West v The King

[2023] NSWDC 213

District Court

New South Wales

Medium Neutral Citation:

West v R [2023] NSWDC 213

Hearing dates:

8 June 2023

Date of orders:

22 June 2023

Decision date:

22 June 2023

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [60]

Catchwords:

APPEAL – Apprehended Violence Order

Legislation Cited:

Crimes (Personal & Domestic Violence) Act

Crimes (Appeal & Review) Act

Cases Cited:

Lunney v DPP (2021) 105 NSWLR 236

Gianoutsos v Glykis [2006] NSWCCA 137

Charara v R [2006] NSWCCA 244

Dyason v Butterworth [2015] NSWCA

Charara v R [2006] NSWCCA 244

Fox v Percy (2003) 214 CLR 118

Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1

Texts Cited:

NA

Category:

Principal judgment

Parties:

Police (Respondent)
Madeline West (Appellant)

Representation:

Fernon for West
Breward for the Office of the Director of Public Prosecutions

File Number(s):

2022/00144230

Publication restriction:

NA

JUDGMENT

1. On 28 March 2023 in the Local Court at Byron Bay a final apprehended domestic violence order was made under s16 of the Crimes (Personal & Domestic Violence) Act (“the Act”). The person in need of protection was Mr Benny Bennett, and the defendant, subject to the order, was Ms Madeleine West.

2. Ms West appeals that decision. By section 84(2) of the Act the appeal is brought in the same way as a conviction appeal is brought under s18 of the Crimes (Appeal & Review) Act. The approach to such an appeal as stated by s18 is a rehearing on the evidence given in the original hearing, with provision for fresh evidence to be led if leave to do so is sought and granted. The parties proceeded on the appeal in line with the fairly recent decision of Lunney v DPP (2021) 105 NSWLR 236, though it is to be noted there is other Court of Appeal authority that differs; see for example Gianoutsos v Glykis [2006] NSWCCA 137. Nothing turns on this in this case, and the approach set out in Lunney is followed.

Approach to section 18 appeal

3. The approach to taken in these reasons is based on Lunney, and cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and is as follows:

1. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001.

2. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18]

3. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24]

4. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

5. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant’s guilt (or, as in this case, of the making of the order) regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44].

4. The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 as the “correctness standard” which was his Honour’s way of describing the standard being spoken of in Fox v Percy.

Section 16

5. Section 16 is in the following terms

16 COURT MAY MAKE APPREHENDED DOMESTIC VIOLENCE ORDER

(1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears--

(a) the commission by the other person of a domestic violence offence against the person, or

(b) the engagement of the other person in conduct in which the other person--

(i) intimidates the person or a person with whom the person has a domestic relationship, or

(ii) stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

(2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if--

(a) the person is a child, or

(b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or

(c) in the opinion of the court--

(i) the person has been subjected on more than one occasion to conduct by the defendant amounting to a personal violence offence, and

(ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and

(iii) the making of the order is necessary in the circumstances to protect the person from further violence, or

(d) the court is satisfied on the balance of probabilities that the person has reasonable grounds to fear the commission of a domestic violence offence against the person.

(2A) An apprehended domestic violence order that is made in reliance on subsection (2)(d) cannot impose prohibitions or restrictions on the behaviour of the defendant other than those prohibitions that are taken to be specified in the order by section 36.

(3) For the purposes of this section, conduct may amount to intimidation of a person even though--

(a) it does not involve actual or threatened violence to the person, or

(b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

The issues

6. Both parties provided helpful written submissions. Based on those submissions and the parties oral submissions, the issues identified are as follows:

1. That in making the order the magistrate made a jurisdictional error, in that to make an order under section 16(1) it is necessary that the applicant establish that the person in need of protection not only has reasonable grounds to fear, but “in fact fears”, relevantly in this case, that the defendant will engage in conduct which intimidates the person for whose benefit the order is sought. There is no dispute that “in fact fears” requires establishing that the relevant fear is current at the time of the making of the order. The argument of the appellant is that there was no evidence of such a current fear.

2. The appellant further argued that the magistrate erred in finding the fears of Mr Bennett were reasonably based. The argument was that in all of the circumstances a fear of harassment was not reasonably based. In a similar vein, it was argued that the conduct complained of, when seen in the context of all the surrounding circumstances, did not amount to harassment.

3. In support of these central arguments the appellant submitted the magistrate has made numerous factual errors, some repetitive of the earlier points, but which it is convenient to set out:

1. That her Honour erred in finding Mr Bennett had current fears. That said, the true point being made is that the evidence of the current fears was based on evidence of June 2022 which it was said could not reasonably support the finding made.

2. That her Honour failed to recognise what had given rise to the events in question, namely the conduct of her ex-husband in leaving the children with Mr Bennett, rather than allowing her to elect for the children to be with her, in line with court orders.

3. That her Honour failed to find the conduct being complained of could not amount to harassment.

4. That her Honour erred in:

1. Misinterpreting the court orders relating to the children.

2. In finding the reason for the defendant coming to the property at about 11am on 4 May 2022 was because of a text message sent by Mr Bennett, when the unchallenged evidence was the reason was due to a text received from her daughter.

3. Finding the defendant’s reason for removing the child was the child’s illness when she should have found it was because it was provided for by the court orders.

