Broken Hill South Ltd v Commissioner of Taxation

Appeal against failure to grant family violence restraining order - Events in New Zealand - Parenting orders granted in New Zealand - Extraterritoriality - Accuracy of transcript before magistrate - Magistrate's reasons for decision - Findings necessary to support family violence restraining order - Grounds of appeal - Failure to establish magistrate erred

Magistrates Court (Civil Proceedings) Act 2004 (WA)

Restraining Orders Act 1997 (WA)

Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337

Greenway v Lavers [2023] WASC 311

YBL v Director of Public Prosecutions (WA) [2013] WASCA 221; (2013) 45 WAR 432

1. The appellant Ms TFD[1] applied to the Magistrates Court on 22 January 2025 for a family violence restraining order. The family violence restraining order was sought against the respondent Mr JDN, a former partner. Documents accompanying the application made it plain that the restraining order was sought in favour of Ms TFD and her two children.
2. Mr JDN in accordance with a request made by Ms TFD did not appear at the hearing of the application. Mr JDN resides in New Zealand. The children for whom protection was sought are also residing in New Zealand.
3. The application was heard by a magistrate on 22 January 2025. The application was dismissed.
4. This is an appeal against that decision.
5. The issue to be determined is whether the magistrate was in error in dismissing the family violence restraining order application.
6. As I will try to explain, in my opinion the magistrate did not so err. None of the grounds of appeal, which I will later set out, can be upheld. Accordingly, the appeal will be dismissed.

The statutory basis of the appeal and additional evidence

1. The appeal is made pursuant to s 64(1) of the Restraining Orders Act 1997 (WA). Section 64(2) of the Restraining Orders Act provides that the appeal is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MCCP Act). Section 40(4A) of the MCCP Act (within pt 7) provides the appeal must be conducted in accordance with the rules of the District Court. However, r 50 of the District Court Rules 2005 (WA), dealing with the nature of an appeal, provides in r 50(4) that the rule is subject to the written law that provides for the appeal to be made to the court. This, then, refers back to the MCCP Act.
2. Section 40(4) and s 40(5) of the MCCP Act provides:

(4) The District Court must decide the appeal on -

(a) the material and evidence that were before the Magistrates Court; and

(b) any other evidence that it gives leave to be admitted.

(5) Leave may only be given under subsection (4)(b) in exceptional circumstances.

1. Ms TFD sought to put before the court the materials before the magistrate and some additional material. Whilst I did not formally provide leave for the additional materials to be admitted, I am prepared, subject to relevance, to take those materials into account. I do so because the appellant is acting in person and was clearly very anxious about the court proceedings. In the circumstances I find that constitutes exceptional circumstances.

The transcript and recording of the hearing of the application

1. Before me there was a transcript of the hearing before the magistrate. Ms TFD had a copy of the transcript.
2. At the hearing before me Ms TFD submitted the transcript was incomplete in that it did not include everything said by the magistrate, nor the tone of the magistrate's comments. It was submitted these things were relevant to the determination of the appeal.
3. Accordingly, at Ms TFD's request, the hearing was concluded on the basis that the recording of the hearing before the magistrate would be obtained. I said that I would listen to the recording so that I could compare it to the transcript and hear the tone of what the magistrate said. Orders were made for Ms TFD to be provided with the opportunity to listen to the recording as soon as practicable after it was obtained by the registry of the court, from the Magistrates Court. The information before me substantiates that this occurred.
4. An order was also made that Ms TFD be able to make additional written submissions after listening to the recording of the hearing. The order was made that Ms TFD have this opportunity within the limited period of two days. Ms TFD requested this, so it was apparent she was acting as expeditiously as possible to try and obtain a family violence restraining order. An order was also made giving Ms TFD the opportunity to seek a further hearing before me, about the recording of the hearing before the Magistrates Court.
5. After Ms TFD was provided with the opportunity to listen to the recording; and did so as I understand it, she informed the court she did not wish to do either of these things.
6. I have listened to the recording of the hearing before the Magistrates Court and compared it to the transcript. There is no relevant discrepancy between the recording of the hearing and the transcript. There is also nothing in the tone of what the magistrate said which I think was untoward, in the circumstances. Ms TFD's submissions to the contrary are unfounded. Therefore I proceed on the basis that the transcript is an accurate representation of what occurred in the Magistrates Court.

The lack of participation of Mr JDN in the appeal

1. Mr JDN was served with the documents instituting the appeal. He has not participated in the appeal. As explained to Ms TFD however this does not mean that the appeal must succeed. That is dependent upon the decision of the magistrate to dismiss the family violence restraining application being in error.

1. As set out earlier both Mr JDN and the children are residing in New Zealand. Ms TFD also informed the court that there are orders permitting, or requiring, the children to reside with Mr JDN in New Zealand. There is an order preventing the children from returning to Australia. As acknowledged by Ms TFD there is no order that could be made by the Magistrates Court or this court which would interfere with the orders made by a court or courts in New Zealand about these things.
2. Ms TFD acknowledged that the court could not undermine any 'parenting orders' made by a court or courts in New Zealand. However, it was submitted that the court could make a restraining order affecting the conduct of Mr JDN with respect to the children in New Zealand. She submitted for example that a restraining order could sit under the parenting orders and affect for example the conduct of Mr JDN in the presence of the children. It was submitted this could include not exposing the children to domestic violence.

