CR v CM[2015] QDC 146

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal by the appellant against the decision in the Magistrates Court at Brisbane to refuse to make a protection order under the Domestic and Family Violence Protection Act 2012 (Q) (“DFVP Act”) in his favour and against the making of a protection order against him in favour of the respondent.

Appeal provisions

2. [2]
   Section 168 of the DFVP Act provides that an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed, however the appellate court may order that the appeal be heard afresh in a whole or in part.

3. [3]
   In conducting this appeal it is appropriate to conduct a real review of the material and reasons below paying due regard to the views of the learned magistrate^[1].

4. [4]
   It is noteworthy that s 145 of the DFVP Act provides that in a proceeding under the Act a court is not bound by the rules of evidence and may inform itself in any way it considers appropriate. If the court is to be satisfied of a matter the court need only be satisfied of the matter on the balance of probabilities.

5. [5]
   The powers of the appellate court are set out in s 169 of the DFVP Act. It provides:

“(1)  In deciding an appeal, the appellate court may–

1. (a)
   confirm the decision being appealed against; or

2. (b)
   vary the decision appealed against; or

3. (c)
   set aside the decision and substitute another decision; or

4. (d)
   set aside the decision appealed against and remit the matter to the court that made the decision.”

Evidence below

Respondent’s evidence

6. [6]
   CM provided an affidavit sworn 25 March 2014 (Exhibit 12). She and the appellant commenced dating in November 2012 and living together in March 2013 but separated on Christmas Day 2013. CM says that she began to have serious doubts about her relationship with CR in the months leading up to the break up. On 23 December 2013 she began writing an email to a friend of hers stating that she knew she had to end the relationship but was unsure how she should go about it. She had not finished the email and saved it to her drafts folder. CR had installed spyware on her computer which recorded key strokes. The respondent had asked him numerous times to take this off as it made her feel uncomfortable. He said he had removed it but he did not and therefore he was able to read the email she had typed even though it had not been sent.

7. [7]
   On Christmas Day, 25 December 2013, the respondent went to her best friend’s house for dinner. Just after 8.30pm she received a text message from CR stating that he was moving out “be home in 15 minutes or I’m calling the locksmith”.

8. [8]
   The respondent had consumed a few drinks, could not drive and texted him this. A second message came from the appellant stating “you now have 10 minutes or I’m calling the locksmith”. The respondent ended up going home. When she arrived home the appellant was in a clearly agitated state, waving his hands around in the air. When she went inside the house she discovered she had no power. The appellant said “you might want to check your power box just a little trick I do”. She checked the power box and discovered the main switch had been turned off and she turned it back on. The respondent was feeling uncomfortable and nervous because of the appellant’s demeanour. She drove around the corner to call a friend. While she was on the phone the appellant sent her a text message stating that he had let her two dogs out and she needed to come home to get them.

9. [9]
   The respondent went home to retrieve the dogs and the appellant was still at the house. She found the dogs, secured the gate and went inside the house. She was talking to a friend on her mobile telephone when her phone suddenly reset midway through the conversation. She discovered the appellant had reset her phone using the “find my iPhone” application which they had both installed. She plugged her mobile telephone into iTunes to do a restore from iCloud only to find she had no internet as the appellant had changed the password. She could not restore her mobile phone from iCloud so she started the process of restoring her iPhone using iTunes for a backup on her MacBook laptop. She lost everything from September 2013 until that moment. It took about three hours to complete the backup.

10. [10]
    The police arrived at about 12.30am to accompany the appellant to get his clothes, toiletries and a few items. She told the police about the appellant’s behaviour. The backup restoring process finished at about 2.30am. She could not log into her Apple ID and went to log on to Facebook only to find she could not log on there as well. It was obvious the appellant had changed the passwords and associated email addresses. She went to check her other email accounts only to find she could not access any of them. She felt distraught and that she had lost control of her life and identity to the appellant. She then went to the police station and told them what happened. The police officer explained they were on skeleton staff and she should come back at 9.30am the next day. The respondent went home and was awake until 6am trying to regain access to her accounts.

11. [11]
    She then went down to the police station later that morning and spoke to a police officer who made notes.

12. [12]
    When she returned home she saw that damage had been done to her front door. She called the Police and logged a wilful damage complaint. A screen shot of her hacked account shows that she had access to her old Facebook on 25 December 2013 but not on 26 December 2013 (attachment A).

13. [13]
    The appellant also sent her numerous text messages on 26 December 2013.^[2]

14. [14]
    On 27 December 2013 at about 3pm the respondent left for the airport to fly interstate to see members of her family. When she awoke on 28 December 2013 there were 10 missed calls and a text from her neighbour. When the respondent spoke to her neighbour she said the appellant had been around to the house at 10.30pm on the evening of 27 December 2013. The police had turned up and looked around but could not see any sign of a break in.

15. [15]
    Later that week after a visit to the Apple Store at Chermside she was able to reset her security questions and gained access back to her Apple ID.

16. [16]
    On 3 January 2014 she flew home with her two sons and picked up her girls on the way back from her ex-husband. On arrival home there was a horrible stench and it was discovered because the mains power had been turned off the food had gone rotten. She lost about $400 by reason of this and a complaint was made to the Police. On 4 January 2014 her back had given way and she attended physiotherapy.

17. [17]
    On 9 January 2014 the respondent applied for a temporary domestic violence order which was granted. On 12 January 2014 she received some abusive texts from the appellant, the last message being at about 5.30pm in which he stated “sleep well I know where you keep your knives”. Her phone was then reset less than 30 seconds after this text was sent. She went straight to the police station to report this. Later that night she was on her phone checking emails and found that her password had been changed again. She logged onto the computer and found herself in a battle to secure her email account. She would change the password only to have him change it at the other end. This went on for an hour before she was able to stop him accessing the account. She went to the Petrie police station on 13 January 2014 to report the email account hacking.

18. [18]
    Attachment B corroborates the contention that her password needed resetting and the original email address associated with her facebook account was changed on 26 December 2013.

