ADH v ALH[2017] QDC 103

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant appeals against the decision of the Magistrates Court made on 20 June 2016 that a domestic violence protection order be issued against him under section 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”).

2. [2]
   The Commissioner of Police elected to become a respondent in the proceeding pursuant to s 167 of the Act. Each party provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

Background

3. [3]
   The appellant and the respondent, a German national, were in a relationship when she became pregnant. The parties married and lived in Germany from February 2014 to June 2015. The child was born in early April 2014. The parties had decided to live on the Gold Coast in Australia. To that end, the appellant left Germany in June 2015 on the understanding that the respondent and the child would follow. He was misled.

4. [4]
   The respondent never joined the appellant at the Gold Coast. Instead, she told the appellant that the marriage was at an end and moved to Cairns with the child in July 2015. She cites past domestic violence in Germany as a catalyst for the rouse and breakdown. The appellant disputes any acts of domestic violence in Germany.

5. [5]
   The parties were unable to agree on parenting arrangements. The appellant made numerous phone calls and text messages seeking contact with the child, he also contacted relatives of the respondent to enlist their help in this regard. This conduct is the subject of dispute.

6. [6]
   On 7 January 2016 the respondent applied for protection orders, which were opposed by the appellant. The Magistrates Court made temporary protection orders. Proceedings were also commenced in the Federal Circuit Court, followed by interim orders made on 15 March 2016 for supervised contact by the father for 3 days a week on an alternative basis, and Skype contact 3 times a week. The effects of these orders were reflected in the temporary protection orders on 31 March 2016.

7. [7]
   The respondent said that the appellant continued to contact the respondent by texts, emails and Skype. The parties also clashed on at least one contact visit. He also contacted persons associated with the respondent.

8. [8]
   The application for a Protection Order was heard on 31 March 2016 and 29 April 2016. The magistrate delivered her decision on 20 June 2016 (and published written reasons) and imposed protection orders against the appellant to continue in force until 19 June 2018 to the effect that:

1. The appellant be of good behavior towards the aggrieved and not commit domestic violence against the aggrieved;

2. The appellant is prohibited from remaining at, entering or attempting to enter, approaching to within 100 m of [where] the aggrieved lives;

3. The appellant is prohibited from contacting or attempting to locate or asking someone else to locate the aggrieved;

4. The appellant is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved

– Except as permitted under Family Law Order;

5. The appellant is prohibited from following or approaching within 50 m of where the aggrieved [is] when the aggrieved is at any place

– Except this condition does not apply to the extent that it is necessary for the respondent to appear personally before a court or tribunal.

– Except this condition does not apply to the extent necessary for the parties to attend an agreed conference, counselling, medication session.

6. The appellant is prohibited from making telephone calls or sending text messages to the aggrieved;

7. The appellant is prohibited from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of or make comments concerning the aggrieved;

8. The appellant be of good behavior towards the named person and not commit associated domestic violence against the named person and not expose the child to domestic violence;

9. The appellant is prohibited from remaining at, entering or attempting to enter, approaching to within 100 m of where the named person lives;

10. The appellant is prohibited from contacting or attempting to contact or asking someone else to contact the named person;

11. The appellant is prohibited from following or approaching to within 100 m of the named person when the named person is at any place;

12. The appellant is prohibited from making telephone calls or sending text messages to the named person in this order;

13. The appellant is prohibited from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of or make comments concerning the named person in this order;

14. The appellant is prohibited from attending at or going to within 50 m of the school or other premises where a child of the aggrieved or a child who usually lives with the aggrieved attends for the purposes of education or child care.

9. [9]
   He now appeals those orders.

Mode of Appeal

10. [10]
    The appeal is brought pursuant to s 164 of the Act. 

11. [11]
    In accordance with s 168(1), the appeal must be decided on the evidence and proceedings before the Magistrates Court.  However, s 168(2) which reposes discretion in this appellate court to hear the appeal afresh in whole or in part.

12. [12]
    The appeal is not a new trial to consider, as if presented for the first time, the arguments advanced. Where a point was not taken in the trial court and evidence could have been adduced to prevent the point from succeeding, or the point requires a further trial, it cannot be taken afterwards.^[1]  Otherwise, appellate courts generally tolerate new points.

13. [13]
    This court ought not interfere with a protection order made in the exercise of discretion unless it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.  A mere difference of opinion about the way in which court’s discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.^[2]

14. [14]
    The High Court held in House v. The King^[3] that:

"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance."

