MR v R

Decision: The appellant’s appeal is dismissed and the final ADVO ordered, with conditions, on 12 September 2025 are confirmed.

Catchwords: APPREHENDED VIOLENCE ORDER – appeals and reviews – dismissal of criminal charges against the appellant on domestic violence related offences – appeal against decision of Magistrate to make final Apprehended Domestic Violence Order against appellant – Crown applies to rely upon evidence of part of a DVEC that was not in evidence in the criminal proceeding – whether in interests of justice to permit Crown to rely upon fresh evidence and (if so) to allow appellant to give fresh evidence of events occurring after ADVO is made

Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 18, 28, 84
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 6A, 9, 11, 16, 17, 36, 42
Evidence Act 1995 (NSW), s 140

Cases Cited: Barwick v R [2023] NSWCCA 139
Blatch v Archer (1774) 1 Cowp 63
Bird v Redman [2024] NSWDC 60
CDJ v VAJ (1998) 197 CLR 192
Douglass v The Queen [2012] HCA 34
Dyason v Butterworth [2015] NSWCA 52
Fox v Percy (2003) 214 CLR 188
Garde v Dowd (2011) 80 NSWLR 620
Holcombe v Coulton (1988) 17 NSWLR 71
Landsman v Director of Public Prosecutions [2013] NSWCA 369
Landsman v R [2014] NSWCA 328
Mahmoud v Sutherland [2012] NSWCA 306
Mickelberg v R (1992) 59 A Crim R 288
Park v R [2023] NSWCCA 71
Rock v Henderson (No.2) [2025] NSWCA 47
Xie v R (2021) 386 ALR 371
Witness v Marsden (2000) 49 NSWLR 429
Wollongong Corporation v Cowan (1955) 93 CLR 435

Category: Principal judgment

Parties: MR (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

Representation: Counsel:
Ms L Rowan (Appellant)
Ms A Zhang (ODPP) (Respondent)
Solicitors:
Umbrella Legal (Appellant)

File Number(s): 2025/00235133

Publication restriction: Pseudonym orders were made in relation to the appellant given pending family law proceedings.

REASONS FOR JUDGMENT

1. On 12 September 2025, three charges relating to domestic violence against MR allegedly committed against his then partner, were dismissed by the Singleton Local Court (Magistrate Hockey). After dismissing the charges, his Honour made a final Apprehended Domestic Violence Order (ADVO), for a period of 2 years’ commencing 12 September 2025.

2. MR now appeals the final ADVO. I will hereafter refer to MR as the appellant and his former partner as the PINOP.

3. Before the hearing of the appeal proper, the Crown applied, by notice of motion, for leave pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to adduce fresh evidence. The purported ‘fresh evidence’ comprises the balance of a Domestic Violence Evidence in Chief (DVEC) recording of the PINOP. Most, but not all, of that DVEC recording had been played in the Local Court hearing. According to the Crown on this appeal, the part that was not played in the Local Court is material to the assessment of whether a final ADVO should have been made.

4. On the eve of the hearing, and on the contingency that the Court might grant leave to the Crown to rely upon the balance of the DVEC as fresh evidence, the appellant notified the Crown that he required the PINOP’s attendance for cross-examination. He also sought leave to give fresh evidence on the appeal. This was in the nature of difficulties associated with compliance with the ADVO since the hearing.

5. At the hearing, the appellant did not oppose the Crown adducing the fresh evidence. Nor did the Crown oppose the appellant giving fresh evidence.

Background

6. The appellant and PINOP were, as indicated, in a domestic relationship. They had three young children. It appears that the appellant had a significant parental responsibility for the children, with the PINOP working full time. By 2025, they had experienced difficulties in their relationship: the PINOP said that they had separated on 6 June 2025. There were proceedings in the Federal Circuit and Family Court of Australia. One of the issues concerned child parenting.

7. On 19 June 2025, the PINOP attended Muswellbrook Police Station. She reported an incident which she said occurred on 4 February 2025. Her narrative about that incident generated the three charges that were brought against the appellant. Further, on 20 June 2025 a Provisional ADVO was made. Eventually, on 8 July 2025, an interim ADVO was made.

8. On the day she attended the police station, the PINOP participated in a DVEC. A feature of this, which assumed significance in the Local Court hearing, was that in the early part of the DVEC the PINOP read from a note she created using the Notes App on her mobile phone and which, she asserted, she had composed on the date of the alleged incident. As events transpired, although the PINOP asserted that the notes were contemporaneous, there was no objective or independent means of verifying that assertion. Also relevantly, in connection with proof of the charges, it became evident that police did not speak to one of the three children whom, on the PINOP’s account, was the alleged victim in respect to one of the three charges and otherwise would have been a material witness to the other two charges.

The Local Court hearing

9. In the Local Court, the prosecution called a police officer and the PINOP. It also tendered the appellant’s ERISP taken on the day of his arrest. Regrettably and inexplicably, the ERISP was only reproduced in audible form. The appellant elected not to give evidence in the Local Court.

10. The PINOP’s narrative was that on 4 February 2025, she had been in the kitchen, cooking dinner. The appellant had given the youngest of their children an ice cream around dinner time and, consequently, he and the PINOP got into an argument. Both of them moved to the bedroom to continue that argument, and the argument escalated. The eldest of the children came into the bedroom and asked both parents to stop. The PINOP said that the appellant grabbed the child and shoved her outside of the door, resulting in the child crying. The PINOP said she motioned to go outside the bedroom to help the child, but the appellant prevented her from doing so. At one point, both parents’ hands were on the doorknob, before the appellant pushed the PINOP causing her to fall on the bed. She then said she scrunched herself up, in a ball, around the pillows and blocked her ears, whilst he continued verbally abusing her. She said she felt trapped and had no control. The PINOP said that eventually the appellant left the bedroom. She said she went to comfort the child, but was followed by the appellant who told her that she was playing the ‘victim card’ and that ‘the kids will understand when they grow up what [he] had to put up with’. This was a reference to the PINOP. After some further arguments, the appellant took a shower and went to the pub.

11. A vigorous challenge was made to the PINOP’s credibility and, in particular, her delay in reporting the incident. Her motives were squarely impugned with reference to the subsistence of the divorce proceeding in the Federal Circuit and Family Court. It was suggested that she was aware that the appellant had legal representation and brought the complaint when she did to obtain an advantage in those proceedings. The PINOP’s explanation for the delay in her complaint was that at about the time of the incident, she did not appreciate that what the appellant had done to her on that occasion (or earlier occasions) rose to a ‘threshold’ which justified her reporting to police.

12. The police were also challenged in relation to the adequacy of its investigation, including its omissions to verify when the PINOP composed her notes and its omission to speak to a child witness. That was especially surprising, the Magistrate indicated, when police had received an indication from the appellant about the subsisting family law proceedings.

