Lydon v Lydon

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LYDON -v- LYDON [2008] WASCA 8

CORAM: PULLIN JA
LE MIERE AJA

HEARD: 19 OCTOBER 2007

DELIVERED : 8 FEBRUARY 2008

FILE NO/S: CACV 116 of 2007

BETWEEN: KENNETH MALCOLM LYDON
Appellant
AND
JENNIFER ANN LYDON
First Respondent
ELLA EILEEN RYDING
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BOWDEN DCJ
Citation  :[2007] WADC 122
File No  :APP 78 of 2006

Catchwords:

Appeal - Restraining order - Whether provocation defence applies to application for restraining order

Appeal - Restraining order - Whether finding of emotional abuse requires supportive expert testimony - Turns on own facts

Legislation:

Criminal Code (WA), s 246
Restraining Orders Act 1997 (WA), s 3 s 6, s 11A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     No appearance
Second Respondent      :     No appearance

Solicitors:

Appellant:     In person
First Respondent           :     No appearance
Second Respondent      :     No appearance

Case(s) referred to in judgment(s):

Nil

PULLIN JA: I agree with Le Miere AJA.
LE MIERE AJA: The appellant appeals from a decision of a judge of the District Court dismissing an appeal from a decision of a magistrate. The magistrate made violence restraining orders against the appellant on the application of his mother and sister.

Decision of the magistrate

The first respondent, whom I will sometimes refer to as Ms Lydon and who was the sister of the appellant and the second respondent, whom I will sometimes refer to as Mrs Ryding and who was the appellant's mother, each applied to the Magistrates Court for a violence restraining order against the appellant.
Mrs Ryding lives on a property of approximately five acres at West Swan. There are two entrances to the property. The appellant occupies a shed on the property which he describes as a workshop and from which he conducts a car repair or panel beating business and has done so for a number of years. The father of the appellant and of Ms Lydon died about 12 months prior to the hearing before the magistrate. Ms Lydon is the executor of the father's will. In December 2002 the appellant commenced proceedings in the Supreme Court and obtained an interlocutory injunction restraining Mrs Ryding from creating, disposing of or dealing with any estate or interest in the property. The Supreme Court action has not been resolved. Neither the appellant nor Mrs Ryding are represented by solicitors and are conducting the Supreme Court proceedings themselves. The appellant says that he needs to discuss the issues and to try and resolve the matters relating to his occupation and use of the shed and matters relating to his father's will and that he needs to speak to Mrs Ryding and Ms Lydon in relation to those matters.
Ms Lydon gave evidence before the magistrate that she frequently visits the West Swan property to care for her mother and at times when she has been at the house the appellant has left his shed and come up to the house. Ms Lydon said that the appellant used his body to stop her from entering the house, jeering at and poking her and demanding that she speak to him. Ms Lydon said that she found his behaviour very intimidating. The magistrate described Ms Lydon's evidence concerning an incident in about June or July 2006 as follows:
[The appellant] forces his way inside the house. She described him as having hold of her mother's arm and pounding his hand up and down on

the kitchen bench and shouting at both she and her mother to stop calling the police.

