DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal against a Protection Order made in the Richlands Magistrates Court on 16 September 2011 under the Domestic Violence and Family Protection Act 1989 (“the old Act”). The appellant in this appeal was the respondent to the original application for the Protection Order. I shall refer to him as the “appellant”. The respondent to this appeal was the aggrieved in the application for the Protection Order and I shall refer to her as the “aggrieved”.

Appeal procedures

2. [2]
   The appellant lodged a Notice of Appeal in the District Court at Southport on 13 October 2011. Since the time the hearing took place and since the time the notice of Appeal was lodged, the old Act has been replaced by the Domestic and Family Violence Protection Act 2012 (“the new Act”) which came into force on 17 September 2012.

3. [3]
   Section 209 of the new Act states that any appeal against an order or decision under s 63 of the old Act is taken to be an appeal under s 165 of the new Act if, on the commencement of the new Act, the appeal has not been finally dealt with. The appeal hearing date was 28 September 2012, approximately 11 days after the commencement date. It follows that the appeal provisions of the new Act apply for the purposes of determining this appeal.

4. [4]
   Section 168 of the new Act states:

“(1)An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.

3. (2)
   However, the appellate court may order that the appeal be heard afresh, in whole or part.”

5. [5]
   I have therefore had regard to the material tendered at the original hearing which includes an affidavit sworn by the aggrieved, attachments to her affidavit and the oral testimony of both the appellant and the aggrieved. I have reviewed the evidence to make my own determination of the facts in issue and the alleged errors the appellant submits the Magistrate made. It is necessary before addressing these issues to set out the factual background and proceedings to date.

Background

6. [6]
   The appellant and the aggrieved commenced a relationship in 2007, which broke down some time in mid 2009. There are two children of the relationship, a boy, A, born in 2008 and a girl, M, born in 2009. The aggrieved and the appellant were in a spousal relationship under s 12(2)(b) of the old Act and satisfy the requirement of a domestic relationship under the old Act.

7. [7]
   The aggrieved has three daughters from a prior marriage: S, K and L. They are named persons under the Protection Order. The appellant also has 4 children with his wife. It appears that the appellant and his wife remained married during the appellant’s relationship with the aggrieved.^[1]

8. [8]
   Parenting Orders in relation to the two children of the relationship were made in the Family Court on 15 June 2011. The Family Court Orders included injunctions:

• That the father (the appellant) is restrained from assaulting, harassing, stalking, abusing or coming into the immediate presence of the mother or any of the mother’s three daughters, S, K and L without the written consent of the mother being first obtained (Order 16); and
• That the father (the appellant) is restrained from entering or contacting the place of work of the mother or any of her said three daughters (Order 17).

9. [9]
   The appellant filed an appeal against these Family Court Orders on 8 July 2011.

10. [10]
    The aggrieved applied for a Protection Order on 3 June 2011. A Temporary Order was made by the Magistrates Courtat Richlands on 28 June 2011 and the application was set down for hearing on 12 September 2011.

Magistrates Court hearing

11. [11]
    The application for a protection order was made under s 20 of the old Act. The Court may make a protection order under s 20 of the old Act where satisfied that a person has committed an act of domestic violence in a domestic relationship and that the person is likely to commit an act of domestic violence again.

12. [12]
    The aggrieved’s case consisted of her evidence by way of affidavit and the written material contained in her written application for a protection order. The aggrieved chose not to rely on paragraphs 6 to 13 of attachment SG-1. The aggrieved was gave oral evidence and was cross-examined by the appellant.

13. [13]
    The conduct the aggrieved complained about included:

1. Numerous baseless complaints made by the appellant about the aggrieved, designed to intimidate the aggrieved^[2]. These included complaints to:

1. (a)
   the Queensland Ombudsman;

2. (b)
   the Anti-Discrimination Commission of Queensland;

3. (c)
   the Registry of Births, Deaths and Marriages, regarding the registering of their daughter’s name, with the result that this was not registered until the Family Court made an order in relation to her name;

4. (d)
   Centrelink, which lead to an investigation of the aggrieved’s parenting payments;

5. (e)
   the Commission for Children and Young People;

6. (f)
   the Child Guardian;

7. (g)
   Queensland Health; and

8. (h)
   the Health Quality and Complaints Commission.

