DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from a protection order made under the Domestic and Family Violence Protection Act 1989 (“the Act”) in the Magistrates Court at Wynnum on 24 June 2010.  The appeal is brought under s 63 of the Act, and the powers of the court on appeal are those set out in s 66 of the Act.  The Commissioner of Police exercised his right under s 64A of the Act to appear and be heard on the hearing of the appeal, as second respondent.  In circumstances where the first respondent was not legally represented, it was of assistance to the court to have the benefit of submissions on behalf of the Commissioner.  The grounds argued for the appellant were widely cast:  that the finding that there had been an act or acts of domestic violence was unjustified, that the magistrate in making such a finding misapplied the onus of proof, that the finding that the appellant was likely to commit further acts of domestic violence was unjustified, and that the magistrate acted on irrelevant considerations in granting the order.

History

2. [2]
   It is of some relevance to consider the background to the application which was before the magistrate. An application for a temporary order was made by a police officer, as is permitted under the Act, and that application was heard on 24 January 2010 when the order as made, by the same magistrate who made the order under appeal.  The appellant was subsequently charged with breaching that order, which charge was heard by the same magistrate on 27 May 2010; he was convicted and placed on a good behaviour bond.  In the course of the hearing on that date, the magistrate threatened to make a protection order at that time.  The then legal representative for the appellant objected to that course and made submissions, including that the conduct alleged to be in breach of the temporary protection order was not an act of domestic violence.  Evidently the first respondent was heard during that proceeding, and at one point the magistrate said to her, “I can tell you for a fact that I am going to make an order today.”  In the event, after some discussion between the parties and after a further hearing, the magistrate did not make an order but fixed a hearing date, on which date the order subject to the appeal was made.

3. [3]
   In these circumstances, one might have expected that the appellant would have reasonable grounds for showing that there was apparent bias on the part of the magistrate, on the basis of prejudgment of the application;^[1] however, no such ground was argued on the hearing of the appeal, no doubt because no application had been made to the magistrate to disqualify himself from hearing the application when the matter was before the magistrate.^[2]

4. [4]
   There had been a previous application by the first respondent for a protection order filed in the Pine Rivers Magistrates Court on 8 September 2009.  An order was made, but that order was revoked on 30 September 2009 on the application of the first respondent dated 23 September 2009, which gave as the reason for cancellation of the order that “there are false and misleading information on the application, my solicitor filled out the application and took it to court without me reading it prior to court for my approval.”

The hearing before the magistrate

5. [5]
   At the hearing on 24 June 2010 the magistrate identified a large volume of material which was before him, including a number of affidavits one of which was from the appellant:  p 2.  There was a statement from the first respondent dated 23 March 2010, and statements by two police officers (p 3) and a further statement from the first respondent of 31 March 2010:  p 4.  The first respondent gave evidence, and a police officer gave some short formal evidence, and the appellant gave evidence.  The parties gave evidence largely about what happened on 24 January 2010 on which occasion the police were called to the first respondent’s residence and arrived after the appellant had been there but had left.  It was this attendance which led to the application for the temporary protection order being made.

6. [6]
   The appellant gave a version which did not involve domestic violence on his part, and also in his evidence denied that he had ever committed an act of domestic violence against the applicant: p 44.  In his statement, however, he had admitted to one incident, an occasion when he slapped the first respondent causing damage to her eardrum.

7. [7]
   The magistrate in his reasons rehearsed at some length the conflicting versions of the parties in relation to what happened on 24 January 2010, but at p 11, after expressing some difficulty in ascertaining who was telling the correct version, expressed the view that the objective circumstances did not fit the appellant’s version as well as the first respondent’s version, and on that basis found there had been an incident of domestic violence.^[3]  On the face of it, the magistrate was confront with conflicting accounts of what had happened, and was entitled to resolve that conflict on the basis on which ultimately he did resolve it.  He also found that there had been incidents of violence in the past, including the incident to which the appellant admitted in his statement.  He also referred in some detail to an earlier incident involving a pair of handcuffs, which he treated as an earlier incident of domestic violence.

