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OMD v Queensland Police Service[2021] QDC 282

OMD v Queensland Police Service[2021] QDC 282

DISTRICT COURT OF QUEENSLAND

CITATION:

OMD v Queensland Police Service & Anor [2021] QDC 282

PARTIES:

OMD

(Appellant)

v

QUEENSLAND POLICE SERVICE 

(First Respondent)

AND

DMB

(Second Respondent)

FILE NO:

312/21

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

2 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2021 

JUDGE:

Porter QC DCJ

ORDER:

  1. 1.Order (3) of the Protection Orders made by the Magistrates Court at Brisbane on 13/1/21 be varied so that it provides:

The respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives.

The respondent may without contravening this order reside at her premises, move about any part of her property or leave her home to enter and exit her property by a route that does not require driving past the aggrieved’s home.

  1. 2.The appeal is otherwise dismissed.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where the appellant seeks to appeal the decision made in the Magistrates Court to impose a protection order pursuant to s. 37 Domestic and Family Violence Protection Act 2012 (Qld) – whether the learned Magistrate erred in deciding a matter with investigative failure and procedural unfairness – whether the learned Magistrate erred in fact and law in relation to existing protection order – whether the learned Magistrate erred in fact and law in relation to existing family law orders – whether the learned Magistrate erred in finding domestic violence was committed and in finding it necessary or desirable to make a protection order against the existing aggrieved – whether the learned Magistrate erred in fact and law in relation to the now adult children – whether the learned Magistrate erred in making conditional protection order that was wrong, unfair and unjust

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), ss. 4, 7-12, 37, 56-67, 97, 100, 145, 168

Domestic and Family Violence Protection Rules 2014 (Qld), r. 5

Coroners Act 2003 (Qld), s. 91A

Criminal Code 1899 (Qld), s. 359B

CASES:

Baker v Smith (No. 1) [2019] QDC 76

GKE v EUT [2014] QDC 248

House v The King (1936) 55 CLR 499

Norbis v Norbis (1986) 161 CLR 513

R v Ernst [2020] QCA 150

APPEARANCES:

OMD in person 

N. Thirumoorthi (QPS Legal Unit) for the first respondent

DMB in person  

Contents

Summary3

the proceedings below4

Nature of the appeal11

The Notice of Appeal16

issue 1: procedural fairness grounds16

Appeal Ground 1: Investigative failure16

OMD’s submissions16

The Commissioner’s submissions18

Analysis19

Appeal Ground 2: Procedural unfairness21

Significant delay21

Documentation22

Hearing22

Temporary cross-order22

Issue 2: Domestic violence by DMB?23

Intimate Partner Homocide lethality factors issue24

Issue 3: relevanCE of the parenting orders25

Issue 4: Alleged failure to consider evidence on Day 128

ISSUE 5: alleged Error in finding acts of domestic violence against DMB29

The media exhibits and attendance at DMB’s house29

The finding of photographic surveillance33

Issue 6: was an order Necessary or desirable?34

The Family Law issue34

The “fearfulness” issue35

Therapeutic programs issue35

Reason for cessation of conduct/risk of future conduct36

Issue 7: Naming of adult children in the order37

Requirement for cross-examination37

Cause of alienation38

Issue 8: Period of the order38

Issue 9: Terms of the order40

Conclusion41

Summary

  1. [1]
    On 13 January 2021, Magistrate Bradford-Morgan granted an application for a protection order against the appellant (OMD) in favour of the second respondent, her ex-husband (DMB). Their two adult children were named persons under that order.
  2. [2]
    OMD appeals against that decision and seeks the setting aside of the protection order.  For the reasons which follow, the appeal is dismissed, except in respect of a minor adjustment to the terms of the order prohibiting approaching DMB’s home.

the proceedings below

  1. [3]
    DMB and OMD separated in 2012. They have two children: a son, born 3 October 1999, and a daughter, born 7 August 2001. 
  2. [4]
    An application for a protection order under the Domestic and Family Violence Protection Act 2012 (Qld) (the DV Act) was filed by the Commissioner of Police against OMD on 5 August 2019 in the Pine Rivers Magistrates Court.  On 7 August 2019, a temporary protection order was made against OMD in favour of DMB, with their children as named persons.  At that stage, their son was 19 and their daughter turned 18.
  3. [5]
    The matter came on for hearing before her Honour on 16 December 2019.  It was adjourned part heard and was completed on 16 November 2020.  Her Honour handed down her judgment on 13 January 2021.  Her Honour made the following orders:
  1. (1)
    The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
  2. (2)
    That the respondent be of good behaviour towards the named person and not commit associated domestic violence against the person and where a child/children not expose the child to domestic violence.
  3. (3)
    The respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives.

The respondent may without contravening this order leave her home to enter and exit her property by a route that does not require driving past the aggrieveds home

  1. (4)
    The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved other than a lawyer by any means whatsoever including telephone, text or internet.

Except when appearing personally before a Court or Tribunal.

  1. (5)
    The respondent is prohibited from following or remaining or approaching to within 100 metres of the aggrieved when the aggrieved is at any place.

except when appearing personally before a Court or Tribunal.

  1. (6)
    The respondent is prohibited from contacting or attempting to contact or asking someone else except a lawyer to contact the named persons
  2. (7)
    The respondent is prohibited from following or remaining or approaching to within 100 metres of the named persons when the named persons are at any place.

Except when appearing personally before a court or tribunal.

  1. [6]
    Her Honour began by reviewing the procedural history of proceedings under the DV Act and the Family Court Act 1975 (Cth).  Her Honour then set out the key statutory provisions.  It is convenient to set them out for the purposes of this judgment.
  2. [7]
    Her Honour observed:

[13] The Act confers on this Court power to make civil Protection Orders. Section 37 of the Domestic and Family Protection Act (Qld) 2012 (“the Act”) provides:

  1. “(1)A court may make a protection order against a person (the Respondent) for the benefit of another person (the Aggrieved) if the court is satisfied that---
  1. (a)
    A relevant relationship exists between the Aggrieved and the Respondent; and
  2. (b)
    The Respondent has committed domestic violence against the Aggrieved; and…
  3. (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…”

[14] Section 4 of the Act provides:

“Principles for administering Act

  1. (1)This Act is to be administered under the principle that the safety, protection, and wellbeing of people who fear or experience domestic violence, including children, are paramount.
  2. (2)Subject to subsection (1), this Act is also to be administered under the following principles---
  1. (a)
    People who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
  2. (b)
    To the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
  3. (c)
    Perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;…
  4. (f)
    A civil response under this Act should operate in conjunction with, not instead of, the criminal law.”

[15] Definitions of terms in the Act are provided in Section 8:

“Meaning of Domestic Violence

  1. (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”.

[16] Section 11 provides:

“Meaning of emotional or psychological abuse

Emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person”.

[17] Section 56 of the Act requires the Court to impose a condition that the Respondent must be of good behaviour towards the Aggrieved and not commit acts of domestic violence if an Order is made. Section 57 of the Act empowers the Court to impose any condition necessary or desirable to protect the Aggrieved. Subsections (2) and (3) provide:

“…The principle of paramount importance to the court must be that the safety, protection and well-being of people who fear or experience domestic violence…are paramount”.

  1. [8]
    Her Honour identified the three matters to be established to enliven the discretion to make a protection order:
    1. (a)
      That a relevant relationship exists between the aggrieved and the respondent;
    2. (b)
      That the respondent has committed domestic violence against the aggrieved; and
    3. (c)
      That the protection order is necessary or desirable to protect the aggrieved from domestic violence.
  2. [9]
    Her Honour uncontroversially found that a relevant relationship existed between DMB and OMD.
  3. [10]
    Her Honour then turned to whether OMD had committed domestic violence against DMB.  Her Honour plainly approached the evidence on the basis that if domestic violence arose, it was emotional or psychological abuse. 
  4. [11]
    Her Honour reviewed the evidence-in-chief (given by affidavit) and cross-examination of each witness in the trial (where she considered it relevant): Officers Wylie and Ingram, DMB (and his children with OMD), Ms Blackmur, Mr Szabo and Ms Cox (the last three are friends or neighbours of DMB).  It is evident from that review that her Honour generally accepted the evidence of the witnesses called by the Commissioner who gave direct evidence of OMD’s conduct. Without reciting all that evidence, it is fair broadly to characterise it as tending to show that OMD was a continual visitor of the house and its immediate area, often armed with a camera which she appeared to use to take photographs of the house, or at least to point apparently in the direction of the house, and that she continued despite being told repeatedly that she should cease by DMB and the children.
  5. [12]
    Her Honour then set out the principles applicable to the analysis of the third element.  She observed relevantly:

[67] In considering whether a civil Protection order is necessary or desirable this Court is expressly required by section 37(2)(a)(i) of the Act to have regard to the principle that the “safety, wellbeing and protection of people who fear or experience domestic violence are paramount”. The Court is required to weigh the evidence adduced by all witnesses concerning disputed versions of events and the testimony by an aggrieved and named persons on the impact of domestic violence on their wellbeing.

[68] The case law requires an assessment of the risk of future violence, to exclude the granting of orders where violence is a “mere possibility”. However in doing so the Court is also required to make an assessment of the safety risks to an aggrieved and named persons posed by a respondent in the absence of an Order to give effect to the purpose of the legislation. Domestic Violence courts are courts of therapeutic jurisprudence and provide for both a protective framework for persons who fear and experience domestic violence and provide respondents with access to behaviour change support programs through intervention orders (section 37(2)(a)(ii) of the Act.

[69] Courts are guided in a consideration of domestic violence safety risks by reference to identified high risk factors (precursors to lethality) and behaviours associated with Intimate Partner homicide. The Domestic and Family Violence Death Review and Advisory Board Annual Report 2018-2019 includes as Appendix B “Intimate Partner Homicide Lethality Risk Factors”[1] which identifies behaviours that are high risk. In determining whether an Order is necessary or desirable evidence of several high risk factors is a relevant consideration.

  1. [13]
    Her Honour then analysed the evidence of OMD in considerable detail over paragraphs [72] to [125]. In the course of her analysis, she made frequent observations about the tenor, credibility and attitude of OMD, which her Honour considered arose from specific parts of that evidence.  It is evident from her specific observations that she formed a negative view of OMD’s evidence, considering it to lack credibility in key respects and to show a person who lacked insight into her own behaviour and its effects on others. One important example of her Honour’s observations appears in paragraph [111] where she observes:

[111] Upon reading the totality of the affidavit of [OMD], it is evident that she is highly distressed at the decision made by [the children] to cease contact with her and she is unable to accept their decision. It is evident that she has a feeling of ill will towards the Aggrieved which persists as she maintains that the Aggrieved has prevented the children having a relationship with her. Having observed her children being cross-examined by her solicitor, Ms Horne, the children were resolute that they did not wish to have contact with their mother and their decision was not a result of influence by their father.