4. Finding the appellant had “barged” into the property.

5. Accepting Mr Bennett’s evidence of his arm being pushed by the appellant when this was not supported by the CCTV evidence. The appellant argues that the evidence of Mr Bennett was false in this regard, and also by only setting out the events of 11am on 4 May, and not of earlier that day and the day before.

6. In finding the appellant to have been an evasive witness.

4. The respondent argued that the facts found by the magistrate satisfied the criteria of s16 for the making of the order.

The facts

7. The appellant is the mother of six children, the father being Mr Shannon Bennett who is the son of the person in need of protection, Mr Benny Bennett referred to above. For convenience hereafter these people will be respectively referred to as the mother, the father and the grandfather.

8. The relationship between the mother and the father broke down and proceedings were commenced in the Family Court. On 7 October 2020 parenting orders were made by that court by consent. The events which have led to the current proceedings occurred during school term time. The orders provide that the children live with the father and further provide:

1. During school term time the children spend time with the mother from the conclusion of school on Wednesday until the commencement of school on Monday in each alternate week; order 5(a). Order 5, inter alia, also provides that the children spend time with the mother at such other times as may be agreed in writing between the mother and father.

2. Where a child is not at school on a day time is to commence or conclude then the mothers time is to commence at 9 AM and the mother shall cause the children to be collected from the front gate of the father’s residence; order 7(b).

3. Where a parent is unable to care for a child for a period of at least 24 hours during a period the children would ordinarily be with that parent then that parent must give the other parent the first option to care for the children; order 8.

9. The evidence in chief was largely provided by way of written statements in accordance with Court directions. The applicant sought leave to rely on a further statement of the grandfather which although made in November 2022 was only served the week before the hearing. The leave sought was not granted. The transcript of the magistrates' reasons for that decision are before the court and rely significantly on concerns as to case management and the time available to the court. Those reasons also emphasised the importance of the need for evidence of the grandfather’s fears as at the time of the hearing, and the appellant placed weight on those reasons in her oral submissions. Just what that evidence was is not known and there was no application in this appeal for leave to rely on that statement as fresh evidence. The absence of that statement was relied upon by the mother both at the hearing and on this appeal to strengthen the mother’s main point of there being an absence of evidence of fear of the grandfather at the time of the making of the order. The point was also made that it meant there was no evidence as to what had occurred between the parties, if anything, in the period since the event in question on 4 May 2022 and the determination of the need for the order in March 2023.

10. In my view this state of affairs is unsatisfactory for a number of reasons. Firstly so far as possible cases should be decided on the facts of the matter rather than procedural points. Presumably the statement that was not allowed included evidence that the grandfather held the same fears at the eve of the hearing as he did at the time of his statement and when the application was made. For the purposes of this appeal I do not make that assumption in the absence of the evidence and it may well be that the affidavit strayed far beyond that simple updating point which one would expect would commonly be the subject of some further evidence in chief in any case like this. The further point as to there being an absence of evidence as to what had occurred between the making of the statement by the grandfather in May and June 2022 and March 2023 is a point the effectiveness of which will vary on the overall circumstances of the case. Here as will be seen the concern of the grandfather is for the occasions that he visits Byron Bay to see his grandchildren; in circumstances where it is not a case of possible day-to-day contact the point loses some of its weight. The bottom line is the case needs to be determined on the basis of the evidence before the court and that evidence was evidence of a current fear as at the date of the statement and no express evidence of any change in that position. Nor was there any challenge in the cross-examination of the grandfather to the point that any fear he may once have had had passed. Of course the forensic decision taken by the mother to not cross examine to that extent is totally understandable in light of the absence of evidence after that date and the decision made was to rely on the now dated evidence as not being sufficient to make out what is required by the section. The risk of course is, as transpired, of the magistrate making a finding consistent with the existing evidence of the grandfather which for reasons set about below, in my view was open to her. Whilst the conclusion of the magistrate as to the currency of fear may have been open to her it still remains necessary to consider just what that was a fear of in all the circumstances and whether it justified the making of the order.

11. The evidence of the grandfather was given by way of a statement dated 16 June 2022 which annexed a copy of the transcript of an interview he had with police on 4 May 2022. What is actually in that statement is not the subject of great dispute with one notable exception. It is common ground that at about 11:10 AM on 4 May 2022 the grandfather was at the father’s residence in Byron Bay. With him was his granddaughter and the child of the mother and father Xascha. Xascha was born on 22 August 2010 and so was 11 years old at this time and she was one of the children the subject of the Family Court orders. At about that time the doorbell rang and the grandfather went to answer it and could not see anybody and opened the gate when the mother appeared. His statement was that she came around the fence and barged in which was a matter of dispute. He said that he asked her what she was doing and she said she had come to pick up Xascha. She said she could look after her and it’s her day to have her. The grandfather said the father had said she is not to go until she is fully recovered and then she can catch the bus to the mother’s tomorrow. The grandfather said the mother said that’s not going to happen and she would take Xascha now. The statement goes on that by this time the mother was at Xascha’s bedroom, and she told Xascha she was coming now and that she grabbed Xascha by the arm and took her. The grandfather said she can’t do that and the mother said she can and would ring the police if he did not let her. The grandfather said he did not want a messy scene with the child. He said the mother grabbed Xascha and carted her off down the stairs to the gate and he told her this was not right. He said the mother put the child in the car, the child was crying and said to him that she didn’t want to go and the mother drove off.