19. [19]
    Because of all the stress caused by the appellant she was suffering from nightmares and having panic attacks. On 13 January 2014 she applied for a variation to the original application to add a no contact clause. On 16 January 2014 she was able to take her Apple iMac computer to the Apple Store and the technical team were able to fix the computer because the appellant had remotely put a pin on it, once again using the iPhone application. In the store the technician discovered the appellant had set all of her Apple devices to erase. As a result of this she lost all of her data, photos and documents on her iMac, iPad and iPhone. The iMac was erased on 11 January 2014, the iPad 11 January 2014 and the iPhone on 12 January 2014. She was however able to save her MacBook (attachment C). This attachment corroborates her contention the iMac was erased on 15 January 2014. It also corroborates the contention that the iCloud erasure commenced on 11 January 2014.

20. [20]
    She attended an appointment with the trauma team at the Prince Charles Hospital because of her stress. When she attended the hospital she was asked if she was carrying any knives. She was taken aback by this question and the doctor informed her they had received a Justices Examination Order under the Mental Health Act advising that she was walking around with knives and allegedly had said she was going to kill the appellant, his daughter Emily and his mother. She was very upset the appellant was able to obtain an order based on lies. Upon discussion with the appellant’s ex-wife later that day she found out he had obtained a Justices Examination order on her about 18 months prior. The respondent has made a formal complaint against the appellant to the Mental Health Board.

21. [21]
    On 18 January 2014 it was arranged that the appellant would attend her residence with the Police to collect a few items. He continually tried to take items not belonging to him. Police had to remind him to treat her property with respect. He started ranting about the fact he was going to take her to Court and make an application for half of the property. Less than 10 minutes after he left the property she received text messages (attachment D) which she understood was a breach of the DVO and then she attended the Petrie police station to make a statement (attachment E). The details of these texts are set out at [110] below.

22. [22]
    On 26 January 2014 her children were with their father and she was able to finally call Telstra about a slow internet connection. Ultimately after she logged onto webmail an account which she had for 15 years. She discovered there was an email request made by the appellant to permanently delete her Facebook account and he had changed her Facebook name to Vjay Masden (attachments H, I and J are said to prove this). She also discovered that all of her photo albums had been deleted by the appellant and he had unfriended her entire friends list. Her business Facebook had also been deleted (attachment K). The appellant had been accessing her account since taking control of it on 26 December 2013 (attachment L).

23. [23]
    On 27 January 2014 she went to have a shower and there was no hot water. The hot water switch plus two other switches were in the off position in the power box.

24. [24]
    On 6 February 2014 she was served with an application filed by the appellant in the Federal Circuit Court of Australia in which he wanted 100% of the property.

25. [25]
    Attachment N is an email received from the appellant on 18 March 2014 headed “You won’t win.” The email itself read:

“[CM], If you think you will win, you won’t. Im a great liar and I know the law, where as you don’t. [CR].”

26. [26]
    A second email was received at 6.30pm on 18 March 2014 (attachment O) which stated:

“[CM] you are the most pathetic person on this planet. You seem to forget that I was a lawyer and will manipulate everything I know about the law to cause you pain and make your life a living hell. If you think what I’ve done so far is bad… it’s only the beginning. Just you wait and see what I am capable of. I will make the court believe that you made death threats against me and I’ll make sure you or Imogen for that matter will never see Emily again ever. EVER. It will all be too easy.  It’s funny what I can get away with just by saying I go to church.  All I can say is bring it on.  You are lucky you had me.  No one will ever come near you because you are so fat and two of your children are retarded.  See you in court. I’ll be the one smiling [CR].”

27. [27]
    The respondent made a further statement to the Petrie Police Station on 18 March 2014 (attachment P). The respondent alleges in para 73 that the appellant has continued to display unstable behaviour and she is concerned not only for her own safety but for that of her four children. The texts and emails have taken a toll on her health and have affected the children.

28. [28]
    On 24 February 2014 she received a letter from Emily addressed to her (attachment Q). The respondent sought a final Domestic Violence Order and in addition wanted her four children named as persons on the final order.

29. [29]
    In response to the appellant’s application for a Protection Order she denies she has made any threat to kill the appellant or his daughter and has never threatened him with a knife. She has never controlled his bank accounts.

30. [30]
    In oral evidence the respondent denied there were still items belonging to the appellant at her property (T1-9.14). With respect to missing text messages from the appellant she alleged that the appellant deleted her phone and records of it (T1-10.11). She said that these matters were being investigated by a detective in the criminal investigation branch (T1-11.31).

31. [31]
    The respondent admitted to having knives in her house (T1-12.31). She agreed that since the last communication on 18 March 2014 there had been no other emails or texts (T1-14.27). The respondent conceded that she was presently receiving medical treatment (T1-15.22). She denied ever being a frivolous or vexatious litigant (T1‑17.37).  She was completely happy with the police examining her computer (T1‑19.7).

32. [32]
    She alleged that the appellant kept taking over her Apple ID and she was forced to alter the spelling of her name (T1-20.15).

33. [33]
    It was put by the appellant he had not sent attachment O but the respondent denied this (T1-21.12).

34. [34]
    It was put to her that the email was fabricated by her but the respondent denied this (T1-22.45).

35. [35]
    In re-examination the respondent said the purpose of the proceedings in court was to ensure that she and her children were protected (T1-24.45). She denied ever sending any emails to the appellant using a pseudonym (T1-25.5). Emails and text messages sent by the appellant were very threatening (T1-25.25). Particularly the one “I know where you keep your knives. Sleep well.”

Ms AS

36. [36]
    AS was called to give evidence. She was a solicitor and the ex-wife of the appellant. They married in June 2004 and he moved out of the matrimonial home in March 2011 (T1-27.35). The appellant had served her with four separate applications for protection orders. The first being in about April or May 2011 the last being in October 2013 (T1-27.42). Two of these were dismissed at mentions, two proceeded to hearing but were dismissed on the basis they were vexatious and costs were ordered against the appellant (T1-28.1).

37. [37]
    The appellant made numerous allegations including of injury, alleging threatening messages were sent to him and a variety of other allegations. A magistrate had found the appellant engaged in a deliberate calculated pre-planned approach to fabricate a history of events to be used in the Family Court proceedings (T1-28.15).