1. The hearing before the magistrate was relatively brief. The transcript indicates that the hearing occurred between 2.31 pm and 2.48 pm on 22 January 2025. There are 9 ½ pages of transcript.
2. Although the hearing commenced with a calling of Ms TFD's application it was then apparent that documents relating to another matter were before the magistrate. These parties were named.
3. I mention this because at one point Ms TFD said that this was an improper invasion of the privacy of these people. Whilst these people were named, it does not appear that there was any consequence arising from this. It was simply an administrative error. It does not in any way affect the order made by the magistrate in dismissing Ms TFD's application.
4. Upon confirmation that the right application was before the magistrate, Ms TFD was sworn.
5. In the hearing before me Ms TFD queried whether the magistrate had the documents supporting her application before her. It is however apparent from the transcript that she had.
6. The magistrate asked and Ms TFD confirmed that everything in the affidavit was true.
7. The magistrate then referred to some of the contents of the affidavit. Her Honour referred to two past restraining order applications of which Ms TFD said magistrates had indicated there was insufficient evidence for a decision to be made. This was also despite applications for protection orders being made in New Zealand. The magistrate confirmed that Mr JDN resided in New Zealand. Ms TFD said that her Australian children were detained in New Zealand in Mr JDN's custody. Ms TFD said:

... There is an indefinite non-removal order trapping them there. I have initiated Family Court proceedings in Australia, because it is evident New Zealand will not release my children. I don't want to get into the parenting side ...

1. Ms TFD said that she was asking the court to make a declaration that 'they are not a competent jurisdiction, and my children are not safe there'. Ms TFD submitted there was 'indisputable family violence'. She submitted that it was 'indisputable my children are being isolated from me and exposed to emotional, psychological and physical abuse'.
2. Ms TFD referred to what she said was a finding by Judge Tan on 17 November 2021. A copy of the reasons for decision of Judge Tan were before the magistrate and this court. It was a decision made in the Family Court at Manukau by Ms TFD against Mr JDN and CMN,[2] as an associate respondent. The hearing occurred on 24 June and 27 July 2021 and judgment was given on 17 September 2021. The reasons recorded that there were two applications for a protection order made by Ms TFD against Mr JDN. There were no temporary protection orders in force. The reasons also recorded that there had been 'unabated litigation' for over 3 ½ years between the parties about the children.
3. Before the magistrate, Ms TFD specifically referred to [135] of the reasons of Judge Tan. Relevantly in [134] - [136] of the reasons of Judge Tan it was said:
   1. For the reasons that I have set out above I find that Ms [TFD]'s subjective fear of future violence is not reasonable. I come to the view that her application is not founded on reasonable fear of further violence but her inability to accept the views of independent agencies including this court as she wants the children with her in Australia. Her application is an attempt to circumvent the decisions already made about the care of the children.
   2. I have considered the nature and seriousness of [Mr JDN]'s behaviour towards the children looking at his past conduct, the views of the children, and other agencies and the context of the specific incidents and the relationship between Mr [JDN] and the children as a whole. While I have found on two discreet occasions he for the purposes of the definition of family violence in the FVA has been physically and psychologically abusive these incidents do not in my assessment elevate him to a description of being an abuser who the children need protection from.
   3. I determine that a protection order is not necessary and accordingly the two applications made by Ms [TFD] are declined.
4. The magistrate then asked Ms TFD what she was hoping to achieve. Ms TFD said:

I need a safety order that can then be registered in New Zealand as some form of safety measure while I am waiting for recovery orders for the children to come back.

1. The magistrate then referred to the 'indefinite orders' made in New Zealand that 'the children remain in New Zealand' and said, 'what is your concern about future family violence'. Ms TFD expressed her concern about ongoing family violence, being subjected to violence and the children being 'leveraged as hostages'.
2. Ms TFD then referred to Mr JDN's abuse of court proceedings. In this context Ms TFD referred to s 10B of the Restraining Orders Act.
3. Ms TFD then detailed that she was not simply saying that she was unhappy about not seeing her children. She said she was not asking the court to make 'safety orders' because she thought that would change contact.[3] Ms TFD said that she had filed in the Family Court but suggested a Family Court registrar had been obstructive.
4. Ms TFD then made further submissions about the danger she asserted her children were in. It is apparent from listening to the recording of the proceedings before the magistrate that Ms TFD became emotional at this point. Ms TFD submitted that there was psychological abuse which was distressing for the children including her daughter saying: 'Am I even going to see you this year'. It was submitted that Ms TFD and her children were subjected to cruel and inhumane humiliating experiences to benefit Mr JDN because 'this is retaliation for me not marrying him. He is a pilot who cannot look after the children. He doesn't have the patience to look after them'.
5. Details were then provided about an au pair who lived in the house to take care of the children.
6. Ms TFD said the children remained at risk of grave harm and referred to mental health and 'head injuries' of her son.
7. The magistrate asked why the children were in New Zealand and Ms TFD in Australia. Ms TFD said she could not live in New Zealand. She said she had been falsely charged and arrested twice by the police and continued to be threatened. Ms TFD said in effect that she could not get fair hearings in New Zealand and that she had commenced malicious and vexatious prosecution actions against police 'because my ex's solicitor was an ex-police officer married to a judge'.
8. The magistrate said that what Ms TFD had said did not answer her question. Ms TFD clarified 'Why am I here?'. Upon confirmation from the magistrate, Ms TFD said 'To get my children home'. There was then clarification sought by the magistrate about why Ms TFD could not return to New Zealand to deal with the issue. Ms TFD said that she had attempted on countless occasions to protect her children, and it was meritless in New Zealand. Ms TFD submitted that this was because children do not have legally recognised rights in New Zealand. She said this was because New Zealand was not a signatory to the 1996 Hague Convention.
9. Ms TFD then said that her ex-partner Mr JDN was not her son's father or his legal guardian. It was also said that her son's biological family lived in Australia and that his father lives in Perth.
10. The magistrate asked where the children were born and Ms TFD confirmed that was in Australia. Ms TFD said she had made an application for a recovery order but did not know when that would be heard. However she said she hoped that that would be heard today in the Family Court. Difficulties with getting this application heard were then detailed.
11. Upon questioning by the magistrate Ms TFD confirmed there was what she described to be 'an indefinite and unlawful non-removal order indefinitely detaining' her children in a foreign country. She confirmed that there was an injunction that the children not leave New Zealand. Ms TFD said that she had exhausted all avenues in New Zealand. Ms TFD said that there was a restraint that prevented her from filing any application without the leave of a High Court judge.

