1. In Nugawela v American Express Australia Ltd[4] and The Chief Executive Officer of the Department of Transport v Messer,[5] it was decided that leave to admit additional evidence should not be used to rectify perceived weaknesses in a case already presented: Naidoo v Naidoo.[6]
2. The appellant submitted therefore that if the 'new evidence' was before the magistrate, it would have led to a different result. Obviously, this is a difficult test to satisfy.

The family violence restraining order application

1. The application for the family violence restraining order was made by Ms Blignaut on 12 July 2024. It was supported by an affidavit affirmed on the same date.
2. The affidavit was made in accordance with a proforma which contained a number of sections which could be completed by a deponent. Under the heading 'Information about you (the applicant) and your relationship to the respondent', Ms Blignaut said:

Jordan and I met on enlistment to the RAN in 2021 started dated shortly after recruit school. We choose [sic] to become defacto [sic] when we started living together however the relationship has not survived and apon [sic] attempting separation he has become uncontrollable and threatened me and others as a result. The relationship formly [sic] ended on the 8 July 2024.

1. Under the heading 'Information about acts and behaviours of abuse/assaults that have happened in recent days', Ms Blignaut said:

Took/withholding money - said the only way I was going to get my things was for sexual favours - constant harrasment [sic] (calls and Texts after being asked to leave me and friends alone) - pulled a knife on my friend - Threaten me by saying if I dont [sic] come home he will kill himself and also tell me I cant [sic] stay at the house. - wont let me pack my furniture and if I do try I receive constant unwanted sexual advances and would stand over me, follow me, guilt me.

1. The application was heard on an ex parte basis by a magistrate on 18 July 2024. An interim order was then made. Ms Blignaut appeared in person. Ms Blignaut was affirmed and confirmed her affidavit was true and correct. Ms Blignaut gave some evidence in support of the application before the magistrate who said she was prepared to grant it. Evidence was given about the state of the relationship and recent contact between Ms Blignaut and Mr McNabb. Some evidence was given about Ms Blignaut's fears of Mr McNabb.
2. Ms Blignaut gave evidence that she 'ended up staying out quite late. And I started getting phone calls from him... not to come home, I'm not welcome there anymore... he would demand that I would share my location with him and... that he would come and pick me up because I can't be doing that stuff'.
3. Relevantly, for present purposes Ms Blignaut did not give any evidence, in addition to the affidavit, about sexual conduct by Mr McNabb against her.
4. Mr McNabb objected to the order against him so that a hearing for a final family violence restraining order was set down. The hearing for the final order occurred on 22 January 2025.

1. A search warrant under s 101X(2) of the Defence Force Discipline Act 1982 (Cth) was given to an investigating officer to obtain property of Mr McNabb. A copy of the search warrant was annexed to Mr McNabb's affidavit. The search warrant set out alleged service offences including sexual intercourse without consent and sexual assault in the third degree.[7]
2. In his affidavit Mr McNabb deposed that the seizure of his mobile phone, in accordance with the search warrant, occurred on 10 December 2024. This was, accordingly, about seven weeks prior to the final hearing for the restraining order.
3. Mr McNabb also deposed that some time after applying for the family violence restraining order, Ms Blignaut made a report to the military police that he had sexually assaulted her whilst they were on holiday together in Bali in June 2024.
4. Accordingly, Mr McNabb was aware of this allegation well before the hearing of the final order. Mr McNabb's phone was returned in March 2025.

1. At the commencement of the hearing, counsel for Ms Blignaut made a brief opening. In this it was said that Ms Blignaut 'will give evidence regarding the family violence perpetrated by the respondent, including threats, harassment, sexual assault, stalking, emotional manipulation and coercive control'.

1. There was not at this time, or indeed at any time during the hearing, a submission that the allegations of sexual assault or stalking took Mr McNabb by surprise. There was no application at any stage for an adjournment of the hearing nor any reference by Mr McNabb or his counsel that these allegations could be met, or proved to be false, by SMS messages on Mr McNabb's mobile phone, which had been seized by the military police.

