MDE v MLG[2015] QDC 151

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant appeals against the decision of the Magistrates Court made on 21 January 2015 that a domestic violence protection order be issued against him under s 37 of the Domestic and Family Violence Protection Act 2012 (‘the Act’)
2. [2]
   The first respondent has been served with a notice of the appeal and hearing, but has not shown any interest or participated in the proceeding. The appellant filed an affidavit proving service of the appeal, which I have considered.
3. [3]
   The active parties provided outlines of argument and made further submissions on the hearing of the appeal, which I have considered.

Background

4. [4]
   On 17 October 2014, a police officer made an application against the appellant for a protection order made under s 25 of the Act in respect of the aggrieved, the first respondent.
5. [5]
   The applicant alleged the following conduct of the appellant:

   1. (a)
      The first respondent’s apartment locks were ‘superglued’ on three occasions and that on several occasions the appellant had been to her apartment and left notes to the effect that he was “sorry I have missed you”.
   2. (b)
      On 16 October 2014 the first respondent returned home and found the appellant sitting on the staircase leading up to her apartment. When the first respondent saw the appellant, the appellant ran to her front door and leant against it. The first respondent’s evidence was that the appellant said to her words which included a complaint that the first respondent had treated him as invisible. The appellant called her a “fucking slut”. The appellant accepts that he used these words. There were repeated requests by the appellant – some of which were in a raised tone of voice – to talk to her.
   3. (c)
      The first respondent’s version of events was that she ultimately agreed to call the appellant to defuse the situation and entice the appellant to leave. The appellant responded to the effect that if the first respondent did not call him, he would be very angry.
   4. (d)
      On the same day the first respondent received a phone call which did not display the caller’s identity and thereafter a further then calls.
   5. (e)
      The last call was received when the first respondent was in fact at the police station. She answered this call, discovered it was the appellant and provided the phone to the police officer. The officer gave evidence that the caller identified himself as the appellant and then hung up.
   6. (f)
      When the first respondent returned home accompanied by two police officers, the appellant was waiting for her at her apartment, uninvited. The appellant failed to move on as directed by the police and was arrested.
6. [6]
   On the first mention date, 23 October 2014, the appellant gave consent (without admissions) for a temporary protection order that “the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.”
7. [7]
   The appellant and the respondent were in a relationship for approximately seven or eight months, which ended in late August 2014.
8. [8]
   The application was heard and determined on 21 January 2015.
9. [9]
   The police prosecutor represented the applicant, and the appellant was represented at the hearing. The aggrieved first respondent was not present during the hearing.
10. [10]
    The prosecution relied upon several witness statements of Constable Dunstan, MLG and two other constables, Caleb Mainey and Scott Casey O'Donovan. The appellant’s evidence comprised a Statement of Evidence filed 5 January 2015 and an earlier signed statement dated 22 October 2014, which contained admissions, an apology and promises and undertaking about his future conduct.
11. [11]
    Much of this conduct (except for the allegations of ‘superglued’ locks) is consistent with the account given by the appellant in his Statement of Evidence in paragraphs 13, 14, 15, 18 and 19. At a very early stage in his statement dated 22 October 2014, the appellant admitted that:

“it is true that I visited [the first respondent’s] residence, twice, uninvited, that I used inappropriate language on one of these occasions and that [the first respondent] did not welcome my visits. It is also true that I telephoned [the first respondent’s] mobile a total of approximately ten times since we broke up, and I now understand these calls were not welcome.”

12. [12]
    Both parties elected to merely rely upon their witness material, and not examine or cross-examine any witnesses. Short oral submissions were made before the matter was determined on the filed material.
13. [13]
    After hearing the evidence, the magistrate gave an ex tempore decision with reasons, and made the following protection order (which went well beyond the terms of the temporary protection order):

    1. The appellant be of good behaviour towards the first respondent;
    2. The appellant is prohibited from remaining at, entering or attempting to enter, approaching within 50 meters of the first respondent’s usual place of residence;
    3. The appellant is prohibited from locating, attempting to locate or asking someone else to locate the first respondent;
    4. The appellant is prohibited from making telephone calls or sending text messages to the first respondent.

