DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal under s.63 of the Domestic Violence (Family Protection) Act 1989 (“the Act”) from the decision of a Magistrate on 11 August 2000 to revoke a domestic violence order which had been made by a different Magistrate on 13 March 2000.  The parties are husband and wife:  the husband was the appellant before me, although the order which was made on 13 March 2000 was one made against him and in favour of the wife.  In the terminology used in the Act, she was the aggrieved spouse and he was the respondent spouse.  The application to revoke the order however appears to have been made by the wife.  It is convenient if I refer to the parties as the husband and the wife. 

History of the matter

2. [2]
   This is the third time these parties have been before the District Court in relation to orders made under the Act, and there have been a number of appearances in the Magistrates Court. In order to understand the complaint of the parties, it is necessary to explain the history of the matter. Originally there was an application under the Act for a protection order which was made by a police officer, who presumably satisfied the requirements of s.67 and was therefore authorised to apply by s.14. Such an application is nevertheless an application for an order for the benefit of the aggrieved spouse, i.e., the wife: s.13(1). Such order was made in the Magistrates Court on 18 February 1998. The husband appealed against that order to the District Court, which appeal was heard and dismissed by His Honour Judge Samios on 30 March 1999.

3. [3]
   I have seen a copy of His Honour’s reasons for judgment, which record that the order made on 18 February 1998 followed a hearing at which a Magistrate heard evidence from a police officer and other witnesses, neighbours of the parties. The witnesses gave evidence of an incident they said occurred on 16 December 1997, on which occasion the wife was seen in a distressed condition and the witnesses inferred that this had occurred because she had been the victim of domestic violence from the husband. There was also some evidence that the wife had, on a previous occasion, complained to a neighbour of some other incident of domestic violence.

4. [4]
   At that hearing the husband was present and conducted his own defence. The husband has some capacity to speak and understand English, and was able to make his submissions before me in a way which I believe I understood, but he is obviously not entirely fluent in English. At the hearing he asked few questions of the witnesses. He did give evidence, and said that there was no violence, and that his wife had a problem with mental illness. When cross-examined about matters concerning the incident on 16 December 1997, he refused to answer any questions, and the Magistrate ruled that he was entitled to claim privilege from self-incrimination. I have not seen the transcript, and do not know whether the husband was deliberately seeking to exercise a privilege against self-incrimination, or whether there was some other explanation, such as difficulty in understanding the questioning. The husband said during the hearing of the first appeal that he had refused to answer the prosecutor because of the pressure he was under at the time. In any case, it appears there was no effective cross-examination of the husband on that occasion.

5. [5]
   The wife did not give evidence at that hearing, although apparently she was present. The wife is less fluent in English than her husband, although she did make some brief oral submissions to me, which I believe I was able to understand. On some other occasions she has been assisted by an interpreter; before me an interpreter was present, but she did not feel the need to call on him. It may well be however that she was less fluent in 1998 than she is now. She told me there was no interpreter present at the original hearing in 1998, and both parties told me that they really did not understand what the proceeding was on that occasion or how to conduct it properly.

6. [6]
   At the original hearing the Magistrate accepted that the wife was suffering from some mental illness and that it was therefore necessary for him to approach the question of whether there had been domestic violence with some caution. Nevertheless he ultimately concluded that on the whole of the evidence he was satisfied on the balance of probabilities that an act of domestic violence did occur and he was further satisfied that acts of domestic violence had occurred in the past, and because of the nature of the acts, he was further satisfied on the balance of probabilities that it was likely that acts of domestic violence would occur again. He therefore made a protection order.

7. [7]
   The order made provided as follows:

“1.The respondent spouse must be of good behaviour towards the aggrieved spouse and must not commit domestic violence;

2. The respondent spouse must not possess a weapon for the duration of the order;
3. All weapons licenses issued in the name of or in relation to the respondent spouse are hereby revoked and the name of the respondent spouse endorsed on any weapons license as the representative of a body corporate or firm is hereby removed”.

