Magistrates Court at Brisbane
13 January 2021
Magistrate Bradford-Morgan
HEARING DATES: 16 December 2019, 16 November 2020.
SNR CONST CLARK for the Applicant
Ms Horne solicitor for the Respondent
…
[3] On 4 July 2014, the Federal Circuit Court made a Parenting Order (note their son was 14 and their daughter was 12).
[4] On 17 November 2015, the Parenting Orders were varied such that their son no longer live with OMD nor spend time with OMD unless he chose to do so (he was 16 at the time).
[5] On 18 February 2018, Judge Turner:
(i) ordered that the Parenting Order be vacated, and in its place, that the daughter was to live with DMB, with the daughter to spend time with OMD “in accordance with her wishes” (she was 16);
(ii) either dismissed or imposed a symbolic fine in respect of 28 alleged contraventions of the Parenting Order;
[6] On 14 March 2018, Judge Turner’s orders were set aside on appeal…
[9] Judge Jarrett, in a later decision, quoted the Full Court as stating that resolution of the issues in the proceeding before Judge Turner was disputed between the parties, and therefore the Appeal Court could not determine them. The Full Court also relied on the fact that the daughter would be nearly 18 at the time that any rehearing occurred. The Court therefore took the view that not only would it not determine the application to set aside the Parenting Orders itself, it would also not remit the application for rehearing. (This left the daughter subject to the Parenting Order which required equal time, in circumstances where it was evident that she did not wish to live with her mother, and left the family in that situation for 12 or 16 months, an extraordinary situation which seems to have contributed to the subsequent events, as will be seen).
[10] On 27 September 2018, not long after the daughter’s 17th birthday, Judge Jarrett of the Family Court dismissed an application by OMD for a recovery order for the daughter, and issued an injunction restraining OMD from approaching her. His Honour’s Reasons for doing so were that the daughter did not wish to have any contact with her mother and that there was evidence before him from a family consultant that it would not be in her best interests to continue to have contact forced on her by her mother.
[11] On 6 November 2018 (and despite Judge Jarrett’s orders), the Federal Circuit Court dismissed a further contravention application against DMB.
[12] On 29 July 2019, the Federal Circuit Court dismissed a further contravention application against DMB.
[13] The Act confers on this Court power to make civil Protection Orders. Section 37 of the Domestic and Family Protection Act (Qld) 2012 (“the Act”) provides:
“(1) A court may make a protection order against a person (the Respondent) for the benefit of another person (the Aggrieved) if the court is satisfied that—
(a) A relevant relationship exists between the Aggrieved and the Respondent; and
(b) The Respondent has committed domestic violence against the Aggrieved; and…
(c) The protection order is necessary or desirable to protect the Aggrieved from domestic violence.
(2) In deciding whether a protection order is necessary or desirable to protect the Aggrieved from domestic violence—
(a) The court must consider—
(i) the principles mentioned in section 4…”
[14] Section 4 of the Act provides:
“Principles for administering Act
(1) This Act is to be administered under the principle that the safety, protection, and wellbeing of people who fear or experience domestic violence, including children, are paramount.
(2) Subject to subsection (1), this Act is also to be administered under the following principles—
(a) People who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
(b) To the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
(c) Perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;…
(f) A civil response under this Act should operate in conjunction with, not instead of, the criminal law.”
[15] Definitions of terms in the Act are provided in Section 8:
“Meaning of Domestic Violence
(1) Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—
(a) is physically or sexually abusive; or
(b) is emotionally or psychologically abusive; or
(c) is economically abusive; or
(d) is threatening; or
(e) is coercive; or
(f) in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else”.
[16] Section 11 provides:
“Meaning of emotional or psychological abuse
Emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person”.
[17] Section 56 of the Act requires the Court to impose a condition that the Respondent must be of good behaviour towards the Aggrieved and not commit acts of domestic violence if an Order is made. Section 57 of the Act empowers the Court to impose any condition necessary or desirable to protect the Aggrieved. Subsections (2) and (3) provide:
“…The principle of paramount importance to the court must be that the safety, protection and well-being of people who fear or experience domestic violence…are paramount”.
(a) That a relevant relationship exists between the aggrieved and the respondent;(b) That the respondent has committed domestic violence against the aggrieved; and
(c) That the protection order is necessary or desirable to protect the aggrieved from domestic violence.
