DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal under the Domestic and Family Violence Protection Act 1989 (“the Act”) against a protection order made on 9 August 2011 against the appellant on the application of the respondent.  The appeal is by way of rehearing on the record:  s 65 of the Act.  There was a hearing which extended over two days in the Magistrates Court.^[1]  In addition, transcripts of the proceeding and decision on an earlier occasion in that court in relation to another matter under the Act between the parties were put in evidence, along with the application for the order dated 25 March 2011, a temporary protection order made on that day, affidavits of each of the parties, and two bundles of material produced on subpoena, a number of police occurrence reports, and the records of a psychiatrist.

2. [2]
   The case is unusual because the domestic violence relied on for making the order was in the form of harassment or intimidation, largely by means of complaints to various authorities about the behaviour of the respondent, some of which alleged criminal behaviour in respect of the child of the parties. There was also one incident of a different nature, causing a private investigator to go to the respondent’s home under the pretence of being a potential tenant, which was also found to be part of a course of conduct. It was submitted on behalf of the appellant that this latter finding was wrong because there was no evidence that the respondent was in fact intimidated or harassed by this incident, that the other matters referred to by the magistrate were not capable of constituting intimidation or harassment, and that in any case there was no proper basis on the evidence upon which the magistrate could properly have found that these incidents had occurred. It was also submitted that there was no proper basis for a finding that it was likely that the appellant would commit a further act of domestic violence, and that the reasons of the magistrate were inadequate.

Reasons of the magistrate

3. [3]
   The magistrate referred to the fact that the parties were married on 24 August 1996, they had separated under the one roof in January 2007 and divorced in 2008, and there are two children of the marriage who were at that time aged 8 and 6; none of this was controversial.  She also referred to the history of domestic violence proceedings; the appellant had filed an application on which a temporary order was made on 30 April 2007, but following a trial that application was dismissed on 7 September 2007.  Reference was made to the fact that the basis of the respondent’s application was a series of false allegations of sexual abuse, the most recent said to have been made by a friend of the appellant on 25 March 2011.

4. [4]
   The magistrate said that she accepted the respondent’s contention that he had been subjected to repeated investigations by several agencies following complaints by the appellant and her friend which were not substantiated against the respondent or his new partner: p 6.  In relation to an allegation of abuse made in September 2007, this apparently followed the dismissal of the earlier application by the appellant; the appellant took her daughter to a hospital emergency department, and subsequently the daughter was referred to Bravehearts for counselling from November 2007.  Subsequently a federal magistrate had ordered that the counselling be wound up.  The magistrate found there was no foundation for the referral of the daughter for sexual abuse counselling, and thought that the timing of the referral was significant in the context of proceedings in the Federal Magistrates Court by the respondent seeking custody of the children.  As a result of these allegations, the access of the respondent to the children was greatly reduced.  (Subsequently, after a two-day trial, orders were made by consent for joint responsibility and shared care.)  She found that the referral of the two-year-old daughter to hospital and counselling for sexual abuse “could be construed as motivated by malice towards the” respondent:  p 9.

5. [5]
   In March 2008 there were threats alleged against the children, but following a police investigation these allegations were regarded as unfounded. In early 2008 there was a complaint by the appellant’s friend which led to the respondent’s house being searched by police for guns; no guns were located. The magistrate did not accept the evidence of the appellant’s friend in relation to her explanation for making the complaint about the respondent, having formed the view that her credit was impaired by her strong connection and association with the appellant: p 9.

6. [6]
   The magistrate noted that it had been conceded that the appellant had hired a private investigator to pose as a tenant in order to come into the respondent’s home, for the purpose of investigating whether the respondent was earning any income from rental which had not been advised to the child support agency: p 8.  The magistrate found (p 9) that “this conduct also demonstrated a course of conduct that amounts to intimidation and harassment.”  The magistrate referred to a recent report in relation to the most recent allegation, which noted that no offences were detected during interview.  The magistrate also noted that the report expressed a suspicion that the allegations may be of a vexatious nature:  p 7-8.

