LJP v Harrison

[2023] QDC 257

DISTRICT COURT OF QUEENSLAND

CITATION:

LJP v Harrison [2023] QDC 257

PARTIES:

LJP (Appellant)

v

HARRISON

(Respondent)

FILE NO:

2423 of 22

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Holland Park

DELIVERED ON:

31 August 2023

DELIVERED AT:

Brisbane District Court

HEARING DATE:

14 April 2023

JUDGE:

Clare SC DCJ

ORDER:

1.   The appeal is dismissed.

CATCHWORDS:

PROCEDURAL FAIRNESS – BIAS – where application to vary Domestic Violence Order – where appellant was self represented– where application for adjournment was refused - where there was a prior order restricting cross examination of aggrieved – where the appellant was cross examined but not permitted to cross examine the aggrieved

IRREGULARITY -where direction restricting cross examination was made without full compliance with s151 (4) of the DFVPA

FACT FINDING – where findings of fact were reasonably open

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld)

Domestic and Family Violence Protection Rules 2014 (Qld)

CASES:

Charisteas v Charisteas [2021] HCA 29

Kioa v West (1985) 159 CLR 550

Minister for Immigration and Multicultural Affairs v Jia LeGeng [2001] HCA 17

Minister of Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] 214 CLR

Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31

COUNSEL:

A. G. McKean (Solicitor) for the appellant

S. M. Donkin (Solicitor) for the respondent

SOLICITORS:

McKean
Queensland Police Service Legal Unit

Introduction

[1]This was an appeal against an order extending the duration of a protection order.

[2]The original order was made on 23 July 2019 for a period of three years (the original default period under the legislation). In February 2022, Police filed an application to extend the period of the order.  After a hearing on 30 August 2022, the magistrate allowed the application and extended the protection order for five years.

Grounds of Appeal

[3]The appellant represented himself at the hearing below.  He filed written submissions on the appeal, then engaged Mr McKeane for the oral argument.

[4]The Notice of Appeal lists six grounds of appeal. They concern procedural unfairness and unreasonable findings of fact.  The impugned findings of fact were::

(i)The appellant breached the domestic violence order;

(ii)The appellant’s letters to his daughter endangered her mental health; and

(iii)The appellant was a risk to the aggrieved and the children, and seeks to exert control over them.

Application to vary

[5]Under the Domestic and Family Violence Protection Act 2012 (Qld) (‘the Act’) an application to change the duration of an existing order is a “variation” of a domestic violence order.[1] The Act differentiates between an application for a protection order and an application to extend it. Separate procedures for the hearing and determination of each application are set out in Part 3 of the Act. The making of an order is regulated by Division 1, whereas the application for variation is in Division 10.[2] 

(i)Before making a protection order under Division 1, the court must be satisfied of the three matters in s 37(1): the relevant relationship, the commission of domestic violence and the desirability or necessity of the order to protect the aggrieved from domestic violence.   Standard conditions must be imposed whenever a domestic violence order is made.  They are set out in s 56;

(ii)Before varying a protection order under Division 10, the court must consider specific matters. The matters of relevance to the present, are those in s 91(2), namely the grounds that were set out in the application for the protection order and the findings of the court that made the order;[3] 

A further requirement is imposed by s 57.  It applies to a court acting in either situation, that is, whether “making or varying” a domestic violence order.  The court must consider whether any condition should be added to the standard conditions required by s 56.  Specifically, the court must consider whether any other condition is “necessary or desirable” to protect the aggrieved or a named child from domestic violence, or necessary or desirable to protect a named child from exposure to domestic violence.[4]  In every case, “(t)he principle of paramount importance to the court must be the principle that the safety, protection and well-being of people who fear or experience domestic violence, including children, are paramount.”[5]

[1] See Domestic and Family Violence Protection Act 2012 (Qld), sch (definition of ‘variation’) (‘DFVP Act’).

[2] DFVP Act.

[3] The matters in s 91(3) (regarding prior intervention orders) and s 92 (where the variation may adversely affect the aggrieved) of the DFVP Act do not apply to this case.

[4]DFVP Act s 57(1).

[5] Ibid s 57(3).

[6]As for the duration of a protection order, s 97 relevantly provides:

“(2) …

(a)for any period the court considers is necessary or desirable to protect the aggrieved from domestic violence or a named person from associated domestic violence; but

(b)for a period of less than 5 years only if the court is satisfied there are reasons for doing so.

