AE by his next friend EE and TL by her next friend EE v WE [2008] ACTSC 32 (2 April 2008)

Last Updated: 14 December 2010

AE BY HIS NEXT FRIEND EE AND TL BY HER NEXT FRIEND EE v WE

[2008] ACTSC 32 (2 April 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 110 of 2007

Judge: Refshauge J

Supreme Court of the ACT

Date: 2 April 2008

IN THE SUPREME COURT OF THE )

) No. SCA 110 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: AE BY HIS NEXT FRIEND EE

AND: TL BY HER NEXT FRIEND EE

Appellants

AND: WE

Respondent

ORDER

Judge: Refshauge J

Date: 2 April 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The next friend of the appellants, whom I will call EE, is the father of the appellants who sought an interim and final protection order against the respondent in the ACT Magistrates Court under the Domestic Violence and Protection Orders Act 2001.

2. The application was, as is required, originally made to the Magistrates Court by an application dated 23 November 2007, seeking orders that the respondent be:

(a) prohibited from being on premises where the aggrieved person lives; (c) being on premises where the aggrieved person is likely to be, namely school premises; (e) being within a particular distance from the aggrieved person, namely 50 metres EXCEPT in the following circumstances: ... at Court ... or Other community gathering/invitation; (f) contacting the aggrieved person, EXCEPT in the following circumstances, [and none were specified]; (g) harassing, threatening or intimidating the aggrieved person; (i) doing anything mentioned in paragraphs (a) to (h) above in relation to a child or children of the aggrieved person, [which is a bit odd since the aggrieved persons are children of themselves]; and (j) causing someone else to do something mentioned” in the above paragraphs.

3. The application was based on allegations that the respondent, it was believed by EE, had:

Caused personal injury and/or damaged property in that about 8 September 2007, had drugged AE and TL with food at 16/1-5 Goldman Street, Bruce, ACT, at the instant of their sick mother

(with a reference to a report to Belconnen Police Station of the incident),

and

threatened to cause personal injury and/or damage to property in that threatened (sic) LJ in order that she will not inform me [EE], 8/9/07.

4. There is some uncertainty, since EE, who appears as the next friend of the applicants for those orders, who were the children AE and TL, is also described in the application form as the applicant. But I take no point about that.

5. The two applications, where in each case, the aggrieved persons were the children, came on for hearing before Magistrate Dingwall on 28 November 2007. After hearing submissions from EE and evidence from his former wife, the mother of his children, Magistrate Dingwall dismissed the application for both interim relief and final orders. EE, purportedly on behalf of the children, has appealed to this court under s 79 of the Domestic Violence and Protection Orders Act 2001, which gives him that right.

6. Under s 81 of that Act, it is provided that:

In an appeal, the Supreme Court must consider the evidence given in the proceeding from which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.

7. EE swore a very large additional affidavit of some 105 paragraphs, over 19 pages, in support of his appeal. I perused it before the commencement of the hearing. It ranged widely over matters, not apparently relevant to the appeal, and I refused to admit it, though I allowed EE considerable latitude in references to matters in it, in submissions and in the evidence given. EE also requested that LJ give evidence, and with the consent of the respondent, I allowed that.

8. She gave evidence over the telephone and, although I may not have expressed it to be so, I gave leave for that to be done under s 32 of the Evidence (Miscellaneous Provisions) Act 1991. The two real issues in this case arose over an incident in early September. In the application, it was said to have occurred on 8 September 2007, but the respondent had, by reference to a text message, stated it to be on 6 September 2007. I am unable to say which is correct, but the difference is immaterial and makes no difference to my decision.

9. What is alleged to have occurred is set out conveniently in the evidence of LJ to the learned Magistrate. She said:

WE had come to visit for lunch and brought some Chinese food and myself and my daughter had the Chinese food and my son was at school. I can’t actually recall the date, so I‘ll have to look that up if you need that. And there was some left over and my son had some at teatime. A bit later in the evening, my son seemed overly excitable and I was trying to trace back what he’d had during the day and why he was - seemed a bit hyperactive and a bit strange and - because it was out of character for him and I guess I panicked and I thought “What has he had that’s unusual?”, and he had the Chinese though and I thought, “Maybe something was in the food” and, yes, very stupidly, I panicked and I sent that message to EE.

Question: What does the message say?---It says “Would WE drug us?”

Sorry?---Sorry, very stupid, it says “Would WE drug us?” It doesn’t say that he did, I was just casting about stupidly I think. And yes, feeling scared. And later one of my friends reminded me that my son had had a similar reaction to Chinese food on a different occasion and it was probably just the food. That was my stupidity.”

