DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against the making of a protection order pursuant to the Domestic and Family Violence Protection Act 1989 (Qld) (the Act). The appeal is by way of rehearing on the record.^[1]

2. [2]
   On 17 May 2007 the respondent signed an application for a domestic violence order. A temporary protection order was made on 6 June 2007. On that date the appellant left the family home. The temporary protection order was enlarged on a couple of occasions until the hearing commenced before a Magistrate on 27 August 2007. The Magistrate’s decision was handed down on 18 October 2007.

3. [3]
   The application was based upon alleged domestic violence constituted by intimidation or harassment of the respondent and by indecent behaviour to her without her consent. Pursuant to section 11 of the Act domestic violence may be:

3. (c)
   Intimidation or harassment of the other person;

4. (d)
   Indecent behaviour to the other person without consent.

The Magistrate was not prepared to find on the evidence that domestic violence by indecent behaviour without consent was proven. That may be put to one side.

4. [4]
   The standard of proof mandated by the Act is on the balance of probabilities.^[2]

5. [5]
   The appellant and respondent were married in 1994. They had a daughter in 1997, J and a son in 2001, P. In December 2002 the respondent was diagnosed with breast cancer. She had surgery. From April 2003 through to probably early 2004 they undertook some marriage counselling, the arrangements being made by the respondent. The relationship continued to deteriorate. In 2004 sexual contact ceased. In early 2006 the respondent moved into a spare room in the house. By this stage the relationship can only be described as in a terminal stage. The evidence demonstrated that no semblance of a caring relationship any longer existed between the appellant and the respondent. They were living separately under one roof. Both were conscious property would need to be divided as a number of the exchanges between them made clear. Arguments and accusations about property were a frequent occurrence, involving bad language by both and in front of their children. On any view of it, their behaviour towards each other lacked civility.

6. [6]
   I have read the transcript of proceedings before the Magistrate. I have read the application for the order made by the respondent, the exhibits before the Magistrate comprising in particular a statement which the respondent provided to the police dated 13 July 2007 and diary notes which she appears to have commenced on 3 July 2006 and made until 18 August 2007. Other exhibits consist of a letter and emails reflecting the destructive relationship, some abusive handwriting by the respondent addressed to the appellant and some photographs of damage done on an occasion by the respondent to a door in the matrimonial home.

7. [7]
   There was a conflict in the evidence which the Magistrate recognised. In her reasons she commented that one or other of the appellant or respondent was not telling the truth, or was mistaken. As to this, common experience suggests that when former partners reach the stage these two appear to have reached, objective truth becomes mired in subjectivity.

8. [8]
   The Magistrate’s reasons for judgment contain a thorough analysis of the evidence. She had the considerable advantage of seeing and listening to both the appellant and the respondent.

9. [9]
   It is useful to set out some of the Magistrate’s findings that appear in her reasons:

• The respondent was in a constant state of vulnerability and was of a nervous disposition.

• The appellant was a professional person (a dentist) with a degree of sophistication. His demeanour was controlled. He was in the superior position financially and had a more controlling personality than the respondent who appeared as a person of nervous disposition and somewhat insecure.

• The parties were involved in regular arguments about aspects of any future property settlement, complicated because the respondent was a director of a trust which ran the appellant’s dental surgery. She had been paid an annual salary of $35,000 and otherwise provided with a joint credit card to provide for the needs of the family.

• Arguments occurred regularly, often in front of the children including the use of foul language on the part of both of them.

• The respondent demonstrated paranoid tendencies in relation to her belief that the appellant was accessing her personal laptop computer which led her to confiscate computers the couple owned for a short time. In response, the appellant cancelled the broadband connection to the house without consultation with the respondent. He also at one stage had the telephone line disconnected for a short time. There were also disputes about the credit card limit on the joint account (the appellant unilaterally reduced the credit card limit available to the respondent) and over the ownership of a diary which at one stage the respondent hid from the appellant.

• The appellant regularly told the respondent she was sick (mentally), that she needed help, that she had a personality disorder.

