MHJ v MCD
[2011] QMC 40
•10 June 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
MHJ & Ors v MCD [2011] QMC 40
PARTIES:
MHJ
(aggrieved)
MP
(applicant)
BP
(applicant)
KH
(applicant)
v
MCD
(respondent)
FILE NO/S:
MAG27050/11(5)
DIVISION:
Magistrates Courts
PROCEEDING:
Application for Domestic Violence Protection Order
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
10 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
12 April 2011, 21 May 2011
MAGISTRATE:
Previtera T
ORDER:
The court orders in favour of MHJ (as the aggrieved) and BP, KH, KJ and MP;-
The Respondent must be of good behaviour towards the aggrieved and must not commit domestic violence.1.
The Respondent must be of good behaviour towards any named person in this order and not commit an act of associated domestic violence against the named person.2.
The Respondent is not to enter or remain in any place where MHJ is living; except as agreed in writing between the applicants MP, BP and KH (or any other person or organisation appointed to act as MHJ’s guardian from time to time) and the respondent.3.
The Respondent is not to come within 200 metres of any place where MHJ is living; except as agreed in writing between the applicants MP, BP and KH (or any other person or organisation appointed to act as MHJ’s guardian from time to time) and the respondent.4.
The Respondent is not to approach or remain in any place where the Respondent’s relatives or associates listed in the order are living, staying or working including:5.
BP (DOB [dob]) – [address]; and(a)
KH (DOB [dob]) – [address]; (b)
except for the purposes of attending court or tribunal proceedings, mediation or QCAT conferencing or as agreed in writing between the applicants and the respondent.
The Respondent is not to contact, try to contact or ask someone else to contact MHJ, directly or indirectly except as agreed in writing between the applicants MP, BP and KH (or any other person or organisation appointed to act as MHJ’s guardian from time to time) and the respondent.6.
The Respondent is not to contact, try to contact or ask someone else to contact relatives or associates listed in the order directly or indirectly except in writing or through a solicitor. 7.
CATCHWORDS:
FAMILY LAW – DOMESTIC VIOLENCE – whether domestic violence has occurred – whether domestic violence is likely to occur again – associated domestic violence
Domestic and Family Violence Protection Act 1989
BBB v RAB (2006) QDC 80
Rogers v Rogers (Appeal NO. 9 of 1995, unreported)
MAN v MAM (2003) QDC 398
Birnie v Booth Appeal No.1 of 1994
COUNSEL:
S McNeil for applicants
J Williams for respondent
SOLICITORS:
McCullough Robertson Solicitors for applicants
Conroy and Associates for respondent
On 14 February 2011, MP, BP and KH, the adult children of MHJ (mother) and MCD (father) filed proceedings in this court, seeking orders, pursuant to the Domestic and Family Violence Protection Act 1989 (“DFVPA”) to protect their eighty-two (82) year old mother (as the aggrieved); and themselves (as named persons). The respondent to the application is their father to whom their mother has been married for 62 years.
The provisions of s 14(1)(4) and (5) of the DFVPA enable MP, BP and KH to make the application for the orders sought[1] because of their appointments, on the 17 December 2010 by the Queensland Civil and Administrative Tribunal (QCAT), as MHJ’s temporary guardians and administrators. Those appointments, made pursuant to the Guardianship and Administration Act 2000 have been extended on each of 14 March 2011 and 23 May 2011. QCAT has adjourned the guardianship proceedings because of the outstanding allegations of domestic violence to be addressed in this jurisdiction.[2]
[1]Application filed 14 February 2011.
[2]Affidavit of WSG filed 4 April 2011; paragraph 6.
The applicants rely on the following material:-
i.Affidavit of KH filed 9 March 2011;
ii.Affidavits of BP filed 9 March 2011 and 7 April 2011;
iii.Affidavits of MP filed 9 March 2011 and 7 April 2011;
iv.Affidavit of KAJ (KH’s son) filed 9 March 2011;
v.Affidavit of KJB (KH’s husband) filed 9 March 2011;
vi.Affidavit of MSR (MP’s daughter) filed 29 March 2011;
vii.Affidavit of HJD (the respondent MCD’s sister) filed 4 April 2011;
viii.Affidavit of WSG (the applicants’ solicitor) filed 4 April 2011;
ix.Affidavit of KVS (Social Worker from Blue Care Community Care) filed 8 April 2011;
x.Affidavit of KC (General Practitioner for MHJ until 2007), attaching progress notes 27 July 2004) filed 11 April 2011; and
xi.Letter of DR dated 13 February 2011.
