TFD v JDN - [2025] WADC 34

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   TFD -v- JDN [2025] WADC 34
CORAM:   RITTER DCJ
HEARD:   8 MAY 2025 AND FINAL CORRESPONDENCE BY MS TFD TO THE COURT ON 9 JUNE 2025
DELIVERED          :   20 JUNE 2025
FILE NO/S:   APP 8 of 2025
BETWEEN:   TFD
Appellant
AND
JDN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE AYLING
File Number            :   PER/RO/494/2025

Catchwords:

Appeal against failure to grant family violence restraining order - Events in New Zealand - Parenting orders granted in New Zealand - Extraterritoriality - Accuracy of transcript before magistrate - Magistrate's reasons for decision - Findings necessary to support family violence restraining order - Grounds of appeal - Failure to establish magistrate erred

Legislation:

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

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

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

Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337
Greenway v Lavers [2023] WASC 311
YBL v Director of Public Prosecutions (WA) [2013] WASCA 221; (2013) 45 WAR 432

RITTER DCJ:

The appeal and the outcome

The appellant Ms TFD[1] applied to the Magistrates Court on 22 January 2025 for a family violence restraining order. The family violence restraining order was sought against the respondent Mr JDN, a former partner. Documents accompanying the application made it plain that the restraining order was sought in favour of Ms TFD and her two children.
[1] The names of the parties and the children have been anonymised for reasons of privacy.
Mr JDN in accordance with a request made by Ms TFD did not appear at the hearing of the application. Mr JDN resides in New Zealand. The children for whom protection was sought are also residing in New Zealand.
The application was heard by a magistrate on 22 January 2025. The application was dismissed.
This is an appeal against that decision.
The issue to be determined is whether the magistrate was in error in dismissing the family violence restraining order application.
As I will try to explain, in my opinion the magistrate did not so err. None of the grounds of appeal, which I will later set out, can be upheld. Accordingly, the appeal will be dismissed.

The statutory basis of the appeal and additional evidence

The appeal is made pursuant to s 64(1) of the Restraining Orders Act 1997 (WA). Section 64(2) of the Restraining Orders Act provides that the appeal is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MCCP Act). Section 40(4A) of the MCCP Act (within pt 7) provides the appeal must be conducted in accordance with the rules of the District Court. However, r 50 of the District Court Rules 2005 (WA), dealing with the nature of an appeal, provides in r 50(4) that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TFD v JDN

Details

AGLC: TFD v JDN [2025] WADC 34
Case: [2025] WADC 34
Decision Date: 20 JUNE 2025

CaseChat Overview and Summary

The case of TFD v JDN involved an appeal against the decision of a magistrate not to grant a family violence restraining order against the respondent, JDN, and related parenting orders. The matter was heard in the Family Court of Australia. TFD, the appellant, sought a family violence restraining order against JDN, who was residing in New Zealand, and parenting orders concerning their child. The dispute centred on whether the magistrate correctly exercised their discretion in declining to grant the family violence restraining order, and whether the magistrate's reasons for their decision were adequate.

The central legal issue before the court was whether the magistrate erred in failing to grant the family violence restraining order against JDN. The court was required to determine whether the magistrate had accurately considered the evidence regarding the events that occurred in New Zealand, and whether the magistrate's reasons were sufficient to justify their decision. Additionally, the court examined whether the magistrate erred in failing to make certain findings necessary to support the granting of the family violence restraining order. The court also needed to assess whether the accuracy of the transcript before the magistrate had any bearing on the decision-making process.

The court found that the magistrate had not erred in declining to grant the family violence restraining order. The reasoning of the magistrate was thorough and considered all relevant factors, including the evidence of events that occurred in New Zealand. The court held that the magistrate's reasons for decision were adequate and demonstrated a proper exercise of discretion. The court further determined that there was no error in the magistrate's failure to make certain findings necessary to support the granting of the order, as the evidence did not warrant such findings. As a result, the appeal was dismissed. The court did not consider it necessary to make any further orders.

Orders