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Background

4. The appellant and HW (the complainant) were intimate partners for 14 years and had three children together. During 2023, the relationship between the appellant and the complainant deteriorated to the point of a separation. The complainant left the family home on 15 February 2024 following the breakdown of the relationship. The children, who were aged between eight and 12 years old at this time, remained in that home with the appellant.

5. On 20 March 2024, a final FVO was made against the appellant by a deputy registrar in the Magistrates Court. This FVO prohibited the appellant from engaging in behaviour that amounted to family violence towards the complainant, being the “protected person” under the FVO, and operated for a period of 12 months from 19 March 2024. The final FVO was made by consent and without any admissions by the appellant filing his endorsement and relevantly provided that: Under section 33A of the Family Violence Act 2016, the interim order made by Deputy Registrar Munk dated 18 October 2023 regarding the behaviour of [KC] (‘the respondent’) in relation to [HW] (‘the protected person(s)’), is a final order for the period of 12 months from 19 March 2024 in the following terms: 1. The respondent is prohibited from: (a) Engaging in behaviour that constitutes family violence towards the protected person(s).

6. The appellant had also obtained an FVO against the complainant that named the appellant and, notably, their children as the “protected persons” under the FVO.

7. There were no Family Court parenting orders at this time and so the arrangements for the complainant to have any form of access to the children required discussion and agreement with the appellant. The conduct of both the appellant and the complainant was to a greater or lesser extent governed by the terms of each FVO.

8. The appellant’s conduct towards the complainant during the making of access arrangements between April and June 2024 is the genesis of the charge of breaching the FVO that is before the court. As I will discuss in further detail, the appellant’s messages to the complainant were alleged to have constituted family violence.

Legislative Context

9. The appellant was convicted of contravening s 43(2) of the Family Violence Act 2016. Section 43(1)-(2) of the Family Violence Act 2016 relevantly provides: 43 Offence—contravention of family violence order (1) This section applies to a person against whom a family violence order is made if the person— (a) was present when the family violence order was made; or (b) has been personally served in accordance with this Act with a copy of the family violence order. (2) The person commits an offence if the person engages in conduct that contravenes the family violence order (including a condition of the order). Maximum penalty: 500 penalty units, imprisonment for 5 years or both. Note In deciding the sentence to be imposed on a person under this section, the Magistrates Court must consider the matters under the Crimes (Sentencing) Act 2005, s 33 (Sentencing—relevant considerations).

10. As the FVO condition that the appellant was alleged to have breached focused specifically on conduct that constitutes family violence, the definition of family violence is also relevant to understanding this matter.

11. Section 8(1) of the Family Violence Act 2016 defines family violence as: (a) any of the following behaviour by a person in relation to a family member of the person: i. physical violence or abuse; ii. sexual violence or abuse; iii. emotional or psychological abuse; iv. economic abuse; v. threatening behaviour; vi. coercion or any other behaviour that – A. controls of dominates the family member; and B. causes the family member to feel fear for the safety or wellbeing of the family member or another person; or (b) behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour. Hearing before the learned magistrate

12. At the hearing on 1 July 2025 before the learned magistrate, the prosecution alleged that the appellant sent the complainant abusive, derogatory, coercive and tormenting messages during their communications via text message. The prosecution alleged that these messages amounted to family violence and caused psychological injury to the complainant.

13. There were two factual issues for decision by the learned magistrate, namely: (a) whether the text messages amounted to family violence; and (b) whether the appellant was reckless about whether sending the text messages constituted family violence.

14. The evidence before the learned magistrate comprised of the viva voce evidence of the appellant and the complainant. Several documents were also tendered in evidence: (a) the prosecution aide memoire which contained agreed facts (Ex MFI 1); (b) the final FVO (Ex P1); (c) a selection of a video recording of text messages passing between the appellant and the complainant (00:09 to 2:17) (Ex P2); and (d) an interim FVO which preceded Ex P1 (Ex P3).

15. Following careful consideration of the evidence before the court, the learned magistrate found that the messages sent by the appellant amounted to family violence as defined by the Family Violence Act 2016 as they constituted emotional or psychological abuse. The learned magistrate also found that the appellant was reckless about whether his conduct was family violence and his Honour did not accept the appellant’s suggestion that the appellant did not consider the emotions or reactions of the complainant.

Grounds of appeal

16. In that background, I turn to the appellant’s grounds of appeal. They were articulated in the appellant’s notice of appeal as follows: (a) Denial of procedural fairness – lack of a fair hearing; (b) Failure to follow established procedures; (c) Inadequate reasons for decision; (d) Ineffective assistance of counsel; and (e) Sentencing error – disproportionate sentence.

17. The appellant relied upon very lengthy filed written submissions which he said had largely been generated through AI and without the assistance of a legally trained person. They were dense and convoluted. I have read them in preparation for argument and in the main they were only marginally on point. At the hearing, the appellant confined his appeal to five major grounds and he did not formally pursue the balance of the grounds included in the notice of appeal. The appellant articulated his grounds of appeal in his oral submissions as being: (a) the vague and bare charges; (b) the misapplication of recklessness; (c) the late amendment; (d) the late evidence; (e) the threshold of s 8 of the Family Violence Act 2016 was not met; and (f) evidence was not disclosed.

