Northeast v Reimers - [2011] WADC 149

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

LOCATION: PERTH

CITATION: NORTHEAST -v- REIMERS [2011] WADC 149

CORAM: EATON DCJ

HEARD: 13 SEPTEMBER 2011

DELIVERED : 21 SEPTEMBER 2011

FILE NO/S: APP 51 of 2011

BETWEEN: DANIEL JOHN NORTHEAST
Appellant
AND
KRISTINA REIMERS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE SMITH
Citation  :DECISION OF 30 JUNE 2011
File No  :MCP 396 of 2011

Catchwords:

Appeal - Violence Restraining Order - Inferences as to future conduct

Legislation:

Magistrates Court (Civil Proceedings) Act 2004
Restraining Orders Act 1997

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr H Sklarz
Respondent: Mr P N Bevilacqua

Solicitors:

Appellant: Henry Sklarz
Respondent: Kim Wilson & Co

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

Warren v Coombes (1979) 142 CLR 531

EATON DCJ: The matter for judgment is an appeal against the making of a violence restraining order in the Magistrates Court at Perth on 30 June 2011. The order was made for the benefit of the respondent to this appeal, Kristina Reimers. It imposed restraints on the lawful activities and behaviour of the appellant before me, Daniel John Northeast. The order was made for a term of 2 years restraining the appellant from, inter alia, communicating or attempting to communicate by whatever means with the respondent.
The respondent made ex parte application to the Magistrates Court on 18 February 2011. An interim violence restraining order was made on that day. It was served on the appellant on 19 February 2011. He filed an objection to it on 8 March 2011. The matter was listed for hearing in that court on 29 April 2011. On that day the parties appeared, unrepresented, before a magistrate. The hearing was adjourned, part heard, to 16 June 2011 and continued on that day. At the conclusion of the evidence and submissions the magistrate reserved his decision to 30 June 2011. The parties were again unrepresented.
An appeal from an order made in the Magistrates Court or a judgment of that court lies to this court. It must be commenced within 21 days of the order or judgment appealed against. The appellant filed his appeal notice within that time.
By s 40 of the Magistrates Court (Civil Proceedings) Act 2004 this court must decide the appeal on the material and evidence that was before the Magistrates Court. For the purpose of the appeal both parties were legally represented. At the hearing of the appeal I had the benefit of written submissions filed in advance of the hearing and oral submissions on the day. Neither party sought leave to adduce further evidence.
Section 11A of the Restraining Orders Act 1997 provides that a court may make a violence restraining order if it is satisfied that:
(a)the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely to commit such an act against that person; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, reasonably feels that the respondent will commit an act of abuse against the person seeking to be protected,
and that making a violence restraining order is appropriate in the circumstances.
The Act defines the phrase 'act of abuse' as meaning 'an act of family and domestic violence or an act of personal violence'. Section 6 defines the phrase 'act of family and domestic violence' to mean 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 a 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)pursuing the person or a third person, or 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 pars (a) to (c) against the person.
The parties are each 27 years old. It is common ground that they were in a domestic relationship which came to an end in June or July of 2010. Prior to that, they lived together in a rental house in Dalkeith. The relationship had lasted for about 5 1/2 years. Following the breakdown of it they continued to live separately in the Dalkeith rental house until the respondent moved out in September of that year. She found alternative accommodation at a house in Cottesloe.
She was, by occupation at that time, a teacher in the German language and a personal trainer, teaching at a community centre in Tyrell Street, Nedlands and conducting fitness classes at College Park in Claremont.
Having heard the evidence and oral submissions the magistrate reserved judgment, handing down his decision with oral reasons on 30 June 2011. In doing so he observed that the respondent did not contend that the appellant had been physically violent to her or that he had threatened to be. He observed that her complaint was to the effect that his behaviour towards her had been intimidating, offensive or emotionally abusive.
The magistrate noted that in such matters the burden of proof rests upon the applicant to prove his or her case on the balance of probabilities. He said:
Before granting a violence restraining order, as I have already mentioned today, I would have to be satisfied not only that those acts took place; in other words, that she has proved acts or an act of abuse on the balance of probabilities on the part of the respondent, but I would also have to be satisfied that he is likely again in the future to commit a further act or acts of abuse because as I said, a restraining order is not to punish someone for something that has happened; it's to prevent something from happening in the future and it can only be granted if I find that further acts of abuse in the future are likely. I would also have to be satisfied on the balance of probability one further thing under the Act, and that is that the making of a violence restraining order is appropriate.
Having summarised the evidence before him the magistrate concluded that the respondent was a 'compelling and a believable' witness. He accepted her evidence to the effect that she had made it clear to the appellant that their relationship was over. He rejected the proposition that she had, by her words or conduct, done anything to lead the appellant to believe that the relationship was other than irretrievably broken down.
As to the events occurring prior to the granting of the interim order on 18 February 2011 the learned magistrate generally accepted the respondent's account of what had happened. To the extent that her account was denied by the appellant he concluded that the appellant was not being truthful. In accepting the respondent's evidence he said:
That means that she has satisfied me and proved on the balance of probabilities that over a period of five months or so she was stalked by the respondent in the ways that she said she was.
The magistrate observed that the appellant had complied with the terms of the interim order. The appellant's evidence was to the effect that he was, at the time of giving evidence, accepting of the proposition that the relationship with the respondent was well and truly over and that he had, in the light of that acceptance, no intention of contacting her in the future. The magistrate gave three reasons for not accepting the appellant's evidence in that regard. Firstly, he made reference to an email sent by the respondent to the appellant on 4 January 2011 as follows:
Hi Daniel,
please stop wasting your time with letters and msgs like this. Obviously I have moved on and so should you. I don't know what u expect from an email like that … Our time is over and i'm very happy in my new relationship.
I know that we had a special relationship at the time but I just don't love anymore, I don't miss anything! Yes you are a good caring guy and I hope you find someone you can make happy. Please leave me alone and let me live my life!
All the best for the future.
Kristina
That email was, patently, a declaration by the respondent of her future intent. The magistrate found that the appellant continued to contact the respondent despite receipt of that email.
There was a particular event which occurred on 14 February 2011. That was St Valentine's Day. The appellant sent flowers with a card or letter to the respondent's home at Cottesloe. On that day she had a German lesson at Tyrell Street, Nedlands. The appellant arrived and was waiting outside with flowers. There was something of a confrontation as the respondent attempted to get into her car and leave. She drove to her then boyfriend's home in Melville. The appellant followed. Rather than go to her boyfriend's house, thereby disclosing his whereabouts, she drove to a nearby shopping centre and phoned him. He went to the shopping centre where he spoke to the respondent and saw the appellant. That evidence was accepted by the magistrate.
Late that evening the respondent sent a text message to the boyfriend, Blair Patrick Gavin, as follows:
I don't know who you think you are. If you have a problem with something fine. If you talke it to the police il dispute it because ive done nothing wrong. If i what to give flowers to the girl i was with for 5 and half yrs on the first valentines day since we broke up. This is my right. You have no right to threaten me. None.
The evidence of the respondent, accepted by the magistrate, was that in the period prior to the application for and granting of the interim violence restraining order the conduct of the appellant had been 'getting more intense and more frequent'. I conclude that the magistrate's finding that the appellant continued to contact the respondent after the email of 4 January 2011 was correct.