7. [7]
   The magistrate then said (p 9):

“Agencies are available to parents with legitimate and genuine fears in relation to the welfare of their children.  Only [in] the most exceptional circumstances could allegations of referral to these agencies amount to domestic violence.  In this case, however, I have formed the view that the [appellant] and her associates have made referrals for strategic advantage against the [respondent].  These agencies have separately concluded that the allegations are without foundation.”

8. [8]
   She found the respondent to be a witness of credit, and accepted his assertions that he was distressed by what had happened to him: p 10.  The magistrate then went on to refer separately to the most recent allegations in March 2011, the allegations in June 2008 in relation to the gun, and the allegations in May 2008, where investigating officers concluded that the allegations were not founded, and earlier allegations that the respondent had hit his daughter in the stomach, and reference was made to evidence of the child psychiatrist and a paediatrician^[2] in relation to certain issues with the son:  p 11.

9. [9]
   The magistrate found that the respondent had demonstrated that the appellant had committed acts of domestic violence, being intimidation and harassment, and that those acts had adversely affected his emotional wellbeing, and noted that the parties will have ongoing contact for many years to come because of the situation with their children: p 11.  On that basis, she made a protection order.  She said that the order would not preclude the reporting of genuine concerns in relation to the children’s welfare, but reiterated that she was satisfied on the evidence that the appellant and her close friend on her behalf had made unfounded allegations to several agencies on a number of occasions since 2007, and that these were completely without foundation:  p 12.

Adequacy of the reasons

10. [10]
    It was submitted on behalf of the appellant that it was unclear whether the magistrate had found that the appellant was responsible for all of the incidents, and whether they were found to be acts of domestic violence, other than the particular incident which was expressly found to be intimidation or harassment. It was further submitted that there was no evidence that the incident when the private investigator was sent to the home was found to cause intimidation or harassment to the respondent, so that this could not amount to domestic violence. It was submitted that the magistrate, having said that a complaint to authorities could be an act of domestic violence in exceptional circumstances, failed to explain what made the complaint to authorities so exceptional as to amount to domestic violence. It was also said to be unclear what the significance was of the finding that the referrals were made to the strategic advantage.

11. [11]
    In my opinion, however, the reasons are clear enough: what was exceptional about these referrals is that they were found to have been made for strategic advantage, and hence for a collateral purpose. They were in effect an abuse of the process established by the various bodies for accepting and dealing with complaints. It is clear enough from the reasons of the magistrate that it was this, coupled with the number of complaints and the fact that they were found to be unjustified, which made the circumstances exceptional.

12. [12]
    It was submitted that there was a failure to deal with the specific allegations, as to whether they amounted to an act of domestic violence, and a failure to explain how and why each particular complaint amounted to an act of domestic violence, so as to be the foundation of an order under the Act. That submission is without substance; the findings of the magistrate are perfectly clear to me: that the allegations of false complaint on the part of the respondent were accepted by the magistrate, who found that they had not been made bona fide but for a collateral reason and were therefore an abuse of process, that the respondent had been genuinely distressed by this course of conduct, and that overall the course of conduct amounted to harassment or intimidation and therefore domestic violence.

13. [13]
    The reasons are perhaps a little disorganised, in that the magistrate did not proceed systematically through the various issues, and deal with them entirely in sequence, but the judgment was delivered ex tempore at the end of the second day of the hearing, and when judged by the standard appropriate for an ex tempore judgment, in my opinion the reasons of the magistrate clearly enough reflect the basis upon which she made her primate findings and her ultimate findings.

14. [14]
    There was some complaint about a failure to make an express finding about an act of domestic violence in relation to each particular complaint, but I think this misses the point; the magistrate’s approach was that there had been a series of actions on the part of the appellant which reflected a course of conduct which taken overall amounted to intimidation or harassment.^[3]  It was that course of conduct which therefore constituted the act of domestic violence.  Whether or not such a finding was open or correct on the evidence I shall address separately below.  The magistrate’s reasoning, however, is clear enough.

