(d) continue per previous orders with regards to medical practitioners and treatment.

1. During the time the children are to spend with each parent that parent shall not denigrate or insult the other parent, partner or family members to the children or in the presence of or hearing of the child.

1. That handovers that cannot occur at or through the children's school are to occur at McDonald's Restaurant [REDACTED].
2. Each parent shall deliver and return the child's clothing, school supplies and belongings and the child's clothing including uniforms shall be returned.
3. That the children are not to travel internationally or interstate.

1. All communication between the parties is to be conducted by email; with all communication at all times to remain child focussed, respectful and courteous and related to the facilitation of these Orders.
2. By consent, in case of a medical emergency affecting either of the children, the parties be at liberty to contact each other via SMS text message.

...

Section 175 Conduct Order Inconsistency

1. This is an order to which Section 175 of the Family Court Act 1997 applies and to the extent that this order is inconsistent with the Conduct Agreement Order made in the case between the parties on 28 September 2023 in the Magistrates Court at Perth, being Complaint No. MC/CIV/PER/RO/4951/2023, the aforesaid parenting order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.
2. The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at Perth and the Chief Executive Officer of the Department of Communities.

1. By application dated 5 February 2025, subsequent to the making of the Family Court Orders, LC filed an application with the Magistrates Court to extend the CAO for a further 18 months and to vary the terms of the CAO to include the following (CAO Variation Application):[17]

To not release or share personal, confidential information about me with anyone

1. The grounds identified in the CAO Variation Application by LC for leave to continue the CAO were as follows:

[ASB] has provided my private and confidential financial information including bank statements and payslips to his sister, [REDACTED], and to Child Support Australia, without my consent. These documents were not requested to be provided by me or by him.

I would like it extended because there have been subtle breaches in regards to communication and physical boundaries. A police report was made about the communication. The reference number I was given was: [REDACTED]. I was advised to alert the Family Court about this. I have done so. We are still in the process of negotiating orders.

1. By notice dated 25 February 2025, the parties were notified that the CAO Variation Application would take place on 17 June 2025.[18]
2. The following statements of intended evidence of a witness were filed for the purposes of the hearing of the matter:
   1. Statement of Intended Witness Evidence of LC;[19]
   2. Statement of Intended Witness Evidence of PJW;[20]
   3. Statement of Intended Witness Evidence of LC's mother;[21]
   4. Statement of Intended Witness Evidence of NJ;[22] and
   5. Statement of Intended Witness Evidence of ASB.[23]

1. The matter proceeded to a half-day hearing on 17 June 2025 (part-heard) and thereafter a full day hearing on 8 July 2025,[24] following which the matter was adjourned for a reserved decision on 22 July 2025.
2. ASB was represented by counsel at the hearings in respect of the matter.
3. LC appeared in person and was unrepresented.
4. At the hearing on 17 June 2025, counsel for ASB observed that the hearing was in respect of an application to vary and extend the CAO in circumstances where ASB no longer consents to that order, such that the approach to be taken by the court is to treat the matter as a final hearing of a FVRO application.[25]

1. In delivering her Decision on 22 July 2025, the learned magistrate identified the following issues for determination:[26]

HER HONOUR: The issues for trial are whether (1) family violence has been committed by the respondent [ASB] towards the applicant, and (2) the respondent [ASB] is likely again to commit family violence against the applicant, or (3) the applicant has reasonable grounds to apprehend that family violence will be committed against her by the respondent [ASB].

1. In circumstances where the Family Court proceedings have been moved to a trial and separate representatives have been appointed for the children of the relationship, the learned magistrate said:[27]

HER HONOUR: ... I therefore do not propose to repeat those allegations, nor make any findings in relation to them. And my findings are as follows. The relationship between the applicant [LC] and the respondent [ASB] is clearly acrimonious, and has been for some time. There are protracted proceedings in the Family Court which have not been concluded. It may have been preferable to have adjourned this matter until after the Family Court proceedings concluded.

However, it was an application to extend an order and I chose to allow the trial to proceed but, as indicated, have limited my findings as to the evidence. Also, neither party applied to have the trial adjourned ...

1. In delivering her reasons, the learned magistrate found as follows:[28]

HER HONOUR: ... It follows that I am satisfied on the balance of probabilities that

(a) the respondent [ASB] committed family violence as defined in the Act, and I find that in the - in those circumstances and given his behaviour in cross-examination, he is likely to commit family violence in that manner against the applicant in the future.

(b) the applicant [LC] reasonably apprehends that the respondent [ASB] will commit family violence in the context I have found in these reasons. I therefore must make the family violence orders unless there are special circumstances making it inappropriate. And in making the order, I've taken into consideration those matters which are relevant under section 10F of the Act. I reiterate that I have made these findings on a limited basis not to include the communication issues alleged, not to include the children of the relationship, as those matters are being litigated in the Family Court which, in my view, is a more appropriate arena.

I therefore propose to make a final family violence restraining order for a period of two years from today in the following terms, or in similar terms to the conduct agreement order, save and except I am deleting the last paragraph which reads communicate and then ends with financial matters. And I'm including a new paragraph under part B which is to comply with a court order or parenting plan. And I will read that in its entirety shortly ...

1. The learned magistrate made orders granting the FVRO for a duration of two years from 22 July 2025.[29]

1. The appeal is brought pursuant to s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) which provides that an appeal from a judgment in a civil case before the Magistrates Court lies to the District Court.
2. Pursuant to s 64 of the ROA, a person aggrieved by the decision of a court to 'make any other order in relation to a final order', may appeal that decision in accordance with this section. Section 64(2) provides that if the decision was made by the Magistrates Court, the appeal is to be made in accordance with pt 7 of the MCCPA unless s (6a)(a) applies.
3. The appeal was commenced by notice of appeal filed 11 August 2025. This was within the required 21 days from the date of the Decision.[30] As the Decision was in respect of the making of an order in relation to a final order, the appeal is within the appellate jurisdiction of the District Court.[31]
4. The District Court must decide the appeal on the material and evidence that was before the learned magistrate.[32] The court can give leave to admit other evidence, but only in exceptional circumstances.[33] No such application was brought and the appeal proceeded to hearing on the material and evidence that was before the learned magistrate.
5. The appeal is by way of a 'reconsideration of the evidence' that was before the magistrate.[34] The court does not hear afresh all of the evidence.[35] Rather, the appeal is to be undertaken by way of a re-hearing.[36]
6. 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.[37] There must be a material error of law, fact, discretion or other miscarriage of justice.[38] 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 appealable error.[39]
7. As the Court of Appeal observed in Marks there is a distinction between findings of primary fact which are affected by the assessment of a witness' oral evidence and inferences which may be drawn from those primary facts.[40]
8. As to appellate restraint with respect to findings of primary fact, the High Court observed in Robinson Helicopter Company Incorporated v McDermott:[41]

A court of appeal conducting an appeal by way of rehearing is bound to conduct 'real review' of the evidence given at first instance and of the judge's reasons or judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'.

(citations omitted)

1. In relation to inferences which may be drawn from primary facts, the position is different as was noted in Warren v Coombes:[42]

... in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

1. As was observed by the Court of Appeal in Marks,[43] this distinction is elucidated in the following passage of the majority judgment in Lee v Lee:[44]

A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. ...

(citations omitted)

1. The distinction between findings of primary fact which are affected by the assessment of a witness' oral evidence and inferences which may be drawn from those primary facts was also the subject of detailed observations by the Court of Appeal in Smart:[45]
   1. In conducting its review of the case, the appellate court must observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. The law recognises that, compared to the trial judge, an appellate court has disadvantages that include, but are not limited to, not having seen and heard the witnesses. In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ observed that the limitations of the appellate court, in proceeding on the record, include:

[T]he disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. ...

