Wheeler v R

(a) A statement from police officer, Joshua McAnulty (Exhibit 1); and (b) A statement from Rebekkah Wheeler dated 18 May 2024 (Exhibit 2).

2. In Mr Wheeler’s case:

(a) Two statements from Jake Ronald Wheeler dated 23 July 2024 (Exhibit 3) and 23 January 2025 (Exhibit 4) respectively; (b) A statement from Rowina Wheeler, Mr Wheeler’s mother, dated 14 August 2024 (Exhibit 5); and (c) A statement from Bailey Smith.

4. Ms Wheeler, Mr Wheeler and Rowina Wheeler were all cross-examined. Mr Smith’s evidence was unchallenged.

5. Three events were relied upon by police in support of a contention that Ms Wheeler feared intimidation by Mr Wheeler and that those fears were reasonable. Those events were as follows:

6. Mr Wheeler’s attendance at a sporting event on 14 April 2024;

7. Mr Wheeler’s work truck being in Ms Wheeler’s street without any proper basis on 15 May 2024; and

8. Mr Wheeler’s attendance at a further sporting event on 17 May 2024.

9. Officer McAnulty took out a provisional ADVO to protect Ms Wheeler.

The Relevance of the Family Law Proceedings

7. It was always Mr Wheeler’s position that the Family Court orders for supervised contact contained nothing in the nature of a restraint or injunction, and that there was nothing preventing any additional contact as between Mr Wheeler and his children, in addition to the supervision orders.

8. Officer McAnulty accepted that when Ms Wheeler attended Taree Police Station on 18 May 2024, and he took her statement, she told him that there were Family Court orders which prevented Mr Wheeler from having contact with her or the children outside of the agreed supervised contact. Office McAnulty did not have those Family Court orders when he made the provisional ADVO and at no time did he read them in detail. He did not seek advice from anyone legally qualified about whether the orders prevented the contact between Mr Wheeler and his children, as Ms Wheeler had asserted.

9. However, Officer McAnulty, having read the orders dated 26 April 2024 by the time he gave his evidence, accepted that there was no statement prohibiting Mr Wheeler from having other contact with his children.

10. Her Honour remarked during the cross-examination of Officer McAnulty that the terms of the orders were not the basis of the case, rather what was relevant was what had occurred on the three dates. Her Honour accepted that the fact that Mr Wheeler attended per se was not the basis of the claim for the ADVO. Having accepted that the statement in the third paragraph of the ADVO application said that “there are current Family Law orders in place where there is to be no contact between Mr Wheeler and Ms Wheeler as well as no contact between Mr Wheeler and both children unless supervised” and where the prosecutor opened on that fact, her Honour noted that it was the “behaviour there is that we are concentrating on” rather than the terms of the Family Court orders.

11. However, inconsistent with that view, her Honour made findings on the issue in making the final ADVO. Further, in my view, her Honour’s findings were in error in a number of respects.

12. Her Honour remarked that the Court was not initially considering Mr Wheeler’s attendance at the sporting events on both occasions to be a possible breach of the Family Court orders. However, because this was clearly raised in the documents by the prosecution and clearly identified by the defence team, and where both parties had addressed on the issue, her Honour determined to do so. That ignored the concession on behalf of Ms Wheeler that there were no such restrictive injunctions on Mr Wheeler disentitling him from interacting with his children in the two situations in question.

13. Her Honour found that the Family Court orders made on 25 October 2023, 28 March 2024 and 26 April 2024 respectively did not explicitly state that Mr Wheeler could not have contact with his children outside the time specified in the orders, but held that by the making of a supervised contact order, implicit in the order is that the Family Court considers a risk of harm and has ordered the father to have contact only when supervised. That ignores, with respect, the low risk of harm of public interaction with his children and that the parenting orders were designed to restrict unsupervised access.

14. That said, her Honour accepted that in attending the football matches, “technically speaking, the defendant may not have been in explicit breach of the order” and held that “the actions by the defendant in interacting with the children would be indicative of a breach”. By having his children standing or sitting with him and/or speaking with his son face-to-face, her Honour held that this would indicate that the defendant has breached the orders because the Court has made an order that the only time he was to see the children was in supervised contact.

