//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] WADC 165
District Court of WA
2012-11-23
Mr P
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : WALSH -v- BARON [2012] WADC 165
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Appeal - Violence restraining order - Domestic and family relationship - Behaving in an ongoing manner that is intimidating, offensive or emotionally abusive - Whether offensive text messages are acts of abuse - Whether bringing other legal proceedings against protected person is intimidatory - Whether use of interlocutory procedures in the restraining order application is intimidatory - Whether other conduct complained of is intimidatory - Turns on own facts
Appeal - Appeal from grant of extension of time to file respondent's notice of intention - Discretion to extend time
Interlocutory appeal from deputy registrar dismissed
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Butler v Bennett [2007] WADC 107
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Ho v Loneragan [2011] WADC 133
Porteous v McNamara [1999] WASCA 123
1 Following the break-up on 19 January 2011 of a six-month romantic relationship, the appellant sent the respondent a number of offensive SMS messages to which she reacted by applying for, on 20 January 2011, and obtaining, on 21 January 2001, an interim violence restraining order (VRO) in the following terms:
This order is made for the benefit of Alison Fay Baron.
This order imposes restraints on the lawful activities and behaviour of William Arthur Walsh.
The duration of this order is interim.
The person who is bound shall not:
2 Thus began an extraordinary litigation which resulted in extensive interlocutory proceedings and a final VRO hearing which went on for six days, namely, 20 June 2011, 31 October 2011, 1 November 2011, 21 November 2011, 26 March 2012 and 23 April 2012. On the last hearing day the learned magistrate made a final VRO in the terms of the interim order save that the duration of the order was five years. Reasons were published on 21 May 2011. Mr Walsh was ordered to pay costs which the learned magistrate assessed on 26 June 2012 at $33,606.65.
3 Mr Walsh, being aggrieved by the decision, has appealed.
4 In the course of the hearing of the substantive appeal I heard an interlocutory appeal from the decision of Deputy Registrar Hewitt extending the time within which to file a notice of respondent's intention. The respondent's solicitors filed the notice of respondent's intention one day late. On the affidavit of the respondent's solicitor this was due to a miscalculation of the time period. The learned deputy registrar allowed an application to extend time. The appellant contends that the order was made without power.
5 Rule 53(2) of the District Court Rules 2005 provides that a notice must be filed and served within 21 days of service of the notice of appeal. Rule 53(6) expressly recognises power to extend the time. It provides that unless a notice is served within the stipulated time period or such further time as the court allows, the respondent may not be heard on the appeal.
6 The appellant argues on the strength of decisions of this court, in particular, Ho v Loneragan [2011] WADC 133, holding that no discretion to extend time exists with respect to the commencement of an appeal from the Magistrates Court by operation of s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 and r 51(4) of the District Court Rules 2005 that there is no discretion to extend time for the filing of a respondent's notice of intention. Those provisions provide that an appeal must be lodged within 21 days of the decision appealed from and contain no reference to any power to extend time. Rule 53(6), however, expressly refers to time being extended to allow the filing of a notice of intention by a respondent. The power originates in O 3 r 5 of the Rules of the Supreme Court 1971.
7 An appeal from a registrar is a hearing de novo. I am satisfied that the District Court Rules 2005 do confer a discretion to extend the time within which a respondent to an appeal from the Magistrates Court may file and serve a notice of respondent's intention. The discretion should be exercised in favour of the respondent in the circumstances of this case. The appeal is dismissed. The order made by the learned deputy registrar is upheld.
8 A right of appeal from the decision is afforded by s 64(1) of the Restraining Orders Act 1997. The appeal is to be made in accordance with pt VII of the Magistrates Court (Civil Proceedings) Act 2004. That Act provides that the appeal be conducted in accordance with the rules made by the District Court: s 40(3)(b). The appeal must be decided on the material and evidence that is before the Magistrates Court: s 40(4). Rule 50(1) of the District Court Rules 2005 provides that an appeal must be by way of reconsideration of the evidence that was before the primary court, unless the parties otherwise agree.
9 The appeal is, therefore, by way of re-hearing. To disturb the judgment of the court below it is not enough that the judge hearing the appeal would have come to a different conclusion; error must be shown: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 180; CDJ v VAJ (1998) 197 CLR 172, 201 - 202.
10 As the making of the final VRO was a discretionary decision, the proper approach to this appeal is as Bowden DCJ put it in Butler v Bennett [2007] WADC 107:
If her Honour has acted upon a wrong principle or if she has allowed extraneous or irrelevant matters to guide or affect her or if she has made a mistake on the facts or if she does not take into account some material consideration, then her determination should be reviewed and I may then exercise my own discretion to substitute her decision if I have the materials for doing so. If the result reached by her Honour is so unreasonable or plainly unjust, then this court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the grounds that a substantial wrong has in fact occurred: House v R [1936] HCA 40; (1936) 55 CLR 499.
11 The grounds of the appeal, as amended at the hearing of the appeal, contend, in summary, as follows:
A court may make a violence restraining order if it is satisfied that -
(a) the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person; or
(b) a person seeking to be protected, or a person who has applied for the order on behalf of that person, reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected,
and that making a violence restraining order is appropriate in the circumstances.
13 Clearly, s 11A affords two grounds for a VRO, both subject to a further requirement that the making of the order is appropriate in the circumstances.
14 Section 3 defines 'act of abuse' to mean 'an act of family and domestic violence or an act of personal violence'.
15 Section 6(1) defines an 'act of family and domestic violence' as one of a number of prescribed acts that a person commits against another person with whom he or she is in a family and domestic relationship including, relevantly, 'behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person'.
16 Section 6(4) provides that 'intimidate' has the same meaning as in s 338D of the Criminal Code. It includes, in relation to a person:
(a) to cause physical or mental harm to a person;
(b) to cause apprehension or fear in the person;
(c) to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act;
(d) to compel the person to do an act that the person is lawfully entitled to abstain from doing.
17 'Offensive' has a number of common meanings. In context I take it to mean 'hurtful, harmful, injurious', rather than merely 'displeasing, annoying, insulting, disgusting, nauseous'.
18 'Emotionally abusive' eludes definition by conventional means. For the purposes of this case it is unnecessary to construe it, as the behaviour in question was categorised for the purpose of the application as offensive or intimidating.
19 I have not been taken to any authority on the meaning of 'ongoing manner', but I take 'ongoing' to bear its ordinary and natural adjectival meaning of 'progressive, continuous, current', as opposed to occasional or past. Having regard to the purpose of the legislation, I am of the view that it does not purport to make any behaviour that is offensive, intimidating or emotionally abusive an act of abuse. Clearly, such behaviour may occur occasionally in relation to an intimate relationship without giving rise to a need for a protective court order. Such a construction is consistent with the principle that a VRO is not a punishment for past behaviour.
20 Section 4(1)(f) defines 'family and domestic relationship' to mean 'a relationship between two persons who have, or had, an intimate personal relationship, or other personal relationship with each other'.
21 Section 12 sets out the matters to be considered by the court in deciding whether to make a VRO. The matters relevant to this case are as follows:
(a) the need to ensure that the person seeking to be protected is protected from acts of abuse;
(b) the need to prevent behaviour that could reasonably be expected to cause fear that the person seeking to be protected will have committed against him or her an act of abuse;
...
(da) the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or persons as are before the court or not;
(e) hardship that may be caused to the respondent if the order is made;
...
(g) other current legal proceedings involving the respondent or the person seeking to be protected;
(h) any criminal record of the respondent;
(i) any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise; and
(j) other matters the court considers relevant.
