TMG v Commissioner of Police[2021] QDC 286

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 22 February 2021, the learned Magistrate made a Protection Order in favour of the second respondent against the appellant. The Protection Order was in modest terms. It was limited to requiring the appellant to be of good behaviour to the first respondent and was imposed for only three years.  
2. [2]
   The appellant was the female partner of the second respondent (the male partner).  The application was brought by the first respondent Commissioner following acts of domestic violence alleged to be committed by the female partner against the male partner on 3 February 2019. The application was brought on the same day as the complaint by the male partner and signed by the officer who attended the call by the male partner on that day, after that officer had also heard the female partner’s version of events.^[1]
3. [3]
   The only evidence before his Honour was the evidence of the two police officers who attended. Each prepared affidavits which contained both original and hearsay evidence.  
4. [4]
   There was no evidence from the female partner at the hearing and there was no sworn affidavit from the male partner.
5. [5]
   The procedural history of the application is important to the appeal.  
6. [6]
   A Temporary Protection Order was made on the first return of the application on 7 February 2019, nearly three years ago. The first file endorsement is dated by hand as 7 February 2018, so that must have been an error, common at the beginning of a new year. It does seem to explain, however, that his Honour observed the matter began on 7 February 2018. The appellant relies upon this as an error of fact affecting his Honour’s decision not to permit further evidence to be led which had not been provided in accordance with the directions made in the proceeding. It does seem, from later observations in his reasons, that his Honour has proceeded on the mistaken basis that the matter had been on foot for three years rather than two, although, in my view, the difference is not material in this case.
7. [7]
   There was an application for leave to file late evidence. That application arose in the context where the procedural history of the matter was such that between February 2019 and November 2020, there were continual adjournments so that the female partner, through her litigation guardian, would be able to put on affidavit evidence about her capacity to understand a Protection Order arising from mental health and other challenges that she had.
8. [8]
   That delayed the matter for some considerable time with no affidavits being filed.Ultimately, the Court made directions for the matter to proceed to trial in February 2021, some two years after the application was first filed. The Court directed that any evidence was to be in the form of an affidavit and filed by 22 November. The female partner did not file any evidence at that time. An extension was obtained until late January. No evidence was filed at that time.

9. [9]
   On 18 February, just one business day before the trial, the female partner sought leave to file late evidence. That evidence included primarily an expert report from her treating psychiatrist. That application was dismissed. There was no evidence, either before his Honour or before me, as to the learned Magistrate’s reasons for refusing leave.

First ground of appeal: refusal of leave to file late affidavits

10. [10]
    On the morning of the trial, 22 February, leave was sought to tender exactly the same evidence for which leave had been sought on 18 February, along with a further affidavit by the litigation guardian. His Honour referred to the history of delay and refused leave.  
11. [11]
    The first ground of appeal is that his Honour erred in not permitting this evidence to be put before the Court on the hearing of the application and that his failure to do so amounted to a breach of procedural fairness. It is convenient to deal with that ground of appeal right now.  
12. [12]
    I do not accept that his Honour erred in refusing to accept the evidence.  
13. [13]
    The primary submission put before me by counsel for the appellant was that the evidence was relevant, and strongly relevant. No other justification for receiving the evidence late was identified. I agree with the submissions by Mr Fraser that a party does not have an absolute opportunity to put material before the Court. They ought to have a reasonable opportunity to put material before the Court.  
14. [14]
    His Honour’s decision was an exercise of discretion requiring error to be established on House v The King^[2] principles. Not only was error not shown, but I agree that his Honour was right to refuse leave.  
15. [15]
    I take that view for these reasons. 

    1. (a)
       First, the attempt to tender fresh evidence was made one clear business day before the trial, for leave to lead the evidence. The attempt to do so again on the morning of the trial seemed to me to be an abuse of process in that it involved agitating the same interlocutory application just one business day later and seemingly on the same material and with no explanation as to why that should be permitted.^[3] It should have really been the starting point of a submission that that had already been tried once, and a submission made as to why it was not an abuse of process to try again. I note, in that regard though, that there was additional evidence that was sought to be tendered, but the evidence included the evidence that was attempted to be put before the Court on the last occasion on 18 February.  And in any event, one wonders why the statement from the litigation guardian was not available for the leave application on 18 February.