[67] In considering whether a civil Protection order is necessary or desirable this Court is expressly required by section 37(2)(a)(i) of the Act to have regard to the principle that the “safety, wellbeing and protection of people who fear or experience domestic violence are paramount”. The Court is required to weigh the evidence adduced by all witnesses concerning disputed versions of events and the testimony by an aggrieved and named persons on the impact of domestic violence on their wellbeing.
[68] The case law requires an assessment of the risk of future violence, to exclude the granting of orders where violence is a “mere possibility”. However in doing so the Court is also required to make an assessment of the safety risks to an aggrieved and named persons posed by a respondent in the absence of an Order to give effect to the purpose of the legislation. Domestic Violence courts are courts of therapeutic jurisprudence and provide for both a protective framework for persons who fear and experience domestic violence and provide respondents with access to behaviour change support programs through intervention orders (section 37(2)(a)(ii) of the Act.
[69] Courts are guided in a consideration of domestic violence safety risks by reference to identified high risk factors (precursors to lethality) and behaviours associated with Intimate Partner homicide. The Domestic and Family Violence Death Review and Advisory Board Annual Report 2018-2019 includes as Appendix B “Intimate Partner Homicide Lethality Risk Factors”[1] which identifies behaviours that are high risk. In determining whether an Order is necessary or desirable evidence of several high risk factors is a relevant consideration…
[111] Upon reading the totality of the affidavit of [OMD], it is evident that she is highly distressed at the decision made by [the children] to cease contact with her and she is unable to accept their decision. It is evident that she has a feeling of ill will towards the Aggrieved which persists as she maintains that the Aggrieved has prevented the children having a relationship with her. Having observed her children being cross-examined by her solicitor, Ms Horne, the children were resolute that they did not wish to have contact with their mother and their decision was not a result of influence by their father…
[126] … These factors include a history of domestic violence (previous orders and cross-orders; child custody access disputes – proceedings in the Federal Circuit court for over 5 years to December 2019; the victims’ intuitive sense of fear (Evidence of the Aggrieved and the two Named Persons); minimisation of domestic violence – the Respondent remains insistent that her efforts to contact the Named Persons are not acts of domestic violence despite Parenting Orders that required the children to allow contact with their mother only and findings that contact was harmful to [the daughter] by the Federal Circuit Court family consultant; obsessive behaviour by the Respondent who stands outside their home and enters the property to speak to them and her refusal to accept her children’s decision not to see or contact her….
[132] It was submitted by Ms Horne on behalf of the Respondent, that the children having attained the age of majority that an order was no longer necessary as the Respondent had ceased attendances at or near the Aggrieved’s home in an effort to speak to the children.
[133] I note that during cross-examination of [the children] it was evident that their decision to cease contact with their mother was incomprehensible to the Respondent and that her frustration with the lack of contact prior to [the daughter] admitting the age of majority was ventilated in the Federal Circuit Court where several applications for contraventions were filed by [OMD] against [DMB] (the last 2 being summarily dismissed). I note applications were made after [the daughter] turned 18.
[134] The manner in which these proceedings were conducted is relevant. The Respondent required her children to attend court to be cross-examined. The Respondent is entitled to exercise her rights to a hearing. It is relevant however that the Named persons, her children, were cross-examined about why they refused to see or contact their mother when their testimony about her intrusive exchanges with them at their home were not controverted.
[135] In considering whether an order is necessary or desirable, it is necessary to consider whether the Respondent has attained a level of insight into the impact of intrusive behaviour on the wellbeing of an Aggrieved and Named Persons. [OMD] was resolute that she was taking photographs of birds and bees and flowers, and that she maintained that she was walking her cat in an attempt to explain the numerous attendances outside the Aggrieved’s fence line. The refusal of the Respondent to accept that she loitered near the Aggrieved’s home in an attempt to contact her children subsequent to [her son] attaining the age of majority, which was controverted by several witnesses independent of the parties, and the Aggrieved and Named Persons was concerning in assessing the risk of future violence. The Respondent does not and cannot accept her children’s decision to cease contact with her. Subsequent to [her daughter] attaining the age of 18, it is conceded that the Respondent has not made an attempt to enter the property of the Aggrieved however her visits did not cease until an Order was made. For these reasons I find that the Respondent has a high risk of commission of acts of further domestic violence in the absence of an Order.
