TAF v AHN[2021] QDC 204

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 1 October 2019, a protection order wase made in the Brisbane Magistrates Court, pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’). The order named the appellant in these proceedings, TAF as the respondent, his former partner, AHN as the aggrieved and their son as a named person.
2. [2]
   TAF has appealed the making of that protection order. 

Background facts

3. [3]
   TAF and AHN commenced a relationship in 2010 and have since separated.
4. [4]
   TAF is a citizen of the United States of America. He lives and works in Texas. He has one child with AHN (‘the child’), and two children from a previous relationship. 
5. [5]
   After separating from TAF, AHN relocated to Brisbane with the child, where she now lives and works.  As well as the child, she has a daughter from a subsequent relationship.
6. [6]
   AHN filed an application for a protection order in the Magistrates Court on 21 November 2018, with TAF listed as the respondent.  In addition to seeking protection orders for herself, she also sought protection orders for the child. 
7. [7]
   This application was based on various allegations of domestic violence made by AHN against TAF, including threats to shoot her or otherwise harm her, threats to take the child to the US and not return him and that TAF continues to call, harass, threaten, intimidate and denigrate her.  

The making of protection orders under the DFVPA

8. [8]
   A Court may only make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the Court is satisfied, pursuant to the provisions of s 37 of the DFVPA that:

2. “(a)
   a relevant relationship exists between the aggrieved and the respondent; and
3. (b)
   the respondent has committed domestic violence against the aggrieved; and

…

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

9. [9]
   The expression “Domestic Violence” is defined in s 8 of the DFVPA as follows:

“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.

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

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

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

Examples of surveillance by using technology—

1. reading a person’s SMS messages
2. monitoring a person’s email account or internet browser history
3. monitoring a person’s account with a social networking internet site
4. using a GPS device to track a person’s movements
5. checking the recorded history in a person’s GPS device

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

10. [10]
    ‘Emotional or psychological abuse’ is defined in s 11 as “behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person”.
11. [11]
    It is also relevant to note that in determining an application under the DFVPA, the standard of proof is the ‘balance of probabilities’ and the Court:

1. “(a)
   is not bound by the rules of evidence, or any practices or procedure applying to Courts of record; and
2. (b)
   may inform itself in any way it considers appropriate.”^[1]

Magistrate Court Proceedings

Procedural history

12. [12]
    Following AHN’s filing of the application, orders were made on 14 February 2019 for the matter to be listed for hearing on 30 May 2019.  The directions provided that evidence in chief of AHN, as well as TAF’s evidence in response would be by way of affidavit.
13. [13]
    When the matter came on for hearing on 30 May 2019, TAF appeared by telephone.  He told the Court he could not attend because his son had leukaemia and he considered that it was more important that he be with this son in the US than at the trial.  The presiding magistrate asked TAF what he was intending to do about the application.  He asked that it be dismissed as the allegations of AHN were untrue and not proved.  The magistrate indicated that he was minded to make an order as per Annexure “A” to the application.  TAF told the Court he was not aware of what was contained in that document.  The Court arranged for a copy to be emailed to TAF and adjourned for that to happen. TAF was to call back at an appointed time, having read the document. 
14. [14]
    When TAF called back, he again asked the Court not to make any order. The magistrate did ultimately make orders in terms set out in the annexure. The magistrate then set a further trial date of 1 October 2019. This was a date that TAF indicated he would next be in Australia. Some discussion took place about filing affidavits by TAF and his witnesses.  TAF was told that any witness would have to be available to be cross-examined if required.  TAF was told he could make application for this to occur over the phone.

1 October 2019 hearing

15. [15]
    On 1 October 2019 TAF appeared in-person, self-represented. AHN was represented, however her representative sought an adjournment of the hearing. The learned magistrate determined that the matter should go ahead on that day and the application for adjournment was refused.
16. [16]
    The learned magistrate then addressed an issue raised by TAF in respect of whether the Court had jurisdiction to hear and determine the application given that he was an American citizen and lived full-time in America.  The learned magistrate determined that she did have power.
17. [17]
    The learned magistrate then proceeded to determine the matter and make orders. The learned magistrate noted that she had read:

    1. (a)
       the application filed on 21 November 2018;
    2. (b)
       the affidavit of AHN, sworn on 14 March 2019;
    3. (c)
       the affidavit of TAF, sworn on 14 April 2019; and
    4. (d)
       an affidavit attached to an email from TAF dated 12 February 2019.

