ATD v TBC[2020] QDC 236

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant and respondent began an intimate relationship in 2003 and were married in 2008. They have 3 daughters aged 9, 7 and 5 years. They separated briefly in 2013 but reconciled shortly after. However, the relationship deteriorated to a point where the parties separated permanently on 29 January 2018 under the same roof. The respondent moved out of the matrimonial home on 5 February 2018.^[1]
2. [2]
   This is an appeal from a protection order made under the Domestic and Family Violence Protection Act 2012 (the Act) in the Magistrates Court at Southport on 5 December 2019 naming the respondent as the aggrieved and the appellant as the respondent. The appellant also appeals the order dismissing her application for a protection order. On that date, the Magistrate granted the respondent a protection order for five years and dismissed the appellant’s application for a protection order.

Background

3. [3]
   On 29 January 2018, the appellant made a complaint to police at the Broadbeach Police Station that she had been verbally assaulted by the respondent that morning in their home. The appellant also informed police of an incident that occurred six weeks prior where the respondent allegedly placed his hand around the appellant’s neck following an argument.^[2] Police completed a Police Protection Notice (“PPN”). The appellant’s grounds for the application were set out in the PPN and an affidavit sworn by the appellant on the same day. The appellant deposed that 6 weeks prior, following an argument, the respondent placed his hands around the base of the appellant’s neck and pushed her up against a cupboard door. The appellant pushed the respondent’s chest which caused him to release her.
4. [4]
   In relation to the incident that occurred on 29 January 2018, the appellant deposed that she was getting the children ready while the respondent was dropping off their bags at school and submitting a form. The appellant and respondent argued via text messages about a number of issues regarding the parenting of their children. The respondent arrived home and began yelling at the appellant. He said words to the effect of “You can’t even get the kids ready for school. You can’t even get some fucking socks on them. You are a waste of existence.” The respondent then attempted to push the appellant. The appellant grabbed his arm and dug her fingernails in. She then pushed the respondent and said to her daughter “you saw that?” The appellant subsequently left the house but returned shortly after to retrieve her phone. The respondent stood in front of her. The appellant pushed past the respondent and retrieved her phone. She then drove straight to the police station.^[3] The police report of the incident does not mention any other form of physical violence by the respondent against the appellant on that day.^[4]
5. [5]
   The respondent also gave a statement to police. He acknowledged that a verbal altercation occurred between the two and was witnessed by their children; however, he denied any actual or attempted physical violence.^[5] That same day, police served the respondent with a PPN naming the appellant as the aggrieved and the respondent as the respondent.^[6] Their three children were also named on the order. A temporary protection order (“TPO”) was made by consent on 6 February 2018.^[7]
6. [6]
   On 18 April 2018, the Federal Circuit Court ordered custody to be shared between the appellant and respondent. On 20 April 2018, the appellant left a voicemail on the respondent’s phone saying:^[8]

“You are fucking going down you fucking ass hole.”

7. [7]
   On 6 August 2018, the application for protection order proceeded to hearing. However, on that day, Police withdrew the application and the temporary order was discharged.^[9] The appellant subsequently filed a private application for a protection order on 13 August 2018. The respondent filed a cross-application on 28 August 2018. On 19 September 2018, a TPO was made naming the respondent as the aggrieved and the appellant as the respondent.^[10]
8. [8]
   On 6 February 2019, the respondent was at home with the children when the appellant attended his address. The respondent had kept the children at his home due to concerns raised by the family nanny that the appellant was paranoid, delusional, denigrating towards the respondent, and neglectful of the children.^[11] The appellant remained outside the respondent’s house and sent him a total of 15 text messages demanding the children be returned.^[12] Over the next two days, the appellant published a number of Facebook posts in which she accused the respondent of abducting the children, referred to him as mentally ill, abusive and an arsehole, and published the names of his employer and clients alleging he was corrupt.^[13]
9. [9]
   On 7 February 2019, the respondent filed an Application to Vary the TPO made against the appellant on 19 September 2018. The Application to Vary proceeded on 8 February 2019 and the Magistrate varied the order to include a condition which prevented the appellant from attending the respondent’s home.^[14]
10. [10]
    On 6 March 2019, the Federal Circuit Court made orders requiring the children live with the respondent, the appellant have two hours of supervised visitation per week, and the appellant commence therapeutic care with a Consultant Psychiatrist.^[15]
11. [11]
    On 8 March 2019, the respondent attended the Southport Police station and reported the appellant’s abusive text messages and disparaging Facebook posts. Later that day, the QPS filed a further Application to Vary the TPO on behalf of the respondent.^[16] On 13 March 2019, the Application to Vary proceeded to hearing in the appellant’s absence. The Magistrate granted the application and varied the TPO to include conditions prohibiting the appellant from contacting the respondent and publishing adverse comments about him online.^[17]
12. [12]
    In March 2019, the QPS referred the appellant to the Acute Care Team due to concerns they held regarding her mental health after she made over 100 unsubstantiated police complaints accusing the respondent of protection order breaches and other criminal behaviour. Between March and May 2019, the Acute Care Team attempted to engage the appellant without success. On 24 May 2019, police detained the appellant and admitted her to the Mental Health Unit of the Gold Coast University Hospital (“GCUH MHU”) under the Mental Health Act 2016 (Qld). She was released into the care of her treating psychiatrist on 27 May 2019.^[18] The discharge summary states that the appellant was displaying hypervigilant behaviour and likely suffering an acute stress reaction in the context of recent traumatic events; however, there was no evidence of any gross psychotic symptoms.^[19] The appellant was admitted to the GCUH MHU again on 1 August 2019 but was discharged after doctors determined she was likely to be suffering another acute stress reaction.
13. [13]
    On 2 May 2019, the appellant breached the temporary order by publishing a post on Facebook which suggested the respondent broke into her house and placed a water pistol in her cupboard “as a threat that [the appellant] will be killed”.^[20] On 28 June 2019, the appellant pleaded guilty in the Southport Magistrates Court to breaches of the TPO. The appellant was placed on a good behaviour bond with no convictions recorded.^[21]

