KD v AE - [2019] SASC 209

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KD v AE & ANOR
[2019] SASC 209
Judgment of The Honourable Justice Nicholson
9 December 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against a Magistrate’s confirmation of an interim intervention order made against the appellant pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The appellant is a friend of JB. JB’s foster child, KGS, was removed from her care some time ago by the Department of Child Protection and placed in the respondents’ custody. The respondents applied for an intervention order against the appellant due to the appellant’s orchestrated campaign to publicly discredit the respondents after KGS was placed in their care. The Magistrate made an interim intervention order against the appellant and, after a lengthy trial, later confirmed the intervention order. The protected persons were the respondents, their biological daughter, and KGS.
The appellant challenges the making of the final intervention order on the basis that the Magistrate made jurisdictional errors and procedural errors in the conduct of the trial, and that the Magistrate’s decision to confirm the intervention order was against the weight of the evidence.
Held (allowing the appeal in part):
1. The appeal is allowed solely to the extent of varying conditions 8 and 11 of the final intervention order as indicated in paragraphs [67] and [68] of the judgment.
2. In all other respects, the appeal is dismissed.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6, s 7, s 8, s 10, s 15, s 20, s 23, s 26, s 28; Magistrates Court Act 1991 (SA) s 42; Evidence Act 1929 (SA) s 52, s 53; Whistleblowers Protection Act 1993 (SA) s 7; Freedom of Information Act 1991 (SA) s 26; Children’s Protection Act 1993 (SA) s 13, s 58, referred to.
F, S v Police [2013] SASC 164, applied.
Cook v Galloway [2015] SASC 36; Thakur v Police [2016] SASC 75; B v D, E v D [2018] SAMC 13; B v D, E v D [2018] SAMC 28, discussed.
Police v Giles [2013] SASC 11; Groom v Police (No 3) (2013) 231 A Crim R 1; Martin v The Department of Transport, Energy & Infrastructure (2010) 269 LSJS 403, considered.

KD v AE & ANOR
[2019] SASC 209
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an application seeking permission to appeal from a decision of a Magistrate confirming a final intervention order against the appellant, KD. The appeal was heard on 18 April 2019 but permission was given to the appellant to file further written submissions. Those submissions were received on 14 June 2019 at which time judgment was reserved.
In the past, the appellant had been the foster mother to a child, AN, who had been taken from her and given to new foster parents, LB and LB2. In addition, the appellant’s associate or friend, JB, had been the foster mother of the child, KGS, who had been taken from her and given to the respondents, AE and DH, as new foster parents. Thereafter, as found by the Magistrate, the appellant pursued an orchestrated campaign to publicly discredit the respondents.
Two interim intervention orders were made against the appellant on 13 July 2017 pursuant to section 20 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act). The appellant contested the confirmation of these interim intervention orders and the matter proceeded to trial in the Magistrates Court. At all times during the proceedings, including on the appeal, the appellant has appeared in person.
The trial in the Magistrates Court was conducted in two stages. It first ran for 10 days over a period of two and a half months at which point the appellant applied for a mistrial. The Magistrate refused to declare a mistrial on 30 May 2018 and later published reasons for this decision[1] (Trial Reasons (No 1)). The trial continued for a further seven days over the ensuing five months following which, on 11 December 2018, the Magistrate published a final judgment with additional reasons[2] (Trial Reasons (No 2)).
[1] B v D, E v D [2018] SAMC 13.
[2] B v D, E v D [2018] SAMC 28.
In Trial Reasons (No 2), the Magistrate made final intervention orders in substitution for the interim orders made on 13 July 2017, pursuant to section 23 of the Act. The two final orders were in the same terms as the interim orders, save for additions to the list of protected persons and changes to the list of schools the appellant was restricted from attending.
The appellant has sought permission to appeal against the making of only one of the final intervention orders, being the one which names the respondents (AE and DH) their biological daughter MH, and their foster child KGS as protected persons (the Final Order).
For the reasons which follow, I would allow the appeal in order to make one relatively minor change to the terms of the order but otherwise dismiss the appeal.
Terms of the Final Order
The terms of the Final Order are as follows:
1.The defendant must not assault, threaten, harass or intimidate the protected person(s).
2.The defendant must not follow or keep the protected person(s) under surveillance.
3.The defendant must not be within 50 metres of the protected person(s).
4.The defendant must not contact or communicate with the protected person(s) either directly or indirectly in any way (including phone, letter, cards, SMS messages, E-mail, Facsimile, Facebook, Skype etc)
5.The defendant must not enter or remain within 50 metres of the boundary of the place of residence or place of employment of the protected person(s).
6.The defendant must not damage or interfere with the premises where the protected person(s) is staying, residing or is employed.
7.The defendant must not damage or take possession of personal property belonging to the protected person(s).
8.The defendant must not enter or be within 50 metres of the boundary of any education or care facility attended by the protected person(s) and/or including specifically the following Adelaide High School, Adelaide; Cardijn College; or at any school at which any of the children named as Protected Persons may be enrolled from time to tinme [sic].
9.The defendant must not publish on the internet or by any electronic means any material about the protected person(s).
10.The defendant must not cause, allow or encourage another person to do anything forbidden by this order.
11.Notwithstanding the other terms of this order contact is permitted at dispute resolution or at a court hearing under the Family Law Act 1975, the Children and Young People (Safety) Act 2017, or at any other court or tribunal hearing.
12.Any firearm, ammunition or part of a firearm in the possession of the defendant and any licence or permit held by the defendant authorising possession of a firearm, ammunition or part or a firearm must be surrendered to the Registrar of Firearms forthwith.
13.For so long as this intervention order remains in force, any licence or permit held by the defendant authorising possession of a firearm, ammunition or part of a firearm is suspended and the defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm, ammunition or part of a firearm. The defendant is prohibited from possessing a firearm ammunition or part of a firearm in the course of his or her employment.
By her amended notice of appeal, the appellant seeks, inter alia, an order quashing the Final Order made by the Magistrate.
