LJC v KGC[2012] QDC 67

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an appeal against the making of a protection order on 5 September 2011, pursuant to the Domestic and Family Violence Protection Act 1989 (Qld) (the Act). The appeal is by way of rehearing on the record: section 65 (1).

The grounds of the appeal are perhaps best expressed in the appellant's certificate of readiness filed on 22 November 2011, which identifies the matters in issue in the Appeal. Three of these issues can be combined as an assertion that the findings of fact made by the Magistrate were not properly open on the evidence. These issues are:

1. "(a)
   I have not assaulted, molested or intimidated the aggrieved.

2. (c)
   I am not guilty of any allegation made against me by police officers Fleming and Manns of Gympie Police.
3. (d)
   I was assaulted by the aggrieved January 2010 and previously assaulted in December 2007 and mid-2008."

Another issue involves an assertion which can more succinctly be expressed as that the Magistrate wrongly concluded the appellant was likely to commit a further act of domestic violence. The issue is set out in paragraph (h) which is as follows: 

1. "(a)
   I left the family home in February 2010 and separated from the aggrieved on 1 January 2010. Only contact with the aggrieved has been by electronic means, this being insisted upon by me. The only discussions I have had with the aggrieved since the separation have been in regard to property and custody arrangements. I rely on W v. D, District Court Appeal, no 110 of 2008, as there have been no acts of domestic violence post leaving the relationship and further acts are not likely to occur. I have no wish to have contact with the aggrieved, excepting for the purpose of access to my children. Access has been taking place for the past two years without incident. As such, no protection order should have been confirmed by [the Magistrate]." 

That issue appears to be incompletely expressed in the certificate of readiness. However, it has been supplemented by the appellant during the hearing. The other grounds of appeal which can be expressed in terms of the balance of the issues set out in the certificate readiness are:

1. "(b)
   I've never been interviewed by any police officer in line with the requirements of section 67(1) of the Domestic and Family Violence Protection Act, nor has any investigation taken place as required by the Act.

2. (e)
   [the Magistrate] ordered me to serve my defence brief on the prosecution despite the knowledge that the prosecution had not complied with section 67(1) of a Domestic and Family Violence Protection Act denying me fair process and judicial fairness. I informed the Magistrate that I would refuse to supply the prosecution with my defence brief to preserve my right to silence, my right to judicial fairness and to fair process as the prosecution has not complied with section 67(1). I was threatened with a protection order being issued against me.
3. (f)
   Constable Manns, the informant officer for a temporary protection order against me, refused to provide the defence any statement regarding her actions under section 67(1), thus removing my common law right to question my accuser.
4. (g)
   [The acting Magistrate] was informed of Constable Manns refusal to supply the defence any statement or give evidence. Magistrate Beutel dismissed my request and refused to order Manns to comply, thus removing my common law right to question my accuser. There is no possibility of me having a fair hearing in the Magistrates Court." 

The appellant expands on the issues concerning the asserted non-compliance with section 67(1) of the Act in his outline of submissions. It is convenient to refer to the issues relating to section 67(1) of the Act first.

In the outline the appellant states that he had never been interviewed regarding the allegations, despite being willing and accessible at all times for interview by the police officers involved.

He further expands on this in his submission which he relied on before me during oral argument. He says, as paragraph [27] of that submission, with reference to Constable Fleming, who made the original application for a protection order, Senior Constable Manns, who had the carriage as a police prosecutor of the application on behalf of Constable Fleming and was the prosecutor at the time that a temporary protection order was made on 19 March 2010, and the Gympie Police prosecutions section by saying: "Police had been advised on numerous occasions that [K G C] was suffering from post-natal depression, under the care of a psychiatrist, and I had been the victim in this matter; that [K G C] had ceased taking her medication prior to the alleged incident; that the version given in February 2010 varied from the version given in March 2010, which again varied with the version given in November 2010, but still I was not interviewed nor was section 67 complied with in any way."