Secondly, the magistrate noted that, in the course of the hearing, the appellant had declined to provide a written undertaking or a written promise to the respondent to the effect that he would not contact her in any way thereafter. Had there been such an undertaking or promise in writing the respondent's application would have, it seems, been dismissed and the matter brought to an end. It is clear that the respondent declined to provide such an undertaking or promise in writing on several occasions.
At the beginning of his evidence‑in‑chief the appellant sought to explain his behaviour in the period between the breakdown of the relationship and the application for the violence restraining order in terms of taking time to grieve. The sending of flowers on St Valentine's Day was, he said, an opportunity to show the respondent that he still cared for her. He concluded, in a lengthy passage of evidence:
I said it's definitely over. I said what has happened in the last few days, its over. That's why many of messages were saying, look, don't go to get the restraining orders, specifically because it's over, its not worth it because then we have to go through what we're going through today, and I even saying them that, look, a long time's going to pass and then we have to come back and dredge it all up again, and I'm actually doing quite well and its - I wish we didn't have to be here.
There was then the following exchange between the magistrate and the appellant:
M:Mr Northeast, you didn't have to dredge it all up again. All you had to do was sign a written promise to stay away from her and this court case would not have taken place? --- I know, but ---
M:We are here, hearing this evidence because you wanted us to? --- I know.
M:I tried to talk you out of it without success? --- Yep.
M:On more than one occasion? --- Yes.
M:You're the one that insisted that this go ahead ---? ---- Correct.
M:--- and that we go through all of this? --- Yep, okay, that's fair enough. That's a comment, yep.
In the foregoing passage the magistrate put to the appellant that he had, on more than one occasion, attempted to persuade the appellant to bring the matter to an end by signing an undertaking or promise in writing. He squarely put it to the appellant that the only reason why the hearing was proceeding was because of the appellant's refusal to do so.
The learned magistrate concluded as follows:
One could look at his, what I would consider, unreasonable decision not to make that written promise as being indicative of the fact that he does intend to contact her again in the future.
The appellant was a person opposing to the making of a violence restraining order on the basis that there was no need for such an order he having no intention of having any further contact with the respondent. In my view, for the appellant to refuse or decline to provide such an undertaking or promise in circumstances where he professed then no present intention of contacting the respondent in any way in the future, is neither surprising and nor unreasonable. It is one thing to reject the appellant's assertions at the time that he had then no intention of contacting the respondent in the future. It is quite another to conclude, by reason of his refusal or denial alone, that he, in fact, then did have such an intention.
Thirdly, the magistrate relied upon a statement in an email of 7 June 2011 sent by the appellant, not to the respondent, but to a mutual friend resident in Germany, one Julia Krause. The email was predominantly a plea by the appellant to Julia Krause for understanding and continued dialogue. It began with the following:
Julia im not a stalker it me. im not going to let kristina get rid of me. she can lie and lie but the truth will kill it.
Later in that lengthy and anguished email the appellant said 'Kristina has a new life and she needs to accept it's are over'.
The magistrate referred to the words first quoted as being 'perfectly clear'. He did not accept the appellant's explanation as to the meaning of those words. Nor did he accept the appellant's evidence to the effect that he had no intention of having any contact with the respondent in the future and that he was 'ready to move on'. The magistrate concluded that the appellant was 'still obsessive' about the respondent. He concluded that without the imposition of a violence restraining order the appellant was likely again in the future to continue to try and contact the respondent. He was persuaded that it was, in all the circumstances, appropriate to grant such an order.
