1 SCOTT J: On 28 July 2003 Woods SM, in the Court of Petty Sessions at Perth, made a violence restraining order against the appellant.

2 An interim violence restraining order had been issued on 23 April 2003 and her Worship ordered that it should continue for a period of two years, as provided for in the Restraining Orders Act 1997.

3 The appellant has appealed against the making of that order on the following grounds:

"1. The applicant have leave to appeal from the whole of the decision of Her Worship Ms Woods SM given on 28 July 2003 in the Court of Petty Sessions at Perth whereby the Learned Magistrate found the complaint proven and granted the defendant the restraining order, the grounds for appeal being as follows:

a) The Learned Magistrate erred in fact and in law in making a violence restraining order against the applicant because:

i) The evidence from the respondent was not sufficient to justify a finding that the applicant was a person who was likely to:

(a) commit a violent personal offence against the respondent;

(b) behave in a manner that would reasonably have been expected to cause the respondent fear that the applicant would commit such an offence; or

(c) that a violence restraining order was appropriate in all the circumstances.

ii) The evidence of violence from the respondent was evidence of violence which occurred on two or three specific occasions during the marriage, all of which was denied by the applicant, and of violence which occurred on 3 November 2002.

iii) As to the incident on 3 November 2002, the Learned Magistrate found that the respondent had "lost the plot" on that occasion.

iv) No allegation of any violence by the applicant was made by the respondent after 3 November 2002.

v) The evidence was that the applicant and respondent were now separated.

(b) The Learned Magistrate erred in fact and in law when finding:

i) that an undertaking provided by the applicant meant that the applicant was precluded from attending Bahai Faith Meetings other than at the Canning Branch of the Bahai Faith. In fact, the undertaking read 'my wife and I agree that I may attend at the same place of worship as her'.

ii) The Learned Magistrate relied in part upon the applicant's attendance at Bahai Faith meetings at which the applicant's wife was present as part of her findings that the granting of a violence restraining order was appropriate in all the circumstances.

iii) It was not open to the Learned Magistrate to find that the applicant was precluded by his undertaking from attending such meetings.

iv) There was no evidence of any violence by the applicant at the meetings he did attend.

v) The Learned Magistrate gave too much weight to the applicant's alleged breaches of the undertaking in attending Bahai Faith's meetings and in attending his son's sporting events when there was no evidence that any violence occurred as a result of those breaches of the undertaking.

(c) The Learned Magistrate erred in fact and in law in finding that she preferred the evidence of the respondent to that of the applicant because:

i) In doing so, the Learned Magistrate failed to take into account, or alternatively did not specify in her reasons for decision, any finding of fact with respect to the evidence of witnesses which had been called by the applicant and who directly contradicted the evidence of the wife on a material matter, namely the regularity of the attendance of the wife at Bahai Faith meetings in the Canning branch of the Bahai Faith leading up to 30 December 2002.

ii) In failing to resolve that issue of credibility the Learned Magistrate was in error and consequently did not properly consider the important issue of credibility between the applicant and the respondent. "

4 At the commencement of the hearing of the appeal counsel for the appellant said that there were three matters complained of, namely:

(1) that there was not sufficient evidence before the Court of Petty Sessions to justify the making of a violence restraining order;

(2) the learned Magistrate's finding as to the proper construction of an undertaking provided by the appellant in relation to an earlier application for a violence restraining order; and

(3) the finding of the learned Magistrate as to credibility.

5 In order to understand the background of this appeal it is necessary to refer to the reasons of the learned Magistrate delivered extempore on 28 July of this year.

6 In summary, her Worship referred to the matrimonial history between the appellant and respondent and earlier court proceedings. Her Worship referred to the fact that there was an undertaking entered into by the appellant on 14 February 2003. That undertaking, in writing, became exhibit 1.

7 Her Worship referred to the fact that since the undertaking had been given by the appellant, there were a number of instances where, in her Worship's view, the undertaking had been breached. That was an important factor in her Worship's ultimate determination. (The handwritten undertaking is to be found at page 28 of the appeal book).

