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RT -v- MW [2023] WADC 148 (12 January 2024)

Last Updated: 29 January 2024

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH

CITATION : RT -v- MW [2023] WADC 148

CORAM : RUSSELL DCJ

HEARD : 20 JUNE 2023

DELIVERED : 11 DECEMBER 2023

FILE NO/S : APP 7 of 2023

BETWEEN : RT

Appellant

AND

Respondent

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE MAUGHAN

File Number : MC/CIV/JOO/RO/644/2022

Appeal from Magistrates Court - Family violence restraining order - Construction of s 13A Restraining Orders Act 1997 (WA) - Meaning of 'FVRO' in s 13A(1)(b) Restraining Orders Act 1997 (WA)

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 338B
District Court Rules 2005 (WA), r 50(1), r 50(2)
Family Violence Legislation Reform Act 2020 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA), pt 7, s 40(3), s 40(4)(a), s 40(4)(b), s 40(5)
Restraining Orders Act 1997 (WA), pt 1B, pt 2A div 1AA, s 3, s 3(1), s 4(1), s 4(3), s 5A(1), s 5A(2), s 10A, s 10B, s 10D, s 10F, s 10G, s 10H, s 13A, s 13A(1)(b), s 13A(2), s 13A(4), s 13A(8), s 63, s 63(4AA)(a), s 64, s 64(1)(b)(ii), s 64(2)

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Mr R G Worth & Ms S Wong
Respondent	:	Ms T Raphael

Solicitors:

Appellant	:	Legal Aid Western Australia
Respondent	:	Andrews Legal

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

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

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Brocklehurst v Wolinski [2015] WADC 36

Butler v Bennett [2007] WADC 107

Houghton v The State of Western Australia [No 2] [2022] WASCA 7

House v The King (1936) 55 CLR 499

Jones v Darkan Hotel [2014] WASCA 133

Paula Susan Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205

Roberts v The State of Western Australia [2011] WASC 118

Siriphanuruk v The State of Western Australia [2023] WASCA 56

The State of Western Australia v Roworth [2022] WASC 71

Tieleman v The Queen [2004] WASCA 285

Tsang v Francis [2021] WASCA 131

RUSSELL DCJ:

Overview

This appeal concerns the proper construction of s 13A of the Restraining Orders Act 1997 (WA) (the Act) and the exercise of the power under that section to make a family violence restraining order (FVRO).
The appellant, RT, appeals against the decision of his Honour Magistrate Maughan dated 20 January 2023 to make a conduct agreement order pursuant to s 10H of the Act for a period of 2 years (Decision), instead of a final FVRO pursuant to s 13A of the Act for a period of 10 years.
For the reasons that follow:
1. the appeal is allowed;
2. the Decision and the conduct agreement order made on 20 January 2023 are each set aside; and
3. I will make a final FVRO pursuant to s 13A of the Act in the same terms as the interim FVRO made on 23 August 2022, except that the duration of the order will be 10 years from 23 August 2022.

Relevant background

On 22 August 2022, the respondent pleaded guilty to, was convicted of, and sentenced for the following offences in the Perth Magistrates Court:
1. threats to endanger or harm, pursuant to s 338B(b) of the Criminal Code Act Compilation Act 1913 (WA) (the s 338B Offence);
2. dangerous driving;
3. breach of protective bail conditions; and
4. two counts of breaching an FVRO,

(the Offences).

It is not contentious that the appellant and respondent were previously in a family relationship.[1] Each of the Offences involved actions by the respondent towards the appellant on dates during the period 26 January 2018 and 31 December 2018. The facts relating to each of the Offences were read in by the prosecutor at the sentencing hearing on 22 August 2022. Those facts, which were accepted on behalf of the respondent, are recorded in the transcript of that hearing,[2] and summarised below.

Threats to endanger or harm

In relation to the s 338B Offence, between 26 January 2018 and 20 February 2018, the respondent sent several threatening messages to the appellant. They included images and a video to the appellant via Facebook Messenger and Snapchat, which included threats of physical and sexual harm and violence of a very serious nature.[3]
The messages included images of a decapitated person with the caption 'you', directed to the appellant, which the sentencing magistrate said was a pointed and very clear threat. Her Honour said it was not just nasty, but scary. The other messages were described by the sentencing magistrate as completely derogatory and unacceptable and, in relation to the video of the respondent making a cutthroat gesture, really personal, pointed and scary.
The sentencing magistrate described the respondent's behaviour as unjustifiable, inexcusable and amounting to coercive control, and to the threats as particularly nasty. Her Honour categorised them as at least in the mid-range of seriousness because they were repeated, concentrated over a period of time and scary.[4]

Dangerous driving

In respect of the conviction for dangerous driving, on 18 February 2018 just after 7.30 am, the respondent was in his motor vehicle waiting for the appellant to pass by on her way to drop their 18-month-old son at day care. The respondent then pursued the appellant in his motor vehicle in a prolonged chase. The appellant drove in a manner that was dangerous to the appellant, their child (who was in the appellant's car) and other road users.[5]
The sentencing magistrate found that the dangerous driving was very high on the scale of seriousness because of its protracted nature, the respondent having followed the appellant for quite a significant time and the high potential for harm, including to the parties' child who was in the appellant's car at the time. The sentencing magistrate described the conduct in detail referring to it as 'extremely aggressive driving, which could have had tragic consequences'.[6]