10. In evidence before me, LJ adhered to the description that she had given, in that evidence, and made it clear that her son had made a full recovery but was never really ill, at least not so as to need medical treatment. EE says that the question “Would WE drug us?” shows that the respondent must have drugged the son.

11. There is no evidence of any problems with the son that would justify that suggestion. Indeed, a whole range of possibilities might occur, including that the Chinese food, having been left over for lunch, and perhaps not put away, or treated otherwise carefully, may have gone off between the time when LJ and her daughter ate it at lunch time and when the son ate it after coming home from school.

12. EE also relies on the fact that the respondent is alleged to have threatened his former wife, that is EE’s former wife, if she mentioned to EE that the respondent had visited. In an email tendered by consent, EE claimed that his former wife “admitted in court that the respondent told her to tell lies about his presence”. The evidence that LJ actually gave is quite different. She said in answer to the following question:

Your Honour, when I arrived here you told me that WE threatened that you should not mention to me your relationship with him because it is not your duty to do that and it is ...

(and then the tape is inaudible)

... like that, is that not what you told me?---He has never threatened me in any way. What he said was, it was odd that I would even mention to you that I had seen him.

13. The real genesis of the matter seems to have come from the message that LJ sent to EE while the latter was in Nigeria on the day of the incident in early September 2007. She said, “Would WE drug us?” One can understand how an anxious parent, especially one many thousands of miles away, would have reacted to this with concern. In evidence before the Magistrate, LJ acknowledged that it was a stupid message and after sensible thought and a friend’s suggestion, recognised that it must have been only a reaction to the Chinese food. She said in answer to the question:

When you decided to send the message, what did you consider - did you consider that AE...

(that is the son)

... to be at risk before you sent the message to me?---At risk of what?

At risk of - - -?---I was worried that he’d taken something that was making him behave differently, which was probably MSG or something.

14. She was then asked:

No, I think the question is, were you, at that stage, when you sent the SMS message, fearful that Mr WE might harm your children?---I am trying to remember ...

Or had harmed, or indeed had harmed one of the children?---I’m trying to remember clearly to make sure I’m properly honest in my response. I don’t think I was. I was - I think I was probably having a bit of panic and obviously, being rather foolish, but I don’t think he would genuinely hurt anybody.

15. The respondent denied drugging the son, denied threatening LJ and said his only concern about mention of his presence was a privacy one. EE also relied on the fact that the child was not taken to hospital. Before the Magistrate, however, LJ explained this. She said in answer to the question:

And did you take him to the hospital?---No, because he didn’t - he wasn’t vomiting, he didn’t have a temperature, he didn’t actually have anything other than being a bit excitable and he calmed down perfectly fine and went to bed and there was not anything else after that.

16. She adhered to that description and acknowledged that there were no long term effects of the incident at all, so far as her son was concerned. EE also referred to some earlier messages from his former wife, on 24 March 2007, when she sent him a message which says: “If U love us, get us out of here. Their wickedness knows no bounds, they are destroying your children”.

17. Again, taken out of context, this could confirm and strengthen the concerns that EE had in relation to his children. LJ, in evidence before me, however, said that this related to problems of a bullying and similar nature that she was having in her workplace and had nothing to do with these incidents and, in particular, nothing to do with the respondent. She was not challenged in this regard. It seems to me that those messages were entirely irrelevant to the matter that I have to decide.

18. The respondent gave evidence of extensive dealing with EE, initially as friends, but that their relationship soured and he tendered some emails that showed EE making quite inaccurate and inappropriate allegations against him.

19. For example, he had suggested that the respondent and LJ had refused to take the son to hospital because that would disclose the respondent’s name but that clearly was never suggested by anyone. It was not put in cross-examination by EE to LJ and was denied by the respondent.

20. An email from LJ in response to an email which was said to be a warning from EE because of the appeal proceedings was also tendered. In that email LJ said:

“Since EE has sent you this email ...”

(that is the email with a warning about these Supreme Court proceedings)

... I must advise you all that EE took allegations that AE was drugged to the Magistrates Court in the ACT, and the matter was dismissed as there was no evidence that any such event occurred.

It is pertinent to note that the magistrate in dismissing that case reminded EE that he needs to accept that his relationship (marriage to me) is over, and also pointed out during proceedings that my character is not in question. I would like to remind EE that abusing his position as a lawyer and bringing frivolous (i.e. unfounded) matters before a court cannot do anyone any good.

