WWW v DET
[2024] WADC 84
•4 OCTOBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WWW -v- DET [2024] WADC 84
CORAM: GETHING DCJ
HEARD: 1 AUGUST 2024
DELIVERED : 4 OCTOBER 2024
FILE NO/S: APP 44 of 2023
BETWEEN: WWW
Appellant
AND
DET
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE C CRAWFORD
File Number : MC/CIV/PER/RO/513/2021
Catchwords:
Appeal from the Magistrates Court - Restraining Orders Act 1997 (WA) - Whether the Appellant was denied procedural fairness by the Magistrate declining to exclude the Respondent's mother from the public gallery - Whether the Appellant was denied procedural fairness by the manner in which his cross‑examination was controlled and limited - Whether the Appellant was denied procedural fairness by the manner in which his evidence‑in‑chief was controlled and limited - Whether the Appellant was denied procedural fairness as a litigant in person - Whether the Appellant was denied procedural fairness by the Magistrate changing the case he had to meet
Evidence - Options open to the court when there has been non‑compliance with the rule in Browne v Dunn
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 13, s 16
Restraining Orders Act 1997 (WA), s 10E, s 44A, s 44C, s 44D, s 44F, s 68
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Ms J S Yeap |
| Respondent | : | Ms T J Wall |
Solicitors:
| Appellant | : | JSY Legal |
| Respondent | : | Bannerman Solicitors |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314
Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130
Blenkinsop v Holland [2018] WADC 146
Browne v Dunn (1893) 6 R 67
Bulstrode v Trimble [1970] VR 840
Burke v Corruption and Crime Commission [2012] WASCA 49
Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289
Children's Guardian v CF1 [2020] NSWSC 1673
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Crosthwaite v Corporation of the City of Elizabeth (1989) 51 SASR 105
Davie v Manuel [2024] WASCA 21
Defendi v Szigligeti [2019] WASCA 115
Fried v National Australia Bank Limited (2000) 175 ALR 194
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ho v Lonergan [2013] WASCA 20
Hofer v The Queen [2021] HCA 36
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
House v The King (1936) 55 CLR 499
JC v TH [2024] WADC 58
Jones v Darkan Hotel [2014] WASCA 133
Kelly v Fiander [2024] WASC 275
Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12
Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243
Libke v The Queen (2007) 230 CLR 559
MacPherson v The Queen (1981) 147 CLR 512
Manonai v Burns [2011] WASCA 165
Marks v Coles Supermarkets [2021] WASCA 176
Mechanical & General Inventions Co Ltd & Lehwess v Austin & Austin Motor Co Ltd [1935] AC 346
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Murray v Feast [2023] WASC 273
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36
Nugawela v American Express Australia Ltd [2016] WADC 170
Ogbonna v CTI Logistics Ltd [2021] WASCA 21
Ogbonna v CTI Logistics Ltd [2021] WASCA 22
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
R v Allen [1989] VR 736
R v Birks (1990) 19 NSWLR 677
R v Kelly; Ex parte Hoang van Duong (1981) 28 SASR 271
R v Schneidas (1981) 4 A Crim R 101
R v T, WA (2014) 118 SASR 382
Ramsay v Australian Postal Commission (2005) 147 FCR 39
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Reliance Capital Pty Ltd v Caratti [No 8] [2024] WASC 56
Reynolds v Rayney [2023] WASCA 144
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550
Rolfe v Katunga Lucerne Mill Pty Ltd [2005] NSWCA 252
Rowe v Stoltze [2013] WASCA 92
Saunders v The Public Trustee [2015] WASCA 203
Seddone v Commonwealth Bank of Australia [2024] WASCA 70
Sethi v Bhavsar [2020] WASCA 52
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Shilkin v Taylor [2011] WASCA 255
Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107
Smart v Power [2019] WASCA 106
Smart v Prisoner Review Board (WA) [2012] WASC 48
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd (No 2) [2017] WASCA 142
Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
TAH v The Public Advocate [2024] WADC 71
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239
Tomasevic v Travaglini (2007) 17 VR 100
Total Value Auto & Finance Pty Ltd v Small [2004] NSWSC 1040
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA 149
Wreford v Castleyheard Pty Ltd [No 3] [2024] WASCA 2
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
Zurich Australian Insurance Ltd v Motor Accidents Authority of NSW [2009] NSWSC 1314
GETHING DCJ:
Introduction
On or about 18 May 2019 the Appellant and Respondent[1] separated after a relationship lasting approximately seven years. They had two daughters together, who at the time of this decision are 8 and 7 years old.[2] The parties have been involved in proceedings in the Family Court, in particular on the issue of custody.
[1] I will on occasions refer to the Appellant by his initials 'WWW' and the Respondent by her initials 'DET' for ease of reference in particular contexts.
[2] Whom I will refer to as 'ECW' and OAW' respectively.
On 29 January 2021 the Respondent applied (Application) for an interim family violence restraining order (FVRO).[3] An interim FVRO was granted on 29 January 2021. It only protected the Respondent, and not the children.
[3] The Magistrates Court file is before the District Court by way of an electronic matter book. References to pages of the Matter Book will be 'MB #'. The Application is at MB 266 - MB 269.
The Appellant objected to the making of a final FVRO, so the matter proceeded to a final order hearing. The trial went over five days. On 18 August 2023, Magistrate Crawford (Magistrate) made a final FVRO (Final FVRO) protecting not only the Respondent but the children (Decision). It was for a period of five years from 18 August 2023.
The Appellant has appealed the Decision to the District Court essentially on the basis that during the final order hearing he was denied procedural fairness. This was in two respects. The first was the manner in which the Magistrate generally presided over the trial, which gave rise to concerns of both a denial of a reasonable opportunity to present his case and bias. The second related to the Magistrate's decision after the Respondent's case had closed, but before the Appellant commenced his case, to consider whether the children should be included in the terms of any order made.
For the reasons which follow, the Appellant has not satisfied me that he was denied procedural fairness during the final order hearing. Accordingly, the Appeal should be dismissed and the Final FVRO should stand.
Earlier proceedings
As there are repeated references to earlier proceedings between the Appellant and the Respondent, it is instructive to briefly summarise them at the outset.
On 27 June 2019 the Respondent filed an application for a FVRO. An interim FVRO was made. The matter was subsequently resolved upon the Appellant entering into a conduct agreement order (CAO). The COA was for 12 months commencing 20 January 2020. Whereas the interim FVRO extended to protect the children, the CAO did not. The Application (the subject of this Appeal) was thus made within 10 days of the CAO expiring on 20 January 2021.
On or about 9 July 2020, the Respondent commenced proceedings in the Children's Court seeking orders for the protection of the children. On 24 July 2020 an interim FVRO was made for the protection of the children. This went to a final order hearing on 17 December 2021 at which the court declined to make a final order.
Proceedings in the Magistrates Court
In the Application, the Respondent only identified herself as the person to be protected.[4] In response to the question - 'Why do you need a restraining order' - the Respondent checked boxes to the effect that the Appellant was committing personal or family violence, behaving in a way that made her believe that personal or family violence will be committed, exposing a child to family violence and behaving in a way that made her believe that a child would be exposed to family violence. Later in the form she elaborated, saying:
Over 60 breaches of FVRO/CAO - tried to source a gun, ammo and person to make people disappear.
