TKG v NKQ[2015] QDC 258

DISTRICT COURT OF QUEENSLAND

Appeal

1. [1]
   This is an appeal pursuant to s 164 of the Domestic and Family Violence Act 2012 (Qld) (DVFA) against the decision of the Magistrates Court at Proserpine, Queensland, delivered on 8 May 2015 and dismissing the Appellant’s Application to vary a Domestic Violence Order made in her favour on 18 October 2013 (2013 Order). This appeal was heard on Monday, 12 October 2015. The Protection Order will expire on Saturday 17 October 2015, unless extended.

Orders Sought on Appeal

2. [2]
   The Appellant seeks orders setting aside the first instance decision of 8 May 2015 and a variation of the 2013 Order in the following respects:-

1. (a)
   that the names of her son, born 10/5/2007 (8 years) and daughter, born 26/3/2006 (9 years), be included in that order; and

2. (b)
   the Protection Order be extended for a further period of two years from 17 October 2015.

3. [3]
   The 2013 Order was made by consent.^[1]In the application for that order, the Appellant said she did not want the children named in the order.^[2]As will be seen later, she now says that she adopted that course on the advice of the Police officer who prepared the application, Senior Constable Massey, and had asked S/C Massey to have the children named in the order.

Nature of This Appeal

4. [4]
   The nature of appeals under the DVFA was recently considered by McGill SC DCJ in GKE v EUT,^[3]in which His Honour held that the appeal is by way of rehearing. That involves this Court affording respect to the decision of the Magistrate, bearing in mind the advantage the Magistrate had in seeing and hearing the witnesses give evidence; but reviewing the evidence, weighing the conflicting evidence and drawing its own conclusions.^[4]

Grounds of Appeal

5. [5]
   The following are the grounds of appeal:-

1. (a)
   the Magistrate failed to give proper consideration to the principles for administering the Act as set out in s 4 of the Domestic Violence Family Protection Act 2012 (as amended);

2. (b)
   the Magistrate failed to give proper consideration to the grounds of the original order pursuant to s 91 of the Act;

3. (c)
   the Magistrate erred in concluding that there was a finding of the Court that made the original order, in circumstances where the order was made by consent without admissions and the Police were the original applicant;

4. (d)
   in relation to text messages sent by the child on the 3 January 2015, the Magistrate gives possible explanations for occurrences, but makes no reference to any evidence of such explanations as being given;

5. (e)
   the Magistrate erred in finding that there was no further allegation of domestic violence between 3-25 January 2015 as there was a text message sent from the child’s phone on the 18 January 2015;

6. (f)
   the Magistrate erred in finding that the text messages sent on the 18 January 2015 were purely speculation as there was undisputed evidence the children were in the respondent’s care at the time;

7. (g)
   the Magistrate erred in rejecting the evidence of the Applicant in favour of the Respondent, in relation to the incident on the 3 January 2015 as there was undisputed evidence of domestic violence;

8. (h)
   the Magistrate made errors at law in determining that the content of text messages sent by the respondent to the child on the 19 December 2014 could not be defined as emotional or psychological abuse pursuant to s 11 of the Act;

1. (i)
   the Magistrate should not have preferred the evidence of the respondent in relation to the alleged incident on the 20 March 2015;

10. (j)
    the Magistrate made errors at law in concluding that it was necessary that the alleged psychological abuse needed to be directed at the children;

8. (k)
   the Magistrate erred in concluding that the respondent had not committed an act of domestic violence;

1. (l)
   the Magistrate erred in concluding that it was neither necessary nor desirable to vary the protection order;

10. (m)
    the Magistrate made errors at law in concluding that the applicant’s beliefs were not substantiated by the evidence and that such beliefs were held to be unreasonable.

Grounds Relied Upon in the Application for the 2013 Order of 18 October 2013

6. [6]
   The Appellant relied on the following grounds in obtaining the 2013 Order:-^[5]

3. “(a)
   The aggrieved and respondent are divorced and have shared custody of their two children as set out by the Family Law Court. On 9/10/13 the respondent has attended the home address of the aggrieved in an angry state. The respondent has approached the front door and banged loudly on the door for about 20 seconds. The aggrieved saw the respondent was angry and did not answer the door. The aggrieved was scared that the respondent was going to break the door and gain access to her premises. The respondent returned to his vehicle about 2 minutes later and began sounding the horn constantly until police drove past the area and the respondent left. About 1.5 hours later the aggrieved began receiving text messages from the respondent. The contents of these messages included ‘you are a disgusting mother, you deserve nothing’; ‘the court orders are pissing me off, you are a sad disgusting mother and I so hope karma get you’; ‘you sad sad woman’; ‘you are a disgusting person and you’ll never find happiness with any man’.

2. (b)
   The aggrieved and respondent continued to have contact with each other in regard to sharing custody of their children. On 16/8/13 police were called to the address of the aggrieved in relation to a verbal argument over child custody matters resulting in a DV referral. On 4 separate occasions between 21/8/10 and 3/5/11 the police were been involved with both parties and cross orders were current. At this time now there is a current Protection Order in place naming the aggrieved as the respondent which is current until 8/11/13.

