1. Section 10D(2) provides that the magistrate must make the order if he or she is satisfied that a respondent has committed family violence against the person seeking to be protected and is likely to do so again in the future, unless there are 'special circumstances' that would make the order inappropriate.
2. Section 10D(3) provides that 'special circumstances' do not exist simply because the applicant can apply, or has applied, for a particular family order.
3. Relevantly, s 10D formed part of a suite of amendments to the RO Act introduced by the Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 (2016 Bill). There has not yet been judicial consideration given in WA as to what might constitute 'special circumstances' for the purpose of s 10D.
4. The Explanatory Memorandum to the 2016 Bill (EM) notes that, while s 10D(1) largely replicated the former s 11A, there are some important differences. The previous s 11A referred to a requirement that in the exercise of discretion, the court must be satisfied that making a restraining order was 'appropriate in the circumstances'. That requirement was not retained by s 10D. Instead, the nature of the court's discretion is now dealt with separately, and in a modified manner, in s 10D(2).
5. The court's discretion is narrower in s 10D. By s 10D(2) if the court is satisfied of the matters in s 10D(1)(a), then it must (not may) make the order unless there are 'special circumstances' that would render it inappropriate. The EM notes that for the purposes of s 10D(2):

In considering whether 'special circumstances' exist, the court will be required to have regard to the principles set out in s 10B. Special circumstances may be said to exist where the making of an order would create a clear inconsistency with the principles; for example, where the person seeking protection is not the person in the relationship most in need of protection or is a perpetrator of family violence who is attempting to use the RO Act as a means of further controlling the respondent.

1. The Second Reading speech notes that 'special circumstances' that would make an order inappropriate are intended to include:

... a situation in which the primary aggressor in a relationship is seeking an order against the victim. This is consistent with the proposed new principles of the [RO] Act, including the principle of the need to recognise that perpetrators of family violence might seek to misuse the protections available under this act to further their violence, and the need to prevent that misuse.[37]

Grounds 1 and 2: s 10D(2) and s 10E(2) 'special circumstances'

1. The appellant contends that the learned magistrate erred in finding that 'special circumstances' existed. In written submissions, the appellant asserts that:

(a) the magistrate is 'unable to use the appellant's ability to apply to the Family Court for orders as a special circumstance/consideration';

(b) the alleged evidence as to 'coercive control' and 'psychologist witness statements' are not congruent with non-compliance but are congruent to violence; and

(c) the magistrate engaged in repetitive badgering of her by 'unlawfully and predominantly' referencing during the hearing that she could apply to the Family Court.

1. Grounds 1 and 2 involve the exercise of the magistrate's discretion not to impose an order where he concludes that there are 'special circumstances' that would make it inappropriate. I have therefore combined the consideration and determination of those grounds together. The learned magistrate concluded that the special circumstance that existed was that the appropriate recourse was to go to the Family Court which he said had not happened in years.[38]
2. However, it is clear that the learned magistrate's conclusion in that respect is not based simply on the proposition that the appellant had 'recourse' to the Family Court. Rather, it was reached in the context of:

(a) an extensive and long-standing history between ABC and DBP as a result of which the final Parenting Orders had been made in the Family Court jurisdiction;

(b) when first made, the Parenting Orders had expressly permitted DBP to supervise the calls between CC and the appellant, and/or to terminate the calls after 15 minutes or at any time that he concluded that the appellant's conversation with CC had become inappropriate. Even though the learned magistrate accepted that those provisions had been temporary, he noted that the Family Court had been sufficiently concerned to make such express provision from the outset;[39]

(c) a lengthy amount of time had passed since the Parenting Orders were made and there was no information before the magistrate about what had transpired since. Despite attempts, he did not receive clear information about whether the appellant had made further applications in that court in relation to compliance with the orders and whether there might again be a lawful basis for involvement by DBP in the appellant's communications with CC;

(d) the matters had been extensively ventilated in the Family Court with substantive decisions made as regards access and contact with CC by the appellant and DBP, and now the appellant was in a different jurisdiction which did not have the benefit of the extensive material previously considered;[40]

(e) instead, there had been 'voluminous and very repetitive material provided ... on an ex parte basis ... [which] really ought to be dealt with by a court that seemingly took considerable evidence';[41] and

(f) there may be potentially good reason for DBP now to withhold the telephone.[42]