15. [15]
    Even if it does not appear how the trial magistrate reached the result embodied in the orders, that result, must be unreasonable or plainly unjust.

16. [16]
    Therefore, it is appropriate to consider whether a protection order imposing appropriate prohibitions or restrictions on the behaviour of the appellant is necessary or desirable to protect the respondent from the domestic violence.^[4]  This necessitates my independent examination of the evidence and proceedings before the Magistrates Court, including credit of witnesses subject to what I said above,^[5] to make my own assessment of both the sufficiency and quality of the evidence.^[6]

17. [17]
    Section 169 of the Act provides for the powers of this court in deciding an appeal. The court may:

1. (a)
   confirm the decision 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.

Grounds of Appeal

18. [18]
    The appellant’s grounds of appeal are expressed in the grounds of appeal as follows:

1. There was no evidence that indicated that the alleged domestic violence even took place in Germany and now after a year of separation the relationship does not even exist between the two parties.

2. The contact was justified because it was and is always in regards to maintaining the relationship with my child after I was deceived with his return to Australia, from there my son was then taken away from me and prevented from having a relationship with his devoted father and family.  Two days in thirteen months of contact is appalling and utterly unacceptable.

3. It is my son and I that are actually the aggrieved.  Withholding a child from knowing and seeing his loving father constitutes as real psychological and emotional abuse.

4. Perjury was committed by the applicant and new partner – lying in court should not be tolerated and I am seeking accountability.

5. I am wanting to provide new and fresh evidence to again outline the deliberate disregard for a child’s parental right; these have and are being completely ignored and disregarded.  Eliminating a child from his families life and then lying to the courts as a means to remove me as father is a serious criminal offence.

6. I do not and have not posed a threat to anyone and strong believe along with my friends and family this order is unnecessary and inappropriate as it tarnishes the relationship with my son and acts as a precedent to the mother’s thinking they can lie and take a child away.

19. [19]
    It seems to me that the grounds of appeal can be synthesised (with some overlap) into three issues for determination in this appeal:

1. (a)
   Whether fresh evidence should be allowed on appeal. (Ground 5)

2. (b)
   The magistrate ought to have rejected the respondent (and her partner) as untruthful and unreliable.  (Grounds 4 & 5)

3. (c)
   The decision was unreasonable and unsupported by the evidence and the magistrate erred and wrongly exercised her discretion in making the order. (Grounds 1, 2, 3 & 6)

Whether fresh evidence should be allowed on appeal. (Ground 5)

20. [20]
    The appellant argues that the appeal should be heard wholly afresh with fresh evidence to “again outline the deliberate disregard for a child’s parental right; these have and are being completely ignored and disregarded”.   He also relies upon this evidence (in part) to demonstrate that the respondent was untruthful, and both the respondent and boyfriend perjured themselves.

21. [21]
    To that end he seeks to adduce as fresh evidence annexures to his Affidavit dated 12 October 2016 (which I have treated as his submissions) and filed pursuant to directions of providing an appeal record (including transcripts, judgments and court documents, which are uncontroversial).

22. [22]
    I have studied the proposed fresh evidence, and the controversial documents can be broadly categorised as follows:

1. Annexure A is annotated application wherein the appellant has inserted his responses, argument and submissions to the various grounds of the application.

2. Annexures B C, & D and Transcript 1 concern the interim proceedings and the temporary protection order made on 1 July 2016 - the transcript of interim proceedings; privileged communication between the appellant and his solicitor regarding his instructions to contest the application and the appellant’s disappointment with the interim orders  (which instructions were properly acted upon as shown in the transcripts of those proceedings); and the appellant’s arguments regarding the interim orders.

3. Annexure E is an annotated transcript of the hearing with inserted argument and submissions.

4. Annexures F, G, H, I, K, L, M, N, P, Q, U and Z (DVD) are variously affidavits and documents regarding a chronology of events, paternity of the child, character of the appellant, observations and opinion about the parties’ relationship, affectionate communication between the parties, contact disputes and the appellant’s interaction with his child. 

5. Annexures J, O, R, S, T and W (DVD) concern continuing disputation between the parties including text communication and attacks on the respondent’ character. 

6. Annexure X is a DVD entitled “Denial is Abuse 120/16” contained of photographs, text, with music and voiceover commentary. 

