Apprehended Violence Application Sencon Bradley Savins for Elisabeth Ruth Brown v John Anthony Eaton

[2021] NSWDC 33

District Court

New South Wales

Medium Neutral Citation:

Apprehended Violence Application SENCON BRADLEY SAVINS for Elisabeth Ruth BROWN v John Anthony EATON [2021] NSWDC 33

Hearing dates:

23 February 2021

Date of orders:

26 February 2021

Decision date:

26 February 2021

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [47]

Catchwords:

CRIME — Apprehended violence orders — Appeal of Apprehended Domestic Violence Order

Legislation Cited:

Crimes (Domestic & Personal Violence) Act (NSW) 2007

Crimes (Appeal and Review) Act (NSW) 2001

Supreme Court Act (NSW) 1970

Cases Cited:

Gianoutsos v Glykis [2006] NSWCA 137

Engelbrecht v DPP [2016] NSWCA 290

AG v DPP [2015] NSWCA 218

Charara v R [2006] NSWCCA 244

B v Director of Public Prosecutions [2014] NSWCA 232

Fox v Percy [2003] HCA 22

McKellar v Director of Public Prosecutions [2011] NSWCA 91

Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265

Allesch v Maunz [2000] HCA 40

Vok v DPP [2019] NSWCA 242

Bandara v DPP [2016] NSWCA 140

Dyason v Butterworth [2015] NSWCA 52

KD v R [2020] NSWDC 237

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Eaton (Appellant)
Brown (Respondent)
Crown (Regina)

Representation:

Carter Solicitor for the DPP
Eaton For Self

File Number(s):

2019/00091208

Publication restriction:

Unrestricted

 Decision under appeal 

Court or tribunal:

Court

Jurisdiction:

Local

Citation:

Not Published

Date of Decision:

10 September 2021

Before:

His Honour Dakin LCM

File Number(s):

2019/00091208

Judgment

1. On 10 September 2020 on the application of a police officer in his official capacity, the Local Court at Grafton made a final apprehended domestic violence order (“the ADVO”). The ADVO was sought for the protection of Elisabeth Ruth Brown, who was born on 11 May 1970, and Clementine Eaton, born on 21 August 2008 and who was therefore at all relevant times a child (“the protected persons”). The defendant to the application and the appellant in this appeal was and is John Anthony Eaton, born on 30 September 1967. The appellant is the former husband of Ms Brown, and Ms Eaton is their child.

2. The application was filed on 22 March 2019 and was first before the Court on 8 April 2019. A provisional order was made on 22 March 2019. An interim order was made on 8 April 2019. The orders made on 8 April 2019 included not to assault or threaten the protected persons, nor to stalk, harass or intimidate them, nor to intentionally or recklessly destroy or damage any property that belongs to or is in the possession of them (standard order 1). Standard orders 2 and 4 were also made on the interim basis on 8 April 2019, respectively that the appellant not approach the protected persons or contact them in any way unless the contact is through a lawyer, and not to approach or be in the company of either protected person for at least 12 hours after drinking alcohol or taking illicit drugs.

3. The transcript of the hearing shows that on 26 November 2019 (though the magistrate’s reasons suggest the date may have been 11 November) the interim order was varied by deleting standard order 2 and making an order referred to as order 6 (and as a final order was referred to as order 11) which provided the defendant “Must not approach the protected person(s) or contact them in any way unless the contact is (a) through a lawyer other than the defendant, or (b) to attend accredited or court approved counselling, mediation and / or conciliation, or (c) as ordered by this or another court about contact with the child/ren”.

4. Orders had therefore been in place from 22 March 2019 to the date of the final hearing on 10 September 2020, a period 12 days short of 18 months. The final order made was for 9 months and 21 days, so that the final order expires on 30 June 2021, meaning that orders of one form or another will have been in place for 2 years, 3 months and 9 days.

The nature of the appeal

5. Section 84(3) of the Crimes (Domestic & Personal Violence) Act (“the Act”) provides that an appeal against the making of an ADVO order proceeds in the same way as an appeal against conviction pursuant to section 18 of the Crimes (Appeal and Review) Act. The process under this section is different to that of an appeal against sentence pursuant to section 17. The major distinction between the two sections is that no leave is required by section 17 to lead fresh evidence. That distinction means that section 17 is a hearing de novo whereby fresh evidence can be led without leave and the appeal is decided as if the matter were being conducted afresh. There is no requirement under s17 for the court determining the appeal to find error on the part of the magistrate before it can intervene. In contrast, no fresh evidence is allowed without leave being granted in a section 18 appeal, and the nature of the appeal is that of a rehearing as opposed to a new hearing.

