ACP v McAulliffe[2017] QDC 294

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 7 March 2017 a Magistrate made a protection order against ACP pursuant to s 37 of the Domestic and Family Violence Protection Act 2012. A temporary protection order had been made on 15 February 2016. Before the learned Magistrate were also three applications to vary that order.

2. [2]
   ACP appeals against the learned Magistrate’s decision to make the protection order because “the order fails to adequately consider the individual circumstances, with particular reference to the use of a DVO to remove fathers from childrens’ lives.”

3. [3]
   ACP says his appeal “is made on the grounds that prosecution failed to provide any evidence of any suggested or possible imposed threat [sic] to [the aggrieved].”

4. [4]
   For the reasons which follow the appeal should be allowed to the extent that the protection order included conditions beyond the standard conditions; but otherwise be dismissed.

The nature of the appeal

5. [5]
   The nature of an appeal depends upon the terms of the statute conferring the right of appeal.^[1]

6. [6]
   Section 168 of the DFVPA provides:

“168Hearing procedures

1. (1)
   An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
2. (2)
   However, the appellate court may order that the appeal be heard afresh, in whole or part.”

7. [7]
   Section 169 sets out the powers of the appellate court. It provides:

“169Powers of appellate court

1. (1)
   In deciding an appeal, the appellate 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.

2. (2)
   The decision of the appellate court upon an appeal shall be final and conclusive.”

8. [8]
   Under s 168(2) the court may order that the appeal be by way of a hearing de novo. That has not occurred in this case.

9. [9]
   In the absence of such an order, the nature of the appeal under s 168(1) is one of a re-hearing by the appellate court. That is so even though the nature of the appeal is not expressed in those terms. As was explained by McGill SC DCJ in GKE v ETU ^[2] it derives from the application, by operation of s 142(2) of the DFVPA, of Chapter 18 of the Uniform Civil Procedure Rules, particularly Rules, 783, 785 and 765(1), to appeals under the DFVPA.^[3]

10. [10]
    Where the nature of an appeal is by way of re-hearing the appellate powers of the court as provided by s 169 are to be exercised for the correction of error.^[4] In Coal and Allied Operations Pty Ltd v AIRC,^[5] Gleeson CJ, Gaudron and Hayne JJ said:

“Ordinarily, if there has been no further evidence submitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of re-hearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the powers are to be exercised for the correction of error.”

11. [11]
    Later,^[6] their Honours said:

“Because a full bench of the Commission has power under s 45(6) to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of re-hearing. And because there is nothing to suggest otherwise, its powers under sub-section (7) are excercisable only if there is error on the part of the primary decision – maker” 

12. [12]
    Where the decision under appeal involves an exercise of discretion, error of the kind explained in House v R^[7] in the following terms must be identified:

“If the judge acts upon a wrong principle, if he allows extraneous 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 reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

Relevant legislative provisions

13. [13]
    Section 4(1) of the DFVPA prescribes the principles for administering the Act. It provides:

“4Principles for administering Act

1. (1)
   This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
2. (2)
   Subject to subsection (1), this Act is also to be administered under the following principles—

1. (a)
   people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;

2. (b)
   to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under the Act;

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;

Examples of people who may be particularly vulnerable to domestic violence—

• women

• children

• Aboriginal people and Torres Strait Islanders

• People from a culturally or linguistically diverse background

• People with a disability

• People who are lesbian, gay, bisexual, transgender or intersex

• elderly people

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.”

14. [14]
    Section 8 defines domestic violence for the purposes of the Act. It provides:

“8Meaning of domestic violence

1. (1)
   Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

1. (a)
   is physically or sexually abusive; or

2. (b)
   is emotionally or psychologically abusive; or

3. (c)
   is economically abusive; or

4. (d)
   is threatening; or

5. (e)
   is coercive; or

6. (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.

2. (2)
   Without limiting subsection (1), domestic violence includes the following behaviour—

1. (a)
   causing personal injury to a person or threatening to do so;

2. (b)
   coercing a person to engage in sexual activity or attempting to do so;

3. (c)
   damaging a person’s property or threatening to do so;

4. (d)
   depriving a person of the person’s liberty or threatening to do so;

5. (e)
   threatening a person with the death or injury of the person, a child of the person, or someone else;

6. (f)
   threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;

7. (g)
   causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed so as to control, dominate or coerce the person;

8. (h)
   unauthorised surveillance of a person;

1. (i)
   unlawfully stalking a person.

3. (3)
   A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.
4. (4)
   To remove any doubt, it is declared that, for behaviour mentioned in subsection (2) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt.
5. (5)
   In this section—

coerce, a person, means compel or force a person to do, or refrain from doing, something.

unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including for example, by using technology.