1. Because of this, the discernment of appealable error requires attention, at the outset, to the nature of the findings said by an appellant to be erroneous. The nature of the finding, and the reasoning by which it was made, affects what is required in order to demonstrate appealable error. The nature and extent of the trial judge's advantage(s) informs what is required in order to reach, and the extent of any appellate restraint in reaching, a conclusion of error. In this respect ... it is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination, and the reasoning of a trial judge based on inferences drawn from facts that were undisputed or found. This distinction, and its significance, has long been recognised.
2. In the case of a finding that is based, at least to any substantial degree, on an assessment of the credibility of one or more witnesses, an appellate court will not interfere with the finding unless it is demonstrated to be wrong by reference to incontrovertible facts or uncontested testimony, or because the finding is glaringly improbable or contrary to compelling inferences, or because the trial judge failed to use, or has palpably misused, their advantage as trial judge.
3. By contrast, an appellate court is, in general, in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding the proper inference to be drawn, the appellate court gives respect and weight to the conclusion of the trial judge. However, if it reaches a different conclusion, in other words, it concludes that error is shown because the trial judge was wrong as to the inference drawn, it must give effect to that conclusion.

1. The scope of appellate interference where the primary decision maker made findings which, to a substantial degree, were based the credibility (or lack thereof) of witnesses was summarised by the Court of Appeal in McKessar v Pascoe:[46]

... The limited scope for appellate interference in that event is well known, and none of the grounds go so far as to suggest that the judge's findings are wrong by reference to incontrovertible facts or uncontested testimony, or because they are glaringly improbable or contrary to compelling inferences, or because the judge failed to use, or has palpably misused, her advantage as a trial judge.

1. The onus is on the appellant to demonstrate the existence of an appealable error.[47] 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.[48]

1. The failure to provide adequate reasons is another species of appealable error.[49] This can include a failure to reach a material conclusion or the failure to adequately set out the intellectual process leading to a conclusion.[50]
2. The Court of Appeal in Chief Executive Officer, Department for Child Protection and Family Support v IGR summarised the principles relevant to an evaluation of the adequacy of reasons in the following terms:[51]

Principles relevant to an evaluation of the adequacy of reasons include the following:

(1) Reasons for decision need not be lengthy or elaborate.

(2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.

(3) It is not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails.

(4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's or tribunal's consideration.

1. The common law position is adjusted in the Magistrates Court by s 31 of the Magistrates Court Act 2004 (WA) (MCA).[52] That section provides as follows:
   1. Judgments, content of

(1) The Court's reasons for a judgment in a case -

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

1. In relation to MCA s 31, in Manonai v Burns Hall J (with whom the other members of the court agreed) observed:[53]

The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.

1. A similar observation was made by Martin CJ in Strahan v Brennan:[54]
   1. Having regard to that section and the context in which the magistrates of this state conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
   2. Nevertheless it is clear that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions. It is also clear that the adequacy of any magistrate's reasons is to be assessed by looking at the reasons as a whole and includes not only findings expressly made but findings to be inferred from the findings expressly made.
   3. Further, the adequacy of the magistrate's reasons in any particular case must be assessed in the context of that particular case so that what might appear to be unacceptable economy of language might be justified by the manner in which the case was conducted or by the evidence that was adduced.

1. The consequence of an appealable error from inadequate reasons were set out by the Court of Appeal in Chester:[55]

Appealable error from inadequate reasons, of course, does not necessarily result in a new trial. An appeal court is entitled to consider the matter, and if it can do so (where, for example, the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge), it may itself decide the matter. This, however, is not such a case. There were contestable issues on the merits, which the learned trial judge did not adequately address and which this court cannot determine merely from the record.

(footnotes omitted)

1. The grounds of appeal as they appear in the notice of appeal are as follows:
   1. The magistrate's reasons were inadequate, and occasioned a miscarriage of justice, in that her Honour (Ground 1):

(a) implicitly found that the appellant had breached a conduct agreement order by approaching within 10 metres of the respondent during handover, without referring to Family Court orders which provided for handover to occur and overrode the conduct agreement order to the extent of any inconsistency;

(b) failed to give reasons for, or refer to the conflicting evidence in respect of, her Honour's finding that the appellant stood near the exit at a school assembly causing the respondent to have to move past him;

(c) failed to refer to the statutory definition of family violence or the principle that whether behaviour is coercive, controlling or causes a person to be fearful is judged by an objective standard;

(d) failed to identify the facts which her Honour had accepted, or the part of the definition of family violence which her Honour had applied, in finding that the appellant had committed family violence; and

(e) failed to identify the conduct constituting family violence which her Honour considered the appellant was likely or reasonably apprehended to commit in the future.

1. The magistrate's findings that the appellant was likely to commit family violence in the future, and that the respondent had reasonable grounds to apprehend that the appellant would commit family violence in the future, were unreasonable (Ground 2).

Adequacy of reasons - miscarriage of justice (Ground 1)

1. Ground 1 asserts a miscarriage of justice arising out of a failure on the part of the learned magistrate to provide adequate reasons in respect of each of Grounds 1(a) to (e) in reaching her Decision.
2. ASB refers to s 31 of the MCA and relies on the Court of Appeal's decision in Manonai v Burns[56] as to the duty of judicial officers to deliver reasons that expose the process by which a decision has been reached. Pointing to Riley v The State of Western Australia,[57] ASB submits that the reasons must be sufficient, that is, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision.
3. ASB submits that making findings of fact where there is conflicting evidence is an important component of giving reasons. ASB submits that if the conflict is on a matter of significance, it is necessary for the learned magistrate to consider whether the evidence of one party can be preferred over that of the other. Whilst acknowledging the realities of pressure of work and limited time in the Magistrates Court, ASB submits that reasons can be adequate and comply with s 31 of the MCA without having to be unduly long. That is, on ASB's case, it is the substantive content of the reasons rather than their length which is important.
4. Having set out the primary issue raised by ASB in respect of the adequacy of the reasons, I now turn to each of the of the sub-issues raised in Grounds 1(a) to (e). In so doing, I set out my analysis in respect of each issue and my overall disposition having had regard to ASB's position in respect of Ground 1 summarised above.

Ground 1(a) - Breach of the conduct agreement order 10 -metre distance and the Family Court Orders

1. ASB submits that as there is an inconsistency between the CAO that provides that he not approach within 10 metres of LC, and the Family Court Orders regarding handover and delivery and return of the children's clothing, school supplies and belongings each fortnight, the Family Court Orders prevail. ASB accepts that the Family Court Orders do not expressly refer to the 10-metre distance but submits that it was necessary for ASB to breach that distance in order to comply with the Family Court Orders.
2. ASB submits that the learned magistrate's reasons did not disclose the process of reasoning which led to the finding that ASB had committed family violence. Nor did the reasons address the legal submission that the Family Court Orders overrode the CAO.
3. ASB submits that the learned magistrate's purported failure to state the legal effect of her finding that ASB was 'chipping away' at the CAO, and her rejection of the appellant's 'repeated excuses', meant that the reasons did not disclose the basis on which the final FVRO was granted.
4. ASB submits that in the circumstances, it is unclear whether the magistrate found that ASB had committed an offence against s 61(1) of the ROA, or erred in law when construing the Family Court Orders.
5. LC submits that the learned magistrate implicitly found that ASB had breached the CAO by approaching within 10 metres of LC during handover and did not fail to consider the terms of the Family Court Orders, which were attached to ASB's statement of evidence, when finding that ASB had breached the terms of the CAO. LC points to the learned magistrate's reasons for Decision in support of this, noting that the Family Court Orders were before her Honour.