(3)    In deciding the period for which a protection order is to continue in force, the principle of paramount importance to the court must be the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.” (emphasis added).

[7]On the application before the magistrate to extend the period of the 2019 protection order, the critical question was whether a continuation of the order was “necessary or desirable”, within the meaning of s 97(2)(a), to protect the two named children or the aggrieved, from domestic violence.[6] In accordance with s 91, His Honour was required to consider not just the material presented at the hearing, but the grounds set out in the original application and any findings made when the order was originally made.[7]  The paramount principle was the protection of children and others who fear domestic violence.

[6] DFVP Act.

[7] Ibid.

[8]The definition of “domestic violence” in s 8 of the Act is very wide, but it does require some behaviour of a specific character by the respondent directed towards a person with whom there is a family relationship. It extends to emotional or psychological abuse. Emotional or psychological abuse is defined by s 11 to mean behaviour toward another that “torments, intimidates, harasses or is offensive” to the other person.[8] 

[8] Ibid.

[9]The Act’s preamble notes that domestic violence is:

“often an overt or subtle expression of power imbalance, resulting in one person living in fear of another, and usually involves a pattern of abuse over a period of time…Domestic violence can have serious impacts on people who experience it, including physical, emotional or psychological harm….Children who are exposed to domestic violence can experience serious physical, psychological and emotional harm…”

[10]The court varying a pre-existing order under s 91 is not making the domestic violence order under s 37.[9] and the statutory power to vary is not subject to the same preconditions.  Specifically, there is no express requirement for a finding that domestic violence was committed.  Where the variation sought is an extension of the duration, the question under s 97 is whether the longer period is necessary or desirable, consistent with the paramount principle of the protection of children and others who fear domestic violence.[10] (For other variations, the court is left with a broad discretion to exercise in a way that is consistent with the objects and purposes of the Act and the interests of justice.[11]) 

[9] Ibid.

[10] Ibid.

[11] Domestic and Family Violence Protection Rules 2014 (Qld) r 23(1) (‘DFVP Rules’).

[11]A magistrate hearing an application is not bound by the rules of evidence, practice or procedure, and may inform himself or herself in any way he or she considers appropriate.[12] 

[12]DFVP Act s 145.

The original protection order

[12]The appellant and the aggrieved had two children, a son and a daughter, D. The children lived with their mother. The original grounds for the 2019 application were wide ranging, including controlling behaviours, financial control, verbal and physical abuse of the aggrieved, and verbal and physical abuse of the children. No findings were made. The original order was made by consent without admissions, for three years. On the application for variation, the learned magistrate took those matters into account, as he was required to do by s 91.[13]

[13] DFVP Act.

[13]The protection order included a special condition banning the appellant from contacting the aggrieved or the children, directly or indirectly, without written consent or a court order.

[14]Subsequently, the Family Court made a series of parenting orders. 

The application to vary the protection order

[15]The police application to extend the term of the protection order alleged the appellant had breached the protection order twice and he appeared to be:

“escalating due to the current suspension of the family court in relation to no contact (with G).  The family court has directed the (appellant) to have a psychiatric assessment before contact can resume…due to (D’s) extreme post-traumatic stress disorder from previous assaults from the respondent.”

The alleged contraventions were two letters the appellant had addressed to D.

[16]It was common ground that at the time he sent the letters, the appellant did not have a court order or written consent for contact with D or the aggrieved.  He sent the letters to their home by registered mail.  He identified himself as the sender.

[17]The letters were short. They proclaimed the appellant to be a loving father. The first letter described declarations of love for D every morning and every night and prayers to be with her always. In the second letter the appellant said he needed D to know how much he loved and adored her. He also wrote:

“I’m sorry you are having to go through all this pain. All I want is to hold you and love you and care for you.  If there is anything I have said or done then I am sorry.”

[18]In addition to the appellant’s letters, the learned magistrate had the benefit of sworn accounts from both the aggrieved and the appellant, an affidavit from a police officer, and a letter from D’s psychiatrist written for the Family Court proceedings.  His Honour also had copies of the Family Court parenting orders. 