21. In the material before me, it also became clear that there were three incidents where the son had apparent reaction to food. The first was an occasion unspecified, referred to and unchallenged by a friend of LJ where the son had eaten Chinese food at an earlier time, apparently prior to the contact with the respondent at any time and had reacted in the same way.

22. Then there was the incident in early September 2007. Thirdly, there was an incident in Tasmania in January. Although the evidence is unclear as to what kind of food the son was taking or whether there was drink, it was clear that there was a similar reaction which was a passing, transitory phase where basically the son became excitable and perhaps a little strange, but then went to bed quite satisfactorily and showed no long-term effects.

23. What was also significant that this was an occasion where the respondent was nowhere in relation to the son and had no involvement with the matter. Under the Domestic Violence and Protection Orders Act 2001, in order for an order to be made for personal protection, s 40(1) provides that:

The Magistrates Court may make a final order (other than a workplace order) on application if satisfied that the respondent has ...

(b) engaged in personal violence towards the aggrieved person and may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.

24. Personal violence is defined in s 10 of the Act as:

... a person’s conduct is personal violence if the person –

(a) causes personal injury to someone, (the aggrieved person) or damage to the aggrieved person’s property, or

(b) threatens to cause personal injury to the aggrieved person or damage to the aggrieved person’s property, or

(c) is harassing or offensive to the aggrieved person.

25. Thus, for a final order, EE had to show that there was personal violence and it was caused by the respondent and that it was likely, in the words of s 40, that the respondent:

... may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.

26. The only evidence as to whether there was personal violence was that the son was excitable and was a little strange. Although one must take note of the rather panicky description about drugging that was made by LJ, I am very unclear as to whether the behaviour of the son could be described as being a result of personal violence, even to the extent of being from harassing or offensive conduct in any sense.

27. Accordingly, there being no evidence of personal violence, it was incumbent upon the Magistrate to dismiss the application. In any event, there was no evidence that in the relevant sense any of the effects on the son came from the respondent. Even if it was the Chinese food that caused the son’s behaviour the fact that there was no medical evidence as to the mechanism and the fact that the Chinese food was apparently eaten by LJ and by the daughter with no ill-effects, but at an earlier point in time, makes it quite problematic to suggest that the respondent had the necessary intention that would have to apply for personal violence in the sense of the Act to occur.

28. Finally, there is no evidence as to any basis on which this court or any court could find that it was likely that the respondent would again commit any such personal violence, if such it could be characterised. Indeed, it appeared that EE was not basing himself on what might be called the facts of the case but under some kind of spiritual approach founded in his belief as to some Nigerian customs and relationships and beliefs about interaction between people in Nigeria.

29. Quite frankly, that is not sufficient to justify this court intervening in people’s lives in the quite invasive way that protection orders do even though it may be that the respondent has no wish to have any further contact with LJ or with the children.

30. So far as the question of an interim order is concerned, s 48 of the Act gives the court power to make an interim order and s 49 requires that:

The Magistrates Court may make an interim order if satisfied that it is necessary to make the interim order to do 1 or more of the following until the application for the final order is decided.

(a) ensure the safety of the aggrieved person or a child of the aggrieved person; or

(c) prevent substantial damage to the property of the aggrieved person or a child of the agreed person.

31. Since the hearing was a hearing for final relief there was no occasion for an interim order to be made and in any event the evidence before the magistrate would not come up to the requisite standard required for the grant of an interim order.

32. In what I described and do describe as a bizarre twist to the case, at almost the end of the case, EE evinced what can only be described as a very proper concern for his wife who was sick today (which is why we could get her on the telephone to give evidence) and, according to him, had been quite sick for some time. He said he wanted the respondent to agree to take care of her and to visit her. This sits ill and quite oddly with the nature of the orders he is seeking and the intention to seek them. It would be impossible for any realistic assistance that the respondent could give to be provided without him having access to and being on premises of the children which is what he wanted the order to prevent.

33. I am not aware and cannot say what the problems causing EE’s concern are and whether it is, as the Magistrate seemed to suggest, that he has not yet got over the breakdown of the relationship with his wife or not, I am unable to say.

34. The Magistrate, however, even on more limited material than I had, was perfectly right to dismiss the applications, there was no occasion for them to be made. On the more detailed evidence I have had it becomes even more clear that the orders should not be made, and accordingly the appeal is dismissed.

I certify that the preceding thirty four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 2 April 2008

Counsel for the Appellants: Self-represented litigant

Solicitor for the Appellants: Not represented

Counsel for the Respondent: Self-represented litigant

Solicitor for the Respondent: Not represented

Date of hearing: 2 April 2008

Date of judgment: 2 April 2008