1. That the learned magistrate did not accept ASB's position that there was an inconsistency between the CAO and the Family Court Orders as to the distance ASB was to remain from LC appears from a review of the hearing of the transcript on 17 June 2025:[58]

YOUNG, MR: Yes, and that the application was made in a context where the Family Court had made quite detailed interim orders that were expressed to override the conduct agreement order. So the application is made in a context where your Honour will hear the evidence about those two orders having - - -

HER HONOUR: But there's nothing in that - those Family Court orders that I can see, correct me if I'm wrong, I did skim them, that speaks about the distance he has to remain from her?

YOUNG, MR: Well, the orders are expressed to override the orders of this court - - -

HER HONOUR: Insofar as they are inconsistent, isn't it?

YOUNG, MR: Yes, your Honour, and - - -

HER HONOUR: And there's nothing in those orders that I can see that speak about a distance. That's in the conduct agreement order, and I think it's 10 metres.

YOUNG, MR: Yes, that's right, your Honour, but the Family Court orders provide for the parties to have equal shared parental responsibility.

HER HONOUR: It's not speaking about distance.

HER HONOUR: So it's whether I accept his version of events, effectively that he had no choice but infringed the 10 metres or because of the Family Court orders, in other words handing the children over, or whether I accept [LC]'s evidence that on the balance of probabilities that he has constantly chipped away at the 10 metres.

YOUNG, MR: Yes, your Honour. It's - - -

HER HONOUR: Relying on that complication or inconsistency (indistinct) that's what I think the issue is, isn't it?

YOUNG, MR: Yes, I accept that characterisation of the issue, your Honour.

...

1. That ASB accepts that he breached the 10-metre distance appears from a review of the transcript of the hearing on 8 July 2025:[60]

[LC]: I put it to you that you repeatedly breached the 10-metre rule during handover?---

[ASB]: Yes, under the Family Court.

1. That the question of ASB having breached the 10-metre distance was considered by the learned magistrate in reaching her Decision is reflected on a review of the transcript of the hearing on 22 July 2025. Relevantly, that having considered ASB's evidence:[61]

HER HONOUR: He also admitted to ... having gone closer than 10 metres to the applicant [LC] contrary to the provisions of the conduct agreement order.

... Insofar as advancing within 10 metres contrary to the conduct agreement order, he claimed it was necessary for the protection of the children at handover.

1. In making her findings with respect to the breach of the CAO by ASB, the learned magistrate set out her reasoning process as to why she preferred the witness evidence of LC and why, in considering ASB's evidence, she did not find him to be a credible witness and did not accept his evidence as to the need to going within the 10-metre distance for the safety of the children:[62]

HER HONOUR: The applicant's [LC's] evidence. The applicant [LC] gave evidence. She maintained in her evidence that the accused had on a number of occasions breached the 10 metre rule in the conduct agreement order. Amongst other things, she reiterated that her private documents had been distributed to others, that the respondent had tracked her using the 360 app outside the parameters of their agreement, and she maintained that the respondent had been coercive towards her in their relationship.

I am satisfied she was a reliable and honest witness in the event the applicant [LC] was in cross-examination. In any event, the [respondent?] in cross-examination admitted that he had tracked her with the 360 app outside the agreement between them, that it would be used to ensure she was getting home safely when driving. He admitted to yelling at her, but claimed this was on counsellor's instructions. He admitted to going within the 10 metre distance, but claimed this was for the children's protection at handover.

And he admitted to sharing personal information with his sister, but claimed he had been told he could do this by his lawyer as his sister was his support person.

HER HONOUR: He admitted to going within the 10 metre, claiming he had to as it was for the safety of the children. I don't accept that evidence. I find he was effectively chipping away at this condition with repeated excuses such as parking near, handing over property for the children or keeping them safe.

1. The learned magistrate reiterated her position that the 10-metre distance under the CAO was not inconsistent with the Family Court Orders in the making of the orders following on from the Decision:[64]

YOUNG, MR: Yes. And I should understand your Honour to be finding that there is no inconsistency between the 10 metre order which your Honour is making and the Family Court orders that provide for handover to occur such that that 10 metre requirement is something that [ASB] will need to - -

HER HONOUR: Has to adhere to.

YOUNG, MR: - - - strictly observe, even in relation to handover under the Family Court order.

HER HONOUR: That's correct. Because the - - -

YOUNG, MR: I understand, your Honour.

HER HONOUR: - - - Family Court order doesn't override that section.

YOUNG, MR: I understand, your Honour

HER HONOUR: But you might need to - it's a matter for you. It's not for me to tell you what to do, but you might need to go back to the Family Court to have the order amended so it refers to the current restraining order as opposed to the conduct agreement order. A matter for you.

1. On my review of the transcript of the learned magistrate's reasons for decision delivered 22 July 2025, it is clear that the learned magistrate considered s 175 of the Family Court Act and had regard to both the Family Court Orders and the CAO in concluding that there was no inconsistency as between the CAO and the Family Court Orders with respect to the 10-metre distance.
2. As to adequacy of the learned magistrate's reasons for decision in respect of reaching that view, I find that the learned magistrate's reasons disclosed the intellectual process that led to her decision in sufficient detail, and with sufficient certainty, to enable ASB to know why her Honour concluded that there was no inconsistency and to enable this court of appeal to determine whether the decision involved appealable error.
3. In all of the circumstances, and having conducted a real review of the evidence given at first instance and of the primary decision-maker's reasons for decision, which I have read as a whole and considered in the context of the evidence, I am of the view that there is no appealable error in respect of Ground 1(a).
4. Ground 1(a) of the grounds of appeal has not been established.

Ground 1(b) - Exit at school assembly incident and conflicting evidence

1. The incident relates to a school assembly in December 2024. ASB points to the learned magistrate's finding that ASB was 'chipping away' at the CAO when he stood near the exit at the school assembly causing LC to move past him within that distance. ASB submits that in reaching this finding, the learned magistrate rejected ASB's evidence but did not identify the evidence which established it. ASB further points to the evidence NJ gave about this incident and her denial that LC was forced to move past ASB and the learned magistrate having discounted this evidence in its entirety.
2. LC submits that ASB deliberately stood within 10 metres of the two entries/exits in to the event and did not remove himself from the situation contrary to the terms of the CAO.

1. NJ was called by ASB to give evidence at the hearing on 8 July 2025 about the school assembly incident:[65]

YOUNG, MR: In your witness statement, you describe an incident at a school assembly where you saw [LC] walk past [ASB] several times when - - -?

[NJ]: ---Yes.

YOUNG, MR: - - - she could have kept the distance?

[NJ]: ---That's correct.

YOUNG, MR: How do you know that she could have kept the distance?---

[NJ]: Well, when you know the setting, like I said, our kids [REDACTED], and when you know the setting, you can go behind the scene, or you can go behind the audience. So, behind the stage, sorry, or you can go behind the audience. You - she chose to go through.

YOUNG, MR: And did [LC] look anxious or frightened when she walked past (ASB)?

[NJ]: ---No, not at all. Always smiling.

YOUNG, MR: That's the examination-in-chief, your Honour.

1. In cross-examination, ASB gave the following evidence regarding the school assembly event:[66]

[LC]: Okay. So you mentioned that you can picture the event and the layout of the space. So were you - so was [ASB] and [LT] within 10 metres of the entry from the office way and from the sports under covered area way?---Within 10 metres of those places?

[ASB]: Yes?---We were - where the undercover area was, we were standing outside of that. So closer to the sports facilities, but not that far because it started raining and everybody was like trying to cram in under the shelter.

[LC]: So would that be 10 metres from that entrance?---From the sports?

[ASB]: Yes?---More than 10 metres, yes.