Further, he says with reference to [the Magistrate] who made the order, at paragraph 30: "[The Magistrate] was aware as early as 12 January 2011 that police had not conducted any investigation into this matter as required by the DFVP Act, yet in this knowledge stated that she was satisfied that an act of domestic violence had occurred and that further acts of violence or threats of violence were likely. There was no evidentiary basis for [the Magistrate] to make this decision in line with section 20 of the DFVP Act as I had previously informed the Court of the refusal of police to conduct an investigation, 'until such time their suspicion is unfounded'.

The prosecution was aware and had been advised on numerous occasions both verbally and in writing that [K G C] was suffering from post-natal depression, was under the care of a psychiatrist, and had ceased taking her medication prior to the alleged incident. [K G C] had also made four approaches to the Gympie Magistrates Court that she did not want to proceed with the order.". The reference to [K G C] is to the first respondent to this appeal.

Further, at paragraph (31), it is submitted "The prosecution had a duty of disclosure of these facts as detailed in the Moynihan Review into the criminal justice system in Queensland. In McIlkenny v R (1991) Cr. App.R 287 at 312, Lloyd CJ spoke in terms of 'making available all material which may prove helpful to the defence'.

None of the true facts of the matter that I've disclosed to the police were presented in facts. The statements or verbal submissions to [the Magistrate], when the terms of the temporary protection order were amended to include exclusionary provisions, or when the temporary protection order was confirmed.".

I consider that the statement by Lloyd CJ can be distinguished on the basis that it was made in the context of criminal proceeding, and not a civil proceeding like the present case where the facts are already in possession of the respondent, the appellant in these proceedings, and where natural justice can be achieved at a contested hearing in accordance with the directions made by the Magistrate on 4 October 2010 to which further reference will be made.

Because of the basis of the decision which I will make in this matter, it is not necessary to finally resolve the contentions in relation to the interpretation of section 67(1) of the Act. It is also unnecessary to determine whether an investigation had been conducted by Constable Fleming or Senior Constable Manns as required by that section as a basis for making an application for such an order.

Because of the significance of a decision on the interpretation and application of that section, I would prefer to leave that decision to a case where both parties are legally represented.

However, I am inclined to the view that if I was required to make a decision on the matter based on the material before me and the argument in this appeal, that I would conclude that section 67(1) of the Act had been complied with in this case.

This is not an investigation as to whether a person has committed a criminal offence. It is an investigation for the purposes of determining whether to institute a civil proceeding in which, by virtue of section 9 of the Act, the standard of proof mandated is on the balance of probabilities. Further, the investigative duty arises under an Act the main purpose of which is to provide for the safety and protection of a person in the case of domestic violence committed by someone else if, for example, a spousal relationship exists between the two persons: section 3A(1).

This further emphasises the urgency with which an investigation may have to be conducted where a reasonable suspicion of the type referred to in section 67(1) exists to determine whether there is a reasonable belief of the type referred to in section 67(2) so as to permit an application for a protection order. This is because the Act is concerned with the safety and protection of the aggrieved.

Section 3A(2) provides that the way in which the main purpose of this Act is to be achieved is by allowing a Court to make a protection order to provide protection for the purpose against further domestic violence.

Under section 39D, a Court may make a temporary protection order if an application has been made for a protection order where the Court does not begin to hear, or has decided not to begin to hear, the application because the applicant has not satisfied the Court that the respondent had been given, so far as may be relevant in this case:

1. "(a)
   a copy of the application, and any summons issued under section 47",

and it appears to the Court the aggrieved is in danger of personal injury, or property of the aggrieved is in danger of substantial damage.

The fact that a temporary protection order can be made without proof of service in such circumstances emphasises that the preceeding investigation does not require the interview with the person against whom the protection order may be sought, or a more expansive investigation.

It is also relevant that the respondent to an application will have the opportunity to appear before the Court on the occasion the Court hears and determines the application under section 48 of the Act. It is at this time that the respondent has a right to be heard, thus ensuring procedural fairness is afforded to that person.

Upon this analysis, I am inclined to the view that if, as a result of a complaint or report from a person, a police officer reasonably suspects the person is an aggrieved, the officer is under a duty to investigate it until satisfied the complaint is unfounded.