Of those witnesses, the following gave oral evidence:- KH, BP, MP, KAJ, KJB, KVS (by telephone), and KC (by telephone). Also called to give evidence (by telephone) was DJ, the Quality Improvement Manager at Queensland Baptist Care, through whom was tendered and admitted into evidence a letter from her to the applicants’ solicitors dated 8 March 2011 (Exhibit 4).
The following material was relied upon by the respondent:
1. Affidavit of MCD filed 23 March 2011;
2. Affidavit of CP (personal friend of MCD and MHJ for 37 years) filed 29 March 2011;
3. Affidavit of CT (family friend of MCD and MHJ for 39 years) filed by leave on 12 April 2011;
4. Affidavit of JL (neighbour of MCD and MHJ for 27 years) filed 23 March 2011;
5. Affidavit of EA (niece of MHJ) filed 29 March 2011;
6. Affidavit of TT (friend of MCD and MHJ since 1965) filed 8 April 2011;
7. Affidavit of TB (friend of MCD and MHJ since 1960) filed 8 April 2011;
8. Affidavit of EK (friend of MCD and MHJ for more than 40 years) sworn 8 April 2011;
Of those deponents, the following gave oral evidence:- MCD, CP, CT, JL and EA (by telephone).
The Domestic Violence and Family Protection Act 1989 (DFVPA)
S 3 of the DFVPA provides;
(1)The main purpose of this Act is to provide for the safety and protection of a person in the case of domestic violence committed by someone else if any of the following domestic relationships exist between the 2 persons—
(a) a spousal relationship;
…
(2)The way in which the main purpose of this Act is to be achieved is by allowing a court to make a domestic violence order to provide protection for the person against further domestic violence.
S 20 (1) of the DFVPA provides:-
(1)A court may make an order against a person for the benefit of someone else (the other person) if the court is satisfied that—
(a)the person has committed an act of domestic violence against the other person and a domestic relationship exists between the 2 persons; and
(b) the person—
(i) is likely to commit an act of domestic violence again; or
(ii if the act of domestic violence was a threat—is likely to carry out the threat.
S 21(1) of the DFVPA provides:-
(1)The court may include the name of a relative or associate of an aggrieved in a domestic violence order made for the benefit of the aggrieved if the court is satisfied that the respondent has committed, or is likely to commit, any of the following acts against the relative or associate—
(a) wilful injury;
(b) wilful damage to property of the relative or associate;
(c) intimidation or harassment;
(d) a threat to commit an act mentioned in paragraphs (a) to (c).
…….
S 9 of the DFVPA provides
“If a court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.”
S 11(1) of the DFVPA defines domestic violence as
… any of the following acts that a person commits against another person if a domestic relationship exists between the 2 persons—
(a) wilful injury;
(b) wilful damage to the other person’s property;
(c) intimidation or harassment of the other person;
(d) indecent behaviour to the other person without consent;
(e) a threat to commit an act mentioned in paragraphs (a) to (d).
S 84(2) of the DFVPA provides:
In any proceeding with the view to—
(a) making a protection order or a temporary protection order;…the court or magistrate may inform itself, himself or herself in such manner as it or the magistrate thinks fit and is not bound by the rules or practice as to evidence.
S 84(3) of the DFVPA provides:
The court or magistrate need not have the personal evidence of the aggrieved before making a domestic violence order.
Background
For the purposes of the DVFPA, a domestic relationship exists between MCD and MHJ.
In 2006 MHJ was diagnosed by Dr Saines, neurologist, with a mild cognitive impairment, which has steadily progressed since that time. MHJ currently suffers from alzheimer’s, ischaemic and coronary artery diseases as well as vascular dementia, osteoporosis, hypertension, B12 deficiency and hypercholestorlemia.[3] MCD has also suffered from significant health issues, including cardiovascular disease (heart attacks and hypertension) for many years.[4] Those health issues continue.
[3]Letter of DR dated 13 February 2011.
[4]Exhibit CDM1 to affidavit of MCD filed 23 March 2011.
MCD was MHJ’s full-time carer until 17 January 2011 when MHJ was removed from the matrimonial home pursuant to the guardianship order. When MCD was caring for MHJ, the house had been adapted and equipment provided over time to meet MHJ’s needs. In early May 2009, MHJ was admitted for the first time, to respite care at Riverview Gardens when MCD required some eye surgery. MHJ’s children were unable to have her living with them because of her specialised equipment and medical needs.
The evidence of KH and BP is that MCD controlled MHJ’s activities in Riverview by, for example, preventing her from spending any time with any of the other residents, including at mealtimes, such that if she was wheeled down to the common area by staff, MCD when he arrived would immediately wheel her back to her room where he sat by her side all day, directing staff how to treat her.