2. (b)
   Second, in this particular case, it is to be noted that the delays in the trial for at least a year (probably longer) were to give the female partner the opportunity to file exactly the kind of evidence that was sought to be tendered at the last minute. Those delays prevented what was otherwise a very simple matter from getting to a hearing for a considerable period. Directions were made with no objection from the female partner for material to be filed in November, and again in January, and as I said, notice of the attempt to put this material on was given for the first time just one clear day before trial.

16. [16]
    Parliament has chosen to create and designate claims for Protection Orders as civil proceedings. (The following discussion expands on the brief comments made on this issue in my ex tempore judgment.)  Rule 5 Domestic and Family Protection Rules 2014 (Qld) (DV Rules) provides:

5 Main objects of rules

3. (1)
   The main objects of these rules are—

1. (a)
   to allow a DFVP court to decide a proceeding in a way that—

2. (i)
   is consistent with the main objects of the DFVP Act; and

2. (ii)
   resolves a proceeding under that Act with a minimum of expense; and
3. (iii)
   facilitates the just and expeditious resolution of the issues relevant to the proceeding; and

2. (b)
   to provide for the practice and procedure of a DFVP court for a proceeding.

2. (2)
   These rules are to be applied by DFVP courts with the objective of avoiding undue delay, expense and technicality and facilitating the objects of these rules and the DFVP Act.
3. (3)
   A party to a proceeding undertakes to the DFVP court and to the other parties to proceed in an expeditious way.

17. [17]
    This Rule is in analogous terms to Rule 5 Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and other similar Rules regulating civil procedure throughout the Commonwealth. In this context, observations made by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 are apposite. The majority (Gummow, Hayne, Crennan, Kiefel and Bell JJ) noted:

[98]  Of course, a just resolution of proceedings remains the paramount purpose …; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

18. [18]
    Their Honours went on:

    [99]   In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun, which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh

[100]  The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust French J said of Bowen LJ's statements in Cropper v Smith:

"… That may well have been so at one time, but it is no longer true today … Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary." 

... 

102. [102]
     The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment. 
103. [103]
     The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.

19. [19]
    Their Honours further observed:

112. [112]
     A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
113. [113]
     In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

20. [20]
    These last observations apply equally to the situation where a party seeks to file further evidence in a hearing, in breach of programming orders designed to facilitate the efficient conduct of the proceedings under Rule 5 DV Act. The importance which Courts ought to attach to the requirements of Rule 5 and cognate provisions was emphasised again by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at 321, where the Court held:

[51]  In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice. 

21. [21]
    I note that one distinction between Rule 5 DV Rules and Rule 5 UCPR and cognate rules in other jurisdictions, is the express reference in Rule 5 DV Act to the main objects of the DV Rules as including consistency with the main objects of the Domestic and Family Violence Protection Act 2012 (Qld) (DV Act). It could scarcely be doubted that such a consideration would be implied, if not expressly stated. That reference directs attention to s. 3(1) DV Act which provides:

(1) The main objects of this Act are—

1. (a)
   to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and
2. (b)
   to prevent or reduce domestic violence and the exposure of children to domestic violence; and
3. (c)
   to ensure that people who commit domestic violence are held accountable for their actions.

22. [22]
    Those considerations should be kept in mind when applying Rule 5 DV Rules.   How they will impact where a party seeks to tender evidence on the morning of the trial will depend on the circumstances of the particular case. However, those considerations do not always favour giving leave to a party, in substantial breach of programming orders, to tender further evidence at the last moment before trial.  Granting leave in such circumstances can undermine both the objects of the DV Act, as well as the objects of the DV Rules.    
23. [23]
    The implications for the parties to an application for a Protection Order of the introduction of evidence at the last moment can be quite significant. It is well-known that those lists are very busy and if a matter is adjourned, which requires one or more full days for hearing, it might not get back on for hearing for many months. Further, the party on whom the evidence is served may unfairly be put in the position of having to accept the late tender when that party really should seek an adjournment to deal with it, a possibility open to abuse by parties to proceedings under the DV Act seeking to delay final determination (either to extend a temporary order or avoid a final order, or for some collateral purpose associated with Family Law proceedings or the like).