The learned magistrate also said she had reference to the report of the Federal Circuit Court of Australia, dated 13 May 2019, which attaches a copy of the Family Report dated 7 May 2019.  She noted in respect of this report that:

“I read that, not in complete detail, because it covers things that are not relevant for this Court, but does give some useful guidance with respect to mostly background matters, but I read it.”^[2]

18. [18]
    The learned magistrate noted that she had not read an affidavit by BA because pursuant to the directions order he was not present for cross-examination.
19. [19]
    Her honour then made determinations based on the evidence, having regard to s 37 of the DFVPA.  
20. [20]
    Her honour found, and it was not contentious, that the parties had a relevant relationship, commencing in the USA in December 2019 and that the parties were parents to the child. As such, her honour was satisfied that the provisions of s 37(1)(a) were satisfied. 
21. [21]
    The learned magistrate then went on to consider whether she was satisfied that the respondent had committed domestic violence against the aggrieved in accordance with s 37(1) (b) of the DFVPA, ultimately concluding that she was so satisfied. 
22. [22]
    Her honour referred to a number of matters which in her opinion amounted to domestic violence. These will be discussed in further detail later. Her Honour observed that:

“it seems to me on my reading of the surrounding material there that when you, [TAF], gets frustrated you act out in what must be described as a violent way.  It is violent to do these things.  There is nothing wrong with being frustrated or angry, but it is what you do about it that it is the concern to the court.”^[3]

23. [23]
    Her honour then went on to consider s 37(1)(c), namely, whether a protection order was necessary and desirable to protect the aggrieved from domestic violence. Her honour was concerned with respect to the ongoing need for contact in respect of the child.
24. [24]
    In concluding that a protection order was necessary and desirable, her honour said:

“It is desirable most definitely to keep the peace between these two warring parties, because without it I am fearful. I believe, that there would be threats continuing. I believe there would continue to be harassment and intimidation in particular. I’m not quite so sure about the denigration because of the reduced communication now between the parties, but there is sufficient there for a court to find it is desirable that there be an order.”^[4]

25. [25]
    Her honour then considered the terms of the order she proposed to make. In addition to the usual order, that TAF be of good behaviour towards AHN and the child and not commit acts of domestic violence, the order has a number of other conditions, including not going to where AHN lives, not communicating by any means with AHN or publishing things about AHN on social networking sites except for contact purposes, in writing or by email, and prohibiting TAF from attending at the child’s school.  

Appeals under the DFVPA

26. [26]
    Section 164 of the DFVPA permits an appeal to be brought by a person aggrieved by a decision to make a domestic violence order. As a named party to the protection order, it is accepted that TAF falls into this category.
27. [27]
    Section 168 provides the appeal is to be decided on the evidence and proceedings before the Magistrates Court, unless an order is made to the contrary. Accordingly, as expressed in GKE v EUT^[5] “unless there are grounds to a rehearing de novo, there is no power to admit fresh evidence on the hearing of the appeal” and the appeal should proceed by way of rehearing.
28. [28]
    For the reasons set out below I see no grounds for a rehearing in this case and as such will rely on the evidence before the Magistrates Court.
29. [29]
    The approach to be taken in determining an appeal was articulated by the High Court in House v The King^[6] as follows: 

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

30. [30]
    In Mbuzi v Torcetti^[7], which was later cited with approval in Johnson v Queensland Police Service^[8], the Queensland Court of Appeal said:

“The appeal proceeded under s 223(1) on the evidence given in the Magistrates Court. On such an appeal the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions: Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2008] QCA 175 at [5].”

31. [31]
    As noted in BJH v CJH^[9] “this court should interfere with the order made below only where it is the result of some identified legal, factual or discretionary error”.