Act of Domestic Violence

8. [8]
   It was submitted for the appellant that, although there may have been evidence of some violent conduct on the part of the appellant on that day, the first respondent’s version did not establish that there had been any acts of domestic violence within the definition in s 11(1).  This is confined to (a) wilful injury, (b) wilful damage to the other person’s property, (c) intimidation or harassment of the other person, or (d) indecent behaviour to the other person without consent, or a threat to commit one of those acts.  There was no allegation about damage to property, indecent behaviour or a relevant threat.^[4]  The first respondent’s evidence was that there was an argument and she was telling the appellant to leave, which the appellant would not do, and there was some argument about what was to happen to their child, who was present.  At one point she stood in his way and he barged past her, and she then grabbed the child and alleges the appellant pushed her to get to the child.  She claimed that afterwards scratch marks were seen on her chest and her arms.  In her oral evidence under cross-examination she said at one point that she was trying to pull the appellant out of her house:  p 13.  She conceded on the following page that she was not really sure how she got scratched, and she accepted that the appellant did not reach out and scratch her “like that”:  p 14.  She said that he pushed past her several times when she was trying to stop him from grabbing the child.

9. [9]
   In these circumstances, the only evidence of injury was the evidence of the scratches, and the first respondent was unable to identify the circumstances under which those injuries were inflicted. Accordingly, there was no basis for a finding that those injuries were inflicted wilfully by the appellant. Insofar as the magistrate found that there was an act of domestic violence in the form of inflicting those scratches on that day, that was an error.

10. [10]
    On the other hand, it seems to me that the behaviour of the first respondent on that occasion could be characterised as intimidation for the purposes of the definition. The first respondent did not give evidence that she was in fact intimidated by his conduct, but she did say at one stage that she had obtained the phone in order to call the police, and subsequently called out for help to a neighbour. That supports a finding that she was in fact intimidated; on the first respondent’s version that occurred in the form of a persistent refusal to leave the first respondent’s premises when requested, and persistent defiance of her evident desire to prevent him from having, taking hold of, and picking up their son. In my opinion therefore a finding of domestic violence on that date was open on the evidence.

11. [11]
    In any case, it was not essential that there be a finding of domestic violence on any particular date; in these circumstances the finding that there was a deliberate blow to the first respondent which in fact caused injury to the first respondent’s eardrum was sufficient to amount to wilful injury, and that amounted to domestic violence within s 11.

Onus of proof

12. [12]
    It was further submitted that the magistrate had misapplied the onus of proof in relation to this finding, but in my opinion there is no indication that that occurred in the reasons, and there is no reason to think that such an error may have occurred. There can be no doubt that the onus is on the person seeking an order to prove that the requirements have been made out, and there is no indication that the magistrate was not aware of that.

Credibility

13. [13]
    There were some submissions addressed to questions going to the appellant’s credibility, particularly in relation to the fact that an earlier application for domestic violence had been withdrawn in circumstances where she claimed that the solicitor then acting for her had filled in the allegations after getting her to sign a blank sheet of paper: p 11.  It was submitted that this could not have been true and therefore this showed that her evidence was not reliable, but it was a matter for the magistrate to assess her evidence, bearing this consideration in mind.  There was a good deal of cross-examination, and re-examination, as to what was said in that application and the extent to which the first respondent regarded things said there as correct or otherwise; the effect of her evidence was that in fact most of the allegations contained in that earlier application were correct.

14. [14]
    Another issue of credibility which was raised was that the first respondent initially said in evidence-in-chief that there had been no contact with the appellant since March or April 2010 (p 6), but almost immediately under cross-examination she conceded that there had been contact in the form of a telephone call two days before the hearing, which was to enable the appellant’s children who were with the first respondent to talk to him:  p 7.  This was certainly a significant inconsistency, but the effect it had on the ultimate findings was a matter for the magistrate.  The magistrate was not bound to reject the first respondent’s evidence as to what happened on any particular occasion because of either or both of these considerations.

Was future domestic violence likely?

15. [15]
    The next issue is as to whether the finding that there was a likelihood that there would be further domestic violence in the future involved an error. When dealing with this, the magistrate noted that there were orders in the past in 2004-5, that there had been a temporary protection order which extended to non-contact and a matter had been resolved by the court where the defendant had pleaded guilty to breaching conditions of the temporary protection order: p 14.  He then said, “When one deals with such matters and the circumstances surrounding this case, I am minded to consider that there is a likelihood that domestic violence will continue.”  He noted that there were unresolved issues in relation to child custody and property which was going to bring the parties into contact, and ongoing communications in relation to the children.  He then said at p 15:

“As a safeguard to ensure that – that there is a balance maintained in the community, I am going to direct that the domestic violence order in this situation should be granted.”