22 Of these, the court is to regard matters set out in s 12(1)(a) and (b) as being of primary importance: s 12(2). The effect of s 12 of the Restraining Orders Act 1997 is that the matters to be considered by the court in determining whether to grant a restraining order are not confined to the grounds upon which an applicant applies for a restraining order.
23 It is not disputed by Mr Walsh that he was in a family and domestic relationship with Ms Baron, by virtue of having been in an intimate personal relationship, even though they did not ever co-habitate.
24 The learned magistrate was satisfied on the evidence that Mr Walsh had committed acts of abuse and was likely again to commit such acts. Her Honour also found that it was appropriate in all the circumstances to make a final order.
25 In the introduction to her reasons her Honour noted that the application was based on acts of abuse in the category of s 6(1)(d), i.e. that Mr Walsh had behaved in an ongoing manner that was intimidating, offensive or emotionally abusive towards Ms Baron. The initial acts were text messages sent on 19 and 20 January 2011 which Ms Baron regarded as threatening and abusive. By the time of the final order hearing, however, the alleged acts of abuse were, as set out in [4] of the reasons:
26 At [5] - [14] of the reasons her Honour set out her observations on the evidence of Ms Baron and Mr Walsh and their witnesses. She preferred to accept the evidence of Ms Baron on any issue in respect of which her evidence conflicted with Mr Walsh's. There is no challenge in the appeal to her Honour's credibility-based findings.
27 In summary, her Honour's findings were as follows:
28 Her Honour found that Mr Walsh's response to being 'dumped over the phone' by Ms Baron was vitriolic and ongoing. At [39] - [42] her Honour set out what she considered was evidence of ongoing offensive and intimidating behaviour:
The intimidation of Ms Baron continued after the initial text via further texts. At 18:43 on 19 January 2011 'u will regret crossing me ... send back what u owe me ... or I will call in at Murdoch to collect in full u cunt'. At 19:05 'last message ever hope your final days are as horrible as you really are low life piece of scum'. At 20:05 Mr Walsh apologises for going off but this is followed by 'I meant what I said'. At 20:55 'let me know your intentions or do u want me to come to Murdoch? your choice'.
The following day at 14:24 'reporting u for theft illegal supply of drugs ... to all the relevant boards ... u stop and will request to stop ...'. Mr Walsh's phone message left at 2:14 pm on 20 January 2011 continued the threats as did that left on 24 January 2011 at 9:45 am. On 24 January 2011 at 10:07 he texted 'now I will lodge all the stuff I had on you and it will include everything to everyone ...'. On 24 January 2011 Ms Baron received a copy of a complaint Mr Walsh had made to AHPRA regarding alleged supply of drugs. The complaint had attached a sticky note 'Just the beginning !xx'. It was alleged that Ms Baron took this note from something Mr Walsh had given her during the relationship. I accept Ms Baron's denial that it had been given to her in another context particularly given the similar sentiments (just the beginning) expressed in the preceding texts and phone messages.
On 3 February 2011 'about to pick up a copy of the interim order wish to know if you intend on withdrawing before I do this if not I will issue a summons for the recovery of monies that you owe me plus all costs I will also file for a dismissal of the order on the grounds of vexatious litigation with malice aforethought you will have to attend court on several accounts ...'. It should be noted that the IVRO was served on 16 February 2011. On 17 February 2011 Mr Walsh lodged an application to cancel the order plus the minor case claim. On 16 March 2011 Mr Walsh lodged an application for change of venue to the Perth court. He also lodged an application for discovery (25 March 2011) and for the application to be struck out (28 March 2011). On 19 May 2011 he lodged a further application to cancel the IVRO. On 13 May he had unsuccessfully attempted to settle the VRO application by way of mutual undertakings and offering to withdraw the minor case claim if Ms Baron discontinued the VRO. On 17 May 2011 Mr Walsh made a report to police that Ms Baron had committed perjury and that she had in February sent him a cut up shirt.
In evidence Mr Walsh stated he is still pursuing the allegations of defamation and supply of illegal drugs.
29 Her Honour's reasons for finding that Mr Walsh was likely to commit further acts of abuse were as follows [43]:
The court must be satisfied that the evidence establishes that Mr Walsh is likely again to commit such acts of abuse. Given Mr Walsh's clear avoidance of service of the IVRO, while continuing to taunt Ms Baron; his ongoing disdain for Ms Baron; his attempt to use court process to intimidate Ms Baron (the minor case claim and the various interlocutory applications in the VRO); his lack of appreciation of the impact of his extremely offensive behaviour has had on Ms Baron; and his ongoing pursuit of the allegations of illegal supply of drugs and defamation, the court is satisfied that without a restraining order Mr Walsh is likely again to commit such acts of abuse against Ms Baron.
30 It is clear from her Honour's reasons that her decision to make the VRO a final order was based on satisfaction of the requirement in s 11A(a). Her Honour made no findings with respect to s 11A(b).
31 The applicable legal principles were summarised by her Honour as follows:
Violence restraining orders are not to be made merely because of general feelings of animosity between the parties or because it seems preferable that contact between the parties might be minimised or prevented: Low v Weber [1999] WASCA 274.
It is not possible to deal with the issue of a restraining order simply on the basis of what is prudent or desirable. Regard must be had to the legal rights of the parties: McWaters v Shirley [2005] WASC 188 [29].
A violence restraining order is not to be made lightly. It stigmatises the respondent as a violent person from whom another person or persons need to be protected by the court and the restraints that may be imposed can significantly curtail the respondent's ordinary freedom: McKenzie v Picken [2002] WASCA 113 [34].
The making of a violence restraining order is a serious step, having serious consequences for the person against whom the order is made: McKenzie v Picken [46].
32 Although these legal propositions were not the subject of any argument on the hearing of the appeal, it is important to note that they were made with respect to the Act as it was prior to the Acts Amendment (Domestic Violence) Act 2004, by which the conditions for making a VRO were made significantly less stringent.
33 Before the amendment the Act provided by s 11 that a VRO could be made if the respondent had committed an offence of personal violence or behaved in a manner that could reasonably be expected to cause the applicant to fear that the respondent would commit such an offence. The difference between those conditions and those expressed in s 11A lies in the introduction of the more broadly defined concept of 'act of abuse'.
34 In the second reading speech in the Legislative Assembly on 23 June 2004 the Attorney-General the Hon Jim McGinty MLA said:
The Bill addresses deficiencies in the current legislative approach to domestic violence in Western Australia and recommends a number of changes to modernise and update the existing law to give greater protection to the victims of domestic violence. Several major changes will be made to our State's domestic violence law as a result of this Bill. First, the Bill recognises the seriousness of domestic violence and how it may differ from other violent crimes. Unlike with most other assaults, there is enormous potential for domestic violence to be repeated and to escalate in seriousness. An act of domestic violence is therefore clearly defined in the Bill to include a range of acts and behaviours, including behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards a person. The inclusion of emotional abuse is a new element, and acknowledges the insidious nature of this form of abuse and the effect it can have on the victim.
35 The Supreme Court has not had occasion to pronounce upon the effect of the 2004 amendments. In my view the enactment of s 11A and the inclusion within the meaning of 'act of abuse' or an 'act of family and domestic violence' which consists of 'behaving in an ongoing manner that is intimidating, offensive or emotionally abusive' have the effect that actual or apprehended violence (in the ordinary sense of the exercise of physical force to cause injury or damage) is no longer a necessary consideration.
36 Even so, a VRO brands a person on whom it is imposed as an abusive person from whom another requires the protection of the court and may significantly curtail that person's personal freedom. The consequences of breach may be dire. For these reasons it is still the law, in my opinion, that a VRO should not be granted lightly, as Anderson J (with whom Steytler J agreed) held in McKenzie v Picken, as it affects the rights of the person bound.
