Teague v SL - [2021] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
TEAGUE v SL
[2021] SASC 114
Judgment of the Honourable Chief Justice Kourakis
28 September 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS
Appeal against a decision in the Magistrates Court to impose an Intervention Order to protect the respondent, who was the appellant’s former partner and the mother of the appellant’s twin children.
The primary contentions on appeal were that the Magistrate erred in making findings which were not supported by evidence and failed to provide adequate reasons for findings.
Held, per Kourakis CJ, dismissing the appeal:
1. the Magistrate’s reasons were supported by evidence and were adequately explained.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 23, 26, 28; Family Law Act 1975 (Cth), referred to.
South v The Queen [2007] NSWCCA 117, discussed.

TEAGUE v SL
[2021] SASC 114
Single Judge Appeal

KOURAKIS CJ: This is an appeal brought by Mr Teague against a final intervention order pursuant to s 23 of the Intervention Order (Prevention of Abuse) Act 2009 (SA) (the IO Act) made in the Magistrates Court on 28 April 2021 to protect SL, who was his former partner and the mother of their twin children. The order made was that Mr Teague must not:
·assault, threaten, harass or intimidate SL;
·follow or keep SL under surveillance or approach within 50 metres; or
·contact or communicate with SL.
Exceptions to the order were made to enable arrangements in accordance with the Family Law Act 1975 (Cth) for the shared care of their children.
SL applied for the intervention order on 2 December 2019. An interim intervention order was made on 4 December 2019. For reasons which are not explained, the hearing of the confirmation of that order was finally listed in February 2021. An objection to the making of a final intervention order should be heard and determined as soon as reasonably practicable after the intervention order is made. The respondent to the application should not be allowed an extended time in which to consider whether or not to object to its confirmation in the absence of any good reason. It is undesirable that the applicant should be left in a state of uncertainty for a protracted period of time. Moreover, in many cases, there will not be independent witness accounts, or other objective evidence, of the incidents on which the application is based. In many cases it will be a matter of oath against oath. The hearing is best held when memories are fresh.
On the confirmation hearing SL gave evidence. Mr Teague did not. There was independent evidence with respect to some, but not all, of the incidents on which the application was based. The Magistrate found that all, save two, of the incidents occurred as described by SL. As to the first of those two incidents, the Magistrate found that the contact between SL and Mr Teague of which SL complained was accidental, even though SL honestly believed otherwise. As to the second, the Magistrate was not sufficiently satisfied of SL’s ability to identify a car which had driven aggressively around her own car on Anzac Highway as one belonging to Mr Teague.
Mr Teague and SL separated before the birth of the twins but shared their parenting from soon after their birth. SL brought the application for an intervention order after she refused to hand over the twins to Mr Teague for his period of care on 23 August 2019 when they were aged seven years old. Mr Teague submitted that SL’s application was brought for the collateral and improper purpose of retrospectively justifying her non-cooperation with their shared care arrangements. He contended that it was for that reason that it was not appropriate to make the final order.
SL gave evidence that she refused to hand over the twins because of her increasing concern of Mr Teague’s unreasonable discipline and abusive behaviours, as reported by the twins. SL testified that on Wednesday 21 August 2019, B returned from spending time with his father and told SL that he never wanted to stay with him again. On Friday 23 August 2019, B resisted going to school because of his anxiety over the prospect of having to spend time with his father, who was to pick him up after school to stay with him over the following weekend. SL accompanied B to school in order to settle him down, but at school B remained agitated and inconsolable. SL testified that she was concerned enough to report the complaints to a child protection agency, and to take B to hospital to be examined on that same day. SL gave evidence that she also attended a police station to make a complaint about Mr Teague’s unreasonable discipline of the children. SL testified that when she did not hear back from the police she attended again on 11 September 2019. As a result of that attendance police took statements from SL and the twins and interviewed Mr Teague.
A subpoena of police records served by SL on the Commissioner of the Police for the purposes of the confirmation hearing did not reveal any documentary evidence of a report by SL on 23 August 2019. Mr Teague tendered the documents returned on the subpoena as business records in his case. At trial, the absence of a documented report of SL making a complaint on 23 August 2019 in the return to the subpoena was used to attack SL’s credit.
Mr Teague applied for permission to bring this appeal on his understanding that the order was interlocutory. Final intervention orders are not interlocutory orders. They conclusively determine whether or not the circumstances existing at the particular time when the application is determined warrant the making of the protective order. Findings of fact as to the incidents on which the application is made bind the applicant and the respondent by way of issue estoppel in any future applications for an intervention order or variation of one, and in any other collateral proceeding. The power to revoke an intervention order pursuant to s 26 of the IO Act does not render or imply that a final order made pursuant to s 23 of the Act is interlocutory. In particular, on an application to revoke, it is not open to a defendant to relitigate the findings on which the final order was founded or to a complainant to prosecute again incidents which were not found proved at the confirmation hearing. On an application to revoke a defendant must rely on subsequent circumstances which show that the order is no longer necessary. Mr Teague’s appeal is therefore brought as of right.