12. When asked to describe how the mother barged through the grandfather said she came straight through the gate. He said he had said wait at the gate and she came straight through and that she just pushed him by pushing his arm out of the way. He said he opened the gate because he thought there was somebody delivering a parcel and that the minute he opened the gate she was in. He said he told her she can’t come in, she said she could and she pushed him out of the way and went straight to Xascha’s room.

13. Significantly he also said that he just wanted to make sure the matter was reported because his son said he was going to take action.

14. There is no dispute that the child had remained at her home and was not at school because she was sick. There is no suggestion that the illness was of any significance or seriousness.

15. The grandfather gave evidence of there being text messages including the mother saying she would pick up Xascha at 4 o’clock to which he replied to wait till she is fully recovered tomorrow. The grandfather expressed the view that “switched her on” and “she became you know uncontrollable”. He described her as irrational. These are of course conclusions; the evidence of facts supporting them is light on, and not supported by the CCTV.

16. He said he had never really had bad words with the mother. He described the mother and father as having a continuous battle.

17. The grandfather told police that the mother had found out that the father was away. His view was that one of the other children must have told her the father was away and that had happened “the day before yesterday”. What was not then said in the grandfather’s statement was that in fact two of the other children had been collected by the mother on 3 May 2022 without incident.

18. What is also not included in the statement, but which was later agreed is that the mother had in fact attended at the father’s residence at about 8 o’clock on 4 May 2022 and had dropped the other children nearby for them to go to school.

19. When asked if he had any fears for his safety in relation to the mother the grandfather said, “no I don’t ahh she’s never been ahh aggressive or anything to me”. He also said it was the first time he had seen her in seven or eight months which would seem to be the case but for 3 May the day before.

20. The grandfather was asked whether he had concerns in the future minding the kids in Byron Bay and replied, “I won’t do it anymore” and said that “at my age it is very stressful” and that “I don’t need this sort of thing” and “I don’t want to see the kids put through what’s happening”. He said he would only come when the father was there, which I take to mean Byron Bay. He said “I just can’t put up with you know what she does. He said “it’s not me it’s the children she comes the reason”. He said he had told somebody “I can’t be the meat in the middle”.

21. Following that statement and referred to in the evidence was a text message with a time of 10:01 AM of the grandfather telling the mother “Xascha will not be coming to your place today as she does not feel well” and with the mother responding “I am more than capable of caring for her. I’m her mother. I can isolate her if necessary. If she is sick the others will be too. I will be collecting her at 4 PM.

22. The witness statement of the mother was dated 17 July 2022. It annexes a copy of the Family Court orders referred to above. At paragraph 11 is a conversation between the mother and another of the children where the mother learns that the father is in America and as at 2 May had been gone for three days and would not be back until the weekend and that the grandfather was looking after them. The mother says she knew nothing about this. The mother’s evidence which was not challenged was that the girls were calling her and asking her to pick them up. The date is not overly clear but it appears that on 2 May the mother told the grandfather of her conversation with the girls and the grandfather confirmed the father was overseas until the weekend and that he did not know the girls had camp. The mother said she is meant to have the children and would come and collect them. The grandfather said he would call the father and that the mother can have the girls later in the week when she is meant to. To this the mother said the children are meant to be with her if the father is away. She said it was late and shall make arrangements to collect the children in the morning. The next morning, 3 May, that occurred. She collected her daughters Xanthe, Margaux and Xahlia on 3 May. The unchallenged evidence was that there was difficulty contacting the grandfather and that she had 18 missed calls from her daughter Xahlia. She told the grandfather the girls were calling her in tears and she would come and collect them and she did. As to Xascha she wished to stay one more night to care for her pet to which the mother agreed.

9. On 4 May the mother took the younger children to the bus stop close to the father’s home and then attended that home to check on the grandfather. Their interaction on the mother’s version which was not challenged was that attendance at about 8 AM was friendly to the point that they hugged. Xascha was asleep and the grandfather said she complained of a tummy ache. The mother said she would like to take Xascha with her. The grandfather called the father and then told the mother having spoken with the father that she could not take Xascha and she had to leave the property immediately. Xascha had seen this exchange and became upset and the mother left the father’s house.

10. The mother then left the father’s house and received calls from Xascha as well as texts expressing a fear that she would “lose me” in reference to the mother. Some of those texts are attached to the mother’s statement and were in evidence and are referred to below. They included Xascha saying to the mother that her father said if she was sick she had to stay at the father’s house and that she wanted to go to the mother’s. It was the mother’s unchallenged evidence that it was because of those messages that the mother returned to the father’s house at about 11 AM after having attended a medical appointment in Queensland. It was that attendance at about 11 AM that is spoken of in the grandfather’s evidence. Significantly there was a dispute as to why the mother returned at about 11 AM. As just noted the evidence not challenged and it was never put to the mother that the reason she had returned was because the father had said the children could not go with the mother.

11. The mother then sets out that she was very friendly to the grandfather when she collected Xascha but was shortly after contacted by the police. They said they had a report of an assault by her on the grandfather. This the mother denied saying that the front gate was opened and she was let into the father’s home and she did not push the grandfather’s arm nor did she speak to him aggressively or in a way to cause fear.

