N v P

[2009] QDC 69

DISTRICT COURT OF QUEENSLAND

CITATION:

N v P [2009] QDC 69

PARTIES:

N
(appellant)
v

P
(respondent)

FILE NO/S:

306 of 2008

DIVISION:

Appellate jurisdiction of the District Court

PROCEEDING:

Appeal from Magistrates Court

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

27 March 2009

DELIVERED AT:

Southport

HEARING DATE:

29 January 2009

JUDGE:

Kingham DCJ

ORDER:

1.   Appeal allowed.

2.   Protection Order revoked effective 27 March 2009

CATCHWORDS:

APPEAL – DOMESTIC VIOLENCE ORDER – Where not likely to commit further acts of domestic violence - Where Domestic Violence Order revoked

Domestic and Family Violence Protection Act 1989 (Qld), ss 9, 11, 13, 14, 15, 20, 63, 65, 66, 81A

CJD v VAJ (1998) CLR 172

COUNSEL:

Mr N appeared for himself

No appearance by or on behalf of the respondent

1. Mr N and Ms P were in a “on again/off again” relationship which broke down in March 2005.  Conflict between them about their degree of contact after separation ultimately led to a number of proceedings in the Magistrates Court.  A Temporary Protection Order (on 18 October 2007) and a Protection Order (on 8 February 2008) were made under the Domestic Violence and Family Violence Protection Act 1989.[1]  Ms P was the aggrieved person and her two daughters were named parties to the order.

   [1]Domestic Violence and Family Violence Protection Act 1989 (Qld).

1. The Protection Order restrains Mr N from direct contact with them and, amongst other things, prohibits him from going within 100 metres of their residences and the Keebra Park High School which Ms P’s daughter J, then attended.  Shortly afterwards, Mr N applied to revoke or vary the protection order.  Ultimately that was struck out as an abuse of process (on 9 May 2008).    Mr N appealed that decision but it became evident that he wished to appeal the decision to make the Protection Order.  Orders were made in this court that his appeal was taken to be one against both the decision which imposed the protection order as well as the decision to strike out his application to revoke it.  Mr N seeks an order the Protection Order be set aside.  The respondent was duly served and did not appear.

1. It seems earlier orders cured any formal defect in the procedure Mr N adopted to bring this appeal.  To the extent that it may be necessary to do so, I order the time to lodge the appeal is extended to 3 June 2008.

1. Broadly speaking there are two matters which arise from this application:

1.          Mr N’s complaints about prior proceedings in the Magistrates Court; and

2.          Whether a protection order should be made in the circumstances?

Mr N’s complaints about proceedings in the Magistrates Court

1. In March of 2005, the relationship between the parties broke down.  Sometime later, a police officer applied for a protection order.[2]  It was dismissed by the learned magistrate, upon his assessment that much of the evidence led in support of the application was grossly exaggerated.  There is a marked similarity between the allegations then relied upon and those circumstances set out in the application made by Ms P on 17 October 2007, which resulted in the order now appealed. Those allegations include that Mr N attempted to strangle Ms P and threatened violence or intimidated her on other occasions. 

   [2]Domestic Violence and Family Violence Protection Act 1989 (Qld), s 14.

1. Mr N has a strong sense of grievance grounded in two factors.  Firstly, the same serious allegations of the use of or threats to use violence were made in two applications.  He successfully contested them on the first application but was then met with a second application which repeated them.  Mr N was extremely concerned about the impact the allegations would have or had already had on his reputation.  I will return to that matter.

1. Secondly, Mr N considers he was denied natural justice by the two learned acting magistrates who dealt with the application for a protection order and his subsequent application to revoke it.

1. Mr N’s sense of grievance has been compounded by his perception that he did not get a fair opportunity on either occasion to put his case.  When the application for a protection order was heard, perhaps because of his misunderstanding of the process, he did not have his witnesses available.  He did not seek an adjournment. In the absence of the attesting witnesses, the learned magistrate declined to place anything more than limited weight on the large volume of testimonials and other material Mr N tendered as to his character.  Mr N argued this evidence of his good character would have assisted the magistrate to decide that he was not capable of doing what was alleged against him.

1. He also complained that Ms P’s daughter, J, was under-18 and should not have testified.  A child must not be called to give evidence without an order of the court.[3] In his reasons, his honour noted that it had not been raised by the parties and he did not turn his mind to it until he prepared his decision.  Had it been raised earlier, he said, he would have made the order, as Miss J was then 17 years old and willing to testify.  Nothing turns on that.  The provision is clearly for the benefit of the child.  It is not designed to prevent those children willing to give evidence from so doing.  The learned acting magistrate’s failure to make the order prior to Miss J giving evidence did not mean Mr N was denied procedural fairness.

   [3]Domestic Violence and Family Violence Protection Act 1989 (Qld), s 81A(2).