1. In that regard, the magistrate took steps during the hearing to get an understanding of the context and background surrounding the Parenting Orders, and the circumstances in which it fell upon him to consider the application. The magistrate was clearly concerned about whether he had sufficient information relevant to his consideration by reason of the extensive proceedings in another jurisdiction. For example, his Honour identified that it appeared to him that the Family Court may have already ruled on the issues or bases for the appellant's application and he wished to ensure he had, at the very least, access to the full judgment at least in respect of one of the appellant's applications in that jurisdiction. This was made unnecessarily difficult in circumstances where the appellant would not be forthcoming with the relevant judgment and attempted to produce only an extract of the judgment.[43]
2. While in the end result, the appellant agreed to, and did, produce a full judgment related to those orders, in my view, the magistrate was correct to form concerns about the decision to apply in the Magistrates Court, and whether it may be an attempt to use the FVRO regime to 'get around' the Family Court.
3. The learned magistrate also made legitimate enquiries to understand why it was, if DBP had been non-compliant with the orders over some years, the appellant had not applied to the Family Court. In my view, the answers given by the appellant were non-responsive and not reassuring as to why she had not returned to that jurisdiction and what was her purpose in the Magistrates Court.[44]
4. The learned magistrate was correct to conclude that special circumstances existed that would make an order imposing restraints inappropriate. As contemplated by the EM, special circumstances may be said to exist where the making of an order would create a clear inconsistency with the principles. The example given is where the person seeking protection is not the person in the relationship most in need of protection or is a perpetrator of family violence who is attempting to use the RO Act as a means of further controlling the respondent.
5. I am not suggesting that this case is one where DBP is the person most in need of protection, nor that the appellant is a perpetrator of family violence and who is attempting to use the RO Act as a means of further controlling him. However, the Parenting Orders, as summarised in [6] above, are significant when those orders, for reasons that were not in evidence before the magistrate and where DBP was not a party to this application, gave him sole parental responsibility for CC. Furthermore, at least historically, they had expressly authorised him to supervise calls with the appellant, and to terminate calls after 15 minutes, and otherwise, to terminate calls if he deemed the appellant's conversation inappropriate. Those orders were made in a jurisdiction which had the benefit of much more information and evidence. It appeared that the appellant had come to the Magistrates Court to seek orders, in essence, in a complete vacuum and in bypass of that jurisdiction.
6. Accordingly, I find neither grounds 1 or 2 made out.

1. The seven remaining grounds set out alleged errors by the learned magistrate in either failing to consider and apply relevant provisions of the RO Act (s 10E(2), s 10F), or, failing to consider the evidence adduced and to conclude that there had been 'family violence' within the definition in s 5A of the RO Act.

Ground 3: Failure to 'establish' that the restraints sought could not be made

1. Ground 3 appears to be directed to the form of restraint and the orders sought by the appellant in her application.
2. In written submissions in support of ground 3, the appellant stated:

I accuse the magistrate of forms of psychological battery in the terminology he used being that of terminology of accusations of my ex-husband in referring to a family law case as him having being given voluminous material and of which for this case it wasn't; the material being less than one volume only. I believe hes [sic] attained information on his own and that argument came from a tradie who rarely used technology. Ground 3 seeks to establish that in his diversions to subject matter the Magistrate failed to dispell [sic] by way of any law the ability of what the order had sought to be made.

1. The submissions and contentions made by the appellant here (and generally) were difficult to follow, many portions were illogical and contained unsubstantiated allegations and irrelevant matters. However, as best I can understand, the appellant's contention in ground 3 is, in effect, that the learned magistrate erred by not concluding that an order for restraint in the way sought by the appellant could, in fact, be made.
2. The learned magistrate indeed identified challenges as to the form of restraint/s sought. In that regard, he said:

... if I was to grant a restraining order, it would simply - it would be very difficult to enforce, I would suggest, because it would simply be to restrain him from denying access to a phone to CC in accordance with Family Court orders. But it would have to be something along the lines of, 'unreasonably' and whether that could be properly monitored - I don't know. And ... the difficulty is, I mean, this is - we're in WA. He's [located in another state].[45]

1. At the hearing on the following day, that magistrate also identified challenges with the restraints sought.[46] And she said:

... [the appellant] seeks in this court to interfere with the Family Court orders and try and impose an obligation for [DBP] to hand the phone to [CC]. My view is that this court can't impose such a requirement.