24. [24]
    Finally, it is well-known that many parties to proceedings have limited resources.  It is doubtful there is any power in the Magistrates Court to make a costs order for costs thrown away by an adjournment,^[4] and even if there is, it will often be of no utility, given the limited resources of many parties to DV Act proceedings. 
25. [25]
    His Honour might be thought to have erred in not inviting the police to give reasons for the opposition to the application and, in particular, whether they would need an adjournment to deal with it. In Eustace v Dubrava [2021] QCA 249, the Court of Appeal recently reiterated the importance of considering whether, even if an adjournment is required to deal with late changes, it is possible to accommodate the prejudice to the other party by an adjournment accompanied by payment of costs thrown away. The circumstances of that case (where the learned trial Judge refused leave but nonetheless adjourned the trial for other reasons) were quite different from this case. One might reasonably infer in this case, however, that the reason for the opposition was the prospect of adjournment to consider the new evidence and I am willing to assume that on this occasion.  
26. [26]
    Nonetheless, it is a salutary practice for a Judge refusing leave to file late material to expressly enquire as to the attitude of the other party and the reasons for opposing leave, if that is the position adopted. Nothing in this judgment is intended to direct that any fixed or presumed position of refusal of leave should be adopted by trial Courts hearing these matters. Each application must be considered on its merits.
27. [27]
    In any event, even if his Honour should have expressly considered the potential impact of an adjournment of the trial and erred in not doing so, I do not consider that his Honour’s exercise of discretion was wrong in any case, in the circumstances of the reasons for the delay in the proceeding, the lateness of the material, the likelihood of an adjournment of the trial if the material had been permitted, and the consequence of further delay.  
28. [28]
    The point is, however, largely moot because, when regard is had to the material sought to be tendered, it can be seen that it does not much assist the appellant. In oral argument, it was made clear (see paragraph [30] below) that the only challenge to the substantive decision by his Honour in the appeal was in respect of his Honour’s conclusion on the necessary or desirable element of the threshold conditions necessary to enliven the jurisdiction to make an order.   
29. [29]
    The expert evidence of Dr Arthur, which the appellant sought to tender before his Honour, seemed to me to reinforce the case that it would be necessary or desirable to make the order, because Dr Arthur explained that although the appellant could understand a simple order (and this was a simple order), she had trouble controlling her emotions when upset. It seemed to me that that material rather suggested that she could well-understand that she should not put herself in the position where she might not be of good behaviour. But in any event, the Court cannot have it both ways. Leave to tender Dr Arthur’s evidence was refused and I will not have regard to it for any other purpose than to inform my consideration of the challenge to his Honour’s decision to refuse to accept the affidavits.  

No challenge to finding of acts of domestic violence

30. [30]
    I had thought there was a challenge to his Honour’s finding of an act of domestic violence. Ms Reece (who appeared for the appellant) disavowed that contention, although having analysed the appeal record under the mistaken belief that it was in play, I agree with his Honour’s decision on that issue.  

Second ground of appeal: alleged non-disclosure

31. [31]
    The next ground of appeal related to the Commissioner’s non-disclosure of a witness statement of the male partner (who was the aggrieved at trial) and nondisclosure of the attempts to get the aggrieved to attend at trial. I do not need to go into this in great detail, because the evidence that was identified did not have any relevance to whether a case was made out that it was necessary or desirable to make the Protection Order. 
32. [32]
    The contention did raise a point of principle, however, as to whether there was any

legal obligation on the Commissioner to have disclosed such evidence if relevant. Having analysed the DV Act and DV Rules, I was unable to identify any basis upon which the Commissioner would have been required to disclose the witness statement or documents relating to attempts to get the aggrieved to attend the trial.  The DV Rules only contemplate disclosure in an application for a Protection Order on specific application by a party. No such application was made.

33. [33]
    Beyond that, the only way the Commissioner would have such an obligation that I could identify was if the Commissioner had an obligation analogous to that which applies to prosecutors in criminal proceedings.  
34. [34]
    I looked to the DV Act itself for a statutory basis for implying such an obligation in civil proceedings under that Act. Section 143(a) DV Act picks up procedures in the Justices Act 1886 (Qld) in the hearing of Protection Orders. Section 41 of the Justices Act provides that the laws relating to prosecution disclosure for a “relevant proceeding”, as defined in the Criminal Code 1899 (Qld), apply in the Magistrates Court in matters under the Justices Act. If one goes to the definitions provision in the Code, not surprisingly, a “relevant proceeding” is a criminal proceeding. I can see no basis in the DV Act for the conclusion that Parliament has directed that prosecution disclosure obligations are imposed on the Commissioner when the police bring domestic violence proceedings as applicant, or when they represent an aggrieved on such an application.  

