REED v POLICE No. SCGRG-99-451 Judgment No. S497
[1999] SASC 497
•1 December 1999
REED v POLICE
[1999] SASC 497
Magistrates Appeal
WICKS J This is an application for an extension of time by the defendant, Mr Reed, within which to appeal against an order of a Magistrate made on 30 March 1999 varying a restraining order under the Domestic Violence Act 1994.
It appears that a restraining order was first made against Mr Reed on 13 November 1995 when the Magistrates Court sitting at Christies Beach dealt with the matter on an ex parte basis pursuant to subs 9(2) of the Domestic Violence Act and ordered that Mr Reed be restrained in the following terms:
"1....... From threatening, assaulting or behaving in an offensive manner towards Kaarin Maria WILKINSON.
2...... From harassing or intimidating Kaarin Maria WILKINSON.
3...... From approaching or communicating directly or indirectly with Kaarin Maria WILKINSON.
4...... From causing or attempting to cause damage to the property of Kaarin Maria WILKINSON.
5...... From following, stalking or keeping Kaarin Maria WILKINSON under surveillance at any time.
6...... From approaching, lingering in the vicinity of or entering the place of employment of Kaarin Maria WILKINSON."
The order was confirmed at a hearing of the Magistrates Court on 7 May 1996.
On 21 January 1997, the order was varied by adding a new paragraph 7 thereto in the following terms:
"7....... From attending at or remaining in the vicinity of the place of residence of Kaarin Maria WILKINSON."
In November 1998, Mr Reed made application to the Magistrates Court to have the restraining order revoked. In the application, he said:
"I wish the court to revoke the Domestic Violence Stalking Order on the grounds that my steps are parental and not anything else (eg gender)."
The application was heard by a Magistrate on 30 March 1999. She refused to revoke the order but varied it to restrain Mr Reed in the following terms:
"1....... UNTIL FURTHER ORDER, the defendant [Mr Reed] is restrained from communicating directly or indirectly with Kaarin Maria Wilkinson.
2...... Defendant restrained from being in the vicinity or upon premises situated at 5 Regent Street, Moana South or in the vicinity or upon any premises at which Kaarin Maria Wilkinson may from time to time reside or work.
3...... Defendant is restrained from communicating by telephone to any number registered in Kaarin Wilkinson’s name, be it a private residence or mobile phone"
Mr Reed appealed to this Court against the order of the learned Magistrate.
There are three children of the marriage each of whom is now over 18 years of age. The oldest child is married and has a small child of her own. The other two adult children continue to reside with their mother. These proceedings arise from a very unhappy separation and subsequent divorce on the part of Mr Reed and his former wife, Ms Wilkinson. The parties were divorced some 11 years or so ago. During the course of the proceedings before the learned Magistrate, Mr Reed continued to make reference to the effect that these events had on his three children and in particular on their relationship with him. The learned Magistrate from time to time, and quite correctly in my view, reminded Mr Reed that the application before her concerned a domestic violence restraining order which related only to Ms Wilkinson and that the broader question of his relationship with his three adult children were matters which were not relevant to, and should not be enquired into in, the current proceedings.
Mr Reed’s two daughters did not give evidence in relation to this current application but his son, Tarn Reed, did. He told the Court that Mr Reed came to visit him on two occasions at the property occupied by Ms Wilkinson in the last two years, the last occasion being about March 1998. On these occasions, Mr Reed and his son “sat at the back”, presumably referring to the garden or lawn area at the back of the house. At the time of these visits Ms Wilkinson was not at home. Mr Tarn Reed said that his father appeared at the premises without prior arrangement.
In addition to the two visits referred to, Mr Reed did from time to time leave packages and letters near the front door of Ms Wilkinson’s dwelling. Mr Tarn Reed said that the last occasion on which letters or gift packages had been left at the front door was just before Christmas 1998. These items were not sent through the medium of the post office but rather were delivered by hand in breach of the domestic violence restraining order.
From the evidence given by Mr Tarn Reed, it would appear that in recent times he has chosen to not see his father. He is an adult and is entitled to make a decision on with whom he associates irrespective of the fact that his decision in that regard might cause others to be unhappy.
In the course of his evidence, Mr Reed indicated that he would still pursue the claim in respect of a piano which became the subject of a property settlement in the Family Court many years ago. As the learned Magistrate pointed out, there seemed to be a lack of acceptance on Mr Reed’s part of the finality of the property settlement and of the Family Court proceedings.
There can be no doubt that Mr Reed has suffered considerably from his separation and divorce. It would appear that he was also very unhappy about the property settlement. Unfortunately, Mr Reed has been unable to shrug off the past and look to the future. He has been unable to accept, it seems, that his three children are all adults and need no longer associate with him if they wish not to do so.
Mr Reed’s application to revoke the restraining order against him was brought under s 12 of the Domestic Violence Act 1994 which empowers the Court to vary or revoke a restraining order on application by the defendant as has been done in this instance.
