Friday, 8 October 2010

Queensland domestic violence defined: case

A recent case in the Queensland District Court has helped define the issue of domestic violence, and shown again why proper thought must be given before consenting to the making of a protection order.

In G v G, the appellant had consented to the making of a protection order. The order was for 5 years, rather than the usual 2 years. The order included that his child be included on the order as a named person. After the order was made, he decided to appeal.

What founded the domestic violence needed to be shown for the order was a history of domestic violence, followed by proven breaches and three events:


  1.  Turning up unannounced at the respondent's home in order to see their child;
  2. Writing a letter to the respondent; and
  3. Turning up at the child's school.
His Honour found that there had not been domestic violence on grounds 2 and 3, and that as there was insufficient evidence as to associated domestic violence towards the child, the child should be removed form the order as a named person, and the length of the order should be reduced from 5 to 2 years.

The decision also emphasises, again, the need to gather sufficient evidence to prepare the matter for trial. A different result may have come about if more witnesses had been called.

The letter

As to the letter, Newton DCJ stated:

In his reasons the Magistrate stated:

“I accept that [the respondent] indicated in evidence-in-chief that the subject letter was intimidating which caused [her] to be personally intimidated and of being scared of [the appellant] and what he would do. I accept the contents of the subject letter, could, in the light of the history between the parties, be considered to be threatening and intimidating in nature. I accept the attendance by [the appellant] at the subject property of [the respondent], unannounced, may be considered intimidating, even if [the respondent] did not personally see [the appellant] on that occasion.

I also accept the ... High School incident may have caused genuine concern for [the respondent] and also the interests of the [named person]...”
The letter referred to in the Magistate’s reasons was a handwritten document extending over some 18 pages. It may fairly be described as somewhat rambling in scope but it is not on its face threatening or abusive. There are, it must be said, references to the possibility of advising Centrelink of the fact that the respondent was living in a de facto relationship and of alleging that the respondent had perjured herself in previous court proceedings. However, the author of the letter clearly indicates that he would not carry out any such course of action.
The letter emphasises the appellant’s love for the named person (the child of the parties). His concern for the welfare of the child is repeated at several points in the document.
Given the appellant’s preparedness to submit to and abide by a domestic and family violence protection order in respect of the respondent (without the inclusion of the named person), it is unnecessary to consider whether the letter may reasonably be understood as containing threatening or harassing material in respect of the respondent. However, on any reading of the document it is, in my view, simply not possible to infer threats, intimidation or harassment in respect of the named person. The Magistrate found that “the letter was clearly improper and can be clearly described as intimidating or threatening towards [the respondent] and, indirectly, against the best interests of [the named person].” This is not the test prescribed by the legislation.

Turning up at the child's school

His Honour found in effect that a person cannot be harassed or intimidated unless they know that they have been harassed or intimidated:

The attendance by the appellant at the child’s school undoubtedly has sinister connotations. The evidence disclosed, however, that the appellant simply went to the school office and did not, in fact, see the child who remained unaware of the presence of the appellant at the office. Even if the child had been aware of the presence of the appellant at the school there was no evidence before the Magistrate that this would have amounted to intimidation or harassment of the child.  The Magistrate in his reasons accepted that the appellant “is very passionate in relation to the interests of [the named person]”. It was also noted by the Magistrate that the proceedings before him were directly related to pending proceedings in the Family Court. Both these matters are not without relevance in the context of this appeal.
In his reasons the Magistrate indicated that he accepted that the High School incident “may have caused genuine concern for [the respondent] and also the interests of [the child]”. It is not clear how this incident may be said to have affected the interests of the child. But in any event I am unable to conclude that the appellant’s presence at the school office could have amounted to intimidation or harassment of the child in circumstances where the child was unaware of the appellant’s presence at the office. I note in this regard the absence of any evidence whatsoever from any of the administrative staff present at the office on the occasion in question.

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