• The respondent’s behaviour on a couple of occasions was strange. This was a reference to the way she behaved at a family event and when she broke open the door to a study in the matrimonial home in the belief that the appellant who was in the room behind a locked door was shredding papers relating to their property interests.

• The respondent appeared to have had little emotional support outside of the marriage. She was a very private woman who had chosen not to confide in anyone in particular.

• The respondent was by no means innocent in arguments and abuse that was exchanged between them. She did not “give as good as she got”.

• The departure of the appellant from the home has settled matters down between the two of them. However issues of property settlement and matters of residence and contact remained to be settled which unless mediation was successful, would result in a long and bitter legal battle between them.

• Where both parties have been verbally, emotionally or physically violent, it was useful to consider whether the evidence showed which was the primary aggressor. In light of the vulnerability of the respondent, the more controlling nature of the appellant, his superior state of mind, particularly for the recent past, the appellant was the primary aggressor. “He was at all times the one capable of moving from the house to relieve the situation. He could have walked away from the behaviour of the respondent which was often provocative but due mostly to her insecurity as a whole and her lack of proper advice in relation to the future settlement of property matters between the couple. There was not the need for him to consistently tell the (respondent) that she was mad, crazy or needed help--- The fact of his altering financial details without consultation thus feeding into the aggrieved’s financial insecurities was intimidating on its own.”

• The respondent was subjectively intimidated by the behaviour of the appellant in constantly referring to her mental state  not in a helpful or supportive way. The reference was insulting and demeaning. The appellant was an intelligent man who would have been aware that such language would reduce the respondent’s already depleted self-confidence.

• The appellant’s behaviour fitted the description of harassment involving as it did a repeated or persistent form of conduct, annoying or distressing, rather than something that would incite fear.

• The respondent was at times herself aggressive and even violent, but this was in reaction to her psychological insecurities and could have been avoided if the parties had sought counselling or financial or legal advice at the time.

• In considering whether there was a likelihood of acts of domestic violence occurring in the future, the history of the marriage and recent separation, the range of issues still to be determined, the pattern which had developed in their relationship of the appellant referring to the respondent’s mental state on a regular basis was not likely to change, nor would the insecurities of the respondent change until matters were settled.

• The Magistrate inferred that there was a likelihood of domestic violence occurring again.

10. [10]
    According to the New Shorter Oxford Dictionary, intimidation is the action of intimidating another. To intimidate is to terrify, overawe or cow. To harass is to trouble by repeated attacks, subject to constant molesting or persecution.

11. [11]
    In directing herself about the law, the Magistrate recorded that when considering the meaning of intimidation, it was necessary to look at the whole of the relationship between the parties and not just a handful of threats over a limited period. She directed herself that it was necessary there be proof that the respondent was in fact subjectively intimidated in order to show there had been domestic violence by intimidation. Harassment involved a repeated or persistent form of conduct which was annoying or distressing rather than something that would incite fear.

Notice of Appeal – Ground 1

12. [12]
    Ground one of the notice of appeal asserted that the findings of fact made by the Magistrate were not properly open on the evidence.

13. [13]
    This ground focussed on the Magistrate’s conclusion that the appellant’s references to the respondent’s mental state was a repeated or persistent form of conduct. Having read and considered the evidence before the Magistrate and putting to one side for the moment the question of the likelihood of domestic violence in the future, I would hesitate to take a different view about the findings of fact which the Magistrate made. The evidence before the Magistrate capable of supporting this finding consisted of references in the respondent’s statement to police dated 13 July 2007, statements in her written application for a protection order, her diary notes and her evidence before the Magistrate. In her evidence before the Magistrate she said that sort of remark had been made to her 20 to 40 times in the course of arguments. In her statement to the police she said that the appellant continually said that she was sick, crazy or stupid which she found humiliating and degrading. She set out a number of specific occasions November 2006, 6 December 2006, 1 April 2007, 17 April 2007, 17 May 2007, Some of these instances appear in her written application for the protection order. In her diary she has written of five occasions on 22 November, 3 December, 6 January and 17 and 29 April 2007. The Magistrate was an experienced judicial officer and had the considerable advantage of observing the appellant and respondent giving their evidence. It is plain that her findings were made in the context of the whole relationship as she was able to glean it from the evidence. She found that the appellant’s remarks that the respondent was crazy, sick, needed help which were at times made in front of the children, were not made out of any genuine desire to see the respondent receive help. Although the Magistrate did not expressly say so in the context of what was occurring and her findings the plain inference is that they were intended to wound and demean.