18. I am mindful that the appellant is self-represented and I am duty bound to ensure that the appellant has not suffered any undue prejudice of omission or commission connected with the grounds of appeal and the appeal proper. I am satisfied that the discussion below canvasses the essential elements of each of the grounds raised by the appellant. The appellant also brought an application to adduce further evidence on appeal. I will turn now to the application to adduce further evidence, before addressing the substantive grounds of appeal. Power to hear the appeal

19. Sections 207-208 and 214(1)-(3) of the Magistrates Court Act 1930 (ACT) provide: 207 Jurisdiction of Supreme Court (1) The appellate jurisdiction of the Supreme Court in relation to decisions of the Magistrates Court under this Act (other than chapter 4 (Civil proceedings)) extends to the hearing and deciding of the following appeals and to no others: (a) appeals to which division 3.10.2 (Appeals in criminal matters) applies; (b) reference appeals under division 3.10.2A (Reference appeals in criminal matters); (c) review appeals under division 3.10.3 (Review appeals in criminal matters). (2) This part does not limit the operation of any other Act that makes provisions in relation to the appellate jurisdiction of the Supreme Court. 208 Appeals to which div 3.10.2 applies (1) Each of the following appeals is an appeal to which this division applies: (a) an appeal by any of the following from a decision of the Magistrates Court under the Crimes Act, section 315A (2) or (3) (Investigation into fitness to plead) or section 315D (7) (Person found temporarily unfit to plead): (i) the person whose fitness to plead was decided; (ii) anyone who appeared at the proceeding in which the decision was made; (iii) anyone else with the leave of the court; (b) an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court, or the Childrens Court, under— (i) part 3.6 (Proceedings for offences punishable summarily); or (ii) part 3.7 (Service and pleading by post for certain offences); or (iii) the Crimes Act— (A) section 374 (Summary disposal of certain cases at prosecutor’s election); or (B) section 375 (Summary disposal of certain cases—Magistrates Court); or (C) section 375AA (Summary disposal of certain cases—Childrens Court); (c) an appeal, by the person against whom the order is made, from an order made under section 113 or section 114, in a proceeding dealt with under— (i) part 3.6; or (ii) the Crimes Act, section 374, section 375 or section 375AA; (d) an appeal from a sentence or penalty by a person convicted of an offence dealt with under any of the following (whether or not the person appeals against the conviction in relation to which the sentence or penalty was imposed): (i) section 90A, part 3.6 or part 3.7; (ii) the Crimes Act, section 374, section 375 or section 375AA; (e) an appeal from an order of the court under any of the following provisions of the Crimes (Sentencing) Act 2005: (i) part 3.2 (Sentences of imprisonment); (ii) part 3.3 (Non-custodial sentences); (iii) part 3.4 (Non-association and place restriction orders); (iv) part 3.5 (Deferred sentence orders); (v) part 3.6 (Combination sentences); (f) an appeal from an order of the court under the Crimes (Sentence Administration) Act 2005, part 6.6 (Good behaviour orders—amendment and discharge); (g) an appeal from an order of the court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision under the Road Transport (General) Act 1999, division 4.2 (Licence suspension, disqualification and related matters), if the order is for a longer period than the minimum. Note Automatic disqualification provision—see the Road Transport (General) Act 1999, s 61A. (2) Subsection (1) does not affect any power that the Supreme Court has, apart from this Act, to grant bail or to vary the conditions of bail.

214 Appeals in cases other than civil cases (1) This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies). (2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact. (3) In an appeal to which this section applies, the Supreme Court must— (a) if it considers it necessary or expedient to do so in the interests of justice— (i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and (ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and (iii) receive the evidence, if tendered, of any witness; and (b) receive evidence with the consent of the parties to the appeal.

20. The applicable principles relating to the operation of these provisions are well settled and may be briefly summarised. It was common ground that the appeal proceeds by way of a rehearing. I am required to review all the evidence led before the learned magistrate and the reasons for judgement, and I must consider the advantage of the learned magistrate in hearing the viva voce evidence at first instance. I note, for completeness, that I have read and had regard to all of the material before the learned magistrate and the transcripts of the Magistrates Court proceedings.

21. If I become aware of an error, it is my task to consider it in the context of the case and determine whether a different result pertains or whether some other order should be made. The error referred to must be a legal, factual or discretionary error and it is for the appellant to demonstrate such error on the question of conviction or sentence.

22. In the following discussion I refer to my level of satisfaction about proof. When doing so and where I indicate I am satisfied of proof of a particular matter, this means I am satisfied of proof beyond reasonable doubt of such matters. Application to adduce further evidence

23. There was an application by the appellant to lead further evidence on the appeal, namely: (a) a FVO obtained by him against the complainant (only the one applicable to him and allegedly breached by him was before the court); and (b) two police reports.

24. The respondent in this matter, represented by the DPP, did not consent to the admission of further evidence and, for the reasons that follow, I refused each of the appellant’s applications.

25. I have power to receive and admit further evidence pursuant to s 214 of the Magistrates Court Act 1930. Section 214(4) of the Magistrates Court Act 1930 relevantly provides that: (4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if— (a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and (b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

26. In respect of s 214(4)(b) of the Magistrates Court Act 1930, no explanation was given by the appellant about why the evidence had not been adduced at the first instance hearing. It was not contended that the evidence could not have been obtained with the exercise of reasonable diligence or that it could not have been obtained at trial with the exercise of reasonable diligence.

