S v D[2010] QDC 187

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against a decision of a Magistrate dismissing the appellant’s application for a protection order under the Domestic and Family Violence Protection Act 1989 (“the Act”).^[1]

2. [2]
   The power of a court to make domestic violence orders is set out in section 20 of the Act. That section relevantly provides:

“

1. (1)
   A court may make an order against a person for the benefit of someone else (the other person) if the court is satisfied that—

1. (a)
   the person has committed an act of domestic violence against the other person and a domestic relationship exists between the 2 persons; and
2. (b)
   the person--

1. (i)
   is likely to commit an act of domestic violence again; or
2. (ii)
   if the act of domestic violence was a threat--is likely to carry out the threat.

1. (2)
   A person who counsels or procures someone else to commit an act that, if done by the person, would be an act of domestic violence is taken to have committed the act.

…”

Thus, in order to be entitled to an order under section 20 of the Act the Magistrate had to be satisfied firstly that the respondent had committed an Act of domestic violence against the appellant and, secondly, the respondent was likely to commit an act of domestic violence again.

3. [3]
   The Magistrate gave as the basis for his decision that:

“On the whole of the evidence then I am satisfied that there have been instances of domestic violence, but on balance I find that evidence, the whole of the evidence, falling short of satisfying me that any act of domestic violence is likely in the future…”^[2]

4. [4]
   A person who is aggrieved by an order of a Magistrate’s Court to refuse an application for a protection order is entitled to appeal to this Court it being at the place where the order or decision was made.^[3] An appeal under that section is by way of rehearing on the record and under the rules of Court applying to the District Court or, insofar as those rules can not be applied^[4] to such appeals, in accordance with directions given by a Judge of this Court. If this Court allows the appeal it may discharge or vary any order to which the appeal relates, as the Court considers appropriate.^[5] Alternatively, this Court can make such order or decision as it considers should have been made, and every such order or decision shall take effect on and from the day on which it is made.^[6] Section 66(4) of the Act confers jurisdiction on this Court to hear and determine an appeal duly instituted to the Court. The decision of this Court upon an appeal is final and conclusive.^[7]

5. [5]
   As this appeal is by way of rehearing on the record this Court is required to review the evidence, to weigh any conflicting evidence and to draw its own conclusions. Whilst this Court should give due deference to the Magistrate’s decision and bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence, this Court must reach its own conclusion.^[8]

The evidence

June 2002 – alleged telephone threats during conversation with former husband

6. [6]
   The appellant currently resides in the Gold Coast hinterland with her two children, a son whose date of birth whose is 22 July 1996 and a daughter whose date of birth is 9 November 1997.^[9] Both children were the product of the appellant’s relationship with her former husband, S.^[10] In early 2003 the appellant and S divorced but have maintained a close relationship since that time, particularly in relation to the upbringing of the children.^[11] Before finalising her divorce with S, the appellant entered into a relationship with the respondent and the two were married on 2 November 2003. Following what the appellant describes as a “tumultuous marriage” the parties divorced on 19 November 2008.^[12]

7. [7]
   The appellant began to have serious concerns about her relationship with the respondent in or around late 2005 as what she alleges to be incidents of violence and threats towards herself and the children commenced. Previous to that date, however, there were incidents which caused the appellant some alarm, the first of which occurred in or around June 2002.^[13] That first incident occurred as the appellant was having a telephone conversation with S in relation to arrangements regarding the picking up of the children. The appellant alleges that after approximately five minutes of the conversation the respondent, who had been present the conversation between the appellant and S, grabbed the telephone and began speaking to S saying words to the effect:

“You think you have Sicilian friends? You don’t know who I’ve got. I’ve got people in Melbourne. I’m going to hire a hitman and I’m going to have you killed. You’re finished, you’re dead.”^[14]

8. [8]
   The appellant’s version of events in relation to this telephone call was corroborated by S.^[15] It was submitted in the lower Court on behalf of the appellant that this constituted an act of domestic violence by intimidating the appellant because, although the threat was not directed at her, it was violent and done in her presence and caused her to become fearful of the respondent. Furthermore, it was submitted that even if this incident did not amount to domestic violence because it was not intimidation or a threat directed at the appellant, it was nevertheless evidence of the respondent’s propensity to act in violent and intimidating ways and this was said to be relevant to the likelihood of the respondent committing acts of domestic violence in the future.