1. Ms Blignaut then gave evidence followed by her mother, Ms Ihlenfeldt. Mr McNabb then gave evidence in opposition to the restraining order being imposed. Counsel for Ms Blignaut and Mr McNabb then gave closing submissions. His Honour then reserved his decision which was given on 30 January 2025.

1. Relevantly, for present purposes, Ms Blignaut gave evidence about a holiday she had with Mr McNabb in Bali. Whilst there was no specific evidence upon the date of this, it is reasonable to infer that it occurred in about June 2024. Certainly, it was before the application for the restraining order.
2. On this topic Ms Blignaut said that in Bali Mr McNabb was constantly nagging her for sex and would not listen when she said no. She said that Mr McNabb would try and force himself onto her and she continued to say no and did not want to 'do it'. Ms Blignaut gave evidence of one occasion, when she was 'pretty much' asleep, woke up to Mr McNabb being on top of her. She did not know what to do so did not say anything. At the time he was trying to have sex with her. Ms Blignaut said they did have sex but she did not consent to this. She said she had been pretty clear during that entire trip she did not want to be intimate with him. The incident occurred for about 10 minutes.
3. In the morning she told Mr McNabb that she did not want to do anything and was not comfortable with him constantly asking her and it needed to stop. This evidence was clearly referable to sexual intimacy.
4. Ms Blignaut gave evidence that after the Bali trip she did not want to stay with Mr McNabb and stayed at a friend's house, Ms Katelyn McLaren.
5. Ms Blignaut then gave evidence about events that occurred in the period following this.
6. Ms Blignaut gave evidence that at one time when she went back to their residence to pack up some of her things, Mr McNabb said she was not going to get any of them unless she slept with him. Ms Blignaut said that a bit after that Mr McNabb pushed her onto the bed and was holding her down trying to talk to her and trying to put his hand in her pants. She said that overall this interaction lasted maybe 5 - 10 minutes and she continually said no.
7. Ms Blignaut also gave evidence that Mr McNabb showed up to Ms McLaren's house whilst she was there. She did not know how Mr McNabb knew that she was there. However, she said that she recently found out that he had access to an app called Tile, which showed her exact location. Ms Blignaut said she did not realise that until the 'other day'.
8. Again, I mention that there was no assertion at any time at the hearing that this evidence took Mr McNabb by surprise or there were SMS messages on his phone which were relevant to the issue.

1. During cross-examination, Ms Blignaut was asked whether she threatened Mr McNabb with military and civil action. Ms Blignaut answered that if he was going to take everything she would go and speak to the police. She said she was not threatening him, but she was saying to him that she was trying to civilly separate things and not going to let him take everything.
2. It was put to Ms Blignaut that no domestic violence had occurred, but this was not accepted. However, Ms Blignaut was not specifically cross-examined on her allegations of sexual assault and unwanted sexual demands.
3. Ms Blignaut accepted that throughout her relationship with Mr McNabb she shared her location. This was on an app on her mobile phone. Ms Blignaut said she had 'a Tile if that's what you're talking about'. Then Ms Blignaut again accepted that there was an app on her phone where they would both share locations throughout the relationship. Ms Blignaut said that after they split up, she stopped sharing her location because Mr McNabb was getting aggressive about where she was going. She could not recall the date of this however.