Application for Protection Order Hearing on 2 and 3 December 2019

14. [14]
    On 2 December 2019, the application and cross-application for a protection order proceeded to hearing. The appellant, the respondent, and Senior Constable Nicola Bell gave evidence. No other witnesses were called.
15. [15]
    The respondent relied on the evidence contained in his application for a protection order filed 28 August 2018, and two affidavits dated 24 July 2019 and 29 July 2019. The respondent’s application was based on an overwhelming amount of material in the form of text messages, Facebook messages, voice recordings, and emails which the appellant had made and distributed. These were clearly false and malicious, and, in combination, amounted to acts of domestic violence. These included:

16. [16]
    The appellant’s evidence was contained in her application for a protection order filed 13 August 2018, five affidavits filed 28 November 2018, 19 July 2019, 12 February 2019, 16 August 2019, 29 November 2019, and an affidavit sworn 17 May 2019. In addition to the incidents of alleged physical abuse from 19 November 2017 and 29 January 2018, the appellant made numerous allegations of mental, financial and other abuse, and allegations of criminal conduct. These included:

17. [17]
    This list is only a snapshot of the numerous complaints the appellant made against the respondent and others in her voluminous affidavit material. I have read through all of the appellant’s affidavits and accompanying attachments.

Evidence at the hearing

Appellant’s evidence

18. [18]
    The appellant gave four accounts of the events of 19 November 2017 and 29 January 2018. The accounts are contained in the police statement and affidavit sworn 29 January 2018, and subsequent affidavits filed on 12 February 2019 and 19 July 2019. The affidavit filed 19 July 2019 appears to be a direct copy of the affidavit filed 12 February 2019, with some minor additions. There is also an affidavit sworn 17 May 2019 which was before the Magistrate and to which I have had regard.

First alleged act of domestic violence by the respondent upon the appellant on 19 November 2017

19. [19]
    In her affidavit sworn 28 January 2018, the appellant stated that on 19 November 2017, following an argument, the respondent pushed the appellant up against a cupboard door by placing his hands around the base of her neck and pushing her backwards. When he did this she pushed him in the chest causing him to let go.
20. [20]
    In her next affidavit filed 12 February 2019, the appellant said the respondent pushed her up against a cupboard door, put both of his hands around her throat, and choked her until she almost couldn’t breathe. The appellant was able to get her right arm up under his left arm, grab his collarbone and stick her long nails into his skin.
21. [21]
    Under cross-examination, it was put to her that in her original statement of 29 January 2018, the appellant had said “he placed his hands around the back of my neck and pushed me backwards” and that she made no mention of the respondent squeezing her neck. The appellant claimed the police officer had written her statement because she was in a state of trauma and she signed the statement under duress.^[37] The appellant maintained the police statement was not accurate when it recorded “I pushed him back”.^[38] Under cross-examination, the appellant denied she had told her doctor, Koshi George, that “both of them tried to strangulate each other”.^[39]

Second alleged act of domestic violence by the respondent upon the appellant on 29 January 2018

