), HB 819.
The appellant submits that, in dismissing the significance of these events, the learned magistrate failed to take into account relevant considerations, namely:
(a)the respondent's ongoing conduct in attending events and places in breach of the terms of the IFVRO;
(b)that the respondent and the appellant would have an ongoing relationship by virtue of their joint parental responsibilities; and
(c)that such relationship had already been the trigger for significant events including those such as took place on 13 September 2021.
The respondent submits that, because s 10D(l)(a) of the Act is conjunctive, in that it requires both a finding of family violence and a finding that this is likely to happen again in the future, if the first part of that section is not satisfied, there is no requirement to consider the second.
The respondent says that, in concluding that the events on Mother's Day 2022, the sports event in September 2022 and the concert in December 2022 were 'not of any real significance', the appellant has not pointed to an error of law on the part of the learned magistrate other than a general assertion that she erroneously applied the definition of family violence.
The respondent says therefore this is in essence a complaint about a finding of fact by the learned magistrate, rather than any appellable error.
The respondent says that, in fact, the learned magistrate did consider the attendances complained of and the ongoing nature of the parties' relationship as co‑parents, finding that she accepted the respondent's evidence that he no longer desired any form of intimate relationship with the appellant, just one of co‑parenting.[46]
[46] ts 113 (30 June 2023), HB 820.
The respondent points out the learned magistrate had set out the principles relevant to the consideration under s 10D(l)(a) of the Act of whether a respondent is likely to commit family violence against that person in the future.[47] The respondent says it may be presumed she considered these principles.
[47] ts 93 - ts 94 (30 June 2023), HB 800 and HB 801.
Analysis and conclusion Grounds 1 - 6
As referred to above, at the commencement of her decision, the learned magistrate set out the relevant provisions of the Act, including the definition of family violence in s 5A(1). She made the statement referred to at [49].[48]
[48] ts 94 (30 June 2023), HB 801.
The learned magistrate appears to have conflated the considerations set out in s 5A(1)(b) in requiring 'a level of' coercion or control or violence, threats of violence or other acts, where that level is 'designed and intended to cause fear'. Such an expression of the law is contrary to the text of the section, which encompasses behaviour which coerces or controls or causes fear, all expressed to be in the alternative. The state of mind of the perpetrator is irrelevant.
Other than the reference to the assessment of a respondent's subjective design or intention to cause fear, the learned magistrate did not refer to any other criteria to be applied in assessing what conduct constitutes family violence. In particular, the learned magistrate made no reference to the well stated principle that the test as to whether behaviour is coercive, controlling or which causes a person to be fearful is judged by an objective standard.[49]
[49] Baron v Walsh [20]; Pronk v Verhagen [41].
At law, the conduct in question, viewed objectively, must be capable of having one or more of those effects. An applicant for a restraining order does not have to prove that they were coerced, controlled or were fearful but the subjective effect on the applicant can be relevant to whether the court should make a FVRO in all of the circumstances.[50]
[50] Pronk [40], [41].
Section 5A(1) is expressed in a passive voice: 'coerces or controls' or 'causes … to be fearful'. It is the effect of the behaviour which the provision is designed to capture.
Such an interpretation is consistent with the objects and principles of the Act, and other provisions within the Act (such as s 10A and s 10D).
To conclude otherwise would place on an applicant for a FVRO the burden of proving the other party's state of mind. One would expect such an onerous requirement to be clearly indicated in the legislation. In this case, it is not.
The learned magistrate made an error in her summary of the definition of family violence.
It is apparent from the learned magistrate's reasons that she considered the subjective intention, motivation or design on the part of the respondent when making findings about whether Conduct 1,[51] Conduct 2,[52] Conduct 4,[53] Conduct 5,[54] Conduct 6,[55] Conduct 7,[56] Conduct 8[57] and Conduct 9[58] amounted to family violence.
[51] ts 98 (30 June 2023), HB 805.
[52] ts 99 (30 June 2023), HB 806.
[53] ts 102 (30 June 2023), HB 809.
[54] ts 104 (30 June 2023), HB 811.
[55] ts 106 - ts 107 (30 June 2023), HB 813 - HB 814.
[56] ts 108 (30 June 2023), HB 815.
[57] ts 110 (30 June 2023), HB 817.
