DES v CJR (No 2) [2023] QDC 209

DISTRICT COURT OF QUEENSLAND CITATION: DES v CJR (No 2) [2023] QDC 209 PARTIES: DES (Appellant) v CJR (Respondent) FILE NO: 1/23 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Bundaberg DELIVERED ON: 21 November 2023 DELIVERED AT: Brisbane HEARING DATE: 16 October 2023 JUDGE: Loury KC DCJ ORDERS: The appeal is dismissed CATCHWORDS: DOMESTIC VIOLENCE – APPEAL AND REHEARING – ss 91, 92 Domestic and Family Violence Protection Act 2012 - where the appellant’s application to vary a protection order was refused by a Magistrate – where it is unclear whether the Magistrate had regard to the findings of the court that made the original order – where there is a possibility of an error of law – where a rehearing of the evidence is conducted – whether it remained necessary and desirable for the protection order to continue to ensure the safety of the aggrieved. LEGISLATION: Domestic and Family Violence Protection Act 2012 ss 86, 91, 92(2)(3), 168, 169 CASES: Fox v Percy (2003) 214 CLR 188 HBY v WBI & Anor [2020] QDC 81 Robinson Helicopter v McDermott (2016) 90 ALJR 679 S v R [2022] QDC 154 COUNSEL / SOLICITORS: The appellant appeared self-represented The respondent appeared self-represented -- 1 of 13 -- 2 Background [1] On 12 February 2020, a domestic violence order was granted naming the appellant as the respondent to the order. The respondent to this appeal is the aggrieved. For ease of reference, I will refer throughout this judgement to the appellant as the respondent, and the respondent to the appeal as the aggrieved. [2] The order contained the following conditions: (1) The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved. (2) The respondent must be of good behaviour towards the child, must not commit associated domestic violence against the child and must not expose the child to domestic violence. (3) The respondent is prohibited from entering, attempting to enter or approaching to within 50 metres of premises where the aggrieved lives, works or frequents. Except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court or when contact authorised by a representative of the Department of Child Safety, Youth and Woman with a child. (4) The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved by any means whatsoever including telephone, text or internet. Except when appearing personally before a court or tribunal; Except when attending an agreed conference, counselling or mediation; Except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with a court order. (5) The respondent is prohibited from following or remaining or approaching to within 50 metres of the aggrieved when the aggrieved is at any place. Except when appearing personally before a court or tribunal; Except when attending an agreed conference, counselling or mediation; Except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with a court order. [3] The respondent filed an application to vary the protection order on 13 April 2021. On 19 October 2022, that application for a variation was heard. The respondent and aggrieved each gave evidence. The respondent called NS to give evidence. Reasons for the decision to refuse the application were given on 9 November 2022.1 [4] The respondent sought, by her application, that the domestic violence order made on 12 February 2020 be revoked. There is no provision in the Domestic and Family 1 This is the second occasion on which this variation application has been determined. See S v R [2022] QDC 154 in relation to the respondent’s previous successful appeal. -- 2 of 13 -- 3 Violence Protection Act 2012 (‘DFVP Act’) for an application to be made for a domestic violence order to be revoked. Section 86 provides for a variation application to be made to vary a condition of the order; the duration of the order; or the persons named in the order. The learned Magistrate who heard the application dealt with it as an application to vary (shorten) the duration of the order. [5] The respondent (mother) and aggrieved (father) have one child, D. A final parenting order was made in the Federal Circuit Court on 27 February 2018 granting sole parental responsibility to the aggrieved. There are orders relating to the respondent’s contact with D. Consent orders with respect to the property settlement were made on 5 August 2020. The Magistrate’s reasons [6] The learned Magistrate considered the appropriate test which was whether the protection order remained necessary or desirable. He considered the contents of the affidavits filed by each of the parties; and the evidence that the respondent, aggrieved and the witness, NS, gave. He considered that the aggrieved presented as a reasonable person with a degree of underlying stress or distress which he kept under control. He considered that the respondent presented in a calmer way. Each of the aggrieved and respondent, he said, maintained a reasonable level of civility towards the other when cross-examining. He considered that there was nothing in the demeanour of each of the parties that would allow him to made findings