Many past threats to kill and current hints.
Stalking - letting me know where we have been.
Harassing and emotional abuse, intimidation, name calling.
[4] MB 266.
The Application was initially heard on 29 January 2021.[5] The Respondent gave evidence. Magistrate Johnston granted an interim FVRO. Her Honour discussed with the Respondent the fact the interim FVRO would not prevent the Appellant communicating with the children pursuant to any order made by the Family Court. The interim FVRO only identified the Respondent as the person protected by the order.[6]
[5] MB 1167 - MB 1175.
[6] MB 237 - MB 238.
The Appellant objected to the interim FVRO.[7]
[7] MB 235.
There was a somewhat convoluted history in the Magistrates Court which I do not need to consider for the purposes of the Appeal. It suffices to say that the Application proceeded to a trial before the Magistrate. The trial took place over 11 and 12 October 2022 and 22 ‑ 24 March 2023. The Appellant was a litigant in person. The Respondent was represented by counsel. Both the Appellant and Respondent gave evidence. The other witnesses were a long-term friend of the Respondent's mother (whom I will refer to as 'MS'), the Respondent's older sister (whom I will refer to as 'KH') and her younger sister (whom I will refer to as 'AP'). The Magistrate reserved her decision.
The Magistrate convened a short hearing on 27 July 2023 to discuss the terms of the Final FVRO. The hearing was adjourned to 18 August 2023 to allow the parties a short opportunity to provide submissions on the proposed terms of the Final FVRO.[8]
[8] MB 514 - MB 522.
As mentioned, the Magistrate made the Final FVRO at the hearing on 18 August 2023.[9] Prior to doing so, her Honour heard brief submissions from the parties on the terms of the Final FVRO. The Final FVRO was in the following terms:[10]
[9] MB 509 - MB 513.
[10] MB 5 and MB 6.
The duration of this order is 5 YEARS ( Final )
Pursuant to s60(2) of the Restraining Orders Act on substituted service, the Court directs that this FVRO may be served by a police officer taking the steps prescribed by s55(5)-(7) of the Act for oral service of a restraining order.
PART A: ORDERS. EXCEPT AS SET OUT IN PART B YOU MUST NOT:
be in possession of a firearm, a firearms licence or obtain a firearms licence,
be in possession of a explosives, any explosives licence or obtain an explosives licence,
cause or attempt to cause damage to any property in the possession of the Person Protected,
communicate or attempt to communicate with the Person Protected by any means whatsoever
including SMS or text messages or any other electronic means,
behave in an intimidatory, offensive or emotionally abusive manner towards the Person Protected,
harass the Person Protected by any electronic means, including by using the internet and any social
network application (such as "facebook") to depict or refer in any offensive manner to the person protected,
enter or remain upon [address redacted] or any other premises where the Person
Protected lives or works or is educated or be within 50 metres of the nearest external boundary of
those premises,
approach within 50 metres of the Person Protected,
distribute or publish, or threaten to distribute or publish, any intimate personal images of the person
protected, monitor the movement or communications of the Protected Person,
cause or allow any other person to engage in conduct of the type referred to in any of the preceding
paragraphs of this order on your behalf.
PART B. YOU WILL NOT BREACH THE ORDERS IN PART A IF YOU:
communicate with the Person Protected through an Australian legal practitioner as defined in the
Legal Profession Act 2008 or a person acting under section 48 of the Aboriginal Affairs Planning Authority Act 1972,
comply with a court order or parenting plan, made under the Family Law Act 1975 and Family Court Act 1997, allowing you to live with, spend time with, or communicate with a child or children named in that order or the plan,
participate with the Person Protected in family dispute resolution or family counselling as defined in the Family Law Act 1975 and Family Court Act 1997,
instruct a process server or bailiff or other person to serve any legal process requiring service on the Person Protected,
participate in and attend court events in proceedings in which the Person Protected and you are parties or witnesses, and to comply with any order or direction of a Court,
engage in any mediation as directed or ordered by a Court, or other mediation as agreed in writing by
the parties and as arranged by a mutually agreed third party,
PART C. ADDITIONAL ORDERS:
This order is extended to operate for the benefit of [ECW] (DOB: **/**/20**), and [OAW] (DOB: **/*/20**) and includes them as if they were the Person Protected.
As the Appellant was present in court when the Final FVRO was made, it took effect from 18 August 2023.
The Magistrate published detailed written reasons for the Decision.[11] The central part of her Honour's reason is as follows:[12]
I am satisfied, and find, that the parties were in a family relationship as defined in the RO Act. In terms of family violence I am satisfied and find that [WWW] engaged in behaviour that constitutes family violence as defined during the relationship and post separation.
The evidence demonstrated a pattern of behaviour, by [WWW] to [DET], over time. In the main this is not a case of physical violence, although there was some evidence of actual physical force directed to [DET]. There were significant threats made to, or in the presence of [DET] during the relationship and substantial harm caused to her, including fear of [WWW] for herself and the children, distress and ongoing stress and anxiety. The behaviour by [WWW] during the relationship, and subsequently, may be broadly described as controlling, emotionally abusive and intimidating. There is no question that it is family violence practiced over many years, the form or venue changing as circumstances changed.
After separation those circumstances included one or more Court orders restraining [WWW], inter alia, from communicating with [DET], but [WWW] found ways to continue the family violence for example the gold digger comment in the bank transfer, the derogatory comments to the children about their mother during Facetime, the persistence of telephone calls in breach of Family Court orders, the physical intimidation in the Family Court on 2 occasions. I am satisfied that [WWW] has, to some extent modified his behaviour towards [DET] in order to persist with behaviour which denigrates her, is intimidating and/or is harassing or intimidating so as to minimize the risk of prosecution for breach of the IFVRO.
[11] Which I will refer to as the 'Primary Court Reasons'.
[12] Primary Court Reasons [204] - [206].
The Magistrate specifically addressed the issue of the extension of the order to protect the children. Given the centrality of this issue to the Appeal, I will quote her Honour's findings in full:[13]
[13] Primary Court Reasons [218] - [219].
In light of the evidence of the exposure of the children to family violence and [DET]'s submission to extend the FVRO to protect the children it is necessary to consider that issue specifically.
One of the most telling pieces of evidence regarding exposure of the children to family violence was [ECW]'s reaction to her cousin messing up the toys in the doll's house, at her maternal grandmother's house shortly after separation. [MS] described [ECW] as really distressed, crying and screaming, "you can't mess up the house because Daddy will scream at us". I accept that evidence and find that [ECW] behaved in that manner.
In her evidence [MS] spoke of [ECW]'s response to her father when he said negative things about her mother during calls between [WWW] and the children, which in summary were to make a joke of it, then try to change the subject, only to have her father say things like, "did mummy stop you from seeing me". [AP]'s evidence about observations of court ordered telephone calls between [WWW] and the children, corroborated [DET]'s and [MS]'s evidence of the nature and content of [WWW]'s comments about their mother. I accept and find that [WWW] made comments during those court-ordered telephone calls, as follows:
(a) "your mum is not looking after you",
(b) "you've been on a holiday and there will be a consequence for that"
(c) "Nanna who you live with is evil and the police are getting her"
(d) "You're starting to look like your mummy. I hope you don't turn out like that bitch"
All of the above comments were, on the face of it, directed to one or both of the children. The sessions are for the express purpose of the children having contact with their father. [DET]'s only role is to facilitate the contact by ensuring the children are available to participate and to make the call, as per the Family Court orders. However, it is clear that [WWW] also intended to denigrate [DET], or make derogatory remarks about her, in relation to (a) and (d). Said by one parent to a child, about their other parent, these comments are emotionally abusive, if not psychologically harmful, intended as they are to undermine the child's trust and confidence in their primary caregiver.