37 It follows that resistance to the making of an order does not in itself ground any inference as to its appropriateness. Furthermore, as Bowden DCJ observed in Butler v Bennett [32]:
It is essential that the hearing which leads to a restraining order being made is conducted in accordance with the requirements of the legislation and that it is focused on the matters which have to be established before the order sought can be made or confirmed.
38 In Porteous v McNamara [1999] WASCA 123 Wheeler J held that the standard of proof is the bare civil standard, Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 having no application. As her Honour explained [10]:
The history of the restraining orders legislation is well known. When such provision was originally introduced into the Justices Act it was intended primarily to deal with what is known as domestic violence. In those cases where the police were reluctant to act because, among other reasons, they took the view that proof to the criminal standard was unlikely, it was thought that an order obtained on the civil standard of proof restricting certain types of conduct for the future would provide some protection. Though, no doubt, the granting of an order of this kind casts a shadow on the character of the person restrained, it is not punitive in nature. In my view the whole purpose of the restraining order scheme would be undermined if it were necessary to prove past conduct involving some breach of the law to a higher than usual standard before the order could be granted.
39 By s 43(2) of the Magistrates Court (Civil Proceedings Act) 2004 the appeal court may ascertain what material or evidence was before the lower court in any manner that it considers sufficient. Before this court is the record of the Magistrates Court. Some affidavits filed in the course of the proceedings below were admitted as exhibit 22. Section 43(4) of the Restraining Orders Act 1997 provides that at a final order hearing a court is to admit as evidence any record of evidence given, including any affidavit filed at a prior hearing, in relation to the application that is relevant to the application. By this provision transcripts of all hearings and all affidavits filed prior to the final order hearing may be treated as evidence, the proviso in s 43(5) having no application in this case.
40 The learned magistrate gave significance in her reasons for decision to the conduct of Mr Walsh throughout the proceedings. It is important, therefore, and necessary for the purpose of a full rehearing in accordance with Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, to review the history of the application. The Magistrates Court file is somewhat disordered. It is not entirely clear what interlocutory hearings took place or what the outcomes were. The following summary represents the best that the court can make of the file by way of a chronological record of the proceedings.
41 Ms Baron's pro forma application is undated, but was filed with an affidavit in support sworn on 20 January 2011. In the affidavit Ms Baron deposed as follows:
Ceased our relationship via discussion over phone. Respondent proceeded to engage in multiple texting of verbal, volatile abuse - making threats on my person to expose private photographs of myself on the internet and place of work. (Have kept all texts on my phone). These texts have been sent throughout the whole night - during the night and a series of phone calls - (in which I have not answered) and continued attempts from him to call me the following day.
The behaviour of the respondent has made me feel very fearful of his vengeful and volatile manner. Knowing his history of self confession when having been involved in violent situations as a police officer. Now an ex-police officer having served in the Victorian police force. He has a diagnosed mental disorder of bipolar and to me presents irrational and unpredictable mannerisms not to my understanding or knowledge.
42 Ms Baron gave evidence in support of the application before his Honour Magistrate Jones on 21 January 2011. Ms Baron said that she had reported the matters to the police who had encouraged her to obtain a restraining order. She also said that Mr Walsh had made allegations that she had stolen drugs from a hospital and had obtained a misconduct restraining order against her. She said that Mr Walsh had threatened to 'deal with her in spades', which she interpreted as harming her. Her evidence of acts of abuse was that Mr Walsh had sent offensive text messages to her.
43 The interim restraining order was served on 16 February 2011. Mr Walsh lodged an objection later the same day. Court records show that Mr Walsh obtained a transcript of the initial hearing of the application by letter of 8 March 2011. A further hearing date was fixed for 16 March 2011.
44 On 15 February 2011 Mr Walsh made application for a change of venue. On the same day he brought a separate application for the interim VRO to be struck out on the basis that the pleadings showed no reasonable cause of action.
45 On 17 February 2011 Mr Walsh made an application to cancel the interim VRO on the grounds that it was vexatious and malicious and had been breached by Ms Baron contacting him by mail.
46 These applications were supported by a lengthy affidavit by Mr Walsh in which he again set out a table of transcripts of text messages from Ms Baron from 3 November 2010 to 17 January 2011. Mr Walsh deposed to the following:
47 There is no record of the outcome of the applications.
48 Mr Walsh then lodged an affidavit sworn by him on 14 March 2011 and an affidavit of Anthony Joseph Lumley sworn the same date.
49 In his affidavit Mr Walsh admitted making nasty and unsavoury comments in response to what he described as an abusive, callous and unprovoked attack by Ms Baron. He said none of his texts threatened any violence. Mr Walsh said he was hurt and upset at the time and had apologised for what he had done. His last text to her was on 9 February 2011. He said it was normal throughout their relationship for Ms Baron to contact him by text seven to eight times per day as well as call him three to six times per day. She had sent lurid texts and naked photos of herself. He said he had never lived with Ms Baron and they had rarely seen each other more than once or twice a week. He described his relationship with Ms Baron as being volatile and unusual, but without any violence or threats of violence.
50 Mr Walsh deposed in the affidavit to the following facts:
51 Mr Walsh's affidavit annexed a number of documents: a photocopy of the package in which he said he had received a shredded shirt; a letter from Victoria Police confirming that he had not worked there as a police officer; a letter from Dr Andrew Yip of Central City Medical Centre certifying that he had been seeing Mr Walsh since August 1999, that he had never attended for any psychiatric problem, and that he had not presented with any apparent symptoms of bipolar disorder; a maintenance call report from Kentucky Fried Chicken (KFC) confirming that he carried out work at KFC Melville on the afternoon of 16 February 2011; and a table setting out details and transcriptions of text messages from Ms Baron from 19 August 2010 to 17 January 2011 and other call details.
52 Mr Lumley had known and worked with Mr Walsh for about 34 years and had met Ms Baron in December 2010. He told of an occasion on which Ms Baron agreed to pay Mr Walsh for a bed for her grand-daughter. On an another occasion in mid-January 2011 he was working with Mr Walsh at the time he received a telephone call from Ms Baron. This was the occasion when, on 19 January 2011, Ms Baron broke up with Mr Walsh by telephone. This event, to his observation, made him very unhappy. (Mr Lumley gave evidence in the final order hearing. Curiously, his evidence was considered unacceptable because it did not accord with Mr Walsh's, yet Mr Walsh's was also rejected on the same points: [14].)
53 The solicitors for Ms Baron lodged a response to application (Form 24) on 14 April 2011 consenting to an order sought by Mr Walsh that her phone be produced to a court official for inspection of the messages, but objecting to the application of Mr Walsh for a change of venue to Perth.
54 On 12 April 2011 Ms Baron made an affidavit by which she deposed, in part, as follows:
55 Ms Baron said in her affidavit that her car had been damaged while she was at work at St John of God Hospital Murdoch between 3.00 pm and 4.00 pm on 16 February 2011. She noticed liquid on the roof, boot and bonnet of her car which caused damage to the paint such that the car needed to be repainted. She thought that Mr Walsh had poured the liquid on her car because during their relationship he had mentioned that he had done the same to other people who had caused him grief.
56 In her affidavit Ms Baron also stated that on 16 February 2011 she received calls from an unknown number on her mobile phone, the caller hanging up when she answered. She stated:
57 She also stated that on 5 April 2011 her home and three other houses in her street were damaged by fire. On 9 April 2011 she found in her mailbox a photocopy of an article which appeared in The West Australian on 6 April 2011 regarding the fire. Reproduced on the page was a dictionary definition of the word 'karma'. The photocopied article was enclosed in an envelope with her address printed in handwriting which she recognised as Mr Walsh's. Her affidavit annexed a copy of the photocopied article and the envelope.