13. In the course of the appellant’s ERISP, he acknowledged that he and the PINOP had had arguments and also that when this occurred, they would move to the bedroom. He also conceded that he probably had told the PINOP that she had ‘played the victim’ or milked the relationship. But he denied that anything ‘physical’ had occurred between them. He said he had never physically stopped her doing anything with the kids and also denied physically throwing the kids.

14. Ultimately, as indicated, the learned Magistrate dismissed the charges. In his reasons, delivered ex tempore, his Honour first gave himself a Murray direction. Specifically, he considered the appellant’s point about delay. There were indications that the Magistrate accepted that the PINOP was a credible complainant. He was impressed with her demeanour. The challenges to her credit arising from delay or motive to lie do not appear from the reasons to have impaired her credit in the Magistrate’s eyes.

15. However, that was not all. The Magistrate indicated that he had to consider the evidence as a whole, and this included deficiencies in the investigation; primarily being the absence of corroboration for the assertion that the PINOP’s notes were made on the same day with the occurrence of the incident she reported. His Honour directed himself in accordance with Liberato. In respect to the differing facets of that direction, his Honour said that he did not believe the appellant’s account. His Honour then indicated that he held “grave suspicion” as to whether that account could be true. This observation, was with respect, slightly ambiguous: the second step in Liberato requires consideration only of whether the trier of fact thinks that an accused’s account might be true; which speaks in terms of possibility, on a spectrum, that the trier of fact neither actual believes nor wholly rejects the accused’s account (Park v R [2023] NSWCCA 71 (“Park*”*) at [103]). Nevertheless, his Honour’s reasons should be read as indicating that the Magistrate did not believe that the appellant’s account could be true, but had set it aside. This explains why the Magistrate went on to engage with the third step of the Liberato direction: that is, on the basis of putting aside the appellant’s account, whether the prosecution had proved its case, beyond reasonable doubt, on the evidence his Honour accepted. That third step is engaged in on the basis that the defendant’s account has been ‘positively disbelieved’: Park at [103].

16. There are cases where a complainant might be regarded as a truthful, even reliable, witness; yet that would not be inconsistent with a finding of reasonable doubt even if the trier of fact has doubt about a defendant’s account: Douglass v The Queen [2012] HCA 34 at [13]. To reiterate, his Honour rejected the appellant’s account. The dismissal of the charges occurred because his Honour was not satisfied, to the highest standard of proof, that the prosecution made out its case.

17. More materially now, I turn to the making of the final ADVO. The Magistrate rejected the appellant’s submission that, in light of the dismissal of the charges, the ADVO proceeding should be dismissed.

18. It was clear also that his Honour recognised the different standards of proof applicable to a criminal proceeding and that which a PINOP needed to surmount when applying for an ADVO. It is also clear that the same factual matrix that the prosecution relied upon to sustain the charges was relied upon in the ADVO proceeding. This course was taken without demur from the prosecution or the appellant. Further, his Honour specifically remarked that although he could not accept her evidence beyond reasonable doubt, he had a strong suspicion that the PINOP’s evidence was true.

19. Taken in isolation, it was unnecessary for the Magistrate to speak in terms of suspicion of proof. But his Honour confirmed that by applying the correct standard, of the probabilities, the matters in s 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the Act”) were satisfied. In relation to the orders themselves, after the Magistrate indicated his intention to make the orders, there was a discussion about the terms, and particularly order 6.

This appeal

The Crown’s application to adduce fresh evidence

20. The application is supported by an affidavit of Alice Zhang, the solicitor advocate for the prosecution in this appeal. Ms Zhang deposed to the circumstances in which only a portion of the PINOP’s DVEC was played in the Local Court.

21. The essence of that evidence was that, first, the portion of the DVEC had been tendered without objection by the appellant, who was then legally represented. However, the balance of the DVEC, which was not played, and which was estimated to be 2 minutes and 33 seconds, contained evidentiary material which, whilst not admissible in the criminal proceeding, was relevant and admissible to the ADVO proceeding. Ms Zhang deposed, specifically, to the circumstance that the PINOP, in this crucial period, “answered further questions in relation to the application for an Apprehended Domestic Violence Order and whether she had fears for her safety or the safety of her children.” More specific content about the fresh evidence was summarised in paragraph 31 of the prosecution’s written submissions in this appeal. It is convenient to reproduce this summary:

a. The Appellant has intimidated and threatened her. He has not stalked her.

b. He had engaged in verbal abuse toward her before the incident on 4 February 2025.

c. The PINOP initially stated that the appellant had never assaulted her before. However, when asked if he had ever behaved in this way toward her before this time, the PINOP recalled one physical incident, years ago and prior to having children, where she and the Appellant were in the garage, and the Appellant held her up against the wall.

d. The Appellant’s behaviour made her feel “horrible” and “really worried for the kids …. I don’t know just hopeless.”

e. When questioned whether she had fears for the safety of her children, she stated “I don’t have fears for my safety, no”, but continued to say “the way he talks to me in front of the kids I guess I’m fearful that as they grow up, he’s gonna start using that behaviour towards the kids”.

22. Further, Ms Zhang deposed to her belief, based on usual practice, that the Brief of Evidence served on the appellant would have contained the entirety of the DVEC.

23. One potential implication from this is that the only reason the DVEC was not played in its entirety in the Local Court was because of an anticipated objection by the appellant’s then Counsel to the part of it that the prosecution wishes to rely upon in this appeal.

24. In her written submissions filed in advance of this appeal, the then Counsel for the appellant did not address the issue of fresh evidence. After some apparent reticence, including a wish for the Court to consider the appellant’s ERISP before declaring whether she might want to cross-examine the PINOP on the contingency that the Court might allow the fresh evidence, Counsel for the appellant ultimately did not oppose the Crown’s application.

25. At the hearing of the appeal I indicated I would give my reasons for acceding to the Crown’s application in my Judgment. These are my reasons.

Meaning of ‘fresh evidence’

26. ‘Fresh evidence’ is expressly defined (s 3 of the Crimes (Appeal and Review) Act 2001 (NSW)) as evidence “in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen”. This definition of ‘fresh evidence’ is broader than the concept as it appears in the general law: Wollongong Corporation v Cowan (1955) 93 CLR 435; also Xie v R (2021) 386 ALR 371 at [434]. Arguably, it can create tension where, as here, the appeal to this Court is a rehearing on the transcript and the appellant is required to demonstrate error.