Breach of protective bail conditions

In respect of the conviction for breach of protective bail conditions, on 6 April 2018, the respondent breached protective bail conditions by going to the appellant's place of work. The appellant and respondent spoke. The conversation deteriorated and the appellant felt threatened and intimidated by the respondent. A short time later, the appellant left her workplace in her car and the respondent followed her. The appellant parked the car and called the police. The respondent approached her car, but upon seeing the appellant on her phone, backed off and drove away.[7]
Further, on 10 April 2018, the appellant received a series of text messages from the respondent relating to discussions the appellant had been having with police regarding their son. The respondent's messages were abusive and intimidating.[8]

Breaches of family violence restraining order

The convictions for breaching a FVRO related to two separate breaches by the respondent telephoning the appellant on 25 and 31 December 2018.[9] The sentencing magistrate stated that though the calls were not themselves overtly threatening, there was an underlying threat.[10]

Procedural history - Magistrates Court proceedings relating to family violence restraining order

The prosecutor asked the sentencing magistrate to make an FVRO under s 63 of the Act at the sentencing hearing on 22 August 2022. The sentencing magistrate did not do so and said it was open to the appellant to make an application.
On 23 August 2022, the day after the respondent was sentenced for the Offences:
1. the appellant applied for an FVRO against the respondent under s 13A of the Act;[11]
2. the transcript of the sentencing hearing was not yet available; and
3. his Honour Magistrate Shackleton made an ex parte interim FVRO against the respondent in favour of the appellant for a period of 5 years (Interim FVRO).[12]
No objection was filed to the Interim FVRO within 21 days of service on the respondent and, on 16 September 2022, it was made final for a period of 5 years, with effect from the date of service, 25 August 2022 (Final FVRO).[13]
On 20 September 2022, an application was filed on behalf of the respondent to set aside the Final FVRO, together with an affidavit in support sworn by Tabitha-Mary Raphael.[14]
On 29 November 2022, his Honour Magistrate Shackleton set aside the Final FVRO,[15] and the Interim FVRO was revived. The matter was ultimately listed for hearing before his Honour Magistrate Maughan on 16 January 2023.[16] At that hearing the appellant's counsel sought an FVRO under s 13A of the Act for a period of 10 years.
The respondent opposed the appellant's application. He offered to resolve the proceedings by way of a conduct agreement order for a period of 2 years, and otherwise on the same terms as the Interim FVRO made on 23 August 2022. That was not acceptable to the appellant, who sought longer term protection.
On 20 January 2023, the learned magistrate delivered the Decision the subject of this appeal,[17] and made a conduct agreement order in terms of the Interim FVRO for a period of 2 years from 20 January 2023.[18]

The appeal to this court

The appellant appeals the Decision. She filed her notice of appeal on 10 February 2023 (Appeal Notice) within the 21 days required by s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act).
The appellant seeks the following relief in the appeal:
1. an order setting aside the conduct agreement order made on 20 January 2023; and
2. a final FVRO pursuant to s 13A and s 10D of the Act for a period of 10 years, backdated to 23 August 2022.
The respondent filed a notice of intention to take part in the appeal on 20 March 2023. He opposes the appeal, says it should be dismissed and the conduct agreement order made by the learned magistrate should remain in place.
At the hearing of the appeal, the appellant and the respondent each relied on the written submissions filed and oral submissions made on their behalf by their respective counsel.

General principles relating to the appeal

A person aggrieved by a decision of a magistrate to make, or refuse to make, a final FVRO may appeal to the District Court in accordance with s 64 of the Act.[19]
The District Court's appeal jurisdiction is found in pt 7 of the MCCP Act. I must decide the appeal on the material and evidence that was before the Magistrates Court.[20] Further evidence may only be adduced in an appeal with leave of the court. Such leave may only be given in exceptional circumstances.[21] No new evidence was sought to be adduced in the appeal.
The appeal is by way of a rehearing.[22] As a rehearing, the appellate powers of the District Court are only exercisable if the appellant demonstrates that the Decision was the result of some legal, factual or discretionary error.[23] A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law.[24] The onus is on the appellant to demonstrate this error.[25]
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'.[26]

Relevant statutory framework

Restraining Orders Act 1997

Part 1B - FVROs

Part 1B of the Act deals with FVROs. Amongst other matters, it sets out:
1. the objects of that Part;[27]
2. the principles to be observed by a person, court or other body in performing a function under the Act in relation to FVROs;[28]
3. circumstances in which the court's power to make an FVRO is enlivened;[29]
4. matters the court is to have regard to in considering whether to make an FVRO;[30]
5. the kind of conduct, behaviour or acts that restraints may be imposed in respect of;[31] and
6. restraints that may be imposed.[32]
The objects of pt 1B are set out in s 10A of the Act. They are:

(a) to maximise the safety of persons who have experienced, or are at risk of, family violence;

(b) to prevent, or reduce to the greatest extent possible, the incidence and consequences of family violence;

(d) to encourage perpetrators of family violence to accept responsibility for their behaviour and the effect it has on others;

(e) to make perpetrators of family violence accountable to the court for contraventions of court-imposed restrictions designed to prevent them from committing further family violence.

'Family violence' is defined in s 5A(1) of the Act as:

(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.

What may constitute family violence is extremely wide. Numerous, non-exhaustive examples of behaviour that may constitute family violence are included in s 5A(2) of the Act.
'Family member' is defined in s 4(3) of the Act as:

[A] person is a family member of another person if the persons are in a family relationship.[33]

I do not set out here all of the principles set out in s 10B(1) of the Act to be observed by a court in performing functions in relation to FVROs. The matters a court is to have regard to as being of primary importance are set out in s 10B(1)(a) - s 10B(1)(c).[34] They are:

(a) the need to ensure that persons at risk of family violence are protected from that violence;

(b) the need to prevent behaviour that could reasonably be expected to cause a person to apprehend that they will have family violence committed against them;

(c) the particular need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in paragraph (b) or otherwise being subjected or exposed to family violence.