The Family Court

[19]Section 78 of the Act expressly empowered the magistrate to consider the family law orders. The potential overlap between parenting issues, domestic violence and domestic violence orders is obvious.

[20]Relevantly, D was to undergo psychiatric counselling.  On 28 October 2019, the Family Court ordered that a family report be prepared by Sean Moriaty.  In the interim the appellant was allowed two hours of supervised contact with both children per fortnight. This contact was to be suspended if he did not attend anger management treatment within 28 days and comply with the recommendations of a psychiatrist.

[21]In November 2021, previous parenting orders were suspended by consent and, in consultation with the independent children’s lawyer (‘ICL’) and the therapeutic counsellor, D could spend two hours per fortnight with the appellant “as can be facilitated by the contact centre”.

[22]In January 2022, D’s psychiatrist wrote to the ICL about her mental health and the appellant.  In mid-February 2022 the appellant sent the letters to the aggrieved’s home, addressed to D.

[23]At the hearing for a variation of the protection order, the magistrate was informed that the Family Court trial had settled the previous week.  Exhibit 1 set out the terms to which both parties had consented.  They permitted the appellant scheduled visits with his son and to communicate with him at other times.  However, any contact with Dwas subject to the written agreement of the aggrieved. D was to continue with her treating psychiatrist and counsellors, and the appellant was, at his own expense, to engage in therapeutic supervision service counselling, “in an attempt to rebuild a relationship” with (D) and work towards reunification”.  The final notation was “The parties agree to facilitate a relationship between the Father and (daughter) and work towards increasing  (her) time with the Father….but pursuant to (her) wishes”. 

Procedural fairness 

[24]The appellant contended he had been denied procedural fairness.  

[25]The appellant’s argument was that the magistrate showed a bias against him and deprived him of a fair hearing in the following ways:

i.Refusing an application for an adjournment;

ii.Denying the appellant the right to cross examine the aggrieved, but allowing Sergeant Jamanovic to cross examine him;

iii.Asking questions of the aggrieved and the appellant; 

iv.Stopping the appellant from tendering a Family report, but allowing the prosecution to tender Dr Joyamemi’s letter; and

v.Reaching an adverse conclusion before the evidence had closed. 

[26]The requirements for a fair process may vary between cases,[14] or be modified, or even removed, by parliament.[15] By virtue of s 145 of the Act, the magistrate was not bound by the rules of evidence or usual court procedures, and the court had the power to restrict the right of cross examination for the protection of the aggrieved. Before making any order, a court is required to give paramountcy to the interests of justice.[16]  It follows that concepts of fairness have not been abolished, but modified by parliament.

[14]Kioa v West (1985) 159 CLR 550, 580.

[15] Re Minister of Immigration and Multicultral and Indigenous Affairs; ex parte Lam [2003] 214 CLR, [37].

[16] See, eg, DFVP Rules r 23(1).

[27]Procedural fairness involves a fair hearing by an objectively impartial court.  An independent court is a fundamental requirement.  Justice must not only be done, but be seen to be done.  

[28]There is no evidence that the learned magistrate was biased. The mere fact that he decided against the appellant could not establish bias.[17] As a matter of law, there could be no apprehension of bias unless, in all the circumstances, a fair-minded lay observer with knowledge of the objective facts might reasonably apprehend that the magistrate might not have brought an open mind to the determination of the matter.[18]

[17] That would be so, even if the decision was proved wrong. Re Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31; Re Minister for Immigration and Multicultural Affairs v Jia LeGeng [2001] HCA 17 at [72].

[18]Charisteas v Charisteas [2021] HCA 29 at [11].

The Application for adjournment

[29]On the day of the hearing, the appellant sought an adjournment on the grounds that he was unprepared, he had no lawyer and he wanted Legal Aid.

[30]This was the time line:

·In February 2022, the appellant was served with the application for variation.

·On 13 April, directions were made.  The presiding magistrate told the appellant that he would not be allowed to cross examine the aggrieved personally at any hearing.                

·On 22 June, the appellant was given the hearing date of 30 August 2022.

·On 14 July, the appellant applied for Legal Aid.  His application was refused.  He appealed.  His appeal was dismissed.

·On 29 August, the day before the hearing, the appellant requested an external review of the Legal Aid decision.

·On 30 August 2022 he told the magistrate he wanted the adjournment.  