The first ground of appeal complains that the Magistrate relied on his esoteric knowledge of what was referred to in the police reports as the ECARL reporting system, which was not given in evidence, to explain the absence of any documentary record of SL’s attendance at a police station on 23 August 2019. The second ground of appeal is related to the first, and complains that the Magistrate failed to the adequately explain why he found SL to be a credible witness in the absence of any documentary evidence confirming that she reported her concerns about Mr Teague’s abusive behaviour to the police on 23 August 2019. I dismiss both of those grounds of appeal. The Magistrate’s acceptance of SL’s credit was not dependent on any assumption or personal knowledge of the ECARL procedures. Moreover, the attack on SL’s credit assumed that searches made for the documents referred to in the subpoena were comprehensive and would have captured all attendances at a police station, when no administrative officer of SAPOL was called to so testify. The absence in the documents produced of any record of SL’s attendance on 23 August 2019 carries very little weight in the absence of evidence of that kind. Accordingly, the Magistrate was entitled to accept SL’s evidence. Moreover, the evidence concerning the events of 23 August 2019 and their aftermath did not detract from an objective appraisal of the need for an intervention order based on earlier incidents. I would also dismiss the ground that the Magistrate’s reasons were inadequate. The reasons show that the Magistrate was impressed by both SL’s demeanour and the inherent probability of the events she described. It is not to the point that others might take a different view.
Ground 3 of the appeal complains that the Magistrate erred in relying on a police occurrence report, exhibit R1, to find that Mr Teague engaged in verbally abusive behaviour and intimidation in the period after the twins were born and until arrangements were made to hand over the children at a police station. Ground 3A complains that the Magistrate failed to give adequate reasons for so finding. I would dismiss those grounds too. The Magistrate did rely in part on R1. He was entitled to do so because Mr Teague’s counsel tendered R1 and it was received without any limitation on its use. The Magistrate also relied on the testimony of SL. Mr Teague gave no evidence to the contrary. The weight of the evidence therefore strongly supported the finding. Again, the Magistrate adequately explained his reasons for so finding.
Ground 4 complains that the Magistrate erred in finding that it was reasonable to suspect that the appellant would commit an act of abuse if not restrained and that it was otherwise appropriate to issue an intervention order. Even though the incidents which the Magistrate found proved were not, on their own, particularly threatening, there was a strong and long-standing pattern of abusive and aggressive behaviour associated with arrangements for the care and visitation of the children by their father which warranted the making of the order.
On the hearing of the appeal the appellant sought an additional ground, 5, which complains that the Magistrate reversed the onus of proof in considering the factual question of whether SL was motivated to bring the application to justify her breach of the Court Order. I grant Mr Teague permission to add ground 5 but dismiss the appeal on that ground. The Magistrate found that SL had discharged her onus to persuade him that it was appropriate to make the order, notwithstanding the evidence of improper motive on which Mr Teague relied.
My reasons follow.
Tensions on handovers: 2013 – 2015
SL’s testimony was that Mr Teague behaved in an intimidating way on every handover of the twins, save for those occasions when other family members were also in attendance. This persistent conduct ultimately led to her requesting the attendance of police. She initially made those arrangements ahead of each occasion by telephoning a police station.[1] The police sometimes attended a private location, like Mr Teague’s home, to monitor the handover.
[1] Transcript, p 33.
On 3 March 2015, orders were made in the Federal Circuit Court regulating SL’s and Mr Teague’s shared parenting of the twins (the Court Order). Orders were made enjoining both of them from denigrating each other in the presence of, or physically disciplining, their children. An order was made that all handovers be effected at the children’s school or kindergarten or at the Sturt Police Station.
SL testified in‑chief that before the Court Order was made, she made informal arrangements for handovers to occur at a police station because of the ‘barrage of verbal abuse’ she would endure until the twins could be persuaded to go with their father. She testified that by involving the police the process was shortened, making it easier for everybody and in particular the children, but it did not completely stop the abuse. From the questions of counsel at the confirmation hearing, it appears that both of them misunderstood SL’s testimony. Their questions assumed that SL called police and made formal complaints against Mr Teague on each occasion on which he behaved in a threatening manner, when, as the Magistrate correctly apprehended, her evidence was that she made arrangements for police to stand by at handovers to prevent a breach of the peace.
SL was taken to a police occurrence report, exhibit R1, which was one of the five documents returned in answer to the subpoena issued to the Police Commissioner. The five documents were tendered by consent as exhibits R1 to R5. They are all entitled ‘Detailed Occurrence Reports’ and were made on 27 June 2013, 12 May 2016, 20 July 2017, 11 September 2019 and 31 July 2020 respectively. I will refer to them as police occurrence reports.
It is apparent on the face of exhibit R1, and the other police occurrence reports, that they have been reconstructed from other reports, stored in a legacy database known as PIMS, by way of data conversion into the current database, which is known as Shields. There is, perhaps for that reason, some repetition in the documents. That raises a question as to how comprehensive the migration of documents was, and whether the search undertaken in order to answer the subpoena extended to the legacy databases themselves.
The occurrence report R1 records in part:
Their [sic] has been tension between victim and TEAGUE with regards to caring for the kids while he’s with them. Anger over the separation approx 16 mths ago. …
When dropping them off yesterday, [late June 2013] argument between victim & TEAGUE over use of the pram. TEAGUE became quite agitated & refused to listen to victim’s point of view, to the point he tensed up his body and took up an intimdating [sic] stance. Took a step towards victim but nil assault. TEAGUE then stepped back, lots of name-calling and then finally went to get pram.
Victim handed over the children without further incident.