1. The magistrate then said that she was going to 'call a halt to this'. The magistrate said to Ms TFD that her application was without merit. The magistrate said that:

You're asking me to apply my discretion to grant a restraining order in this jurisdiction in Western Australia, seeking to restrain a person who resides in New Zealand in relation to your ongoing denial of access to the two children who remain subject to his care in New Zealand, an overseas jurisdiction.

You indicate that you've lodged an urgent recovery order in the Family Court. That's your prerogative to do. That can be dealt with in that jurisdiction. As to whether this court ought to intervene where there has been a determination made by an overseas court that there be an injunction that the two children not leave that jurisdiction, being New Zealand, indicates your ability to be heard in relation to that lies in that jurisdiction. You've now told me that you've exhausted all opportunities there. You're prevented from filing any documents.

That's on you in terms of that's the reality that you face. It would be contrary to the appropriate exercise of my jurisdiction to seek to circumvent what has already been ordered in another jurisdiction to determine a matter which another court overseas had determined ought not be looked at in relation to there being orders previously made by another jurisdiction about it, it would be akin to an abuse of process for me to exercise my discretion to seek to override actions taken by another jurisdiction that has already ventured into the matter.

And so based on that, you can exercise your right to be heard in all other fashions in relation to another court. There is no basis upon which this court would consider there is any merit in granting a restraining order pertaining to alleged family violence by you against a person who lives in another overseas jurisdiction, relating to complicated issues about whether those children ought to leave that jurisdiction and be removed from his care into your care. That's really for the Family Court to work out. It's not for this court to work out, and I'm not going to hear any more about it.

1. The magistrate then dismissed the application. Ms TFD asked about obtaining the transcript, and a judicial support officer is recorded as saying that Ms TFD would need to go to the registry.

The order made by the Magistrates Court and reasons for decision

1. Ms TFD sought a copy of the order made by the Magistrates Court. She obtained a copy of the order dated 22 January 2025 which simply recorded 'application dismissed'. Before me, Ms TFD asserted that the magistrate had not provided any reasons for decision. This was primarily based upon there being no reasons for decision contained within the order. I explained to Ms TFD that it would ordinarily not be the case that an order would contain the reasons for decision; and that the reasons for decision were provided at the hearing on 22 January 2025 and recorded in the transcript.
2. There is therefore no valid complaint before me that the magistrate did not provide reasons for her decision.

The grounds on which a family violence restraining order may be made

1. As stated, to allow the appeal I must find that the decision or the reasons supporting the decision by the magistrate were erroneous. The magistrate had the power to grant the family violence restraining orders sought in the circumstances described in s 10D and s 10E of the Restraining Orders Act. These provide as follows:

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

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

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

(2) If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.

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

10E. FVRO may be made for child in circumstances of family violence

(1) An FVRO may be made for the benefit of a child if the court is satisfied that -

(a) the child has been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child is likely again to be exposed to such violence; or

(b) the applicant, the child or a person with whom the child is in a family relationship has reasonable grounds to apprehend that the child will be exposed to family violence committed by or against a person with whom the child is in a family relationship.

(2) If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.