Section 10D of the Act provides:

(1) A court may make an FVRO if it is satisfied that -

(a) the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or

(b) a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.

(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 purpose of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.

Behaviour or conduct that may be restrained and restraints that may be imposed are set out in s 10G of the Act.
By s 10H of the Act, if a respondent agrees, the court may make a conduct agreement order imposing restraints of the kind referred to in s 10G without being satisfied there are grounds for making an FVRO in the same terms.

Part 2A Division 1AA - Additional circumstances where orders may be made

Part 2A div 1AA of the Act sets out in s 13A additional circumstances in which an FVRO may be made, namely if a person has been convicted of a particular violent offence.
Section 13A of the Act was introduced by the Family Violence Legislation Reform Act 2020 (WA) and came into operation on 1 January 2021. It provides:

13A Cases involving violent offences

(1) This section applies to an application for an FVRO or VRO if -

(a) a person has been convicted of -

(i) an offence referred to in section 63(4AA)(a) (in the case of an application for an FVRO); or

(ii) an violent personal offence under s 63A(1A) (in the case of an application for either order);

and

(b) an FVRO or VRO has not been made against the convicted person (including because the offence for which the person was convicted was committed before the offence became subject to section 63(4AA) or 63A (as the case may be); and

(2) In the case of an application where the person has been convicted of an offence referred to in section 63(4AA)(a), the court is, in the absence of exceptional circumstances, taken to have grounds for making an FVRO against the person.

(3) In the case of an application where the person has been convicted of a violent personal offence under section 63A(1A), the court must make an FVRO or VRO, as is appropriate in the case, against the person.

(4) An order under this section may be made on an ex parte application and in the absence of the person who is to be bound by the order.

(5) Except as provided in subsection (6), an order will be made for a period specified by the court.

(6) An order under subsection (3) is to be made for the period of the life of the person who committed the offence.

(7) ...[35]

(8) The person bound by an order under this section may apply to vary or cancel the order on the ground that exceptional circumstances exist which justify the variation or cancellation (as the case may be).

An offence against s 338B of the Criminal Code (WA) is one of the offences referred to in s 63(4AA)(a) of the Act.

The hearing before the magistrate on 16 January 2023

The matter came before the learned magistrate on 16 January 2023. The material before the court included:
1. the appellant's application for a restraining order dated 23 August 2022 and her affidavit in support sworn on the same date;[36]
2. the respondent's application dated 20 September 2022 to set aside the Final FVRO and the affidavit of Ms Raphael sworn in support on that date;[37]
3. a letter from the appellant's lawyers dated 9 January 2023 enclosing written submissions in support of an application by the appellant for a final FVRO pursuant to s 13A and s 63(4AA) of the Act for a period of 10 years, and seeking that such application be dealt with summarily;[38]
4. the transcript of the respondent's sentencing hearing on 22 August 2022 in relation to the Offences, which was tendered and received as Exhibit 1;[39] and
5. extracts from a copy of the Explanatory Memorandum to the Family Violence Legislation Reform Bill 2019 (Explanatory Memorandum), relating to the introduction of s 13A, which was tendered and received as Exhibit 2.[40]
Counsel for the respondent informed the court at the outset of the hearing that the respondent was willing to enter into a conduct agreement order in the same terms as the Interim FVRO[41] but for a term of 2 years. She noted that the appellant opposed that course on the basis that the respondent had been convicted of one of the offences referred to in s 63(4AA) of the Act and, in the absence of exceptional circumstances, the FVRO should be made final.
It was submitted on behalf of the respondent, in effect, that the following two matters amounted to exceptional circumstances, such that a final FVRO should not be made:
1. the passage of time (some four years) since the parties had been in communication with each other; and
2. recent contact by the respondent's partner by sending a birthday card to the parties' son was done without the respondent's knowledge.
Counsel for the respondent also made submissions to the effect there was no ongoing violence or threat of violence.
It was submitted on behalf of the appellant, in effect, that in the circumstances of the respondent's offending and the serious nature of the family violence involved, and breaches of an FVRO, amongst the other matters outlined, the appellant was afraid and seeking continued and long-term protection in the form of a final FVRO under s 13A of the Act without the need for a contested hearing.
Counsel for the appellant referred the learned magistrate to the facts of the offending and associated family violence, and to the sentencing magistrate's remarks as to the seriousness of the offending.[42] He also referred to extracts of the Explanatory Memorandum relating to the introduction of s 13A, being those stating:

Overview of the Bill

...

[The Bill's] purpose is to deliver a package of reforms to improve the safety of victim of family violence, ensure accountability of perpetrators of family violence, and increase responsiveness of the justice system by making it easier and less traumatic for victims to obtain protection from violence.[43]

...

Part 2A Division 1AA inserted

...

Contained in this Part is new section 13A (Cases involving violent offences).

This new division is intended to make it easier and less traumatic for victims of specified offences to obtain an FVRO or VRO. The provisions enable the court to make a restraining order, including on an ex parte basis, if satisfied the applicant is the victim of a specified offence and the respondent is the convicted person.[44]

...