35. [35]
    The obligation of a prosecutor to disclose relevant material can arise at common law. That obligation is generally confined to criminal proceedings in like manner to the Code provisions. The considerations which underpin the imposition of such a duty are summarised in Halsbury’s Laws of Australia at [250-5705] as follows: 

As prosecuting counsel in a criminal trial represents the State, the law expects that, in performing his or her function of presenting the case against an accused, he or she will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one. 

The duty of fairness and impartiality can be justified on the ground that a prosecutor represents not an ordinary party but the organised community committed to the fair trial of criminal accusations and the avoidance of miscarriages of justice. It follows that the duty of the prosecutor in this regard cannot be construed as a duty owed to the accused personally. A further reason why prosecuting lawyers owe a duty of fairness and impartiality is that their position, in representing the State, gives their words the stamp of integrity and fairness. (footnotes omitted)

36. [36]
    The role of the police as a party to civil domestic violence proceedings does not appear to engage those considerations. The police appear as applicant in their own right and/or on behalf of the aggrieved in inter partes civil litigation. They do not represent the State.  
37. [37]
    It might be thought also that although the police represent in some respects the community, they do so for the broad purposes of the DV Act, rather than the narrow purpose of prosecuting criminal accusations. The analogy with the criminal process is weak. Further, given that Parliament has deliberately chosen a civil proceeding process for Protection Orders, and has expressly provided for disclosure only in criminal proceedings, it would seem to me that clearly the better view is that the common law obligations either do not apply or would be excluded by implication by the terms of the Act.
38. [38]
    That is not to say there is no obligation on police officers to conduct civil domestic violence proceedings fairly. However, that obligation arises at an anterior point to the conduct of civil proceedings seeking a Protection Order. It arises in the investigation phase where the police are required to investigate allegations of domestic violence and to form reasonable views about what should be done about them as specified in s. 100 and in other provisions of the Act. For example, s. 100 provides: 

100 Police officer must investigate domestic violence 

1. (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. (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. to take any action under subsection (3) to protect a person from further domestic violence; and 
   2. 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. (3)
   The police officer may do any of the following— 

   1. apply to a court for a protection order under part 3, division 1;  
   2. apply to a court for a variation of a domestic violence order under part 3, division 10;
   3. 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. 

4. (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. 

4. (e)
   apply to a magistrate for a temporary protection order under division 4; 

4. (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 

4. (4)
   If, after the investigation, the police officer decides not to take any action, the police officer must make a written record of the police officer’s reasons for not taking any action. 
5. (5)
   The police commissioner must keep the written record in hard copy or electronic form. 
6. (6)
   This section does not limit the responsibility of the police officer to investigate whether a criminal offence has been committed.  

39. [39]
    Ultimately, it is unnecessary finally to decide this point because the matters that were said to have been the object of a failure to disclose could not impact on the only substantive issue in dispute, which is whether it was necessary or desirable to make the order. To that I now turn.
40. [40]
    Before doing so, however, I note that in the above analysis, I have spoken of the Commissioner’s duties as a party to a domestic violence proceeding. Strictly speaking, the officer was the applicant in this application pursuant to s. 25(1)(c) DV Act. Though the identification of the officer with the Commissioner seems to be an uncontentious device on this occasion, it might give rise to issues in the future where obligations of disclosure attach to parties to an application.  