9. [9]
   The version of events put forward by the respondent in relation to this incident differs from that of the appellant. It was put to the appellant in cross-examination in the Court below that what had happened was that the appellant and S had begun arguing during a telephone conversation and that the appellant had become visibly upset during the argument. It was further put to the appellant that she had handed the telephone to the respondent saying, “You talk to this fuckwit.” It was further put to the appellant that S had said to respondent words to the effect of:

“I don’t want to talk to you, you put my wife and kids away. I am Sicilian and you’d better watch yourself because I’m linked.”

The respondent replied, “You’re a fuckwit, mate,” and hung up.^[16]

10. [10]
    This incident was not referred to in the decision of the Magistrate. In my view, the incident does not, even on the appellant’s version, disclose an act of domestic violence within the meaning of the Act. However, it does reflect a concerning tendency by the respondent to resort to intimidation when angered. I reject the version put to the appellant in her cross-examination.

Late 2005 – alleged bow and arrow incident

11. [11]
    The appellant alleges that in or around late 2005 the respondent was teaching the appellant’s son how to use a bow and arrow. After numerous attempts by the child to hit the target, the appellant claims she walked towards the target to collect all the arrows so that the child could practice further. However, after she had collected all the arrows she turned around to walk back towards her son and saw the respondent pointing a loaded bow and arrow directly towards her. The appellant claims that she observed the respondent’s face to be extremely concentrated on her with his eyes lined down the sight of the arrow. Upon seeing this the appellant claims that she froze and that her son yelled at the respondent to stop pointing the bow in her direction. The respondent is said to have replied to the child that he was only joking. When the children and their private carer returned to the main dwelling the respondent, according to the appellant said words to her to the effect of, “It would be easy to trip and let go.”^[17]

12. [12]
    The Magistrate was satisfied that this incident had occurred and that:

“there were elements of intimidation in that incident, although not necessarily outright harassment in that incident. Even if was genuinely intended to be a joke, it was, to say the least, a very unfunny one, and I think it can amount to, and does amount to, at least some degree of intimidation”.^[18]

13. [13]
    The respondent denies that this incident occurred and in cross-examination before the Magistrate claimed that the personal carer of the children, L, in corroborating the appellant’s account in this regard, was lying.^[19]

14. [14]
    I am satisfied that this incident as alleged by the appellant did occur and I reject the respondent’s denial in relation to this incident.

15. [15]
    It was contended on behalf of the appellant that although the Magistrate did not in terms conclude that this incident amounted to domestic violence, his reasons for decision indicated that he accepted that the incident reflected poorly upon the character of the respondent and involved a degree of intimidation. This submission should, in my view, be accepted.

November 2006 – alleged assault during business trip

16. [16]
    The appellant claims that in or around November 2006 she was required to travel to North Queensland for business. The respondent accompanied her. The parties began arguing about their relationship and issues associated with finances during the return drive home. In the course of the argument the respondent is said to have struck the appellant in the face with a closed and open hand. The appellant says that she sustained a bruised eye, bruised cheekbone, swollen split lip and abrasions to her chin. She did not report the incident as she was embarrassed and scared that the respondent might physically assault her again. The appellant acknowledges that the respondent had apologised for his actions and she believed he was sincere when providing his apology to her.^[20]

17. [17]
    The private carer of the appellant’s children, L, gave evidence that on the day following the appellant’s return from her business trip she observed that the appellant had visible injuries “to the majority of her face”. The injuries included a bruised eye, bruised cheekbone, swollen split lip and abrasions on her chin. L asked the appellant how she sustained such injuries however no answer was forthcoming. Some two weeks later L again spoke to the appellant who at that time told her that during the business trip the respondent had hit her multiple times in the face following an argument. L suggested that the appellant immediately attend upon the police and report the assault but the appellant stated that the respondent had apologised to her for his actions and that she wanted to give him another chance.^[21]