Comment (b) is clearly directed to [DET], and intended to be threatening and/or intimidating. Young children may not understand the language, or the meaning of words, but are likely to perceive, or feel, strong emotion, such as anger. These are children who, I accept and find have been around when their father has been shouting, yelling, angry and aggressive to their mother, for example the behaviour at the Moomba Festival in Melbourne in 2019. Indeed [WWW] conceded in his evidence that the children had been present on one occasion in Melbourne when he had "raised his voice" at [DET]. The children are likely to have perceived a threat directed to their mother implicit in the words "there will be a consequence".
Comment (c) characterized the maternal grandmother with whom they were living as evil, and conveyed the idea that the police would get her. For young children they are simple, but powerful, concepts; evil and the police taking someone away, which depending on the maturity of the child, may cause apprehension, if not fear. The comment is directed to one or both children, intended, inter alia to suggest that their grandmother is a bad person. This is abusive of the children, emotionally abusive, and has the potential to cause psychological harm.
[WWW]'s use of Facetime to make derogatory and/or abusive remarks to or about [DET], to which the children have been exposed, or indeed abusive and/or derogatory remark/s to one or both children … in the context of the history of family abuse to which I am satisfied the children were exposed prior to separation, calls for the extension of the FVRO to protect the children. The children remain at risk of exposure to family violence. There is nothing to suggest that [WWW] understands the adverse impact, indeed harm, likely to be suffered by the childrens' exposure to family violence. There is nothing to suggest that [WWW] will cease his engagement in family violence. The children need to be protected in accordance with s.10B(1)(a)(b) and (c) of the RO Act, in light of the past exposure to family violence and the likelihood of future exposure, in accordance with s10E(1)(a). Alternatively I am satisfied that [DET] has reasonable grounds to apprehend that one or both children will continue to be exposed to family violence in future by [WWW], pursuant to s10E(1)(b).
No submissions were made regarding the existence of special circumstances that would make the extension of the FVRO for the protection of the children inappropriate. In view of the Family Court orders, and ongoing proceedings regarding the children, and the legislative priority accorded to orders by the Family Court I do not consider that the extension of the FVRO to the children will prevent contact between [WWW] and the children. Rather it will be a matter for the Family Court to regulate any contact in the best interests of the children.
The Appeal
The Appeal was commenced by appeal notice filed 8 September 2023. This was within the required 21 days from the date of the Decision.[14] As the Decision was to make a final order, the Appeal is within the appellate jurisdiction of the District Court.[15]
[14] Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(3) (MCCPA).
[15] Restraining Orders Act 1997 (WA) (ROA) s 64(1)(b)(i).
On 5 October 2023 the Respondent filed a Notice of Respondent's Intention indicating that she would argue the Decision should be upheld on the grounds relied on by the Magistrate.
At a directions hearing on 26 March 2023 the Appellant was given leave to file and serve an amended appeal notice by 26 April 2024. He complied with this direction, filing an amended appeal notice on that date. When the Appeal came on for hearing on 11 June 2024, her Honour Judge Tovey granted the Appellant leave to further amend the grounds of appeal. The final amended appeal notice which was the subject of the hearing before me was filed 12 July 2024 (Amended Appeal Notice).
The District Court must decide the Appeal on the material and evidence that was before the Magistrate.[16] The court can give leave to admit other evidence, but only in exceptional circumstances.[17]
[16] MCCPA s 40(4)(a).
[17] MCCPA s 40(4)(b), s 40(5).
On 11 July 2024 the Appellant filed an affidavit sworn that date (July Affidavit), together with an application for leave to adduce this further evidence. He needs, and has sought, leave to adduce this evidence. I return to this issue in pt 6.
Both counsel for the Appellant and counsel for the Respondent filed written submissions.
The Appeal is by way of a 'reconsideration of the evidence' that was before the Magistrate.[18] The court does not hear afresh all of the evidence.[19] Rather, the Appeal is to be undertaken by way of a re‑hearing.[20]
[18] District Court Rules 2005 (WA) (DCR) r 50(1).
[19] Smart v Power [2019] WASCA 106 [100] (judgment of the court) (Smart).
[20] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] (Gleeson CJ, Gaudron & Hayne JJ) (Coal and Allied).
In an appeal by way of re-hearing, ordinarily, and absent further evidence or a relevant change in the law, the court can exercise its appellate powers only if satisfied that there was an error on the part of the primary court; the power is to be exercised for correction of error.[21] There must be a material error of law, fact, discretion or other miscarriage of justice.[22] In doing so, the appeal court must conduct a 'real review' of the evidence given at first instance and of the primary decision‑maker's reasons for decision to determine whether there has been an appellable error.[23]
[21] Coal and Allied [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ) (Allesch); Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J, with whom Buss JA & Beech J agreed).
[22] Allesch [23]; Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks); Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd[2021] WASCA 130 [460] (judgment of the court) (Binningup).
[23] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550 [43] (judgment of the court) (Robinson Helicopter); Australian Securities and Investments Commission v Kobelt [2019] HCA 18 [47] (Kiefel CJ & Bell J); Marks [127]; Smart [101].
The onus is on the Appellant to demonstrate the existence of an appellable error.[24] It is not sufficient for the Appellant to satisfy the court that a decision other than that made by the Magistrate was correct and preferable.[25]
[24] Smart [100]; Jones v Darkan Hotel[2014] WASCA 133 [31] (judgment of the court) (Jones).
[25] Marks [124].
The grounds of appeal set out in the Amended Appeal Notice are as follows:
1.The Magistrate erred in exercising her judicial discretion by refusing the Appellant's request to remove the Respondent's mother from the back of court during the course of the trial.
2.The Magistrate erred at law and in exercising her judicial discretion by not affording the Appellant procedural fairness during the course of the trial especially with regards to the Appellant being a self-represented litigant against the Respondent who was legally represented at the time, including as follows:
a. Lack of reasonable opportunity for the Appellant to adduce evidence and /or cross examine the Respondent;
b. Allowing the Appellant Respondent to admit into evidence, documents which were incomplete and therefore inadmissible;
c. Not affording the same opportunities to the parties in the presentation of their respective cases.
3.The Appellant was unwell at the time of the trial which negatively impacted on his ability to follow the proceedings and present his case in circumstances where the Appellant was, shortly after the trial, diagnosed with Stage 4 Follicular Lymphoma Cancer and had symptoms consisted with suffering from cancer at the time of the trial.
4.The Magistrate erred at law by making the final order for a duration of 5 years and / or extending the order to include the children in circumstances where:
a.With respect to the children, issue estoppel applies given the Respondent has previously applied to the Perth Magistrates Court and the Children's Court seeking the Children be protected by a Family Violence Restraining Order, against the Appellant, and was not successful after a Cancellation hearing with respect to a Final Order which relied on similar grounds and events as those raised at trial;
b.The initial interim order did not include the Children;
c.The Appellant was not afforded an opportunity to lead evidence with respect to the Children during the course of the hearing; and
d.The Magistrate only announced her intention to include the Children on the order on the last day of trial.