Submissions were made on behalf of the appellant to the effect that s 13A of the Act operated to mandate the making of an FVRO in the circumstances, unless the court was satisfied there were exceptional circumstances. It was further submitted on behalf of the appellant that there were grounds to make an FVRO under s 10D, there being no special circumstances that would make the order inappropriate.
The learned magistrate ordered that the Interim FVRO remain in place and reserved his decision. His Honour delivered the Decision and published his reasons on 20 January 2023, stating the only option of the two available to him was, in his view, to make a conduct agreement order in terms of the existing FVRO (the Interim FVRO) for a period of 2 years from 20 January 2023. He made no order as to costs, stating each party was to bear their own costs.[45]
The learned magistrate stated in his written reasons for decision that, in his opinion, s 13A of the Act was 'not invoked because of the pre-requisites set out in s 13A(b) [sic] - there is in this case already in existence an FVRO - albeit and [sic] interim order'.[46]

Grounds of appeal

The appellant appeals on two grounds. They are:
1. The magistrate erred at law in finding that s 13A of the Restraining Orders Act 1997 (WA) did not apply because of the existence of an interim FVRO between the parties (Ground 1).
2. In the alternative, in circumstances where the parties conducted the hearing before the magistrate on the basis that s 13A did apply, the magistrate failed to accord procedural fairness to the appellant in deciding that s 13A was not engaged, without first seeking submissions on that issue (Ground 2).
The respondent's position is that the Decision should be upheld on the grounds relied upon by the magistrate. That is, in essence, that there is no power to make an FVRO under s 13A of the Act where an interim FVRO has already been made.
The respondent makes no cross-appeal and does not seek any other orders in the appeal.

Matters not in issue

Both parties to the appeal accept that the learned magistrate's reference in the Decision to s 13A(b), was in error and should instead have referred to s 13A(1)(b).
They also agree that the main issue in the appeal is the proper construction of s 13A of the Act, particularly the meaning of 'FVRO' as it applies in that section and whether it relates only to a final FVRO, or to an interim or a final FVRO.
It is not in dispute that:
1. on 22 August 2022, the respondent pleaded guilty to and was convicted of the Offences; and
2. one of the Offences was the s 338B Offence, being an offence referred to in s 63(4AA)(a)(i) of the Act.

The parties' submissions in the appeal

I do not repeat all of the parties' respective submissions in the appeal. Each have filed detailed written submissions, which I have considered, and which were supplemented by oral submissions at the appeal hearing.

Ground 1

Appellant's submissions

In essence, in relation to Ground 1, it was submitted on behalf of the appellant:
1. The power to issue an FVRO under s 13A provides 'an additional pathway' for a person seeking to be protected to obtain a final FVRO in circumstances where they are the victim of an offence of the type prescribed in s 63(4AA)(a) of the Act.
2. Once s 13A is enlivened, in the absence of exceptional circumstances, the court is taken to have grounds for making an FVRO against the convicted person.
3. The meaning of 'FVRO' in s 13A(1)(b) of the Act properly construed is to a final FVRO, not an interim FVRO. This follows, having regard to the context, purpose and object of s 13A and the amendments introduced by the Family Violence Legislation Reform Act 2020 (WA), as set out in the Explanatory Memorandum. That is:

(a) to enable the court to make a restraining order, including on an ex parte basis if satisfied the applicant is a victim of a specified offence and the respondent is the convicted person; and

(b) making it easier and less traumatic for victims to obtain protection from violence.

If 'FVRO' in s 13A(1)(b) included an interim order, that would have the effect of:

(a) denying jurisdiction and final protection under s 13A where the court has made an interim FVRO; and

(b) placing applicants in the invidious position of having to choose between the immediate protection of an ex parte interim FVRO and further trauma by having to prepare for, attend and participate in a contested hearing to obtain a final order.

Section 13A(4) of the Act provides that the court may make an order under s 13A on an ex parte application in the absence of the person to be bound by the order. The intention of that provision as stated in the Explanatory Memorandum is 'to enable an order to be made final if the court is satisfied of the conviction, without needing to hear from the respondent'.[47]
Where the court is not satisfied of the conviction at the time of an ex parte application for an FVRO under s 13A:

(a) it has power to make an interim FVRO to secure the applicant's safety; and

(b) for a final FVRO to be made at a later date, when the sentencing transcript or other evidence is available for the court to be satisfied of the conviction.

The requirement to demonstrate exceptional circumstances in s 13A(2) and s 13A(8) of the Act lend further support to the appellant's construction and that s 13A was designed to provide finality.

Respondent's submissions

In essence, it was submitted on behalf of the respondent in relation to Ground 1:
1. The proper construction of s 13A(1)(b) of the Act is as applied by the learned magistrate. That is, s 13A will not apply if either an interim FVRO or a final FVRO has already been made against the convicted person.
2. The term 'FVRO' in s 13A(1)(b) ought to be construed as both an interim FVRO and a final FVRO as articulated in s 3 of the Act.
3. Neither s 13A nor s 63(4AA) of the Act refer to a 'final order', but simply to 'FVRO', meaning family violence restraining order. The respondent refers to the definitions in s 3 of 'FVRO', 'family violence restraining order', 'final order' and 'interim order'.
4. When the appellant made her application for an FVRO under s 13A on 10 January 2023, an interim FVRO was already in place. Neither s 13A nor s 63(4AA) provide the court power to convert an interim FVRO to a final FVRO. If that was Parliament's intention and Parliament only intended s 13A(1)(b) of the Act to apply to final FVROs, the words 'final FVRO' as defined in s 3 would have been used to make that intention clear.
5. Alternatively, if interim orders were to be excluded that would be expressly stated in the text of the Act.
6. The construction of s 13A(1)(b) of the Act contended for by the appellant that reads the term 'FVRO' only as a final order would:

(a) have the effect of expanding the court's powers to convert an interim order into a final order when there is no provision in the written law to do so; and

(b) mean the applicant is provided with two opportunities to seek a final order for the same conduct (the offence under s 63(4AA)); first on application by a prosecutor at the sentencing hearing and, if unsuccessful, by further application for a restraining order.