58 On 20 April 2011 the court ordered that Ms Baron lodge and serve full particulars of the application within 14 days, including transcripts of alleged telephone conversations or text messages, and otherwise lodge full particulars of the allegations she relied upon within 14 days. (The extracted order is dated 10 May 2011.)
59 The particulars of allegations of Ms Baron were lodged on 12 May 2011. In summary, the allegations were as follows:
60 On 12 May 2011 Ms Baron affirmed an affidavit which annexed, among other things, transcripts of the text messages and voice messages of Mr Walsh.
61 It appears from a letter to Mr Walsh dated 16 May 2011 from Ms Baron's solicitors, Hartrey Legal, that Mr Walsh had sought to resolve the matter by mutual undertakings not to communicate or attempt to communicate by whatever means to the other, except through a legal practitioner, enter or remain on premises where the other party lived or worked or approach within 100 m of the same, approach within 50 m of the other party or commit an act of abuse as defined by the Act or cause or attempt to cause damage to the property of the other for a period of 12 months The undertaking sought an order that Ms Baron pay Mr Walsh's costs of $3,500 and that her application be dismissed. Ms Baron rejected that offer by letter from her solicitors dated 16 May 2011 (exhibit 33). Despite Mr Walsh's offer of mutual undertakings, it is not apparent that there was any further attempt made to reach a mutually acceptable resolution of this dispute.
62 On 18 May 2011 Mr Walsh swore another affidavit, again setting out his opposition to the application of Ms Baron.
63 On 19 May 2011 Mr Walsh made an application to strike out the application for non-compliance with the order made on 20 April 2011 by failing to provide transcripts of telephone conversations and text messages within 14 days. In his supporting affidavit Mr Walsh said:
64 On 19 May 2011 Mr Walsh made a further application to cancel the interim order on the basis that the applicant had breached the order by calling him on 29 April 2011 at 6.40 am and on other occasions of which he had provided details. He alleged that the applicant had committed perjury, presumably by stating in her supporting affidavit for the original application that Mr Walsh was an ex-Victorian Police officer and had bipolar disorder.
65 Mr Walsh contends that a final order should not have been made because the relevant acts of abuse were merely the offensive text messages sent or left between 19 and 22 January 2011 and the voicemail messages left on 20 and 24 January 2011 which were not ongoing and did not involve any acts of physical violence.
66 The learned magistrate was not restricted to a consideration of the acts of abuse upon which Ms Baron originally relied in her application for an interim VRO for two reasons: first, whilst the basis for the original application for an interim VRO was the text messages received by Ms Baron on 19 and 20 January 2011, the particulars lodged by Ms Baron on 12 May 2012 included text messages between 19 January and 9 February 2011, voice messages left on her work phone on 20 and 24 January, Mr Walsh's complaints to AHPRA made in January 2011 and his notification to her of his first complaint marked 'Just the beginning', damage to her car on 16 February 2011 and the receipt by her on 9 April 2011 of a copy of a newspaper article about fire damage to her home on which a dictionary definition of 'karma' had been printed; and second, as I have noted, by s 12(1) of the Act the magistrate was entitled to consider other relevant conduct by Mr Walsh.
67 To the extent, however, that the text messages formed the basis of the application, they constituted a factual background against which other conduct of Mr Walsh obviously came to be judged. They merit careful consideration.
68 Exhibit E to Mr Walsh's affidavit of 14 March 2011 is a table of transcripts of text messages sent by Ms Baron to him between 21 November 2010 and 17 January 2011. The accuracy of the transcripts is not disputed. It would be an understatement to describe them as affectionate. They reveal a passionate sexual relationship and give no hint of an impending breakup.
69 The text messages complained of, which followed Ms Baron's telephone conversation with Mr Walsh on the afternoon of 19 January 2011 in which she ended the relationship, were transcribed and annexed to an affidavit of Ms Baron affirmed on 11 May 2011 (exhibit 1).
70 Mr Walsh's first text was sent at 5.01 pm that day, shortly after Ms Baron's phone call. It can only be described as an abusive rant. In part it read 'c how u go with your reputation plastered all over town'. Mr Walsh called Ms Baron a number of obscene names.
Threats again but i 2 have footage of u the date the time & who sent it ... go ahead, c how your family takes it! Plus a restraining order as u clearly cannot b trusted ... as i knew all along.
72 This message indicated that Ms Baron contemplated obtaining a restraining order from the outset. Mr Walsh sent further texts at 5.12 pm and 5.43 pm:
Truth hurts does it consider it done I researched into your past makes disgusting reading glad u didn't meet my kids they deserve better fact is after u dumped your kids didn't feel I could trust u wanted to but really u are too superficial; and a shallow self important cunt.
I wasted 200 dollars on your fucking birthday only to get used not to mention all the petrol money u owe me for pointless travel picking up your rubbish talk as bout trust to led me to believe we were ok so u should return my money I didn't call u today as I knew it was over u should get some one more competent to do your job clearly you are not up to it blaming me for your incompetence.
73 These show him to be upset. In part they are somewhat insulting, but could not reasonably be described as offensive. At 6.43 pm he sent a further text:
no response not unexpected u horrible excuse for a person u will regret crossing me either send back what u owe me and answer me to confirm u are or i will call in at Murdoch to collect in full u cunt.
74 Then again at 7.02 pm, after receiving no response from Ms Baron, Mr Walsh texted:
u look like a fucken comic book should be in a freak show how much fat did u cut off scars from asshole to breakfast times still u have been giving it away for 37+ years guess u r just worn out.
last message ever hope your final days are as horrible as u really r a lowlife piece of scum.
apologies for going off hate being used bipolar makes it harder to remain calm when u get dumped on the phone i meant what i said want my money back yor pics are gone other than nothing left to say just devastated.
77 Still there was no response from Ms Baron. Further texts were sent at 8.55 pm, 9.17 pm, 11.28 pm and 11.54 pm. The last two messages were apologetic. For example, at 11.28 pm part of Mr Walsh's message read:
why didnt we talk i tried to find out what was wrong u tell me work then out of the blue its my fault i feel total loss u know how much i cared u said u loved me now u say u never did so u lied? that's ok is it? i guess that its over my anger sorted that said things i regret some i dont there are faults on both sides both shit pasts but i overlook yor shortcomings because i see the real u just wish u could ha.
78 Similarly, in the 11.54 pm message Mr Walsh wrote:
have done the same 4 me u were unfair to do this on the phone i never intended to do anything re photos just lashing out hurting badly i genuinely thought we had something special got papers for u to see wanted u to meet people i know proud of u we were meant to avoid using these fucken phones and talk face 2 face now all 2 late i wish u were erased the old texts i sent when i was provoked by his ph crap u being in the medical profession should understand when my world is u of course i get really upset and devastated i want 2 take back the things i said that were so hurtful i hate myself 4 losing control would do anything 2 get u back still love u pointless as it is bipolar is no fun and tried to not let it get in the way or use it as an excuse u make my day just hearing yor voice lifts me no end i hope u felt the same.
79 A few minutes later, at 13 minutes past midnight on 20 January 2011, Mr Walsh texted:
u wanted respect adoration and love and understanding and u had that with me maybe i didnt show it well enough i dont know would i have married u in a heartbeat do u know how hard it is socialise for me but 4 u i tried preferred to be with u spent copious amounts of time last week 3 nights movies restaurant really tried to please u i just dont understand.
think im having a panic attack cant breathe properly cant believe all this has happened now woken me up cant seem to calm down.
