WJ v AT [2016] QDC 211

[2] Section 168 of the Domestic and Family Violence Protection Act 2012 (Q) ("DFVP Act") provides that an appeal must be decided on the evidence and proceedings before the Court that made the decision being appealed, however the appellate court may order that the appeal be heard afresh in whole or in part.

District Court of Queensland|2016-08-19|Before: Mr P

Sarah Cleeland Family Lawyers for the first respondent

Legal Unit of the Queensland Police Service for the second respondent

[1] This is an appeal against the decision of the Magistrates Court at Cleveland on 18 December 2015, whereby the Magistrates Court made a domestic violence protection order against the appellant in favour of the first respondent and three named children. The appellant also appeals the decision of the Court to dismiss his application for an order against the first respondent.

[3] In conducting this appeal it is appropriate to conduct a real review of the material and reasons below paying due regard to the views of the magistrate.[1]

[4] It is noteworthy that s 145 of the DFVP Act provides that in a proceeding under the Act a court is not bound by the rules of evidence and may inform itself in any way it considers appropriate. If the Court is to be satisfied of a matter the Court need only be satisfied of the matter on the balance of probabilities.

[5] The powers of the appellate court are set out in s 169 of the DFVP Act. It provides:

"(1) In deciding an appeal, the appellate court may-

(a) confirm the decision being appealed against; or

(d) set aside the decision appealed against and remit the matter to the court that made the decision."

[6] The incident before the Court occurred on 14 August 2015.

[7] Exhibit 21 is the application for domestic violence order by AT.

[8] In Exhibit 19, the Police notebook, AT said that after the Police had left on 14 August 2015, the appellant started to say "what lies have you caused now and you're a lying slut", he was pointing his finger in her face. He then received a phone call and went to the kitchen. He raised his hand at her and pushed a cupcake in his closed fist. The first respondent told him to leave her alone. He continued to follow her around the house with a camera and kept saying that the respondent was a fraudster. He then came into the room where their son, MJ, was trying to go to sleep. He was trying to get her to talk to his mother. He then rubbed his beard against her eye area. The first respondent then called 000. The appellant then received a phone call and walked away downstairs. The first respondent was in the lounge room playing with the boys and he took the first respondent's phone out of her pocket which was recording their conversations. The first respondent screamed at the appellant, "give me back my phone", he then ran off outside and she ran after him trying to get her phone back. She reached around trying to get the phone and she may have stretched his shirt and scratched his arm during the struggle. The appellant then pushed her and she felt like he was going to push her down the stairs. She jumped on his back and he then threw her off onto the bonnet of the car. He then said "I'll punch you, I'll punch you". They struggled more and he ripped his shirt and walked off down the street. The first respondent then called 000 from her other phone. She then waited for the Police and 20 minutes later called to see where the Police were and that's when the Police turned up.

[9] In the past they had had physical struggles where he had grabbed her neck and he threatened that she would not get custody of the kids. She was fearful of him because of his violence and aggression.

[10] In her formal statement to the Police dated 26 October 2015,[2] the first respondent said that she had been in a relationship with the appellant for four years. They had two children together, DJ who was three and MJ who was two. There was another daughter, LS, from a previous relationship who is eight. All three children have lived with the first respondent since she moved out of the house on 14 August 2015.

[11] On 9 July 2015, the appellant kicked LS out of the house after the first respondent had a conversation with her father on the phone. LS would not tell the appellant what the conversation was about and the appellant started hitting her across the head. The first respondent immediately intervened and the appellant hit her on the arms twice. After that day, the appellant was not talking to the first respondent.

[12] On 22 July 2015, the appellant said to the first respondent "show me your bank statements". He wanted her to send him $200.00 to his bank account and she refused. The appellant started accusing her of being a fraudster and said she was hiding money from him. After that date, they had visitors stay at the house for a number of nights. The appellant would act normally whilst the visitors were staying but the moment they left he began arguing with the first respondent and became aggressive towards her.

[13] At about 9pm on 14 August 2015, she was baking in the kitchen. The appellant started rubbing himself against her and she said "no". He was very intoxicated. He said "why can't we be fucking buddies because you hate me and I hate you". He then snapped. He started pacing backwards and forwards in the house. She heard the appellant call the Police saying "she's pushing me she pushed me in the stomach"[3]. The first respondent was nowhere near him and the kids were playing on the floor. He started videotaping her saying "you are a fraudster". Shortly after this the Police arrived. The appellant was upstairs when the first respondent saw the Police. The first respondent spoke to the Police who then spoke to the appellant. Shortly afterwards the Police left the house and as they were leaving the appellant came up the stairs pointing his finger in her face saying "what lies have you told now you lying slut". She didn't say anything back.

[14] He then ran downstairs and took photos of the Police who attended.[4] The Police then left.

