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District Court 15 May 2025

Wheeler v R

[2025] NSWDC 564

Domestic & family violence

Citation: [2025] NSWDC 564
Court: District Court of New South Wales (Criminal)
Date: 15 May 2025
Judge(s): Wass SC DCJ

Background

The appellant, a father, appealed against the making of an Apprehended Domestic Violence Order (ADVO) by the Local Court in favour of his former partner. The ADVO had been granted by a Local Court magistrate on 24 February 2025, following an application supported by police.

The case arose from three specific incidents in April and May 2024: the appellant's attendance at two children's rugby league events (a gala day in Port Macquarie on 14 April 2024 and a further sporting event in Wingham on 17 May 2024) and the alleged presence of his work truck in his former partner's street on 15 May 2024. The parties were engaged in ongoing Family Court proceedings concerning their children, and interim parenting orders provided for supervised contact. The police case was that the protected person feared intimidation and that those fears were reasonable.

A key factual backdrop was the former partner's belief — which proved to be incorrect — that the Family Court orders prohibited the appellant from having any contact with her or the children outside of supervised contact sessions. The investigating officer did not independently verify this assertion against the actual terms of the orders before obtaining a provisional ADVO.

  • Whether the evidence was sufficient to justify the making of a final ADVO, assessed against the Briginshaw standard of proof.
  • Whether the Local Court magistrate erred in making findings about the appellant's alleged breach of Family Court orders, where those orders contained no explicit prohibition on the contact that occurred.
  • Whether the failure of police to obtain statements from available witnesses warranted an adverse finding against the applicant's case.
  • Whether the protected person held an ongoing fear of the appellant, and if so, whether that fear was reasonably held.

Decision

The District Court allowed the appeal and set aside the ADVO. Wass SC DCJ identified multiple errors in the Local Court's reasoning and factual findings.

Family Court orders and flawed findings: The Local Court magistrate initially stated that the terms of the Family Court orders were not the basis of the case and that the focus should be on the appellant's behaviour on the three relevant dates. However, inconsistently with that stated approach, the magistrate went on to make findings that the appellant had breached the Family Court orders by interacting with his children at public sporting events. Wass SC DCJ found these conclusions were erroneous. The Family Court orders did not contain any injunction prohibiting the appellant from speaking to or interacting with his children in public; they merely provided for supervised contact arrangements. The magistrate's reasoning — that a supervised contact order implicitly prohibited all other contact — was rejected, particularly where the interactions occurred in low-risk public settings. The magistrate herself acknowledged the appellant "may not have technically breached the orders," yet still treated the supposed breach as an aggravating contextual factor.

Inadequate investigation and adverse findings: The investigating officer conceded he had not obtained statements from any of the witnesses identified by the protected person as being present at the sporting events, nor had he made inquiries with the organising rugby league clubs. He accepted it would have been appropriate to do so. Despite this concession, the magistrate declined to draw an adverse inference from the absence of this evidence. Wass SC DCJ held that the appellant should have received the benefit of an adverse finding — that is, an inference that the uncalled witnesses would not have assisted the police case. This was particularly significant given the Briginshaw standard applied to ADVO proceedings.

The "work truck" incident and credibility: On the allegation that the appellant's work truck was in the protected person's street without proper basis on 15 May 2024, the evidence from the appellant and a supporting witness (whose evidence was unchallenged) appears to have provided an explanation. The overall weakness of the evidence across all three incidents contributed to the appeal court's conclusion that the ADVO was not justified.

No ongoing fear: Wass SC DCJ also found that the evidence did not establish that the protected person held an ongoing fear of the appellant, or that any such fear was reasonable in the circumstances. This was a further independent basis on which the ADVO could not be sustained.

Orders Made

  • The appeal was allowed.
  • The Apprehended Domestic Violence Order made by the Local Court on 24 February 2025 was set aside.

Key Takeaways

  • Investigating officers must independently verify the terms of court orders, particularly Family Court orders, before relying on alleged breaches as a foundation for ADVO applications. The District Court held that reliance on a complainant's characterisation of orders, without reading and understanding them, was insufficient.

  • Under the Briginshaw standard, a rigorous evidential foundation is required. Where readily available witnesses were not called and no adequate explanation was given, the Court held that adverse inferences could properly be drawn against the party bearing the onus of proof.

  • Supervised contact orders in family law do not necessarily create an implicit prohibition on all other contact. The District Court found that the existence of a supervised contact regime was not equivalent to a restraining order prohibiting a parent from any interaction with their children in public.

  • In allowing the appeal, Wass SC DCJ identified that consistency in judicial reasoning is essential. Where the magistrate expressly disclaimed reliance on a particular issue but then made findings on that very issue (and those findings informed the ultimate decision), this constituted a material error vulnerable to appellate correction.

  • Sufficient evidence of both subjectively held and objectively reasonable fear is required to support a final ADVO. The District Court recognised that a case relying on incidents occurring at public events, where both parties had a legitimate reason to be present, faced an inherently higher evidentiary bar.

Legislation and Cases Referenced

Cases:
- Briginshaw v Briginshaw [1938] HCA 34 — the standard of proof applicable to civil proceedings (and ADVO applications), requiring reasonable satisfaction commensurate with the seriousness of the allegations.