15. [15]
    The same applies in relation to the finding that it was likely that the appellant would commit a further act of domestic violence. In relation to this, the magistrate noted that the parties would continue to have contact in relation to the children for some time, and referred to matters which suggested that there was an absence of remorse or contrition on the part of the appellant, or even to a large extent acknowledgement as to the inappropriateness of her behaviour in this respect. In these circumstances, it is clear enough that the magistrate was willing to draw an inference that further improper complaints were likely unless something was done about the matter. Again, the reasoning process is clear enough. I shall address the substance of the analysis later.

16. [16]
    There was only one matter in the reasons which concerns me a little: on p 11 the magistrate said:

“I note that in cross‑examination [the appellant] vehemently denied asserting that [the respondent] had punched their daughter in the stomach.  I accept that the assertion by [the respondent] when put in questions to [the appellant] is consequently demonstrated to be true.”

17. [17]
    There are two potential errors suggested by this formulation of the magistrate’s reasoning on this point: whether the magistrate was treating what was put in cross‑examination as evidence which was open to be accepted, and whether the magistrate was basing a positive finding on the rejection of a denial.  On balance, however, and bearing in mind the material before the magistrate referred to below, I think this reflected some infelicitous expression in the reasons rather than an actual error on the part of the magistrate.  The issue was as to the content of the allegations the appellant had made, and there was other evidence about that content, from the respondent and in the police occurrence report in relation to the incident.^[4]  In this context, and bearing in mind that the magistrate appears generally to have accepted the respondent’s evidence as credible, a rejection of the appellant’s denials would lead naturally to a finding on the basis of that evidence that the appellant had made such an assertion when complaining to police.  Accordingly, I do not regard this as a matter of any significance in itself.

The respondent’s case at the trial

18. [18]
    The respondent’s affidavit gave some background details and then outlined the respondent’s case in support of the application. The first part of the affidavit was in the nature of submissions rather than evidence, but it served at least to give clear notice of the case the appellant had to meet. In paragraphs 33-91 the respondent set out a detailed chronology of the relationship from 2006 until 2011.  The chronology covered a good deal of behaviour other than complaints to authorities, which was apparently included in order to show the hostility of the appellant towards the respondent, and that she was manipulative.  None of this was treated as part of the relevant conduct by the magistrate.

19. [19]
    The actual complaints to authorities referred to in the chronology were as follows:

1. (a)
   On 28 April 2007 the daughter received a small abrasion near her naval when her skin was pinched by the seatbelt buckle when the respondent put her in a baby seat in a car.  The following day the appellant took the children to the residence of her friend, and contacted police with an allegation that her son had said that the respondent had hit the daughter five times in the stomach.^[5]  Police attended the friend’s flat, and the following day the children were interviewed where a version was obtained consistent with the respondent’s version.  Annexed was the first page of a letter which a solicitor (evidently acting for the respondent) had written to the appellant’s solicitor giving details of what was found on an inspection of police material.  It included a statement that “the police spoke with the informant who was still adamant that her daughter had been assaulted by way of being punched.”^[6]  Also annexed was a submission in writing to the hearing of the appellant’s domestic violence application on 7 August 2007 in which the police officer who was making submissions on behalf of the appellant in relation to that hearing advised that the allegations in regard to the daughter were no longer part of the application, as they had been resolved by police investigation.

2. (b)
   On 7 September 2007, the same day the appellant’s domestic violence application was dismissed, the appellant took her daughter to a children’s hospital with an allegation that the daughter had been sexually abused by a female friend of the respondent.^[7]  This was reported to child safety by the hospital authorities;^[8] the respondent said that neither police nor child safety contacted him in relation to this allegation.  However, he claimed that on 13 November 2007 the appellant referred the daughter for sexual abuse counselling with Bravehearts.^[9]  Subsequently, in the Federal Magistrates Court proceedings, the appellant was ordered to provide documentation regarding this counselling, but did not do so.  The respondent obtained a report from Bravehearts, the first four pages of which were annexed to his affidavit.^[10]  This said that the child was referred by someone from the Department of Child Safety on 17 September 2007, with the information that the daughter had disclosed to the appellant and the appellant’s friend that she had been sexually assaulted during a contact visit with the respondent, by a female friend of his.  The summary and recommendations part of the report (which was not included in the annexure) noted that the daughter had made no direct disclosures regarding sexual assault.