[15] When he went back inside he made a call to his father and then went back outside. The first respondent continued baking and the appellant came back upstairs and was on the phone to his mother. All of a sudden he came at her with his chest forward, raising his hand as if he was going to punch her. She told him "get away from me and leave me alone". The appellant was very angry and was scaring her. The first respondent managed to walk away from him and put the kids to bed. She had her phone in the pocket and started the recording function. The appellant followed her to the main bedroom whilst she was breastfeeding MJ. The appellant was trying to get her to talk to his mother who was in Canberra, she was on speaker screaming "bitch get out of my house". The appellant then rubbed his beard against the first respondent's right eye and she screamed as she was scared and was concerned he was going to continue with more violence. He then went outside. She ran to the bathroom while holding MJ and called triple 000. MJ and DJ were both frightened and crying. The children and she went to the lounge room where they were playing on the floor. The appellant came back upstairs and changed SD cards in his camera. He put one on top of the cabinet above the fridge and another on the back table in the dining room. He was on the phone to his mother again. She heard him and his mother talking about her and abusing her whilst she was playing on the floor with the kids. She continued to ignore him and spent time with the kids. After the appellant got off the phone to his mother he came to where she was on the floor, reached into her pocket and grabbed her phone which was still recording. The first respondent screamed "give me my phone back", the appellant ran outside and she followed him to get the phone back. She reached around him to get the phone and they both struggled. She felt as if the appellant was trying to push her down the stairs. She jumped on his back and he ran down the stairs where he threw her onto the bonnet of the car threatening to punch her. They struggled for a little while longer and with his own two arms he ripped his own t-shirt and ran up the street with phone. The first respondent ran back upstairs and called triple 000 from another phone. The children were frightened and screaming. She couldn't breathe very well. The operator told her to calm down and settle the children and that the Police were on their way. The same two Police arrived. The first respondent told Mel, the Police officer, what happened and that the appellant still had her phone. The Police spoke to the appellant and told her they would be taking him away for a domestic violence application. While he was away she packed up the children, got some clothing and left the house. She was very fearful of the appellant because of his violence, excessive alcohol consumption and aggression.

[16] In her affidavit dated 4 December 2015,[5] AT denied various allegations made in the appellant's affidavit. She also swears that she sustained injuries in the altercation. Namely bruises as a result of being thrown onto the car. She annexes photographs of this and a medical report by a GP. Also, she swears that the appellant forwarded her personal emails to others and posted screenshots of her bank statements and a private conversation on Facebook. She also says that LS was called a bitch and a cunt by the appellant and she was regularly excluded from being a part of the family. The appellant continued to reside in the house whilst she had left with the children. She swore that the appellant "death stares" her in the Federal Circuit Court and on 29 September 2015 yelled out at her when the proceedings were mentioned.

[17] In cross-examination the first respondent conceded that various government benefits were paid into her bank accounts.[6] She denied that she was not going to tell the appellant that she received the money. She said that he knew that she received the money which was her only income. She accepted that on 14 August 2014, the appellant started videotaping her saying she was a fraudster.[7] She said the appellant was constantly changing SD cards that night. She said the appellant stole her phone out of her pocket.[8] She said the appellant nearly pushed her off the stairs. She said that she jumped on his back because he was going to push her off the stairs.[9] She accepted she may have scratched the appellant's arm but denied grabbing his shirt.[10] She denied that the appellant had said that he paid for the phone. She said that the appellant threatened to punch her and raised his hand.[11] She said she was injured on her back after being thrown onto the car bonnet and had bruises on her arm.[12]

[18] Senior Constable Matthew Searle, in his Police statement dated 28 September 1986,[13] gave evidence that at 9.30pm on 14 August 2015 he attended the address with Sergeant Wayne Richter to assist another general duties crew consisting of Constable Melanie Fuglevik and Constable Adrian Solah. Sergeant Richter and he had a conversation with the appellant who was displaying indicia consistent with high levels of intoxication. He smelt of alcohol, was slurring his speech, had trouble maintaining eye contact, and was extremely argumentative. He saw a number of empty green bottles of Grolsch beer in the kitchen. After the conversation it was decided that a domestic violence referral report would be entered.

[19] Police re-attended the address after a further complaint of domestic violence. Officer Searle took up with the appellant who had a large horizontal tear across the front of his navy polo shirt. He had redness and a scratch on the inner right bicep and a scratch on his inner left elbow. He was still intoxicated. He had a conversation with the appellant which he recorded in his notebook. This was tendered as Exhibit 1.[14] The appellant told the Police that at about 10.30pm, he was with his partner, AT, and their two children. Police had attended about 10 to 15 minutes before this. He was in the living room and AT said to him "I'm gonna go to the bedroom and you will leave me alone". The first respondent went to the bedroom with their two boys. The first respondent tried to put MJ down. He was walking down the hallway and the first respondent started yelling in the bedroom "don't point a finger in my face don't you touch me". The appellant walked into the bedroom and said "it's gonna be like this is it". The first respondent pushed him in the chest with both of her hands which moved him slightly backwards.[15] He probably said "you bitch" and then walked into the hallway and outside. He was outside for five minutes and then came back inside where the respondent was playing in the lounge room with both of the boys with Lego blocks. The appellant said "what are you doing?". The first respondent was kneeling and then jumped up and yelled "don't touch me" and shoulder barged him out of the front door. She kept pushing him in the chest against the railings and he lost his balance and quickly moved down three stairs backwards. At some point during this the first respondent tore the front of his shirt and scratched his biceps. He went downstairs for a walk to get away from her. As he was walking back to the house he saw four Police approaching who observed his injuries and the tear to his shirt.[16]

[20] The appellant was then detained and transported to the Cleveland watch house for the purposes of Police completing an application for domestic violence. Two memory cards which Police had taken from the first respondent were provided to him. He viewed the contents of these memory cards at 4pm on 15 August 2015.

[21] In evidence he said that after he had viewed the footage it was copied onto a USB and DVD disk to be provided to the defence and prosecution.[17] The recordings were played to the Court. The blue USB was marked as Exhibit 2.[18] Another USB was marked as Exhibit 3.[19] I will deal with the contents of these shortly.