12. The text messages annexed to the mothers statement by reference to the page numbering on the bottom right hand corner state, in summary, the following:

1. Page 33: That at a time that was agreed to be about 8:49 AM Xascha says she should be feeling better by 4 and asked the mother to pick her up by four or five. She also says she loves the mother and it feels like her life is falling apart and “I don’t want to lose you”.

2. Page 33: In what I infer is a later text the child says she thinks should be better by 4 or 5.

3. Page 34: She then says that her father said if she is sick she has to stay at her father’s but that she wants to go to her mother’s. The mother replies inter alia, “I’m getting you at 4”

27. In the evidence at the hearing the statement of the grandfather became Exhibit 1. There was then some CCTV footage played. The grandfather identified himself and the mother in that CCTV footage and also Xascha being taken from the property by the mother.

28. In cross-examination the grandfather confirmed the father had left for America about three days before the incident on 4 May. The grandfather said the father was to be back on the Friday and agreed he was away for about a week. He was not aware of the effect of the Family Court orders when a parent was away for 24 hours or more. He readily agreed that the mother came to the house at about 8 o’clock. He said he didn’t recollect a conversation with the mother about her trying to contact him by calls or texts.

29. The mothers statement set out above was tendered and became Exhibit 3. In cross-examination there was no challenge to the fact that the younger children had been collected the day before, on 3 May. It was put to her that she was happy to leave Xascha at the father’s house and she answered that she, that is Xascha, had requested to stay at home with her pet. The cross examiner asked her to answer the question and the magistrate commented that the witness was not being directly responsive. The following three questions were all answered “yes”, the effect of which was that she had agreed for Xascha to stay with the grandfather as at the Tuesday overnight (3 May) so to then go to school and be collected in the usual way at 4 PM. She agreed she saw Xascha in bed at about 8 AM and that it was on that occasion she learnt that the child was sick. The mother made appropriate concessions as to the effect of the messages as were put to her including that Xascha told her she’d be feeling better by four and pick her up by four or five. She helpfully corrected an error of the cross examiner about one message which was said to be at 1.45 which was in fact about 8:50 AM which is the one referred to above by reference to the page number 33. It was then put to her that she then decided to go earlier (that is earlier than 4 PM) to pick Xascha up to which she said “correct”.

30. The CCTV was then played to the witness. It was put to her that she sought to avoid the cameras and she did not agree. She said she was heading to a second entry to the house which was open and then changed her mind and thought she would do the right thing and go through the front door. She rejected the proposition that her intent was to get into the house however she could. She rejected the suggestion she was hiding around the corner. She said she was standing at the corner as she did not want to appear intimidating by lurking in the alcove and that the camera had a wide lens. Again the video was played and it was put to her that she could not be seen on the camera and she implicitly agreed to that in reference to the security camera but said the door camera would still be able to see her and that there were two different cameras. She rejected the suggestion that she was out of the frame of the camera so as to lure the grandfather to the front gate. She said she stood back so as to not appear intimidating.

31. As to her entry she says the grandfather said he would need to speak to the father before he could let Xascha go and that she said that if the door shuts it will lock so I’m just going to stand inside the door which is what she says she did. She said she did not lay a hand on him and did not have to force the door.

32. The mother accepted that the Family Court orders allow her to collect the children from the gate and not to enter. She accepted that the grandfather did not invite her in. She did not agree she pushed the door; she said she did not use force that she put her hand on the door so it would not automatically close as the grandfather was moving away and she slid into the gap and stood next to the letterbox. She accepted she had entered without invitation.

33. She agreed that when she left with Xascha, Xascha was bent over, she said because she was carrying her computer and laptop but she rejected that she was forcing her to leave with her. She said she was holding her daughter’s hand which was normal and that she was already in a fraught state because her dad said she would not be allowed to come to my house.

What needs to be established for an order

34. What needs to be established on the balance of probabilities for the making of an order are the following matters:

1. That a person had or has a domestic relationship with another person; in this case that is a reference to the grandfather and there is no dispute the definition is satisfied.

2. That person, relevantly here the grandfather, has reasonable grounds to fear and in fact fears either:

1. The commission by the other person of a domestic violence offence which is a defined term; or

2. The engagement of the other person (here the mother) in conduct in which that other person either intimidates the grandfather (which is the relevant matter here) or stalks a person, which is not relevant here.

3. And being conduct that in the opinion of the court is sufficient to warrant the making of the order.

35. Pausing there, notably what is required is for the grandfather to “in fact fears” suggesting the need for evidence that at the time of the making of the order that fear is current. That is a point heavily relied upon by the mother in this appeal. It should be noted that an order can be made under s16(2) in the absence of “current” fear. It is clear from the magistrate’s reasoning and the parties’ conduct of the appeal, that this is a case where the order was made pursuant to s16(1).

36. The provisions of section 9 of the Act are also relevant and were referred to by the magistrate. Section 9 sets out the objects of the Act which include to protect all persons who experience or witness domestic violence and noting that domestic violence is unacceptable behaviour.