1. After the conclusion of the cross-examination, Ms Ihlenfeldt was called to give evidence. Ms Ihlenfeldt is Ms Blignaut's mother.
2. Ms Ihlenfeldt gave evidence-in-chief that after Ms Blignaut and Mr McNabb began dating she became friends with Mr McNabb.
3. Ms Ihlenfeldt said that she spoke to Mr McNabb on the telephone after he and Ms Blignaut separated. He was concerned about what was happening. Ms Ihlenfeldt did not know that Ms Blignaut was to apply for a restraining order. Ms Ihlenfeldt gave evidence about conversations with Mr McNabb about the separation. Ms Ihlenfeldt said that these conversations were initially with him being concerned and later being angry and hurt and saying things that he should not have said.
4. Ms Ihlenfeldt said that Mr McNabb told her that he could king hit Ms Blignaut and he felt that he could bash her head in. He said that he would leave her with nothing. Ms Ihlenfeldt said that at the time she thought it was probably said out of anger and hurt and did not think much of it. Ms Ihlenfeldt said though that she did become concerned about what he was saying and asked Mr McNabb not to say things like that because she was Ms Blignaut's mother. Also, he could not say things like that regardless of who she was but he continued saying these things. Ms Ihlenfeldt said she did not want to talk to Mr McNabb because he would not stop saying those things. Ms Ihlenfeldt said that this was around the end of his relationship with Ms Blignaut. Ms Ihlenfeldt said that she told Mr McNabb to stop contacting her after, she said, the violence restraining order was broken by him.
5. Ms Ihlenfeldt was asked about whether she had any reason to believe that Mr McNabb might be trying to track Ms Blignaut. Ms Ihlenfeldt said that she was not aware at the time but became aware of it after the fact when Mr McNabb sent her screen shots of Ms Blignaut's location. The screen shots were admitted as an exhibit.
6. Again, there was no indication by or on behalf of Mr McNabb that the allegations made by Ms Ihlenfeldt had taken him by surprise or that there were messages on his phone which could undermine the evidence of Ms Ihlenfeldt.

1. The cross-examination of Ms Ihlenfeldt was brief. Ms Ihlenfeldt confirmed the telephone calls from Mr McNabb and that he would become angry. She said that during the conversations she believed he was intoxicated. She said that at the time she did not believe he would carry out the actions referred to. It was not put to Ms Ihlenfeldt that Mr McNabb did not say the things she had earlier given evidence about.

1. In re-examination Ms Ihlenfeldt said that she now believed that Mr McNabb had the capacity and would follow through with his threats. Ms Ihlenfeldt said she feared that. This change in her opinion, she said occurred after learning of Mr McNabb's behaviour and that she did not previously know all the things that he did. There was no elaboration of these things.

1. At the commencement of his evidence Mr McNabb said that Ms Blignaut had been aggressive to him during the relationship. He said that in 2022 she threw a glass at him. Mr McNabb was then given some text messages dated 19 November 2022, between himself and a friend. These messages mentioned that Ms Blignaut had thrown a glass at him. Although the messages were referred to, his Honour did not allow them to be received as an exhibit, saying they were 'hearsay'.
2. Mr McNabb gave evidence about the end of the relationship at about the start of July 2024. He said that he had never directly threatened Ms Blignaut with violence.
3. Mr McNabb said there was an occasion when Ms Blignaut threatened military action against him. He clarified that there were threats of military and civil action.
4. Mr McNabb said that he had not ever been physically violent towards Ms Blignaut.
5. Mr McNabb said that he had never made unwanted sexual advances to Ms Blignaut.