27. The criterion for the grant of leave is “the interests of justice”. There is plainly no all-encompassing formula to what the “interests of justice” indicates: it is plainly fact dependent. Indeed in Landsman v R [2014] NSWCA 328 (“Landsman II”), the notion was interpreted as being so extensive as to incorporate not only the interests of the parties, but also questions of legal principle, the public interest and policy considerations. In an earlier decision in the same criminal litigation, Leeming JA said in his concurring judgment in Landsman v Director of Public Prosecutions [2013] NSWCA 369 (“Landsman I”) at [36] that the notion embraces the broader public interest of permitting the statutory mechanism of appeals to be used appropriately and efficiently.

28. The way that the notion ‘interests of justice’ applies in practice is demonstrated in some of the authorities. Thus, it was said by McHugh J in Holcombe v Coulton (1988) 17 NSWLR 71 at 77E, that there is a public interest in keeping parties to the cases that they relied upon in the proceeding from which the appeal arises. This is associated with the finality principle in decision-making. Moreover, this is not a case, commonly seen where new evidence is relied upon, where there has been a material change in factual circumstance since an earlier decision was made.

29. In the present context, that might suggest that the prosecution, having tendered only part of the DVEC in the criminal trial, but eschewing any application to rely upon its entirety in the ADVO proceeding, should be held to its forensic choice. These are considerations militating against the grant of leave.

30. There is also a public interest in securing relevant testimony: Witness v Marsden (2000) 49 NSWLR 429 at [3]. Another related principle which is applicable is that fresh evidence may be allowed to facilitate the public interest in the administration of justice (Mickelberg v R (1992) 59 A Crim R 288 at 302-3), which, as Beazley P noted in Landsman II (at [70]) might predominate over the public interest of finality. In this case, the appellant did not suggest that the additional part of the DVEC which the prosecution wishes to rely upon was irrelevant to the issues of whether a final ADVO should be made.

31. Transposed to a more immediate context, there is also a public interest in ensuring that the statutory purposes of other legislation are not negated or thwarted as a consequence of a decision. That is to say, there is a plain public interest in ensuring that the purposes in in ss 9 and 10 of the Act are not frustrated. Of particular significance is the interests of children. Further evidence bearing upon their likely safety and welfare might be more likely to be admitted, as was illustrated by the High Court’s decision in CDJ v VAJ (1998) 197 CLR 192.

32. As to this matter, and with reference to one important feature of the Appellant’s complaint, being the application of the orders to the children, part of the proposed fresh evidence of the PINOP concerns her fears for her children.

33. In Bird v Redman [2024] NSWDC 60 (“Bird”), when considering an application for leave to adduce fresh evidence in an ADVO appeal, at [32], I noted:

“..another statutory object (Crimes (Domestic and Personal Violence) Act, s 10(2)(b)) is to ensure that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice”

34. When ADVO matters are heard at first instance, in the Local Court, the evidence in chief proceeds on witness statements, and cross-examination of a witness can be limited in time (Local Court Practice Note No.2, paragraphs 7.2(b) and 7.5, respectively). These represent not insignificant procedural differences to evidence given by a complainant in a criminal proceeding.

35. Ordinarily, the applicant for leave must explain why the ‘fresh’ evidence was not adduced in the Local Court. A limited part of the DVEC was played after opportunity had been given to the appellant’s legal representative to consider and, if appropriate, raise objections to it. It is understandable why the appellant’s Counsel would have objected to part of the DVEC that did not pertain to the specific charges that her client was charged with in addition to the circumstances that it was given in this context of discussion about an AVO. Even though the trier of fact was a Magistrate and not a jury, evidence of other (uncharged) conduct could have given rise to the risk of the evidence being impermissibly used as tendency evidence or otherwise could be unfairly prejudicial. On the other hand, arguably, evidence of other acts might have been admissible as ‘relationship’, ‘background’ or ‘context’ evidence which the Magistrate might have admitted and later directed himself in a way that suggested he would not engage in tendency (or co-incidence) reasoning. Conceivably, Counsel for the appellant would have challenged its admissibility. At any rate, it appears that the prosecutor in the Local Court made a forensic decision to tender only an edited version of the DVEC.

36. With the benefit of hindsight, it would have been wise for the prosecution, once the charges were dismissed, to have invited the Magistrate to consider the DVEC as a whole, including the part which Ms Zhang has deposed may be particularly relevant to the ADVO. It is a matter for some speculation, but it is possible that the prosecution may have been taken by surprise that the appellant would go on to contest the ADVO after the Magistrate had dismissed the charges. Whatever was the motivation, whilst it is generally desirable for parties to be held to their forensic choices, it is also not the case that s 18 of the Crimes (Appeal and Review) A**ct should be applied in a way that penalises a party for making a forensic mistake without reference to other countervailing considerations. That would subvert the important objective of ensuring that this Court, when exercising its appellate jurisdiction, can determine for itself whether the orders made in the Local Court should be confirmed or not.

37. A further consideration relevant to whether leave should be granted is where the evidence might be capable of affecting the outcome – that is, it might shift the dial. It would be unlikely that a court would allow the proposed fresh evidence to be adduced if it could not be seen as possibly altering the outcome. Care however needs to be taken with that approach. It would invert the procedure to determine the merits of the appeal first and then ascertain whether the proposed fresh evidence alters the result. It is an impressionistic assessment.

38. This brings me to the point of considering the content of the ‘fresh’ evidence that the Crown wishes to rely upon. This was described in the Crown’s written submissions (paragraph 31). There were two features of that evidence. The first feature is the PINOP’s description of earlier acts of intimidation or verbal abuse prior to 4 February 2025.

39. Considering that description in isolation, it would add little probative value in circumstances where the appellant had already denied in the Local Court hearing any form of violence against her: the trier of fact would still be left with the PINOP’s (uncorroborated) word against the appellant’s (uncorroborated) word conflict that the Magistrate faced in the Local Court.

40. However, the second part of the Crown’s summary of the PINOP’s evidence is the effect of that conduct on her feelings and motives for her conduct. More particularly, it explains the PINOP’s specific concerns for her children which are relevant to the factors in s 16 that the trier of fact needs to consider – to the extent that the orders would extend to the protection of the children. Specifically the Crown’s summary of the fresh evidence related to the PINOP’s subjective fears about the appellant committing a domestic violence offence against herself and/or against one or more of her children (being persons with whom the appellant had a domestic relationship) (ss 16(1)(a) and (b)). It would have been difficult to evaluate that part of the proposed new evidence (her subjective feelings or concerns) without the context provided by the first part of the evidence (the other asserted conduct): the PINOP’s account of the earlier (uncharged) conduct of the appellant. It is only by reference to that other asserted conduct that the trier of fact could consider the objective aspect of the test in s 16(1), as far as it concerned the children.