[LC]: - - - the entrance into - assuming that I didn't want to stand all the way at the shed and not see anything, and I would have to enter into the space - - -?---So that little step down.

[ASB]: - - - from the entry into that space was [ASB] within 10 metres of that entry?---10 metres? Yes, he was probably within that space, yes.

[LC]: And if I entered from the office side, would he have been within 10 metres if I had entered from that side?---

[ASB]: You walked past us. So if - sorry, if we are standing here and there's a group of people in front of us and the kids are sitting down there, you're walking through that walkway that we normally have between the kids and the parents.

[LC]: I put it to you there was no walkway because everyone had shuffled forward because of the rain?---

[ASB]: That's incorrect. There was plenty of space from between the kids and the parents because there's always enough space so that people can walk through there in case of they need to go toilet or anything. They had put the line up - the little rope line, and people were going under there to go toilet because of there was too cramped in the back. So there was plenty of space in front of us.

[LC]: Yes. So I would have to go underneath the rope to get to the other side?

[ASB]: No you are a [REDACTED] there, and you do more or less what you like.

[LC]: I put it to you, I wasn't a [REDACTED] at that - that year, I wasn't?---

[ASB]: No, what - you were in good - you were in good company with them, and were you not [REDACTED] last year?

[ASB]: But you had been a [REDACTED] there at that point? ... you're in good books with them, aren't you?

[LC]: So I put it to you that it was roped off to go in front of the crowd, and if I had entered from the office side and done that would I have been within 10 metres of [ASB]?

[ASB]: ---Yes.

[LC]: Okay. So from the office side, I would have been 10 metres - within 10 metres from the - from the back I was also going to be within 10 metres, is that correct? So from those two entrances?---From those two entrances, yes, but if you had gone behind the stage, you wouldn't have.

[LC]: I put it to you that behind the stage was barricaded because the kids had all of their bags, and that's where the students actually went prior to their performance?

[ASB]: ... Well, that's incorrect statement because I know a few other parents that were walking past this behind the stage. And I was - - - I was going over to the office at one point, there was no rope across the back, but again, they could have put up later. I cannot answer for that, of course.

[LC]: So if I didn't - if I couldn't go behind the stage and I couldn't go from the office and I couldn't go from the under covered area, would that have meant that I have to walk all the way back behind all of the primary classes across the west side of the school to then come in from either the pre-primary or the (indistinct) junior area? Would that be my other access?---

[ASB]: ---Well, if you put it that way, yes, that would probably be the case but again, like I said I have seen you be able to do things otherwise.

[LC]: I put it to you without breaking any rules, for example, with the ropes, was there any reasonable way for me to get to where I was seated without breaching the 10 metres?

[ASB]: ---Well, it's a bit hard for me to say, because I don't know the premises as good as you do, but at the end of the day for me, I didn't put the order in place, you know, and it's a bit hard for me to say whether you should have gone that way or that way, but I know if the school, which they were well aware that you had that order in place, they would be okay with you going behind the stage like the other parents did.

HER HONOUR: Well, that's not something that you can answer because you don't know what's in the school's head or the people's head at the school, and it's not relevant whether you put the order in place. That wasn't the question that was asked. The question that was asked was that, without breaking any of the rules with the rope, was there a reasonable way for her to get to where she was seated without breaching that 10 metre rule? That was the question?

[ASB]: Well, your Honour, it's a little bit hard for me to say because, like I said, I'm standing right - I have two chairs for [REDACTED] and me, and from where we were, we ended up having to stand up. So how much space there is behind us, there is more space behind us than in front of us to go to the destination, A to B.

1. On my review of the transcript of the learned magistrate's reasons for decision delivered 22 July 2025, the learned magistrate's reasoning sets out clearly why she did not find NJ to be a credible witness having had regard to her evidence, such that her Honour discounted NJ's evidence in its entirety. Relevantly, the learned magistrate found that:[67]

HER HONOUR: ... The way in which she gave her evidence, and her propensity to add as much by way of negative comments about the applicant [LC] when the question put to her did not warrant those answers, has led me to the view that she was not a credible witness because she was clearly heavily partisan to the respondent [ASB], taking every chance to blacken the applicant's [LC's] name if she could...I discount her evidence in its entirety, as well-meaning as she might have considered she was being. I find that she wasn't a credible witness.

1. As to ASB's evidence, the learned magistrate's reasons disclosed the process that led to her finding, having had regard to all of the evidence, why her Honour concluded that she did not accept evidence about the school assembly incident:[68]

HER HONOUR: This is particularly so as it was established in cross-examination he stood near the exit at a school assembly, causing the applicant to have to move past him within that distance. So I don't accept his denials in that regard.

1. There is nothing on my review of the evidence that would suggest that the learned magistrate's factual findings are 'glaringly improbable' or 'contrary to compelling inferences'. In all of the circumstances, and having conducted a real review of the evidence given at first instance and of the primary decision-maker's reasons for decision, which I have read as a whole and considered in the context of the evidence, I am of the view that there is no appealable error in respect of Ground 1(b).
2. Ground 1(b) of the grounds of appeal has not been established.

Ground 1(c) - Failure to refer to the statutory definition of family violence or the relevant principle (ie objective standard)

1. ASB refers to s 5A of the ROA and relies on the 'well stated principle that the test as to whether behaviour is coercive, controlling or which causes a person to be fearful is judged by an objective standard'.[69] ASB submits that in the present case, the learned magistrate simply found that ASB 'committed family violence as defined in the Act' but did not say whether the conduct 'coerced or controlled' LC or 'caused her to be fearful' or both. Nor did the learned magistrate refer to any of the examples of the behaviour that may constitute family violence as set out in s 5A(2) of the ROA. ASB submits that it is therefore not possible to discern from the reasons whether the learned magistrate fell into error by relying upon 'merely' LC's perception of ASB's behaviour as amounting to coercive control or made any other error of law in applying the statutory definition.
2. LC submits that the learned magistrate provided her with a copy of s 5A, s 10D and s 10F of the ROA and explained the provisions to her. LC submits that contrary to ASB's assertions, the learned magistrate considered s 10D of the ROA.
3. Further, that the learned magistrate was satisfied that ASB had committed family violence having had regard to the evidence, including the evidence of LC and that of ASB in cross-examination.

1. On a review of the transcripts of the hearing, it is clear that the learned magistrate made it clear at the outset that she was aware of the statutory definition of family violence and the behaviours that may constitute family violence, including statutory examples. By way of example:[70]

HER HONOUR: I'm well aware of section 10. So I know I need to comply with section 10, but the definition of family violence is very broad, and a low hurdle, isn't it?

HER HONOUR: Can I just say, [LC], you're getting away from the subject a bit. What you need to be establishing is that you have - that there has been family violence of some sort, that there's a concern that there may be continuing family violence - - -

[LC]: Yes.

HER HONOUR: - - - or you've got a genuine apprehension that there's going to be family violence. They're the things you need to be establishing.

HER HONOUR: As I said to you, you need to be proving that there's family violence. Family violence is defined in a number of ways.

[LC]: Yes. Okay. Sorry.

HER HONOUR: And that's what you need to be speaking to.

[LC]: Yes. Apologies.

HER HONOUR: So belittling, for example, is family violence. Yelling is, for example, family violence. Preventing people from doing things is family violence.

[LC]: Okay. I put it - - -

HER HONOUR: Assaulting and those sorts of things are family violence.

HER HONOUR: No. All right. So what I'm going to do is give you - if I can undo this. Just bear with me. So Section 5A defines what family violence is, and it gives some examples, and it's highlighted; I've tagged it. So you really need to direct the evidence that you've spoken about what you rely on to that to firstly get over the hurdle that family violence has been committed. I think it goes without saying that you're in a family relationship, so you don't need to worry about that. Okay.