22. [22]
    In her statement to police sworn 29 January 2018, the appellant described the incident as a verbal argument between the appellant and respondent. She said the respondent moved close to her and was yelling at her to leave the house. He went to push her so she grabbed his right arm, dug her fingernails into his arm and pushed him, before leaving the house. She returned to get her phone. The respondent told her to get out. She pushed past him and left. The appellant made no mention of actual or attempted physical violence by the respondent.
23. [23]
    The appellant’s second account, in an affidavit sworn on 29 January 18, corresponds with the police statement. The appellant deposed that, after they were arguing in the bathroom, she followed the respondent out of the bathroom. The respondent attempted to push her so she grabbed his right arm and dug her fingernails in. She then pushed the respondent and said to her daughter “you saw that?”
24. [24]
    In the appellant’s third account of the incident, she deposed that the respondent tried to hit her in front of the children.^[40] She was in the bathroom, there was “lots of glass around” and she felt she was going to be killed. She pushed past him and escaped out of the bathroom. The respondent followed her down the hall to where the children were. He approached the appellant from behind, attempted to strike her on the head, and she blocked his arm with her right arm. The appellant omitted that she stuck her fingernails into the respondent’s arm.
25. [25]
    In cross-examination, the appellant said the reason her version of what occurred on 29 January 2018 had changed over time was because when she first spoke to police she was traumatised. She also claimed that police had incorrectly written down her version.^[41] It was put to her that the versions commencing with her statement to police up until her affidavit filed 19 July 2019 became more exaggerated. For example, under cross-examination, the appellant introduced evidence that in the bathroom during the confrontation with the respondent “there was lots of glass around” and “I felt like I was going to be killed”. When challenged that this was a recent invention, the appellant claimed she gave all of those details to police on 29 January 2018 but police failed to record them. When asked to explain discrepancies between her initial statement to police on 29 January 2018, which only contained allegations that the respondent had verbally abused her, and subsequent statements in her affidavit on 19 July 2019 and her evidence in Court, the appellant stated the police were at fault for not including the correct version in her original statement.^[42]

Further relevant cross-examination of the appellant

26. [26]
    The appellant denied she had ever alleged the respondent sexually abused his daughters or sexually misbehaved in front of the children. The appellant accepted she threatened the respondent in an email the day after a Federal Circuit Court Order was made which granted him significant time with the children. She agreed she then sent an email to the respondent apologising, and then sent a letter to her solicitor saying “I made a major mistake tonight… I then had to write to him… so he would have trouble using it in Court”. The appellant maintained that her apology was genuine.
27. [27]
    The appellant maintained that she was entitled to money from the respondent’s aunt’s will because the will was fake and needed to be tested in court (the respondent’s aunt had died some years before the appellant and respondent had separated. The respondent was not a beneficiary). The appellant’s evidence was that the will “was a motive for the respondent’s domestic violence and aggression and was the reason [the respondent] provoked the end of the relationship without alerting me to my entitlements” (alleged financial abuse).^[43]
28. [28]
    When cross-examined about a Facebook post she published on 6 March 2019, the appellant replied “That was the day of Judge Spelleken’s judgment. That was the day that he officially stole the children from me on false grounds and [he] has a huge brain injury, indicating his mental illness. So he absolutely took information into [the Federal Circuit Court] that had been, overtime, through police records, corruption of my police records, my health records, lots of different records, convinced the court I had the mental illness when in fact, over a 12 year period, there has been indication of his mental illness and obsession”.^[44]
29. [29]
    Under cross-examination, the complainant stated “We have counted 17 criminal offences of stalking against my Facebook page by [the respondent] and by the [respondent’s solicitor].^[45] She could not point to evidence of this, except on one occasion when the respondent contacted her to let her know one of their daughters was in hospital.
30. [30]
    On 16 July 2019, the appellant sent a letter to Judge Middleton of the Federal Circuit Court stating “Please have my husband penalised for severe psychological abuse and systems abuse. He requires a longitudinal assessment. He has severe brain injury and has clearly enacted psychopathic behaviour on me yet again. The children are not safe with a person who is so unstable”.^[46] Under cross-examination, when this email was read to her, she replied “I stand by that statement”.^[47]
31. [31]
    The appellant agreed in cross-examination that she still believed the respondent may have procured another person to impersonate a police officer.^[48]
32. [32]
    On 14 June 2018, in a text message to the respondent, the appellant accused him as follows: “You caused head lice. You caused gastroenteritis. You are the irresponsible parent. You are sick in the head. You are incestuous with your mother and a money hungry narcissistic [sic]”.^[49] In cross-examination, the complainant accepted the message was offensive; however, she explained she sent the message due to an acute stress reaction as a result of an unbalanced family report in Family Court proceedings.^[50]
33. [33]
    The appellant accepted she had sent a Federal Circuit Court Judge’s associate an email on 23 May 2019 saying "suspiciously my car broke down this morning” and on 29 July 2019 sent an email to the respondent’s solicitors about the respondent’s indirect links to “satanic ritual abuse”.^[51]
34. [34]
    On 17 July 2019 at 10.15am, in an email to the respondent’s solicitors, the appellant accused the respondent and solicitors of being “part of a child trafficking ring which may contain elements of a paedophile ring. My children are clearly at risk”.^[52] In cross-examination, the appellant admitted that she wrote this but stated that the email was justified because the respondent had refused to take blood tests or have the children take blood tests.^[53]

Re-examination

35. [35]
    In re-examination, the appellant agreed she was now aware that any further emails, Facebook posts or other communications would end up in affidavit material before the Family Court or another court. She stated she had not published anything since “that brain one” on 6 March 2019.^[54] (This is inconsistent with the respondent’s affidavit, for example at [17](o)-[19]).

Respondent’s evidence

19 November 2017 incident

36. [36]
    Under cross-examination, the respondent accepted he and the appellant had an argument that day about money. He agreed he became upset and angry, and walked away from the discussion because he wanted to avoid further arguments. He agreed the appellant followed him but he denied grabbing the appellant under her armpit, pushing her against a cupboard and putting his hand around her neck. He denied lifting her off the ground and squeezing her throat.^[55] He denied physically assaulting her.

29 January 2018 incident

37. [37]
    The respondent agreed he became angry that day during text message exchanges between the appellant and him. He agreed he burst through the front door and went to the bathroom. He agreed he screamed at the appellant and may have been loud and abusive. He agreed he may have called her a lazy fucking bitch.^[56] The respondent also conceded he possibly said “you’re a useless waste of existence”. He also agreed one of their daughters began to cry during the argument.^[57] The respondent denied raising his arm above his head in any manner, but said the appellant grabbed his arm and dug her fingernails into his arm. He agreed he told the appellant to get out of the house, but explained this was so he could put an end to the argument and get the children to school. The respondent accepted he followed the appellant into the bedroom when she returned to get her mobile phone because he was waiting for her to leave.^[58] The respondent agreed he said to police, when they visited the home some hours later, that he had been angry and lost his temper which he did not usually do. He told police he was regretful. He also told police that at no stage did he assault the appellant.^[59]
38. [38]
    The respondent denied all other allegations of financial or other abuse.

Evidence of Senior Constable Nicola Bell

39. [39]
    SC Bell’s evidence in chief is contained in her affidavit filed on 25 July 2019. At the hearing, she gave evidence that, in her role as Southport Police Station Domestic Violence Liaison Officer, she had contact with the appellant on many occasions. The appellant sent her numerous emails denigrating the respondent to the point SC Bell became concerned for the appellant’s mental health. She brought her concerns to the attention of the Queensland Police Service Mental Health Co-ordinator. As a result, police took steps to have the appellant assessed at the GCUH MHU. SC Bell confirmed her concerns were based solely on her contact with the appellant and were not based on anything suggested to her by the respondent.^[60]
40. [40]
    In cross-examination, SC Bell maintained it was the appellant’s persistent complaints about the respondent, which caused the referral to GCUH MHU, and had nothing to do with collusion with the respondent. SC Bell said she also became concerned about the appellant’s mental health after the appellant made complaints that cameras had been planted in her ceilings. The appellant’s house was subsequently checked by police who found there were no cameras. She was also concerned the appellant thought the respondent was going to burn the house down because magnets on the fridge had been moved to spell the word “burn”. SC Bell was concerned the appellant was showing signs of paranoia and obsession; also the appellant had told her she hadn’t slept for days.^[61]

Doctor Smock’s report

41. [41]
    At the commencement of the proceedings, the appellant’s counsel indicated he intended to tender a report under the hand of a Doctor William Smock, who he described as a Police Surgeon for a police department in San Diego, USA. The author of the report never examined the appellant and was not available to give evidence. The Magistrate indicated she was not persuaded the report would be helpful and the appellant’s counsel did not pursue the matter any further.^[62]

Magistrate’s decision

42. [42]
    On 5 December 2019, the Magistrate handed down her decision. She made a 5 year protection order naming the respondent as the aggrieved and the appellant as the respondent. The children were not named on the order. The Magistrate dismissed the appellant’s application for a protection order.
43. [43]
    The Magistrate referred to and applied the relevant provisions of the Act. She correctly determined a relevant relationship existed between the parties; she had to be satisfied that in each application that the respondent had committed an act of domestic violence against the aggrieved; and that protection is necessary or desirable to protect the aggrieved from domestic violence.^[63] She considered the principles and relevant factors under sections 4, 8, 11, 37 and 57 of the Act. When determining whether a protection order was necessary or desirable in the circumstances, she referred to McGill DCJ in GKT v EUT [2014] QDC 248 [27]-[28].^[64]
44. [44]
    The Magistrate stated that she had considered the whole of the evidence. She noted that whilst not all the evidence would be referred to in her decision, that did not mean any of it had been disregarded or given insufficient weight.^[65]

Appellant’s application

45. [45]
    The Magistrate considered the incident from 19 November 2017 alleged by the appellant, and noted the respondent denied this ever occurred. With respect to the incident from 29 January 2018, the Magistrate considered there were a number of substantial inconsistencies in the appellant’s evidence including: she first reported the incident to police as a verbal attack and then later changed it to a physical attack; the appellant said the inconsistency was due to her being extremely traumatised at the time of reporting the event; despite this, she was not too traumatised to re-enter the residence following the attack to retrieve her phone. The Magistrate noted the concessions made by the respondent, and in particular that he was angry and responded to the appellant with insults and abuse. However, he denied attempting to strike the appellant. She preferred the evidence of the respondent where it differed from the appellant’s evidence.
46. [46]
    After considering all of the evidence, the Magistrate determined the appellant committed an act of domestic violence against the respondent. The Magistrate accepted the respondent’s evidence entirely. The inconsistencies in the appellant’s evidence led the Magistrate to determine that the appellant’s evidence was unreliable and lacked credibility. The Magistrate formed this view after hearing the appellant give evidence, observing her demeanour in the witness box, and reading her affidavits. She concluded that whilst the appellant was clearly intelligent and well spoken, she appeared to be paranoid, was prone to exaggeration, and unable to see the world in the same way a reasonable and rational person would.^[66]
47. [47]
    In relation to the actions of the respondent on 29 January 2018, the Magistrate found them to be out of character, only verbal and largely provoked by the appellant, and took course in context of the parties separating.
48. [48]
    The Magistrate also dismissed the appellant's claim that the respondent had been financially abusive towards her. She considered the evidence showed the respondent had paid the council rates and water rates for the property where the appellant lived after they separated. He made financial disclosure to the Family Court. The Magistrate noted that judgments had already been handed down in the Federal Circuit Court with respect to those matters, and she saw no basis for the appellant’s claims.^[67] The Magistrate also noted the appellant’s allegations that she was entitled to receive money from the aunt’s will and correctly found, in my view, that there was absolutely no substance to the appellant’s claims. The aunt died in 2013, many years before the marriage breakup, and there was no proof the aunt’s will was fake.
49. [49]
    The Magistrate concluded the respondent had not breached any temporary orders in place, and there was no evidence that would suggest the respondent would commit domestic violence against the appellant in the future. The Magistrate considered it neither necessary nor desirable to make a protection order against the respondent.^[68]
50. [50]
    The Magistrate dismissed the appellant’s application for a protection order.^[69]

Respondent’s application

51. [51]
    The Magistrate had regard to the appellant’s numerous abusive text messages, Facebook posts and emails sent to the respondent. She considered there was overwhelming evidence that the appellant was responsible for harassing and emotionally abusing the respondent.^[70] The Magistrate considered the voicemail and abusive message sent by the appellant to the respondent on 19 April 2018 following the Federal Circuit Court orders, the appellant’s subsequent apology to the respondent, and the email she sent early the following morning to her solicitors expressing concern for her actions. The Magistrate considered the appellant’s apology was not evidence of genuine remorse; rather, it was motivated by self-interest.^[71] The Magistrate referred to the emails the appellant had sent to the respondent’s solicitors accusing them of being part of a child trafficking ring as insulting, and seemed to be entirely consistent with someone suffering a mental health condition. She noted the appellant’s evidence that she did not believe the email was insulting or vexatious. The Magistrate remarked that the appellant had demonstrated no insight into her offensive and abusive behaviour toward the respondent, and therefore it was necessary and desirable to make a protection order against her to prevent a continuation of similar material being levelled against the respondent in the future.^[72]

Legislative Framework

52. [52]
    Section 164 of the Domestic and Family Violence Protection Act (“the Act”) provides:

“164 Who may appeal

A person who is aggrieved by any of the following decisions of a court may appeal against the decision—

1. (a)
   a decision to make a domestic violence order;

2. (b)
   a decision to vary, or refuse to vary, a domestic violence order;

3. (c)
   a decision to refuse to make a protection order;

4. (d)
   if the person sought a temporary protection order in a proceeding under this Act—a decision to refuse to make the order.”