The magistrate’s reasons

37. The magistrate made reference to section 16 and also relevantly the objects and principles of the Act set out in section 9. Her Honour also referred to the matters that need to be considered under section 17 so far as relevant. Her Honour correctly noted that there was no dispute that an application had been made to the court; that the application had been made by a police officer; and that the grandfather was in a domestic relationship as defined by the Act with the mother. Her Honour noted that it was not disputed the mother interacted with the grandfather at the front entrance to the property and entered the property nor that the grandfather occasionally stayed at that house with the children when his son was overseas or interstate. That these matters were not in dispute was not challenged on the appeal.

38. Her Honour then, commencing at page 3 of the transcript of 28 March 2023, identified the matters falling for her consideration which may be summarised as:

1. Does the grandfather have fear of domestic violence offence or of intimidation; if so

2. Are there reasonable grounds for those fears; if so

3. Is the conduct such as to warrant making of the order;

4. Are conditions or restrictions necessary for the safety of the grandfather and any child?

39. The reference to whether the conduct warrants the making of the order shows that this application is one that is being considered under section 16 (1) and not section 16 (2) for the latter subsection does not have the tailpiece of this requirement. As already noted, this case is one where what is in issue is section 16 (1)(b)(ii).

40. The essential argument for the mother was that there was no evidence showing a current fear or indeed it went further to say that there was no evidence of fear but rather it was a case of the grandfather being uncomfortable being in the middle of the family dispute between the mother and the father.

41. The magistrate rejected that argument. Her Honour’s reasoning was as follows:

1. The text messages at around 8:49 AM showed that there was no urgency in Xascha’s texts. Her Honour set out that they made reference to Xascha being picked up by 4 or 5 PM. Her Honour noted (incorrectly in the circumstances) that the family court orders provided for the children to be picked up on Wednesdays at 4 PM. That fact as found together with the reference to 4 PM in the texts shows that Xascha was of the understanding her mother would collect her at 4 PM.

2. She found the text of the grandfather saying Xascha would not be going to the mothers home (found to be sent at around 10.11AM), that is, at all, so not even at 4 o’clock triggered the mother into making the decision to return to the property before 4 PM. With respect the unchallenged evidence was that the mother returned earlier because of further text received from Xascha; see at paragraph 28 of the statement and there was no cross-examination challenging that evidence. I accept the mothers submission in this regard that it was not open to her Honour to make that finding.

3. Next her Honour accepted there appeared to be a lack of compliance by the father with the family court orders; this would seem to be a reference to order 8 rather than the provisions of order 7, however her Honour then notes that the mother did not comply with the court orders because those orders do not entitle her to enter the property. Her Honour also appears to have relied on the fact that Xascha was not in any immediate danger and that her condition was not serious.

4. Her Honour accepted the CCTV was inconsistent with the grandfather’s evidence that as soon as he opened the gate the mother barged in but she does say that on her viewing it does show that the mother did in fact barge in. She further found that this was because it meant she would not be locked out. Her Honour found that the mother knew the court orders did not allow her entry but was determined to enter. With respect the magistrate enjoys no benefit in respect of the video evidence and having viewed that video evidence both on the appeal and with the encouragement of the parties again in chambers the video does show the mother entering the property or perhaps more accurately it shows her at one point outside and another point inside. She accepts that she reached out to the gate to prevent it closing. I would not describe the mother’s manner of entry as barging in. The video shows discussion between the parties after the mother has entered; the grandfather then walks towards the house, and the mother follows and overtakes him; it is that “overtaking” that may suggest an element of “barging”; yet whilst minds may differ as to what is then happening, the mother has by then entered the property, and the evidence simply does not support the conclusion that she barged in, especially given the accepted inconsistency between the grandfather’s version (see at [12] above) and what was shown on the CCTV. It is obvious from the evidence that what was occurring was against the wishes of the grandfather so that there is an element of conflict to that extent. Yet the parties conversed in what appears to have been a rational manner on either side of the gate. The description of the mother as barging in is not supported by the evidence.

5. Next the magistrate makes the point that she prefers the evidence of the grandfather who she found to be a reliable witness and did not find the mother to be reliable. That was despite the finding that the grandfather’s evidence was inconsistent with the CCTV concerning the initial entry of the mother. The magistrate was clearly influenced by his evidence not being prone to embellishment or exaggeration, which in some respects was the case, though the inconsistency as to the mother’s entry was plainly an exaggerated version, though I do not find that to be due to any dishonesty on the part of the grandfather, rather, it is simply faulty recollection.

6. In contrast, in addition to plainly being unimpressed by the mother by reason of, in the magistrate’s view, barging into the premises when the family court orders did not permit her entry, she questioned her evidence. The reasons for this were said to be the fact that at the time of the incident it appeared she was a person who is not taking a “calm collected response” to what was occurring and that in her Honour’s view a person affected by an emotional response may have difficulties with reliability later on. Again the magistrate does not have a benefit over the appeal court here so far as her views are based on what she viewed on the CCTV. With respect there is nothing about the behaviour of the mother seen on the CCTV that shows her to be in such a state of emotion that her recall may be impaired. No doubt there was some emotion involved but the picture shown in the CCTV shows discussion in a civil way, albeit of disagreement, and the mother then proceeding to collect her daughter, largely in accordance with consent court orders, (as they provide for collection from the gate). Another angle of the CCTV, as noted below, shows the grandfather holding a door open for the mother and the child. The magistrate described the mother as almost dragging the child to get to the front gate and off the property. With respect my viewing the video as noted below does not support that from all angles.