It can restrain [DBP] from acting in certain ways, but it can't force the contact to occur. That really is a matter for the Family Court ...[47]

1. While the challenges identified by both magistrates are real, the learned magistrate did not actually conclude in his reasons that restraints could not ultimately have been made. That is, there is nothing in the transcript to reflect a conclusion that, had he determined that, in the presence of evidence of 'family violence' and no 'special circumstances' that would render an order inappropriate, restraint would not have been available in some form under s 10G.
2. The magistrate merely identified challenges with imposing a form of restraint on DBP in the ways contended for. In my view, the learned magistrate made no error in that respect because, having determined that 'special circumstances' existed that would make an order inappropriate in any event, he exercised a discretion which had the end result of not needing to further explore whether restraints could practically be imposed. I do not consider it was incumbent upon the magistrate to further explore or ascertain whether a form of order under s 10G could have been made.
3. Having said that, the purpose of the RO Act is to prevent or restrain someone from particular behaviours or patterns of behaviour. What the appellant sought was a positive order to require DBP to do something; to hand a phone to CC or make CC available to take the telephone call. Those positive obligations are the remit of the Family Court, and could not properly be dealt with by an FVRO in the Magistrates Court.
4. The appellant also contended in relation to s 10G that, had the learned magistrate properly considered those provisions, he would have changed his view that the application was simply about 'non-compliance'. She asserted that instead, he would have concluded that the conduct in fact constituted 'family violence' and that he must impose restraints to ensure protection of CC.
5. However, I do not consider that there was any failure of the magistrate to give due consideration to that provision, for the reasons previously outlined. Further, I do not consider it was the magistrate's conclusion that the application was 'simply' about non-compliance. There are numerous references in the transcript by the magistrate acknowledging that the conduct complained of could constitute 'family violence'. His concern, rightfully, was as to the existence of special circumstances which he concluded would make any order that he may be able to render, inappropriate.

Grounds 4, 6, 7, 8, 9: Failure to consider the evidence and to conclude there had been family violence

1. In general terms, the appellant contends that the learned magistrate erred in failing to properly consider the evidence adduced and to conclude that the evidence established that the conduct or behaviours of DBP, and the length of time for which they had ensued, did amount to 'family violence' within the meaning in s 5A of the RO Act.
2. In my view, the learned magistrate correctly and clearly contemplated that the conduct complained of by the appellant could constitute family violence:

HIS HONOUR: ... I've read the voluminous materials that you've provided.

So I've read it, and I'm aware that isolation from family and friends can amount to family violence, I'm aware of that.[48]

... I am satisfied that the conduct that's alleged can amount to family violence, and that is that isolation from family members is legislated that can be family violence, absolutely. The difficulty with this though, is that these matters have been ventilated significantly within the Family Court.[49]

1. The transcript clearly reflects the learned magistrate's understanding of the evidence and submissions as to what were the alleged behaviours and he concluded it could constitute family violence. The learned magistrate made no error in failing to further consider, or consider at all, the matters in s 10F and s 10G(2).

Ground 5: Failure to consider and apply the considerations in s 10F

1. Finally, I understand the appellant to contend that the learned magistrate erred in failing to consider and apply the considerations in s 10F of the RO Act, and in particular, the primary factors in s 10F(1)(a) - s 10F(1)(c).
2. One might argue, by reason of the transcript at least, that express consideration of the factors in s 10F might not have been given by the learned magistrate. These factors include an important primary requirement to have regard to:

(a) the need to ensure that the person seeking to be protected is protected from family violence (s 10F(1)(a));

(b) the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them (s 10F(1)(b)); and

(c) the need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in (b) or otherwise being subjected to or exposed to family violence (s 10F(1)(c)).

1. However, the learned magistrate was alive to the important fact that final Parenting Orders were in place. Such orders are in place to provide for the best interests of a child and are reached in that jurisdiction only after extensive evidence and information about the child is examined. Such orders contain significant features directed towards the child's wellbeing, and they are made for a reason and based on historical matters. Further consideration by a magistrate in an application for an FVRO as to the wellbeing of the child, in a vacuum, or as to other factors in s 10F would have been a futile exercise, in circumstances where the learned magistrate properly concluded that special circumstances existed. He simply could not reasonably or appropriately make orders in the FVRO jurisdiction arising out of the implementation, operation or otherwise in respect of those Parenting Orders and in the particular circumstances of this case.