38. [38]
    Additionally the appellant had confirmed in those proceedings he had actioned and cancelled her Facebook account and entered the former matrimonial home to retrieve property (T1-29.5). After they separated he did a password reset and shut her out of the account and closed it. Their property dispute is still continuing in the Family Court (T1-29.36). There have been three final hearing dates vacated due to an unsuccessful special leave application in the High Court (T1-29.40).

39. [39]
    Also the witness referred to findings made by Magistrate Kluck as to the appellant’s forceful language used in text messages and the abusive nature of them (T1‑31.10‑20). The appellant had appealed the decision of Magistrate Kluck.  In cross‑examination the witness conceded that she and the respondent had become friends (T1-33.1).  She conceded that the respondent had provided an email to the independent children’s lawyer expressing concerns as to the separation between the appellant and the respondent (T1-33.10). 

40. [40]
    She conceded in the various domestic violence applications there were no allegations of power being turned off or of any threats by the appellant with a knife (T1-34.15). She agreed that the appellant had applied for a Justice’s Examination Order and as a result of this the director of mental health wrote a letter to the Legal Services Commission expressing concerns about this being an abuse of process because there was absolutely no merit in the order (T1-34.25).

41. [41]
    She agreed that Judge Howard of the Federal Circuit Court declared him vexatious but this finding was set aside by the Full Court of the Family Court (T1‑36‑37).

42. [42]
    Exhibit 1 (tendered below) was the subpoenaed documents relating to AS. They contained the following:

1. (a)
   findings from Magistrate O'Driscoll dated 31 August 2011 in which His Honour noted that CR alleged he had lied to a doctor concerning the cause of injuries to him. He also found CR’s evidence to be unconvincing and dismissed his application;

2. (b)
   further findings by Magistrate O'Driscoll that CR engaged in a deliberate, calculated and pre-planned approach to fabricate a history of events (T15.30);

3. (c)
   findings by Magistrate Kluck on 18 October 2013 that CR was provocative to AS in text messages such as “You family let her die.” The respondent had found out her brother had cancer and CR by text said “You deserve to get it next it’s only a matter of time tick tock... better arrange your funeral insurance now to save money.” And “Your days are numbered.” There was also a finding that CR’s application bordered on being an abuse of process (T5.41);

4. (d)
   a protection application by CR against AS  dated 21 February 2014;

5. (e)
   a protection application by CR against AS dated 19 June 2013 (the one dealt with by Magistrate Kluck);

6. (f)
   a protection application by CR against AS dated 27 April 2011 (the one dealt with by Magistrate Kluck).   

43. [43]
    As to exhibit 1, the appellant in further written submissions (exhibit 21) submits that there should be no reliance on findings made by other magistrates. The respondent (exhibit 20) submits that these findings may be used as the court is not bound by the usual rules of evidence.

44. [44]
    I decline to rely on findings against the appellant made by other judicial officers. They depend on findings of facts made in other trials. It is the facts themselves which may be relevant. Even though the rules of evidence are not binding in this proceeding, the court should not simply set them aside and every attempt should be made to administer substantial justice^[3].

45. [45]
    A summary though of the relevant evidence of AS is:

1. (a)
   CR unjustifiably applied for a Justices Act examination of her;

2. (b)
   CR had unsuccessfully brought four DVO applications against her, with two being found to be vexatious and two being dismissed at mentions;

3. (c)
   CR did a password reset on her Facebook account without her consent which shut her out of her account;

4. (d)
   CR sent the text messages referred to in Mr Kluck’s judgment – intimidating ones.

The appellant’s evidence

46. [46]
    In the appellant’s first affidavit sworn 21 March 2014 (Exhibit 13), he says that he came home to their residence on 25 December 2013 to find himself locked out of his premises. The respondent told him the relationship was over and if his daughter or he or any member of his family came anywhere near her or her children she would kill them. She was holding a knife at the time of this conversation. The appellant took this threat seriously as he had previously been threatened with knives by the older son, L. Exhibit C1 is an email to the respondent outlining his concerns as to L’s behaviour to which there was no response. The appellant had no clothes after leaving the premises so called Policelink and asked for a “keep the peace job” so that he could collect the clothes.

47. [47]
    The respondent travelled to Newcastle a few days after the incident and he sent her a couple of text messages asking for the return of personal belongings but the only response he received was that if he or his daughter or any other member of his family came anywhere near her or her children she would kill them and she would keep a knife if necessary. He alleged she was going to throw out and destroy his personal belongings. After these incidents the respondent started a defamation campaign against him on internet social networking sites. Exhibit C2 is an email which the appellant alleges is defamatory. In the post the respondent says that the appellant is under criminal investigation for hacking into her computer remotely and stealing her identity. This tends to corroborate the allegations made by the respondent in her material.

48. [48]
    On 14 January 2014 the appellant applied to the Magistrates Court for a temporary protection order which was granted. The orders applied also to his daughter. He says that on 18 January 2014 he attended the respondent’s premises to collect his personal belongings with the police but he alleges that she refused to allow him to collect anything other than his car trailer and a few minor items and a number of items specified in paragraph 10 were not returned.  He alleges the respondent has taken over $40,000 of his belongings.  Exhibit C3 is a true copy of a police report and log books from the police of that day.

49. [49]
    He alleges that on 30 January 2014 he attended the police station to find that the respondent had filed a “misguided” complaint against him accusing him of breaching the DVO. This complaint was unfounded (Exhibit C4 is a copy of the police report). On 5 February 2014 the appellant learned the respondent was posting defamatory material about him on Facebook (C5). It was interesting in that Facebook account the respondent alleges that the appellant had gone on a texting spree and was emailing all of her closest friends and families. Again this tends to corroborate allegations made by the respondent against the appellant.