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

1. Family violence is defined in s 5A(1) of the Restraining Orders Act. It includes behaviour that 'coerces or controls the family member or causes the family member to be fearful'. Both Ms TFD and the children are family members of Mr JDN, in accordance with the definitions contained in s 4 of the Restraining Orders Act.
2. The jurisdiction of a court to make a family violence restraining order in s 10D(1)(a) has a past element and a present element which looks to the future. That is the (past) commission of family violence and (future) likelihood to again commit family violence.
3. The jurisdiction of a court to make a family violence restraining order under s 10D(1)(b) contains elements of (present) 'reasonable grounds' to apprehend that the respondent will (in the future) commit family violence. The elements of future likelihood in s 10D(1)(a) and reasonable grounds in s 10D(1)(b) require an objective assessment and findings made by a court.
4. Section 10E(1)(a) and s 10E(1)(b) contain similar elements of likelihood and reasonable grounds which, accordingly also require an objective assessment and findings before there is jurisdiction to grant a family violence restraining order.
5. Section 10A of the Restraining Orders Act sets out the objects of pt 1B relating to family violence restraining orders. Section 10B sets out principles to be observed in performing functions in relation to family violence restraining orders and s 10F refers to matters to be considered by the court generally in deciding whether to make a family violence restraining order. However, these sections do not undermine the requirements contained in s 10D and s 10E which must be satisfied before a family violence restraining order can be made.

Extraterritorial application of the Restraining Orders Act

1. As I have earlier set out, the application for the family violence restraining order with respect to the children was in relation to events that have occurred or may occur in the future in New Zealand. The application was sought to restrain Mr JDN with respect to actions in New Zealand in circumstances where he has a parenting order with respect to the children and there is an order preventing the children from returning to Australia.
2. There is an issue as to whether the State of Western Australia has legislative power to restrain the actions of a person in New Zealand in these circumstances.
3. The issue of the legislative authority of the State to make laws with extraterritorial application was considered by McLure P in YBL v Director of Public Prosecutions (WA).[4] Her Honour said the following:[5]
   1. Section 2 of the Australia Acts provide:

(1) It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.

(2) It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

1. The effect of s 2 of the Australia Acts on the power of State Parliaments to legislate extra-territorially was considered by the High Court in Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1. The Court said in a joint judgment that the words 'peace, order and good government' had been considered the source of whatever territorial limitations exist on State Parliaments (12). In considering s 2(1) of the Australia Acts, the Court held that it was appropriate to maintain the need for some territorial limitation in conformity with the grant, noting that it may do no more than recognise what had already been achieved in the course of judicial decisions (14). In this respect, the Court approved the test applied by Gibbs J in Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507 for determining whether the territorial limitations on State legislative power had been exceeded.
2. In Pearce v Florenca, Gibbs J said:

[T]he test whether a law is one for the peace, order and good government of the State is, as so stated, exceedingly vague and imprecise, and a rather more specific test has been adopted; it has become settled that a law is valid if it is connected, not too remotely, with the State which enacted it, or, in other words, if it operates on some circumstance which really appertains to the State. ...

[I]t is obviously in the public interest that the test should be liberally applied, and that legislation should be held valid if there is any real connexion - even a remote or general connexion - between the subject matter of the legislation and the State (517 - 518).

1. This test has been approved in subsequent decisions of the High Court, including Port MacDonnell Professional Fishermen's Association Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340, 372; Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 [123]; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 [9], [48]; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 [40], [158], [465].
2. The Gibbs J test has its origins in Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337 in which Dixon J said:

The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose by reference to some act, matter, or thing occurring outside the State a liability upon a person unconnected with the State whether by domicil, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers (375).

1. That approach is reflected in the judgment of McHugh JA in Flaherty v Girgis (1985) 4 NSWLR 248 in which he said:

Domicile, residence or even presence within the jurisdiction is always sufficient to give the legislature power to impose any liability whatsoever on the person so residing, domiciled or present (267).

1. As referred to by her Honour, Dixon J said in Broken Hill South Ltd v Commissioner of Taxation (NSW)[6] that the State Parliament cannot impose by reference to some act, matter, or thing occurring outside the State, a liability upon a person unconnected with the State whether by a domicile, residence or otherwise.
2. In my opinion this applies to mean that the State does not have legislative power to impose a liability upon a person with respect to restraining their conduct in the circumstances of Mr JDN, as I have described. There is a lack of the relevant link between such a person and Western Australia to enable the State to have legislative authority to restrain their conduct in New Zealand.
3. Even if I am wrong in this conclusion there is a separate issue as to whether, if the State has power to legislate with respect to a person and impose a liability extrajudicially, the legislation has that effect. This separate question is as to whether it was the intention of the legislature to permit Western Australian courts to make restraining orders with respect to conduct within another country. The general presumption is that the law of a State is not to extend and operate extraterritorially.[7]
4. In my opinion the presumption operates in the present circumstances, and I do not think that the presumption is overcome. The fact that the Restraining Orders Act has a system of registration of interstate restraining orders is consistent with this.[8] With respect to other States of Australia, there is a registrable mutuality of the operation of restraining orders but not an intention that restraining orders can be issued in Western Australia with respect to conduct occurring or which may occur, in another State. This is even more so with respect to events occurring in another country.
5. Additionally, even if I am wrong in both of the two conclusions expressed above, I do not think that the evidence before the magistrate or me establishes that the magistrate was in error as a matter of law and fact in dismissing the family violence restraining order application. This is because there was insufficient evidence of prior, existing or likely future actions against the children which would enliven the jurisdiction to make the order; or Ms TFD having 'reasonable grounds' to support the making of the order sought. As I will refer to below, in the context of the grounds of appeal, there is no appealable error. In my opinion, the magistrate was clearly correct to decide, in effect as a matter of comity, that an order in Western Australia could not undermine orders made in New Zealand.
6. With respect to the conduct of Mr JDN to Ms TFD the situation is more complicated. This is because the actions of Mr JDN could potentially be directed towards Ms TFD when residing in Australia. The communication to a person in Western Australia is a matter or thing occurring in Western Australia. To that extent, the legislation would be applying to a person or situation with current connection to Western Australia. Further, the presumption against extraterritorial operation of laws would not apply in those circumstances.
7. However, even if the Restraining Orders Act could apply in those circumstances, in my opinion based upon the evidence before the magistrate and indeed before me, the appeal cannot be allowed and the magistrate's order set aside. Again no appealable error is established, based on the grounds of appeal which leads to the setting aside of the magistrate's decision. I am also not satisfied that the evidence establishes sufficiently the circumstances upon which a restraining order could be made. There is for example, as I will set out below, evidence of interactions between the parties about the children. Ms TFD did not explain how a restraining order could apply in those circumstances. It seems clear that Ms TFD wants that type of communication to continue so that she can engage about the children. I do not think that the evidence before the magistrate or indeed before me was sufficient to allow the court to make a violence restraining order under s 10D or s 10E of the Restraining Orders Act in favour of Ms TFD with respect to possible future conduct against her.
8. Whilst it is correct that the magistrate did not specifically consider the making of a violence restraining order for the protection of Ms TFD as opposed to the children, the material before her did not satisfy the requirements of s 10D of the Restraining Orders Act.
9. The magistrate did not, in terms, refer to the legal issues about exterritoriality that I have referred to. The magistrate referred to the discretion to grant a restraining order in Western Australia, with respect to a person in New Zealand and children in New Zealand. Her Honour said it would be acting contrary to the appropriate exercise of her jurisdiction to circumvent what a court had ordered in another jurisdiction. I do not think there was any error in this reasoning, if the court had jurisdiction to grant the application, despite the extraterritoriality issue. They were valid reasons for the court not to grant the family violence restraining order sought, with respect to protection of the children.