Jurisdiction under the DFVPA

32. [32]
    At the 1 October 2019 hearing, TAF questioned whether the Court had jurisdiction to hear and determine the application, give that he was an American citizen and lived full-time in America.  The learned magistrate determined that she did have power.
33. [33]
    The objects of the DFVPA are set out in s 3. The first of these is “to maximise the safety, protection and wellbeing of people [including children] who fear or experience domestic violence …”. To give effect to this object requires the Court to have jurisdiction over any person who commits domestic violence in Queensland, against a person residing in Queensland. This is regardless of the usual place of residence of the offender.
34. [34]
    Whilst TAF says that he is an American citizen and lives in America, in my view this is largely irrelevant. It is clear that TAF visits Australia from time to time, at the very least to have contact with the child, who resides in Queensland with AHN.  The actual or threatened domestic violence is, at least in part, said to have occurred within the territorial jurisdiction of the Court, against persons residing within the jurisdiction. 
35. [35]
    In these circumstances and having regard to the object of the DFVPA, I am satisfied that the learned magistrate had jurisdiction to hear and determine the matter, as she did.
36. [36]
    This is particularly so, in circumstances where the learned magistrate determined that domestic violence had actually occurred on at least two occasions during TAF’s visits to Australia and that there was an ongoing potential for domestic violence to occur during these visits. However, I will later consider the substance of these findings further.

Grounds of appeal

37. [37]
    It seems TAF brings this appeal on the grounds that:

    1. the learned Magistrate was bias and misconducted herself during the hearing;
    2. he was denied due process, as the learned Magistrate did not allow him to cross-examine witnesses or bring further evidence;
    3. he was denied the right to representation, placing him at a significant disadvantage; and 
    4. the learned magistrate failed to take into account relevant considerations.
38. [38]
    Further to those grounds, TAF states that he categorically denies any and all allegations made by the respondent. He seeks substantive proof of her allegations and that criminal charges should be brought against the respondent for making false unsubstantiated claims and filing a false report.
39. [39]
    AHN argues that none of these grounds have merit. She also argues that, even if the appeal was allowed and the matter was remitted, the outcome would be the same.  AHN submits that the appeal should be dismissed, and the order remain in place.

Ground 1 - Allegations of misconduct and bias

40. [40]
    TAF makes significant allegations of misconduct and bias against the learned Magistrate.
41. [41]
    In his affidavit sworn 4 January 2021, TAF says:

8. “7.Neither [AHN] nor her solicitor provided any proof that would support any of her allegations. The Judge and the solicitor engaged in ex parte communication in violation of the code of ethics. [The magistrate] had made up her mind just after looking at me, because she is racist and should be removed from the bench because of her bias.
9. 8.I can’t see how any impartial Judge would enter a ruling without any substantial evidence, such as photos, police reports, third party evidence, witnesses, medical reports etc.
10. 9.The Judge’s behaviour clearly suggest that there is something intricately wrong with the Australian judicial system.”

42. [42]
    These are of course concerning allegations to make against the presiding judicial officer.
43. [43]
    In his Concise Statement attached to his Notice of Appeal, TAF further states: “the important facts giving rise to claim is based on the clear abuse of power and violation(s) of the professional code of ethics.”  He goes on to list three issues. Two of those issues are as follows:

“…

8. 2.The Judge seemed confused, often times addressing my older son who has cancer and suggesting that she does not believe that my older son has cancer without any basis therefore, other than her own bias.  Having no evidence to the contrary, and where the affidavits of both parties asserts the same.
9. 3.In violation of the Australian Solicitors Code of Conduct Rule of 2012, the solicitor and Judge engaged in dishonest and disreputable conduct which questions her fitness to serve.” 

44. [44]
    AHN submits that TAF’s assertion of bias is “scandalous and being paraded as a last-ditch and desperate attempt by the appellant to be released from the protection order”.^[10] It was submitted that the magistrate had not acted in anyway contrary to her office.

Ex parte Communications

45. [45]
    TAF complains that conversations took place between the Court and the solicitor for AHN when he was not present, which he argues was inappropriate and amounts to misconduct. 
46. [46]
    For completeness I note that, from the transcript of the proceedings before the learned Magistrate gave her reasons for decision it appears that there were two conversations between the solicitor and the bench which appear to be when TAF was not in the courtroom.
47. [47]
    According to the transcript, the first of those conversations took place as follows (MH being the solicitor for AHN):

“RESUMED [10:33 am]

BENCH: Good morning

[MH]: A quick update either to your Associate or to yourself, your Honour.

BENCH: You’re [MH] aren’t you?

[MH]: Yes. Sorry.

BENCH: Sorry.

[MH]: Yes, your Honour.

BENCH: Come forward. What’s happening?

[MH]: Just a quick update to your honour that I’ve spoken with the respondent in the [TAF v AHN] matter.  At this point, he’s indicating to me that he is not going to consent to any order.  I’ve strongly encouraged him to talk to the duty lawyer about any implications or consenting on a without admissions basis, but at this point, he’s indicating to me that he will not consent to any order.

BENCH: I see.  All right.  Well, I’ll call you back in when I’ve finished reading some more of the material.

[MH]: Yes. Thank-you, your Honour.

BENCH: Can you wait until then?

[MH]: Yes, your Honour.  I will also go and speak to my principal about your comments in relation to the late application to withdraw in this matter.

BENCH: Yes. They should have told the court so that we could have told him, and it could have been done without the necessity for him to come today or retention.

[MH]: My understanding is he was here in Australia in any event in relation to many other court proceedings - - -

BENCH: I see. All right.

[MH]: - - - and in relation to returning the child, so I can make those submissions. [TAF denied he was in Australia in relation to any other proceeding]

BENCH: I – well, I think that we’ll trying and resolve it one way or the other today.

---

BENCH: Well, I’ll ask you to give an account to the court of what the other proceedings are.

[MH]: I’m not engaged in those proceedings.

BENCH: You don’t know?

[MH]: I can give a summary.

BENCH: Well, someone will have to tell me. Okay.

[MH]: Yes. Thank-you your Honour.

BENCH: It might be in here anyway. I’ll keep reading.

[MH]: Okay. Thank-you your Honour.

ADJOURNED [10:35am]”^[11]

48. [48]
    On the second occasion the solicitor appeared before the Court without TAF being present in Court, the following interchange occurred:

“RESUMED [10:50am]

[MH]: I apologise for coming in and continuing to annoy you while you’re attempting to read this information. I’m trying to make the best out of both worlds, I guess, and talking to my principal in trying to see what I can do about remaining and assisting, because this is a matter where the client’s quite vulnerable.  My principal would be – I think I could convince my principal if the matter were able to proceed quickly, summarily, potentially on the papers.  Is thar something you might be---

BENCH: Yes, that’s what I intend.  That’s what I’m doing.

[MH]: with no cross-examination and ---

BENCH: That’s what I’m doing.

[MH]: Okay.

BENCH: Yes.

[MH]: If that’s the case, I might be able to convince my principal, and therefore it may not then need to be such an issue in terms of myself withdrawing if it were dealt with quickly and easily. And that could be something that my client needs to deal with, with the firm.

BENCH: Yes. We’ll try and finalise it today on the papers.

[MH]: Okay. Thank-you, your Honour.

BENCH: Okay. Okay.

[MH]: And I will see what I can do about that.

BENCH: I’ll keep reading, and I will call you in as soon as I am finished reading.

[MH]: Okay. Thank-you.

BENCH: Thanks.

Adjourned  [10:51 am]”^[12]

49. [49]
    Having regard to principals of procedural fairness and natural justice, it is most inappropriate for the Bench to engage with one party in the absence of the other party, where that absent party is sitting outside the Court.  The absent party will be concerned that some information is imparted to the presiding magistrate which the absent party cannot respond to.  The absent party will also be concerned that information is given to the magistrate which would give rise to a perception of bias.  If such communications do occur at the very least the magistrate should explain the conversations to the party who was absent in detail, and ask if they wish to respond to anything raise in their absence.
50. [50]
    I am satisfied that in this case the solicitor was doing her best to keep the Court informed about progress with negotiations with TAF, which were directed by the magistrate.  She was also attempting to be of assistance, essentially on a pro bono basis, as legal aid had not been approved.  The learned magistrate had indeed pressed for the matter to proceed and was reluctant to adjourn the hearing again.  The original application had been filed on 21 November 2018.  The application had been listed for hearing on 30 May 2019 but was unable to proceed on that date as TAFs was required in the US because his child was very ill. Serious allegations were made by AHN against TAF and substantial affidavit material had been filed by the parties.
51. [51]
    I am satisfied that although the communications should not have occurred in the way they did, they were of a procedural nature and not material to the decision the magistrate had to make.  It could not be said, in my view, that a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the resolution of the question the magistrate was required to decide as a result of those conversations.^[13]

General allegation of bias, dishonesty or disreputable conduct

52. [52]
    As to TAF’s allegations of general bias, dishonesty and disreputable conduct, I can see nothing from the material before me that suggests any of those claims have merit.

In regard to TAF’s allegation that her honour made decisions based on her own bias, without any evidence to support her decision, there was significant affidavit evidence considered by her honour. I will come to this later, when I consider the merits of her honour’s substantive decision. Suffice to say at this stage, contrary to TAF’s allegations, her honour was not making her decision without any evidence to base it on.  This ground of appeal is simply not made out on the evidence.

Conclusion on ground 1

53. [53]
    In the circumstances I reject the grounds of appeal advanced by TAF based on the misconduct and bias of the magistrate.  I consider the learned magistrate to have acted appropriately throughout.

Ground 2 - Lack of cross examination and further evidence

54. [54]
    TAF takes issue with the fact that he was not allowed to cross-examine witnesses and argues that the magistrate refused to allow him to bring further evidence. He articulates this in his Concise Statement as follows:

“(1) The Judge did not allow for any form of cross-examination or evidence to be introduced by the defendant when said evidence was available.”

Cross-examination

55. [55]
    Pursuant to s 150 of the DFVPA, AHN and the child are “protected witnesses”. Section 151 of the DFVPA provides that:

“151 Restrictions on cross-examination in person

3. (1)
   This section applies if –

1. (a)
   a protected witness gives evidence in a proceeding under this Act; and
2. (b)
   a respondent in the proceeding wishes to cross-examine the protected witness; and
3. (c)
   the respondent is not represented by a lawyer.

3. (2)
   The court, on its own initiative or on the application of a party to the proceeding, may order that the respondent may not cross-examine the protected witness in person if the court is satisfied that the cross-examination is likely to cause the protected witness to—

1. (a)
   suffer emotional harm or distress; or
2. (b)
   be so intimidated as to be disadvantaged as a witness.”

56. [56]
    In these proceedings, TAF was not represented. On 1 October 2019 the learned magistrate asked TAF to speak to AHN’s solicitor outside the Court to see whether a consent order could be agreed.  The solicitor told her honour that TAF would not agree and that she had told TAF to speak to the duty lawyer.  There is no indication that he did, but he was aware that he could.  As there was no intervention by a duty lawyer it is fair to assume, he did not. 
57. [57]
    Having had the opportunity to consult the duty lawyer and ample time to seek independent legal advice before the hearing date, the fact that he appeared self-represented and his consequent inability to cross examine AHN because of the DFVPA protections was a matter entirely in his own hands.

Further evidence not allowed

58. [58]
    TAF alleges that there was further evidence available that the Magistrate did not allow him to introduce.
59. [59]
    AHN submitted that the learned magistrate complied with s 145 of the DFVPA. She argues that, after filing her application for a protection order on 21 November 2018, TAF had between 14 March 2019 and the date of the hearing, to respond to the matters raised in her affidavit. Further, it was highlighted that TAF filed a 404-page affidavit on 22 April 2019 nearly 6 months prior to the hearing.^[14] 
60. [60]
    The transcript does not reveal that at the hearing TAF sought leave to file or call any additional evidence or witnesses.
61. [61]
    The learned magistrate said that she had read all of the material and asked the appellant if he wished to add anything to his affidavit to which he replied “no, your Honour”.^[15]
62. [62]
    I assume TAF bases this argument on the learned magistrate’s refusal to read the affidavit of AB, which TAF sought to place in evidence at the trial. Her Honour did so on the basis that AB was not available for cross-examination in accordance with the directions. Her Honour was perfectly entitled to do so.
63. [63]
    I have had the opportunity to read the affidavit of AB which TAF wanted to place in evidence.  That affidavit was largely inadmissible as it was mostly irrelevant, self-serving, denigrating and was largely based on hearsay.  It added nothing that may have impacted on her Honour’s decision.

Conclusion on lack of cross-examination and further evidence 

64. [64]
    I reject this ground of appeal also.  TAF’s inability to cross-examine witnesses was a result of his own decision to appear self-represented at the trial. During the trial, TAF was given the opportunity to add to his evidence, which he declined. The magistrate’s decision not to consider the affidavit of AB was completely justified and, in any event, I am satisfied the affidavit would not have impacted on her honour’s decision.

Ground 3 - Lack of representation

65. [65]
    In his Notice of Appeal, TAF states:

“More importantly, I was refused the right to an attorney by the Judge, as she denied to other party’s attorney’s request for withdrawal, and order her to represent her client at no cost, which placed me at a significant disadvantage.”

66. [66]
    The respondent submits that TAF has raised the lack of legal representation as a matter of convenience as his “modus operandi” was to be self-represented at all times.  This is not an argument for allowing the appeal.^[16]
67. [67]
    TAF’s allegation that he was refused legal representation is simply incorrect and not sustainable on the evidence.  As I have said this was a matter which was entirely in TAF’s own hands having been offered the opportunity to see the duty lawyer and having not taken any steps to engage lawyers during the long period leading up to the hearing. As such, I reject this ground of appeal.

Ground 4 - Failure to take into account relevant considerations

68. [68]
    TAF seems to make allegations that the magistrate did not rely on the entirety of the evidence, but rather, only certain parts of the material before her. TAF states in his Notice of Appeal that:

“[The Magistrate] makes reference to comments made on the affidavit by the applicant which are clearly contradicted by the … the court appointed family consultant. She read the Affidavits only in part and based her decision solely on parts of the affidavit.”

69. [69]
    It is therefore necessary to consider whether the magistrate’s substantive decision was justifiable on the basis of the entirety of the evidence before her. This involves a consideration of each of the three matters a Court must be satisfied of under the DFVPA, before making a protection order.

S 37(1)(a) - relevant relationship

70. [70]
    The first requirement is that a relevant relationship exists between the aggrieved and the respondent.  This was admitted by both parties in their affidavit material. The relationship was an intimate personal relationship, described by AHN as a de facto relationship over two periods from late 2010 to approximately August 2011 and between August 2012 and September 2013.^[17]
71. [71]
    This was therefore completely uncontentious and the magistrate made the finding based on the evidence before her accordingly.

S 37(1)(b) - domestic violence

72. [72]
    The second requirement that the Court must be satisfied of before an order can be made is that the respondent has committed domestic violence against the aggrieved.
73. [73]
    The learned magistrate found that TAF had committed domestic violence against AHN.
74. [74]
    From the transcript of the learned magistrate’s reasons, it appears that there were a number of events which lead the magistrate to be satisfied that domestic violence had been committed against AHN. These included;

    1. (a)
       that he was demeaning of her in his description of her. He states that “she is a liar and a thief”, that “she cannot be trusted” and “from the first day we met until now she’s never held a job for me(sic) than …” and “she seems to attach to men for her subsistence”.  Her honour described this as “not useful at all, and says more about his demeanour and attitude than anything else.”;^[18]
    2. (b)
       the magistrate also accepted on the material that between May 2016 and May 2018 TAF withheld the child in the USA and that AHN did not have contact with the child except when TAF allowed it and that TAF hid the child’s passport. Orders were made by consent on 24 May 2018 that the child would return to Australia to live with AHN and that TAF would have contact at various times;^[19]
    3. (c)
       the magistrate noted from para 69 of AHN’s affidavit that TAF “showed up unannounced at the child’s school, asked to be allowed to see him, which was apparently in breach of the America orders”;^[20]
    4. (d)
       the magistrate accepted the evidence of AHN in paragraph 8 of her affidavit that an incident had occurred when “the father was screaming repeatedly at [the child] at the airport, finally [the child] came out and [TAF] hit him hard on the arm, back and shoulder multiple times with an open hand, pinched [the child] hard, twisted his hand”.  The magistrate noted that when TAF gets frustrated, he acts out in what must be described as a violent way.^[21]

75. [75]
    The magistrate accepted the evidence of AHN as set out in her affidavit, as TAF had failed to specifically address any of the allegations made in her affidavits or her application.

76. [76]
    On the basis of these findings, the magistrate observed that “there was domestic violence occurring between you over your son and the shared contact that you will continue to have”.  She said that “it may not be straight physical violence.  It may well be threats.”^[22]
77. [77]
    It is plain that the magistrate was considering matters set out in s 8(1) of the DFVPA including, emotional or psychological abuse or abuse that in any other way controls or dominates the second person to fear for the second person’s safety or wellbeing or that of someone else.  
78. [78]
    It is clear that the magistrate’s finding that domestic violence had occurred was open on the abundance of evidence. The evidence which the magistrate had available to her was in my view more than sufficient for her to make the findings she did.
79. [79]
    In addition to those matters referred to by the magistrate, I would also specifically note the contents of TAF’s email^[23] to AHN dated 18 June 2016 and the image attached as clearly offensive which can only be regarded as humiliating, intimidating and harassing.  It must be noted that this email was sent two years before application was made for a protection order.
80. [80]
    In the same vein, I would also note the threat in an email from TAF to AHN dated 3 June 2018,^[24] where he said “Secondly I am not going to bring him back when I come to pick him up on June 27^th”.
81. [81]
    I would further note TAF’s email dated 26 June 2018^[25] in which he says “We have a court order in place. A violation of a court order is subject to sanctions of Jail and I intend to use everything to you thrown in jail for violating a court order”.
82. [82]
    I would also note the contents of the Memorandum of Orders dated 23 January 2013 of the District Court 431^st Judicial District Denton County, Texas in which TAF is respondent and his former wife is Petitioner^[26].   I note in paragraph b. the judge presiding noted:

“The pendency of the divorce was unusually contentious and marked by high conflict.  Respondent demonstrated erratic and sometime volatile behavior in the presence of the court during hearings.  On one occasion, Respondent confronted Petitioner in a conference room near the courtroom and allegedly threatened her.” 

In paragraph d. the Judge further noted:

“Following the divorce, the litigation continued in the same contentious manner, with Respondent filing multiple appeals … and enforcement actions against Petitioner … . 

The Judge later noted:

“Respondent’s conduct during the course of this litigation and erratic behavior in the presence of the Court raises concerns regarding Respondent’s mental health and necessitates the completion of a psychological evaluation”.

83. [83]
    In all the circumstances, I agree with the finding of the learned magistrate that acts of domestic violence have occurred.

S 37(1)(c) – necessary or desirable

84. [84]
    The final requirement is that the Court must be satisfied that the order is necessary or desirable to protect the aggrieved from domestic violence, pursuant to s 37(1)(c)
85. [85]
    In respect of this, the learned Magistrate said:

“I first of all access the risk of future domestic violence between the parties in absence of any order. And on my reading, particularly with respect to what’s been occurring in 2018 and 2019 with respect to [the child] going backwards and forwards between Australia and America and the cooperation level that’s required for that to occur in calm, un-harassed, unintimidating, un-denigrating fashion as between the two parents, it’s difficult to see.  It may well settle down, particularly given [the child] is getting older. … Without the fear that something will go wrong because [TAF] loses his temper or gets frustrated or, more importantly, continues with this demeaning attitude he seems to have against his ex-partner” So I assess that the risk of future domestic violence, at least over the next foreseeable future, is there.”^[27]

86. [86]
    Her honour concluded:

“So I then consider whether imposing a protection order is necessary or desirable. It is desirable most definitely to keep the peace between these to warring parties, because without that I am fearful. I believe that there would be       threats continuing. I believe there would continue to be harassment and intimidation in particular.  I’m not quite so sure about the denigration because of the reduced communications now between the parties, but there is sufficient there for the court to find it is desirable that there be an order”^[28]

87. [87]
    In consider whether the orders are necessary or desirable, the issue for determination is whether there is a risk and whether it needs to be managed. There must be a real risk, not a mere fanciful speculation or conjecture, such that the need for protection must actually exist.^[29]
88. [88]
    In GKE v EUT, McGill SC DCJ considered the requirement and said:

“[32]  In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved.

[33]  I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future. Broadly speaking I agree with what the Magistrate said in the passage beginning “fourthly” of his reasons, though I would express the last sentence as “the risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.” In assessing such a risk, it is relevant to consider the fact that there is going to have to be some ongoing relationship because of the position of the children, and, if as the appellant alleges the respondent has been difficult and uncooperative in the past in relation to the arrangements for him to have the opportunity to spend time with the children, there is a risk that there will be situations arising of a kind which have in the past produced domestic violence.”

89. [89]
    In DMK v CAG^[30] Morzone QC DCJ again considered whether an order was “necessary or desirable”:

“[68]  The use of the phrase “necessary or desirable” invokes a very wide and general power, and should be construed in a similarly liberal manner to enable a court to properly respond, and, if appropriate, tailor an order to protect a person from domestic violence”.

[72]  The Magistrate did not need to be satisfied that future domestic violence was ‘likely’ (required by the former Act). His reasoning, although economical, well demonstrated his satisfaction on the evidence of the prospect of domestic violence beyond some mere possibility or speculation.”

90. [90]
    In my view, her honour’s reasoning was sound.  TAF has shown that he is extremely denigrating of AHN and does lose his temper when he gets frustrated.  He has also demonstrated the he is prepared to remove the child from the care of the mother, displacing the child to the USA, in circumstances where the child’s best interests would be served by stability and security.
91. [91]
    No doubt in the fullness of time the child may well seek out his father and develop a strong relationship and bond with him.  But this is less likely if TAF alienates the child and AHN.  TAF has also demonstrated, as set out in the Order of the Denton County, District Court a history of erratic behaviour and a propensity to litigation to attempt to get his own way.
92. [92]
    I am also satisfied that her honour came to her conclusion, based on all of the relevant evidence before her. There is no evidence which would lead me to conclude that the learned magistrate acted upon a wrong principle, or allowed extraneous or irrelevant matters to guide or affect her.  I am also satisfied that her honour did not mistake the facts, and did not fail to take into account some material consideration.
93. [93]
    I should note the effects of COVID-19 would not have come into the consideration of the learned magistrate in October 2019.  I have considered whether the inability of TAF to travel to Australia for contact anytime in the near future would have any effect the learned magistrate’s consideration of necessary or desirable.  Having regard to the electronic communications between the parties, which of course will be ongoing notwithstanding physical presence I do not consider that her honour’s conclusion would have been different.

Conditions of order

94. [94]
    Finally, the learned Magistrate determined the additional conditions to be added to the order, compared with the temporary order made on 27 November 2018 and Annexure “A” to the Affidavit of AHN.  The learned magistrate made orders which appear appropriate to me and which give effect to the conclusions she made about risks to AHN and the child.  Those orders are to be in place until 1 October 2024.

Conclusion

95. [95]
    Section 169 of the DFVPA sets out the orders which I may make in relation to this appeal as follows:

“(1) In deciding an appeal, the appellate court may:

1. (a)
   Confirm the decision appealed against; or
2. (b)
   Vary the decision appealed against; or
3. (c)
   Set aside the decision and substitute another decision; or
4. (d)
   Set aside the decision appealed against and remit the matter to the Court that made the decision.”

96. [96]
    Whilst it is clear from what I have said that the case was not conducted in an ideal manner, I cannot find fault in the substance of her honour’s decision. I am satisfied that if the matter was remitted for a new trial the outcome would be the same.
97. [97]
    For the reasons set out above, I consider the leaned magistrate’s decision to be a sound one. As such I order that the decision of the learned magistrate be confirmed and the appeal be dismissed.