[22] In cross-examination the witness conceded that he had made a mistake in the date of his statement.[20] He agreed that in his statement he said the appellant had contacted Police communications stating that the first respondent was threatening to leave the address and take his children.[21] He said this was an earlier incident. The reason he went back to the address at 9.30pm was to assist the other crew. On both occasions the appellant was displaying indicia consistent with intoxication.[22]

[23] Constable Melanie Fluglevik was also called to give evidence. In her statement dated 16 November 2015, she says that she attended the relevant address at about 9.30pm. Sergeant Richter and Constable Searle arrived shortly afterwards. When they arrived at the address she observed the first respondent. The first respondent was at the bottom of the stairs and the appellant was at the top of the stairs. There were two boys upstairs playing. She then had a conversation with the first respondent and later all Police left. A Qprime report was prepared naming the appellant as a respondent and the first respondent as the aggrieved. At about 11.30pm on 14 August 2015, Constable Solah and she were tasked by Police communications to re-attend the address in relation to a further disturbance that occurred. When they arrived the appellant was downstairs. She proceeded upstairs and spoke to the first respondent. She wrote notes of this conversation.[23] She also took possession of the SD cards.

[24] In cross-examination the witness conceded that she had previous dealings with both parties.[24]

[25] Senior Constable Anne Donaldson in her statement said that at about 12.52am on 15 August 2014, the appellant was brought into the watch house in respect to a domestic violence detention. He had a ripped shirt with minor scratches and bruising on his upper arms. He was released from custody at about 3.10am.

[27] The following may be noted from the first disk (Exhibit 16):[25]

(b) It may be determined that the first respondent and the two children were nearby and, it may be readily inferred, were in a position to hear the appellant;

(c) The appellant was on his mobile phone talking loudly;

(d) His tone about the first respondent was abusive and insulting;

(e) The first respondent did not respond to any of this until he took her phone;

(f) He said that the boys were "two lost souls tortured";

(g) He said "they're all compo claimers and fraudsters typical Greeks and Macedonians I thought she was different but she's not...";

(h) He then put his mother on speaker; he then became loud stating "this is the mother that provided for you and allowed you to have a place to stay when your own parents kicked you out and spat in your face...";

(i) He said referring to the first respondent "she's delusional so sad she is crazy that's why tonight I decided I'm going to fight for the boys. I'm going to fight all the way for you boys so you don't end up mental like your sister.";

(j) He said "They're all fraudsters well they're all sales people... doing that fucking pyramid shit together...";

(k) He then said "and a liar. You're a liar to my face for telling me... you lied to my face... treated my mother... she said to my face that she treated you nice and she always welcomed you here...";

(l) He then said "what a grub she's a piece of shit sad... that's the mother of our children. And she's yelling at me last night... to you nothing but a couple of children...";

(m) A child started crying after this;[26]

(n) He later said "there's good people out there she's just not one of them. She can be a good mother, but... yeah... she is cool as a cucumber... hoping I get a DVO and validate all her lies against me. Get some sympathy from the Macedonian community oh poor me poor [AT]";

(o) The first time one hears the first respondent is at six minutes where she yells a number of times "Give me my phone". There is the crying of a child; there are banging noises;

(q) The first respondent said she wanted to call her parents;

(s) At 7:55 minutes the first respondent calls for the Police asking for them urgently. She says that the appellant was raging, he grabbed the phone off her and he was down the stairs. She said he pulled the phone out of her pocket. She was trying to get it and ripped his shirt and ran down the stairs. She told the operator that the appellant had rubbed his face in her face, he had been on the phone to his mother, he had called her names, he was intoxicated. She asked for the Police to come urgently. She also expressed her concern he would delete the recording on her phone;

(t) At 10:56 minutes she said to one of the boys "you can tell the Police what Daddy did he stole Mummy's phone";

(u) Later she said to one of the boys "Daddy pushed Mummy. D are you going to tell the Police the way Daddy push Mummy."

[28] I consider the Exhibit largely consistent with the first respondent's evidence.

[29] I have also seen Exhibit 17, the videos taken by the Police. File 57 shows the appellant at 2200hrs to be aggressive and argumentative towards the Police who were doing nothing to justify his aggression towards them. He was raising his voice at them and appeared affected by liquor. Indeed, the Police told him that they would see him when he was calm and sober. The appellant then took a photo of the Police.

[30] File 58 commences at 2330hrs. I consider this shows the appellant also aggressive to the Police. He admitted to lying on a recording that the first respondent had hit him so she could see how it felt. He accused the first respondent of being a fraudster and liar. He threatened to complain about the Police to the CMC. The Police then took the notebook statement to which I later refer. A Police officer put to him that there was an allegation about a mobile phone. He said "I don't know anything about a mobile phone". I consider he lied to the Police at this point as he later admitted taking a mobile off her. The appellant alleged he had a Police officer kicked out of the Police force.

[31] File 59 commences at 2351hrs. The Police advised the appellant to be calm, engage in mediation, and get legal advice. The appellant called the first respondent a liar. He admitted hitting LS when she was naughty. He alleged LS was a "princess" as she was given an iPad. He called the first respondent's parents "fucking Macedonians". He said that tonight it was it. She called the Police and this is when he realised how mental she was. He alleged that her parents had sexualised LS. He did not like liars and cheats.

[32] File 60 commences on 15 August 2015 at 0016hrs. The appellant was informed that the Police had obtained her version and she had said the altercation was over the mobile phone. The Police had the SD card and because of this the appellant was detained for a domestic violence application.

[33] The appellant lodged an application for a protection order on 17 August 2015.[27] In a written attachment to the application he alleged that the first respondent "went berserk", pushed him around the balcony, grabbed and attacked him and he finally ran away from her. He alleged the first respondent was manipulative and commits frauds.

[34] The appellant filed an affidavit on 12 November 2015.[28] In the affidavit he said that the property in which they lived was purchased by him and his mother. He alleges that in July 2015, he became aware of financial irregularities "perpetrated by the respondent". He said as to 14 of August 2015, he confronted her and the first respondent lost her temper, shouted abuse at him, scratched him, attacked him, used her fingernails, and tried to head butt him. He was pushed out of the house.