5.Due to the events raised in the above grounds, the Appellant was not afforded natural justice during the course of the trial before the Magistrate which resulted in a miscarriage of justice and an error at law.
At the hearing on 1 August 2024, counsel did not press ground of appeal 2(b).[26] This was on the basis that ROA s 44A(1)(a) provides that at a final order hearing, the court is not bound by the rules of evidence.
[26] DC transcript, 1 August 2024, page 16 (DC ts).
As to ground of appeal 3, at the hearing on 1 August 2024 I inquired of counsel for the Appellant as to whether at any point during the hearing he raised his health issues with the Magistrate and sought an adjournment. Counsel informed me that he did not. There was thus no relevant decision of the Magistrate which could be the subject of appellate intervention. On that basis, counsel did not press ground of appeal 3, so it falls away.[27]
[27] DC ts 4 - ts 5.
Nor did counsel press ground of appeal 4(a).[28] That concession was properly made. The essence of an issue estoppel is that the same factual question was finally determined on the prior occasion.[29] In the context of an application for an FVRO, even if facts A, B and C were considered in a prior application, once facts D, E and F (which arose later) are added to the factual matrix, the factual question for determination is necessarily different.
[28] DC ts 17 - ts 19.
[29] Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107[44] - [47] (judgment of the court).
At the hearing before me counsel grouped the remaining grounds into two main themes. The first main theme is that the manner in which the Magistrate generally presided over the trial gives rise to concerns of both a denial of a reasonable opportunity to present his case and bias. Counsel submitted that the Magistrate 'was inconsistent in the exercise of her judicial discretion', echoing what is in ground of appeal 2.[30] However, it was apparent from submissions that this was a reference to the way in which the Magistrate treated the Appellant in contrast with the Respondent. This theme reflected in the substance of the concern underpinning grounds of appeal 1, 2(b) and 2(c). It is also evident in the evidence set out in the July Affidavit. The submissions do not in substance raise an issue of appellate intervention on the basis that in making the Decision, the Magistrate erred in the exercise of her discretion in the sense outlined in House v The King.[31] Rather in substance it is a submission that in treating the Appellant differently from the Respondent, the Magistrate both denied him procedural fairness and appeared to be biased against the Appellant.[32] A decision which is tainted by bias is a breach of procedural fairness which is in turn an error of law justifying the decision being set aside.[33]
[30] DC ts 5.
[31] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ) (House); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [38] (Gageler J) (SZVFW); Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [53] (judgment of the court); Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [184] ‑ [185], [204], [241] (judgment of the court) (Lawrence); As to the when a decision will be discretionary, see generally: SZVFW [35] - [50].
[32] Which counsel ultimately submitted: DC ts 9 - ts 10.
[33] Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10] (reasons of the court) (Charisteas); Wreford v Castleyheard Pty Ltd [No 3] [2024] WASCA 2 [38] (judgment of the court) (Wreford).
The second related to the Magistrate's decision after the Respondent's case had closed, and before the Appellant commenced his case, to consider whether the children should in included in the terms of any order made. The Appellant says he was not allowed to make opening submissions, ask questions or lead evidence in relation to the children. This theme picks up grounds of appeal 2(a), 4(b), 4(c) and 4(d) and 5. It raises the issue as to whether the Appellant was denied procedural fairness on the basis that the case he had to meet changed during the hearing to his prejudice.
This gives rise to six issues for determination:
•Should the Appellant be given leave to adduce any additional evidence?
•Did the Magistrate deny the Appellant procedural fairness by declining to exclude the Respondent's mother from the public gallery?
•Did the Magistrate deny the Appellant procedural fairness in the manner in which the trial was conducted?
•Was the Magistrate biased against the Appellant?
•Did the Magistrate deny the Appellant procedural fairness by changing the case he had to meet?
•What final orders are appropriate?
These issues are considered in pts 6 to 11. Before looking at these individual issues, it is necessary to review the manner in which the trial proceeded in some detail, which is undertaken in pt 5.
The manner in which the trial proceeded
The trial commenced with the Magistrate inviting counsel for the Respondent make an opening address. The two salient points of the opening address for the purposes of the Appeal are that counsel for the Respondent:[34]
(a)only sought a final FVRO in favour of the Respondent;
(b)but did seek an order for five year's duration.
[34] MB 999.
Once counsel for the Respondent had finished her opening address, the Magistrate explained to the Appellant in some detail the manner in which the trial would proceed. Her Honour explained she would be giving the Appellant the opportunity to make an opening statement, 'to sort of sketch what your case is about'. After that, each party would call their witnesses. They would first be questioned by their own party or lawyer. The party who is calling that witness 'will ask open-ended questions without suggesting the answer'. The other party or their lawyer would then be entitled to cross-examine the witness. 'That means put questions or propositions to them which challenge any evidence they've given that you disagree with and, importantly, put your case to them so that they have an opportunity to respond to that'. The party who called the witness would then be given the opportunity to re-examine the witness, to '[g]ive them an opportunity to add to explain any ambiguity which might have emerged during the course of cross-examination'.[35]
[35] MB 1003 - MB 1004.
The Magistrate then explained that after the Respondent's witnesses, he would be given the opportunity to give evidence and call evidence. If he wanted to give evidence, he would have to go first, then any other witnesses.[36]
[36] MB 1004.
At the end of the evidence, each party would be given an opportunity to make a closing statement: 'Now, a closing statement, the purpose of that is to provide an opportunity to each party, really to persuade the court that the evidence or particular parts of the evidence is such that the court should make a decision in their favour'. The Magistrate then added that she would repeat the explanation at different stages, 'so that you are able to follow the procedure and engage properly in the presentation of your case'.[37]
[37] MB 1003 - MB 1005.
The Appellant then proceed to make an opening address.[38] Among other things, the Appellant told the Magistrate that he was going to lead evidence to show how the interim FVRO was being used to stop him from seeing his children. The following exchange then occurred:[39]
[38] MB 1005 ff.
[39] MB 1010.
[WWW]: And the evidence that I'm going to lead today is going to show how this order is being used to stop me from seeing the children and has been used historically. The - - -
HER HONOUR: The children aren't on this order, though, are they?
[WWW]: The children were on the initial application - - -
HER HONOUR: Yes, I know.
[WWW]: - - - and then they were taken off.
HER HONOUR: But they're not on this order - - -
[WWW]: Not on this order.
HER HONOUR: - - - are they?
[WWW]: No.
HER HONOUR: No.
[WWW]: That's - that's correct.
HER HONOUR: Okay.
[WWW]: However, your Honour, the - - -
HER HONOUR: So the - strictly speaking, they are not relevant to this hearing, are they?
[WWW]: The conduct of [DET] is consistent with the conduct of [DET] in withholding the children in the other courts. So it's a restraining order one way or another - the children - whether the children are on it or not - there is a pattern of behaviour from [DET] in seeking orders to do anything and everything possible to stop me having a relationship with the children. And I will lead evidence to that.