81 Later that morning Mr Walsh sent three texts at 8.54 am, 9.16 am and 9.40 am asking Ms Baron to answer him, saying that he needed to talk and apologising for what he had said. Ms Baron did not reply. At 10.48 am Mr Walsh texted:
stolen goods from the hospital have reported u as well 2 can play yor game.
taken a misconduct restraining order against u reporting u for theft illegal supply of drugs without a script to all the relevant boards ahpqa [sic] etc u stop and will request to stop calling by u to me u wont hear from me again.
83 Mr Walsh then sent a picture of a restraining order application in his handwriting. That evening at 8.41 pm he sent a further text in which he said, in part, 'want to call a truce?'.
84 That day Mr Walsh sent a letter in writing to Ms Baron (exhibit 2) apologising for his texts and for deceiving her. The letter runs into five pages. He wrote, inter alia, that Ms Baron's call (19 January 2011) had come out of the blue and that he had struck back with words that he knew would hurt, that he wanted her to give him another chance, that he was very upset and that he had no intention of hurting her. In relation to the conduct for which he apologised he said:
My outbursts are fuelled by you sometimes as you know how to push my buttons and then act shocked. I would ask that you at least respond to my questions and comments.
85 With respect to Ms Baron's stated intention to obtain a restraining order, he wrote:
I will not stand and let you ruin my reputation or somehow twist things around by going to the police and then to attempt to obtain a restraining order. I will fight fire with fire that you can bank on (sic), although it does not sit well with me fighting someone I love. You too have made threats which I have kept on hand. Remember if that's the path you want to go down so be it. I can see no point in destroying each other for the hell of it.
86 After stating that he would not stalk her or bombard her with texts or calls again, he wrote:
I hate myself for the stupidity of it all and am embarrassed and ashamed at my reaction and behaviour last 24 hours.
87 Early on 21 January 2011, the day on which the interim VRO was obtained, Mr Walsh left a voicemail message at 9.13 am asking if Ms Baron had got his letter and saying that he loved her. At 9.15 am he sent a text, again asking if she received his letter and saying that he loved her. At 11.52 am, after receiving no response, he texted:
can u tell me 1 or the other am i wiped forever yes or no if i am sadly i will go away i know we can never be friends 2 much 2 bear i suppose better than nothing tho hate texting but u wont answer me.
88 It appears that Ms Baron did not respond to any of Mr Walsh's texts.
89 None of the remaining texts of which there is a transcript can reasonably be regarded as offensive, even though some of them show Mr Walsh's frustration at Ms Baron's refusal to respond or to agree to talk with him.
90 The texting eventually petered out. By way of illustration, on the evening of 19 January 2011, in the aftermath of Ms Baron calling him to terminate their relationship, Mr Walsh texted on 12 occasions. The following day, 20 January 2011, he sent eight texts. On 21 January 2011 he sent six texts. On 22 January 2011 he sent six texts. On 23 January 2011 he sent one text. On 24 January 2011 he sent one text. On 25 and 26 January he sent none. On 28 January 2011 he sent one text. On 29 and 30 January he sent none. On 31 January 2011 he sent one text. On 1 February 2011 he sent four texts, the first requesting that Ms Baron withdraw the interim VRO. There were no texts sent on 2 February 2011. On 3 February 2011 Mr Walsh sent two texts, on 8 February 2011 one text and on 9 February 2011 one text.
91 On my reading of the transcripts of text messages received from Mr Walsh by Ms Baron the only ones that could reasonably be regarded as offensive so as to conceivably constitute 'acts of family and domestic violence', and thus 'acts of abuse', are four texts sent on 19 January 2011 at 5.01 pm, 6.43 pm, 7.02 pm and 7.05 pm. Her Honour found that these texts were intimidating: [39]. Mr Walsh concedes they were offensive.
92 The subsequent texts, in my opinion, cannot be so categorised. They mainly consisted of expressions of love and regret, requests for an opportunity to talk, apologies for the initial text messages and requests not to pursue a restraining order and, when Mr Walsh was aware that one had been obtained, to withdraw it. Her Honour found implicitly at [40] that the text on 20 January 2011 at 2.24 pm was intimidating. In my respectful opinion, her Honour erred in doing so, for reasons I will set out below.
93 On 20 January 2011 he told Ms Baron that he had reported her for stealing goods from the hospital at which she worked and that he had taken out a misconduct restraining order against her. Again, her Honour found implicitly that this act was intimidating. On 24 January Ms Baron received a copy of Mr Walsh's first complaint to AHPRA, which was also found to be intimidating behaviour: [40].
about to pick up a copy of the interim order wish to know if u intend on withdrawing before i do this if not i will issue a summons for the recovery of monies that u owe me + all costs i will also file for a dismissal of the order on the grounds of vexatious litigation with malice aforethought u will have to attend court on several accounts i dont need the hassle call it a trade off u have 1 hour to respond to my reasonable request.
95 As a matter of fact the text consisted of statements of intention aimed at persuading Ms Baron to withdraw the interim VRO. It contained no threat of violence or harm. Her Honour's reasons at [41] and [43] indicate that she found this message to be intimidating, a conclusion with which I also respectfully disagree.
96 Transcripts of voice messages left on her work phone on Thursday, 20 January 2011, the day after the break-up, are annexed to Ms Baron's affidavit of 11 May 2011 (exhibit 3). The first message, left at some time in the morning, was:
Alison, it's Bill. I'm not ringing to hassle you, I just wanted five minutes to talk to you about everything yesterday.
I need to sort out, I know it's over and you won't forgive me for stuff I've said and done, for that I'm really, really sorry.
I hurt so much. I lashed out, couldn't stop hurting. I've been really sick overnight. Couldn't breathe properly, you don't care anyway.
I wanted to find out why, what was it I did wrong?
In the last week I've done everything I could possibly do, spent every bit of time with you, I just don't understand. It all came out of the blue.
I've thrown up that many times I'm absolutely devastated. I don't understand why you did it, just for no reason, I don't understand.
Please ring me, that's all I'm asking, I'm not going to hassle you, again.
I just need to talk to you. Thank you.
97 There was no finding that this message was an act of abuse. The second message, left at 2.14 pm, was:
Just to let you know I've taken out a VRO in the city, so two can play that game.
You call me and tell me that you will call a truce and leave me alone and I'll do the same. Otherwise, it's all out war and I'll keep going to get even with you.
I'm not going to hurt you or threaten you, I'm not going to come to the house, I'm not interested. I'm not going to contact you.
I'll drop you in it for everything that I think you've done. If you stop, I'll stop. Then I don't want to hear from you again. You're just garbage.
98 This message appears to have been regarded by the learned magistrate as offensive: [19]. There is also a transcript of a voice message left on 24 January 2011 at 9.45 am:
What's wrong, can't speak to me anymore. Well, they haven't served me with the VRO that you took out, and guess what, they won't! [laughter].
Because you're not clever enough for me, but you're going to get yours shortly, and enjoy your mail today, you are unbelievably horrible slag that's all you are, garbage, absolute piece of garbage, but all right, you'll get yours one day - not violence, nothing from me just karma, as a way of evening things up.
You are just an animal, filthy stinking animal and people will see through you one day.
99 This message also was found by her Honour to have been offensive: [19].
100 The evidence of the text messages read as a whole shows that Mr Walsh apologised promptly for the offensive texts sent on 19 January, not only in subsequent text messages, but also in his five-page letter to Ms Baron of 20 January 2011 (exhibit 2). It is also apparent that all messages ceased on 9 February 2011, one week before Mr Walsh was served with the interim VRO.