3. (c)
   There is necessity for the aggrieved and the respondent to continue contact due to shared custody arrangements through the Family Court but it is desirable to protect the aggrieved due to the recent intimidating and derogatory content of text messages received from the respondent and ongoing conflict between the two parties. The aggrieved states the text messages and behaviour of the respondent is causing her anxiety and unnecessary stress each time she is to deal with the respondent in regards to the children. Police believe that further behaviour of this nature will continue unless there is some intervention by another party/authority.”

(sub paragraphing added)

Grounds Relied upon in Application for Variation of 2013 Order

7. [7]
   The Appellant, in her affidavit of 16 April 2015, sets out her case in support of her application to vary the Protection Order. She asserts that the Respondent had been guilty of aggressive behaviour towards her, through the children, emotionally and psychologically, since 25 October 2012 and that the relationship the children have with their father is characterised by fear and anxiety. Further, she said that several text messages^[6]were causing a great deal of stress and pressure on her children and her. In support of that allegation, she relied on the following incidents.

Daughter’s Text Message to Father 16/12/2014^[7]

8. [8]
   The Appellant annexed to her affidavit a text message from the parties’ daughter to the Respondent. In that text, their daughter told the Respondent that her mother had told her that he was using up all her hospital money because he did not get her crutches on time. The text went on to accuse the father of lying and telling him her mother needed money for Christmas presents. The Respondent replied saying he had no idea what she was talking about.

Respondent’s Text Message to Daughter 19/12/2014^[8]

9. [9]
   On 19 December 2014, there was an exchange of text messages between the Respondent and his daughter which can be summarised as follows:-

1. (a)
   The Respondent advised that he had decided to go to Court and if the children were to go to Brisbane, he was meant to be told.

2. (b)
   The daughter accused the Respondent of being a very bad dad for taking her hospital money because he did not get her crutches on time.

3. (c)
   The Respondent replied that he was not at all happy that his daughter’s money was gone and that he did not spend her mother’s money. He asked his daughter to ask her mother why she needs $400 per hour lawyers, and said it was sad that his daughter was doing her mother’s nasty work, his daughter should stop blaming him for how her mother wastes her money.

Emails 3/1/2015 between Appellant and Son^[9]

10. [10]
    On 3 January 2015, there was an exchange of emails between the son and the Appellant, which can be summarised, relevantly, in these terms:-

1. (a)
   The son said his father was going nuts, saying he, the son, was talking to him about Court. The son said that after a while, his father settled down, he is crazy and he hates him.

2. (b)
   The mother replied, saying hahaha she had told her son one day his father might kill him when he gets crazy angry and that it was dangerous for him and his sister and that she would tell her lawyer how scary and crazy his father was and that the son should stand up for himself.

3. (c)
   The son replied that he really wanted to come home because he hated it there with his father.

4. (d)
   The mother replied, saying it’s wrong that his father goes crazy for nothing and that the son should keep his phone close to him otherwise his father will delete all the messages.

5. (e)
   The son said he wanted to come to his mother’s house forever and asked if all he was telling her was going to the Judge, to which his mother replied she would tell the Judge.

6. (f)
   The son replied that he was scared and did not want to die, that his father was crazy but that his sister had not backed him up.

7. (g)
   His mother then asked if he wanted her to call the Police to which he replied – “its okay you evident call the Police”.

Text Message Son to Appellant 9/1/2015^[10]

11. [11]
    On 9 January 2015, the son responded to a text message from his mother, saying that his father was trying to take away his phone.

Text Message Exchange between Daughter and Respondent 18/1/2015^[11]

12. [12]
    On 18 January 2015, the daughter sent a text message to the Respondent, telling her father that she and her brother hated it at mum’s house, it was boring and that her mother keeps yelling at her and her brother, that it was not fair and that she wished she was at her father’s house. Later she sent a further text message to her father saying that her mother kept smacking her and her brother, and pulling their ears. She said that “we really want to stay at your place forever because now we have big scratches all over us we love you”.

13. [13]
    The Appellant deposed^[12]to finding these text messages on her daughter’s phone on 15 April 2015 and said that the children were in the Respondent’s care from 3 to 25 January 2015. She said she was shocked by the text messages and formed the view that the Respondent had obviously “either coerced (sic) or made (her daughter) write the text messages on her phone or taken her phone and written it himself to send it to his phone”.^[13]That allegation was not put to the Respondent in cross-examination.

Alleged Incident of 20 March 2015 When Respondent Collected Children from School^[14]

14. [14]
    The Appellant deposed to being told by her daughter that, when the Respondent picked the children up from school on 20 March 2015, he subjected them to a particularly aggressive tantrum whereby he was yelling and screaming for about 20 minutes. His outburst included expletives, which the Appellant considered too vile and disgusting to set out. That was denied by the Respondent.^[15]

15. [15]
    Finally, the Appellant expressed the belief^[16]that a Protection Order naming the children would regulate the Respondent’s temperamental behaviour and prevent him from venting his anger and frustration through the children, thus improving the children’s relationship with him and his relationship with her.