1. Ms TFD's notice of appeal was filed on 6 February 2025. It contains 13 grounds of appeal as follows:
   1. The magistrate breached privacy at the beginning of the hearing naming unrelated parties in the application she had before her '[redacted]' and '[redacted]'
   2. The magistrate has erred in ignoring mandatory legislation under part 1B IOA, 10B(1)(a)(b)(c)(d)(e)( f )(i)(j) of the Restraining Order Act 1997
   3. The magistrate has disregarded the evidence provided in the affidavit sworn 17 January 2025 substantiating proven child abuse and coercive control, domestic violence and ignored s10D(1)(a) and (b) and mandatory legislation in s10D(2) of the Restraining Order Act 1997
   4. The magistrate has ignored s10E(1)(a)(b) and s10E(2) and (3) of the Restraining Order Act 1997- verified with the findings of [JDN]'s abuse by Judge Tan dated 17/09/2021 para [135] before the magistrate.
   5. The magistrate has breached the legislation of the Restraining Order Act 1997 disregarding the abuse and chastising the appellant in court who defended the filing as all remedied in New Zealand had been exhausted and it is unsafe for her to remain there: stating: 'Well that's on you, you have to go back to New Zealand - this is a family court matter.'
   6. The magistrate does not find no abuse has occurred.
   7. The magistrate conceals the fact if a restraining order was issued it could be registered overseas to work WITHIN parenting orders to offer some safety measures for the two Australian children.
   8. The magistrate grossly restricts the scope of the appellants risk of abuse to physical abuse, disregarding coercive control of isolation of children and family, financial, emotional and psychological abuse- including medical neglect placing the children in grave danger greatly distressing the appellant.
   9. The magistrate ignored the fact the respondent is a pilot and can easily travel to the appellant without cost.
   10. The magistrate does not provide any reasons for the decision.
   11. The transcript is inaccurate and incomplete requiring the audio to hear the tone and disrespect the magistrate showed the appellant who filed for these protection orders in good faith.
   12. The appellant submits the magistrate became personally involved in the proceedings and decline to exercise the order under s29(l) to allow the respondent to speak to the allegations substantiated in the affidavit.
   13. Case law relied on: Greenway V Lavers [2023] WASC 311 file no: SJA 1026 2023