6. The appeal process under section 18 has been described as being akin to an appeal to the Supreme Court under section 75A of the Supreme Court Act. Adopting that approach would require error to be found in order for this appeal to be successful. There is however a conflict in the Court of Appeal authorities as to whether error does need to be found. Gianoutsos v Glykis [2006] NSWCA 137 says no error is necessary; the judgment of McColl JA in Engelbrecht v DPP [2016] NSWCA 290 clearly supports that error is necessary and Basten JA in AG v DPP [2015] NSWCA 218 considers error is required. In AG v DPP only Basten JA expressed this view.

7. In Engelbrecht which was decided after Gianoutsos, and after section 18 had been amended appears the following passage at [89], which adopts the reasoning from Charara v R [2006] NSWCCA 244 which was decided on the same legislation as Gianoutsos but with a different outcome:

The nature of a conviction appeal pursuant to the Appeal and Review Act, s 18 in its current form was summarised in Dyason v Butterworth,[68] as follows: 

[26] A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] – [24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P’s reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing).

[27] The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 (‘McKellar’) (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The ‘judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court’: Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate’s reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23]).

[28] The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ.”

8. In Vok v DPP [2019] NSWCA 242 at [29] the Court of Appeal stated in respect of a conviction appeal that the nature of the appellate function of the District Court is as stated at [5] of AG v DPP and at [10](3) of Bandara v DPP [2016] NSWCA 140. The first of those passages set out what was said to be three well established principles as follows:

(1) the appeal, described as “by way of rehearing”, does not involve a hearing de novo (or fresh trial) as if the original trial had not occurred;

(2) the appeal is not an appeal “in the strict sense”, so as to be limited to the evidence before the magistrate, to be determined on the law as it then applied; and

(3) the judge on appeal is bound to observe the “natural limitations” which arise where the appeal is conducted by reference to a documentary record.

9. The second passage, being from Bandara was as follows:

The appeal to the District Court is not a hearing de novo, but is analogous to a civil appeal under s 75A of the Supreme Court Act 1970 (NSW), insofar as it is an appeal by way of rehearing, and the judge is to form his or her own judgment on the facts recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court: see Crimes (Appeal and Review) Act 2001 (NSW), s 18 and Dyason v Butterworth [2015] NSWCA 52 at [26]-[28] and the cases there referred to.

10. The conclusion in Vok at [29] as to the challenge to the appeal decision was to say:

More fundamentally, contrary to the assertion made by this ground, her Honour did not uphold the conviction “based on” the decision of the magistrate. As ss 18 to 20 of the CAR Act required, the appeal was conducted by reference to the oral evidence given in the Local Court, her Honour recording that she was bound to observe the “natural limitations” on fact-finding, including those arising from her not having seen or heard Ms Stead give evidence: see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]. In so proceeding, her Honour did not misconceive the nature of the appellate function of the District Court: as to which see AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [5]; and Bandara v Director of Public Prosecutions [2016] NSWCA 140 at [10](3).

11. For the purposes of this case I have adopted the passages from Engelbrecht as well as those referred to in Vok as identifying the nature of this appeal.

12. The position was put well by Grant DCJ in KD v R [2020] NSWDC 237 who, after considering the authorities concluded:

[17] The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v DPP 2015 NSWCA 218 . I proceed on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v DPP [2016] NSWCA 140 at [10], and Engelbrecht v DPP [2016] NSWCA 290 at [91]. The term “error” has no precise meaning. It refers broadly to the satisfaction of the appellant judge that the trial judge was wrong and should be corrected. Put negatively it means that the judgment of the trial judge will not be set aside unless the appellant judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of error in the ordinary meaning of that term: AG at [34] per Basten JA.

13. The most recent authorities are in line with the statements made in Engelbrecht. The position remains that there are some earlier Court of Appeal decisions which are at odds with the later authorities, most notably Gianoutsos. The debate only assumes significance in cases where no error has been established. Whether the present is such a case will be determined below. Whether the distinction is one that Prof Julius Stone may have termed one that is without a difference is perhaps going too far, but it would seem unlikely for the appeal court to disturb the earlier decision unless there was some error, be it of fact law or discretion, for without some such error the decision must be likely to a fair degree to be the same.