The magistrate described Ms Lydon's evidence concerning a further incident as follows:
… she says that she got into her car, that [the appellant] shouted at her to open it and stood in front of the car against the bumper, preventing her from leaving. She says she started the car up and then she says he gave up and she then went home.
Ms Lydon gave evidence that she found the appellant's behaviour 'threatening and intimidating', and that she is 'frightened and fearful'.
The appellant essentially denied the evidence against him. The magistrate said that it came down to allegations against the appellant
that he will stand up right in [Ms Lydon's] face, he's poked her in the chest, demanding that she speak to him, putting his foot into the door to prevent her from going in or out of the door, standing in front of the vehicle to try and prevent her from leaving and basically, she says that that behaviour towards her is intimidating and frightening.
The magistrate found that the appellant had behaved in the manner alleged by Ms Lydon, that is, that he put himself right in Ms Lydon's face, demanding that she speak to him, poking her in the chest, putting his foot in the door, shouting at her and her mother and standing in front of the car, preventing her at least temporarily from leaving.
The magistrate found that this conduct was emotionally abusive towards Ms Lydon, that it was an act or acts of family and domestic violence and hence an act of abuse as defined by s 3 of the Restraining Orders Act 1997 (the Act) and hence the court was empowered by s 11A of the Act to make a violence restraining order against the appellant for the benefit of Ms Lydon.
Mrs Ryding gave evidence that the appellant's behaviour towards her was intimidating. She said that he bangs on the doors, and that on an occasion he had said to her at the shed: 'Get out or I'll kill you', that he had said a similar thing to her in a telephone conversation. Mrs Ryding also described the appellant grabbing her arm and banging his fist on the bench, demanding that she cancel a restraining order that she had taken out earlier. The magistrate accepted this evidence of Mrs Ryding. The magistrate found that there had been at least one incident in which the appellant had grabbed Mrs Ryding by the arm, which is an assault. The magistrate found that persistently trying to talk to Mrs Ryding about the Supreme Court proceedings and to visit the house, banging on the doors, is abusive and emotionally abusive behaviour. The magistrate concluded that the appellant had been emotionally abusive towards Mrs Ryding and that the appellant was likely to behave in a similar manner in the future if not restrained from doing so.
The magistrate made the following order on the application of Ms Lydon:
[S]ave and except when instructing or acting through a legal practitioner … or through an accountant instructed by [Ms Lydon] or for the purpose of attending and participating in any court proceedings or using conciliation, mediation or another form of consensual dispute resolution [the appellant] shall not communicate or attempt to communicate by whatever means with Ms Lydon. [The appellant] is not to enter or remain upon [Ms Lydon's residential address] or any other premises where Ms Lydon lives or works or be within 20 metres of the nearest external boundary of such premises and otherwise [is] not to approach within 20 metres of her.
The magistrate made the following order on the application of Mrs Ryding:
[S]ave and except when instructing or acting through a legal practitioner … or using conciliation, mediation or another form of dispute resolution or for the purpose of attending and participating in any court proceedings in which [the appellant] is bound as a party or a witness [the appellant] is not to communicate or attempt to communicate [by] whatever means with [Mrs Ryding] and [is] not to enter or remain upon the house located at [the Swan View property].

Appeal to the District Court

The appellant appealed to the District Court. The appellant and Mrs Ryding each appeared in person and represented themselves. Ms Lydon was not represented on the hearing of the appeal. The appellant appealed on 16 grounds. Bowden DCJ gave careful and detailed consideration to each ground of appeal, found that none of the grounds of appeal were established and dismissed the appeal.

This appeal

The appellant appeals to this court on nine grounds that refer to grounds of his appeal to the District Court and adopt the number of those grounds of appeal, being grounds 2, 3, 6, 7, 8, 11, 12, 13 and 15. I will consider each of those grounds of appeal using the appellant's numbering.
The appellant appeared in person and represented himself. Neither of the respondents appeared or were represented on the hearing of this appeal.

Ground 2

Ground 2 is that Bowden DCJ erred by dismissing ground 2 of the appellant's appeal from the Magistrates Court on the ground that the magistrate allowed two cases to be heard in the same hearing and failed to separate them.
The two cases is a reference to the applications of Ms Lydon and Mrs Ryding that were heard together.
Bowden DCJ made no error in considering and dismissing this ground of appeal.

Ground 3

Ground 3 is that Bowden DCJ erred in dismissing ground 3 that the magistrate failed to consider the Supreme Court action between Mrs Ryding and the appellant.
At [57] Bowden DCJ said that the magistrate was aware of the Supreme Court action and that there was an ongoing need for the appellant and Mrs Ryding to communicate in connection with it. His Honour referred to the cross‑examination of Mrs Ryding over those matters and references to those matters by the magistrate in her judgment.
The appellant submits that whilst Bowden DCJ said that the magistrate was aware of the court action and that she referred to it in her judgment, the magistrate had not considered it as she was required to do by the Act.
Bowden DCJ concluded that the magistrate did not fail to consider those matters. His Honour made no error. This ground fails.

Ground 6

This ground is that Bowden DCJ erred in dismissing the ground of appeal that the magistrate suppressed evidence, ordering the appellant not to ask questions which would have aided his defence.
The ground of appeal to the District Court asserted that the magistrate had prohibited the appellant from asking questions or cross‑examining on seven matters particularised in the ground of appeal. Bowden DCJ found that the matters referred to in the first two particulars were not relevant. His Honour found that the appellant had not been prohibited from cross‑examining on the matter referred to in the third particular. The fourth particular concerned a comment that the appellant made to Mrs Ryding. Bowden DCJ held that the magistrate was correct in not allowing the appellant to make comments to Mrs Ryding, as distinct from asking her questions. The fifth particular was that the magistrate prohibited the appellant from continuing to question Mrs Ryding over questions relating to her driveway. Bowden DCJ found that the magistrate had allowed the appellant to cross‑examine Mrs Ryding over the relevant issue, that is whether or not the appellant had put his foot in the door to enable him to speak to Mrs Ryding but held that questions relating to the removal of the driveway were irrelevant and the magistrate was right to prohibit the appellant from asking further questions. As to the matters raised in particular 6 and 7, Bowden DCJ found that the matters which the appellant wished to raise were irrelevant.
Bowden DCJ made no error in dealing with this ground of appeal. The ground is not made out.