50. [50]
    Exhibit C6 alleged to be an email received by him from the respondent on 18 March 2014. The email alleges that he sent her the adverse email referred to previously. He denied this and reported the matter to police to request the respondent’s computer be examined. He believed a protection order was necessary because of the lengths the respondent would go to, to deliberately and intentionally fabricate evidence. He alleges that the allegations made by the respondent were false and that she had lodged three unfounded domestic violence orders against him with the police. In a second affidavit sworn 26 March 2014 (Exhibit 14) the appellant again alleges that she had been trying to fabricate evidence and alleges that her behaviour was emotionally and psychologically damaging to him and he had not been interviewed with respect to allegations of “computer hacking”. There was concern with respect to her mental health.

51. [51]
    In oral evidence the appellant said that since 18 January 2014 he had not had any contact with the respondent. When he received the emails on 18 March 2014 (Annexure O) he was sick in the stomach (T1-41.20). He alleged that the first thing he did was go to the police station and said he had not sent the email and asked the police to check his laptop. He also pulled out his iPhone and showed the police officer how an address could be changed and that he could send an email from anyone he wanted to (T1-42.12). This does show that the appellant has familiarity with the misuse of the internet. He alleges that the email had been filed by the respondent in Family Court proceedings and he wanted to find out who had sent this email. Interestingly he had completed a Masters in Information Technology and could track down emails and find out where they were from (T1-42.25). He further alleged he had no reason to contact the respondent and that he had a facility on his mobile telephone to block her mobile phone number and he had used such a facility to block her email address because he did not wish to communicate with her (T1-43.40). He denied hacking into her computer, threatening her with knives or turning off her power (T1-43.45).

52. [52]
    He said it was not necessary and desirable for an order to be made because he had not been in contact with her since 18 January 2014 (T1-44.2). He had no need to contact her and had no intention of doing so. He had moved away from where she lived to a location about 50 minutes away. He was not likely to come anywhere near her, didn’t go to the same shops as her and went to a different church (T1-44.17).

53. [53]
    As regards his application he said that if it was not for the recent emails of 18 March then if there was no order made on her matter then emails like that would not affect him (T1-44.45). He then said that because of the recent emails that would cause him particular difficulty because it means that there were allegations that he had breached the order and they wanted to make him go to the police station for hours and hours of police interrogation making his life difficult (T1-45.15).

54. [54]
    In cross-examination the appellant said that but for the emails of 18 March 2014 there would be no need for an order in his favour (T1-46.15). He persisted with the allegation that the respondent had threatened to kill him and his daughter or any member of his family (T1-46.35). Initially he denied threatening to get the locksmiths in on that occasion (T1-47.7) but then said “I was an owner of that property and had every right to call a locksmith to get into that property” (T1-47.12). This was in respect of the property he had with Ms AS. He agreed that he texted the respondent between the hours of 11pm and midnight on 25 December 2013 (T1-47.45) and agreed that there was text message contact with the respondent on Boxing Day (T1‑48.1).  He denied that a number of other mobile telephone numbers put to him were his numbers (T1-48).  He alleged firstly that he did not own any computers because the respondent took all of them (T1-49.7) but then conceded he had a laptop, an iPhone and iPad (T1-49.15).  He agreed that he told police on 18 March 2014 that he was able to make emails because he had a Masters in Information Technology (T1‑49.40).  He agreed he was adept at using computers (T1-49.45).  He denied installing spyware on the respondent’s computers (T1-50.12).  He knows how easy it is to make up an email address and send it to somebody else using a pseudonym (T1‑49.40 and T1-50.25).  He denied creating “Annexure O” and said he had taken his computer to the police station (T1‑50-51).  He agreed that he made a cross-application for a Domestic Violence Order five days after the respondent had made hers (T1-53.5).  He denied that his application was based on lies (T1-53.25).  He denied making false allegations regarding alleged injuries he sustained at the hands of Ms AS in previous domestic violence applications (T1-54.15).  He agreed with Magistrate O'Driscoll’s finding though that he had agreed in cross-examination he had deliberately lied to a doctor in 2008 concerning the infliction of an injury (T1‑55.1).   He denied turning off the electricity to her property (T1-56.26).  He alleged he did make a complaint to the police of this alleged threat by the respondent with a knife but could not appear to find that in the subpoenaed police material (T1‑57).  He alleged that the threat by her to kill him and his daughter or any member of his family was deleted and he couldn’t access this to show the police (T1-58.32).  He then explained that it was deleted because she wiped her phone which denied access to the emails (T1-58.37).  He then denied that he texted her 70 times on Boxing Day and said it might have been 10 times (T1-59.15). 

55. [55]
    He accepted he had previously sent mean spirited electronic communications to Ms AS because they had had a rocky relationship (T1-60.27).  He agreed that he had made several applications for special leave to the High Court and had been declared a vexatious and frivolous litigant in previous proceedings (T-60-2.17).  He agreed that he had appeared on Today Tonight with grievances against Emmanuel College (T1-62.35) and had a website up concerning them (T1-62.45).  He agreed attending Dr Varghese and Dr Larder, psychiatrists and was diagnosed with a depressive disorder (T1-63.5).  He agreed that he had put videos on YouTube making statements against Emmanuel College (1-63.30).  He then alleged he had lost control of that website (T1-64.32).  He agreed from the material he had and the way the respondent was acting that he made application to the Beenleigh Magistrates Court for a Justice of the Peace mental examination (T1-67.25).  He also made one for Ms AS (T1‑67.47). 

56. [56]
    Exhibit 2 (tendered below) was the psychiatric report tendered in re-examination. In respect to the Telstra report he said he didn’t have the opportunity to cross-examine somebody from Telstra to identify the anomalies in the report (T1-69.15).

Submissions by the respondent below

57. [57]
    Counsel for the respondent submitted that it was appropriate for the Court to make an order under s 37 of the DFVP Act.  It was submitted that the conduct of the appellant fell within the definition of domestic violence contained in s 8 of the DFVP Act.  Exhibit 3 disclosed that there were at least three text messages between the appellant and the respondent between the hours of 11pm and 12 midnight on 25 December 2013.  Additionally the appellant’s version that the respondent threatened him with a knife should be rejected because he did not keep the relevant text message (T1-72.25).  It was submitted that the respondent’s evidence would be accepted.  The appellant had displayed a vindictive and spiteful nature.  Exhibit 3 showed 70 text messages on Boxing Day which were harassing in nature (T1-73.30).  As to the emails on 18 March 2014 taking into account the evidence of Ms AS one could readily draw the conclusion (he did send the emails).  The appellant was a person who had used text messages to suit his own ends.  It was submitted that the taking out of Justices Examination Orders on both CM and Ms AS showed intimidatory and harassing conduct to gain an advantage (T1-75.30).