Evidence of Respondent in Variation Application

16. [16]
    The Respondent also put before the Court an affidavit in response to that of the Appellant. In that affidavit, he deposed to he and the children obtaining counselling from the Whitsunday Crisis Counsel Services (sic), which he said had been of valued help to both he and the children. He said it assisted him to understand his errors in communicating through text messages, and helped him understand how to deal with problems with the Appellant and communication with her.

17. [17]
    Annexure MJF2 to the Respondent’s affidavit is a drawing by his son, on which the son wrote the following words:-

“I wish mum can stop slaping (sic) me in the face!! BIG TIME! Stop making me send mean stuff to dad you stop doing it get over it will you; stop pulling my ear”

18. [18]
    Exhibit MJP3 to the Respondent’s affidavit is a statutory declaration from his girlfriend, O, a mother of two children aged 15 and 18 years. She deposes to having known the Respondent for approximately six months, and spending time with him and his two children. She said both children expressed love, happiness and lots of cuddles towards their father and expressed the opinion that the Respondent was a wonderful father and that his children always looked forward to spending time with him.

Counsellor’s Report

19. [19]
    Exhibit MJP4 contains documents relating to the counselling, including the counsellor, Ms Jan Waetford’s, case notes which refer to another of the documents, namely children’s drawings. Importantly, to my mind, is the son’s drawing, to which I have earlier referred, and the words expressed on it. Another drawing, which I infer the daughter made, lists the good and bad things in relation to mum and dad (respectively) in these terms:-

20. [20]
    Next to the column of dad’s good stuff, above with an arrow, is written: “I love dad 100% because of all the good stuff”. Next to the column with mum’s bad stuff, are the words “I love mum 50% because of all the bad stuff”, with an arrow pointing to the bad stuff. Finally, as a part of Exhibit MJP4 is a letter the daughter wrote to the counsellor in these terms:-

“Dear Jen,

Thank you for helping us you’re the best ♥ we love you ♥”

21. [21]
    The Appellant acknowledges that she terminated the children’s counselling because the counsellor had told her the children did not require counselling,^[17]and also because it was arranged by the Respondent without her consent, contrary to the Family Court order governing arrangements with the children.^[18]

Relevant Sections of Domestic Violence Family Protection Act 2012

22. [22]
    Before dealing with the grounds of appeal, I set out relevant sections of the legislation:-

• s 4 Principles for administering Act

3. (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.

3. (2)
   Subject to subsection (1), this Act is also to be administered under the following principles:-

1. (a)
   people who fear or experience domestic violence, including children should be treated with respect and disruption to their lives minimised;

2. (b)
   the perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible provided with an opportunity to change;

3. (c)
   if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;

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;

5. (e)
   a civil response under this Act should operate in conjunction with, not instead of, the criminal law.

Domestic Violence

• s 8 meaning of domestic violence

3. (1)
   Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that:-

1. (a)
   is physically or sexually abusive; or

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

3. (c)
   economically abusive; or

4. (d)
   is threatening; or

5. (e)
   coercive; 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 or that of someone else.

3. (2)
   …

3. (3)
   …

3. (4)
   …

3. (5)
   In this section:-

Coerce, a person, means compel or force a person to do or refrain from doing, something.

• s 9 Meaning of associated domestic violence

3. (1)
   Associated domestic violence means behaviour mentioned in s 8(1) by a respondent towards:-

1. (a)
   a child of an aggrieved; or

2. (b)
   a child who usually lives with an aggrieved; or

3. (c)
   …; or

4. (d)
   ….

• s 11 Meaning of emotional or psychological abuse

3. (1)
   Emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses is offensive to the other person.

• s 37 When court may make protection order

3. (1)
   A court may make a Protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court 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 necessary or desirable to protect the aggrieved from domestic violence.

3. (2)
   In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court:-

1. (a)
   must consider the principles mentioned in s 4; and

2. (b)
   may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order;

3. (c)
   ….

• s 53 Naming child

3. (1)
   A court may name, in a domestic violence order, a child of the aggrieved, or a child who usually lives with the aggrieved, if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from:-

1. (a)
   associated domestic violence; or

2. (b)
   being exposed to domestic violence committed by the respondent.

• s 54 When court must consider naming child

3. (1)
   This section applies:-

1. (a)
   if a court is:-

1. (i)
   hearing an application for a domestic violence order; or

2. (ii)
   hearing an application for a variation of a domestic violence order: or

...

3. (2)
   …
4. (3)
   …

• s 91 When court can vary domestic violence order

3. (1)
   A court may vary a domestic violence order:-

1. (a)
   on an application to vary it; or

2. (b)
   …

3. (2)
   Before it varies a domestic violence order, the court must consider:-

1. (a)
   the grounds set out in the application for the protection order; and

2. (b)
   the findings of the court that made the domestic violence order; and

3. (c)
   whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.