[35] He then alleges the first respondent is a "congenital liar". He alleges that the first respondent was defrauding Centrelink, she kept secret bank accounts and she had $70,000.00 in cash hoarded.[29]

[36] The appellant then alleges that the first respondent lied to him and to Child Support and that a cause of friction was the behaviour of LS.

[37] He alleges she had added to allegations in the Federal Circuit Court. He alleges that she had lied to the local catholic school concerning her financial position. He also alleges she was aggressive to BCC inspectors.[30]

[38] Attached to his affidavit were photographs of the scratches, financial documents, and an extract of the first respondent's Family Court affidavit.

[39] Also attached (but not marked as exhibits) was an affidavit of Ms DM which apparently had been filed in the Federal Circuit Court. She alleged that she dated the appellant in 2006-2008 and he was not violent.

[40] There is also an affidavit from Mr DS, the ex-partner of the first respondent who alleged that the first respondent smashed a coffee table in December 2007; she was "distant aggressive and demanding"; he had not given permission for her to obtain a passport for LS and, without any particulars, said she was violent and demanding.

[41] The appellant gave evidence that at about 9pm on 14 August 2015, he called the Police because the respondent was screaming at him, withholding information and there were recently discovered frauds. He was put through to the Capalaba Police station. At about 9.30pm four Police officers attended. He was upstairs with the two boys. The first respondent had walked downstairs when she saw the Police car. He sat upstairs with the boys and was playing with them. The eldest boy, DJ, is three and a half, born 20 May 2012, and MJ was born 24 September 2013. It is alleged that Sergeant Richter told him that if they had to come back later that night somebody would have to get arrested.[31] The appellant thought he was not getting a fair hearing because he did not think he was aggressive but, unfortunately, his character is loud and animated.[32]

[42] Between 9.30pm and 11pm, the first respondent was making accusations to him. She was alleging "don't touch me" but he was not even in the room. He said to her "why are you making these things up" and he guessed she was trying to entrap him. He then set some cameras up because he wanted some evidence to protect himself. The first respondent knew the cameras had been recording. He then said that he hung up from his mother, got his phone and the first respondent pushed into him which caused a big dent to the aluminium screen door and this is when she probably scratched his arm and grabbed his shirt near the stairs.[33]

[43] He denied her description of the events.[34] With respect to her asking for her phone back, he alleged that he had paid for it which is what he told her.[35] He denied picking her up and slamming her into the car, he had a deep fingernail cut into the top of his bicep and four or five bruises.

[44] When he was taken to the watch house he underwent a breathalyser test and registered 0.05%.[36] He alleged that he had three Grolsches. He said that he was an unemployed helicopter pilot and regularly underwent commercial medicals for this and the results of a blood test and a letter from Dr Thomas were tendered as Exhibit 5. The doctor had never seen any signs of excessive alcohol consumption. He denied doing any domestic violence to the aggrieved on the night in question.[37]

[45] In cross-examination the appellant admitted having two small children with the first respondent. He conceded the children and the first respondent were home on 14 August 2015. He accepted he had consumed around three beers that night. He accepted that the breathalyser result was at almost 1am at which time he was 0.05%.

[46] He denied being grossly affected by liquor.[38] He did not think that at about 9pm the respondent was baking in the kitchen. He denied rubbing anything up against her. He denied trying to get her to agree to sex, and denied saying "why can't we be fucking buddies because you hate me and I hate you". He did not recall if she pushed him in the stomach but told Sergeant Richter that she did because "I wanted to see how she reacted to the lies that she tells and how she feels about lies".[39] He accepted that he called the Police at about 9pm and said to them when they arrived that he did not want to argue with them.[40] He disputed that after the Police left he said to the respondent "what lies have you told now you lying slut". He disagreed that the Police officers were nothing but professional in the execution of their duties.[41] He denied threatening to punch the first respondent, he denied trying to get her to talk to his mother.[42] He agreed that the mother was on speaker phone but denied that he rubbed his beard against her right eye.[43] He said that MJ was crying and was comforted by the first respondent and that he was fine.[44] He agreed that the children were present for most of the footage.[45] He did not distinctly deny that he called her a piece of shit in front of the children on more than one occasion.[46] He then said he did not think he was demeaning to her in front of the children. He then accepted he may have called her delusional.[47] He admitted saying to her that there were good people out there but she was not one of them.[48] He denied that he was taunting her, he was merely stating the facts.[49] He denied taking her phone but admitted that she was screaming at him "give me my phone back".[50]

[47] In an unresponsive answer as to his taking her phone, he said "she's also said she's not doing Centrelink fraud and a lot of other things because she tells untruths".[51] He alleged that she yelled a "banshee scream" and a "fake scream". He accepted that the children were crying.[52] He accepted that on the recording he kept saying "I pay for it I pay for it".[53] He was asked whether it was appropriate for him to take the phone from her in the manner he did, he then said he did not take her phone from her in that manner but then said it was his phone.[54] The prosecutor attempted to ask a question at transcript day 1, page 61.35 which was interrupted by the appellant.

[48] He denied ripping his own shirt.[55] He then alleged that the first respondent proceeded to coach the children, saying "you tell the Policemen daddy pushed mummy".[56]

[49] I might say having listened to the tape I did not consider this to be coaching. In fact, DJ said that the appellant was running along the road with the first respondent's phone. Then later MJ said "Mummy ...urt". It was after this the first respondent said "DJ are you going to tell the Police the way daddy pushed mummy" and DJ said "No" and the first respondent said "Why". The topic was left at that. The first respondent did not suggest a version of events to DJ.

