GRP v ABQ[2020] QDC 272

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant appeals pursuant to section 164(d) of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) against a decision made by a Magistrate on 26 November 2019 in the Southport Magistrates Court dismissing the appellant’s application for a temporary protection order (“TPO”) against the respondent.

2. [2]
   The appellant is also the respondent named in a protection order that was granted on 17 June 2019 in favour of the respondent to this appeal.

Background

3. [3]
   The appellant and respondent met in approximately April 2018 and commenced a domestic relationship during which they lived together intermittently. The appellant has three children from a previous relationship and the respondent has four children from previous relationships. They do not have any children together.

4. [4]
   On 4 November 2018, following an argument during which the appellant damaged the respondent’s door, the respondent made a complaint to police. The same day, police filed an application for a protection order on behalf of the respondent against the appellant. On 7 November 2018, a TPO was made by consent naming the respondent as the aggrieved and the appellant as the respondent. The respondent’s children were named in the order.^[1] 

5. [5]
   On 27 November 2018, following a reconciliation between the appellant and respondent, the respondent made an application to vary the conditions of the TPO to allow contact between the parties.^[2]  The TPO was varied to this effect on 4 December 2018.

6. [6]
   On 16 March 2019, the appellant and respondent were married. The relationship continued to falter.

7. [7]
   On 17 June 2019, a protection order against the appellant was made with mandatory conditions and no contact conditions except with the respondent’s written consent.^[3]  The appellant was served with the protection order on 28 July 2019.^[4] The appellant and respondent continued to have contact with each other.

8. [8]
   On 3 August 2019, the appellant and respondent were at home together. A verbal and physical altercation occurred. The appellant packed his belongings and left the residence. The respondent subsequently made a complaint to police alleging the appellant physically assaulted and choked her. On about 9 August 2018, the appellant was charged with the following offences and remanded in custody:

• Breach of a domestic violence order;
• Common assault – domestic violence order; and
• 2 x choking suffocation strangulation – domestic relationship – domestic violence offence.

9. [9]
   On 10 October 2019, the appellant was released on bail.

10. [10]
    On 1 November 2019, the appellant filed a private application for a protection order against the respondent. The five incidents of alleged domestic violence are as follows:

“(1) On 4 November 2018, following an argument about the appellant disciplining the respondent’s children, the respondent said to the appellant, “Just because people don’t agree with you doesn’t mean they’re wrong, you’re an idiot”, “That’s right you just leave when you can’t take it”, and “You’re an idiot, this is what you do, you just run away”.^[5] 

(2) Around mid-February 2019, the respondent sent a text message to her daughter which said, “[T], just letting you know the asshole is here for the night” and “Yep, fucking asshole he is”.  Following this, the respondent showed the appellant the text messages. The respondent said to the appellant “the kids don’t like you either, they think you're an asshole too”.^[6] (Emphasis added)

3. (3)
   On 15 March 2019, following an argument about their wedding which was to be the next day, the respondent said to the appellant “You’re an idiot” and “you don’t care about this wedding”.

3. (4)
   In April 2019, the respondent sent the appellant the following text messages:  “Why don’t you love me”, “Are you still attracted to me”, “How come you’re never home”, “Why aren’t you here”, “Who are you talking to”, and “Do you have another girl on the side”.

(5) On 3 August 2019, following an argument, the respondent lunged at the appellant and scratched his face with her nails, causing injury to his left eye and cheek.^[7]  Exhibited to the appellant’s application for a temporary order are photographs of the appellant’s injuries.”^[8] (Emphasis added). 

11. [11]
    The appellant deposed to further incidents of alleged abuse by the respondent relating to her not returning property belonging to him and generally manipulating him. These allegations were made by the appellant in an affidavit filed 9 January 2020, after the hearing on 27 November 2019. They do not form part of the appellant’s grounds of appeal and therefore I don’t intend to consider them further.