This investigation is not a criminal investigation, and may be carried out by interviewing the complainant. If that officer reasonably believes, as a result of that investigation, the person is an aggrieved the officer will never be able to be satisfied the suspicion is unfounded. The officer is not required to interview the person against whom the protection order may be sought because the officer is entitled to come to that conclusion even on the assumption that the person will deny the allegation. As time is of the essence the officer is entitled to come to that conclusion, not only without interviewing the person, but without taking statements. The procedure provided for by the Act ensures procedural fairness to the person against whom the protection order is sought by allowing that person to be heard before the order is made if that person wishes to appear for this purpose.

Therefore, I would inclined not to accept the argument in this case that Constable Fleming conducted no investigation as required under section 67(1) of the Act before making the application for a protection order. In particular, I would be inclined not to accept the proposition that she failed to do so, because she did not interview the appellant or obtain statements from witnesses, or obtain copies of his email records in line with the requirements of section 67(1). This is because I'm inclined to the view that there is no such requirement.

Also, if it was necessary for me to decide, I would be inclined to the view that it was not necessary for Senior Constable Manns to conduct an investigation under section 67(1) before taking action against the appellant, under the Act, on 19 March 2010, with the result that a temporary protection order, with exclusionary provisions, was made. This is because Senior Constable Manns was not acting as an investigator, but was rather the person who had carriage of the application on behalf of the real applicant, Constable Flemming.

Consistently with this I would be inclined also to reject the argument that Senior Constable Manns was required to provide the appellant with any statement regarding her actions under section 67(1), and that her refusal to do so removed his common law right to question his accuser. Put shortly, I am inclined to the view that she was not the appellant's accuser, and the relevant statements were not those of Constable Manns, but the original application and the statutory declaration of 19 March 2010, which was placed before the Court on the occasion that the temporary order was made.

In these circumstances, had it been necessary to decide it, I would also be inclined to the view that the acting Magistrate, on 27 July 2011, was entitled to reject the request for Constable Manns to supply the defence with a statement or give evidence. This decision would not prevent the appellant having a fair hearing in the Magistrates Court.

Similarly, I would be inclined to the view that the Magistrate who made the protection order on 5 September 2011 was entitled to reject the submission that section 67(1) had not been complied with as a basis for making decisions on issues that arose in respect of this application.

Although it is also not necessary to decide, for the purposes of this appeal, whether the appellant was denied procedural fairness or natural justice by being directed to the supply the prosecution with what has been described as his defence brief, it would be my view that this did not involve such a denial.

Further, I would be of the view that such a direction did not interfere with his right to silence. As I have previously said this is a civil and not a criminal proceeding. The right to silence does not apply.

Further, section 84(2) provides that in a proceeding, with a view to making a protection order, or a temporary protection order, the Court or Magistrate may inform itself, himself or herself in such manner as it, or the Magistrate, thinks fit, and is not bound by the rules or practice as to evidence.

As O'Brien DCJ said in Preston-Stanley v Heath, unreported Appeal No 3 of 1995, 13 July 1995:

"In my view the above provisions make it clear that in proceedings under the Act it is not necessary that the Court must hear evidence in the traditional manner. Rather, the Court is free to inform itself in such manner as it thinks fit. Even to the extent of not requiring the personal evidence of the aggrieved person." 

In that case his Honour held that in the absence of an appearance by the respondent to an application for a protection order the Court was entitled to proceed on the application and the accompanying statement of the aggrieved.

In this case the appellant's contention is about his Honour's directions that he file and serve all affidavits and/or statements by all witnesses to be called by or on his behalf (including his affidavit or statement) in response to the application on or before 22 December 2010 at the Magistrates Court Registry, Gympie.

This followed a similar direction to the applicant/aggrieved to file and serve all affidavits and/or statements by all witnesses to be called by or on behalf of the applicant by 15 November 2010. The Registrar was also directed to forward a copy of the affidavits and/or statements filed to the opposing party by ordinary prepaid post.

Despite the appellant's objections I would consider that this is an uncontroversial direction which is consistent with those routinely given in civil trials so as to streamline the proceedings. Although contrary to a view expressed by a member of the Registry staff of the Magistrates Court not to streamline or truncate or limit cross-examination. I do not understand Registry staff to be expressing the views of the Magistrate in that regard.