Ground 2

14. [14]
    Ground 2 of the notice of appeal asserted the Magistrate did not apply the correct test to determine if there had been an act of domestic violence, in particular, an act (acts) of intimidation or harassment.

15. [15]
    In her reasons the Magistrate concluded that the appellant’s repeated statements to the respondent that she was sick, crazy, needed help and so on, in the context of the relationship and the characters or personalities of the parties amounted to intimidation. She found that the respondent was subjectively intimidated by the behaviour of the appellant in constantly referring to her mental state in an insulting and a demeaning way and that the appellant would have been aware that this sort of language “would reduce the (respondent’s) already depleted self-confidence”. She also found the behaviour fitted the description of harassment, a repeated or persistent form of conduct, annoying or distressing, rather than something that would incite fear.

16. [16]
    In considering whether intimidation was proven the respective characters of the parties as assessed by the Magistrate was a relevant matter. In reaching her conclusion about the past intimidation/harassment she applied that assessment to the evidence about the behaviour of each of them in the context of the whole relationship. The Magistrate concluded, as I think on the evidence, she was entitled to, that the appellant’s resort to the accusations of mental illness, to the appellant’s knowledge, demeaned and insulted the respondent, were capable of acting to overawe or cow the respondent’s ability to look after her interests effectively and to an extent did so. The Magistrate did not ignore the respondent’s behaviour in the frequent confrontations but took it into account. She accepted the respondent felt demeaned and humiliated, did not buckle under but continued to try to stand up for herself. So also regarding harassment. She found there was repeated or persistent of these demeaning references which she characterised as a persistent, annoying or distressing form of conduct.

Ground 3

17. [17]
    Ground 3 in the notice of appeal asserted the Magistrate wrongly concluded the appellant was likely to commit a future act of domestic violence.

18. [18]
    The Magistrate’s reasons record that the fact that the parties would continue to be involved in deliberations about the division of marital property, child residence and future contact was not of itself sufficient to conclude that it was likely the appellant would commit an act of domestic violence in the future. Having said that, she recorded that she had considered the history of the relationship, the recent physical separation, the property and child issues still to be determined and the pattern which had developed of the appellant regularly referring to the respondent’s mental state not in a caring or helpful way, but to disparage. She concluded that this pattern absent further counselling was not likely to change in other words, was likely to continue. She therefore inferred on the balance of probabilities that the intimidation/ harassment, the domestic violence, was likely to continue in the future while property and child issue remained to be settled.

19. [19]
    I have considered the evidence and the Magistrate’s reasons for inferring this. The Magistrate recorded in her reasons that there was no evidence of harassment or intimidation occurring after the appellant left the residence when the temporary protection order was made on 6 June 2007. She recorded that she was aware that the respondent was legally assisted in the then upcoming further negotiations or litigation regarding divorce, property and arrangements for the children.

20. [20]
    The domestic violence the Magistrate found had occurred was in the context of both parties living in the one residence. The atmosphere was poisonous. Both admit, as the Magistrate found, that the other was a good parent. However exposed to the poisonous atmosphere, both often, by their behaviour, demonstrated the contrary. Concern about unresolved property issues which were not being addressed in any sensible way fed into the atmosphere. By the time of the hearing changes had occurred. There had been no further incidents of the domestic violence since the appellant had left the home. The appellant was no longer in the same residence as the respondent. Both had access to legal advice and assistance and matters to be settled in the marital break up were being addressed.

21. [21]
    In my opinion the evidence was insufficient to support the inference that domestic violence was likely to occur again, i.e. post the hearing before the Magistrate. It follows the appeal will be allowed. The protection order made against the appellant in the Magistrates Court at Caloundra on 18 October 2007 is discharged.

22. [22]
    There will be no order for costs of the appeal.