The Second FVO

27. The appellant sought to lead the FVO obtained by the appellant against the complainant. The appellant complains about the effect of this FVO not being before the Magistrates Court. He appears to argue that he was prejudiced as a result.

28. I am satisfied that the existence of both FVOs was known by the learned magistrate. A concession was made by the prosecution to the learned magistrate that both FVOs existed and the complainant conceded their existence in examination by the prosecutor. Evidence was led about the content of the FVO which applied to the complainant in favour of the appellant and so there was no evidentiary utility in tendering the other FVO document. If the document was relevant, then in the usual way after it had been the subject of examination in chief or cross-examination, an application could have been made to the learned magistrate for its tender. Neither counsel made such an application. The reasons why are obvious. The viva voce evidence on the document before the court rendered the tender of the document unnecessary. Therefore, the fact of the existence and effect of that document were in evidence before the learned magistrate, and this was not a prosecution for breach of that FVO.

29. In argument, the appellant appeared to contend that there was a further aspect of relevance of the wording of each FVO as it governed the process of child access arrangements. I am unable to place any significant weight upon this contention. This case concerns an FVO against the appellant. The FVO brought against the complainant by the appellant is in prohibitive terms about peoples’ behaviour and is permissive to the extent that the complainant may contact the appellant to make access arrangements. Otherwise, the regulation of access to children of separated parents falls within the exclusive jurisdiction of the Family Court. The result is that the terms of both orders were known and there is no issue of prejudice because of that fact alone. There is no relevance attributable to it outside of the evidence already before the court. As a result, this ground fails. I dismiss this application to lead the FVO as further evidence. It is not relevant to any issue for determination here or below.

The police reports

30. The appellant sought leave to adduce two police reports, namely a police report of 16 May 2024 and a police report of 8 June 2024.

31. The police report of 16 May which the appellant asks to be led before this court was in the possession of the appellant at the time of the hearing before the learned magistrate. A choice was made not to put the document to the complainant and not to cross-examine upon it or them. This was a forensic decision that was made by counsel and correctly so.

32. The report contains a statement of opinion expressed by a police officer about the complainant. It is hearsay in nature and, even if it was received under any exception to the rules against hearsay, it would be given no weight. Furthermore, it is an unsubstantiated opinion of a third party which is irrelevant and equally carries no weight. Nothing said by this police officer could assist the Court in its deliberations and the learned magistrate was in the position of a trier of fact to decide the case on the relevant admissible evidence.

33. The police officer was not called to give evidence, and it was a question for the learned magistrate whether such permission would be given. Further, the content of the document was not put to the complainant in cross-examination. If such leave were given as sought by the appellant, it would be necessary to hear and determine any application to recall the complainant to give further evidence in cross-examination or in rebuttal. The decision not to put that document to her was correct in principle, and forensically sound. The presence or absence of the document is of no evidentiary or other significance. I would not give leave allowing this document to be led before this court on this appeal because it is irrelevant and not admissible.

34. I have formed the same view about the police report of 8 June which is the third document in the bundle sought by the appellant to be tendered on appeal. It is conceded there is no evidence that it was in the possession of the appellant at the time of the hearing. Even so, the question becomes the purpose to which the appellant wishes to put this document. As the argument developed, it appeared the appellant wished to rely upon this document as a basis to contend that he was not aware of or understood the contents of the FVO obtained by the complainant. That contention cannot be made out on the evidence. He was cross-examined at the hearing about it, and he accepted he was served with the document, read and understood it and the order was explained by police at the time of service. He knew he could not perpetrate family violence against the complainant, and it restricted his future dealings with the complainant by its terms. Exhibit P1 was the FVO that is the subject of the charge, and I note that at page three it explains family violence to include emotional and psychological damage. The appellant was informed of what fell within the coverage of the order as family violence. The basis of relevance upon which the appellant seeks to tender this document does not exist as all relevant evidence about it was already before the Court and there was no evidentiary utility in receiving the document into evidence.

35. The appellant also argued that the evidence should be admitted as it supported his contention regarding recklessness. The appellant contended that he was seeking advice or affirmation or confirmation presumably about the meaning of the terms of the FVO from the police. The police cannot provide advisory opinions and are not an advisory service. While I will deal with the issue of recklessness in greater detail later in this judgment, it is sufficient to say here that, though the appellant alleged the police reports demonstrated he did not understand the terms of the FVO, the police reports would not have affected the conclusion I have reached below.

36. There is no proper basis for the Court to receive this document on appeal and there was no utility in so doing.

Counsel

37. There was a slightly oblique suggestion made by the appellant in his submissions that counsel retained by the appellant had failed in her duty to the appellant at trial by failing to place this material in evidence before the Court. The conduct of counsel will almost never, apart from the most obvious of cases of failure to fulfill professional standards, be the basis for receipt of further evidence. This is because a court would need to be satisfied of a miscarriage of justice arising from the failure of counsel that can only be cured by the receipt of the further evidence or in the worst case, a retrial. I am not satisfied that there is any basis upon which such a submission could be made by the appellant here. To the contrary, I consider that at trial the appellant was competently and professionally represented by counsel, her judgement was sound, her decision making was correct in the circumstances of the case the appellant had to meet, and that everything that could have been put to the Court on his behalf was competently and thoroughly put. I am unable to accept this submission.