The Appellant went on to refer to previous applications made by the Respondent seeking restraining orders, including the one in which he had agreed to the CAO. He identified that some of the conduct he anticipated would be referred to at the trial predated those proceedings. The Respondent had the opportunity to raise these issues at previous hearings and had not done so. He concluded:[40]
She has had the opportunity to present that evidence in a court of law. Hasn't done so. Essentially, the conduct agreement has expired, and then she has taken what I would consider to be vexatious action in order to create another order. And the evidence that I intend to present today, lots of material evidence that contradicts lots of statements in lots of different courts. Lots and lots and lots. In fact, a full file.
There would be in excess of three or four hundred documents that I'm in possession of that - that where [DET] has made contradictions to statements or affidavits that she has filed in court. There is a pattern of - of dishonesty and deceit, and hopefully, your Honour, the evidence that I lead today will present that and the application will be dismissed.
[40] MB 1101.
Once the opening addresses had been concluded, the Magistrate made an order that anyone in the courtroom who was going to be called as a witness was required to step outside until called to give evidence.[41]
[41] MB 1012.
In response, the Appellant asked the Magistrate whether the Respondent's mother could be excluded from the courtroom. Specifically:[42]
[WWW]: It's just, I'm not sure whether it's possible, but I'm a bit uncomfortable with [DET]'s mother being in the room. She's a party to other proceedings. Has been. Currently there are considerations for criminal charges in relation to perjury that she has committed in the Children's Court. And there's also other matters that are legal matters are being considered.
[42] MB 1012
Also:[43]
[WWW]: There's considerable aggravation. The children are currently staying with the grandmother. The grandmother is a definitely an influencing factor in this matter, and I intend to present some evidence that will do that.
HER HONOUR: Right.
[WWW]: I'm simply just not comfortable with having her in the room, looking over my shoulder.
[43] MB 1013.
The Magistrate did not call on counsel for the Respondent to make submissions. The Magistrate then declined to order the Respondent's mother to leave to courtroom, giving the following reasons:[44]
HER HONOUR: Okay. Thank you. So the court has to balance on the one hand [DET]'s mother being present in court, as I understand it from [DET]'s counsel, by way of support for [DET]. And the court, in effect, has been told that [DET]'s mother is not to be a witness. So this is an open court. We live in a system where justice is supposed to be open. And therefore, people are entitled to come into the public gallery and watch what goes on.
However, what's effectively said in this case by [DET] is the mother is her support person in a family violence trial. On the other hand, [WWW] says he's not comfortable because from his point of view, [DET]'s mother has been a witness in other proceedings. She's under - well, she's subject to a complaint that he has made to the police. And in summary, he's not comfortable with her being in court. Okay. So the relative considerations have to be balanced and at the end of the day, the court has to ensure fairness to the parties and justice and that that is done in public.
I note this is a family violence trial. I consider that it's appropriate that a party to a trial like this would have someone present in court which might be described as a support person. In this case, it's the mother of [DET]. [WWW] is not happy about that. He says he's not comfortable. Well, I regret that, and that is unfortunate, however, I do not propose to make an order which would exclude [DET]'s mother from simply sitting in the public gallery, watching what's going on.
And that has particular significance because she is here as a support person. Now, having said that, it's very important that it's understood - and this is by everyone -this is a formal proceeding. I will not allow commentary, outbursts, interjections, you know, obvious face pulling and anything which would disrupt the proceeding. In saying that, I'm not suggesting that [DET]'s mother in law would do that. Rather, it's a point that I'm making for everyone's benefit. Okay.
[44] MB 1014.
The Respondent then gave evidence-in-chief. This took the whole of the first day of the trial (11 October 2022) and part of the second (12 October 2022).
At the conclusion of the sitting day on 11 October 2022, the Magistrate gave the Appellant some further information about cross‑examination:[45]
HER HONOUR: Yes, fine. Okay. Good point. Now, [WWW], by the sound of it, you're going to be starting your cross-examination quite early on tomorrow, okay. I want you to prepare for that overnight, if you haven't already, but now you've heard the evidence.
[WWW]: Sure.
HER HONOUR: Right. So preparing for it involves thinking about what has been said, right, what evidence has been produced, focusing on any part of the evidence which you say is inaccurate, incomplete or anything else that you don't agree with and preparing questions to challenge the truth or otherwise of that, and also preparing questions to put your version to the witness. Okay.
[WWW]: Sure.
HER HONOUR: What you need to avoid is that you don't raise something which is important with the witness and then when you get to present your case, suddenly out of left field you start giving evidence about something I've never heard of before, right, because at that point, if that happened - I'm not saying it's going to, but if it happened, the rules are that either I won't allow the evidence in or I will give it less weight because [DET] hasn't had an opportunity to respond to it. Right, that's all part of the fairness principle in court.
Okay. So, yes, I suggest you come along with a list of questions. Now, you've seen the way counsel for [DET] has done it this morning. If there's documents that you want to put to the witness as part of your cross-examination, then you come along with spare copies of the document so that the witness can look at a copy, counsel can look at a copy and I can look at a copy sort of all live while you're questioning and the witness is answering.
Okay.
[WWW]: Yes, your Honour.
[45] MB 1125 - MB 1126.
At the outset of the cross-examination on 12 October 2022, the Magistrate considered whether to allow the Appellant to ask the Respondent questions directly in cross-examination. This inquiry is required by ROA s 44C (which I quote at [147]). The Respondent informed the Magistrate that she would feel intimated if the Appellant asked her questions directly. The Magistrate then ruled that she would put the Appellant's questions to the Respondent.[46] That option was expressly contemplated by ROA s 44C, and no issue is taken with this ruling of the Magistrate in the Appeal.
[46] MB 906 - MB 907.
As might be expected using the process in ROA s 44C, the cross‑examination was at times somewhat disjointed. At an early point, this exchange occurred:[47]
[WWW]: See, this is all throwing me with all this to and for explaining.
HER HONOUR: Well, we have to work with it.
[WWW]: Yes, I know.
HER HONOUR: It's not my discretion or my choice. It's Parliament's rules.
[WWW]: Sure
[47] MB 919.
As might be expected, on repeated occasions, the Magistrate engaged with the Appellant to ensure that the question was clear, before putting it to the Respondent.[48]
[48] See for example: MB 921, MB 913, MB 916 - MB 918, MB 937, MB 939, MB 940.
On repeated occasions, the Magistrate reformulated the Appellant's question, for example, to remove an ambiguity or, where it was a compound question, to break it down into a number of separate questions or to make it more precise.[49] For example:[50]
[49] See for example: MB 908 - MB 909, MB 920, MB 946, MB 949, MB 728, MB 798, MB 814, MB 832, MB 867, MB 741, MB 742, MB 813, MB 827, MB 833, MB 837, MB 838, MB 846, MB 851.
[50] MB 927. See also, for example: MB 931 - MB 932.
[WWW]: The next question is many allegations were made, including point fingers in gun for hours, screaming from another room, threats and allegations of putting you in a barrel of acid, using bleach, [DET], and many others. I put it to you, [DET], that these incidences that you state happened whilst we were in a relationship. And given that we're no longer in a relationship, have been separated for some three years, there's absolutely no opportunity for any of these things that you're claiming to have happened in the past to repeat themselves.
HER HONOUR: Okay. So I'm just going to pause right there. Right. So at some point if you disagree with the evidence that the witness has given, right, the statements that you've just referred to and just grabbing them altogether. Right. If you disagree with the evidence she has given about you screaming at her, the threats made and she has given a lot of detail. Right.