7. As to the oral evidence her Honour said at T7.25 that the mother was evasive when questioned about whether there was consent to enter. She says it took quite a few questions before she would make that concession. With respect that is wrong. The relevant evidence is at T31. Preceding that were a number of questions as to whether the mother had used her arm to gain entry and then there was the question “but you understand that you entered without invitation? Answer: my little girl was-I understand but my little girl was inside”.

8. Stopping there the mother has at the first time of asking made the concession sought albeit that she has added that her daughter was inside. The follow-up question is “just a yes or no” and she says “yes”; she answers three of the next four questions with one word namely “yes”, “yes” and “correct”.

9. Perhaps what the magistrate had in her mind was at transcript T29.45 which is a plainly non-responsive answer by the mother. The only other basis given for rejecting the reliability of the mother's sworn evidence was that she found her evidence minimised the conduct that she could see on the CCTV footage. Given that the view I take of the CCTV footage differs from that of the magistrate my view is that her evidence does not seek to minimise her conduct but frankly acknowledges it for what it was. Namely she admits that she entered the premises when she was not invited or otherwise entitled to; she admits that she held the door open so that she could gain that uninvited access. It does appear that she sought to be out of view before the gate opened, but once the gate was opened there was discussion before the mother entered through the gate.

10. As to the issue of the fear of the grandfather the finding was that the grandfather did not fear a personal violence offence but had fears of conduct amounting to intimidation on the basis of the extended definition pursuant to section 7 which includes harassment or molestation. Her Honour said that meant essentially disturbance, pestering or repeatedly troubling, and that the grandfather fears that will occur if he is staying with his grandchildren on a visit. Her Honour stated that intimidation did not require actual or threatened violence. The finding was that the grandfather feared that if he visited his grandchildren, he would be harassed by the mother particularly if the father was not present. I have set out above at [20] the evidence of the fears of the grandfather. That evidence needs to be considered along with his statement that when asked by the police officer in his interview whether he feared for his safety he said “no”.

11. It was the evidence set out at [20] and the findings made on the basis of the CCTV footage which in the magistrate’s view supported the grandfather's evidence and her rejection of the contrary evidence of the mother that founded the conclusion that the grandfather feared the commission of intimidation on the basis of harassment.

12. Given the circumstances that on the magistrate’s findings existed as at 4 May 2022 the further finding that there were reasonable grounds for those fears was made. At T8.20 this is added to by reference to the mother arriving earlier than she had told the grandfather, her demeanour when on the premises, her unauthorised entry and her action of brushing his arm whilst barging in and the fact that the mother was a lot younger than the grandfather and by not taking the alternate course to attend mediation in accordance with the family Court orders.

13. Her Honour then found that the conduct warranted the making of the order because of the age of the grandfather and the stress he said he suffered. Her Honour also referred to the lifelong and continuing relationship between the children and the grandfather and the fact of ongoing conflict over the children.

14. Her Honour then turned to what orders ought to be made and made what was referred to as conditions 1 and 8 for a period of two years.

Consideration

42. The arguments of the appellant mother are identified at [6] above. In my view it was open to the magistrate to find that the grandfather as at the date of the hearing was fearful of being harassed by the mother in a way similar to what had occurred on 4 May 2022. The evidence that the grandfather did not fear the mother was an answer to a question as to whether he had any fears for his safety. That question was asked shortly after he had been asked whether he had suffered any injury and showed his arm and said there was nothing there. The next question that is not redacted asked whether the grandfather had any fears for his safety in regards to the mother and that is when he said no and that she had never been aggressive to him. That does not mean that he is not fearful of a repeat of the conduct that occurred on 4 May.

43. The evidence as it stood at the time of the hearing was of the fear set out above which the magistrate accepted. It was never put to the grandfather that he did not have the concern set out in [20] above and found by the magistrate to constitute fear. It is true to say that was dated evidence by the time of the hearing but there was no basis on which it might be inferred that there had been a change in the grandfather’s fears. The evidence was not challenged. In my view the argument that there was no evidence of “fear” at the time of the hearing fails. In my view such fears were reasonably based, based as they were on conduct of that very type of the mother on 4 May.

44. The next argument put forward by the appellant was that the conduct complained of when seen in the context of all surrounding circumstances did not amount to harassment. A key part of what has occurred here is the well-intentioned conduct of the grandfather in acting in accordance with the father’s directions. He did not know the terms of the court orders in detail and would plainly seem to be unaware of order 8 or for that matter the detail of order 7 with the variation as to the time for the children to go with their mother on a Wednesday if they were not attending school.