The original notice of appeal contained 62 grounds of appeal.[3] At a directions hearing prior to hearing the appeal, I raised with the appellant my concern that the grounds appeared to be unusually large in number and that, whilst the appeal process was intended to correct error where appropriate, it would be surprising if the Magistrate had made as many as 60 errors. I encouraged the appellant to examine her grounds of appeal with a view to eliminating unnecessary and inappropriate grounds. The appellant wished, in any event, to file an amended notice of appeal in order to also complain about the making of the interim intervention order. I gave permission to do so. Alas, the amended notice of appeal remained unchanged but for the addition of two new “grounds”, making a total of 64.
[3] Grounds 1 to 61 together with a ground 16.1.
Many of the “grounds of appeal” are not proper grounds. They comprise assertions of fact or law that fail in limine as grounds of appeal for one or more of the following reasons: argumentative and failure to assert error by the Magistrate; incomprehensible; raise considerations that are irrelevant and outside the scope of the proceedings at trial and any appeal; raise scandalous allegations (for example, “collusion” and “fabrication of evidence”) without particularising any basis in the evidence. “Grounds” 9, 10, 11, 16.1, 19, 23-25 inclusive, 28, 31-34 inclusive, 36, 37, 41, 48, 50, 51 and 53 are of this nature or are otherwise untenable on their terms.
In addition, grounds 12, 13, 18, 20, 27, 29, 30, 35, 55, 59 and 60 are insufficiently particularised so as not to fairly admit of a response. The respondents, in correspondence with the appellant prior to the appeal, sought particulars with respect to these grounds but no particulars were provided.
At a more general level, the appellant, in her amended notice of appeal and written materials by way of submissions has failed to relate most of her 64 grounds of appeal to particular paragraphs or findings in the Magistrate’s reasons for decision, rendering the respondents’ task in meeting the complaints and the Court’s task in assessing and ruling on the complaints more difficult than otherwise might have been the case. Little assistance in these respects was forthcoming from the appellant in her oral submissions.
Finally, many of the grounds are repetitive or raise complaints broadly similar to those in other grounds.
During the trial, the Magistrate also considered a second interim intervention order that had been made against the appellant in favour of LB and LB2 and which is not subject to this appeal. This second interim intervention order was also confirmed by the Magistrate. It is not necessary to consider that aspect of the trial for the purposes of this appeal.
Evidence before and essential reasoning of the Magistrate
At trial, the respondents AE and DH gave evidence that KGS, a child under the guardianship of the minister, had come into their care as foster parents. The respondents were in a de facto relationship and had one biological daughter together, MH. The respondents tendered emails, sent by the appellant to the respondents and other persons and, which were to have caused the respondents significant distress. The respondents gave oral evidence of the distress caused by these communications initiated by the appellant. The respondents described a “campaign of harassment” allegedly perpetrated by the appellant beginning in January 2015. The Magistrate summarised the respondents’ evidence as follows:[4]
This [the harassment] primarily involved the circulation by email to various persons of an allegation that AE had inappropriately bathed naked with a young girl. The basis of this allegation was an image posted on AE’s Facebook page of an image of AE embracing a prepubescent girl while they were both unclothed. Only the top half of their bodies were shown. At the bottom of the image were the words, “Nude pics See More”. AE and DH explained that this photograph had been taken several years before by DH on the occasion of AE having a bath with his then 5 year old daughter, MH. They had been on holidays and had stayed in a room with a spa. This had been a fun, new experience for the family, so DH had taken the photograph and, intending to share it with relatives in Germany, had posted it onto AE’s Facebook page. The words “Nude Pics” had been written by DH as a joke, and did not indicate that there were other images of naked people. The words “See More” had been generated by the Facebook site itself and was a hyperlink that gave access to other material on AE’s Facebook page. DH thought it gave access to all other images ever posted onto AE’s Facebook page, while AE thought it gave access to other text. The matter was reported by somebody to Crime Stoppers and as a result the police interviewed the couple. Although the police were very quickly satisfied that no offence or inappropriate behaviour had occurred, the allegation of AE offending against children, as well as other allegations of inappropriate behaviour and criticisms of his biological daughter, continued to be raised over a number of years. Complaints were sent, apparently by the defendant, far and wide, including to numerous persons in government and the media. Emails were even sent to staff of the German School at which their biological daughter and KGS attended on Saturdays, and to work colleagues of AE. At one point DH noticed an offensive post, signed with the defendant’s name, on an internet blog site she had created as a forum to discuss adoption. In 2015 and 2016 DH learned that the image of AE and her biological daughter in the spa had been posted on Facebook pages called “Stop child sexual abuse in foster care” and “Families SA are a disgrace” and in one instance AE had been named. In response to these posts, various persons had posted highly offensive comments. For example one person suggested that they would like to see AE “gutted and hanging”. In May of 2016 DH received on her Facebook page what appeared to be a “friend request” from the defendant, accompanied by a message for KGS suggesting amongst other things that KGS sees a lawyer. All of this caused AE and DH great distress and anxiety and also indirectly affected their children. AE became afraid to be seen in public.
[4] Trial Reasons (No 2) at [31].
The Magistrate considered whether the appellant was responsible for the emails and other forms of communication tendered by the respondents. The Magistrate found, on the balance of probabilities, that the appellant was responsible for most of the material communications.[5]
[5] Trial Reasons (No 2) at [41]-[43].
Section 6 of the Act provides as follows.
There are grounds for issuing an intervention order against a person (the defendant) if—
(a)it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b)the issuing of the order is appropriate in the circumstances.
With reference to the requirements of section 6, the Magistrate, following his consideration of the evidence, made the following key findings.[6]
I find that between January 2015 and the making of the interim intervention orders in July 2017 the defendant sent numerous emails to various people containing allegations and slurs about AE and his family. The recipients included AE, DH, AE’s work colleagues, staff of the German school attended by their two girls on Saturdays, and at which DH worked voluntarily, Crime Stoppers, various people in government, employees of AnglicareSA, employees of DCP and various others.
