| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CALABRO -v- SEMPLE [2013] WADC 93 CORAM : BRADDOCK DCJ HEARD : 27 MARCH 2013 DELIVERED : 13 JUNE 2013 FILE NO/S : APP 102 of 2012 BETWEEN : DOMINIC CALABRO Appellant
AND
KYLIE NICOLE SEMPLE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE LAWRENCE File No : JO 707 of 2012 Catchwords: Appeal - Violence restraining order - Act of family or domestic violence - Intimidating, offensive or emotionally abusive -Turns on own facts
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Legislation: Magistrates Court (Civil Proceedings) Act 2004 pt 7
Restraining Orders Act 1997 s 3, s 4, s 6, s 40, s 43, s 64 Result: Extension of time granted to lodge appeal
Appeal dismissed
Representation: Counsel:
Appellant : In person
Respondent : Mr H J Paiker
Solicitors:
Appellant : Not applicable
Respondent : Paiker & Overmeire
Case(s) referred to in judgment(s):
Butler v Bennett [2007] WADC 107
House v The Queen (1936) 55 CLR 499
Lydon v Lydon [2008] WASCA 8
Walsh v Baron [2012] WADC 165
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Introduction 1 Dominic Calabro and Kylie Nicole Semple were formerly in a de facto relationship. The relationship lasted for about five years and produced two children who are now aged five and seven. The relationship came to an end in April 2007. Since which time the parties have lived separately, and arrangements have been made whereby Mr Calabro spends time with his children. 2 On 29 May 2012, Ms Semple made an application for a violence restraining order, in the Joondalup Magistrates Court. The application was based upon two incidents, one on the night of 28 May 2012 at 5 Medina Place in Balga and the other on 11 May 2012, when Ms Semple was collecting her daughter from Mr Calabro's residence in Balcatta. Ms Semple further alleged that there had been over the last five years behaviour which resulted in her feeling bullied, threatened, harassed and intimidated. Her application was supported by an affidavit in standard form setting out the details of these matters. 3 On 6 June 2012, the application was heard by Magistrate Gluestein and an interim violence restraining order was granted. The order was served, an objection was lodged, and the matter adjourned to a final hearing. Subsequently, Mr Calabro brought an application for a change of venue to Perth, and for 'disclosure'. This application was heard on 6 September 2012, when the application was sent to Perth and no order was made in relation to 'disclosure'. 4 The first appearance in Perth was on 20 September when a hearing was listed for hearing on 8 November 2012. On 8 November 2002 Magistrate Lawrence heard the application and Ms Semple was called as the only witness in the proceedings. 5 Apart from the interim order on 6 June 2012, Ms Semple has been represented throughout these proceedings by Mr Paiker. Mr Calabro has represented himself at each stage of the proceedings after the order was served. 6 On 8 November 2012 Magistrate Lawrence confirmed the order and from this determination Mr Calabro appeals to this court. (Page 4)
7 The order was in uncontroversial terms, binding Mr Calabro: 1. not to communicate or attempt to communicate with Ms Semple except by email for the purpose of making child contact arrangements; 2. not to enter or remain on 5 Medina Place, Balga or any other premises where Ms Semple lives or be within 100 m of the nearest external boundary of such premises; 3. not to approach within 50 m of Ms Semple; 4. not to behave in a manner that is intimidating or offensive or emotionally abusive towards Ms Semple; and 5. not to enter or remain upon to the property at 295 Victoria Road, Malaga.