45. This highlights the circumstances in which the mother has acted. She has attended at the place where her daughter is living and asked that the daughter come with her in accordance with the court order. To that extent this behaviour is not conduct that could reasonably be said to ground harassment. What is crucial to the case for the making of the order is whether in asserting that right the mother has behaved as the magistrate found. Given her acceptance of the grandfather’s evidence and her findings it would seem she accepted the grandfather’s evidence in his statement that when he told her the child would go to school tomorrow and hopefully could go straight to her place that “switched her on”, she became “uncontrollable” and was “irrational”. He later described her as emotional. There was no real cross-examination challenging that description of the mother. Yet in my view it is a description that is at odds with the CCTV footage. It is also evidence of little probative weight being as it is assertions or conclusions rather than statements of fact. Having seen the CCTV in the course of the hearing and again in chambers my view is that it is quite likely the mother was emotional but there is no evidence to support the conclusion that she was uncontrollable or irrational. She may have been “switched on” whatever that may mean but assuming it means her mood was elevated the evidence suggests only that there was discussion between her and the grandfather and that the grandfather and she did not agree as to what should occur. The CCTV footage was from four different angles. On the “entry” camera there is no barging in to be seen. All of the CCTV suffers from being motion generated so that there is a degree of stopping and starting. What the entry angle shows is the grandfather coming to the gate and opening it and subsequently in the stop start nature of the motion activated camera shows him turning and walking up the path and with the mother following and then passing him. Another angle shows that she had by this time entered the property and had a discussion with the grandfather. That entry occurred after there had been an earlier discussion with the mother standing outside the gate. Overall, what the CCTV shows is the mother coming to the gate and pressing the bell. She then leaves the immediate vicinity of the gate; she says so as to not appear intimidatory but her presence there is not captured by the other cameras contrary to her evidence. Those two pieces of evidence do not favour her. However, that goes not very far given that when the gate is opened she stands outside of the gate and has a discussion with the grandfather. As is now accepted by the police there is no immediate entry to the premises by way of barging or otherwise. On this angle she then appears on the other side of the gate but another angle shows that she had what I would term merged through the gate and held her hand out so that she could do so and keep the gate open. She disputes touching the arm of the grandfather. On the evidence of the CCTV that is indeterminate but accepting the grandfather that he was touched it was plainly an incidental touching and certainly would not be able to be satisfied that she intentionally touched him in some manner of aggression. Having gained access there has then been a further discussion with the grandfather which concludes with the grandfather turning away and heading up the path and the mother then overtaking him. The grandfather can be seen to have his hands out suggesting that he was frustrated. The entry camera also shows the mother leading the child out of the premises in a way that does appear forceful though that is not supported by the other angles. The angle from the front camera gives a gentler impression of the way in which the mother was leading the child away and indeed this angle showed the child going out the gate first and shortly after running to the car. The mother was parked across the road and turned the car around and stopped at the curbside adjacent to the gate and had a further conversation with the grandfather.

46. It is the Gatehouse footage that shows perhaps most clearly the character of what is occurring. That shows the mother leaving the immediate area of the Gate having pushed the bell and later having a look around the corner and only re-emerging when the grandfather opens the gate. However, once he is there there are the discussions I have referred to above so whether she was hiding so as to not appear intimidatory or because she wanted him to open the door which she feared he would not is of little significance. The picture emerging is of a person who wants to collect her daughter not a person who wants to harass the grandfather.

47. On the angle referred to as the theatre camera it does show the mother ducking underneath the arm of the grandfather but when it is closely observed it can be seen that he is actually holding the door open for the mother and child.

48. The mother argued that the conduct seen in the CCTV and otherwise evidenced on findings the magistrate made did not amount to harassment. In broad terms the definition of harassment put forward was of a repeated or persistent pattern of conduct and this is conduct that occurred on just the one day. There was no evidence of the grandfather that the interactions between he and the mother on 3 May and at 8 AM on 4 May were part of the pattern said to give rise to harassment. That said the mother seemed to accept, in my view correctly, that it is not necessary to show that there was harassment on this occasion but only that there was a fear of harassment at some later time and of course if it occurs again the repeated element of the argued for meaning of harassment would be satisfied. It was for those reasons that I formed the view that this case does not turn on the meaning of harassment requiring repetition.

49. Just what is a proper categorisation of the conduct on 4 May? Part of the argument for the mother is that she was not harassing the grandfather but rather was seeking to have her child come with her as provided for by the Family Court orders and that the “fear” of the grandfather was his discomfort at being caught in the crossfire in the dispute between the father and the mother, or as he put it being “the meat in the middle”. On a broader view what is quite obvious is that the grandfather felt much discomfort and awkwardness and quite possibly distress and angst in the position in which he found himself. That position is one where unbeknownst to him his son has asked him to care for the children when what the father ought to have done is asked the mother to care for the children. Out of a sense of loyalty perhaps to his son, justified or otherwise, he considered the appropriate way for him to behave is in accordance with his son's instructions. Putting aside the perhaps misfortune that these children cannot have the experience of staying with their grandfather which may or may not be something they desire and putting aside any contemplation of just what might be the course of conduct for the parents to engage in that would be in the best interests of the children, the fact is that the mother in the context of this ongoing dispute and the orders in place had reason to be displeased at what on the evidence in this case is a flagrant breach of the court orders by the father. In saying that it must be borne in mind that this is not some contravention hearing of a court order and it may be that there is some reasonable excuse for the father acting as he did though the fact that two of the children returned to their mother on 3 May suggests that may not be the case. A child being ill as this child was is no reason for the child not to be with the mother, and there was no suggestion by the prosecutor of that being the case; indeed, one can see a good reason why the child should be with the mother when ill.