3. (c)
   On 6 May 2008 the appellant alleged, apparently during the last day of counselling, that the daughter was being sexually abused and the son was being physically abused by the respondent.^[11]  Police and child safety officers investigated, and questioned the respondent.  On 4 June 2008 a child safety officer wrote to the respondent, advising that the outcome of the investigation and assessment was recorded as unsubstantiated, that no further action would be taken, and that the department “has no evidence that the children have suffered harm or is [sic] at significant risk of future harm.”  The police occurrence report^[12] indicated that the disclosure to the counsellor was by the child, not the appellant.  Each of the children was interviewed by the police, who concluded that there was no evidence to suggest that this offence had occurred.

4. (d)
   In June 2008 the respondent was contacted by police advising that there had been a complaint that he had a gun in the house and was going to use it on the appellant.^[13]  The respondent was away from Brisbane at the time, but when he returned a police officer and a child safety officer visited his house, but no gun was found.  According to the respondent’s affidavit, the appellant claimed that it was her friend (named) who made the call to police.^[14]  The police occurrence report^[15] says that the information was received from the appellant and that the matter was unfounded, with no evidence to suggest any offence had taken place.

5. (e)
   In early 2009 the appellant took the son to a psychiatrist without the respondent’s knowledge, though he discovered this later from the son and spoke to the psychiatrist.^[16]  The affidavit did not clearly disclose anything said by the psychiatrist about the nature of the appellant’s complaints, but the psychiatrist gave evidence which implied that the appellant had complained that the daughter had been sexually abused while in the respondent’s care.^[17]

6. (f)
   In April or May 2009 the respondent had advertised a room for rent in his house, and the appellant hired a private investigator to come to the house posing as a potential tenant.^[18]  He was shown through the house, and his report was then sent by the appellant to the Child Support Agency in an attempt to extract more child support from the respondent.

7. (g)
   On 25 March 2011 the appellant or her friend called police and made an unsubstantiated allegation that the respondent and his fiancé had sexually abused both the children.^[19]  The respondent was contacted by police at work and they visited his home.  The children were taken out of class and questioned by police at school.  The police had detailed information about the background situation.  The affidavit did not contain details of the outcome of this particular investigation, but the police occurrence report^[20] concluded that the allegations were unfounded, and that they may be of a vexatious nature; it confirmed that they were made anonymously, by someone who knew the children’s full names and ages, and the full name of the respondent’s partner.

20. [20]
    As to the motivation for the complaints, the respondent’s affidavit said that in January 2007, when the appellant informed him of her intention to separate, she offered him only two days’ access per fortnight to the children and began blocking the respondent’s time with them.^[21]  In April 2007 the respondent advised her that he wanted shared care with equal time with the children.  The effect of the first complaint to the police and the appellant’s subsequent domestic violence application was that because of the protection order the respondent was denied any access to the children, and the appellant made an application to the Federal Magistrates Court using the protection order as a basis to justify her having sole custody of the children.  The application to the Federal Magistrates Court sought only access supervised by the appellant, and subject to psychiatric assessment of the respondent.

21. [21]
    The respondent said he felt intimidated and harassed by this course of conduct.^[22]  He was cross-examined, but it does not appear to me that any significant concession was made during that cross-examination.  In circumstances where the magistrate generally accepted the evidence of the respondent, and where, understandably enough, that conclusion was not challenged for the purposes of the appeal, it is not necessary for me to deal with the details of the cross‑examination.

The appellant’s case at the trial

22. [22]
    The appellant’s affidavit also contained background details, and the appellant dealt with the various allegations of complaints to authorities. In relation to the incidents on 25 March 2011, she denied that she made the complaint.^[23]  She said the first she knew about it was when she was talking to her son in the evening by telephone and he told her that police had seen him at school and questioned him.  She said that at about midday on the following day she was advised by a female police officer that an anonymous informant had made a complaint of a sexual nature, that she was one of the officers involved in investigating it, and that no further action would be taken.