I would be of the view that this approach is also open in proceedings under the Act. I would be of the view, if required to decide this, that the approach is authorised by section 84(2) and in accordance with the wide view of the section taken by O'Brien DCJ.

The appellant has referred me to the decision of McGill DCJ in DMO v. RPD [2009] QDC 92, particularly on this point at paragraphs [9] and [10] where his Honour said:

1. "[9]
   Provisions of this nature are familiar, and they do not exclude an obligation to accord procedural fairness. Nor do they have the effect that an order can be made without any proper basis; the position is simply that the formal rules of evidence do not apply, so that it would be open, for example, in an appropriate case to receive material which would ordinarily be excluded as hearsay, or to receive evidence in written form. But there must still be evidence, in the sense of there being some material put before the court which provides a rational basis for arriving at the state of satisfaction contemplated by section 20, and it must be put before the Court in a way which gives the opposite party the opportunity to challenge that evidence and to put the opposite party’s case in relation to the matter.

2. [10]
   Ordinarily, therefore, one would expect that the hearing of an application under the Act, where the respondent appeared and contested the matter, would proceed in much the same way as a civil trial; the applicant would give evidence or call evidence, and the applicant’s witnesses would be cross-examined by the respondent, and the respondent would then give or call evidence, and be subject to cross-examination. One would expect that the hearing contemplated by section 48 would be a hearing in the conventional sense. I note that section 39 of the Act contains a mechanism by which a person can be summoned to give evidence as a witness, and the section contemplates that that person will give evidence as a witness at a hearing on oath or affirmation."

His Honour was expressing those views in relation to section 84(2) and (3) of the Act. I consider that there is nothing inconsistent in the Magistrate's directions in this case with the decision of McGill DCJ. It is accepted that the provisions do not exclude an obligation to accord procedural fairness. His Honour recognised that in an appropriate case evidence may be received in a written form. That is what the Magistrate was directing in this case.

There was nothing in the direction which permitted evidence to be put before the Court which would not provide a rational basis for arriving at the state of satisfaction contemplated by section 20 and there was nothing in the direction which prevented the opposite party the opportunity to challenge that evidence or to put the opposite party's case in relation to the matter. In fact her Honour's order that the appellant file and serve his affidavits and/or statements in relation to the application afforded that opportunity.

There was nothing in the order which removed the appellant's opportunity to give evidence or call evidence or to cross-examine the witnesses on behalf of the applicant. There was nothing in the order that prevented a hearing in the conventional sense.

For these reasons, had I been required to decide it, I would be inclined to reject the submission on behalf of the appellant that he had been denied procedural fairness by virtue of these directions.

Accordingly I come to address the remaining two issues. Firstly there is the question of whether it was open to the Magistrate to be satisfied as required under section 20 of the Act. This required her to be satisfied in the first place by virtue of section 20(1)(a) that the appellant had committed an act of domestic violence against the first respondent.

I proceed to consider this issue by conducting a re-hearing on the record, supplemented by such further evidence which has been admitted without objection on behalf of the second respondent. I have admitted this evidence in argument before hearing argument about the substantive matters of the appeal, and I confirm that I have given special leave for that additional material to be placed before the Court:  see Uniform Civil Procedure Rules 1989 (Qld) rr 766(1)(c) and 766(2).

The principles for a rehearing on appeal derive from Fox v. Percy [2003] 214 CLR 118 at 126-127; Rowe v. Kemper [2008] QCA 175 at [5]; Mbuzi v. Torcetti [2008] QCA 231 at [17]. This requires an Appellate Court to afford respect to the decision of the Magistrate, and the opportunity that the Magistrate had in seeing and hearing the witnesses give evidence, and also to review the evidence to waive the conflicting evidence and to draw its own conclusions.