3. (3)
   …

• s 97 End of protection order

3. (1)
   A protection order continues in force until the earliest of the following:-

1. (a)
   the day stated by the court in the protection order; or

2. (b)
   the day that is two years after the day the protection order is made.

3. (2)
   However, if the court is satisfied that there a special reasons for doing so, the court may order that a protection order continues in force for a period of more than two years.

• s 145 Evidence

3. (1)
   A proceeding under this Act, a court:-

1. (a)
   is not bound by the rules of evidence, or any practice or procedures applying to courts of record; and

2. (b)
   may inform itself in any way it considers appropriate.

3. (2)
   If the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.
4. (3)
   To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order.

Appeals

• s 164 Who may appeal

3. (1)
   A person who is aggrieved by any of the following decisions of a court may appeal against the decision:-

1. (a)
   …

2. (b)
   a decision to vary, or refuse to vary, a domestic violence order; or

3. (c)
   …

• s 168 Hearing procedures

3. (1)
   An appeal must be decided on the evidence in the proceedings before the court that made the decision being appealed.
4. (2)
   However, the appellant court may order that the appeal be heard afresh, in whole or part.

Grounds of Appeal

23. [23]
    I turn now to consideration of the grounds of appeal.

Appeal Ground (a)

The Magistrate failed to give proper consideration to the principles for administering the Act as set out in s 4 of the Domestic Violence Family Protection Act 2012, as amended.

24. [24]
    The Appellant asserts the learned Magistrate “did not advise if s 4 of the Act had been considered” and in particular did not consider s 4(2)(c) and should have properly acknowledged that the Appellant and her children are particularly vulnerable. Instead, it is said, his Honour preferred to defend the interests of the Respondent, to the detriment of the Appellant and her children.^[19]

25. [25]
    I cannot accept this submission. His Honour, in his reasons, was not obliged to refer to every single section of the DVFA, and reading his judgment, it is apparent to me that he was cognisant of the legislation. On page 4 of his judgment, his Honour said:-

“I fully appreciate the domestic violence legislation is remedially in nature designed to prevent acts of domestic violence and to protect victims of domestic violence. As such the widest possible construction should be applied to interpretation of the legislation (provided it is within the limits of reasonableness and fairness).”

This ground of appeal is unsustainable.

Appeal Ground (b)

The Magistrate failed to give proper consideration to the grounds of the original order pursuant to s 91 of the Act.

26. [26]
    In support of this ground, the Appellant asserts that she at all times wanted the children named on the original Protection Order, but that S/C Massey, who prepared the application, did not include them as a result of an oversight. Senior Constable Massey gave evidence at Transcript T1.14.22 that she obviously thought there were not enough grounds to include the children in the order. That is why she did not include them, although she could not, on the day of the variation hearing on 6 May 2015, recall her reasons.^[20]The Appellant complains that S/C Massey formed the view that the children should not be named on the order notwithstanding that the children were present during the episodes of domestic violence relied upon by her on her original application.

Response of Respondent

27. [27]
    The Respondent says that the learned Magistrate did consider s 91, and specifically referred to the section in his reasons.^[21]Further, the grounds of the original decision before the court^[22]were read into the record during the cross-examination of Senior Constable Massey.^[23]Under cross-examination, Senior Constable Massey did not change her view that no sufficient grounds existed at the time of the original application. The Respondent further takes issue with the Appellant’s assertion^[24]by that the children were present during the episodes of domestic violence on the dates therein mentioned, and says that the original application^[25]did not make that assertion.

Conclusion re: Ground (b)

28. [28]
    This ground is unsustainable. Despite the Appellant deposing^[26]to asking S/C Massey to have the children put on the orders, it is apparent that S/C Massey formed the view that there were no grounds for such a course of action. Indeed, S/C Massey advised the Appellant accordingly, and the Appellant accepted that advice, thus facilitating the application going forward on the basis it did. I am satisfied that the learned Magistrate was aware of the original grounds and gave proper consideration to them.

Appeal Ground (c)

The Magistrate erred in concluding that there was a finding of the court that made the original order, in circumstances where the order was made by consent without admissions and the police were the original applicants.

29. [29]
    The Appellant complains that the learned Magistrate in his decision did not acknowledge that the Protection Order was made by consent and on a without admissions basis, hence the Magistrate making the 2013 Order was not required to consider naming the children. Accordingly, the Appellant says, there was no finding in relation to the naming of the children in the order.

Respondent’s Response

30. [30]
    The response the Respondent refers to the learned Magistrate’s statement that:-

“In relation to the finding of the Court that made the original order, I note that the Court did not include the two children on the original order. I also note that the children were listed on the application but the applicant did not wish the children to be named on the order.” 