The appellant's challenge to the making of the order is to the magistrate's finding that he was likely to commit a further act of abuse against the respondent unless restrained by a violence restraining order. The appellant challenged each of the three factors relied upon by the magistrate. Counsel for the appellant submitted that there had been no contact between the parties from 18 February 2011 to the present. No issue, he said, was taken with the magistrate's finding that there had been abuse, albeit minimal, prior to that day. The principle issue was that of the likelihood of further abusive conduct. Counsel referred me to par 3 of the appellant's written submissions which challenged each of the three bases of the magistrate's conclusion that the appellant was likely to commit an act of abuse notwithstanding his protestations to the contrary.
By reason of s 11A(a) of the Restraining Orders Act a court must be satisfied both retrospectively and prospectively. In the matter before me there is no challenge as to the former. There is as to the latter. The behaviour of the appellant subsequent to the making of the interim restraining order contrasted starkly with his behaviour before. That change in behaviour must, in my view, be substantially, if not completely, attributed to the existence of the interim order. The magistrate rejected the appellant's evidence to the effect that he was accepting of the proposition that the relationship between he and the respondent was over and to the effect that he had no intention, in future, of reverting to the conduct which had given rise to the granting of the interim order. A rejection of his evidence in that regard does not, in my view, necessarily afford a firm foundation for a conclusion that the appellant was likely again to commit such acts against the respondent.
Similarly, the appellant's refusal to provide a written promise or undertaking, thus bringing the proceedings to an end without the making of a violence restraining order does not, in my view, afford a firm foundation for a conclusion that the appellant is likely to commit such acts against the respondent in the future. Had the appellant agreed to provide a written promise or undertaking the proceedings would have been brought to a pragmatic conclusion. Such pragmatism does not always come to the fore in emotionally charged adversary proceedings where pride and an unwillingness to accept suggestions of wrongdoing or make concessions to one's opponent might play a significant role. While the provision of a written promise or undertaking might have, to the magistrate, been a practical solution to the dispute before him it was not, in my view, open to him to conclude that the appellant's decision was 'unreasonable' and that his refusal or denial was indicative of an intention to contact the respondent again in the future.
Of the three factors expressly relied upon by the magistrate only the third, in my view, perhaps evinces an intention to behave, in the future, inappropriately to the respondent. That was the statement in the email of 7 June 2011 to the German friend, Julia Krause, to the effect 'I'm not going to let Kristina get rid of me.' That statement appeared at the outset in the context of an email written in some distress denying that he was a bad person and had told lies and asserting that the respondent had herself told lies. It was predominantly about his relationship with Julia Krause in the wake of the breakdown of his relationship with the respondent.
Rejection of the appellant's evidence led to the unchallenged conclusions of fact as to his conduct prior to 18 February 2011. Rejection of the appellant's evidence as to his future intentions does not, as mentioned, necessarily lead to a conclusion of fact that the appellant, in truth, did harbour intentions to continue his hitherto inappropriate conduct.
As pointed out by counsel for the respondent, in arriving at a prognosis, the magistrate had the benefit of observing the parties on three occasions: 29 April, 16 June and 30 June 2011. He was, said counsel, entitled to take into account all of the evidence before him. There can be no doubt, however, that the magistrate did, very clearly, focus on the three factors challenged by the appellant. He concluded that the appellant was, as at 30 June 2011, still obsessive about the respondent. To be obsessive about an issue and, for that matter, to send text messages to one's friends or acquaintances about the injustices involved in that issue is one thing, to revert to hitherto inappropriate conduct towards the respondent is another.
The Restraining Orders Act provides for two forms of relief: a violence restraining order and a misconduct restraining order. The latter may be made if the court is satisfied that, unless restrained, the respondent is likely to behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected. A person who is bound by a misconduct restraining order and who breaches that order commits an offence which attracts a penalty of $1,000.