[6] Trial Reasons (No 2) at [59].
In finding that the appellant was responsible for the sending of these emails, the Magistrate reasoned as follows.[7]
Notably the defendant did not give or tender any evidence directly refuting the evidence that she had engaged in the activity complained of by the applicants.
The defendant argued in closing that it had not been sufficiently proven that she was responsible for all of the emails and other forms of communication about which the applicants complained; indeed she was careful not to specifically admit that she was responsible for any of them. I am comfortably satisfied on the balance of probabilities that the defendant was responsible for the majority of the communications. There are a small number however in relation to which I am not so satisfied, even though I consider she may have been responsible for them.
Many of the emails reproduced in the documents tendered by the applicants, in which the various allegations, complaints and offensive comments appear, appeared to originate from an email address that bore the defendant’s name. Her own witness, JB, confirmed under cross-examination that the email address was used by the defendant in their email communications with one another. Other emails appeared to have been sent from an email address bearing what I was told was the name of the defendant’s son. Whether the name was that of her son or not, it is clear from the tendered documents that the defendant used that email address too (for example see Exhibit P1:18, pages 046 to 047). The subject matter of those emails was very similar to that of the emails sent from the address that bore the defendant’s name. The blog post on DH’s web blog was signed in the defendant’s name, and was similar in content to the emails mentioned. The first email referring to the image of the gymnast, addressed to Crime Stoppers, members of Parliament and others, appears to have been sent the day before the Channel 7 crew attended LB’s workplace. Given the evidence that the defendant had in the preceding weeks and days, been campaigning for AN’s removal from the home of LB and LB2 and making slurs and allegations against LB and members of their family, it is highly likely that she was responsible for informing the television station.
[7] Trial Reasons (No 2) at [40]-[42].
The Magistrate made the following further findings:[8]
I find that the defendant’s behaviour constituted an orchestrated campaign, one goal of which was to cause as much distress and embarrassment to AE and his partner as possible, so that KGS would be removed from their care and returned to JB, her former foster parent. The defendant refers to herself as advocate for JB. It also involved applying pressure to persons in management in DCP [Department of Child Protection], by threatening litigation and other action so that DCP would return KGS to the care of JB. The defendant reveals in her emails that she is aggrieved at having been deregistered as a foster parent at some point in the past.
I find that the defendant’s actions caused considerable distress and anger to AE and DH, and were of such an inherently offensive and abusive nature that even if the applicants had not said anything about emotional harm, I would have found on the balance of probabilities that harm had been caused.
I find that her activities also affected KGS, although it is difficult to quantify this. The evidence suggested that family life was constricted and the KGS suffered indirectly as a result of the emotional harm caused to AE and DH. If the actions of the defendant continued, there would exist a potential for significant emotional harm to KGS. The defendant’s goal of having KGS removed from the stable home environment in which she has now resided for nearly 3 years would clearly be disruptive and unsettling for her. Although I do not find that the defendant necessarily intended emotional harm to KGS, she was certainly reckless about it.
I find that the defendant’s campaign eased after the interim intervention orders were made in July 2017.
Accordingly I have no hesitation in finding proved on the balance of probabilities that the defendant’s campaign against AE and his family meets the definition of acts of abuse. It both resulted in and was intended to cause emotional harm to AE and DH in the form of significant distress, anxiety and fear. Her behaviour fits the descriptions of examples of acts of abuse in paragraphs (i) and (j) of Section 8(4) of the [Act].
It was essentially on the basis of the above reasoning that the Magistrate made the Final Order against the defendant. I have reviewed the evidence relied on by the Magistrate with the benefit of the written and oral submissions from both parties. I indicate at the outset that I am satisfied that the above findings and conclusions by the Magistrate are well supported by the evidence and were open to his Honour. Further, his Honour had the significant advantage of hearing and seeing the witnesses who gave evidence. Even without this advantage, I would have no hesitation in arriving at the same conclusions. Further, I am not satisfied that the Magistrate committed any procedural irregularities giving rise to a miscarriage of justice.
This is sufficient to dispose of the appeal in favour of the respondents. Nevertheless, I will proceed to consider, briefly, the appellant’s primary contentions on appeal, subject to the caveats earlier raised.
[8] Trial Reasons (No 2) at [62]-[66].
The basis of the appeal

The complaints identified in the 64 grounds of appeal can be distilled into three core contentions:
1.The Magistrate made jurisdictional errors.[9]
2.The Magistrate made procedural errors in the conduct of the trial.[10]
3.The Magistrate’s decision to make the Final Order was against the weight of the evidence.[11]
[9] Grounds 1-5, 22, 25, 28, 44 and 48.
[10] Grounds 6-11, 13-17, 20, 21, 25, 26, 30, 31, 32, 35, 36, 39, 41, 43, 47, 51, 52, 54, 55, 57, 58, 59, 60, and 61.
[11] Grounds 12, 18, 21, 22, 24, 27, 29, 33, 37, 38, 40, 42, 45, 46, 49, 62 and 63.
The respondents objected to a number of the grounds of appeal and sought that they be struck out or alternatively that permission to appeal should not be granted in respect of these grounds. I have earlier identified a number of respects in which certain grounds are inappropriate as grounds of appeal or otherwise embarrassing and not capable of a meaningful response. I refuse permission to appeal with respect to the grounds identified in paragraphs [10] and [11] above.
The relevant legislation and the role of an appeal court
Section 6 of the Act (set out earlier) sets out the grounds on which a court may issue (and confirm) an intervention order.
Section 8 defines the various forms of conduct that may constitute an “act of abuse”. Insofar as material to the present matter, section 8 provides as follows.
8—Meaning of abuse—domestic and non-domestic
(1)Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse.
(2)An act is an act of abuse against a person if it results in or is intended to result in—
(a)     …
(b)     emotional or psychological harm;
(c)     …
(d)     …
(3)Emotional or psychological harm includes—
(a)     mental illness; and
(b)     nervous shock; and
(c)     distress, anxiety, or fear, that is more than trivial.