15. Her Honour held that Mr Wheeler appears to have completely disregarded this order when he made contact with the children. Having made that finding against him, her Honour appears to have determined that it was irrelevant and that she was not determining the breach other than by way of context.

16. As to the April 2024 rugby league gala day, her Honour again found that the orders were very clear and that Mr Wheeler breached the orders by speaking to the children at the gala day and that to do otherwise would made a mockery of the Family Court system and the Family Court orders.

17. Her Honour then held that Mr Wheeler, in attending the sporting events, “may not have technically breached the orders”. It was by way of background of the Family Court orders being ongoing, and the Family Court had set out limitations for the interactions between the defendant and his children when they made supervision orders. This does not inform any interaction with Ms Wheeler, the only relevant matter, and where there was no Court order in place restricting any contact with her.

Adverse Findings in Favour of Mr Wheeler

18. Despite Ms Wheeler’s statement describing her children and other family members being present when Mr Wheeler acted as alleged, Officer McAnulty did not seek any statements from anybody else.

19. In respect of the gala day held at the rugby league club in Port Macquarie, he made no inquiries of the organising club as to whether anything had been reported. Similarly, in respect of the gala day at Wingham on 17 May 2024, he did not make any inquiries of the rugby league club as to whether anything was reported on that day.

20. He made no inquiries as to any other witness that may have been present. He ultimately accepted it would have been appropriate in both incidences to have made some inquiries in relation to further witnesses, other than in the case of Rowina Wheeler. Her Honour made findings contrary to that concession, and where the prosecutor bore the onus of proof on the Briginshaw v Briginshaw [1938] HCA 34 (‘Briginshaw’) standard that it was open to either party to call the witnesses.

21. In my view, Mr Wheeler ought have been given the benefit of an adverse finding in respect of the case brought on behalf of Ms Wheeler that none of those witnesses would have assisted her case.

Ms Wheeler’s Evidence

The Family Law Background

22. Ms Wheeler gave the following evidence:

23. A previous ADVO as between she and Mr Wheeler had expired in August 2023.

24. The Family Law proceedings were yet to be finalised. The two had an interim order and the parties were due to go to hearing in April 2025 (some two months after the Local Court hearing). The parties were in dispute both as to a property allocation and the extent of contact between the parents and their children.

25. Ms Wheeler, who is not legally trained, held the belief that the Family Law orders prevented Mr Wheeler from having contact with her or the children other than in relation to supervised contact. She did not agree that there was nothing in the orders preventing Mr Wheeler from speaking with her or having any additional contact with his children beyond the supervised visits which were to occur at Interrelate in Taree. She formed that belief, not from the Court orders, but from information in an email from the Independent Children’s Lawyer. That email was not in evidence. Ms Wheeler had her own solicitor. At no time did Ms Wheeler allege in the Family Law proceedings that the orders had been contravened or breached.

26. The orders as at 14 April 2024 provided for the supervised contact at Interrelate. Those orders were changed on 26 April 2024 by providing contact with Mr Wheeler outside the contact center. Both those orders were made with the consent of the parties. There also then was to be time on each alternate weekend where the children were with Mr Wheeler supervised by a person by the name of Nakita or by Rowina Wheeler.

27. Provision was also made that if there was a need for Mr Wheeler to take the children to an activity outside of those times, seven days’ prior notice was required.

28. None of the matters the subject of these proceedings were raised in the Family Court proceedings.

The 14 April 2024 Allegation – Port Macquarie Gala Day

23. Mr and Ms Wheeler’s son was playing in the under 6 rugby league team at a football gala day in Port Macquarie. Ms Wheeler was the coach of that team.

24. There were a lot of people at the gala day and there were a number of games being played at once.

25. As the coach of a young team, Ms Wheeler was on the field, rather than on the sideline, to support the players while they played. The other team’s coach was also on the field. Usually, they also had a referee. If not, the coaches performed that role. Each ground had a ground manager, an adult from the organising club, who would be wearing a vest identifying who they were.