23. [23]
    The appellant said that on 30 April 2007 a temporary protection order was made which extended until 7 September 2007, when the application was dismissed.  She conceded that in that application she referred to an incident where she claimed her daughter had told her that the respondent had hit her in the stomach four or five times, but that when the police interviewed the children they did not want to talk or answer questions.^[24]  She said that the proceedings were commenced in the Federal Magistrates Court on 15 May 2007, and on 23 July 2007 interim consent orders were made.  There was a hearing set down for the end of January, but during the period allowed for it, matters were resolved by negotiation except for the question of winding down her daughter’s counselling with Bravehearts, the location of the changeovers and the children’s school and kindergarten.

24. [24]
    The appellant said that on 7 September 2007 her daughter had complained to her that a lady had kissed her wee-wee.^[25]  She took her to the hospital where she was told to contact the Department of Child Safety, and did so.  She said that the referral to Bravehearts was from the Department.

25. [25]
    She said that in March 2008 both children were expressing fears that the respondent was going to hurt her, but she claimed that this had never been reported to any authorities.^[26]  On one occasion the son was upset from the moment he woke up and at one point said that “Daddy has a gun and he’s going to shoot you.  I don’t want Daddy to shoot you.”  She claimed that she did not “initially” report this to child safety or anyone else, and did not ask or encourage anybody else to report the incident.  She said on 6 May 2008 the psychologist from Bravehearts had advised her that the daughter had made a disclosure and she would be making a report to child safety, who rang her the same day and advised that they would interview both children.  Two days later she attended the Wynnum police station with the children, who were interviewed independently, though she claimed she had made no allegations, and was not interviewed.

26. [26]
    The appellant said that in December 2008 she applied for a change of assessment in relation to child support, and that she included information that she had heard that the respondent was renting out rooms in his house.^[27]  The child support agency arrived at a reassessment in February 2009, but said there was insufficient evidence that the respondent was earning additional income from renting rooms in his house.  She was subsequently advised by them that a report from a private investigator should be adequate evidence of additional income, and on that basis she engaged a private investigator who provided a report which in turn was passed on to the agency.  Ultimately this was not regarded by the child support agency as adequate evidence of income.

27. [27]
    She agreed that in December 2009 she received a referral from a doctor for the children to be seen by a child psychiatrist, which she claimed she informed the respondent of, though he did not consent to it.^[28]  She said that the son was also seen by a paediatrician, and that both had reported similar problems and recommended review by a psychologist.  There were annexed to the affidavit a number of emails or text messages from the respondent.

28. [28]
    The appellant was cross-examined by the respondent, who was not represented at the hearing. The respondent conceded that she had sent a topical cream to the respondent with the daughter at a time when the respondent had access to her for the purpose of treating a fungal yeast infection; the cream had to be applied to the daughter’s genitalia: p 16-17.  The appellant spoke of the close relationship that her friend had with the children (p 18) and said that this friend had telephoned the police alleging that the respondent had a gun and was going to use it:  p 19.  She denied, however, that she knew in advance that her friend was going to do this:  p 25, 26.  She claimed that she had not been involved in the allegation that was made on about 6 May 2008, and that her daughter had simply made a disclosure to the counsellor, which was passed on by her to the police or Department of Child Safety:  p 23.  She denied that she called the police in relation to the incident in March 2011:  p 26, p 27.

29. [29]
    There were some answers given by the appellant during cross-examination which, even from the transcript, suggested doubts as to her credibility. At p 17 she said that she did not have concerns that the daughter was being sexually abused while in the respondent’s care, whereas such a complaint must have been made by her because of the basis upon which the referral was made to the Bravehearts counsellor.^[29]  Their report, when providing details of the reference, clearly indicates the basis of the reference was sexual assault, which is inconsistent with the appellant’s answer at p 20 that the daughter was not being counselled for sexual assault.  She also denied that she ever accused the respondent of punching the daughter in the stomach:  p 21.  That is inconsistent with the police records in relation to the incident in April 2007, which record that the appellant was adamant that her daughter had been assaulted by way of being punched.^[30]  The magistrate rejected the evidence of the appellant, and that conclusion was not challenged before me.  I merely note that, apart from the advantage the magistrate had of actually seeing the witnesses, from the transcript a rational basis for that conclusion is apparent.

30. [30]
    Apart from the parties, the appellant’s friend gave evidence, having been subpoenaed by the respondent. This meant he could not cross‑examine her, and she was not cross‑examined by counsel for the appellant.  She confirmed that she had on 7 September 2009 heard the daughter say to the appellant that a friend of Daddy’s had kissed her on the wee-wee:  p 39.  She said that she had telephoned police in 2008 to say that the respondent had a gun in his home; she denied that this was at the request of the appellant:  p 39.  On the other hand, she denied that she made a phone call to police on 25 March 2011 alleging that the children had been sexually abused by the respondent:  p 40.  Because there was no opportunity for the respondent to cross‑examine this witness, there was no proper testing of her credibility, but the magistrate had the advantage of having seen her in the witness box, and no doubt in the light of the whole of the evidence it was obvious enough that she was a close friend of the appellant, and I think the magistrate was entitled to discount her evidence on that basis.  In circumstances where nobody admitted to making a complaint, with considerable detail few people would know, which somebody must have made in 2011, and where the evidence did not suggest any other plausible complainant, it would be understandable for the magistrate at least to suspect that one of them must have made that complaint and was therefore lying.

31. [31]
    There was also brief evidence from a psychiatrist who was called by the respondent, although it appears that the respondent in doing so was assuming that she would give certain evidence which in fact she did not give.

Evidentiary basis for the findings

32. [32]
    It was submitted that there was no proper basis for the finding that it was the appellant who had referred the child for counselling to Bravehearts, in circumstances where the report of that organisation indicated that the referral to them had come from the Department of Child Safety. That is correct, but the referral occurred as a result of the appellant’s complaints to the authorities at the hospital, which were referred by the hospital to the Department of Child Safety. In these circumstances, although the appellant was not the party who immediately referred the matter to Bravehearts, it was the actions of the appellant in making the complaint, which she now appears to disavow, that led to the referral of the daughter to Bravehearts for counselling. It is clear from the report that the counselling was in the context of the daughter’s being a victim of sexual abuse.

33. [33]
    As to whether there was a problem in the respondent’s failing to attach the entire report, this was raised in cross‑examination (p 31), the respondent gave what on the face of it looks like a plausible response, and the matter was not pursued.  The full report was in the subpoenaed documents.  In those circumstances, the absence of the full report from his affidavit was of no consequence.  The same applies to the point that the child may have been suffering some anxiety as a result of her parents’ separation as well, which is no doubt commonplace, and the fact that there were some further counselling sessions after the intervention of the Federal Magistrates Court.  It appears that this was on the basis that the counselling was to be wound down in an orderly fashion.  That was really a matter for that court, and did not in my opinion provide any justification either for the counselling or the original complaint.  The real point here is that there was a complaint of sexual abuse by the appellant which was not sustained, and which she now appears to disavow, which suggests that it was not a genuine complaint at the time.

34. [34]
    As to whether there was a basis for treating the call from the private investigator as part of the course of conduct which amounted to intimidation or harassment, in my opinion on the way in which the magistrate analysed the matter that was something which was open on the evidence. It is not a question of whether that particular incident intimidated or harassed the respondent, but whether it was part of a course of conduct which did so.

35. [35]
    There were some matters where the findings must have been on the basis of inference. The complaint by the appellant’s friend to the police in relation to the gun was said to have been made by the friend but both of them denied that it was made at the instigation of the appellant, yet the magistrate must have proceeded on the basis that the appellant was responsible for it, possibly on the basis of the police report. In any case, that may have been available as an inference, as a result of the rejection of the evidence of the appellant and her friend, on the basis that it was a more plausible hypothesis than the proposition that the friend acted spontaneously. That was certainly a possible explanation, but it would be perhaps a little surprising in the circumstances for the friend to involve herself in the dispute between the parties in this way without first at least obtaining the approval of the appellant. In the circumstances, I think that, bearing in mind that the standard of proof is on the balance of probabilities, this finding was fairly open to the magistrate.

36. [36]
    The same applies in relation to the finding that the appellant was responsible for the complaint to the police in March 2011. This must have been based on the proposition that the appellant was the only plausible candidate for such a complaint, either acting personally or through her friend. No other alternative explanation was suggested by the circumstances at the trial, and, bearing in mind the standard of proof, again I think that inference was fairly open. It was of course a matter for the magistrate whether she rejected the denials, but she did do so and was prepared to draw the inference notwithstanding those denials.

37. [37]
    It does not appear that the magistrate treated the taking of the son to a psychiatrist without the respondent’s knowledge or consent as being part of this course of conduct; there was certainly no mention of it, even though it was a matter alleged in the respondent’s material. Subject to that, it appears that the magistrate accepted the respondent’s evidence and proceeded on the basis that all of the complaints to authorities referred to earlier had occurred, and relied upon all of them together with the use of the private investigator to come to the house. I consider that that conclusion was certainly open on the evidence, bearing in mind the conclusions as to the parties’ credibility, except for the incident on 6 May 2008, where the police records confirm that the allegation came initially from the daughter.  There was only passing reference in the magistrate’s reasons to this incident, at p 10-11, to the fact that the police regarded the allegation as unfounded, and it is not clear that this was treated as a relevant incident by the magistrate.  If so, that was an error by her.

38. [38]
    As to the question of whether these complaints were motivated by some collateral purpose, it does appear that all of the complaints proved to be unfounded, which is suggestive, and it also appears that there was some connection in time with the various steps in the dispute between the parties generally, and that suggests that the complaints were made for a collateral purpose as found by the magistrate. In my opinion, again that finding was fairly open on the evidence as a whole.

39. [39]
    There was also a submission that there was no proper basis for a finding that it was likely that there would be further acts of domestic violence. In context, this must have meant a continuation of the course of conduct. The magistrate was conscious of the fact that there would be continuing contact in relation to the children, and, bearing in mind the lengthy period over which the course of conduct had already run, and the potential for continuing conflict and dispute as to what was to happen to the children, the inference that there was some real and not remote possibility of a continuation of this conduct in the future was I think certainly open on the evidence. The magistrate was entitled also to take into account the attitude of the appellant during the hearing, which may well have suggested that there had not been any change in her behaviour which was likely to lead to a discontinuation of such course of conduct, at least in the absence of an order of the court. Finally, the most recent incident was quite recent, and the fact that the appellant denied it was I think also relevant on this point, given that the magistrate had found that it had occurred, as suggesting that the appellant was unrepentant about this sort of behaviour.

40. [40]
    In all the circumstances, I consider that there was an ample evidentiary basis for a finding that it was likely that the appellant would commit a further act of domestic violence.^[31]  It is not to the point that there was minimal face to face contact, and that the parties put on a happy face for the benefit of the children when this occurred:  p 24.  The respondent apparently felt that he needed to have a witness present on these occasions, which suggests that there was some continuing tension between the parties.

Was this domestic violence?

41. [41]
    The remaining issue was as to whether conduct of this nature was capable of amounting to an act of domestic violence for the purposes of the Act. Section 11 defines domestic violence in terms which include intimidation or harassment of another person.  A series of examples are given, and all of them suggest that intimidation or harassment will ordinarily, or at least commonly, be the result of a course of conduct rather than an isolated incident, as would be the case with wilful injury or wilful damage to another person’s property.

42. [42]
    I have on some previous occasions said something about what amounts to harassment or intimidation. In MAN v MAM [2003] QDC 398 I said that nothing could amount to harassment or intimidation unless the supposed victim of that activity was aware that the activity is occurring:  [9].  I also said that I did not think that persistently refusing to discuss matters that the other party wished to discuss could amount to harassment or intimidation:  [12].  I did not think that a mere unwillingness to do what the other party wanted done could amount to intimidation or harassment, though that issue did not actually arise in that case.  There was also a question about whether the production on one occasion of a tape recorder to tape a conversation was intimidation or harassment, and I concluded that it was not, partly because production of the tape recorder was essentially a defensive act rather than an aggressive act, and it had only occurred on one occasion:  [13].  In that matter, however, I sustained a finding of a magistrate that deliberately standing close to the other party when the other party was making a telephone call so as to prevent that party from having a private phone call with whoever was on the phone could amount to harassment for the purposes of the Act:  [15].  I also upheld a finding that there was harassment because the party was deliberately driving in a way which was annoying and upsetting the other party, because of concerns about their safety, which I held could be characterised as harassment regardless of whether the manner of driving was objectively appropriate:  [16].

43. [43]
    In that case I did not attempt any general statement as to what would constitute intimidation or harassment. In D v G [2004] QDC 477 at [31], [32] I said that I did not think that something which did not in fact intimidate could amount to intimidation, which is perhaps not a very profound observation.  In BBB v RAB [2006] QDC 80 I said at [18]:

“Intimidation refers to a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour.^[32]  There can I think be a single incident of conduct which amounts to intimidation … .  Harassment on the other hand involves a repeated or persistent form of conduct which is annoying or distressing rather than something which would incite fear.  The other consideration is that I think that the matter needs to be of some significance to qualify as domestic violence, bearing in mind the other elements of the definition, and the examples that are given for paragraph (c) in the Act.”

44. [44]
    In that case I went on to say that harmless encounters which occur fortuitously do not amount to harassment or intimidation even if a party finds them upsetting: [19]. But hanging around a party’s place of residence could easily amount to harassment or intimidation: [20].

45. [45]
    It is apparent from the transcript of the hearing that the magistrate’s initial reaction was one of considerable scepticism as to whether conduct of this nature could amount to harassment or intimidation for the purposes of the Act, but it is also apparent that, as the magistrate became more familiar with the material that was before her, she was able to see the force of the respondent’s submissions, and ultimately concluded that there had been harassment or intimidation. Although its form is in this case certainly quite unusual, I do not think that the legislature intended that the elements of the definition should be applied restrictively. This was remedial legislation, and ought to be given the widest construction that the terms can fairly bear.^[33]  In those circumstances, as long as conduct does harass or is intimidating, it seems to me that almost anything could in principle amount to harassment or intimidation.

46. [46]
    Being wrongly accused of sexual abuse of a child is certainly very serious conduct and would be a terrible thing from the point of view of the victim of such a false allegation. The same I think would apply to any other course of conduct involving persistent allegations of significant criminal activity, where the allegations are unjustified and particularly if they are made for a collateral purpose. Although arranging the private investigator to go into the house to inquire about renting rooms would not in isolation amount to harassment or intimidation, once there is an established pattern of harassment or intimidation as a result of other actions of a party this would be likely to be felt as a continuation of a process of harassment or intimidation by other means, and hence be part of a course of conduct which harassed or intimidated.

47. [47]
    The issue in this case is whether making a series of false allegations of criminal activity of varying degrees of seriousness, including some which are very serious, against the respondent for a collateral purpose, is capable of amounting to harassment or intimidation. In my opinion it is capable of amounting to either, or indeed both. It is not necessary for me to decide whether anything less than this could amount to harassment or intimidation.

48. [48]
    This is an appeal by way of rehearing, so it is appropriate for me to consider the evidence and make up my own mind, having due regard to the findings of the magistrate and respecting the advantage she had in assessing credibility.^[34]  On that basis, in the light of my analysis, the incident of 6 May 2008 was not made out, but I consider that otherwise the respondent’s case was made out on the whole of the material before the magistrate.  The omission of this incident does not detract from the conclusions appropriate in respect of the balance of the incidents, and overall the making of the protection order has not been shown to be wrong.

49. [49]
    Therefore, the appeal is dismissed.