53. [53]
    The appeal is to be decided on the evidence in proceedings before the Court that made the original decision although the Appellate Court may order that the appeal be heard afresh.^[73] The appeal is by way of a rehearing on the evidence given in the proceedings before the Magistrate. The Court must have regard to all of the evidence before it and determine whether the order made by the Magistrate is the result of some legal, factual or discretionary error.^[74] The Appeal Court must conduct a real review of the trial and the Magistrate’s reasons, and make its own determination of relevant facts and issues from the evidence giving due deference and attaching a good deal of weight to the Magistrate’s view. The question is not whether the Appellate Court may have made a different finding but, rather, whether the Magistrate’s finding was reasonably open on the evidence.^[75]
54. [54]
    Section 4(1) sets out the guiding principles of the Act which is that the safety, protection and wellbeing of people who feel or experience domestic violence, including children, is paramount. Section 8 of the Act defines domestic violence for the purposes of the Act. It includes behaviour by a person towards another person which is emotionally or psychologically abusive. Section 11 defines emotional or psychological abuse as behaviour that torments, intimidates, harasses or is offensive.
55. [55]
    Section 37 of the Act relevantly provides as follows:

“37 When court may make a 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 …”

Respondent’s submissions on Appeal

56. [56]
    The respondent submits the Magistrate properly considered the relevant factors under section 37 of the Act. The parties were married, and therefore in a relevant relationship. There was sufficient evidence of acts of domestic violence perpetrated by the appellant in the respondent’s affidavit filed 29 July 2019. The appellant admitted or did not challenge the numerous incidents of abuse in cross-examination.
57. [57]
    Having found the appellant to be unreliable and lacking credibility, and in the absence of reliable corroborative evidence, it was within the Magistrate’s discretion to find the appellant had failed to satisfy the court on the balance of probabilities that the respondent had committed any act of domestic violence other than those acts of verbal abuse admitted by the respondent comprising the incident on 29 January 2018.
58. [58]
    The appellant had previously breached the TPO, and demonstrated little insight into her conduct up until and during the trial. The parties will continue to have contact in consequence of having three children. It was open to the Magistrate to find that it was necessary and desirable to make a protection order against the appellant.
59. [59]
    On the other hand, the Magistrate found, and was entitled to find, that the behaviour admitted to by the respondent on 29 January 2018 was “out of character, was only verbal and largely provoked by [the appellant] and took place in the course of the parties separating”, and the respondent “has not breached any temporary orders made, and has not responded at all despite the ongoing, aggressive abuse from [the appellant]”.^[76] Having made those findings, it was in the reasonable discretion of the Magistrate to find that an order in favour of the appellant was not necessary or desirable.

Appellant’s submissions

60. [60]
    The appellant filed a Notice of Appeal claiming breach of procedural fairness and “apprehended bias” by the Magistrate due to the Magistrate’s failure to manage evidence in line with court procedures and common law principles, failure to admit and properly consider evidence, incorrectly diagnosing the appellant with a mental health illness, failure to exclude evidence unlawfully obtained, and failure to fairly assess admissions of domestic violence by the respondent.
61. [61]
    The appellant also listed a large number of complaints in a 10 Page document titled “Summary of Argument” filed on 12 February 2020, which I will treat as a written outline of submissions. Most of the appellant’s arguments are either difficult to understand, not supported by evidence before the court, or irrelevant to a determination of this appeal.
62. [62]
    During the hearing, the appellant orally addressed some of the arguments set out in her written outline. I don’t intend to address the myriad of irrelevant complaints made by the appellant; however, I will briefly outline and consider the appellant’s assertions.

Complaints against the Magistrate

Submission

63. [63]
    The appellant submits the Magistrate failed to apply procedural fairness and showed “apprehended bias” due to her failure to follow court procedures and common law principles, failure to admit and properly consider evidence, incorrectly diagnosing the appellant with a mental health illness, failure to exclude evidence unlawfully obtained, failure to fairly assess admissions of domestic violence by the respondent, and failure to take into consideration the evidence from qualified psychiatric professionals of the appellant’s mental state. The appellant submits that there was evidence which demonstrated that each time she committed an alleged act of domestic violence against the respondent, she was suffering an acute stress reaction to a prior act of abuse committed by the either the respondent or his lawyer. Further, the Magistrate did not give appropriate weight and/or failed to properly consider evidence in relation to domestic violence suffered by the appellant. The appellant also submits the Magistrate dismissed 615 pages of evidence which included documents relating to the respondent’s brain injury and how that may impact his cognitive functioning.

Consideration

64. [64]
    There is no merit in any of these complaints. The Magistrate acted professionally and courteously throughout the proceedings. She allowed the appellant’s legal team time to look at the subpoenaed material and obtain further instructions at the beginning of the trial. There is nothing in the transcript, and the appellant did not refer to any specific examples, of the Magistrate failing to follow court procedures, incorrectly applying the law, failing to exclude evidence unlawfully obtained or failing to assess the respondent’s evidence. The appellant’s complaint that the Magistrate failed to admit and properly consider evidence substantially relates to the report of Dr Smock, a police surgeon from San Diego, USA. The appellant sought to rely on the report as evidence that the respondent had strangled her on an occasion. The report was only provided to the respondent’s lawyers on the day of trial. Dr Smock had never examined the appellant. The report was apparently based on some photographs the appellant had sent to Dr Smock. The photographs were not in evidence. The appellant’s counsel informed the Magistrate that the report was simply “an opinion based on a mechanism of injury”. He then said the witness could be available the following day. The Magistrate expressed concern that failure to disclose the report was not in accordance with the rules of disclosure. The appellant’s counsel then said he would not pursue his application to rely on the report.^[77]
65. [65]
    The appellant’s complaint that the Magistrate diagnosed her with a mental illness is incorrect. The Magistrate described the appellant as clearly intelligent and well spoken; however, she appeared to be paranoid, was prone to exaggeration, and unable to see the world in the same way a reasonable and rational person would.^[78] I consider the Magistrate was entitled to make these observations having regard to the uncontested documentary material in combination with the appellant’s evidence. I consider that the only other rational view open to the Magistrate on the evidence was that the appellant was deliberately and maliciously making false allegations against the respondent and others. I have read and considered all of the voluminous material attached to the appellant’s affidavits, including what the appellant describes as the 615 pages. The material does not prove the respondent suffered a brain injury. The material does not include opinions from psychiatrists that the appellant’s mental state was caused by the respondent. There is nothing in the transcript of the hearing to show the Magistrate did not have regard to all of the appellant’s material.
66. [66]
    I am satisfied the Magistrate had regard to all of the admissible and relevant evidence, correctly applied the law and correctly arrived at her findings based on the evidence.

Complaints against the appellant’s legal representatives

Submissions

67. [67]
    The appellant submits her legal representatives failed to follow her instructions on a number of occasions including: failure to adduce evidence of the respondent’s brain injury;^[79] failure to cross-examine the respondent with pre-written questions the appellant had provided; failure to present the written submissions as agreed; failure to arrange essential witnesses; and failure to cross-examine the police officer in relation to alleged perjury. The appellant also submitted that her legal representatives failed to prevent her from being badgered by the respondent’s legal representatives while she was giving evidence.^[80]

Consideration

68. [68]
    Although the present appeal does not concern a criminal matter where more stringent rules might apply, it is useful to consider the test applied in criminal appeals. In the High Court matter of TKWJ v The Queen (2002) 212 CLR 124, Gleeson CJ stated at [16]:

“It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.”

69. [69]
    The issue is whether the conduct of the appellant’s counsel has led to unfairness to the appellant resulting in a miscarriage of justice. Bearing in mind the affidavit evidence, and the trial transcript, I consider there is no substance to the appellant’s complaints regarding counsel’s conduct of the hearing. The appellant was represented by a solicitor and barrister at the hearing. It was the appellant’s counsel’s duty, based not only on his client’s instructions but also on the affidavit material and other relevant material, as to what evidence to lead and what questions to ask the witnesses, including how best to cross-examine the respondent and SC Bell. For example, the appellant complains that counsel failed to cross-examine the respondent about his brain injury; however, there was no reliable evidence before the court by way of medical material that the respondent had suffered a brain injury. Whether or not the respondent had a brain injury was irrelevant to the issues the Magistrate had to determine. No doubt, the appellant’s counsel would have considered the written questions the appellant wished him to ask and made a decision not to ask any questions that were irrelevant, vexatious and/or would have been detrimental to his client’s prospects of success if he attempted to ask them. The same would most likely apply to his decision not to provide the appellant’s written submissions to the Magistrate. It is also understandable why counsel would have decided not to question SC Bell in relation to unsubstantiated allegations of perjury.
70. [70]
    The appellant also criticized her counsel’s decision to withdraw his application to tender a report from Dr Smock. During the appeal hearing, with the consent of the respondent’s solicitor, I allowed the appellant to hand up a copy of Dr Smock’s report. After reading the report, I was satisfied it was not admissible and did not provide evidence to support the appellant’s contention that the respondent had choked or strangled her on 19 November 2017, or on any other occasion. I refused leave for the appellant to rely on the report as new evidence on the appeal. I consider the appellant has failed to show her counsel’s conduct deprived her of a successful outcome on either application.