38. The further pieces of evidence the appellant sought to adduce were either irrelevant or hearsay and not admissible for a probative or any other purpose. The appellant’s counsel correctly made the decision not to pursue the tender of or cross-examination on any of these documents. There are several reasons for this, including that: (a) the documents were irrelevant; (b) cross-examination on them could lead to a call for their tender when they did not assist but harmed the interests of the appellant or favoured the complainant and so the prosecution case; (c) there was no identifiable provenance of the documents ; and (d) they involved factual material covered in viva voce evidence and so the tender of any such document would be self-serving.

Dismissing application to adduce further evidence

39. The decision I made about the further evidence sought to be led by the appellant turns largely upon the question of relevance. Accepting that in this de novo hearing, it remains necessary for me to rule upon whether this further evidence is, in any way, relevant to the decision I am required to make. This is the approach I have taken, and the issue of relevance is paramount in this case on the question of receipt of further evidence. Having considered the further material sought to be led by the appellant, the evidence, if accepted, would make no difference to the decision I have made because it was not relevant and was not probative of any issue I am required to determine.

40. Based on these findings, I dismissed the application to lead further evidence on the appeal notwithstanding this was a de novo hearing. This refusal was based upon the absence of relevance of this evidence and that in the main, there was already evidence upon these topics before the Court with the obvious exception of an inadmissible hearsay statement of a police officer in a file record.

Substantive Grounds of Appeal

41. I turn now to the substantive grounds of appeal raised by the appellant in his written and oral submissions.

Elements of the charge

42. I will begin by addressing two grounds raised by the appellant that go to whether the case against him was proven, namely whether the conduct constituted family violence and whether the appellant was reckless.

Whether the conduct amounted to family violence

43. The appellant argued that his conduct did not amount to ‘Family Violence’ in the form of emotional and psychological abuse. To be satisfied that the appellant had breached the FVO, the learned magistrate needed to be satisfied beyond reasonable doubt that the appellant had committed an act of family violence. The definition of family violence pursuant to s 8 of the Family Violence Act 2016 is set out at [11] of this judgment and I do not consider it necessary to repeat it here.

44. To determine this issue, it is necessary to consider the evidence before the learned magistrate.

Evidence at trial

45. The appellant’s alleged act of family violence relates to messages sent by him to the complainant. The messages are to be found in two principal places. The first is a form of copy of them prepared by the appellant, marked as Annexure A3 to the appellant’s affidavit filed on 17 October 2025. This is very difficult to read. Exhibit P2 is an electronic copy of the screen recording of messages tendered in the Magistrates Court and it is necessary to take the time to carefully scroll through, read and understand the message exchanges in Exhibit P2. I have done so and have a complete familiarity with the contents of the exhibits.

46. In her evidence, the complainant said that the relationship ended in October 2023 and she wanted a 50/50 shared parenting arrangement with the appellant. There was no agreement on this proposal, and she left the family home in the background that the appellant contended and continues to contend that she wrongly abandoned her children, their home and her relationship with him. The complainant said in her evidence that this was not true, she did not want to leave her children and tried everything possible to stay with her children. She could not do so, notwithstanding her wish to remain connected with her children. It is in that background that the text messages are to be understood and assessed.

47. The content of the messages is self-evident. Somewhat peculiarly, it was initially difficult to identify the identity of the sender and the recipient. Once these messages were understood in context and content, it becomes apparent that the appellant was continuously demanding an apology from the complainant about many things, but the topics changed as time progressed. There was some level of consistency about the reason for the demand of the respondent for an apology, such as that the complainant abandoned her children, did not truly love them, her abandonment of the family home and their relationship. All of that said, it remains difficult to the point of obscurity to detect any relevant connection between any such demand and the reason for the communication, namely the making of access arrangements. They were, and appeared intended to be, very hurtful to the complainant.

48. This was a situation involving a breakdown of an intimate long-term relationship between two people and a demand for an apology(s) from one party in this connection was misconceived at best. On the appellant’s own admissions, these demands were directed at the appellant’s hope of restoring the relationship. It is apparent that the appellant had a continuing hope of restoring the relationship and, in his mind, he wanted to use the demand for an apology as a means of restoring the relationship by, implicitly at least, bringing them closer together. This demand is both typical and demonstrative of the approach of the appellant. An objective reading of the messages makes plain that the complainant wanted to regularly see her children but could not get consent from the appellant for this and many other reasons.

49. In his messages, the appellant continually accused the complainant of not really wanting to see the children and that when she did have access, she did not put any effort into the children. This was denied by the complainant, but her language in response to him had to be both temperate and circumspect because of the operation of the FVO against her. If the complainant did not respond to the appellant’s messages in a manner he thought timely, he accused her of not really wanting to see the children and told her he would break off communication for a period. This led to an apparent level of desperation on the part of the complainant who would, in subsequent messages, offer an apology if that would lead to his agreement to allow her to see the children. In the course of these exchanges, the appellant would often accuse the complainant of using access time to have what he appears to suggest were lascivious parties and that, on one occasion which seemed to be connected to one such party (and it is not clear if he alleged there was more than one), she sent nude photos of herself or someone else through a phone application. The photos were not produced in evidence. There was no evidence about these alleged parties sufficient to make a finding that they ever took place and the complainant denied these allegations as fabrications by the appellant. The complainant said she was compelled to answer all the messages of the appellant because if she did not, he would circumscribe the time she could have with the children.