23. [23]
    The other parties object to admission of this new material. The Commissioner submits that in the absence of any reasons for the acceptance of the fresh evidence, any new evidence sought to be relied on by the Appellant should be refused. It is submitted the new evidence the appellant seeks to rely on is irrelevant to consideration of this appeal and would not have changed the magistrate’s decision.

24. [24]
    Section 168 of the Act governs the scope of evidence in an appeal as follows:

168  Hearing procedures

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

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

25. [25]
    Subsection 168(a) is in mandatory terms and confines the appeal to the evidence and proceedings of the court below.

26. [26]
    Section 168(2) reposes discretion in this appellate court to hear the appeal afresh in whole or in part. It seems to me that this discretion may be invoked if the appellant demonstrates some legal, factual or discretionary error of the trial magistrate. This may the appellant court to consider the matter afresh, in whole or in part, unfettered by the decision of the court below and not restricted to the evidence before the court below.^[7]

27. [27]
    The fundamental rule that a party is bound by the conduct of his/her own case^[8]and fresh evidence should only be received in the most exceptional circumstances,^[9]such as where “the interests of justice unequivocally demand it”.^[10]  In my view, in the context of this protective jurisdiction, the admission of new evidence in the appeal ought be reserved for the most exceptional circumstances in circumstances where the new evidence:

1. Could not have been obtained with reasonable diligence for use at the hearing;

2. Would probably have an important influence on the result of the case, even though not be decisive; and

3. Must be apparently credible though not incontrovertible.

28. [28]
    For the reasons which follow in this decision, I am not satisfied that the appellant has demonstrated some legal, factual or discretionary error of the trial magistrate. Even so, I am not satisfied that the interests of justice unequivocally demand inducement of the proposed evidence. The appellant ought to have anticipated the need to challenge the respondent’s credit, since all the evidence was disclosed prior to the hearing, and any countervailing evidence could have been obtained with reasonable diligence for use at the hearing. In my opinion the fresh evidence, although apparently credible, will not have an important influence on the result of the case.

29. [29]
    Further, for the most part the appellant’s application for fresh evidence in misconceived. The proposed evidence, for the most part, is variously not relevant, reliable, or rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue.^[11] 

30. [30]
    Therefore, I am bound to reject the appellant’s application/ground to adduce fresh evidence.

The magistrate ought to have rejected the respondent (and her partner) as untruthful and unreliable.  (Grounds 4 & 5)

31. [31]
    The appellant contends that perjury was committed by the applicant and new partner – lying in court should not be tolerated and I am seeking accountability (Ground 3) and eliminating a child from his families life and then lying to the courts as a means to remove me as father is a serious criminal offence. (Ground 5)

32. [32]
    In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:^[12]

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”

33. [33]
    Similarly, in Fox v Percy,^[13] Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,^[14] as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way:

“[23] On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’.  On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record.  These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share.  Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial.  Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole …

[28] … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (references omitted)

34. [34]
    This is not an exhaustive formula. The court went on to recognised that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said:

[29] … In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case.   In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. 

[30] It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court.  However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.”  (references omitted)

35. [35]
    In addition, the magistrate’s findings of fact based on inference ought also be taken as correct unless and until the contrary is demonstrated. In Warren v Coombes,^[15] the majority of the High Court reiterated the rule that:

“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”.

36. [36]
    In the context of domestic violence and family protection proceedings, the Court of Appeal Queensland in Commissioner of Police v Toomer^[16] said:

The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.’ [Footnotes omitted]

37. [37]
    The magistrate had the advantage of seeing, hearing and assessing all the witnesses first hand. I’ve had the limited advantage of considering all the transcribed and documentary testimony of the witnesses, the documentary evidence and collateral material.  I have also considered the appellant’s allegations that the respondent and her associate perjured themselves at the hearing in the Magistrates Court.^[17]  The appellant’s contradictory evidence is relevant to credit but is not probative that domestic violence did not occur, as otherwise found by the magistrate. 

38. [38]
    It seems to me that the appellant’s criticism of the concerns of the magistrate’s credit findings and asserted “perjury” of the respondent and her boyfriend fall well short of the test to warrant interference.  In my view, and also having regard to my discussion that follows, I see no basis to interfere with Her Honour’s conclusions about the mother’s credit.