If the court finds that s 13A applied, the circumstances outlined by counsel for the respondent at the sentencing hearing on 22 August 2022 together amount to exceptional circumstances.[48] In oral submissions, counsel highlighted:

(a) the passage of time between the offending in 2018 and conviction, sentence and hearing of the the application for the FVRO in August 2022 and January 2023; and

(b) the changed character of the respondent in that time following intensive counselling.

It was also submitted on behalf of the respondent, in effect, that it was not open to the appellant to make, or for the magistrate to consider, a further application for an FVRO in circumstances where the sentencing magistrate had refused to make one. This was not a matter raised before the magistrate and is not the subject of any cross-appeal or stated as another ground for upholding the Decision in the notice of respondent's intention in the appeal.
In any event, whether there has been any previous application for an FVRO is not to the point. Rather, the question is whether (relevantly) an FVRO has been made against the convicted person.

Ground 2

In essence, in relation to Ground 2, it is submitted on behalf of the appellant that she was denied procedural fairness because the learned magistrate did not give her the opportunity to be heard or to make any submissions in relation to the application of s 13A(1)(b).
This ground is raised in the alternative to Ground 1 and it appears to have been accepted that it only falls to be considered if the learned magistrate's construction of s 13A(1)(b) is upheld.

Disposition

It was not disputed, and there was evidence before the learned magistrate, as there is before me in the appeal from which I am satisfied and find, that the appellant:
1. was a victim of the s 338B Offence;
2. was in a family relationship with the respondent and, therefore, a family member of the respondent; and
3. wants to be protected by an FVRO.
As acknowledged by the parties to this appeal, the central issue in dispute and to be determined in the appeal is the construction of s 13A(1)(b) of the Act, and whether it operates to preclude the making of (relevantly) an FVRO if an interim FVRO has already been made against the convicted person.

Principles of statutory construction

The principles of statutory construction are well settled and are not in dispute. Each of the parties have referred in their written submissions to relevant authorities setting out the principles. It is unnecessary for me to set them out in detail. I refer to and respectfully adopt the summary of relevant principles of statutory construction in Tsang v Francis.[49]
The focus of statutory construction is upon the text of the provisions having regard to their context and purpose.[50] A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. The context includes the existing state of the law, the history and legislative scheme and the mischief to which the statute is directed.[51]

The meaning of 'FVRO' in s 13A(1)(b) of the Restraining Orders Act 1997

Section 13A of the Act as it applies to an FVRO provides:

13A Cases involving violent offences

(1) This section applies to an application for an FVRO ... if -

(a) a person has been convicted of -

(i) an offence referred to in section 63(4AA)(a) ... ;

...

and

(b) an FVRO ... has not been made against the convicted person (including because the offence for which the person was convicted was committed before the offence became subject to section 63(4AA) ... ; and

There is no separate definition of 'FVRO' in s 13A of the Act itself. Section 3(2) of the Act provides (relevantly):

(2) In this Act the following abbreviations are used -

FVRO for family violence restraining order;

...

'Family violence restraining order' is defined in s 3(1) of the Act as 'an order made under this Act imposing restraints of the kind referred to in section 10G'.
The term 'FVRO' in s 13A of the Act must be construed having regard to the context and purpose of the provision. The overarching purpose of the legislation by which s 13A was introduced is to improve the safety of victims of family violence, ensure accountability of perpetrators of family violence, and increase responsiveness of the justice system by making it easier and less traumatic for victims to obtain protection from violence.[52]
The legislative scheme and the mischief s 13A of the Act is directed to is clearly expressed in the Explanatory Memorandum. The provision was introduced with the intention of making it easier and less traumatic for victims of specified offences to obtain (relevantly) an FVRO, including on an ex parte basis, if the court is satisfied the applicant is the victim of an offence referred to in s 63(4AA)(a), and the respondent is the person convicted of the offence.[53]
In relation to the construction advanced by the respondent, an 'interim order' or a 'final order'[54] may fall within the definition of a 'family violence restraining order' on a strict or literal interpretation. However, having regard to the context in which 'FVRO' is used in s 13A of the Act as a whole and in s 13A(1)(b) of the Act, it would defeat the object and purpose of the legislation as introduced by the Family Violence Legislation Reform Act 2020 to construe 'FVRO' in s 13A(1)(b) so as to exclude a final FVRO being made where an interim FVRO has been made.
In my view, when the term 'FVRO' is considered in its proper context, the construction contended for by the appellant is to be preferred and is consistent with the object and purpose of the provision.
It is not necessary for the word 'final' to be included before 'FVRO' in s 13A(1)(b). It is clear from the text, in the context of the provision and its purpose and object, that the criteria in s 13A(1)(b) which operates against an order being made is where a final order has already been made against the convicted person in relation to the offence. To construe the provision otherwise would defeat the object of providing an easier, less traumatic and effective means of protection.
Section 13A(2) of the Act clearly states that where a person has been convicted of an offence referred to in s 63(4AA)(a) of the Act, in the absence of exceptional circumstances, the court is taken to have grounds for making an FVRO against the person.
Section 63(4AA) of the Act also provides that, in the absence of exceptional circumstances, a court is taken to have grounds for making an FVRO against a person, if that person has pleaded guilty to or been found guilty of an offence specified (relevantly) in s 63(4AA)(a) of the Act, and the court is satisfied that a family member of the person wants to be protected by the FVRO.
As such, in an application under s 13A of the Act, once the court is satisfied the person to be bound has been convicted of an offence specified in s 63(4AA)(a), unless satisfied there are exceptional circumstances that would militate against making an FVRO, the court has power to make an FVRO. In my view, if those criteria are met, the court has power to make a final FVRO without a contested hearing.
This is supported by s 13A(4) of the Act, which provides that an order may be made on an ex parte basis and in the absence of the person to be bound by the order (the convicted person). It is also supported by s 13A(8) of the Act, which provides that a person bound by an order made under s 13A may apply to vary or cancel the order on the ground that exceptional circumstances exist which justify variation or cancellation. This is consistent with the object of providing protection easily, in a less traumatic way, without a contested hearing and putting the onus on the convicted person (the perpetrator of the family violence) to demonstrate exceptional circumstances.
Before moving on to deal with exceptional circumstances, I will address a matter raised in the respondent's submissions. The respondent referred to the definition of 'final order' in s 3(1) of the Act including (in relation to an FVRO) a conduct agreement order. Section 3(1) deals with the meaning of terms used in the Act 'unless the contrary intention appears'. It is clear from the text of s 13A of the Act that 'FVRO' in that provision is not intended to, and does not, include a conduct agreement order. That is not an order in respect of which an application is made. Further, s 10H(3) provides that a 'conduct agreement order is not an FVRO but is taken to be an FVRO for the purposes of the Act'. That is so that other operative provisions of the Act are taken to apply to a conduct agreement order in the same way as to an FVRO without the need for separate provisions. For example, provisions relating to breach of an FVRO will also apply to breach of a conduct agreement order, and so on.