[WWW]: Sure.
HER HONOUR: If you say she's not telling the truth, you need to put to her, "You said X. That's wrong," or, "You're lying," or, "You're mistaken." You have to challenge it.
[WWW]: Okay.
HER HONOUR: Okay. I'm not saying you have to do it right now, but I'm just wanting you to understand that the way this process works is, unless you put to her your version, right.
[WWW]: Sure.
HER HONOUR: Then I may not, if you subsequently give evidence which contradicts it, I may not accept what you say.
[WWW]: Sure.
HER HONOUR: Right. Because the whole principle of fairness here is you must put your case to her, so she gets a chance to answer it. Right. So you can come back to that later. I will now put the proposition that you have just referred to. So it's being put to the witness that any behaviour which you have described as occurring during the course of the relationship, such as screaming abuse, making threats to harm. That behaviour, if indeed it occurred, happened during the course of your relationship while you were living together and not any of that type of behaviour since; do you agree with that?---No.
Okay. Do you agree with the proposition that you've been separated for three years now?---Yes.
Now, do you want to go back and reformulate that last question given her answer.
[WWW]: Your Honour, I'm really struggling to keep a grip with all the toing and froing as to where I'm at, even though I'm working through it. It's very hard to -without being able to do it.
HER HONOUR: Well, we've just got to do it.
The final comment of the Appellant should be noted, that he was finding the process difficult.
On repeated occasions, the Magistrate told the Respondent not to make comments or snide remarks when asking a question.[51]
[51] See for example: MB 727, MB 740 - MB 741, MB 926, MB 780, MB 805.
On occasions, the Magistrate refused to allow the Appellant to ask rhetorical questions[52] or ask the Respondent a question which required her to give evidence about what was in his mind or what he knew.[53] The Magistrate on occasion also refused to ask the Respondent the question put by the Appellant on the ground that it was not something that the Respondent could give evidence about.[54]
[52] See for example: MB 931.
[53] See for example: MB 933, MB 952.
[54] See for example: MB 987, MB 812, MB 846.
On other occasions, the Magistrate pulled up the Appellant for trying to ask a follow-up question that was not accurately based on the previous answer, encouraging him to listen to the answer.[55]
[55] See for example: MB 934, MB 940 - MB 941, MB 961, MB 790, MB 850.
On many occasions, the Magistrate queried the relevance of the questions the Appellant was seeking to ask, and, if not persuaded, disallowed questions or assisted the Appellant to reformat the question.[56]
[56] See for example: MB 935, MB 789, MB 774 - MB 778, MB 855.
On one occasion, the Magistrate told the Appellant not to interrupt the Respondent whilst she was giving her answer.[57]
[57] MB 735.
The Magistrate declined to allow the Appellant to repeat questions which had previously been asked and answered.[58]
[58] MB 948, MB 778, MB 840.
On one occasion, the Magistrate inquired whether the Appellant wanted to ask a further question when it appeared that a point had been missed.[59] At other points, the Magistrate explained to the Appellant how to go about asking questions in order to make the point he was trying to make.[60] Or would clarify with the Appellant the point he was trying to make.[61]
[59] See for example: MB 959.
[60] See for example: MB 956.
[61] See for example: MB 957, MB 969, MB 982.
Having said all that, for much of the time, the Appellant and Magistrate were in a rhythm in the cross-examination in which the question by the Appellant, question by the Magistrate and answer flowed.[62]
[62] See for example: MB 930ff, MB 936, MB 941 - MB 942, MB 948 ff.
At one point, the Appellant requested the Magistrate to obtain a copy of the transcript from an earlier court hearing on 9 October 2019 relating to the earlier application by the Respondent for an FVRO. The Magistrate declined to do so, instead informing him that he had to put the document to the witness and ask her questions about it.[63]
[63] MB 916.
At another point, the Appellant sought to question the Respondent about her compliance with Family Court orders. The Magistrate requested the Respondent to step out of the courtroom, which she did. The Magistrate asked the Appellant to explain the relevance of the question, an objection which counsel for the Respondent reiterated. Her Honour's ruling is indicative of the approach taken more generally in which the Appellant was allowed 'a degree of leeway':[64]
So in considering a ruling on this issue I've reminded myself of the objects of part 1B family violence restraining order of the Restraining Orders Act 1997. I don't propose to read them out, but there is a risk here that the trial is turned into a process of examining compliance with a Family Court order so far as it pertains to the children.
Yes, there was evidence that related to contact by [WWW] with the children, so that evidence was led yesterday. However, it didn't traverse the issue of contact per se, but rather, whether there was behaviour in connection with that that the court may be asked to find constitutes family violence of pattern of behaviour amounting to family violence.
I do not consider that the issue of withholding contact or that allegation and the issue of alleged failure to comply with Family Court orders by [DET] is relevant to this case. This case is about whether there has been behaviour which might be properly constructed as family violence. And if so, what, when, how, so that findings of fact can be made and the court can determine if a family violence order should be made, that is, a final order.
And if so, the terms of such an order. Now, a degree of leeway will be allowed, noting that [WWW] is unrepresented and sometimes it's difficult to draw a line. So the effect of what I just said, [WWW], is the issue which you've raised about [DET]'s withholding contact and alleged breaching of Family Court orders is not relevant. So I'm not going to allow you to go down those lines or paths, if you like. Okay. So let's have the witness back and [WWW] can resume his cross‑examination.
[64] MB 923 - MB 924.
At another point, the Magistrate took issue with the Appellant locking eyes with the Respondent when asking a question, stating:[65]
HER HONOUR: You can look at me. No, no. Every time you ask a question you're looking over there at her, trying to lock eyes with her. Well, I won't have it. Right. Because if you keep doing that, you will be in a separate room and we will have a video link. Do you understand what I'm saying?
[65] MB 927.
On the other hand, the Magistrate also had to intervene in relation to the answers being given by the Respondent. She was told on a number of occasions to just answer the question that was put to her and not use it as an opportunity to say what she would like to say, noting the opportunity of her counsel to ask questions in re-examination.[66] At other times, the Magistrate stopped the Respondent from giving answers which went beyond what she could give evidence about.[67]
[66] See for example: MB 908 - MB 909, MB 918, MB 919, MB 946, MB 950.
[67] MB 933.
Another recurring theme in the cross-examination was the Magistrate telling the Appellant not to waste time and to get to the point.[68] For example:[69]
HER HONOUR: … So in general terms, [WWW], I'm concerned that we're wasting time. Okay.
[WWW]: Okay.
HER HONOUR: So I want you to be clear that when you're asking questions, it's about issues that are relevant and have a proper purpose.
[WWW]: Can I explain where I'm going with it.
HER HONOUR: Yes.
[WWW]: Okay
[68] See for example: MB 915, MB 971, MB 972, MB 980, MB 732, MB 742, MB 858.
[69] MB 964.
Close to the end of the sitting day on 12 October 2022, the Magistrate inquired of the Appellant how much longer he thought he would be. The Appellant replied that it could be another few hours.[70] The Magistrate told the Respondent that she could not discuss the detail of what she was being asked in cross-examination with anyone, including her counsel.[71] The Magistrate also reminded the parties that the interim FVRO remained in place.[72] After a discussion with the Appellant and counsel for the Respondent, the Magistrate adjourned the trial to 22 March 2023.