[58] ts 113 (30 June 2023), HB 820.
On each occasion, the respondent's intention was given weight in her determination as to whether the conduct amounted to family violence.
The learned magistrate stated that intention on the part of the respondent was relevant to any fear of the appellant: Conduct 6.
The learned magistrate stated that the intention of the respondent was relevent to coercing or controlling and/or causing fear to the appellant: Conduct 2, Conduct 5, Conduct 7, Conduct 9.
The learned magistrate relied on the intention of the respondent to provide an explanation for his conduct generally: Conduct 1, Conduct 4, Conduct 8.
The learned magistrate did refer to an objective test, in the context of assessing whether behaviour amounted to family violence when assessing Conduct 5 and Conduct 6.
In respect of Conduct 5 it was said:
Whilst it could be said that requesting written confirmation that he could take the children on a holiday could amount to coercion and control, that act has to be viewed against the dysfunctional relationship that had developed at this time.
In respect of Conduct 6 it was said:
There is no doubt that a number of [the respondent]'s text messages sent between separation and September 2021 could be described as inappropriate and offensive but, in my view, when understood against the context that he had an honest belief that [the appellant] had cheated on him in circumstances where he thought there may have been prospects of reconciliation …
In my view, the messages are not acts of family violence. They are not, when viewed objectively, coercive or controlling or designed to make [the appellant] fearful. They are expression of emotion at a time when the relationship was dysfunctional.
In these instances, the learned magistrate appears to have considered that the respondent's conduct could have objectively amounted to family violence. However, what follows in respect of Conduct 6 is the application of a subjective test in respect of whether it was designed or intended by the respondent to coerce or control or make the appellant fearful in reaching her conclusion as to whether the conduct did amount to family violence.
A court may consider the context in which behaviour has occurred and the intention or motivation for the behaviour. Such considerations may be relevant to matters for determination under the Act, such as the second limb of s 10D(1)(a), whether a respondent is likely to commit family violence against the appellant in the future. The learned magistrate did not use these considerations in that way.
The learned magistrate used considerations of intention or motivation on behalf of the respondent either instead of or in addition to the objective impact or effect of the conduct on the appellant or a person in the appellant's position in determining whether the behaviour amounted to family violence.
This error of law permeated the learned magistrate's findings in respect of the first limb of s 10D(1)(a) of the Act.
This error of law also meant that the learned magistrate only considered the second limb of s 10D(1)(a) of the Act as to the likelihood of future acts of family violence in light of her finding that only one instance, Conduct 3, amounted to family violence.
This resulted in the learned magistrate considering the evidence in respect of the second limb in a vacuum. In particular, the learned magistrate did not attach any significance to:
(a)the respondent's ongoing conduct in attending events and places in breach or potential breach of the terms of the IFVRO or other court orders (Conduct 9); or
(b)the evidence that the respondent and the appellant would have an ongoing relationship by virtue of their joint parental responsibilities; and
(c)the evidence that such relationship has already been the trigger for other conduct, including Conduct 5, 6, 7 and 8.
The error of law as to the meaning of family violence therefore impacted the learned magistrate's findings in respect of the second limb of s 10D(1)(a) of the Act.
In relation to Ground 5, this concerns the learned magistrate's finding in respect of the appellant's conduct on 13 September 2021 as amounting to family violence. This finding was made without any reference to the specific aspect or aspects of s 5A(1)(b) of the Act to which that behaviour related; that is, was it behaviour that coerced or controlled or caused the respondent to be fearful?
In any event, as this finding was not directly relevant to the learned magistrate's findings in respect of the respondent's conduct, and whether that amounted to family violence, I do not propose to consider it further.
Ground 7
This ground concerns the learned magistrate's findings of credibility against the appellant and in favour of the respondent as to the nature of the ongoing relationship post separation and the ongoing intimate nature of that relationship. The appellant says these findings were contrary to the evidence and not open as a matter of fact and constituted a failure to properly exercise discretion.
It was conceded by the appellant and respondent that the findings of credibility in respect of Ground 7 only related to the learned magistrate's findings in respect of certain conduct, and did not impact the learned magistrate's findings of credibility in respect of the appellant more generally.
Given my conclusions in respect of Grounds 1 - 6, I do not need to consider Ground 7 further.