There was also a condition in relation to aggrieved persons named in the order,  but there were none so that condition is irrelevant.  The second and third conditions were those required by s.23(2) and (3) of the Act.  The order was made for a period of two years, the maximum period which such an order may last under s.34(2).  I shall return to that section later. 

8. [8]
   The husband appealed against the order, as I said, but on 30 March 1999 that appeal was dismissed. On the hearing of that appeal the husband put before the court further evidence, in the form of a letter signed by the wife denying any domestic violence towards her, and saying that the application was made by the police against her will. There was evidence as to the religious and cultural significance of certain markings on the face of someone of the wife’s cultural background, and there was evidence that she was receiving attention from the Caboolture Adult Mental Health Service for the management of a long standing bi-polar mood disorder. That service expressed the opinion that the husband’s care and vigilance were of particular importance in the proper safeguarding of the wife’s mental health, and that his presence was important in minimising stress to the wife, which could aggravate her condition.

9. [9]
   His Honour noted that under s.84 of the Act the Magistrate might inform himself in such a manner as he thought fit and was not bound by the rules and practices as to evidence, and that the court did not need to have personal evidence of the aggrieved spouse before making a domestic violence order: s.84(3). His Honour concluded that it was open for the Magistrate to accept the evidence of the witnesses that he heard, and that he was entitled on that basis to find that there had been domestic violence and that the husband was likely to commit an act of domestic violence again. He acknowledged that the parties were unfamiliar with the judicial system and that they may well have had difficulty in understanding the procedures being followed in the Magistrates Court, particularly in view of their difficulty with the language. Nevertheless, he concluded that there had been no error demonstrated in the Magistrate’s decision and he was not persuaded to allow the appeal. He declined to conduct the appeal other than by way of rehearing on the record, the manner of appeal prescribed by s.65(1) of the Act unless a District Court judge orders otherwise.

10. [10]
    His Honour noted in the course of the reasons that there was power under the Act for an application to be made to revoke a domestic violence order. Under s.36 of the Act, a court may revoke a domestic violence order. By subsection (2) revocation takes effect on the day the order for revocation is made. The power may be exercised only on an application for revocation made under s.51. That section permits the application to be made by anyone who could apply for a protection order, or by a respondent spouse.

11. [11]
    The later history of the matter is recorded in the transcript of proceedings before the Magistrate on 11 August 2000. He noted that there had been a number of applications for revocation filed in 1998 and 1999, including one application which on 24 May 1999 was dismissed. An appeal to the District Court was brought by the wife from the order dismissing that application and it came on, again before His Honour Judge Samios, on 23 June 2000. However, before that appeal came to be heard the original order had expired, on 17 February 2000.

12. [12]
    On 15 February 2000, the wife filed in the Magistrates Court an application to have the order varied, so that it would not run out on 17 February. This application was made because of a desire on the part of the wife to have the original hearing reheard, that is to have the witnesses called again so that they might be cross-examined by her or by the husband, and to be able to give evidence herself (through an interpreter), with a view to exposing what she said was the falseness of the evidence of the other witnesses, and the wrongness of the proceeding and the order that was made against the husband. Her assumption was that the order had to be kept in force so that there could be that sort of rehearing of the original application. For that purpose an application was made for an extension.

13. [13]
    That application came on before a magistrate on 13 March 2000. He decided that the order could not be extended but treated the application as an application for a fresh order and, after some discussion between the parties during an adjournment, as it appeared that both parties were consenting to an order being made, he made a fresh protection order for a period of two years as from 13 March 2000. It may be, however, that the parties really did not understand what was happening on that occasion, because when the matter came on before Judge Samios on 23 June 2000, he was told that the order had been extended.

14. [14]
    His Honour said on p.5 of his reasons:

“If the order had expired then there was nothing for me to do.  However, [the husband] told me and I am prepared to accept this on the hearing of this appeal that the order has been extended.”

