Western Australia

District Court

  • DB v RB [2020] WADC 93 (29 June 2020) – Western Australia District Court
    Damaging property’ – ‘Evidence’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Sexual and reproductive abuse

    Proceedings: Appeal from magistrate’s decision to make final Family Violence Restraining Order (Final Order) pursuant to Restraining Orders Act 1997 (WA) (‘the RO Act’).

    Facts: The magistrate was satisfied on the balance of probabilities that DB had committed acts of family violence against his wife (RB): a sexual assault, letting down RB’s car tyres (controlling behaviour), and two physical assaults. The magistrate was also satisfied that RB had reasonable grounds to apprehend he would commit acts of family violence against her. In relation to their daughter, TB, the magistrate found that DB had committed acts of family violence against her, exposed her to family violence, and she had reasonable grounds to apprehend further family violence/exposure to family violence. The magistrate made the Final Order protecting RB and her eldest daughter (TB) for a term of two years.

    Grounds of appeal:

    1. The magistrate did not accord DB procedural fairness in refusing to grant leave to call overseas witnesses.
    2. The magistrate erred in relying on his finding that TB was a credible witness to be satisfied on the balance of probabilities that incidents of family violence had occurred.
    3. Text messages sent by RB to her sister that she had been raped, shortly after the incident occurred, were inadmissible as they were sent to an unknown number.
    4. The magistrate disregarded one instance where DB was not the aggressor.
    5. The decision the magistrate made was excessive.

    Decision and reasoning: Appeal dismissed.

    Ground 1: Evidence of the two proposed overseas witnesses was irrelevant as they had only observed the relationship in the past. Evidence was also inadmissible as it was only intended to bolster the credibility of DB.

    Ground 2: The magistrate’s finding as to TB’s credibility (a child witness) was open to make based on his assessment of the way she gave evidence, and in light of all of the evidence.

    Ground 3: While the probative value of/weight given to the text messages may have been an issue for the magistrate to consider, the magistrate did not err admitting them into evidence. They were relevant to the matters to which he was required to have regard. The court also noted that s 44A(i) of the RO Act provides that the court is not bound by the evidence in a final order hearing and the court may inform itself on any matter in such a manner as it considers appropriate.

    Ground 4: The magistrate did not rely on this incident as one of the acts of family violence he was satisfied DB committed. In any event, the fact that DB may not have been the instigator of the events described did not detract from the fact that DB acknowledged he acted violently towards his wife in the course of that incident.

    Ground 5: The magistrate correctly applied the test set out in s 10D(1) of the RO Act that a final order must be made where the magistrate is satisfied of the matters set out in s 10D(1)(a) or s 10D(1)(b), unless special circumstances exist.

  • Potschick v Bruce [2018] WADC 107 (31 August 2018) – Western Australia District Court
    Protection orders’ – ‘Summary of considerations

    Charges: The Magistrate was satisfied that the respondent committed two acts of abuse against the appellant.

    Appeal type: Appeal from a decision of the Magistrate refusing to make a final violence restraining order.

    Facts: The appellant appealed a decision of the Magistrate to refuse to make a final violence restraining order against the respondent. The appeal was conducted by way of a rehearing of the application.

    Issues: Whether the Magistrate erred in fact in finding that the respondent was not likely, in the future, to commit an act of abuse against the appellant.

    Decision and reasoning: The appeal was dismissed. Before the Court’s power to grant a Final Violence Restraining Order (VRO) is enlivened, it must be satisfied that the respondent committed an act of abuse against the appellant and that he is likely to commit such an act again. The Court noted that the Magistrate was not satisfied to the requisite standard that the respondent was likely to commit an act of abuse against the appellant again, or that the granting of either a Family Violence Restraining Order FVRO of an Misconduct Restraining Order (MRO) was justified. As the Court was not prepared to disturb the Magistrate’s finding as to the respondent’s likely future conduct, there was no statutory basis on which the Court could order an MRO (there being no family relationship between the appellant and respondent). Having regard to the issue of the respondent’s likely future conduct in relation to the appropriateness of granting a Final VRO or a MRO, there was no utility in undertaking a consideration of a hypothetical question of whether the Magistrate erred in exercising his discretion to refuse an order in the event that the finding was overturned and the jurisdiction to make an order enlivened ([36]).