Exceptional circumstances

'Exceptional circumstances' are not defined in the Act. This is not unusual and there are many examples of legislation in which the terms 'exceptional' and 'exceptional circumstances' are used and not defined. This is because what is exceptional or constitutes exceptional circumstances may depend on the facts of a particular case. It may include a single matter or circumstance or a combination of matters.
As the term 'exceptional circumstances' as it is used in s 13A of the Act is not expressly defined, it should be given its ordinary meaning. In other contexts, applying the ordinary meaning of that term, exceptional circumstances have been held to be circumstances that are unusual, out of the ordinary, in some way special, or an exception to the general run of cases.[55]
There was nothing before the learned magistrate, nor anything before me that is exceptional, that is out of the ordinary, unusual or in some way special about the matters proffered by the respondent as amounting to exceptional circumstances, whether by themselves or in combination.
In the absence of exceptional circumstances, the court below and this court is taken to have grounds for making an FVRO against the respondent.
As such, on a proper construction of s 13A(1) of the Act, I find the power to make a final FVRO in favour of the appellant against the respondent was enlivened and the proper course was to make a final FVRO under s 13A. That is because:
1. the respondent had been convicted of the s 338B Offence, being an offence referred to in s 63(4AA)(a) of the Act;
2. no final FVRO was in existence at the time the application was being considered;
3. the application was being made against the convicted person by the victim of the offence;
4. there were no exceptional circumstances; and
5. as such, the court was taken to have grounds for making an FVRO against the respondent.
The learned magistrate therefore erred in his construction of s 13A(1)(b) of the Act and in finding that the only option was to make the conduct agreement order.

Conclusion in relation to Ground 1

For the reasons outlined, I find that the learned magistrate erred in law in finding that s 13A of the Act was not invoked because s 13A(1)(b) operated so as to exclude the making of an FVRO where an interim FVRO was already in place.
Ground 1 is made out and the appeal should be and is allowed.
In the circumstances, the conduct agreement order should be set aside and an FVRO made under s 13A of the Act.
Though not an issue expressly raised in the appeal, I am satisfied that it is within the court's power to make the FVRO in circumstances where the offence (here the s 338B Offence) was committed before s 13A of the Act came into operation. This is made clear in the words of s 13A(1)(b) of the Act, which provide for an FVRO to be made if one has not already been made against the convicted person 'including because the offence for which the person was convicted was committed before the offence became subject to s 63(4AA)'.

Duration of FVRO

As to the duration of the FVRO, given the seriousness of the s 338B Offence and the respondent's previous breaches of an FVRO, in my view, the duration of the order should be longer than 2 years. This is so, despite the passage of time since the commission of the Offences.
Though the s 338B Offence and the other offences referred to in s 63(4AA) of the Act do not attract a mandatory lifetime violence restraining order as those specified in s 63A(1A)(a) of the Act do, there is authority to support an order being made in relation to such offences for a lengthy term, including life.[56]
Though over four years have now passed since the Offences were committed by the respondent, they amounted to ongoing family violence over a period of about a year. The respondent has breached a previous FVRO and protective bail conditions.
The respondent's actions have had a significant effect on the appellant. In her application for an FVRO, amongst other things, the appellant says she suffers from post-traumatic stress and anxiety. I am satisfied based on the sustained nature of the family violence the appellant was subjected to, that there is a reasonable basis for her apprehension that the respondent will commit family violence against her and expose their child to family violence.
In all the circumstances, I consider the appropriate term of the FVRO is as sought by the appellant, 10 years from 23 August 2022.
The respondent has indicated his desire to have contact with his son and to seeking Family Court orders in that regard. The terms of the FVRO are such that the respondent will not breach the orders if he complies with orders of the Family Court allowing him to have contact with his son.

Ground 2

As the appellant has succeeded on Ground 1 of the appeal, it is not necessary for me to consider Ground 2, which is relied upon in the alternative.

Conclusion and orders

For the reasons stated:
1. the appeal is allowed;
2. the Decision and the conduct agreement order made on 20 January 2023 are each set aside; and
3. I will make a final FVRO pursuant to s 13A of the Restraining Orders Act in the same terms as the Interim FVRO made on 23 August 2022, except that the duration of the order will be 10 years from 23 August 2022.
I will hear from the parties to the appeal as to the final form of orders and as to any orders for costs.