[50] He accepted that he spoke to the Police and had signed the notebook and it was put to him that he claimed to the Police that he knew nothing of a phone that was taken.[57] He denied this, saying the Police asked him if he knew anything about the first respondent's phone and he said no because the only phone he had in his possession was his.[58] He accepted that in a videorecording he took of the children the older child told the appellant that he did not like it when the appellant screamed and smacked him.[59] He said the scratches occurred during the scuffle.[60]

[51] He then alleged that Constable Fluglevik and Constable Searle attended an incident on 22 July when the appellant tried to head-butt him.[61] This was not included in his application before the Court.[62] There were current Federal Circuit Court proceedings with regard to DJ and MJ.[63] He accepted that the first respondent had taken her belongings and went to her mother's house on 14 August 2015.

[52] The appellant's solicitor conceded that the appellant was a very passionate and animated person which was obvious from his evidence. He has a loud voice and a passionate presentation. It was submitted though, that he was not aggressive to the point of physical violence. He submitted that the first respondent was a person who told lies with an explosive temper. He submitted that the first respondent was a person who salted money away from the appellant but made untrue claims to Centrelink regarding payment of rent when, in fact, they were living rent free. He also submitted that the first respondent lied to the appellant about receiving Child Support from her former husband.

[53] He submitted that the appellant was not violent to the first respondent and it was the first respondent who beat the appellant. He submitted that the video evidence supported the appellant's version of events. He submitted that the injuries in this case were on the appellant, not on the first respondent, which were caused by scratches by the first respondent. The video shows the first respondent pursuing the appellant. He submitted it would not be accepted that the appellant was grossly intoxicated. It is submitted that the first respondent became frustrated with the appellant and lost her temper. Reliance was placed on affidavits from DS and DM. It was submitted there was no medical evidence that supported the first respondent's contentions. [64]

[54] The Police submitted that the requirements of the Act had been met for the making of an order. It was submitted that the statement of the first respondent showed that the appellant on 9 July 2015, hit both LS and the first respondent. On the night in question, he rubbed his beard against her right eye, she felt like he was trying to push her down the stairs and he threw her onto the bonnet of the car. It was submitted there was evidence that the appellant had been physically abusive towards the first respondent. There was also emotional and psychological abuse when the appellant accused the first respondent of telling lies and being a lying slut. He also used derogatory remarks to her and ran off with her phone up the street. He also threatened to punch her. It was submitted that the best evidence of the domestic violence came from the recording that the appellant had taken himself after the Police first attended and prior to their second attendance at about 11.30pm. It was submitted that the footage clearly depicted domestic violence against the first respondent and against the children who witnessed the incident. It was submitted that the first respondent was a credible witness and was not argumentative or evasive. On the other hand, the appellant was argumentative and evasive with his answers. The video footage corroborated the first respondent's version. At 10.08pm, the appellant was speaking to the children. The footage clearly showed cupcakes sitting in the oven area. The footage also suggested emotional abuse by the appellant of the children. The BAC at 12.52am of 0.05% corroborated the fact that he would have been a lot higher four hours prior. The video footage does not show the appellant going backwards, it shows him moving forward and the respondent moving after him. It is submitted that the appellant was controlling and argumentative. As to an audio tape between the first respondent and BCC, it was irrelevant.

[55] The first respondent's lawyer relied on written submissions. She submitted that at best for the appellant concerning his application, there were scratches from the incident, a torn shirt, some abuse and an attempted head-butt. It was submitted that the respondent's evidence in this regard would be accepted. As to the financial allegations, they were not issues of domestic violence. It was submitted that the tape recording of the BBC inspectors was not relevant. It was submitted that the first respondent had not committed any domestic violence against the appellant.

[56] The decision in this matter was given on 18 December 2015. The judicial registrar ("JR") referred to the evidence tendered in the case. He then found that a relevant relationship existed between the appellant and the first respondent as defined in s 37 of the DFVP Act. The next issue was whether the appellant had committed an act of domestic violence against the first respondent. In this regard, he had regard to ss 8(1) and (2) of the Act and s 11. The JR took into account Exhibits 2 and 3[65] and noted that the appellant said during a phone call during the incident "she is crazy what a grub she's a piece of shit" and another reference that he would "fight for you boys so you do not end up mental like your sister". This conversation occurred in a situation where the children overheard it. He found, on the balance of probabilities, that the appellant had committed an act of domestic violence in repeatedly taunting the aggrieved in a derogatory manner.

[57] He then turned his attention to whether the order was necessary or desirable and the Court had to consider the principles mentioned in s 4. He found, on the balance of probabilities, that the order was desirable, bearing in mind the parties would continue to be in contact through the children of the relationship and there was a need to protect the aggrieved from similar derogatory taunts and to protect the children from being exposed to such acts of violence. Pursuant to s 57 of the Act, he considered it was desirable to make the order for two years but was satisfied that there should be exemption conditions to allow the appellant to have contact with his children.

[58] With respect to the cross-application, again, he found that Exhibits 2 and 3[66] were the most reliable evidence. He thought the behaviour was consistent with the first respondent asking for her phone to be returned. The appellant's response to those requests was to state "I paid for it". The JR found that the scratches, bruising and ripped t-shirt were part of a scuffle where the first respondent was attempting to retrieve her phone but they were inflicted without intent and occurred incidentally in her attempt to recover her phone. If the appellant had not taken it the scuffle would not have occurred. He did not find the injuries were the result of any physical abuse of the appellant. He then found that there was inconsistent evidence about the financial arrangements and was not satisfied that there was economic abuse within the meaning of s 12 of the Act and, therefore, dismissed the application by the appellant.

[59] I will deal with each ground of appeal and the arguments seriatim. It is appropriate to deal with ground 2 last as this is a general ground alleging the decision is against the weight of the evidence.

Ground 1 - the JR erred in failing to take into account the affidavits of Ms Mason and Mr S.