Temporary protection order hearing on 26 November 2019

12. [12]
    The appellant and respondent were represented at the hearing. The appellant relied on his application and supporting affidavit material which included affidavits sworn by the appellant’s mother, a family friend, his ex-partner, and affidavits sworn by the respondent’s ex-partner and a former friend. These people attested to the appellant’s good character, the respondent’s manipulative character, and allegations the respondent had committed acts of domestic violence on a former partner similar to those alleged by the appellant. Some of the affidavit material was not relevant to the issues the Magistrate had to decide. Some of the affidavit material was of some relevance:

• The respondent’s former partner referred to the respondent previously assaulting him by punching and scratching him on the face in 2015. The former partner made a complaint to police and a police officer attended the following day. A copy of the police officer’s statement confirms he noticed injuries to the former partner including a bloody nose and scratches;^[9]
• The appellant’s former partner deposed that the appellant visited her on 3 August 2019 (the date of the alleged assault and choking) in a distressed state.  She observed he had “marks to his face” and “bloodshot eyes”;^[10]
• Photographs of the facial injuries sustained by the appellant on 3 August 2019;^[11]
• A screen shot of a text message between the respondent and her daughter which is the subject of incident (2);^[12] and
• A brief report under the hand of a forensic pathologist, Dr Collins, who examined photographs of the respondent’s injuries from 3 August 2019, the respondent’s police statement, and a statement from Dr Lincoln who examined the respondent.  He  concluded his report with the following: “In summary, on the information presently to hand, I am of the robust opinion that the constellation of injuries identified by Dr Lincoln, during examination of [the respondent] is not necessarily consistent with the version provided by [the respondent] and self –infliction could not be excluded as mechanisms of their causation”.

13. [13]
    The respondent did not read and file any material. Her lawyer submitted the court have regard to the protection order against the appellant currently in place, and the fact police had charged the appellant with serious criminal offences arising out of the incident on 3 August 2019. The respondent submitted that the appellant’s application for a TPO was made in retaliation to the criminal charges against the appellant and the current protection order in place. It was also submitted that incident (1) of verbal abuse formed part of the claim in relation to the protection order made against the respondent in November 2018 and, as such, had already been dealt with.

14. [14]
    The respondent submitted that any injuries suffered by the appellant during the incident of physical abuse occurred when the appellant was defending herself. The respondent submitted that police made investigations in relation to that incident and the appellant was subsequently charged, not the respondent. The respondent submitted the appellant continued to breach the protection order in place by contacting the respondent, messaging her and sending her a Facebook friend request. No charges had been laid in relation to these alleged breaches at the time of the hearing.

15. [15]
    The appellant refuted the suggestion that the TPO application was retaliatory. The appellant was not released from custody until 10 October 2019 and filed the application through his lawyers on 1 November 2019 (approximately three weeks later). The Magistrate commented that the appellant could have filed the application on either Monday 6 August or Tuesday 7 August 2019 before he was remanded in custody.^[13]  The appellant submitted that the text messages sent by the respondent to the appellant, in isolation, were enough to establish acts of domestic violence, and that the physical violence on 3 August 2019 amounted to domestic violence. 

16. [16]
    The appellant submitted that the respondent, in her police statement about the alleged assault on 3 August 2019, made no mention of striking the appellant’s face in self-defence. The appellant submitted the incident on 3 August 2019 was to be contested by the appellant and referred to Dr Collins’ report as evidence that the respondent’s injuries could have been self-inflicted. The Magistrate noted the report was based on photos of the respondent’s injuries rather than based on him conducting a physical examination of her.^[14]

Magistrate’s Decision

17. [17]
    The transcript of the Magistrate’s decision on 26 November 2019 relevantly states:

“…  In determining if an order should be made, I am required by the Domestic and Family Violence Protection Act to the [sic] satisfied of the criteria required by Part 3, Division 2 of the Act, more particularly, that there was a relevant domestic relationship and if an act of domestic violence had occurred by the respondent against [the appellant].

[The appellant] relies upon his application filed 1 November 2019 and a supporting affidavit sworn 31 October 2019.  I note that the affidavit exhibits a number of other affidavits, as detailed in paragraph 7 of the affidavit sworn 31 October 2019. In considering those affidavits, I note they were made in relation to a different matter in different circumstances, that being a bail application by [the appellant].  The affidavit of [the appellant] sworn 31 October 2019 deposes to five separate incidences [sic] occurring in November 2018, February 2019, March 2019, April 2019 and, lastly, August 2019.

I note the first four alleged incidents involved allegations of verbal or emotional abuse over a period of six months.  The alleged incident on Friday 3^rd August 2019 details alleged physical abuse.  It was submitted by [the appellant] that he was placed into custody on Wednesday 8 August 2019.  In that regard, I note that [the appellant] was able to make any application for a protection order on either Monday 6 August or Tuesday 7 August but for whatever reason chose not to do so.

For completeness, the Court notes that a protection order was made by this Court on the 17^th of June 2019 in favour of the respondent against [the appellant] in respect of the incident which occurred 3 August 2019.  On that occasion, the police, after hearing from the respondent and [the appellant] [indistinct] a Police Protection Notice was required for the protection of the respondent in this matter and her children.

In respect of whether domestic violence has occurred, I have had regard to the decision of Judge Kent QC in AMB v TMP & Anor [2019] QDC 100, at 36 to 38, 35 where he referred to the subjective nature of emotional abuse and where mere insults - whether mere insults amounted to emotional abuse. Having regard to the circumstances of the matter on a whole, particularly the alleged four offences of verbal or emotional abuse over an extended period, I do not consider that the threshold of domestic violence has been reached. Accordingly, I decline to make a temporary protection order today.” (Emphasis added).

Grounds of appeal

18. [18]
    The appellant appeals on the following grounds:^[15]

1. The Magistrate wrongly decided and erred in law by not granting a TPO;

2. The Magistrate wrongly decided and erred in fact and law by determining that the appellant’s allegations of domestic violence against the respondent did not satisfy the definition under the Act;

3. The Magistrate erred by failing to give adequate reasons for not granting the TPO; and

4. The Magistrate erred in fact and law in that he:

1. allowed extraneous or irrelevant matters to guide or affect his decision;

2. mistook the facts; and

3. did not take into account material considerations.

Legislative Framework

19. [19]
    Section 164 of 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.” (Emphasis added).

20. [20]
    The appeal must be decided on the evidence and proceedings before the original court; however, the appellate court may order that the appeal be heard afresh, in whole or part. The appeal is by way of rehearing on the evidence given during the course of the proceedings before the Magistrate. In determining whether the order is the result of some legal, factual or discretionary error, the Court must have regard to all of the evidence before the Magistrate.^[16]  The Court must conduct a real review of the trial and the Magistrate’s reasons, and make its own determination of the relevant facts and issues from the evidence.  The Court must give due deference and attach 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.^[17] 

21. [21]
    The guiding principles of the Act state that the safety, protection and wellbeing of people who feel or experience domestic violence, including children, are paramount. Under the Act, domestic violence includes behaviour by a person towards another person which is physically, sexually, emotionally or psychologically abusive.^[18]  Section 11 of the Act defines emotional or psychological abuse as behaviour that torments, intimidates, harasses or is offensive.

22. [22]
    The matters the court must be satisfied of when making a TPO are set out in section 45 of the Act which relevantly provides:

“45 Matters court must be satisfied of

3. (1)
   A court may make a temporary protection order against a respondent only 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.”

23. [23]
    Section 46 of the Act provides that a TPO need only be supported by the evidence that the court considers sufficient and appropriate having regard to the temporary nature of the order.

Respondent’s Submissions

24. [24]
    The respondent submits the Magistrate’s reasons were adequate in all the circumstances because he referred to the following matters:

• The appropriate test under the Act for making a TPO;
• The material placed before the Magistrate by the appellant;
• The timing of the application;
• The alleged circumstances of 3 August 2019, including the police investigation; and
• The decision of AMB v TMP^[19]in assessing the nature of the text messages and Facebook posts.

Consideration

25. [25]
    The Magistrate referred to the decision of AMB v TMP^[20] and concluded that the messages did not meet the threshold for domestic violence. He also referred to the relevant considerations for a TPO under section 45 of the Act. The Magistrate had regard to what he considered to be the tardiness of the appellant’s application, but I do not think that is determinative of or relevant to whether a TPO should be made.

26. [26]
    The Magistrate’s reasons make no mention of him considering whether the incident on 3 August 2019, which resulted in injury to the appellant, amounted to an act of domestic violence. He only referred to the four incidents of alleged emotional abuse. He did not refer to the incident of alleged physical violence, which was the most serious allegation and most capable of amounting to domestic violence.

27. [27]
    I have previously considered the problems on appeal when the court below does not clearly address facts or law relevant to a decision. In ABF v DZT [2020] QDC 136, I stated: 

“Failure to give proper reasons, even in the busy domestic violence jurisdiction, makes it difficult or sometimes impossible for an appeal court to be satisfied the Magistrate made the correct decision and had regard to the relevant facts and law.  Had the Magistrate given proper reasons on this occasion, it would have assisted the appellant to understand why the Magistrate was granting an extension and what material he had considered. It also would have prevented a very real risk of the appeal being allowed on the basis of lack of reasons, therefore putting the parties through further delay as well as the stress of a rehearing of the application to vary the protection order in the Magistrates Court.”

28. [28]
    In Drew v Makita (Australia) Pty Ltd ^[21](Makita), in the reasons of Muir JA, Holmes JA as her Honour then was, and Daubney J agreeing, the court relevantly observed:

“[57] A court from which an appeal lies must state adequate reasons for its decision. The failure to give sufficient reasons constitutes an error of law.

[58]  The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with ‘a justifiable sense of grievance’ through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide ‘the foundation for the acceptability of the decision by the parties and the public’ and to further ‘judicial accountability’.”

29. [29]
    The respondent referred to only part of what was said by McGill SC DCJ in BBB v RAB [2006] QDC 80 at [9];^[22] however, the passage should be read as a whole:

“A failure to give proper reasons can amount to an error of law. The question of what is sufficient to amount to proper reasons depends on the nature of the matter, and the extent of the controversy. When a matter turns on a single issue, it may even been possible to give adequate reasons simply by finding for one party or the other. But commonly that will not be the case, and in a matter such as this in my opinion it is important to identify what particular facts were relied on as founding the jurisdiction to make the order. That is necessary in order to enable the unsuccessful party to give proper consideration to an appeal, and for this Court properly to decide any appeal. That has not been done in the present case. Accordingly there was an error of law and the appeal must be allowed.” (Citations omitted)

30. [30]
    An error of law will have occurred when the court which hears and decides this type of application does not provide adequate reasons. Due to the Magistrate’s brief reasons it is not possible for me to be satisfied that he had regard to the incident of alleged physical violence by the respondent upon the appellant, and whether that evidence was sufficient to amount to an act of domestic violence. In other words, I cannot exclude the possibility that his decision was the result of some legal, factual or discretionary error.

31. [31]
    I consider the Magistrate also fell into error when he stated in his reasons that the court had heard from both the appellant and respondent on 17 June 2019 before making a protection order against the appellant. That is not correct. On 17 June 2019, a Magistrate granted a protection order, but the appellant was not present. In any event, this predated the incident on 3 August 2019. I am unsure what relevance this had to the Magistrate’s decision, but it was something he referred to in his reasons.

32. [32]
    Section 169 of the Act provides 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.

33. [33]
    In the circumstances of the present case, this court has all the material necessary to conduct a rehearing on the affidavit evidence in the proceedings before the Magistrate. This court must conduct a real review of the hearing and the Magistrate’s reasons, and make its own determination of relevant facts and issues from the evidence. The court should bear in mind that the application was for a TPO which will only remain in place until a full hearing occurs for a Magistrate to determine whether a protection order should be granted.^[23]  There was no oral evidence at the original hearing so I am in the same position as the Magistrate to assess the evidence.

34. [34]
    I may make a TPO against the respondent only if I am satisfied that a relevant relationship exists between the appellant and the respondent, and that the respondent has committed domestic violence against the appellant. I have regard to section 4(2)(e) of the Act which provides as one of the principles for administering the Act:

“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.”

35. [35]
    I accept the respondent’s submission that this principle recognises the fact that:

“A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings”.^[24]

36. [36]
    I am satisfied a relevant relationship existed between the parties between April 2018 and 3 August 2019.

37. [37]
    In respect of the four alleged incidents of verbal abuse, the only incident which would constitute an act of domestic violence is incident (2). That incident relates to the text messages the respondent sent to her daughter labelling the appellant an asshole, then later showing the appellant the text messages and informing him she had sent the messages to her daughter, and her children agreeing he was an asshole. I consider the incident falls within the definition of emotional or psychological abuse.^[25]  The respondent’s intention can only have been to torment, upset or humiliate the appellant.  The incident was offensive.^[26]  The respondent’s lawyer at the hearing conceded the respondent shouldn’t have sent the message, but did so in the context of an abusive relationship.  I consider that this incident would not of itself be sufficient to satisfy me a TPO should be made.

38. [38]
    I have considered the evidence of physical injury to the appellant said to have occurred on 3 August 2019. The evidence includes his affidavit evidence, the photographic evidence of injuries, the affidavit evidence of the appellant’s former partner who saw the injuries, and the evidence of the respondent’s former partner who deposed to the respondent scratching his face. The respondent’s lawyer conceded the respondent caused injury to the appellant albeit in self-defence.^[27]

39. [39]
    I identify the respondent as most in need of protection according to the principles of the Act.^[28]  However, it does not follow that the appellant is not also entitled to protection in the circumstances of this case.  Cross-orders are not uncommon in situations where both parties have committed acts of domestic violence.   One other matter raised on appeal by the respondent was that the police investigated the incident at the time, spoke with both parties and concluded it was the respondent in need of protection.  The view of police is not determinative of whether the Magistrate should have granted a TPO in favour of the appellant.  The respondent is already protected by the protection order imposed on 17 June 2019.

40. [40]
    Having conducted a review of the appellant’s evidence, and in the absence of evidence from the respondent, I consider the Magistrate’s finding was not reasonably open on the evidence.^[29]  Having regard to the temporary nature of the order, I consider the evidence of alleged physical violence by the respondent is sufficient to be satisfied the respondent committed domestic violence against the appellant on 3 August 2019.^[30]

41. [41]
    I consider it is appropriate to make a TPO naming the appellant as the aggrieved and the respondent as the respondent. The respondent will have an opportunity to give evidence before a Magistrate at a hearing before determining whether a protection order should be made. The matter is already set down for mention on 1 March 2021.

42. [42]
    I am satisfied that there was evidence before the Magistrate which warranted granting a TPO in favour of the appellant. I consider it is in the interests of the parties to finalize the matter in this court rather than remitting it back to the Magistrates Court.

Order

43. [43]
    Appeal allowed. Set aside the decision made on 26 November 2019 and substitute the following decision:

A temporary protection order is made in accordance with ss 44, 48, 131, and 132 of the Act and Form DV2 naming the appellant as the aggrieved and the respondent to the appeal as the respondent on the following conditions:

1. That the respondent must be of good behaviour towards the appellant and not commit domestic violence against the aggrieved.

2. The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved by any means whatsoever including telephone, text or internet, except when appearing personally before a court or tribunal.

3. The respondent is prohibited from following or remaining or approaching to within 100 metres of the appellant when the appellant is at any place, except when appearing personally before a court or tribunal.

The order is to continue in force up to and including until a further order is made.

Costs

44. [44]
    The appellant seeks costs. The court has a discretion to order costs on this appeal. The UCPR applies.^[31]  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.  The appeal was allowed due to the Magistrate failing to give adequate reasons, and for other reasons referred to above. In this case, the appellant was successful and put to the expense of appealing the Magistrate’s decision.  I order the respondent pay the appellant’s costs.