Then s 10D, which I will tag as well. That's highlighted. It speaks about - its two limbs. So the first half is that the respondent, that would be [ASB], has committed family violence against you, and is likely to do that again. That's one argument. Or you would be saying you've got reasonable grounds to apprehend that he will do that. Okay. And then it has a subsection (2), which is highlighted again.

And then 10F, which I will tag as well, talks about the extra things the court can take into account. Now, don't expect you to go through these slavishly, but I'm just giving it to you as a bit of a guide.

...

HER HONOUR: ... So what you need to do is to tell me - just summing up what you have asked questions about. What you just need to do is tell me, firstly, what things under section 5A you say [ASB]'s done to commit family violence. So just have a quick read of those things under 5A.

HER HONOUR: All right. So moving on to 10D, so which part - are you concerned that this behaviour might continue if the order was not granted?

1. In finding on the balance of probabilities that ASB had committed family violence as defined in the ROA, the learned magistrate said:[75]

HER HONOUR: It follows that I am satisfied on the balance of probabilities that (a) the respondent [ASB] committed family violence as defined in the Act, and I find that in the - in those circumstances and given his behaviour in cross-examination, he is likely to commit family violence in that manner against the applicant in the future.

(b) the applicant [LC] reasonably apprehends that the respondent [ASB] will commit family violence in the context I have found in these reasons. I therefore must make the family violence orders unless there are special circumstances making it inappropriate. And in making the order, I've taken into consideration those matters which are relevant under section 10F of the Act.

1. As noted above, the test as to whether behaviour is coercive, controlling or which causes a person to be fearful, is judged by an objective standard.[76] An applicant for a FVRO 'does not have to prove that they were coerced, controlled or were fearful but the subjective effect on the applicant can be relevant to whether the court should make an FVRO in all of the circumstances'.[77]
2. Pursuant to the ROA, the court, if it finds that there has been family violence and it is likely to occur again or that there are reasonable grounds to consider that family violence might occur in the future, must make a FVRO unless there are special circumstances.
3. The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved; that is particularly so when criminal conduct is alleged.[78]
4. In this case, on my review of the evidence and materials before this court and the Decision, in finding on the balance of probabilities that ASB had committed family violence as defined in the ROA, it was open to the learned magistrate to conclude that there has been family violence as defined in the ROA; that ASB is likely to commit family violence in that manner against LC in the future; and that LC reasonably apprehends that ASB will commit family violence. Further, the learned magistrate makes it clear at the outset that she was aware of the statutory definition of family violence and the behaviours that may constitute family violence, including the statutory examples.
5. As to the adequacy of the learned magistrate's reasons for decision in respect of reaching that view, I find that the learned magistrate's reasons disclosed the intellectual process that led to her decision in sufficient detail, and with sufficient certainty, to enable ASB to know why her Honour reached her findings.
6. In all of the circumstances, I am of the view that ASB has not demonstrated that these findings are wrong by 'incontrovertible facts' or uncontested testimony or that they are 'glaringly improbable' or that they are contrary to compelling inferences.
7. Ground 1(c) of the grounds of appeal has not been established.

Ground 1(d) - Failure to identify the accepted facts or apply the definition of family violence in reaching a finding

1. ASB submits that the learned magistrate's findings commenced with the observation that the relationship between the parties was 'clearly acrimonious' and goes onto summarise her Honour's findings on the credibility of each witness. ASB says that with respect to finding LC to be a 'reliable and honest witness' the learned magistrate limited her findings to matters which ASB was said to have admitted in cross-examination. ASB submits that the learned magistrate did not identify from which of her Honour's various findings about the matters the subject of Grounds 1(a) to (c), it followed that ASB had 'committed family violence as defined in the Act'. That is, that on ASB's submission, it cannot be determined whether the family violence involved:
   1. yelling at, belittling or undermining LC during the relationship;
   2. intentionally breaching the CAO after separation by approaching within 10 metres at handover, or requiring LC to approach within 10 metres at a school assembly;
   3. denigrating and belittling LC during cross-examination; or
   4. a pattern of behaviour comprising all of the above.
2. ASB relies on Pickford & Pickford[79] and submits that the learned magistrate fell into error by relying upon 'merely' LC's perception of ASB's behaviour as amounting to coercive control or made any other error of law in applying the statutory definition. That is, that the learned magistrate failed to identify the behaviour about which complaint is made; identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator; identify the impact of the behaviour on the alleged victim (mere assertion by the alleged victim that they feel coerced or controlled is insufficient); make all relevant factual findings; and explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.
3. Whilst acknowledging the 'realities of the pressure of work' and the limited time in the Magistrates Court, ASB submits that some caution is required in applying guidance on the fact-finding process to be applied in family law proceedings to FVRO applications. ASB submits that an assessment of whether 'a pattern of disagreements and criticism' forms controlling or coercive behaviour requires 'consideration of [its] form, intensity, context and impact upon a person'. That is particularly so if the manner in which one party conducts litigation, such as by answering questions in cross-examination is relied on as part of the pattern of behaviour'.[80]
4. ASB submits that the magistrate's reasons did not reflect the fact-finding process commenced in Pickford & Pickford such that it is unclear whether the family violence which the learned magistrate found comprised of one or more specific events or a pattern of behaviour. Further, that the learned magistrate did not explain why the behaviour in question should be characterised as family violence rather than 'parental conflict'.[81] The reasons do not permit the court to determine whether the definition of family violence has been applied correctly.
5. LC points to the witness testimony of ASB and her Honour's findings in this regard as to credibility. In this context, LC refers to SKS v AJS[82] where the court held that a court of appeal should not interfere with a judge's findings of fact, unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony, or they are 'glaringly improbable' or 'contrary to compelling inferences'.

1. In providing her reasons, the learned magistrate set out the fact-finding process undertaken in respect of the evidence heard:[83]

HER HONOUR: Evidence for the applicant [LC]. In addition to the adoption of the statements of intended evidence sworn by [LC], [LC's mother], [PJW], I heard the following witnesses. [LC], who's the applicant, [LC's mother] and [PJW]. And the applicant [LC] tended a number of exhibits, so I won't step through what they were. Evidence for the respondent [ASB]. In addition to the adoption of the statements of intended evidence sworn by [ASB] and [NJ], I heard from the following witnesses, [ASB], who's the respondent, and [NJ]. The respondent [ASB] tendered a number of exhibits. I don't intend to go through those.

1. In referring to the evidence heard about ASB's conduct, the learned magistrate observed:[84]

HER HONOUR: I have heard evidence about the respondent's [ASB's] alleged ill-treatment of the children of the relationship, but the application is to extend the conduct agreement order that did not include the children. Further, the Family Court of Western Australia has made extensive interim orders insofar as the arrangements for the children are concerned, and those orders override the existing conduct agreement order insofar as they are inconsistent. And they were the orders before Magistrate Stewart made on 5 December 2024.

1. In referring to the evidence heard about the communication engaged in by ASB with the application, the learned magistrate observed:[85]

HER HONOUR: I have also heard evidence about the communication engaged in by the respondent [ASB] with the applicant [LC], and I have chosen not to make any findings in that respect in light of the imminent Family Court proceedings. The matter is proceeding to a trial in the Family Court and is listed for a readiness hearing in the Family Court in Bunbury on 26 September 202[5], and that's referred to in the orders of Magistrate Stewart made on 5 December '24 at paragraph 19.

1. The learned magistrate provided the following summary observations of LC's case:[86]

HER HONOUR: Of relevance to this application, the applicant [LC] claims that throughout her relationship - and I'm speaking about the applicant's [LC's] case at the moment - the respondent [ASB] frequently yelled at her, tracked her whereabouts with the 360 application, undermined her parenting, belittled her work [REDACTED] and generally and more recently, stepped outside the communication allowed under the Family Court orders and breached the 10 metre distance rule in the conduct agreement order on numerous occasions.