This appeal 8 Mr Calabro's appeal to this court was filed on 14 December 2012. It contains some 15 grounds: 1. Leave to extend the time for application to appeal within 21 days Rule 53(6) of the District Court Rules 2005 and originating from O 3 r 5 of the Rules of the Supreme Court 1971 2. The Magistrate erred in finding that the respondent's behaviour justified the imposition of a VRO because the relevant acts of abuse complained of by the Claimant were merely offensive and did not involve any acts of physical violence. 3. The Magistrate erred in concluding that the respondent was likely to again commit such acts of abuse. 4. The Magistrate erred in allowing evidence that had not been exchanged. 5. The Magistrate erred in not taking into consideration the claimant's behaviour as being provocation of any offensive behaviour. 6. The Magistrate erred in continuing the hearing once informed that there was an appeal in the District Court with regards to decisions made by previous Magistrates and not granting an adjournment per section 67(1)(a) of the Restraining Orders Act 1997. 7. The Magistrate erred in not considering that the definition for 'act of abuse' to mean 'an act of family and domestic violence or an (Page 5)
act of personal violence' as per Section 3 of the Restraining Orders Act 1997. 8. The magistrate erred in taking the behaviour as being ongoing as opposed to occasional or past. 9. The magistrate erred in making a Violence Restraining order because of general feelings of animosity between the parties or because it seems preferable that contact between the parties might be prevented or minimised: Low v Weber [1999] WASCA 274. 10. The Magistrate erred in dealing with the issue of a restraining order simply on the basis of what is prudent or desirable and not giving regard to the legal rights of both parties: McWaters v Shirley [2005] WASC 188 [29]. 11. The Magistrate erred in making the VRO's lightly. It stigmatises the Respondent as being a violent person from whom the Claimant requires to be protected by the court and the restraints that may be imposed significantly curtails the Respondent's ordinary freedom: McKenzie v Picken [2002] WASCA 113 [34]. 12. The making of a VRO is a serious step, having serious consequences for the person against whom the order is made: McKenzie v Picken [46]. 13. The Magistrate erred in giving consideration that 'behaving in an ongoing manner that is intimidating, offensive or emotionally abusive' have the effect that actual or apprehended violence: Walsh v Baron [2012] WADC 16 [35]. 14. The Magistrate erred in granting the VRO as it brands the Respondent as an abusive person from whom the Claimant requires the protection of the court which significantly curtails the Respondent's personal freedom. The granting of the VRO should not have been taken so light as Anderson J (with whom Steytler J agreed) held in McKenzie v Picken. 15. All costs of the claimant reserved or otherwise be vacated. 9 The first 'ground' of appeal is not a ground of appeal at all but an application to extend time. It was not disputed that the notice of appeal was filed one week late. At the hearing of the appeal, I extended time for the filing of the notice to 14 December 2012 and gave my reasons at the time. These were that Mr Calabro was representing himself, the delay was a short delay, there was no additional prejudice occasioned to Ms Semple over and above the prejudice of having to meet an appeal. Mr Calabro submitted that he had, after the decision was made, learned of (Page 6)
a decision of this court about a restraining order which having located he read and from then decided to prepare grounds of appeal. 10 At the hearing, there was some misunderstanding which resulted in Mr Paiker being under the misapprehension that the listing was only for directions in relation to the application for extension of time. However, after that matter had been determined, Mr Paiker elected to proceed. Mr Calabro had come prepared to argue his appeal. This was, in the circumstances, a sensible, pragmatic way to approach the matter. 11 Section 64 of the Restraining Orders Act 1997 provides that a person aggrieved by a decision of this kind may appeal in accordance with the Magistrates Court (Civil Proceedings) Act 2004, pt 7. Section 40 of the Act provides that on such an appeal, the District Court must decide the appeal on the materials and evidence that were before the Magistrates Court, and any other evidence that it gives leave to be admitted. Such leave may only be granted in exceptional circumstances: s 40(4) and s 40(5) of the Act. The Rules of the District Court 2005 provide that an appeal is by way of reconsideration of the evidence; therefore this is an appeal by way of rehearing. However, to disturb the judgment of the magistrate, error must be shown. The making of a final violence restraining order is a discretionary decision, and the proper approach to the appeal is to consider whether the magistrate acted on a wrong principle or allowed extraneous or irrelevant matters to affect the judgment, made a mistake of fact or omitted to consider some relevant material. Further, if the result were to be considered unreasonable or plainly unjust then the court might interfere. This is a principle which has been expounded in relation to discretionary decisions for many years, following House v The Queen (1936) 55 CLR 499. It was recently discussed in the context of restraining orders: Butler v Bennett [2007] WADC 107 (Bowden DCJ). 