about the contested issues. [7] The learned Magistrate said that he found the respondent credible in the sense that she did not appear to be lying to the court. She appeared to be genuine in her belief that she was the one who had been wronged and that her own behaviour, where it fell short of being good behaviour, was made necessary by the actions of the aggrieved. The learned Magistrate said that he found the aggrieved to be credible in terms of being able to rely on what he said as being objectively verifiable. [8] The learned Magistrate found that the respondent had committed acts of domestic violence, even in the face of the existing order, although they were not serious acts of domestic violence. He also considered that the aggrieved was more than usually sensitive due to past trauma and mental health challenges. This sensitivity, he said, was known to the respondent. He took into account that the respondent was desirous of the order remaining in place. He considered that the protection order remained desirable to protect the aggrieved from domestic violence. The DFVP Act [9] The nature of an appeal under the DFVP Act was considered in HBY v WBI & Anor2 by Moynihan KC DCJ. After setting out the relevant provisions in section 168 and 169 of the Act, he said: An appeal under s 168(1) of the Act is by way of rehearing. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for further evidence to be relied on. The exercise of the discretion under s 2 [2020] QDC 81 -- 3 of 13 -- 4 168(2) does not convert the rehearing into a hearing de novo. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of the surrounding provisions relating to the appeal and the Act as a whole including its main objects (see s3), the interpretation that best achieves the purpose of the Act is that the discretion in s 168(2) is engaged when good reason is shown for there to be an exception made to the rule under s 168(1). A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include “that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.” (references omitted) [10] Section 91 of the DFVP Act provides for the circumstances in which a court may vary a domestic violence order. Subsection (2) states: Before it varies a domestic violence order, the court must consider – (a) The grounds set out in the application for the protection order; and (b) The findings of the court that made the domestic violence order. [11] Section 92(2) provides for the matters which the decision-maker must take into account in considering whether to make the variation. It includes: (a) Any expressed wishes of the aggrieved or named person; and (b) Any current contact between the aggrieved or named person and the respondent; and (c) Whether any pressure has been applied, or threat has been made, to the aggrieved or named person by the respondent or someone else for the respondent; and (d) The principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount; and (e) Any other relevant mater. [12] Subsection (3) provides that the court may vary the order only if the court considers: (a) The safety, protection or wellbeing of the aggrieved or the named person would not be adversely affected by the variation; and (b) If the variation is to reduce the duration of the order – there are reasons for doing so. Grounds of appeal [13] The grounds of the respondent’s appeal can be conveniently stated as follows: 1. The learned Magistrate erred in his findings as to the incident which occurred on 17 September 2021; 2. The learned Magistrate erred in finding that the aggrieved’s mental health issues meant that he was in need of protection from the respondent; 3. The learned Magistrate erred in dismissing the application by finding that the aggrieved’s clients were in need of protection from the respondent; 4. The learned Magistrate misinterpreted the respondent’s evidence and revealed himself as having a flawed mentality that a woman is a perpetrator -- 4 of 13 -- 5 of domestic violence when she does not submit to the abusive behaviour of a man; 5. The hearing was unfair. 6. There was a sixth ground relating to the appellant’s conviction for contravening the protection order. However, the appellant appropriately did not persist with that ground after the filing of the outline of submissions by the Queensland Police Service which related to that ground alone. Consideration [14] Whilst the learned Magistrate gave extensive reasons for his decision to refuse to vary the duration of the protection order, it is not clear that he had regard to the findings of the court that made the original protection order as required by s91(2)(b). The transcript of those findings was not in evidence. It is unclear to me if there had been reasons endorsed on the court file to which regard was had. [15] I had ordered the transcript of the hearing for the protection order on 20 February 2020, and the reasons for the making of the protection order. Each of the respondent and the aggrieved were provided with a transcript of the hearing and the decision and were invited to provide further