  1. [14]
    Her Honour then made the following key findings.
  2. [15]
    First, her Honour found that there were several “accepted high risk factors” evident in OMD’s behaviour.  Presumably, she was referring to the factors identified in paragraph [69] of her Reasons set out above:
    1. (a)
      She explained:

[126] … These factors include a history of domestic violence (previous orders and cross-orders; child custody access disputes – proceedings in the Federal Circuit court for over 5 years to December 2019; the victims’ intuitive sense of fear (Evidence of the Aggrieved and the two Named Persons); minimisation of domestic violence – the Respondent remains insistent that her efforts to contact the Named Persons are not acts of domestic violence despite Parenting Orders that required the children to allow contact with their mother only and findings that contact was harmful to [the daughter] by the Federal Circuit Court family consultant; obsessive behaviour by the Respondent who stands outside their home and enters the property to speak to them and her refusal to accept her children’s decision not to see or contact her.

  1. (b)
    She also held:

[142] I find that it is necessary to make an Order for the protection of the Aggrieved and the Named Persons to enable them to reside at their residence without fear of being surveilled or monitored by their mother, who resides only 7 houses away. I note that taking photographs of the Aggrieved’s property is intrusive and demonstrates concerning, obsessive behaviour that is an accepted high-risk behaviour.

  1. [16]
    Second, her Honour referred to the video evidence of OMD’s attendance at the house. It is worth noting here that there were a number of disks of recorded video evidence tendered at trial showing conduct by OMD from time to time. The authenticity of those recordings was not challenged.  
  2. [17]
    Third, her Honour found that OMD had engaged in domestic violence in the form of unauthorised surveillance. She held:

[138] I accept the evidence of the Aggrieved and Named Persons that the Respondent’s presence at and outside their home with a camera and taking photographs constitutes domestic violence and a campaign of unauthorised surveillance. The duration of these attendances in my view is concening given the absence of any legitimate reason for contact or visits by the Respondent since [her daughter] moved in with her father some years ago and she did not request contact with her mother. The Respondent’s evidence that she is a keen photographer and her annexed photos of insects and flowers does not explain her ongoing presence outside the Aggrieved’s home. The Respondent remained insistent that she had not committed any act of domestic violence and does not accept her children’s decision not to have contact with her.

[139] I find that the Prosecution has discharged the onus of proof, having adduced compelling and cogent evidence from the Aggrieved, the Named Persons and the independent witnesses, Ms Cox, Ms Blackmur and Mr Szabo (a former neighbour of the Aggrieved and Respondent) that the Respondent has been conducting unauthorised surveillance of the Aggrieved and Named Persons over a protracted period of time and that the cessation of this behaviour was only achieved through the making of a Domestic Violence Protection Order. It is clear that it is extremely difficult her the Respondent to accept the decision by her children to cease contact with her and for her to be respectful of their determination that they do not want to continue a relationship with her at this time.

[140] I note particularly that the Respondent has not undertaken any behaviour change programs that would provide her with insight into the scope of behaviour that constitutes domestic violence or coping strategies to deal with the extremely distressing and long-term cessation of contact with her children. I am satisfied for these reasons that the Respondent has committed acts of domestic violence against the Aggrieved and Named Persons and that they have been adversely affected, emotionally and psychologically by her persistent refusal to respect her children’s determination that they do not want to continue contact with her.

[141] I note that the Police have adduced cogent evidence of a protracted campaign of surveillance of the Aggrieved and the Named Persons and that at this point criminal charges have not been preferred against the Respondent.

  1. [18]
    That finding must be considered in the context of her Honour’s acceptance of the evidence of the children and the neighbours and friend, of her frequent presence in the vicinity of DMB’s home and taking of photographs while there, the video evidence of the same, and her rejection of OMD’s explanations for that presence as being a benign hobby of photographing flowers and birds and as being reasonable and justified by her entitlement to seek to engage with her children when they moved to their father’s house.[2] Her Honour plainly considered that the whole of the evidence of unauthorised surveillance was compelling, making OMD's explanations not just lacking credibility, but also demonstrating lack of insight into the nature and effect of her behaviour.
  2. [19]
    She also found that OMD’s conduct in using Family Court procedures comprised domestic violence. She held:

[143] I note that the use of legally available procedures was considered by the Court of Appeal in the decision of Barron v Walsh [2014] WASCA 124, where the Court held that the use of legally available procedures (including applications to the Court and appeal processes) could constitute acts of domestic violence. The history of litigation in the Federal Circuit Court since 2014 until December 2019 is a relevant consideration in determining whether there is a risk of future acts of domestic violence that makes an order necessary.

  1. [20]
    Fourth, she found that an order was necessary and desirable.  She reached that ultimate finding based on:[3]
    1. (a)
      Her finding that OMD’s conduct caused real stress to DMB and the children, and OMD’s peremptory dismissal of that stress;
    2. (b)
      Her finding that OMD simply had no understanding that the children did not want to have contact with her and that their decision was incomprehensible to her, particularly as demonstrated by her cross-examination of them in the trial;
    3. (c)
      Her finding that OMD gave explanations for her surveilling behaviour which were not credible; and
    4. (d)
      Her rejection for those reasons of OMD’s contention that no order was required because she accepted her children’s decision and had ceased contact for that reason, rather than because of the temporary order. 
  2. [21]
    Finally, she rejected OMD’s counsel’s contention that she should not exercise the discretion to make an order because it was demonstrably unnecessary as OMD had complied with the temporary order since it was made. She considered that the temporary order, not some developing insight in OMD or some acceptance of her children’s right not to see her once they were 18, was the reason for the suspension of surveilling behaviour.
  3. [22]
    On the delivery of judgment, her Honour explained the inclusion of the 100m limit, rather than the 50m limit, in the temporary order. That increase is the subject of a ground of appeal. The following exchange occurred which is of significance to that ground:[4]

…There is a prohibition from entering or attempting to enter or approaching within 100 metres of where the respondent lives. I note that you reside in close proximity to the aggrieved and, for those reasons, I’ve stipulated in that clause:

The respondent may, without contravening this order, leave her home to enter and exit her property by a route that does not involve driving past the aggrieved’s home.

So the importance of that provision is to ensure that there’s no inadvertent breaches by you of the existing order that would possibly lead to you being charged with a contravention of the order but also, importantly, impact adversely on any future application to vary the order to enable there to be an application for the children to be able to contact you with their written permission. That’s why I wanted to raise it.

RESPONDENT: Your Honour, can I mention that I probably live within 100 metres of [DMB]. And also to – if I can’t drive down my street, it takes me – whenever I leave my home, it takes me extra kilometres to avoid his home. Because we live in the same street, I have to go a different route. And, as I’ve set out in my affidavit, it’s kilometres every time I leave my home.

BENCH: I have addressed that in the reasons for decision. I know you haven’t had an opportunity to read that. And I did hear submissions from you that it would involve an extra 2.2 kilometres one way and an extra 1.4 kilometres the other way. But I just wanted to assure you that part of the court’s obligation is to make an order that manages the anxiety of an aggrieved and named persons but also, in relation to respondents, puts in place a framework that minimises the prospect that there would be an allegation that you breached the protection order. There was a significant number of calls for police assistance in this case. I don’t want your position to be affected by future allegations of breaches. And the only effective way to do that is to adopt the standard 100 metre exclusion.

I note in the reasons of Judge Jarett in the Federal Circuit Court, that he had mentioned in his reasons you live seven houses away. And I am – I have satisfied myself that the making of a 100-metre exclusion zone is adequate to protect the – given the nature of the allegations – to protect you from allegations of breach. And that could only be achieved by you not passing by the home of the aggrieved and the respondent.

RESPONDENT: But my house, your Honour, would be within 100 metres. I know that my neighbour – to stay away from the 50 metres, it’s only my house and my neighbour and I can’t go any further than that. So I would be within 100 metres.

BENCH: Do you disagree with Judge Jarrett that you’re seven houses away?

RESPONDENT: Seven houses away but – I’m number 14 and he’s number – there might be about four or five houses.

SNR CONST CLARK: One and 14.

BENCH: All right. So I have taken this into account. I did assure myself that you would not inadvertently be at breach but it’s because of the allegations in the application which I have traversed – I think this is one of my longest decisions, I did go through the evidence extensively because I wanted you to understand why I’ve reached the decision that I have. I have come to the view that a 100-metre exclusion zone is appropriate, particularly given that you do reside in close proximity. But, as I said to you, part of my responsibility is to make sure the order is in place that ensures that you’re not going to be passing by the home of the aggrieved and the named persons which would lead to further allegations of contraventions of the order.

RESPONDENT: Your Honour, there’s two ways out of my house because it’s like a U. I’m on one side. The father is on the beginning of the U. There’s a main road. And, if I have to go the other way, which is the extra kilometres, I believe that, if I drive out the other exit, I’m still within 100 metres from his home because there’s only two houses between him and that street. It’s only a narrow – it’s only a narrow block. And I did this calculation before which I was looking at the 50 metres to make sure that I was not within – by driving out the second exit, that I wasn’t within the 50 metres. But I would definitely be within the 100 metres. That’s to get into my house through the other exit. I could refer – I could show you in my affidavit if you wanted to look at the map to understand where we live.

BENCH: I have read your affidavit and I have referred to it in my reasons for decision and I heard your submissions in relation to the 2.2 kilometres and the 1.4 kilometres with the other route and that is why I’ve made the decision that I have in relation to 100 metres. I am concerned that you, throughout the proceedings, did not come to the understanding that the behaviour did amount to domestic violence and, in those circumstances, I have concluded, at page 28 of 29, that there is a high risk of future acts of domestic violence because you have not had the opportunity in counselling moving forward.

RESPONDENT: Your Honour ---

BENCH: And that is why I’ve reached the decision. I’ve considered the evidence. I know you are making submissions to me about material in your affidavit but I want to assure you that I have carefully addressed all of those considerations and I wanted to explain to you, as a courtesy, why I’ve made the decision that I have, that it should be 100 metres and not 50 metres…

Nature of the appeal

  1. [23]
    In GKE v EUT [2014] QDC 248, McGill DCJ SC observed:

[1] On 15 March 2013 a protection order was made in the Coolangatta Magistrates Court under the Domestic and Family Violence Protection Act 2012 (“the Act”) s 37, against the appellant for the benefit of the respondent. By this appeal the appellant seeks to have that order set aside. The appellant has a right to appeal against the decision under s 164 of the Act, and the appeal was started within the time specified in s 165. By s 168, unless the appellate court orders that the appeal be heard afresh, “an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.” It appears to follow that, unless there are grounds to order a rehearing de novo, there is no power to admit fresh evidence on the hearing of the appeal. Under s 169, in deciding this appeal I can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court.

[2] The first question that arises is as to the nature of the appeal. Section 168 does not make the appeal one by rehearing, and the restriction on the consideration of only the evidence before the court that made the decision under appeal is consistent with the idea that the appeal provided is an appeal in the strict sense. The concept of an appeal being by way of rehearing is well established, and there are number of statutes which provide for such an appeal, so the absence of such a provision from division 5 suggests that what is intended is an appeal in the strict sense. On the other hand, s 142(2)(e) expressly provides that ch 18 of the Uniform Civil Procedure Rules applies to a proceeding under the Act. Chapter 18 is concerned with appeals, and operates only to the extent that the application of the rules is not inconsistent with the Act: s 142(1)(b).