The decision was unreasonable and unsupported by the evidence and the magistrate erred and wrongly exercised her discretion in making the order. (Grounds 1, 2 & 6)

39. [39]
    The appellant contends that:

1. There was no evidence that indicated that the alleged domestic violence even took place in Germany and now after a year of separation the relationship does not even exists between the two parties.

2. His contact was justified because it was and is always in regards to maintaining the relationship with his child after he was deceived with his return to Australia, from there his son was then taken away from him and prevented from having a relationship with his devoted father and family.  Two days in thirteen months of contact is appalling and utterly unacceptable.

3. It is himself and his son that are actually the aggrieved.  Withholding a child from knowing and seeing his loving father constitutes as real psychological and emotional abuse.

4. I do not and have not posed a threat to anyone and strong believe along with my friends and family this order is unnecessary and inappropriate as it tarnishes the relationship with my son and acts as a precedent to the mother’s thinking they can lie and take a child away.

40. [40]
    These grounds go to whether the decision was unreasonable and unsupported by the evidence and whether the magistrate erred and wrongly exercised her discretion in making the order.

Legislative Context

41. [41]
    The principles guiding the administration of the Act are expressly provided in section 4 as follows:

4 Principles for administering Act

1. (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)
   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)
   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;

Examples of people who may be particularly vulnerable to domestic violence—

• women
• children
• Aboriginal people and Torres Strait Islanders
• people from a culturally or linguistically diverse background
• people with a disability
• people who are lesbian, gay, bisexual, transgender or intersex
• elderly people

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.

42. [42]
    These principles must be applied when the court considered making protections order under s 37, which provides:

37 When court may make protection order

1. (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.

2. (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 section 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. (3)
   If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court considers appropriate.

43. [43]
    The section requires the court to first be satisfied of three requisite elements prescribed in subsection 37(1) before exercising the discretion to make a protection order.The court need only be satisfied of a matter on the balance of probabilities,^[18] and the onus is on the applicant to prove that the requirements have been made out.^[19]  To remove any doubt, the court can make a protection order even if the offending behaviour is not proved beyond a reasonable doubt where it may also constitute a criminal offence.^[20]

44. [44]
    Since the Act is remedial legislation, it ought to have been given the widest construction that the terms can fairly bear.^[21]  This approach, the legislative principles and relevant provisions seem to underpin the magistrate’s decision.  Indeed, her decision was very thorough and properly reasoned.

Standard of Proof

45. [45]
    In this regard, s 145 of the Act provides that:

145 Evidence

1. (1)
   In a proceeding under this Act, a court -

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

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

2. (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.

3. (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.

46. [46]
    The premise of the section is clear -the court ought have all pertinent information to fulfil the purpose of the proceeding reflected in the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.^[22] Nevertheless, although not bound by the rules of evidence, it is well settled that the court’s decision must derive from relevant, reliable, and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue.^[23]  It is not enough to suspect or speculate that something might have occurred.^[24]

47. [47]
    The seriousness of the allegations, and the gravity of the consequences of the proceedings, also enlivens consideration of the Briginshaw principles.  In Briginshaw v Briginshaw,^[25] Dixon J said:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...”

48. [48]
    The principle is that depending on the nature and gravity of the allegation against a party, the strength of the evidence required to meet the standard of proof may vary. In practical terms, this means that for more serious allegations, the court ought more closely examine the evidence to ensure that it is strong enough to prove the allegations on the balance of probabilities.

49. [49]
    However, this principle in Briginshaw does not create another standard of proof.  That is, tit does not displace the requirement that the court “need only” be satisfied on the balance of probabilities;^[26] instead it permits the court to require a higher degree of satisfaction to discharge that standard where the seriousness of the allegations and consequences of sustaining them warrant that approach.^[27] So much was affirmed by the High Court in Refjek v McElroy,^[28] and Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd.^[29]

50. [50]
    In my view, the seriousness of the allegations in this case, and the gravity of their consequences, warranted that higher degree of certainty to be satisfied on the balance of probabilities.  The magistrate well appreciated these matters as disclosed in her decision.

Relevant Relationship

51. [51]
    Although the parties were married and have a child, the appellant contends that the parties are well beyond separation a relationship does not even exists between them (part of Ground 1).

52. [52]
    It is necessary for the parties to be in a “relevant relationship” to satisfy the first element of s 37(1).  A “relevant relationship” is defined in s. 13 to include “an intimate personal relationship”, which is itself defined in s. 14 as a spousal relationship; or an engagement relationship; or a couple relationships.