That passage followed immediately after His Honour recorded his obligation under s 91 to consider the findings of the Court that made the original order. The Respondent also picks up the point made in the above passage of the learned Magistrate to the effect that, whilst the original application contained the names of the children,^[27]the application did not seek to have them named in the order.^[28]

31. [31]
    As to the Appellant’s assertion^[29]that the learned Magistrate was not required to consider the naming of the children because no application therefore was made, the Respondent points to s 54 of the Act which obliges the Court on an application for a domestic violence order to consider whether any child of the aggrieved disclosed in the application should be named in the order whether or not the application seeks such naming.^[30]

Conclusion re: Ground (c)

32. [32]
    This ground is not made out. Given the obligation of the original Magistrate to consider whether or not the building should be added to the Protection Order notwithstanding that was not requested, the reference to finding by the learned Magistrate does not amount to an error. Indeed on the assumption that the earlier Court followed procedures, which should be made, the present learned Magistrate may well have concluded that the earlier Magistrate did in fact make a finding pursuant to s 54 that the children should not be named resulting in the order not naming them.

Appeal Ground (d)

In relation to text messages sent by the child on 3 January 2015, the Magistrate gives possible explanations for occurrences, but makes no reference to any evidence of such explanations as being given.

33. [33]
    The Appellant points to the text message sent by her son to her on 3 January 2015^[31]which is the text referring to his father going nuts while the son was playing with his car. The son saying he is crazy and that he hates him. It finishes with the Appellant asking in her text message whether he wants her to call the police with his response being – “its OK you evident call the police”. That doesn’t make sense but the more likely interpretation is that the son was saying you “needn’t” call the police.

34. [34]
    The Appellant criticises the decision of the learned Magistrate for his speculation as to the son’s text messages on that day when he said – “it is not beyond the realms of possibility that the child may have in some way been manipulated or influenced or had some other motive for sending the text messages.” The Appellant makes the further point that the Respondent did not cross-examine her as to the allegation that she influenced the children in the sending of text messages. Accordingly, the Appellant says that there was unrefuted evidence for the Court to justify the learned Magistrate in preferring her evidence to that of the Respondent.

Respondent’s Response

35. [35]
    In response, the Respondent says the Magistrate was perfectly entitled to draw inferences from available evidence, and that the passage I have referred to and which the Appellant relies upon should not be read in isolation to this. The inference relied upon by the Appellant, the Respondent says, is but one of a number of factors the learned Magistrate took into account in coming to the view that he could not reject the sworn evidence of the Respondent that there were no angry outbursts or screaming at the children on 3 January.^[32]He relies on his own evidence^[33]that nothing happened in the house on that day, there was no violence and the whole allegation was fabricated.

36. [36]
    There was no direct evidence to the contrary, and the only evidence was that of the Appellant^[34]that her son rang her with a trembling voice and she could hear the Respondent screaming in the background. It was then she asked him if he wished her to call the Police to which he replied yes. The Respondent makes the point that it was never put to him in cross-examination that he was screaming at the time that the Appellant was speaking to their son. Further, there is no evidence that the children alleged angry outbursts or even screaming by the Respondent on that day.

37. [37]
    The Respondent points to the fact the learned Magistrate, in the passage outlined above, referred to considering the contents of all messages, to conclude, as he did, as to the possible manipulation/influence/other motive by/of the son.

38. [38]
    The Respondent points then to aspects of the subject text messages, namely the following:-

1. (a)
   in response to the son texting that he was still alive the Appellant replied:-

“oh my god I love you too hahaha I told you he might kill you one day when he gets crazy angry… it is dangerous for you and (sister) I told you that… god has made you see how crazy he is… I will spend all the money I work so hard for to tell my lawyer how scary and crazy he is I want you to stand up for yourself if you are in your room with the door closed and he just comes in crazy angry going nuts I will tell my lawyer every time he does it because it very WRONG… love you be safe xxxx”;

2. (b)
   the son’s text to the mother saying “let’s stop talking” and “I’m just having dinner” as well as “it’s boring here, I hate it I want to come to your house forever” and “this is all going to the judge right?”.

39. [39]
    In the Respondent’s submission, the Magistrate was perfectly entitled to make a credit assessment of the Respondent’s denials and was in a superior position, having seen both parties give evidence, to make an assessment. The Respondent, in relation to the text message concerning the calling of the Police, pointed to the fact that it was the Appellant’s idea to call the Police not the son’s; the evidence is capable of the interpretation that the son said there was no need to call the Police. In that regard, I refer to the above mentioned text from the son – “its okay you evident call the Police”. Further, on the issue of the Magistrate’s decision as to credibility, the Respondent points to the Appellant’s affidavit,^[35]where she deposes to instructing the children to hide their phones from the Respondent and to always instilling in their minds the necessity to watch and listen for danger signs, warning the children about the Respondent’s mood and rising anger which accompanies his drinking. Overall, the Respondent says the learned Magistrate was entitled to accept the evidence of the Appellant against the background of all the evidence.

Conclusion re: Ground (d)

40. [40]
    I am not satisfied this ground has been made out. There is sufficient evidence for His Honour to have reached the view it was not beyond the realm of possibility that the son had, over time, somehow been manipulated or influenced or had some other motive for sending the text messages on 3 January 2015.

Appeal Ground (e)

The Magistrate erred in finding that there were no further allegations of domestic violence between 3 and 25 January 2015 as there was a text message sent from the child’s phone on 18 January 2015.