1. Relevantly, in cross-examination, a number of SMS messages were put to Mr McNabb. These, I infer were from Ms Blignaut's phone.
2. In relation to the allegation of throwing the glass it was put to Mr McNabb that there was an argument whilst Ms Blignaut was doing the dishes and during the argument she dropped a glass. It was put to Mr McNabb that she did not throw the glass at him. Mr McNabb disagreed with this. It was put to Mr McNabb that the argument occurred on a Friday. He said 'I would have to get out me phone and look. I can't recall what day of the week'. It was put to Mr McNabb that he did not have any images of the smashed glass. His response was 'My property got seized'. There was no further elaboration upon what was or might be the consequence of this.
3. On the issue of seizure of the property Mr McNabb said, 'She reported me for sexual assault to the Navy, and they seized all my items'. Mr McNabb said that he had not been allowed to have his phone back and had not received it back. He said that he did not have 'The cloud' or 'Any ability to get those things from his phone'.
4. Mr McNabb did not however say that there were SMS messages on his phone which could undermine the evidence of Ms Blignaut.
5. Mr McNabb denied not having consent to having sexual relations with Ms Blignaut. He said he thought the last time they had sex was in Bali and that was consensual. Mr McNabb said he had consent because Ms Blignaut had initiated it. Mr McNabb said that she was not asleep. It was put to Mr McNabb that Ms Blignaut was asleep, he initiated sex, and he did not have her consent. Mr McNabb answered that she was wide awake and had consented.
6. Mr McNabb also denied that following the trip to Bali when Ms Blignaut was at their house with him he said she could not have her property unless they had sex.
7. Mr McNabb also gave evidence that Ms Blignaut had been cheating on him. Mr McNabb said he had proof of this. When it was put to him that he had not been able to provide any evidence to the court of that, Mr McNabb said it was because his phone had been seized.
8. Mr McNabb also denied a proposition put to him that he put his hands down the waistband of her underwear, when she was trying to collect property from their house.
9. Mr McNabb agreed that after the end of his relationship with Ms Blignaut he continued to contact Ms Ihlenfeldt. However, there was no specific cross-examination about the things that Ms Ihlenfeldt said Mr McNabb had said to her.
10. There was no other cross-examination relevant for present purposes.

1. The closing submissions of both counsel were relatively brief and not material for present purposes, except that counsel for Mr McNabb did not say anything about the seized mobile telephone, or any disadvantage to Mr McNabb by reason of not having his mobile telephone or because evidence given at the hearing was broader than that contained in Ms Blignaut's affidavit to support the restraining order or evidence at the ex parte hearing.

1. The magistrate gave reasons for his decision on 30 January 2025.
2. Firstly, his Honour set out the requirements for the making of an order under s 5A, s 10D and s 10F of the RO Act.
3. The magistrate recounted some of the evidence of Ms Blignaut. This included the sexual allegations about conduct in Bali, as well as the sexual demands upon return and the attempt to put his hands down her pants.
4. The magistrate also referred to the evidence of Ms Ihlenfeldt.
5. Evidence of Mr McNabb was also recounted including his denials of making unwanted sexual advances and having non-consensual sex in Bali. The magistrate recounted Mr McNabb's denial of making sexual requests to Ms Blignaut when she went to pick up goods.
6. His Honour found Ms Blignaut:

... whilst emotional, in her evidence to be reliable and consistent in relation to her evidence. She was not cross-examined on the Bali incident of sex - or attempting sex uninvited. She was not cross-examined on the incident where she returned home and the respondent sought sex ... Whilst the respondent made some denials in examination in chief, in my view, given those issues not being addressed in relation to cross-examination, and given my views on reliability, I find that, on the balance of probabilities, they occurred as alleged.

1. The magistrate also referred to the unchallenged evidence of threats about Ms Blignaut made via Ms Ihlenfeldt.
2. His Honour concluded that Ms Blignaut was subjected to the acts of family violence alleged; and also had reasonable grounds to believe that the conduct of Mr McNabb will continue if an order was not in place. His Honour therefore made a final order for a period of two years.