supplementary written submissions within seven days of receipt, should they wish to do so. Both parties filed a supplementary submission although the respondent’s submission was filed late and only after the aggrieved had already filed his submission. [16] The transcript of the hearing of 20 February 2020 reveals that the respondent did not attend at court. The aggrieved was represented by a legal practitioner. He sought a protection order in terms of the temporary protection order that was then in place. The reasons of the Magistrate (“original Magistrate”) who made the protection order on 12 February 2020 state that having read the material, he was satisfied that it was necessary and desirable that an order be made. He was satisfied that an act of domestic violence had taken place and that a relevant relationship existed. He made an order in the same terms as the temporary protection order which was to continue for a period of five years. [17] It is clear from a reading of the transcript of the hearing on 19 October 2022 for a variation of the order that the learned Magistrate had read the file, including all affidavits filed. He provided an overview of the file which revealed that he had regard to the grounds for the making of the protection order. The grounds for the making of the protection order revealed the following: the application was filed on 29 November 2019; the appellant sought to exclude the respondent from his residence and sought a no approach condition; the appellant was sending threatening messages to the aggrieved, threatening to have him charged which caused him distress; there was verbal abuse of him on 8 November 2019; that he wanted to feel safe in public; and, that he had to change routines and avoid social events. [18] Whilst it is clear that the learned Magistrate had regard to the grounds of the original application, it is difficult to determine whether he had regard to the findings of the original Magistrate who made the protection order. The requirement to have regard to those findings is a requirement under the DFVP Act, and a failure to have regard to them is an error of law. I raised with the parties the possibility of this being an error -- 5 of 13 -- 6 and my dealing with the matter by way of rehearing once the transcript of the findings was available. The respondent and aggrieved agreed to that course. No submissions were made that the appeal ought to be conducted afresh in whole or in part. Having now reviewed the findings of the original Magistrate, I am of the view that I am in a position to conduct a rehearing on the evidence before the learned Magistrate, together with the findings of the original Magistrate. [19] In conducting a rehearing, I bear in mind that I have not had the opportunity to see and hear the witnesses myself and therefore, have not had the opportunity to form my own view as to their credibility. I must pay deference to the learned Magistrates findings of credit.3 I must not interfere with the Magistrate’s findings of fact which are likely to have been affected by impressions about the credibility and reliability of witnesses unless those findings are “glaringly improbable” or “contrary to compelling inferences.”4 Ground 1 - Incident on 17 September 2021 [20] The respondent filed an affidavit in which she set out a version of events that took place at D’s school on Friday, 17 September 2021. This was the last day of the school term. The parenting order dated 12 May 2021, which was in evidence, provided that with respect to school holidays: 1. The child will spend time with the mother for the first half of each [school holiday] period in 2020, and each alternate year thereafter and the second half of each period in 2019 and each alternate year thereafter; and 2. The child will spend time with the father for the second half of each period in 2020 and each alternate year thereafter and the first half of each period in 2019 and each alternate year thereafter. [21] The terms of the parenting order meant that in the year 2021 D was to spend the first half of each school holiday period with the aggrieved. The respondent’s affidavit asserted that she went to the school to collect D, as was the routine on Fridays where D would spend the weekend with the respondent. The aggrieved also attended the school to collect D. The respondent described the aggrieved as being in a “manic state” at a time (3 pm) when “alcohol is a factor”. She asserted that he was screaming out in a “childlike spitty lisp”, D’s name repeatedly. She alleges that D froze, began crying and shaking and expressing concern that the aggrieved would hurt her and the respondent. She asserts that the aggrieved was screaming repeatedly whilst towering above both of them, “Don’t you touch her. Don’t you touch her.” She says that the aggrieved ripped D’s bag out of her (the respondent’s) hand and repeatedly screamed “Look what you’ve done”. [22] The aggrieved’s account of this event is contained in a police statement annexed to his affidavit. He states that he drove to the school to