She also claims that the respondent [ASB] shared her personal information with another party. Many other allegations were advanced about various incidents which I don't propose to address, nor do I feel the need to address in the context of this matter, and particularly given the Family Court proceedings are being moved to a trial and separate representatives have been appointed for the children of the relationship. I therefore do not propose to repeat those allegations, nor to make any findings in relation to them.

1. In relation to ASB's case, the learned magistrate provided the following summary observations:[87]

HER HONOUR: The respondent's [ASB's] case. The respondent [ASB] denies having belittled the applicant [LC]. He denies having criticised her work [REDACTED] and, more recently, he denies having stepped outside the communication allowed under the Family Court orders. He admitted in cross-examination that he did track the applicant's [LC's] whereabouts with a 360 app outside the parameters of what was agreed between them when the applicant - application was put on the applicant's [LC's] phone.

He also admitted to yelling at the applicant [LC], having shared her private details with his sister [LT], and having gone closer than 10 metres to the applicant [LC] contrary to the provisions of the conduct agreement order. Insofar as sharing the applicant's [LC's] details, he claimed he thought he could do this as she was his - as his sister was his support person. Insofar as the 360 application, he claimed that he did this because he was concerned about the applicant [LC] after she had an accident in the family car.

But he did agree that he did track her outside these parameters of their agreement when she visited a man in the street. Insofar as yelling, he claimed that this was part of a mechanism he and the applicant [LC] had been told to engage in by a counsellor. Insofar as advancing within 10 metres contrary to the conduct agreement order, he claimed it was necessary for the protection of the children at handover. Many other allegations were advanced about various incidents which I don't propose to address, nor do I feel the need to address, in the context of this matter.

1. In making her findings where there is conflicting evidence, the learned magistrate set out her reasoning process as to why she preferred the witness evidence of one witness over that of the other:[88]

HER HONOUR: The evidence of [NJ]. She gave evidence for the respondent [ASB]. The way in which she gave her evidence, and her propensity to add as much by way of negative comments about the applicant [LC] when the question put to her did not warrant those answers, has led me to the view that she was not a credible witness because she was clearly heavily partisan to the respondent [ASB], taking every chance to blacken the applicant's [LC's] name if she could.

She claimed she was shocked that the restraining order was granted because from what she had observed the respondent [ASB] is a good father and a good man. She was not present, however, in the home of the applicant [LC] and respondent [ASB] in the early days. Nor was she present at all times after the parties separated. Further, at the time - the time she spent with the respondent [ASB] and his children after the parties separated was spent doing, in her words, fun things.

In those circumstances, it's not surprising that all of the participants appeared to be happy and having a good time. I discount her evidence in its entirety, as well-meaning as she might have considered she was being. I find that she wasn't a credible witness.

[PJW] gave evidence for the applicant [LC]. She agreed she was a friend or acquaintance of the applicant [LC], but said in recent years since the family had moved to Perth she had not seen much of the applicant [LC] but, rather, had contact by phone and text message.

She spoke about how she and the community members had in the past expressed concern about the applicant [LC], and how they had started a group to provide her with financial support after the applicant [LC] and respondent [ASB] separated. She said the community wanted the applicant [ASB] to know that she had their support. She also spoke about neighbours of the applicant [LC] and others that had expressed concerns about the applicant [LC] when she was still with the respondent [ASB], as the respondent [ASB] had been seen and heard yelling at the applicant [LC].

It was suggested to her that the applicant [LC] had assisted her in preparation of her statement. She agreed that the applicant [LC] had given her the form, but she maintained that the evidence contained therein was her own account. She also gave evidence on oath. [PJW] gave evidence, in my view, in a measured manner and did not embellish her answers. I find her to be an honest and reliable witness, and I accept her evidence insofar as it relates to others having witnessed the respondent [ASB] yelling at the applicant [LC].

HER HONOUR: [REDACTED] [LC's mother]. She gave evidence on behalf of the applicant [LC]. It was suggested to her that the applicant [LC] had prepared her statement, for which she - which she denied. She claimed she had drafted the statement at work, but could no longer access her work computer. Defence asked that she produce the email she claimed she sent to her home computer with the draft.

She wasn't able to produce that email but, in giving evidence on oath, she denied that the applicant [LC] had drafted her statement. She is the mother of the applicant [LC] and, to that extent, I understand the way she was cross-examined by defence to suggest that she was biased. Insofar as she spoke to the respondent [ASB] infringing the 10 metre distance, I accept her evidence which she gave on oath in this court and being a reliable and honest account, primarily because the respondent [ASB] himself admitted to infringing that distance on occasions.

She did not outline many breaches of that distance as the applicant [LC] did in her affidavit and alluded to in giving evidence, which would suggest that her recollection of two, maybe three times, to be her own account rather than reiterating what the applicant [LC] said in her statement of intended evidence. Which would add support to her having written the statement herself, rather than the applicant [LC] having written it for her. The question of whether she could produce the email previously referred to is, in my view, therefore irrelevant.

I am therefore satisfied that the applicant [LC] did not feed that information to [REDACTED] [LC's mother] as was suggested. [REDACTED] [LC's mother] witnessed the respondent [ASB] behaviour at changeover, which accords with the respondent's [ASB's] admission in cross-examination to going within the 10 metre distance.

1. The learned magistrate similarly set out her reasoning process as to why she found LC to be a credible witness:[90]

HER HONOUR: The applicant's [LC's] evidence. The applicant [LC] gave evidence. She maintained in her evidence that the accused had on a number of occasions breached the 10 metre rule in the conduct agreement order. Amongst other things, she reiterated that her private documents had been distributed to others, that the respondent had tracked her using the 360 app outside the parameters of their agreement, and she maintained that the respondent had been coercive towards her in their relationship.

I am satisfied she was a reliable and honest witness in the event the applicant [LC] was in cross-examination. In any event, the (respondent?) in cross-examination admitted that he had tracked her with the 360 app outside the agreement between them, that it would be used to ensure she was getting home safely when driving. He admitted to yelling at her, but claimed this was on counsellor's instructions. He admitted to going within the 10 metre distance, but claimed this was for the children's protection at handover.

And he admitted to sharing personal information with his sister, but claimed he had been told he could do this by his lawyer as his sister was his support person.

1. As to ASB's evidence, the learned magistrate set out her reasoning process as to why, in considering ASB's evidence, she did not find him to be a credible witness:[91]

HER HONOUR: It is true that in giving evidence the respondent - and I'm speaking about his evidence now - was very measured and very calm. However, I find that he was evasive. He often corrected himself within the space of a few questions to reverse what he had admitted to.

Further, he took every opportunity when being cross-examined to denigrate and belittle the applicant in circumstances where the question put to him would not ordinarily have elicited that response. In summary, I find in the course of cross-examination the respondent engaged in behaviour, or a pattern of behaviour, that echoed what the applicant claimed he had done throughout their relationship and after the conduct agreement order was put in place. He was patronising and sought to belittle the applicant.

He effectively made out the applicant's case for her that throughout their relationship he had sought to belittle her and undermine her, which in turn caused her to be fearful. I find that the respondent took a cavalier approach to the truth. I find that he was not a credible witness. In cross-examination, he admitted to yelling at the applicant but claimed this was an instruction from a counsellor to relieve tensions in the house. I don't accept this evidence in this regard. He admitted to tracking the applicant outside their agreement because he thought he could do this.