[3]  Part 3 of Chapter 18 deals with appeals to a court other than the Court of Appeal, and provides in r 783 for appeals to the District Court from the Magistrates Court. Rule 785 provides that the rules in Part 1, dealing with appeals to the Court of Appeal, other than specified rules, apply to such appeals, with necessary changes. Accordingly r 765(1) applies to such an appeal, and that rule provides that an appeal to the Court of Appeal is an appeal by way of rehearing. It follows that, by this somewhat convoluted path, the legislature has provided that the appeal to this Court is an appeal by way of rehearing. That has the consequences which have been laid down by the Court of Appeal.

  1. [24]
    I agree with his Honour’s view that an appeal to this Court is an appeal by way of rehearing.  Two further points should be made.
  2. [25]
    First, in Baker v Smith (No. 1) [2019] QDC 76, I observed (footnotes omitted):

[190] Section 223 provides that this appeal is an appeal by way of rehearing on the original evidence unless leave is given to lead further evidence.  No such leave was sought.  A useful starting point in considering the character of the appeal is the statement in McDonald v Queensland Police Service [2017] QCA 255.  There, Bowskill J, with whom Fraser and Philippides JJA agreed, said (footnotes omitted):

[46]  A failure on the part of a District Court judge, on an appeal under s 222 of the Justices Act, to conduct a rehearing is an error of law, which would warrant the intervention of this Court to correct an injustice.

[47]  However, in this case, the District Court judge did conduct the appeal appropriately, in accordance with law, by way of a rehearing, in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing. It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.

[48]  It is clear, particularly from [14]-[18] of the decision below, that the District Court judge reviewed the evidence that was before the Magistrate, and formed his own view of it, leading to the conclusion that, in the challenged respects, he could see no basis to overturn the Magistrate’s factual findings – that is, could see no error in those factual findings, which would warrant allowing the appeal.

[Underlining added]

[191] The underlining emphasises the central place of identifying error in the appeal process.  Other cases support the centrality of identification of error in an appeal by way of rehearing.  A convenient starting point is Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 where Gleeson CJ, Gaudron and Hayne JJ said:

  1. 13.If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
  2. 14.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. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.

[Underlining added]

[192] In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ relevantly said:

  1. 22.The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
  2. 23.The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

...

  1. 25.Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. 

[Underlining added, footnotes omitted]

[193] Those observations have particular weight in this case, where the trial judge had the advantage of observing witnesses whose credit was challenged (albeit expert witnesses) and, perhaps more importantly, had the opportunity to have the rather complex evidence presented in a coherent and logical manner during the course of the trial.  Her Honour will have had an overview of the case developed over the 20 days of evidence which is difficult fully to replicate on a rehearing.  Those considerations are reflected in statements such as that in Stevenson v Yasso [2006] 2 Qd R 150 at [162] that an appeal under s. 223 requires the Court to make its own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.

[194] The next case to consider is Teelow v Commission of Police [2009] 2 Qd 489.  In that case, Muir JA with whom Fraser JA and Mullins J agreed, made the following relevant observations, after citing s. 223 (footnotes omitted):

[4]  It is a normal attribute of an appeal by way of rehearing that "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ... At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance." On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.

[195] Other authorities also identify the necessity of identifying error in the decision below.   Not only does identification of error provide the foundation for interfering in the judgment under appeal, it is also useful in a complex appeal for identifying (as noted in Fox v Perry) that part of the proceedings below which should be subject to particular scrutiny and reconsideration. 

  1. [26]
    Those observations apply equally to appeals under the DV Act, given their character as an appeal by way of rehearing.  In particular, it is implicit in the character of the hearing as an appeal that error must be shown.
  2. [27]
    Second, care must be exercised properly to identify the character of the particular judicial determination which is under consideration on the appeal.  There is no one rule for all issues in DV Act appeals.  In Norbis v Norbis (1986) 161 CLR 513 at 518, Mason and Deane JJ observed, after referring to the well-known passage in House v The King (1936) 55 CLR 499 at 504-505 (footnotes omitted):

It is well settled that the principles governing interference by an appellate court with the exercise of a discretionary judgment at first instance apply to the Full Court of the Family Court as an intermediate court of appeal: De Winter and De Winter; Gronow v. Gronow]; Mallet . It is not disputed that the Full Court of the Family Court was bound to apply these principles in the present case on the footing that the trial judge, in making orders under s. 79 of the Act, was exercising a judicial discretion. The principles have been constantly reiterated and applied by this Court in the form in which they were expressed in House v. The King:

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

The sense in which the terms "discretion" and "principle" are used in these remarks needs some explanation. "Discretion" signifies a number of different legal concepts: see, e.g., the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp. 3-10. Here the order is discretionary because it depends on the application of a very general standard - what is "just and equitable" - which calls for an overall assessment in the light of the factors mentioned in s. 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.

  1. [28]
    In my respectful view, the making of a protection order should not be treated as a discretionary judgment in all respects.  While it can be accepted that s. 37(1) DV Act confers a discretion on the Court as to whether to make a protection order or not, that does not mean that the threshold conditions for that discretion to arise should be treated as discretionary as well.
  2. [29]
    The matters in ss. 37(1)(a) and (b) do not articulate a legal test which calls for “value judgments in respect of which there is room for reasonable differences of opinion”.  They articulate a fixed rule for application to the facts.  The principles in House v The King do not apply to an appeal in respect of a Magistrate’s conclusion on either of their threshold conditions.
  3. [30]
    In contrast, s. 37(1)(c) calls on the Magistrate to form an opinion as to whether, on the facts proved, a protection order is necessary or desirable to protect the aggrieved.  In my respectful view, this gives rise to a discretionary decision because the assessment of what is necessary to protect the aggrieved plainly leaves room for differences of opinion and questions of judgment.  A fortiori where Parliament confers on a Court the duty to determine what is desirable for that purpose.  The close link between this third threshold requirement and the discretionary character of the power to make a protection order supports that characterisation.  For those two matters, the principles in House v The King do apply.
  4. [31]
    While on this subject, I note that ss. 56 to 67 DV Act deal with the conditions of domestic violence orders. Those provisions do not uniformly create either discretionary powers in relation to the making of conditions or fixed rules as to such conditions.  An assessment of the legal character of each provision providing for conditions must be undertaken to assess the correct approach for this Court when an appeal is brought alleging error in respect of a decision relating to a condition.  

The Notice of Appeal

  1. [32]
    OMD’s Notice of Appeal contains 23 specific grounds of appeal under six headings, covering nearly three pages. Her submissions covered some 43 closely typed pages. It is convenient to deal with the appeal grounds under the headings adopted by OMD as presented in her updated outline of argument dated 23 July 2021.  Although I have considered the whole of OMD’s submissions, I have not dealt specifically with points which are not reasonably arguable, are plainly irrelevant to the determination of the appeal or are immaterial points of detail.  

issue 1: procedural fairness grounds

Appeal Ground 1: Investigative failure

  1. [33]
    This ground is articulated as follows:

The learned Magistrate erred in not finding investigative failure in circumstances where the investigating and corroborating officers had relied upon the allegations of [DMB] without checking material available to them or hearing the views of [OMD] who is the existing aggrieved.

OMD’s submissions

  1. [34]
    The gravamen of OMD’s submission is that the QPS did not fairly investigate the situation between her and DMB before bringing the application which gave rise to the orders under appeal.
  2. [35]
    She referred specifically to:
    1. (a)
      The alleged failure of the Police to interview her during an investigation in December 2018 leading to a Police Protection Notice which was dismissed in January 2019;
    2. (b)
      The alleged failure of the Police to take into account an existing order in her favour and existing Family Court Orders;
    3. (c)
      The alleged failure of the Police to investigate breaches she alleged of the existing order in which she was the aggrieved; and
    4. (d)
      The failure of the Police to contact her during the investigation which led to the application on 5 August 2019.
  3. [36]
    She contended that the conduct of the investigations by police was inconsistent with requirements of the QPS Operational Procedures Manual (OPM) in relation to investigations of domestic violence complaints, particularly paragraph 9.4.2, which provides:

9.4.2 Investigating domestic violence (initial action)

Where a report of domestic violence has been received, the investigating officer should:

  1. (i)
    commence an investigation in accordance with Chapter 2: ‘Investigative process’ of this Manual;
  2. (ii)
    determine if any domestic violence orders (DVO) or release conditions are in existence (see s. 9.4.6: ‘Contravention of domestic violence order, release conditions or police protection notice’ of this chapter);
  3. (iii)
    electronically record and/or take a written statement from the aggrieved (see Appendix 9.1: ‘Domestic violence protective assessment framework’ of this chapter);
  4. (iv)
    interview any witnesses to the incident;
  5. (v)
    conduct an electronically recorded interview with the respondent (Action should not be stopped or delayed due to the inability to locate or interview the respondent);
  6. (vi)
    if justified, take the respondent into custody (see s. 9.5: ‘Domestic violence custody’ of this chapter);
  7. (vii)
    where there is sufficient evidence, issue and serve a QP 0899: ‘Police protection notice’ (PPN) or apply for a temporary protection order (see s. 9.6: ‘Domestic violence orders, police protection notices and conditions’ of this chapter); or

if further investigation is required:

  1. (i)
    interview any other witnesses and in the case of:
  1. (a)
    witnesses who are children, officers should refer to s. 9.8.5: ‘Children’s evidence in domestic violence proceedings’ of this chapter; and
  2. (b)
    a party, including an aggrieved, respondent, or witness being unable to adequately understand or communicate in the English language or because of cultural differences or physical disability, officers should refer to s. 6.3.7: ‘Interpreters’ of this Manual.
  1. (ii)
    where practicable, review and consider all previous:
  1. (a)
    protective assessments relating to the aggrieved; and
  2. (b)
    domestic violence incidents/contraventions or history of violence,

as supporting evidence in a domestic violence application. In examining risk over time, consider whether risk is escalating and whether new risk factors, particularly category 1 factors, have emerged which would place the aggrieved and other named persons at further risk of violence (see Appendix 9.1: ‘Domestic violence protective assessment framework (DV-PAF). In these circumstances additional safety and support mechanisms are needed.

  1. (iii)
    if it is necessary to prevent:
  1. (a)
    a danger of personal injury to another person; or
  2. (b)
    damage to property,
  3. (c)
    take the respondent into custody (see ss. 116: ‘Police officer may take person into custody’ of the DFVPA and 9.5: ‘Domestic violence custody’ of this chapter),
  1. (iv)
    ascertain whether any children (including unborn children):
  1. (a)
    usually live with either the aggrieved or respondent (see ss. 24(2): ‘Who can a domestic violence order protect’ of the DFVPA and 9.2.1: ‘Definitions’ of this chapter); or
  2. (b)
    have been exposed to domestic violence (see s. 10: ‘Meaning of exposed to domestic violence’ of the DFVPA),

and take appropriate action in accordance with s. 9.8.4: ‘Other action to protect children exposed to domestic violence’ of this chapter;

  1. (v)
    gather supporting evidence for an application for a DVO (see Chapter 2: ‘Investigative Process’ of this Manual); Sufficient evidence for an application may include, but is not limited to:
  1. (a)
    medical evidence;
  2. (b)
    statements/affidavits, e.g. aggrieved, witnesses, neighbours;
  3. (c)
    prior contact by the aggrieved with domestic violence support agencies, if any;
  4. (c)
    photographic or video evidence of the aggrieved or the premises; and/or
  5. (d)
    a statement or affidavit from the investigating officer concerned;
  • (vi)
    determine if any Family Law Court orders are in existence (see ss. 11.13: ‘Family Law Act’ and 11.13.3: ‘Family Law Court order inconsistent with domestic violence order’ of this Manual);
  • (vii)
    comply with the procedure contained in s. 9.4.7: ‘Prosecution of statutory offences’ of this chapter;
  • (viii)
    issue a QPB32A: ‘Field Property Receipt’ for anything seized (see s. 622: ‘Receipt for seized weapons’ of the PPRA).
  1. [37]
    She relied on R v Ernst [2020] QCA 150 and contended that the investigative failures were such as to influence the outcome of the trial, and therefore a retrial was required.