Mode of Appeal

14. [14]
    The appeal is brought pursuant to s 164 of the Act. In accordance with s 168(1), the appeal must be decided on the evidence and proceedings before the Magistrates Court and may be heard afresh whole or in part.
15. [15]
    The appeal is not a new trial to consider, as if presented for the first time, the arguments advanced. Where a point was not taken in the trial court and evidence could have been adduced to prevent the point from succeeding, or the point requires a further trial, it cannot be taken afterwards.^[1] Otherwise the appellate courts generally tolerate new points.
16. [16]
    Fundamentally, the appellant must demonstrate some legal, factual or discretionary error of the trial magistrate.
17. [17]
    Section 169 of the Act provides for the powers of this court in deciding an appeal. The court may:

    1. (a)
       Confirm the decision appealed against; or
    2. (b)
       Vary the decision appealed against; or
    3. (c)
       Set aside the decision and substitute another decision; or
    4. (d)
       Set aside the decision appealed against and remit the matter to the court that made the decision.

Grounds of Appeal

18. [18]
    The appellant appeals against the decision in reliance on the grounds of appeal in the Notice of Appeal, which can be categorised as follows:

    1. the magistrate failed to be bound, as required, by the decision in GKE v EUT [2014] QDC 248 at [33]. The future ‘risk’ of violence must be considered, and, if absent, a protection order should not be issued (Ground 1).
    2. The magistrate failed to consider the impact of the loss of the weapons license [and] was required to do so (Ground 2).
    3. The magistrate erred in deciding that a ‘boyfriend / girlfriend’ relationship, which is a ‘dating’ relationship [s 18(6) of the Act] is a ‘couple’ relationship (Ground 3).
    4. The magistrate made a procedural error in that the singed written statement of the appellant was not sworn; it should have been sworn at the hearing (Ground 4).
    5. The magistrate made an error of fact being that the magistrate observed that the appellant was arrested at the front gate or front entrance of the first respondent’s unit whereas he had in fact left the complex (Ground 5); and
    6. The magistrate ‘inappropriately dismissed’ an argument to the effect that the appellant’s explanation for making contact with the first respondent in the absence of any opportunity by the magistrate to compare demeanours (Ground 6).

Preliminary Issue

19. [19]
    Firstly, the appellant took a preliminary issue seeking to bind the second respondent to a Joint Outline of Submissions, effectively conceding the appeal. The argument is that the first respondent conceded the appeal, and the second respondent is estopped from challenging the concession.
20. [20]
    In my view, neither argument is viable. The first respondent was not an active party and no concession could be attributed to her, and the conduct does not found any action in estoppel.

Concession

21. [21]
    The appeal was commenced on 31 February 2015. Although the document heading only identified the appellant and the first respondent aggrieved, the Notice of Appeal was endorsed to be served on the first respondent and the “Queensland Police Service”.
22. [22]
    The notice of appeal was only served on the “Queensland Police Service”.
23. [23]
    The second respondent, Police Commissioner of the Queensland Police Service, has a right to appear and be heard by the Court on the hearing of the appeal under s 167 of the Act.
24. [24]
    Pursuant to that power, a Notice of Address for Service was filed by the “PSBA Legal Service”. “PSBA” is the acronym for the Police Safety Business Agency, which is a newly amalgamated emergency services support agency serving the Queensland Police Service, Fire and Emergency Services and the Office of the Inspector General Emergency Management. It has been tasked with the delivery of a range of services including legal services.
25. [25]
    The form of the Notice of Address for Service filed by the PBSA did not properly identify the second respondent as the relevant party. Instead, it gave the false impression that the notice of address for service was of the “Respondent”, being the aggrieved, first respondent.
26. [26]
    Therefore, properly construed, the Notice of Address for Service constituted the election of the Police Commissioner to appear and be heard by the Court on the hearing of the appeal under s 167 of the Act.
27. [27]
    The appellant then filed and served on the second respondent an Outline of Submissions on 12 March 2015.
28. [28]
    After some discussions between the representatives of the appellant and the second respondent, the appellant filed a “Joint Outline of Argument” signed by then counsel representing the second respondent and the solicitor representing the appellant. Those parties conceded appealable error and jointly sought orders that the appeal be allowed. The parties also purported to “agree” that the document would be the “sole outline for consideration by the Court”.
29. [29]
    The second respondent, later represented by different counsel, renounced the Joint Outline of Argument, and its effect, on the basis that the former counsel for the second respondent had no authority or instructions to concede the appeal in that way or at all. The second respondent has since filed, pursuant to directions, a separate Outline of Submissions contesting the appeal.
30. [30]
    By that stage the first respondent had not been served. Indeed, the first respondent first received notice of this appeal when she was served with the Notice of Appeal (and other filed documents) on 29 April 2015 pursuant to an order of this Court to so do. She has not sought to participate in the proceeding.
31. [31]
    It must follow that any concession could not be attributed to the first respondent. Further, even if the second respondent made such a concession, it is not binding on the first respondent or this Court.