[70] MB 989.
[71] MB 990 - MB 991.
[72] MB 990.
The trial reconvened on 22 March 2023. At the outset of the hearing, counsel for the Respondent sought leave to give further evidence about some breaches of the FVRO which the Respondent says had occurred since the adjournment of the trial on 12 October 2022. After hearing from the Appellant, the Magistrate allowed this evidence to be interposed in the cross-examination.[73]
[73] MB 707 - MB 709.
The Respondent gave evidence about two incidents which she asserted were in breach of the interim FVRO. The first was that she had received two packages, which she thought contained Christmas presents, the sender of which was identified to be the Appellant's father. The information on the package contained a mobile number of hers which she had endeavoured to keep confidential, and which she had not disclosed to any of the Appellant's family. The handwriting on the address information looked to her as if it was that of the Appellant, different to the signature of the sender. Inside the package there were packages which said the name of each child and 'grandad', which the Respondent also said appeared to have been written by the Appellant. The Respondent said that she believed that the Appellant had a hand in organising the parcel in breach of the interim FVRO. The Respondent said that she felt like the Appellant was letting her know that he had her new phone number. 'It was just another way of saying he will get me'.[74]
[74] MB 710 - MB 717.
The second was her police statement in relation to breaches of the FVRO, made on 4 March 2023. This related to calls which the Respondent says that the Appellant made to her in breach of the interim FVRO. The statement was tendered.[75]
[75] MB 717 - MB 719.
The Appellant then continued with his cross-examination of the Respondent. The dynamics which I identified at [48] - [62] continued.
Just before breaking for lunch, the Magistrate gave the Appellant a direction to finish his cross-examination that afternoon. It was in the following terms:[76]
HER HONOUR: Okay. Now, we're going to resume here at 2.15. [WWW], what I want you to do during lunchtime, to the extent that you haven't done already, is to make sure that you've got a plan for the questions you're going to ask the witness so that we can efficiently get through it all after lunch. And if there are documents you're going to put to her, that you've got all those in order, you've got extra copies, so that we can just get through it all efficiently. I expect that you are going to finish cross-examining the witness before the end of the day. Right. You have had plenty of time. Your cross examination commenced on 12 October. You've now had half a day.
Right. I expect - no, I'm giving you a direction under the Magistrates Court Act. You have the balance of today to finish your cross‑examination. I'm not suggesting you should take all that time. But if you were thinking that it's not going to be enough, I'm giving you warning now. That's what you're going to get. Right. We're going to finish court today around about - well, not later, I should say, than 4.15. Okay. So you're going to have two hours this afternoon. And you need to make the best use of that. Okay?
[WWW]: Yes, your Honour.
[76] MB 801.
The Appellant resumed his cross-examination of the Respondent after lunch. At some point just before 4.34 pm, the Magistrate told the Appellant that this cross-examination was completed, having given him a five-minute warning. The court adjourned for the day at 4.34 pm.[77]
[77] MB 879.
On 23 March 2023, the trial recommenced just before 11.00 am. The Respondent was re-examined until just after the luncheon adjournment.
The Respondent then called three further witnesses. The first was MS, who was a friend of the Respondent's mother. She gave evidence about some text messages she received from the Respondent in relation to an incident in which the Respondent was concerned that one of her daughters had ingested Ratsak. She ended up going with the Respondent to the hospital. MS also gave evidence about other conversations she overheard the Appellant have with the Respondent.
The Appellant cross-examined MS directly, though in a manner that required intervention by the Magistrate on a number of occasions.
The second witness was AP, who is the Respondent's younger sister. She gave evidence about:
(a)an incident between the Appellant and Respondent at a wedding in 2016;
(b)some other occasions when she had either heard or seen the Appellant be aggressive towards the Respondent;
(c)an incident which occurred between the Appellant and the Respondent at the Family Court in November 2020;
(d)an incident which occurred between the Appellant and the Respondent at the Family Court in March 2021; and
(e)a number of occasions in which she overheard the Appellant's conversations with his children on court appointed telephone calls.
The Appellant cross-examined AP directly, again in a manner that required intervention by the Magistrate on a number of occasions.
The third witness was KH, who was the Respondent's older sister. She gave evidence about:
(a)an incident between the Appellant and the Respondent at a family dinner in late 2018; and
(b)her interactions with the Appellant on an occasion just after the Respondent's first child was born in 2015 in which the Respondent had developed mastitis and a rash.
As with the other witnesses, the Appellant cross-examined AP directly, but in a manner that required intervention by the Magistrate on many occasions.
At the conclusion of proceedings on 23 March 2023, counsel for the Respondent advised the court that the Respondent's case was complete. Her Honour had a conversation with the Appellant as to how long he thought his case might go for. The Magistrate arranged to start court at 9.30 am the following morning in an endeavour to finish the trial that day.
At the commencement of the hearing on 24 March 2023, the Magistrate advised the parties of two specific matters on which they would be invited to make submissions. Given the centrality of this passage to the Appeal, I need to quote it in full:[78]
[78] MB 525 - MB 526.
HER HONOUR: … Now, just before I ask [WWW] to open his case, right, there are a couple of issues that I just want to foreshadow with the parties, so that if we have any breaks or whatever during the course of the day, you can be thinking about it.
I'm expecting that we will get to closing submissions today, and in anticipation of that, I want to flag with the parties that, for the purposes of consideration and decision, it would be helpful to get submissions from the parties, not just about the evidence and whether an FVRO should be made, but also issues like, if an order is made final, the length of the order, any particular provisions in the order.
So, of course, there is an interim order, and that might be considered the starting point if a final order is to be made, but having regard to the evidence in this case, I'm trying to ensure the parties understand that submissions about the content, so restraints, would be a good idea from each party.
Now, there's one other issue that I want to raise regarding the content of any order, if one is made. The interim order as it stands - and now, do correct me if I'm wrong, but as it stands, does not - is not extended to include the children. Now, does that accord with everyone's understanding? Yes, good. Okay. So that is another issue that I want to invite the parties to make any submissions about.
To the best of my recollection, there has been no evidence, and the court hasn't been told, whether there is currently an FVRO in place which is for the protection of the children, so it might be that this issue is already dealt with, but I'm not aware of that, so that's really an invitation to the parties to include that issue in their submissions, if any party sees fit. Okay. Now, just before we move to [WWW]'s case, is there anything of a housekeeping nature that needs to be covered at the moment? No.
TYSOE, MS: Not at the moment, your Honour.
HER HONOUR: Okay. [WWW]?
[WWW]: No, your Honour.
HER HONOUR: No. Okay. And are you ready to proceed with your case?
[WWW]: Yes.
The Appellant then gave evidence. The Magistrate began by asking some background and context questions of the Appellant. She then invited the Appellant to give evidence regarding the Application. The Appellant was permitted to refer to a document which he took with him into the witness box containing a series of points that he wished to cover when giving evidence. The Magistrate's interruptions were minimal, for example to:
(a)constrain the Appellant to giving evidence on matters within his personal knowledge, at one point informing the Appellant of the substance of the rule against hearsay and directing him to confine his evidence to matters within his personal knowledge;[79]
(b)request the Appellant to be more specific;[80]
(c)request the Appellant to point out the particular portions of documents relied on;[81]
(d)inquire of the relevance of the evidence that was being given;[82] and
(e)clarify the evidence that the Appellant was then giving.[83]
[79] See for example: MB 532, MB 541 - MB 542; MB 547, MB 560.