Of course, this is not a case in which the Magistrate made a decision after seeing and hearing the witnesses give evidence. Her decision was based on the documents forming the Court record. I consider that she was entitled to prefer the evidence of the applicant's witnesses when it conflicted with the unsigned statements of the appellant and his witnesses. This is because the statements filed on behalf of the applicant were signed. I note for completeness that the signed documentation from Ms H the psychologist, whose statement was filed on behalf of the appellant, would be based on information he chose to disclose to her.

On the basis of the application and the evidence filed in support of it, I consider it was open to the Magistrate to be satisfied on the balance of probabilities that the appellant committed an act of domestic violence against the first respondent.

I note that the appellant was not present at the time that the order was made. That is because he suffered a car breakdown and was outside a mobile phone coverage area. As a consequence, he arrived at Court about 25 minutes after the hearing was set to commence. By that time, the decision and order had already been made.

I consider that the Magistrate was entitled to conclude that the appellant was physically violent to the first respondent on two occasions, on 1 January 2010, by grabbing her around the neck. About five days later, Miss L noted two fading bruises on the first respondent's neck which looked like her to be fingerprints. This is sufficient to constitute a wilful injury for the purpose of section 11(1)(a) of the Act.

It was also open to the Magistrate to be satisfied that the appellant threatened to wilfully injure her on this occasion,  for the purpose of section 11(1)(e) on the basis of her evidence that when she attempted to phone the police after the second physical altercation, he informed her it would be the last thing she ever did, as a result of which he hung up. She desisted because she believed he would follow through with this threat. According to her statement when he first grabbed her neck, he said he wanted to kill her, and on the second occasion he did this, he said he wanted her dead. Her Honour was also entitled to find that this conduct amounted to intimidation of her, for the purpose of s 11(1)(c) in that, he engaged in this conduct for the purpose of influencing her behaviour and caused her to be fearful:  see BBB v. RAB [2006] QDC 80 at [18]; D v.G [2004] QDC 477.

It was also open on the evidence that the appellant continued to intimidate her by his behaviour when he returned home, because she asked him to leave on or about 29 January 2010, as she was fearful that he was going to lash out and become violent again, such that she made plans in her mind of where she would go to protect herself in case he became physically violent towards her.

She contacted the domestic violence counsellors at Lifeline, but would not initially accept their advice to go to the police because of the appellant's earlier threat that this would be the last thing she did. When she eventually contacted the police on 9 February 2010, after seeing the psychologist, Ms H, because she was fearful that he was building up to explode again, she was worried about how he would react if the police came to serve him with the paperwork.

Constable Fleming said that on this date, the first respondent appeared to be visibly upset when she was providing information. Miss L who, as I have said, saw her after the alleged incident on 1 January 2001, described her as visibly upset and shaken on this occasion.

This is to be considered in the context of the whole of their relationship which, according to the first respondent, since 1992 had involved verbal and physical abuse. The picture that emerges of the appellant, is that he engaged in controlling and manipulative behaviour towards her. This includes his telling her, in January 2008, that he wished she would hurry up and top herself. This is something he does not deny in his 30 July 2010 email. He also did not deny her assertion in an earlier email, that he was responding to, that he had continued to attack her leaving her an emotional wreck.

Miss L describes occasions before 1 January 2010, when she had witnessed the appellant being angry towards the first respondent. On these occasions she observed the first respondent's breathing to change, for her to appear anxious and to go quiet. She said that the first respondent seemed more relaxed after the appellant left the house.

The first respondent's sister, Mrs H, describes the occasion when the first respondent was extremely anxious about returning home from a holiday because she was worried about how the appellant would react.

Even after the application was made, the first respondent felt trapped in an abusive relationship and thought that having a protection order would make it worse. As a result, she says in her statement she spoke up for the appellant when the application was first mentioned before the Court on 15 February 2010, and asked him to leave the home for six weeks so there was time to get over it.

However, she says that after he left, he was aggressive on the phone. As it came closer to the date of his return, she became more anxious, and as a result, she told him on 18 March 2010 she could no longer remain in the marriage, and did not wish him to return home. She did this because she realised that she could not let him back to control her life again.

It was in this context that she saw Senior Constable Manns, and gave the statutory declaration on 19 March 2010 which resulted in the temporary protection order being made on that date. She said in that statutory declaration that she was in fear for her safety if the appellant returned.