2. A complaint by the appellant against the aggrieved’s children’s medical practitioner to the Australian Medical Board.

3. A complaint by the appellant against the aggrieved’s legal representatives to the Legal Services Commission.

4. A Notice of Child Abuse made by the appellant in the Family Court proceedings concerning the aggrieved’s three elder daughters, which led to an investigation by the Department of Communities (Child Safety Services) with the aggrieved, her ex-husband and her three daughters all being interviewed in November 2009.

5. Complaints about abuse and the aggrieved’s parenting, leading to police investigation. The aggrieved was contacted by a police officer on 15 October 2009 in response to allegations made by the appellant in his Family Court documents. The aggrieved also received a visit from another police officer in January 2010 after the appellant requested a welfare check of the children, alleging that A had unexplained marks over his body and was feeling unwell.

6. An incident in December 2009, when the children A and M were returned at changeover to the aggrieved with two balloons printed with “Break the silence on child sexual abuse” attached to their bag by the appellant.

7. Abusive and derogatory comments made in text messages sent by the appellant to the aggrieved.

8. The taking of two unwarranted court proceedings by the appellant against the aggrieved, namely an application in the Beenleigh Magistrates Court for a Domestic Violence Order against the aggrieved, and a claim for $250,000 in the District Court at Southport in damages for alleged perjury by the aggrieved. Both these proceedings were filed in October 2009. (Both of these proceedings were dismissed.)

9. Disturbances at the aggrieved’s place of residence where her child’s birth certificate went missing. This resulted in the aggrieved changing all of the locks.

10. The appellant pushed and shoved the aggrieved into walls in February 2008 and April 2008, when the aggrieved was pregnant.

14. [14]
    At the hearing the appellant did not dispute that he had filed the numerous complaints and court proceedings. He claimed it was his right to file the complaints and court proceedings as a citizen. He did not dispute he had sent the text messages attached to the aggrieved’s affidavit, but argued she had sent similar texts to him. The appellant denied he had done any of these acts to intimidate the aggrieved. The appellant denied allegations he entered his wife’s home uninvited and took his child’s birth certificate. He denied he drove into the aggrieved’s housing estate when he shouldn’t have been there. He put to the aggrieved that she would not have been able to see the appellant driving his wife’s car into the aggrieved’s estate on 17 May 2011^[3].

15. [15]
    The appellant cross-examined the aggrieved, but only on a limited number of her allegations including:

• Whether the aggrieved could be certain she was being watched by the appellant, referring to a weekend in September 2009 where the aggrieved and the children went to Canberra;
• Whether the aggrieved believed the appellant had the right to lodge complaints to the ombudsman and other departments, including lodging complaints with anti-discrimination if the appellant believed he had been discriminated against because the aggrieved refused him access to the children.^[4]

16. [16]
    Under cross-examination, the aggrieved maintained a position consistent with her evidence in the affidavit material.

17. [17]
    The appellant gave evidence that is difficult to follow but which was confined to his denial as to why he was not watching the aggrieved’s house at the times she alleged.^[5]He stated:

• The aggrieved could not have seen his wife’s car turning into the estate from the distance of 700m;
• That this incident could not have taken place, due to a text message  sent at 3:54 on that afternoon, where the aggrieved informed the appellant she had taken the children to the doctor that day and informed him of what the doctor said. The appellant submitted that the Court could not believe anything the appellant said, as, if the children were sick, they would not have been at the park:

“Now, if we can believe that a sick child with a fever the night before had been taken to the car park in the evening, and A – and both were suffering from school sores – and according to her, caused by mosquito bites, to be in the park at that time, then we can believe anything she says”. – 1-22 (lines 22-27);

• That he could not have been watching the aggrieved’s house, as then he would have known when the children had been taken to Canberra;
• In relation to the perjury claim, that the matter could not proceed because it was a criminal matter, with the allegations given to the Queensland police and the CIB of Brisbane.