The defendant’s position on the appeal

14. The appellant is a solicitor, and he appeared for himself. The only document filed by the appellant in the appeal proceedings was a notice of appeal which simply states the appellant is appealing because “I contest the apprehended violence order made in these proceedings”. There were no written submissions, and there was no document setting out the grounds of the appeal. This is the practice of the Court in these matters. The Court was provided with the application for the ADVO, the interim order (before its variation), the exhibits and the transcript, which are referred to further below.

15. In oral submissions there was no attempt to address the relevant provisions of the Act, in particular s16 and s17, to address why the Court ought not have been satisfied of the relevant matters it is required to be satisfied of to justify the making of an ADVO. Rather the thrust of what was said by the appellant included that the period of the AVO was too long. This submission logically would seem to concede that the order should be made, but for some period less than ordered. It would be wrong however to treat the appellant as making such a concession in light of his other submissions.

16. The submissions of the appellant also included to assert that the Local Court was a joke; that it was judicially unfair and judicially inappropriate. Apart from the appellant’s dissatisfaction with the outcome, no basis for these submissions was developed. The appellant went on to say that the order made was a breach of the Act, and that the order was a “spreading of the umbrella so wide that it becomes ineffective”. The appellant stated that AVOs were intended to ensure people do not get hurt, and are not meant to prevent people giving presents. This last mentioned point concerning presents was a repeated theme of the appellant’s statements. As will be seen below, the event that led to the application for the ADVO was the appellant attending at the home of the protected persons in Grafton in March 2019, at a time when he lived in Sydney, for the purpose he says of delivering a gift to his daughter.

17. The appellant also referred to orders of the Federal Circuit Court (“FCC”). At the time of the Local Court hearing these were interim orders which allowed for his daughter to spend time with the appellant under certain conditions for 2 hours each 2 months. The appellant referred to these orders as absurd. By consent and with the Court’s leave the final orders of the FCC, which were made after the hearing before the magistrate, were tendered, which showed inter alia that the daughter was to spend time with the appellant for 1 hour each 3 months, again subject to conditions, and that he could send to her certain greeting cards. It was not clear what point was being made here in connection with the ADVO. Notably, the varied interim ADVO specifically allowed for contact with the daughter if another court so ordered. This meant that the terms of the ADVO prevented the appellant from contacting his daughter only if there was no other contrary order made by the FCC. In other words, the time the daughter was to spend with the father was to be determined by that other Court.

18. The appellant also addressed each of the terms of the ADVO for the purpose of seeking to demonstrate that they were unnecessary. In this regard he submitted he had never assaulted his former wife; that he does not stalk or intimidate; that he does not destroy their property which in any event he stated was all his because it was bought with his money that he had made when working in Hong Kong. He purported to not understand the order requiring him not to be in contact with the protected persons within 12 hours of drinking alcohol, a reflection of his apparent view that any difficulties he has with alcohol are in the past. The appellant submitted the restriction on approaching the protected persons’ address was not necessary because he could not physically walk there, and nor was he planning to go near any school or workplace (order 9). As to order 11, which is set out above as to allowing contact, this was described as gibberish. This was perhaps the oddest submission, because it is an order that makes possible that which the appellant seems most to want, to be in contact with his daughter, subject to the FCC being satisfied as to that occurring and how it is to occur.

19. The submissions concerning standard order 1 (not to assault, stalk or intimidate) made no mention of section 36 of the Act, by which every ADVO is taken to include such an order, with no provision in that section for the person making the order to otherwise order. That means, if section 16 is satisfied (discussed below) then the order will contain standard order 1.

20. The position of the Crown was to say the evidence showed a history of numerous breaches of earlier AVOs, and the evidence showed 5 such breaches (exhibit C was the appellant’s criminal history). The Crown referred to the evidence showing that in March of 2019 the appellant attended the home of the protected persons and was later found in the Grafton CBD unconscious, and was taken by ambulance to hospital in an intoxicated state.

21. In a short reply the appellant stated the breaches of the ADVOs were when he was drinking and out of control and that was in the past.