50. A review of the whole of these exchanges shows that the appellant very often demanded immediate responses to his messages from the complainant and that a failure to promptly respond led to adverse access consequences for her, whereas on occasions he chose his own time to respond to the appellant. The effect, as disclosed in the content of the messages, is that the complainant became increasingly desperate in her attempts to placate the appellant and preserve her relationship with her children. The appellant continually told her about what he thought were her failures as a parent and, inferentially, how unworthy she was of her children who he now was raising alone at the cost of his career and without her thanks or support. It is apparent from a full reading of the messages that the appellant’s approach was that fault lay entirely with the complainant and that he was the wronged party. This was in the background of his demand for an apology from her, his stated desire to renew the relationship, his belief that she had wrongly abandoned the family home and how, as a result, he believed he could decide when and in what circumstances she should see her children, according to his convenience.

51. The learned magistrate found that the messages amounted to family violence as defined by the Family Violence Act 2016 in that the appellant’s conduct was emotional or psychological abuse. The learned magistrate compared the content of the complainant’s messages to the appellant seeking access to the children and the responses of the appellant which are summarised above.

Consideration

52. The appellant contended that the learned magistrate fell into error because he did not attempt to control the complainant. The learned magistrate correctly held that it was not necessary to find control or that multiple limbs of family violence need be proven. The learned magistrate found that the appellant did not attempt to control the complainant though I think it likely that was the result of his conduct. I accept the submissions of the respondent that the conduct must be understood in its totality which in this case was tantamount to harassment and offensive conduct in the background of his exploitation of a power imbalance connected with their children and access arrangements. He had interim custody of the children which he was to share with the complainant. She was beholden to his caprice about when she may have access. Under the FVO, the complainant could only communicate with the appellant about the children and access arrangements. She attempted to do so on many occasions only to be met by intransigence on the part of the appellant who avoided her requests and ventilated his animus about their relationship, his perception of her unsatisfactory behaviour and its breakdown. This was irrelevant to the need to make access arrangements and was a discussion to be had at another place and time.

53. I am satisfied the complainant could not respond in any meaningful way except to continue to request access to the children and try as best she could to satisfy the caprice of the appellant. She could not breach the FVO against her. The power imbalance between them is thus obvious and so when full regard is given to the content of the messages, they are quite offensive. The children were being used, in effect, as the means to punish the complainant and, as it were, control her. She was accused of abandoning the family, not loving her children and misusing the opportunities she was given for access. These are very highly emotion charged matters and more so in the context of an operating FVO against her, which if breached, carried the risk of her not being able to see her children. This is another aspect of the power imbalance under which she operated.

54. As well, in the same context, the appellant continued to demand the complainant apologise for her conduct including false accusations about transmitting nude photos which she strenuously denied. He made several demands for an apology from her connected with their relationship and other matters arising in the past, the present and their dealings with the children. He could essentially pluck a slight from any time and demand an apology rather than focus on the issue of access. He agreed in his evidence that her giving an apology would help him facilitate the question of access. The two things are not related and so the use of a demand for an apology was one means used by him to withhold access of the complainant to her children. Then he criticised the complainant for not having enough to do with her children largely because of her selfishness when she was seeking access to her children which he blocked. This cannot be characterised as his concern for their children but rather as a form of psychological abuse of the complainant. He then compounded that conduct by alleging that the complainant was suffering from psychological or mental health issues and so, implicitly at least, it was inappropriate she has access to the children, or she was incapable of performing her role as a mother and parent.

55. The complainant was diagnosed with anxiety and panic attacks in 2022. She initially denied this diagnosis but later admitted its accuracy. The appellant made much of this denial and change of evidence and it was dealt with in the judgement by the learned magistrate who decided not to draw any adverse credit finding against the complainant. That approach was open to the learned magistrate and, in my view, no criticism could be made of it. In my view, when regard is had to the whole of the evidence, nothing should be made of this inconsistency, bearing in mind the pressure of the situation in which both parties found themselves at the time.

56. In my view, the requirements of the Family Violence Act 2016 were satisfied, there is no basis to interfere with the decision of the learned magistrate.

Recklessness

57. The appellant also contended that there was confusion in the mind of the learned magistrate about the application of the findings of fact in the process of being satisfied of proof of requirement to find recklessness. The appellant appeared to rely upon a common law test of recklessness. The applicable definition is that contained in s 20 of the Criminal Code 2002 (ACT) which provides: (1) A person is reckless in relation to a result if— (a) the person is aware of a substantial risk that the result will happen; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (2) A person is reckless in relation to a circumstance if— (a) the person is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is a question of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.

58. The element of recklessness does not require actual knowledge that what the appellant was doing amounted to emotional and psychological abuse. Whether that legal test is satisfied is first a question of fact to be determined on the whole of the evidence and any inferences arising on the evidence. The prosecution successfully argued that the only reasonably open inference from the evidence the appellant gave about his knowledge of how the complainant would be affected by his behaviour and the quantity and nature of those messages is that the test of recklessness was satisfied. In making that finding, the learned magistrate rejected the evidence of the appellant that he had not turned his mind to the issues.

59. There was no submission put to the learned magistrate that the appellant did not understand the terms of the FVO or its operation. He had obtained a similar order against the complainant. The appellant did not say in his evidence he had any confusion or misunderstanding about its terms. This was after he had been served with the order obtained by the complainant, it was read by him and explained to him by the serving police officers. And the only relevant fact in issue was whether he had been served properly with the document and understood its contents. The service of the FVO was agreed.