[60] The appellant submits that the JR erred in failing to take into account the affidavits of Ms M and Mr S. It is submitted they were not referred in the judgment. It is submitted, bearing in mind the fact the rules of evidence did not apply, regard should have been had to them.

[61] The first respondent submits they should have been filed separately, the witnesses were not called and they were not relevant.

[62] The second respondent adopted the first respondent's submissions.

[63] In my view there is no error. Firstly, the JR stated at page 2.15 of the reasons that he had considered the whole of the evidence and just because he did not mention it did not mean he did not have regard to it.

[64] Secondly, the affidavits were of very little weight. Ms M, in effect, gave good character evidence from many years prior. She did not know the appellant in recent times. Mr S equally gave little detail of the first respondent aside from an incident from 2007. He also appears to have had a motive to dislike her. I do not think their evidence advanced the issues in dispute, i.e. whether domestic violence had occurred in August 2015 and whether orders should be made.

[65] Thirdly, it can be deduced the JR was well aware of them and, indeed, the appellant's lawyer when questioned about them did not dispute the proposition that little weight could be attached to them.[67] If Mr Clough was under any misapprehension about this[68] he could have at that stage sought an adjournment to call them. But, as I have said, their evidence was of little weight.

Ground 6 - the JR erred in finding comments made in the telephone conversation were heard by the first respondent

[67] It is next appropriate to deal with ground 6.

[68] In oral argument the appellant initially focussed on the finding made by the JR at pages 3.22-36 of the reasons where the JR made the finding that during the recording the appellant said about the first respondent whilst talking to his mother "she is crazy. What a grub. She's a piece of shit" and "I'll fight for you boys so you don't end up mental like your sister".

[69] It is submitted that it could not be concluded the first respondent heard these words, which was a requirement of proof.

[70] The first respondent submitted that there was evidence the first respondent heard this.

[71] The second respondent adopted the first respondent's submissions.

[72] In my view, there was sufficient evidence this was said and that it was heard by the first respondent. Firstly, the first respondent in her statement to the Police[69] said that she heard the appellant talking on the phone to his mother abusing her and at the end of this he then grabbed her phone. Secondly, when one has regard to Exhibit 16, one can infer that the first respondent is in the nearby vicinity when the words were spoken. The words were also spoken loudly, such that they would have been heard.

[73] In my view, of course, for the words to be relied on to allege domestic violence, she would have needed to been aware of them, i.e. aware that the activity is occurring.[70] Finding out about them at time of trial is not sufficient. There may be cases though where finding about statements made or conduct engaged in by a respondent through a third party would be sufficient.

Ground 5 - the JR erred in finding there was domestic violence

[75] I will deal with ground 5 next as this is ancillary to ground 6.

[76] The appellant submits that in this case the finding that the appellant said "she is crazy. What a grub. She's a piece of shit" and "I'll fight for you boys so you don't end up mental like your sister", without more, did not enable the JR to find that domestic violence occurred. It was submitted the words were said in a single statement and this was insufficient evidence that there were repeated taunts as found in the reasons at page 3.35. It is further submitted that it could not be proved there was any intention to offend on the part of the appellant.

[77] The first respondent submits that domestic violence can occur in a single incident, intention is not relevant, and the word would have been offensive.

[78] The second respondent adopted the first respondent's submissions.

[80] The DFVP Act in s 8 defines "domestic violence" to mean:

"... behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that -

(b) is emotionally or psychologically abusive; or ...

[81] Section 11 of the Act defines "emotional or psychological abuse" to mean "behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person". Some examples are then given. In particular, "repeated derogatory taunts."

[82] In BBB v RAB[71] McGill SC DCJ examined what was meant by intimidation or harassment. In that case, the evidence was the appellant came up to the respondent in a supermarket stating "is it 46 or 47?", referring to her birthday. There was another incident where the appellant yelled at her that she was trying to control him and if their son was not present she would tear shreds off her and was going to get her and he was going to make her life miserable. There was another time where she criticised him for just sitting in the car and he screamed at her and drove off. There was another occasion where she suggested he should stay at his own place more and he screamed at her.

[83] His Honour said at [18] that intimidation refers to a process where a person is made fearful or overawed, particularly with a view to influencing that person's conduct or behaviour. There can be a single incident of conduct amounting to intimidation but if it does not intimidate it cannot amount to intimidation. Harassment involves repeated or persistent conduct which is annoying or distressing rather than something which incites fear.

[84] His Honour considered that intimidation and harassment were not proved.

[85] In DGS v GRS[72] McGill SC DCJ noted that a persistent refusal to discuss matters the other party wishes to discuss could not amount to harassment or intimidation, nor is a mere unwillingness to do what the other party wants to do. But standing close to somebody to prevent the party from having a private telephone call, or deliberately driving in a way which was annoying and upsetting the other party, could be harassment. Harmless fortuitous encounters, even if a party finds them upsetting, is not harassment.

[86] The High Court in Monis v R[73] considered the meaning of word "offensive". The plurality held it to mean "calculated to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable man".

[87] More recently in GKE v EUT[74] McGill SC DCJ held that whether conduct torments, intimidates, harasses or is offensive does not depend on the inherent character of the behaviour but whether it has that effect on the person. Also, his Honour thought that a person could not be harassed by a single incident.

[88] An issue was raised as to whether the conduct needed to be intentional[75] but the statute does not say this and I do not think intention needs to be proved.

[89] A "taunt" in the Australian Concise Oxford dictionary is "a thing said in order to anger or wound a person".

[90] But, in my view, the difficulty here is the JR did not make the necessary factual findings. I consider the words relied on could amount to emotional or psychological abuse in that they were intimidating or offensive but the JR did not find this. It is also arguable they contained a number of derogatory words and, therefore, contained a number of taunts but this was not linked with any of the sub-paragraphs of s 11 and/or s 8.