(4)Emotional or psychological harm—examples
Without limiting subsection (2)(b), an act of abuse against a person resulting in emotional or psychological harm may be comprised of any of the following:
(a)-(g)…
(h)     giving or sending offensive material to the person, or leaving offensive material where it will be found by, given to or brought to the attention of the person;
(i)    publishing or transmitting offensive material by means of the Internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the person;
(j)      communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person;
(k)-(p)…
Subsection 23(1) of the Act sets out the powers of a court when determining an application of this nature.
23—Determination of application for intervention order
(1)On the hearing of an application for an intervention order, the Court may—
(a)     confirm the interim intervention order issued against the defendant as an intervention order; or
(b)     issue an intervention order in substitution for an interim intervention order issued against the defendant; or
(c)     dismiss the application and revoke the interim intervention order issued against the defendant.
Section 28 of the Act prescribes the relevant burden of proof.
28—Burden of proof
In proceedings under this Part, the Court is to decide questions of fact on the balance of probabilities.
Notwithstanding that it is the civil burden of proof that is to apply, an application for an intervention order is brought in the criminal division of the Magistrates Court.[12] I have previously considered and applied these sections of the Act in the case of Cook v Galloway.[13]I made the following observation as to the role of the court when determining whether to confirm an intervention order.[14]
The role of a court in determining whether to confirm an intervention order will involve two inquiries. First, the court must be satisfied that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the applicant. Such a determination, ordinarily, will be informed by findings of fact about past events, made on the balance of probabilities. Second, the court must also be satisfied that the order is appropriate in the circumstances.
An order confirming an interim intervention order as a final order is interlocutory in nature[15] and requires permission in accordance with section 42 of the Magistrates Court Act 1991 (SA) which governs appeals to a single Judge of this Court from the criminal division of the Magistrates Court.
In a case such as the present, subsection 42(1a)(c) of the Magistrates Court Act 1991 requires that for permission to be granted special reasons why it would be in the interests of the administration of justice to have the appeal determined must be demonstrated.[16] In Thakur v Police,[17] Stanley J suggested the following broad interpretation of “special reasons” in the context of the confirmation of an intervention order which I will adopt for present purposes.
… For the purpose of finding the existence of “special reasons” to grant permission, I consider that an arguable case by itself will generally be sufficient. If not, a defendant in many cases effectively will be deprived of a right of appeal. In these circumstances I consider that basic fairness requires that in order to find the existence of “special reasons” no more than an arguable case on appeal is necessary.
[12] Groom v Police (No 3) [2013] SASC 93 at [22]-[28]. See also White v Police [2018] SASC 124 at [18]. Rule 4.07 of the Magistrates Court Rules 1992 (SA).
[13] [2015] SASC 36.
[14] Cook v Galloway [2015] SASC 36 at [29]; see also Police v Giles [2013] SASC 11 at [29]-[32], [42].
[15] Groom v Police (No 3) [2013] SASC 93 at [32]; (2013) 231 A Crim R 1.
[16] Groom v Police (No 3) [2013] SASC 93 at [33].
[17] Thakur v Police [2016] SASC 75 at [26].
If permission to appeal is granted, I must conduct a full and independent review of the evidence before the Magistrate in order to reach my own conclusion, but always bearing in mind the advantages the Magistrate had in seeing and hearing the witnesses who gave evidence.[18]
[18] Cook v Galloway [2015] SASC 36 at [31]-[32]. See also Martin v The Department of Transport, Energy & Infrastructure [2010] SASC 141 at [38]-[39]; (2010) 269 LSJS 403.
Jurisdictional error
The appellant complained that the Magistrate did not have jurisdiction to hear the application for the interim intervention order because it was made by Anglicare on behalf of the intended applicant without the Court’s permission. The respondent submits that there was nothing improper in Anglicare supporting the respondents’ application in their role as an agency. Subsection 20(1)(b) of the Act allows a “suitable representative … given permission to apply by the Court” to make an application to the Court for an intervention order. As such, Anglicare was lawfully allowed to make the application as a representative of the respondents with the permission of the Magistrate.
In addition, the appellant contended that only AE was an applicant and the Magistrate did not have jurisdiction to determine the application in favour of DH. The appellant complains that whilst only AE was named as applicant on the original application, the application proceeded on the basis that the applicants were AE and DH. The respondents argue that the second respondent was not improperly joined as an applicant in the circumstances given that she was always a proposed protected person on the original application for an intervention order.[19]
[19] The original application for an intervention order against the appellant is dated 5 July 2017 and lists the respondents, AE, DH, their daughter MH, and foster child KGS as the protected persons.
The Magistrate took the view that these complaints ultimately were of no moment. Section 7 of the Act provides:
(1)An intervention order may be issued for the protection of—
(a) any person against whom it is suspected the defendant will commit an act of abuse; or
(b) any child who may hear or witness, or otherwise be exposed to the effects of, an act of abuse committed by the defendant against a person.
(2)An intervention order may be issued for the protection of a person even if that person is not an applicant for the order and the application is not made on his or her behalf.
(3)…
The Magistrate found that subsection 7(2) allows the Court to make orders as appropriate regardless of who is the applicant or regardless of on whose behalf an applicant is applying.[20] Further, Parliament intended that the category of potential protected persons is not to be unduly limited by the inability of a proposed protected person to apply for themselves.[21] With respect, I agree with the Magistrate’s approach here. A Magistrate may, under the Act, issue an intervention order for the protection of a person even if that person is not an applicant for the order. Whether or not DH was formally an applicant, the Magistrate was entitled to make an order in her favour.
[20] Trial Reasons (No 1) at [13].
[21] Trial Reasons (No 1) at [12].