60. As the learned magistrate concluded, the appellant intended for his comments to “land” (and they did), and the appellant admitted in his evidence that he knew they were harsh words that he would not want to have spoken to himself and he did not turn his mind to how these words would “land” upon the complainant. And his conduct continuously harassed and threatened the complainant because of his capricious refusal from time to time to engage with her on access arrangements for many reasons including that he hoped she would reconsider and reengage in the relationship.

61. In his evidence, the appellant agreed that he sent the messages as a technique to stay within the strictures of the FVO and that he would find offensive or be upset by the very content of the messages he sent to the complainant if he received them from her. He agreed he persistently asked for an apology from the complainant about the end of their relationship which, if given, would have disposed him more favourably to giving her access to the children. His suggestion of a renewal of the relationship was connected to his desire that she not enter a new relationship. This was part of his technique to maintain the relationship.

62. There was an important exchange during the appellant’s cross-examination. He was asked if he knew that his messages would upset the complainant. The transcript discloses a delay of about twenty seconds occurred before he answered that he did not believe he considered the reaction of the complainant at all. He was unconcerned if what he said caused emotional damage to her. He was then asked if he then knew that his harsh words would hurt the complainant and he said he knew at the time it was harsh feedback. I think it is quite plain that he was aware of the effect of his words upon the complainant and he intended their effect, given the background of the whole of his other behaviour towards the complainant. He was using his position vis a vis the circumstances of the complainant being outside of the home and away from the children to emotionally and psychologically overwhelm the complainant.

63. I am satisfied that the learned magistrate applied the statutory test correctly, and I accept that there was available evidence upon which such a decision could be made of proof of that element. The messages were upsetting and offensive and, linked to his desire to reinstate their relationship, the appellant sought an apology from the complainant. This occurred in the context of the appellant wanting to prevent the complainant entering a new relationship if in his mind, theirs was unresolved. He knew his words were harsh and offensive, they would evoke an emotional response and so were offensive and harassing. This behaviour is an anathema to his intentions in a variety of ways but most importantly, he decided to use his desire to maintain a relationship by acting in an offensive and aggressive way against the person with whom he sought that relationship. He used the need to arrange access to the children almost as a form harassment of the complainant to force her submission to him and apologise for some unspecified wrong as he perceived it and as a gateway for her to gain access to her own children. His state of mind can be readily inferred where the relationship had descended to family violence, and he thought that the complainant had mental health concerns. I would also reject the suggestion that the appellant did not turn his mind to the nature of his conduct because he continued to treat the complainant in the same fashion for the same reasons throughout. He intended to give strong feedback and provoke a change in behaviour. The change he wanted was submission of the complainant and a re-establishment of a relationship.

64. I consider that the finding of the learned magistrate was correct and was the only finding reasonably open. The appellant wished to obtain a result and consciously set about trying to achieve it, knowing of its consequential effect on the complainant but being reckless thereto because of his overwhelming desire to reinstate the relationship but on his terms.

Knowing the case to meet

65. The appellant raised three interrelated issues regarding the case against him as grounds for his appeal against conviction. As I understand it, the appellant argued: (a) There was a lack of particulars of the charge brought against the appellant; (b) The charge brought against the appellant was amended at a late stage; and (c) The evidence used against him was not disclosed or was disclosed at a late stage.

66. These concerns relate to the appellant’s overarching argument that he did not know the case he had to meet and that this amounted to a denial of procedural fairness.

Particulars of the charge

67. The charge against the appellant provided as follows: That he, in the Australian Capital Territory, between 13 April and 4 June 2024, being a person against whom a family violence order was made and who had been personally served with a copy of the family violence order engaged in conduct that contravened that family violence order.

68. The appellant complains that he did not know the case he had to meet. He contends the particulars alleged in the charge merely repeat the legislation. The appellant contended that as a result, at no time did he have an appreciation of the case he had to meet.

69. At the hearing before the learned magistrate, the appellant was represented by counsel. The appellant says he first learned of the case against him at the hearing. This contention cannot sit with the known objective facts.

70. The appellant was charged in 2024, but the hearing did not occur until July 2025, by which time the appellant had been legally represented for some time (it appears for about seven months). Counsel represented him at the hearing. In the usual course of a criminal prosecution, his legal advisors received the brief of evidence from the DPP and did not make any application for further particulars. A case statement had been provided in January 2025, and no further amendment was sought in the form of a repleaded charge. I am mindful of the principle that the accused must be made aware from the content of the charge, the nature of the allegations made against him, and it is not his role to search around to find the case he must meet. So much may be accepted as well settled. All these documents were read by the appellant before the hearing commenced. He discussed them with his solicitor and obtained advice about them.

71. The appellant relied on Johnson v Miller [1937] HCA 77; 59 CLR 467 to support his argument regarding his knowledge of the case he had to meet. That case concerned a licensee of a hotel who had been charged with breaching s 209 of the Licensing Act 1935 (SA) as it was then. The particulars of the charge were that it related to a person unknown to the police being seen leaving the hotel between 9am and 10:45am on the date charged. The licensee contended that, as a number of people came and went from the hotel during that period, it was difficult for him to know the charge against him and defend it. The appellant submitted that this case supported his argument that the lack of particulars in his charge prevented him from knowing the case he needed to meet and that this, in turn, amounted to the denial of procedural fairness.