41. The evidence that the Crown sought to rely upon in this ADVO appeal was not only relevant but also material. It might, if accepted, have strengthened the Crown’s position beyond the existing findings made by the Local Court Magistrate that were made on a narrower evidentiary basis. It might, in particular, have fortified the Crown’s case that the factors in s 16 are satisfied in connection with the PINOP’s protection, by indicating that the incident in February 2024 was not an isolated event, or aberration; and that, objectively, there was reason for the PINOP to be fearful, at least, for her children. It might also afford a basis not obviously apparent from the other evidence in the Local Court for making orders in relation to the children. In short, it might shift the dial in the Crown’s favour.

42. More than this, as I have noted, part of the appellant’s complaint concerns the extension, or application, of the ADVO in a way that affects the children. This issue was not material to the consideration of the criminal charges, but it was plainly relevant and material to the ADVO.

43. A further consideration as to whether the grant of leave should be given was whether it would bring about prejudice to the appellant. The appellant could not say that he is taken by surprise if the Crown seeks to rely upon it in the ADVO proceeding; which is different in substance to the criminal proceeding (as to which, see Rock v Henderson (No.2) [2025] NSWCA 47 at [165]). The determination I make about the appellant’s ADVO appeal cannot expose him to double jeopardy or represent any collateral challenge to the acquittals he secured in the Local Court.

44. Nevertheless, it struck me that such prejudice could be cured if the appellant’s legal representative was allowed to cross-examine the PINOP on the fresh evidence and thereafter if the appellant had the opportunity to himself to call fresh evidence that responds to the fresh evidence adduced by the prosecution. This was why I acceded to the appellant’s application for himself to give fresh evidence. I indicated to Counsel for the appellant in the hearing that the scope of that fresh evidence would be limited to responding to the PINOP’s evidence (relating to the balance of the DVEC), if he wished, and in light of what his Counsel had foreshadowed, permitting him to give evidence of events occurring subsequent to the final ADVO made by the Local Court.

45. I anticipated that this would lengthen the hearing of the appeal, however, did not anticipate that this would be excessive. The evidence is limited in its scope and at any rate, inflation of the length of the hearing was subsidiary to more important matters, such as the desirability of enabling the parties to say what they wanted to say on the merits of the issues.

46. This was why, on balance, I determined that it was in the interests of justice for the Crown to adduce the ‘fresh evidence’ and, thereafter, for the appellant to give fresh evidence on the topics that I indicated.

Content of the fresh evidence

47. Viewing of the balance of the DVEC, with the aid of the transcript, indicates that the balance of the PINOP’s DVEC concerned the topic of an ADVO.

48. The PINOP confirmed that she had previously been intimidated; that is to say, separately to the incident of February 2025. She had been held up against a wall in a garage, before the birth of her children, but there had also been ‘verbal stuff’. Asked how this made her feel, she said that she felt fears for the safety of her children. More particularly, she was fearful that as they grew up, he would start to use the behaviour he engaged in against her towards the children.

49. The PINOP was thereafter cross-examined. It was suggested to her by Counsel for the appellant was that she was only concerned about the way that the appellant might talk to the children when they were older, as distinct from anything else. But the PINOP said that she was concerned not just with his talking, but also his ranting and his following her around. It was also put to the PINOP that when she spoke to police in June 2025 she did not raise concerns with police as to how the appellant had treated the children. She said, however, that she had. It was further put to her that she had no concern that the appellant represented a threat to the physical safety of the children. The PINOP said she was concerned about the exposure of the children to emotional and verbal abuse the appellant might perpetrate against her.

50. The PINOP was also cross-examined in relation to her understanding of the appellant’s dealings with the children, under supervised contact, that followed the final ADVO made in the Local Court. The PINOP said that she had noticed the appellant being present in Singleton when she was with them, at least a couple of times. She was asked about a very recent incident, only a week before the hearing of the appeal, that occurred during a supervised access, involving one of the children spraying a deodorant can of the appellant’s. The PINOP said she had understanding about it, based on what she was told by child.

51. The appellant started by saying he told the truth in his ERISP. No objection was taken to that question by Ms Crown even though it appeared to go beyond the scope of the permitted fresh evidence – he had the opportunity in the Local Court to affirm the correctness of the ERISP – but elected not to do so. Be that as it may, he said that since the final ADVO was made, he had abided by the conditions to them. He noted that the Federal Circuit and Family Court had made interim orders for supervised contact and he gave the details of those.

52. He also gave the details of an incident in the week before the hearing of the appeal in Singleton in the area of a petrol station. The children were in the back of the car being driven by the appellant, with the supervisor in the front passenger seat. The children had discovered the appellant’s deodorant spray in the back and began to play with it. They were told not to, but in the events that occurred, one of the children was being somewhat naughty. According to the appellant, the supervisor grabbed one of the children’s arms to snatch the can, before heading off to one of the surrounding buildings. He said he made a report about this to the supervisor.

53. Otherwise, the appellant spoke of the times he had seen the children in Singleton. He was a guard at one of the pools. The tenor of his evidence was that the children were very pleased to see him and disappointed when forced by circumstances to detach themselves from him.

Grounds of appeal

A limited ERISP

54. It is pertinent to record that at the hearing of this appeal, at a point where Counsel for the appellant was still weighing whether or not to oppose the Crown relying on fresh evidence and whether she might wish to cross-examine the PINOP, Counsel requested the playing of the ERISP, which was before the Local Court.

55. The ERISP was played, but it quickly became apparent that its reproduction was limited to only an audible recording. Ms Crown indicated that the ERISP that commenced to play was the ERISP in the form that it was in at the Local Court hearing.

56. Once that became apparent, Counsel for the appellant indicated that she did not require it be played in full. In that circumstance, in conjunction with the other circumstance, that the appellant elected not to give evidence, it meant that when assessing the appellant’s account in defence of the criminal charges, the Magistrate was not in a position to assess his demeanour beyond what his Honour heard. The learned Magistrate did not, however, advert to this limitation.

The appellant’s submissions

57. By his former Counsel’s written submissions (MFI 2), the appellant submitted that as a consequence of the dismissal of the charges, there was no basis for an ADVO, either affecting the PINOP or, alternatively, concerning the children. In the written submissions prepared in advance of the hearing by different Counsel, it was submitted that the prosecution did not adduce evidence and made no submissions. There was no evidence from any of the three children, nor evidence from the complainant as to the fears she held for their welfare. At the hearing, whilst not expressly abandoning these submissions, I think it is fair to say that the new Counsel for the appellant did not enthusiastically embrace them.

58. There were additional complaints about what had occurred in the Local Court that were not evident from the appellant’s written submissions.