18. [18]
    The Magistrate stated in his reasons for decision “there’s evidence of actual violence during the business trip in November 2006 where there was an actual assault. The context of it and its severity might be questioned, but I am satisfied that there was an act of domestic violence at that time, a physical act. There is some corroboration of the aggrieved’s evidence in evidence given by [L].”^[22] I am satisfied that this incident as alleged by the appellant did occur and that the Magistrate was correct in concluding that this conduct constituted a physical act of domestic violence.

January 2007 – alleged camping trip incident

19. [19]
    The appellant states that in or around January 2007 she was at home with the children when discussions occurred in relation to the family going on a camping trip. The respondent was present for these discussions. The discussions continued for some two hours and the appellant claims that she observed the respondent become extremely frustrated with the situation as he wanted to have left on the camping trip much earlier in the day. She claims that the respondent became aggressive when her daughter began to cry and he left the main living area to go to an adjacent room of the house. She then heard the respondent return to the main living area and forcibly place something onto a counter. She was startled by this and she returned to the main living area and heard the respondent say words to the effect of, “I should just shoot the bloody lot of you.” As she re-entered the main living area the appellant saw that the respondent was holding a rifle. After approximately five minutes the respondent vacated the main dwelling with the rifle.^[23] This evidence was corroborated by the children’s personal carer, L.^[24] The respondent claimed that he was unable to remember this event.^[25]

20. [20]
    In relation to this incident the Magistrate stated that “I am satisfied that there was intimidating behaviour on this occasion although the words as recorded by [L] do not themselves contain a clear threat to shoot anyone. There was an intimidatory statement, if you like, but there was no clear threat such as, ‘I am going to’ et cetera, et cetera, et cetera.”

21. [21]
    Notwithstanding the respondent’s inability to recall the incident I am satisfied that the incident did take place and that although the words used by the respondent may not have contained a clear threat to shoot anyone (as found by the Magistrate) there was at least an implied threat to do so.

November 2008 – separation

22. [22]
    The appellant states that on or about 20 November 2008 the parties were engaged in a heated argument which resulted in the appellant calling the police to attend upon the home. The appellant claimed she was frightened about the respondent’s aggressive demeanour and that there were several guns on the property in respect of which the respondent constantly demanded access. Upon arriving at the property, the police located an unregistered gun which they seized. The police informed the appellant that the respondent and his brother who was also the property would be leaving the next day. The police then left the property at which time the respondent is said to have yelled out to the appellant words to the effect:

“I am not fucking going until I get everything.”^[26]

23. [23]
    The appellant claims that after this incident she did not feel safe in the home. The respondent and his brother did not vacate the premises the following day and remained living in a pool house located on the grounds of the property some 30 metres from the main house.

24. [24]
    The evidence of the respondent in relation to this incident is that on 18 November 2008 the appellant informed him that the marriage was over and demanded that he move out. He moved into the pool house. His brother had been staying in the pool house for some weeks prior to the separation because the parties had contracted with him to undertake tiling on the entry and verandah of the house. On 20 November 2008 police attended the property and after going to the main residence subsequently attended at the pool house where they spoke with the respondent. The respondent claims that he raised his concerns with a female police officer in relation to the burning of his documents and personal effects by the appellant. He claims that the police indicated they were unable to take any action. He was also informed by police that the appellant had made allegations about his conduct but that the police were not satisfied their claims were genuine and as a result took no action.^[27]

10 December 2008 – alleged threat to shoot out floodlights

25. [25]
    According to the appellant on or about 10 December 2008, at a time when she was having dinner with her children on the verandah of their home, floodlights were turned on and pointed directly in the direction of where they were seated. The appellant claims that the respondent began yelling out words to the effect:

“I am never going to leave this fucking house. I am going to stay and make your Christmas and New Years a misery.”^[28]

According to the appellant at approximately 7:45pm she received a telephone call from S who advised her of a call he had just received from the respondent some 15 minutes previously. The evidence of S in relation to this incident is that the respondent stated to him during the telephone call words to the effect of:

“You should see this place! She’s got it lit up like a Christmas tree. I can’t get any sleep and if she doesn’t turn off the lights I’m going to shoot out every light in the place.”^[29]

26. [26]
    The evidence of the respondent in relation to this incident is that on 10 December 2008 he observed workmen attend the residence and erect a series of floodlights on the main residence. As it became dark these lights were illuminated and pointed directly into the pool house, which has no curtains. The floodlights were left on all night making it virtually impossible for the respondent to sleep. During the course of that day the respondent claims he received a telephone call from S (the appellant’s former husband). S said words to the effect:

“Why don’t you leave the house, you’re stressing the kids.”

The respondent replied with words to the effect:

“All I want are my personal belongings and I will leave.”

S replied to the effect:

“Is that all. I will talk to [the appellant]. If she agrees will you go?”

The respondent said words to the effect:

“Yes.”

The respondent states that he had not heard from S by nighttime so he telephoned him shortly after the floodlights had been illuminated for the first time. During the course of the conversation with S the respondent claims to have said words to the effect:

“You should see this place. It is lit up like a Christmas tree. I feel like popping the globes.”^[30]

27. [27]
    The Magistrate concluded that these words at the very least were unpleasant but that they should viewed in the context of a dispute about the occupation of the property by the respondent and his brother and the retrieval of his own property. In my view there could be no criticism of the Magistrate’s conclusions in this regard. The words were unpleasant and perhaps contributed to the apprehensions of the appellant. However, it was, after all, the actions of the appellant in installing the floodlights and directing them at the pool house which directly led to the words being spoken by the respondent to S. I am not persuaded that these words amounted to an act of domestic violence.

10 December 2008 – alleged abuse of the appellant and security guard at the main house

28. [28]
    The appellant alleges that approximately 8pm the respondent came to the front entrance of the main home and after removing a pair of shoes from a shoe box located at the front door began, without provocation, to yell abuse and obscenities towards her. At the time the appellant was standing in the main living room of the house. She alleges that the respondent said words to the effect of:

““You’re a fucking cunt”, “You’re fucked cunt”, “I’m going to get you you fucking cunt.””^[31]

The security guard rostered at the appellant’s home that night (“F”), quickly moved in the front of the appellant in case the respondent attempted to enter the dwelling. At this time the respondent was standing just outside the sliding doors facing towards the inside of the main dwelling. The appellant claims that she saw the respondent’s attention turn to the security guard and that the respondent said words to the effect of:

“You’re a fucking cunt. Come out here you gutless cunt. You’re fucking dead you big cunt.”

This abuse is said to have continued for approximately five minutes before the respondent began to walk away from the front entrance.

29. [29]
    This version of events is corroborated by the evidence of the security guard, F.

30. [30]
    The version of the respondent with respect to this incident is contained within paragraph 16 of his affidavit. He states that:

“I had not been near the residence since the separation, but was anxious to take possession of personal items such as clothing. I walked from the shed to the verandah of the main residence and retrieved three pairs of my shoes from the “boot box”. As I stepped onto the verandah a person whom I took to be an employed security guard walked to the glass door and stood with his arms crossed in an aggressive and intimidating manner. [The appellant] approached the glass and stood about one metre behind the male with her arms folded. A combination of the breakdown of the marriage and the provocation I had been under since the separation caused me to lose my composure. I took three pairs of shoes from the box and slammed them heavily on the floor. I said loudly to the security guard “what are you looking at, you fucking boofhead. Come out here. You’re a hero behind the glass.” I saw [the appellant] begin to smirk at me. It seemed to me that she was enjoying watching me react, which caused me to feel more upset. I stooped back down to the box and picked up a fourth pair of shoes and when I looked up [the appellant] was still smirking. I looked directly at her and said “And this boofhead is protecting you?”. I then picked up the other three pairs of shoes and walked back down to the pool house. I deny touching the glass.”