The Commissioner’s submissions

  1. [38]
    Ms Thirumoorthi, for the Commissioner, submitted that any unfairness from the mode of investigation was cured by OMD having a full opportunity to lead evidence and cross-examine before the learned Magistrate.  She pointed out that the procedure leading to her Honour’s judgment was entirely different from the circumstances of the trial in R v Ernst.  She submitted:[5]

The Appellant cites the case of R v Ernst [2020] QCA 150. However, the case may be distinguished from the present matter as the appellant in that case was convicted on 11 of 15 counts of sexual offences against the same complainant. The Crown case depended entirely upon the evidence of the complainant. The case depended entirely upon the jury’s acceptance of the complainant as a truthful witness. The comments cited in the Appellant’s outline relate to the criminal justice system and a criminal trial which differs from a civil application for a protection order under the DV Act. Further, the comments cited in the Appellant’s Outline are in relation to the criminal justice system and a criminal trial which are very different from the civil application for a DVO.

  1. [39]
    The Commissioner’s submissions also address how the specific complaints by OMD as to alleged investigative failures did not ultimately have an impact on the fairness of the trial. It is unnecessary to deal with those matters at this point, though some come up later in these reasons.

Analysis

  1. [40]
    The Commissioner’s submissions are correct. The following points are relevant.
  2. [41]
    First, the OPM is not a statute, nor of itself a legally binding document. Failure to comply with it might, of itself, not give rise to appealable error in a resulting proceeding.
  3. [42]
    Second, OMD’s contention fails to grapple with the character of proceedings under the DV Act. Those proceedings are civil in character.  In such proceedings, the respondent has an opportunity to cross-examine witnesses and to lead evidence.  OMD had that opportunity and was legally represented at the trial. In those circumstances, deficiencies, if any, in the investigative process leading up to the bringing of the application by the Commissioner are open to be raised at trial for the purpose of demonstrating that the Commissioner has not made out the case for the protection order sought. However, if such deficiencies do not have that consequence, they are irrelevant to the correctness of the judgment reached after trial.
  4. [43]
    Third, R v Ernst does not lead to any different conclusion.  Indeed, it supports the above conclusion. As the Commissioner submitted, that case involved an appeal against conviction on 11 counts of sexual offences against the same complainant.  The central question in the case was the uncorroborated testimony of the complainant. While it is correct that the Court criticised the failure of the investigation to follow the direction in the OPM that officers remain objective and impartial when conducting investigations, it was not the failure per se, but its consequence, which was relied upon as giving rise to the appeal.
  5. [44]
    In that case, the consequence was the failure of investigating officers to bring to the attention of the Director of Public Prosecutions, evidence from witnesses which was strongly favourable to the defendant.[6]  It was this consequence, not the failure to comply with the OPM, which resulted in a successful appeal. It must also be kept in mind that R v Ernst was a criminal proceeding. The prospect of investigatory inadequacies which will give rise to error in a trial judgment is much less in civil proceedings under the DV Act, where the onus of proof is less burdensome and the Commissioner, as applicant, does not have the strict obligations which are imposed on the Crown in a criminal prosecution.
  6. [45]
    This is not to say that officers investigating domestic violence allegations should not strive to comply with the directions in the OPM.  They should. The DV Act confers very significant powers and discretions on police officers. Section 100 DV Act provides, relevantly:

100 Police officer must investigate domestic violence

  1. If a police officer reasonably suspects that domestic violence has been committed, the police officer must investigate or cause to be investigated the complaint, report or circumstance on which the officer’s reasonable suspicion is based.
  2. If, after the investigation, the police officer reasonably believes domestic violence has been committed, the police officer must consider whether it is necessary or desirable—
    1. (a)
      to take any action under subsection (3) to protect a person from further domestic violence; and
    2. (b)
      for the person to be protected immediately from further domestic violence and, if so, what is the most effective action to take to immediately protect the person.
  3. The police officer may do any of the following—
    1. (a)
      apply to a court for a protection order under part 3, division 1;
    2. (b)
      apply to a court for a variation of a domestic violence order under part 3, division 10;
    3. (c)
      issue a police protection notice under division 2;

Note—

Under section 112, a police protection notice is taken to be an application for a protection order.

  1. (d)
    take the respondent into custody under division 3;

Note—

Under section 118, if a police officer takes a respondent into custody, the police officer must apply for a protection order against the respondent.

  1. (e)
    apply to a magistrate for a temporary protection order under division 4;
  2. (f)
    take any other action appropriate in the circumstances.

Example of other action—

taking a respondent to another place, including, for example, a hospital, to receive treatment necessary for the respondent’s welfare…

  1. [46]
    The exercise of the powers in s. 100(3) has the potential significantly to impact on the person identified as the respondent.  Further, it is inevitable that the party, which the investigating officer concludes is the aggrieved party (or perhaps most aggrieved: see s. 4(e) DV Act), will in practice likely be at an advantage in any proceedings for a protection order.   
  2. [47]
    Investigating officers should therefore apply their best endeavours to investigate complaints fairly and with an open mind, with a view to exercising the discretion to bring DV Act proceedings justly and in proper cases.  However, that does not mean that failure to do so of itself impacts on the lawfulness of a protection order made after a trial. This ground of appeal fails.

Appeal Ground 2: Procedural unfairness

  1. [48]
    This ground is articulated as follows:

There was procedural unfairness with significant delays, brief of evidence issues, numerous unparticularised allegations and irrelevant media exhibits, misplaced material, inconsistencies and discrepancies.  

  1. [49]
    This ground of appeal rolls up a number of distinct complaints made by OMD about the conduct of the proceedings before her Honour. The complaints are gathered under the following headings:
    1. (a)
      Significant delay;
    2. (b)
      Documentation;
    3. (c)
      Hearing; and
    4. (d)
      Temporary cross-order.
  2. [50]
    It is convenient to deal with the distinct arguments under OMD’s headings.

Significant delay

  1. [51]
    It is convenient to set out the chronology.
  2. [52]
    On 2 August 2019, the Commissioner filed the application for a protection order in the Pine Rivers Magistrates Court.
  3. [53]
    On 7 August 2019, at the first mention, orders were made for the filing of material by October 2019.  Over the next couple of months, the matter was transferred to Brisbane and listed for hearing on 16 December 2019.
  4. [54]
    The matter commenced on 16 December 2019 but went part heard.  Thereafter, the resumption of the hearing was adjourned on a number of occasions, with the hearing being completed on 16 November 2020. 
  5. [55]
    OMD identifies the reasons for the delays as arising from the unavailability of a Magistrate, the need for a full day to complete the hearing, and COVID impacts.  There is no reason to doubt that those were contributing factors.
  6. [56]
    The gravamen of OMD’s contentions on this chronology is that the continual adjournments were traumatic for her, the delay was significant and avoidable, and the hearing continuity was affected.  She relied on the National Domestic and Family Violence Bench Book advocating timely disposal of proceedings.
  7. [57]
    I do not necessarily accept that the delay was avoidable, but even if it was, the circumstances identified do not of themselves give rise to any error in her Honour’s judgment. Like the investigation of complaints, delay might be a reason that some other error occurs, such as overlooking key evidence. In oral argument, OMD did raise such an argument. She contended that her Honour failed to consider cross-examination which occurred on the first hearing date. I deal with that specific argument at paragraphs [89] to [95] below. 
  8. [58]
    Delay is to be avoided as much as possible in each and every dispute which comes before any Court. The importance of that objective is reflected in r. 5 Domestic and Family Violence Protection Rules 2014 (Qld). But mere delay in a matter being completed (subject perhaps to the most extreme examples) does not give rise to appellable error.

Documentation

  1. [59]
    In paragraphs [36] to [45], OMD articulates various complaints about the trial record. The difficulty with those complaints is that, ultimately, I was unable to identify any defect in the documentary record at trial, nor any procedural unfairness arising from the circumstances in which those documents were provided to OMD. There might have been bumps along the way in the provision of material and the like, but that often happens during proceedings.  Such concerns can usually be addressed during the proceedings.
  2. [60]
    OMD was represented at the trial.  Her counsel did not ultimately make any submission that there had been procedural unfairness which required an adjournment or justified dismissal of the application.  I was unable to identify any error in her Honour’s judgment arising from the matters raised under this heading.

Hearing

  1. [61]
    In paragraphs [47] to [56], OMD raises a series of further specific events which she contends led to a failure to accord her procedural fairness at the trial.  I have considered these matters and am not persuaded that any of them sustain the conclusion she advances. It is sufficient to refer to paragraph [55] of her outline which provides:

There were instances where the learned Magistrate interrupted the Appellant’s lawyer, changed the subject, ended cross-examination, or gave no opportunity to reply on issues (such as exhibits, health, photography, counselling) which became crucial to the decision.

  1. [62]
    I have reviewed most of the transcript of the hearing of the appeal on both days. I am unable to locate any example of excessive or unjustified interruption by her Honour or any example of her ending cross-examination over the objection of Ms Horne (who appeared for OMD), nor of her Honour not permitting Ms Horne a reasonable opportunity to make submissions. I note, for example, the forbearance of her Honour during two pages of transcript in which Ms Horne advanced her no case submission (even though a no case submission is a procedure appropriate to civil proceedings).[7]

Temporary cross-order

  1. [63]
    OMD also complained on appeal at paragraphs [59] to [60] about the length of time that the temporary order was in place. While that is a regrettably long period for a temporary order to be in place, it is does not provide a basis in law to challenge the Protection Order made by her Honour.

Issue 2: Domestic violence by DMB?

  1. [64]
    OMD’s second issue develops in various ways the argument that her Honour erred in not considering the alleged history of domestic violence by DMB against OMD and concluding that she was the person most in need of protection. This matter is raised in various ways in grounds 3 to 9.  It is unnecessary to set out each in detail.
  2. [65]
    OMD directs attention to the Protection Orders made against DMB in her favour. Those orders were each made without admission of liability and by consent. They were as follows:
    1. (a)
      From one year from March 2012, requiring DMB to be of good behaviour and not commit domestic violence;
    2. (b)
      From two years from May 2015, requiring DMB to be of good behaviour and not commit domestic violence towards OMD, along with their children;
    3. (c)
      From 22 June 2016 (i.e. during the period of the previous order) for one year on the same terms, although with an additional condition that DMB not enter OMD’s property; and
    4. (d)
      From 28 February 2018 for five years, requiring good behaviour etc. towards OMD and their children, with an additional condition that DMB not make derogatory comments concerning the mental health of OMD.
  3. [66]
    OMD conceded this history was referred to in general terms by the learned Magistrate but complains, in effect, that her Honour failed to consider and apply the principle articulated in s. 4(e) DV Act which provides that the Act is to be administered under the principle, relevantly, that:

in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified. 