26. Ms Wheeler was at the ground with other members of her family, including her father, and a man referred to only as “Elliot” who she referred to as her daughter’s uncle but who in fact was the partner of a friend of hers.

27. Elliot was the person Ms Wheeler identified as the man to whom her daughter was forced to run whilst crying and running away as a result of the alleged abusive statement made by Mr Wheeler. Elliot was not nominated in Ms Wheeler’s statement. In my view, it was incumbent on Officer McAnulty to take evidence from Elliot given the relevance of his evidence. I have made an adverse finding that his evidence would not have helped the case put forward by police on behalf of Ms Wheeler. Similarly, Ms Wheeler’s sister, her mother and her sister-in-law were relevant witnesses who were nominated by Ms Wheeler as being present, but who were not called.

28. Ms Wheeler said that on seeing Mr Wheeler, she immediately said something to one of her family members about feeling that she had to move. She did not say who this was. She said that this was when she arrived, prior to the five or six games that were later played.

29. It was not initially clear on her evidence who arrived first. Initially, Ms Wheeler said that when she had arrived with the children, she had set up in front of the field where they were playing and that Mr Wheeler and his family had set up next to them. That was hardly surprising given that they were watching the same game.

30. Ms Wheeler said that she spoke to her “family member” again who she did not nominate and who was not called, and told them that she felt uncomfortable and that they had asked Mr Wheeler’s family to move. She said they moved locations, and Mr Wheeler’s family (including his father, Rowina Wheeler and his new partner Layla) followed and sat right behind them again.

31. It was suggested that Mr Wheeler did not sit behind Ms Wheeler at any time during the match, to which she disagreed.

32. It was also suggested that Mr Wheeler only moved from time to time to follow the team as they went from game to game, and that he did not follow Ms Wheeler. She denied this but later said she had misunderstood and that Mr Wheeler did move from game to game, but in between games Mr Wheeler’s group was sitting right behind them.

33. Ms Wheeler was asked whether during the period that Mr Wheeler and his family were sitting directly behind her if anything was said to her. She replied, “If I hadn’t mentioned that in my statement, then yes I agree.” That answer suggested that she had little recollection of that part of the evidence and was relying on what she said in her statement.

34. Their daughter was five years old at the time. Ms Wheeler said that just before approaching the field to commence a game, Mr Wheeler approached her daughter and asked her to sit with him. She said that they were on the field getting ready to set up for what may have been their last game from her recollection, although she was not sure. She thought that Mr Wheeler asked their daughter to come and sit with him. Ms Wheeler had already asked their daughter to sit with her uncle where the rest of the team who were not on the field playing were sitting.

35. Ms Wheeler said that at this point, Mr Wheeler verbally abused her in the presence of her mother, father, brother and daughter, as well as her under 6 team. None of those witnesses were called to support that account.

36. It was suggested that during the first game, their daughter went and stood with her father. Ms Wheeler was unsure about this. She said they were all bunched together.

37. At this point, Ms Wheeler’s evidence changed somewhat, making it clear that Mr Wheeler had been in the position first. She said, “We had just arrived. We were running a little bit late to take the field.”

38. As to whether or not Mr Wheeler or Rowina Wheeler were staring at Ms Wheeler at that time, she said that during the game she was on the field looking after the players. It was suggested on behalf of Mr Wheeler that during the second game, his daughter was still standing with her father and Ms Wheeler called her away. Ms Wheeler said that she was unsure if that had occurred.

39. Ms Wheeler said that at some point, in the presence of many people, including the team members, Mr Wheeler said to her, “Shut the fuck up, you loser.” She said that he said it directly to her in a very aggressive manner and tone, and that as he said it, he sort of took steps towards her. She said it was very aggressive. Ms Wheeler said that he said this in response to her reminding him of the Family Law orders and what the Independent Children’s Lawyer had told him about showing up. In her statement she said, “I spoke to Jake reminding him of the Family Law orders, and explained to him that this was not appropriate and was in breach of the orders.”