It also records that it was SL’s intention to make arrangements through solicitors to have handovers take place at a police station.
It was put to SL that exhibit R1 recorded her first contact with the police concerning the handovers. SL responded that she could not say if it was the first time, but she accepted that it may have been. SL confirmed that she changed the arrangements from the police attending at Mr Teague’s house to attending at the police station. The contents of exhibit R1 did not help her to recall how and when that change was made, but she thought it was likely to have been at about the time of the Court Order.
It was not put to SL that her account of being verbally abused leading to the attendance of police and ultimately to handovers occurring at the Sturt Police Station was not true. It appears therefore, from SL’s testimony and the contents of exhibit R1, that after SL sought police assistance in June 2013, police attended at handovers at Mr Teague’s home and elsewhere until agreement was reached that handovers would occur at the Sturt Police Station. It is that agreement which was later included in the Court Order.
The Magistrate, after considering exhibit R1, concluded:
[102]Although this additional entry [in R1] does not establish an extensive history of such incidents at the handover of the children, it is consistent with the evidence of the applicant that the change in handover arrangements was initiated by her due to the behaviour of the respondent at handovers.
[103]The evidentiary material produced by the police in response to a subpoena issued on behalf of the applicant and tendered by the respondent, does not include any documents concerning contact by the applicant seeking police attendance to stand by at the handover of children before those arrangements were transferred to a police station.
[104]I am not persuaded that the absence of documentation affects the reliability or credibility of the applicant on this topic.
[105]Counsel for the respondent who tendered document did not call or produce evidence to show that contact to arrange for police to standby to ensure it was no breach of the peace would generate a document that would be captured by the subpoena. An unsuccessful attempt was made to illicit evidence of this kind from the witness Amy Wilson, a police cadet. Ms Wilson had no detailed knowledge of the reporting system or experience in its use.
[106]Evidence of that kind was necessary to establish that the absence of such documents supports the conclusion that no request was made by the applicant for police to attend at the handovers.
[107]Based on the contents detailed occurrence report Exhibit R1 and the evidence of the applicant I am satisfied that there were incidents of verbally abusive behaviour and intimidation part of the respondent’s the applicant at the handover of children before arrangements were changed for handovers to occur at a police station.
The Magistrate’s reasons are self‑explanatory, and soundly based on the evidence. His Honour was entitled to rely on exhibit R1 in support of SL’s testimony because it was received without limitation on Mr Teague’s tender. Indeed, the Magistrate could have gone further and used it as evidence of Mr Teague’s hostility and his intimidating conduct in June 2013. As I have already observed, the limited weight given in [103] to [106] to the absence of documents in the return on the subpoena is appropriate. The Magistrate’s understanding of SL’s arrangements with police recorded in [105] accords with my reading of the evidence.
I dismiss grounds 3 and 3A of the Notice of Appeal.
Stepping on SL’s foot in May 2016
SL testified that there was an incident at the Sturt Police Station on 15 May 2016 where she was sitting on a lounge in the reception area. Mr Teague entered the area with the children. As she greeted the children, Mr Teague trod on her foot. SL testified that it appeared to her to be intentional. She reported the incident to the police. That incident was the subject of the detailed occurrence report, exhibit R2. Exhibit R2 records that police reviewed the incident on CCTV and determined that the footage did not support a conclusion that it was intentional. Mr Teague was not charged with any offence. However, the police discussed a changed procedure for handovers with SL and Mr Teague which ensured greater physical distance was maintained between SL and Mr Teague. The Magistrate concluded:
[131]The evidence of the applicant concerning this incident is consistent and I accept she formed a genuine belief that the respondent's actions were deliberate. One might understand how she may have formed that view given the nature of their relationship and respondent's questionable decision to come so close to the applicant.
[132]However, I am not persuaded of the likelihood that the respondent deliberately stepped on the applicant’s foot.
It is not necessary to further consider this incident for the purposes of this appeal, because the Magistrate’s conclusion is favourable to Mr Teague. However, I pause to observe that findings about the nature of the relationship between the parties to an intervention order application, and in particular a finding that the defendant bore the applicant much animosity, is circumstantial evidence of a relationship which should be considered together with the competing accounts of particular incidents on which the applicant relies. In this case, the evidence of tension over handovers in the preceding two years, and subsequently, would have supported a finding, which might reasonably have been made, that Mr Teague deliberately trod on SL’s foot.
Aggressive driving after handovers – 2017
SL testified that early in 2017 when she was driving away from the Sturt Police Station having handed over the children to Mr Teague, she was stationary at the traffic lights on Sturt Road. Mr Teague was also stopped at those lights with the children in his car. SL turned right onto Marion Road and within 20 metres saw that Mr Teague was ‘tailgating’ her. That driving continued along Marion Road until they reached Oaklands Road. Mr Teague then turned left in the direction of his home. SL did not report the incident to police.

SL testified that after a similar driving incident she reported Mr Teague to police on 20 July 2017. SL gave evidence that she had left the police station and turned left onto Sturt Road with a view to turning right and crossing against the traffic into a side street. As she was about to turn, Mr Teague drove up behind her. He honked his horn and swerved his car towards hers. In her anxiety SL almost drove across the path of the oncoming traffic.