By s 35A of the Act a court is not to make a misconduct restraining order unless it is satisfied that the person seeking to be protected by the order and the person bound by the order are not in a family and domestic relationship with each other. That phrase means a relationship between two persons who are or were in a de facto relationship with each other. Clearly the appellant and the respondent, in the matter before me, were in a de facto relationship with each other. The magistrate was, having regard to that circumstances, precluded from making a misconduct restraining order, notwithstanding that the conduct complained of by the respondent fell within the category of intimidating or offensive behaviour.
The scope of conduct which falls within the embrace of the phrase 'active family and domestic violence' is wide. It encompasses not only behaviour in an ongoing manner that is intimidating, offensive or emotionally abusive towards someone but also far more serious conduct such as assault, kidnapping and deprivation of liberty.
The penalties provided by the Act for breach of a violence restraining order are significantly greater than those applicable for breaching a misconduct restraining order. They include both a substantial fine and/or a term of imprisonment not exceeding 2 years.
The magistrate observed, when giving his reasons, that the respondent did not assert that the appellant was physically violent or that he had threatened her with physical violence. He remarked that the behaviour complained of could possibly be described as intimidating, offensive or emotionally abusive behaviour under s 6(1)(d) of the Act. He concluded, however, that the conduct proven fell within the category described in s 6(1)(e) of the Act, that referring to pursuing a person with intent to intimidate or in a manner that could be reasonably expected to intimidate or does, in fact, intimidate.
The offensive behaviour was brought to an end by the imposition of the interim violence restraining order. By the time the magistrate handed down his decision some 4 months and 10 days had passed during which the parties were involved from time to time in the process in the Magistrates Court. The imposition of the interim violence restraining order allowed for a period of 'cooling off'.
The hearing on appeal is not, as was suggested by counsel for the respondent, a hearing de novo. It is, in my view, in the nature of a re‑hearing not involving a completely fresh hearing by the appellate court of all of the evidence. I must proceed on the basis of the record. In Warren v Coombes (1979) 142 CLR 531 the majority of the court reiterated the rule that:
In general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are disputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
The magistrate correctly observed that a violence restraining order is not to be granted lightly. It is a significant imposition on the liberty of the individual. Significant penalties apply for breach of such orders.
In a sense, I am perhaps in a better position than was the magistrate in that he was dealing directly with unrepresented litigants contesting no longer the rights and wrongs of the breakdown of their relationship but the legal consequences of it in terms of their respective futures. It was necessarily an area of some emotional turmoil. As to the future, the respondent had made her position very clear. In his reasons the magistrate said:
The applicant indicated before me more than once that she would accept a written undertaking from the respondent and if he were to give that written promise that he would stay away from her and not contact her, she wouldn't have proceeded with her application for a violence restraining order. Unfortunately the respondent declined what I considered to be a very reasonable offer on her part.
He later said, of the appellant:
He now says, not only in evidence but in written communication, that he accepts that the relationship is over and that he will move on and he has no intention of contacting her.
As mentioned, the magistrate regarded the attitude of the appellant as being 'unreasonable' and being 'indicative of the fact that he does intend to contact her again in the future'.
As also mentioned, in the course of evidence and an exchange as between the magistrate and the appellant, the magistrate, once more attempting to persuade the appellant to give a written undertaking or promise, pointed out that he had tried on more than one occasion to persuade the appellant to give the written undertaking or promise. Certainly, the respondent had made it very clear that she would accept such a written undertaking or promise and withdraw her application. From the magistrate's perspective that would have been a pragmatic resolution of the matter before him. With respect to him, it was not his role to counsel or attempt to persuade but rather to hear the evidence and objectively decide the issue. It is perhaps understandable, in the context of the issues being dealt with by the magistrate, that he might embark on that course, but to attempt to persuade the appellant and then draw an inference adverse to him by reason of the failure of that attempt is not, in my view, appropriate.
The fact of the matter is that the respondent had made it very clear on more than one occasion that she would, in the event of the appellant providing a written undertaking or promise, withdraw her application. In other words, she would have been prepared to accept his written undertaking or promise as to his future conduct. It follows that she was confident that he would comply with such a written undertaking or promise. It is very clear that, as the magistrate said in the course of the hearing, the appellant indicated on more than one occasion, not only in evidence but in written communications, that he was accepting of the proposition that the relationship was over, that he would move on and that he had no intention of contacting her. Understandably, as to the events prior to 18 February 2011 the magistrate resolved any conflict of evidence as between the litigants in favour of the respondent. So far as prospective considerations were concerned, he not only found against the appellant on the matter of credibility but inferred, for the three reasons enunciated by him, that the appellant was likely again to continue to try and contact the respondent. In my view, that inference, taking into account as it did an irrelevant consideration, was not properly drawn. The respondent was prepared to rely upon a written undertaking or promise as sufficient protection in the future. The appellant, though declining, perhaps understandably, to provide a written undertaking or promise repeatedly declared in evidence his acceptance of the status quo and his intention not to contact the respondent or behave inappropriately to her in the future. In those circumstances, in my view the violence restraining order should not have been made. I therefore uphold the appeal. I will hear the parties as to final orders.