On that occasion His Honour concluded in the reasons which he gave that the matter ought to have been set down for a revocation hearing, to enable evidence to be given at least by the parties, and that therefore the appeal should be allowed.  The appeal was allowed and the order dismissing the application to revoke was set aside;  His Honour considered that no other orders were necessary because of his expectation that the Magistrate would now set the matter down for a hearing of the revocation application. 

15. [15]
    As His Honour made quite clear, that order was based on the assumption that the original order had been extended. In fact it had not. Since revocation only takes effect from the date of the order (s.36(2)), there can only be an application to revoke if the original order is still in force. The original order having expired, there was no point in making such an application. I do not doubt that if His Honour had understood that the original order had expired, and that what was in force was a new order, he would have dismissed the appeal.

The decision under appeal

16. [16]
    Nevertheless, the matter came on on 11 August 2000, before a different Magistrate. He decided to revoke the protection order which had been made on 13 March 2000, after having heard evidence from the wife. She said that there had never been any domestic violence in the past, that she was not scared of her husband, and that he was a very nice man. The husband had not made any threats or put any pressure upon her, and she wanted her husband to protect her and no one else. She did not feel in danger from him and he had looked after her very well. She went on to say:

“I want cross-examination of the witnesses which will bring proof before court, that is, no violence took place.  All the things which have been used as proof of violence has got nothing to do with violence.  My human right of freedom, of religion has been abused from the Magistrates Court to charge [the husband] in a criminal way.  The police have used me to charge [the husband] and that abuse of my mental and stable condition.  I have suffered under the wrong decision of the Magistrates Court to find [the husband] guilty of doing violence to me”.

She went on to indicate that it was the police she was afraid of, and that she was upset that her husband had been charged with some criminal offences.

17. [17]
    During the hearing before me, the husband also referred to his having been charged by the police with various offences, which he had defended, and what he said was a threat by a police officer to bring more charges. It appears the Magistrate accepted the wife’s evidence, accepted that she did not want an order in force against the husband, and made an order revoking the order which was made on 13 March 2000, which revocation took effect as from 11 August 2000. He said (correctly) that he could not turn back the clock and revoke the orders as from the date in 1998 when the first order was made, or have a rerun of the application that was conducted on that occasion. It was from that decision the appeal was brought to me by the husband.

The submission on appeal

18. [18]
    When the appeal came on before me, both parties addressed me, and it is clear that they are agreed on what they want. They want the opportunity to reopen the original hearing in February 1998, so that they could cross-examine properly the witnesses who gave the evidence which the Magistrate accepted, and so that the wife at least (and possibly also the husband) could give further evidence. They say that the wife was, at the relevant time, suffering from mental illness and that this led her to behave in a way that was misinterpreted by the witnesses as amounting to the consequences of domestic violence, when in truth there had been no domestic violence, and that the witnesses have in various respects been making false allegations. She wanted the opportunity to give evidence herself to say that there had not been any domestic violence against her, either then or on other occasions, and that it was not appropriate for such an order to be made. They claim that there have been some continuing problems with the neighbours, apparently some further threats against them, and that they have suffered considerably because of the wrong decision which was made on the original application by the Magistrate. The wife has expressed her position which is quite clear; there is now no domestic violence and no threat of domestic violence, and there was never any domestic violence from the husband. The application which was made in February 1998 was made against her will and was wrongly made, and the evidence put before the court was false, and the conclusion arrived at by the Magistrate on that evidence was wrong. (I am paraphrasing the submissions; there were problems with the use of the English language, and in addition resort to various expressions which, although reflecting a strongly held sense of grievance, did not appear to be particularly appropriate in the circumstances of this matter. It is however necessary to make due allowance for the language difficulties and the different cultural backgrounds of the parties.)

Analysis

19. [19]
    What is before me is an appeal from the decision on 11 August 2000. My powers of appeal are those set out in s.66 of the Act. I can discharge or vary the order to which the appeal relates, or may make such order or decision as I consider should have been made by the Magistrate. My order or decision only takes effect from the day on which it is made (s.66(1)(b)), and clearly can only be an order or decision which could have been made by the Magistrate on 11 August 2000 on the application which was then before him. Strictly speaking that was an application to revoke the order of 18 February 1998, which had already expired. Given that the order had already expired, it could not be revoked and the application ought to have been dismissed.