59. First, the learned Magistrate was said to have misapplied the second limb of the Liberato decision. Counsel for the appellant, Ms Rowan, drew the Court’s attention to the decision in Barwick v R [2023] NSWCCA 139 (“Barwick”), which was a successful appeal against conviction. In that decision, the Court of Criminal Appeal determined that, in the context of a trial by judge alone, where the defendant had given evidence and there was other evidence to support a finding of (indeed a judicial direction about) of prior good character, it was incumbent on the trial judge to explain why they neither believed the defendant (the first step of Liberato) or, short of that, did not believe that the defendant’s account might be true (the second step of Liberato).

60. Ms Rowan submitted that the learned Magistrate’s reasoning in relation to the criminal charges suffered from the problems identified in Barwick. She further submitted that this infected the Magistrate’s reasoning in relation to the ADVO. The logic of this, as I understood the argument, was that if the appellant’s account was believable, or might have been believable, then the Magistrate could not have reached the state of satisfaction that the matters in s 16 of the Act were engaged.

61. Secondly, as far as it was apparent that the Magistrate made favourable credit findings concerning the PINOP, Counsel referred to the following reasoning by the Magistrate (from T 22.31):

“[the PINOP] gave evidence from remote location via a witness room, and the Court, or I in particular, have the advantage of being able to see her in that room whilst the DVEC is taking place. She cannot see me. She cannot see what is happening in the Court because on the screen in front of her is the DVEC being played, and one would suspect that she does not even know I am in a position where I am able to see her, but she was clearly upset during the course of the DVEC, and it clearly raised emotions within her. That in my view tended to give some credibility to the versions that she gave….”

62. Counsel for the appellant challenged this reasoning, arguing that this indicated an irregularity. Counsel argued that the passage indicated that only the Magistrate, but none of the other participants in the Court room, could see the complainant as she gave the evidence. She further argued that there was little else in the Magistrate’s reasons to explain why he accepted the credibility of the PINOP. She also argued that even if the Magistrate had considered the appellant’s argument that the complainant had a motive to lie, in view of the subsisting family law proceeding, his Honour did not adequately explain why he accepted the complainant’s response to that challenge.

63. The appellant submitted that if these earlier grounds were not accepted, then the only potentially applicable consideration in s 16 was that the court was satisfied on the probabilities that the PINOP had reasonable grounds to fear the commission of a domestic violence offence against her (s 16(2)(d)). If that was the ground affecting the PINOP alone, then the Local Court was prevented from imposing prohibitions or restrictions on the appellant’s behaviour that went beyond those specified in an order under s 36, which constituted prohibitions upon the appellant:

(a) assaulting or threatening the protected person or a person with whom the protected person has a domestic relationship,

(b) stalking, harassing or intimidating the protected person or a person with whom the protected person has a domestic relationship,

(c) intentionally or recklessly destroying or damaging any property, or harming an animal, that belongs to, or is in the possession of, the protected person or a person with whom the protected person has a domestic relationship.

64. These might be regarded as the minimum, baseline conditions that would be imposed. When the terms of s 36 are compared with the conditions that were imposed, it was said that the conditions exceeded what was permitted. There were no reasons given by the Magistrate for the additional conditions (6 and 9) imposed. If any condition was to be imposed at all, it was sufficient that it be confined to condition 1, and then only in connection with the complainant.

65. Counsel for the appellant submitted if I was against her client in relation to the ADVO being for the benefit of the PINOP, then there was still no ground established whereby the orders might affect the children. Indeed subsequent events since the ADVO was imposed indicated that the orders were causing more harm than good to the children. I understood Counsel to be partly referring to the incident with the deodorant spray as an illustration, but also the appellant’s evidence generally to the effect that the children were excited to see him and devastated when they were forced to detach themselves from him.

66. In addition, in the earlier written submissions prepared by his then Counsel, it was suggested that the Local Court was required by s 42 to consider those arrangements, constituting, as they do ‘relevant parenting orders’. Those interim consent orders were made on 16 July 2025. It appeared to be suggested that those contact arrangements to some extent were impinged upon by the ADVO. The appellant submits that the Federal Circuit and Family Court was most appropriately positioned to have oversight over the extent of the appellant’s contact with his children. In effect, the Local Court should have ceded its purview.

The Crown’s submissions

67. The Crown submitted that the Court would find, on the probabilities, that the PINOP had reasonable grounds to fear, and in fact feared the appellant engaging in a domestic violence offence against her, being intimidation, and further that the appellant engaged in conduct that intimidated her and her children. This justified the making of the ADVO.

68. The Crown referred to the complainant’s evidence featuring an allegation that the appellant had assaulted the eldest child. It submits that it was therefore appropriate for the Court to consider the safety of the three children and ensure that the final ADVO protected not only the PINOP but also the three children. This was consistent with the statutory objects in ss 9(1)(a) and (b) of the legislation.

69. The Crown acknowledged the circumstance of contested family law proceedings in the context of co-parenting. This, it submitted, was a reason in favour of the imposition of a final ADVO, so as to reduce and prevent violence where it occurs a domestic relationship; rather than a reason for restraint or deference to the processes of the Federal Circuit and Family Court.

70. In the light of the fresh evidence adduced by both parties, Ms Crown reminded me of the broad definition of domestic abuse in s 6A(3) of the Act, which was capable of capturing a child’s exposure to domestic abuse perpetrated by one partner in a domestic relationship to another.

71. In considering s 6A(3) it is convenient to set out s 6A in its entirety:

(1) In this Act, domestic abuse means any of the following behaviours directed by one person (the first person) against another person (the second person) with whom the first person has a domestic relationship—

(a) violent or threatening behaviour,

(b) behaviour that coerces or controls the second person,

(c) behaviour that causes the second person to fear for the person’s safety or wellbeing or the safety and wellbeing of others.

(2) Without limiting subsection (1), engaging in, or threatening to engage in, the following behaviour may constitute domestic abuse—

(a) behaviour that is physically abusive or violent,

(b) behaviour that is sexually abusive, coercive or violent,

(c) behaviour that is economically or financially abusive,

….

(d) behaviour that is verbally abusive,

(e) behaviour that shames, degrades or humiliates,

(f) behaviour that is intimidation,

(g) behaviour that is stalking, or that directly or indirectly harasses a person, or monitors or tracks a person’s activities, communications or movements, whether by physically following the person, using technology or in another way,

(h) behaviour that damages or destroys property,

(i) behaviour that causes death or injury to an animal, or otherwise makes use of an animal to threaten a person,

(j) behaviour that prevents the second person from doing any of the following or otherwise isolates the person—

(i) making or keeping connections with the person’s family, friends or culture,

(ii) participating in cultural or spiritual ceremonies or practice,

(iii) expressing the person’s cultural identity,

(k) behaviour that deprives the second person of liberty, restricts the second person’s liberty or otherwise unreasonably controls or regulates a person’s day-to-day activities,

….

(3) Domestic abuse includes behaviour by the first person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour mentioned in subsection (1).

(4) Domestic abuse may, in the context of the relationship, be constituted by—

(a) a single act, omission or circumstance, or

(b) a combination of acts, omissions or circumstances over a period of time.

(5) Behaviour mentioned in subsection (1) or (2) may constitute domestic abuse even if the behaviour does not constitute a criminal offence.

72. I note, also, that conduct constituting ‘domestic abuse’ can also constitute a ‘domestic violence offence’ (s 11(1)(c)). I further note that one of the statutory objects of the legislative scheme is to “ensure the safety and protection of all persons, including children, who …. witness domestic violence” (s 9(1)(a)).

73. Ms Crown reminded me that there was evidence in the Local Court indicating not just verbal arguments per se, but verbal arguments that occurred in the presence of the children even after the PINOP had told the appellant to stop.

74. In relation to the relationship between the contact orders in the Federal Circuit and Family Court and the ADVO, Ms Crown noted that it was open to the former Court to make orders potentially more advantageous to the appellant, by the terms of condition 6(c). By implication, it was suggested that the more appropriate forum to seek variation was in the Federal Circuit and Family Court.

75. The Crown submitted that the existing orders, and conditions, were appropriate, extending both to the PINOP and the children.

Statutory provisions and principles

76. The principles applicable to appeals against an ADVO are not dissimilar to those which should be applied in appeals against convictions. The Crimes (Appeal Review) Act 2001 (NSW) (“the CAR Act”) applies to such an appeal as relevantly modified by regulations under that legislation: s 84(4), however there are no regulations, and to the extent necessary, adjustments have to be made to the operation of provisions of the CAR Act to accommodate appeals from APVOs: Garde v Dowd (2011) 80 NSWLR 620 (at [8]), per Basten JA (Giles and McColl JJA agreeing). Thus, as would occur in an appeal against conviction, for an appeal against an ADVO, this Court may exercise any function that the Local Court could have exercised in the original Local Court proceeding: CAR Act, s 28(2).

77. I summarised these principles in Bird at [10] – [12] and they were intended to reflect what was said in Dyason v Butterworth [2015] NSWCA 52 (“Dyason”) per McColl JA (Barrett JA and Gleeson JA agreeing) at [26]-[28]. Dyason concerning cognate provisions in relation to APVOs.

78. Under the statutory scheme, the Local Court needed to be satisfied of the pre-conditions in s 16(1). If (and only if) that state of satisfaction is reached, the question would then become whether the power to make the ADVO should be exercised and the duty to consider the matters in s 17(1) and arises: Mahmoud v Sutherland [2012] NSWCA 306 at [23], applied in Dyason at [29].

79. Section 16(1) provides that a Court may make an ADVO:

(1) …if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears—

(a) the commission by the other person of a domestic violence offence against the person, or

(a1) the commission by the other person of an offence under the Conversion Practices Ban Act 2024, section 5 or 6 against the person, or

(b) the engagement of the other person in conduct in which the other person—

(i) intimidates the person or a person with whom the person has a domestic relationship, or

(ii) stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

(2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if—

(a) the person is a child, or

(b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or

(c) in the opinion of the court—

(i) the person has been subjected on more than one occasion to conduct by the defendant amounting to a personal violence offence, and

(ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and

(iii) the making of the order is necessary in the circumstances to protect the person from further violence, or

(d) the court is satisfied on the balance of probabilities that the person has reasonable grounds to fear the commission of a domestic violence offence against the person.

(2A) An apprehended domestic violence order that is made in reliance on subsection (2)(d) cannot impose prohibitions or restrictions on the behaviour of the defendant other than those prohibitions that are taken to be specified in the order by section 36.

(3) For the purposes of this section, conduct may amount to intimidation of a person even though—

(a) it does not involve actual or threatened violence to the person, or

(b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

80. Section 17 provides:

(1) In deciding whether or not to make an apprehended domestic violence order, the court must consider the safety and protection of the protected person and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order.

(2) Without limiting subsection (1), in deciding whether or not to make an apprehended domestic violence order, the court is to consider—

(a) in the case of an order that would prohibit or restrict access to the defendant’s residence—the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made, and

(b) any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and

(c) the accommodation needs of all relevant parties, in particular the protected person and any children, and

(d) any other relevant matter.

(3) When making an apprehended domestic violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person’s property.

(4) If an application is made for an apprehended domestic violence order that prohibits or restricts access by the defendant to any premises or place and the court hearing proceedings in respect of the application decides to make an order without the prohibition or restriction sought, the court is to give reasons for that decision.

81. Without derogating from what I said in that earlier decision, in essence, I place myself in the position of the learned Magistrate and consider whether, on identifiable grounds, the appellant has established legal, factual or discretionary error. This requirement is not as demanding as might seem at first blush: if this Court is not satisfied itself that the requirements for an ADVO are fulfilled, then error will be inferred.

82. In exercising the Court’s appellate function, I am cognisant of the natural limitations of appellate review for appeals of the present kind, being rehearing on the transcript (supplemented by the fresh evidence) referred to by the High Court in Fox v Percy (2003) 214 CLR 188 at [23], including the advantage that the Magistrate had, especially in making credit based findings based on demeanour of witnesses and the advantage his Honour had in seeing all of the evidence unfold, rather than reviewing evidence on the transcript. The nature of appeals such as this is that the parties have a tendency to be selective in the evidence that they emphasise. Further, as the High Court said in Fox v Percy, factual findings based upon a preference for one witness’ evidence over another usually arise through demonstration of incontrovertible facts or uncontested testimony, or proof that findings are “glaringly improbable” or “contrary to compelling inferences”. I will henceforth refer to these as ‘Fox v Percy grounds’.

Consideration

Procedural complaints

83. Dealing first with procedural criticisms made by the appellant, I do not accept his submission, in effect, that the Magistrate did not substantially consider the ADVO application after dismissing the charges. Plainly he afforded the appellant’s then Counsel the opportunity to be heard on that matter.

84. The Magistrate plainly considered that application on the basis of the same factual matrix as that which generated the criminal charges; as is commonly the case and a course upon which no complaint was taken in the Local Court. Hence the Magistrate sought the prosecution’s express confirmation, which was given.

85. As to the ERISP, aside from the regrettable limitation of its reproduction, in the sense that it was only audible, the appellant’s criticism about the accuracy of the content, as reflected by the transcript reproduced in the Crown bundle was substantially weakened by his Counsel’s omission to point out specifically what those inaccuracies were or, as might have been expected, supplied the Crown and the Court with the version that he contended more accurately reflected what was said. This particular criticism, not alluded to in the appellant’s written submissions (which were apparently authored by the Counsel who appeared for the appellant in the Local Court), appeared to be something of an afterthought.

The PINOP

86. The Magistrate directed himself as to s 16 and the prosecution’s onus of proof which, his Honour correctly identified on the standard of the balance of probabilities. In particular, it is implicit in his Honour’s reasoning that he found, on the balance of probabilities, that an assault had been perpetrated by the appellant against her. Further, he found that she was scared of him. Accepting the PINOP’s account as his Honour did, that evidence included not only the emotional way in which she gave the evidence, but a feature of her description of the incident on 4 February, which involved her curling herself around the pillows in her bedroom – something which she said she had done on previous occasions. There were therefore reasonable grounds for her to fear, and she did in fact fear, the commission of a domestic violence offence against her, for the purposes of s 16(1)(a).

87. Somewhat unusually, in this appeal, I did have the advantage of seeing for myself the PINOP (when giving fresh evidence) and part of the evidence of the appellant (also when giving fresh evidence). Counsel for the appellant did not press the playing of the ERISP, which, as indicated, was only in audible form.

88. In an exchange with Counsel for the appellant relating to the credibility of the PINOP, and in particular her fears about the appellant, I inquired of the appellant’s Counsel what evidence she sought to rely upon which might indicate that favourable credit-based findings that the learned Magistrate made about her could be impeached on Fox v Percy grounds. Counsel for the accused did not refer me to evidence. Counsel did not refer me, in particular, to evidence in the appellant’s ERISP, or any other evidence in the record in the Local Court.

89. Though he may not have been specific in his explanation as to precisely why he formed positive views of the PINOP in the Local Court, in the context of an ex tempore judgment, I am unable to say that the Magistrate was wrong to make those positive findings about her credit generally, or the findings he made about her in connection with the preconditions in s 16.

90. Moreover, to reiterate, I also saw and heard the PINOP. I found that she did her best in answering the questions raised of her; even if they were limited in number and scope. She made concessions and did not try to embellish her evidence in a way evincing a design to damage the appellant.

91. Further, she was not challenged in that part of the fresh evidence which concerned her account that she had previously been not only verbally abused by the appellant but, further, had even been physically abused in one incident, albeit that this had occurred before the children were born.

92. Although invited to give evidence in response to what the PINOP had said when she gave fresh evidence, and unsurprisingly in view of the absence of challenge to the complainant in cross-examination, the appellant did not give evidence to the contrary of what the PINOP had said about earlier assertions of verbal abuse and an earlier assault. He had, instead, merely affirmed the correctness of what he said in his ERISP.

93. The appellant’s point about not having the advantage of seeing the PINOP in the part of the DVEC that was played is of no moment. I do not interpret the passage of the transcript emphasised by his Counsel as signifying that the Magistrate had exclusive access to seeing and hearing the PINOP’s DVEC. Again, this was not a point raised by the former Counsel for the appellant who appeared for him in the Local Court in the appellant’s written submissions. If the true position was that Counsel for the appellant in the Local Court was unable to see the PINOP’s DVEC, it would have been expected that she would have complained of that. There is no indication in the transcript (at T 6.21) that she did. After being played the DVEC (or the main portion of it), it was admitted without objection. At any rate, the point that the Magistrate was making was that at the time the PINOP gave her DVEC, she was in Muswellbrook police station, she came across authentically. Although the possibility that the DVEC might be used in Court was adverted to by the interviewing officer, there was no guarantee of that. She was told that if she lied to police she might be committing an offence. The Magistrate’s view of her authenticity in the part of the DVEC he saw aligned with my own view of her authenticity in the part of the DVEC that I saw. This point may also be put aside.

94. I do not regard as persuasive the appellant’s criticism of the Magistrate’s reasoning that rejected his challenge to the PINOP’s credibility for delay or because of a motive to lie. As to the delay aspect, his Honour deployed conventional reasoning to the effect that complainants might have reason to delay in making complaints and, with what was otherwise a favourable view of the PINOP, was entitled to accept her explanation for delay. As to her suggested motivation to lie, the Magistrate was also entitled to reject that argument and, at least as far as it was based upon the evidence that the PINOP gave in the Local Court, that has not been shown to be glaringly improbable or contrary to compelling inferences.

95. As I have elsewhere noted in these reasons, from what I saw of the PINOP, in the course of giving fresh evidence, and the subsequent cross-examination, I was impressed with her evidence; including the careful way that she listened to what she asked and her unwillingness to gratuitously damage the case of the appellant.

96. The appellant’s reliance upon Barwick does not assist him. The Liberato direction is specifically made for criminal proceedings and is a manifestation of the fundamental feature of criminal proceedings in which it is the Crown whom bears the onus of proof each of the elements of a criminal offence beyond reasonable doubt, without the defendant needing to prove anything.

97. The Magistrate’s task when determining the ADVO application, which he plainly evinced his awareness of, was to consider all of the evidence adduced by the parties, and weigh whether, viewed in its totality, it was more likely than not that the complainant believed, on reasonable grounds, the matters referred to in s 16. To be sure, even though the standard is not the criminal standard, it would be expected that the trier of fact would take into account, amongst other things, the gravity of the matters alleged that would sustain the application for an ADVO (s 140(2)(c) of the Evidence Act 1995 (NSW)). The trier of fact would also take into account consideration of the respective capacities of the parties to adduce evidence, under the rule in Blatch v Archer (1774) 1 Cowp 63. Since it is not an accusatorial proceeding, a person in the position of the appellant could be at a forensic disadvantage if they elect not to give evidence.

98. As I have indicated, Counsel for the appellant did not specifically draw my attention to the content of any part of the appellant’s ERISP. But as I read the Crown’s summary of that ERISP in the Crown’s written submissions (paragraph 23) (which preceded the appellant’s written submissions and whose accuracy drew no complaint by the appellant in the hearing of the appeal), it appears that whilst denying any physical violence, the appellant accepted that he had engaged in arguments with the PINOP. He appeared to accept that during the course of arguments, he and the PINOP called each other things. He accepted that the ‘practice’ as between himself and the PINOP was that when they did argue, they went to their bedroom, clearly in an attempt to limit the children’s observation of their arguments. He did not say, and probably could not say, that the children would, nonetheless, have been unaware of the arguments because of an inability to hear them. In substantial respects, although falling short of an admission of physical violence, these aspects of his evidence tended to corroborate what the PINOP asserted. Although one of the children who the prosecutor said was assaulted on 4 February 2025 did not give evidence, the PINOP’s evidence that the child came into the bedroom to ask her parents to stop was arguing was particularly plausible in the circumstances.