1. I have referred earlier to the affidavit of the appellant dated 29 April 2025. The affidavit provides background information relevant to the inability to adduce evidence from the appellant's mobile phone at his hearing, allegations of sexual assault in Bali, stalking, allegations of control and the testimony of Ms Ihlenfeldt.
2. The affidavit alleges that after Mr McNabb separated from Ms Blignaut, she became controlling and threatening about how property was divided. Attached to the affidavit and marked 'JM1' are screenshots of SMS messages from Ms Blignaut dated 11 July 2024. The text messages record disagreements between the parties about the division of property. In particular, there is a disagreement about the dishwasher, washer and dryer. Mr McNabb requests taking of the dishwasher with Ms Blignaut to get the washer. She responds 'dryer'. Mr McNabb responds 'what, like both or one?' Ms Blignaut then says 'if you want dishwasher I want dryer'. Then in the next message she says 'just wanting to let you know that if you take things I bought before we were together or take things that we have not agreed on I will be taking this further with the military and civilian legal action'. There is then another few messages about these items and also a 'weed whacker'. As to the latter, Ms Blignaut says 'we agreed I get it'. Then, in what seems to be another message consequent upon the assertion of taking the matter further with military and civilian action, Ms Blignaut says 'we have already discussed what we are splitting. Please stop talking about it. I have called my CPO'.
3. That is the end of those messages.
4. Exhibit JM2 is a copy of the search warrant.
5. Also in his affidavit, Mr McNabb says, accurately, that the application for the family violence restraining order was made by Ms Blignaut the following day on 12 July 2024. Although I note that Ms Blignaut did not assert in the text messages to Mr McNabb that she would, if her demands were not met, file for a family violence restraining order.
6. Mr McNabb attaches as Attachments JM3, JM4 and JM5, screenshots of SMS messages relevant to the trip to Bali.
7. Attachment JM3 is a screenshot of SMS messages on 17 June 2024, after Ms Blignaut and Mr McNabb had returned from Bali. The messages reflect a discussion about continuing to live together. In the messages, Ms Blignaut refers to them being 'broken up'. Mr McNabb says in his affidavit that the context is Ms Blignaut asking him twice whether he wanted to continue to live together whilst broken up, in order to keep their Defence Housing Australia residence. He says that this is only available to de facto and married couples in the military, although I note that this is not specifically contained within the messages. The messages seem to conclude on the basis that Mr McNabb says 'we can see how we feel after your stint at Jacqui's', to which Ms Blignaut replies 'um, sure'. Mr McNabb then responds 'because at the moment I want some space and healing. We could consider it after some time away'.
8. Mr McNabb's affidavit submits that Ms Blignaut's interest in continuing to live with him after the Bali holiday is inconsistent with an allegation of sexual assault during the holiday. With respect, this does not reflect a modern understanding of relationships between partners after a sexual assault may have occurred.
9. In criminal proceedings this is recognised by directions that are usually made under s 39D and s 39F of the Evidence Act 1906 (WA). There, a judge will usually explain to a jury in a case where family violence is relevant, that family violence may include sexual abuse, consist of a single act and experience shows that people may react differently to family violence and there is no typical, proper or normal response to family violence. Further, that experience shows that it is not uncommon for a person who has been subjected to family violence to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner. I think these notions apply equally to an application for a restraining order and undermine the submission of Mr McNabb in his affidavit.
10. Attachment JM4 are screenshots of SMS messages between the parties on 30 June 2024. Mr McNabb sends a message to Ms Blignaut. That message refers to him feeling like there was a lot of miscommunication. It makes reference to Ms Blignaut coming home. It says: 'But when you come home now you want to spend time together and actually hang out'. The message says that Mr McNabb needs Ms Blignaut to tell him what she wants from him, because he has been trying to do his own thing just like she has and it has been hard to figure out what she actually wants lately because he cannot seem to read her because she is so hot and cold with him.
11. Mr McNabb in his affidavit relies upon part of the responding message by Ms Blignaut that includes an admission that he would 'back off completely' if he wanted to have sex and she did not want to. Mr McNabb then submits that this statement made about two weeks after the trip to Bali is inconsistent with Ms Blignaut's allegation of sexual assault occurring during that period. Before quoting the relevant parts of the message, I note that it does refer to conduct after the Bali trip and not during it. Relevantly, the message says:

I feel like you have become complacent with us and if things don't go your way you shut down and hop on the computer and drink all day. When I came home you immediately became touchy and said you wanted to have sex when I was in the living room. Which feels like the only time you want to spend time with me. You want sex. And when I say no to sex or clinginess you back off completely. You can't just say lets watch a movie or lets do something. You expect me to read your mind. You tell me you want me home so I am sleeping at the house. I am there during the day and then you tell me that I'm not doing anything you have asked yet I am trying to do everything you have asked, I tell you where I am going, who I am seeing, but still I'm the one not doing anything. But when I ask for the most simplest of things you can never seem to remember? More effort I feel like I have neglected by you, you have said some horrible things to me over the past couple of weeks which has really pushed me back and I'm trying to figure out how you can have such horrible feels towards me and you stay you still want to be with me but you aren't putting in the effort, you are continuing with your old behaviour.