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

ES
Associate to the Judge

11 DECEMBER 2023

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH

CITATION : RT -v- MW [2023] WADC 148 (S)

CORAM : RUSSELL DCJ

HEARD : 11 DECEMBER 2023

DELIVERED : 12 JANUARY 2024

FILE NO/S : APP 7 of 2023

BETWEEN : RT

Appellant

AND

Respondent

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE MAUGHAN

File Number : MC/CIV/JOO/RO/644/2022

Costs - Costs of proceedings in Magistrates Court following successful appeal

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(1), s 43(7)(e)

Result:

Respondent to pay appellant's costs of the proceedings in the Magistrates Court to be taxed, if not agreed

Representation:

Counsel:

Appellant	:	Mr R G Worth
Respondent	:	Mr T M Andrews

Solicitors:

Appellant	:	Legal Aid Western Australia
Respondent	:	Andrews Legal

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

Hughes v St Barbara Ltd [2011] WASCA 234 (S)

Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388

RUSSELL DCJ:

Overview

On 11 December 2023, I delivered my reasons for decision in relation to the appeal in this matter. For the reasons set out in RT v MW [2023] WADC 148, I allowed the appeal and, on 11 December 2023, I made the following orders:
1. The appeal is allowed.
2. The decision of his Honour Magistrate Maughan and the conduct agreement order made on 20 January 2023 are each set aside.
3. A final family violence restraining order (FVRO) is to be made pursuant to s 13A of the Restraining Orders Act 1997 (WA) in the same terms as the interim FVRO made in the Magistrates Court proceeding on 23 August 2022, except that the duration of the order will be 10 years from 23 August 2022.
I also made an order that the appellant's costs of the appeal be paid by the respondent, to be taxed if not agreed. That order was not opposed.
The appellant also sought her costs of the proceedings in the Magistrates Court (FVRO Proceedings) pursuant to s 43(7)(e) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act). The respondent opposed that application.
I heard oral submissions on behalf of the parties and now deliver my decision in relation to the costs of the FVRO Proceedings. For the brief reasons that follow, I order that the appellant's costs of the FVRO Proceedings be paid by the respondent, to be taxed if not agreed.

Summary of parties' positions in relation to costs of the FVRO Proceedings

In essence, the appellant seeks her costs of the FVRO Proceedings on the basis that:
1. The costs order made by the magistrate related to the conduct agreement order made on 20 January 2023.
2. That order was set aside in the appeal.
3. The court should exercise its discretion to make the order sought under s 43(7)(e) of the MCCP Act.
4. Counsel for the appellant referred to and relied on an offer made by the appellant on 23 December 2022 to compromise the FVRO Proceedings by entering into a conduct agreement order for a period of 5 years, which was not accepted by the respondent.
The offer of compromise was made in a letter dated 23 December 2022 from the appellant's lawyers to the respondent's lawyers. The offer was to enter into a conduct agreement order in the terms set out in a draft order attached to the letter. Those terms were essentially the same as the final FVRO made in the appeal, except that the duration of the proposed conduct agreement order was 5 years. The proposed order also included an order that the respondent pay costs in the amount of $9,000.
The appellant does not press for costs incurred after 23 December 2022 to be paid on an indemnity basis.[57]
In essence, the respondent opposed the appellant's application for costs in relation to the FVRO Proceedings on the basis that:
1. The magistrate refused to make a costs order and there was no appeal against that decision of the magistrate.
2. It was submitted that 'was res judicata' and there was no lawful basis for the costs order made by the magistrate to be reconsidered in the circumstances.
3. Section 43(7)(e) of the MCCP Act only applies where there is an appeal against a magistrate's decision to refuse to make a costs order.
4. Any costs orders in the appeal are confined to the costs of the appeal proceedings in this court.

Disposition

Section 43 of the MCCP Act applies, relevantly, to the District Court when dealing with an appeal under s 40 of the MCCP Act against an order of the Magistrates Court.[58]
Section 43(7)(e) of the MCCP Act provides, relevantly, that the District Court may make an order as to the costs of the appeal and as to the costs in the Magistrates Court.
The magistrate did not refuse to make any order for costs in the FVRO Proceedings. The order made was that each party bear their own costs. That order related to the conduct agreement order made on 20 January 2023, which was the subject of the appeal.
On 11 December 2023, I set aside that conduct agreement order and made a final FVRO pursuant to s 13A of the Restraining Orders Act 1997 (WA) essentially in the terms proposed in the appellant's offer of compromise, except for a duration of 10 years from 23 August 2022.
I do not accept that the principle of res judicata has any application in the circumstances or affects the exercise of my discretion to award costs, as submitted on behalf of the respondent.
The following general principles relating to costs are well settled. Costs are in the discretion of the court. The court's discretion to award costs must be exercised judicially but is otherwise not confined.[59] Costs will usually follow the event so that generally the court will order that the successful party to any action or matter recover their costs.[60]
The appellant was successful in the appeal and has obtained an order restraining the respondent for a period longer than the 5 years offered by her in her offer of compromise, and significantly longer than the period of 2 years offered by the respondent. She has ultimately succeeded in her application made in the FVRO Proceedings.
I see no good reason to depart from the usual rule relating to costs that the unsuccessful party pay the successful party's costs of the action, relevantly, the FVRO Proceedings.

Conclusion and orders

I am satisfied that it is appropriate to make an order pursuant to s 43(7)(e) that the respondent pay the appellant's costs of the FVRO Proceedings, such costs to be taxed if not agreed. It need not be stated in the orders, but for the avoidance of any doubt, those costs will be payable on a party/party basis.
I make an order in the following terms:
1. The appellant's costs of the Magistrates Court proceedings to be paid by the respondent, to be taxed if not agreed.