  1. [67]
    Section 37(2) requires the Court, in deciding whether a protection order is necessary or desirable, to consider inter alia the principles in s. 4(1).  It does not seem to me correct to say that her Honour had to take into account conflicting allegations of domestic violence at the earlier stage of determining if DMB had committed domestic violence against OMD.  In any event, I do not agree that her Honour erred in the manner in which she dealt with the evidence of domestic violence by DMB for the following reasons. 
  2. [68]
    First, based on my own review of the evidence at trial, including the audio-visual recordings, I can identify no acts of domestic violence by DMB, much less any acts which impact on the conduct of OMD which was the subject of the application. What the evidence uniformly demonstrated was that OMD comes to the home of DMB repeatedly, without any invitation or provocation by him.  There is nothing in the evidence which indicates any need for OMD to be protected from DMB in relation to the matters the subject of this application.
  3. [69]
    OMD’s argument as to why there is such a need exposes her real complaint, not only on this point, but perhaps in the appeal overall. She effectively contends that the domestic violence done by DMB is his not permitting OMD access to her children and thereby causing her mental anguish. There are several difficulties with this proposition.
    1. (a)
      It is not clear to me that such conduct would of itself comprise domestic violence. The definition of domestic violence in the DV Act is very broad.[8] However, not every act which causes anguish to a relevant party will be domestic violence. It is the circumstances in which acts of that type occur which inform whether such acts comprise domestic violence under the Act;
    2. (b)
      The evidence at trial shows that OMD’s children do not wish to have contact with her and have maintained that position, at least during the period of the conduct which is subject of these proceedings; and
    3. (c)
      There is no basis to conclude that their views in this regard are the result of coercion or manipulation by their father. I recognise that, even in the audio-visual evidence at trial, DMB has shown an impatient hostility to OMD when she came to his home. However, the evidence overall does not support the view that he is the reason for the children’s aversion to contact with their mother.
  4. [70]
    This is, of course, a sad situation for OMD and undoubtedly causes her anguish. Indeed, it is her resolute unwillingness to accept their position which seems to lie behind her conduct. However, that does not justify concluding that DMB is committing acts of domestic violence which are relevant to the acts complained about in this application.
  5. [71]
    Second, there was no admission of any act of domestic violence by DMB, nor any finding of domestic violence by a Court in relation to any of the protection orders in evidence. Given that matter, taken with her Honour’s rejection of OMD as a reliable witness, it is understandable that she did not place great weight on her allegations against DMB. Added to that is the consideration that at the trial, OMD’s counsel did not place any weight on the orders against DMB in resisting this application. 
  6. [72]
    I do not think her Honour erred in the way in which she dealt with the evidence about the previous orders against DMB.

Intimate Partner Homocide lethality factors issue

  1. [73]
    OMD took issue with her Honour’s reference to intimate partner homocide lethality factors.  I refer to the Reasons at [69] set out in paragraph [12] above.  It appears that her Honour treated the Advisory Board’s lethality factors as being a form of expert opinion evidence as to the correlation between certain conduct and the risk of domestic homocides.
  2. [74]
    I have reservations about the way her Honour has relied on the Advisory Board publication in the hearing and determination of applications for protection orders under the DV Act.  The Advisory Board is not set up under the DV Act nor is it referred to anywhere in that Act.  It is a creation of the Coroners Act 2003 (Qld): see s. 91A.  There is no express statutory warrant for relying on the opinions of the Advisory Board in the hearing of applications.   
  3. [75]
    It is arguable that reference to the Advisory Board’s opinions might be permitted under s. 145(1) DV Act which provides:

145 Evidence

  1. (1)
    In a proceeding under this Act, a court—
  1. (a)
    is not bound by the rules of evidence, or any practices or procedures applying to courts of record; and
  2. (b)
    may inform itself in any way it considers appropriate…
  1. [76]
    However, such a provision still requires evidence to be rationally probative.  Here, there seemed to be little justification on the evidence for thinking that OMD was a lethal risk to anyone.  Further, s. 145 does not obviate the requirement that parties ought to know the case they are meeting.  If the Court intends to rely on opinions of the Advisory Board, it is necessary that it informs the parties of the opinions or other evidence which the Court intends to consider so that it can be addressed.  
  2. [77]
    There can be little doubt, in my view, that the considerations her Honour identified in Reasons [126] were capable of being relevant to the forming of the discretionary judgment contemplated by s. 37(1)(c).  It is therefore unnecessary in this case to determine whether, and to what extent, it is permissible to rely on the publications of the Advisory Board.  However, in future, care should be taken to ensure that any material relied upon is both rationally probative on the evidence at trial and disclosed to the parties for submission.

Issue 3: relevanCE of the parenting orders

  1. [78]
    OMD’s third issue develops in various ways the proposition that the learned Magistrate failed properly to comprehend the effect of the Parenting Orders from time to time and failed properly to assess the application considering the effect of those orders. This point underpins grounds 10, 11 and 12 of the Notice of Appeal.
  2. [79]
    Her Honour summarised the effect of the various Parenting Orders and related orders as follows:[9]
    1. (a)
      On 4 July 2014, the Federal Circuit Court made a Parenting Order (note their son was 14 and their daughter was 12);
    2. (b)
      On 17 November 2015, the Parenting Orders were varied such that their son no longer live with OMD nor spend time with OMD unless he chose to do so (he was 16 at the time);[10]
    3. (c)
      On 18 February 2018, Judge Turner:
      1. ordered that the Parenting Order be vacated, and in its place, that the daughter was to live with DMB, with the daughter to spend time with OMD “in accordance with her wishes” (she was 16);
      2. either dismissed or imposed a symbolic fine in respect of 28 alleged contraventions of the Parenting Order;
    4. (d)
      On 14 March 2018 (in fact, it seems 31 July 2018), Judge Turner’s orders were set aside on appeal. The reasons were not in evidence. They were referred to in her Honour’s Reasons without objection from any party. 
    5. (e)
      Her Honour noted that Judge Jarrett, in a later decision, quoted the Full Court as stating that resolution of the issues in the proceeding before Judge Turner was disputed between the parties, and therefore the Appeal Court could not determine them. The Full Court also relied on the fact that the daughter would be nearly 18 at the time that any rehearing occurred. The Court therefore took the view that not only would it not determine the application to set aside the Parenting Orders itself, it would also not remit the application for rehearing. (This left the daughter subject to the Parenting Order which required equal time, in circumstances where it was evident that she did not wish to live with her mother, and left the family in that situation for 12 or 16 months, an extraordinary situation which seems to have contributed to the subsequent events, as will be seen);
    6. (f)
      On 27 September 2018, not long after the daughter’s 17th birthday, Judge Jarrett of the Family Court dismissed an application by OMD for a recovery order for the daughter, and issued an injunction restraining OMD from approaching her. His Honour’s Reasons for doing so were that the daughter did not wish to have any contact with her mother and that there was evidence before him from a family consultant that it would not be in her best interests to continue to have contact forced on her by her mother;
    7. (g)
      On 6 November 2018 (and despite Judge Jarrett’s orders), the Federal Circuit Court dismissed a further contravention application against DMB; and
    8. (h)
      On 29 July 2019, the Federal Circuit Court dismissed a further contravention application against DMB.
  3. [80]
    OMD submits that this summary of the facts by her Honour was incomplete and inaccurate in some respects. However, the only matter not specifically referred to by her Honour, which is at all material, is that on 17 December 2018, Judge Jarrett discharged the injunction his Honour made on 27 September 2018, though the reasons are not in evidence.  
  4. [81]
    OMD makes various complaints about her Honour’s approach to the Family Court order, but the gravamen seems to be that her Honour misapprehended the effect of the Family Court orders. OMD refers to her Honour’s observation that the final Parenting Order restricted access to her daughter and left it open to her daughter to initiate contact.[11] OMD goes on to submit that this meant her Honour erred in concluding that OMD’s conduct in the Family Court proceedings contributed to the risk of future acts of surveillance and in concluding that the visits to DMB’s house were not justified.
  5. [82]
    It appears that her Honour did err in adopting the view that the Family Court orders in the relevant period required the daughter to have contact with her mother at her election.  That position was correct between 18 February 2018 and 31 July 2018 when Judge Turner’s orders were set aside on appeal. It was not technically correct after 31 July 2018, because of the decision of the Full Court on appeal to neither determine the application to vary the orders themselves, nor to remit the application for rehearing.
  6. [83]
    It might be that her Honour overlooked the effect of the appeal or elided the daughter’s position with the son’s (which from 17 November 2015 was as her Honour found).  However, I do not think her Honour’s oversight to have any material effect on her judgment.
  7. [84]
    While technically the Parenting Orders were revived after 31 July 2018, it is plain on the evidence that from at least early 2018, the daughter actively did not want to have contact with her mother.  That is the only rational explanation for the 18 February 2018 orders and for Judge Jarrett’s remarkable order on 27 September 2018.  It is also sustained by the daughter’s and son’s own evidence. There is no good reason to reject that evidence. Her Honour’s oversight has little impact on her overall assessment of the relationship between the parties or OMD’s determination to force herself on her children, especially her daughter, once her “legal right” to do so (in her eyes) was re-established by the Full Court decision.
  8. [85]
    Further, OMD’s focus on the revival of the Parenting Orders fails to have regard to her determined and continual attempts to bring contravention proceedings against DMB, despite the obvious rejection of her attention by the daughter and the clear rejection of the substantive merit of those proceedings by several Judges. 
  9. [86]
    Her Honour observed at Reasons [146]:

[146] In my view the inclusion of an exception to the no contact and no approach conditions to enable the Named Persons to provide written consent to their mother, the Respondent would expose the Named Persons to further acts of domestic violence. The Respondent has for 4 and 5 years respectively utilised such a provision in Parenting Orders to harass and monitor her children and harass them for not contacting her.

  1. [87]
    In my view, OMD’s repeated contravention applications, and her reliance on the rights under the Parenting Orders from 2014 to justify her behaviour in approaching DMB’s house to attract her children’s attention, adds to the strength of her Honour’s conclusion. OMD’s submission fails to recognise that it can be the oppressive use of legal rights which can found a basis for concern as to future acts of domestic violence.  Her blind insistence and pursuit of her rights under the Parenting Orders in relation to her daughter, after it was clear that she did not wish to live with her or be involved in her life, is the issue.
  2. [88]
    These grounds of appeal fail.