Exhibit R3 is a detailed occurrence report relating to that incident. The summary of the incident reads as follows:
Victim and ex-partner do hand overs in the car park at Sturt Police Station. During hand over on stated time/date, ex was collecting children from victim and daughter wanted to ask victim a question and has gone running back to her, making ex angry and he started verbally abusing the victim. Victim and ex has left and as victim was driving away, ex has sped past the victim honking his horn at her, which she believes was a deliberate act to intimidate her.
The report contains a notation: ‘E-carl to be submitted as daughter was present during the verbal abuse’. Another note shows that, perhaps by way of follow up, SL was called by police on 18 August 2017. SL told police that things were controlled ‘at the moment’ during child handover however she continued to remain anxious because she did not know how Mr Teague might behave. It is recorded that SL was currently seeking further advice. She was given the contact details of the victim support service.
The Magistrate was satisfied that both traffic incidents occurred as described by SL.
[115]The allegation by the applicant contained in the police detailed occurrence report Exhibit 3 are not proof that the incident occurred. It does however prove that the applicant made complaints, consistent with her evidence at trial, about the behaviour of the respondent at the handover and drove in an erratic way causing some apprehension to the applicant.
[116]The applicant gave a credible explanation as to why she did not report the alleged tailgating incident on Marion Road to the police. At that time, it appears she was frustrated that the police were not able to do anything about such incidents and decided not to make a report. She denied that the failure to make a report meant that she did not take the incident seriously and she maintained that the incident occurred.
[117]I am not persuaded that the apparent absence of a police document confirming a report by the applicant of the alleged incident on Sturt Road and her failure to report the alleged tailgating incident on Marion Road undermine the applicant’s evidence about the two incidents.
[118]There has been no direct evidence to the contrary and I accept that the incidents occurred in the manner described by the applicant.
Those findings of fact are not impugned other than in so far as SL’s credit was affected by the events surrounding the withholding of the children on 23 August 2019. I observe, however, that the Magistrate was correct to observe in [115] that exhibit R3 did not conclusively prove that the incident of 20 July occurred as therein stated. Nonetheless, it was evidence of its occurrence because exhibit R3 was received at the instigation of Mr Teague and without any limitation as to its use at the request of Mr Teague. It was an almost contemporaneous account of the second incident. SL’s observations to police on 18 August, to the effect that there had not been any further incident, show a balanced and reasonable approach on her part. The Magistrate’s findings are well supported on the uncontradicted testimonial and documentary evidence before the Court. The accepted evidence of those incidents shows a continuing animosity towards SL which was relevant circumstantial evidence of the other incidents she alleged, and as to the reason why further incidents could reasonably be expected to occur.
Hostility to SL witnessed by Ms B – 2018
SL called an acquaintance, Ms B to give evidence of a conversation she had with Mr Teague at an Auskick session. Ms B testified that they both noticed some smoke on the horizon. Ms B said to Mr Teague that she hoped that it was not serious. He replied, ‘I wish it was 30 Aver Avenue Daw Park’, which at that time was the home address of SL. Ms B asked Mr Teague if he was serious and he replied ‘Yes’. The Magistrate accepted the evidence of Ms B.
The Magistrate also found that Mr Teague engaged in an abusive telephone conversation with SL on an occasion on which Ms B was with SL and the children were with Mr Teague. Ms B testified that in 2018 she was living in the same suburb as SL. Ms B was at SL’s home when she received a telephone call from Mr Teague. SL activated the speaker of the phone. SL spoke first with the children who told her that they wanted to come home. Mr Teague then spoke aggressively and swore at SL. When SL suggested she might bring a favourite toy around to comfort the children, Mr Teague replied ‘no, you fucking won’t’.
The Magistrate was also satisfied that Mr Teague had acted in a belligerent and intimidating manner towards Ms B in a supervised access visit at the Mitcham Library in the course of a discussion about whether they could take the children to a place other than the Mitcham Library. He stood very close to her and was aggressive. He complained that the arrangements were not good enough. She warned him that if his behaviour continued, she would take the children and leave. A male bystander, who was nearby, walked over the stood behind the respondent which brought the confrontation to an end.
The evidence of Ms B was independent evidence of Mr Teague’s hostility to SL over arrangements concerning the children and of his intimidating behaviour on the occasion of the telephone call.
July 2019 handover
SL testified about the last occasion on which Mr Teague acted in an abusive manner before she made an application for an intervention order. It occurred at the Sturt Police Station during a handover on 10 July 2019. When SL attended at the Sturt Police Station she noticed that there was a Protective Security Officer, Ms Wilson, undertaking a security patrol of the premises because the police station had been temporarily shut down. At SL’s request, Ms Wilson remained present in the carpark to observe the handover. She remained in her car. SL testified that when Mr Teague got out of the car he yelled ‘do I need to come to your house’. SL gave evidence of Mr Teague’s bullying and aggressive behaviour towards Ms Wilson. He berated her in a high and intense voice. His demeanour was intimidating and aggressive.
Ms Wilson testified that she overheard Mr Teague asking SL whether she would reply to his email. He sounded aggravated and annoyed. His tone caused Ms Wilson to walk over and introduce herself. She heard SL tell Mr Teague that she would respond tomorrow. Mr Teague asked Ms Wilson if she had anything better to do. After the children were in Mr Teague’s car, and whilst he was reversing out of the carpark, he wound down his window and raised his voice. He yelled that he did not need a supervisor to be present and asked Ms Wilson why she was there. She replied that she was there to make sure everything was okay. Ms Wilson was not cross-examined about the incident.