Further, there was no call for Anglicare to seek permission to apply on behalf of the respondents. Notwithstanding that Anglicare provided substantial assistance to the respondents and whether or not it provided financial assistance with respect to the costs of the proceedings, the respondents were the applicants.[22] The Magistrate concluded that the role adopted by Anglicare in supporting the respondents’ application was not improper.[23] I agree with that conclusion. At all times it was readily apparent that the two respondents were actively engaged in seeking the intervention order on their own behalf. The appellant, at all times, knew the case she had to meet and for whose benefit the application was being brought. An application such as that pursued by the respondents should not be beset with unnecessary formalities.
[22] See exhibits D14 and D22, tendered by the applicant and the fiat recorded from the hearing before Deputy Chief Magistrate Dr Cannon on 29 November 2017.
[23] Trial Reasons (No 2) at [17].
Procedural errors
The appellant complains that the Magistrate made procedural errors during the trial including: (1) accepting inadmissible evidence from the respondents; (2) refusing to accept evidence sought to be adduced by the appellant, refusing the appellant’s request to summons witnesses to give evidence, and restricting the scope of the evidence of the witnesses the appellant was permitted to call; and (3) by dismissing the appellant’s application to stay the proceedings by reference to a ruling by the Magistrate on 29 October 2018.
The appellant argued that the conduct of the trial was an abuse of process because the respondents were allowed to remain in court whilst each gave their evidence. The Magistrate permitted the respondents to remain in court at a time when he was unaware that a challenge to their status as applicants was to be made. However, he warned that this might affect the weight he gave to the evidence of the respondents.[24] His Honour ultimately found the respondents to be witnesses of truth and their accounts of relevant events, with some minor exceptions, to have been proven on the balance of probabilities.[25] The respondents submitted that, in any event, the essentials of the respondents’ case against the appellant were contained in the emails sent by the appellant and not the oral evidence of the respondents.
[24] Trial Reasons (No 1) at [21].
[25] Trial Reasons (No 2) at [36].
The Magistrate was entitled to allow the respondents to remain in court whether or not they were applicants. In accordance with the warning given to the respondents, the fact that they remained in court was a matter to be taken into account by the Magistrate when assessing their evidence. It was not a reason, per se, to refuse to admit or rely on their evidence.
The appellant also contends that the respondents and other witnesses in their case colluded to give dishonest evidence. However, no particulars or evidence in support of such a contention have been supplied or identified by the appellant. Further, the appellant did not give or otherwise adduce any evidence directly refuting the respondent’s evidence, ultimately accepted by the Magistrate, that she had engaged in the activities complained of by the respondents. There is no merit in this complaint.
The appellant also contends that the Magistrate admitted inadmissible evidence, in particular, by allowing the tendering of Youth Court orders, emails with attachments as business records without hearing from the maker of the documents, affidavits from the respondents and SAPOL records.
Some of these documents, the Youth Court orders and SAPOL records played little, if any, part in the Magistrate’s reasoning to his ultimate conclusions.
The emails complained of were admissible pursuant to sections 52 and 53 of the Evidence Act 1929 (SA). In so admitting them, the Magistrate exercised a discretion which was plainly open to him. As the Magistrate found, the emails in contention caused the appellant no prejudice but were probative of the respondents’ case that the appellant had behaved towards them in a threatening and intimidatory manner by her repeated making of unfounded allegations of grossly improper conduct.
The Magistrate made the following findings and gave the following reasons when deciding to admit this material.[26]
The defendant objected to the admission of the documents under sections 52 and 53 of the Evidence Act 1929, arguing that she should be permitted to cross-examine the authors of the emails and those who appear to have forwarded certain emails to others, about their contents, and why certain attachments referred to in some of the emails were not reproduced. Prior to the trial she had requested permission to issue witness summonses to more than 2 dozen people, including some of those she indicated she wished to cross-examine about these issues. I was not prepared to allow this as it was becoming apparent, even at that stage, that the central issues in the trial might disappear in a cloud of tangential issues. It seemed to me that the emails spoke very much for themselves about their provenance. Most of the email chains contained emails apparently written by the defendant herself and constituted evidence of the acts of abuse the applicants relied on in support of their case for confirmation of the interim intervention orders. It was clear that most of the other emails in the chains were largely incidental. I could see no prejudice to the defendant in the admission of the documents under sections 52 and 53 apart from the fact that they supported the case for intervention orders against her.
On my review of the evidentiary material complained of, I am satisfied that it was admissible and the Magistrate did not err in admitting it. There is no doubt that his Honour was beset with a “cloud of tangential issues” (as was I on appeal). Given the really quite confined nature of the issues at trial, and of the evidence relevant to such issues, a robust approach to questions of acceptance and rejection of evidence was called for. If the Magistrate is to be faulted at all, he was too patient and too willing to allow the appellant to ventilate every notion that she wished to. Seventeen hearing days is, to say the least, an unusually long period of court time to devote to this type of matter bearing in mind the requirements of section 6 of the Act.
[26] Trial Reasons (No 2) at [6]; see also at [17].
The respondents’ affidavits complained of by the appellant were tendered by the appellant during her cross-examination of the respondents. The respondents had indicated that they did not wish to rely on them, having given oral evidence. The Magistrate did not rely on their content independently of the respondent’s oral evidence.[27]
[27] Trial Reasons (No 2) at [39], and see also at [33].
The appellant asserted at trial and on appeal that certain documentary evidence tendered by the respondents was inadmissible as being in breach of, or not in accordance with, section 7 of the Whistleblowers Protection Act 1993 (SA), section 26 of the Freedom of Information Act 1991 (SA) and sections 13 and 58 of the Children’s Protection Act 1993 (SA).[28] The Magistrate dealt with these objections at great length.[29] I can find no error in his Honour’s approach; his Honour was entitled to receive the objected to documentary material and to rely on it to the extent he did.
[28] The Children’s Protection Act 1993 (SA) was repealed by Sch 1, cl 2A of the Children and Young People (Safety) Act 2017 (SA) on 1 July 2019 after the hearing of this appeal.
[29] Trial Reasons (No 1) at [23]-[43] and Trial Reasons (No 2) at [7]-[20].