Issue 4: Alleged failure to consider evidence on Day 1

  1. [89]
    This issue covers ground of appeal 13. There are three propositions rolled into this ground:
    1. (a)
      The first is an extended critique of the propositions in the application prepared by the Police and an allegation that her Honour wrongly relied on the content of the application and the credibility of the evidence of the Police witnesses; 
    2. (b)
      The second is that her Honour failed to consider the defects in the evidence of the other witnesses exposed in cross-examination on Day 1; and
    3. (c)
      The third is the submission that her Honour erred in not finding that the application was vexatious.
  2. [90]
    None of these propositions are made good.
  3. [91]
    The first proposition is covered by paragraphs 135 to 173 of OMD’s submissions. It challenges individual propositions in the application prepared by the Police. OMD’s complaints about the inaccuracy of matters articulated in the application are generally not persuasive. She repeats her point about the effect of the Family Court orders relating to her access to her daughter being misunderstood by the Police.
  4. [92]
    It appears the Police were indeed in error in understanding the effect of the Parenting Orders after the appeal set aside Judge Turner’s orders. However, for the reasons I have given in paragraphs [84] to [87], little turns on that misunderstanding. More fundamentally, however, this part of OMD’s case again indirectly challenges the investigation process.  The assertions in the application are not evidence and were not relied upon by her Honour as such. Her Honour referred to the evidence of the Police officers in general terms in her summary of the evidence given at trial, but did not state that she accepted the propositions in the application as fact just because they were prepared by the Police.
  5. [93]
    OMD said that her Honour did not consider challenges to Police evidence in cross-examination on Day 1. I am not persuaded that her Honour did not have regard to the cross-examination, much less that she forgot it entirely. Her Honour referred to cross-examination from Day 1 on many occasions, presumably because she thought it to be relevant.  One cannot infer error simply because the reasons do not refer to everything that occurred.
  6. [94]
    The second proposition is covered variously in paragraphs 183 to 189 of OMD’s submissions. She submits that her Honour failed to have regard to the cross-examination of the various lay witnesses called by DMB. I have read the cross-examination. There is nothing in it of sufficient moment to have required her Honour to do so. Nothing else in her submissions in that regard demonstrates any error in her Honour’s judgment.
  7. [95]
    The third proposition is advanced in paragraphs 190 to 196 of OMD’s submissions. Nothing stated in those paragraphs could sustain the conclusion that the application was false, vexatious and frivolous. It is notable, however, that OMD can advance such a submission while entirely failing to grapple with the content of the affidavits of her children (not to mention DMB’s affidavit), which directly speak to their wish not to have contact with her, the reasons for that wish and their stress from her continuing attempts to do so.

ISSUE 5: alleged Error in finding acts of domestic violence against DMB

  1. [96]
    This issue seems to cover grounds 14, 15 and 16.  OMD’s submissions cover this issue in paragraphs 197 to 323.  Her main points are as follows:
    1. (a)
      The media exhibits did not contain evidence of acts of domestic violence;
    2. (b)
      The evidence did not sustain the finding that OMD was doing acts of unauthorised surveillance;
    3. (c)
      The evidence did not sustain the conclusion that DMB suffered health consequences from OMD’s actions.

The media exhibits and attendance at DMB’s house

  1. [97]
    I have watched all the audio-visual evidence myself.  It records events occurring in the following two categories:
    1. (a)
      Repeated visits to the house around the daughter’s 17th birthday on 7 August 2018; and
    2. (b)
      Regular visits to the house from 31 January 2019 to 13 July 2019.
  2. [98]
    I observe that there was no recorded evidence for the period of Judge Jarrett’s injunction, but that it resumed after that injunction was set aside.  The recordings stop again after the temporary order was made on 7 August 2019.  
  3. [99]
    The following matters from the content of the videos:
    1. (a)
      First, each of DMB and the children made clear on numerous occasions in the clearest terms that they did not want to have contact with OMD;
    2. (b)
      Second, OMD referred frequently to having the benefit of the Parenting Orders, and on three occasions, she came onto DMB’s property asserting an entitlement to access under those orders;
    3. (c)
      Third, the parties agreed that the audio-visual files showed OMD attending at the front of the property on 36 days and approaching the front door on four occasions.  I accept that calculation.  However:
      1. There were days where OMD’s attendences were numerous: on her daughter’s 17th birthday, there were four separate attendances; and
      2. There were other days where her attendance was very instrusive: her visit during Easter 2019 resulted in the sad spectacle of her pursuing her daughter around the front yard.
    4. (d)
      Fourth, many of the other recorded incidents simply show OMD lurking out the front of the house, hiding behind trees in the front of the house, using her camera for no apparent reason and walking down the side of the house in the adjacent vacant lot.
  4. [100]
    It is to be kept in mind that no witness said that every time their mother came, they recorded it.  Rather, the recordings are unequivocal evidence of what has occurred on the occasions recording took place.  In that context, the evidence of the daughter[12] and the son[13] must be considered. Each of them spoke of their mother frequently carrying out the kind of conduct shown on the audio-visual evidence, despite being told her attentions were not wanted.  In cross-examination, it was suggested that OMD had never threatened them or abused them or their father.  They both largely conceded this, but expressed anxiety about her showing up uninvited in their lives.  With considerable restraint (I thought), they made clear they wanted nothing to do with their mother and had made that clear many times in the past, to be ignored by their mother’s importuning conduct.  Nothing in the cross-examination provided a basis not to accept their evidence about the frequent uninvited visits to the house.
  5. [101]
    Domestic violence is defined in s. 8 DV Act inclusively to include unlawfully stalking a person.  Unlawful stalking is defined by reference to the offence in s. 359B Criminal Code 1899 (Qld).  Section 359B provides:

359B What is unlawful stalking

Unlawful stalking is conduct—

  1. (a)
    intentionally directed at a person (the stalked person); and
  2. (b)
    engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
  3. (c)
    consisting of 1 or more acts of the following, or a similar, type—
    1. following, loitering near, watching or approaching a person;
    2. contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
    3. loitering near, watching, approaching or entering a place where a person lives, works or visits;
    4. leaving offensive material where it will be found by, given to or brought to the attention of, a person;
    5. giving offensive material to a person, directly or indirectly;
    6. an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
    7. an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and
  4. (d)
    that—
    1. would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or
    2. causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.
  1. [102]
    The evidence of the repeated attendances at the home of DMB plainly meets the requirements under that section for acts which fall within the scope of the offence. Three matters arise which require further consideration.
  2. [103]
    First, it might be questioned whether her conduct is directed at DMB.  It can be conceded that the children are the objects of OMD’s acts.  However, that does not mean that the acts cannot also be intentionally directed at DMB.  DMB lives in the house around which OMD repeatedly loiters, and worse.  DMB is the person identified by OMD, in uninvited conversations while loitering around the house, as the cause of the alienation between her and the children.  In my view, those considerations permit OMD’s conduct properly to be described as directed at DMB, albeit it is also directed at the children.
  3. [104]
    Second, her Honour accepted that OMD’s conduct had medical consequences for DMB. This amounts to detriment.  OMD challenges that finding.  DMB swore as follows:[14]

[12] I remember some instances. On the 23rd of November I was at home. I knock off early on Fridays. It was about 5:00pm, something like that.

[13] I had seen [OMD] on the corner where my house is. I can’t remember if I spoke to her. I drove into my garage and then went into my house.

[14] A short time later, my neighbour from down the road, I cannot recall her name, came over to my front fence and spoke to me about something. While this was going on, [OMD] was still filming me for outside the fence.

[15] The neighbour then went home, and I went inside and that was it for the day. I just let it go by.

[16] On the 24th of November 2018 at approximately 5:45pm, I saw [OMD] outside the fence line again at the front of the house. She was filming me and saying things like “We have a parenting order, you’re ignoring me” and other such things. This went on for about 10 or 15 minutes. I think she does this to get a response out of me.

[17] I made it known to [OMD] that I was calling the police and then she left. I had let her hear me calling the police. I called the police three times, but police did not answer. It took three tries to call the police to get rid of her.              

…

[31] On the 8th day of December 2018 I was admitted to hospital because of stress. This situation has caused me so much stress that I have no energy to do anything after work, I get sick more often. On this occasion I collapsed and was admitted to hospital.

[32] I have been on medication for blood pressure and stress since my separation with [OMD]. I have other medical issues, but I am on two specific types of tablets that I could be taken off, if my stress levels weren’t as high. I have regular visits to the doctor because of stress.

  1. [105]
    OMD submits that her Honour erred in accepting DMB’s evidence of the impact on him of her appearances at the house, because DMB should not be accepted as a credible witness.  Her Honour was in a better position than this Court on appeal to make such an assessment.  However, even if that were not the case, I can see nothing in OMD’s submissions or the cross-examination of DMB to lead me to reject the gravamen of his evidence on the impact of OMD’s persistent attempts to contact the children at his house. 
  2. [106]
    I accept that DMB is not a disinterested witness where OMD’s conduct is concerned, having clearly suffered (as has she) from an acrimonious divorce. And I suspect that his statements in paragraph 32 might exaggerate the impact of the behaviour somewhat.  However, neither of these matters would persuade me that the balance of DMB’s evidence on the impact of OMD’s persistent visitations was wrong, not least because his reaction to some of her visits is able to be seen on the audio-visual recordings. His physical reactions are perfectly understandable consequences of that behaviour.
  3. [107]
    The balance of the detailed critiques of his evidence in paragraphs 303 to 323 of OMD’s submissions are not persuasive when subjected to scrutiny.  OMD clearly blames DMB for her alienation from her children, and that informs her perception of everything he says.  It does not provide a basis to reject his evidence.
  4. [108]
    I pause here to deal with OMD’s attack on DMB’s evidence based on his calls to the Police when she came to the property.  The evidence was that DMB had called the Police to complain about OMD’s presence on or at his property.  There was nothing in the evidence to suggest that those calls were not made in the circumstances he described and much to support the conclusion that they were.  The frequency of those calls, far from damaging his credit, tends to support the account of constant uninvited visitation to the property by OMD.
  5. [109]
    Third, OMD submits that her conduct is justified and excused by the fact that she was entitled to seek contact with her children generally and was entitled to have contact with her daughter under the Parenting Orders once they were re-enlivened, following the setting aside of Judge Turner’s orders revoking the original orders in relation to her daughter.  The fundamental problem with this is that Parenting Orders do not authorise conduct in breach of the civil or criminal law.  OMD’s conduct, based on her sense of entitlement under the Parenting Orders, was domestic violence within the meaning of the DV Act, despite the existence of those orders. 
  6. [110]
    The proper jurisdiction for enforcement of those orders was by contravention proceedings in the Federal Circuit Court.  It was a quirk of the Family Law system that Judge Turner’s orders were set aside on appeal, but the underlying application was left undetermined, while at the same time, the evidence before the Court was plainly that the daughter did not want to have contact with her mother.  I have no difficulty drawing that inference because of the substantive failure of all the contravention applications against DMB and the extraordinary injunctive order made by Judge Jarrett.  It should have been clear to OMD that while the Parenting Orders formally were re-enlivened, the Courts would respect the daughter’s wishes not to have contact with her mother.
  7. [111]
    It is a sad reflection of OMD’s lack of insight into the agency of her daughter that she so self-defeatingly obsessively insisted on her entitlements under the Parenting Order in the face of resilient resistance to her attentions by her children.
  8. [112]
    For those reasons, I find that OMD’s conduct in loitering near, watching and approaching DMB’s house comprises domestic violence under s. 8 DV Act.
  9. [113]
    I have reached this conclusion without considering her Honour’s finding that OMD also engaged in domestic violence in the form of unauthorised surveillance of DMB.  Her Honour based her conclusion that domestic violence in this form occurred on the above conduct and also on OMD’s use of her camera to take photographs of the house.