1. As for his attempt to revoke the protection order, Mr N evidently believed this was the correct process for re-visiting the order.  The application was made promptly, after only two weeks, when circumstances had not changed from the hearing.  The learned acting magistrate who heard the application formed the view it was, in fact, an appeal against the decision to make the protection order.  As such, he did not have jurisdiction to deal it.  The material filed with Mr N’s application demonstrates a sound basis for that decision.  Mr N’s complaint seems to be not so much about the decision itself, rather the circumstances in which it was made, particularly given the time then involved in filing and serving his appeal.  Particularly, he was affronted that his application was dismissed, without more than what was, in his view, a cursory hearing.

1. Appeals under the Act are as of right[4] and are by way of re-hearing on the record.[5] Because of the nature of the appeal it is not necessary for Mr N to establish either an error of law or a denial of natural justice in the court below.  Therefore, to the extent that his appeal raises issues about the conduct of the proceedings before either Magistrate, this court need not arrive at any conclusions.

   [4] Ibid, s 63.

   [5] Ibid, s 65.

Should Mr N be subject to a Protection Order in the terms ordered or otherwise?

1. The court can make a Domestic Violence Order to protect an aggrieved person[6] as well as a relative named in the application.[7] In this case the aggrieved is Ms P and the named persons are her two daughters. 

   [6] Ibid, s 13.

   [7] Ibid, s 15.

1. The court may make a Domestic Violence Order if, relevantly to this case:-

(a)        a person has committed an act of domestic violence;

(b)        against another person with whom they were in a domestic relationship; and

(c)        the person is likely to commit an act of domestic violence again.[8]

[8]Domestic Violence and Family Violence Protection Act 1989 (Qld), s 20.

1. Mr N accepts he was in a domestic relationship with Ms P.  He disputes he committed an act of domestic violence or that he is likely to commit another such act.  

1. Domestic violence is defined in s.11 of the Act.

(1)Domestic violence is 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;

Example of paragraph (b)—

wilfully injuring a defacto’s pet

(c)         intimidation or harassment of the other person;

Examples of paragraph (c)—

1 following an estranged spouse when the spouse is out in public, either by car or on foot

2 positioning oneself outside a relative’s residence or place of work

3 repeatedly telephoning an ex-boyfriend at home or   work without consent (whether during the day or night)

4 regularly threatening an aged parent with the    withdrawal of informal care if the parent does not sign over the parent’s fortnightly pension cheque

(d)         indecent behaviour to the other person without consent;

(e)         a threat to commit an act mentioned in paragraphs (a) to

(d).

(2) The person committing the domestic violence need not personally
 commit the act or threaten to commit it.”

Allegations of violence and threats of violence

1. In her application, Ms P checked a box which indicated her application was made on the basis Mr N had intimidated or harassed her.  Regrettably, the specific details included in her application included a virtual recounting of the more serious allegations of violence and threats already rejected in January 2006.

1. It is hardly surprising, then, that Mr N was confused about the basis of the application and prepared to meet a case based on those allegations.  At the hearing, the application proceeded on less specific allegations of harassment.  Ms P gave no evidence about the allegations of violence and clearly expressed her concern about harassment.

1. Mr N’s sense of frustration about the serious allegations of violence and threats is unlikely to be assuaged by the decision on this appeal.  It seems to me that Mr N seeks vindication from this court about those allegations.  As they were not maintained by Ms P, this court is not in a position to satisfy that expectation. 

1. Some allegations of intimidating or threatening behaviour were maintained at the hearing, but not by Ms P.  Perhaps both of Ms P’s daughters thought the allegations of violence or threatened violence remained part of her case.  Ms P herself gave no evidence to that effect.  Her daughter J said that she did once see bruises on her mother’s neck and repeated what her mother had told her about the incident.  Her daughter V said that Mr N had threatened to kill them two years earlier and, on one occasion, said something such as “Can you run faster than a bullet?”

1. There was also V’s allegation that she was intimidated by Mr N showing her his gun two years earlier.  Mr N told her that he needed it for his work.  She said it was unexpected and it frightened her.  Mr N gave evidence that he showed it to V because she was then training to be a security officer. 

1. Given the age of those allegations, and the stance taken by Ms P, the learned acting magistrate quite properly placed little weight on them. If there can be said to be any ambiguity in the learned acting magistrate’s decision, which does not appear to be the case, these reasons should put beyond doubt that a protection order was not granted on the basis of allegations that Mr N attempted to strangle Ms P or was otherwise violent or threatened violence towards her.  It is very clear that his honour acted on the more recent allegations of harassment of Ms P™ and her daughters constituted by unwanted telephone and other contact.

Harassment

1. There is no definition of harassment in the Act. The examples of intimidation or harassment given in s. 11(1)(c) include repeatedly telephoning a person at home or work without consent.

1. The Macquarie Dictionary (Federation Edition, 2001) defines “harass” as follows:

“2.To disturb persistently; torment, as with troubles, cares, etcetera.”

1. Mr N conceded many of the allegations of contact made by Ms P and her daughters.  He argued it was well motivated and was not unwanted.  Given Mr N’s concessions and the evidence given by Ms P and her daughters, there was sufficient basis for the learned acting magistrate to be satisfied, on the balance of probabilities,[9] that there were acts of domestic violence constituted by harassment.

   [9]Domestic Violence and Family Violence Protection Act 1989 (Qld), s 9.