53. [53]
    Relevant to this appeal, the meaning of “spousal relationship” is provided in s 15 as follows:

15  Meaning of spousal relationship

1. (1)
   A spousal relationship exists between spouses.

Note—

A reference to a spouse includes a de facto partner. For definitions of spouse and de facto partner, see the Acts Interpretation Act 1954, sections 36 and 32DA.

2. (2)
   A spouse, of a person, includes—

1. (a)
   a former spouse of the person; and

2. (b)
   a parent, or former parent, of a child of the person.

Example of a former parent of a child—

a birth parent who stops being a parent of a child under the Surrogacy Act 2010, section 39(2)(b)

3. (3)
   For subsection (2)(b), it is irrelevant whether there is or was any relationship between the parents of the child.

54. [54]
    There is no issue that the parties are former spouses, and they continue as parents of their child (even though there might be no continuing relationship between them as contended by the appellant). Therefore, as found by the magistrate, the parties were in a relevant relationship within the meaning of the Act. There is no merit in the defendant’s argument.

Domestic Violence

55. [55]
    The appellant also challenges the decision on the basis that there is insufficient conduct to constitute domestic violence.  In particular, he contends that:

1. There is no evidence that indicated that the alleged domestic violence even took place in Germany; (part of Ground 1)

2. All contact was and is always in regards to maintaining the relationship with his child after he felt was deceived to his return to Australia for his son to be taken away from him and prevented from having a relationship with his devoted father and family; (Ground 2) and

3. It is himself and his son that are actually the aggrieved.  (Ground 3)

56. [56]
    These contentions relate to the second element of s 37(1) of the Act. That is, it must be shown that the appellant has committed domestic violence against the respondent (and/or someone associated with the respondent).

57. [57]
    The definition of “domestic violence” in s 8 reflects the contemporary understanding of domestic violence, and includes behaviour that is physically or sexually abusive, emotionally, psychologically or economically abusive, threatening or coercive, or behaviour that in any other way controls or dominates another person causing fear. 

8 Meaning of domestic violence

1. (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)
   is economically abusive; or

4. (d)
   is threatening; or

5. (e)
   is 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.

2. (2)
   Without limiting subsection (1), domestic violence includes the following behaviour —

1. (a)
   causing personal injury to a person or threatening to do so;

2. (b)
   coercing a person to engage in sexual activity or attempting to do so;

3. (c)
   damaging a person’s property or threatening to do so;

4. (d)
   depriving a person of the person’s liberty or threatening to do so;

5. (e)
   threatening a person with the death or injury of the person, a child of the person, or someone else;

6. (f)
   threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;

7. (g)
   causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;

8. (h)
   unauthorised surveillance of a person;

1. (i)
   unlawfully stalking a person.

3. (3)
   A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.

58. [58]
    Section 11 defines ‘emotional or psychological abuse’ as follows:

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

 Examples —

• following a person when the person is out in public, including by vehicle or on foot
• remaining outside a person’s residence or place of work
• repeatedly contacting a person by telephone, SMS message, email or social networking site without the person’s consent
• repeated derogatory taunts, including racial taunts
• threatening to disclose a person’s sexual orientation to the person’s friends or family without the person’s consent
• threatening to withhold a person’s medication
• preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity.

59. [59]
    Proof of emotional or psychological abuse depends not only on the inherent factor of the behaviour (as in the examples) but also whether it has that effect of tormenting, intimidating, harassing or was offensive to the subject aggrieved.  For that reason evidence of the subjective response of the aggrieved to the behaviour relied on is relevant and admissible.^[30]

60. [60]
    The magistrate carefully and accurately summarised of the evidence and categorised the alleged domestic violence as follows:^[31]

1. Incidents in Germany;

2. Repeated and unwanted contact with the applicant and named persons; and

3. Incidents at ‘Monkey Business’.

Incidents in Germany

61. [61]
    The appellant asserts that there was no evidence that indicated that the alleged domestic violence even took place in Germany.  Taken literally, this assertion is plainly fallacious.  There was a large body of evidence adduced by and on behalf of the respondent (aggrieved) about incidents between February 2014 and June 2015 the parties lived in Germany.  IN that regard, the magistrate well appreciated that the alleged incidents between February 2014 and June 2015 the parties lived in Germany were in the throws of the breakdown of the parties’ relationship from the parties different perspectives. 