The finding of photographic surveillance

  1. [114]
    OMD challenged her Honour’s findings of fact on this issue.  She submitted that her Honour erred in finding that “having a camera and taking photographs in the street of birds, flowers and insects constitutes domestic violence”.  Of course, her Honour did not make such a finding.  Her Honour rejected OMD’s evidence about the reason she was seen with a camera loitering in the location of DMB’s house and taking photographs.  Once the innocent explanation is rejected, the inference that photographs were being taken of the property and its occupants is the only other reasonable explanation for her conduct.
  2. [115]
    The gravamen of OMD’s challenge to her Honour’s finding is that the evidence of the neighbours is mistaken to the extent they state that OMD was taking photographs of DMB’s house.  She also relies, in her affidavit, on various photographs exhibited which she says proves she was photographing birds and flowers.
  3. [116]
    This Court, on appeal, should give considerable weight to findings on credit by the learned Magistrate.  
  4. [117]
    Further, it is plain, even on OMD’s evidence, that she took photographs in the vicinity of DMB’s house and there is no reason to doubt the evidence of the neighbours that this occurred frequently.  There is also evidence in the audio-visual recordings of her doing so.  The other matter revealed by those recordings is that there was no compelling reason why the location of DMB’s house should be chosen as a favoured spot for photographing flowers and birds.  There is frankly no good reason to focus on such photography in the location of DMB’s house as compared to anywhere else in the neighbourhood. OMD’s reliance on her hobby to explain pointing her camera in the direction of the house is, in my view, disingenuous.  I concur with her Honour’s finding that the camera was being used as a form of surveillance.  And even if it was not used to take photographs of the house and its occupants, it was being used as a ploy to justify loitering in the location, conduct which aggravates the unlawful stalking.
  5. [118]
    Although my approach to the analysis of the identification of acts of domestic violence differs somewhat from her Honour’s by placing principal reliance on unlawful stalking, I agree with her Honour’s conclusion that acts of domestic violence arise from the loitering, and the wielding and pointing of the camera.
  6. [119]
    These grounds of appeal fail.

Issue 6: was an order Necessary or desirable?

  1. [120]
    OMD contends that her Honour erred in concluding that an order was necessary or desirable to protect DMB from domestic violence in the following respects:
    1. (a)
      First, her Honour erred in concluding that the “history of domestic violence and Family Court litigation supported” the making of the order.
    2. (b)
      Second, her Honour erred in placing emphasis on the position of the children in determining whether an order was necessary or desirable.
    3. (c)
      Third, her Honour erred in finding that DMB was fearful of OMD.
    4. (d)
      Fourth, her Honour erred in finding that OMD had not engaged with therapeutic programs.
    5. (e)
      Fifth, her Honour erred in finding that it was the temporary order, rather than the expiry of the Family Court orders, which was responsible for OMD ceasing her attempts at contact.
    6. (f)
      Sixth, there was no proper evidentiary basis to conclude that the risk of future domestic violence was more than a mere possibility.
  2. [121]
    It is difficult to link this part of OMD’s outline to specific grounds of appeal, though most of the matters raised relate in some way to many of her grounds of appeal.

The Family Law issue

  1. [122]
    I have dealt with this issue in paragraphs [71] to [87] above.  For those reasons, even if her Honour overlooked the resurrection of the Parenting Orders, I consider the history of the Family Law proceedings justified her Honour’s conclusion that that history supported the conclusion that an order was necessary or desirable.  
  2. [123]
    OMD’s unreasoned and dogmatic insistence on asserting her “entitlements” under those orders, despite her daughter’s firm and consistent rejection of her advances, demonstrated, in my view, her lack of insight into the true situation: that her children did not want contact with her and were definitely entitled to adopt that position.

The “fearfulness” issue

  1. [124]
    In her written submissions, OMD tended to elide her second and third issues.[15]  The gravamen of these submissions is that her Honour erred in finding that DMB and the children were fearful of her.  OMD referred to evidence from each of them that they were not afraid of her, but rather found her annoying.  I reject that submission.
  2. [125]
    Her Honour did not find that DMB and the children were afraid of OMD in the sense of fearing physical assault.  Her Honour referred at one point to that suggestion in the evidence, but did not make a finding to that effect.  Rather, her Honour made a more subtle finding.  It is best encapsulated in her finding that DMB and the children “experienced hypervigiliance, agitation and stress through the on-going attendences by the Respondent at their home”.[16]  To the extent her Honour found that the son was fearful, she found he was fearful of his mother’s stalking. She made equivalent findings about the effect of OMD’s behaviour on the other two members of the family.[17]  Further, those findings were amply justified on the evidence before her Honour, including the heightened emotional states of DMB and the children visible in the audio-visual recordings. 
  3. [126]
    Stalking behaviour involves the stalker intruding, without consent and without warning, into the daily life of the victim.  It can create a grinding, pervasive anxiety, even where there is no real risk of physical violence.  That DMB and the children gave evidence of such an impact on them of the conduct of OMD is not in the least unlikely. 
  4. [127]
    Sadly, OMD’s submission reflects a lack of understanding of the effect of her behaviour on them.  The fact that she does not mean them any harm (which I accept) does not mean that her conduct is not causing them harm. 

Therapeutic programs issue

  1. [128]
    OMD submits that her Honour erred in concluding that she had not undertaken any therapeutic programs.  OMD contends that there was no evidence that she had not undertaken such programs.  However, it was a matter for her to lead evidence of such programs in her affidavit.  She did address the matter in paragraph 332 of her affidavit at trial, but only to say that she had not been offered a program and would not have declined such an offer.  Her Honour’s finding is consistent with this evidence: she found that OMD had not undertaken any programs, not that they had been offered and refused.[18]
  2. [129]
    OMD sought leave at the appeal to lead fresh evidence of such a program.  It is arguable that there is no power in the Court to permit tendering fresh evidence on the appeal, and that fresh evidence can only be admitted if there is an order under s. 168(2) DV Act for a fresh hearing in whole or part.
  3. [130]
    Regardless of the precise source of any power to admit fresh evidence, OMD’s application was refused, primarily because the letter she sought to tender related to her engagement with a therapeutic program responding to her alleged suffering as an aggrieved, not as the respondent. 

Reason for cessation of conduct/risk of future conduct

  1. [131]
    Her Honour noted and expressly rejected the submission by Ms Horne at trial on behalf of OMD that it was the expiry of the Parenting Orders, rather than the temporary order, which explained the undoubted cessation of her conduct.[19]  OMD submits that her Honour erred in doing so.  I disagree.
  2. [132]
    Her Honour’s Reasons relevantly provided:

[132] It was submitted by Ms Horne on behalf of the Respondent, that the children having attained the age of majority that an order was no longer necessary as the Respondent had ceased attendances at or near the Aggrieved’s home in an effort to speak to the children.

[133] I note that during cross-examination of [the children] it was evident that their decision to cease contact with their mother was incomprehensible to the Respondent and that her frustration with the lack of contact prior to [the daughter] admitting the age of majority was ventilated in the Federal Circuit Court where several applications for contraventions were filed by [OMD] against [DMB] (the last 2 being summarily dismissed). I note applications were made after [the daughter] turned 18.

[134] The manner in which these proceedings were conducted is relevant. The Respondent required her children to attend court to be cross-examined. The Respondent is entitled to exercise her rights to a hearing. It is relevant however that the Named persons, her children, were cross-examined about why they refused to see or contact their mother when their testimony about her intrusive exchanges with them at their home were not controverted.

[135] In considering whether an order is necessary or desirable, it is necessary to consider whether the Respondent has attained a level of insight into the impact of intrusive behaviour on the wellbeing of an Aggrieved and Named Persons. [OMD] was resolute that she was taking photographs of birds and bees and flowers, and that she maintained that she was walking her cat in an attempt to explain the numerous attendances outside the Aggrieved’s fence line. The refusal of the Respondent to accept that she loitered near the Aggrieved’s home in an attempt to contact her children subsequent to [her son] attaining the age of majority, which was controverted by several witnesses independent of the parties, and the Aggrieved and Named Persons was concerning in assessing the risk of future violence. The Respondent does not and cannot accept her children’s decision to cease contact with her. Subsequent to [her daughter] attaining the age of 18, it is conceded that the Respondent has not made an attempt to enter the property of the Aggrieved however her visits did not cease until an Order was made. For these reasons I find that the Respondent has a high risk of commission of acts of further domestic violence in the absence of an Order.

[136] I do not accept the submission by the solicitor for the Respondent that the absence of attendances at the Aggrieved’s home by the Respondent since August 2019 demonstrates that an order is not necessary. I accept the submission by the prosecution that the making of a Protection Order which prohibits her attendance within 50 meters of the Aggrieved and Named Persons’ home has resulted in a cessation of the constant harassment of the Aggrieved and Named Persons by the Respondent attending at or near their home incessantly.

  1. [133]
    Bearing in mind my conclusions on the specific findings challenged by OMD, I am unable to identify any error in her Honour’s conclusion that there is a high risk of commission of similar acts if an order is not made.  I concur with that conclusion.  It is true that the cessation of OMD’s conduct coincided both with the expiry of the Parenting Orders in relation to her daughter and the making of the temporary order.  However, the other factors identified by her Honour provide a sound basis for her Honour’s conclusion. 
  2. [134]
    The fact is that, in the way OMD conducted her appeal, it was evident to me that she had no insight into the suffering her conduct caused, or into the fact that her children were determined to reject her advances, despite her protestations of love for them.  A sufficient example is her argument that the children are not fearful of her. As I explained above, that submission was misconceived, and misconceived in a manner which revealed a lack of understanding of the genuine grounds for the children to wish to prevent her contact with them.  Examples arising from the way she chose to prosecute her appeal could be multiplied.

Issue 7: Naming of adult children in the order

  1. [135]
    This issue covers appeal grounds 18 and 19 which provide:
  1. 18.The learned Magistrate erred in fact and law in finding that “the respondent required her children to attend to be cross-examined” when the children were witnesses of the Prosecution and the court must make orders and can issue directions in relation to the cross-examination of a child or named persons.
  2. 19.The learned Magistrate found the children have been alienated from the respondent, but in error attributed the children’s alienated views to the respondent, and not to the unhealthy and damaging pattern of domestic violence behaviour and contravention of parenting orders from the aggrieved as evidence during the hearing and in the evidence.

Requirement for cross-examination

  1. [136]
    Ground 18 is dealt with briefly in OMD’s submissions.  She contends that her Honour erred because it was the decision of the Commissioner to call evidence from the children.  This submission misunderstands how the trial unfolded.  The children were free to choose to file affidavits in support of the application, and both were adults at the time they did so.  
  2. [137]
    Their affidavits could have stood as their evidence at trial.  However, OMD’s counsel chose to cross-examine them.   Cross-examining counsel put to the son that he knew that their mother loved them (an irrelevant question).[20]   Counsel also (albeit gently) suggested that the cause of the alienation from OMD was DMB.  Counsel also sought to establish that there was no actual violence or distress caused by their mother.  They both accepted the first point, but rejected the second.  Her Honour was perfectly entitled to infer from the fact and content of the cross-examination that OMD did not accept her children’s wish not to have contact with her or her role in causing that alienation. 
  3. [138]
    None of the other matters identified by OMD in relation to this ground gives rise to any relevant issue. 