Although he did not come back to live at the property after he left, and she had minimal contact with him after the temporary protection order was made, she describes an occasion in July 2010 when he stayed overnight in the granny flat after returning the children from a visit with him. She said he started pressuring her about the domestic violence order. She eventually agreed she would think about dropping it as she wanted him to stop harassing her about it, and she felt intimidated.

Subsequent to this, he was verbally aggressive to her on the phone when she told him she did not write the letter. She said this made her feel threatened and intimidated, as she felt he was trying to control her again.

There is also the evidence of Mr M, the independent witness to the appellant's presence at a house where he was working as a tradesman. On 6 May 2011, he heard the appellant yelling at the first respondent at length on a number of occasions. On one occasion, he described this as a "dressing down", and telling the first respondent off. He describes the first respondent being upset and physically shaken.

In addition, there are the email communications between them from 18 March to 24 August 2010. I consider that these emails are an example of the appellant behaving in a controlling and manipulative way towards her through efforts to make her feel guilty about his situation as a result of her application for the protection order, which in particular had resulted in him not seeing his children.

The first respondent said this upset her, as the appellant knew how important it was to her that he was in regular contact with the children. She also felt very intimidated by his email in August 2010 which compared her to a woman whom he blamed for his brother's death arising out of circumstances surrounding a domestic violence order.

In these circumstances, it was also open to the Magistrate to be satisfied that the appellant had engaged in a persistent form of conduct which was annoying and distressing to the first respondent, so as to constitute harassment for the purpose of section 11(1)(c) of the Act:  see D v. G.

I note, that other than the unsigned statements and the written document prepared by the psychologist, Ms H, the statements filed in support of the applicant's case were not contraverted by evidence on oath because the appellant had not attended the Court on that date for the reasons I have given.

However, it is for these reasons that I consider it was open to the Magistrate to be satisfied on the balance of probabilities that the appellant committed an act of domestic violence against the first respondent. For similar reasons, I am also satisfied of this on the basis of the Court record.

However, in order to make a protection order on 5 September 2011, it must also have been open to the Magistrate to be satisfied on the balance of probabilities that the appellant was likely to commit an act of domestic violence again, or carry out a threat to do so.

The application made on 9 February 2010, based on the appellant's conduct from 1 January 2010, and on the appellant and the first respondent residing in the same dwelling, and a concern by the first respondent that there may be a repeat of the physical abuse which occurred on 1 January 2010. Although he had left the house, the appellant says on 18 February 2010, she expressed in her 19 March 2010 statutory declaration a belief that he would return, and a fear for her safety if he did so.

However, as she said in her 10 November 2010 statement, he had not returned to live at the property, and there had been minimal contact since the temporary protection order was made on 19 March 2010. The only occasions that the evidence shows he had visited the residence were on the occasion in July 2010 when he returned the children after a contact visit, and on 6 May 2011 while Mr M was working there.

There is no evidence of physical violence to the first respondent since 1 January 2010. In her email of 29 July 2010, she said she did not feel threatened by him at that moment. In these circumstances, I do not consider that the evidence was sufficient to support the inference that domestic violence was likely to occur again on the basis of the appellant causing a wilful injury to the first respondent (including by carrying out a threat to do so) post the hearing before the Magistrate.

However, this is not a case like D v W [2008] QDC 110, in which there were no further incidents of domestic violence since the appellant left home. As I have said, I consider that it was open to the Magistrate to regard the contents of his emails from 18 March to 24 August 2010 as involving harassment in the context of the whole relationship.

However, the last of those emails was just over 12 months before the date on which her Honour made the protection order. As indicated in her 18 March 2010 email, the first respondent told the appellant that she had concluded she could no longer remain in the marriage, and did not want him to return to the house.

In his 30 July 2010 email, and further evidence placed before me today, the appellant had clearly accepted that they were divorcing. As at 10 November 2010 he had not returned to any property in which the first respondent was living except in the context of the contact visit with the children to which I have referred. There is no evidence to suggest that this was also not the reason why he was at the premises on the occasion that Mr M attended on 6 May 2011.

