G v G
[2010] QDC 360
•24/09/2010
DISTRICT COURT OF QUEENSLAND
CITATION: G v G [2010] QDC 360 PARTIES: G
(Appellant)v G
(Respondent)FILE NO: 158/09 PROCEEDING: Appeal ORIGINATING
COURT:Magistrates Court at Southport DELIVERED ON: 24 September 2010 DELIVERED AT: Southport HEARING DATE: 15 September 2010 JUDGE: Newton DCJ ORDER: Appeal allowed in part. Order of Magistrate varied. No
order as to costs.CATCHWORDS: FAMILY LAW – Domestic Violence – What amounts to an act
of domestic violenceDomestic and Family Violence Protection Act 1989, ss
6(1)(a), 11, 20, 64(2)(a) & (b)COUNSEL: The appellant conducted his own case
Mr P Wilson for the respondentSOLICITORS: W P Lawyers for the respondent
On 2 March 2009 a Magistrate at Southport made a domestic violence protection order in the following terms:
“1. The [appellant] must be of good behaviour towards the aggrieved
[respondent] and not commit an act of domestic violence.2. The [appellant] must be of good behaviour towards any named person in this order and not commit an act of associated domestic violence against that named person.
3. The [appellant] is prohibited from going to within 100 metres, of entering or remaining in premises with the aggrieved or any named person resides or works [sic].
4. The [appellant] is prohibited from having or attempting to have any contact, including by any means of communication, either director or indirectly, with the aggrieved.
5. The [appellant] is prohibited from following or approach [sic] to within 100 metres of the aggrieved when the aggrieved is at any place.
6. The [appellant] is prohibited from having or attempting to have any contact, including by any means of communication either directly or indirectly, with the named person.
7. The [appellant] is prohibited from following or attempting to approach within 100 metres of any named person, when that named person is at any place.
8. The [appellant] is prohibited from going within 200 metres of the boundary of any premises where the child of the aggrieved attends school.”
The named person is the child of the appellant and the respondent in these proceedings.
The Magistrate directed that the order was to continue in force for five years.
The appellant now appeals to this Court against the order of the Magistrate. The grounds of appeal were particularised as required by the legislation on the notice of appeal[1] as follows:
[1] Domestic and Family Violence Protection Act 1989, s 64(2)(a) and (b).1. The Magistrate failed to give reasons or proper reasons for the decision.
2. The findings of fact made by the Magistrate were not properly open on the
evidence.3. The Magistrate did not apply the correct test to determine if there had been a
domestic violence, in particular, an act (or acts) of intimidation or harassment.4. The Magistrate wrongly concluded the appellant was likely to commit a future act
of domestic violence.5. The Magistrate wrongly concluded that there were special reasons for the
protection order to continue for a period longer than 2 years.
At the hearing of the appeal the appellant conducted his own case without the assistance of legal representatives.[2] He identified five points which he wished to emphasise in his oral submissions, viz.:
[2] The appellant also had no legal representation in the lower Court.
(a)
the Magistrate failed to give any reason why the named person should have appeared on the order;
(b)
there was no evidence to suggest that any act of domestic violence had been committed against the named person;
(c)
the Magistrate did not apply the correct test in determining whether there had been any act of domestic violence, any act of intimidation or any act of harassment towards the named person;
(d)
the Magistrate wrongly concluded that the appellant was likely to commit a future act of domestic violence against the named person; and
(e)
the Magistrate wrongly concluded that there were special reasons for the protection order to continue for a longer period than 2 years.
The appellant confirmed that his main concern related to the inclusion of his child as a named person on the order. I was informed that the appellant would not be opposing a domestic violence order being made against him in respect of the respondent only. Indeed, the appellant stated that he would not oppose an order being made for five years in relation to the respondent alone.[3]
[3] Transcript of appeal hearing, p1-4, lines 40 to 60.In his reasons for his decision the Magistrate identified three acts of domestic violence supporting the application before him. These related to the appellant attending at the respondent’s residential complex unannounced in order to see the child of the parties, the sending of a letter by the appellant to the respondent which the respondent considered threatening and intimidating, and attending at the high school where the child (the named person) was attending.[4]
[4] Decision, p1-5 lines 20 to 35.The Magistrate accepted that there had been a substantial history of domestic violence between the parties and that the appellant had been the subject of three previous domestic violence orders over a period of a number of years. It was noted that the appellant admitted in his evidence-in-chief that he had breached those orders on three occasions.[5]
[5] Decision, p1-5 lines 45 to 50.In his reasons the Magistrate stated:
“I accept that [the respondent] indicated in evidence-in-chief that the subject letter was intimidating which caused [her] to be personally intimidated and of being scared of [the appellant] and what he would do. I accept the contents of the subject letter, could, in the light of the history between the parties, be considered to be threatening and intimidating in nature. I accept the attendance by [the appellant] at the subject property of [the respondent], unannounced, may be considered intimidating, even if [the respondent] did not personally see [the appellant] on that occasion.
I also accept the … High School incident may have caused genuine concern for [the respondent] and also the interests of the [named person]…”[6]
[6] Decision, p1-5 line 51 to p1-6 line 21.The letter referred to in the Magistate’s reasons was a handwritten document extending over some 18 pages. It may fairly be described as somewhat rambling in scope but it is not on its face threatening or abusive. There are, it must be said, references to the possibility of advising Centrelink of the fact that the respondent was living in a de facto relationship and of alleging that the respondent had perjured herself in previous court proceedings. However, the author of the letter clearly indicates that he would not carry out any such course of action.