pick up D. As he was sitting in his car waiting for her, he saw the respondent walk inside the school grounds. He saw the respondent walking towards her car with D. The aggrieved approached the respondent and D and told D that it was time to go. The respondent said “She’s not going with you, I’ve got custody of [D] for that night”. The respondent kept walking towards her car with a hand on D’s jumper cuff. The aggrieved said “Don’t touch 3 Fox v Percy (2003) 214 CLR 188, 127 [25] 4 Robinson Helicopter v McDermott (2016) 90 ALJR 679 -- 6 of 13 -- 7 her" to the respondent. She let go of D and gave the aggrieved a bag. He shepherded D towards his car. The respondent said “Your taking [D] to a junkies house.” She called the aggrieved a criminal. NS was walking towards the aggrieved and D at this time. [23] NS (the school principal) was called by the respondent to give evidence as to this event. NS said that she saw the respondent leading D outside the school grounds. Once they were outside the school gate, she saw the aggrieved. Each of the aggrieved and the respondent wanted to take D home. During the course of that event, D’s bag was ripped. The aggrieved put his arm around D and guided her away. [24] NS was of the understanding that the aggrieved was to pick up D on this date. NS gave evidence that a text message was sent to the school by the respondent. It read “Hey, [NS]. Just checking D’s at school today, so I will pick her up after school. Should she be present and that changes before 3 pm could you let me know with a quick text confirming her removal. Thanks [respondent]”. A reply was sent that D was at school. [25] The respondent sent a further text message to the school. It read: “Thanks [NS]. I sent you an email, but in case you have not seen it as it is 11 am on my Friday and I have not yet received obligatory communication from [aggrieved] nor his lawyer that he wishes to change the order and the time of when our time taken will be replaced. I am to go ahead with today as if it was any other Friday. You don’t need to do or say anything if he comes and takes it early as we are all in minimising harm mode. Just that test of time covers me doing what I have to do, while not in any way incriminating the most awesome principal teacher a bunch of kids could ever have. That is the way I’m doing things.” [26] NS agreed that on the last day of term 1 and term 2, the aggrieved had attended school early to take D home. As indicated from the parenting order, D was to spend the first half of each of the school holiday period with the aggrieved in the year 2021. [27] NS said of the incident on 17 September 2021 that it did not appear that the aggrieved and respondent were arguing, but that she could see that there was tension or upset apparent. NS sent some text messages to the respondent after this event, out of concern for D. She said that she could see that D was upset when her bag ripped. She was asked if she herself thought that she was being manipulated in some way. She said that she felt more manipulated by the respondent than the aggrieved. She had taken legal advice and written to both the aggrieved and respondent to tell them effectively to leave the school out of their dispute. [28] The learned Magistrate said that the evidence of NS tended to support the aggrieved’s version of the lead up to the incident at the school. The messages exhibited between the aggrieved and NS also support the aggrieved’s account of the lead up to this event. The aggrieved had, in the past, engaged in a practice of picking up D early from school on certain days in case the respondent should attend. There had been communications earlier in the day of the incident in which the respondent had given an assurance that she would not try to take the child from the school, and so the aggrieved had told NS that he would attend at the normal time and not early. The learned Magistrate said that NS did not see the whole of the event, so he made no -- 7 of 13 -- 8 finding as to whose behaviour was more appropriate in the heat of the moment. However, he noted that NS’s opinion was that the respondent was the more manipulative of the two of them. [29] The respondent’s account of this incident in her affidavit is not supported by the account of NS. There is nothing glaringly improbable in the account of NS. It was open to accept her evidence, given she was the school principal. She was called by the respondent and clearly was not biased towards either party. Her only concern was for the safety of the children, including D, under her care. [30] There is no error in the learned Magistrate’s findings about this incident. [31] The respondent, in her outline, alleges that NS and the aggrieved created “false testimony” to cover up their collective misconduct on 17 September 2021. The respondent is the person who called NS to give evidence. At no time did she suggest or make any submission that NS had fabricated her testimony. There is no evidence at all that NS was involved in fabricating her testimony. This is a scandalous and