12 At the hearing, I invited submissions from Mr Paiker and Mr Calabro as to the form of the grounds of appeal. Subsequently, I struck out ground 4, pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act. In my view, the question of disclosure had no relevance to the proceedings before me, was likely to waste time, and did not disclose any error on the part of the magistrate. Mr Calabro had argued before the Magistrates Court that he should be given witness statements prior to the full hearing of the matter. Magistrate Gluestein had declined to make any order, on the basis that there was no obligation to do so under the Restraining Orders Act. Further, as it turned out, there was no material (Page 7)
which Mr Calabro had not practically had notice of and he could not point to any injustice arising out of this alleged issue. 13 On analysis, the remaining grounds of appeal can be summarised as three specific matters: (a) that the evidence did not disclose conduct by Mr Calabro sufficient to justify the making of a violence restraining order because there was no evidence of any acts of physical violence; (b) that there was no evidence from which the magistrate could conclude that the conduct might be repeated if there was no restraint; (c) that the making of a violence restraining order in the circumstances was disproportionate. 14 Grounds 9 to 13 appear to be direct quotes from the decision of Staude DCJ in Walsh v Baron [2012] WADC 165, the decision handed down shortly after the order was made, to which Mr Calabro had reference prior to lodging the appeal. They are broad statements of uncontested principles not related to any aspect of the evidence or decision directly.
The evidence 15 Ms Semple said that on 11 May Mr Calabro had picked up the children from school and taken them to his place of residence. This was in Balcatta. The arrangement was that Mr Calabro's son would have a sleep over with his father that night so that his father could take him to Aus Kick in the morning. After work Ms Semple picked up her daughter from Mr Calabro. At this time, Mr Calabro spoke to Ms Semple. Her evidence was that he said he needed to talk to her, that her boyfriend was not allowed to come to the house (which he referred to as his house), and that she was not to disobey him. He told her that she could go to her boyfriend's house but that he could not go to her house. She said that this caused her to feel panicky and upset, she did not know how to react and she said to him 'what do you mean, its your house?' She became emotional, her daughter became emotional, and she got into her car and left. Ms Semple said that she finds Mr Calabro very threatening and intimidating but that he was not physical. 16 Ms Semple said that she had obtained an application which enabled her to download from her iPhone all her text messages and print them out. (Page 8)
She gave evidence of those text messages going back to 8 May. Those messages were produced and the magistrate admitted them in evidence on the basis that they were produced and written by the applicant who confirmed the material. Mr Calabro did not dispute the material or his part in it. 17 Significantly, she gave evidence of a message from Mr Calabro on 9 May 2012 at 00:35 hours. The message said 'I was the best thing you ever had all these faggots you've been sleeping with are but remnants I feel sorry for you'. This message woke her up and she found it distressing. She further gave evidence that there were, on 11 May, over 40 missed calls that showed up on her phone as text messages where no voice message was left. There was a heated exchange of text messages in the late afternoon of that day. At 16:41 Mr Calabro sent a text message saying 'Alright Kylie. I see you haven't changed. I have though. Smarter. More conviction. And I never lose. I see everything right through to the end and I achieve everyone of my goals. Be prepared for a lot more disappointment if your goals don't align with mine!' There followed many unanswered calls during the evening, continuing until at 10:02 at night there was a text message from Mr Calabro: 'Iain't going away!!' and at 10:05: 'I'mhere open up so we can chat'. In relation to that, Ms Semple said she did not see Mr Calabro that night, she was in bed at the time. She panicked and called the police, who arrived fairly quickly. Ms Semple said that she was stressed and upset, feeling harassed and anxious as a result of these messages. 