40. Ms Wheeler said that in response to her reaction, their daughter had “taken off” over to her uncle, Elliot, the other coach who she said was sitting at the sideline.

41. In her statement, Ms Wheeler said that she spoke to a number of male acquaintances that were affiliated with the same rugby club. However, in her evidence, this turned out to be only one other male, their own under 7 coach. She said she did not tell him what happened. When asked the name of the under 7 coach, Ms Wheeler said that this was Elliot, inconsistent with her earlier evidence that he was the assistant coach of the under 6 team. Ms Wheeler corrected herself but did not provide the name of the person with whom she said she spoke.

42. Ms Wheeler did not approach a ground official or a ground manager at any point in relation to what she said had happened. She said she told her parents, her sister, the other coach Elliot and her sister-in-law. None of them were called to give evidence.

43. When asked to confirm their presence she said, “They were near him, yes, that’s correct.” She did not mention in her statement that they were present. When asked about what she meant by them being “present”, she said they were in the general area, being in the vicinity. She then said, “A couple of metres, not even. Yeah, two metres.” She agreed this was not in her statement. In those circumstances, it was incumbent upon the prosecution to identify those witnesses and to take statements.

44. Ms Wheeler contacted police by telephone on 14 April 2024. She said she told police about what had happened. No action was taken other than that police made a call to Mr Wheeler.

The 15 May 2024 Allegation – The Presence of the Truck

45. In her statement, Ms Wheeler said that she saw a truck in her street at 12.45pm on 15 May 2024.

46. The statement of Bailey Smith dated 23 July 2024 was unchallenged and makes it clear that Ms Wheeler’s allegations about seeing Mr Wheeler’s truck in her street, evidence about which there can be no room for mistake, cannot be true.

47. It was suggested that Mr Wheeler’s truck was not in her street at 12.45pm on 15 May 2024. Ms Wheeler disagreed.

48. Ms Wheeler said that that she was on her lunch break and that she recognised the truck as it had signage on it, including Mr Wheeler’s business name. She said that it said “JW Electrical” or “JW” and that it was a truck that he had had for some time prior to the separation.

49. Importantly, so far as it undermined her credibility as an honest and accurate witness, there was no suggestion by Ms Wheeler that she could have been mistaken. She said again when challenged, “I just saw the truck and identified the markings on the truck as his work truck.” This evidence could not possibly be true.

The 17 May 2024 Allegation – Wingham Gala Day

50. According to Ms Wheeler, she was again coaching her son’s team. She agreed that there were a number of other people around. Ms Wheeler was with the rest of the team, some of the parents from the team, and the other coach, Elliot.

51. Ms Wheeler said that Rowina Wheeler approached her and asked which field they were playing on. Ms Wheeler said she did not respond to her as she has “no relationship with her” and she walked away. Ms Wheeler said she was with another parent of one of the team members who was standing there. That was not in her statement and again, the person was not nominated.

52. Ms Wheeler alleged that that Mr Wheeler and Rowina Wheeler were directly across from her at the field where the game was taking place, sitting at the goal line at the end of the field.

53. In her statement, Ms Wheeler said that throughout the night, Mr Wheeler and Rowina Wheeler stared directly at her, making her feel uncomfortable. She asserted that both were staring at her prior to the game commencing. She later said that she could “feel them staring” and where they had placed themselves, she could, if she looked over, feel them staring at her almost, likely intimidating her. She went on to explain that it made her very uncomfortable, especially when she was coaching. She said she had to face them in the first half. She said that when she looked over, she could see them staring at her. She did not know if they were looking at her the whole time, only on the occasion, or “at times” when she looked at them. She did not know if this continued when the game ended.

54. As to whether they were staring at her or looking at the game, the evidence is entirely equivocal. Ms Wheeler agreed that she was either in proximity of the players where the game was taking place or would stand behind the children giving them direction, putting her in line with Mr Wheeler or Rowina Wheeler and the game. In evidence that was difficult to accept, she disagreed that they could have been looking at the game rather than at her.

