AA v R

District Court of NSW|2023-03-09

Introduction

AA (the appellant) appeals against the decision of his Honour Magistrate Donnelly to make an apprehended domestic violence order (ADVO) in favour of YA (the PINOP) on 2 September 2022 at Sutherland Local Court.
The appellant and the PINOP were previously married and have two children together, a daughter aged 18 and a son aged 13.
On 5 November 2020 the appellant agreed, without admission of liability, to an ADVO in favour of the PINOP for a period of 2 years. The order consisted of the standard orders.
On 23 August 2021 the police commenced fresh proceedings seeking a further ADVO against the appellant in favour of the PINOP. The application sought, in addition to the standard orders, a no contact order and an order that the appellant not approach any place where the PINOP resided or worked. The fresh application was based on: 1. interaction between the parties on 23 June 2021 at the auction of the former matrimonial home; 2. Facebook posts by the appellant of 23 March 2021, 12 April 2021 and 21 April 2021; 3. two attendances by the appellant at the PINOP's residence on 28 July 2021 and 7 August 2021.
The magistrate made a final ADVO on 2 September 2022 for a period of 12 months commencing on 25 August 2022 and expiring on 24 August 2023. The effect of the magistrate's order was that there were two enforceable ADVOs in place protecting the PINOP from the appellant.
As there was an ADVO in force, the August 2021 application should have been an application to vary the first ADVO by seeking additional orders and/or the extension of the period of its operation. There is some force in the argument that a fresh application seeking in effect the same relief was an abuse of process. However, I have the same powers as the Magistrate when dealing with the appeal and I will continue on the basis that the second application was in substance an application to vary the order made by consent.
The prosecution fairly conceded on the appeal that the Facebook posts were the most concerning conduct of the appellant and that the other events were innocuous. I am satisfied on the basis of this concession that the magistrate fell into error in deciding that the two visits to the PINOP's home in July and August 2021 were significant to whether he should make an order. I am also satisfied that the magistrate overstated the significance of the decision in Director of Public Prosecutions v Best [2016] NSWSC 261. It is unnecessary to consider that matter further. Accordingly, the appeal falls to be determined on what should follow from the Facebook posts.

Nature of the appeal

Section 84 Crimes (Domestic and Personal Violence) Act 2007 (the DV Act) provides an appeal as of right from the decision of a magistrate to make an apprehended domestic violence order. The appeal is to be conducted in the same way as a conviction appeal pursuant to the Crimes (Appeal and Review) Act 2001, with such modifications as are prescribed by the regulations.
Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31];
The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22];
The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).
An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).

Requirements for the making of an ADVO

Section 16 of the DV Act provides: (1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears-- (a) the commission by the other person of a domestic violence offence against the person, or (b) the engagement of the other person in conduct in which the other person-- (i) intimidates the person or a person with whom the person has a domestic relationship, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
Intimidation is defined in section 7 of the DV Act as: (1) For the purposes of this Act, "intimidation" of a person means-- (a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or Note : An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email. (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour.
Section 17 of the DV Act sets out the matters to be considered by the Court in deciding whether or not to make an order. The court must consider the safety and protection of the protected person and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order. The court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person's property.
Section 9(4) of the DV Act requires the Court, in exercising its power under the Act, to be guided by the objects of the Act which are set out in s 9(1) as follows: (a) to ensure the safety and protection of all persons, including children, who experience or witness domestic violence, and (b) to reduce and prevent violence by a person against another person where a domestic relationship exists between those persons, and (c) to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women, and (d) to enact provisions that are consistent with the United Nations Convention on the Rights of the Child.

