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EVE v ETT[2021] QDC 161

DISTRICT COURT OF QUEENSLAND

CITATION:

EVE v ETT [2021] QDC 161

PARTIES:

EVE

(Appellant Respondent)

v

ETT

(Respondent Aggrieved)

FILE NO:

D480 of 2021

DIVISION:

Appellate

PROCEEDING:

Domestic Violence Order Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

18 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2021

JUDGE:

McGinness DCJ

ORDER:

1. Appeal dismissed.

2. EVE pay ETT’s costs fixed in the amount of $13,000.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to section 164(a) of the Domestic and Family Violence Protection Act 2012 (Qld) – where a Protection Order was made under section 37 of the Domestic and Family Violence Protection Act 2012 (Qld) – whether the Magistrate erred in fact and/or law by finding that the appellant had committed an act/s of domestic violence against the respondent – whether the Magistrate erred in law by failing to properly consider whether it was necessary or desirable to make a domestic violence order.

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 8, 11, 37, 56, 57, 145, 164, 168

CASELAW:

BAK v Gallagher (No. 2) [2018] QDC 132

BBB v RAB [2006] QDC 080

Briginshaw v Briginshaw [1938] 60 CLR 366

DGS v GRS [2012] QDC 74

D v G [2004] QDC 477

Edwards v Noble (1971) 125 CLR 296

HZA v ZHA [2018] QDC 125

LKF v MRR [2012] QDC 355

Teelow v Commissioner of Police [2009] 2 Qd R 489

COUNSEL:

EVE is self-represented

R Gordon for ETT

SOLICITORS:

Best Wilson Buckley Family Law for ETT

Introduction

  1. [1]
    This is an appeal from a protection order made under the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) in the Magistrates Court at Brisbane on 18 December 2020, naming the respondent to this appeal (ETT) as the aggrieved and the appellant to this appeal (EVE) as the respondent. On that date, the magistrate granted ETT a protection order for five years. The order includes conditions that EVE must be of good behaviour towards ETT and their children, not commit domestic violence against him or the children and not expose the children to domestic violence. EVE is prohibited from entering, remaining at, or approaching within 100 metres of the former matrimonial property, and from following or approaching within 100 metres of ETT at any place.

Relevant Legal Principles

  1. [2]
    Section 164 of the Act relevantly 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;
  1. (b)
    a decision to vary, or refuse to vary, a domestic violence order;
  1. (c)
    a decision to refuse to make a protection order;
  1. (d)
    if the person sought a temporary protection order in a proceeding under this Act—a decision to refuse to make the order.
  1. [3]
    The appeal is to be decided on the evidence in proceedings before the Court that made the original decision. The Appellate Court may order that the appeal be heard afresh.[1]  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.[2]  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.  In the event that error is demonstrated, the court must consider the whole of the evidence to determine whether the orders made are nonetheless justified. 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.[3] 

Relevant Background

  1. [4]
    EVE and ETT commenced living together around 1 March 2004 and were married in 2006. They have four children aged 14, 11, 9 and 7 years. Their relationship began to deteriorate in 2016 to a point where the parties separated permanently on 10 April 2018 under the same roof.[4] On 6 August 2019, EVE moved out of the matrimonial home which was located on a cattle property at Bymount, north of Roma, owned and managed by ETT (the property).[5] EVE and ETT shared custody of the children.
  2. [5]
    On 14 September 2019, EVE turned up at the property unannounced and refused to leave. ETT decided he had no choice but to leave the property. He spoke with solicitors. On 18 September 2019, ETT filed an application for a protection order naming EVE as the respondent in the Roma Magistrates Court. The grounds of the initial application for a protection order included allegations of physical, psychological and emotional domestic violence. EVE left the property after 6 days on 20 September 2019.
  3. [6]
    On 23 September 2019, the magistrate at Roma made a temporary protection order (TPO) in EVE’s absence. The TPO contained a condition prohibiting EVE from remaining at, entering, attempting to enter, or approaching the property where ETT lived.
  4. [7]
    On 7 October 2019, EVE again returned to the property and remained until 10 October 2019 without ETT’s consent. The TPO was served on EVE at the property on 9 October 2019.
  5. [8]
    On 15 October 2019, EVE and ETT attended court in relation to the TPO which remained in place. The magistrate reiterated to EVE she could not attend the property except on one occasion to remove her belongings.  Despite the terms of the TPO, EVE attended the property at approximately 11:30am. EVE continually refused to leave. ETT eventually called police. They attended and tried to reason with EVE. When she refused to cooperate, they arrested and charged her with breaching the TPO.
  6. [9]
    On 30 October 2019, at court, after discussions between EVE’s solicitor and ETT’s solicitors, an agreement was reached. The TPO was withdrawn by ETT on the condition that EVE give a signed undertaking. The conditions of the undertaking included that she be of good behaviour towards and not commit domestic violence against ETT; not enter upon 517 Ashney Road, Bymount without ETT’s written consent or an order of the Court; and not follow, approach or remain within 50 metres of ETT without his written consent, or an order of the Court.
  7. [10]
    On 28 January 2020, the Federal Circuit Court made an order during family court proceedings which contained the following condition: “the mother [EVE] is restrained from attending at or entering upon the property at 517 Ashney Road, Bymount without the written consent of the father [ETT]”.[6]
  8. [11]
    On 10 February 2020, EVE allegedly came within 50 metres of ETT at the children’s swimming carnival.
  9. [12]
    On 11 February 2020, EVE sent a text message to ETT saying she was coming to the property to “unload some gear”.[7] She said the undertaking signed on 30 October 2019 listed the wrong street address for the property, which meant she could rightfully attend the property. When ETT texted her that she did not have his permission to attend, she did not attend.
  10. [13]
    On 23 March 2020, EVE attended the property without ETT’s consent while ETT was away. EVE refused to leave the property. On 23 and 24 March 2020, ETT’s solicitors sent her several letters by email telling her she was in breach of the undertaking and the federal court order, and demanding she leave the property. Despite this, EVE remained at the property.
  11. [14]
    On 26 March 2020, ETT filed another application for a protection order in the Brisbane Magistrates Court. A TPO was granted. The order included the same conditions as the previous TPO.  On 27 March 2020, ETT’s solicitors sent EVE copies of the application and TPO. EVE remained at the property.  On 30 March 2020, police attended the property, spoke with EVE, and gave her until 31 March 2020 to leave. EVE did not leave. Police had to attend again on 31 March 2020, and she was forcibly removed. The children were at the property when this occurred.
  12. [15]
    On 23 April 2020, the current application for a protection order was listed for hearing on 8 September 2020. Directions were made for filing of affidavit material.

Application for Protection Order Hearing on 8 September 2020

  1. [16]
    On 8 September 2020, the application for a protection order proceeded to hearing. EVE was unrepresented. EVE and ETT gave evidence by affidavit and orally. No other witnesses were called. ETT relied on the evidence contained in his previous applications for a temporary protection order and an affidavit filed 25 May 2020. EVE’s evidence was contained in two affidavits filed on 9 July 2020 and 7 September 2020. The 9 July 2020 affidavit was prepared by EVE’s former solicitors. Both were cross-examined.

Summary of ETT’s evidence

  1. [17]
    ETT deposed that he made the decision to separate from EVE for reasons including she was mentally and physically abusive towards him, often in the presence of the children. Over time her concerning behaviour increased and he became fearful of her, for his safety and the children’s safety. ETT deposed to several specific incidents of alleged domestic violence prior to, and after separation.[8] His relationship with EVE was generally characterised by regular and consistent verbal, psychological and physical domestic violence.[9]
  2. [18]
    The incidents included but are not limited to EVE:
  • Following ETT around the house repeatedly poking his body.[10]
  • Yelling and screaming at ETT for no reason in front of the children and other family members; banging on surfaces.[11]
  • Throwing coffee, cooked pasta, flour, and rice at him while he was working.[12]
  • On one occasion, yelling abuse at ETT for an extended period in front of the children, holding a knife to her arm and threatening to self-harm, to the point where police were called and she was taken for a mental health assessment.[13]
  • Singing a song at ETT in front of the children called “wife beater”.[14]
  • Talking in front of the children of ETT having thrush infected genitals from lack of romantic involvement with EVE.[15]
  • Repeatedly breaching court orders by attending and remaining at the property, requiring police intervention in front of the children.
  • Breaching the TPO by going within 50 metres of ETT.
  1. [19]
    ETT deposed the incidents of alleged domestic violence caused him to feel intimidated by, and fearful of EVE due to her unpredictable and explosive behaviour. He found her conduct to be harassing and derogatory. On each occasion EVE attended the property in breach of court orders, the children were exposed to her erratic behaviour and police having to remove her from the property.[16] ETT denied he had ever assaulted EVE.

Summary of EVE’s evidence

  1. [20]
    EVE deposed that ETT told her he wanted a divorce in April 2018. They remained living separately under the same roof. In June 2018, ETT had an unexplained absence for some weeks and did not contact her or the children. He agreed in October 2018 to move out. He then told her in late 2018 she was not to return to the house. EVE returned home in January 2019 after a panicked call from her daughter stating her 4-year-old son had almost drowned in the dam at the property. On 20 March 2019, after an argument about her son’s birthday party, she made a complaint to police that ETT had assaulted her on several occasions. She did so because she was concerned about his mental health and about firearms being kept at the property. She deposed that ETT had admitted to the alleged incidents of assault to police.[17]  Police asked her whether she wanted a protection order, but she did not see the point. Police attended and spoke to ETT who gave them his guns.  EVE deposed that ETT on separate occasions:
  • Bent her fingers back after she questioned him about $40,000 worth of cattle he had given to his cousin.
  • Placed clothing over her face and bent and jammed her arm in a sliding door.
  • Kicked her in the shins with steal cap boots when she placed a caveat over the sale of part of the property.
  • Struck her on the arms and legs with a broken piece of kitchen cabinetry.
  • Dragged her by the arm, kicked her in the stomach and threw a pillow at her head which nearly knocked her down the stairs.
  1. [21]
    ETT denied under cross-examination that he had assaulted her.[18] There was no evidence to support EVE’s evidence that ETT had admitted assaulting her to police. I note police did not apply for a TPO against ETT at the time.
  2. [22]
    EVE denied she was ever emotionally, physically, or verbally abusive towards ETT. She admitted some of the incidents occurred such as throwing food at ETT on the same occasion he kicked her. She admitted arguing with ETT with a knife in her hand on 3 August 2019 but said she had just taken it from the dishwasher and may have inadvertently waved it around. She denied intending to harm herself. She referred to a letter from Dr Evans who assessed her on 3 August 2019, after police organised a mental health assessment. Dr Evans opined EVE was not at risk to herself or others, and that the incident was an isolated situational crisis.[19]
  3. [23]
    EVE agreed that she had attended the property on the alleged occasions, but for good reasons including having to home-school the children during lockdown and caring for them when they were ill. EVE returned to the property on 14 September 2019 because she believed that there was an agreed arrangement between herself and ETT. She returned to the property on 7 October and stayed until 10 October 2019 because she was not aware of the TPO or the ouster condition until police served her with the TPO on 9 October 2019. EVE returned to the property on 15 October 2019 after court because she was upset and confused about the conditions of the order. She returned to the property on 20 March 2020 because she did not feel a motel would be appropriate accommodation for the children during a COVID-19 lockdown.  EVE denied receiving emails from ETT’s solicitors on 23 and 24 March 2020. She only became aware of the emails requesting she leave the property on 1 April 2020 when she found them filtered into her general non-urgent emails. She denied being told by police to leave the property on 30 March 2020. She was distressed when police returned to arrest and remove her on 31 March 2020.
  4. [24]
    EVE deposed that the children were not in need of protection from her. She had always been their primary carer, she had worked in teaching and child protection for many years, and they had not witnessed her commit domestic violence. For the purposes of this appeal, it is unnecessary to summarise her affidavit material or evidence further at this stage. Some of it is referred to below where relevant.

Review of Magistrate’s Decision and Reasons

  1. [25]
    On 18 December 2020, the magistrate made a protection order for five years naming ETT as the aggrieved and EVE as the respondent with the same conditions as in the TPO made on 26 March 2020.
  2. [26]
    On 3 February 2021, the magistrate handed down his reasons. The magistrate referred to the relevant principles to be considered when applying the Act.[20] He correctly directed himself that the court must be satisfied on the balance of probabilities bearing in mind and applying the Briginshaw principle.[21] He then considered the three limbs requiring proof before a court can make a protection order under section 37 of the Act.
  3. [27]
    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
  1. (b)
    the respondent has committed domestic violence against the aggrieved; and

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

  1. (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
  1. (ii)

Relevant relationship (section 37(1)(a) of the Act)

  1. [28]
    It is not controversial that the first limb was satisfied. ETT and EVE agreed they were in a relevant relationship at the time.[22]

Domestic Violence (section 37(1)(b) of the Act)

  1. [29]
    The magistrate particularised 21 incidents of alleged domestic violence in his reasons. He was satisfied to the requisite standard that 12 of those incidents occurred.
  2. [30]
    After considering all the evidence, the magistrate was satisfied EVE committed domestic violence against ETT.  The magistrate accepted 12 of ETT’s allegations entirely.  The inconsistencies in EVE’s evidence led the magistrate to determine that EVE’s evidence was unreliable and lacked credibility.  The magistrate formed this view after hearing EVE give evidence, observing her demeanour in the witness box, and reading her affidavits. He concluded that EVE was evasive on occasion and did not directly answer questions put to her. He concluded that the EVE’s evidence was not believable.[23]
  3. [31]
    The magistrate concluded that 12 incidents amounted to a combination of physical, verbal, and psychological/emotional abuse within the definition of domestic violence under sections 8 and 11 of the Act.[24]
  4. [32]
    I have summarised his findings of fact and law, which refer to incidents (not in chronological order). I have reviewed the affidavit material and oral evidence in relation to each incident. I have noted some factual discrepancies between his findings and the evidence in relation to incident 1 and incident 12.

Incident 1

  1. [33]
    In December 2019, EVE followed ETT around the property and touched and poked ETT throughout the day.[25] In his reasons, the magistrate stated EVE did not dispute the incident but she denied intending to hurt ETT.[26] The magistrate was satisfied to the requisite standard this incident occurred. I cannot locate where, in the transcribed oral evidence, EVE said she did not dispute the incident. EVE denied this incident occurred.[27] It may be the magistrate was mistakenly referring to evidence ETT had given in relation to Incident 3. There it was alleged that on one occasion EVE jammed her hand into ETT’s chest during a game of touch football with the children. The magistrate was not satisfied to the requisite standard in relation to Incident 3 that EVE intended to hurt ETT during the football game.[28] I will not rely on Incident 1 as proved due to the magistrate’s possible error of fact.

Incident 2

  1. [34]
    On 27 August 2018, EVE threw coffee powder, cooked pasta, flour, and rice at ETT while he was working in his home office.
  2. [35]
    EVE accepted that this occurred and regretted throwing the food.[29] EVE denied that the pasta was cooked but said the rice was possibly uncooked.[30] EVE testified that on 27 August 2018, ETT kicked her in the shins with steel-capped boots. Under cross-examination ETT denied doing so.[31] The magistrate rejected EVE’s evidence that ETT had assaulted her. He was satisfied to the requisite standard this incident, as alleged by ETT, occurred. I am satisfied to the requisite standard this incident occurred.

Incident 4 and incident 5 (appear to be the same incident)

  1. [36]
    On 3 August 2019, EVE yelled at ETT for an extended period, in an angry state and while the children were present (Incident 4).
  2. [37]
    Following the argument, EVE held a kitchen knife to her arm and threatened to harm herself. ETT asked EVE to leave and explained to her that her conduct was inappropriate, frightening, and confusing to the children. This caused EVE to become increasingly erratic, abusive, and aggressive. ETT called police because he was concerned about his, EVE’s and the children’s safety. Police removed EVE from the property. She was transported to the hospital for a mental health assessment (Incident 5).
  3. [38]
    EVE accepted that an argument had occurred on that day but testified that she was in a “natural level of emotion”.[32] She did not accept that she threatened to self-harm with the knife. She claimed she was loading the dishwasher and gesturing with the knife.[33] EVE also testified that the incident did not occur in front of the children.[34] EVE accepted that police and an ambulance attended the property and she volunteered to go to the hospital for mental health treatment.[35]

The magistrate was satisfied to the requisite standard that an argument had occurred on 3 August 2019. He must have also been satisfied that EVE was holding a knife at some stage. She had admitted as much. The magistrate was also satisfied to the requisite standard that the children had witnessed the incident.[36] It appears from his reasons he was not satisfied to the requisite standard that EVE had threatened self-harm with the knife.[37] I am satisfied to the requisite standard these incidents occurred.

Incident 12

  1. [39]
    On or about 13 June 2016, EVE and ETT had an argument while putting the children to bed. EVE yelled abuse at ETT irrationally for 40 minutes and was banging on surfaces. One of the children was crying uncontrollably and asked ETT to make EVE stop yelling. At one point in her evidence, EVE denied this incident occurred. She testified that bedtime was a calming time and neither she nor ETT would leave their children crying uncontrollably.[38] EVE conceded that arguments had occurred in front of the children but did not accept the specific allegation.[39]
  2. [40]
    The magistrate found that EVE did not deny the specific allegations but said she did not recall using the specific words alleged. I am unable to find where EVE made this concession during her evidence. The magistrate did not refer to a recording that ETT made of this incident, which was played to the court from ETT’s phone. Unfortunately, the recording was not tendered.[40] It can be inferred from the transcript that the recording supported ETT’s evidence that a lengthy incident during which EVE was abusive towards ETT occurred. EVE maintained during cross-examination that the recording was not of that incident and must have been a doctored recording. The magistrate did not refer to the recording in his reasons. The magistrate was satisfied to the requisite standard that the incident occurred. I am satisfied to the requisite standard, after reviewing all relevant passages of the transcript, that such an incident occurred.[41]

Incident 15

  1. [41]
    On 14 September 2019, after EVE had moved out by agreement, EVE returned to the property unannounced,[42] without ETT’s consent.[43] EVE refused to leave, went to the bedroom where she had previously slept, and went to bed. ETT was incredibly shocked, scared and concerned and sent a text message to EVE’s counsellor at the time. ETT also contacted his solicitors. ETT did not call police as he did not want them to attend the property late at night while the children were present. Instead, ETT felt he had no choice but to vacate the property. EVE did not leave the property until 20 September 2019.
  2. [42]
    EVE conceded she remained at the property and did not leave until 21 September 2019.[44] The magistrate was satisfied to the requisite standard that EVE attended the property without ETT’s consent and did not leave until 20 September 2019.[45] I am satisfied to the requisite standard this incident occurred. I am not satisfied that this incident amounts to domestic violence, because there was insufficient evidence to explain why EVE was not entitled to return to the house on that occasion. There were no court orders in place at the time.

Incident 16

  1. [43]
    Between 7 to 10 October 2019, EVE attended the property without ETT’s consent. EVE accepted that she was at the property between 7 and 10 October 2019 but testified that she had obtained written permission to be on the property and ETT was aware she was there during those dates.[46] It was put to her during cross-examination that she was  at the property without ETT’s knowledge. She denied that to be the case. EVE did not produce evidence of written permission to attend during that time. The magistrate was satisfied to the requisite standard that EVE had attended the property during those dates without ETT’s consent. He therefore clearly rejected her evidence that she had permission to be there. I am satisfied to the requisite standard this incident occurred.

Incident 17

  1. [44]
    On 15 October 2019, EVE attended the property at approximately 11:30am and refused to leave.[47] This was soon after ETT and EVE’s attendance at the Magistrates Court that morning in relation to the TPO. EVE conceded she had behaved inappropriately in court. The magistrate warned EVE to behave or he would find her in contempt of court. After court, and despite the TPO, EVE went to the property. ETT asked EVE to leave several times but EVE was defiant, refused to leave and her anger escalated. ETT became increasingly fearful for his safety and called police. EVE continued to refuse to leave the property when police arrived. Police arrested her and removed her from the property. She was charged with breaching the TPO. EVE’s conduct caused ETT significant stress and he was concerned that she might cause harm to both himself and the children.
  2. [45]
    The magistrate was satisfied to the requisite standard that on 15 October 2019, EVE had attended the property, refused to leave, and was arrested.[48] I am satisfied to the requisite standard this incident occurred.

Incident 18

  1. [46]
    On 10 February 2020, EVE came within 50 metres of ETT at the children’s swimming carnival in breach of her undertaking to the court. The children were under the care of ETT at the time. EVE had not sought consent from ETT to attend the carnival. This was in breach of the undertaking provided by EVE to the Magistrates Court. This caused ETT concern due to EVE’s repeated disregard for the terms of the undertaking.
  2. [47]
    EVE agreed she attended the carnival but denied coming within 50 metres of ETT. The magistrate accepted ETT’s evidence that she had.[49] He was satisfied to the requisite standard, that ETT had come within 50 metres of ETT at the carnival.[50] I am satisfied to the requisite standard this incident occurred.

Incident 19

  1. [48]
    On 11 February 2020, EVE sent a text message to ETT saying she was coming to the property to “unload some gear”.[51] ETT responded asking her not to attend the property and if she did, he would have to call the police. EVE texted that she could attend the property as the undertaking stated the wrong street address. ETT had to subsequently contact his solicitors to prevent EVE from attending. 
  2. [49]
    The magistrate was satisfied to the request standard that the address on the undertaking was correct and that EVE had sent the text message to ETT on 11 February 2020.[52] I am satisfied to the requisite standard this incident occurred.

Incident 20

  1. [50]
    On 23 March 2020, ETT returned from a weekend away to find EVE at the property. ETT had not given his consent for EVE to be on the property. EVE refused to leave.
  2. [51]
    EVE put to ETT in cross-examination that he was unaware that the children had been sick and this was the reason EVE had been required to go to the property to care for her children and isolate in light of the COVID-19 lockdown. ETT said that he was not aware the children were sick or that EVE was at the property.[53] The magistrate was satisfied to the requisite standard that EVE attended the property and did not leave. I am satisfied to the requisite standard this incident occurred, and that by returning to the property she intentionally breached court orders.

Incident 21

  1. [52]
    On 30 March 2020, police attended the property and asked EVE to leave. EVE refused. On 31 March 2020, police arrested EVE. The children witnessed the incident during which EVE would not cooperate with them and resisted arrest.[54]
  2. [53]
    The magistrate was satisfied to the requisite standard that EVE was on the property from 23 March 2020 to 31 March 2020 and was arrested on 31 March 2020. The children were present when EVE was arrested.[55] I am satisfied to the requisite standard this incident occurred.

Necessary and desirable

  1. [54]
    The magistrate was satisfied, having regard to the evidence of past domestic violence, particularly in circumstances where EVE had breached the conditions of the undertaking, the TPO and the federal circuit court orders, that the risk of further domestic violence by EVE against ETT was significant. He had regard to the fact that contact was inevitable in circumstances where the parties were the parents of four children. He considered ETT’s safety, protection and wellbeing were paramount under section 4(1)(a) of the Act.[56]
  2. [55]
    He was further satisfied the same conditions as those in the TPO were necessary and desirable to protect ETT from domestic violence.[57] He was satisfied on all the evidence that the children had been exposed to domestic violence, and included relevant conditions pursuant to section 57 of the Act.

EVE’s appeal submissions

  1. [56]
    EVE filed a Notice of Appeal listing 10 grounds of appeal.[58] EVE also filed an outline of argument annexing numerous documents.[59] Some of the written submissions and attachments are difficult to understand, refer to matters not supported by evidence before the court at the original hearing, or are irrelevant to a determination of this appeal. For example, some of EVE’s complaints relate to property and family court matters.
  2. [57]
    EVE’s grounds set out in the Notice of Appeal are as follows:
    1. (1)
      The domestic violence order was made by error of principle and robs the children of their mother and home.
    2. (2)
      ETT has made the application for a protection order vexatiously to gain advantage in on-going property and custody proceedings.
    3. (3)
      EVE is self-represented and a good mother.
    4. (4)
      There was a delay in transcripts.
    5. (5)
      Only five of the 23 allegations were established by the magistrate.
    6. (6)
      The magistrate erred in relying on one incident to impose a five year protection order.
    7. (7)
      The magistrate failed to acknowledge the “salient feature” of a report to police made by EVE.
    8. (8)
      The magistrate failed to acknowledge the “salient feature” of the address anomaly (512/517 Ashney Road rather than 517 Ashney Road).
    9. (9)
      The 517 Ashney Road property contains two lots.
    10. (10)
      There is a lack of transparency in relation to one of the lots.

Grounds 2-10

  1. [58]
    I accept ETT’s submission that most EVE’s listed grounds of appeal are not grounds of appeal at all. They are facts asserted by EVE, rather than an outline of errors in the magistrate’s decision.[60] Grounds 2, 3 and 4 are statements or assertions, not grounds of appeal. Grounds 5 and 6 incorrectly assert the magistrate concluded only five incidents were established as acts of domestic violence. The magistrate determined there were 12 out of 21 incidents upon which he relied to determine that domestic violence had occurred. Grounds 8 to 10 reflect EVE’s fixation with the correct address of the property from which she was refused entry as part of the TPO and Federal Circuit Court orders. I consider there is no doubt at all that EVE was fully aware she was barred from returning to the property where ETT and the children lived, and where she lived for many years. During oral argument on the appeal, ETT continued to rely on alleged discrepancies between the address on the court orders and the address on property searches. Her persistence with this submission at the appeal hearing supports the magistrate’s finding that a protection order is necessary or desirable.
  2. [59]
    During oral submissions, EVE pressed the claim that the magistrate should have found ETT committed domestic violence against her. She submitted the magistrate did not have regard to a document generated by police which listed her allegations that ETT had assaulted her on several occasions. I have viewed the police generated complaint and it lists five occasions when ETT allegedly assaulted EVE.
  3. [60]
    During evidence the magistrate advised EVE that if she relied on those incidents, she should put to ETT during cross-examination that he had committed each of those specific acts of physical assault on her. She did so and ETT denied each incident.
  4. [61]
    In his reasons, the magistrate made no specific reference to EVE’s allegations of domestic violence by ETT, however he made a finding that her evidence was unconvincing, unreliable and/or not believable.[61] The magistrate accepted ETT’s evidence and found him to be a witness of credit.[62]
  5. [62]
    I note that EVE did not make an application for a protection order against ETT based on her allegations of domestic violence perpetrated by ETT. I am satisfied those allegations which were contained in the police document were not accepted by the magistrate and were not relevant to the magistrate’s sole consideration which was whether EVE had committed domestic violence against ETT.
  6. [63]
    EVE also claimed that, since the protection order had been made, her blue card had been cancelled and she can no longer gain employment as a teacher. She has limited access to her children. She has lost her home. She has no income. Her life had been ruined. The courts have continued to make wrong decisions against her.
  7. [64]
    I accept that EVE has suffered considerably. Unfortunately for EVE, this court does not have any power to remedy her situation in the way she desires.
  8. [65]
    Ground 1 is the remaining ground which requires the court to exercise its appellate role under section 164 of the Act, and in accordance with the relevant legal principles referred to above.

Ground 1: Did the magistrate make any error in fact or law? Were the magistrate’s findings reasonably open on the evidence?

  1. [66]
    I have considered all 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 magistrate’s 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.[63]
  2. [67]
    The magistrate referred to and applied the relevant provisions of the Act. He correctly determined a relevant relationship existed between the parties.
  3. [68]
    He directed himself that he had to be satisfied that EVE had committed an act or acts of domestic violence against ETT, and that a protection order was necessary or desirable to protect ETT from domestic violence.[64] He considered the principles and relevant factors under sections 4, 8, 11, 37, 56 and 57 of the Act.
  4. [69]
    The magistrate referred to several District Court appeal decisions that considered the categories of behaviour that might constitute domestic violence, and the meaning of “necessary or desirable” under section 37 of the Act.[65]
  5. [70]
    I consider the magistrate appears to have taken a cautious approach, in favour of EVE, when applying the requisite standard of proof in relation to each of the 21 incidents. He appears to have given her the benefit of the doubt in relation to some incidents, despite having found ETT to be a credible witness and EVE not a credible witness. Having accepted ETT as a credible witness as the magistrate did, I may have been satisfied that all the incidents, to which ETT deposed, had occurred. However, in fairness to EVE, I limit my review to the incidents that the magistrate found proved to the requisite standard.
  6. [71]
    In relation to Incident 1, I consider the magistrate wrongly summarised the evidence. I am not satisfied, if he had summarised it correctly, he would have been satisfied that the act occurred, although I may have reached a different conclusion. I therefore will not consider Incident 1 as one of the acts of domestic violence.
  7. [72]
    I am not satisfied Incident 15 (when EVE went to the property on 14 September 2019) amounts to an act of domestic violence because EVE was not subject to any court orders at the time prohibiting her presence at the property.  However, this incident, in combination with all the other incidents, amounts to a continuing course of conduct and the harassment of ETT.
  8. [73]
    Apart from these two incidents, I am satisfied to the requisite standard the remaining incidents, alone or in combination, amount to EVE committing domestic violence against ETT.
  9. [74]
    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,[66] and behaviour that torments, harasses or is offensive.[67]  Harassment involves repeated or persistent conduct, which is annoying or distressing, rather than something that would cause fear.[68] Hanging around a person’s place of residence could easily amount to harassment or intimidation.[69] It is not expressly stated in the Act that the behaviour, in order to be emotionally or psychologically abusive, and hence domestic violence for the purposes of section 8, is required to be intentionally offensive to the other person.[70] There is no requirement of proof of any particular intent or state of mind or other subjective requirement in relation to a respondent’s actions.[71]
  10. [75]
    I am satisfied EVE’s behaviour of turning up and remaining on the property in breach of court orders was an intentional breach by her of those orders. Her behaviour on those occasions (Incidents 16, 17, 20 and 21) amounted to harassing, offensive and tormenting behaviour which constituted emotional or psychological abuse.[72] She was aware the children were present on some occasions, when police had to attend, yet persisted to harass ETT by her conduct. I am satisfied these incidents amounted to harassment and were distressing and intimidating to ETT and to the children when they were present. I am satisfied the other incidents, alone and/or in combination, also amounted to a course of conduct that constituted harassment and intimidation constituting domestic violence.
  11. [76]
    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. I am satisfied there was a proper basis for the magistrate finding that a protection order was necessary and desirable to protect ETT from domestic violence for the reasons he enunciated.[73] Proceedings are ongoing in the Federal Circuit Court and/or Family Court. 
  12. [77]
    At the appeal hearing, EVE continued to have little, if any, insight into the fact her behaviour has been unacceptable.  She made clear her intention was to pursue ETT further through the courts. She maintained she was entitled to return to live at the property. I am satisfied a protection order was, and is clearly, still necessary or desirable to protect ETT from further domestic violence.[74]
  13. [78]
    Order

The appeal is dismissed.

Costs

  1. [79]
    ETT seeks indemnity costs. EVE submits she will be financially ruined if I make an order for costs against her.
  2. [80]
    The court has a discretion to order costs on this appeal.  The UCPR applies.[75]  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, ETT was wholly successful and put to the expense of responding to the appeal. 
  3. [81]
    In all the circumstances, I consider EVE should pay ETT’s costs.  Under the UCPR, it follows that these costs are to be assessed on the standard basis unless otherwise ordered.
  4. [82]
    ETT’s solicitors were granted leave to read and file an affidavit attaching a calculation of standard and indemnity costs. I have considered the affidavit material and the claimed table of costs, both according to scale and indemnity costs. I have reduced the amount sought to what I consider is reasonable in the circumstances. In the exercise of my discretion, I consider it appropriate to make a fixed order for costs. I order EVE to pay ETT’s costs fixed in the amount of $13,000.

Footnotes

[1]Section 168 of the Act.

[2]See Teelow v Commissioner of Police [2009] 2 Qd R 489.

[3]Edwards v Noble (1971) 125 CLR 296, [304].

[4]Transcript 1-36, [43]-[44].

[5]ETT’s Affidavit filed 25 May 2020 [3], [9] (‘ETT’s Affidavit’).

[6]Federal Circuit Court Order [15].

[7]Transcript 1-48, [2].

[8]ETT’s Affidavit [29]-[63].

[9]ETT’s Affidavit [63].

[10]ETT’s Affidavit [59].

[11]ETT’s Affidavit [63].

[12]ETT’s Affidavit [61].

[13]ETT’s Affidavit [52]-[56].

[14]ETT’s Affidavit [58].

[15]ETT’s Affidavit [60].

[16]ETT’s Affidavit [72].

[17]EVE’s Affidavit filed 9 July 2020 [11] (‘EVE’s Affidavit).

[18]Transcript 1-23, [40] – 1-24, [33].

[19]EVE’s outline of argument attachment GA-07.

[20]Section 4 of the Domestic and Family Violence Protection Act 2012 (Qld) (‘the Act’).

[21]Section 145 of the Act; Reasons [45]-[54].

[22]Section 37(1)(a) of the Act.

[23]Reasons [24].

[24]Reasons [132], [143]-[144].

[25]ETT’s Affidavit [59].

[26]Reasons [72].

[27]Transcript 1-56, [39].

[28]Reasons [76].

[29]Transcript 1-57, [1]-[2].

[30]Transcript 1-56, [44]-[46].

[31]Transcript 1-24, [23].

[32]Transcript 1-57, [26].

[33]Transcript 1-57, [33]-[34].

[34]Transcript 1-59, [29]-[40].

[35]Transcript 1-58, [17]-[18].

[36]Reasons [82].

[37]Reasons [81].

[38]Transcript 1-61, [18]-[34].

[39]Transcript 1-69, [40] – 1-70, [1].

[40]Transcript 1-65, [26]; Transcript 1-64, [44]-[46].

[41]Transcript 1-61, [18]-[34]; Transcript 1-66, [16]; Transcript 1-69, [40] – 1-70,[1].

[42]Transcript 1-44, [1].

[43]Transcript 1-44, [3]-[9]; Transcript 1-44, [15]; 1-45 [31]-[32].

[44]Transcript 1-44, [17]-[18].

[45]Reasons [107].

[46]Transcript 1-43, [26]-[36].

[47]Transcript 1-41, [45]-[46].

[48]Reasons [112].

[49]Transcript 1-46, [5] – 1-47, [40].

[50]Reasons [117].

[51]Transcript 1-48, [2].

[52]Reasons [119]-[123].

[53]Transcript 1-30, [29]-[31].

[54]Transcript 1-51, [4]-[40].

[55]Reasons [131].

[56]Reasons [158]-[162].

[57]Reasons [165].

[58]Notice of Appeal filed 2 March 2021.

[59]Outline of Argument filed 1 April 2021.

[60]Respondent’s outline of submissions [8].

[61]Reasons [24].

[62]Reasons [22]-[23].

[63]Section 4 of the Act.

[64]Section 37 of the Act.

[65]Reasons pp 22-25, 28-29.

[66]Sections 8(1)(b) and 11 of the Act.

[67]Section 11 of the Act.

[68]BBB v RAB [2006] QDC 080 at [18].

[69]DGS v GRS [2012] QDC 74 at [44] citing D v G [2004] QDC 477 at [20].

[70]McGill DCJ, in a paper titled Domestic and Family Violence Protection Act 2012 at [4].

[71]LKF v MRR [2012] QDC 355 at [29].

[72]Sections 8 and 11 of the Act.

[73]Section 37(1)(c) of the Act.

[74]Section 37(1)(c) of the Act.

[75]HZA v ZHA [2018] QDC 125; BAK v Gallagher (No. 2) [2018] QDC 132.

Close

Editorial Notes

  • Published Case Name:

    EVE v ETT

  • Shortened Case Name:

    EVE v ETT

  • MNC:

    [2021] QDC 161

  • Court:

    QDC

  • Judge(s):

    McGinness DCJ

  • Date:

    18 Aug 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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