[31]Police opposed the adjournment. Sergeant Jarmonovic referred to the protracted history of the case, and advised that the aggrieved was at court.  To adjourn again without resolution would harm her well-being.

[32]His Honour weighed the potential disadvantage to the appellant against the potential harm to the aggrieved. He pointed out that the appellant had known of the restriction on cross examination for four and a half months. He had waited too long to chase Legal Aid and had made no back up plan. While the inability to test an aggrieved would normally create some disadvantage, there was no real disadvantage here because the substance of the application was confined and without any significant contradiction by the appellant. On the other hand, another adjournment would cause distress to the aggrieved. The guiding principle under the Act was that the safety, protection and well-being of people who fear domestic violence are paramount. A subsidiary principle in s 4 of the Act was that such people should be treated with respect and the disruption to lives minimised.

[33]His Honour’s reasoning was sound.  

[34]On the appeal, the appellant offered new evidence to prove that he had requested the external review for Aid, but that fact had never been challenged.  His delay in pursuing Legal Aid remains unexplained.  The appellant was entitled to seek out a lawyer to represent him at the hearing, but he had had adequate opportunity to exercise that right.  There is no right to publicly funded legal representation for a protection order.  There is no evidence the appellant had any real prospect of obtaining legal aid, even after an adjournment. 

[35]The appellant told the magistrate he did not feel ready because he had been too focused on the Family Court proceedings.  A three-day trial for parenting orders in the Family Court had been fixed to start eight days before the Proceedings before the Magistrates Court.  The trial had resolved by consent orders on the first day.  Furthermore, there was a substantial overlap between the two proceedings, with the same allegations.  The Family Court was to consider D’s fear of the appellant, his conduct towards her and the risk he posed to her mental health.  Preparation for one hearing was therefore preparation for the other.

[36]It is not clear what further preparation the appellant could have made.  The issues on the police application were narrow.  Pursuant to orders made at a directions hearing on 13 April, the evidence-in-chief had closed.  The appellant’s affidavit in reply to the application had been sworn and filed.  It was not open to him to cross examine the aggrieved in person.  

[37]The hearing date of this matter had been set down for a long time.  The appellant had been previously put on notice that any cross examination of the aggrieved could only be through a lawyer.

[38]The decision to proceed with the hearing was not unfair.

Questions from the Bench

[39]Judicial independence does not mean the bench cannot ask relevant questions. In fact s 145 of the Act empowered the magistrate to inform himself in any way he considered appropriate. An independent observer to the whole proceeding, with knowledge of the legislative scheme and its objects, would recognise His Honour’s approach as evidence of an objective mind.

[40]It was clear that His Honour had read the parties’ material prior to the hearing. He intimated that the application was unlikely to succeed. He called the police case thin, noting that the mere fact of a breach did not mean that a protection order should be extended. His Honour then adjourned so the parties could reconsider their positions. At various points throughout the hearing, he commented on an absence of supporting evidence for the application. In fact, His Honour noted the material from both sides was deficient. He asked questions of both the aggrieved and the appellant to clarify aspects of their evidence. In doing so the magistrate was flushing out the merits of their respective cases. He also sought the 2019 court records of the protection order to comply with his obligations under s 91 of the Act.

The aggrieved’s evidence.

[41]The aggrieved’s affidavit was her evidence-in-chief.  Most of it was not contentious.  She made a general allegation of domestic violence, and expressed her own fear of the appellant.  The appellant’s affidavit disputed those two matters, but nothing else.

[42]Her affidavit referred to a court requirement that the appellant attend a psychiatric assessment.  The magistrate asked her where he would find evidence of that.  The aggrieved referred him to the 2019 parenting orders. 

[43]The magistrate told the aggrieved her allegation that D had post-traumatic stress disorder was unsupported by any evidence.  The aggrieved’s evidence in response was that:  

(i)     D had been hospitalised and received psychiatric treatment for 18 months, following her request not to see the appellant.   

(ii)  To repair the relationship between D & the appellant, the Family court had asked the appellant to see D’s psychiatrist.

(iii)     For the most recent Family Court trial, D’s psychiatrist had recommended the appellant have a full psychiatric evaluation. The appellant had consented to that condition.

None of those matters were contradicted by the appellant. They were confirmed by the Family Court documents and subsequently, by the letter of Dr Joyayemi.