The Facebook posts

Before turning to the content of the Facebook posts, there are a few background matters to be taken into account.
The appellant and the PINOP were not "friends" on Facebook and accordingly, she had no direct access to the posts made by the appellant. In addition, the PINOP had blocked the appellant on Facebook and she could not see his posts as a result of that action.
The appellant and the PINOP had mutual friends who were Facebook "friends" with both of them.
At the time that the posts were published, the appellant and the PINOP were involved in a long running family law dispute.
The salient parts of the posts were summarised in the appellant's written submissions as follows: 1. On 12 March 2021, the appellant wrote the following: May Allah curse every mother who separated a father from his children May Allah curse you for the Day of Judgment May Allah suffices you and your family 1. On 21 April 2021, the appellant posted a link to an article titled "Tributes flow for Kelly Wilkinson, the Gold Coast mother-of-three allegedly murdered in her backyard", with the following comment: Without knowing the background - I am not surprised these situations happen…not condoning any part of the situation but the law in this country drives people to despair and actions that are not them - even the calmest of us would lash out with the stupidity of the family court in this country - I am not surprised this is the end result on so many occasions 1. On 23 April 2021, the appellant posted a link to an article titled "Murdered baby's family break silence" with a short extract below the title stating, "The nine-month-old plunged to her death, strapped to her father - who had been in Court just hours before the horrific murder-suicide". The offender's message accompanying the post stated, "Again. The courts driving dads to despair".
The PINOP did not see the Facebook posts and her attention was drawn to them by a third party. In her evidence, the PINOP described herself as feeling sick, anxious, concerned and scared for her safety and the safety of her children.

Consideration

The first Facebook post put blame on all mothers in a similar position to that of the PINOP for separating fathers from their children and recorded his disapprobation for their conduct. In context, the post was derogatory of the PINOP. I infer that the appellant blamed the PINOP for his separation from their children and that he believed that there should be religious consequences for that. I am satisfied that the first Facebook post was a public denigration of the PINOP by the appellant and that he intended to use Facebook as a forum to publish matters that related to his own experience of family breakdown, for which he held the PINOP responsible.
The latter two Facebook posts were republication of articles that were published in the media, together with the appellant's commentary on them. The articles both related to episodes of extreme family violence committed in the context of family law proceedings.
As to the 21 April 2021 post, the appellant was relating his own experience of the "stupidity of the family court" which he stated could drive even the "calmest of us" to lash out. The commentary was made in the context of a reference in the article to the murder of a mother involved in family law proceedings. The reference to "not condoning any part of the situation" is subject to the appellant's views of unfairness in the system and it did little to ameliorate or avoid the connection between the unfairness of the system and the use of extreme violence. Again, this post was made in the context of the appellant's own experience of the family law system and is a reference to his own views of it.
As to the 23 April 2021 post, the appellant was again referring to his own experience as a despairing Dad in family law proceedings. The commentary was again made in the context of an article referring to a murder/suicide of a father and a baby involved in family law proceedings. There was no reference on this post to not condoning the behaviour.
In addition, the Facebook posts can be construed as a course of conduct relating to the family law proceedings on foot between the PINOP and the appellant. In this context, the Facebook posts demonstrated that: 1. the appellant blamed the PINOP for separating him from his children; 2. he was being treated unfairly by the family law system; 3. calm people involved in the family court system could be driven to lash out with extreme violence; 4. fathers were treated unfairly and could react violently against their former partners or children.
Taking into account all of the evidence, I am satisfied that the PINOP had reasonable grounds to fear the appellant on the basis of the Facebook posts.
I am satisfied that it was necessary to make an order to protect the PINOP from the appellant for the reasons that follow.
First, the PINOP and the appellant are still involved in family law proceedings that are listed for hearing in late May 2023. In other words, the context for the appellant's complaints in the Facebook posts persists.
Second, the objects of the act require the Court to "ensure" the safety of all relevant persons. In a legal context, this requires steps that will guarantee or make certain the person's safety: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470. A person's safety cannot be ensured if a risk to their safety exists. I am satisfied on the evidence that the appellant expressed himself in the Facebook posts in such a way that there is a risk, in the context of the family law proceedings which he considers to be unfair and for which he blames the PINOP, that he may respond with violence. I accept that it is a small risk, but by his own conduct he has linked that risk to a risk of extreme violence.
Third, the additional orders sought relating to not approaching the PINOP at her home or place of work, and not contacting the PINOP except through her legal representative did not amount to an unnecessary intrusion into the appellant's rights. I am satisfied that they were justified by reference to the Facebook posts.
Fourth, I have taken into account that the order still had some considerable time to run at the time that the Facebook posts were published and that there have been no further incidents. However, I am satisfied that the order must extend to protecting the PINOP until the final hearing of the family law proceedings at which time the Federal Circuit and Family Court of Australia can determine the need for any orders to regulate the appellant's conduct in the future.

Orders

The orders I make are as follows: 1. Appeal allowed in part. 2. The order made by the magistrate is varied to the extent that it will expire on 26 May 2023. 3. In all other respects, I confirm the orders of the magistrate.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2023

At a glance

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Decision date

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Judgment (7 paragraphs)

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Cases Cited (8)