55. Ms Wheeler said that she was standing with a parent from the football team and that they would “sort of mention it in passing”. Again, she did not name them or put that information in her statement even though she said she knew their name, and she agreed that it was a relevant matter.

56. Ms Wheeler said that she considered during the match asking another coach, who she later said was Elliot, to take over from her and that she was going to leave the grounds as she was fearful for her safety. She said she did not do so as she was coaching her son. She said that at half time, she made Elliot aware of what was happening, that they discussed that if she felt to the point where she could no longer go on, he would take over and she would leave.

57. It is clear that Elliot is an extremely important witness in both of the sports day interactions. He was not called and none of this information was in Ms Wheeler’s statement. She accepted it was an important detail. Mr Wheeler is entitled to the benefit of an adverse inference against Ms Wheeler in respect of the police case.

58. Ms Wheeler said that at halftime and at the end of the game, Mr Wheeler began to call out to their son, asking him to come over and sit with him. It was suggested that Mr Wheeler was shouting encouragement. She said she was unsure as she was coaching.

59. It was suggested that after the game, their son went over to where Mr Wheeler was and Mr Wheeler gave him $5 for playing well. She said that her recollection of it was that other boys and their parents had gone over there and that their son had followed. She did not know what happened in respect of the money. I pause to reflect that it is difficult to find a breach of the Family Court orders even on a construction most favourable to Ms Wheeler in that context.

60. Again, match officials were present at the field from the Wingham club. Ms Wheeler did not approach them. She said that this was because she was not sure if she could trust them, given Mr Wheeler’s relationship with the club. In those circumstances and where she was not cross-examined on that issue, I did not draw any adverse inference against Ms Wheeler in respect of those witnesses or her reasons for not talking to them.

61. Ms Wheeler said however that she waited with a group of parents from her team, and they were similarly not called.

Mr Wheeler’s Evidence

The Family Court Orders

62. Mr Wheeler agreed that the parenting plans in place on Sunday, 14 April 2024 required him to have supervised visits with his children at Interrelate. He agreed that the parenting orders subsequently changed to allow less restriction for supervision. He said that that change arose from positive interactions with the children at all the visits, positive reports and the completion of some parenting courses.

The 14 April 2024 Allegation – Port Macquarie Gala Day

63. Mr Wheeler went to the rugby league gala day at Port Macquarie, knowing that his son had a game. His son told him he would love him to watch, but he was already going because his partner Layla also had children attending.

64. Mr Wheeler saw Ms Wheeler at the gala. He denied making a considerable effort to “sit in her close vicinity”.

65. It was suggested that after Ms Wheeler sat, that he sat behind her, that she moved away and that he followed her, again positioning himself directly behind her. He denied that. It was suggested that Mr Wheeler had wanted to make his presence known to Ms Wheeler, persistently following her and positioning himself in a way that she could see him. Again, he denied that.

66. Mr Wheeler was again taken back to the provisions of the parenting orders for supervised visits. It was suggested that he approached his daughter and asked her to sit with him. He did not agree. He said that she ran to him as he was walking towards the football field to watch his son play, and that in that context, they interacted.

67. It was suggested then that Mr Wheeler approached the field to commence a game and that Ms Wheeler was at the field, lining the kids up, and that he approached his daughter, asking her to sit with him, and that at that moment, Ms Wheeler reminded him of the Family Court orders. Mr Wheeler denied this, saying that Ms Wheeler called out to their daughter to hop off her lap and move.

68. He denied saying “shut the fuck up, you loser” and denied that their daughter began to cry.

69. It was suggested that Ms Wheeler then removed herself again from the situation for the second time because of Mr Wheeler’s behaviour. He said, “no, the game played, which she is coach of” and that she coached it. In my view, his evidence is more consistent with Ms Wheeler’s role on the day.

70. Mr Wheeler said that that afternoon, he was heading out west for work when he received a call from a police officer in Taree asking about the event. He explained to him his side of the story and “the officer said that there does not seem like there is anything to, like, warrant any other issues, and then it was – that was it”. That is consistent with no ADVO being put in place at that time and I accept the evidence, where the officer was not called and that part of the evidence was not challenged. It provides evidence of Mr Wheeler’s immediate denials of what was alleged.