50. The real question is whether in all the circumstances this conduct (if repeated) does amount to harassment. Ultimately my view is the answer to that is yes. The facts show that the parties held different views as to when the child should go to her mother. The initial agreement about 4 PM was abandoned by both of them; the grandfather by his text saying as much and the mother by turning up unannounced at approximately 11:10 AM. She then uninvited comes onto the property being occupied by the grandfather and the child and exerts her own will. The fact that this occurred on this occasion plainly allows for the grandfather to have a reasonable basis or reasonable grounds to fear that it may happen again as required by the section. The fears such as they were of the grandfather were in my view reasonably based.

51. There remains of course the tailpiece to section 16(1). In considering this matter I consider there is merit in a number of the further matters relied upon by the mother as set out at [6.3] above. Whilst it is not determinative of the matter it is relevant to consider that the court orders provided that the children should have been with the mother. That fact of course does not permit the mother to harass the grandfather, but they do in my view certainly support her in attending at the property seeking to collect the child and also support her sending the email to the grandfather stating that she will be collecting her at 4 PM after he had said the child would not be coming to the mother’s place that day. I accept the argument that the motivation for the mother to be at the property that day is a relevant matter that should have been given greater weight in the consideration of the need to make the order. To the extent the magistrate considered the court orders required the child to be with the mother only at 4pm, she was in error.

52. I have already accepted above that the Magistrate erred in finding the mother was motivated to attend at 11 AM due to the text message sent by the grandfather rather than due to a text message received from her daughter. That in itself colours the mother’s conduct as less combative vis-à-vis the grandfather than it appears on the findings of the magistrate.

53. I also accept that the magistrate was wrong to find that the appellant barged into the property as reasoned above.

54. I do not consider the magistrate erred in finding that the grandfather’s arm was pushed by the appellant. The magistrate had the benefit of seeing the witnesses give their evidence and she plainly preferred the grandfather in this regard. That being so, the CCTV nevertheless does allow for a finding that what occurred was incidental and certainly, at the very least, far from aggressive.

55. The mother also makes the point that the evidence relied upon by the police was notably absent in detail of the dealings between the grandfather and the mother on 3 May 2022 and at about 8 AM the following day. Just why the overall context had not been part of the police enquiry in the preparation of that statement is unclear but on the evidence it is not something that should be held against the credit of the grandfather. It is however evidence that is relevant in assessing the circumstances in which these events have unfolded. There has been little weight given to the fact that some of the children were collected by the mother the previous day and that the mother had by all accounts an amicable interaction with the grandfather at 8 AM. What occurred following that time followed the involvement of the father and his instruction to the grandfather. Viewed in that way, his expression of feeling as if he was “the meat in the middle” is well understandable. That in turn lends support to an overall submission of the mother that this is not so much a case of the grandfather being harassed by the mother but rather the grandfather experiencing feelings of frustration and distress by being unwittingly involved in a dispute between the mother and the father to which he is not a party but which impacts upon him. Ultimately, whilst I find that the grandfather did fear being harassed, that was in the context of being the “meat in the middle”; whilst I do not accept the submission wholly, I do consider it has merit as a description of what has here occurred.

56. All of these positive findings favouring the mother impact on the question as to whether the conduct which does give rise to a fear held by the grandfather of harassment is sufficient to warrant the making of the order. This is because these facts give the background and circumstances of what I have found to be behaviour giving a reasonable basis for a fear of harassment a different light. They impact on the issue raised by the tailpiece of s16(1).

57. The situation was, with respect, well put by the mother’s counsel. Although put in terms of a reasonable basis to fear another occasion of such conduct, in my view the submission addresses the tailpiece. That submission was that the evidence showed a history of a good relationship between the mother and grandfather, they had not seen each other for 7 months prior to May 2022, they had interacted without incident on 3 May, and amicably on the morning of 4 May, and the incident occurs in the context of the grandfather unwittingly facilitating non-compliance with the court orders, at the direction of the father. I note, absent the father’s instruction, matters had proceeded without incident.

58. In effect, what was being put was there was no need to make the order as the likelihood of this constellation of matters reoccurring was unlikely. I accept this submission. Particularly as, by the time of the Local Court hearing, the grandfather must surely be more than likely to know what the Family Court orders provide, (order 8 was actually put to him in cross examination, see T17) and how he has been unwittingly involved on his part, by the father. Simply put, the chances of all of the circumstances in which this whole unfortunate event occurred recurring are negligible, and there is no need for the order.

59. In terms of a s18 appeal, a number of errors of the magistrate have been identified. By basing her decision on those erroneous findings her Honour’s decision is wrong.

60. It follows that the conduct of the mother, in all the circumstances, is not sufficient to warrant the making of the order, and the appeal succeeds.

ORDERS

61. I make the following orders:

1. Appeal allowed.

2. The orders made by the magistrate imposing conditions 1 and 8 in the court below are set aside and in lieu thereof the application is dismissed.

3. That in the absence of compliance with order (4) below, each party bear their own costs.

4. That by 6 July 2023 the appellant file and serve all evidence in support of any application for costs together with her written submissions in support thereof.

5. That by 20 July 2023 the respondent to the appeal serve all evidence opposing the order together with written submissions in support of their position.

6. The matter be adjourned to 27 July 2021 for judgment as to costs if necessary; that date shall be vacated with no further order should order (4) above not be complied with.

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Decision last updated: 22 June 2023