99. As I consider the PINOP’s evidence, augmented as it was by her fresh evidence, as well as the appellant’s evidence, and more pertinently, his omission to give evidence disputing what the complainant had said about earlier incidents of verbal and physical abuse of her, I consider that the learned Magistrate was correct to hold that the s 16(1)(a) precondition was established in relation to the PINOP.

100. No point was taken by the appellant in the Local Court, or in this Court, that the discretion in s 17 was not properly exercised. However, standing in the Magistrate’s shoes, and having regard to my own assessment of the facts, I have to consider the matter in s 17(1), including each of the matters in s 17(1)(a)-(c). Having done so, I find that the discretion to order the ADVO was correctly enlivened.

101. I did not understand the appellant’s Counsel to contend that, in the event that I found that an ADVO should be made for the PINOP, then the conditions imposed should be altered in her case in any way (the appellant’s position was only that the conditions were not suitable to the extent that they extended to the children). I regard them all as being appropriate.

102. As far as his appeal is concerned with the orders as far as they concern the PINOP, I would dismiss that appeal.

The children

103. Turning now to the children, there is force to the appellant’s submission that the Magistrate appeared to conflate their position with that of the PINOP, without explication. In fairness to the Magistrate, the children had also been nominated as persons who should be protected in the interim orders made on 8 July 2025, before the hearing in the Local Court.

104. I accept the criticism that the Magistrate’s reasoning was directed only towards the position of the PINOP and did not separately consider whether the preconditions in s 16(1)(b) or s 16(2)(d) applied. That is, his Honour did not consider whether the PINOP had reasonable grounds to fear and did fear that the appellant would engage in conduct in which the appellant intimidated the children, being persons with whom the PINOP had a domestic relationship (per s 5(1)(d)).

105. This Court, exercising the functions and powers of the Local Court must consider that question for itself, not only on the basis of what was in the Local Court, but also the fresh evidence heard on this appeal.

106. It is unnecessary, for present purposes, for me to consider, even on the balance of probabilities, that one of the children was assaulted by the Appellant on the evening of 4 February 2025, as the PINOP claimed she had been. In this respect, I note that for the purposes of s 16(3), it is unnecessary to establish intimidating conduct by reason of actual or threatened violence to the children.

107. Again, I take into account the Magistrate’ favourable view of the complainant’s credit, reinforced by my own view. Recognising the Magistrate’s advantage, I consider it more likely than not that one of the children did go into the bedroom on 4 February 2025 and remonstrated with the appellant and the PINOP to stop arguing.

108. Further, with the benefit of the fresh evidence given by the PINOP, I also find that the appellant had previously intimidated the PINOP in the presence of the children, in the sense of talking and ranting and following her around the home.

109. Further still, although the PINOP spoke only for her concern as to how the appellant’s behaviour towards her might likely play out in the future against the children, as they grew up (an illustration of her modest understatement which underscored her general credibility) objectively, as the Crown submitted, his conduct represented a present danger to their safety, as it amounted to domestic abuse within the definition.

110. In reaching this conclusion, I take into account the appellant’s evidence of his compliance with conditions to date, as well as his general evidence of positive experiences (save perhaps for the incident with the deodorant spray) with the children. I treat somewhat sceptically, however, his own perceptions of the children’s attitude towards him, as being inherently self-serving.

111. The appellant’s problem is that, in conformity with the findings the Court has made, I have trouble accepting that he has real insight into the effects of domestic abuse perpetrated upon the PINOP upon his children. It is not just a matter of whether or not he has, or will be, violent towards the PINOP, bad enough as that would be. Such lack of insight, as well the Court’s acceptance of the complainant’s evidence satisfies the Court that the precondition in s 16(1)(b) was also satisfied.

112. Accordingly, I do not accept the premise of the appellant’s argument about the children, being limiting the only ground to s 16(2)(d). It follows that I do not accept that the conditions are necessarily confined to the prohibition in s 36.

113. I now turn to s 17. This, again, was not something that the Magistrate adverted to in his reasoning when considering the extension of the ADVO to the children. Again, this Court has to step in to consider the exercise of that discretion. What is to my mind especially pertinent, with reference to s 17(1) is that even if the physical safety of the children may not have been endangered by the appellant, by reason of their being privy to domestic abuse perpetrated by the appellant against the PINOP, the children are at least indirectly affected by his conduct. I have considered the matters in s 17(2)(a)-(c) and find that the discretion to order an ADVO for the protection of the children was correct.

114. I turn now to the challenge in respect to the conditions, as they affect the children, arising from concurrent parenting orders of the Federal Circuit and Family Court. The Court was informed in the appeal that those orders were interim only.

115. As a first matter, I reject the submission in the appellant’s written submissions that the Magistrate did not consider the subsisting family law proceedings, or the operation of parenting plans put in place. What became condition 6 was not contained in the Interim orders. His Honour had an exchange about this with the appellant’s Counsel (12/9/25, T 25.21- 26.10). The only debate about conditions concerned condition 6 and that appears to have been inserted with an appreciation of those other proceedings. So much is indicated by the subject heading in the final order: “Orders about family law and parenting”.

116. The gist of the appellant’s complaint is that the conditions in the ADVO have been shown to cause difficulty. Because of the appellant’s job as a pool guard there are random possibilities of visible contact between the appellant and the children when the latter are in the company of the PINOP.

117. It was, I confess, somewhat unclear what the point was which the appellant was making about the incident involving the supervisor, one of the children and the deodorant spray; although it appeared to relate to the appellant’s evidence (which I reiterate was naturally self-serving), in effect, that the children are happy to see him and disappointed to be separated from him. The incident itself did not appear to concern difficulties in compliance with the conditions to the ADVO.

118. I accept that as a result of two sets of orders in different Courts there is some practical inconvenience, even awkwardness, to the appellant in going about his life and his contact with his children. The same applies, however, to the PINOP. It struck me that there was in this a conflation, or confusion, between the effects of the conditions to the ADVO and the interim orders made by the Federal Circuit and Family Court. But as Ms Crown pointed out, to the extent that the appellant’s real concern is that he is not seeing enough of the children, that is more the province of the Federal Circuit and Family Court then it is of this Court. The focus of the ADVO scheme is narrower. In this context, once the need for protection has been established under s 16, as I have found that it is in the case of the PINOP and the children, the focus of the inquiry is the regulation or management of the personal interactions between the PINOP and the appellant, and the interactions of the appellant and the PINOP when the latter is looking after the children.

119. Viewed in this context, I do not see any error in the imposition of the conditions that the Magistrate imposed, as far as they concern the children.

120. The appellant’s appeal is dismissed and the final ADVO ordered, with conditions, on 12 September 2025 are confirmed.

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