[91] The reality is that arguments do occur in many relationships on occasions. Just because a couple has an argument does not mean domestic violence has occurred. It is a question of matter and degree. This is why it is crucial a magistrate makes specific findings as to which sections of the act are engaged.

[92] I consider then that the JR erred in simply relying on this one statement as proving "repeated taunts of a derogatory nature" for the purposes of finding domestic violence without linking this into any subparagraph of s 11 and s 8. But, for the reasons I later give, on my review of the evidence, I consider that the order should have been made in any event on my assessment of the evidence.[76]

Ground 3 - the JR erred in making an order which included DJ and MJ

[93] The appellant submits that the JR erred in including the two children, DJ and MJ, in the order.

[94] The appellant submits that the findings by the JR at page 4.5 that the children needed to be protected is at odds with the finding at pages 4.12-17 where the JR found it was necessary or desirable to restrict the appellant's contact with MJ and DJ. He, therefore, allowed the appellant to have contact with his children. The appellant also submits the children would not have comprehended the words spoken.

[95] The first respondent submits that there was evidence available to the JR to make the order which he did and relies on s 10 of the DFVP Act. It is also submitted there is no requirement for the children to comprehend the words spoken.

[96] The second respondent submits there was no error here. All the JR was doing was expressing a view that the order not be too restrictive. The JR modified conditions 5 and 7 to permit contact. Also, as to comprehension of the words spoken, similar submissions are made as the first respondent.

[97] For the reasons I have given concerning the previous ground, I consider an error was made concerning the JR's finding as to domestic violence. However, I will treat the appeal arguments as arguments advanced by the various parties when I come to deal with the general appeal ground later.

Ground 4 - the JR erred in including LS in the order when no evidence was adduced or submissions made as to her

[98] The appellant argued that there was insufficient evidence to permit LS to be added to the order. He submits that the child LS was barely mentioned in the proceedings and, indeed, nowhere in the judgment. It is alleged that LS was not mentioned in the material. Evidence was not lead about the child. Natural justice has been denied because the appellant was not put on notice she was to be included in the order. It is further submitted that it was an error for the JR to regard her as a third child.

[99] The first respondent submits that the legislation required the JR to consider whether LS should be named in the order and it did not matter that she was not named in the original application.

[100] The second respondent submits that there was no error in referring to LS as a "third child". Further, the JR was obliged to consider whether or not she should be named in the order. There was evidence of abuse of LS. Also, the temporary protection order included LS which put the appellant on notice.

[101] For the reasons I have given concerning ground 5, I consider an error was made concerning the JR's finding as to domestic violence. However, I will treat the appeal arguments as arguments advanced by the various parties when I come to deal with the general appeal ground later.

Ground 7 - the JR erred in making the order as there was no need for it i.e. it was not necessary or desirable

[102] The appellant argued there was insufficient evidence as to the need to make the order, particularly when there was reliance on only one act of domestic violence in the reasons.

[103] The first respondent submits that the JR stated he considered all of the evidence and the finding should be considered in that light.

[104] The second respondent adopts these submissions.

[105] My findings concerning the finding of domestic violence flow onto this ground. In the absence of linking the finding into ss 11 and 8 it is difficult to come to the conclusion the order was necessary or desirable solely on the basis found.

[106] But for the reasons I later give, in light of the factual findings I propose to make, I consider the making of an order is necessary and desirable.

Cross-application - the JR erred in failing to make an order in favour of the appellant

[107] As the argument developed, without objection, the appellant argued a further matter, i.e. the JR erred in failing to find the first respondent had committed an act of domestic violence by assaulting the appellant.

[108] The appellant submits that the JR, once having found that the first respondent inflicted scratches on the appellant, erred in finding this was not an act of domestic violence. It is submitted the finding by the JR that the assault on the appellant was without intent was "glaringly improbable".[77]

[109] The first respondent submitted that the JR correctly found the scratches were part of a scuffle to recover a phone, there was no unlawful assault and, in that light, there was no physical abuse.

[110] The second respondent adopted these submissions.

[111] I consider that to properly consider this ground I need to consider the facts, in light of all of the factual findings, so I will treat these submissions as general submissions as to the facts to be found and the law to be applied.

Ground 2 - general ground findings against the weight of the evidence

[112] I have independently reviewed the evidence here, particularly in light of the grounds I have upheld.

[113] I have reached the conclusion that the Court below was entitled to make the order against the appellant and to refuse to make the order in his favour.

[114] On my review of the evidence, I consider the first respondent's version to be the most probable and more in line with the recordings.

[115] I also considered the first respondent's evidence was corroborated by the photos attached to her affidavit and the doctor's report.

[116] I also consider the first respondent to have been consistent with the accounts she gave to the Police[78] and her Police statement.[79]

[117] She appeared to be unshaken and responsive in her evidence.

[118] I found the appellant non-responsive at times in his evidence. I found that he did not mention the phone to the Police when first questioned which goes against credit. Indeed, I find he lied to the Police about the mobile.[80] He knew he had acted wrongly. I found that he was aggressive towards the Police who acted reasonably. This makes it more likely that what the first respondent said was true.

[119] He was also intoxicated and would have had a far higher BAC reading at 11pm than 1am.

[120] I do not consider the evidence of Ms M and Mr S of much weight. They were not there on 14 August 2015.

[121] I also note that the appellant, in his written notes attached to his application, gave quite a misleading impression of what occurred. He alleged that the first respondent went berserk. He mentioned nothing of his insulting words to her (referred to in the tape), he did not mention it is clear she was trying the ignore him (proved by the tape), and, crucially, he mentioned nothing of his taking the phone off her.