20. [20]
    In practice however the Magistrate treated the application as one to revoke the order which was made on 13 March 2000. In the circumstances there was no injustice in doing so; it appears with the benefit of hindsight that the parties really did not understand what was happening on 13 March, but the one thing they did not want was to have a fresh domestic violence order then made against the husband. The Magistrate further was entitled to have regard to the express views of the wife during the hearing on 11 August 2000, and I do not doubt that it was appropriate for the order of 13 March 2000 to have been revoked. In circumstances where the wife has repeatedly asserted that there was not and had not been any domestic violence, and there is no evidence to the contrary, it would be most inappropriate for me to set aside an order revoking the second protection order, particularly in circumstances where it appears to me that that order really ought not to have been made, and was only ever made as a result of a misunderstanding of the procedure on the part of the parties. Therefore it is not appropriate for me to interfere in any way with the order which was made by the Magistrate on 11 August 2000.

Limitation of power on appeal

21. [21]
    The one thing that I cannot do under the Act is what the parties want: order a rehearing of the original application. I do not have before me an appeal from the original order (made on 18 February 1998). There was an appeal brought from that order but that appeal was dismissed. Even if that appeal had succeeded however it was not open for the judge on that occasion to order a rehearing. I have referred to the powers of the District Court on appeal under s.66 of the Act; they do not include the power to send the matter back for rehearing by the Magistrates Court. Such a power is not to be implied in the absence of any express provision to that effect: R v. His Honour Judge Dodds and Anor; ex parte Smith [1990] 2 Qd.R. 80. 

22. [22]
    The Act has its own specific provisions in relation to appeal, and any appeal from an order under the Act can only be brought and dealt with in accordance with those specific provisions. There was therefore never any power to order a rehearing before the Magistrates Court, even if the judge on the hearing of the original appeal had thought that such a course was appropriate. Once that appeal had been heard and determined, it was not open on any later appeal for any District Court judge to interfere with the original decision.

23. [23]
    Even had there been power to order a rehearing, it would not necessarily follow that there would have been the sort of rehearing that the parties want, that is one which gave a further opportunity to cross-examine the witnesses, and which gave an opportunity for the wife to give evidence. On a rehearing it would be a matter for the police who brought the original application to decide whether they would call any and what evidence, and they might well have taken the attitude that, in circumstances where it appeared clear that the wife did not want a protection order made, there was no point in pursuing the matter further. They could have simply declined to lead any evidence, so that the application would be dismissed. There was nothing any court could do to force them to bring the same witnesses back before the court so that they could be re-cross-examined. The husband had the opportunity to cross-examine them once before. Under the regime established by this legislation, there is no mechanism for a further hearing at which he gets the opportunity to do so again, so that he might be able to do it better on the second occasion.

Approach to revocation

24. [24]
    Even if there was a full hearing of an application for revocation, that would not necessarily (or perhaps even usually) involve a reconsideration of the issues which led to the making of the original domestic violence order. Because revocation only operates for the future, the issue on an application to revoke a domestic violence order is not necessarily whether the order was properly made in the first place, but will be rather whether it is necessary or appropriate for it to continue to operate. In other words, is there a continuing risk of domestic violence to the aggrieved spouse, or some continuing need for protection in the form of an order? It would be open on an application for revocation to assert that a domestic violence order was not appropriate because there never had been any domestic violence so that the requirement of s.20(1)(a) was never met, although such an application should not be used simply as a means of reopening or rearguing questions which had been resolved already by a proper hearing.

25. [25]
    Whether an application for revocation should involve a consideration of whether the order should originally have been made will depend on the particular circumstances of the case; for example, if the order was made in the absence of the respondent spouse, and an application was made for revocation as soon as the order came to the attention of that spouse, it would be appropriate to consider whether the order ought ever to have been made. But if there has been a proper hearing on the first occasion, then an application for revocation should not be simply an opportunity to re-agitate issues which were properly before the court and properly determined on the first occasion.