[44]In addition to seeking more information around D’s mental health allegations, the magistrate clarified other aspects of the aggrieved’s allegations. Her affidavit had referred to the letters as an “escalation”, but no other incidents had been disclosed.  His Honour declined to receive new allegations from her. 

[45]Through his questions, the magistrate exposed other areas of weaknesses in the aggrieved’s evidence.  His Honour deduced that the aggrieved’s fear that the appellant would go to her house was based on a misunderstanding as to how and when the appellant had obtained her address.  While the aggrieved was still in the witness box, he tried to ease her concerns.  He also pointed out that the aggrieved’s desire to keep the appellant from the children’s school was unworkable because of the parenting orders.

[46]His Honour invited the appellant to challenge the evidence of the aggrieved, by putting questions through the Bench. The only aspect the appellant sought to discredit was the aggrieved’s fear of him.  That was a legitimate area for cross examination.  A single question was posed and disallowed.  It concerned an episode where the aggrieved had suggested the appellant collect the son’s medication from her work.  The incident had not been mentioned in the affidavit material. In the end however, the circumstances were admitted into evidence.  The appellant was not deprived of his argument about them.

The order restricting cross examination of the aggrieved: s 151 DFVPA

[47]The appellant complained that the police prosecutor was permitted to cross examine him, when he was not permitted to cross examine the aggrieved.  Such a course was open under the legislation. 

[48]Section 151of the Act confers a discretion on the court to prohibit cross examination of the aggrieved by a respondent in person. The power to make the order arises under s 151(2) if the court is satisfied the cross examination is likely to cause a protected witness either emotional harm or distress, or to be so intimidated as to be disadvantaged as a witness.[19] If an order is made, the court must proceed in accordance with s 151(4), to inform the self-represented respondent that he cannot cross examine the protected witness in person and to give him a deadline for notifying the court of his position (whether he has a lawyer for the whole hearing or at least the cross examination of the protected witness, or whether he had decided not to cross examine the witness).

[19]DFVP Act s 151(2).

[49]The direction preventing the appellant from cross examining the aggrieved in person was given on 13 April 2022. It is accepted the magistrate told the Appellant that he would not be allowed to cross examine the aggrieved in person, but a deadline in accordance with s 151(4)(b) was never given. Therefore, the first obligation under s 151(4) was met, but not the second. The oversight occurred in circumstances where the appellant had legal representation at the directions hearing, but soon after his solicitor ceased to act for him.

[50]There was no appeal against the direction excluding cross examination in person. It was not argued the circumstances essential for such a direction were absent or that the discretion was otherwise exercised improperly. The complaint is the failure to grant the adjournment of the hearing when s 151(4) was only partially satisfied.

[51]It is not the law that every judicial act in conflict with legislation is invalid. The Act does not expressly address the question of non-compliance with s 151(4). The issue is one of statutory construction. Subsection (4) is not a condition precedent to the s 15(2) order, but an obligation that arises after the order is made. It follows, while magistrates are required to comply with s 151(4), a failure to comply is an irregularity only. It does not render the direction made under s 151(2) a nullity.

[52]Although the legislative scheme confers a general discretion to restrict the cross examination of an aggrieved, there is an absolute prohibition on the cross examination of a child by a respondent in person. The requirement in s 151(4) to give the respondent notice and impose a deadline, applies to mandatory and discretionary restrictions alike.[20]  The inclusion of mandatory restrictions serves to confirm that non-compliance with subsection (4) does not invalidate the restriction imposed.

[20] Ibid.

[53]Whether it would be fair to proceed with the restriction on cross examination, without full compliance with s151(4), must depend upon the particular circumstances. The chief purpose of the subsection is to allow a respondent to make an informed choice about legal representation. In most cases, it would be unfair to proceed if the respondent did not have that opportunity. Full compliance however, might require no more than a very short deadline. That is consistent with the language used in s 151(4), which requires a deadline in terms of “a stated date or time” (emphasis added).  In some instances, even a complete absence of a prior deadline to notify the court of the respondent’s position, might have little or no adverse impact on the respondent, if ample notice of the restriction was given. 