All three adult children state that the Manager of the Riverview Gardens facility told them at that time that if MHJ was to become a permanent resident at Riverview Gardens, MCD’s access would have to be restricted because of what was reported as his intimidating and abusive behaviour. MCD admits that he sat with MHJ between 9.00am and 9.00pm for the four days of respite, but without any complaints from staff, whom he says he assisted considerably.
Alleged further comments attributed to the Riverview Gardens Manager are contained in the affidavit of KVS[5], that MCD’s conduct during the respite period involved “comprehensive issues with controlling behaviours towards the adult … and with care staff.”
[5]AnnexureVKS-1 of Affidavit of KVS
Unfortunately, for reasons which were not explained to this court, the Riverview Gardens Manager did not provide an affidavit and was not called to give evidence in these proceedings.
On 12 May 2009, after the period of respite care, Bluecare commenced providing MCD with in-home services to assist in the care of MHJ at home. A Blue Care progress note for 13 May 2009 indicates a request by BP for social work referral as she was “…concerned about safety of current arrangements.”[6] A progress note for 4 June 2009 states that Bluecare staff had to conduct the visit to MHJ on the porch as they were unable to wear shoes in the house and shoe covers were required to be ordered.[7] A progress note for 13 July 2009 states that MCD said to MHJ ‘“Come on hurry up your eating too slow” then picked up the spoon and started to feed Hazel forcefully. PC very upset at situation.’
[6]Affidavit of KVS filed 8 April 2011, page 8 of annexure VSK-1.
[7]Affidavit of KVS filed 8 April 2011, page 8 of annexure VSK-1.
Due to further deterioration in MHJ’s health, more comprehensive in-home services were provided by Blue Care from 2 July 2009.
An incident report for 9 December 2009 states ‘Care staff arrived .. to be cross examined by husband. When staff explained they had medications to give out he threatened “to get a blunt pole to make sure you come here first.” Client’s husband was verbally argumentative with care staff. He was so critical of other care staff that the support worker left the home in a highly stressed frame of mind. She found it difficult to complete the rest of her shift. She had to take time out before entering any other home.’
KH and BP’s evidence alleges significant physical and emotional abuse by MCD towards MHJ and all three adult children as they were growing up and towards their mother and themselves in recent years; controlling behaviours towards their mother and themselves; isolating behaviours towards their mother; harassment and intimidation of their mother in the presence of family members; harassment and intimidation towards themselves whilst at the family home, by telephone, at BP’s place of work and at KH’s place of work; and continuing domestic violence and ill-treatment of their mother in their father’s position as carer until 17 January 2011.
Helen and BP shared their concerns about MCD’s treatment of their mother with their brother MP who had not had a relationship with his parents since approximately 1982. MP states that this was the result of MCD’ treatment of his (MP’s) children. MCD suggested the estrangement was because MP suffered from schizophrenia and MP’s wife had not wanted to be part of the family.
There is no evidence that MP suffers or suffered from schizophrenia. Rather, MP states that at 16 years of age, as a result of the physical and emotional abuse inflicted upon him by MCD, he attempted suicide by shooting himself in the stomach. He has not resided at the family home since that time.
On 27 October 2010, MP disclosed to MHJ’s blue Care Coordinator “a long standing history of domestic violence against his mother and all other family members at varying times.” [8] As a result, an urgent referral was made by the coordinator to Blue Care Social Work and a family meeting between KVS and Catalina Nam from Bluecare; and MP, BP and KH was held on 17 November 2010.
[8]Paragraph 2 of page 1 of Blue Care Social Work Report of KVS dated 29 November 2010.
Subsequently, discussions were held between Blue Care staff and the Riverview Gardens respite staff which Bluecare documents indicate confirmed Blue Care’s concerns.
Blue Care then reviewed all client documentation, which included “several notations and incidents by personal care staff that appear to substantiate family claims.” The document review, however, revealed no indications or notifications of, care or suspected domestic violence issues prior to MP’s disclosures on 27 October 2010.
Skin tears and bruising observed on, and moody behaviour exhibited by, MHJ before 27 October 2010 (18/6/09, 16/7/09,28/7/09,19/9/09,13/11/09) were either assumed by Bluecare staff to be the result of MHJ’s medical conditions, or were attributed by MCD to MHJ’s mobility/transfer requirements.[9]
[9]Page 9 of Blue Care Social Work Report as annexed to affidavit of KVS filed 8 April 2011.
