SHW v ABC[2021] QDC 151

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   After a hearing on 28 January 2021 the learned Magistrate dismissed an application for a Domestic Violence Protection Order made by the appellant.  On 22 February 2021 the appellant filed an appeal against that dismissal.  The appeal is on the following basis:

“This part is subject to appeal and made on two parts:

Part A: My solicitors are of the view that the Magistrate made an error at law in determining that, in relation to the incidents at Paluma on 4 September 2020 where there was significant independent evidence of ABC’s [sic; anonymised] actions constituting domestic violence, there was no act of domestic violence committed against myself (the aggrieved).  The error at law made by a magistrate was substantially wrong and in these circumstances the filing of an appeal would be necessary; and

Part B: Inadequate legal representation by counsel for the aggrieved SHW [sic; anonymised].”

The law on appeal

2. [2]
   Section 168 of the Domestic and Family Violence Protection Act 2012 (Qld) provides:

“168 Hearing procedures

3. (1)
   An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
4. (2)
   However, the appellate court may order that the appeal be heard afresh, in whole or part.”

3. [3]
   Pursuant to s 169 of the Act the appellate court can confirm the decision, vary the decision appealed against, set aside the decision and substitute another or remit the matter back to the Court that made the original decision.  The decision of the Court is final and conclusive.
4. [4]
   In this case there has been no application to hear fresh evidence and I have specifically indicated to the parties that I will act only on the evidence that was before the Court at first instance.
5. [5]
   An appeal under the Act is by way of rehearing and can only be exercised where there is an error of law.  In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission^[1] Gleeson CJ, Gaudron and Hayne JJ noted:

“Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing 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 rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.”

Factors to be considered in deciding domestic violence applications

6. [6]
   Section 41 of the Act prescribes the principles for administering the Act and in particular notes that “the Act is to focus on the safety, protection and wellbeing of people who fear or experience domestic violence including children”.
7. [7]
   Section 8 defines “domestic violence” for the purposes of the Act.  It provides:

“8 Meaning of domestic violence

3. (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.

3. (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;
9. (i)
   unlawfully stalking a person.”

8. [8]
   Section 37 prescribes when a court may make a protection order.  It provides:

“37. When court may make protection order

3. (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.

3. (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.”

Was the legal representation inadequate?

9. [9]
   The appellant submits her barrister present the case on the points that the appellant wished to have made and that she was inadequately prepared to properly represent her in the trial.  The appellant says that the respondent continually raised evidence from his affidavit that she could not shut down because of her inadequate preparation.  The appellant suggested that her barrister did not have enough knowledge of the material to properly defend the appellant. In particular, the appellant points to the following conduct:

• That her barrister failed to have equipment to play triple zero (000) calls made to police on 4 September 2020;
• That her barrister allowed the respondent to dominate the courtroom and rant and rave about any topic he wanted to raise;
• That she was unable to object to his questioning as he was representing himself;
• That her barrister was not prepared, had a lack of interest and inadequately represented her.

10. [10]
    Unfortunately, many of the complaints made by the appellant in relation to her legal representation are not borne out on the transcript.  The job of counsel was to sift through a large amount of material, some of which was relevant and some of which was not, in order to distill a case for a domestic violence order.  The triple zero (000) phone calls were not really relevant to that order and in any event in the three hour recording made at Paluma the appellant can be heard talking on the phone to the police on the triple zero (000) call.  Any comments by the police on the other end of that call were not relevant to the proceedings so nothing was lost by those calls not being played.  It is also evident from the transcript that the barrister representing the appellant did object to the questioning by the respondent on a number of occasions particularly where questions were not asked properly, where questions were irrelevant or where questions were asked about privileged documents.
11. [11]
    The submissions by counsel made at the end of the trial were both appropriate and relevant
12. [12]
    The test for assessing incompetence of counsel  on appeal was discussed in the Queen v Paddon [1999] 2 Qd R 387 where the Court suggested that although there is no precise verbal formula describing the conduct of counsel there must be something in the nature of flagrant incompetence which deprived the accused of a significant possibility of success.
13. [13]
    The matter was further discussed in the R v McCormick [2000] QCA 522 where Helman J (as he then was) noted four matters:

1. 1.That the court will not infer incompetence of counsel unless that is the only inference that can be drawn;
2. 2.That error of judgement does not demonstrate flagrant incompetence;
3. 3.If forensic advantage can be seen in decisions of counsel it will not be interfered with on appeal; and
4. 4.If such a ground is to be raised the appellant should seek affidavits from her solicitor and/or her counsel concerning the matter.

14. [14]
    In this case there is no suggestion from the record that there was flagrant incompetence, in fact the matter seems to be have been competently handled by counsel. Therefore, this ground of appeal fails.

Did the Magistrate err in finding that there was no domestic violence?

15. [15]
    The remainder of the appeal grounds relate to the Magistrate’s acceptance of the respondent’s evidence as opposed to hers and the Magistrate’s finding that a domestic violence order was not necessary or desirable.
16. [16]
    The appellant claims that the Magistrate should have heard the recording of the triple zero (000) calls.   As already noted the conversation from the appellant’s side was able to be heard on the recordings at Paluma.   The responses to the conversation by the police was not relevant and therefore the Magistrate was able to consider the full evidence that was relevant on the day in question.
17. [17]
    The appellant submits the Magistrate made an error or overlooked a fact when making her decision that the appellant had not been set-up by the respondent at Paluma.  I note however, that this was not the case. The Magistrate did not find that the incident at Paluma was not a set-up, the Magistrate instead found that the incident at Paluma had been exaggerated by the appellant.  Having listened to the recording it was within the Magistrate’s discretion to find that the incident was in fact exaggerated by the appellant.  The appellant’s description of matters in her affidavit are not borne out on the footage that was tendered.
18. [18]
    The appellant maintains that the Magistrate relied on evidence that was inadmissible.  I cannot see any evidence adduced that was inadmissible.  Unfortunately, this application was tied up amongst an acrimonious marital split and much of the recent contact of which the appellant complains was in the context of a property dispute. For this reason, there was a wide scope, therefore, for cross examination on credit.
19. [19]
    The appellant further maintains that the Magistrate did not provide adequate reasons for rejecting what was, in the appellant’s submission, multiple forms of independent evidence when making her decision.  In my view the Magistrate considered all relevant matters.  There were matters that were relied on by the appellant which were capable of innocent explanation. Those matters include:  texts between the respondent and their daughter, the tussle over the Mercedes Benz that she had used during the marriage which was company property, and the deposit of $80,000 into a credit card for which she was the primary card holder. These are examples of matters that could have been interpreted either way by the Magistrate.  The Magistrate accepted the explanation given by the respondent but that does not mean that there was an error in her reasons. She had the benefit of seeing the parties give oral evidence and was entitled to draw inferences from how and what was said.
20. [20]
    Similarly, the admission by the respondent that he did not talk to the appellant after her sister died was explained by him as dealing with his own grief and that he thought it would be best to leave the appellant alone.  The Magistrate clearly decided that that was not domestic violence but simply his way of dealing with grief.
21. [21]
    The appellant submits that the Magistrate gave inappropriate favourable treatment to the respondent by allowing him to cross-examine the appellant by asking what she considered to be irrelevant and immaterial questions and suggesting that she was making things up.  It is hard to see how the Magistrate could have stopped a cross-examination of the appellant in circumstances where the respondent claimed that the appellant was lying about substantive matters.  He was entitled and in fact required to put his case to the appellant.  Some of his questioning was not in the proper form but he was stopped by the Magistrate and counsel for the appellant when that occurred.
22. [22]
    The appellant submits that the Magistrate should have accepted that there was a long history of domestic emotional abuse, controlling behaviour, financial abuse and violence. The Magistrate rejected this suggestion on the basis that the appellant as a police officer did not report any of this abuse. The appellant maintains that this demonstrates a lack of understanding of an abusive relationship. There may be merit in this submission were it not for the fact that the Magistrate also took into account the fact that the children of the marriage who were adults and were not called as witnesses to support the allegations of abuse during the marriage. The Magistrate was entitled to accept the denials of the respondent in this regard.
23. [23]
    The appellant then outlines what she sees as independent evidence of domestic violence.  In her outline at page 10 she has listed a number of matters many of those matters relate to the incident at Paluma on 4 September 2020^[2].  There were other matters that the Magistrate simply did not accept happened (such as longstanding emotional abuse over 20 years and the respondent committing multiple acts of domestic violence against her)
24. [24]
    The respondent did accept that he took the Mercedes Benz back but gave evidence that the car was a company car and tendered documents to show that the appellant was not willing to take over payments on the car.  In those circumstances it is difficult to see on what basis that can be claimed to be domestic abuse. 
25. [25]
    The Suncorp credit card account deposit was explained by the respondent as a mistake and the Magistrate clearly accepted that.  The situation around her sister’s death was also explained and it seems accepted. 
26. [26]
    In terms of financial abuse the respondent accepted that he did not allow the appellant access to the company finances as she was no longer, and had never been, a working part of the company, did not contribute to the company and as such he was not prepared to let her draw from the company finances in circumstances where she had already taken $230,000 from the mortgage account.  The appellant accepts that she took that money and that the respondent had given her an extra $50,000 to buy a car.  The Magistrate was entitled therefore to reject any suggestion of financial abuse.
27. [27]
    In relation to the encounter at the Paluma property on 4 September 2020 in my view that behaviour does amount to domestic violence.  The respondent has admitted that he went to the property deliberately before the appellant arrived, knowing she intended to be there for that particular weekend.  He had advised through his solicitors that he would be away during the period within which this particular weekend fell and he indicated that he went there knowing that when she arrived the next day she would be in breach of the domestic violence order he had taken out against her.  He also admitted that the disconnection of the gas bottles, the solar panels and the water were vindictive and further, it also seems that as at the date of the hearing he had still failed to turn over the correct  keys to that cabin despite there being an agreement that they would attend the cabin on alternate weekends.  I accept there is a significant element of spitefulness and aggression in that behaviour.  I find this despite the Magistrate’s observation that the swearing and name calling by the respondent only lasted for a short time out of a long recording.
28. [28]
    I also accept that the respondent’s behaviour in relation to the collection of furniture ordered was a way of controlling and manipulating the appellant.  He was in a position where he could have allowed access to the house to remove the furniture, particularly in circumstances where the police were present, but he chose not to do so and instead delayed it for an unreasonable amount of time, particularly in circumstances where he knew he was back in the Townsville area at least by 4 September 2020.
29. [29]
    The further acts of domestic violence mentioned at paragraph 18 of the appellant’s outline do not in my view necessarily depict domestic violence.  The respondent explained his situation in relation to the appellant’s access to the company, namely that he was protecting the business. The Magistrate accepted that explanation.  The allegation of $730,000 in drawings being taken by the respondent were not proven by the appellant and were denied by the respondent. 
30. [30]
    The evidence of surveillance cameras inside the house were also explained by the respondent on the basis that he travelled to mines for work and they were for security. The Magistrate accepted that as a reasonable explanation. There is no evidence of when the surveillance cameras were installed.  There is no suggestion they were installed simply for the short time that the appellant was at the house. 
31. [31]
    Similarly, his monitoring of emails was done so on a shared computer.  The respondent explained the use of that computer was for his business. 
32. [32]
    The appellant says the respondent accepted he damaged some of her clothes, broke items, and packed rubbish in with her clothes. Despite this, I have been unable to find any admission to this effect, made by the respondent, other than he packed the boxes for the appellant. 
33. [33]
    There was no evidence from any of the children that there was domestic violence committed against them and in the circumstances, given that they are adults and would have been able to give evidence, it was within the Magistrate’s discretion to find that there was no domestic violence committed against the children. 
34. [34]
    The Magistrate accepted the respondent had given $50,000 to the appellant as well as repairing a Barina for their daughter ET’s use. She found that the appellant had access to the business accounts and withdrew significant amounts of money and it was therefore necessary for him to put a stop to monies being withdrawn by the appellant for the sake of the business.  In the end the Magistrate found that there was no domestic violence by the respondent. She then turned to whether the order was necessary or desirable in the circumstances. 
35. [35]
    The respondent submitted during the hearing that he had no interest in having contact with the appellant and it is true that there has been little contact since a family wedding.  The Magistrate found that the risk of the respondent committing an act of domestic violence against the appellant in the future was minimal to non-existent and that the incident at Paluma was an isolated incident that involved yelling, swearing and the taking of property in circumstances where he did not expect to see the appellant on the day in question. He may not have expected to see her on that day but he did expect her to arrive the next day.
36. [36]
    It was within the Magistrate’s power to find that the respondent did not expect the appellant at the property on that day.  However, the Magistrate did not take into account the fact that he went up there deliberately to pervert any attempts by the appellant to attend the property on the following day, or in fact, with the intention to confront her, refuse her entry on the basis of the domestic violence order taken out against her and warn her that she would be in breach of the domestic violence order.  It was clearly a deliberate attempt to cause trouble between himself and the appellant in a similar way to the refusal to deliver the furniture for six weeks after an order was made for the delivery, despite police being brought to the property for the furniture to be handed over.
37. [37]
    Even accepting the Magistrate’s findings that the respondent was not likely to be violent towards the appellant in the future, his passive aggressive acts such as going to Paluma the day before she was due to arrive, refusing to hand over furniture,  and handing over the wrong keys to his solicitors so when the appellant did attend Paulma, she would be unable to enter the cabin, all amount to controlling and emotionally abusive behaviour that has the potential to be repeated during the course of the property settlement. Contact is inevitable during that period.
38. [38]
    In my view the magistrate erred in finding that it was not necessary or desirable to protect the appellant from future domestic violence

Order

39. [39]
    For the reasons above it is desirable, in my view, that a domestic violence order be placed against the respondent and the Magistrate erred in finding that there was a minimal to non-existent chance of domestic violence occurring given his past behaviour.
40. [40]
    The appeal is allowed. I order that a domestic violence order be served on the respondent with the appellant named as the aggrieved on the standard conditions, namely, that the respondent be of good behaviour towards the appellant.
41. [41]
    There is no evidence upon which to make an order in relation to their daughter, ET.