[54]Flexibility to meet the fairness of the circumstance is consistent with the objects and purpose of the legislation. The power to restrict cross examination of a protected witness is just one of a number of procedural modifications designed to make protection proceedings more accessible to those who need them.  Fairness has to be assessed within the context of the modified procedures and the interests of justice.  The point is illustrated by the Domestic and Family Violence Rules 2014 (Qld) (‘the Rules’).  They confer a wider discretion to prevent the cross examination of an aggrieved, even where the respondent has a lawyer.[21]  There is no specific requirement that advance notice be given, but the paramount issue for any order under the Rules is always the interests of justice.[22]  In determining what is in the interests of justice in terms of any restriction on cross examination of an aggrieved, considerations about the complexity or simplicity, importance of the issues and the fairness of the hearing for both parties may be relevant.[23]   Because those considerations are not mandated for every case, the relevance and prominence of competing considerations must depend upon the individual circumstances.[24]  

[21]DFVP Rules r 22(g).

[22] Ibid r 23.

[23] Ibid r 23(2).

[24]The importance of the individual circumstances is reinforced by s 24 of the DFVP Act.  S 24 ensures that where a direction is inconsistent with the Rules, the direction prevails.

The absence of an order prohibiting cross examination of the appellant

[55]A variation hearing with cross examination of the respondent but not the aggrieved does not make necessarily render the trial unfair. S 151 of the Act and r 22(g) and (h) of the Rules expressly provide for restricting the cross examination of an aggrieved, but there is no equivalent provision to expressly exclude an applicant from cross examining the respondent. The court’s authority to do so may derive from the general power to issue directions under s 144 of the Act. Again, the paramount consideration would be the interests of justice.[25]

[25] See DFVP Act ss 142 and 144; See DFVP Rules r 23(1). As it would not be a direction under r 22, r 23(2) would not apply. 

[56]In the present case the magistrate endeavoured to redress potential disadvantage for the appellant, by testing assertions made by the aggrieved, affording the appellant an opportunity to pose appropriate questions, and intervening in the police cross examination of the appellant.[26]

[26] Transcript 1 – 8.  

The appellant’s evidence

[57]On 30 May 2022 the appellant filed his sworn response to the police material. He denied any violence to the daughter.  That allegation was before the Family Court for determination.  He had not seen his daughter since 12 February 2021.  He had received the aggrieved’s address through Family Court disclosures.  Despite having the address for a year, he had never visited the home nor did he intend to do so. 

[58]The appellant’s affidavit also referred to an “affidavit” from D’s “psychologist”, which “identified that (D) was looking for an apology from me”.   That was in early February 2022.   He then sent the letters to tell D that he loved her and was sorry for whatever had occurred.

[59]The magistrate assisted the appellant to give his evidence in court. The appellant wished to rely on two documents: the signed draft of final orders settled by the parties eight days earlier, and the Family Report dated 28 July 2022.  Both were initially admitted into evidence, although the appellant then withdrew the Family Report.

[60]His Honour sought to clarify seemingly contradictory evidence about whether the appellant had complied with a parenting order for anger management treatment.  That was a legitimate enquiry and the magistrate was entitled to ask it.  It also gave the appellant the opportunity to clarify his position.

[61]His Honour was reluctant to permit cross examination of the appellant.  He only did so after Sergeantt Jamanovic explained he wished to explore the defendant’s stated reason for sending D the letters.  The issue was obviously relevant to future risk.  His Honour permitted cross examination.  He did not place any formal restriction on the questioning, but did encourage Sergeant Jamanovic to confine his focus by warning that questions on other topics would be treated with “a great degree of circumspection…”[27]

[27] Transcript 1- 9

[62]      The cross examination was limited.  It ran for just seven pages of transcript, including the magistrate’s interruptions.  At various points, His Honour chastised the sergeant, made unfavourable comments about police applications in general and excluded questions.[28] 

[28] See, eg, Transcript 1- 43, 1 -47: “move on”, do not “ repeat everything”, do not “harangue”.

[63]      It seems to me the sergeant did stay within the areas he had flagged.  In any event the questioning was not unfair.  In addition to direct questions about the letters as an “apology,” cross examination secured the appellant’s acknowledgment that the terms of the protection order prohibited even indirect contact with D or her mother, without court order or written consent, and there was no court order permitting contact. The appellant had already admitted sending the letters.  He had therefore accepted the facts that established a contravention, yet persistently maintained there was no contravention of the protection order. 