Examples of surveillance by using technology—

• reading a person’s SMS messages

• monitoring a person’s email account or internet browser history

• monitoring a person’s account with a social networking internet site

• using a GPS device to track a person’s movements

• checking the recorded history in a person’s GPS device

unlawful stalking see the Criminal Code , section 359B.”

15. [15]
    Section 9 defines associated domestic violence to include behaviour mentioned in s 8(1) by a respondent towards a child of the aggrieved. Section 10 provides that a child is exposed to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence.

16. [16]
    Section 37 prescribes when a court may make a protection order. It provides:

“ 37When court may make protection order

1. (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

Note—

See the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12, which define the terms domestic violence, emotional or psychological abuse and economic abuse.

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—

1. (a)
   the court must consider—

1. (i)
   the principles mentioned in section 4;

and

2. (ii)
   if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the respondent’s failure to comply with the order; and

2. (b)
   if an intervention order has previously been made against the respondent and the respondent has complied with the order—the court may consider the respondent’s compliance with the order.

3. (3)
   However, the court must not refuse to make a protection order merely because the respondent has complied with an intervention order previously made against the respondent.
4. (4)
   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.”

17. [17]
    Relevant relationships are defined by s 13 to include an intimate personal relationship which is defined by s 14 to include a spousal relationship. By s 15(1) a spousal relationship exists between spouses and, by s 15(2)(c), a spouse of a person includes a former spouse of the person.

The domestic violence order

18. [18]
    The aggrieved person for whose benefit the protection order was made was the applicant’s former spouse. I shall refer to her as MP.

19. [19]
    The order named three further persons as protected by the order. They are the three sons of the aggrieved. The third of those children is also the appellant’s son.

20. [20]
    The order requires the appellant to be of good behaviour towards the aggrieved and not commit domestic violence against her.^[8]  It prohibits the appellant from remaining at, entering or attempting to enter, premises or approaching the premises where the aggrieved lives or works.^[9]

21. [21]
    The order prohibits the appellant from contacting, attempting to contact or asking someone else to contact the aggrieved. However, that condition does not apply to the contact that is necessary for the appellant to appear personally before a court or tribunal. Nor does it apply to the extent that it is necessary for the parties to attend an agreed conference, counselling, mediation session, or where having contact with a child as set out in writing between the parties or in compliance with a court order. There is an exception for contact through a lawyer.^[10]

22. [22]
    The order also requires the appellant to be of good behaviour towards the named children and not commit associated domestic violence against them and not to expose them to domestic violence.^[11]  The order contains the same prohibition against contact with the named children, subject to the same exceptions, as for contact with the aggrieved.^[12]

The evidence before the learned Magistrate

23. [23]
    Directions were made for the filing of affidavits. There was an affidavit by MP and five affidavits by the appellant.

24. [24]
    MP was not cross-examined. The prosecuting police officer purported to make an application under s 151(2) of the DFVPA which permits the making of an order that a respondent to a proceeding under the Act who is not represented by a lawyer may not cross-examine the protected witness if the court is satisfied that the cross-examination is likely to cause the protected witness to suffer emotional harm or distress or to be intimidated as to be disadvantaged as a witness. However, s 151(4) provides that if the court makes such an order the court must inform the respondent that he may not cross-examine the protected witness, and the court must require the respondent to advise the court by a stated date or time whether the respondent has arranged for a lawyer to act either generally in the proceeding or for the purpose of cross-examining the protected witness, or that the respondent has decided not to cross-examine the protected witness.

25. [25]
    It would seem that the prosecution’s application, made at the commencement of the hearing, was intended to secure the prohibition of the respondent cross-examining MP; but not to facilitate the potential for her to be cross-examined by a lawyer engaged generally or for that purpose.

26. [26]
    The Magistrate asked the appellant as to whether he wanted to be heard, “about whether MP comes in and…”. That enquiry did not address the matters required to be addressed under s 151(4). In any event, the appellant responded, “No. It doesn’t worry me Your Honour”. The appellant thereby forewent the opportunity to cross-examine MP.

27. [27]
    In her affidavit MP gave evidence of a number of instances of domestic violence commencing in October 2012.

28. [28]
    She said that there was then an incident in which the appellant grabbed her face and demanded that she look at him while he shouted at her. He would not let her go until he had finished, despite her repeated requests that he let her go.

29. [29]
    In June 2013 she said the appellant gambled and lost $5,000 which was all the money which they had. They had been having difficulty meeting their liabilities and keeping up with the mortgage payments. The monthly mortgage payment was approximately $4,200 and there was a payment due about ten days after the appellant gambled and lost the money.

30. [30]
    In November 2013 he killed a family pet, a puppy, because it would not stop barking and he was trying to sleep. She says that he stabbed the dog in the chest and left it against a fence to die. She says that she was very upset and scared that he could be so violent and casually and calmly return to bed.

31. [31]
    MP gave evidence of “many” dogs having been killed by the appellant. She referred to another having been killed by the appellant swinging it above his head and slamming its head into a rock. She referred to another having been shot by the appellant because it was a useless guard dog.

32. [32]
    MP gave evidence of the appellant having been abusive and violent towards her when she had been pregnant with their son. She deposed to him having ripped her handbag from her shoulder and having thrown it to the ground with such force that a hairbrush in the bag was snapped and her reading glasses, which were housed in a hard case, were broken. She said that at the same time the appellant ripped a plaque that was screwed to the bathroom wall off that wall, smashing it.

33. [33]
    MP gave evidence of an occasion on which the appellant punched her son, MF, (who is not the son of the appellant), because the boy could not properly assist in riding a quadbike while towing another quadbike that the appellant was riding and attempted to clutch start. She says that the appellant punched the boy a second time to the back of the head and that this blow knocked the boy to the ground. She said that she saw the appellant “almost jumping up and down as he flailed his hands exaggeratedly up and down and MF was stammering to his feet”. She had referred to the appellant (prior to punching the boy) having grown frustrated and being angry, yelling and calling the boy belittling names.

34. [34]
    MP gave further evidence of an occasion in January 2014 on which the appellant picked up a television set and smashed it on the ground. She said that he repeated the throwing of the television set to the ground twice to make sure that it was ruined. She says that she and her two sons from her previous marriage were all present when that occurred. She says that the television was a gift to one of those sons from his grandparents. He had been given it only two days prior. It was the same son who she says the appellant assaulted in the quadbike incident. She says the appellant’s son from his previous marriage was also present.

35. [35]
    Her evidence was that three days after the television set incident, on 5 January 2014, the appellant upended the breakfast table and almost dragged MP out of her bed in front of all those same three boys who had witnessed the television set incident. She says the reason for the appellant’s anger on that occasion was that she and the boys were not up and ready for whatever it was that the appellant wanted to do that morning. Rather than stay and clean up the mess they all went mustering cattle.

36. [36]
    MP also deposed to an occasion on 25 October 2015 on which one of her sons was assaulted by the appellant. This again was MF. She said that, having heard a strange noise in the hallway and then the appellant yelling something outside the house, she went to the back door and saw the appellant and the boy standing face to face in the backyard. The boy was wearing only his underpants. She said that the appellant was “full-fledged yelling at him and slapping MF around the head and shoulders, belittling him and generally knocking him around”.

37. [37]
    After one of the hits, MP said the boy lost his balance and fell to the ground at which time the appellant kicked him with steel-capped boots. MP then intervened. The appellant said that he was “teaching him”. MP spoke with the appellant later in the day. She wanted to express her displeasure at these events. She wanted to find out his version of events. She says that the appellant would not accept that MP believed that his behaviour had been “over the top and out of line”. She said that the appellant justified his actions by saying how much he cared for MF and all the boys and that “someone needs to discipline him”, and that he was “trying to toughen him up”.

38. [38]
    MP said that their arguing was going around in circles and that she ended up saying, “What do I need to do? Call the police?”. She deposed that at that time the appellant “flew into a rage”, stepped toward her from a seated position, picked up her freshly made cup of coffee and smashed it on the floor in front of her. As he did this he was holding their infant son in his other arm. MP said that she was shocked at how quickly the appellant had “escalated from his normal argumentative and angry yelling state to this off-the-scale anger”. The arguing and yelling by the appellant continued and he picked up and smashed a further cup.

39. [39]
    In an affidavit filed on 10 May 2016, the appellant denied the allegations in relation to MP’s son and the quadbike. He stated that he was unaware of any report of such an incident having been made to any external child welfare or law enforcement authority. He asserted that, “her lack of action about such allegation indicates a lack of authenticity as to her genuineness”.

40. [40]
    As the killing of dogs, the appellant denied the allegations of ill-treatment. He said that:

“When a dog has had to be dealt with or put down for appropriate reasons, such as being a danger to children, I have attended to putting down in a humane way and not in front of family members so as to cause them distress”.

The appellant again asserted that MP not having reported any such matters to animal welfare or law enforcement authorities indicated, “a lack of authenticity as to her genuineness”.

41. [41]
    In respect of the events of 25 October 2015, the appellant said that he did wake MF that morning by “quickly and gently tugging on his ear to snap him out of his sleep”, but said that he did not drag the boy out of his bed. He denied pushing the boy to the ground. He said that he had awoken MF to have him attend to his chores on the farm. He said that he did give MF, “a stern talking to at the time, without abuse language [sic] or derogatory terms, about listening to his mother and teachers and treating his little brother in a mean way”.

He said that he “smacked” MF with an open hand as a form of discipline and held his hair gently to focus his attention with what the appellant had been saying about his proper behaviour.

42. [42]
    The appellant deposed to the following:

“MF then pulled away from me and with his actions went to ground at which point I nudged and prodded him gently with my boot in a motion to get up and attend to what had to be done and feed the cattle. I certainly did not kick MF with any force to cause injury or bruising. As far as I am aware a red mark I saw later on in the day on his chest would most likely have been cause [sic] by him going to ground as he avoided me. After he stood to his feet I made no further physical contact with MF. I had not threatened physical violence by word or gesture to MF. Throughout the whole incident I was in a controlled state where my focus was disciplining MF with a view to making responsible choices and attend to chores and that he was aware needed doing”.

43. [43]
    This incident was the subject of a complaint to police. The appellant was charged with common assault. After a summary trial in which the prosecution successfully negatived the defence of domestic discipline, the appellant was convicted.^[13]

44. [44]
    As to the events later that day, the appellant denied throwing a coffee cup directly at MP. He referred to a verbal altercation between them during which he was “holding and trying to comfort our very distress [sic] one year old child”. He says that MP insisted that the child be given to her and attempted to drag the child from his arms. He said that while he continued to try to calm the child MP stated, “If you don’t give him to me now I will call the police”. The appellant says that his response to that threat was to pick up an empty coffee cup which had some residual coffee in it and to throw the cup in the opposite direction to MP. He says that at the time MP was “blackmailing” him and that it was frustration from that which created the incident. He says that he was not aggressive or verbally abusive to MP during the incident. He describes the incident as being, “certainly out of character” and “a rare and isolated event as far as property damage the similar of which being not likely to occur in the future”.

45. [45]
    The appellant concluded his affidavit with the following statements:

“My understanding is that for the court to grant an application for a protection order such as this, it needs to be demonstrated that the order is necessary or desirable to protect the aggrieved from further domestic violence. The anecdotal evidence presented by MP is not of itself fact as such, the police officer affidavits noted some concern for MP’s welfare in that she appeared visibly distressed on 25 October 2015, however since that time there has been no evidence anecdotal or otherwise to suggest that there is a need for MP’s continued protection. Our relationship has broken down, we no longer reside together, despite MP’s ‘claimed’ concerns for her children and her sons’ welfare, she has not at any other time suggested anything more and we were a ‘normal’ family. In fact the day before MP left the family home on 25 November, a month after this application was made, when she was injured by a cow trampling, Joseph our son was in my arms at the time of the incident, and we were all tending to necessary chores on the farm, seemingly as a family unit.

I believe that to grant this protection order application will, simply provide MP with further opportunity to continue to withhold contact between father and son, and further manipulate the judicial system to ensure that I and our son continue the disadvantage that has been placed upon us. As such it would be both unfair and unreasonable to grant an order where there is no demonstrated requirement that the aggrieved does in fact require protection; I respectfully request the court dismiss this application on the basis that a protection order is not necessary or desirable to protect the aggrieved from domestic violence.”

46. [46]
    Those passages effectively articulate the basis upon which the appellant seeks to have the order set aside on this appeal.

47. [47]
    When cross-examined, the appellant admitted that his throwing of the coffee cup was violent behaviour, but also agreed that looking back now his reaction would have been different; from which I understand him to mean that he would not now react as he did then if faced with that situation. However, he did agree that this act alone would be domestic violence saying, “I think it is a given”.

48. [48]
    In respect of the incident with MF on 25 October 2015, he said, “I don’t believe I was of bad behaviour in that situation”. Later in his evidence when again asked about that incident he said, “No I don’t, at any point, think that I was abusive to MF. None whatsoever”, and saying that the boy, “was the best he’d ever been after that incident”.

49. [49]
    In relation to the incident concerning the breakfast table, he said that the table was not upended, but that he did break a plate and spill some things on the table. He said, though, that it wasn’t about people not being out of bed, saying it was about issues of disdain, in particular MF and MP, “having a go at my son, calling him a dumb ass and stuff like that”. However, he again accepted that what he did was violence and said that he would not do the same thing again. He described it as, “I had a frustration and I broke a couple of plates”.

50. [50]
    When the learned Magistrate observed, having heard evidence of admitted acts of violence in the past, “So, well, it’s looking like we’re arguing about whether an order is necessary or desirable,” the appellant said:

“Like, there’s everything that I’ve done in my life, I not always would do again, but I’ve always gone out there with intent to not harm anybody or to do – it was always to try and fix something or do something so you’ve – I’ve killed a dog and you know that and you know what, I’ve done things with animals that, man, I was doing that wrong and so then they will suffer because of – because of the way I – I yarded them up or something like that where I shooted something up. It breaks my heart. So you know, I’ve had to – had to change and work things out because you set things up differently. So I work with animals all the time.”

51. [51]
    He went on to say:

“There’s acts of violence but not an act of like, there’s never a time where I would act to actually hurt somebody, you know.”

52. [52]
    He said that he had learnt that there’s a better way of doing things.

53. [53]
    In making submissions to the learned Magistrate, the appellant said:

“I don’t believe there is an order necessary, because the DVO has been used as a weapon against me, but I wouldn’t ever harm anybody. That’s why I’m trying to file things through the other courts and go through that process. I’m going through the actions of going through the court process to sort this out. I believe the police DVO matter, the way it was handled, was basically putting the fuel on the fire and everything exploded. The DVO order has detrimental destroyed this family, and I think to keep it in place is only going to [indistinct] I’m going through the court process, trying to access and sort these matters out, and that’s how I’ll be going through the process. I’m not going to be – you – I’m not going to be violent towards anybody or for anybody with the [aggrieved’s] family, for that matter.”

The learned Magistrate’s Decision

54. [54]
    The learned Magistrate commenced her reasons with reference to the requirements set out in s 37 of the DFVPA of which she must be satisfied before making a protection order, including the requirement to consider the principles mentioned in s 4. Her Honour referred to those principles. Her Honour also referred to the definition of domestic violence.

55. [55]
    The learned Magistrate observed that there was a relevant relationship between the aggrieved and the respondent and that in the course of the hearing the appellant had conceded that a number of actions which he took could have been seen as domestic violence in the context in which they occurred.

56. [56]
    The learned Magistrate noted ACP’s evidence that in hindsight he would have done things differently.

57. [57]
    In those circumstances her Honour proceeded to consider whether a protection order was necessary or desirable to protect MP from domestic violence.

58. [58]
    Having referred to the decisions of Magistrate Costanzo in WJM v NRH^[14] and Armour v FAC^[15] her Honour observed:

“Now, whether a court finds it necessary or desirable, the finding may be – must be made in the context that is either necessary or desirable that the order be made in order to protect the aggrieved with the terms of the order. What is clear is that the need for protection must be a real one, not some mere speculation or fanciful gesture – conjecture. Need often arise from risk, so the court needs to assess the risk to the aggrieved and assess whether management of the risk is called for. The risk of further domestic violence and the need for protection must actually exist.”

59. [59]
    The learned Magistrate referred to the decisions of Morzone QC DCJ in MDE v MLG^[16] and McGill SC DCJ in GKE v EUT.^[17]  In respect of the latter, her Honour identified the focus of a proceeding for a protection order to be:

“On the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there was 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 it is necessary or desirable to make an order in order to protect the aggrieved.”

60. [60]
    Her Honour recited the passage of the judgment in GKE in which McGill SC DCJ had said:

“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.”

61. [61]
    The Magistrate then referred to McGill SC DCJ having stated that the risk of further domestic violence against the aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances. Her Honour observed that:

“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 here, the child, which is Joseph”.

62. [62]
    Then, by reference to the explanatory notes to the Domestic and Family Violence protection Bill 2011, her Honour observed that it was no longer necessary that the court be satisfied that future domestic violence was likely.

63. [63]
    In respect of Morzone QC DCJ’s decision in MDE, the learned Magistrate observed that his Honour had identified a three stage process which, in his Honour’s view, was required to be undertaken in considering whether the protection order is necessary or desirable to protect the aggrieved from domestic violence. That process required the court first “to assess the risk of future domestic violence between the parties, in the absence of any order”, and that “there must be evidence to make factual findings or draw inferences of the nature of and prospect of that domestic violence – that domestic violence may occur in the future”.

64. [64]
    The Magistrate identified the second stage in the process, as articulated by Judge Morzone, to be a requirement to “assess the need to protect the aggrieved from that domestic violence in the absence of any order”. Her Honour identified the third stage as being that “the court must then consider whether imposing a protection order is necessary or desirable to protect the aggrieved from the domestic violence”.

65. [65]
    The learned Magistrate’s consideration and resolution of the issues proceeded as follows:

“So, in deciding whether an order here is necessary or desirable, I do have to take into account the evidence that I have heard today and that is contained in the documentation that has been filed in court. I need to take into account the factors as I have already read them all out:  the safety, protection and wellbeing of people who fear or experience domestic violence, including children and take into account the – in particular, that the – whether there is any need to protect MP from domestic violence, in the absence of any order. And, of course, I am looking at giving consideration to whether there is going – has to be ongoing communication between the parties and the conduct of what has gone on before, which has led to the application being made.

Now, I have heard – and the vast majority of the evidence before the court is that of both the aggrieved, MP and ACP. And ACP, indeed, has filed a lot of material over the course of this matter, even though there were only two directions given for filing material. Be that as it may, I have hopefully construed his arguments from the material. It would appear that it was his view that the actions that he took in – he has actually said in evidence that, yes, he would have taken a different line in hindsight. His argument, as I see it, is that a – an order in this court is not necessary or desirable, because this court is being used to prevent him from contact with his child and that there are going to be – and I note there have been – documents filed in the Family Court for further orders, with regard to the child, Joseph. These types of matters are not easy to decide. They are quite complex and can be very traumatising and upsetting for the parties involved. And there is nothing worse than a relationship breakdown and even worse when there are children involved, especially when those children can be exposed to – whether it is physical violence – it can be intimidation, harassment, yelling; the whole range of emotions.

ACP views his actions as being perhaps, from what I can gather from the material, a normal way of dealing with different situations. That is, disciplining children and, indeed and I cannot quote, because I don’t, because I know I have read it in the material, with regard to trying to have MP – that is MP – see what she was doing was the wrong way of bringing up the children, perhaps, or trying to get her to do the right thing by the family – with regard to the finance – all of that type of thing. I have listened – have read what those occasions were and I will not and I note that whilst ACP might think that their (sic) – is a normal way of going about things, it certainly is something that, on an objective basis, I would not have thought that the majority of the population would think that you should go about things in this way. Yes, you may have been brought up in one way, but that certainly is not and would not be seen by the – I think at law they call it the ordinary man’s street as being the right way of doing – the right way of going about things.

Now, I have given consideration to all of this and I note that there are other family matters – are other Family Court matters on foot as well. In the circumstances, I find it more probable than not – so that it is our balance of probabilities test – so that is our balance of probabilities test – that a protection order should rem – be made to protect the aggrieved and named persons, from domestic violence and associated domestic violence and the children from being exposed to domestic violence.

So what I’m going to do, because I have got a number of applications here, I’m going to grant the application and I have given consideration as to whether there should be any conditions and what those conditions should be. Just bear with me for a moment. Whilst there is the ongoing matters in the Family Court, I consider that it is appropriate, desirable and necessary that there be the – be an order in place. So I will order that ACP be of good behaviour towards MP also known as Gardner and must not commit domestic violence against her. I am also going to name the children on the order as – with the following order:  That ACP be of good behaviour towards them and not commit associated domestic violence against them and not expose them to domestic violence.”

Consideration

66. [66]
    The learned Magistrate was correct in being satisfied that a relevant relationship existed between the aggrieved and the respondent and that the respondent had committed domestic violence against the aggrieved. Her Honour was, therefore, correct in focussing her consideration on whether the protection order is necessary or desirable to protect the aggrieved from domestic violence.

67. [67]
    Having identified three steps considered by Morzone QC DCJ in MDE as being required to be taken, the learned Magistrate gave no express, direct consideration to either of the first two steps. Her Honour did not, expressly, assess the risk of future domestic violence between the parties. Nor did her Honour, directly, assess the need to protect the aggrieved from that domestic violence in the absence of an order.

68. [68]
    In my respectful opinion, whilst Morzone QC DCJ identified a three stage process which his Honour considered satisfaction under s 37(1)(c) required, his Honour’s decision should not be understood to mandate those particular stages or steps. As his Honour observed at para [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.”

69. [69]
    The requirement under s 37(1)(c) that the court be satisfied that the protection order is necessary or desirable itself confers a discretion. It is a discretionary determination to be made in the exercise of a further discretionary decision: whether to make a protection order.

70. [70]
    Coal & Allied Operations Pty Ltd v AIRC^[18] provides an analogous example. Pursuant to s 160MV(1) of the Workplace Relations Act 1996 (Cth) the Australian Industrial Relations Commission had a discretion to suspend or terminate a bargaining period in relation to the negotiation of a certified agreement under the Act, if, but only if, satisfied of one of a number of prescribed circumstances. The High Court of Australia explained discretionary decisions in general, and the two discretionary decisions which arose for consideration under those legislative provisions, in this way at [19] to [21] (footnotes omitted):

“[19]‘“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.

[20]In the present case, the decision by Boulton J to terminate the bargaining period involved, in effect, two discretionary decisions. The first was as to his satisfaction or otherwise that the industrial action being pursued posed a threat for the purposes of s 170MW(3) of the Act. Although that question had to be determined by reference to the facts and circumstances attending the industrial action taken in support of claims with respect to a certified agreement, the threat as to which his Honour had to be satisfied was one that involved a degree of subjectivity. In a broad sense, therefore, that decision can be described as a discretionary decision. And if Boulton J was satisfied that there was a threat for the purposes of s 170MW(3), that necessitated the making of a further discretionary decision as to whether the bargaining period should be terminated.

[21]Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process.37 And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v R…”

71. [71]
    Under s 37(1) there are similarly two discretionary decisions. Section 37(1)(c) requires the court to be satisfied that the protection order is necessary or desirable. That is a decision which involves a measure of subjectivity or value judgment in the sense explained in Coal & Allied.^[19]

72. [72]
    If so satisfied, the further discretion as whether to make a protection order is to be exercised. Having been satisfied as to the necessity for, or desirability of, a protection order to prevent domestic violence, the discretion as to whether to make the order may be narrower in the sense also explained in Coal & Allied.

73. [73]
    Because satisfaction under s 37(1)(c) that the protection order is necessary or desirable does involve subjectivity and value judgment in forming a discretionary opinion, the exercise of that discretion should not be constrained by prescriptive steps which might be thought mandatory in all circumstances.

74. [74]
    From the learned Magistrate’s reasons the following can be distilled as matters to which her Honour gave consideration:

• the prior conduct of the parties which had led to the application for a protection order;

• that there has to be ongoing communication between the parties;

• that the appellant gave evidence that, in hindsight, he would have done things differently;

• the appellant contended that a protection order was not necessary or desirable because the court was being used to prevent him from contact with his child;

• the appellant viewed his actions towards disciplining children as being normal but that, objectively, they would not be viewed in that way by the majority of the population;

• that there were also Family Court proceedings on foot.

75. [75]
    In my view, although not directly referred to by the learned Magistrate in those terms, those matters were relevant to an assessment of the risk of future domestic violence and the need to protect the aggrieved from that violence in the absence of an order.^[20]

76. [76]
    It is sufficiently clear from her Honour’s reasons that she considered that there was a risk of future domestic violence based on the past history of violence and the need for future contact and communication, particularly in the context of Family Court proceedings. Her Honour’s conclusion in that regard was, in my respectful view, correct. She reached it having considered the appellant’s evidence that, in respect of past circumstances from which the incidents of domestic violence arose, he would have done things differently, in hindsight. Her Honour was entitled to consider there to be a risk of future domestic violence notwithstanding the appellant’s evidence in that regard, and did not err in doing so in my respectful opinion.

77. [77]
    The appellant’s evidence before the learned Magistrate in which he said that he did not consider that he was of bad behaviour to MF on 25 October 2015, demonstrated a lack of insight on his part in respect of that conduct. It is sufficiently clear in my opinion that it was such a lack of insight which her Honour had in mind when referring to the appellant’s personal views of his disciplinary methods not according with those of the broader community. To that could be added, in my view, the appellant’s apparent delineation between conduct which might nonetheless be violent, but which he considered was not engaged in with a view to hurting the person to whom it was directed. The appellant did not seem to be able to appreciate that his conduct might be harmful even if engaged in by him without the intention to cause harm.

78. [78]
    In light of those matters, it was open for the learned Magistrate to conclude that there was a risk of future domestic violence from which the aggrieved may not be protected in the absence of a protection order. In my view, her Honour’s reasons should be understood as having reached that conclusion. Even if I am wrong in interpreting her Honour’s reasons in that way, on a re-hearing of the evidence before her Honour, I myself would reach that conclusion.

79. [79]
    The learned Magistrate considered that it was appropriate, desirable and necessary for there to be an order in place. I would respectfully disagree with her Honour’s conclusion that an order was necessary. Earlier in her reasons, her Honour had referred to the plain meaning of necessary as set out by Magistrate Costanzo in WJM. The Oxford English Dictionary definition was set out. It is:

“―That is needed;

―Needed to be done, achieved, or present; essential;

―Indispensable, vital, essential; requisite.”

80. [80]
    In my opinion, the evidence of risk of future domestic violence in the absence of a protection order is not such that it could be found that the protection order is necessary to protect the aggrieved from it. It does not rise that high. Her Honour’s reasons do not, with respect, expose how that conclusion was reached; but upon the facts it was unreasonable and reached in error.

81. [81]
    However, the finding that the protection order was desirable was a finding which was open, and one which in my opinion ought to have been made. There is, for reasons already explained, identifiable risk. Part of that risk is the appellant’s idiosyncratic view of what may constitute domestic violence, he seemingly still being unable to identify his treatment of MF on 25 October 2015 as falling within that description or of being abusive.

82. [82]
    In those circumstances, and with the identified ongoing need for interaction between the parties because of their shared child, it is desirable that there be a protection order to protect against future domestic violence. The learned Magistrate was correct in so finding. That aspect of her decision was not affected by error.

83. [83]
    Although there was error in the finding that it was necessary there be a protection order to protect against domestic violence, because there was no error in the finding that it was desirable that there be a protection order to protect against domestic violence, the learned Magistrate did not err in making an order.

84. [84]
    However, in my view the learned Magistrate did err in making the order in the terms which she did.

85. [85]
    Section 56(1)(a) of the DFVPA requires a court making a domestic violence order to impose a condition that the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved. Similarly, if the order includes a named person, s 56(1)(b) requires the court to impose a condition that the respondent be of good behaviour towards, and not commit associated domestic violence against, the named person. If the order includes a named person who is a child, s 56(1)(c) requires the court to impose a condition that the respondent be of good behaviour towards the child, not commit associated domestic violence against the child and not expose the child to domestic violence.

86. [86]
    By s 56(2), if the court does not exercise its power to impose those conditions in the relevant circumstances, it is taken to have done so.

87. [87]
    In addition to those standard conditions the court also has a discretion, pursuant to s 57, to impose any other condition which the court considers:

1. (a)
   necessary in the circumstances; and

2. (b)
   desirable in the interests of the aggrieved, any person named or the respondent.

88. [88]
    The use of the conjunctive in s 57(1) mandates that before the court may impose any other condition it must be satisfied that the condition is both necessary in the circumstances and desirable in the interests of the aggrieved, named person or respondent.^[21]

89. [89]
    In her reasons, the learned Magistrate did not identify that she was satisfied that the imposition of other conditions was both necessary and desirable (in the requisite sense), or indeed that they were either necessary or desirable. In deciding to impose other conditions, her Honour said:

“So those children are MF, AF, TGF and JAP. I note – I’m sure that ACP would not be wanting to harm any of the children. Now, I’m also going to make an order that he be prohibited from remaining at, entering or attempting to enter premises, or going – or approaching premises where MP lives or work. I know there are – and there will be a contest with regard to contact with Joseph, and I should just clarify something – and I know this is my decision. I made the decision. I am just clarifying the conditions.”

90. [90]
    Later her Honour went on:

“I’m going to make the order that ACP will be prohibited from contacting or attempting to contact or asking someone else to contact MP, except when it is necessary to go to a court ordered tribunal or when you go to counselling, conferencing, mediation, having contact with the child as set out in writing between the parties or in compliance with an order of the court, or with or through a lawyer. Ok, because that is the way you have been doing it in the past, yes. And I will further make the order – will also apply with regard to the children. I am going to make – I’m not going to make any further orders. Ok.”

91. [91]
    Those reasons do not disclose matters upon which her Honour may have been satisfied as to the necessity and desirability for such conditions. In my opinion, the evidence would not lead one to be satisfied as to the relevant necessity and desirability of such conditions. There was no evidence of the appellant attempting to enter or approach either MP’s residence or place of work or that there was even some prospect that he might do so in the future. Nor was there evidence which might lead one to conclude that a condition prohibiting contact or attempted contact, either directly or indirectly with MP or the named persons was necessary in the circumstances and desirable in the interests of MP and the named persons.

92. [92]
    In my view, the learned Magistrate erred in imposing those other conditions. The appeal should be allowed to the extent that the decision of the learned Magistrate should be varied such that a protection order is made, but only with the standard conditions set out in s 56. Conditions 2, 3 and 5 of the order made by the learned Magistrate should be removed from the order. Condition 4 is to be renumbered as condition 2.

Orders

1. Allow the appeal to the extent that:

1. (a)
   Conditions 2, 3 and 5 of the protection order made on 7 March 2017 are removed;

2. (b)
   Condition 4 of the protection order made on 7 March 2017 is renumbered as condition 2.

2. The appeal is otherwise dismissed.