The appellant constantly said in his emails that he lived 1,000 kilometres away. In his 29 July 2010 email he said he was going to try and move along with his life and the purchase of a boat would help that. Although a subsequent telephone message about the boat was acrimonious and harassing because it threatened that if there was no deal the matter would go on for a long, long, long time in the Courts with him representing himself, he also said: "As far as our relationship goes now I told you that I'd build a wall 30 feet tall and I will build that wall 30 feet tall."  He also left a message for her not to ring his mobile phone again under any circumstances.

In his 24 August 2010 email, which is the last email provided in what has been described as the brief of evidence by the applicant the appellant said that the first respondent would not get further communications from him. He also told her not to respond to that email and he would not send another email to her. In that email he reiterated that he wanted nothing to do with her and said he could now put her in the past and forget about her.

Although she concluded her 10 November 2010 statement by saying she felt a lot safer since the temporary protection order had been in place and despite the appellant living in New South Wales she felt his intimidation would continue as the divorce property settlement and custody arrangements had not been settled, she subsequently sent the 20 July 2011 email which caused the hearing set for 27 July 2011 to be adjourned. In that document she said she was no longer in the same circumstances and did not believe an order continued to be necessary. She made the point that because the appellant intended to move to Newcastle where he found employment this would minimise contact between them.

In that email she said that she intended to ask that the matter be dropped and felt it would be a waste of Court's time and resources to hear the matter. She made the point that a significant amount of time had elapsed since the original temporary order was made and it was in that context that she said that she was no longer in the same circumstances. This was a document the Magistrate was required to consider in determining whether domestic violence or a threat to commit it was likely to occur again.

In addition the appellant has been allowed to place before me, without objection, the information set out in paragraph 37 of his submission. It is in these terms: "I have not had direct contact with [K G C] since May 2011. All contact with her has been by email and text message. Prior to this date all communications with [K G C] have been digitally recorded by email or by text message.

I impose auditable communications to protect myself from further allegations that are not based in fact that could jeopardise my application to the Family Court for shared custody of my three children. Twins aged five and son, three, and to avoid false allegations. I reside alone at [address]. [K G C] has her own property at [a different address]. I pick the children up from [K G C's] mother."

The second respondent submits to me that it is a matter for me to determine what weight that I give to that aspect of the submission. However I consider it is something that I am entitled to take it into account in the context of the other matters I have referred to, which I consider are relevant to the determination of the issue of whether it was open to the Magistrate to infer that it was likely that the domestic violence would be repeated.

In circumstances where the appellant's conduct in respect of which the original application had been made had occurred some 20 months before, the first respondent had said on 29 July 2010 that she did not feel threatened by him, there is no evidence of harassing emails from the appellant since 24 August 2010 (some 12 months before), her email of 20 July 2011, and having regard go the matters advanced by the appellant in paragraph 37 of his submission, I am of the opinion that the evidence was and is insufficient to support the necessary inference that domestic violence or a threat to commit it was likely to occur again.

I have come to this conclusion despite Mr M's evidence of the appellant's conduct towards the first respondent on 6 May 2011. However this was two and a-half months before her 20 July 2011 email. Consistent with her statement that there had been minimal contact since the temporary protection order was made on 19 March 2010 and in the context of the 20 July 2011 email, this can be seen to be an isolated incident and not an incident that was then likely in future to involve a return to repeated or persistent conduct which is annoying or distressing. I do not consider it to be conduct amounting to intimidation as defined in BBB v. RAB [2006] QDC 80 at paragraph [18] where his Honour said: "Intimidation refers to a process where the person is made fearful or overawed particularly with a view to influencing that person's conduct or behaviour."

I also do not consider that it provides any indication that intimidatory conduct was likely to be repeated. In particular I do not consider it an indication that there was likely in future to be a return to repeated or persistent conduct which is annoying or distressing, which is the way in which harassment has been defined in D v. G.

For these reasons it follows that the appeal is allowed. The protection order made against the appellant in the Magistrates Court at Gympie on 5 September 2011 is discharged. There will be no order for the costs of this appeal.