When an ADVO may be made

22. Section 16 of the Act provides:

(1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears--

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

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

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

(ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

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

(a) the person is a child, or

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

(c) in the opinion of the court--

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

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

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

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

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

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

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

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

Note : Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders.

23. In this case there was no dispute the appellant and the protected persons had been in a domestic relationship. The relationships of the appellant with both Ms Brown and Ms Eaton fall within different limbs of the definition of “domestic relationship” set out in s5 of the Act. Additionally, were an ADVO to be made for the protection of Ms Brown, section 38 would mandatorily require the making of an ADVO in respect of Ms Eaton by reason of her domestic relationship with Ms Brown (subs (2)), unless there were good reasons not to do so (subs (3)).

23. Section 16 requires the Court to be satisfied that Ms Brown has reasonable grounds to fear and in fact fears the engagement by the appellant in conduct which intimidates her. Significantly, subs 3 provides that for the purpose of the section intimidation need not involve threatened or actual violence to Ms Brown.

24. Section 17 of the Act sets out the matters to be considered by the Court in deciding to make an ADVO and is in the following terms:

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

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

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

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

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

(d) any other relevant matter.

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

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

26. The main relevance in this case of s17 is the need to consider the safety of the protected persons. The section is not exhaustive, referring as it does at subs (2)(d) to any other matter. The section has an emphasis on accommodation considerations which were not relevant in this case given the parties lived far away from each other.

27. As noted above the appellant did not address any issue arising under ss16 and 17, at least expressly. It may be said his submissions amounted to saying there was no basis to conclude there was any reasonable basis for Ms Brown to fear intimidation by him, but at no stage did he address the evidence in a meaningful way to support such an argument.

28. Indeed part of the appellant’s submissions were to say that standard order 1 was unnecessary, a submission that as noted above shows a lack of awareness of section 36 of the Act. Viewed as favourably as possible for the appellant, that submission could be taken to be arguing that there is no reasonable basis for the alleged fear of Ms Brown, and no reasonable basis for fear by Ms Eaton, whether or not she in fact holds any such fear. The recurring problem for the appellant is that submission was not developed beyond his assertion that it is so, and the appellant did not address the issues with reference to the evidence in any meaningful way.

29. I note that s42 makes provisions concerning parenting orders, which includes the orders in evidence in this case from the FCC. Section 42 requires the court deciding whether to make an ADVO to consider the safety and protection of the protected person/s and any child directly or indirectly affected by domestic or personal violence. Subs (3) set out such considerations are to include whether contact between the defendant and any such child is relevant to the making of the order, and to include consideration of the parenting order itself.

The evidence

30. The evidence consisted of a statement of Ms Brown, a statement of a police officer and the FCC interim orders. On the appeal there was also available the criminal history of the appellant, which I was told was before the magistrate, and also the final FCC orders.

31. On the appeal the transcript was available of the oral evidence heard by the magistrate, and of the magistrate’s reasons. On my reading of that transcript there was no meaningful, if any, concessions made by either the officer or Ms Brown, and on my reading of that material the evidence favouring the granting of the ADVO was stronger by reason of Ms Brown’s cross examination. The oral evidence of the appellant was much in line with the submissions made on appeal, and to that extent did not advance the evidence.

32. The statements, which were tendered as evidence, showed:

32.1. At about 4.40pm on 21 March 2019 police received a report of a domestic violence incident at the home of Ms Brown, at 25 Alice Street Grafton. At about 5.50pm that day it was reported to police by an ambulance officer who was also the brother in law of Ms Brown, that the appellant had passed out in an intoxicated state in front of Grafton library and had been taken to hospital.

32.2. The next day the police took a report from Ms Brown as to what had occurred. As a result it was decided to apply for an ADVO.

32.3. The statement of Senior Constable Savins stated at [11] that on 10 occasions between December 2018 and August 2019 the appellant had been dealt with by police, on each occasion being spoken to by police and taken to hospital by ambulance in a highly intoxicated state. I note that 9 of these occasions occur after 1 January 2019, the day the appellant asserts he largely ceased drinking. There was no challenge by the appellant of SC Savins in cross examination as to [11] of SC Savin’s statement. The appellant submitted that some of the evidence of the officer was hearsay, which was accepted, by the magistrate, correctly in my view as noted below. However those submissions were not directed to [11]. The paragraph reads as though it is based on police records. In the absence of any challenge to it I accept it to be accurate.