[122] Additionally, in his affidavit, again, he gave a misleading impression of what went on. He did not mention his insulting words, or his taking the phone off her. Additionally, there is the addition of the head-butt allegation - not mentioned in the police notebook,[81] or in the application.[82]

[123] Also, the appellant did not mention the phone to the Police.[83] Indeed, the impression he tried to create was the respondent was trying to "set him up" in the lounge room by jumping up and yelling "don't touch me".

[124] I also note the appellant, at [20] of his affidavit, alleged the first respondent misused $30,000.00 put into an NAB account for the two boys. It is curious the appellant fails to produce any bank statements relating to that account. He has produced other documents.

[125] For the reasons I have given, I generally prefer the evidence of the first respondent where it conflicts with that of the appellant.

[126] I find, on the balance of probabilities,[84] on 14 August 2015:

(a) The appellant spoke loudly and in an insulting way to the respondent.

(b) He swore at her calling her a lying slut.

(d) Many if not all of these statements were made in front of the two children who became upset by some of them.

(e) He should have appreciated the children were upset.

(f) He rubbed his beard against her eye area.

(g) The appellant's mother was abusing the respondent over the phone.

(h) Whilst on the phone, the appellant said in the presence of the first respondent and the children about the first respondent:

(j) He then grabbed her phone out of her pocket without her consent.

(k) She yelled "give me my phone back" a number of times.

(l) The appellant ran outside. The respondent reached around him to get the phone and there was a struggle.

(m) He said he paid for it. Having heard the tape, I cannot find that he said "I'll punch you" but the respondent might have honestly believed he said that.

(n) During the struggle she got on his back. She was thrown onto the car bonnet.

(o) In the struggle I think the appellant sustained the scratches and I think it more likely his shirt was ripped at that stage.

(p) I consider at this time the appellant was affected to some degree by alcohol.

[127] Section 37 of the Act allows a Court to make a protection order when it is satisfied that:

(a) a relevant relationship[85] exists between the aggrieved and the respondent; and

(b) the respondent to the application has committed domestic violence against the aggrieved; and

(c) the protection order is necessary or desirable to protect the aggrieved from domestic violence.

[128] There is no issue that the parties were in a relevant relationship.

[129] In deciding whether a protection order is necessary or desirable the Court must consider the principles mentioned in s 4 of the Act.[86]

"(1) This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

(2) Subject to subsection (1) this Act is also to be administered under the following principles-

(a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised ...

(c) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;

(e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified..."

[131] In my opinion, a number of the acts I found to have been committed by the appellant amount to domestic violence - the rubbing of the beard was physically abusive, the taking of the phone was physically abusive[87] and the insulting words about the first respondent was in my view emotionally or psychologically abusive.[88]

[132] The next question is whether the protection order is necessary or desirable to protect the aggrieved from domestic violence.

[133] The phrase invokes a very wide and general power to make the order.[89]

[134] In GKE v EUT[90] McGill SC DCJ considered this phrase. His Honour said that the order must be necessary or desirable to protect the aggrieved from domestic violence. It is specifically for the purpose of protecting the aggrieved from domestic violence.

"This is concerned with the situation in the future, something which cannot be proved as a matter of historical fact, but depends on the magistrate's assessment of the circumstances, bearing in mind the extent to which there is likely to be a continuing need for contact between the parties. It seems to me from the evidence that the respondent would very much like not to have to have anything more to do with the appellant, but in circumstances where they have had children together, and bearing in mind the terms of the Family Court order referred to in the evidence, it is clear that, at least for a long time, there is going to be some continuing contact between the parties, in connection with their respective rights and obligations in relation to the children. This is a relevant consideration..."

"[32] In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. The magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved.

[33] I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future. Broadly speaking I agree with what the magistrate said in the passage beginning 'fourthly' of his reasons, though I would express the last sentence as 'the risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.' In assessing such a risk, it is relevant to consider the fact that there is going to have to be some ongoing relationship because of the position of the children, and, if as the appellant alleges the respondent has been difficult and uncooperative in the past in relation to the arrangements for him to have the opportunity to spend time with the children, there is a risk that there will be situations arising of a kind which have in the past produced domestic violence."

[136] This reasoning equally applies in the present case.

[137] The term "necessary" is defined in the Concise Australian Oxford Dictionary as "requiring to be done, achieved; requisite, essential".

[138] The term "desirable" is defined as "worth having". It may be seen there is a lower threshold when one is concerned with the term "desirable".

[139] But both are focussed on the need to protect the aggrieved from domestic violence.

[140] I consider the JR's reasoning correct on this issue.[91] There is no doubt that the parties are embroiled in Federal Circuit Court proceedings. There are children of the relationship about whom contact/care arrangements will need to be made. These will need to be dealt with in a civilised and appropriate fashion.[92] I have considered s 4 of the Act. In light of the history between the parties, the events of 14 August 2015, the nature of the relationship, and degree of animosity expressed by the appellant towards the first respondent, in my view, it was both desirable and necessary that the order be made in favour of the first respondent. Like the JR, I consider without such an order there is a real risk of future domestic violence.

[141] I reject the ground alleging the decision was against the weight of the evidence.

[142] Section 54 of the DFVP Act requires the Court to consider whether the children should be named in the order.

(i) hearing an application for a domestic violence order; or

(ii) hearing an application for a variation of a domestic violence order; or

(iii) deciding whether to make a domestic violence order under section 42 or 43; and

(b) the application mentioned in paragraph (a)(i) or (ii), or any other information before the court, discloses the existence of a child of the aggrieved, or a child who usually lives with the aggrieved.

At a glance

Court

Decision date

Before

Source

Judgment (289 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)