62. [62]
    Her Honour placed particular weight upon the more recent incidents which were admitted by the appellant in his affidavit (Exhibit 15) as evidence of domestic violence in Germany, in particular:

1. The respondent described that during an argument on 5 January 2015 ]the appellant picked up frying pan and smashes it on kitchen tiles.^[32]  The appellant acknowledge this conduct but contended it was done in anger to prove a point after the respondent smashed a glass.

2. The respondent testified that on 6 April 2015 that: “I ask Adam if I can rely on him.  He won’t answer me.  So I ask again and again.  Adam gets mad and pushed me backwards.  I fall back and land on a glass table in our hall and then on the floor.  Our baby is sitting on the floor.  I land right to him.  My shoulder is hurting.  Our son starts crying and crawls over to me.  When Adam tried to pick him up our son appears to be afraid and reaches out to me.  Later when I asked Adam why he did this to me his response was: ‘If you would just do as you are told I wouldn’t have to do this to you.’”^[33] 

The appellant admitted pushing the respondent back so she fell onto a glass table and then on the floor, but only after the respondent first pushed him and he pushed back and she fell slipping on the floor, and the argument continued.

3. The respondent described events of 15 April 2015 saying:  “Adam is mad because I pointed out that he is not living a family appropriate lifestyle.  He storms in the hall and kicks the baby safety gate so hard that it goes flying through the air and chips of wooden parts of the doorway.”^[34] 

About this incident, the respondent explained that while he was trying to fix a baby gate, he became frustrated and hit the gate and it flew off and chipped paint but be denied that he kicked the gate in anger.

4. The respondent explained that on 17 December 2014 the parties argued that about the appellant’s “unwillingness to take on responsibilities” and “Adam storms through the living room, grabs our 2.8m high Christmas tree and smashes it on the ground.  Our 8 month old baby got so scared that he was screaming his lungs out.  I pick the baby up and try to leave the room.  Adam won’t let me go past.  I felt so threatened and afraid and push him with my shoulders so he would let me go past.  Instead he swings out his arms and his finger hits my eye.  As a result I had a golfball size purple bruise under my right eye for days.  He only stopped and let me go when I threatened to call the police and have him removed from the premises.”^[35] 

The appellant admitted that during an argument he picked up a Christmas tree and threw it.^[36]  In the same argument he admitted losing his temper and hitting a chair into the floor and dinting the chair.

63. [63]
    The magistrate particularly relied various admissions in the appellant’s material to find that:

“… a number of the acts agreed between them (the pushing, the frying pan incident and Christmas tree incident) amount to acts of domestic violence being damaging property and physical acts such as pushing during arguments.”

64. [64]
    Her Honour’s conclusions were entirely sound and supported by the evidence comprised in the admissions of damaging property and physical violence during arguments. Having approached the matter this way, Her Honour’s the characterisation of the behaviour as domestic violence was correct and incontrovertible.

Contact with the Respondent & Others

65. [65]
    The magistrate then turned to the allegations of repeated and unwanted contact with the applicant and named persons, including phone calls, texts, emails and Skype recordings.

66. [66]
    The respondent testified that after she terminated the relationship, the appellant began threatening to take the child away from her and “terrorizing me with messages and demands and threats.”^[37]  She said: “It is causing me a great deal of stress and I started developing anxiety issues.  I have troubles sleeping and every time I hear a noise around my house I am afraid it is [the appellant].  I asked him on several occasions to back off and his response was ‘I will never leave you alone, you better get used to it.’  It has gotten to a point out of control.”^[38]

67. [67]
    The respondent also provides evidence of receiving numerous telephone calls from the appellant between early November and February 2016, calling her an average of 280 times per week as well as calling her family and close friends.^[39]  Some examples of the behaviour included appellant called her 41 times in one day;^[40] sending about 70 text messages between 7:30 am and 10:54 pm; emails and recorded Skype communication to the effect of the appellant declaring his love of the child, wanting to see him, demanding contact, and deficiency of contact.^[41]

68. [68]
    When respondent changed her phone number on 14 December 2015, the appellant began calling the respondent’s partner excessively and abusing and threatening him.^[42]

69. [69]
    In respect of these phone calls, texts, emails and Skype recordings, the magistrate said:

“I am satisfied that the contact as evidence by the testimony of the applicant, family members and [her partner] as well as the text messages, emails and skype recordings tendered by both the applicant and the respondent can be described as unrelenting and harassing. …

The communication from the respondent to the applicant by their sheer number and repetition are corrosive and emotionally abusive.  On many on many occasions, the applicant herself responds in a harsh manner.  She swears at the respondent.  She is sometimes quite insulting.  Nevertheless, I am satisfied that the repeated contact both tormented, harassed or was offensive to the applicant in accordance with the definition of emotional abuse in section 11.”