32.4. Ms Brown in her statement stated she had been in a relationship with the appellant for 12 years ending in 2016, and that throughout the relationship the appellant suffered from alcoholism and was abusive. This latter claim was particularised by an occasion when he bashed her head against a wall in Hong Kong when she was holding their daughter as a baby, resulting in an ambulance being called. On another occasion he pinned her down on a lounge by the throat, choking her. On another occasion in Queens Park Sydney the appellant threatened to kill Ms Brown, their child, and her family if she did not return to Hong Kong with her. Despite this Ms Brown remained in Australia and in 2013 moved back to her home town of Grafton. The appellant continuously returned to Grafton “taking over our home and forcing Clementine and I to flee to my parents house every time he returned. His alcoholism was extreme and no matter what I did he refused to accept that he was not welcome in our lives. The trauma caused to Clementine and I has been completely life altering” (at [4] of Ms Brown’s statement).

32.5. Ms Brown stated that AVOs had been in place over the last couple of years. This is supported by the appellants criminal history, which shows repeated breaches of s14 of the Act, to the point of imprisonment resulting. There were FCC proceedings on foot and Ms Eaton had been receiving counselling. In line with FCC orders Ms Eaton was to see the appellant at an Interrelate office on 19 March 2019 at 2.45pm. The appellant did not turn up. Based on hearsay Ms Brown says this was due to intoxication. In keeping with the approach of the magistrate, which I consider correct, this evidence should be given little if any weight. The magistrate did not treat evidence based on police records in that same way, that is, where the evidence was said to be based on police records rather than on something the officer was told, the magistrate gave it greater weight; see at T46.30 (and I take the evidence referred to at [32.3] to be in this category). Whilst that evidence is equally hearsay without the record itself being in evidence, no point was taken in this regard by the defendant on the appeal. The appellant maintained throughout the appeal that his days of intoxication were in the past.

32.6. Based on a belief the appellant was in Grafton, on 20 March 2019 Ms Brown packed some things and left her home to stay at her sisters with her daughter, who she kept out of school the next day for fear of the appellant turning up there. On 21 March (the Thursday) she went to her home to collect some things and it was there she saw the appellant in the backyard. She states as soon as she saw him she was petrified. She turned and ran as far as she could back to her car. She heard him yell “don’t ring the police we can work this out”.

33. I note that in cross examination it emerged that Ms Brown had suggested there be a time of contact of Ms Eaton with the defendant (T12.12). When Ms Brown was challenged about her evidence of being assaulted in Hong Kong and Queens Park, she gave compelling answers; see T18 and 19. The questions asked by the defendant on T21 acknowledge that the defendant was at the home of the protected persons on 21 March 2019.

34. The defendant relied on an affidavit sworn on 10 May 2019. This was referred to in the transcript but did not form part of the material the parties provided for this appeal. As it was part of the evidence in the hearing before the magistrate I have had regard to it. In that affidavit the defendant says he has not consumed alcohol since 1 January 2019 and then adds “(maybe one lapse)”. The defendant outlines what is a significant programme to deal with his alcohol issue. The defendant denies ever assaulting Ms Brown. The defendant sets out material seemingly for the purpose of suggesting that Ms Brown may have been physically abusing Ms Eaton, an allegation that was not put to Ms Brown in cross examination. The affidavit concludes by saying the defendant believes there is some kind of Grafton conspiracy against him, and that he believes the ADVO is a tool being used by Ms Brown for advantage in the FCC proceedings.

35. In cross examination the defendant conceded that his reference to “maybe one lapse” in relation to alcohol should have been “maybe a couple of lapses” and stated that he last had a drink 2 or 3 weeks ago. Later he conceded that he drinks occasionally when he has a lapse; T37.50. The defendant conceded he had been hospitalised for intoxication on 3 or 4 occasions. When asked about his numerous breaches of earlier ADVOs the defendant said they were all associated with the consumption of alcohol. I note in one answer the defendant volunteered that on his severity appeal to the District Court for contravening an ADVO he asserted the judge stated that to send him to gaol was farcical. I note the result of the appeal was to reduce the sentence from a sentence of 12 months imprisonment with a 5 month non parole period to 9 months imprisonment with a 3 month non parole period. The criminal history shows that this result saw the defendant released on parole without supervision 5 days after the severity appeal was heard. The parole period was nevertheless 6 months. In my view that result, whilst favourable to the defendant, is inconsistent with the unsupported assertion that the judge considered imprisonment farcical. The appellant’s criminal history showed he had breached earlier apprehended domestic violence orders at least 5 times in 2016 and 2017.