Relief sought
The appellant and respondent agreed that, if the court is minded to allow the appeal, it is appropriate for the court to exercise its discretion to rehear the matter, rather than remit it to the Magistrates Court for rehearing.
Accordingly, I consider it appropriate to determine the application by way of a 'reconsideration of the evidence' before the Magistrates Court.[59]
[59] MCCPA s 40(4)(a); DCR pt 6 r 50(1).
In light of this decision, I will now consider the application to adduce new evidence.
Determination of appellant's application to adduce further evidence
The evidence now sought to be adduced by the appellant involves events that occurred after the hearing before the learned magistrate. Therefore, it was not evidence that could have been adduced at the hearing.
The proposed evidence goes exclusively to the issue arising under the second limb of s 10D(1)(a); whether the respondent is likely again to commit family violence against the appellant in the future.
That limb requires a court to look prospectively, that is into the future, and make an assessment as to risk.
This is a somewhat different exercise to the normal considerations of a court exercising civil jurisdiction where the focus is ordinarily retrospective, that is on a past event. In those circumstances, evidence that arises post‑hearing usually ought to have been known at the time of hearing, hence the need for exceptional circumstances to be established before it can be considered on appeal.
However, in this case the learned magistrate's error of law means that the findings made on 30 June 2023 must be set aside. This court must now undertake a prospective exercise pursuant to the second limb of s 10D(1)(a).
While it could never have been known to the magistrate hearing the application originally, the evidence the appellant seeks to adduce is almost unique in its quality because it does, in fact, represent conduct of the respondent 'in the future', looked at from the perspective of when the original hearing occurred.
It does not have to be evidence of behaviour which constitutes family violence to assist in this exercise. It merely needs to be evidence which might establish, on the balance of probabilities, that the second limb of s 10D(1)(a) of the Act has been satisfied.
However, evidence that establishes a respondent has been willing to breach or risk breaching a court order or has continually disregarded reasonable requests of an applicant's legal representative is arguably evidence of behaviour falling within the definition in s 5A(1) of the Act in that it seeks to assert control.
It does so in the sense that it sends a message to a person protected by an order or who seeks to be shielded by a lawyer, that a respondent does not consider themselves bound by such an order or such a request and will continue to behave as they see fit.
The nature of the email communication sought to be adduced by the appellant demonstrates:
(a)the respondent continued to communicate with the appellant directly, via email, on 10 occasions over 10 days despite having been requested by the lawyer not to do so on at least three occasions;
(b)the nature of this communication was exclusively in relation to arrangements for the ongoing shared care of the children;
(c)the respondent was seeking to conduct handovers of the children other than in accordance with the Family Court Orders, and in so doing suggested he would attend the appellant's home in contravention of those orders,
(d)the respondent commenced this period of communication directly after the learned magistrate delivered her decision dismissing the applications for FVROs, and
(e)the respondent continued this period of communication until the appellant obtained an injunction in the Family Court preventing him from communicating directly with the appellant.
On a plain reading of the emails, and their timing, I do not accept these communications were, as the respondent suggested, 'equal attempts by both parties to agree to channels of communication with regards to the day‑to‑day shared parenting of their children, which neither party could agree to'.[60]
[60] Respondent's written outline of submissions dated 7 November 2023, par 13.
They demonstrate conduct by the respondent which immediately sought to take advantage of the cancellation of the appellant's IFVRO in order to subvert the Family Court orders and to exclude the appellant's lawyers from the communication about these issues.
This conduct goes directly to the question whether the respondent is likely again to commit family violence against the appellant in the future. This court must now consider that question because of the errors of law referred to above. On that basis, these are exceptional circumstances which justify the admission of the evidence.
Determination of application for FVRO
The appellant and respondent conceded at the appeal hearing that Conduct 1 - 9, as set out above at [33] ‑ [47], were not in any dispute as incontrovertibly established facts. I intend to determine the application based on those established facts and applying the relevant provisions of the Act.[61]
[61] Section 5A(1), s 10D(1)(a), s 10F of the Act.
Accordingly, I do not need to review any findings of credibility or fact made by the learned magistrate.