[64]      After cross examination, the magistrate asked if the appellant wished to give any further explanation of his evidence.  There was this exchange: [29]

[29] Transcript 1-49, 50

“APPELLANT:          I would like to say that I’ve only ever acted as a good father. I’ve never breached a domestic violence…

HIS HONOUR:          That is complete rot.  You have, very clearly, in sending those letters, broken a domestic violence order?

APPELANT:I honestly didn’t believe that that was a breach.”

[65]      The appellant repeated his denial in closing argument.[30]   In closing he said:[31]

“APPELLANT:                  … I wrote those letters to express my love and to apologise if there is anything I have done.…

HIS HONOUR:  I see.  Without accepting that you anything to apologise for, it seems?

APPELLANT             Correct.”

[30] Transcript 1 – 57.

[31] Transcript 1 – 58.

[66]      The appellant contended that His Honour displayed bias when he rejected the appellant’s denial of a breach by calling it “complete rot”. Those comments came at the conclusion of the appellant’s evidence, which meant the court had heard all the evidence in the matter. The learned magistrate was clearly frustrated by the illogicality of the denial.  His language was robust, but the conclusion was irresistible. The appellant had contravened the protection order, regardless of whether the appellant had a reasonable excuse for doing so.

[67]      The protection order prohibited any contact with D, her mother or her brother, including indirect contact, unless the appellant had consent in writing or a court order.  There was no suggestion that either exception arose.  If, as the appellant had intended, his letters had reached D, that contact would have been in contravention of the protection order.  They were however, received by the aggrieved.  That predictable contact was in contravention of the order.

Dr JOYAYEMI’s letter

[68]      Dr Joyamemi’s letter proved to be a critical turning point in the hearing.  Until it was tendered, His Honour appeared unpersuaded by the application.    

[69]      Dr Joyamemi had written to the ICL asserting the following:

(i)D suffered from a severe post-traumatic stress disorder caused by the appellant’s domestic violence;

(ii)she loved the appellant but remained terrified of him;

(iii)Dr Joyayemi had met with the appellant.  The appellant appeared overbearing and combative.  He did not appear to have any insight into the effect he had on his daughter;

(iv)Dr Joyamemi’s conclusion was that the appellant should be psychiatrically assessed, and undergo therapeutic counselling.  That treatment should occur before the appellant had any further contact with D.

[70]      The magistrate found the tendency to be combative and domineering was apparent in the appellant’s presentation at court. After considering the appellant’s testimony in conjunction with the Dr Joyamemi’s letter, His Honour concluded that the appellant:

“…found the most tenuous of excuses from Dr Joyayemi’s letter as a reason to try and reassert his relationship with [D].   This displays a lack of insight into his daughter’s welfare, conveniently disregards the balance of Dr Joyayemi’s stated concerns & exhibits a tendency to exert control &   that in defiance of court orders, which he not only  understood, he agreed to.  Dr Joyayemi’s letter was a convenient excuse to do what he wanted.”

[71]      The letter was not part of the police material filed prior to hearing.  Sergeant Jamanovic tendered it during his cross examination, after the appellant had identified the letter as the document that had prompted him to write to D.  The appellant did not object.  Indeed, having sought to rely upon his own account of the contents of the document, the appellant could not fairly object to its admission into evidence.

[72]      On appeal, Mr McKeane submitted that receipt of Dr Joyamemi’s letter was unfair because his client did not have the opportunity to cross examine the psychiatrist.  The appellant did not request that opportunity.  Moreover, apart from denying domestic violence, the appellant has never raised a disagreement with any other aspect of Dr Joyayemi’s letter.  Mr McKeane did not identify what part of the letter should have been challenged. 

[73]      The limitations of the letter are self-evident.  There is no suggestion the psychiatrist was present for any alleged domestic violence.  Therefore, it must be inferred that he only had second hand information about it.  His assertion that the appellant’s violence caused the child’s post-traumatic stress disorder could only mean that the presentation and ongoing treatment of his patient was consistent with that conclusion.    

[74]Dr Joyamemi’s letter was relevant to assess the credibility and substance of the appellant’s explanation, which in turn was relevant to the question of future risk to D’s well-being.