41. [41]
    This ground refers to the text message sent from the daughter’s phone to the Respondent on 18 January, at a time when evidence showed, and the learned Magistrate accepted, the children were with the Respondent for the period of 3 January to 25 January 2015. It is important to set out the contents of these text messages:-

• daughter to Respondent – “hey dad we hate it here at mum’s place its boring and mum keeps yelling at us its not fair I wish I was at your house love you ♥♥♥”;

• daughter to Respondent – “oh hey dad again mum keeps smacking (sic) us and pulling our (sic) ears and we really want to stay at your place forever because now we have big scratches all over us we love you ♥♥♥”.

42. [42]
    The Appellant deposed^[36]to finding these text messages on 15 April 2015, when looking through her daughter’s text messages to check the annexures in her material. As the children were not with her but rather with the Respondent on 18 January 2015, she speculated that the Respondent had made her daughter write the text message or had taken her daughter’s phone and written them himself. The learned Magistrate said that was pure speculation and placed no weight on the allegation. The Appellant submits that in the absence of any explanation from the Respondent or cross-examination of her, the evidence should have been accepted. If accepted, the Appellant says, it would have constituted evidence of further allegations of domestic violence on 18 January 2015, namely the coercion of the daughter to send the messages or the use of her phone for those messages to be sent by the Respondent.

Respondent’s Response

43. [43]
    The Respondent says that the particular text message could only have constituted domestic violence if the daughter had been coerced to send it and there was no evidence of that. Finally, it was not put to the Respondent in cross-examination that he had forced his daughter to send the text message.

Conclusion re: Ground (e)

44. [44]
    True as it is, that there is no direct evidence from either the daughter or the Respondent under cross-examination as to any involvement of the latter in the sending of the 18 January 2015 text messages, they do raise questions. If the daughter was with the Respondent on 18 January, which is not in dispute, then the content of the messages do not make sense because they refer to the child being at the Appellant’s house. However, the fact that the daughter was at the mother’s house at the time of the texts is an insufficient factual base to found the inferences she has drawn as to how they came about. To put it another way, that fact does not inform the circumstances of their sending. It follows, in my view, that the speculation by the Appellant,^[37]that the Respondent coerced (sic) or made his daughter write the text messages or took her phone and wrote them himself, is just that - speculation. When that is understood, it is apparent that there is no other evidence of any alleged domestic violence during the 3-25 January 2015 period, and the learned Magistrate was correct in making that finding.

Appeal Ground (f)

45. [45]
    The Magistrate erred in finding that the text messages sent on 18 January were purely speculation as there was undisputed evidence the children were in the Respondent’s care at the time.

46. [46]
    This is a repetition of the previous ground in substance, except that it asserts that the learned Magistrate referred to the wrong date,^[38]namely 15 April 2015, when referring to the text messages of 18 January 2015 already dealt with. That seems to be a simple error and easily explained and understood. It was on 15 April 2015 that the Appellant first discovered the text messages of 18 January 2015 on her daughter’s phone.^[39]His Honour has innocently referred to the incorrect date, which is of no consequence in this appeal. Nothing raised by the Appellant in this ground changes my view of the 18 January 2015 text messages set out above.

Appeal Ground (g)

The Magistrate erred in rejecting the evidence of the Applicant in favour of the Respondent, in relation to the incident on 3 January 2015 as there was undisputed evidence of domestic violence.

47. [47]
    In this ground, the Appellant revisits the events of 3 January 2015, the subject of appeal ground (d) above. It is clear to me that His Honour, in not rejecting the evidence of the Respondent, who disputed the assertion by the Appellant, clearly did not accept the Appellant’s evidence because both pieces of evidence cannot stand together. As to any demeanour of the Respondent as self-representative on the hearing of the variation application I was not present at the hearing, but having read the transcript, I do not agree that it is clear from the transcript that the Respondent was fiery, argumentative and aggressive. This ground is not made out.

Appeal Ground (h)

The Magistrate made errors at law in determining that the content of text messages sent by the Respondent to the child on 19 December 2014 could not be defined as emotional or psychological abuse pursuant to s 11 of the Act.

48. [48]
    The Appellant says that the Act does not provide a distinction between the terms “inappropriate” and “harassing”, the latter being within the meaning of emotional or psychological abuse in s 11, the section the Appellant relies upon. Given that the Respondent accepted in cross-examination that the sending of the text was inappropriate,^[40]it is apparent that the Appellant seeks to equate “inappropriate” with “harassment” within the definition of emotional or psychological abuse. I reject that proposition. The words have quite disparate meanings. Harass has been defined to mean: “to disturb persistently; torment, as with troubles or cares; bother continually; pester, persecute”.^[41]Inappropriate means: “not appropriate; not proper or suitable”.^[42]While harassment will always be inappropriate, inappropriate conduct will not always constitute harassment.

49. [49]
    The Appellant also asserts that the Respondent, under cross-examination, fully accepted that his actions in sending the text message would have caused some upset and distress for the child.^[43]I can see no such concession in the Respondent’s cross-examination. As I have said, he accepted that the sending of the text message was inappropriate and expressed regret.