Appellant’s submissions below

58. [58]
    The appellant submitted that the respondent’s application had very little supporting evidence. There was no supporting evidence of a knife being produced or evidence of power being cut off (T1-76.45). It was submitted there were no emails (after 18 January 2014). He denied sending the email on 18 March 2014 and in fact asked the police to investigate this (T1-77.17). He had no reason to contact CM. There was no evidence of hacking or of any Spyware on the computer (T1-77.35). The text messages provided in her affidavit could not be said to be harassing (T1-78.12). It would be accepted there a number of unfounded reports by CM to the police (T1‑79.20).  There was no medical evidence supporting the contentions there was any effect on CM and it would be a long bow to draw the conclusion there was domestic violence or the potential for it to occur again (T1-75.45).

Decision of the magistrate

59. [59]
    The learned magistrate handed down her decision on 8 July 2014. The learned magistrate referred to the background to the matter, the Telstra documents, the evidence of the respondents and Ms AS and the evidence of the appellant. Her Honour then correctly referred to the law which applied here. Ultimately the learned Magistrate accepted on the balance of probabilities that the emails were sent by the appellant to the respondent. Her Honour found that they amounted to acts of domestic violence. Her Honour also found that the Justices Examination Order was harassing and an act of domestic violence which was similar behaviour as that towards Ms AS. There was a large amount of contact between the appellant and respondent via mobile telephone supported by the Telstra records. Her Honour found there were acts of domestic violence and that the appellant having difficulty moving on from relationships. She found it necessary and desirable for an order to be made in favour of the respondent. She did not accept the appellant’s evidence that CM threatened to kill him and noted that he did not save this message. In the result, her Honour preferred the evidence of CM where it conflicted with the evidence of the appellant and dismissed the application of the appellant.

Fresh evidence

Appellant

60. [60]
    The appellant seeks leave to file an affidavit by him sworn 25 May 2015 (Exhibit 3). He submits that the affidavit raises issues as to the authenticity of the purported emails sent on 18 March 2014. In that affidavit there is an annexure which encloses a printout with respect to the routing path of the email. The routing path notes “Walsh’s practice.local”. It is said that this relates to a firm of chartered accountants which employs the appellant’s mother.

61. [61]
    The appellant submits that the sending server namely BigPond is not an authorised sending server for the appellant’s email address. He says that he does not work at Walsh’s practice nor does he have access to the computers at Walsh’s practice. He alleges that an Apple Mac computer sent the email whereas Walsh’s practice does not have such computers but the respondent does. Walsh’s practice does not use BigPond internet. It is submitted that the respondent has manufactured this evidence to support her application.

62. [62]
    In light of the importance of this evidence and the fact it was obtained after the trial it seems appropriate for me in the interests of justice to admit the evidence and I therefore admit it.

63. [63]
    The appellant gave oral evidence in this court.

64. [64]
    He said his mother worked at Walsh’s practice (T1-5.32) but denied he had access to the Walsh computers. He conceded he had access to his mother’s computer but only to arrange photographs on the program Picasa (T1-6).

65. [65]
    He repeated his allegation that he did not send the 18 March emails (T1-16.32.)

66. [66]
    He gave various explanations as to how these emails did not originate from him (see T1-7-T1-8; T1-19.30-45 and Exhibit 7). He alleged the routing path was a forgery by the respondent (T1-11.10).

67. [67]
    He said he provided his computer and iPhone to the police (T1-11.20). He said his provider’s name was sonic.org.au (T1-16.40). I note this appeared in the router path. CR claimed in his evidence on 1 June 2015 that his email address was “fakely” inserted on the router path document (T1-17.1). He agreed he has a Masters in IT (T1‑17.37)

68. [68]
    He was recalled to give evidence as when he cross examined CM he raised new material which he had not raised the day before.

69. [69]
    When recalled to give evidence he said that his ISP started with 192 and not 165 (see Exhibit 11 and contrast this with annexure C to his affidavit). He said that 165 denotes a Telstra ISP which he did not use, although someone with a password could access a BigPond router.

70. [70]
    He withdrew his allegation that the router path contained in CM’s Family Court affidavit was a forgery as alleged the previous day (T2-34.17). He now alleged that CM created the email trail by replying to an email from his mother and then adding his email address to her email account settings. He gave an elaborate explanation on how she did this although he conceded that the Walsh’s address was not in the second email.

71. [71]
    When cross-examining CM he produced Exhibits 9, 10 and 11 which he alleged supported his contentions.

72. [72]
    In my opinion, at the end of his evidence, there was no valid explanation given by CR on why Walsh’s practice was present on the routing path on Exhibit N. He admitted having access to his mother’s home computer though. Also it is clear the routing path document happened to have his email address and his provider as well.

Respondent

73. [73]
    In a further affidavit sworn on 2 Jun 2015 CM produces actual “screen shots” of the 18 March 2014 emails (Exhibit 8).

74. [74]
    CM also gave oral evidence. She said she received the emails on her computer and iPhone but first saw them on her iPhone (T2-6.17). She was cross-examined about the contents of the routing path and on Exhibits 9, 10 and 11.

75. [75]
    She appeared genuinely nonplussed as to the meaning of the routing path (see e.g. T2‑8.32 and T2-14.45). She denied the theory put forward by the Appellant. She did say that CR obtained the Telstra router and at one point had the password (T2‑24.20).

76. [76]
    She denied creating the disputed emails (T2-23.30).

77. [77]
    I formed the clear impression from her evidence that she was naïve compared to CR about these matters. It was in fact the police who showed her how to find the routing path to start with.