[80] See for example: MB 532.
[81] See for example: MB 533, MB 535.
[82] See for example: MB 540, MB 541 MB 544, MB 558- MB 559, MB 563.
[83] See for example: MB 547, MB 550.
Ground of appeal 4 on its face seems to relate to two aspects of the Decision: extending the order for five years and extending it to the children. However, at the commencement of the trial, counsel for the Respondent made it clear that the Respondent was seeking an order of five years' duration.[201] So the Appeal may be confined to the decision to extend the order to the children, which is how it proceeded in oral argument before me.
[201] MB 999.
As to the decision to extend the order to protect the children, it is clear from the passages that I have quoted above that:
(a)the Interim FRVO only protected the Respondent ([10]);
(b)at the commencement of the trial, the Respondent was not seeking to have the FVRO extended to protect the children ([34]); and
(c)the Magistrate made it clear to the Appellant that evidence specifically relating to the children was not relevant to the matters in issue in the trial ([38]).
It is also clear, that after the Respondent's case had closed, but before the Appellant gave evidence, the Magistrate invited the parties to make submissions on the issues of ([78]):
(a)whether the children then had the benefit of some other order; and
(b)if not, whether the Respondent now seeks to include them in the order; and
(c)if so, whether the court should make such an order.
The Magistrate repeated the matters in the preceding paragraph after the Appellant had finished his examination‑in‑chief ([87]).
After the Appellant had been cross-examined and after he had closed his case, counsel for the Respondent informed the court that there was no current order in place protecting the children and that she would like them included in the order ([92]).
The Respondent made detailed submissions on the issue of whether the order should extend to the children ([96]).
The starting point in the analysis is that the Magistrate had the power to make a FVRO protecting not only the Respondent but the children as well. ROA s 68 allows the order to extent to apply to other people:
68.Orders may be extended to apply to other people
(1)When making a restraining order a court may extend the order to operate for the benefit of a person named in the order in addition to the person protected by the order (a third party) if it is satisfied that it would have been able to make the order in respect of the third party had the third party made a separate application for the order.
(2)If an order is so extended the provisions of this Act apply to the named person as if that person were the person protected by the order.
And it is clear by ROA s 10E that the children could have made a separate application for a FVRO:
10E.FVRO may be made for child in circumstances of family violence
(1)An FVRO may be made for the benefit of a child if the court is satisfied that -
(a)the child has been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child is likely again to be exposed to such violence; or
(b)the applicant, the child or a person with whom the child is in a family relationship has reasonable grounds to apprehend that the child will be exposed to family violence committed by or against a person with whom the child is in a family relationship.
(2)If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.
(3)For the purposes of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.
At the conclusion of the Respondent's case, the Magistrate was, I infer, concerned that the children had been exposed to family violence. That is well evident in the passage I have quoted at [17] from the Magistrate's Decision in which her Honour summarised the evidence on this issue.
Counsel for the Appellant in effect asserted that the Magistrate had two, and only two, alternatives. The first was to have dealt with the Application from start to finish on the basis that the order would only protect the Respondent and not the children, and not to have later opened up the issue of whether the order should extend to protect the children. The second was to flag at the outset of the hearing that the Magistrate was considering whether or not the order should extend to protect the children and allow the parties to adduce evidence on that basis.[202]
[202] DC ts 10 - ts 11.
However, these two alternatives do not really address the situation the Magistrate found herself in at the end of the Respondent's evidence. The evidence on the issue of the whether the children had been exposed to family violence which I have set out at [17] is largely based evidence which was either given or corroborated by witnesses other than the Respondent. There was, in my view, ample basis for the Magistrate to have a real concern that the children had been exposed to family violence. The Magistrate was then faced with effectively two choices. The first was to ignore the issue, which is in effect what counsel for the Appellant says she should have done. The second was to be transparent about her concerns and raise them with the parties at the point she did. This is what the Magistrate chose to do.
One of the objects of the FVRO regime is to 'protect the wellbeing of children by preventing them from being subjected or exposed to family violence'.[203] Moreover, in determining whether to make a final FVRO the Magistrate was specifically required to have regard, among other factors, to 'the particular need to ensure the wellbeing of children by protecting them from family violence'.[204] In this statutory context, the decision made by the Magistrate to raise the issue of the need to protect the children was readily justified.
[203] ROA s 10A(c).
[204] ROA s 10B(1)(c).
This is not a case in which it is alleged that the Magistrate failed to put the Appellant on notice that she was considering extending the order to include the children. That would have been a clear breach of the obligation to afford procedural fairness. As the Court of Appeal recently observed in Davie:[205]
A person to whom procedural fairness is owed is, ordinarily, entitled to have brought to his or her attention the critical issues or factors on which the decision is likely to turn so as to give the person an opportunity to deal with them.
[205] Davie [90].
As I have already said, a 'fundamental requirement of procedural fairness is … that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions'.[206] What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, the nature of the jurisdiction and the statutory provisions governing the jurisdiction being exercised.[207] As a general rule a person will not be afforded a reasonable opportunity to present his or her case if he or she is not entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.[208]
[206] Davie [88].
[207] National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 311 ‑ 312 (Gibbs CJ); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [26] (Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ).
[208] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 - 592 (Northrop, Miles & French JJ); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22] (Gleeson CJ, Gummow & Heydon JJ).
The real issue in the Appeal is thus, whether having raised the issue of extending the order to protect the children, the Magistrate afforded the Appellant a reasonable opportunity to adduce evidence on, and address, the issue. In my view, for six reasons, the opportunity afforded was reasonable.
The first is that the issue of the children being exposed to family violence was identified when the Application was initially filed ([9]). So, at a general level, it was always in issue.
The second is that the Appellant had the opportunity to cross‑examine the Respondent, and the witnesses she called, on the incidents relied on by the Magistrate in determining that it was appropriate to extend the order to the children (which I have set out at [17]).
The third is that the Appellant had the opportunity to give evidence on incidents relied on by the Magistrate in determining that it was appropriate to extend the order to the children. In this regard, it is significant that the Magistrate informed the parties of her intention to consider the issue of the children before the Appellant gave evidence.
The fourth is that the Appellant did not inform the Magistrate that he wished to call any witnesses to address the issue of the impact on the children which he could not do at the trial due to the lateness of being informed that the Magistrate was considering extending the order to the children.
The fifth is that the Appellant addressed the Magistrate in some detail in closing in support of his submission that the order should not extend to protecting the children ([96]).
The sixth is that in the July Affidavit, the Appellant did not identify any evidence that he would have adduced on the issue of whether the order should extend to the children that he was denied the opportunity to adduce.
For these reasons, the Appellant has not made out ground of appeal 4.
What final orders are appropriate?
For the reasons which I have set out above, the appropriate final orders are:
1.The Appellant have leave to adduce the evidence contained in his affidavit sworn 11 July 2024 aside from paragraphs 12 to 20 and 26, and Attachments P, Q, and R.
2.The Appeal be dismissed.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
OS
Associate
3 OCTOBER 2024
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