101 None of the messages contain any threat of harm or damage. Rather, they indicate that Mr Walsh's reaction to being told by Ms Baron of her intention to obtain a VRO was to attempt to deter her from doing so by purporting to obtain a similar order against her, reporting her to AHPRA and bringing a claim against her for a debt. Initially, immediately following the break-up on 19 January 2011, he had responded angrily and in a hurtful manner by sending offensive texts. He apologised for that conduct by letter the next day. It was not repeated. His subsequent conduct can be clearly seen, on the evidence, to be focussed on the merits of Ms Baron's application for a VRO. By promising to play tit for tat he tried to deter Ms Baron from obtaining an order to which he objected; later, he tried to persuade her to withdraw it. His actions by this stage were retaliatory, rather than offensive or intimidating.
102 At the hearing of the application for an interim VRO before his Honour Magistrate Jones on 21 January 2011 Ms Baron complained that after ceasing her relationship with Mr Walsh she was 'bombarded' with ongoing texts in which he represented that he was going to disclose photographs of her engaging in sexual activity with him 'to my workplace and across the internet'. She also said that Mr Walsh had threatened to 'deal with me in spades' which she interpreted to mean doing harm to her person (ts 2). She said she came to that conclusion because of similar texts she had received since 19 December which indicated 'his anger, his volatileness [sic]'. Asked by his Honour what happened, Ms Baron said:
It's just been ongoing. Every time I try and sit with him, he belittles me. ... he's using language, calling me a cunt, slag, how he wishes horrible things on my person, that my final days he hopes I suffer just as much as he has, and ...
103 At that point his Honour interrupted Ms Baron to say 'that is all I was asking and you have given me sufficient information'. According to the transcript (ts 3), his Honour did not read the text messages, but on the basis of the applicant's evidence of their nature found that Ms Baron and Mr Walsh had been in a family and domestic relationship and that 'the abuse, offensive language and calling you those names constitute acts of personal violence'. (I assume that his Honour meant to say 'acts of family and domestic violence'.) His Honour said he was satisfied that a restraining order should be granted.
104 It is clear from the transcript that his Honour was not told by Ms Baron that Mr Walsh had apologised for his behaviour. His Honour was not given the opportunity to put the offensive texts in the context of all of the text messages Mr Walsh had sent over the period of 40 hours or so from 5.00 pm on 19 January to 9.30 am on 21 January when the application was heard.
105 My reading of the text messages as they have been transcribed by Ms Baron leads me to the view that his Honour could not reasonably have concluded from those texts that Mr Walsh had behaved 'in an ongoing manner that was intimidating, offensive or emotionally abusive' (emphasis added) towards Ms Baron at the time of the making of the interim VRO, or, if it were reasonable to so conclude, that one of the necessary pre-conditions for a VRO had been established, that is, either the respondent was likely again to commit such an act, or the applicant reasonably feared that the respondent would commit an act of abuse against her.
106 I do not take the concession by counsel for Mr Walsh that some of the texts arguably constituted acts of abuse capable of supporting an interim VRO to mean that the conduct of Mr Walsh seen as a whole justified the order. Counsel properly conceded that some of the texts were, as I have found, offensive, and therefore capable of being held to be acts of family and domestic violence for the purposes of s 6(1) in respect of which an interim VRO could have been made. It was not conceded, however, that Mr Walsh thereafter behaved in an ongoing manner that was intimidating, offensive or emotionally abusive. Her Honour's finding to that effect at [38] is challenged.
107 Whilst I am satisfied that her Honour erred in fact in finding that the text messages and voice messages were intimidating and ongoing, ground 1 in its terms must fail for the reason that, as a matter of law, the acts of abuse on which the final order was based were not limited to the text messages which grounded the interim order or the voice messages. I will consider the sufficiency of the other conduct found by her Honour to constitute acts of family and domestic violence in dealing with the remaining grounds of appeal.
108 Mr Walsh contends that in making the final VRO the learned magistrate erred in concluding that he was likely again to commit such acts of abuse.
109 Although her Honour set out at [43] the specific acts which constituted her reasons for concluding that Mr Walsh unless restrained was likely to commit such acts again, for the purposes of dealing with this ground it is necessary to have regard to all of the acts which her Honour found were acts of abuse for the purposes of grounding the final VRO, all or some of which, presumably, her Honour considered Mr Walsh was likely to commit again.
110 As I have concluded in relation to ground 1, the text messages sent by Mr Walsh on 19 and 20 January 2011, read as a whole and with his letter of apology, do not, as a matter of fact and law, disclose ongoing abuse sufficient to ground a VRO.
111 I have not overlooked her Honour's observations that Mr Walsh, although apologetic for the offensive texts, had committed a further act of abuse by his voice message of 24 January 2011, that he had insisted, when giving evidence, that they were not without foundation, and that there were telephone calls made from numbers registered to Mr Walsh to Ms Baron's work extension numbers after the interim VRO was served. The implication is that his contrition was false. I will deal with each observation in turn.
112 Patently, the two voice messages left on Ms Baron's work phone on 20 January 2011 were not offensive. In the third message left on 24 January (after Mr Walsh became aware that Ms Baron had obtained the interim VRO) Mr Walsh gibes Ms Baron about not having been served with the order, calls her insulting names and suggests, by reference to the notion of karma, that she will eventually get what (he thinks) she deserves. This voice message was preceded by his unanswered text at 4.20 pm the day before:
Still not coping with any of this just wish you would talk with me I don't want to drag things on just need to know why and if you have any feelings at all otherwise how can I get closure.
113 To the extent that it contains insulting words, taunts Ms Baron with non-service and predicts that something bad will happen to her, it may be viewed as offensive, but in the context of the preceding text and voice messages does not demonstrate ongoing offensive behaviour so as to constitute an act of family and domestic violence. By current standards it might qualify as unparliamentary, perhaps.
114 Mr Walsh's evidence that the offensive aspects of his texts on 19 January were not without foundation was given in the context of his explanation that he was hurt and angry when he sent them. He said (ts 66, 21 November 2011) 'they were based on true subjects and things that had happened', but went on (ts 67) to say that they were 'baseless' and that 'I should not have said them because I knew they would hurt her'. His evidence does not support an inference that he lacked remorse for his conduct.
115 As to the phone calls made from either Mr Walsh's mobile phone or work phone to Ms Baron after service of the VRO, the documentary evidence (exhibits 14 and 21) did not establish that Ms Baron received the calls or indeed anything else about the calls. Her Honour made no express finding as to the purpose or nature of the calls. They were not acts of domestic and family violence. There was no finding that the making of the calls breached the interim VRO. The evidence did not support an adverse inference against Mr Walsh in relation to remorse or the likelihood that he would again commit acts of abuse.
116 Turning to the other purported acts of family and domestic violence, they can be seen to fall into three categories.
117 The first includes Mr Walsh reporting Ms Baron to AHPRA for misconduct, his bringing a minor claim against her for a $225 debt, his use of interlocutory procedures in the restraining order application, and his complaints of perjury and defamation against her. These acts, irrespective of their merits, fall into the category of lawful action in which a citizen has a right to engage. They invoke processes by which claims and complaints are capable of being determined in an orderly manner on their merits.
118 The minor claim was dismissed after a hearing before her Honour Magistrate Lane on 2 February 2012 on the basis that her Honour was not satisfied to the required standard that a contract was proved (exhibit 35, p 70). One complaint to AHPRA of misconduct was determined on the basis of insufficient evidence (exhibit 10). The outcomes of the interlocutory applications are a matter of record. They were not analysed with any particularity by the learned magistrate.
119 The acts in the first group were found by the learned magistrate, expressly or impliedly, to be intimidatory. With respect, and as I have already indicated, I am unable to agree with the learned magistrate's conclusions to that effect. Recourse to legally available procedures cannot be so regarded.