Ground 7

Ground 7 is that Bowden DCJ erred in dismissing the ground of appeal that the magistrate rejected sworn testimony of the appellant. The particulars of this ground of appeal to the District Court were that there was no independent witness to corroborate the allegations made against the appellant. Bowden DCJ correctly observed that there does not as a matter of law need to be any independent witness to corroborate the allegations.
In support of the appeal to this court the appellant submitted that the magistrate rejected the evidence of the appellant in favour of the evidence of the respondents without any reliable corroborating evidence and in doing so denied him natural justice.
The appellant has not demonstrated any error made by the magistrate or by Bowden DCJ in dealing with this ground of appeal. The ground is not made out.

Ground 8

This ground is that Bowden DCJ erred in dismissing the ground of appeal that the magistrate totally disregarded the defence of provocation.
The particulars to this ground of appeal to the District Court were that s 246 of the Criminal Code (WA) (the Code) provides a complete defence to the issue of a restraining order. Bowden DCJ observed that it was incorrect to refer to a defence with regards to a restraining order. His Honour said that it was up to the applicant to establish on the balance of probabilities that a restraining order should be granted in terms of the Act.
Section 11A of the Act provides that a court may make a violence restraining order if it is satisfied that, amongst other things, the respondent has committed an act of abuse. Act of abuse is defined by s 3 to mean 'an act of family and domestic violence or an act of personal violence'. Act of family and domestic violence is defined in s 6(1) of the Act to mean one of the acts specified in the six following paragraphs that a person commits against another person with whom he or she is in a family and domestic relationship. Paragraph (a) is the act of 'assaulting or causing personal injury to the person'.
Bowden DCJ observed that the appellant contended that because of the reference to 'assault' in s 6 of the Act, that in considering whether there has been an assault within the meaning of the Code and therefore within s 6 of the Act, one would have to consider the defence of provocation. Bowden DCJ said that that was misconceived because the basis upon which the magistrate found an act of abuse committed by the appellant towards each of the respondents was that he was emotionally abusive towards them. Bowden DCJ said that s 246 of the Code only applies to offences of which assault is an element and could not apply and does not apply to 'emotional abuse'. Bowden DCJ went on to observe that the actions of the respondents in the appeal were not irrelevant as to whether or not a restraining order ought to be granted. Their conduct is a matter to be taken into account.
Bowden DCJ made no error in dealing with the ground of appeal before him. This ground of appeal has not been made out.

Ground 11

This ground is that Bowden DCJ erred in dismissing the ground of appeal that the magistrate failed to consider that the application for a restraining order was being used as a weapon in a dispute over property. Bowden DCJ found that the magistrate was aware of the disputes between the appellant and Mrs Ryding over property, had referred to them and had considered them in her judgment. Bowden DCJ held that the conclusion reached by the magistrate was reasonably open to her.
This ground of appeal as argued before this court was in effect that Mrs Ryding had 'all but openly admitted that she wanted the restraining order not because of fear or intimidation but to resolve a matter to do with property' and for that reason the magistrate should have rejected the application.
The magistrate considered the dispute between the appellant and Mrs Ryding concerning Mr Lydon's occupation and use of the shed and access to the Swan View property for that purpose. It has not been demonstrated that the magistrate erred in the exercise of her discretion in making a violence restraining order by failing to take into account that dispute. Bowden DCJ made no error in considering this ground of appeal. The ground is not made out.

Ground 12

This ground is that Bowden DCJ erred in dismissing the ground of appeal that the magistrate displayed an obvious bias against the appellant and favouritism for the respondents.
The ground of appeal to the District Court was supported by six particulars.
Bowden DCJ reviewed the law concerning the rule against bias and each of the particulars relied upon by the appellant. Bowden DCJ found that none of the particulars were made out.
Bowden DCJ gave careful and proper consideration to this ground of appeal. He made no error. This ground is not made out.