Submissions as to the emails

Appellant

78. [78]
    The appellant submitted:

1. (a)
   it could not be proved that he sent the disputed emails;

2. (b)
   the routing information showed that a BigPond IP address was used. He does not use BigPond. Because CM used a BigPond system she must have created them;

3. (c)
   he had no motive to send the emails knowing that it would breach the temporary protection order – why would he do this?- he posed rhetorically;

4. (d)
   he says that his attendance at the police station to provide his laptop immediately after receiving the emails at 6.47pm is inconsistent with his having sent the emails;

5. (e)
   why would he use his own email address?, he again posed rhetorically;

6. (f)
   he had nothing to gain by sending the emails;

7. (g)
   in an email dated 11 March 2014 (Exhibit 12) the routing path for one of his emails shows that Mac OS X Mail 7.0 was used. This is to be contrasted with Mac OS X Mail 6.6 in the disputed emails. This shows he did not send them;

8. (h)
   he uses a “bigair” server at Griffith university (see Exhibit 12). There is no evidence of this on the disputed emails;

1. (i)
   he did not know if his mother could access her work computer from home;

10. (j)
    he alleged to be using Telstra, one has to be a Telstra subscriber, and he is not;

11. (k)
    it was CM who had the motive to create the false emails. She could allege he breached the protection order by doing so. She felt the police did not do enough so she manufactured evidence against him;

12. (l)
    she gave contradictory evidence as to her knowledge of ISP addresses. In fact she knows a lot about computers;

13. (m)
    she had the means of doing this – the Telstra account. The email had capitalisation which she uses. Macmail is on the routing path- consistent with her devices;

14. (n)
    the evidence of Ms AS is not probative of any matters in this case as their relationship was quite different; and it was a long time ago;

15. (o)
    the legal proceedings against Ms AS were different;

16. (p)
    as to the wording of his application, he should not be criticised over this – he was meaning to say the same thing.

Respondent

79. [79]
    The respondent submitted:

1. (a)
   the obvious answer is the truthful one – his email address is in both emails. He sent them. The “fresh” evidence does not change the position;

2. (b)
   the most plausible explanation is CR sent the emails;

3. (c)
   it is noteworthy he did not have the police examine his iPad from which he could have easily sent the emails;

4. (d)
   there is no evidence that one has to be a Telstra subscriber to use Telstra particularly considering anyone with wireless access on a computer can access a Telstra router provided they have the password if secured;

5. (e)
   CR had an extensive knowledge of computers, CM did not;

6. (f)
   As to the question of motive all of the evidence needs to be considered.

7. (g)
   the evidence of AS assists in the determination of this factual issue as it shows his modus operandum;

8. (h)
   the presence of Walsh’s practice on the routing path strengthens the view that the appellant was more likely involved in the sending of the first email. The appellant has accepted he has received an email from Walsh’s previously;

1. (i)
   the appellant has given deliberately confusing evidence of the routing path;

10. (j)
    as to any difference in the operating system this can be explained by the possibility the emails were sent from different computers;

11. (k)
    the wider context shows he is capable of fabricating evidence;

12. (l)
    he admitted lying to the doctor (T1-55.20);

13. (m)
    he did not allege in his application that CM was carrying a knife when making threats;

14. (n)
    there is no real difference in the relationship with AS. The fact is AS and CM have been embroiled in unjustifiable proceedings brought by the appellant.

Findings on the fresh evidence

80. [80]
    I generally accept the respondent’s submissions for the reasons that follow. I find the most obvious answer is the correct one – CR created these emails. His email address and provider are on the routing path. He does not allege this is a forgery. He is the person with a family connection with Walsh’s practice.

81. [81]
    Relevant to a finding on the balance of probabilities is the evidence of Ms AS. It seems to me the evidence of Ms AS can be regarded as similar fact evidence. Whilst the rules of evidence do not apply it seems to me one should have regard to the principles applicable to such evidence. In Jacara Pty Ltd v Perpetual Trustees WA Ltd^[4]it was noted at [70] that the admissibility of similar fact evidence in civil cases as developed by analogy with the general law, however in Mood Music Publishing Co Ltd v De Wolfe Ltd^[5]Lord Denning MR noted that in civil cases courts will admit evidence of similar facts if it is logically probative in determining the matter in issue provided it is not oppressive or unfair to the other side and the other side has fair notice of it and is able to deal with it. In other words, the admissibility of similar fact evidence in civil cases depends on its relevance to the facts in issue.

82. [82]
    More recently in the UK it has been said that the only test of admissibility is relevance.^[6]Northrop J in Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd^[7]contrary to Lord Denning considered oppression and unfairness to be irrelevant considerations.

83. [83]
    To my mind the touchstone of admissibility is always the question of relevance, and a fact or facts are relevant if they are logically probative as to the issues in dispute.^[8] 

84. [84]
    Whichever approach is to be taken the evidence was admissible under s 145, but it also seems to me that there were a number of similarities between the evidence of Ms AS and CM. 

85. [85]
    Once admitted then it may make more probable the fact in dispute.^[9]The evidence of Ms AS strengthens the conclusion that on the balance of probabilities the appellant created this email. Ms AS gave clear evidence of the adeptness of the appellant with access to internet accounts, resetting passwords and the like. He certainly would be capable of creating a routing trail which would put people off the scent.

86. [86]
    Ms AS also gave clear evidence that CR was capable of sending vitriolic emails as the disputed ones are.

87. [87]
    Having regard to this evidence, and the impression I gained from both witnesses in the witness box I prefer the evidence of CM and reject that of CR.

88. [88]
    I found CR evasive. He clearly is a person who is adept at the use of computers and the interfering with the accounts of another. He is a person who can access e.g. a person’s Facebook account and can close it down and indeed is prepared to do so. He is capable of creating these emails and blaming others.

89. [89]
    He is prepared to exaggerate his evidence.

90. [90]
    For example in his affidavit (Exhibit 13) at paragraph 5 he alleged that after 25 December 2013 he “sent the respondent a couple of SMS text messages…”. This is clearly wrong when one has regard to Exhibit 3 – at least 56 were sent. Contrast this with CM’s affidavit (Exhibit 12) where CM at paragraph 26 correctly stated that CR sent “numerous” text messages to her.