16. [16]
    In these circumstances, there is not much in the way of reasoning as to the basis upon which the finding was made that there was a likelihood that domestic violence would continue.^[5]  The fact that there were and were likely to be occasions when there would have to be further communication between the parties because of unresolved matters between them was in my opinion a relevant consideration; by way of contrast, if the evidence indicated that, since the last act of domestic violence, the parties had simply gone their separate ways and there was no reason to think that the defendant would be having contact with the aggrieved in the future, there may well not be a proper basis for a finding that here was a likelihood that domestic violence would continue.  The issue is not whether there is a probability that there will be future domestic violence, but whether it is likely, that is to say, whether there is a real and not remote chance of it occurring.^[6]

17. [17]
    The magistrate had referred to orders having been made in the past, but without any consideration as to the particular circumstances which gave rise to those orders, and whether there had been a change in the relationship between the parties since that time, which may well have led to a change in the circumstances. The first respondent’s evidence was that the parties had known each other for about nine years and that they had lived together for a time but had subsequently separated. The earlier orders related to a period when they were living together, and the fact that they had separated was I think a relevant factor; it is not clear that that was taken into account by the magistrate.

18. [18]
    The magistrate also took into account that there had been a breach of the temporary protection order, in relation to not contacting the first respondent. It is not obvious to me how this provided any logical support for the finding that there was a likelihood of domestic violence in the future. That conduct was not itself domestic violence, and consisted merely of sending text messages in response to text messages received from the first respondent.^[7]  It was part of the history, but it is understandable that someone like the appellant might take the view that replying to a text message was not a breach of an order prohibiting contact, on the basis that the contact had been initiated by the other person.  It is difficult to see therefore that it is relevant other than simply as part of the history of what has passed between the parties.  The incident on 24 January 2010 occurred after the appellant came to the first respondent’s house, but with her consent.

19. [19]
    Overall, it seems to me that the reasons expressed by the magistrate do not provide a rational justification for a finding of likelihood of domestic violence in the future. Nor was the evidence before the magistrate in such a state that such a finding on that evidence was unsurprising. On the contrary, it seems to me that the evidence as a whole, when objectively considered, leads naturally to the opposite conclusion. Although there had been some domestic violence in the past when the parties were co-habiting, the only incident of domestic violence subsequently was the incident of 24 January 2010, which in this context stands as an isolated incident.

Fresh evidence

20. [20]
    Counsel for the second respondent sought to rely on additional evidence, not before the magistrate, as to the history of domestic violence between the parties. The Act in s 65(1) provides that the appeal is “by way of rehearing on the record and under the rules of court applying to the District Court … .”  The words “on the record” suggest that there is no power to receive fresh evidence on an appeal.  Even if the reference to the rules is able to pick up UCPR r 766(1)(c) made applicable by r 785(1), that still requires special grounds, which involves that the evidence could not have been put forward at the trial by the use of reasonable diligence.^[8]  That has not been shown in this case, so I cannot have regard to the additional evidence sought to be relied on for the appeal.

Conclusion

21. [21]
    Obviously it is always possible that, if there has been domestic violence in the past, there will be domestic violence in the future, but the legislature has imposed a two-stage test, so that something more is required than mere proof of domestic violence in the past. In my opinion, in this matter there was no proper basis for a finding that there was likely to be domestic violence in the future if an order were not made.

22. [22]
    I have also referred to the magistrate’s reference to maintaining a balance in the community. It may be that this was not part of the finding about the likelihood of domestic violence, but was put forward as some explanation or justification of the exercise of the discretion which arose, on the basis of the findings which had been made, to make a protection order. I think it fair to say that, if the necessary findings have been made, it would be unsurprising for a protection order to be made, since the whole point of the legislation is to permit such orders to be made when the pre-conditions for them have been satisfied. There is, however, a discretion, and in a particular case it may well not be appropriate to make an order, for example if a respondent can give a convincing undertaking as to future behaviour.

23. [23]
    Overall, the reasoning in relation to the decision to make the order is curiously expressed, but it may be that this is an error in the way in which the reasoning has been expressed rather than a situation when an inappropriate consideration was taken into account in exercising the discretion. It appears in ex tempore reasons.  Accordingly, I am not persuaded that ground 4 has been made out.

24. [24]
    Nevertheless, I am persuaded that ground 3 has been made out, and that on the evidence before the magistrate the appropriate course was to dismiss the application.  On an appeal by way of rehearing, I have to make up my own mind, having due regard to the advantages the magistrate had in seeing and hearing the witnesses.^[9]  The appeal is allowed, the order of the magistrate of 24 June 2010 is set aside and in lieu thereof it is ordered that the application be dismissed.