1. The third screenshot of an SMS message relevant to the Bali holiday as JM5 is messaging from Ms Blignaut that occurred during the holiday. The affidavit alleges and Ms Blignaut gave evidence at the hearing that they were not in a relationship at the time of the holiday and the trip was unpleasant as he would not spend time with her. It is alleged that this is consistent with the SMS messages dated 3 June 2024 during the trip to Bali. Mr McNabb characterises the messages as being flirtatious messaging between the two of them and pictures of them together.
2. The messages provided as Attachment JM5 contain a message and photographs on 3 June 2024 and 4 June 2024. Firstly a message from Mc McNabb saying 'love you'. On 3 June 2024 there is a photograph of Mr McNabb and Ms Blignaut (presumably) sitting on a path close together. There is also a photograph on the same date which appears to be of Ms Blignaut from the chest down showing her lying adjacent to a pool in a bikini. There is, it appears, another part of that message which constitutes a smiling emoji with hearts for eyes. It is unclear who has sent that message, but it appears to be part of the message sent by Ms Blignaut.
3. There is a photograph sent by Ms Blignaut on 4 June 2024 which is a photograph of her sitting at a table and eating what looks like a fruit salad. She is dressed in a top with only thin straps above her chest. That photograph seems to indicate that it is part of eight photographs sent but none of the other photographs are reproduced.
4. The final screenshots of SMS messages with Ms Blignaut are Attachments JM6.1 and JM6.2 and are, as the affidavit states, about allegations by Ms Blignaut that he tracked her location to the extent of stalking her. The messages are dated respectively 31 May 2024 and 13 June 2023.
5. The messages on 31 May 2024 include a question by Ms Blignaut: 'Why did you stop sharing your location with me straight away'. The answer from Mr McNabb was 'so you can have your freedom'. Ms Blignaut responds, that does not mean she does not have freedom and that she thinks Bali will be good for them. Mr McNabb responds 'yeah and me too'. There is then a question by Mr McNabb as to whether Ms Blignaut is ok for a quick call in a bit or did she want her space. There is then a record of a call being missed but without a message being left. It is unclear who made the call.
6. The messaging on 13 June 2023 includes Mr McNabb informing Ms Blignaut that he has booked a dental appointment and is 'doing Muay Thai tomorrow' and roller-skating tonight. During the messaging, Mr McNabb asks Ms Blignaut whether she wants him to book a dental appointment and she replies that she does not know.
7. In the affidavit, Mr McNabb asserts during her evidence Ms Blignaut said that she had recently found out that Mr McNabb had access to an app called Tile, which allowed him to see her location. It is asserted that messages demonstrate that Ms Blignaut would also monitor his location via phone and would become annoyed when he turned his location off.
8. I do not think that the messages bear this character but only that Ms Blignaut made an enquiry about this. It is submitted in the affidavit that the annexures also demonstrate that Ms Blignaut had not recently found out about the Tile app but was aware of it from at least June 2023 and also had Tile installed upon her phone. With respect, the messages do not show that the messaging was about the Tile app.
9. The final SMS messaging between Ms Blignaut and Mr McNabb is Attachment JM7. This reflects messaging between the parties on 5 March 2024. It is asserted in Mr McNabb's affidavit that the interaction demonstrates that despite Ms Blignaut's belief, he was not controlling and did not try to restrict her from seeing her friends. This is said in reference to asserted evidence by the respondent that Mr McNabb was controlling and coercive, citing that he became angry when she spent time with friends.
10. The first SMS message is a question by Mr McNabb to Ms Blignaut of whether she wants to go to the gym tomorrow. Ms Blignaut responds 'no we go today'. Mr McNabb then says 'its getting to [sic] late for me now I'm tired we'll go tomorrow babe'. Ms Blignaut responds 'ok'. There is then messaging about what to do for dinner and as part of this, Mr McNabb suggests pizza and says that he is 'just thinking what's easier for you. You've had a big day'.
11. Ms Blignaut responds that she loves Mr McNabb and that she is going to the gym with Madi and then asks 'is that ok?'. Mr McNabb then asks whether this was to go to a workout or sort out membership. Ms Blignaut responds 'workout' and asks if Mr McNabb wants her to sign them up. Mr McNabb responds that if she could do that, it would be great and 'we'll go in the morning'. Ms Blignaut says 'yay'. Mr McNabb then responds 'You don't have ask [sic] if that's ok just tell me what you're doing so I don't have to worry if you died'. Mr McNabb then adds 'tell me *'. Ms Blignaut then responds 'I'm always gonna check if your [sic] ok with what I'm doing baby'.
12. Mr McNabb then responds 'you're an adult'. This message includes an emoji of laughter with tears and the blowing of a kiss. Ms Blignaut responds with 'your [sic] my other half' and Mr McNabb responds 'you're my baked potato'.
13. I agree that these messages do not of themselves show that on this occasion Mr McNabb tried to restrict Ms Blignaut from going to the gym and seeing her friend. However, they do not necessarily show that he was not controlling. It may be said that Ms Blignaut was checking in with him, whether it was 'ok' was not inconsistent with that. Also, they were made some time before the application for the restraining order.