unsubstantiated allegation to make about NS. Ground 2 – Error in considering the aggrieved’s “mental issues” [32] The learned Magistrate took into account that the aggrieved was particularly sensitive due to past trauma and mental health challenges. He did so for the purpose of assessing the objective seriousness of the respondent’s conduct. He considered that whilst the respondent sent some messages which the aggrieved took to be offensive, she did not intend for them to be an insult. That was a statement which favoured the respondent as the learned Magistrate did not take her messages to have been sent in contravention of the protection order, despite the aggrieved’s sense of them. [33] The learned Magistrate did not make any finding that the aggrieved’s mental health conditions meant that he was in need of protection from the aggrieved. [34] There is nothing in this ground of appeal. Ground 3 – Error in finding the aggrieved’s clients needed protection [35] The respondent argues that the learned Magistrate referred to the aggrieved’s work as a disabled carer and of the need to protect his clients as a justification for dismissing the respondent’s application. [36] The learned Magistrate did not take into account any concerns for the aggrieved’s clients in making his decision to refuse the application. He said that he considered that the protection order remained desirable to protect the aggrieved from domestic violence. [37] There is nothing in this ground of appeal. Ground 4 – Error in misinterpreting evidence [38] The respondent argues that the learned Magistrate used the respondent’s answer to a question, that she would not change, as justification for his dismissal of the application. She argues that the learned Magistrate’s erroneous interpretation of her -- 8 of 13 -- 9 evidence implies that he had a mentality that “if a woman will not submit to a man’s abuse, she is the DV Perpetrator”. [39] What the learned Magistrate said was as follows: “[The respondent] was asked [by the aggrieved] for the sake of the child had she done any courses. She said “I don’t have to. You’re giving false testimony.” She was asked “You’re not going to change?”. Her answer did not demur to that proposition. Now, the respondent was disadvantaged by a tendency to make long series of contestable propositions in the form of questions, and attempts by me to limit questions to single propositions for the most part didn’t succeed. The tenor of the cross-examination was frequently along the lines of putting to the aggrieved that in fact he threw provocative or antagonistic communications, [and] was responsible for her responses which she was virtually obliged to give. That appeared to be, at least prima facie, to suggest an attempt to shift responsibility and possibly showed a lack of insight.” [40] The learned Magistrate’s finding on this point was well open to him. Much of the respondent’s evidence and her communications with the aggrieved do suggest a lack of insight into her own conduct. There is nothing in this statement that at all suggests the learned Magistrate took a view that if a woman does not submit to a man’s abuse, she is a perpetrator of domestic violence. Such a suggestion is offensive, scandalous and without any foundation. Ground 5 – Unfairness [41] The appellant contends that a number of features operated unfairly against her. She contends she was treated by the court to an “awful, overwhelming experience of double-court system abuse and [the aggrieved’s] violence/mania at the time”. The features said to support that contention are: (a) That the legislation no longer provides for a protection order to be revoked; (b) that she did not appeal the original decision to make the protection order; and (c) that it was not the aggrieved who sought the contact restrictions. [42] It is difficult to understand what the respondent argument is. That the legislature determined to remove the possibility of a variation resulting in a revocation of the order might have been unfair to her if the learned Magistrate had determined that, if he had the power, he would have revoked the order. He did not so determine. The fact that the legislature chose to change the legislation did not mean that the respondent was treated unfairly by the court. [43] It is true that the respondent did not appeal the making of the protection order. That was her decision. Nothing turns on that decision. She brought an application for a variation to the order that was made. That was the application that was considered by the learned Magistrate. The aggrieved was aware of the conditions that were made with respect to the original protection order. Irrespective of whether they were conditions sought by him, they were the conditions of the order determined by the original Magistrate. The aggrieved gave evidence that he wanted the conditions to remain. -- 9 of 13 -- 10 [44] None of these features either individually or cumulatively give rise to a suggestion that the hearing was unfair. Rehearing [45] The respondent denied having committed any act