70. [70]
    The appellant argues that all contact was and is always in regards to maintaining the relationship with his child after he felt was deceived to his return to Australia for his son to be taken away from him and prevented from having a relationship with his devoted father and family.  He further argues that:^[43]

“I have still only been able to see my son for only 2 days in the last 19 months & 5 hours (insultingly supervised) in the last 9 months - all compliments of a mothers vindictive, nasty & deceiving nature.  This is where the real domestic violence lies, it is our son that is suffering - being denied access to his loving and caring father is child abuse, yet she gets away with it.  My child … hasn't met anyone of his biological Australian family yet & if requested by members of my family they are rejected and verbally abused. …

My son’s Grandmother … is not impressed with being denied to meeting her Grandson while watching the law fail her own son fighting to raise his son is astounding.”

71. [71]
    The appellant’s arguments are not to the point in this proceeding and are maters relevant to the family law proceedings before the Federal Circuit Court.  The point is that these arguments do not (and ought not) justify or excuse domestic violence.  As the magistrate held:^[44]

“I have no doubt that the contact is engendered by the custodial dispute and the respondent’s sincere belief that he is doing the right thing to try and seek equal custody of his child.

This case, as I have repeatedly tried to explain to the [appellant], is not about the custody of [the child].  The [appellant] has produced a substantial amount of evidence attesting that he is a loving and caring father.  Family members and friends who have observed him over many years have provided a significant number of affidavits that support him and demonstrate their complete trust in him.  I accept all these as truthful.  All the evidence indicates he is a loving and caring father devastated by his inability to parent [the child] as he would wish.

… My impression is that neither party will change their position.  The Federal Circuit Court proceedings will determine the custody arrangements for [the child].”

72. [72]
    Her Honour remarked, and I agree, that:

“No matter the motive or how justified the person considers their conduct, for one person to continually harass another person by repeated unwanted contact to make them do something, in this case, accede to the respondent’s demand for custody on his terms, meets the definition of domestic violence as it’s coercive behaviour and emotionally abusive… and indeed it’s controlling.”^[45].

73. [73]
    The appellant has not demonstrated any error in magistrates reasoning or decision in relation to the offending phone calls, texts, emails and Skype recordings.

Contact Visit

74. [74]
    The respondent also relied on an incident that occurred at the end of a supervised contact visit, which was the subject of cross examination at the hearing. It seems that despite a protection order the appellant approached the respondent’s car say ‘good bye’ to the child, the respondent felt threated and her attempted to close her car door and struck the appellant.^[46]

75. [75]
    As to this incident, the magistrate said:

“I am not satisfied to the requisite standard that what occurred at Monkey Business constituted acts of domestic violence by either party.  The incident is relevant however to whether an order is necessary to prevent domestic violence”.

76. [76]
    It was open for Her Honour to take account of the appellant’s past behaviour and future likelihood interactions between the parties, in relation to the exercise of the discretion in making a protection order.

Necessary & Desirable to protect aggrieved

77. [77]
    The third element in s 37(1)(c) is that “the protection order is necessary or desirable to protect the aggrieved from domestic violence”.

78. [78]
    The appellant argues that it is himself and his son that are actually the aggrieved, because the withholding a child from knowing and seeing his loving father constitutes as real psychological and emotional abuse.  He further argued that that he does not and has not posed a threat to anyone and strong believe along with his friends and family the order is unnecessary and inappropriate as it tarnishes the relationship with his son and acts as a precedent to the mother’s thinking they can lie and take a child away.

79. [79]
    It seems to time that the appellant has been and continues to be blinded by his blinkered perception of his parental responsibility, entitlement and nobility, which manifested in an absence of insight into the consequences of his actions.

80. [80]
    Whilst those considerations are generally relevant to the courts assessment, the focus of this element is the paramount need for the protection an aggrieved from domestic violence, and whether imposing a protection order is necessary or desirable to meet that need.  In circumstances (like this case) where 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.