91. [91]
    Also in his evidence he claimed that the respondent threatened to kill him whilst carrying a knife. Yet in his application, Exhibit 19, he did not distinctly state this. I find if it had happened, as he alleged, he would have said this.

92. [92]
    As to the 2008 injury he either lied to the doctor or to the court, most likely to the court.

93. [93]
    As to CM I consider she is far less adept at the use of computers and it is not suggested that in the past she has interfered with the accounts of others.

94. [94]
    I find it unlikely she would have sent the routing path to the police (see annexure C to Exhibit 3) if she created it- it would have been too big a risk for her to be caught out.

95. [95]
    I consider that CR did have a motive to send these emails. Exhibit 16 is the varied protection order dated 4 March 2014 which varied the order so that CR could not contact CM. This was served on CR after that date but before the emails were sent. The language in the emails fits in with anger at such an order being made.

96. [96]
    I consider the texts referred to at [110] below are very similar to the disputed ones and shows a propensity by CR to send such emails.

97. [97]
    I note Exhibit 2 the report of Dr Varghese states at page 9 that “[CR’s] behaviour can be understood as constituting as maladaptive attempt to deal with his emotional decompensation, in that regardless of the possible negative consequences to himself it makes him feel better.” This relates to the extraordinary aspects of his behaviour in the Family Court. This equally applies (one would have thought) to his interactions with his ex-partners.

98. [98]
    In those circumstances, I am satisfied on the balance of probabilities that the appellant did create the disputed emails.

Submissions as to the appeal

Appellant

99. [99]
    In his grounds of appeal the appellant alleges:

1. (a)
   the magistrate erred in making the protection order in favour of the respondent;

2. (b)
   the magistrate erred in not granting a protection order in favour of the applicant;

3. (c)
   the magistrate provided inadequate reasons;

4. (d)
   the magistrate showed ostensible bias;

5. (e)
   the magistrate erred in finding there were acts of domestic violence by the appellant;

6. (f)
   the magistrate erred in determining it was necessary and desirable to grant the protection order.

100. [100]
     The appellant’s written outline did not provide much more detail than the grounds of appeal but the appellant provided more detailed oral submissions as follows:

1. (a)
   as to the application for the Justices Examination Order, he applied for this on proper grounds and the JP was prepared to make the order;

2. (b)
   if the court finds that it cannot be proved that CR sent the 18 March 2014 emails, then the last contact by him was in about February 2014;

3. (c)
   there is no longer any contact between them. They live on the opposite sides of town. It is not necessary or desirable for an order to be made;

4. (d)
   the Telstra records don’t make much sense with a number of “double ups.” Also CM sent SMS’ to him. It was not unreasonable bearing in mind they had just broken up and he was concerned about his property. It was only on one day. There is no evidence as to the content of the messages;

5. (e)
   her complaint to the police on 18 January 2014 was found to be unfounded;

6. (f)
   no action was taken against him concerning the allegations of power being turned off which tends to prove he did not do this;

7. (g)
   section 4 of the DFVP Act was not applied by the magistrate in connection with his mental health condition;

8. (h)
   the evidence of Ms AS is not probative of any matters in this case as their relationship was quite different; and it was a long time ago;

1. (i)
   the legal proceedings against Ms AS were different. 

Respondent

101. [101]
     The respondent in written submissions submits:

1. (a)
   the order was necessary and desirable;

2. (b)
   the appellant was not the person in most need of protection- it was the respondent as correctly identified by the magistrate;

3. (c)
   adequate reasons were given for the decision.

102. [102]
     In oral submissions the respondent submitted:

1. (a)
   it relies on its submissions as to the fresh evidence matter;

2. (b)
   the only reason for no action being taken on 18 January 2014 was the opinion of the officer;

3. (c)
   the courts may use the evidence of AS to strengthen the case against CR; in particular her evidence of the “hacking”;

4. (d)
   as to the Justices Examination Order the appellant materially did not disclose CM’s application. This was an abuse of process. This is corroborated by the application concerning AS;

5. (e)
   the appellant initially denied having any computers but then admitted to having a laptop;

6. (f)
   he alleged he lied to the doctor (see T1-54 and 55);

7. (g)
   section 4 was clearly taken into account by the magistrate;

8. (h)
   Exhibit 2 also shows that it is necessary and desirable to make the order.

Ultimate findings

103. [103]
     I generally accept the respondent’s submissions for the reasons that follow.

104. [104]
     The learned magistrate was able to assess the witnesses in full and Her Honour was perfectly entitled to reject the evidence of the appellant and accept the evidence of the respondent. The evidence of the respondent was supported by the similar fact evidence of Ms AS i.e. the appellant was a person who was capable of interfering with internet accounts and was adept in the use of technology. He had also sought a Justices Examination Order on Ms AS and clearly there was much telephone contact as proved by the Telstra records.

105. [105]
     The appellant kept no evidence of this alleged threat to kill made by CM.

106. [106]
     In those circumstances, as I say giving due regard to the views of the learned Magistrate on the evidence, I prefer the evidence of CM in comparison to the evidence of CR. I also rely on the findings I have made at [80] to [98] above.

107. [107]
     I also consider the material attached to CM’s affidavit corroborates her allegations concerning computer interference by the appellant made in her affidavit (exhibit 12).

108. [108]
     The application for the Justices Examination order^[10]was in my judgment clearly an abuse of process. CR, a qualified lawyer, deliberately failed to disclose the application made by CM when he applied for the order.^[11]It was applied for out of spite and/or to gain an advantage over the respondent I infer from all of the material. He had done exactly the same as for AS. The legislature should consider amending the legislation to only permit a judicial officer to make the order.

109. [109]
     As to the appellant’s contentions regarding SMS contact, I consider Exhibit 3 (tendered below) shows that CR sent far more messages than CM and CM only responded to him. I consider in the context put forward by CM this was unreasonable and harassing contact. He continued texting her from the early hours of the morning (see footnote 2).