of domestic violence. The grounds for the original application made clear that there were acts of domestic violence and the learned Magistrate who made the original order found that that to be so. They were not acts of physical violence, but the messages the respondent sent amounted to emotional or psychological abuse under the DFVP Act.5 [46] Subsequent to the making of the protection order, the respondent was convicted on 11 January 2021 by a Magistrate of contravening the domestic violence order. The contravention occurred between 9 December 2019 and 12 January 2020. The respondent in her evidence did not accept that she had contravened the order and said that she had not been convicted of such an offence. Material filed by the Queensland Police Service representative demonstrates that the respondent was convicted of a contravention of the domestic violence order in January 2021. [47] There was nothing that the respondent had done by way of courses to demonstrate that she had improved her behaviour from when the protection order was made. The respondent selectively redacted the content of messages she placed before the court in order to change the meaning of the messages. Indeed, she sent such a redacted message to a police officer in circumstances where she knew that her redactions had completely changed the meaning of the message. [48] The respondent said that she informed a police officer that Judge Rackemann, who determined the earlier appeal, had said that the aggrieved was using the protection order as a “sword”. In fact, what Judge Rackemann said was “The primary complaint of the [respondent] in relation to the ongoing effect of the order is that it is, she says, being misused by the respondent as, in effect, a sword, to enable his coercive control, rather than as a protective shield”. Clearly enough, Judge Rackemann was referring to the respondent’s argument and not making a finding as to the intention of the aggrieved at all. The respondent referred to Judge Rackemann’s reasons for judgement as a mediation where he was talking to the aggrieved and respondent and trying to work through the issues. The respondent has completely misunderstood the role of Judge Rackemann. The information she provided the police officer was, at best, misconceived by her. [49] The aggrieved exhibited to his affidavit a number of emails and text messages that passed between himself and the respondent. A large number of them relate to messages sent and received prior to the making of the protection order. There was much cross-examination that focused upon these messages. Little turns on those messages, in my view, because the real issue is whether the safety, protection or wellbeing of the aggrieved would not be adversely affected by a variation to the order reducing the duration of the order. Of greater significance to that issue are the messages sent subsequent to the making of the protection order. Some of those messages do, in my view, amount to contraventions of the protection order as they are not about the child, or they are dressed up to make it appear as if the message is about the child, however it extends well beyond that. An example is the respondent’s 5 s8(1)(b) -- 10 of 13 -- 11 response to a message sent by the aggrieved to her on 19 April 2020 which said “Are you set up to home school [D] tomorrow if not can you drop her home at 9 am.” The respondent’s response was as follows “Have you ever thanked me for all I did for you? Let’s stop the control games please – texts are only meant to be simple planning things. No not 9 am – the changeover time is 3 pm. If you have any materials we can work something out where I pick up them from 789 letterbox. Otherwise I’ll in with [NS]. Thanks”. [50] There are messages in May 2020 querying where the aggrieved was and whether he was driving a particular car, or his wife was. The aggrieved’s responses to these messages are to demand the respondent stop messaging him. These messages are not about the child and contravene the protection order. [51] There are further messages in May 2020 where, in the context of questioning the aggrieved as to where to pick up D, she tells him that he has a personality trait of not being able to admit that he is wrong. She tells him that he has made false statements to the “Domestic Violence Court” and the “Family Court”. She alleges that she and the child have to deal with “warmongering behaviour” from the aggrieved and his wife. She attempts to justify her messages by using words such as “in no way is this text a threat or violation of a falsely/wrongly attained DVO” when that is precisely what her messages amount to. [52] In June 2020, the respondent messaged the aggrieved and accused him of making a profit on D by claiming the family tax benefit. She said “You’re holding [D] hostage too much and it’s time to loosen your hold on her ok. She’s only going to rebuke you harder in the future if you don’t settle down now.” [53] In August 2020, the respondent messaged the aggrieved and said “you deal ICE now”. [54] In February 