18. [18]
    When cross examined by the aggrieved’s solicitor, the appellant:

• Denied pushing the aggrieved against a wall in February 2008 and in April 2008;
• Admitted sending the text messages to the aggrieved, including, when specifically asked, the text message: “It’s going to be Court and gaol for child molesters”, but denied that he knew those text messages would intimidate the aggrieved;
• Admitted filing an application for a Protection Order, with the conditions sought;
• Denied making the threat “I’m going to kill you, slut” over the phone to the aggrieved;
• Denied that making the complaints to the agencies would intimidate the aggrieved, stating that: “I suggest to you that I cannot intimidate someone when exercising my rights^[6];
• Admitted filing a child abuse form in 2009 naming the aggrieved and her three elder daughters, but denied that it was his intention to harass the aggrieved and her daughters by these allegations;
• Admitted making the claim in the District Court at Southport but denied it was his intention was to intimidate the aggrieved;
• Denied that the purpose of making complaints about the solicitor and barrister previously representing the aggrieved was to harass or intimidate the aggrieved;
• Admitted to contacting police in January 2010 to have police attend the aggrieved’s house as part of a welfare check, but denied the purpose of this was to intimidate the aggrieved;
• Admitted that the children had balloons which read “Break the silence on child abuse” with them at changeover, but gave evidence that he did not notice what was written on them; did not go and print them purposely; and gave them to the kids for the joy they get out of playing with them;
• Admitted to attending the ABC child care centre at Richlands in April 2010 and then sending the text message to the aggrieved saying “Have you picked up my kids from child care yet for he’s crying for more than half an hour today. Someone will be responsible I promise you”, but denied that this was an intimidating text.^[7]

19. [19]
    The aggrieved’s solicitor submitted that the conduct complained of fell within the meaning of domestic violence under s 11 of the old Act, as it constituted wilful injury under ss 11(1)(a) and intimidation and harassment under ss 11(1)(c).

20. [20]
    The appellant’s ultimate submission was that the allegations did not justify a protection order. When asked by the Magistrate if there was anything else he wanted the Magistrate to consider, the appellant said:

“Your Honour, my text messages with SAG were consented to, as she mentioned in – in her affidavit. And they were in relation to our kids and the orders in place. And the welfare of my children, and the best interests of my children.

I did not seek to intimidate, I did not do the things which she alleged that I have done, and I have matters to be challenged in Court, and the Court directed those matters to be investigated by the police.

I feel that those allegations, not only are they untrue, but also designed to get the maximum impact on my honour and dignity, and the honour and dignity of my kids. It’s against our culture, it’s against our faith, when a mother declares her son or daughter to be bastards in Court, and that’s my argument with SAG.”

21. [21]
    The learned Magistrate granted the Protection Order. He was satisfied that the appellant had committed an act of domestic violence against the aggrieved and that he was likely to commit an act of domestic violence again. At page 5-6 of the transcript, the Magistrate said:

“I prefer the evidence of the aggrieved. I am satisfied the appellant has embarked on a course of conduct in a manner calculated to trouble and worry the aggrieved, he has achieved that result. The impact on her health is outlined in her affidavit. She lives in fear of what might happen next. I am satisfied that the appellant has committed an act of domestic violence. I am further satisfied the appellant is likely to conduct an act of domestic violence again. The intimidation and harassment is likely to continue. The appellant continues to harbour resentment towards the appellant. He has failed to accept the final parenting orders of the Court and there is going to be ongoing dispute.”

22. [22]
    The aggrieved’s solicitor submitted that the aggrieved’s three elder daughters should be named in the Protection Order as the appellant’s conduct had caused these children to be intimidated as well. The grounds the aggrieved relied on were:

• The unsubstantiated allegations of sexual abuse to Child Safety, which led to the aggrieved’s elder daughters being questioned about sexual assaults with their father;
• The appellant had established a fake Facebook page, posing as a 15 year old boy “Jemel” to befriend the aggrieved’s daughter K and get information from her about the aggrieved. K considered this boy to be her first boyfriend and upon finding out he was a fictitious person created by the appellant, she became severely depressed and has been prescribed anti-depressants;  and
• The appellant made derogatory comments about the aggrieved’s daughters in the communication book.^[8]

23. [23]
    The Magistrate named the three daughters in the Protection Order. His Honour stated at p 6 of the transcript:

“I am further satisfied by his continual derogatory comments to the daughters of the applicant and the resultant involvement of them in relation to the baseless allegations of child abuse constitute an associated act of domestic violence, and that is in the interests and welfare of the children that they should be included as named person and I grant the application.”

The appellant’s arguments on appeal

24. [24]
    The appellant relies on the following grounds of Appeal which are reproduced here from his written Notice Of Appeal:

“The grounds of my appeal are:

1. The Magistrate erred in finding that the appellant has committed an act of domestic violence against the aggrieved and that the appellant is likely to commit an act of domestic violence again or is likely to carry out a threat to commit an act of domestic violence.”

The facts relied upon are:

1. His Honour did not give proper reasons for his decision.

2. His Honour did not apply the test prescribed by the legislation properly to determine if the appellant had committed a domestic violence act against the aggrieved.

3. His Honour’s findings were not properly open on the evidence of the aggrieved.

4. His Honour erred in his conclusion that the appellant had committed a domestic violence and was not supported by evidence.

5. His Honour erred in his conclusion that the appellant is likely to commit an act of domestic violence and was not supported by evidence.”

25. [25]
    The appellant filed a written outline of argument which contained the following submissions:

1. There was no evidence before the Magistrate from SAG nor was there any evidence that the appellant had committed, or was likely to commit, any wilful injury to SAG.

2. There was no evidence before the Magistrate from the named persons nor was there any evidence that the appellant had committed, or was likely to commit, any wilful injury to the named persons on the order.

3. There was no evidence before the Magistrate that the appellant had committed or was likely to commit any intimidation or harassment against the applicant SAG.

4. There was no evidence before the Magistrate that the appellant had committed or was likely to commit any intimidation or harassment against the children named in the order.

5. The Magistrate failed to give proper reasons for his decision.

26. [26]
    The crux of the appellant’s oral argument at the hearing was that the Magistrate erred by incorrectly characterising the approach the appellant took during the original hearing as seeking to find fault on the part of the aggrieved rather than attempting to get on with his life after separation. The appellant submitted he had conducted the original hearing and the appeal hearing by relying on reason and logic to defend the accusations made against him.

27. [27]
    The appellant next referred to the aggrieved’s allegations of disturbances at her home. The appellant submitted that there was no evidence before the Magistrate of any crime committed by him, no police file number of the incident and as such no way to question police about the incident and find out whether anyone other than he was suspected. The appellant sought to contrast this with what he described as the “legitimate actions” taken by him, resulting in the police investigations in October 2009 and January 2010. He submitted that both of these were legitimate actions, as the identity of the police officers involved was known and thus information could be sought from these police officers if needed.

28. [28]
    The appellant then stated to this court that he had classified the appellant’s allegations into three categories: category 1 being the old allegations; category 2 being the recent allegations and category 3 being the text messages. Of the recent allegations, he addressed the complaints of driving into the aggrieved’s estate on 15 and 17 May 2011 and submitted that these incidents were not to harass, intimidate or follow the aggrieved, but for the legitimate reason of transferring the children to the aggrieved as she did not have transportation. Reference was again made to the impossibility of the aggrieved seeing the appellant on the first of these occasions.

29. [29]
    In relation to the text messages, the appellant submitted that it was not him but the aggrieved who committed intimidation and harassment, with the aggrieved bringing strangers to the changeover of the children to draw a reaction, and that the text messages merely showed his reaction to this.

30. [30]
    The appellant next submitted that his complaints to various organisations could not amount to harassment and intimidation of the aggrieved. He submitted that although the aggrieved in her affidavit and application listed various government departments which received complaints from the appellant, she was only contacted by two organisations, namely Centrelink and the police. The appellant submitted that it could not be intimidation and harassment to the aggrieved where a complaint is lodged with a government department and the government department does not contact the aggrieved. He also submitted that at the original hearing, when he cross-examined the complainant about his right to lodge complaints, she did not say anything about believing the appellant lodged the complaints to harass and intimidate her, instead stating: “I believe you lodged those complaints because you felt that you were being discriminated against….. I don’t believe that I discriminated against you in anyway.”^[9]

31. [31]
    The appellant’s final submission was that, while the aggrieved didn’t rely on the paragraphs excluded from her affidavit, the Magistrate read them and could have formed an adverse opinion of him because of their content.

The aggrieved’s submissions on appeal

32. [32]
    Counsel for the aggrieved relied on the written outline of argument, and submitted that the protection order made by the Magistrate was based on sound and proper findings of fact of events of domestic violence and that the Magistrate provided sound and proper reasons for his decision.

33. [33]
    In oral submissions, counsel for the aggrieved submitted that, on the facts of the present case, what was relevant to the question of whether the appellant had committed an act or acts of domestic violence was the appellant’s course of conduct as a whole. Counsel submitted the Magistrate made it clear that he was satisfied the appellant had embarked on a course of conduct calculated to trouble and worry the aggrieved and had achieved that result, with the appellant living in fear of what might happen next.

34. [34]
    It was also submitted for the aggrieved that she had deposed in her affidavit to her knowledge of the complaints to various organisations and government departments. This demonstrated that she had become aware of these complaints even when not directly contacted.  Further, the aggrieved’s evidence, which the Magistrate accepted was that she was, in fact, intimidated by the appellant’s complaints.

Analysis

35. [35]
    The various grounds of appeal listed in the appellant’s outline of submissions and expanded upon in his oral argument can be dealt with as one ground of appeal. The appellant’s main submission is that the Magistrate erred in finding that the appellant had committed an act of domestic violence against the aggrieved and that the appellant is likely to commit an act of domestic violence again. Before addressing this ground of appeal it is appropriate to deal with some other matters the appellant has raised in his written and oral argument before this court.

36. [36]
    The appellant complains the Magistrate did not give proper reasons for his decision. The Magistrate’s reasons are relatively brief. However his reasons reflect that he had regard to the elements which the aggrieved had to prove on the balance of probabilities under sections 11^[10]and 20 of the old Act^[11]. The Magistrate did not specifically identify each of the alleged acts he considered constituted domestic violence, however he identified the categories of acts he considered amounted to intimidation and harassment. He stated in his reasons that he was satisfied on the evidence that the appellant made numerous baseless complaints to various government organizations, made groundless allegations of child abuse to police and the Department of Child Safety, the appellant entered the aggrieved’s garage and took his child’s birth certificate, the appellant abused the aggrieved in text messages and the appellant drove into the estate where the aggrieved resided for no good reason. The Magistrate stated he preferred the aggrieved’s sworn evidence to the   appellant’s evidence. He correctly noted that the appellant admitted doing most of the acts. It was open to him to reject the appellant’s evidence that he committed these acts for bona fide reasons.

37. [37]
    The appellant submits that there was no evidence before the court that the appellant had committed an act of domestic violence by causing a wilful injury to the aggrieved. The Magistrate did not find that there was any act of wilful injury. The Magistrate’s reasons clearly show that he confined his findings of domestic violence to the acts of harassment and intimidation.

38. [38]
    The appellant submits that the aggrieved was only contacted directly by two of the organizations he had complained to. It is clear on the oral and affidavit evidence that the appellant’s numerous complaints came to the attention of the aggrieved during a hearing in the Federal Magistrates Court on 2 October 2009 and on other occasions prior to her application for a protection order. Her doctor and lawyer also made her aware of the appellant’s complaints against them. The aggrieved felt scared, anxious and intimidated by the complaints^[12].

39. [39]
    The appellant submitted that one of the aggrieved’s answers under cross-examination was to the effect that she believed the appellant lodged some of the complaints because he felt he was being discriminated against. The appellant submits this evidence shows the complainant did not believe he had lodged complaints against her to intimidate or harass her. I consider that the aggrieved’s answer to this one question is not inconsistent with the conclusion that, on a consideration of all of the evidence, the aggrieved felt harassed and intimidated by the number and content of the complaints.