14. That concludes the SMS messaging between Mr McNabb and Ms Blignaut, attached to his affidavit.
15. It needs to be remembered however that the present issue is not whether, if these messages were before the magistrate, they could have assisted Mr McNabb's defence to the application. The issue is whether together they satisfy the strict tests of admissibility of new evidence on an appeal, set out earlier.
16. The balance of the screenshots of SMS messages attached to Mr McNabb's affidavit are communications with Ms Ihlenfeldt in July 2024.
17. In summary Mr McNabb asserts that the messages demonstrate Ms Ihlenfeldt's positive relationship with Mr McNabb and which did not include threatening or derogatory language about Ms Blignaut. It is asserted that this evidence is inconsistent with the oral evidence given by Ms Ihlenfeldt during the hearing.
18. The first set of messages is on 9 July 2024. From context of the messages, it appears that Mr McNabb and Ms Blignaut were going to see some sort of counsellor on that day. Ms Ihlenfeldt, in messaging Mr McNabb, wishes them good luck and says she wishes that Ms Blignaut 'wakes up and sees you and the love you hold for her'.
19. Mr McNabb responds 'yeah I'm ok yeah I think we're done [sic] be honest'. He also says in the same message that he does not know if Ms Blignaut will show up.
20. Ms Ihlenfeldt asks whether Mr McNabb has managed to tell her fully how he feels and Mr McNabb responds that 'she didn't care'.
21. There is then discussion about how Ms Blignaut communicated during her solo therapist session.
22. During these messages Ms Ihlenfeldt refers to her lack of communication with Ms Blignaut including that the last time she texted her back was on 1 June 2024. Ms Ihlenfeldt says that her heart bleeds for Mr McNabb. She says that she is sorry that Ms Blignaut is doing this to him and truly does not get it.
23. In messaging on 11 July 2024, Mr McNabb sends to Ms Ihlenfeldt a copy of the messaging with Ms Blignaut where she refers to the taking of military and civilian legal action.
24. In response Ms Ihlenfeldt sends a message including 'if you love her, tell her'.
25. Mr McNabb responds with messages that say 'yeah I agree entirely, I think with just all the hateful things we've both done and said we definitely need some time apart. But if the love is real we will end up back together' and 'I'm just hurting and doing things I wouldn't normally do to her'.
26. Ms Ihlenfeldt responds with a message which included a suggestion that he does not give up just yet.
27. Mr McNabb responds that Ms Blignaut 'is my person, and I will wait forever for her but for now we both need to heal, be apart'.
28. Ms Ihlenfeldt's response includes that she prays especially for Ms Blignaut that she sees the love Mr McNabb has for her before it is too late. Mr McNabb in part says that it will never be too late for him.
29. Ms Ihlenfeldt says that her heart is hurting for Mr McNabb and hope they figure this out and that he is a good man. There is further discussion along those lines.
30. On 13 July 2024 there is discussion about Ms Ihlenfeldt having a breakup that morning. On 13 July Mr McNabb also sends a message that says neighbours saw 'Meg' kiss a bloke with a blue ute whilst he was at sea. There is then further discussion about the relationship between Mr McNabb and Ms Blignaut. The messaging on 15 July 2024 includes comments by Mr McNabb on a lack of communication from Ms Blignaut to him. Ms Ihlenfeldt also says that Ms Blignaut will not talk to her. There is then communication about dental work that Ms Ihlenfeldt has had.
31. There are then further complaints by Mr McNabb about Ms Blignaut's lack of communications. The messages conclude with Ms Ihlenfeldt saying that she wished Ms Blignaut would come back and apologise to Mr McNabb and saying that she fucked up, was sorry and can he forgive her. Mr McNabb responds its gone too far for that and he needs to heal. That is the conclusion of these messages from July 2024.
32. I note here that there was no cross-examination during the hearing of Ms Ihlenfeldt which suggested that her evidence was not correct. Also, her evidence was given on 22 January 2025, a long time after the messages attached to Mr McNabb's affidavit. Further, the tenor of Ms Ihlenfeldt's evidence was that the relationship between her and Mr McNabb deteriorated over time after the relationship between him and Ms Blignaut ended. In particular Ms Ihlenfeldt gave evidence about being stunned by Mr McNabb after he 'breached' the violence restraining order.
33. In her evidence-in-chief, Ms Ihlenfeldt accepted that after the separation between the parties she continued to speak with Mr McNabb. She said in effect that they became friends and that the conversation was first about him being concerned and then the conversation turned to him being angry and obviously hurt and saying a few things that probably should not have been said. None of this is inconsistent with the messages attached to Mr McNabb's affidavit. Ms Ihlenfeldt said in her evidence that Mr McNabb said at that later time things like that he was going to king hit Ms Blignaut and ruin her life. After what she described as the breach of the Apprehended Violence Order (AVO), she said that Mr McNabb had contacted her and she asked her partner to phone Mr McNabb and ask him to stop calling her.