110. [110]
     As to the complaint on 18 January 2014 my impression of the material is that no action was taken based on the opinion of the particular officer concerned and this does not undermine the case against the Appellant. The background is that on 18 January 2014, CR went to CM’s house to collect some property in the company of police. After he left he sent texts to her “You’re so white trash”, “Welcome to 2 years in court”, “I will be applying today’s order as a breach of the DVO”; “I will report the imac stolen apple have verified it at your location a few days ago”; “Now we are back in the family court please attend to providing the attached documents in the next 14 days don’t worry I’ll subpoena them if I have to” and “I was almost going to help you recover five years of facebook data for you I guess that is not going to happen now.”^[12]

111. [111]
     I note that Exhibit 3 corroborates the fact that 15 texts were sent by CR to CM on 18 January 2014.

112. [112]
     Now CM made a complaint to the police about these. At that stage the DVO did not contain a no contact condition. The police report (Annexure CER 4 to the affidavit of CR, Exhibit 13) notes that CR did breach the conditions but it was regarded as minor, there were no injuries and no weapons were involved. The report confirms that a number of texts were sent including the white trash one and the appellant admitted to sending the texts and admitted to this being childish. It was found to be “unfounded” due to the minor nature of the breach.

113. [113]
     I find that the texts were sent and were in breach of the order and the fact no action was taken does not undermine the case against the appellant.

114. [114]
     As to the contention no action was taken against the appellant concerning the turning off of the power, this does not prove he did not do it. It shows that he was not caught doing it. I infer on the evidence of CM that he did turn off the power as alleged.

115. [115]
     The magistrate was clearly aware of s 4 and specifically mentioned it her judgment (see [27]). I am satisfied on the evidence that the respondent was the most in need of protection in this matter.

116. [116]
     As noted in my findings concerning the emails I find the evidence of AS helpful and probative on the issues in this matter.

117. [117]
     Having preferred CM’s evidence, I now turn to the application of the DFVP Act.

Should an order have been made in favour of the respondent and not in favour of the appellant ? 

118. [118]
     The DFVP Act in s 8 defines “domestic violence” to mean:

“… behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

…

2. (b)
   is emotionally or psychologically abusive; or

…

6. (f)
   in any other way controls or dominates the second person and causes the second person to fear for the second person's safety or wellbeing …”

119. [119]
     Section 11 of the Act defines “emotional or psychological abuse” to mean “behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person”.

120. [120]
     Section 37 of the Act allows a court to make a protection order when it is satisfied that:

1. (a)
   a relevant relationship exists between the aggrieved and the respondent; and

2. (b)
   the respondent has committed domestic violence against the aggrieved; and

3. (c)
   the protection order is desirable or necessary to protect the aggrieved from domestic violence.

121. [121]
     In deciding whether a protection order is necessary or desirable the court must consider the principles mentioned in s 4 of the Act. Section 4 states:

“(1)  This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

2. (2)
    …

4. (d)
   in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;”

122. [122]
     Having reviewed the evidence and giving due weight to the learned Magistrate’s findings, I am satisfied on the evidence on the balance of probabilities as follows:

1. (a)
   There was a relevant relationship between the parties^[13];

2. (b)
   On Christmas Day, 25 December, 2013 the appellant texted the respondent stating he was moving out, “be home in 15 minutes or I’m calling the locksmith”;

3. (c)
   He sent a similar text message a short time later;

4. (d)
   The appellant was agitated when the respondent arrived at the house;

5. (e)
   The appellant turned off the mains power;

6. (f)
   The appellant let two dogs out of her property;

7. (g)
   The appellant reset her phone during a conversation at about 11.30pm;

8. (h)
   The appellant changed her password in iTunes and iCloud;

1. (i)
   A number of photographs and documents were lost from CM’s devices because of the Appellant’s conduct;

10. (j)
    He blocked access to her email accounts because of the change of password;

11. (k)
    Numerous text messages were sent on 26 December 2013 amounting to harassment;

12. (l)
    The appellant went to the house on 27 December 2013 but had gone by the time the police arrived;

13. (m)
    He turned off the power in early January 2014;

14. (n)
    All of this conduct caused much stress to the respondent;

15. (o)
    There were threatening text messages from the appellant on or about 12 January 2014;

16. (p)
    He sent a message that day “sleep well I know where you keep your knives” and then he reset her phone;

17. (q)
    Her password was changed yet again on about 12 January 2014;

18. (r)
    The respondent was having nightmares and developed panic attacks as a result of this conduct;

19. (s)
    The appellant had set her Apple devices to “erase”;

20. (t)
    The appellant by way of abuse of process obtained a Justices Examination Order under the Mental Health Act;

21. (u)
    On 18 January 2014 the appellant continually tried to take items which did not belong to him. He also sent abusive texts to her that day;

22. (v)
    The appellant had changed her 15 year old email account to an alias;

23. (w)
    He changed her Facebook name to Vjay Masden;

24. (x)
    All photo albums have been deleted by the appellant and her business Facebook page was deleted;

25. (y)
    The power was turned off again on 27 January 2014 by the appellant;

26. (z)
    On 18 March 2014 the appellant sent attachments N and O to the respondent in breach of the temporary protection order.

27. (aa)
    The threatening texts and emails had taken their toll on her health, mentally and physically, and it has affected the children;

28. (bb)
    The respondent has never made any threat to kill the appellant or his daughter and has not made threats against her, the appellant or his property and has never threatened him with a knife.

123. [123]
     I find that a number of these acts^[14]amounted to acts of domestic violence by the appellant towards the respondent. On the evidence the respondent was the most in need of protection.

124. [124]
     The reasons of the magistrate were adequate and there is no material to support the view that there was bias either ostensible or actual.

125. [125]
     The learned magistrate was right in concluding that a domestic violence order in favour of the respondent was necessary and desirable. Her Honour was also right in concluding that there was not sufficient evidence to conclude an order should be made in favour of the appellant.

126. [126]
     I note that there is potential for ongoing contact bearing in mind that the appellant has now sued the respondent in the Magistrates Court. I also take into account Exhibit 2 (Dr Varghese’s report) quoted above as being relevant to the determination.

Conclusion

127. [127]
     In the circumstances I confirm the decisions appealed against and dismiss the appeal.