31. [31]
    In his reasons for decision the Magistrate noted that what words were actually spoken is a matter of dispute and that the respondent does not contest that there were words spoken and that he said some of them. The Magistrate further noted that it is also in dispute as to whom such words were spoken, whatever the words may have been. Were they, said the Magistrate, spoken to the aggrieved directly or were they directed to the security officer. In my view there can be little doubt that the words uttered as alleged by the appellant prior to the security guard moving in front of her were directed at the appellant. The words uttered after that movement were in my view clearly directed towards the security officer. I find that the accounts of the appellant and the security officer as to the precise nature of the words used by the respondent are accurate and I reject the evidence of the respondent as to the terms used by him on that occasion. The words were, in my view, intimidatory and carried at least an implicit threat that violence may well result. However, I agree with the Magistrate that in assessing the quality of the respondent’s threats it is necessary to keep in mind that they were made in the context of a most unpleasant dispute between the parties following their separation.

10 December 2008 – alleged roller door incident

32. [32]
    It was alleged by the appellant that on the same evening as the abuse of the appellant and security guard, the respondent had forced open a roller door in order to move some belongings. This, it was suggested, constituted wilful damage to property, namely the roller door and thus falls within the definition of domestic violence.^[32] The respondent stated that his conduct was in response to the appellant wrongfully locking him out of property to which he was entitled to have access.^[33]

33. [33]
    The Magistrate found that the actions of the respondent in this regard were not so much the infliction of wilful damage but rather damage done to the roller door by the respondent as he sought to gain access to property which he arguably owned which was within property of which again he arguably was a part-owner. In these circumstances the Magistrate did not conclude that the evidence established that the respondent had caused wilful damage to somebody else’s property.

34. [34]
    In my view that conclusion is plainly correct. I note that the respondent claims that he attempted to unlock the shed with a key which he had used the previous day to gain access to the shed. As the key would not fit in the lock the respondent forced entry by levering up the garage door and sliding under it. I can see no compelling reason to reject that part of the respondent’s evidence as it would appear that he had little if anything to gain by damaging the door in order to access the shed in which his own property (in this case a soldering iron) was located. I note that police were called by the appellant but, having spoken with both parties, police took no other action beyond seizing some firearms.

11 December 2008 – alleged window-tapping incident

35. [35]
    The appellant alleges that at approximately 1:30am on or about 11 December 2008 she was woken by a tapping on her window. She states that she was shocked to see the respondent standing at the window in his underwear. The respondent is alleged to have motioned with his finger across his neck as he said words to the effect of:

“I’m gonna kill you.”^[34]

36. [36]
    This account finds no support in the evidence of the security officer, F, and the allegations are rejected by the respondent. Although not the subject of any specific finding by the Magistrate it seems from a reading of his decision as a whole that he was not satisfied that this incident in fact occurred. In my view having regard to the evidence of the security officer, F, that he continued to observe the respondent from the main dwelling for the rest of the night after the departure from the property of the police officers, the appellant’s allegation with respect to this incident should not be accepted.

The decision of the Magistrate

37. [37]
    Having reviewed the evidence and made findings in relation to many of the allegations of the appellant, the Magistrate concluded that on the whole of the evidence he was satisfied that there  had been instances of domestic violence. However, on balance the Magistrate found that the evidence fell short of satisfying him that any act of domestic violence is likely to occur in the future, or that any threat, if threats had been made, were likely to be carried out. He therefore dismissed the application.