Also noted in BlueCare’s document review were MCD’s criticisms of staff,[10] his challenges to Care Plans; his refusals to allow staff access to those plans, and inclusions by MCD of written instructions to staff in the progress notes kept at the home. As a result of this behaviour, Bluecare removed the In-home chart and used an office based chart instead.[11]
[10]Page 8 of Social Work Report of Blue Care as annexed to affidavit of KVS filed 8 April 2011
[11]Affidavit of KVS filed 8 April 2011.
In November 2010, MP, BP and KH visited the family home to discuss further respite care for their mother. Also present, in addition to MCD and MHJ, were KH’s husband KJB and her daughter. During the visit, MCD was restrained by MP in the family home, as a result of which MCD sustained an injury to his hand.
BP’s affidavit states that a carer from Blue Care, ‘Elizabeth’, was in the premises during this incident. Unfortunately, again for reasons not explained to this court, she has not provided an affidavit or been called to give evidence in relation to what are considered relevant conversations in which MHJ is alleged to have participated.
In late November, a Blue Care Social Worker spoke to the Elder Abuse Task Force, sought an urgent hearing in QCAT, supported the adult childrens’ decision to have MHJ’s financial affairs administered by McCullough Robertson Law firm and supported a no contact order between MCD and MHJ at the request of MP, BP and KH[12].
[12]Pages 9 and 10 of Annexure VSK-1 of affidavit of KVS filed 8 April 2011.
Following their appointments as guardians and administrators by QCAT on 17 December, 2010, MP, BP and KH attended with police at the matrimonial home at Camira on 17 January 2011 and removed MHJ to reside at the Brookfield Village Nursing Home, where she continues to reside.
On 21 January 2011 MP and KH were called to the nursing home as a result of concerns about MCD’s behaviour towards staff when requesting to see MHJ. KH informed her father that access would be denied and that MHJ had indicated that she did not want to see him. On 25 January 2011, MCD again attended the nursing home. He spoke to DJ, Quality Improvement Manager who told MCD she would ring MP. MCD left and Ms Dawson requested that MP seek legal advice and obtain orders to restrict MCD’s access to MHJ.
Credibility
Each of MP, KH and BP gave clear, concise and consistent evidence in relation to their childhood experiences of violent and controlling behaviour by MCD towards them and their mother. KH and BP gave consistent evidence in relation to reports from their mother to them that MCD pushed and threatened her and was responsible for furniture breakages in the house. Those reports are consistent with Dr Chris Kan’s medical notes of an attendance upon MHJ and KH in July 2004, prior to MHJ’s diagnosis of a mild cognitive impairment, in which is stated about MCD as follows:- “has long been abusive, verbally and physically. Often “snaps”/ Abuses patient and had forced her against a wall and hit her with fist. Daughter says this is true and have been so all her life”.
Dr Kan is considered by the court to be a credible professional witness who was not successfully challenged in relation to his evidence and has no interest in the outcome of the proceedings.
KH’s husband KJB also impressed as a witness of credit who gave clear and consistent evidence that MHJ had told him on a number of occasions that MCD had physically, psychologically, emotionally and socially abused her over the marriage, which she described to him as “a living hell”. He was also not successfully challenged about his evidence that MCD had assaulted him on 3 occasions during his marriage to KH.
MCD’s sister HJD was not cross-examined in relation to her affidavit evidence that before MHJ became unwell, she and MHJ spoke every three months or so; and MHJ told her, quite often in tears, that MCD controlled everything she did, had punched her, would push her up against the wall and blamed her for things that went wrong. HJD’s concern for MHJ was so great as a result of these communications that she spoke to Helen about moving MHJ out of the family home for her own safety.
KH and BP’s evidence confirms that efforts were indeed made by KH and BP to have their mother leave their father; but MHJ told them that she was too scared about what MCD would do to them and their children if she moved in with them. Each of KH, BP and MP stated that any efforts by them to have MCD consider placing MHJ in a nursing home were dismissed by him out of hand with him saying it would happen “over his dead body.” The incident at the family home in November 2010 was the result of MP, KH and BP seeking that MCD place MHJ in respite care while he had a further procedure, rather than MCD’s plan that KH’s daughter stay at the family home overnight.
MHJ’s fear of MCD, according to KH and BP, also manifested itself whilst in the presence of MCD, by her withdrawal and lack of interaction with anyone present, including them, when otherwise she could be quite engaging.
This court accepts that it was a similar fear experienced by KH that resulted in KH’s letter to MP’s wife in 1985[13] which included the following:- “As for Dad, he may have been hard but he wasn’t any stricter than any other father in those years. Dad offered [MP] every opportunity in life. But [MP] chose to waste his time and fritter away his chances at success. …..[BP] and I consider we all had a good and full upbringing with parents who offered us every chance to succeed in life…..”
[13]Exhibit 2.