The appellant contends that the Magistrate erred in refusing to admit certain evidence, including that said to relate to “freedom of information breaches” and to the assertion that Anglicare is “desperate for foster carers”. The appellant also complains that the Magistrate should have allowed the appellant to summons a large number of witnesses, including employees from SAPOL and Anglicare. As a general observation, the appellant in seeking to adduce much of the evidence ultimately rejected by the Magistrate, was persisting in her irrelevant attempts to prove that the respondents were improper foster carers. The Magistrate was correct in limiting the appellant, as he did. The Magistrate concluded that the two dozen witnesses the appellant wished to summons were not relevant and would only serve to cloud the central issues at trial.[30] The appellant has not demonstrated any error or miscarriage of justice in this respect.
[30] Trial Reasons (No 2) at [6].
On my review of the Magistrate’s comprehensive reasons in both judgments, I am not satisfied that any of the evidence actually relied on by the Magistrate in support of the respondents’ case was improperly admitted nor am I satisfied that the appellant was prevented from relying on admissible evidence relevant to her defence. The appellant’s complaints concerning the evidentiary basis on which the Magistrate relied are rejected.
The appellant complains that the Magistrate erred in refusing her two applications for a stay of proceedings on 29 October 2018. The first application sought a stay of proceedings pending the outcome of charges laid by the appellant against the respondents’ trial counsel[31] before the Legal Practitioners Disciplinary Tribunal. The second application sought a stay of proceedings to prevent the respondents’ trial counsel from breaching the South Australian Bar Rules. His Honour dismissed both applications and provided the following reasons in Court for doing so.
[T]he application for a stay pending the outcome of charges laid by [the appellant] before the Legal Practitioners Disciplinary Tribunal is refused. [The appellant] complains that to proceed would be a waste of resources and unfair to her. I do not consider that the proceedings that she has initiated before the Tribunal are genuine or of any substance. Contrary to what she says about a waste of resources, I consider that to further delay this trial, which has already consumed an inordinate amount of resources, would be completely unacceptable and a waste of resources. This matter must conclude. I see no unfairness to the defendant. She has been given a very fair hearing and ample opportunity to present her case.
In relation to her application for a stay to prevent [the respondents’ trial counsel] from breaching the South Australian Bar Rules, I do not propose to make inquiry into [the respondents’ trial counsel]’s conduct in these matters. There is nothing that appears from the documents that [the appellant] has provided to the court that would suggest that this argument is of any substance and, therefore, I dismiss that application.
[31] Different counsel appeared on the appeal.

There was no merit in the applications for a stay. The Magistrate exercised the discretion to dismiss the applications appropriately. The appellant has not pointed to any House v The King[32] considerations that would support appellate intervention.
[32] (1936) 55 CLR 499.
Decision made against the weight of the evidence
The appellant argued that the Magistrate’s decision to confirm the Final Order was against the weight of the evidence. The appellant complained that the Magistrate erred in finding that the foster child KGS ought to be a protected person on the Final Order. The appellant also argued that his Honour erred in failing to find that the abuse, if proved, was trivial.
In order to succeed, the respondents set out to prove at trial on the balance of probabilities, in accordance with subsection 6(a) of the Act, that the appellant would, unless restrained, commit an act of abuse against the respondents. They also set out to persuade the Magistrate, in accordance with subsection 6(b) of the Act, that the issuing of the order was appropriate in the circumstances.
In order to establish the former, they sought to prove that:
(i)the appellant had sent the emails in evidence;
(ii)the respondents received them or knew of their content;
(iii)their knowledge of the emails resulted in distress, anxiety or fear that was more than trivial;
(iv)given the content and constant and recurring nature of the emails over several years, it could be inferred that, without restraint, the abuse would continue;
(v)the abuse all but stopped after the interim order; and thus, that
(vi)it was more probable than not that further abuse would occur unless the restraint order was continued.
I have earlier set out the Magistrate’s key findings. On my review of the evidence, the matters in (i) to (vi) were proved. The Magistrate’s findings in this respect as earlier set out were entirely open to his Honour and were inevitable.
The Magistrate found that over an extended period the appellant perpetrated acts of abuse resulting in emotional harm to the respondents and their respective families.[33] The Magistrate found that the appellant’s behaviour constituted an orchestrated campaign designed to cause distress and embarrassment to the respondents so that the foster child KGS would be removed from the respondents’ care[34] and his Honour found that, even if the respondents had not said anything about emotional harm, he would have found on the balance of probabilities that such harm had been caused.[35]
[33] Trial Reasons (No 2) at [74].
[34] Trial Reasons (No 2) at [62].
[35] Trial Reasons (No 2) at [63].
In finding both (a) and (b) of section 6 of the Act to be satisfied the Magistrate reasoned as follows.[36]
I have found that over an extended period the defendant perpetrated acts of abuse resulting in emotional harm to the applicants and their respective families. I have no evidence before me to suggest that the defendant would not, if she were so permitted, continue to commit similar acts in the future. On the contrary the evidence suggests that she would not give up until her goals in respect of AN and KGS are achieved, namely that they are removed from their foster families and AN is adopted by the defendant and KGS is placed with JB. It is also clear that these goals are unachievable. Given the way the defendant has behaved, there is simply no way that the DCP or any Court would allow these things. The defendant’s campaign would therefore continue. On the other hand the evidence also suggests that her campaigning has eased since the interim intervention orders were issued, so they appear to have been effective, at least to a degree. I find therefore that there is more than a reasonable suspicion that unless restrained the defendant will commit further acts of abuse of various types against the applicants and their families.
The next question that I must consider is whether it is appropriate in the circumstances that intervention orders should be issued. I am satisfied that it is. Prior to the commencement of the defendant’s campaigns, she was a stranger to the applicants. They happened to be unlucky obstacles on the path to the achievement of her goals. The defendant must understand that she cannot be permitted to act in this way. Intervention orders will serve to demonstrate that to her. Furthermore interim orders appear to have been at least partially effective in restraining her.