SL’s friend, Mr Shilton, was also present in SL’s car. He heard Mr Teague say ‘you need to reply to my email’ and ‘do I need to come around to your house and sort it’. Mr Shilton testified that Mr Teague was agitated and aggressive.
The Magistrate concluded:
[151]I am satisfied on the evidence of the applicant, Amy Wilson and Daniel Shilton that very soon after his arrival the respondent approached the applicant near her car and demanded to know when she was responding to his email of 8 July 2019. I am satisfied that the respondent was aggravated. Although the witnesses are divided about the loudness of the respondent and whether he was yelling at that early stage, I am satisfied that his tone and demeanour were inappropriate and calculated to intimidate the applicant.
[152]I am satisfied the evidence of the applicant and Daniel Shilton that when the respondent demanded an answer to his email he first approached the applicant asked whether he needed to go to her house to deal with the issue.
[153]The witness Amy Wilson did not recall hearing the respondent say to the applicant, “Do I need to come to your house to sort things out”. However, I note that the evidence of Ms Wilson is that when the respondent arrived she was seated in her car some distance away and only "overheard" something about emails. She said that she remained in the car and got out only after the respondent began talking to the applicant. Ms Wilson said that she got out of her car and approached the respondent because his tone of voice was "not nice". I find that Ms Wilson was not in a position to hear all that was said by the respondent and did not overhear the reference by the respondent about attending the applicant's home.
[154]I am satisfied that the respondent's reference to attending the applicant's home was calculated to intimidate the applicant.
[155]I find that while leaving he [sic] Sturt Police Station the respondent was yelling at Ms Wilson complaining about her oversight of the child handover. He did so in the presence of the applicant.
[156] I find, based on the evidence of the applicant, Daniel should [sic] and Amy Wilson I am satisfied that the respondent behaved and [sic] aggressive and intimidating manner at the handover on 10 July 2019.
I need only observe that again the Magistrate’s reasons are self‑explanatory proceeding from an acceptance of the evidence of SL, Ms Wilson and Mr Shilton and are soundly based on that evidence. Indeed, the findings were all but inevitable given that Mr Teague chose not to testify to the contrary. Putting aside for now SL’s evidence because of the attack on her credit, the findings dealt with so far, based on the evidence of Ms Wilson and Mr Shilton, and the evidence of Ms B, are sufficient to support the making of the Intervention Order.
Anzac Highway incident – October 2019
SL gave evidence of another occasion on 26 October 2019 when a car cut across her path as she was driving along Anzac Highway. The Magistrate was not able to find that Mr Teague was responsible for the incident even though he accepted SL as a credible witness for the following reasons.
[123]I am not persuaded that the respondent was involved the driving incident 26 October 2019 [sic]. The applicant did not see the driver of the vehicle and could therefore not identify the respondent as the driver. The applicant purported to identify the driver through her recognition of the vehicle involved in the incident. However, she was unable to identify the make or model of the vehicle. The applicant's evidence falls well short of establishing the likelihood that the respondent was involved.
[124]However, I do not consider that the evidence of the applicant on this topic adversely affected her reliability or credibility to any significant degree. I accept that she was involved in an incident as described by her and that her belief that the respondent was involved was genuine although most likely misplaced.
That finding need not be considered further because it is favourable to Mr Teague.
Breach of Family Court orders
A primary element of the defence case at the confirmation hearing was that SL had applied for the intervention order to retrospectively construct a valid reason for her breach of the Court Order allowing Mr Teague to take care of the twins on the afternoon of 23 August 2019. In so far as that position was an attack on SL’s credit, it had its difficulties given the independent evidence of Mr Teague’s intimidating behaviour to which I have referred. However, the defence case was also that it was not appropriate to make the final intervention order, within the meaning of that condition in s 6 of the IO Act, because the application was brought for an improper purpose. Mr Teague complains of the way in which the Magistrate dealt with the absence of any police documentation of the report made on 23 August 2019. That is the subject of grounds 1 and 2 of Mr Teague’s appeal.
At the outset of his reasons, the Magistrate correctly directed himself that s 28 of the IO Act provides that the Court is to decide questions of fact on the balance of probabilities. I observe that s 28 of the IO Act determines the standard of proof but is silent on where the onus sits. The applicant, as the party who bears the persuasive onus to satisfy the Court of grounds prescribed by s 6 of the IO Act, must also carry the onus of proving the facts on which those grounds rest. Before turning to consider Mr Teague’s contention that the application was brought for an improper purpose, based on SL’s breach on 23 August 2019 of the Court Order, his Honour, again correctly, directed himself as follows:
[45] It is acknowledged that the onus is on the applicant to establish the grounds for issuing the order on the balance of probabilities. The respondent is not required to establish that the applicant has an improper motive in seeking the order. However, the fact that the applicant's credibility has been challenged based an improper motive, requires an assessment of that imputation by the court.
[46]The determination of that issue does not determine the outcome of the case. The absence of an improper motive to pursue an unjustified intervention order does not establish grounds for an order. On the other hand, if it is established that the applicant had an improper motive or was motivated by mere malice that would have a significant adverse effect on the credibility of the applicant.
[47]The consideration of the issues raised by the evidence can properly begin with an examination of a motive proffered by the respondent for the applicant initiating an application for an intervention order without merit.