Estoppel

32. [32]
    The appellant also relies upon the doctrine of estoppel to hold the second respondent to the concession or capitulation in the appeal.
33. [33]
    The appellant’s Outline of Argument extracts a quote of Jordan CJ in Franklin v Manufacturers Mutual Insurance Ltd (1935) 36 SR (NSW) 76 at 82 cited in Meagher, Gummow and Lehane, in ‘Equity Doctrines and Remedies’, 4^th edition, page 538, that:

“[E]stoppel [by representation] [will] arise, [if] (1) by word or conduct (2) reasonably likely to be understood as a representation of fact, (3) a representation of fact, as contrasted with a mere expression of intention, should be made to another person, either innocently or fraudulently, (4) in such circumstances that a reasonable man would regard himself as invited to act upon it in a particular way, (5) and that the representation should have been material in inducing the person to whom it was made to act on it in that way (6) so that his position would be altered to his detriment if the fact were otherwise than represented.”

34. [34]
    In my view, the argument is misconceived.
35. [35]
    The doctrine of estoppel has no application to this appeal proceeding, especially where resolution is dependant upon an exervise of the appellate court’s discretion, and not a matter for some of the parties. Even if it applied, the requisite reliance or detriment cannot be demonstrated here. At best, the appellant may have formed some false hope, but he has suffered no recognisable detriment. There was no delay and no costs incurred by the appellant as a result of the renunciation. The appellant has been represented on a pro bono basis.
36. [36]
    For these reasons, the preliminary issue must fail, and the appeal will proceed on its merits.

Legislative Context

37. [37]
    The first three grounds of appeal relate to whether the magistrate erred in law in the application of s 37 of the Act.
38. [38]
    Section 37 of the Act provides:

“(1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—

1. (a)
   a relevant relationship exists between the aggrieved and the respondent; and

2. (b)
   the respondent has committed domestic violence against the aggrieved; and

3. (c)
   the protection order is necessary or desirable to protect the aggrieved from domestic violence.

2. (2)
   In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court—

1. (a)
   must consider the principles mentioned in section 4; and 

2. (b)
   may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.

3. (3)
   If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court considers appropriate.”

39. [39]
    The section requires the court to first be satisfied of three requisite elements prescribed in sub-section 37(1) before exercising the discretion to make a protection order. Satisfaction of each element requires further considerations of fact and law. Once satisfied of those matters, the court may, in the exercise of its discretion, make a protection order.
40. [40]
    The court need only be satisfied of a matter on the balance of probabilities (s 145(2)), and the onus is on the applicant to prove that the requirements have been made out.^[2]

Relevant Relationship

41. [41]
    It is necessary for the parties to be in one of the relevant relationships that are covered by the Act, namely: an intimate personal relationship, a family relationship, or an informal care relationship.
42. [42]
    Relevant to this appeal, an intimate personal relationship is defined in s 14 to include “a couple relationship”. The new definition of couple relationship is intended to capture a broader range of relationships than the former legislation.
43. [43]
    The new definition of couple relationship in s 18 requires the court to consider the objective factors that underpin or evidence the existence of a couple relationship. In doing so, the court may have regard to the factors set out in s 18(2) in determining whether a couple relationship existed, namely:

    1. (a)
       The circumstances of the relationship between the persons, including, for example

       1. The degree of trust between the persons; and
       2. The level of each person’s dependence on, and commitment to, the other person;
    2. (b)
       The length of time for which the relationship has existed or did exist;
    3. (c)
       The frequency of contact between the persons;
    4. (d)
       The degree of intimacy between the persons.
44. [44]
    Section 18(3) sets out additional factors which, unlike s 18(2), are a series of closed questions, none of which are conclusive, namely:

    1. (a)
       Whether the trust, dependence or commitment is or was of the same level;
    2. (b)
       Whether one of the persons is or was financially dependant on the other;
    3. (c)
       Whether the persons jointly own or owned any property;
    4. (d)
       Whether the persons have or had joint bank accounts;
    5. (e)
       Whether the relationship involves or involved a relationship or a sexual nature;
    6. (f)
       Whether the relationship is or was exclusive.
45. [45]
    These additional factors provide further guidance in the exercise of discretion. However, the court may still determine that two people were in a couple relationship if some or all of the matters referred to in s 18(3) are absent from the relationship (s 18(4)). The same is not prescribed in relation to the factors in s 18(2).
46. [46]
    It is an objective test, and the court ought not rely upon subjective perceptions of how the parties themselves view, define or describe the relationship. A couple relationship goes beyond a relationship that exists merely because the parties date or dated each other on a number of occasions (s 18(6)) and gender is irrelevant (s 18(5)).

Domestic Violence

47. [47]
    The second element of s 37(1) is the requirement that the respondent has committed “domestic violence” against the aggrieved (including someone associated with the aggrieved).
48. [48]
    The definition of domestic violence in s 8 of the Act reflects the contemporary understanding of domestic violence, and includes behaviour that is physically or sexually abusive, emotionally, psychologically or economically abusive, threatening or coercive, or behaviour that in any other way controls or dominates another person causing fear. Particular modes and types of abuse are further defined in ss 9, 10, 11 and 12.
49. [49]
    There was no issue that sufficient conduct subject of the application constituted domestic violence.^[3]

Protection of Aggrieved

50. [50]
    The third element in s 37(1)(c) is that “the protection order is necessary or desirable to protect the aggrieved from domestic violence”.
51. [51]
    The focus of this element is the paramount need for the protection of an aggrieved from domestic violence, and whether imposing a protection order is necessary or desirable to meet that need.
52. [52]
    The use of the phrase “necessary or desirable” invokes a very wide and general power, and should be construed in a similarly liberal manner to enable a court to properly respond, and, if appropriate, tailor an order to protect a person from domestic violence. The phrase is not unusual int hat it appears in both state and federal legislation, including analogous anti-domestic violence legislation.^[4]
53. [53]
    In GKE v EUT [2014] QDC 248 McGill SC DCJ considered the requirement and said at [32] to [33]:

“[32]  In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved.

[33]  I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future. Broadly speaking I agree with what the Magistrate said in the passage beginning “fourthly” of his reasons, though I would express the last sentence as “the risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.” In assessing such a risk, it is relevant to consider the fact that there is going to have to be some ongoing relationship because of the position of the children, and, if as the appellant alleges the respondent has been difficult and uncooperative in the past in relation to the arrangements for him to have the opportunity to spend time with the children, there is a risk that there will be situations arising of a kind which have in the past produced domestic violence.”

54. [54]
    This is consistent with the explanatory notes of the Domestic and Family Violence Protection Bill 2011:

“The Bill replaces the ‘likelihood’ element with a requirement that a court be satisfied that an order is necessary or desirable to protect an aggrieved from domestic violence. This change focuses the court on the protective needs of the aggrieved and whether imposing conditions on the respondent’s behaviour is necessary or desirable to meet these needs. The court may still consider evidence which suggests that domestic violence may occur again, or a threat may be carried out, however the court does not need to be satisfied that such an event is ‘likely’. Further, a court can look at other factors, including whether an aggrieved is in fear, when it is determining this element. The new grounds also require a court to consider the guiding principles in deciding whether an order is necessary or desirable for the protection of the aggrieved. The priority of the Bill is the safety and wellbeing of the aggrieved and the grounds for making a protection order are directed toward achieving this aim. These measures are also consistent with the objective of ensuring that orders are only made for the benefit of the person who is in need of protection and are intended to reduce inappropriate cross applications and cross-orders.”

55. [55]
    In my view, the third element of whether “the protection order is necessary or desirable to protect the aggrieved from domestic violence” requires a three stage process supported by a proper evidentiary basis (adduced pursuant to s 145 of the Act):

1. Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order.

There must be evidence to make factual findings or draw inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders (s 37(2)(b)), and changes of circumstances.

Unlike its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence.

2. Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order.

Relevant considerations may include evidence of the parties’ future personal and family relationships, their places of residence or work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children.

3. Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from domestic violence.

In that regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1) that:

1. (A)
   The safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount;
2. (B)
   People who fear or experience domestic violence, including children, should be treated with respect, and disruption to their lives minimised;
3. (C)
   Perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
4. (D)
   If people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;
5. (E)
   In circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is in most need of protection should be identified;
6. (F)
   A civil response under this act should operate in conjunction with, not instead of, the criminal law.

Finally, if the court is satisfied of the other pre-conditions of a relevant relationship and domestic violence are established, the court may exercise its discretion to make a protection order imposing appropriate prohibitions or restrictions on the behaviour of a respondent necessary or desirable to protect the aggrieved from the domestic violence.

Relevant Relationship (Ground 3)

56. [56]
    I firstly deal with the appellant’s appeal ground 3, that the magistrate erred in deciding that the parties were in a ‘couple relationship’.
57. [57]
    The respondent’s evidence included a statement filed 5 January 2015 which was prepared in a submission-like format peppered with commentary, opinion and factual matters. These matters go to weight. The appellant elaborated on his perception of the matters referred to in s 18(3), particularly the absence of mutual trust, dependence or commitment, financial commitment, joint bank accounts or property, and exclusivity.
58. [58]
    The magistrate made the following findings in concluding that the appellant and first respondent were in a couple relationship:

“In this case, the [appellant] submits that I couldn’t be satisfied that there is or was a couple relationship.  I have regard to the material – all the material relied on by the parties.  The [first respondent] says that she and the [appellant] had a boyfriend/girlfriend relationship for about eight months, and they broke upo in about August 2014.  The [appellant] says that they met on a date website.  They broke up in about August 2014.  The [appellant] says that they met on a dating website.  They dated on 10 – 15 occasions over a seven months period, and they had sexual intercourse on each or nearly each of those occasions.”

59. [59]
    Later in the decision (at page 3 lines 5 to 10), the magistrate added:

“I also reject [the appellant’s] evidence in relation to the relationship … where it is inconsistent with the evidence of [the first respondent], however, even if I had accepted the respondent’s evidence in relation to the circumstances of the relationship, I would still be satisfied under the Act that a couple relationship existed between the parties.  That’s having regard to the number of occasions – the frequency of contact and the sexual relationship in particular.”

60. [60]
    Section 37 required the court to be satisfied that a “relevant relationship” existed between the appellant and the first respondent. Section 13 defines relevant relationship as an “intimate personal relationship”. Section 14 further defines an intimate personal relationship as a “couple relationship”. The appellant argued that the relationship did not go beyond a relationship that existed merely because the parties dated each other on a number of occasions within the meaning of s 18(6) of the Act.
61. [61]
    The terms “date” and “dating” are not defined in the Act. The term is ordinarily used colloquially when two people meet socially in public, usually involving some romantic interest beyond mere friendship, or with the aim of assessing each other’s suitability for an intimate relationship. It is a precursor to the establishment of a couple relationship.
62. [62]
    The magistrate referred to the threat of legislative provisions, and referred to matters listed in s 18(2) including the circumstances of the relationship, the length of the relationship, the frequency of contact and the degree of intimacy. The findings made were open on the evidence and in my view, involved significant elements in ss 18(2) and (3) of the Act to support the conclusion of a couple relationship between the appellant and first respondent. It was not necessary for all the elements to be present.
63. [63]
    It is clear that the evidence demonstrated that the relationship went beyond one of ‘dating’, and appeal ground three will fail.

Need for Protection (Ground 1)

64. [64]
    The appellant’s first appeal ground is that the magistrate failed to be bound, as required by the decision in GKE v EUT [2014] QDC 248 at [33], such that a future risk of violence must be considered and, if absent, a protection order should not be issued.
65. [65]
    At the commencement of the decision, the magistrate generally referred to the requirements of s 37, including the need to have regard to the principles set out in s 4 of the Act. The magistrate summarised the offensive conduct from page 2, line 23 to page 3, line 15 of the transcript as follows:

“In regard to whether a domestic violence order is necessary or desirable, the [appellant] submits that it is neither as, in effect, he had no intention to intimidate or harass the [first respondent] when he contacted her.  He says that he went to her unit on 16 October 2014 to speak to her.  She didn’t want to speak to him.  He called her a fucking slut.  He then sat on her doormat as he says there was nowhere else for him to sit.  He could have left or he could have told her immediately what he wanted to say.  It’s unclear, on his account, why he didn’t do so.  He says that he went there because he wished to advise her that he had in 2013 been diagnosed with Human Papillomavirus and he thought that it may have returned.  He says that he thought he should … provide this information to her.