[75]Although unsworn, the letter was admissible under s 145 of the Act. The absence of sworn evidence from Dr Joyamemi was a matter of weight. In the circumstances, however, the magistrate was entitled to place a lot of weight on the opinion given. His Honour had sworn evidence from the aggrieved about D’s diagnosis, D’s on-going fear of the appellant and her treatment. The appellant had neither challenged, nor sought to contradict that part of the evidence. Just days earlier he had consented to orders based on the opinion of Dr Joyamemi expressed in the letter.[32]

[32]The appellant informed the magistrate he had consented on 22 August 2023 to the new parenting orders.

The family report

[76]Mr McKeane contended the magistrate wrongly excluded a Family Report.  The magistrate did not exclude the report.  The appellant changed his mind about it.

[77]The report had been prepared for the Family Court by Sean Moriarty.  The appellant tendered the report while in the witness box, contending it showed he was a good person and a good father.  His Honour admitted the exhibit, then perused it.  He noted the report showed the opposite of what the appellant claimed.  For example, the report alleged the children had complained of domestic violence by the appellant.  The learned magistrate questioned whether the appellant was sure he wanted the court to have regard to the report.  Unsurprisingly, the appellant asked for its return.

[78]Mr Moriaty’s report is not before this court.  There is nothing to indicate His Honour miscategorised the contents.  The only conclusion is that the opportunity to withdraw the exhibit was to the benefit, rather than the disadvantage, of the appellant.

Summary

[79]An appeal under s 168(1) of the Act, is by way of rehearing. It is well established that the court’s power to intervene can only be exercised where a material error of law, fact or discretion has been demonstrated. The appellant failed to demonstrate any such error.

Grounds of appeal relating to procedural unfairness

[80]The complaints of procedural unfairness misunderstood the nature of the proceedings and the evidence.  Some were made out of context.  The others were just wrong.  A review of the transcript shows the magistrate was frustrated with the conduct of both sides, made accommodations for the potential disadvantage of the appellant as the self-represented party and asked questions to get to the real nub of the dispute fairly.  There was no unfairness.

Errors of fact?

[81]The appellant’s criticisms of the facts accepted by the magistrate are not made out.  The findings His Honour made were reasonably open based on the evidence properly before him. 

a.   Was there a breach of the protection order?

[82]The letters sent to the home of the aggrieved did contravene the protection order.

[83]The appellant however was not on trial for contravening an order. Proof of a contravention was not a statutory requirement for the extension of the order.  The real issue was the need or desirability for a continuation of the protection order. The uncontradicted information before the magistrate was that D feared domestic violence  from the appellant. Matters of relevance in determining whether the extension was necessary, or at least desirable, were the risk of the appellant committing domestic violence in the future and the well-being of D, as a person who feared domestic violence.

b.   Did the appellant’s letters endanger the child’s mental health?

[84]His Honour did not find actual harm caused to D.  Rather, he considered the appellant’s conduct had posed a threat to D’s health. On the material before him, that was a reasonable conclusion.

[85]There was no evidence D had seen the letters.  There was a strong inference she had not seen them.  It was the appellant’s attempt to have D receive his letters that was relevant.  By sending the letters to her home and addressed to her, the appellant created the very real risk that D would read them.  Given D’s fragile mental health and the state of her relationship with the appellant, it was reasonable to conclude that reading what the appellant had written would jeopardise D’s mental health.

c.   Was it reasonable to conclude the appellant was a risk to D?

[86]In three years, the two letters were the only contraventions identified.  The context for the letters was important. They were sent in response to the psychiatrist’s warning that contact with the appellant was dangerous for D, and in circumstances where the appellant knew of her vulnerable mental health and knew that his interaction with her had been a long-standing issue.  Six months later, after his conduct had come under scrutiny in two jurisdictions, the appellant continued to justify writing to D.  He appeared unrepentant.  He had resisted counselling.  He showed no sign of insight or self-reflection.  Without a protection order, there would be a substantially greater likelihood that the appellant would act in a way that would exacerbate D’s mental health condition.

Conclusion

[87]The ultimate question for the Magistrate was whether, after three years, it was necessary or desirable to continue the order to protect the aggrieved and the children from domestic violence, acknowledging the paramount importance of keeping people who fear domestic violence safe. His Honour found it did.  The evidence supported his conclusion.

[88]I am not persuaded the exercise of His Honour’s discretion miscarried.

Order

[89]The appeal is dismissed.