50. [50]
    Next the Appellant points to the Respondent’s evidence that he attended counselling. Reference is made to his affidavit which, relevantly, is in these terms:-

“4. Both myself and both children started attending counselling due to this issues been caused through the school holidays. Jan from the Whitsunday Crisis Counsel Services has been a valued help to myself and both children. Starting date 20 January 2015.

5. I now (sic) understand by errors in communication through text messages I got baited by the messages and replied. Counselling (sic) has helped in understanding how to deal with a problem ex and communication.”

In cross-examination^[44] the Respondent said that the psychologist, Jan Waetford, had guided him in a better direction than where he had started.

51. [51]
    The Appellant firstly says that the counselling was not by way of any intervention or domestic violence program endorsed by the Court, and that the evidence in his affidavit from the counsellor^[45]related only to counselling sessions with the children. On that basis, it is said, the learned Magistrate erred in placing reliance on the fact that the Respondent had attended counselling to address his communication problems with her and the children.^[46]Further, it is asserted, the learned Magistrate fell into error in accepting that the Respondent attended counselling when the psychologist was not available for cross-examination.

Respondent’s Response

52. [52]
    The Respondent picked up the Appellant’s misstatement of the Respondent’s evidence that he accepted that the text message had caused “upset and distress” for the child, as I identified above. The Respondent says, correctly in my view, that the Respondent’s evidence as to attendance at counselling was not challenged in cross-examination and that the learned Magistrate did not fall into error in his reliance upon the Respondent’s evidence on that issue.

Conclusion re: Ground (h)

53. [53]
    I accept the submissions of the Respondent. There is nothing in this ground.

Appeal Ground (i)

The Magistrate should not have preferred the evidence of the Respondent in relation to the alleged incident on 20 March 2015.

54. [54]
    This ground again refers to the alleged school incident of 20 March 2015, described above. The Appellant says that she was not cross-examined as to what her daughter told her about that incident and that under cross-examination on the issue the Respondent became hostile and started to verbally attack her solicitor which, she says is a sure sign the Respondent was covering for his actions on that day. It follows, it is said, that the learned Magistrate should have preferred her evidence to that of the Respondents.

55. [55]
    The Appellant then said that the only other evidence the learned Magistrate could have relied upon was that of the Respondent’s then girlfriend, Ms O, who the Appellant said was a very unreliable witness. Finally, the Appellant said the evidence before the Court supported her evidence as described by the child and no actual explanation was provided by the Respondent. That is incorrect given the Respondent’s evidence of denial.

Respondent’s Response

56. [56]
    The Respondent makes the point that the learned Magistrate was perfectly entitled to prefer the evidence of the Respondent over that of the Appellant. As to the allegation that the Respondent showed hostility towards the Appellant’s solicitor, he says the transcript does not show other than that he, as a self-representative, expressed emotion over the allegations that he had abused his children. The relevant transcript passage is as follows:-^[47]

57. [57]
    The Respondent rejects the assertion that Ms O evidence was unreliable. She initially denied seeing any domestic violence on 20 March 2015^[48]but the Respondent himself assisted the Court^[49]in advising that he did not think that Ms O was with him on the day he picked up the children from school.

58. [58]
    In the Respondent’s view, the learned Magistrate was entitled to accept the evidence of Ms O, who made a statutory declaration, dated 22 April 2015,^[50]stating that in the six months plus back from the declaration, she had spent time with the Respondent and his children, and:-

“In the time with NKQ and the two children (they) have never shown any signs of being scared from their father. If anything it’s the opposite to this. Both children express love, happiness and lots of cuddles towards their father.” 

She also gave evidence,^[51] albeit objected to by the Appellant, that she had never noticed any domestic violence during the seven months she was with the Respondent and the children.

Conclusion re: Ground (i)

59. [59]
    Again I accept the submissions of the Respondent. In my view this ground has not been made out.

Appeal Ground (j)

The Magistrate made errors at law in concluding that it was necessary that the alleged psychological abuse needed to be directed at the children.

60. [60]
    The Appellant points to the following passage from His Honour’s decision:-^[52]

“On the balance of probabilities, I am not satisfied that the respondent has committed any act of associated violence (including by being emotionally or psychologically abusive) to either of the two children.

Therefore I do not intend to make the order that the two children be included on the existing protection order.

For completeness I would add that even if it were held that the behaviour of the aggrieved towards his two children did amount to associated domestic violence, then I would still not make the variations sought by the aggrieved.”

61. [61]
    That passage, it is said by the Appellant, shows that His Honour failed to take into account s 10 of the DVFA, which provides that a child is exposed to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence. Further, the Appellant says, the learned Magistrate, in arriving at the above conclusion, fell into error in failing to appreciate that part of the Appellant’s complaint related to the ongoing exposure of the children to adult issues and the detrimental impact this was having on their psychological wellbeing.