The magistrate’s decision

36. I note the nature of this appeal as considered above. It is not a hearing de novo. I must defer to the advantage of the magistrate having seen the witnesses. And in line with the preponderance of authority there needs to be demonstrated some error of fact law or discretion, or perhaps even more broadly that the decision is in some way wrong, though I consider the phrase “error of fact law or discretion” wide enough to cover aspects such as procedural fairness and miscarriage of justice, for those situations are bound to arise due to some decision that is faulty in either fact, law or an exercise of discretion.

37. To this end the task is made difficult due to the failure of the appellant to address either on what error it is said the magistrate has made, nor identify in terms of s16 why the magistrate should not have been satisfied to make the order as he did, beyond the broad brush assertions recounted above and which, with the greatest respect to the appellant amount to not much more than a broadcasting of his various opinions.

38. The magistrate’s judgment commences at page 45 of the transcript (T45). The magistrate referred to the objects of the Act set out in s9, which include to reduce and prevent violence to women and later referred to the Act’s reference also at s9 to violence extending beyond the physical and to power imbalances and patterns of abuse over many years. The magistrate accepted the appellant’s point as to the length of time that the provisional and then interim orders had been in place, but also stated he did not place any weight on the assertion that had the proceedings been heard earlier any order would have been made for any particular duration; T47.30. I take that to mean that had the matter been heard earlier, and an order had been made, it may well still be on foot at the time of the hearing then being determined by the magistrate, hence it is not a point the magistrate gave much weight.

39. The magistrate then turned to consider s16 and also set out the definition of intimidation from s7 and then identified three matters that needed to be established on the balance of probabilities, beyond the fact of a domestic relationship which he had found was established. The first is that Ms Brown fears intimidation by the appellant; the second is that there are reasonable grounds for those fears, and the third is that the conduct (ie, of the appellant relied upon to establish the relevant fear) is sufficient to warrant the making of the order.

40. As to the first element, which is plainly subjective, the magistrate was satisfied that Ms Brown did in fact fear, I would interpolate, intimidation, if not violence, though the setting out of s7 and the definition of intimidation suggests that was the focus, and in my view rightly so. The magistrate seems to come to this view at T49.10-.15, albeit not expressly. It clearly is his finding that the relevant fear was established given the making of the order. No challenge was made in any discernible way by the appellant to this finding, which in any event in my view was well open on the basis of the evidence of Ms Brown set out above, and which was not shaken in cross examination. The firmness of the answers of Ms Brown in cross examination in my view strengthened her evidence in chief.

41. As to the second element, that requires objective assessment. At T51 the magistrate found that this too was satisfied, though it must be said he made that finding without any reference to specific parts of the evidence. With respect to the magistrate, he had just heard the evidence. An oddity of the magistrate’s reasons is he seems at some pains to disregard the more historic evidence; at T50.13 the magistrate states the earlier breaches of the AVOs are of no significance; and he repeats this at T50.45. At T46.46 the magistrate states in effect that at some point “historical” matters can be only of minimal relevance. To some extent this matches up with the point of the appellant, which is to say in essence the order is not necessary, although that is a different test to what is set out in s16. Despite these comments of the magistrate, at T51.23 the magistrate states he is satisfied there is a reasonable basis for Ms Brown’s fears due to the history of the relationship and the fact there will be ongoing contact until the final hearing of the FCC matter. Whilst there is some apparent inconsistency in this statement of reasons, my view is the ultimate conclusion is well supported by the evidence. In my view the evidence gives a sound basis for the fear of Ms Brown having reasonable grounds. Her evidence was of being assaulted in the past, and having been threatened, and of having endured earlier AVO proceedings and 3 years of disruption to her life requiring her to leave her home when the appellant came to Grafton. Added to this was her evidence, albeit open to criticism for being largely assertion, of the appellant’s history of alcoholism, though the defendant’s own affidavit makes it plain that his “issue” with alcohol as at 1 January 2019 required significant steps by him to be controlled. Where there was dispute was whether alcohol remained a problem for the appellant. Ms Brown asserted he appeared intoxicated in Court; there was evidence, albeit of little weight but involving police of being unconscious and intoxicated in public on 19 March 2019. Then two days later he is found in the backyard of her home at least two years after separation and in the midst of what were plainly emotional and contested FCC proceedings. The defendant’s stated purpose was to deliver presents to his daughter at a time when the FCC orders do not permit unsupervised time with her. As to the present position with alcohol, the evidence of the defendant himself was variable, beginning with no alcohol consumed since 1 January 2019, with the exception of one lapse (the affidavit was sworn 10 May 2019), which became maybe two lapses, and the last occasion of drinking was 2 or 3 weeks before. Although not expressly found to be so by the magistrate, that evidence has the hallmarks of being unreliable due to its variability.