[48]Consideration can follow of the general allegations of abusive behaviour by the respondent towards the applicant and specific incidents involving alleged abuse in support of the required grounds must be assessed on the merits of the evidence.
The Magistrate was correct to observe that SL’s credit might be affected by evidence that she was improperly motivated to bring the application for the intervention order. However, for that forensic purpose it was not necessary that Mr Teague establish, in the sense of discharging a persuasive onus, that SL was improperly motivated. Evidence that SL may have brought the application for an improper purpose may be a sufficient reason, in itself, not to be satisfied that SL had discharged her onus. It was also open to Mr Teague to argue that SL had failed to persuade the Court in accordance with s 6 of the IO Act, that it is appropriate to make the order against the background of such evidence.
I turn, therefore, to a consideration of the evidence which Mr Teague submitted disclosed an improper motive.
On Friday 16 August 2019, SL suggested to Mr Teague that she pay for the children to attend a school disco they were keen to attend on the Friday evening, and that Mr Teague picks them up when that disco finished at 6.30 pm. He replied that he would do so on the following Friday.
SL testified that on Wednesday 21 August 2019, her son, B, returned from having spent time with his father. G had not attended. SL testified that B told her that he never wanted to stay with his father again.
On Friday 23 August 2019, Mr Teague emailed SL saying:
Ensure that the kids have all of their school requirements for Monday, when I pick them up from the disco this evening.
On that Friday, B was reluctant to go to school because he did not wish to spend the weekend with Mr Teague. SL accompanied him so that he could attend a program called iKiDs. He was unsettled at school and became inconsolable. SL testified that she was concerned enough by B’s complaints that she took him to hospital.
AHe didn’t want to leave my side again. He was reluctant to go to school. This was already building up through the year, like, the kids were not coping, but there was a crunch point on that Friday. He wouldn’t leave, he wouldn’t stay at school, he wouldn’t – and he did – I took him to iKids because that had just started, so I took him to that appointment, came back to school, the teachers were involved trying to talk him into it. He had a big part to play at the assembly, a huge part to read, like there was a lot of good stuff going on – he would not leave. Then the main assistant principal came in to speak with him and at that point he ended up getting up and crying and shaking, going ‘I don’t want to, he yells at me and he hits me’ and at that point, I just went that’s enough.[2]
…
AYes I’d spent the whole day at the hospital first being told to go to the protective services and then from there told to go to the police station in Adelaide. I spent hours there and only when they assessed it in that way and I felt that I could actually do it then I sent that email and said this is [sic][3]
[2] Transcript, p 22-23.
[3] Transcript, p 67-68.
On Friday 23 August 2019 at 5.04 pm, SL sent an email to Mr Teague headed ‘Child protection investigation’. It informed Mr Teague ‘with great concern’ that she would not hand over the children that evening. SL conceded that by doing so she breached the Court Parenting Orders but justified her refusal on the grounds of her concern about B’s and G’s health and safety. In the email SL informed Mr Teague that a formal SAPOL investigation, jointly with the Child Protection Agency, was being undertaken. She mentioned her attempts to deal with the increasing emotional distress of the children following time spent with him. SL referred to a mediation process which had taken place over the preceding six months, during which matters continued to escalate. The email included what was described as a Report Order: Adelaide Police Station: SAI1900195790.
Mr Teague replied on the next day saying:
As always, your allegations are calculated and strategic. I do not agree with your unilateral [sic] decision […] nor with your premise of violence, fear and abuse.
The occurrence report, exhibit R4, is dated 11 September 2019 and records a complaint of unreasonable disciplining of the children by Mr Teague over the period between 13 December 2018 and 11 September 2019. It records that SL came into the Adelaide Police Station to report historic domestic violence offences on her children. SL stated that her former partner regularly hit the twins, who were then seven years of age. The Court Order is referred to.
The occurrence report states that the twins were brought into the station on 11 September 2019 but that no interview was conducted until a later date. A note on exhibit R4 reads ‘the mother made ECARL notifications. The father lodged contravention proceedings in the FCCA.’ The ECARL modifications may reasonably be inferred to be a reference to the child protection reports mentioned in the email to Mr Teague and in SL’s evidence but I acknowledge that the inference is not a strong one. The occurrence report records SL’s claim that the children were unsettled before and after handovers and that they related being smacked at the top of the head. It states that SL described distressed behaviour like crying, general anxiety and teeth grinding.
The children were interviewed on 12 November 2019. B stated that his father hit him over the head regularly and that it hurt but he had not noticed any bruises. G was less inclined to speak to the police but did confirm that her father hit B more than he hit her.
Another note of exhibit R4 reports that Mr Teague was interviewed on 19 December 2019 and denied the allegations.

A note in exhibit R4 records that an officer spoke to SL after the conclusion of the interviews and discussed with her that there was ‘difficulty getting beyond the defence of reasonable chastisement’.
The occurrence report reveals telephone conversations and an exchange of emails between a Detective Barber and SL in October and November. It records that SL had said that ‘she had made ECARL notifications (states July) and that it was deemed no offence (i.e. reasonable chastisement)’. It is not clear whether the word ECARL was used by SL or whether that was the conclusion drawn by Detective Barber. Detective Barber noted that he would make a full assessment of the matters ‘before concluding same’.