72. The appellant raised what appeared to be two aspects of the particulars of the charge argument. The first was that the charge was, in effect, an abuse of process as it did no more than state the charge. The common law position as in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW [2010] HCA 1; 239 CLR 531 (‘Kirk’) and other decisions is that at a minimum, the charge should inform the accused with sufficient particularity to enable the accused to understand the charged allegation. It is not the case that the charge must inform an accused of every particular of the charge or the evidence in support of the charge. The majority in Kirk, citing Johnson v Miller, held at 11-12 that: The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. … In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, “must at the least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. (citations omitted)

73. However, the common law may be abrogated by statute. Section 27(2) of the Magistrates Court Act 1930 provides: (2) The description of any offence in the words of the Act, ordinance, law, order, by-law, regulation, or other instrument creating the offence, or in similar words, is sufficient in law.

74. The impact of this provision is that a charge under the Family Violence Act 2016 being heard in the Magistrates Court may adopt or repeat the words of the relevant section within the charging legislation. This is what has occurred here and, by operation of statute, the common law has been ameliorated and no unfairness follows. This was an uncomplicated charge, and the legislation permits the form of the charge. Arguably the lack of complexity of the charge means that the statement of charge is sufficient even at common law. As I am not required to decide that question I put it to one side.

75. I have earlier described the process adopted in a criminal prosecution. Following the charge, it is necessary for the prosecution to provide the prosecution brief of evidence and where necessary to provide particulars. About six months after being charged, the appellant obtained legal representation which continued through to the completion of the hearing. Prior to and at the hearing, the legal representatives of the appellant made no complaint about particularity or information provided by the prosecution, had instructions from the appellant, led him in evidence and cross examined the complainant on his instructions. And no application was made for an adjournment on any basis. This ground fails for all those reasons. Late amendment

76. There was a corollary argument put by the appellant on the issue of particulars. He contends there was a late amendment to the charge and so he could not have been completely aware of the case he had to meet at the hearing. I am satisfied there was no late amendment to the charge which from the outset required proof of intention and recklessness beyond reasonable doubt as earlier discussed. The intention element relates to the conduct itself, and I am satisfied that it has been proved beyond reasonable doubt that the appellant intended to act in the way alleged. He may have done so with a particular result in mind but that does not affect the proof of his intention to the required standard.

77. The recklessness element relates to the circumstances or outcome of that conduct. I have earlier made findings that recklessness has been proved to my satisfaction beyond reasonable doubt. The appellant was aware of the harshness of his conduct, and I am satisfied he acted in that way intentionally in the forlorn hope he carried and his intention about the relationship.

78. Even though there was some recorded discussion between Bench and Bar at the first instance hearing about the correct interpretation of the elements of the offence, the transcript makes clear that the appellant’s counsel was aware that, upon a finding of intention proved beyond reasonable doubt, recklessness was the appropriate fault element. This awareness is informed by the examination of the complainant whose evidence the learned magistrate accepted and the evidence of the appellant on the same topic which was correctly rejected. There was no application for an adjournment from the appellant’s counsel and so it may be understood that counsel was not embarrassed by that discussion and its outcome. Even if it were the case that there was some confusion, nothing turns on that. The relevant evidentiary material was before the court and consisted almost entirely of messages sent by the appellant to the complainant. The appellant was completely familiar with them as the author and the matter turned in large part on the content and inferences arising therefrom. The defence proceeded on this basis, and it may safely be assumed that the appellant came to court prepared to meet a case based on those messages, the characterisation of them and the credibility of the appellant in relation to them. As a secondary aspect and as may be expected, the appellant sought to discredit the complainant as part of his case. Both approaches failed but it remains clear that the defence strategy logically was unchanged and was the same as it had always been.

79. A further argument was put by the appellant that he was taken by surprise about the amendment to the date range on the face of the charge. The charge date range was amended from “14 April 2024” to “between 13 April and 4 June 2024” and this occurred on 15 November 2024, seven months before the initial hearing. I reject any submission of the appellant that he was unaware of this amendment, that he was taken by surprise or that the amendment changes the case he had to meet. It is a clarification and is in his favour as it confines the prosecution case to a narrow time period and so he is better informed of the case he must meet. I reject the arguments of the appellant on this point.

Evidence not disclosed/late disclosure

80. The fourth argument of the appellant concerned the contents of Exhibit P2, the video taken of the text messages earlier mentioned. It was disclosed as soon as it came into the possession of the DPP. It records the text messages already in the possession of the appellant and so no prejudice could arise from their tender in that form. These were disclosed to the prosecution by him, and they were very difficult to read in that form. The video served two main purposes. It made the messages legible and allowed a reader to scroll through them at the speed appropriate to the reader. Exhibit P2 was used by appellant’s counsel in examination because of its obvious forensic effectiveness and no prejudice on any basis could arise from the late disclosure of the exhibit. The prosecution case did not change and Exhibit P2 confirmed the content of the third and fourth exhibit of the appellant’s affidavit affirmed on 17 October 2025.

81. And nothing changed in this respect because the prosecution always relied upon the whole suite of documents in these electronic exchanges. It was not a case that turned on one, two or a limited number of messages but on all the messages in the time period. The appellant earlier argued that he did not understand this was to be the case and that he thought the prosecution would “cherry pick” a number of the exchanges as its case. No basis for him having this understanding was given apart from him understanding in July 2024 that reference was to be made to a selection of particular messages. Even if this was correct, it could not be the basis of a claim of disentitling prejudice by the appellant. Before the hearing, the prosecution disclosed its brief of documents to him which contained all the messages. These were in a particular form that was hard to use. The exhibit dealt with the same messages in a way that was far more convenient to all parties and the court. Whatever understanding may have earlier pertained, it was assuaged by these later developments. By the time of the hearing below, the appellant came to meet a case based on all the messages, not just a cherry picked few.