The 17 May 2024 Allegation – Wingham Gala Day

71. Mr Wheeler agreed that he was present at the Wingham football field, together with Rowina Wheeler, his father and brother.

72. Mr Wheeler said that he was sitting as far away from the field as he could but where he would still be able to watch the game. That is unsurprising given the telephone call that he had had with the police officer. It is also consistent with him sitting at the end of the field, and I accept that this was his intention; that is, that he was trying to make an effort for there not to be an issue with contact.

73. Mr Wheeler denied making any conscious effort to look in the direction of Ms Wheeler. I accept that evidence, particularly where she was so involved in the game that he was watching and where, if he had wished to intimidate Ms Wheeler by staring at her, he could have seated himself closer to her.

74. Further, nothing has been said in the context of the Family Court proceedings that Mr Wheeler had been trying to intimidate Ms Wheeler.

75. Mr Wheeler denied that he and Rowina Wheeler were both staring directly at Ms Wheeler.

76. He denied that he had a persistent need to make his presence known to Ms Wheeler or that he had positioned himself in a way to make Ms Wheeler know that he was there.

77. I accept that Mr Wheeler’s evidence would be sufficient to deal with this matter, however, I turn now to the evidence of Rowina Wheeler.

Rowina Wheeler’s Evidence

The 14 April 2024 Allegation – Port Macquarie Gala Day

78. Rowina Wheeler said that she was watching the gala day and that she sat with Mr Wheeler the entire time. When challenged, she said that they were together most of the day with the whole family. She said that she was sitting with him watching the games. She said that from the moment they arrived until they left, he was always in the vicinity. She agreed, however, that there were probably times when Mr Wheeler was not standing right beside her. She explained that they were together all day, but not necessarily standing right beside each other.

79. She confirmed that when they arrived, she saw Ms Wheeler and her family. It was suggested that at that point, that is, when they arrived, that they sat behind Ms Wheeler and her family. She explained that it was under a tree because there was no shade at the ground other than under the trees, consistent with the families being bunched together.

80. It was suggested that Ms Wheeler then left and sat elsewhere. She denied this saying “No, they were sitting because her mother and father were set up with the tables and chairs.” That evidence as to the set up was not challenged.

81. Rowina Wheeler confirmed the evidence that Mr Wheeler’s daughter approached him several times. Indicative of an honest witness trying to do her best, she agreed that Ms Wheeler reminded Mr Wheeler of the Family Court orders. She said that she heard Ms Wheeler say that. She said that Mr Wheeler did not say anything in response. That leaves open the possibility, consistent with Mr Wheeler’s evidence that he did not hear her say this.

82. Consistent with Mr Wheeler not hearing what had occurred at the time, Rowina Wheeler said Mr Wheeler was sitting down on the ground with her husband, and that she was standing. It has not been necessary to resolve that dispute.

83. What is clear is that she did not agree that he said the abusive words attributed to him. I am not satisfied, where Ms Wheeler bears the onus, that the words were said.

84. Rowina Wheeler also denied that whatever had been said, that their daughter cried and ran away.

85. It was suggested that at this point, Ms Wheeler also left. This was also denied. Rowina Wheeler said “No, she was coaching. She was in the middle of the field.” This was consistent with Mr Wheeler’s evidence.

The 17 May 2024 Allegation – Wingham Gala Day

86. Rowina Wheeler was also present at this event. She agreed that she approached Ms Wheeler and asked what time they played. According to Rowina Wheeler, Ms Wheeler said she did not know.

87. Rowina Wheeler said that she and Mr Wheeler then sat with her husband and her other son.

88. It was suggested that throughout that time, she made an effort to stare at Ms Wheeler. This was denied in her statement and in her evidence. She responded to that suggestion that, “She is the coach in the middle of a field of children and they are playing.”

89. It was suggested that when she was staring at Ms Wheeler, there were times when the children were not directly around her. She disagreed. She made it clear that she was not staring at Ms Wheeler.