On his own addition, … or on his own material, the [appellant] visited the [first respondent’s] residence twice uninvited.  He swore at her and says that he knew that [the first respondent] did not welcome his visits on those occasions, and he says that he telephoned her mobile 10 times.  The police statements reveal that on the 17th of October, two officers went with [the first respondent] to her unit.  She told them she was scared to return there alone.  It seems her fears were well founded because even though the respondent knew that she had been at the police station because he had called her mobile phone while she was there and a police officer answered her phone, he was at her unit when the police took her home.  He was then very reluctant to leave her front door.  When he did so at the direction of the police, he went to the front gate or the front entrance of her unit.  He refused to leave there when told buy the police.  They issued a ‘move on’ direction.  He still refused to leave and ultimately the police officers were forced to arrest him and take him into custody.  Such was his determination to remain at her residence.

In relation to why he wanted to speak to her and his reasons for attending at her unit and telephoning [the first respondent] on at least 10 occasions, I find that the [appellant’s] account is wholly improbable.  I reject it where it is inconsistent with the evidence of the [first respondent] and the police officers.  …. Further, given the [appellant’s] actions towards the aggrieved, in particular his obstinacy in attending at her unit, …the fact that he would not leave her residence until he was arrested by the police. 

I am satisfied that it is desirable to make a protection order.”

66. [66]
    The magistrate’s reasons confuse and conflate the considerations relevant to s 37(1)(a) and s 37(1)(c) of whether the appellant committed domestic violence against the first respondent and whether a protection order is necessary or desirable to protect the first respondent from domestic violence.
67. [67]
    Further, the reasons are insufficient to discern whether the magistrate had regard to some material considerations required in s 37(1)(c) or the evidential basis or process of reasoning supporting the conclusion that it was desirable to make a protection order. In particular, it seems to me that the magistrate failed to assess the nature and risk of future domestic violence, the nature of such risk, the protective needs of the aggrieved (if any), and, if a need was found, how imposing a protection order was “necessary or desirable” to meet those needs.
68. [68]
    In my respectful view, the trial magistrate erred in exercising the discretion by acting upon a wrong principle in determining whether the order was “necessary or desirable” and allowed erroneous or irrelevant matters to guide or affect her.

Relevant consideration (Ground 2)

69. [69]
    The appellant’s second ground of appeal is that the magistrate failed to consider the impact of the loss of the weapons license and was required to do so.
70. [70]
    The appellant was a recreational sports shooter.
71. [71]
    The consequences of a protection order vis-à-vis the appellant was not a relevant consideration required by s 37 of the Act. At best, s 80 of the Act required the magistrate to consider matters relating to weapons before making a domestic violence order. Section 10B of the Weapons Act 1990 (Qld) provides that a person against whom a protection order is made cannot apply for a weapons license for a period of 5 years from the date of a domestic violence order (other than a temporary protection order).
72. [72]
    The appellant’s weapons license was canvassed in submissions, and the consequences of an order were well known to the appellant. Indeed, the prospect of losing his weapons license was the main motive for defeating the application. In my view, this ground cannot be sustained.

Procedural Error (Ground 4)

73. [73]
    The appellant’s fourth ground of appeal is that the magistrate made a procedural error because the signed written statement of the appellant was not sworn; and that it should have been sworn at the hearing.
74. [74]
    By virtue of s 145 of the Act, the magistrate was not bound by the rules of evidence, or any practices or procedures applying to courts of record; and could inform herself in any way she considered appropriate.
75. [75]
    The appellant’s statement formed part of the material before the court. The appellant was not required to strictly prove its contents by oath or affirmation. It is clear from the transcript of the hearing and the reasons, that the magistrate did have regard to the appellant’s Statement of Evidence filed 5 January 2015. For these reasons, this ground will fail.

Challenge to fact finding based on witness’ credit (Ground 5 & 6)

76. [76]
    The appellant also challenges the magistrate’s finding of fact:

    1. (a)
       In relation to the circumstances of the appellant’s arrest (appeal ground 5); and
    2. (b)
       In relation to the appellant’s explanation for making contact with the first respondent (appeal ground 6).
77. [77]
    These case authorities dealing with findings of fact based on witness’s credit are particularly relevant if the trial involved oral testimony and cross examination.^[5]
78. [78]
    The witnesses in this case were not subjected to cross-examination. Instead, evidence was provided in writing following submissions by both sides. The great difficulty for the appellant in this appeal is that the majority of the trial magistrate’s findings were based on Her Honour’s views of the appellant’s evidence presented to her and her assessment of that evidence. That is clear from the reasons given.
79. [79]
    The findings subject of appeal grounds 5 and 6 were open on the evidence and I see no justification for disturbing those findings.