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

ES
Associate to the Judge

12 JANUARY 2024

[1] As that term is defined in s 4(1) of the Restraining Orders Act.
[2] Magistrates Court sentencing transcript 22 August 2022 (Sentencing ts) ts 1 - ts 23, Appeal Book, pages 11 - 33.
[3] As described at Sentencing ts 4, Appeal Book, page 14.
[4] Sentencing ts 17, Appeal Book, page 27.
[5] Sentencing ts 4 - ts 5, Appeal Book, pages 14 - 15.
[6] Sentencing ts 17 - ts 18, Appeal Book, pages 27 - 28.
[7] Sentencing ts 5 - ts 6, Appeal Book, pages 15 - 16.
[8] Sentencing ts 6, Appeal Book, page 16.
[9] Sentencing ts 6 - ts 7, Appeal Book, pages 16 - 17.
[10] Sentencing ts 19, Appeal Book, page 29.
[11] Family violence restraining order application and affidavit in support, 23 August 2022, Appeal Book, pages 252 - 261.
[12] Magistrates Court transcript of proceedings on 23 August 2022 (23 August 2022 ts) ts 1 - ts 7, Appeal Book, pages 305 - 311; Interim FVRO, 23 August 2023, Appeal Book, pages 225 - 226.
[13] Notice of determination of interim order, 16 September 2022, Appeal Book, page 215; Notification of service, Appeal Book, pages 218 - 219.
[14] Application to set aside final order under the Restraining Orders Act 1997, Appeal Book, pages 208 - 210; Affidavit of Tabitha-Mary Raphael sworn 20 September 2022, Appeal Book, pages 211 - 212.
[15] Magistrates Court transcript of proceedings 29 November 2022 (29 November 2022 ts) ts 1 - ts 10, Appeal Book, pages 283 - 292.
[16] Magistrates Court transcript of proceedings 16 January 2023 (16 January 2023 ts) ts 1 - ts 12, Appeal Book, pages 267 - 278.
[17] Reasons for decision 20 January 2023, Appeal Book, pages 1 - 7.
[18] Magistrates Court transcript of proceedings 20 January 2023 (20 January 2023 ts) ts 1 - ts 3, Appeal Book, pages 264 - 266; Conduct agreement order, Appeal Book, pages 65 - 66.
[19] Restraining Orders Act s 64(1)(b)(ii), s 64(2).
[20] MCCP Act s 40(4)(a). See also District Court Rules 2005 (WA) r 50(1) (DCR).
[21] MCCP Act s 40(4)(b), s 40(5); DCR r 50(2).
[22] Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] - [10] (Bowden DCJ).
[23] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ).
[24] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 - 367 (Deane J).
[25] Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).
[26] House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).
[27] Restraining Orders Act s 10A.
[28] Restraining Orders Act s 10B.
[29] Restraining Orders Act s 10D, s 10E.
[30] Restraining Orders Act s 10F.
[31] Restraining Orders Act s 10G(1).
[32] Restraining Orders Act s 10G(2) - 10G(6).
[33] See Restraining Orders Act s 4(1) for meaning of 'family relationship'.
[34] Restraining Orders Act s 10B(2).
[35] Not reproduced as not relevant in this case. Relates to the relevant offence having been committed by a person who was a child at the time of commission of the offence.
[36] Family violence restraining order application and affidavit in support, 23 August 2022, Appeal Book, pages 252 - 261.
[37] Application to set aside final order under the Restraining Orders Act 1997, Appeal Book, pages 208 - 210; Affidavit of Tabitha-Mary Raphael sworn 20 September 2022, Appeal Book, pages 211 - 212.
[38] Appeal Book, pages 43 - 59.
[39] Sentencing ts 1 - ts 23, Appeal Book, pages 11 - 33.
[40] Appeal Book, pages 55 - 59.
[41] Interim FVRO made by his Honour Magistrate Shackleton on 23 August 2023 for a period of 5 years, Appeal Book, pages 225 - 226.
[42] 16 January 2023 ts 4 - ts 5, Appeal Book, pages 270 - 272 and Sentencing ts 4 - ts 7, ts 16 - ts 19, Appeal Book pages 14 - 17, 26 - 29.
[43] Explanatory Memorandum, page 1 of 76.
[44] Explanatory Memorandum, pages 39 - 40 of 76.
[45] Reasons for decision, Appeal Book, pages 1 - 7; 20 January 2023 ts 2, Appeal Book, page 265.
[46] Reasons for decision [9], Appeal Book, page 7.
[47] Explanatory Memorandum, page 40 of 76.
[48] Set out in respondent's outline of submissions, par 15.
[49] Tsang v Francis [2021] WASCA 131 [137] - [146] (Buss P, Mazza & Hall JJA). See also Paula Susan Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205 [31] - [35] (Buss P & Mitchell JA).
[50] Tsang v Francis [137].
[51] See Tsang [138] - [139] and the authorities referred to.
[52] Exhibit 2, Explanatory Memorandum, Overview of Bill, page 1 of 76.
[53] Explanatory Memorandum, 71 Part 2A div 1AA inserted, pages 39 - 40 of 76.
[54] Each as defined in Restraining Orders Act s 3(1).
[55] See for example Tieleman v The Queen [2004] WASCA 285 [15] (Murray J, Steytler & Templeman JJ agreeing); Roberts v The State of Western Australia [2011] WASC 118; The State of Western Australia v Roworth [2022] WASC 71 [16].
[56] See for example, Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [242] - [246]; Siriphanuruk v The State of Western Australia [2023] WASCA 56 [580] - [594].
[57] ts 68, 11 December 2023.
[58] Section 43(1) of the MCCP Act.
[59] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 21 - 22, 134; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24] - [25]; Hughes v St Barbara Ltd [2011] WASCA 234 (S) [5]; Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [48] - [50].
[60] RSC O 66 r 1(1).

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