SL was cross‑examined about the absence of documentation of any report to the police on 23 August 2019 in the return to the subpoena. She maintained strongly that she had.
QWhat I’m suggesting to you is that you reported the matter to the police on 11 September 2019.
ANo, what I’ve said to you is that’s the day I went back into the Adelaide Court [sic] and was not going to leave until I found out what had happened to the previous report and what was going on because I was getting the run around on the phone call and from the Christies Beach about where this protection or this investigation was and what was happening so I went back in and that’s when they said you’re going to have to come in again and have the kids interviewed separately by someone, and so I had to do it all over again.
QWell, S.L. what I’m suggesting to you is that that’s not true, you first reported this matter to the police on 11 September and you disagree with that.
AAbsolutely I disagree.[4]
[4]     Transcript, p 72.
…
AAnd I can tell you when I questioned them they said yes we do have that and we’ve gone and put it under a street watch where they had told me specifically the woman we had spoken to in detail cos then we spoke to a man in uniform a woman out of uniform that this is medium level, this will be going straight to here, you will hear from us, it is, it will, an investigation has been set off. So there was clearly detail cos they told me this is what’s happened for us to do it again or to do it you now have to bring them in and they’ll speak to the children separately and so I just followed them.[5]
[5]     Transcript, p 73.
…
QS.L. What I’m suggesting to you is that this matter was not raised with SAPOL until 11 September 2019 by you. Do you agree with that or disagree with that.
ANo, I disagree.
QYou disagree with that. And an investigation was conducted, wasn’t it into this matter and on 23 December SAPOL determined that they wouldn’t take any action, is that correct.
HIS HONOUR:
QDo you accept that the police didn’t pursue any criminal charges.
AYes and Jonathon Barber had spoken to me before about what their process was and that that would be the outcome because of their age and I said that’s fine I’m not here to do criminal charges I’m just here for them to be heard and I’m here because they did that process of it was necessary to talk to them in greater detail.[6]
…
AIn – no, he didn’t speak to me. He sent me an email with that. He spoke to me before the interviews had begun saying it was unlikely for anything to occur because of their age. I understood that, I was following there because of their process.[7]
[6]     Transcript, p 73-74.
[7]     Transcript, p 75.
The Magistrate concluded:
[81]It is clear therefore that the allegations of physical abuse of the children made against the respondent by the applicant was said to be based on information received by the applicant from the children directly. It is also clear that the children when independently interviewed by police provided information to support the allegation that they had been hit about the head by the respondent and that in the case of [B] he was experiencing headaches as a result.
[82]Despite the allegation by the respondent that the applicant had concocted the allegation and had coached the children to deny him access there was no information or other material referred to in the police report to support such an allegation. The detailed occurrence report that does not indicate that respondent's allegation of concoction and coaching was pursued or further investigated by the police. The potential of concoction or coaching of the children by the applicant or any other person was not given as a reason or discontinuing the investigation and closing file.
[83]The claim by counsel for the respondent and the respondent's assertions to the police during the investigation that there was a delay in reporting the alleged physical abuse of the children is not sufficiently made out.
[84]The detailed occurrence report, Exhibit R4 contains information that the applicant in her statement to police said filed an ECARL that is a child abuse, report in July 2019 concerning the alleged abuse of the children. The applicant was not cross-examined about having made an ECARL report in July.
[85]The fact that the police did not, in answer to a subpoena, produce a record of a report by the applicant of the alleged physical abuse does not exclude the possibility that a report was made by the applicant to the authorities by way of an ECARL report. In my view, it is not be unreasonable for the applicant to have understood that an ECARL report would involve an investigated by the police and that when she attended the police station on the 11 September 2019 she was of the view that the matter had already been reported.
[86]Furthermore, it is not at all clear how a delay in reporting the allegation, if indeed there was such a delay, establishes that the complaint was vexatious. The respondent had been informed and thereby was placed on notice that there had been a complaint and a complaint was in fact lodged.
[87]I am not satisfied based on the contents of the detailed occurrence report dated 11 September 2019, Exhibit R4 of the likelihood that the allegation of physical abuse of the children was concocted by the applicant or that she coached children to make statements asserting that they were hit by the respondent.
[88]I am not persuaded of the likelihood that the applicant delayed in making the allegation against the respondent achieve an improper advantage against the respondent.
[89]I do not accept that the circumstances in which the applicant withheld access to the children in August 2019 and on other occasions establishes that her intervention order was motivated by her desire to deny access and justify breaches of the Family Court orders.
In considering Mr Teague’s amended ground 5, I commence by accepting that paragraphs [87] to [89], in form, appear to cast an onus on Mr Teague. However, those paragraphs reflect the positive case of improper purpose put by Mr Teague to contest the making of the intervention order. Mr Teague having invited the Magistrate to find that SL was improperly motivated, the Magistrate concluded that Mr Teague had not established that fact on the balance of probabilities. SL’s case that an intervention order should be made did not depend on proof that she genuinely withheld the children because of their complaints.
It is important to keep in mind that the complaint made by SL about Mr Teague’s behaviour towards their children did not concern an act of abuse against her, nor was it a ground on which she sought an intervention order. Rather, it was raised by Mr Teague to attack her credit and contend that it was not appropriate to make the order. The Magistrate approached the issue by considering the allegation that SL was improperly motivated as an independent issue to be resolved. There was much practical reason for doing so. A positive finding that SL was improperly motivated would obviously be a strong reason to doubt her credit with respect to the acts of abuse she alleged had been committed against her. Conversely, a positive finding that she had not been improperly motivated meant that the defence attack on her credit could be completely set aside.