This court accepts KH’s evidence, that the letter was written at the direction of her father, who during the hearing in fact produced his own notated copy, which is the copy admitted into evidence.
This court also accepts that while KH, BP and MP did not remove their mother earlier; and indeed KH and BP went overseas for 8 weeks, despite their stated ongoing concerns about her, this court accepts that they had tried to arrange a separation between their parents when their mother was well; arranged for Bluecare to provide the in-home services commencing May 2009; mentioned their concerns to Bluecare at that time; and tried on many occasions to have their father admit their mother to a nursing home; but were unable to do so by reason of the controlling nature of their father and his maintenance of that control by saying that nobody could look after MHJ except him. This court accepts that all MP, BP and KH wanted for their mother was a safe and secure environment for her. It was only when authorities external to the family were able to exert some control that they able to secure their wish for their mother.
KH’s son KAJ also presented as a credible witness. He gave evidence that MHJ told him in 2004 (when he was taking MHJ to the doctor because MHJ allegedly refused to do so), similarly to the report to KC, that MCD had recently held her by the neck and pushed her against the white board in the kitchen whilst holding a clenched fist in front of her. In the same way that KH and BP stated that their mother feared what might happen if she went through with their suggestion that she come and live with them; MHJ pleaded with KAJ not to confront MCD about what she had told him because she was fearful that MCD would further punish her.
KH and BP also gave evidence of MCD controlling and isolating their mother by denying her use of the motor vehicle when she could drive; refusing to drive her to appointments and other activities when she could no longer drive and sitting beside her whenever and wherever KH and BP visited. The latter behaviour of MCD was also referred to in the evidence of Ms Endres who stated that MCD was always present when she visited; and the evidence of CT that when MCD attended work at Murrarie, MHJ frequently accompanied him.
KAJ’s evidence of MHJ’s descriptions in 2004 of MCD as a “horrible man” and a “bastard”, were also descriptions, according to MSR’ evidence, that MHJ used when describing MCD to her in early 2005, again before the diagnosis of her mild cognitive dysfunction. MSR’s evidence of that conversation also included MHJ’s request of MSR to promise that MHJ would not be buried either wearing her wedding rings or next to MCD. Both MSR and KAJ gave their evidence in a straightforward manner in which their credibility was not challenged.
KH and BP’s evidence of controlling behaviour is confirmed by KVS and DJ, both of whom were not challenged in relation to the independence and objectivity of their evidence concerning their observations of MCD’s behaviour.
Whilst DJ might be considered the driving force in these proceedings, given her instructions to MP on the 25 January 2011 (as a result of which these proceedings were instituted) and her interest in ensuring the protection of staff at the Brookfield Nursing Home, she impressed as a professional carer also very much concerned about MHJ’s safety and well-being. Her evidence was clear, concise, and consistent and her credibility could not be disputed.
Whilst KVS might be considered to be the driving force in the institution of proceedings in the QCAT, it certainly cannot be said that KVS has any interest in the outcome of these proceedings as she is not associated with the Brookfield Nursing Home and will not be affected by any order of this court or indeed of the QCAT.
KVS’s evidence is that even before MP’s disclosures on 27 October 2010, Blue Care workers had reported that they did not want to attend MCD’s premises because of his behaviour; and so Bluecare commenced monitoring the situation. This court accepts KVS’s evidence that because of Blue care’s concerns, it increased the number of in-house assistance hours for MHJ beyond those permitted for her care package. This court also accepts Ms Key’s evidence that despite staff concerns, Bluecare were of the view that a withdrawal of their services would leave MHJ without appropriate care.
KH and BP’s evidence of harassment and intimidation by MCD of MHJ in the form of verbal bullying and derogatory comments in the presence of family members, was confirmed by KH’s husband KAJ who also confirmed their evidence that MHJ was visibly upset by such behaviour such that her eyes would well up with tears or she would actually cry when MCD said she was “nuts” and “wouldn’t know what she was talking about” in the presence of family members.
KH and BP’s evidence of their observations of bruising to their mother’s arms is confirmed in the Blue Care Progress Notes[14].
[14]Exhibit VSK-1 of the Affidavit of KVS.
MCD presented to the court as all of his witnesses described him. His reports, however, of a close and loving family who had excellent relationships with each other conflicts with his evidence about MP’s estrangement from the family, and is totally at odds with the significant allegations made by each of his three children, KH’s husband, his two grand-children KAJ and MSR and the independent witnesses.
MCD’s assertion that each and every allegation against him, by whomsoever made, has been fabricated is simply not credible in light of the overwhelming and, in the case of KVS, KC and DJ, independent evidence about his general demeanour, treatment of MHJ and treatment of care staff.