18 The following morning she said she went to Auskick to collect her son, but Mr Calabro did not permit her to do so. That was the Saturday morning. However, by Tuesday, she said that he called her as if nothing had happened, they talked about the kids and everything was back to normal. 19 The 28 May 2012 was the first night that Ms Semple's boyfriend stayed at her house. She had known her boyfriend for two years. She said they were asleep and the children were asleep when just after 11.00 pm her phone started to ring. It woke her up and she answered it. She said that Mr Calabro was yelling at her 'I told you he's not allowed at your house' to which she responded 'leave me alone'. She became upset, her boyfriend became upset, she received further repeated phone calls. At 23.17 she received a text message saying 'Answer the phone you coward'. At 23:22 she received a text message saying 'Threatened cops and can't answer your phone hey coward'. At 23:29 she received a text message saying 'This will never end Kylie. He has the right to talk to me (Page 9)
now. You can't keep this a secret'. At 23:33 a text message reading 'You should ask him if he is willing to go to the cops'. In addition to the text messages, Ms Semple said she received approximately 20 missed calls. After that she said that she heard a vehicle out the front of her house, she looked out of the window and she saw the car that she knew Mr Calabro to be using pull into her driveway. Then her boyfriend's phone began to ring. He received a text message 'Best you call me buddy'. She said that the mobile phone number of her boyfriend was written on the back of his ute which was parked in her driveway. 20 Ms Semple said that this behaviour made her feel sick. She said that she felt that Mr Calabro was trying to upset her life, to intimidate her and to bully her and she wished to be left alone. Ms Semple also produced a download of the text messages to her boyfriend, the details of which are not material. 21 Mr Calabro cross-examined Ms Semple at some length. She confirmed that she did not see Mr Calabro's vehicle on 11 May outside the house, she heard only a noise. She confirmed the following morning she did not resume care of her son Thomas because at the time, at Auskick, Mr Calabro took him by the hand and took him away. In relation to the conversation on that day she said that Mr Calabro had said two things, firstly that Thomas had told him that she had smacked him, and that she was not to smack him. She admitted becoming defensive at that point, she responded that she would take that on board. She denied belting the boy, she admitted smacking the boy. It was put to her that she said that she could discipline the boy as she wished. She denied this and she said that it was Mr Calabro who said he would do the disciplining. She said she was feeling very uncomfortable at this point. She confirmed that she had her back up because he had approached her in a manner that she felt was threatening and upsetting. In relation to the rest of the conversation, she confirmed was Mr Calabro said that her boyfriend was not to come to the house, referring to it as his house. She confirmed that she continued to feel threatened. She also confirmed that there was no physical violence on that day and that Mr Calabro had not hit her. She confirmed that she believed him to be aggressive. She mentioned a previous occasion when Mr Calabro had thrown a chair, but it did not hit her. She accepted that she had said, on the telephone on the night of 11 May, words to the effect that if Mr Calabro caused problems between her and her boyfriend, she would call the police. She gave more detailed evidence as to the parking of the vehicles in the driveway and the fact that on the back of her boyfriend's car was written 'Creative Paving Services' with his mobile number. (Page 10)
22 She was also cross-examined at some length about an issue between them concerning the daughter's health. The girl suffers from epilepsy. There was an incident where the child was taken to hospital which caused the children to miss time with their father, and an arrangement was made for the daughter to be brought to the police station to be handed over to Mr Calabro. These lines of cross-examination were curtailed by the magistrate as relevant to family court issues concerning the care and welfare of the children. I agree with that view. What was apparent from the evidence was that the parties had shared custody of the children and that at times Mr Calabro was very insistent about the way in which things should be done: for example, the appropriate medication for her daughter. 23 Mr Calabro introduced into evidence, during cross-examination of Ms Semple, the text messages downloaded between Mr Calabro and Ms Semple's boyfriend. It would appear there was name calling by the boyfriend towards Mr Calabro. 24 Ms Semple was the only witness called on the application for this violence restraining order. Mr Calabro did not wish to give evidence when invited to do so.