2021, the respondent messaged the aggrieved and said “your refusal to finally stop denying [D] and I our fair time together is because you have the mental syndrome Parental Alienation behaviour is.” [55] In February 2021, the aggrieved messaged the respondent with a happy birthday message for D and asked if she could pass the message on. The respondent suggested in response that the aggrieved was narcissistic for having asked to do so such a thing. [56] In August 2021 the respondent messaged the aggrieved “Sounds like all the court stuff is making you play your normal sick games. This is what you do EVERY time things aren’t going your way. It’s part of your jealousy as well. [D] deserves a normal nice father. Are you ever going to be that way. You’re almost an old man now. Maybe time to finally change.” [57] On 23 September 2021 the respondent messaged a third party and said “Just so it’s real clear and next time [the aggrieved] arranges [D] to stay with you can check – by a Federal Court Order, [D] was to be with me 2nite until 3 pm tomorrow – and we are coming up to a Court Case where [the aggrieved] is being “tried” for Child Abuse.” [58] On 22 May 2022 the respondent emailed the aggrieved “pathological lying isn’t “name calling”. Can you try to be 48 instead of 14 at this point. Its standard terminology that applies to the behaviour you perpetrate. You cannot stop yourself telling lies. Otherwise you would have by now.” -- 11 of 13 -- 12 [59] These messages are examples of the continuous communication coming from the respondent which is in contravention of the domestic violence order. [60] During her evidence, the respondent said that the aggrieved was coming into her house every day in a drunken state and terrifying herself and D. Despite stating that she had evidence at the time to confirm that statement, she was unable to produce anything. The respondent alleged that the aggrieved had doctored some of the emails that were exhibited to his affidavit. When pressed, the aggrieved could not produce the original of the emails sent to her which might demonstrate that the emails had been doctored. [61] The respondent, in my view, was evasive in her answers. She took every opportunity to paint the aggrieved as a coercively controlling man. She produced no evidence at all or called any witnesses that might have provided some support for her assertions. She asserted, without any foundation, that the aggrieved was the cause of D’s stress and anxiety; that D was fearful of him; and that D knew that he could “snap her like a twig”. She alleged that the Federal Circuit Court covered up the abuse of D by the aggrieved. She alleged that the aggrieved had perjured himself but again, produced no evidence to support that assertion. [62] The respondent asserted in her evidence that the aggrieved had spread rumours throughout their small community about her; that the court order had been wrongfully made; and, that a school principal had breached all codes of conduct to help the aggrieved alienate D from her. When questioned by the learned Magistrate as to whether she had filed any material to support those assertions, she said that the material was too voluminous. [63] In her outline of submissions, the respondent has, amongst other adjectives, described the aggrieved as “abusive, cruel, cold, violent, control-addicted, a pathological liar, lacking empathy, jealous, unable to understand adult concepts, prone to explosive anger, believing himself to be above the law and obsessed with manipulating others”. She goes so far as to state that she and D need to be protected from the aggrieved due to his mental condition. These comments are made without any real foundation other than the respondent’s own assertions, and in themselves reinforce to my mind the need for the protection order to remain. [64] A telling piece of evidence is a handwritten note of D dated 29 November 2020. She says “Since the week Mum said she was going to pick me up from school when she is not meant to, she also said she was going to video me crying and telling Dad when he picked me up from school and saying, “Dad I need to be with Mum this week”. And she basically said if I didn’t it was because I didn’t love her and just use her. But I do love her and I do not use her. I just don’t want to do something I don’t want to do. But I have had to take really deep breaths since then and I feel like it is because of all the stress I have had.” This note to my mind demonstrates that the respondent is willing to manipulate her own daughter in order to defy court orders. She does so despite the potential harm that such conduct does to her own daughter. [65] Having regard to the findings of the original Magistrate who made the protection order; the grounds for making that order and the evidence before the learned Magistrate, I am satisfied on balance that it remained necessary and desirable for the protection order to continue to ensure the safety, protection and wellbeing of the aggrieved. -- 12 of 13 -- 13 [66] The appeal is dismissed. -- 13 of 13 --