Alleged failure to give proper consideration

82. Within the grounds of appeal is a complaint that the learned magistrate failed to give proper consideration to the facts and circumstances in which the prosecution proceeded and so the learned magistrate reached a decision after only a perfunctory consideration of the facts and issues involved in this case. Although these complaints were not ventilated to any extent at appeal, something needs to be said about them.

83. The complaint misunderstand the process in which the learned magistrate was involved. This was a summary prosecution, and the learned magistrate was required to assess the matter in a way that reflects its summary nature. This means that the parties are to be informed of the result as soon as is possible having regard to the issues for determination. This is what the learned magistrate did, and no criticism can reasonably be made on that basis alone. Second, the learned magistrate heard and assessed the evidence before the Court and before embarking on that process had a general understanding of the charge and matters for proof. It was for the parties to inform the court of the evidence to be led, and the learned magistrate was in the parties’ hands in that respect. Proof of the elements of the offence was for the learned magistrate to decide, and the parties were ad idem about matters for proof. The learned magistrate embarked upon the hearing and the determination of the issues for decision in the correct way and absent any dissent from either of the parties’ representatives.

84. There is a final matter. This Court recognises and fully understands the pressures upon magistrates who are generally exercising summary jurisdiction and who have a very large and pressing list of cases for disposition each day. In the administration of justice in connection with the jurisdiction of magistrates, it is well recognised that magistrates are required to decide matters very efficiently so that justice is done and seen to be done. Magistrates will very often give ex tempore judgements or provide a decision to be followed by reasons shortly thereafter. If that were not so, the process of the administration of justice would grind too slowly and perhaps to a halt. It is therefore appropriate and an approach to be encouraged for magistrates to announce a decision and give ex tempore reasons in as many cases as possible. These are all matters for judgement according to the facts of a particular matter. This court recognises that at times some reasons given may be inelegantly expressed but despite any criticism made on that basis, this court will be careful to ensure that a decision is made on a proper legal and factual basis despite any infelicity in forms of expression or language. The imperative is that the parties are informed of the Court’s decision as soon as may be possible. This is what has happened here and as I have explained herein, the decision of the learned magistrate was correct.

Conclusion on appeal against conviction

85. I find that the appellant has not made out any of his grounds of appeal in relation to the appeal against conviction and, in turn, I dismissed the appeal accordingly. Appeal against sentence

86. I turn then to the appeal against sentence.

87. The appellant did not address this topic in oral submissions at the appeal hearing. In written submissions, he alleges two specific grounds of error and an excessive sentence. To succeed he must identify a legal, factual or discretionary error which in turn satisfies me that it is appropriate for me to interfere in the sentencing process.

88. I am satisfied the learned magistrate considered the whole of the evidence before the court in the way I have earlier discussed. The learned magistrate was correct to find that the appellant appeared to lack insight into the magnitude and effect of his offending behaviour. In so doing, it is axiomatic that the learned magistrate considered the broader relationship context and it was no error for the learned magistrate not to have specifically mentioned that matter in the sentencing context, especially in the absence of a specific submission on that topic from his counsel. That was the way the matter progressed, and no criticism can be made out on that basis.

89. Though pt 4.3 of the Crimes (Sentencing) Act 2005 (ACT) allows for the court to receive and consider victim impact statements, the legislative scheme does not require that every victim provide the court with a victim impact statement. It is ultimately the victims’ choice as to whether they provide a victim impact statement and s 53(1)(b) of the Crimes (Sentencing) Act 2005 expressly provides for circumstances where a victim impact statement is not provided.

90. I am unable to reach a conclusion that the sentence was unreasonable or unjust for an offence which attracts a maximum penalty of five years’ imprisonment or a maximum fine of 500 penalty units. I am generally not particularly persuaded by a review of comparative sentences because, in the main, they turn on their own peculiar facts. I consider that the relevant issue here is whether the sentence imposed reflected condign punishment for the crime committed. In my view it did, even though the period of imprisonment was at the upper end of the sentencing spectrum. This was a proved intentional and reckless breach of an FVO. It involved the relationship of two parents and the behaviour of the appellant that I have described in detail earlier and which occurred in what may otherwise be thought to be reasonably straightforward matters, the arrangements for access to their children. A breach of an FVO in those circumstances and on these facts appropriately attracted a period of imprisonment but that the order for suspension should be made as it was here. The appellant did not accept and apparently still does not accept the characterisation of his conduct which was the basis of the decision of the learned magistrate. He rejects the characterisation as being in breach of the FVO and so the decision of the court.

91. For the reasons earlier discussed, I am satisfied that the summary nature of the disposition of the sentencing process, in the context that a concession was made by counsel for the appellant that a sentence of a GBO was an appropriate outcome, does not amount to an appealable error.

92. I dismiss the appeal against sentence.

Orders

93. The orders of the Court are: (1) The application to lead further evidence by [KC] is refused. I will publish my reasons. (2) The appeal will be dismissed, and I will publish my reasons.

I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Slattery.

Associate: Date: