DMK v CAG[2016] QDC 106

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant appeals to overturn the domestic violence protection order made by the Magistrates Court on 24 June 2015 pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”).

Background

2. [2]
   The originating application for a Domestic Violence Protection Order was heard on an interim basis in the Magistrates Court at Cairns on 13 March 2015, with final orders made on 24 June 2015.

3. [3]
   There was no dispute that a relevant relationship existed between the appellant and respondent for the purposes of the Act. The parties had been in a de-facto relationship for almost ten years before separating in July 2010, and they continue in a parenting relationship with the respondent as the primary caregiver.

4. [4]
   The trial magistrate heard evidence from the respondent, Mr Brooker, Senior Constable Pearson, Senior Constable South, Detective Senior Constable McNeill, Constable Lax, Senior Sergeant Craig, and the appellant. His Honour also had regard to the following court orders in existence between the parties:

1. Family Court Order concerning the appellant and respondent and their children made on 2 October 2013;

2. Protection Order made against the respondent on 10 October 2013 (and varied on 27 February 2014) naming the appellant as the aggrieved; and

3. Temporary Protection Order made on 16 October 2014, with the consent of the appellant and respondent, with the respondent as the aggrieved.

5. [5]
   The magistrate heard and accurately summarised the evidence about at least six incidents subject of the application, which I summarise as follows:^[1]

1. The appellant made a complaint to police on 16 November 2013 of his nine or ten year old daughter “sexting” (“sexed” or “sexing” being a reference to kissing boys). This was uncontested by the appellant. The police investigated and determined the complaint to be unfounded. The appellant testified that he made the report because of his concern for his daughter’s welfare and safety. The children were apparently subjected to interviews with police pursuant to s 93A of the Evidence Act (Qld).

2. The appellant made a complaint to police on 29 November 2013 that the respondent texted him in contravention of the Protection Order in which he was the aggrieved. This was also uncontested by the appellant. He testified that he was being “bullied” and harassed by the respondent. The police subsequently investigated and determined the complaint to be unfounded, and that the contact was in accordance with a Family Law Court order.

3. It was alleged that the appellant threatened the children in December 2013 by saying that he was going to kill them, the respondent, her then partner and his children. The respondent testified that the children returned upset and crying. The appellant denied an allegation.

4. The appellant made a complaint to police that the respondent’s partner had unregistered firearms in reliance upon his son’s report of seeing firearms at the partner’s house. This was uncontested by the appellant. The complaint resulted in police executing a search warrant at the house on 22 December 2013 in the presence of the respondent, her partner and the children, and during which the police did not find any unregistered firearms.

5. The appellant made a complaint to police on 16 February 2014 of the “kidnapping” by the respondent of the appellant’s 17 year old daughter. This was also uncontested by the appellant. Instead, the appellant sought to justify this in the context of his perceived need to protect the rights of a disadvantaged migrant. The 17 year old child told police she was merely visiting the respondent of her own free will, and the police determined that the complaint was unfounded.

6. The appellant was also alleged to have threatened the children to the effect that he was going to get the respondent arrested and sent to jail. The evidence seemed vague and broad in this regard.

6. [6]
   At the hearing, the magistrate accepted the respondent’s evidence that the appellant’s conduct caused her to live in constant fear that the appellant would act on his threats to kill her; that she was in fear of the police because of the complaints made by the appellant; that she felt he was using the protection order to bully and harass the respondent; and that the respondent was in fear of what the appellant would say to the children. The court was satisfied that the complaints made by the appellant were more targeted and directed towards the respondent, and not just his mere desire for compliance with court orders.^[2]

7. [7]
   His Honour characterised the “domestic violence” as falling within the definition in ss 8(1)(b) and (f) of the Act being behaviour that is emotionally or psychologically abusive and in any other way controls or dominates and causes fear for their safety or wellbeing or that of someone else.^[3]

8. [8]
   Ultimately, His Honour was satisfied that a protection order was desirable to protect the aggrieved respondent from domestic violence and exercised his discretion to make a protection order effective for 12 months.