The decision of the magistrate 25 The magistrate gave reasons for his decision. He reminded himself that the applicant bears the burden of proof on the balance of probabilities on an application under the Restraining Orders Act. He noted that the only evidence before him was the evidence of the applicant and assessed her as being a reliable witness. He noted the history of the parties' relationship and referred specifically to the two incidents upon which the applicant relied. He found that Mr Calabro had been applying consistent pressure upon Ms Semple concerning her raising of the children and her relationship with her boyfriend. He noted that the proceedings did not concern parenting orders. He accepted Ms Semple's evidence as to the content of the conversation on 11 May concerning the boyfriend staying over at the house. He concluded that, that in Mr Calabro's mind, Ms Semple was supposed to comply with his directions. 26 He noted that Mr Calabro had never been physically violent towards Ms Semple, and that in this respect, Mr Calabro had missed the point. He found that the thrust of some of Mr Calabro's questioning was to suggest that Ms Semple had been provocative. He did not make any such finding but said that Ms Semple had a right to be left alone. He found that multiple calls to Ms Semple and her boyfriend in the middle of the night did not amount to being left alone and that such behaviour was (Page 11)
emotionally abusive. He said that he had no doubt that calls around 11.00 pm and 12 o'clock at night, in those circumstances, were emotionally abusive. 27 Ms Semple had given evidence that she was concerned about Mr Calabro's behaviour and the magistrate found the behaviour did appear to be escalating. By reference to the calls on 11 May and 28 May he found that there was an escalation in this behaviour. He accepted Ms Semple's evidence as to the events of each evening. He noted that she had not sought to rely upon the throwing of a chair or the behaviour of Mr Calabro at the hospital, which material was only elicited in cross-examination. Furthermore, Mr Calabro elicited in cross-examination an earlier veiled threat, upon which Ms Semple had taken no action to obtain a restraining order. In relation to emotional abuse, the magistrate referred to the decision in Lydon v Lydon [2008] WASCA 8 in which it was said that: Emotional abuse involves improper or inappropriate behaviour, verbal or non-verbal, that adversely impacts upon another person's emotional wellbeing. Emotional abuse improperly excites strong unwelcome feelings in another. Emotional abuse may involve coercion by intimidation, inducing fear, stalking, or harassment, that is words, conduct or action, usually repeated or persistent … 28 Magistrate Lawrence noted that Mr Calabro had behaved politely in court but found that the ground of emotional abuse had been fully made out by the statements made to the applicant, by dictating who could stay at her house, by sending the text messages, by being in the driveway late at night and making repeated calls or texts to her and her boyfriend.
The law 29 Section 11A of the Restraining Orders Act 1997 provides: A court may make a violence restraining order if it is satisfied that - (a) the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person; or (b) a person seeking to be protected, or a person who has applied for the order on behalf of that person, reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected, and that making a violence restraining order is appropriate in the circumstances. (Page 12)
30 Section 3 of the Act defines an act of abuse to mean 'an act of family and domestic violence or an act of personal violence'. Section 6(1) defines 'an act of family or domestic violence' as one of a number of prescribed acts that a person commits against another person with whom he or she is in a family and domestic relationship, including relevantly behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person. 31 Section 6(4) provides that intimidate has the same meaning as in s 338D of the Criminal Code. 32 Offensive has a number of common meanings, it may mean hurtful, harmful, injurious, it is something more serious than annoying, insulting or displeasing. 33 A family and domestic relationship is defined in s 4(1)(f) to mean a relationship between two persons who have or had an intimate personal relationship or other personal relationship with each other. The matters to be considered in deciding a violence restraining order are set out in s 12 and include, relevantly, the need to ensure that a person seeking to be protected, is protected from acts of abuse and the need to prevent behaviour that could be reasonably be expected to cause fear that the person seeking to be protected will have committed against them or an act of abuse.