81. [81]
    In her decision, the magistrate often acknowledged the provocative and acrimonious dynamic between the parties as being a catalyst to the appellant’s behaviour, and she identified the respondent as being in most need of protection. This is clear from the analysis of the evidence, and Her Honour’s careful consideration of the matters relevant to the exercise of her discretion, including:^[47]

1. First, the magistrate assessed the risk of future domestic violence between the parties in the absence of any order by evaluating the evidence and drawing proper inferences about future risk. Her Honour afforded greater probative value to the appellant’s recent conduct, including his conduct despite the temporary protection order and the orders of the Federal Circuit Court.  Her Honour was satisfied the defendant probably would continue to contact and harass the respondent in the absence of an order.

2. Secondly, the magistrate assessed the need to protect the aggrieved from that domestic violence in the absence of any order. Her Honour relevantly considered evidence of the appellant’s persisting offending behaviour despite orders; the young age of the child; continued restricted contact pending final orders of the Federal Circuit Court; parties’ future personal and familial relationships, and the opportunities for direct and indirect contact in relation to the child. Her Honour was satisfied that there was a ‘substantial risk’ of continuing offensive behaviour in the absence of an order.

3. Thirdly, the magistrate considered whether imposing a protection order was “necessary or desirable” to protect the respondent aggrieved from the domestic violence. Her Honour had regard to the principles in s 4(1) of the Act.  Her Honour concluded that a protection order was necessary in the circumstances of the case.

4. Finally, having been satisfied of the other pre-conditions of a relevant relationship and domestic violence, Her Honour exercised her discretion to make a protection order imposing appropriate prohibitions or restrictions on the behaviour of the appellant to protect the respondent from the domestic violence.

82. [82]
    I have independently examined the evidence and information before the Magistrates Court, including credit of witnesses subject to what I said above, to make my own assessment of both the sufficiency and quality of the evidence. Having done so, I am unable to discern any error of principle or other failure of the magistrate to appreciate a salient feature in reaching her conclusions vis-à-vis the respondent.

Naming other parties

83. [83]
    In relation to the named persons sought to be included on the Protection Order, Her Honour considered the requirements of ss. 52, 53 and 54, and concluded that it was not necessary or desirable to name the child in the orders to protect him from associated domestic violence.^[48] 

84. [84]
    However, Her Honour concluded that it was necessary or desirable to protect relatives and associates of the respondent from the associated domestic violence based on their evidence of unwanted contact from the appellant and the content of those messages.^[49] 

85. [85]
    Section 53 provides:

52  Naming relative or associate of aggrieved

1. (1)
   The court may name, in a domestic violence order, a relative or associate of the aggrieved if the court is satisfied that naming the relative or associate in the order is necessary or desirable to protect the relative or associate from associated domestic violence.

2. (2)
   In this section—

relative, of an aggrieved, does not include a child mentioned in section 53.

86. [86]
    The term “associated domestic violence’ is defined in s. 9 as:

 Associated domestic violence means behaviour mentioned in section 8(1) by a respondent towards —

• a child of an aggrieved; or
• a child who usually lives with an aggrieved; or
• a relative of an aggrieved; or
• an associate of an aggrieved.

87. [87]
    The magistrate found that the contact with the respondent’s partner was entirely unwanted and was insulting, threatening and controlling.^[50]  Her Honour said:

“I am satisfied, to the balance of probability, it’s necessary to name on the protection order the relatives and associates of the aggrieved to protect them from unwanted contact and harassment.  The past indicates the contact, indeed, accelerates when contact is limited with the applicant.  Given my orders, then, I consider it necessary to protect the relatives from harassing contact, which constitutes acts of associated domestic violence.”^[51]

88. [88]
    In my respectful opinion this conclusion was both reasonable and just having regard to the evidence. I see no grounds that warrant interference with the decision.

89. [89]
    In my opinion, the evidence relied upon by the magistrate was both highly probative and warranted the making of an order to assure safety, protection and wellbeing of the respondent directly and in association with the named persons.  It seems to me that the protection order made by the magistrate was entirely appropriate it its duration and terms. 

Order

90. [90]
    For these reasons, I make the following orders:

1. Appeal dismissed.

2. The orders made in the Magistrates Court on 20 June 2016 are affirmed.

Judge Dean P Morzone QC