Grounds of Appeal

9. [9]
   The appellant seeks “a novo rehearing as of right and that the appeal be heard afresh and in whole”. I will deal with this as a preliminary issue about the mode of this appeal hearing, fresh evidence and the applicable standard of proof.

10. [10]
    The appellant’s substantive grounds of appeal can be categorised as follows:

1. The appellant’s conduct in making complaints to the police was not “domestic violence” within the meaning of the Act, and the magistrate erred in law in so finding (Grounds 2, 3, 6 and 7);

2. The magistrate erred by failing to take account of the rule in Jones v Dunkel^[4]in respect of the failure or refusal of the prosecution to disclose evidence relating to the conduct or the history of the prosecution witness Raymond Brooker and/or the reasons otherwise for the search warrant being executed that are here unrelated to the appellant’s report (Ground 8);

3. The magistrate failed to exercise his discretion reasonably by not finding that the prosecution case was frivolous and/or vexatious or otherwise an abuse of process (Ground 9);

4. The magistrate failed to exercise his discretion reasonably by making the protection order (Ground 10).

11. [11]
    As to Grounds 4 and 5 wherein the appellant asserts that the magistrate erred at law in making certain findings, the transcript shows that His Honour made no such findings, and the grounds on there own are inherently baseless. I do not propose to address them further.

Preliminary Issues

12. [12]
    The appellant’s notice of appeal and submissions, raise some preliminary issues in relation to the mode of hearing, fresh evidence and the applicable standard of proof.

Mode of Appeal

13. [13]
    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.

14. [14]
    The appeal is not a new trial to consider argument and evidence, as if presented for the first time. More broadly, requirements and limitations of such an appeal are set out by the High Court in Fox v Percy (2003) 214 CLR 118 at [23], as follows:

“On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.”^[5](Footnotes omitted.)

15. [15]
    Subsection 168(2) reposes discretion in this court to order that the appeal be heard afresh in whole or in part. It seems to me that this discretion may be invoked if the appellant demonstrates some legal, factual or discretionary error of the trial magistrate. For the reasons which I elucidate below, none of these have been demonstrated.

16. [16]
    Section 169 of the Act provides the powers of this court in deciding an appeal including:

1. (a)
   to confirm the decision appealed against; or

2. (b)
   to vary the decision appealed against; or

3. (c)
   to set aside the decision and substitute another decision; or

4. (d)
   to set aside the decision appealed against and remit the matter to the court that made the decision.

Fresh Evidence

17. [17]
    The preliminary point about fresh evidence is related to the mode of hearing the appeal afresh in whole or in part under s 168(2), despite the mandatory terms of s 168(1) of the Act.

18. [18]
    Inhis Notice of Appeal the appellant seeks to:

“put further evidence before the court in the form of:

1.Cross-examination of Barbara KURZELEWSKA (sic); and

2.Subpoena to QPS Commissioner to recover a copy of a letter sent to Acute Care Services Qld Health.”

19. [19]
    As to the latter document, one of the orders sought by the appellant is that “the letter sent by or on behalf of the QPS to Acute Care Services Queensland Health in earlier in 2014 be recovered and delivered for the hearing.”^[6]

20. [20]
    In accordance with well settled principles, the admission of new evidence for the first time in an appeal ought be reserved for special circumstances where the new evidence:

1. could not have been obtained with reasonable diligence for use at the trial hearing;

2. would probably have an important influence on the result of the case, even though not decisive; and

3. must be apparently credible though not incontrovertible.

21. [21]
    None of these elements can be sustained here.

22. [22]
    I fail to see how that witness, or the police correspondence, even if credible and available at trial, at best go to collateral issues and would have had any important influence on the result of the case. Further, as to the foreshadowed cross examination of the witness Ms Kurzelewski, the appellant’s counsel properly, it seems to me, disavowed any reliance upon the witness’s evidence in the absence of an interpreter.^[7]

23. [23]
    Therefore I disallow any further evidence, and will proceed to decide the appeal on the evidence and proceedings before the Magistrates Court.

Standard of Proof

24. [24]
    Whilst the appellant accepts that the standard of proof under the Act is the balance of probabilities, he submits that the principles of Briginshaw v Briginshaw^[8]ought require stronger evidentiary proof of that standard.

25. [25]
    The argument seems to cut across the evidentiary flexibility permitted under the Act.

26. [26]
    By virtue of s 145 the standard of proof was the balance of probabilities.^[9]To remove any doubt, s 8(4) provides that the court can make a protection order even if the offending behaviour is not proved beyond a reasonable doubtwhere it may also constitute a criminal offence.^[10]The Act does not contain a form of words akin to other statutes, for example s 140 of the Evidence Act 1995 (Cth), incorporating the common law Briginshaw principles. On the contrary, the court was not bound by the rules of evidence, or any practices or procedures applying to courts of record, and could inform itself in any way it considered appropriate.^[11]

27. [27]
    It seems to me that, as a matter of course, when deciding in accordance with the statutory framework whether or not to make a protection order, the court will have regard to all of the circumstances of the case, including the nature and gravity of the conduct and consequences of making or not making the order in relation to one or other of the parties.^[12]The onus is on an applicant to prove that the requirements have been made out.^[13]

Legislative Context

28. [28]
    The first three grounds of appeal are about whether the magistrate erred in law in the application of s 37 of the Act.

29. [29]
    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—

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

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

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

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

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

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

30. [30]
    The section requires the court to be satisfied of three requisite elements prescribed in s 37(1) before exercising the discretion to make a protection order.

Grounds 2, 3, 6 and 7 - “Domestic Violence”

31. [31]
    The appellant asserts that his conduct in making complaints to the police was not “domestic violence” within the meaning of the Act, and that the magistrate erred in law in so finding (Grounds 2, 3, 6 and 7).

32. [32]
    This ground relates to the second element of s 37(1) and whether the respondent has committed “domestic violence” against the aggrieved (including someone associated with the aggrieved). This was remedial legislation and ought to have been given the widest construction that the terms can fairly bear.^[14]

33. [33]
    The definition of “domestic violence” in s 8 reflects the contemporary understanding of domestic violence. Section 8(1)(b), (d) and (f) deals with behaviour relevant to this appeal including behaviour that:

“… (b)is emotionally or psychologically abusive; …

(d) is threatening; …

(f)  in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else. …”

34. [34]
    Pursuant to s 9, offending behaviour may be associated with domestic violence if it is done towards a child or an associate of the aggrieved. And by s 10, a child is exposed to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence.

35. [35]
    On the appeal the appellant argued that the purpose or motivation of his conduct was to protect the children so that they might live in a safe environment, and was not intended to harass anybody, particularly, the respondent. In his oral submissions, the appellant elaborated on the various events discussed in his written outline of argument. I summarise his arguments as follows:

1. The appellant’s complaint to police on 16 November 2013 of his daughter “sexting” (“sexed” or “sexing” being a reference to kissing a 14 year old boy) was true and made in reliance upon reports given by his son. He said that this conduct should be viewed as that of an objectively concerned parent taking such a matter to the police in the context of an acrimonious marriage break up where the parties were unable to communicate.

2. The appellant’s complaint to police on 29 November 2013 that the respondent had texted him in contravention of the Protection Order ought be considered in the broader context that there were “multiple texts many of which were unnecessary and or not directly about the children”, and there were “multiple attendances [by the respondent] at the children’s school” when the orders provided for the appellant to collect her. The appellant argued that the police did not demonstrate that the appellant should have known of the force of the Family Court orders.

3. The appellant denied the allegation that he had threatened the children in December 2013 to the effect that he was going to kill them, and argued that the respondent’s evidence was hearsay and fell below the evidentiary burden.

4. The appellant made a complained to police that the respondent’s partner had “guns and spear guns” not “unregistered firearms”. The appellant argued that the discovery of spear guns would constitute a breach of the domestic violence order against the respondent and thereby justified his complaint and the police investigation.

5. The appellant criticised the reliability of the witness’s evidence some two months after the events, and that his objective and genuine concerns for his 17 year old daughter were vindicated by the attainment of a protection order.

36. [36]
    The appellant also attacked the credit of the various witnesses whose evidence contradicted his own, and sought to challenge the magistrate’s findings against him by preferring the other witnesses.

37. [37]
    In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:^[15]

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”

38. [38]
    Similarly, in Fox v Percy,^[16]Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,^[17]as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way:

“[28]… the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (References omitted.)

39. [39]
    This is not an exhaustive formula. The Court went on to recognise that an appellate court might interfere, even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said:

“[29]… In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.

[30]  It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.” (Footnotes omitted.)

40. [40]
    Much of the evidence of the appellant’s offending behaviour in this appeal was uncontested, especially his making, and the content, of his complaints to police.

41. [41]
    By his finding that the behaviour was domestic violence within s 8(1)(b) and (f), the magistrate clearly accepted the uncontested facts and rejected the appellant’s evidence where it conflicted with other witnesses. On my assessment, there are no identifiable incontrovertible facts or uncontested testimony that demonstrate that the magistrate’s conclusions are erroneous.

42. [42]
    In relation to s 8(1)(b), s 11 defines ‘emotional or psychological abuse’ as follows:

“Emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.”

43. [43]
    Proof of emotional or psychological abuse depends not only on the inherent behaviour but also its effect of tormenting, intimidating, harassing or offending the subject aggrieved. The same could be said about s 8(1)(f) which requires proof of behaviour that in some way controlled or dominated an aggrieved to cause her to fear for her safety or wellbeing or for that of someone else. For that reason, evidence of the subjective response of the aggrieved respondent to the offending behaviour is relevant and admissible.^[18]

44. [44]
    Here, as is often the case, the parties were in the midst of an acrimonious marriage break-up where the parties were unable to communicate, Family Court orders and pending proceedings in that court. As ought to be expected, the police acted on the appellant’s complaints by launching appropriate investigations and action. In this context, I think the appellant’s complaints were demonstrably over-reaching, baseless or made for a collateral purpose. This in turn impacted the respondent and those associated with her, namely the children and her partner. Otherwise, the threatening communication with the children was also found to constitute domestic violence calculated to erode confidence and support of the children’s mother, the respondent.

45. [45]
    The magistrate found, and it was open on the evidence, that the respondent was the focal point of the appellant’s complaining behaviour. It seems to me that the complaints were also variously over reaching, or baseless or made for a collateral purpose. The threatening communication with the children would also constitute domestic violence, as being calculated to erode confidence and support of the children’s mother, the respondent.^[19]

46. [46]
    The magistrate found that the appellant lacked of insight into the inappropriateness of his conduct and its effect on the aggrieved as to constitute domestic violence. This was also obvious from the appellant’s arguments below and on appeal.

47. [47]
    The magistrate accepted the respondent’s evidence that the appellant’s conduct caused her to live in constant fear that the appellant would act on his threats to kill her; that she was in fear of the police because of the complaints made by the appellant; that she felt he was using the protection order to bully and harass her; and that she was in fear of what the appellant would say to the children. The magistrate properly considered that the allegations of breaches of the Family Court orders should have been the subject of contravention proceedings in that federal jurisdiction, rather than by police complaint. He was satisfied that the complaints made by the appellant to the police were targeted and directed towards the respondent and not just a mere desire for compliance with court orders.^[20]

48. [48]
    It seems to me that the appellant’s course of conduct over an extended period between approximately November 2013 and March 2014 evidenced his harassment and intimidation so as to cause the respondent substantial fear for her own safety and that of her children, her partner and his children, as well as feelings of frustration and embarrassment. It was open for the magistrate to find, and compelling on the evidence, that any and all of the appellant’s imputed behaviour was caught by s 8(1)(b) and (f) of the Act. Also his threatening communication with the children fell within s 8(1)(d) of the Act.

49. [49]
    On the whole, it seems to me that the appellant’s behaviour was clearly capable of amounting to harassment and intimidation under the Act, and His Honour correctly found that the appellant’s behaviour was “domestic violence” within the meaning of the Act.

50. [50]
    For these reasons, appeal grounds 2, 3, 6 and 7 must fail.

Ground 8 – Does Jones v Dunkel apply?