His assertion that MHJ commenced displaying signs of mental health deficiencies in 2001 contradicts the medical evidence. His suggestion in his evidence that MHJ’s report to KC in 2004 was the result of her distress about her sister’s cancer diagnosis 3 months earlier was not put to any of the applicants or KC.
In responding to the issue of bruising to MHJ, MCD stated that he never used the hoist to lift MHJ; but under cross-examination he conceded that he had used the hoist on a limited number of occasions. He also denied dragging MHJ up by the arms to move her from the chair but there was no evidence as to how he could have lifted her without using either of those methods.
Despite documented evidence of numerous skin tears throughout the Bluecare progress notes, MCD maintains that MHJ “definitely didn’t have any skin tears.”
In relation to his visits to the nursing home in January 2011, he gives the impression that those interactions, particularly the second on 25 January, were very friendly, social and even convivial meetings in which he suggests that he even thanked DJ and acknowledged to her that she was only doing what she had been asked to do.
This is in total contrast to the evidence of DJ (whom the court is satisfied is a credible, independent and objective witness). DJ states that MCD spoke over her, raised his voice, intimidated her and acted very aggressively towards her. Indeed, as a result of what she described as a confrontation, she felt she had no choice but to request that MCD’s children commence these proceedings to prevent him from gaining entry to the nursing home altogether.
In relation to allegations of controlling behaviour, MCD denies the suggestion, stating that he was protective of MHJ. His statements under cross-examination, however, that it didn’t enter his head (while MHJ was in respite), to ask her what she wanted to do or whether she wanted to leave the room can be described as controlling behaviour. A lack of insight was then demonstrated when he said “Why would I have asked her what she wanted to do?” He then tried to explain this answer by saying that MHJ would have been able to say yes or no if she wanted to leave her room. The court accepts however, that he had told Bluecare staff that they shouldn’t talk to MHJ because she was not verbal.
His evidence was inconsistent in relation to his attitude towards the Bluecare staff. He first stated that he supervised them to make sure they followed the care plan. When asked under cross-examination what he meant by that, he altered his response to indicate he meant that he observed and helped them.
When cross-examined about the events at his home in November 2010, MCD said that he couldn’t recall whether he had asked MHJ if he had ever hit her or the children. He then changed his evidence to say that he did not say any of the things alleged, whether to MHJ or otherwise and denied that MHJ responded in any way and certainly not be stating that he had indeed hit her and the children.
In denying all allegations that he has behaved unacceptably to MHJ, including a denial that he has ever even raised his voice to his wife, he claimed that he has never ever seen his wife cry throughout the entirety of their marriage. Again, this is incredible given MP’s attempted suicide at a young age, MP’s estrangement from the family, the contents of the letter written by KH at MCD’s direction and MCD’s suggestion that MHJ was so traumatised by her sister’s cancer diagnosis that she misreported comments to KC in 2004; not to mention significant pain and mobility issues suffered by MHJ as a result of her health conditions.
MCD was adamant that his wife was not able to feed herself even when faced with photographs, the veracity of which he questioned, of MHJ holding a piece of bread and holding and chewing on a biscuit.
MCD’s evidence as to his intentions should he be granted contact with MHJ were contradictory. He stated on the one hand that he wouldn’t want to sit at the nursing home all day but then said that the ideal would be to actually live at the Brookfield Nursing home himself.
In relation to the evidence of MCD’s witnesses: whilst they all spoke glowingly of MCD as an upstanding honest person, devoted and considerate husband, carer and professional:
1. CT conceded that he had not been to the family home for years; and whilst his evidence was that he had never observed MCD to display controlling, intimidating or harassing behaviour, he said that, during a period of 6-8 years when MCD worked at CT’s Murrarie office, MHJ frequently accompanied him;
2. CP, under cross-examination, conceded that she never saw MHJ alone, only rarely observed MCD and MHJ together in the previous 12 months and had never observed them with any of the children;
3. EA stated that MCD was present whenever she visited MHJ;
4. JL a neighbour, referred to MCD’s “protectiveness” towards MHJ without going into further detail;
5. EK said much the same thing, without further detail; and
6. TB and TT spoke in identical terms about mutual love and attention between MCD and MHJ without saying how often they visited or what exactly they observed.
Those of the above deponents who gave evidence, were credible witnesses. Their evidence is limited, however, due to their relationship to MCD and this court’s assessment of MCD as a professional person whose demeanour is very controlled and who presents himself to people he seeks to impress, whose respect he needs and who do not question his authority, as an upstanding family man and community member. This court accepts that this impression is quite different to that which he presents to people over whom he wishes to exert authority and control and whose opinions and views of him he disregards as irrelevant. Wherever his evidence contradicts that of the applicants or witnesses of the applicants, I accept their evidence over that of MCD.