Application to copy and view subpoenaed material

Submission

71. [71]
    The appellant submits she was not afforded procedural fairness in relation to a hearing that occurred on 29 November 2019, three days before the trial. On that date, the appellant’s lawyer made an application to inspect and copy documents. The respondent consented to documents from ANZ Bank, GCUH, and Queensland Police being inspected and copied but opposed documents from South Coast Radiology. The Magistrate subsequently granted leave to inspect and copy only those documents that were consented to. It appears the appellant takes issue with the fact that she wasn’t informed of the hearing and her lawyer was only informed at short notice. She further submits that the documents were never inspected.^[81]

Consideration

72. [72]
    There is no merit in this complaint. The application was brought on by the appellant’s lawyer, who was present at the application, and was only in answer to subpoenaed material. It was entirely reasonable for the appellant’s lawyer to appear on her behalf in her absence. The appellant’s counsel requested and was granted further time before the trial commenced to view the subpoenaed material and take the appellant’s instructions.

Were the Magistrate’s findings reasonably open on the evidence?

73. [73]
    I have considered all of the evidence in the original hearing. I have conducted a review of the Magistrate’s reasons and have made my own determination of the relevant facts and issues, having regard to the Magistrates view. I have had regard to the relevant legislation and the guiding principles of the Act including that the safety, protection and wellbeing of people who feel or experience domestic violence including children is paramount.^[82]

Respondent’s application for a protection order

74. [74]
    The Magistrate considered all relevant factors under section 37 of the Act. Consistent with her findings, I am satisfied to the requisite standard:

75. [75]
    At the appeal hearing, the appellant continued to have little if any insight into the fact her behaviour has been unacceptable. She made clear her intention was to pursue the respondent further through the courts. I am satisfied a protection order was and is clearly necessary and desirable to protect the respondent from further domestic violence.^[89]

Appellant’s application for a protection order

76. [76]
    With respect to the appellant’s application for a protection order against the respondent, the appellant has failed to show the Magistrate erred by concluding she could not be satisfied that the respondent had committed any act of domestic violence on 19 November 2017, or any act of domestic violence other than some verbal abuse during the incident of 29 January 2018. It was open on the evidence for the Magistrate to prefer the respondent’s evidence over the appellant’s evidence. The evidence supported her conclusion that the respondent’s behaviour on that one occasion was out of character. In my view, although the respondent’s verbal outburst on 29 January 2018 may well have constituted emotional or psychological abuse under section 8(1)(b) of the Act, there was no credible or reliable evidence that, prior to or since that date, the respondent behaved in any way which could satisfy a court that it was necessary or desirable to make a protection order against him. The uncontested evidence was that the respondent had made no contact, directly or indirectly, with the appellant except in compliance with Family Court orders.
77. [77]
    I consider, consistent with the Magistrate’s findings, there was no credible or reliable evidence before the court of financial abuse by the respondent. For example, the appellant’s belief that she was entitled to money from the respondent’s aunt’s will is without foundation. The respondent was not the beneficiary to the will. The appellant’s claim that “the will is fake and it needs testing” is spurious. There was no evidence to corroborate the appellant’s claims that the respondent had stalked her, stolen her money or hacked into her bank accounts. There was no evidence to corroborate her other complaints of domestic violence, for example, that the respondent had stolen items from her house, tampered with items on her property, put magnets on her fridge to spell the word “burn”, or conspired with police to have her admitted to the GCUH MHU.
78. [78]
    I am satisfied the Magistrate’s findings were reasonably open on the evidence. The appeal is dismissed.

Costs

79. [79]
    The court has a discretion to order costs on this appeal. The UCPR applies.^[90] The starting point is that the costs of the appeal would follow the event unless ordered otherwise. The general rule is that the successful party should have costs awarded in its favour. In this case, the respondent was wholly successful and put to the expense of responding to the appeal. In all of the circumstances, I consider the appellant should pay the respondent’s costs. Under the UCPR, it follows that these costs are to be assessed on the standard basis. However, if another order as to costs is sought, I will allow the parties until 4.00pm Thursday 24 September 2020 to provide short written submissions of no more than 2 pages which should be emailed to my Associate.