120 Viewed objectively, these particular actions of Mr Walsh were petty and vindictive, but such criticism can be made of the conduct of many litigants. As misguided, disproportionate and unreasonable as they may appear to be, they were lawful means by which Mr Walsh was entitled to express his grievances against Ms Baron. Courts and regulatory agencies deal routinely with doubtful claims. Being on the receiving end of what one may perceive as an unmerited complaint or claim may be unpleasant, but it is a necessary concomitant of the rule of law. Such processes are controlled by courts and regulators according to legislation. It is not open, therefore, to class such actions as acts of abuse. Similarly, it cannot be an act of abuse for a party opposing a VRO application to contest it at the interlocutory stage by legally available means.
121 That Mr Walsh did not succeed in his minor claim and that AHPRA found insufficient evidence to support his complaints does not make his actions in that respect intimidating. Nor does his stated intention to pursue by legal means his complaint of perjury constitute evidence of intimidating behaviour.
122 The learned magistrate erred in coming to the conclusion, based on her assessment of the merits of Mr Walsh's claims, which were not before her Honour for adjudication, that they were intimidating and therefore constituted acts of abuse. I do not accept the submission that it was open to the learned magistrate to come to the conclusion, based on her own view of the merits of those disputes, that they were made to intimidate Ms Baron in the sense of preventing her from, or hindering her in, doing something she was entitled to do. These forms of recourse by Mr Walsh were not, as a matter of law, acts of family and domestic violence. They are not by their nature acts from which Ms Baron can be protected by a restraining order.
123 The second category includes the misrepresentation by Mr Walsh that he had obtained a VRO or misconduct restraining order against Ms Baron, the leaving of a copy of the newspaper article with the 'karma' definition at Ms Baron's residence, attendance at her residence during her absence from it and rearranging pots at the rear of her house, and the theft of her bicycle.
124 The second category of acts is obviously of a different nature, but some analysis is still required in order to test the learned magistrate's finding that they constituted acts of abuse capable of grounding a VRO.
125 Her Honour found that Mr Walsh had pretended to take out a VRO or misconduct restraining order. This finding was based on the second voice message on 20 January 2011 in which he said 'Just to let you know I've taken out a VRO in the city, so two can play at that game'. That was at 2.14 pm. At 2.24 pm Mr Walsh sent a text stating that he had taken out a misconduct restraining order. He attached a picture of a restraining order application in his handwriting. Her Honour found that no such application had been made, nor any order obtained. Her Honour found that the text message was a form of intimidation. The evidence of Ms Baron was not to that effect (ts 24, 26, 36 - 37, 20 June 2011). Mr Walsh pretending to have obtained a VRO was no more intimidating than Ms Baron actually getting one. It was an error to treat it as an act of abuse.
126 In relation to the findings that after Ms Baron's home was damaged by fire in April 2001, Mr Walsh attended at property left a photocopied news article about the fire with the definition of karma stuck to it, went onto her premises through a closed gate and moved things about in the yard, the evidence of Ms Baron was that after the fire on Tuesday, 5 April 2011 she stayed at a unit nearby.
127 The following Friday Ms Baron inspected her property. She said she had closed the gate even though the back fence had been destroyed. The gate had padlocks. Her evidence was as follows:
When you say padlocked did you need a key to undo those? - They were insufficient adequate padlocks on the gate. When I bought the property this one little padlock was on it that you could just flick up and have entrance into the property. I didn't have a key for that padlock so I had just threaded another padlock through it to keep it like hard to access. It was a tricky lock and I never made an attempt to get another big lock. It just was the way I worked it.
128 She said that the padlock did not prevent the gate from being opened (ts 21, 31 October 2011). She was able to access her property through her daughter's property which was next door. The next morning she went back to the house and noticed that the gate was open. She said:
Saw the gate had been opened and left on the top of my wheelie bin was the padlock that wasn't locked. ... I don't know how, but the gate was open and the padlock was left on the wheelie bin.
129 Ms Baron went on to say that only she, her daughter and her partner and Mr Walsh knew how to work the padlocks to get through the gate. She said that she felt 'incredibly strung out and stressed and ... knew that he had entered into my property'. She saw that a chair had been moved from a table and placed against the brick wall between her property and her daughter's. Previously, she had seen it leaning up against the outdoor table with other chairs. She saw a boot mark by the chair. She also noticed that ornamental pots that were sitting on the concrete partition between her property and her daughter's had been moved. It was on that occasion that she found the envelope containing the photocopied newspaper article in her letterbox.
130 This evidence afforded an inference by her Honour that Mr Walsh, when he delivered the letter, went onto the plaintiff's property and moved the chair and the pots. Mr Walsh denied that he did any of these things and, accordingly, no explanation was given for them.
131 Her Honour found that the copied newspaper article was left by Mr Walsh. Her Honour found at [29] that even if Mr Walsh did not cause the fire, he used it as a means to intimidate Ms Baron by leaving the newspaper article in her letterbox. Ms Baron reported her discovery to the Fremantle Police. She connected it to Mr Walsh by reason of the reference to 'karma', a word he had used before.
132 The message implicit in the delivery of the photocopied article with the definition of 'karma' was that Ms Baron somehow deserved her misfortune by reason of her treatment of Mr Walsh. The message did not imply any threat; nor did it imply that Mr Walsh had caused the damage. The word 'karma' used by Mr Walsh bore the meaning which he gave it in the voice message that he had left on 24 January 2011. In my view her Honour erred in finding that his conduct was intimidating. At worst it expressed spite towards Ms Baron.
133 It is submitted by Mr Walsh (for the purposes of ground 4 of the appeal) that the learned magistrate erred in allowing any evidence to be led in relation to these matters. The appellant's submission is that the evidence was prejudicial. Indeed it was, but it was relevant to show that despite the imposition of the interim VRO Mr Walsh visited the home of Ms Baron after the fire, leaving a spiteful message in her letterbox and venturing on to her property through a gate which he was familiar with, albeit at a time when Ms Baron was not living there.
134 In her reasons her Honour gave limited weight to these matters. At [32] her Honour stated that, even if she had been unable to infer that Mr Walsh had delivered the photocopied article and gone on to the property of Ms Baron, she would still have made a final order. Accordingly, while her Honour's findings in this regard supported the result, they were not essential to it. Her Honour did not refer to them in her reasons for concluding that Mr Walsh was likely again to commit acts of abuse.
135 Ms Baron gave evidence of a further act which she attributed to Mr Walsh, being the theft of her bicycle. Her evidence was that the bicycle was stolen from her home some two months after the fire during the last week of June 2011 or the first week of July 2011 (ts 39, 21 November 2011). Mr Walsh's unchallenged evidence was that he underwent bowel surgery on 29 June 2011 and was physically incapacitated from that date until the end of August (ts 16 - 17, 21 November 2011; ts 36 - 23, April 2011). In her reasons her Honour said that the bike was stolen in or about early June. This was inconsistent with the evidence of Ms Baron. There was no basis upon which the court could reasonably have found that Mr Walsh stole Ms Baron's bicycle. However, this error on the part of her Honour is not material given her Honour's statement at [32] that, regardless of whether Mr Walsh stole the bike, she would still have made a final order.
136 It follows from my conclusions and observations that the acts in the second category to which I have referred were not acts of family and domestic violence capable of grounding a VRO.
137 In a third category lies what her Honour described as the taunting of Ms Baron by Mr Walsh with the fact that the police were not able to serve the interim VRO on him. Her Honour found that Mr Walsh avoided service of the interim VRO and taunted Ms Baron with this fact. The evidence is principally the transcript of the voice message left on 24 January 2011 in which Mr Walsh said 'Well, they haven't served me with the VRO that you took out, and guess what - they won't!'.