Duration of order

26. [26]
    It is clear from s.34(2) that in the absence of an order under subsection (3) of that section, a protection order cannot last longer than two years. The duration of a protection order depends on the period nominated when the order is made, but cannot be for more than two years. Although there is a power to vary an order, including the period for which it continues in force (s.35(1)(b)), in my opinion, that power has to be read subject to the overall limitation in s.34(2). Hence an order which is already in force for a period of two years cannot be extended except under s.34(3), and then only if the court is satisfied that there are special reasons for doing so. If there is a continuing need for protection, a fresh protection order can be made, which will come into force at the end of the existing order: s.34(1)(b). If there is no continuing need for protection, there would ordinarily be no reason for the order to be extended. In these circumstances, it is unlikely that on an application for variation special reasons will appear, but they may do so. Clearly the legislature contemplated that that would be an unusual course.

27. [27]
    The Magistrate on 13 March 2000 ought to have considered whether there were special reasons for extending the original protection order beyond 17 February 2000, but his decision can be interpreted as a conclusion there were not. It would not have been appropriate to extend the order simply to enable an application to revoke it to be made, because the revocation would only take place for the future. What the parties really want to do is to have some procedure under which the order can be revoked as if it had never been made. There is however no mechanism provided in the Act for such a thing to be done, except by the mechanism of appeal, and therefore (there having been an appeal) in my opinion that cannot now be done in any way under the Act. There is nothing else which can be done to achieve the result which the parties are seeking.

Approach to decision to make a protection order

28. [28]
    If the original conclusion of the Magistrate was wrong, and there had been no domestic violence offered by the husband to the wife, as both of them now assert, then the domestic violence order was made on the basis of an incorrect conclusion by the Magistrate, but it has already been determined that it was a conclusion which was properly open to him on the evidence that was before him at the time.

29. [29]
    The consequences of making an order of this kind are to restrain a respondent spouse from committing domestic violence or being other than of good behaviour towards the aggrieved spouse, and to interfere with the possession of weapons or any weapons’ license by the respondent spouse. The latter can in certain circumstances be a very serious consequence, and accordingly in circumstances where a respondent spouse has or may have good reason to be in possession of a weapon, or is the holder of a weapons license, it is appropriate for a court considering an application for a domestic violence order to consider carefully the consequences which may follow as a result of the provisions of the Act dealing with weapons and weapons licenses, and the related provisions in the Weapons Act 1990.  Otherwise, however, an order is essentially restraining someone from doing something which was not to be done anyway, so it might easily be seen as being at worst a relatively harmless precaution.  Accordingly, there may be a temptation to think that, in matters where there is some doubt, it is safer to make the order. 

30. [30]
    Nevertheless, an order can only be made if the court is satisfied (on the balance of probabilities – s.9) that the respondent spouse has committed an act of domestic violence and that the respondent spouse is likely to commit an act of domestic violence again, or, if the act of domestic violence was a threat, is likely to carry out the threat. It is not sufficient if there merely may have been an act of domestic violence, it has to be more probable than not that there was an act of domestic violence in the past. It is not enough there is some risk of domestic violence or the carrying out of a threat in the future, that has to be likely. The word “likely” is a word which can in different contexts carry various meanings, as to degrees of likelihood: Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 339.  It is not necessary or appropriate in the present case, which does not turn on that issue, for me to express an opinion as to the correct interpretation of that word in this section, but I would draw attention to the wording of s.20(1).  It is only if that subsection is satisfied that an order under the Act can be made.  The fact that it may be a difficult thing to set aside an order once made so that it never existed is a reason why a court should approach the determination of an application for such an order under the Act with appropriate care. 

Conclusion

31. [31]
    In the present case it is quite clear what the parties want, and it is equally clear that it is not within my power under the Act to give it to them. I am not aware of any basis upon which they can under the Act achieve what they want. The appeal is dismissed.