Conclusions on the application to adduce additional evidence

1. Overall, I do not think that the new evidence should be admitted in the appeal. I do not think that there are exceptional circumstances, as described above, which mean that evidence satisfies this test. This is because:

(a) The appellant did not seek an adjournment of the hearing so that the evidence could be adduced.

(b) The appellant's evidence was not to the effect that this evidence would prove the respondent's claims to be unfounded.

(c) The respondent was not cross-examined on significant aspects of her claims - and in particular being subject to sexual assaults or attempted sexual assaults. Moreover, there was no suggestion that the evidence of text messages would establish that her claims were false or could not be believed.

(d) The content of the magistrate's reasons, in part reliant on (c) above.

(e) The content of the new evidence, whilst potentially of assistance in cross-examining the respondent and Ms Ihlenfeldt, does not establish a likelihood that their evidence would not have been accepted by the magistrate, and supporting of the application of the respondent.

1. For the reasons set out above, the application will be dismissed.

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

[1] Although the notice of appeal was filed five days after the relevant time limit, for present purposes I will refer to an appeal and not an application for leave to appeal out of time.

[3] Shilkin v Taylor [2011] WASCA 255 [67].

[4] Nugawela v American Express Australia Ltd [2016] WADC 170.

[5] The Chief Executive Officer of the Department of Transport v Messer [2024] WADC 60 [20].

[6] Naidoo v Naidoo [2005] WADC 41 [9] (Eaton DCJ).

[7] Under s 53 and s 54 of the Crimes Act 1900 (ACT) in its application to s 61(3) of the Defence Force Discipline Act 1982.