138 Exhibit 30 is the police running sheet with respect to the interim VRO. The following chronology appears from the police record:
139 Her Honour did not find that Mr Walsh's avoidance of service or his taunting of Ms Baron in that respect constituted acts of family and domestic violence, but referred to those facts in her reasons for coming to the conclusion that Mr Walsh was likely again to commit acts of abuse: [43]. Whilst it does not reflect well on Mr Walsh that he told the police he would collect the interim VRO and did not do so, he was not required by law to collect it. Moreover, the fact that he was not served until 16 February 2011 is explained, to some extent at least, by a mistake as to the address of his home in Warwick and inadequate police resources. Notably, the evidence shows that Mr Walsh did not call or text Ms Baron after 9 February 2011, a week before service.
140 As I have noted, by s 12(1)(j) a court may have regard to any matter it considers relevant when deciding whether to make a restraining order. In this case her Honour did not state whether she considered the avoidance of service was relevant to the likelihood of Mr Walsh again committing an act of abuse or to the appropriateness of making an order. In my opinion Mr Walsh's conduct in relation to service of the order does not have probative value in respect of either issue. The learned magistrate misdirected herself by taking it into account.
141 For the reasons above I have reached the conclusion that the acts alleged by Ms Baron as the grounds for her application did not constitute acts of family and domestic violence as defined by s 6(1). Accordingly, the requirement of s 11A(a) was not met. If I were not satisfied that the learned magistrate erred in this respect, I would hold nevertheless that the learned magistrate erred in concluding as a matter of fact that Mr Walsh was likely to commit such acts again.
142 Her Honour stated in her reasons at [8] that Mr Walsh's disdain for Ms Baron was 'palpable', based on his repeated descriptions of Ms Baron's evidence as 'puerile crap'. It would be very unusual if litigation of this kind did not engender a degree of disdain by one party towards the other. In any event Mr Walsh admitted that he was hurt and angered by the way in which Ms Baron had seen fit to end their relationship. He also indicated very clearly his dissatisfaction with the proceedings which were prolonged and no doubt expensive, and through all of which Mr Walsh was being treated for cancer. His proposal before trial to resolve the proceedings on the basis of mutual undertakings was rebuffed. In this context, disdain was given undue weight.
143 It was also said that Mr Walsh lacked appreciation of the impact of his 'extremely offensive behaviour' on Ms Baron. That conclusion overlooks the letter of apology sent to Ms Baron on 20 January 2011. Mr Walsh took issue with most of Ms Baron's allegations and was aggrieved by the making of the interim VRO. Her Honour preferred the evidence of Ms Baron to that of Mr Walsh and made findings of fact accordingly. In those circumstances an apparent lack of empathy on Mr Walsh's part carries little weight. The other reasons given by her Honour for predicting that it was likely that Mr Walsh would commit further acts of abuse I have addressed elsewhere.
144 In summary, I would uphold ground 2 on the basis that the learned magistrate erred in fact and law in concluding that Mr Walsh had committed acts of abuse by behaving towards Ms Baron in an ongoing manner that was offensive or intimidating, and in concluding that he was likely, if not restrained, to commit such acts again.
145 By ground 3 the appellant contends that the learned magistrate erred by imposing a final VRO for a term of five years. As I have come to the conclusion that the appeal should be allowed on the substantive grounds, I will deal with this ground provisionally.
146 Her Honour noted at [48] that the default period for a VRO is two years. Counsel for Ms Baron sought a VRO for an indefinite period. Her Honour held:
Although I have concerns about Mr Walsh's behaviour, a permanent order must be reserved for the most serious cases. Here there has been a disproportionate response to the breakdown of a six-month relationship. Mr Walsh has been unable to let go of his extremely negative feelings towards Ms Baron. I consider the appropriate term to be five years from the date of these reasons.
Subject to Part 5, a final violent restraining order remains in force for -
(a) in the case of an order made at a final order hearing -
from the date on which the final order came into force.
(Part 5 deals with variation or cancellation of a restraining order.)
148 There are no authorities of which I am aware which would assist the resolution of this issue. Applying basic principles, error needs to be shown in the exercise of her Honour's discretion. Although the discretion conferred by s 16(5) is unfettered, the law does not operate arbitrarily. Where the statute specifies a default period there would need to be reasons shown why a higher period is warranted.
149 In this case her Honour has identified some, but not all, of the salient features of the dispute, noting that the parties were in a relationship for six months and that Mr Walsh was unable to let go of his extremely negative feelings towards Ms Baron. Her Honour did not take into account that there were no threats of violence made after the break-up of the relationship, that Mr Walsh had apologised for the conduct for which the interim VRO was obtained, that the litigation of the application had had the effect of perpetuating the animosity of the parties towards each other, and that, by the time of the making of the final order, some 15 months had passed without any prosecution of a breach of the interim order.
150 These are relevant considerations. In failing to take them into account her Honour has erred in the exercise of her discretion. In my view the evidence does not disclose any reasons why a term longer than the default period of two years should have been ordered.
151 In my reasons pertaining to ground 2 I have observed that the evidence of three of the matters set out in ground 4, namely, a fire at her property, the theft of her bicycle and suspected visits by Mr Walsh to her property did not result in findings that were material to her Honour's decision to make a final order: see [32], [43] and [48].
152 With respect to the chemical damage to Ms Baron's car on 16 February 2011, her Honour did not find that it was done by Mr Walsh or someone on his behalf, although she suspected that it had. Her Honour's suspicion was irrelevant if her Honour was not satisfied on the balance of probabilities that the damage was caused by Mr Walsh. Her Honour's observation does not otherwise feature in her reasons for making the final order.
153 In my reasons pertaining to ground 2 I have dealt with Mr Walsh's contention that her Honour erred in finding that his commencement of a minor claim against Ms Baron, reporting her to AHPRA and his initiating various interlocutory proceedings in respect of the VRO application were ongoing acts of abuse. These acts were not acts of family and domestic violence.
154 By reason of my conclusions with respect to ground 2, this ground falls away.
155 My reasons with respect to ground 2 deal with Mr Walsh's contention that the learned magistrate erred in taking into account his intention to pursue defamation proceedings in deciding whether he was likely again to commit acts of abuse against Ms Baron. In my view it is an irrelevant consideration.
156 Mr Walsh's immediate response to Ms Baron's termination of their six-month relationship was undoubtedly disproportionate, offensive and vindictive. The worst of his conduct, being the sending of the offensive texts, was short-lived and regretted by Mr Walsh. It was very distressing to Ms Baron. I have been taken to transcript references to her evidence of her emotional reaction to various things done by Mr Walsh. This evidence, of course, is self-serving by nature, but unavoidably so. It was given great weight by the learned magistrate. Ms Baron may have expected, upon her notifying Mr Walsh by telephone that their relationship was over, that he would simply acquiesce without fuss. But in the context of a relationship as passionate as Ms Baron's pre-19 January 2011 texts and other evidence described it, such an expectation would have been extremely unrealistic.
157 The purpose of restraining orders is not to protect people from the emotional fallout of a failed relationship, which may be bitter, spiteful and unpleasant, but to protect them from violence in the form of acts of abuse which, in such a case as this, include behaviour that is progressively and continuously, not occasionally, intimidating, offensive or emotionally abusive. Mr Walsh's proven behaviour does not satisfy that requirement.
158 It has not been contended on behalf of Ms Baron that a final VRO should have been made on the basis of s 11A(b).
159 By reason of the errors of fact and law identified in these reasons I would allow the appeal, set aside the final VRO, set aside the order for costs, and dismiss the application for a final VRO.
Allesch
Maunz
(2000) 203 CLR 172
(1938) 60 CLR 336
(1998) 197 CLR 172
(2000) 203 CLR 194
(2003) 214 CLR 118
(1936) 55 CLR 499