[36] Trial Reasons (No 2) at [74]-[75].
The Magistrate’s conclusions were supported by the evidence and, again, I can find no error in his Honour’s approach. The various grounds of appeal asserting that the decision to confirm or impose the Final Order was against the weight of the evidence are not made out.
KGS as a protected person on the Final Order
One of the appellant’s complaints on appeal was that the foster child KGS should not have been included as a protected person on the Final Order. The Magistrate had regard to sections 7 and 10 of the Act when determining if KGS should be included in the Final Order as a protected person.
7—Persons for whose protection intervention order may be issued
(1)An intervention order may be issued for the protection of—
(a)     any person against whom it is suspected the defendant will commit an act of abuse; or
(b)     any child who may hear or witness, or otherwise be exposed to the effects of, an act of abuse committed by the defendant against a person.
(2)An intervention order may be issued for the protection of a person even if that person is not an applicant for the order and the application is not made on his or her behalf.
(3)If an issuing authority proposes to intervene against a defendant for the protection of more than 1 person, it may do so by issuing a single intervention order or by issuing multiple intervention orders, as it considers appropriate in the circumstances.
10—Principles for intervention against abuse
(1)The following must be recognised and taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:
(a)     abuse occurs in all areas of society, regardless of socio-economic status, health, age, culture, gender, sexuality, ability, ethnicity and religion;
(b)     abuse may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour;
(c)     it is of primary importance to prevent abuse and to prevent children from being exposed to the effects of abuse;
(d)     as far as is practicable, intervention should be designed—
(i)to encourage defendants who it is suspected will, without intervention, commit abuse to accept responsibility and take steps to avoid committing abuse; and
(ii)to minimise disruption to protected persons and any child living with a protected person and to maintain social connections and support for protected persons; and
(iii)to ensure continuity and stability in the care of any child living with a protected person; and
(iv)to allow education, training and employment of a protected person and any child living with a protected person, and arrangements for the care of such a child, to continue without interruption; and
(v) if the defendant is a child—
(A)to ensure the child has appropriate accommodation, care and supervision; and
(B)to ensure the child has access to appropriate educational and health services; and
(C)to allow the education, training and employment of the child to continue without interruption.
(2)The following must also be taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:
(a) any relevant Family Law Act order or State child protection order of which the issuing authority has been informed;
(b) how the intervention order would be likely to affect contact (in accordance with a relevant Family Law Act order or State child protection order or otherwise) between—
(i)the protected person or the defendant; and
(ii)any child of, or in the care of, either of those persons;
(c)     any relevant agreement or order for the division of property under the Family Law Act 1975 of the Commonwealth, or the Domestic Partners Property Act 1996 or a corresponding law of another jurisdiction, of which the issuing authority has been informed;
(d)     if considering whether to prohibit the defendant from taking possession of property or to require the defendant to return property to a protected person or to allow a protected person to recover or have access to or make use of property—the income, assets and liabilities of the defendant and the protected person (to the extent that the issuing authority has been informed of those matters);
(e)     any other legal proceedings between the defendant and protected person of which the issuing authority has been informed.
(3)Before issuing an intervention order the issuing authority must consider whether, if the whereabouts of a person proposed to be protected by the order are not known to the defendant, the issuing of the order would be counterproductive.
(4)An issuing authority may take into account any other factor the authority considers relevant in the circumstances.
In F, S v Police,[37] David J upheld on appeal a Magistrate’s decision to confirm an interim intervention order made against a husband in favour of his wife but not their three children. The Magistrate had found that the husband swore at his wife and threw clothes and shoes around during arguments and was “extremely agitated”, and that this behaviour caused distress, anxiety and fear which was not trivial. However, with respect to their three children who were at times present during arguments, the Magistrate found the following:[38]
I now turn to the question whether it is reasonable to suspect the [appellant] will commit an act of abuse against [OF and the three children].   There are ongoing issues with regard to the dissolution of this relationship and in particular, the [appellant’s] contact with the children. With the exception of the presence of the children during arguments, I do not accept there has been any abuse of the children. I consider if proper arrangements are put in place there is no reason for the children to hear, witness or otherwise be exposed to the effects of any interaction between the [appellant] and [OF].
I am satisfied it is reasonable to suspect there may be further acts of abuse against [OF] if any order is not made, given the ongoing issues between the couple. But such an order, I consider is not appropriate with respect to the children and I consider any such order must allow for [the appellant’s] contact with the children.
Accordingly, the order with respect to [OF] will be confirmed, but there will no order with respect to [the children].
[37] [2013] SASC 164.
[38] F, S v Police [2013] SASC 164 at [8].
In the present case, the Magistrate found that over an extended period of time the appellant perpetrated acts of abuse resulting in emotional harm to the respondents and their respective families.[39] In contrast to F, S, his Honour found that the appellant’s motivation was to have KGS removed from her foster family and placed back with her former foster carer, JB. His Honour found that whilst this outcome was not achievable, it was likely that the appellant’s “campaign” of acts of abuse against the respondents would continue unless restrained.[40] The Magistrate was satisfied that the appellant’s activities affected KGS, although his Honour acknowledged that it is difficult to quantify this.[41] The Magistrate also found that family life was “constricted and the [sic] KGS suffered indirectly as a result of the emotional harm caused to AH and DH.”[42] Unlike in F, S v Police, the appellant has no parental or other relevant relationship with the child KGS. As the Magistrate observed, the Order for Care and Protection made in the Youth Court on 14 July 2006 contains an order that KGS be placed in the guardianship of the minister until she attains 18 years of age, but allows her mother and father access. The appellant is not mentioned in this Order for Care and Protection.[43]
[39] Trial Reasons (No 2) at [74].
[40] Trial Reasons (No 2) at [74].
[41] Trial Reasons (No 2) at [64].
[42] Trial Reasons (No 2) at [64].
[43] Trial Reasons (No 2) at [72].