The letter emphasises the appellant’s love for the named person (the child of the parties). His concern for the welfare of the child is repeated at several points in the document.
Given the appellant’s preparedness to submit to and abide by a domestic and family violence protection order in respect of the respondent (without the inclusion of the named person), it is unnecessary to consider whether the letter may reasonably be understood as containing threatening or harassing material in respect of the respondent. However, on any reading of the document it is, in my view, simply not possible to infer threats, intimidation or harassment in respect of the named person. The Magistrate found that “the letter was clearly improper and can be clearly described as intimidating or threatening towards [the respondent] and, indirectly, against the best interests of [the named person].”[7] This is not the test prescribed by the legislation.
[7] Decision, 1-7, lines 39 to 42.The power of a Court to make domestic violence orders derives from section 20 of the Domestic and Family Violence Protection Act 1989 (“the Act”), section 20:
“20 Power of court to make order to protect person with a
domestic relationship against domestic violence
(1) A court may make an order against a person for the benefit of
someone else (the other person) if the court is satisfied that—(a) the person has committed an act of domestic violence against the other person and a domestic relationship exists between the 2 persons; and
(b) the person--
(i) is likely to commit an act of domestic violence
again; or
(ii) if the act of domestic violence was a threat--is
likely to carry out the threat.(2) A person who counsels or procures someone else to commit an act that, if done by the person, would be an act of domestic violence is taken to have committed the act.
(3) If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court reasonably considers appropriate.”
The power of a Court to make orders to protect relatives of an aggrieved person against violence derives from section 21 of the Act:
“21 Power of court to make orders to protect relatives or
associates of aggrieved against violence etc.(1) The court may include the name of a relative or associate of an aggrieved in a domestic violence order made for the benefit of the aggrieved if the court is satisfied that the respondent has committed, or is likely to commit, any of the following acts against the relative or associate--
(a) wilful injury;
(b) wilful damage to property of the relative or associate;
(c) intimidation or harassment;
(d) a threat to commit an act mentioned in paragraphs (a) to
(c)(2) A person who counsels or procures someone else to commit an act that, if done by the person, would be an act of associated domestic violence is taken to have committed the act.”
There was no evidence before the Magistrate from the named person nor was there any evidence that the appellant had committed, or was likely to commit, any wilful injury to the named person or wilful damage to that person’s property. Furthermore, there was no evidence before the Magistrate that the appellant either had committed or was likely to commit any intimidation or harassment against the child or that a threat had been made by the appellant to commit any such act.
The attendance by the appellant at the child’s school undoubtedly has sinister connotations. The evidence disclosed, however, that the appellant simply went to the school office and did not, in fact, see the child who remained unaware of the presence of the appellant at the office. Even if the child had been aware of the presence of the appellant at the school there was no evidence before the Magistrate that this would have amounted to intimidation or harassment of the child.
The Magistrate in his reasons accepted that the appellant “is very passionate in relation to the interests of [the named person]”. It was also noted by the Magistrate that the proceedings before him were directly related to pending proceedings in the Family Court.[8] Both these matters are not without relevance in the context of this appeal.
[8] Decision, p1-6, lines 31-42.In his reasons the Magistrate indicated that he accepted that the High School incident “may have caused genuine concern for [the respondent] and also the interests of [the child]”. It is not clear how this incident may be said to have affected the interests of the child. But in any event I am unable to conclude that the appellant’s presence at the school office could have amounted to intimidation or harassment of the child in circumstances where the child was unaware of the appellant’s presence at the office. I note in this regard the absence of any evidence whatsoever from any of the administrative staff present at the office on the occasion in question.
Undoubtedly, the attendance by the appellant at the residence of the respondent may well have amounted to domestic violence in respect of the respondent in terms of the definition of that term in section 11 of the Act:
“11 What is domestic violence
(1) Domestic violence is any of the following acts that a person
commits against another person if a domestic relationship existsbetween the 2 persons—
(a) wilful injury;
(b) wilful damage to the other person's property;
Example of paragraph (b)--
wilfully injuring a defacto's pet
(c) intimidation or harassment of the other person;
Examples of paragraph (c)--
1 following an estranged spouse when the spouse is out in public, either
by car or on foot
2 positioning oneself outside a relative's residence or place of work
3 repeatedly telephoning an ex-boyfriend at home or work without
consent (whether during the day or night)
4 regularly threatening an aged parent with the withdrawal of informal
care if the parent does not sign over the parent's fortnightly pensioncheque
(d) indecent behaviour to the other person without consent;
(e) a threat to commit an act mentioned in paragraphs (a) to(d).
(2) The person committing the domestic violence need not personally
commit the act or threaten to commit it.”Because of the appellant’s consent to having the Magistrate’s order continue against him in respect of the respondent alone it is unnecessary to further consider the evidence in this regard. It may also be accepted that the attendance by the appellant at the school office may have been intimidatory or harassing to the respondent.
However, when considering whether the Magistrate correctly included as a named person the child of the parties in the order there is, in my view, insufficient evidence to conclude that any domestic violence had been committed or threatened with respect to the child. The order should be varied to delete from it the named person.
This Court is empowered to vary the Magistrate’s order as the Court considers appropriate.[9] Accordingly, it is, in my view, appropriate to delete paragraphs 6 and 7 from the order. Paragraph 8 should remain as it reflects the terms of an existing order of the Family Court. The duration of the order should be reduced from five years to two years to reflect the deletion from the order of the named person.
[9] Domestic and Family Violence Protection Act 1989, s6(1)(a).I make no order as to costs.
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