Ground 13

This ground is that the magistrate cross‑examined the respondent as if acting as a lawyer for the applicants.
The particulars to this ground of appeal to the District Court were that the magistrate cross‑examined the appellant by asking him to comment specifically on the allegations being made. The appellant relied on a particular exchange at page 112 of the transcript. Bowden DCJ found that the magistrate had intervened to ensure the parties focussed on the crucial issues and had not intervened to an unacceptable level of judicial intervention in any of her questioning.
Bowden DCJ made no error in dealing with this ground of appeal. The ground of appeal to this court is not made out.

Ground 15

This ground is that Bowden DCJ erred in dismissing the ground of appeal that the magistrate failed to give proper reasons for her decisions.
Before this court the appellant submitted that the magistrate failed to give proper reasons for her decision that the appellant was emotionally abusive towards each of the respondents and hence had committed acts of family and domestic violence, which empowered the court to make a violence restraining order under s 11A of the Act.
In his oral submissions the appellant submitted that emotional abuse is 'behaviour which causes psychological harm' and submitted that that is probably the grounds for a professional opinion and, in effect, the magistrate was not able to make such a finding in the absence of expert opinion.
Section 6(1) of the Act is in these terms:
'act of family and domestic violence' means one of the following acts that a person commits against another person with whom he or she is in a family and domestic relationship ‑
(a)assaulting or causing personal injury to the person;
(b)kidnapping or depriving the person of his or her liberty;
(c)damaging the person's property, including the injury or death of an animal that is the person's property;
(d)behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person;
(e)causing the person or a third person to be pursued ‑
(i)with intent to intimidate the person; or
(ii)in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person;
(f)threatening to commit any act described in paragraphs (a) to (c) against the person.
Emotional abuse is not defined in the Act. Emotional abuse involves improper or inappropriate behaviour, verbal or non‑verbal, that adversely impacts upon another person's emotional wellbeing. Emotional abuse improperly excites strong unwelcome feelings in another. Emotional abuse may involve coercion by intimidation, inducing fear, stalking, or harassment, that is words, conduct or action, usually repeated or persistent that, being directed at a specific person, annoys, alarms or causes substantial emotional distress to that person.
There are two aspects to emotional abuse. The first is the adverse impact upon another person's emotional wellbeing. The second is the behaviour that causes the negative impact upon the emotional wellbeing of another.
It was reasonably open to the magistrate to find that the appellant emotionally abused Ms Lydon. Ms Lydon gave evidence that she was frightened of the appellant, that he jeered at her, poked her in the chest with his finger, pounded on the door and demanded that she talk to him, jammed his leg in the door to stop her from closing it, and forced his way into the house (AB 67). Ms Lydon said that she found his behaviour very intimidating (AB 68). On one occasion Ms Lydon locked her car door when the appellant approached her, and he shouted at her to open it and tried to pull the door open. The appellant then stood in front of the car while Ms Lydon started it, and tried to hold the car back with his hands and his body (AB 68).