[136] I do not accept the submission by the solicitor for the Respondent that the absence of attendances at the Aggrieved’s home by the Respondent since August 2019 demonstrates that an order is not necessary. I accept the submission by the prosecution that the making of a Protection Order which prohibits her attendance within 50 meters of the Aggrieved and Named Persons’ home has resulted in a cessation of the constant harassment of the Aggrieved and Named Persons by the Respondent attending at or near their home incessantly…
[138] I accept the evidence of the Aggrieved and Named Persons that the Respondent’s presence at and outside their home with a camera and taking photographs constitutes domestic violence and a campaign of unauthorised surveillance. The duration of these attendances in my view is concening given the absence of any legitimate reason for contact or visits by the Respondent since [her daughter] moved in with her father some years ago and she did not request contact with her mother. The Respondent’s evidence that she is a keen photographer and her annexed photos of insects and flowers does not explain her ongoing presence outside the Aggrieved’s home. The Respondent remained insistent that she had not committed any act of domestic violence and does not accept her children’s decision not to have contact with her.
[139] I find that the Prosecution has discharged the onus of proof, having adduced compelling and cogent evidence from the Aggrieved, the Named Persons and the independent witnesses, Ms Cox, Ms Blackmur and Mr Szabo (a former neighbour of the Aggrieved and Respondent) that the Respondent has been conducting unauthorised surveillance of the Aggrieved and Named Persons over a protracted period of time and that the cessation of this behaviour was only achieved through the making of a Domestic Violence Protection Order. It is clear that it is extremely difficult her the Respondent to accept the decision by her children to cease contact with her and for her to be respectful of their determination that they do not want to continue a relationship with her at this time.
[140] I note particularly that the Respondent has not undertaken any behaviour change programs that would provide her with insight into the scope of behaviour that constitutes domestic violence or coping strategies to deal with the extremely distressing and long-term cessation of contact with her children. I am satisfied for these reasons that the Respondent has committed acts of domestic violence against the Aggrieved and Named Persons and that they have been adversely affected, emotionally and psychologically by her persistent refusal to respect her children’s determination that they do not want to continue contact with her.
[141] I note that the Police have adduced cogent evidence of a protracted campaign of surveillance of the Aggrieved and the Named Persons and that at this point criminal charges have not been preferred against the Respondent.
[142] I find that it is necessary to make an Order for the protection of the Aggrieved and the Named Persons to enable them to reside at their residence without fear of being surveilled or monitored by their mother, who resides only 7 houses away. I note that taking photographs of the Aggrieved’s property is intrusive and demonstrates concerning, obsessive behaviour that is an accepted high-risk behaviour.
[143] I note that the use of legally available procedures was considered by the Court of Appeal in the decision of Barron v Walsh [2014] WASCA 124, where the Court held that the use of legally available procedures (including applications to the Court and appeal processes) could constitute acts of domestic violence. The history of litigation in the Federal Circuit Court since 2014 until December 2019 is a relevant consideration in determining whether there is a risk of future acts of domestic violence that makes an order necessary…
[146] In my view the inclusion of an exception to the no contact and no approach conditions to enable the Named Persons to provide written consent to their mother, the Respondent would expose the Named Persons to further acts of domestic violence. The Respondent has for 4 and 5 years respectively utilised such a provision in Parenting Orders to harass and monitor her children and harass them for not contacting her.
orders:
(1) The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.(2) That the respondent be of good behaviour towards the named person and not commit associated domestic violence against the person and where a child/children not expose the child to domestic violence.
(3) The respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives.
he respondent may without contravening this order leave her home to enter and exit her property by a route that does not require driving past the aggrieveds home
(4) The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved other than a lawyer by any means whatsoever including telephone, text or internet.
Except when appearing personally before a Court or Tribunal.
(5) The respondent is prohibited from following or remaining or approaching to within 100 metres of the aggrieved when the aggrieved is at any place.
except when appearing personally before a Court or Tribunal.
(6) The respondent is prohibited from contacting or attempting to contact or asking someone else except a lawyer to contact the named persons
(7) The respondent is prohibited from following or remaining or approaching to within 100 metres of the named persons when the named persons are at any place.
Except when appearing personally before a court or tribunal.
[1] https://www.courts.qld.gov.au/courts/coroners-court/review-of-deaths-from-domestic-and-family-violence Appendix B Intimate Partner Homicide Lethality Risk Factors p133.