The learned Magistrate drew attention to the fact that the restraining order had been in force for a number of years and that it was right that Mr Reed should bring the matter again before the Court for further review. She correctly pointed out that s 12 of the Act required the Court before varying or revoking a restraining order to have regard to the same factors as those to which the Court is required to have regard in considering whether or not to make the order in the first place. Reference was made to s 6 of the Act which requires the Court, in making a restraining order, to have regard to certain factors. The requirements of that section are not of particular relevance to the case in hand except that it does enable the Court to take into account “any other matter that, in the circumstances of the case, the Court considers relevant”. The learned Magistrate then referred to s 4 of the Act, setting out the basis upon which restraining orders are made. She drew attention to the fact that for an order to be made in the first place there must be a reasonable apprehension that the defendant may unless restrained commit domestic violence.
Subsection 4(2) of the Act sets out particular instances of conduct which would constitute “domestic violence” for the purposes of the Act. I will quote the terms of the subsection in full. It is as follows:
"(2) For the purposes of this Act, a defendant commits domestic violence -
(a).... if the defendant causes personal injury to a member of the defendant’s family; or
(b).... if the defendant causes damage to property of a member of the defendant’s family; or
(c).... if on two or more separate occasions -
......... (i) the defendant follows a family member; or
(ii) the defendant loiters outside the place of residence of a family member or some other place frequented by a family member; or
(iii) the defendant enters or interferes with property occupied by, or in the possession of, a family member; or
(iv) the defendant gives offensive material to a family member or leaves offensive material where it will be found by, given to or brought to the attention of a family member; or
(v) the defendant keeps a family member under surveillance; or
(vi) The defendant engages in other conduct,
so as to reasonably arouse a family member’s apprehension or fear."
In the present case, Mr Reed has not done anything physically violent. He has not caused personal injury to anyone or damage to property. He has not been guilty of following, stalking, loitering or dealing with offensive material or keeping a family member under surveillance. He has entered on Ms Wilkinson’s property on at least two occasions in breach of the restraining order in force. I refer to the occasions when he visited his son on Ms Wilkinson’s property and on other occasions when he left letters and packages at the front door. These breaches of the domestic violence restraining order do not in themselves constitute domestic violence but will only do so where they reasonably arouse a family member’s apprehension or fear. Ms Wilkinson is classed as “a family member” for the purposes of the Act. See s 3.
The learned Magistrate heard the evidence of Ms Wilkinson and in her reasons for judgment indicated that she had no hesitation in accepting her as a witness of truth. The learned Magistrate was satisfied from Ms Wilkinson’s demeanour and from what she had said that she had an arousal of fear when confronted by Mr Reed. The learned Magistrate accepted Ms Wilkinson’s evidence that although there had been a separation for a long period of time the sight of Mr Reed, the thought of dealing with him or having any contact still put her in an emotional state where she sensed an arousal of fear.
Mr Reed suggested to the learned Magistrate that the right of movement, passage and enjoyment of life of Ms Wilkinson would not be lessened by a revocation of the restraining order. The learned Magistrate found that Mr Reed continued to dwell on the past. His circumstances had been tragic in that he had been emotionally upset for a long period of time. Clearly, he has not put the past behind him and the lack of separation between the past and what is occurring with adult children led the learned Magistrate to believe that there was a reasonable likelihood that there would be ongoing problems between the parties. She thought Ms Wilkinson’s fear in that regard was reasonable given that the separation had not been clear and final. The learned Magistrate had regard to the events which occurred in the last two years and concluded that the order should continue but that it should be redrafted in various respects. The terms of the redraft are set out earlier in these reasons. I consider them to be perfectly reasonable and sensible in the circumstances.
If Mr Reed wishes to communicate with his children, there are ways in which he can do so without breach of the domestic violence restraining order. There is nothing in the restraining order which would prevent Mr Reed from sending a letter or parcel to one of his children by means of the postal service. This would not involve him in setting foot on Ms Wilkinson’s property or coming within its vicinity. Mr Reed may need to make enquiry of the post office to ascertain whether there is a means by which a letter or parcel can be sent by certified or registered mail in such a way that the addressee is required to attend in person at the post office to sign for the letter or parcel. The addressee may elect not to collect the letter or parcel, and, of course, cannot be made to do so. Mr Reed should not attempt to contact those of his children who reside with their mother by telephone as this would breach the restraining order.
In the circumstances of this case, I consider that the learned Magistrate has not erred in any material respect in her judgment delivered on 30 March 1999.
There may come a time when the restraining order against Mr Reed should be revoked altogether but this is only likely to happen where there is a period of exemplary behaviour on his behalf such that he can be seen to have ceased to dwell in the past and has made a new life for himself.
For these reasons I would refuse Mr Reed’s application for an extension of time within which to appeal.
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