1. Each of the grounds of appeal assume the magistrate had jurisdiction to grant the orders sought, despite the extraterritorial issues referred to above. To consider the grounds of appeal I will assume the magistrate had jurisdiction to consider and determine the application despite extraterritorial issues.
2. I have already referred to the circumstances in which the events described by ground 1 of the notice of appeal occurred. As I have said there was an administrative error which had nothing to do with Ms TFD's application. It cannot in any way support an appeal to this court.
3. Appeal ground 2 asserts the magistrate ignored s 10A of the Restraining Orders Act. As stated, s 10A sets out the objects of pt 1B of the Restraining Orders Act in dealing with family violence restraining orders. It is correct that the magistrate did not specifically refer to these objects. But, as I have said, these objects do not undermine the requirements in s 10D or s 10E before a family violence restraining order could be imposed. The magistrate did not refer to these sections either. However, in particular circumstances of this case, I do not think this was in error. Her Honour determined for the reasons contained in the transcript that there was no basis upon which the order could be granted. As I have said I do not think this conclusion was erroneous.
4. Principally this was because the application before the magistrate as she understood it was for a family violence restraining order with respect to Mr JDN and the children in New Zealand, when parenting orders had been made to deal with the relationship between Ms TFD, Mr JDN and the children.
5. To restate, the circumstances in which a family violence restraining order can be made by a magistrate are set out in s 10D and s 10E of the Restraining Orders Act.
6. Section 10B of the Restraining Orders Act sets out principles to be observed in performing functions in relation to family violence restraining order applications. Subsection 10B(1) refers to things a court must have regard to in performing a function under the Restraining Orders Act. This would clearly include hearing and determining a family violence restraining order application. However whilst the court must have regard to the things set out in s 10B(1), this does not mean that the court can grant a restraining order other than when the requisite findings to support it are made in accordance with s 10D and s 10E of the Restraining Orders Act. And as I have said, I do not think the evidence before the magistrate established the grounds to support the making of a family violence restraining order.
7. Appeal ground 3 refers to the contents of the affidavit of the applicant sworn 17 January 2025. I will later refer to this document.
8. Appeal ground 4 refers to the findings made by Judge Tan that I have referred to earlier. This submission does not overcome the difficulty that the order was sought to restrain Mr JDN with respect to actions against the children in New Zealand. However, even if it did, in my opinion the magistrate would not have been in error in failing to make the requisite findings under s 10D and s 10E based upon the findings made by Judge Tan. I have earlier set out [134] - [136] of the reasons of Judge Tan. Findings made by Judge Tan did not lead to the making of any orders. In particular, Judge Tan found:

(a) Ms TFD's subjective fear of future violence against the children was not reasonable.

(b) Mr JDN was not an abuser whom the children needed protection from.

1. Accordingly, the reasons of and decision made by Judge Tan did not support the making of a family violence restraining order by the magistrate. The evidence before the magistrate, constituted by the reasons for decision of Judge Tan, did not in my opinion establish that a child had been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child was likely again to be exposed to such violence. Also, it did not provide evidence supporting the conclusion contained in s 10E(1)(b) of the Restraining Orders Act. It also did not support any requisite conclusion under s 10 of the Restraining Orders Act for the making of an order.
2. I do not think there is any substance in appeal ground 5. The ground is difficult to understand. But, from my reading of the transcript and listening to the recording of the proceedings, I do not think the magistrate chastised the appellant. The magistrate endeavoured to obtain facts from the appellant and decided it was inappropriate to grant the order sought. The magistrate did not say the words in the quotation marks in the ground. The magistrate did refer to the Family Court, in her reasons, in the context of orders made in New Zealand about whether the children ought to leave that jurisdiction or remain in the care of Mr JDN. There was no error in doing this. It was an understandable part of the reasoning for the application being dismissed.
3. The magistrate also referred to the Family Court being able to deal with the appellant's 'urgent recovery order', lodged by the appellant. Again, there was no error in doing so.
4. Appeal ground 6 refers to the magistrate not finding that no abuse had occurred. I accept that this is accurate. But a family violence restraining order is not granted in circumstances where a magistrate does not find no abuse has occurred. As I have said, particular findings are required to support the making of an order. To the extent that the appeal ground may be construed to mean that the magistrate ought to have, but did not, find that abuse had occurred, I do not accept that. The evidence before the magistrate did not establish that there was past and possible likely abuse which should be restrained by an order, or reasonable grounds to apprehend future family violence.
5. With respect to appeal ground 7, I have referred to a submission made before me by Ms TFD about how a restraining order could work within parenting orders. In my opinion there are problems with the submission made by Ms TFD. There is the practical difficulty in making a restraining order against a person affecting their interaction with children who are subject to parenting orders in their favour. Further there was insufficient information before the magistrate to substantiate the grounds for imposing a restraining order with respect to the children.
6. With respect to appeal ground 8 there is nothing in the reasons of the magistrate which suggests that her Honour restricted the scope of violence to the children to physical abuse. As to Ms TFD herself, the magistrate did not specifically refer to the making of an order. But the evidence before her did not, in my opinion, establish the requirements for s 10D of the Restraining Orders Act to apply with respect to physical or non-physical abuse.
7. With respect to appeal ground 9 there was no evidence before the magistrate that the respondent could easily travel to the appellant in Australia without cost. Merely saying that he was a pilot in materials before the magistrate did not sustain this. Additionally, there was insufficient evidence before the magistrate that, if the respondent did come to Australia, he would act in a way which would enliven the jurisdiction to impose a family violence restraining order.
8. With respect to appeal ground 10, I have already referred to this. The magistrate did provide reasons for the decision as recorded in the transcript.
9. I have also referred to appeal ground 11 with respect to the rest of the transcript being inaccurate and incomplete. In my opinion it is not.
10. With respect to appeal ground 12, there is no evidence that the magistrate became personally involved in the proceedings. What her Honour did was to try and truncate the proceedings because she saw the application to be meritless. Although the hearing was short, I do not think it could be said that the magistrate declined to allow the respondent to speak to the allegations in her affidavit. The magistrate sought an understanding as to why the proceedings were before the court and what was sought to be obtained by them. It was on the basis of the answers the appellant gave that the magistrate dismissed the application. This was not unfair.
11. The reference in appeal ground 13 to Greenway v Lavers[9] is entirely misplaced. Although that case involved a successful appeal against a decision of the same magistrate it had nothing to do with Ms TFD or a restraining order application.

1. Ms TFD filed an affidavit in this court in support of her appeal. Whilst this descends to some extent to matters in addition to those which were before the magistrate, as I have said earlier, I am prepared to consider the contents for the purposes of deciding the appeal, to the extent that they are relevant.
2. The affidavit refers to some of the background leading to non-removal orders being imposed on the two children in New Zealand. It refers to issues relating to the 1996 Hague Convention. That is not relevant to the present appeal.
3. The affidavit refers to documents attached to it which I will refer to.
4. The affidavit refers to the issue of lack of reasons by the magistrate which I have already referred to above.
5. The affidavit refers to proceedings in other courts which are also not relevant to the present appeal.
6. The affidavit refers to the actions of a Ms AE.[10] From documents before me it appears that Ms AE is a social worker in New Zealand. However, those actions are not relevant to Ms TFD making an application to restrain Mr JDN, unless she was acting on his behalf and not as an independent social worker. There is no evidence to support this conclusion.
7. The affidavit also refers to other complaints made about New Zealand courts or allegations about Mr JDN having engaged in perjury in New Zealand courts. The allegations are irrelevant. I also note the allegation against Mr JDN is unproven.
8. The affidavit refers to a decision about delays in issuing decisions amounting to a breach of natural justice. However, that is not relevant to the decision made by the magistrate. There is also reference to a decision about the provision of reasons being an aspect of the principle of open justice. However, this is misconceived as the magistrate did give reasons.
9. The affidavit also refers to a declaration being made by this court on questions of law and improper processes by the Magistrates Court. As I endeavoured to explain to Ms TFD during the hearing, the court has no jurisdiction to make such a declaration.
10. This does not purport to be a reference to all of the matters covered in the affidavit but those which I think should be answered in these reasons. The other matters referred to in the affidavit are either irrelevant or not causative of any reason to set aside the decision of the magistrate.

1. The affidavit attaches a number of documents. I will not refer to all of them but only those which have some marginal relevance to the proceedings.
2. The affidavit sets out a certificate of service of the appeal upon Mr JDN. As set out earlier, the non-participation by Mr JDN in these proceedings does not mean the appeal should be allowed. That is dependent on establishing the magistrate erred.
3. The affidavit attaches email correspondence between Ms AE and Ms TFD. However, these occurred in April 2025, following the hearing before the magistrate. They also do not amount to evidence which would support the making of a restraining order by the magistrate against Mr JDN.
4. The affidavit also attaches paragraphs of the judgment of Judge Tan. I have already referred to this issue.
5. The affidavit also attaches a document described as 'Notes of Evidence' taken before Judge AG Mahon in a hearing on 8 December 2022 in the Family Court at Manukau in proceedings FAM-2018-092-00**** between Mr JDN and Ms TFD. In her affidavit Ms TFD says that the notes of evidence show:

[JDN] falsifying memory loss to deny threats to kill the children by way of strangulation and excusing his medical neglect of the children primarily on my son [redacted] who is now completely and totally isolated from all of his biological family, minus his sister ...

1. The issues referred to in the notes of evidence occurred solely in New Zealand and were subject to proceedings some years ago. I do not think they are now relevant to the appeal.
2. Also attached to Ms TFD's affidavit is the variation order which followed from the proceedings just referred to. This refers to a variation of a parenting order that had been made on 21 August 2020 and provided for the children being able to have telephone and video contact with Ms TFD on the basis outlined in the order. That shows the outcome of proceedings referred to but does not in any way impact upon the jurisdiction exercised by the magistrate in the present case.
3. Also attached to the affidavit is a document filed on 15 December 2021 seeking transfer of proceedings due to 'lawless decisions by Judge Mahon dated 2 December 2021 and 15 December 2021'. Again, this is of no relevance to the family violence restraining order application determined by the magistrate.

1. The appellant also provided an outline of submissions in support of the appeal. The submission reiterate that the legal grounds of the appeal were set out in the notice of appeal. There is reference in the outline to things that I have already referred to. There is nothing in the submissions which demonstrates error by the magistrate. The same may be said with respect to an additional document entitled 'legal authorities', which was filed.

1. Ms TFD also provided to the court a document called a draft chronology. I have read the document but it does not provide any additional information which could lead to the appeal being successful.

1. Also before the court are the materials which were before the magistrate. They include the application for the family violence restraining order which was filed.
2. In the 'application details' in the application Ms TFD said:

[JDN] has emotionally, psychologically and financially abused me since 2012. He became enraged when I called off our engagement due to his controlling and aggressive abuse. To retaliate he abducted my children in 2018 and has emotionally, physically and mentally abused them, isolating them from me and their family as a further extension of the abuse.