Discussion 34 There is no dispute that Ms Semple and Mr Calabro were in a family and domestic relationship, having cohabited and produced two children. They have an ongoing relationship in relation to those children. It is not in dispute that there has been no actual relevant physical violence between the parties. The magistrate did not consider and I do not propose to place any weight upon the matter referred to under cross-examination of throwing of a chair some years previously. 35 Before the magistrate, and again on this appeal, Mr Calabro did not fully appreciate the breadth of s 6(d) of the Restraining Orders Act. Neither did he appreciate the extent to which Ms Semple or others might consider his behaviour to be offensive or intimidating. Mr Calabro did not appear to see that there was anything untoward in repeatedly telephoning a person in the middle of the night, but rather sought to argue the meaning of the phrase 'the middle of the night'. His position was that different people kept different hours. (Page 13)
36 In my view, no error has been demonstrated on behalf of the magistrate in finding that Mr Calabro's conduct was emotionally abusive. I also would find his behaviour to be intimidating. To make repeated phone calls in the manner in which he admitted he did, to demand that his former partner speak to him in those circumstances and to attend at her house after 11.00 pm at night for the purposes of obtaining a phone number in order to telephone her boyfriend, is more than merely annoying or rude. This behaviour has to be considered in the context of an ongoing relationship, which in its very nature will have strains and requires the parties to behave in a civilised fashion in order to care for their children. The magistrate came to the view on the evidence that Mr Calabro's attitude was 'its my way or the highway'. Mr Calabro had no difficulty in accepting the proposition that he was persistent. 37 In my view, on this evidence, the magistrate was right to conclude that there appeared to be an escalation in the intrusive and offensive behaviour of Mr Calabro towards Ms Semple. In this context, there is no error disclosed in finding that the behaviour in May 2012 insofar as it concerned Mr Calabro making demands as to who should or should not stay at Ms Semple's residence, and making demands that she communicate with him whenever he called her, demonstrates an escalation in behaviour culminating in the events of the night of 28 May, which displayed behaviour which was quite outrageous. In those circumstances at the time of the granting of the order there were good grounds to conclude that restraint was required to prevent any repetition. Ms Semple's reactions to the behaviour were not extreme. Her evidence was clear: she felt intimidated, bullied and afraid of the behaviour of Mr Calabro, and, on the night of 28 May, she felt sick.
Conclusions 38 Despite the fact that the text messages indicate that at other times of the day there were civilised communications between the parties concerning the arrangements for the children, the behaviour complained of amounts to emotional abuse. The conduct in May 2012 was escalating in intensity and restraint was justified to curtail it. 39 There is no defence of provocation available if behaviour is of such a quality in the circumstances as to amount to an act of family and domestic violence. That is sufficient to deal with grounds 2, 3, 5, 7 and 8 of the notice of appeal. There was no provocation disclosed on the evidence. 40 Ground 6 is reference to an appeal that Mr Calabro had brought erroneously, which was subsequently discontinued, and is quite irrelevant. (Page 14)
41 As I have previously noted, grounds 9 to 14 quote directly from the decision of Staude DCJ where he stated general principles in relation to the restraining order jurisdiction. These matters appear at [31] of the judgment: Walsh v Baron. There is no evidence to suggest that the magistrate's reasoning based the order upon general feelings of animosity (ground 9). There is no basis to suggest that the magistrate dealt with the matter simply on the basis of what was prudent or desirable (ground 10). There is no basis to suggest that the magistrate made the violence restraining order lightly. The magistrate heard the evidence, gave detailed reasons and in my view was correct in the reasoning process applied to the evidence. There is no basis for the complaint made in ground 11. 42 The making of a restraining order is a serious step and is always potentially likely to have serious consequences. I am satisfied that the magistrate was well aware of the seriousness of the allegation made and the consequences of granting an order. 43 Accordingly, none of the grounds of appeal proposed by Mr Calabro has been established. I am satisfied that the magistrate had ample grounds to make the order that he made and that the evidence indeed supports the determination that he made. Accordingly the appeal will be dismissed.
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