The Case Against Mr Wheeler

90. The reasonableness of Ms Wheeler’s fears depended on me accepting Mr Wheeler’s persistent behaviour of appearing and making his presence known to Ms Wheeler, accepting that abusive words were said, and accepting her belief that he was in breach of the parenting orders, and that those fears were reasonable. It was accepted by the police that there was no positive notation of a restriction on contact and there was no evidence that she ever raised any breach in the Family Court proceedings.

91. In my view, the Family Court orders cannot be interpreted, as her Honour did, as prohibiting any contact between Mr Wheeler and his children outside of the parenting orders. They were dedicated to Mr Wheeler’s parenting of his children whilst supervised. Had he been banned from interacting with his children in any way in public and with others present, including their mother, I would have expected a clear prohibition. Most relevantly, they are so unclear as to be unable to conclude that Mr Wheeler knew he was in any way in breach, the relevant matter for my determination.

92. Her Honour identified the right test, albeit on the balance of probabilities, that in relying on Briginshaw, the Court was required to form a positive belief that the events occurred, not just a preference for one version over another. However, her Honour’s application of the principle to the facts were, in my view, in error for the reasons I have identified.

93. It was suggested that Ms Wheeler was honest and forthright. I am cognisant that the Local Court Judge had the benefit of assessing the witnesses. However, I have not been able to agree with her Honour.

94. In respect of the presence of Mr Wheeler’s truck in her street, she was adamant, compelling and gave detail, but was wrong. Without the evidence of Mr Smith, one might have accepted her evidence given the persuasive way in which she gave it. The evidence of Mr Smith results in her credibility being significantly damaged, in my view.

95. Furthermore, when it came to nominating anyone who had witnessed what she said had occurred, I found that the answers were avoidant and inconsistent, and provided almost no detail, even when pressed. No witness was called to support her. The extent to which she accepted that certain things were not in her statement, a matter that impressed the Local Court Judge, in my view, could hardly be avoided. I did not regard that as a hallmark of an honest and accurate witness.

96. Conversely, the criticism of Mr Wheeler as being somewhat guarded in his evidence was without detail. I did not read that from the words on the page. The fact that he rejected the proposition of his appearance and attendance at the football games to be one to put Ms Wheeler on notice was entirely consistent with his Rowina Wheeler’s evidence, and consistent with them, for example sitting at the far end of the field.

97. The police, on behalf of Ms Wheeler, relied on Rowina Wheeler’s concession that she was looking at Ms Wheeler during the game on 17 May 2024. That ignores her clear denials that that was anything other than coincidental with Ms Wheeler being in the middle of the game they were watching, something everyone accepts she was. One cannot have a bet each way to describe Rowina Wheeler as “honest” for the evidence that fits with Ms Wheeler’s case and “guarded” on the evidence that does not.

98. On behalf of Mr Wheeler, it was drawn to the Local Court Judge’s notice that there was a false premise that the Family Court orders prevented Mr Wheeler having contact with his children other than as provided by the orders. The prosecutor on behalf of Ms Wheeler appeared to agree, and said rather that Ms Wheeler could not be criticised as a non-lawyer for interpreting them that way. I agree, but similarly, in my view, Mr Wheeler, had every reason to think he could interact with his children at the football gala days. Any fear by Ms Wheeler that Mr Wheeler was breaking Court orders was not reasonable and I am not satisfied that this was her belief, given that nothing was said in the context of later making the orders less restrictive. I do not find that he deliberately breached them in order to put Ms Wheeler in fear or even that her fear was reasonable in that regard.

99. The most cogent piece of evidence of reasonable fear, if accepted, was the abusive statement said to have been made on 14 April 2024 at the Port Macquarie gala day. Mr Wheeler denies that he said it. Rowina Wheeler, who was nearby and heard the words stated by Ms Wheeler immediately beforehand, did not hear it. It was not put to Rowina Wheeler that Mr Wheeler stepped forward as alleged or that he did so in a way that was intimidating. Rather, her unchallenged evidence was that he was sitting on the ground nearby with his father.

100. Her Honour said that as to the words attributed to Mr Wheeler to the effect of “shut the fuck up, you loser” after she reminded him of the Family Court orders, that Ms Wheeler was consistent in her evidence, including under cross-examination. That is true. Her Honour referred to the fact that Mr Wheeler’s evidence that Ms Wheeler did not remind him of his Family Court orders was inconsistent with the evidence given by his own mother Rowina Wheeler, and that the Court therefore had concerns with its credibility. Her Honour did refer to the fact that Rowina Wheeler said that Mr Wheeler did not say anything in response, but did not make a similar finding undermining Ms Wheeler’s evidence. Indeed, as I have found, it may be that Ms Wheeler said the words about the Family Court orders, but not necessarily to or in the hearing of Mr Wheeler.

101. In my view, Ms Wheeler’s adamance that the words were said is no more compelling, absent any corroboration, than her adamant evidence that Mr Wheeler’s truck was in her street, something that has been positively proven to be untrue.

102. The evidence from Ms Wheeler that she spoke to her very close friend, Elliot, who is known as an uncle, about the statement and that he was involved in their running to him crying was also unconvincing, particularly where he was not called. His name was used by Ms Wheeler for the first time in cross-examination. There is no statement from Elliot in circumstances where the evidence was highly relevant. The adverse inference against Ms Wheeler’s account is again, particularly in light of Rowina Wheeler’s evidence, sufficient to dispense with it.

103. Despite the two very public events, there was no evidence to support Ms Wheeler, except the fact that she mentioned to Mr Wheeler something about the parenting orders, to which he said nothing, and that at some stage they were seated behind Ms Wheeler, all seeking shade.

104. As to the incident in the street, her Honour held that it was credible that Ms Wheeler believed Mr Wheeler’s truck to be in her street, and excused the clearly unbelievable evidence down to stress of the ongoing Family Court proceedings and where there had already been the incident where Mr Wheeler had approached her. The difficulty with that finding is that Ms Wheeler did not accept that she had misinterpreted a truck in her street under stress of the previous interaction with the Family Court proceedings. In my view, that is entirely speculative. Indeed, Ms Wheeler steadfastly held onto evidence that clearly could not be true, thus undermining her evidence. The Local Court’s rejection of Ms Wheeler’s account without it tarnishing her credibility was hard to fathom, other than to hold it in her favour against the evidence.

105. The incident on 17 May 2024 and her Honour’s finding that Mr Wheeler and his family were staring at Ms Wheeler was not consistent with the evidence. Ms Wheeler herself acknowledged that this was something that she felt, in circumstances where she was in the thick of a match that they were watching. Mr Wheeler was not challenged as to his evidence that he had deliberately tried to remove himself as far as he could in order to not to cause any problems. Ms Wheeler’s consistency as to feeling uncomfortable and her fears rely on accepting that Mr Wheeler had previously spoken aggressively to her and in the context of an ongoing Family Court dispute. Just how a dispute in the Family Court could make it more likely that Mr Wheeler was deliberately staring at her or more likely that her fear was reasonable was not clear.

106. Most importantly, in my view, her Honour was in error when she held that Rowina Wheeler did not deny that she had stared at Ms Wheeler. She clearly did so. Further, it was not suggested to Rowina Wheeler that she did so with any intention to intimidate Ms Wheeler.

Decision

107. The evidence, in my view, falls very short of justifying the Court’s orders for protection.

108. It follows that I am not satisfied that Ms Wheeler had reasonable grounds to fear Mr Wheeler.

109. Furthermore, there is no evidence that Ms Wheeler continues to fear Mr Wheeler, if she ever did. The events took place some time ago. There have been no further incidents and there is no new evidence of ongoing fear.

110. There are not sufficient grounds for the making of an ADVO even if I was to accept Ms Wheeler’s evidence that at two football gala days she felt uncomfortable in her ex-husband’s presence.

111. I allow the appeal and decline to make the ADVO.

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Amendments

03 February 2026

Amendment to the appellant's name

04 February 2026

Grammar