38. [38]
    It is contended on behalf of the appellant that the Magistrate erred by explaining away the respondent’s more recent acts of domestic violence as part of a dispute about the occupation of the property and the retrieval of his own property; and by refusing to infer from past acts of domestic violence that the respondent was likely to commit another act of domestic violence against the appellant. Counsel for the appellant submits that the facts as found by the Magistrate, and facts that were otherwise incontrovertible, proved, to the requisite standard, the respondent’s propensity to verbally threaten and intimidate the appellant in times of dispute. This propensity extended to the intimidation of third parties such as the security officer (F) and the appellant’s former husband (S). The proper inference from the evidence before the Magistrate, it is submitted, is that the respondent was likely to commit an act of domestic violence again by verbally threatening or intimidating the appellant.

39. [39]
    On behalf of the respondent it was submitted that rather than explaining away the respondent’s more recent acts of domestic violence as part of a dispute about the occupation of the property and the retrieval of the respondent’s own property, the Magistrate has properly viewed the separate incidents in an appropriate context. That context, it was submitted, involves the following matters:

1. (a)
   the appellant is an experienced litigant in matters of matrimonial property, having been involved in a protracted contest with her former husband which spanned five years^[35];
2. (b)
   the appellant is comfortable in relationships in which aggression is expressed by both parties, she being content to engage in heated arguments with her former husband which the parties consider to be “par for the course… but people looking on would think it’s heated.”^[36]
3. (c)
   the appellant is a successful property developer^[37];
4. (d)
   had engaged legal representatives in contemplation of proceedings in the Family Court specifically aimed at securing an Order that the respondent vacate the property^[38];
5. (e)
   failed to complete properly the Application initiating the proceeding the subject of this appeal by not disclosing that she had commenced proceedings in the Family Court to obtain sole occupancy of the matrimonial property. That Application was completed the day following that upon which the appellant had sworn an affidavit in support of the Family Court proceedings^[39];
6. (f)
   through her legal representative suggested that the firearms be removed from the premises^[40]. The respondent through his lawyer made a reasonable suggestion to remove them^[41], to which the appellant failed to respond prior to making the application which commenced the proceedings the subject of this appeal;
7. (g)
   was the only one of the two parties to have access to the firearms, as they were in a gun safe located in the matrimonial home which was being guarded by security guards;
8. (h)
   was comfortable handling firearms^[42];
9. (i)
   had engaged security guards to be present at the property 24 hours per day for the purpose of denying the respondent access to the matrimonial home^[43] in circumstances where there was no legal impediment to prevent the respondent so entering; and
10. (j)
    engaged in conduct which was deliberate nuisance to the respondent, such as illuminating with powerful spotlights the pool house in which he was sleeping^[44].

40. [40]
    It was further submitted on behalf of the respondent that a proper consideration of this application requires an acknowledgement that steps were taken by the appellant which were both provocative to the respondent and designed the achieve the object of his removal from the property.

41. [41]
    These matters relied upon by the respondent tend to lessen the cogency of the appellant’s contentions as to the propensity of the respondent to verbally threaten and intimidate others the appellant and others in times of dispute. I note that the only incident of actual physical assault committed upon the appellant by the respondent seems to be the disgraceful incident when returning from a business trip to North Queensland^[45]. More recent incidents of domestic violence should, in my view, be seen as part of the rancorous dispute between the parties concerning occupation of the matrimonial home and, in some cases, in relation to retrieval of his own property by the respondent.

42. [42]
    In his affidavit^[46] the respondent states that he intends to have no further contact with the appellant or with her children. He does not intend to return to the property other than to collect personal belongings or by order of the Family Court. If the respondent does attend the property for the purpose of collecting his personal belongings, he intends to have present independent witnesses to document his conduct with video cameras and photographs.^[47]

43. [43]
    The term “likely” in the context of section 20 of the Act requires something more than meaning more probable than not. It must at least involve a real, not remote likelihood, something more probable than a mere chance or risk.^[48] In my view the material falls short of what is required in order to establish that the respondent is likely to commit an act of domestic violence in the future. The evidence discloses no real, significant likelihood that such an act would be committed in the future by the respondent. The Magistrate was, in my view, correct in his decision not to make a protection order on this evidence.

44. [44]
    Accordingly, the appeal is dismissed. The appellant is to pay the respondent’s costs of the appeal to be assessed.