42. The magistrate did not in terms address the third element, that is whether the conduct of the appellant was sufficient to warrant the making of the order. It would appear the magistrate rolled his consideration of elements 2 and 3 together. In my view the conduct just set out in the previous paragraph warrants the making of the order. It needs to be remembered that the appellant denies ever assaulting Ms Brown, yet her evidence is of both physical and psychological assault, and her evidence was plainly accepted by the magistrate given he made the ADVO. In my assessment of the evidence reviewed above I too would prefer the evidence of Ms Brown. She was consistent and emphatic. The appellant did raise a legitimate point about an inconsistency as to whether or not he was banging on the walls of the home in Alice Street, and I have taken that into account in assessing Ms Brown’s evidence. The uncontested fact is the appellant in circumstances of ongoing contested FCC proceedings, and the history of the relationship as set out above, had travelled from Sydney to Grafton with no evidence of giving notice, to be discovered by Ms Brown in the backyard, whereupon, petrified, she immediately left. Ms Brown was a far better witness than the appellant, who was variable in respect of the significant issue of his alcohol use, and often went off on tangents. The evidence of Ms Brown, police evidence, the criminal history of the appellant, and the evidence concerning alcohol, all support the making of the ADVO.

43. The magistrate said more than once that he considered there was some merit in the argument for the appellant that the passing of time since the application was made meant no final order was necessary. The term of the order applied for was two years; the magistrate took into account that orders had been in place since March 2019, which explains the order being for a period of some 9 months, and not the two years as sought. One basis for this continuation of orders was that the FCC proceedings were ongoing; T51.23). As it happens, on this appeal the final FCC orders were in evidence, that is, those proceedings are as concluded so far as such proceedings can be. The appellant did not make what would appear to be an obvious submission in his favour, namely that this was evidence not available at the hearing before the magistrate, and it removes one basis the magistrate identified for the length of the order he made. However when saying that at T51.23 the magistrate also relied on the history of the relationship. My view is that even allowing the appellant the benefit of considering this submission as having been made by him, the duration of the order should remain as it is. This is not only because of the history of the relationship, but also because the period immediately following the final FCC orders, which is now as the orders were made on 16 February 2021, has the potential to be an emotional period given the emotive issues as to their daughter just decided. Furthermore I note order 3 allows for the child to spend time with the parents for such frequency “as the parties may agree”, hence maintaining a potential need for ongoing contact, through lawyers, in a way not too far removed from the type of contact the magistrate was concerned about prior to the final orders.

Conclusions

44. The appellant has not identified any error in the approach of the magistrate. The appellant has not identified any error of fact, law or discretion in the reasoning of the magistrate leading to the determination to make the ADVO. My above review of the evidence and the reasoning of the magistrate has also failed to find any such error.

45. If the role of the appellate court is to make the decision it considers the right one regardless of any error being found, then I consider the decision below to be correct for the reasons outlined above.

46. I note that in the course of the appeal, nearing its conclusion, the appellant made a remark to the effect that he could contact Ms Brown anyway as he was a lawyer and the order was framed that he could only contact her through a lawyer. In relation to this the transcript shows that it was made plain to the appellant in the course of the hearing before the magistrate that the exception of “through a lawyer” did not include that it could be him; see T28.23; further, when the interim order was made, there is a note on the papers to this effect, and the final orders of the magistrate are expressed in those very terms. That the appellant would be so contrived as to make such a remark lends force to the need for some continuing order.

Orders

1. I give leave to the appellant to commence this appeal out of time.

2. I give leave for the filing of further evidence being the final FCC orders of 16 February 2021.

3. The appeal is dismissed.

4. The orders of the court below are confirmed.

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Decision last updated: 26 February 2021