1. For the reasons outlined, the appeal should be dismissed.
2. No other orders are required.

1. The magistrate incorrectly applied (made an error in law applying) section 10D(2) 'special circumstances' to circumstances of the case, being that of Family Law Orders and ability to apply to Family Court, of which, under Section 10D(3) such orders and ability to apply to another court does not simply make such a 'special circumstance' that would make an order inappropriate.
2. The magistrate failed to consider section 10(E) for the protection of the child, namely section 10E(1)(a) and 10E(1)(b), of the Restraining Orders Act 1997 and, in any event, section 10(E)(2) where the court MUST make the restraint order unless there are special circumstances of which there are not.
3. The magistrate failed to establish in any way why restraint as allowed by law under 10G(1)(a) and 10G(2)(f) and 10(2)(a) and (b) of the Restraining Orders Act 1997 could not be made perverting the course of justice as otherwise allowed under such Act.
4. The magistrate failed to establish in any way how the affidavit and annexed material of evidence failed to raise evidence of family violence and in accordance with section 10D(1)(a) and section 10D(1)(b) with powers under 10D(2) of the Restraining Orders Act 1997; orders should have been [made] restraining the behaviour of [DBP] to withhold necessary property, his mobile telephone [XXX XXX 875], from [CC] in accordance with restraint able to be made under section 10G(2)(f), the magistrate further failed protection of the child as empowered by law to under section (2)(a) and section 2(b) to prevent and restrain DBP from interferring [sic] with the child's phone calls (including being in and around the child's person) during court ordered time for the child to spend with the appellant by telephone on Wednesday's and Saturday's between the hours of 6:30pm and 7:30pm weekly.
5. The magistrate failed to make the appropriate considerations under section 10F of the Restraining Orders Act 1997 given the longevity of behaviour (described and evidenced by affidavit and annexures) to the magistrate of which there was no indication of any end to such situation in the immediate or otherwise future with no contact being made at all by DBP despite numerous evidences of requests made to him and supplied at Annexures of the evidence
6. The magistrate failed to take into consideration the reports of the same behaviours of DBP to ignore requests for information on the child or discuss the child circumstance, to coercively control and interfere in contact to the child and witnessed accounts of the same behaviours by DBP causing apprehension and fear of further violence ranging from the period 2019 to 2021 by psychological and witness reports attained and supplied under Annexures 3, 5, 6, 8, 11.
7. The magistrate failed to take into account paragraphs 19, 20, 21, 22, 24, 25, 26, 28, 30, 31, 32 of the appellant's affidavit affirmed 1/11/2024 and its Annexure 7 (consisting from Annexure 7A to 7BF) as to longevity of requests made to DBP as to access to the child as per order 8 of the Parenting Orders and fears held for the child where no responses from DBP were causing fear and apprehension of continuation of exclusion from the child's life and concerns for being able to make contact to the child in regard to section 5A(2)(i) and (2)(l) as to need of the appellant to have DBP's behaviour restrained to stop the ongoing violence of which medical affects on the appellant were evidenced at paragraphs 50, 51 and Annexure 4 of the same affidavit.
8. The magistrate failed to establish how complete breach of Order 8 of the Parenting Orders with no communication at all to the appellant from CC or from DBP as to the whereabouts, well being nor any reason for denial of access to the child for the purpose of order 8 of the Parenting Orders is not directly 'family violence' as defined by section 5A, namely (2)(h) as to need of the child to have access to a financial asset (the phone), (2)(ha), (2)(i) and (2)(l) of the Restraining Orders Act 1997 of which is and was shown also as being supported by the Family Law Act 1975 section 65NA as being an offence; an offence requiring restraint to stop the ongoing adverse and damaging behaviour that was causing apprehension and fear of violence and continuation of violence from DBP as allowed by section 10D of the Restraining Orders Act 1997.
9. The magistrate failed to take into account in his deliberations and decision both the stipulations of the Restraining Orders Act 1997 and the Crimes (Domestic and Personal) Violence Act 2007 and Family Law Act 1975 as set out from paragraph 65 to 74 of the appellant's affidavit affirmed on the 1 day of November 2024.

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

[1] Appeal Book (AB), Volume 1 filed 7 March 2025, page 15.

[12] MCCP Act s 40(4); District Court Rules 2005 (WA) (DCR) r 50(1); Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ).

[16] Yazarloo v Assadi [2003] WASCA 326 [9], [35] (Scott J); Brocklehurst v Wolinski [14]; Butler v Bennett [2007] WADC 107 [6].

[17] TAH v The Public Advocate [2024] WADC 71 [71] (references omitted) (TAH).

[18] TAH [71] (references omitted).

[19] RO Act s 29(1)(a); TAH [11].

[20] As defined in the RO Act s 3; TAH [11].

[22] As those terms are contemplated in Shilkin v Taylor [2011] WASCA 255 [66] - [68] (Shilkin).

[26] Shilkin [66] - [68] (references omitted) (Newnes JA, with whom Pullin & Buss JJA agreed).

[27] TAH [112] (Gething DCJ); Nugawela v American Express Australia Ltd [2016] WADC 170 [16], [20] (Bowden DCJ) (Nugawela).

[30] Lackovic v Insurance Commission of Western Australia [2006] WASCA 38.

[31] Written submissions dated 6 March 2025, page 3.

[37] Hon M Mischin (Attorney General), 'Extract from Hansard', 14 September 2016, page 2.