I don't accept his evidence in this regard. He admitted to sharing the applicant's personal details, not to Child Support but to his sister, claiming that she was his support and his lawyer told him he could do this. I don't accept that evidence in this regard. He admitted to going within the 10 metre, claiming he had to as it was for the safety of the children. I don't accept that evidence. I find he was effectively chipping away at this condition with repeated excuses such as parking near, handing over property for the children or keeping them safe.

This is particularly so as it was established in cross-examination he stood near the exit at a school assembly, causing the applicant to have to move past him within that distance. So I don't accept his denials in that regard.

1. That the learned magistrate took into account the demeanour of witnesses giving evidence is clear:[92]

HER HONOUR: Any demeanour of a person in court in these proceedings I can take into account. So if it's bad behaviour, I certainly - if I - I can take that into account as to whether that might add to the fact I think there may be a person that may break the order or otherwise.

1. In all of the circumstances, I am of the view that the learned magistrate clearly identified the facts which she had accepted in reaching her findings and set out in detail her reasons for decision in respect of reaching her views. It is also clear from a review of the evidence and materials and the transcript of hearings that the learned magistrate was aware of the statutory definition of family violence and the behaviours that may constitute family violence, including the statutory examples.
2. Ground 1(d) of the grounds of appeal has not been established.

Ground 1(e) - Failure to identify the conduct constituting family violence in finding the appellant was likely or reasonably apprehended to commit in the future

1. ASB submits that the learned magistrate's findings did not identify the risk which her Honour was satisfied existed in the future. That is, even if the past dysfunction in the parties' relationship was found to constitute family violence, the parties are now separated and engaged in the Family Court process, so there could be no reasonable grounds for apprehending that conduct, such as yelling when the parties cohabited some three years earlier would be repeated. ASB submits that in closing that her Honour did not refer to that submission, or explain why findings about what had occurred in the past justified a conclusion about the likelihood of family violence in the future.[93]
2. ASB submits that the basis for the learned magistrate's finding that ASB was likely to commit family violence in the future was not apparent such that this court cannot assess whether the finding that future behaviour was likely was reasonable, whether the finding that LC apprehended such behaviour was supported by the evidence, or whether any such apprehension was reasonable. Nor can it determine whether an error of law was made in characterising the anticipated behaviour as family violence. The reasons were therefore inadequate.
3. LC submits that the learned magistrate having found that ASB had committed family violence, coupled with ASB's behaviour in cross-examination, was satisfied that the behaviour was likely to continue.

1. A review of the transcript points to the exchange between ASB's counsel and LC as to the reasons for the CAO Variation Application:[94]

YOUNG, MR: And why did you make an application to extend the conduct agreement order?

[LC]: ---Because given the fact that he has had the conduct agreement order, and he has still not abiding by boundaries. I still - I worry about what would happen if I didn't have it at all. And without final orders that are much more comprehensive that do include things like who attends the children's appointments and a distance of - of keeping it, you know, keeping a distance and more comprehensive orders around how decisions are made so we're not having to do back and forth arguing and things like that. Without those things, I feel like things would escalate beyond what they were before.

YOUNG, MR: When you say things would escalate, you're concerned that [ASB] would commit family violence against you?

[LC]: ---Correct.

YOUNG, MR: And what is the nature of that concern? What are you concerned that he might do?

[LC]: ---I really worry when he gets his guns back. It only takes a second to take a shot.

YOUNG, MR: So your concern in applying for the extension of the conduct agreement order is that [ASB] might use physical violence against you?

[LC]: ---Correct. Amongst other concerns.

YOUNG, MR: And you describe that as an escalation because it's not something that's ever happened in the past, is that right?

[LC]: ---It's not happened towards me in the past. It's happened towards animals.

YOUNG, MR: Right. Are you referring to a particular incident that's described in your witness statement there?

[LC]: ---Yes.

...

YOUNG, MR: Now paragraph 47 is the incident where [ASB] killed a chicken that had become quite sick, is that right?

[LC]: ---Correct.

YOUNG, MR: And that was something that was done on the advice of a vet, wasn't it?

[LC]: ---No. You don't seek a vet for a chicken.

YOUNG, MR: Living in a rural area with animals on your property, it wasn't uncommon to encounter a vet on the street, is that what you're suggesting?

[LC]: ---Well, I mean, she lives in town. She would go in town eventually. I didn't personally speak to her, not discounting that [ASB] didn't see her down at IGA and said, "Hey, what do we do with this chicken?" But I'm sure that the vet would not say, wring its neck in front of your seven-year-old daughter and make her watch.

YOUNG, MR: And so it's on the basis of the incident involving the chicken, or at least that's one of the things that makes you concerned that in the future, if a conduct agreement order is - or if a family violence restraining order is not made, [ASB] might use physical violence against you?

[LC]: ---One of my reasons.

YOUNG, MR: And that physical violence might extend to using a firearm?

[LC]: ---Correct.

YOUNG, MR: Would you still have that concern if it was the case that regardless of whether a family violence restraining order is made, [ASB] would not be able to obtain a firearms licence?

[LC]: ---It would help, but I still don't think it's going to solve the problem of the coercion and the control through the emails that I feel I am affected by.

YOUNG, MR: So your reason for seeking the family violence restraining order is both an apprehension that [ASB] might use physical violence against you in the future up to and including firearms. And it's also an apprehension that he might engage in coercive control, and by coercive control you mean continuing to send the kind of emails that have been annexed to your statement?

[LC]: ---As well as instituting his version of things at children's medical appointments, and feeding into things like the school, and controlling the goals and the outcomes for the kids through that without including me.

1. In addition, ASB's own evidence is that he had a 'dark past' which had ended prior to him meeting LC.[95] As to ASB's evidence as to why he disclosed this to LC:[96]

YOUNG, MR: Why was the dark past something that you felt you had to tell [LC] about?

[ASB]: ---I was still doing things that weren't making sense to her. Cutting out Facebook, cutting out photos. Like - when I say cutting out, 'Don't do, don't post, please don't take photos. I'm happy to sit off to the side and take the photo, I don't want to be in them.'

YOUNG, MR: And why didn't you want to be in photos or on Facebook?---I didn't want to be recognised. Why didn't you want to be recognised?

[ASB]: ---A lot of effort went into cutting out. A lot of people tried to pull me back. A lot of effort. Didn't want to go to waste.

YOUNG, MR: That's the examination-in-chief, your Honour.

YOUNG, MR: If we could recall [ASB], I would like to take the opportunity to ask two more questions, your Honour.

YOUNG, MR: [ASB] you gave some evidence about the conversation with [LC] about your dark past; you recall that evidence?

[ASB]: ---Yes.

YOUNG, MR: Do you recall what was [LC's] reaction when you had that conversation with her?

[ASB]: ---Over the conversations I do remember, she was excited, turned on by it to the point where I backed off.

1. As to the evidence the learned magistrate had regard to from ASB's evidence in cross-examination, this included ASB's admission that:[98]
   1. He did track LC's whereabouts with a 360 app outside the parameters of what was agreed between them when application was put on LC's phone;
   2. He yelled at LC, having shared her private details with his sister and having gone closer than 10 metres to LC contrary to the provisions of the CAO;
   3. He did track LC outside the parameters of their agreement when she visited a man in the street.
2. ASB submits that the learned magistrate failed to identify the conduct constituting family violence that ASB was likely to, or LC reasonably apprehended ASB to commit in the future. As summarised above, on my review of the materials, the learned magistrate, having had the benefit of hearing and considering the evidence (including ASB's demeanour) identified the conduct in issue in relation to this ground of appeal.
3. It follows that in all the circumstances, and having had regard to the matters set out above, I am of the view that ground 1(e) of the grounds of appeal has not been established.