The appellant also harassed Ms Lydon by making telephone calls at all times of the day and night demanding that she talk to him (AB 68). Ms Lydon said that the appellant 'seems to think he's in charge of us and that he has said that he's in charge of them and that's he's the head of the family' (AB 69 ‑ 70). Ms Lydon said on a number of occasions that she was frightened of the appellant because of his behaviour towards her and her mother. She said that she believed that one day the appellant would kill or hurt her (AB 74). Ms Lydon said that she found the appellant's letters harassing and offensive (AB 90 ‑ 91); that she finds any contact with the appellant intimidating, threatening and harassing (AB 92). Ms Lydon said that she did not want to have anything to do with the appellant and found that even being in the courtroom with him distressed her (AB 92). Ms Lydon said that she simply wants to go about her life without feeling threatened and intimidated by the appellant (AB 93).
The magistrate had the advantage of seeing and hearing Ms Lydon give evidence of the appellant's behaviour and its affect on her. It was open to the magistrate to find that by his words and actions the appellant had caused Ms Lydon to feel frightened, intimidated and stressed and that his behaviour was inappropriate and reasonably likely to adversely impact upon Ms Lydon's emotional wellbeing. It was reasonably open to the magistrate to find that the appellant had engaged in emotional abuse towards Ms Lydon.
It was reasonably open to the magistrate to find that the appellant had emotionally abused Mrs Ryding. Both Ms Lydon and her sister, Catherine Lydon, gave evidence of threatening and intimidatory behaviour by the appellant towards Mrs Ryding. Mrs Ryding gave evidence of the impact upon her of the appellant's behaviour. When asked why she had applied for a restraining order against her son Mrs Ryding said:
Because I'm so very tired of it, your Honour. I've had over 20 years of this harassment, this intimidation, this rot goes on and I'm so fed up with it (AB 125).
Mrs Ryding gave evidence that when she locked her doors the appellant banged on them and tried to get in. Mrs Ryding gave evidence that the appellant's behaviour harassed and intimidated her. She said that she wanted the appellant to let her have peace (AB 127). When asked about a particular occasion when the appellant tried to enter her house, Mrs Ryding said that the appellant was trying to barge into her house, he would not leave her alone, and that he was harassing her (AB 147). Mrs Ryding gave evidence of the appellant grabbing her by the arm and saying that he wanted to talk when she did not want to talk (AB 148).
It was reasonably open to the magistrate to find that Mrs Ryding felt intimidated and harassed by the appellant and was in fear of him. There was ample evidence of inappropriate behaviour by the appellant that was likely to, and did, give rise to these feelings.
It is open to the court to be satisfied that a person has behaved in an ongoing manner that is emotionally abusive towards another person without the benefit of any psychiatric or psychological evidence. Behaviour that is emotionally abusive is behaviour that is reasonably capable of adversely impacting upon another person's emotional wellbeing. This does not require psychological or other expert evidence.
A magistrate is required to give reasons for their decision. The magistrate's decision identified the facts that the magistrate accepted in coming to her decision and the reasons for doing so and identified the law that the magistrate applied in coming to her decision.
The magistrate's reasons must disclose the intellectual processes which led to her decision.
The magistrate found that the appellant had behaved in the manner alleged by Ms Lydon: that is, putting himself right in Ms Lydon's face, demanding that she speak to him, poking her in the chest, putting his foot in the door and shouting at Ms Lydon and her mother and standing in front of the car, preventing her at least temporarily from leaving. The magistrate then said that the question was whether this behaviour is an act of abuse as defined in the Act. The magistrate again referred to the appellant's behaviour in jeering at Ms Lydon, getting right in her face, shouting, placing his foot in a doorway, preventing her from going through the doorway and standing in front of her vehicle so that she was temporarily unable to leave the premises. The magistrate concluded that all of that behaviour taken together was ongoing behaviour over a period of a few months and in all of the circumstances was emotionally abusive towards Ms Lydon. The magistrate went on to say that it may not be intimidating and it may not be offensive but it was emotionally abusive. In light of her findings concerning the appellant's behaviour the magistrate might well have found that his behaviour was intimidating or offensive. However, it was open to the magistrate to find that the appellant's behaviour was emotionally abusive without making any finding as to whether or not it was intimidating or offensive.
The magistrate separately considered the appellant's behaviour towards Mrs Ryding. The magistrate noted that Mrs Ryding was 82 years of age, had a hearing impairment, poor eyesight and was not in the best of health. The magistrate was satisfied that the appellant had grabbed Mrs Ryding by her arm, and that he banged on the bench with his fist, demanding that the restraining order be cancelled.
The magistrate referred to a statement made by Mrs Ryding which indicated that she was not really frightened of the appellant. Behaviour may be emotionally abusive even though it is not intimidating and does not cause fear in the person to whom it is directed. Where a person persists in making unwelcome approaches to another person and persists in talking, or trying to talk to them when the other person has said that they do not wish to do so, this may be emotionally abusive behaviour. Such behaviour may be emotionally abusive where the frequency, nature and manner of the approaches is likely to demoralise, tire out or exhaust the person to whom it is directed. In this case the magistrate prefaced her finding that the appellant's behaviour was emotionally abusive by observing that Mrs Ryding was elderly, reasonably frail, somewhat deaf, had poor eyesight and lived in the house on her own. The magistrate found that the appellant's behaviour in persisting in trying to talk to Mrs Ryding about the property when she did not wish to do so, and visiting the house and banging on the doors in the way described in the evidence, was emotionally abusive. It was open to the magistrate to find that the appellant's behaviour was emotionally abusive.
The magistrate's reasons were delivered extempore. The reasons are sufficient if they disclose the intellectual process that led to the magistrate's decision even though they could be expressed more eloquently or fulsomely. It is apparent from her reasons that the magistrate found that the appellant's behaviour had adversely impacted upon Mrs Ryding's emotional wellbeing. The magistrate's reasons were sufficient.
This ground of appeal is not made out.

Conclusion

None of the grounds of appeal are made out. The appeal must be dismissed.

[2008] WASCA 8

8 February 2008