Cause of alienation

  1. [139]
    For this ground, OMD relies again on her Honour’s apparent misapprehension of the status of the Parenting Orders after the appeal from Judge Turner’s orders (to which I refer at paragraphs [64] to [76] above) and her Honour’s alleged error in concluding that the children were fearful of OMD (rejected as an error in paragraphs [124] to [127] above). 
  2. [140]
    The only new point raised is that her Honour erred in failing to find that it was DMB’s use of domestic violence (in the form presumably of negative and derogatory comments about her to the children) as the cause of their alienation from their mother.
  3. [141]
    I do not accept that her Honour erred in making that finding.  I consider it was correct: 
    1. (a)
      First, it must be borne in mind that her Honour had the opportunity of observing the children and their bearing in the witness box, as well as that of DMB.  The children were both directly challenged on the reason for their alienation from their mother and rejected that suggestion.
    2. (b)
      Second, even if DMB’s undoubted hostility to OMD had a part to play, the children gave their own specific evidence as to their reasons for preferring the care of their father.  None of those matters were challenged and the events described were believable given OMD’s conduct leading to the application; and
    3. (c)
      Third, even if DMB’s hostility had been a material cause of the children’s alienation, it did not authorise OMD’s conduct in stalking and surveilling his house.
  4. [142]
    Ground 20 is also collected under this hearing in the Notice of Appeal.  As to that, even if her Honour was incorrect in her observation, it does not demonstrate any relevant error.

Issue 8: Period of the order

  1. [143]
    This issue relates to ground of appeal 23.  OMD contends that her Honour erred in imposing a five year period on the order without reducing it to take account of the considerable delay (some 18 months or so) between commencement of the application and final hearing.
  2. [144]
    Section 97 DV Act provides:

97 End of protection order

  1. (1)
    A protection order continues in force until—
    1. (a)
      the day stated by the court in the protection order; or
    2. (b)
      if no day is stated, the day that is 5 years after the day the protection order is made.
  2. (2)
    The court may order that a protection order continues in force—
    1. (a)
      for any period the court considers is necessary or desirable to protect the aggrieved from domestic violence or a named person from associated domestic violence; but
    2. (b)
      for a period of less than 5 years only if the court is satisfied there are reasons for doing so.
  3. (3)
    In deciding the period for which a protection order is to continue in force, the principle of paramount importance to the court must be the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
  4. (4)
    If the court orders that a protection order continues in force for a period of less than 5 years, the court must give reasons for making the order.
  1. [145]
    Parliament has embedded in s. 97 a strong preference for a protection order to be made for a duration of five years.  That is reflected in the provision for a five year order to be the default period and in the express requirement for the Court to give reasons for the making of an order for any lesser duration.  Further, the Court’s decision to impose an order for a shorter duration involves an exercise of discretion.  On an appeal by way of rehearing, that exercise of discretion can only be overturned on the grounds recognised in House v The King (see the discussion in paragraphs [23] to [31] above).
  2. [146]
    OMD contends that her Honour erred in not concluding that the fact that the temporary order had been complied with for 17 months justified reducing the duration of the order.  She also contends that the QPS concedes that her Honour erred in that respect.  In my respectful view, neither error affected her Honour’s exercise of discretion.
  3. [147]
    It is convenient first to deal with the concession by the QPS.  Paragraph 89 of the appeal submissions concedes that her Honour erred in finding that s. 97 requires a five year order unless varied.  That concession is based on her Honour’s comment when delivering judgment that “provisions of the legislation provide for a five-year order and also stipulate that the order can be varied”.[21]  However, that comment must be placed in context. 
  4. [148]
    Before making that comment, her Honour expressly stated that she proposed “to make an order for a period of five years…subject to any submission in relation to the duration of the order”.  Ms Horne then submitted that the delay in resolution of the application and the concomitant period in which the temporary order was in place justified an order of four years duration, “rather than the five years”.  Her Honour considered that submission. She made some comments about her concerns about the manner in which the trial was conducted (plainly referring to the lack of insight into the nature of her conduct revealed by OMD’s cross-examination of her children and the other matters identified in her Honour’s Reasons), and in that context, commented that s. 97 required a five year order. 
  5. [149]
    The comments to which the Commissioner referred were made in that context.  They demonstrate that her Honour clearly knew a shorter duration was open, but that she was of the view that (the terms of) s. 97 required a five year order.  And her Honour’s observation makes sense when regard is had to s. 97(2)(b), (3) and (4), which emphasise that the duration must be set having regard to the protection of the aggrieved and the named persons.  Her Honour plainly considered that despite the period of the temporary order, the manner of conduct of the trial suggested that the protection of the aggrieved did not justify a shorter order. 
  6. [150]
    Her Honour’s subsequent comments about the duration of the order must be interpreted in that context and if that is done, no error of principle is identified.
  7. [151]
    This analysis also answers OMD’s point.  Her Honour did consider the delay and the period of the temporary order, but was not persuaded that it justified a shorter duration than the default period, for reasons which she gave.  Whether I concur with that assessment is not to the point.  No error has been identified in her Honour’s exercise of discretion. 

Issue 9: Terms of the order

  1. [152]
    This issue relates to appeal grounds 22 and 23.
  2. [153]
    By appeal ground 22, OMD contends that her Honour erred by referring to an order in terms of the original temporary order and overlooked that that order had been varied.  It is unnecessary to determine if her Honour overlooked the variations to the temporary order or not.  It is quite plain from her Honour’s statements in the transcript on 13 January 2021 that she made the order in the terms she considered appropriate based on her Reasons and the short submissions made on that day.  An error as to the terms of some other temporary order, even if made, is irrelevant.
  3. [154]
    By Appeal Ground 23, OMD contends that her Honour erred in imposing “the standard 100m ouster condition”.  Most of the contentions in support of that proposition restate matters already dealt with in these reasons.[22]  The only novel proposition of substance is that her Honour erred in failing to limit the ouster condition in a manner which permitted the appellant to live in her own home.
  4. [155]
    There was some discussion about whether the ouster condition set at 100m would cause OMD inconvenience in her daily activities because it required her to go further to reach the main road, than if the limit was set at 50m.  Her Honour considered that inconvenience and concluded it was outweighed by the necessity for a wider exclusion area in the interests of keeping OMD well away from DMB’s home and to prevent further acts of domestic violence.  Her Honour’s decision as to the imposition of an ouster condition and its terms was one made in the exercise of her discretion.  No error has been shown in that exercise of discretion in respect of the way she dealt with the arguments put to her.
  5. [156]
    However, on appeal, OMD submits that the ouster condition puts her in the position where she cannot occupy her home without breaching the order.  This was conceded by the QPS in the following terms:[23]
  1. 98.We acknowledge the Appellant’s argument that there may be inadvertent breaches of the Order by the Appellant residing in her house, which is within 100 metres of the Second Respondent’s residence. In the circumstances, we submit that condition 3 ought to be varied to state as follows:

“The respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives.

The respondent may without contravening this order reside at her premises, move about any part of her property or leave her home to enter and exit her property by a route that does not require driving past the aggrieved’s home.”

(addition in bold and underline)

  1. [157]
    That matter was not raised before her Honour, but it was plainly not a consequence her Honour intended.  Her Honour’s discretion miscarried only in this limited respect.  I therefore vary the protection order in the manner identified by the QPS’s submission.
  2. [158]
    Finally, OMD challenged the no contact order on the basis that the adult children should not be confined by an order made in favour of DMB.  That submission reflects OMD’s inability to accept that those orders were plainly supported by her adult children. 

Conclusion

  1. [159]
    Apart from varying the protection order in the minor respect identified in paragraph [156], the appeal is dismissed.  My impression of OMD, both in person and as revealed in the evidence, is the same as her Honour’s impression.  I say, with respect, that she clearly does not understand the effect her conduct has had on her children nor does she understand, much less accept, their genuine wish not to have any contact with her.  She has no choice but to accept that, despite the pain it undoubtedly causes her. 
  2. [160]
    Her approach so far has been to adopt the position of the victim and seek to force her children to accept her narrative of the relationship with DMB and his responsibility for the alienation.  That narrative is not supported by the evidence before the Magistrate, and in any event, is rejected by her children. 
  3. [161]
    She should focus her energies on obtaining professional assistance in understanding how her conduct has brought about this sad situation and how her conduct and attitudes have contributed to her alienation from her children.  That seems the best course for her if she wishes to rebuild her relationship with them.

Footnotes

[1] https://www.courts.qld.gov.au/courts/coroners-court/review-of-deaths-from-domestic-and-family-violence Appendix B Intimate Partner Homicide Lethality Risk Factors p133.

[2] See, for example, Reasons [127], [128], [135], [137].

[3] See paragraphs [128] to [136].

[4] Transcript of Decision, TS 4.13 to 6.5.

[5] Outline of Submissions on Behalf of the First Respondent at paragraph [42].

[6] See paragraphs [20] to [34].

[7] TS 2-25 to 26.

[8] See ss. 7 to 12 DV Act.

[9] Reasons at paragraphs [3] to [12] and [131].

[10] Trial Exhibit 16.

[11] Reasons [82], [113] and [126].

[12] Exhibit 22, paragraphs 9 to 12.

[13] Exhibit 21, paragraphs 8 to 22.

[14] Exhibit 23.

[15] See paragraphs 331 to 350 of the Appellant’s Updated Outline of Argument.

[16] Reasons [137].

[17] Reasons [31], [46] and [51].

[18] Reasons [140].

[19] Reasons [132] and [135].

[20] TS 2-6.41.

[21] Transcript of Decision, TS 2.43.

[22] See paragraph 462 of Appellant’s Updated Outline of Argument.

[23] Outline of Submissions on Behalf of the First Respondent at paragraph [98].

Close

Editorial Notes

  • Published Case Name:

    OMD v Queensland Police Service & Anor

  • Shortened Case Name:

    OMD v Queensland Police Service

  • MNC:

    [2021] QDC 282

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    02 Dec 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Baker v Smith (No 1) [2019] QDC 76
2 citations
Jump To
Cite 1 - [2019] QDC 76
Cite 2 - [2019] QDC 76
Barron v Walsh [2014] WASCA 124
1 citation
Jump To
Cite 1 - [2014] WASCA 124
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
1 citation
Jump To
Cite 1 - (2000) 203 CLR 194
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
GKE v EUT [2014] QDC 248
2 citations
Jump To
Cite 1 - [2014] QDC 248
Cite 2 - [2014] QDC 248
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
1 citation
Jump To
Cite 1 - [2017] QCA 255
Norbis v Norbis (1986) 161 C.L.R., 513
2 citations
Jump To
Cite 1 - (1986) 161 C.L.R., 513
Cite 2 - (1986) 161 C.L.R., 513
R v Ernst [2020] QCA 150
3 citations
Jump To
Cite 1 - [2020] QCA 150
Cite 2 - [2020] QCA 150
Cite 3 - [2020] QCA 150
Stevenson v Yasso[2006] 2 Qd R 150; [2006] QCA 40
1 citation
Jump To
Cite 1 - [2006] 2 Qd R 150
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
1 citation
Jump To
Cite 1 - [2009] 2 Qd R 489

Cases Citing

Case NameFull CitationFrequency
DGE v REU [2023] QDC 352 citations
HIK v HCA [2024] QDC 1554 citations
OMD v Porter [2025] QSC 146 2 citations
RJL v MCP [2025] QDC 1174 citations
Wylie v AMN [2022] QDC 2411 citation
1

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