However, there was also an intermediate position. In the context of a criminal trial the point was put in this way by Hunt AJA in South v The Queen:[8]
[42]Where there is evidence that the complainant had a motive to lie, the jury's task is to consider that evidence and to determine whether, in the light of such of that evidence as they accept, they are nevertheless satisfied that the evidence given by the complainant of the commission of the offence charged is true. …
[8] [2007] NSWCCA 117 at [42].
In this case, if the Magistrate were not persuaded of Mr Teague’s positive case, it remained necessary to keep in mind the possibility that SL was improperly motivated when assessing her credibility and reliability with respect to the accounts of abuse she alleged.
The Magistrate was right to observe that exhibit R4 contained support for SL’s account in that the children when independently interviewed, confirmed that they had been physically disciplined by Mr Teague. The Magistrate was also right to observe that there was no suggestion in exhibit R4 of concoction.
The finding that Mr Teague had not proved an improper purpose is not surprising given his failure to give evidence. Nor is it surprising that the evidence surrounding the events on 23 August 2019 did not cause the Magistrate to reject SL’s accounts of the earlier incidents, which were supported by documentary evidence and the testimonies of Ms B, Ms Wilson and Mr Shilton . Equally, in the absence of any such finding, there was no proper basis on which to refrain from making the final order.
The finding in paragraph [83] that Mr Teague’s contention was not ‘sufficiently made out’ means no more than that such evidence, as given by Mr Teague, of an improper motivation did not affect the Magistrate’s acceptance of SL’s testimony. In short, the Magistrate was persuaded that it was appropriate to make the order notwithstanding the evidence of a possible motive, such as it was. The underlying reasons for not doubting SL’s testimony are given in paragraphs [84] and [85] of the Magistrate’s reasons. The gravamen of these reasons is that the mere absence of a report in a return to subpoena is of little to no weight. The Magistrate’s reference to an ECARL report is not dependent on any particular understanding of that expression. The point made by the Magistrate is that there is a reference within exhibit R4 itself to an earlier report of one kind or another which is consistent with SL’s testimony.
I would therefore dismiss grounds 1 and 2 of the Notice of Appeal.
Ground 4 – Reason to suspect further acts of abuse
The Magistrate’s conclusion on the question of whether there was reason to suspect that Mr Teague would commit a further act of abuse if an intervention order were not made was for the following reasons:
[191]I find on the balance of probabilities that it is reasonable to suspect that the respondent will, without intervention, commit an act of abuse against the applicant. The basis upon which this finding is made includes the ongoing and consistent behaviour of the respondent in an abusive manner.
[192]It is to be expected that the applicant and the respondent will be required to engage in some way about the welfare and needs of the children of the relationship. In that sense contact to some degree between the applicant and the respondent will be all but inevitable, at least until the children approach or attain adulthood.
[193]In determining the application, I have considered the likelihood that the respondent will engage in the same or similar abusive behaviour towards the applicant over access to and issues relating to the children.
[194]The evidence of Ms Banning is relevant in this respect. Ms Banning's evidence directly concerns the behaviour of the respondent when differences of approach arise over his access to the children of the relationship with the applicant. The respondent's belligerent, overbearing and intimidating behaviour towards Ms Banning when she refused his request to change supervised access arrangements without notice, demonstrates the risk he poses to the applicant over potential disputes or differences in approach to issues related to the children.
[195]The evidence of Ms Wilson is also relevant to assess the prospect that the respondent will engage in abuse of the applicant over access to the children. Ms Wilson's evidence discloses a strong resentment by the respondent to any oversight of and perceived interference in his access to the children. The evidence demonstrates he is prepared to act out his resentment and objections in inappropriate ways including towards third parties. It is reasonable to suspect that he will continue to behave in this manner towards the applicant.
[196]The attitude of the respondent to the well-being of the applicant is an indicator that should not be ignored when attempting to assess or predict the nature of his future conduct towards the applicant. The comment to Ms Banning by the respondent expressing a hope that the applicant's home was burning down demonstrates the degree of ill feeling, if not malice, on the part of the respondent towards the applicant.
Is it appropriate in the circumstances to issue the order?
[197]I have considered the principles set out in section 10 of the Act and I am satisfied that it is appropriate in all the circumstances to issue an intervention order the terms sought. The order will assist to prevent further acts of abuse against the applicant, encourage the respondent to take responsibility for his behaviour and to take steps to avoid committing abuse and the disruption to the applicant. The order will not interfere with the capacity of the parties to obtain appropriate orders from the Family Court concerning custody and access of children. It is hoped that the stability that can be provided by an intervention order may assist in that process.
The above paragraphs show that the Magistrate addressed the right question and was satisfied by the course of the conduct which disclosed that Mr Teague strongly resented any oversight, supervision or questioning of his parenting of the children. He was satisfied that the making of an intervention order was necessary to prevent any further acts of abuse occurring in the context of handovers and the sharing of parental responsibility generally. Once that was accepted, the evidence, weak as it was, of an improper motive, was not sufficient to refrain from finding that the making of the order was appropriate.
Conclusion
I dismiss the appeal.