8 The undertaking, her Worship said, was subsequently followed by a court order which was an interim order in these proceedings. The interim order provided, inter alia:

"[That] there be no communication or attempt to communicate by any means with the protected person, not enter upon the premises where the protected person lived or worked, or be within 100 metres of the nearest external boundary of the premises, and not approach within 50 metres of the person protected personally."

9 Whilst it is to be observed that the Court order does not reflect the terms of the written undertaking, both were regarded, and properly regarded, by her Worship as significant.

10 Her Worship then referred to the provisions of the Restraining Orders Act 1997 under which the application was made and, without specifying the section, referred to s 11 and s 12 of that Act which provide:

"11. Grounds for a violence restraining order

A court may make a violence restraining order if it is satisfied that -

(a) unless restrained, the respondent is likely to -

(i) commit a violent personal offence against the applicant; or

(ii) behave in a manner that could reasonably be expected to cause the applicant (or if the application is made by another person on behalf of the applicant, that other person) to fear that the respondent will commit such an offence;

and

(b) granting a violence restraining order is appropriate in the circumstances.

12. Matters to be considered by court

(1) When considering whether to make a violence restraining order and the terms of the order a court is to have regard to -

(a) the need to ensure that the applicant is protected from personal violence;

(b) the need to prevent behaviour that could reasonably be expected to cause fear that the applicant will suffer personal violence;

(c) the welfare of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order;

(d) the accommodation needs of the respondent and the applicant;

(e) hardship that may be caused to the respondent if the order is made;

(f) any family orders;

(g) other current legal proceedings involving the respondent or the applicant;

(h) any criminal record of the respondent;

(i) any previous similar behaviour of the respondent whether in relation to the person to be protected or otherwise; and

(j) other matters the court considers relevant.

(2) A court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance."

11 Her Worship, having referred to those provisions, then dealt with the history of Family Court orders between the appellant and respondent and the evidence called on behalf of each of the parties. Her Worship referred to the fact that the appellant and respondent had married in February 1988 and had one child. They separated in November 2002.

12 Her Worship did not detail the evidence, but made a finding that "in the course of the relationship there was violence perpetrated by the respondent in the relationship".

13 In relation to a particular incident on 3 November 2002, her Worship considered that the applicant (now respondent) had "lost the plot" in the course of an incident. In that respect her Worship referred to the respondent having given evidence about the throwing of pool balls, ripping up of roses from pots and the throwing of clothes.

14 Her Worship referred to the conflict of evidence between the appellant and respondent and the course of cross-examination of the respondent in relation to affidavits filed in the Family Court.

15 It is clear from her Worship's reasons that she considered that the respondent's evidence was preferable to that of the appellant and she said of the respondent's evidence, "The applicant clearly gave evidence in an honest and forthright manner, in my view, that she was fearful of him, and continues to be fearful of him and when he did turn up to these places, she took the matters up with the responsible parties at those particular venues."

16 Her Worship seems to have relied extensively upon her finding that the appellant had breached the undertaking which he gave in relation to the earlier proceedings and which has been referred to earlier in these reasons. In that respect her Worship's finding was:

"In my view, there is simply no need for the respondent to have approached the applicant in any way, shape or form and if he chose to be at the sporting events on the weekend that was not his, then that was a choice he made, but he was deemed to have to abide by this order, and 50 metres is 50 metres, 100 metres is 100 metres - and he disregarded that by applying his own interpretation to get around that, and, in my view, to intimidate his former partner."

17 In approaching the matter on appeal, therefore, it is necessary to accept the findings of the learned Magistrate on questions of credibility. It is not for this Court to substitute its view of the facts for that of her Worship who had the advantage of hearing not only the applicant and the respondent testify, but also from witnesses called on behalf of each of them.

18 There were three primary incidents about which the respondent testified in the course of the proceedings before her Worship. Her evidence was that these were not the only incidents that occurred between the parties but that they were representative of a course of conduct between them.