The Magistrate concluded with respect to KGS as follows.[44]
It is appropriate in my view that not only each of the applicants, but also each of the children in their care be protected. AN, KGS, the biological daughter of AE and DH, and the two boys in the care of LB and LB2 should be included as protected persons because it is important that they do not witness, and are not exposed to the effects of, acts of abuse perpetrated upon their parents or carers. They must be permitted to enjoy stability and continuity.
[44] Trial Reasons (No 2) at [76].
The Magistrate was correct to include KGS as a protected person on the Final Order. Again, I find no error in his Honour’s approach. The Magistrate’s findings summarised earlier were open to his Honour on the evidence. In accordance with subsections 10(1)(d)(ii) and (iii) of the Act, it was appropriate to include KGS as a protected person on the Final Order in order to minimise disruption to KGS whilst living with her foster carers and to ensure continuity and stability in the care of KGS whilst living with her foster carers.
The appellant attempted to raise on appeal a contention that the child KGS may no longer be living with the respondents. In this respect, the appellant acknowledged she was not aware as to where KGS now resided but believed she may no longer be living with the respondents. She did not identify any admissible evidence in support of this purported belief. Subsection 10(3) of the Act requires the issuing authority of an intervention order consider whether, if the whereabouts of a person proposed to be protected by the order are not known to the defendant, the issuing of the order would be counterproductive. At the time of the trial in the Magistrates Court it was understood that KGS resided with the respondents. At the time the Final Order was made no issue under subsection 10(3) arose. There is no evidence before the Court on appeal to suggest otherwise.
Prior to the hearing of the appeal, the appellant caused a subpoena to be issued calling on the Chief Executive of the Department for Child Protection to attend at the appeal to give evidence and produce copious Departmental documents said to be relevant to the issue of where KGS was residing at the time of the appeal. Prior to commencing the hearing of the appeal, I heard argument on an application by the Department for an order setting aside the subpoena. I made that order upon being satisfied that no legitimate forensic purpose underlying the subpoena had been demonstrated by the appellant.
I took the view that, given the non-existent evidentiary basis for the appellant’s allegation, the appellant had failed to persuade me that it was not merely a fishing exercise. I gave brief reasons at the time. One of the considerations that contributed to my arriving at this conclusion, articulated during the argument but not set out in my brief reasons, was the following.
By force of section 15 and subsection 26(3) of the Act when applied to the terms of the Final Order made by the Magistrate, the appellant was prohibited from seeking a revocation or variation of the Final Order until a date at least 12 months after the date of issue of the Final Order. If the appellant had available to her evidence that KGS at some time after the issue of the Final Order had come to live apart from the respondents, such would not have been relevant or admissible with respect to the appeal, other than (and provided the test for fresh evidence were to be satisfied) in order to support an application to vary the Final Order so as to exclude KGS as a protected person or to modify its terms insofar as they related to KGS. Such an application, to vary or even to revoke the order, based on a change of circumstances since the making of the Final Order, even if proved, would have been prohibited within the 12 month period by section 15 and section 26(3) of the Act.
Abuse was trivial
The appellant contended, by way of alternative argument, that any abuse found was trivial. Section 6 of the Act allows an intervention order to be issued against a person where it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person. Subsection 8(1) provides that abuse may take many forms including physical, sexual, emotional, psychological or economic. Subsection 8(2) provides that an act is an act of abuse against a person if it results in or is intended to result in emotional or psychological harm. Subsection 8(3) of the Act provides that “emotional or psychological harm” includes mental illness, nervous shock, and distress, anxiety, or fear, that is more than trivial.
The Magistrate made the following findings when considering the gravity of the abuse perpetrated by the appellant:[45]
I find that the defendant’s actions caused considerable distress and anger to AE and DH [the respondents], and were of such an inherently offensive and abusive nature that even if the applicants had not said anything about emotional harm, I would have found on the balance of probabilities that harm had been caused.
[45] Trial Reasons (No 2) at [63].
The emails and other forms of electronic communication which the Magistrate found to have caused harm to the respondents, fall within examples of emotional or psychological harm listed in subsection 8(4)(i) and (j) of the Act.
Without limiting subsection (2)(b), an act of abuse against a person resulting in emotional or psychological harm may be comprised of any of the following:
…
(i)publishing or transmitting offensive material by means of the Internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the person;
(j)communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person;
…
The emails and other electronic communications sent by the appellant to the respondents undoubtedly caused considerable distress to the respondents. The Magistrate’s findings in this respect, again, were open on the evidence and his Honour did not err in finding that the abuse which was perpetuated by the appellant, predominantly through electronic communications to the respondents, was more than trivial.
Conditions of the Final Order
The appellant complained on appeal that condition 11 of the Final Order made it impossible for her to initiate legal proceedings and serve documents on the respondents without breaching the Final Order. The wording of the condition 11 of the Final Order is:
Notwithstanding the other terms of this order contact is permitted at dispute resolution or at a court hearing under the Family Law Act 1975, the Children and Young People (Safety) Act 2017, or at any other court or tribunal hearing.
The respondents do not object to condition 11 being varied in this limited respect. Out of an abundance of caution only, I would allow the appeal to the extent of amending this condition to read:
Notwithstanding the other terms of this order contact is permitted at dispute resolution or at a court hearing under the Family Law Act 1975, the Children and Young People (Safety) Act 2017, or at, or for the purpose of taking necessary steps, including filing and serving of documentation in legal proceedings involving the appellant and the respondents.
This amendment is intended to clarify that the appellant may participate, including by filing and serving relevant documents, in legal proceedings between her and the respondents.

During the hearing, the respondents also indicated that they would not object to clause 8 being amended to refer to 20 metres rather than 50 metres. In my view, the present form of order is potentially too wide in this respect and the amendment would ensure, for example, that the appellant is entitled to travel along West Terrace.
Conclusion
I grant permission to appeal. However, none of the appellant’s grounds of appeal have merit. The appeal is allowed solely to the extent of varying conditions 8 and 11 as indicated above but in all other respects, the appeal is dismissed.