Findings
Despite a large part of the evidence comprising hearsay evidence (as a result of MHJ’s incapacity to give evidence herself), this court is able to accept such evidence, pursuant to s 84 of the DFVPA, although it does so in this case with a requisite deal of caution. The hearsay evidence, however, is sourced from numerous persons of varying backgrounds with varying interests or (in the case of KC, and KVS) no interest in the outcome at all. In other instances, the hearsay evidence is confirmed by independent and/or documentary evidence.
This court accepts that the cumulative effect of the hearsay evidence is so overwhelming as to enable this court to place reliance upon it in making its findings, which are as follows:-
1.That MCD assaulted MHJ and damaged property in the family home in the years prior to 2006, as reported by MHJ to BP, KH, KC, KAJ and KJB.
2.That MCD assaulted KJB, including at the family home in November 2010, by throwing punches at KJB, which resulted in MCD receiving an injury to his hand when KJB’s watch connected with MCD’s hand as KJB defended himself by putting his hands up in front of him.
3.That MCD has harassed and intimidated MHJ by calling her names, belittling her in front of others and ridiculing her by reference to her cognitive impairment, such that she has withdrawn from him and cried.
4.That MCD has harassed and intimidated MHJ by exerting such control over, and surveillance of, MHJ by denying her access to the car when she could drive; refusing to take her to appointments when she could not drive; isolating her from friends and family and other activities which would enable her to socialise, not speaking to her for days at a time; and leaving her lying in bed unchanged, unfed, not medicated, unbathed and not toileted until the carers arrived.
5.That MCD has harassed and intimidated BP, KH and MP; by calling all of them mad liars in November 2010; refusing to provide them with information about their mother; only allowing BP and KH access to the family home via the back door; and refusing to consider their views in relation to the needs of their mother, despite independent information confirming their concerns (all of resulted in them being unable to do anything to rescue their mother from a situation they considered unsafe, until Bluecare intervened);
6.That MCD has harassed and intimidated BP and KH by sending them numerous facsimiles, despite requests to him that he not do so, such that KH had to change her fax number. MCD has attended at BP’s work and caused her such difficulty that she was forced to leave work. MCD also telephoned KH at her workplace on a continuing basis despite requests that he not do so.
Case Law – Harassment and Intimidation
In BBB v RAB (2006) QDC 80 His Honour Judge McGill, in referring to intimidatory behaviour stated that it “refers to a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour”.
In relation to harassment, he said that it “involves a repeated or persistent form of conduct which is annoying or distressing, rather than something that would incite fear”.
In Rogers v Rogers (Appeal NO. 9 of 1995, unreported) His Honour Forde DCJ relied on dictionary definitions of harassment. The Macquarie Concise Dictionary defines harass as “to trouble by repeated attacks, incursions, to disturb persistently; torment as with troubles. The Australian Oxford Dictionary defines harass as; to vex by repeated attacks, trouble, worry.” Dictionary definitions of intimidate include “to make timid or inspire with fear; overawe; to force into or deter from some action by inducing fear; to overawe with fear especially in order to influence conduct.”
This court is satisfied that not only has MCD committed acts of wilful injury to MHJ and damage to her property prior to 2006, he has harassed and intimidated MHJ, MP, KH, and BP.
The court must, however, also be satisfied that MCD is likely to commit an act of domestic violence again.
Case Law – Likely to occur again
In MAN v MAM (2003) QDC 398 His Honour McGill DCJ said in relation to “likely to occur again” in the context of the DFVPA it does not mean more probably than not, but it must at least “involve a real, not remote likelihood, something more probably than a mere chance or risk. The magistrate has also expressed himself in terms of the possibility of the recurrence of the particular domestic violence which had occurred in the past; in my opinion the statute is not so limited, and what has to be established is that the respondent spouse is likely to commit an act, that is any act, of domestic violence in the future. The magistrate ought to have been considering whether the evidence indicated that there was some real, significant likelihood that the respondent would commit an act of domestic violence in the future.
In Birnie v Booth Appeal No.1 of 1994, McMurdo DCJ, as she then was, stated that “the fact that the appellant said that he had no such intention to commit domestic violence again does not mean that in an emotionally charged situation he would not react in that way. Whether or not an act can be said to constitute domestic violence must depend on all the surrounding circumstances. The whole exercise under this legislation is not to mete out punishment for behaviour but to prevent breaches of the peace in future.”