19 The first of those incidents about which the respondent testified was said to have occurred on 3 November 2002. The respondent had come back from shopping and realised that a tree in her garden was missing. The tree was important to the respondent and an argument developed over the appellant having chopped it down. The respondent then said that she broke the appellant's roses and picked up his pool balls and tried to break them. She said she did that to demonstrate to him how upset she felt. Her evidence was that the appellant came towards her, grabbed her by the arm, twisted her arm, held her tight and pushed her onto the ground. She said she was on the ground for a couple of minutes and then she went to the kitchen to grab the phone and said she was going to call the police. She said that the appellant grabbed the phone off her and she went to the bedroom and threw his clothes out of the house and told him to "leave us alone". She said that after the appellant left the house she called a doctor who came to the house and examined her. She said she thought her knee might be broken because she could not walk properly. She said that the doctor gave her an injection and examined her arm and her knee.

20 She said that the following morning she went to the hospital.

21 In cross-examination the respondent said that in her disagreements with the appellant, if she disagreed with him, he held her and pushed her onto the bed but did not strike her.

22 The respondent also referred to a number of incidents where the appellant had put his hand over her mouth which, she said, hurt her and stopped her from breathing. She said this incidents occurred maybe twice a month.

23 The respondent also testified as to an incident at a soccer club where her son was a player. In that incident, she testified, the appellant had come within two or three metres of her and she said that had made her feel very frightened. She said that she spoke to the soccer coach about the situation and then called her son and told her son that they were "going home". She said that her son began crying and said he wanted to play soccer, but she said they had to go, and they left.

24 The third incident about which the appellant testified was an occasion when she was at a multicultural dance at the Canning Baha'i Community. She said that after she had been there for about half an hour her husband came to the event and was not far from where she was sitting and eventually she left the dance.

25 Other witnesses were called and it is not necessary to canvass their evidence in these reasons.

26 The appellant also testified in the course of the proceedings. His evidence concerning the incident on 3 November 2003 was not substantially different to that of the respondent. In the incident, he said, he did put his hands around her and held her from the back. He said that she fell on her knee. He agreed that she had thrown his belongings outside, but he denied that this was a violent incident on his part.

27 In relation to the incident at the Canning Baha'i Church which was the subject of the original restraining order which was settled by the undertaking, the appellant said that the incident had been settled by his granting the undertaking. In relation to the incident at the Melville Baha'i Church, the appellant said he went there to see his son on the Baha'i New Year which he thought was not a breach of the undertaking.

28 In relation to the incident at the dance, the appellant denied that he had ever approached his wife and it seems that he considered that he had not breached the undertaking.

29 In relation to the cricket match, the appellant said that he had been a coach or assistant coach and very active participant in his son's sporting activities. He said he went to the match to support his son but he did not approach the respondent. He said that the respondent was then some distance away.

30 In cross-examination the appellant agreed that he had gone to the Melville Baha'i meeting so that he could "share a happy moment with his son". He said that he understood that to be allowed by the undertaking he had given.

31 This brief summary of the principal evidence in the hearing below indicates the extent to which credibility was a critical issue. As I have said, there was evidence from the respondent, which her Worship accepted, about the particular incidents and, more importantly, the fact that the respondent was afraid of the appellant and, as her Worship expressed it, "and [she] continues to be fearful of him".

32 Whilst I accept the submissions made by counsel for the appellant that there was no clear evidence of any direct violent assault by the appellant on the respondent, the provisions of s 11 and s 12 of the Restraining Orders Act are such as to permit the Court to make an order where a respondent is likely to behave in a manner that could reasonably be expected to cause the applicant the fear that the respondent will commit such an offence. The making of a violence restraining order is a serious matter with important consequences: McKenzie v Picken [2002] WASCA 113 per Anderson J, at [34].

33 In my view, on the evidence before her Worship, it was open to her to conclude that the applicant for the violence restraining order was indeed in fear of the respondent and her fear was that the respondent may commit a violent personal offence against her.

34 Whilst it may be said that this finding by her Worship was the minimum requirement for an order to issue under s 11 and s 12 of the Restraining Orders Act, in my view, there was sufficient evidence in this case for her Worship to come to the conclusion that the making of such an order was appropriate.

35 As I have said earlier in these reasons, it is not for this Court on appeal to retry the facts. That was a matter entirely for the Magistrate who had the advantage of hearing evidence not only the appellant and respondent, but also witnesses called on their behalf. It is sufficient to dispose of this appeal for this Court to conclude that the conclusion reached by her Worship was a conclusion reasonably open to her.

36 For these reasons I am of the view that the appeal should be dismissed.