Protection Order

80. [80]
    This court ought not interfere with the decision to make the protection order unless it is vitiated by an error of principle, there has been failure to appreciate the salient feature⁶ or there is otherwise a miscarriage of justice.
81. [81]
    The High Court held in House v The King^[6] that:

"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance."

82. [82]
    I am satisfied that the relevant “couple relationship” and “domestic violence” are established on the evidence discussed as above. However, for the reasons in relation to ground one, in my respectful view, the trial magistrate erred in exercising the discretion by acting upon a wrong principle; allowing extraneous or irrelevant matters to guide or affect the decision; and not taking into account some of the material considerations relevant to s 37(1)(c) and (2).
83. [83]
    Whilst it does not appear how the trial magistrate reached the result embodied in the orders, that result, in my respectful opinion, was unreasonable or plainly unjust.
84. [84]
    Therefore, it is appropriate to consider the matter afresh in relation to whether a protection order imposing appropriate prohibitions or restrictions on the behaviour of the appellant is necessary or desirable to protect the first respondent from domestic violence.
85. [85]
    Whilst the contradictory versions proffered by the witnesses in their various statements were not challenged in cross-examination, I agree with the magistrate’s finding that the appellant’s account, that his conduct was motivated by his need to warn the first respondent of his Human Papillomavirus, was wholly improbable. The assertion was not supported by any of his independent medical evidence, and the appellant had ample opportunity to disclose his condition both during the relationship and immediately after its termination. I also reject the appellant’s evidence where it was inconsistent with the evidence of the first respondent and the police officers.
86. [86]
    Nevertheless, much of the appellant’s statement filed 5 January 2015, to the extend it was not inconsistent with that of the other witnesses, remains uncontradicted and unchallenged. Significantly, it was the only contemporary evidence before the court about the matters referred to in s 18 (3)(c) and related provisions. It was not rejected by the magistrate and the other parties made no attempt to provide similar contemporary evidence about these matters.
87. [87]
    At the hearing, the appellant relied upon this statement containing his written apology,^[7] and personal undertakings to never go within 100 meters of the first respondent’s home or work, or attempt to contact her by telephone, internet or email.^[8] This affirmed his earlier statement dated 22 October 2014, which contained admissions, an apology and promises and undertakings about his future conduct. It seems to me that these matters evidenced genuine remorse and rehabilitation. The appellant’s conduct is not such that would warrant medical treatment or counselling. He fully complied with the voluntary temporary order made on 23 October 2014 which was expressed in very general terms.
88. [88]
    The parties’ relationship has extinguished and their lives are completely disparate and separate. There is no real prospect of any future personal relationship. Opportunities for direct and indirect contact are extremely remote having regard to the size of the community, and the parties’ respective home and work addresses. There is no evident need for the parties to communicate or make contact with each other in the future.
89. [89]
    Although she elected not to participate in the proceeding, the safety, protection and wellbeing of the first respondent remained paramount. Her fear and experience of domestic violence was treated with respect and appropriately curtailed by the temporary protection order. It seems to me that it is unlikely that the first respondent will suffer any future disruption to life. The appellant was held accountable for his use of violence and its impact on the first respondent, but has taken the opportunity to change. There is no evidence of characteristics that may make the first respondent particularly vulnerable to domestic violence vis-à-vis the appellant.
90. [90]
    I am unable to discern any risk of future domestic violence between the parties in the absence of any order. I am not satisfied that there is any demonstratable need to protect the first respondent from any domestic violence in the absence of an order. It must then follow that the imposition of a protection order is neither necessary nor desirable to protect the aggrieved from domestic violence.

Order

91. [91]
    I therefore make the following order

1. Appeal allowed
2. The orders made in the Magistrates Court on 21 January 2015 are set aside.
3. The application for a domestic violence order is dismissed.
4. I give liberty to apply for any other orders and directions by first giving at least 5 business days written notice to the other parties.

Judge Dean P. Morzone QC