Disposition - Ground 1 (including Grounds 1(a) to (e))

1. The matter proceeded to a half-day hearing on 17 June 2025 (part-heard) and thereafter a full day hearing on 8 July 2025,[99] following which the application was adjourned for a reserved decision on 22 July 2025.
2. In the present appeal, the basis of the learned magistrate's decision is clear from her Honour's reasons, and in my view sufficient for the parties to understand the basis of the decision. Notwithstanding the concerns raised as to the adequacy of the reasons (which I do not accept for the reasons stated), ASB was able to articulate his grounds of appeal in relation to the decision under appeal. These reasons are more than sufficient to form, sitting as the appellate court, to determine whether any errors of law or fact were made.
3. On my review of the transcript of the hearing on 22 July 2025, a summary of which I have set out above, I am of the view that in delivering her Decision, the learned magistrate exposed the process by which her decision had been reached. It is clear that her Honour set out the basis for the Decision in a manner which enables the 'losing party' (here ASB) to determine whether or not they have any grounds on which to appeal the decision.
4. Even if I were of the view that the learned magistrate's reasons were inadequate, it would not automatically follow that the Decision would be set aside. Rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice.[100] For the reasons set out above, even if I were of the view that Magistrate Andretich's reasons were inadequate in some regard, I do not consider that there was any miscarriage of justice in the Decision.
5. Ground 1 of the grounds of appeal, including Grounds 1(a) to (e), has not been established in its entirety.

Ground 2 - Findings that the appellant was likely to commit family violence in the future unreasonable

1. Ground 2 of ASB's submissions repeat much of aspects of matters raised in respect of Ground 1. That is, ASB submits that in any event, the evidence was not capable of supporting a finding that ASB was likely to commit family violence in the future, or that LC had reasonable grounds to apprehend that he would do so.
2. The submission centres on the parties' separation, end of relationship and cohabitation and the lack of any allegation of physical violence. ASB submits that LC's conduct in obtaining the Interim FVRO, assuming responsibility for the care of the children and initiating and prosecuting proceedings in both the Magistrates Court and Family Court demonstrated that 'she was capable of acting independently and pursing her own interests'. There is much by way of further submission in this vein.
3. There is little that is meaningfully advanced by ASB in support of this ground of appeal. In many respects, it is merely an assertion that the findings of the learned magistrate that ASB would commit family violence in the future (or that LC had grounds to apprehend that he would) were unreasonable. There does not appear to be any reconciliation with this assertion to the facts and evidence which have been set out in some detail above or to s 10D of the ROA.
4. That it was open to the learned magistrate to reach her findings is evident from a review of the materials and evidence before this court. This includes the learned magistrate's findings that ASB was likely to commit family violence in the future and that that LC had reasonable grounds to apprehend that ASB would do so.
5. Ground 2 of the grounds of appeal has not been established.

1. It follows from what I have found above that I have considered each of the appellant's grounds of appeal and find none of them made out. For the reasons which I have set out above, the appeal should be dismissed.
2. For the reasons above, I would make the following orders:
   1. The appeal is dismissed.
   2. I will hear from the parties on the question of costs of the appeal.

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

[1] Magistrates Court Bunbury MC/CIV/PER/RO/4951/2023 lower court file (MB), pages 5 - 6.

[16] MB 136 - MB 143. See also Annexure 'JT-2' to Statement of Evidence of the respondent dated 21 April 2025; MB 71 - MB 80 inclusive.

[25] Magistrates Court Bunbury (MC ts) page 2 (17 June 2025).

[28] MC ts 8 - MC ts 9 (22 July 2025); MB 374, MB 375.

[30] MCCPA s 40(3).

[31] ROA s 64(1)(b)(iii).

[32] MCCPA s 40(4)(a).

[33] MCCPA s 40(4)(b), s 40(5).

[34] District Court Rules 2005 (WA) (DCR) r 50(1).

[35] Smart v Power [2019] WASCA 106 [100] (judgment of the court) (Smart).

[36] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] - [14] (Gleeson CJ, Gaudron & Hayne JJ) (Coal and Allied); 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).

[37] Coal and Allied [14]; Allesch [23] (Gaudron, McHugh, Gummow & Hayne JJ); Saunders v The Public Trustee [84] (Mitchell J, with whom Buss JA & Beech J agreed).

[38] 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).

[39] Robinson Helicopter Company Incorporated 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].

[42] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551.

[44] Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993 [55].

[45] Smart [102] - [105] (references omitted). The passage from Fox v Percy [2003] HCA 22 was at [23]. The reference to the New South Wales Court of Appeal was to Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 [116] - [118] (judgment of the court).

[46] McKessar v John Durham Pascoe as Trustee for Samson Street Superannuation Fund [2020] WASCA 106 [76] (judgment of the court) (reference omitted).

[47] Smart [100]; Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).

[49] Chester v WA Country Health Service [2022] WASCA 57 [145] (judgment of the court) (Chester).

[51] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112] (judgment of the court) (references omitted). See also Browne v Browne [2019] WASCA 1 [80] (judgment of the court).

[52] Breaksea Fishing Company Pty Ltd v Pretar Pty Ltd [2023] WADC 106 [538].

[53] Manonai v Burns [2011] WASCA 165 [53], [56] (Hall J with whom Pullin & Murphy JJA agreed).

[54] Strahan v Brennan [2014] WASC 190 [90] - [92] (Martin CJ) (references omitted). Applied in Lacco v Director of Public Prosecutions (WA) [2022] WASC 168 [71] (Mitchell J).

[55] Chester [19], see also [145].

[56] Manonai v Burns [53] - [56].

[57] Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525.

[61] MC ts 4 - MC ts 5 (22 July 2025); MB 370 - MB 371.

[62] MC ts 5 - MC ts 6 (22 July 2025); MB 371 - MB 372.

[65] MC ts 80 - MC ts 81 (8 July 2025); MB 330 - MB 331.

[66] MC ts 81 - MC ts 85 (8 July 2025); MB 331 - MB 335.

[67] MC ts 5 - MC ts 6 (22 July 2025); MB 371 - MB 372.

[68] MC ts 7 - MC ts 8 (22 July 2025); MB 373 - MB 374.

[69] SKS v AJS [2023] WADC 150 [109] citing Baron v Walsh [2014] WASCA 124 [20] and Pronk v Verhagen [2019] WADC 70 [41] (Pronk).

[71] MC ts 29 - MC ts 30 (8 July 2025); MB 279 - MB 280.

[72] MC ts 67, MC ts 68 (8 July 2025); MB 317 - MB 318.

[73] MC ts 90, MC ts 91 (8 July 2025); MB 340 - MB 341.

[75] MC ts 8 - MC ts 9 (22 July 2025); MB 374 - MB 375.

[78] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 170 - 171 (Mason CJ, Brennan, Deane & Gaudron JJ); Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J).

[79] Pickford & Pickford [2024] FedCFamC1A 249.

[80] Pickford & Pickford [129].

[87] MC ts 4 - MC ts 5 (22 July 2025); MB 370 - MB 371.

[88] MC ts 5 - MC ts 6 (22 July 2025); MB 371 - MB 372.

[89] MC ts 6 - MC ts 7 (22 July 2025); MB 372 - MB 373.

[90] MC ts 5 - MC ts 6 (22 July 2025); MB 371 - MB 372.

[91] MC ts 7 - MC ts 8 (22 July 2025); MB 373 - MB 374.

[93] Myles v Carroll [2003] WASCA 160 [38], cited in Pronk [32].

[94] MC ts 28 - MC ts 29 (17 June 2025).

[96] MC ts 14 - MC ts 15 (8 July 2025); MB 263 - MB 264.

[98] MC ts 4 - MC ts 5 (22 July 2025); MB 370 - MB 371.

[100] Bennett v Carruthers [2010] WASCA 131 [39] (Mazza J, with whom McLure P & Newnes JA agreed).