1. Firstly there was Ms P’s evidence of frequent uninvited telephone calls.  Mr N denied they were unwanted and elicited from Ms P the concession that she did give him her new mobile phone number when it was changed some time after they separated.  Ambivalence about severing all contact is not the same thing as consent to frequent contact, particularly given there was still some need for contact due to ongoing enmeshment of their lives through a corporate entity.

1. When this appeal came on for hearing, Mr N tendered his telephone records.  They establish that he initiated frequent telephone contact with Ms P long after the relationship had broken down.  Whilst the telephone records do not appear to be complete, they show that between November 2006 and October 2007 there were some 45 calls.  In some months there were perhaps a dozen calls.  Some were of a significant duration.  Their frequency and, for some of them, their duration, is suggestive of harassment.

1. Mr N’s protestations that Ms P wanted to maintain contact with him is inconsistent with her evidence and that of her daughters.  It is also inconsistent with Mr N having to seek Ms P out on occasions, as he admitted. 

1. He waited for Ms P outside J’s school on a number of occasions, he said, because that was the only way he was able to make contact with her sometimes.  That would be unnecessary if she was open to ready contact with him.  The same may be said of his visit to V’s home to enquire after her mother’s welfare.  His need to visit both places indicates Ms P did not welcome contact with him.

1. This perception is reinforced by the strength of V’s response both when Mr N came to her home and, later, when he had visited Ms P.  Ms P said that visit was not welcome and V rang Mr N and accused him of stalking.

1. Mr N was most insistent that he was motivated by his care for and concern about Ms P’s well being. Mr N is convinced she suffers from some type of psychological condition which he describes as “bi-polar”.  He also alleges her daughter V is depressed and suicidal.

1. Courts should exercise extreme caution when lay persons purport to diagnose psychiatric or psychological conditions.  There is no material before this court to indicate Ms P suffers from any condition which might affect her perception of her relations with Mr N.  Nor is their anything to suggest Mr N’s assessment of V’s mental health has any substance.  The court has no power, either, to order Ms P’s examination, as Mr N requested of the court below. 

1. Ms P’s perception of what was happening between them was supported by the evidence given by her two daughters.  Further, it is a reasonable response to frequent contact if it is unwanted.  The impact of Mr N’s ongoing attention to their mother is also attested to by both daughters.  J accepted she had not been personally intimidated by Mr N’s presence at her school.  However, she was disturbed by it and concerned that he continued to seek out her mother at her school and at their home.  Eventually, so as to avoid the situation, she moved away from her mother and lived with her father.  The strength of Ms P’s other daughter’s response when Mr N visited her is a stark indication of how his contact was received by her.

1. It is not surprising that the same incidents are viewed differently by the various participants in them.  What Ms P said she experienced was repeated and unwanted contact over which she had little control until a temporary protection order was taken out against Mr N.  What he perceived he was doing was looking out for Ms P.  Mr N is understandably proud of his long history of involvement in organisations dedicated to the protection of others.  He takes his obligation as a former member of the SAS extreme seriously.  He established the White Knights, an association aimed at assisting victims of crime.  He is also involved in other organisations dedicated to helping those who are victims, amongst other things, of sexual or domestic violence.  His outrage at being accused of being a perpetrator of actual or threatened violence was palpable and I am left in no doubt that it was genuine.

1. Be that as it may, it remains that the learned acting magistrate made his order on the basis of behaviour which Mr N largely accepted.  The evidence given by others provided a firm foundation for his conclusion Ms P and her daughters were harassed by unwanted contact. 

Is Mr N likely to commit a further act of domestic violence?

1. There is a further question to be considered.  That is, whether Mr N is likely to commit an act of domestic violence again.  As this is a re-hearing, the court can reach its own conclusions and consider new circumstances.  A re-hearing is a new determination of the rights and liabilities of the parties rather than the correction of errors in the determination of the court below.[10] 

   [10]CJD v VAJ (1998) CLR 172 at 201-202.

1. It is now more than one year since the protection order was made.  Preceding that, there was Mr N’s four months of compliance with the temporary protection order.  At first instance, Mr N said he knew his relationship with Ms P was over, he had entered another relationship, he had no desire to and no intention of contacting Ms P again and, therefore, an order was not required.  It was open to his honour to have reached the view that the temporary order had brought to a halt behaviour that was unlikely to be repeated

1. His behaviour since February 2008 has, apparently, been consistent with his insistence, at first instance, that he did not want further contact.  Whilst Ms P did not appear on the appeal, she was made aware of it.  Her decision not to be heard on the appeal can be taken as an indication the behaviour she complained of has not continued.  Further, Mr N is no longer aware of her whereabouts.  Taking those matters into account, I am not satisfied Mr N is likely to commit a further act of domestic violence. 

1. On appeal, the court may discharge or vary an order or make such order or decision as it considers should have been made.  Any such orders take effect on the day they are made.[11] I revoke the protection order made on 8 February 2008 effective from today, 27 March 2009.

   [11]Domestic Violence and Family Violence Protection Act 1989 (Qld), s 66.