Based on the undisputed facts, the respondent did the following:
1.On 9 April 2021 the respondent attended the appellant's address late at night between 10.00 pm and 11.30 pm. The respondent was not invited at that time. Subsequently the respondent left and was later served at his home with a police order by police officers. He re‑attended the appellant's property at about 1.00 am on 10 April 2021, in breach of that police order. He later pleaded guilty to a charge of breaching the police order.
2.On 10 April 2021 the respondent removed funds ($500) from the respondent and appellant's joint bank account, leaving her temporarily with no access to money.
3.Between 14 and 15 May 2021 the respondent used the 'Find My iPhone' application to locate the appellant at an address in Clarkson. The respondent subsequently attended the property where she was located. The respondent later sent the appellant a series of text messages including the one at 12.50 am which referred to the appellant as a 'fucking slut', and included statements such as; 'Answer now, just answer me or this is going to end up a lot worse', 'Most of your shit is in your car and the rest will be on the front verge. Hope you enjoy sucking his cock.'
4.On 7 June 2021 the respondent went to the home of the male owner of a utility vehicle he had seen at the appellant's house, which was the same address in Clarkson. The respondent subsequently sent a number of text messages to the appellant the details of which appear above at [35].
5.On 4 September 2021 the respondent sent to the appellant a series of text messages that were abusive in nature, the details of which appear above at [37] and sent a message on 10 September 2021, the details of which appear at [41].
6.On 13 September 2021, the respondent attended at the appellant's house uninvited and remained there for three hours until police attended and served him with the IFVRO.
This conduct objectively is behaviour that coerces or controls the appellant or causes her to be fearful. It involves:
(a)monitoring her movements on one occasion and attending an address where she is or has been on two occasions;
(b)attending at her home uninvited on two occasions on 9 April 2021; the first late at night then later returning in the early hours of the morning in direct and almost immediate breach of a police order;
(c)attending at her home uninvited on another occasion on 13 September 2021 and remaining there for 3 hours after being asked to leave;
(d)on one occasion, immediately being after served with a police order, removing her immediate access to money, in circumstances where the children were also in her care; and
(e)sending numerous messages over a 4‑month period which contained objectively offensive, abusive, threatening or controlling content.
I am satisfied on the balance of probabilities the respondent has committed family violence against the appellant.
I must now consider whether it has been proved to the same standard that the respondent is likely again to commit family violence against the appellant in the future.
I take into account the same evidence, in particular that this conduct occurred:
(a)over a 4-month period;
(b)at a time proximate to the breakdown of the relationship;
(c)in the context of a relationship where the appellant and respondent share two young children; and
(d)on one occasion in breach of a police order.
I also take into account the evidence in relation to Conduct 9, which demonstrates a tendency for the respondent to breach or be reckless as to breaching court orders.
I take into account the new evidence contained in the email correspondence, in particular:
(a)the respondent's first email occurred directly after the hearing at which the learned magistrate dismissed the applications for FVROs, and continued persistently for 10 days;
(b)the emails demonstrate the respondent ignored the requests by the appellant's lawyer not to contact her directly on three occasions;
(c)the emails are evidence of ongoing Family Court proceedings; and
(d)the emails are evidence of ongoing disputes between the appellant and respondent in respect of the implementation of Family Court orders.
While the immediate period post‑separation has passed, and some personal feelings may have been resolved, the following is significant:
(a)the respondent has committed acts of family violence in the past;
(b)one of those acts occurred in breach of a police order and other conduct by the respondent shows a tendency by him to breach or be reckless as to breaching court orders;
(c)the respondent has demonstrated little or no insight into the nature and consequences of his conduct;
(d)some of this behaviour has arisen in the context of the respondent's focus on the appellant's possible other relationships;
(e)there are ongoing conflicts surrounding shared care of the children, and Family Court orders have not resolved these conflicts;
(f)the children are still in primary school, so shared care will continue for several years, and
(g)there is a likelihood of the appellant and respondent commencing new relationships during that time.
On that basis, I am satisfied on the balance of probabilities the respondent is likely again to commit family violence against the appellant in the future.
There are no special circumstances that would make it inappropriate to grant the order.
Accordingly, I grant a final FVRO for a period of 2 years from the date of this order. I will hear from the parties as to the terms of the FVRO.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DB
Associate to Judge Zempilas
13 DECEMBER 2023
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