40. [40]
    The appellant submits that the Magistrate would have formed an opinion adverse to the appellant by reading the paragraphs 6 – 13 of attachment “SG1” of the aggrieved’s affidavit which the aggrieved no longer relied upon at the hearing. The aggrieved’s legal representatives should have removed or blacked out the irrelevant paragraphs, however, the Magistrate, as an experienced judicial officer would have disregarded the content of the offending paragraphs. There is nothing in his reasons to indicate he had any regard to these paragraphs whatsoever. I certainly had no regard to them.

41. [41]
    Turning now to the main ground of appeal, the appellant argues that there was no evidence before the court that he had committed acts amounting to intimidation or harassment or that he was likely to do so again. The Magistrate found that the appellant’s actions outlined above constituted a course of conduct which was designed to, and succeeded in, intimidating and harassing the aggrieved.

42. [42]
    McGill SC DCJ has considered what amounts to intimidation and harassment in a number of decisions dealing with appeals brought under the old Act. Recently in the case of DGS v GRS [2012] QDC 74 at [41] - [44] he reviewed a number of these cases where he considered whether conduct similar to the appellant’s conduct in present case constituted domestic violence. At [43] he referred to an earlier decision of BBB v RAB [2006] QDC 80 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.”

43. [43]
    McGill SC DCJ concluded that, because the legislation was remedial, it ought to be given a broad construction and that, “as long as conduct does harass or is intimidating, it seems to me that almost anything could in principle amount to harassment or intimidation.”^[13]

Conclusion

44. [44]
    I have examined the evidence and the Magistrate’s findings, and given weight to the Magistrate’s findings which the evidence supports, including his findings that he preferred the aggrieved’s evidence to the appellant’s evidence^[14]. I am satisfied of the following:

• It was open on all the evidence for the Magistrate to prefer the evidence of the aggrieved to the appellant’s evidence;

• The appellant’s numerous complaints about the aggrieved to government bodies alleging child abuse and mistreatment were unjustified and an abuse of process as were his complaints to organizations about the aggrieved’s doctor and lawyer. The appellant did not dispute that he lodged most of these complaints. I consider that one of the purposes of lodging these complainants was to harass and intimidate the aggrieved. I accept the aggrieved’s evidence that she felt intimidated and harassed when she became aware of the complaints^[15];

• The aggrieved and her daughters were also subjected to repeated investigations due to the appellant’s complaints. For example, she and her children were interviewed by police on a number of occasions. None of the complaints were substantiated. This is further evidence of harassment suffered by the aggrieved and her three daughters at the hands of the appellant; 

• The other conduct outlined in the aggrieved’s affidavit material intimidated and/or harassed the aggrieved^[16];

• A review of the evidence establishes that there was a proper basis for the Magistrate’s determination that the appellant committed acts of domestic violence by a course of conduct of intimidation and harassment. Adopting the test applied by McGill SC DCJ in DGS v GRS [2012] QDC 74 referred to above, I have formed the same conclusion;

• The evidence establishes there was a proper basis for the Magistrate finding that it was likely the appellant would commit a further act of domestic violence. The parties had parenting orders in place which the appellant has appealed. The orders necessitate continuing contact between the parties because of their children, even if such contact is indirect. It is clear from reading the transcript of the original hearing, and having regard to the appellant’s attitude towards the aggrieved which he displayed during the original hearing and the appeal hearing, he continues to feel resentment and animosity towards the aggrieved, he appears to have little insight into the fact some of his behaviour has been unacceptable, and he intends to pursue the aggrieved further through the courts;^[17]

• The Magistrate’s decision to include the aggrieved’s three elder daughters in the protection order was also open on the evidence. The Magistrate correctly applied the test set out in the legislation under s 21 of the old Act. He stated he was satisfied that the appellant’s actions of making continual derogatory comments to the aggrieved’s daughters, and the effect upon them resulting from the appellant’s baseless allegations of child abuse, constituted an associated act of domestic violence. I have formed the same conclusion.

45. [45]
    I am satisfied on the whole of the material before me and before the Magistrate that the making of a protection was warranted under ss 20 and 21 of the old Act. I confirm the decision appealed against^[18]. The appeal is dismissed.