The court accepts that wilful injury to MHJ and damage to her property are not likely to occur again given MHJ’ residence at the nursing home. Whilst it also accepts DJ’s evidence that so long as there is an order from QCAT by which the guardians can restrict MCD’s contact, the nursing home would comply with that order; it is possible for people to come and go from the nursing home undetected, and nursing staff are not with MHJ or any resident all the time, attending to them only as their care needs require. Staff members are also not trained in managing controlling and intimidating behaviour such as that displayed by MCD towards DJ on 25 January 2011.
Importantly, MCD will also never accept that he has behaved other than as an upstanding, honourable, loving, considerate, caring husband and father. This court considers that he truly believes that he has never done a single thing wrong or behaved in any way at all towards his wife and children that could be criticised.
MCD has in fact displayed an astonishing lack of insight into his own behaviour and the effect it has had on those closest to him. He has no capacity to accept any opinion different to his own. He cannot tolerate anyone exercising any kind of control over him. When he is not controlling a situation, he behaves in an aggressive and intimidating manner.
This court is of the view that restrictions need to be placed on MCD’s access to the Brookfield Nursing Home and his contact with his wife and children in order to protect them from his harassment and intimidation. Otherwise, as evidenced by his behaviour in the findings of this court and his attitude to the QCAT and these proceedings, he is likely to commit an act of domestic violence again. It is satisfied that, given the previous wilful injury by MCD to KJB and the court’s assessment that MCD is likely to commit an act of domestic violence, wilful injury or otherwise, to KJB, he also needs to be protected.
The court therefore makes the following orders in favour of MHJ (as the aggrieved) and BP, KH, KJB and MP;-
1. The Respondent must be of good behaviour towards the aggrieved and must not commit domestic violence.
2. The Respondent must be of good behaviour towards any named person in this order and not commit an act of associated domestic violence against the named person.
3. The Respondent is not to enter or remain in any place where MHJ is living; except as agreed in writing between the applicants MP, BP and KH (or any other person or organisation appointed to act as MHJ’s guardian from time to time) and the respondent.
4. The Respondent is not to come within 200 metres of any place where MHJ is living; except as agreed in writing between the applicants MP, BP and KH (or any other person or organisation appointed to act as MHJ’s guardian from time to time) and the respondent.
5. The Respondent is not to approach or remain in any place where the Respondent’s relatives or associates listed in the order are living, staying or working including:
(a) BP (DOB [dob] – [address]; and
(b) KH (DOB [dob] – [address];
except for the purposes of attending court or tribunal proceedings, mediation or QCAT conferencing or as agreed in writing between the applicants and the respondent.
6. The Respondent is not to contact, try to contact or ask someone else to contact MHJ, directly or indirectly except as agreed in writing between the applicants MP, BP and KH (or any other person or organisation appointed to act as MHJ’s guardian from time to time) and the respondent.
7. The Respondent is not to contact, try to contact or ask someone else to contact relatives or associates listed in the order directly or indirectly except in writing or through a solicitor.
Contrary to the submission on behalf of the applicants that any contact between MCD and MHJ be as ordered by QCAT, QCAT has no such power. The Guardianship and Administration Act 2000: provides QCAT with powers to appoint guardians and administrators[15] to manage the personal financial affairs of adults with impaired capacity; confers jurisdiction on QCAT for particular purposes; continues the Office of the Adult Guardian and creates an office of the Public Advocate.
[15] s 12 of Guardianship and Administration Act 2000.
QCAT may review its appointment of the applicants as MHJ’s guardians[16] on its own initiative or upon application by MCD if he considers that, upon review, the tribunal will make an order removing the applicants as appointees because they are no longer competent or another person is more appropriate for the appointment.[17] Otherwise, the tribunal may either continue its order making the appointment or change its order making the appointment, by changing the terms of the appointment, removing an appointee or making a new appointment.[18]
[16] s 29 of the Guardianship and Administration Act 2000.
[17] s 31(4) of the Guardianship and Administration Act 2000.
[18] s 31(3) of the Guardianship and Administration Act 2000.
As such it will be the applicants or any substitute appointees as guardians who will determine the level of contact between MCD and MHJ. Whether or not there are current resources in QCAT to mediate that issue is not known to this court.
Whilst s 174 of the Guardianship and Administration Act 2000 provides that one of the functions of the Adult Guardian, (who may be appointed for any adult with impaired capacity), is to mediate and conciliate between various parties to disputes, it is not known if the Office of the Adult Guardian, even if appointed as guardian for MHJ, has resources to mediate such issues.
In light of this court’s discussion about what constitutes domestic violence and as a consequence of the orders above; and the continuation of proceedings before QCAT, it is not necessary for me to make findings in relation to a large number of “care” issues raised in the evidence.
0
0
1