51. [51]
    The appellant argues that the magistrate erred by failing to take account of the rule in Jones v Dunkel in respect of the failure or refusal of the prosecution to disclose evidence relating to the conduct or the history of the prosecution witness Raymond Brooker and or the reasons otherwise for the search warrant being executed that where unrelated to the appellant’s complaint.

52. [52]
    It is trite law, that the rule in Jones v Dunkelrelates to the unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. An unfavourable inference cannot be drawn solely on the basis that the witness was not called; there must be a basis elsewhere in the evidence which that unfavourable inference can be drawn.

53. [53]
    The failure of a party to elicit every last detail from a witness does not give rise to an adverse inference being drawn in accordance with Jones v Dunkel. It is not clear what impact the evidence might have on the case. In any event, the ground is misconceived and must fail.

Ground 9 – Was the prosecution frivolous and vexatious?

54. [54]
    The appellant then asserts that the magistrate failed to exercise his discretion reasonably by not finding that the prosecution case was frivolous and/or vexatious, or otherwise an abuse of process.

Frivolous & Vexatious

55. [55]
    The terms “frivolous”, “vexatious” or “abuse of process” are not defined in the Act or associated regulations and rules. Therefore, the words will be given their ordinary meaning. Even where “frivolous” and “vexatious” are used together, they still have their ordinary meaning.

56. [56]
    In Mudie v Gainriver Pty Ltd (No2) [2003] 2 Qd R 271 at [35] the Court of Appeal in its consideration of the Integrated Planning Act 1997 (Qld) referred to the Macquarie Dictionary as follows:

‘“frivolous" defined as "of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection. 2. characterised by lack of seriousness or sense: frivolous conduct..." and "vexatious" defined as "1. causing vexation; vexing; annoying...”’

57. [57]
    The Court also referred to the Shorter Oxford English Dictionary as follows:^[21]

‘“frivolous” as “of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds. 2. Lacking seriousness or sense; silly.” and “vexatious” as “causing or tending to cause vexation, annoyance, or distress; annoying, troublesome. 2. In law. Of an action; instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant.'

58. [58]
    The Court found that: “Unquestionably, something much more than lack of success needs to be shown before a party's proceedings are frivolous or vexatious.”^[22]

59. [59]
    In Re Cameron [1996] 2 Qd R 218, Fitzgerald P said:

“It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court's practices, procedures and rulings, persistent attempts to use the court's processes to circumvent its decisions or other abuse of process, the wastage of public resources, and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis.”

60. [60]
    In the same case, MacKenzie J found that the combination of frequency and persistence, notwithstanding the lack of any substantial basis for the proceedings, is vexatious.”

61. [61]
    In my view the proceeding was prosecuted properly, and not frivolously or vexatiously. The case against the appellant was meritorious, warranted serious consideration and was successful. It could not be characterised as being of little or no weight, worth or importance, and thereby frivolous. It is not unusual for proceedings of this nature to trouble, annoy, or distress one or both parties. That may be the natural consequence of the proper conduct of proceedings in the context of highly emotional family breakdown and litigation. There is no evidence of vexatious conduct in this case.

Abuse of Process

62. [62]
    The High Court in Williams v Spautz (1992) 174 CLR 509 considered the term “abuse of process” and the majority at [42] concluded that:

“a person alleging such an abuse must show that the predominant purpose of the other party in using the legal process has been one other than that for which it was designed”.

63. [63]
    In a separate judgment, Brennan J elaborated as follows:^[23]

10.There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose — or motive — which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce. To amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include — at least to any substantial extent — the obtaining of relief within the scope of the remedy.

11.… The gravamen of the test, I apprehend, is that the plaintiff did not commence or maintain the proceeding for any substantial legitimate purpose. I would state the test in that way. Substantiality is a matter of degree, ascertained by reference to the intention attributed to the plaintiff in all the circumstances of the case. At the end of the day, the court must determine, by reference to the intention attributed to the plaintiff, not merely whether the collateral purpose of the proceeding outweighs any legitimate purpose but whether the plaintiff entertained any substantial intention that the proceeding should achieve a legitimate purpose.