Respondent’s Response

62. [62]
    The Respondent rejects the Appellant’s interpretation of His Honour’s statement, noting that His Honour would have been well aware of s 10 dealing with the exposure of children to domestic violence and was simply responding to the Applicant’s application and evidence, which included no assertion of incidents against an adult which the children could have been exposed to, because all assertions were allegations directly involving the children. In any event, however, the Respondent says His Honour’s finding of the absence of any act of domestic violence “to the children” is clearly wide enough to include the concept of exposure of children to domestic violence within s 10.

Conclusion re: Ground (i)

63. [63]
    I accept the Respondent’s submissions. This ground is not made out.

Appeal Ground (k)

The Magistrate erred in concluding that the Respondent had not committed an act of domestic violence.

64. [64]
    In this ground the Appellant seeks to rely upon the evidence of S/C Massey in forming the opinion that there had been domestic violence in 2013 leading to the 2013 Order presently sought to be varied. It then goes on to say that the allegations against the Respondent in the variation application also constituted domestic violence. She then returns to the text messages of 19 December 2014 (sic), 3 January 2015 and the alleged school incident of 20 March 2015. All of those matters have already been dealt with. As to any suggestion that the original application of 18 October 2013 should now be reopened, I reject that.^[53]This ground has not been made out.

Appeal Ground (l)

The Magistrate erred in concluding that it was neither necessary nor desirable to vary the Protection Order.

65. [65]
    She says that the learned Magistrate fell into error in not varying the Protection Order to include the children because of the ongoing arguments resulting in the children being caught in the crossfire. The Appellant argues that she did not have any ulterior motives in applying for the variations but just wanted to moderate the Respondent’s behaviour in terms of his frightening the children with aggressive outbursts and exposing them to adult issues adversely impacting their wellbeing.

Respondent’s Response

66. [66]
    As to the Appellant’s concern that the Court relied upon an ulterior motive in her bringing the application, the Respondent points out there is nothing in the reasons to support that proposition and the end result, based on all the evidence His Honour cited, that the variations sought were not justified.

Conclusion re: Ground (l)

67. [67]
    There is nothing in this ground. To that I mention two matters. Firstly, it was the Appellant who withdrew the children from counselling because of her reliance upon the counsellor’s advice that the children did not need counselling. In my view that is a powerful piece of evidence supporting His Honour’s findings and militating against the Appellant’s assertions that the children continue to be the subject of domestic violence. Without professing to understand the dynamics leading to the inconsistencies in tenor and tone of the various text messages in evidence sent by the children, I consider another piece of evidence is, to my mind, compelling and again supportive of His Honour’s decision. That is the drawings with annotations done in the presence of the psychologist, details of which have been set out earlier in this judgment. They simply do not support the position that the children continue to be subject to domestic violence.

68. [68]
    Finally, I refer to s 97 of the DVFA, above outlined, which sets the term of any Protection Order at two years but with power in the Court to order that any such order continue beyond two years if there are special reasons for doing so. In my view, the Appellant has not demonstrated any special reasons for an extension of the variation order.

Appeal Ground (m)

The Magistrate made errors at law in concluding that the Applicant’s beliefs were not substantiated by the evidence and that such beliefs were held to be unreasonable.

69. [69]
    The Appellant referred to s 4 of the DVFA, which sets out the Principles for its administration and relies on it to argue that any belief held by her need not be reasonable but rather a belief that she was fearful of the Respondent was sufficient. Further, the Appellant says, a Court on hearing an application for variation of an existing order does not have to be satisfied that further domestic violence has occurred since the order. There was sufficient evidence, it is said, supporting the Appellant’s belief, namely a fear of domestic violence, to support the variation of the Protection Order.

Respondent’s Response

70. [70]
    As to s 4 of the DVFA, the Respondent points out that it speaks of the Act being administered so as to treat people who, relevantly, fear domestic violence should be treated with respect which the learned Magistrate extended to the Appellant. His Honour acted correctly without error in reaching a conclusion, on consideration of all the evidence, as to whether the Appellant’s alleged fear of further domestic violence (and past alleged acts), were substantiated by the evidence. It is not the case that a simple assertion of a fear would justify the making of the variation order. His Honour was entitled to refuse to vary the order in circumstances where he concluded there were no persuasive reasons to do so.

71. [71]
    In the Respondent’s view the requirement under s 37 in relation to a fresh application for a Protection Order, that such an order “is necessary or desirable to protect the aggrieved from domestic violence”, whilst not expressly referred to in s 91 dealing with the variation of domestic violence orders, nevertheless is a useful guide to the Court when dealing with an application for variation. In the Respondent’s view, on an application for a fresh order, any fear of domestic violence found by the Court to be irrational or unreasonable would be less likely to result in the granting of an order as “necessary and desirable” than if the fear was rational and reasonable.

Conclusion re: Ground (m)

72. [72]
    The Appellant has pointed to nothing which persuades me that the learned Magistrate fell into error in his decision. The ground is not made out.

Overall Conclusion

73. [73]
    For the reasons I have outlined, I am unpersuaded that any of the grounds of appeal warrant the overturning of His Honour’s decision. The Appeal is dismissed with no order as to costs.