1. This refers to events of some time ago. There is insufficient reference to more recent events to affect the jurisdiction exercised by the magistrate or to demonstrate her Honour erred in dismissing the application. In any event the information appears to be about events in New Zealand, insofar as it refers to the isolation of the children from Ms TFD. This has the extraterritoriality problems referred to earlier. It also ignores the fact of the orders made by courts in New Zealand, which the magistrate was correct to find should not be undermined by orders made in Western Australia.
2. In the affidavit to support the application there is reference to the two restraining orders which were discussed at the hearing before the magistrate. There is also information about a statement made to Western Australian police for abduction and abuse on 8 November 2024. There is no further information about that statement.
3. The application also contains comments about the behaviour of Mr JDN before he left Australia in 2016 and also what is described as the abduction of the children in 2018. These are events that occurred long ago and do not lead to any error in the failure to make the requisite findings in s 10D and s 10E of the Restraining Orders Act. It is also likely the alleged 'abduction of the children' was something the New Zealand courts were aware of before making the orders about the children referred to earlier.
4. There is reference to correspondence which was attached to the affidavit. This was between the appellant and Mr JDN about the children. It includes Ms TFD expressing concern about her daughter being in tears and asking if she was going to see Ms TFD that year. Again that ignores the effect of the orders made by the courts in New Zealand. To the extent the tears were about Ms TFD not going herself to New Zealand, that does not contain allegations against Mr JDN.
5. The application also refers to a head injury that her son suffered on 31 December 2024 being referred to in email correspondence. There is a complaint about a child service officer having concealed accurate records of the 'assault'. There are also concerns expressed about the actions of the New Zealand police with respect to Mr JDN. But it is devoid of sufficient information to show the magistrate erred. Other documents before the magistrate suggested the concern of Ms TFD was that insufficient care was taken to assist her son after the injury. But there was insufficient evidence to support this claim.
6. The application also refers to her son suffering 10 - 12 serious head injuries. There is no information about how these were caused, or when, or by whom, or in what circumstances. The absence of this information means, in my opinion, it was insufficient to support the granting of the application. Further, it does not overcome the extraterritoriality issue referred to earlier; nor the fact that courts in New Zealand had made parenting orders in favour of Mr JDN.
7. The application also refers to ongoing isolation, gaslighting manipulation and confusion for the children. The application says that Ms TFD's son appears to have developed Stockholm syndrome to protect his abuser. Again, there is no evidence to support this, nor does it overcome the problems referred to in the previous paragraph.

Attachments to the affidavit before the magistrate

1. Attached to the affidavit is email correspondence between Mr JDN, Ms TFD and Ms AE which contains disagreements about the children. However this does not provide evidence which demonstrates the magistrate erred in not granting the application.
2. Annexure C to the affidavit before the magistrate is an email from Ms TFD to a number of people dated 8 January 2025. It is unclear who all the people are that the email was sent to. The text of the email refers to 'Michael', but it is unclear who this person is. It refers to an injury to Ms TFD's son's face and there is a photograph attached to the email which is unclear but may show some bruising around the area of the right eye. The email contains some complaint about medical neglect. There is reference in the email to directing an Officer Campbell to provide an update upon an investigation. It is not clear that the email refers to any injury inflicted by Mr JDN upon Ms TFD's son. In any event the information provided by the document faces the same problem of extraterritoriality and orders made by courts in New Zealand.
3. Also attached to the affidavit before the Magistrates Court is a document setting out a chronology of events and documentation 'meeting the definition of an abusive person of whom the FVRA Amendment Act 1920 covers under s300, s333 and s338A(1)(e)'.
4. This appears to be a reference to amendments made to the Criminal Code. The documents refer to events between January 2017 and December 2024, but not in terms that demonstrate that error was made by the magistrate.
5. As to other documents attached to the affidavit, I will refer only to those documents which I think have some marginal relevance to the application before the magistrate.
6. There is a letter from Dr Shah to Immersive Psychology Services dated 9 November 2024. It comprises a referral for Ms TFD for 'MHCP, re previous PTSD, domestic violence and issues with kids separated in NZ - ex-partner - coercive control'. The referral is however devoid of the details which would support the granting of a family violence restraining order. There is no information about the outcome of the referral.
7. It is difficult to understand what all of the documents are that are attached to the chronology. However, I have not seen any which would provide cogent evidence of matters which could give rise to a decision that the magistrate erred in not granting the application.
8. There are for example documents evidencing complaints made about judicial proceedings in New Zealand.
9. Many of the documents attached are somewhat aged 3 - 4 years, for example, and upon reading them I do not think they have contemporary relevance.

Conclusion on documents before the court and the magistrate

1. Having reviewed the affidavits and documents referred to, I do not think they individually, or in combination, establish that the magistrate erred in not making a family violence restraining order.

1. For all of the reasons set out above, I do not think the appeal succeeds. The grounds of appeal have not been established. Ms TFD has failed to establish the magistrate erred in not granting the application for a family violence restraining order. Accordingly, the appeal is dismissed.

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

[1] The names of the parties and the children have been anonymised for reasons of privacy.

[3] In the hearing before me, Ms TFD said in saying 'safety orders' she was referring to a family violence restraining order, and I accept that.

[4] YBL v Director of Public Prosecutions (WA) [2013] WASCA 221; (2013) 45 WAR 432.

[5] YBL v Director of Public Prosecutions (WA) [70] - [75].

[6] Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337.

[7] Pearce D, Statutory Interpretation in Australia, (10th ed, 2024, LexisNexis), 5.15.

[8] Restraining Orders Act pt 7.

[9] Greenway v Lavers [2023] WASC 311.

[10] Anonymised for reasons of privacy.