12.For these reasons, I would hold that an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding (emphasis added).

64. [64]
    It seems to me that the proceeding was commenced and maintained for the substantial and legitimate purpose of obtaining the appropriate remedy under the Act. I cannot discern any improper purpose from the evidence to support the appellant’s contention of an abuse of process.

65. [65]
    Therefore, this ground of appeal must fail.

Ground 10 – Was it necessary or desirable to make a protection order?

66. [66]
    Finally, the appellant says that the magistrate failed to exercise his discretion reasonably by making the protection order.

67. [67]
    This ground relates to the third element in s 37(1)(c), which focuses on 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.

68. [68]
    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 in that appears in both state and federal legislation, including analogous anti-domestic violence legislation.^[24]

69. [69]
    In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court must consider the principles mentioned in section 4, namely:

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 most in 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.

70. [70]
    In my view, it was open on the evidence for the magistrate to conclude that the third element was satisfied and find that the protection order was desirable to protect the aggrieved from domestic violence because:^[25]

1. Firstly, the magistrate considered and assessed the risk of future domestic violence between the parties in the absence of any order. There was evidence to make factual findings or draw inferences of the nature of, and prospect that, domestic violence may occur in the future. In that regard it was relevant that the parties remain entrenched in highly volatile Family Court disputation, and their parental roles will involve direct and indirect contact and future communication in relation to children. The appellant’s past domestic violence and conduct has occurred under the guise of the appellant’s notion of parental responsibility and purported enforcement of family court proceedings. There was no evidence of genuine remorse, rehabilitation, medical treatment or physiological counseling.

2. Secondly, the magistrate assessed the need to protect the respondent from domestic violence in the absence of any order. His Honour considered the appellant’s manner of handling the stress of the ongoing parental relationship with the respondent to be inappropriate and concluded that the appellant had insufficient insight into his behaviour.^[26]This was consistent with the appellant’s conduct in the appeal hearing. The appellant seemed maintained a blinkered perception of his responsibility, entitlement and nobility, which manifested in an absence of insight into the consequences of his actions. Hisconduct occurred over an extended period between approximately November 2013 and March 2014 under the guise of his notion of parental responsibility and purported enforcement of Family Court Orders. His Honour was sure that the filing of the Application for a Protection Order in March 2014 and the making of a Temporary Protection Order in October 2014 had curbed the appellant’s behaviour.^[27]

3. Thirdly, the magistrate considered whether imposing a protection order was “necessary or desirable” to protect the aggrieved from the domestic violence. He found that the order was “desirable” having found that the respondent was fearful of future domestic violence. His Honour came to the view “applying the principle of paramount importance under section 57(2) that the safety, protection, and wellbeing of people who fear or experience DV”. Notwithstanding the apparent erroneous reference to “section 57(2)”, it is obvious that His Honour was applying the considerations required by s 37(2)(a) and the principles in s 4 of the Act.

4. Finally, having satisfied himself of the other pre-conditions that a relevant relationship and domestic violence was established, His Honour exercised his discretion to make a protection order imposing appropriate prohibitions or restrictions on the appellant’s behaviour, considered desirable to protect the respondent from domestic violence.

71. [71]
    The magistrate’s findings of fact based on inference ought be taken as correct unless and until the contrary is demonstrated. In Warren v Coombes,^[28]the majority of the High Court reiterated the rule that:

“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”.

72. [72]
    It seems to me that the magistrate’s findings were open on the evidence. The magistrate did not need to be satisfied that future domestic violence was ‘likely’ (required by the former Act). His reasoning, although economical, well demonstrated his satisfaction on the evidence of the prospect of domestic violence beyond some mere possibility or speculation.

73. [73]
    This court ought not interfere with a protection order made in the exercise of discretion unless it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the court’s discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.^[29]

74. [74]
    In my view, His Honour exercised his discretion properly and reasonably in making the protection order. The decision should stand.

Order

75. [75]
    I make the following orders:

1. Appeal dismissed.

2. The orders made in the Magistrates Court on 24 June 2015 are affirmed.

Judge Dean P Morzone QC