Third ground of appeal: Necessary or desirable

41. [41]
    The appellant contends that his Honour erred in being satisfied of the requirements of s. 37(1)(c) DV Act. In FLC v MRT [2021] QDC 264, I agreed with the observation from McGill DCJ SC in GKE v EUT [2014] QDC 248 in relation to s. 37(1)(c) DV Act as follows:^[5]

30. [30]
    The Magistrate adopted a number of propositions which had previously been stated in another decision of the same Magistrate. The first of these noted the distinction between an order being “necessary” and an order being “desirable”, although the illustration of an instance where an order was thought to be “necessary” is not I think helpful, in circumstances where the focus should be on the prospect of future domestic violence otherwise occurring, rather than holding the respondent accountable for domestic violence. That seems to be tying the justification for the order to prior conduct. There are other mechanisms in the Act for giving effect to the purpose of holding perpetrators accountable. 
31. [31]
    In my opinion it is clear that this wording was adopted because of concern that, if the requirement had been to show that it was necessary, that might have proved a more stringent requirement than the legislature had intended. I would expect a greater level of concern about the risk of future domestic violence, both as to the prospect of it otherwise occurring and to the reasonably anticipated seriousness of such violence, to be relevant to the issue of whether such an order was necessary to protect the aggrieved from domestic violence, and even if that level of satisfaction is not achieved, the court may be satisfied that there is a sufficient risk of future violence, of sufficient severity, to make it desirable for such an order to be made for the protection of the aggrieved from domestic violence.

32. [32]
    In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved. 
33. [33]
    I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future.  

42. [42]
    His Honour’s reasons on this precondition to the power to make a domestic violence order were brief. They were not necessarily deficient for that reason alone.  However, brief reasons leave one with little indication as to why it was that his Honour concluded that it was necessary or desirable to make the order. His Honour found as follows:^[6] 

…Therefore, I am satisfied that there was a relevant relationship. I’m also satisfied on the balance of probabilities that there was an act of domestic violence by the respondent herein. One would ordinarily think that three years, which it is now, of a temporary order being made with no breaches would make it less likely on the balance of probabilities that a order is necessary and desirable. I also take into account what’s been said about the respondent’s ability to understand any order. I’m not bound by any other court’s findings. With respect to alleged inability to understand matters, and having regard to the fact that he’s due – due of a – well, he has a parole release date of about the 6^th of February, did you say?

UNIDENTIFIED SPEAKER:   Eligibility, yes.

HIS HONOUR: Elibili – eligibility date. On the balance of probabilities, I find that it is necessary and desirable to make the order that’s before the court final, and that will be for a period of three years…

43. [43]
    So far as I can tell from these comments, his Honour decided the order was necessary or desirable because the male partner might be released from prison in the near future. I infer that was seen by his Honour to reduce the relevance of the good behaviour of the female partner during the Temporary Protection Order period: that is, because the male partner was in jail. I infer he was not persuaded that an order was not necessary or desirable because of a lack of potential understanding by the female partner. Neither matter was expressly stated.
44. [44]
    There was no oral evidence or other characteristics of the trial that put his Honour in a better position than I to assess the evidence for the purposes of determining this issue.^[7] However, in my opinion (and in contrast to the position with the fixed legal standards identified in s. 37(1)(a) and (b) DV Act), s. 37(1)(c) gives rise to a discretionary assessment to which the principles in House v The King apply.
45. [45]
    Even bearing in mind the limits of such an appeal, I am not persuaded, on the balance of probabilities, that an order was necessary or desirable for the following reasons (and that his Honour erred in the House v The King sense in not taking any of them into account):  

    1. (a)
       First, there had been no incidents for two years and no breaches in the Temporary Protection Order period.  
    2. (b)
       Second, there was no suggestion, on the evidence before his Honour, of the relationship continuing. I note that when appearing today, the male partner indicated there might be some basis for that to occur, but there was no such evidence before his Honour, and having been separated for such a long time, one might think there might be more optimism than expectation in that statement.

3. (c)
   Third, the only evidence before his Honour that could sustain the conclusion that an order was required, in my view, was the bare act of the past act of domestic violence, and a turbulent relationship for 18 months before then.  
4. (d)
   Fourth, as Mr Fraser (who appeared for the Commissioner) correctly submitted, there is not any necessary basis for either party to continue to interact. There is no common property, there are no Family Court proceedings, there are no children. Added to that is the observation by the male partner that the guardian of the female partner is firmly against any further contact. It is reasonable to assume, even if the female partner was interested in doing so, that the guardian would exercise her influence to prevent it occurring.

46. [46]
    Ultimately, the Court must be persuaded on material before it that, on the balance of probabilities, it is necessary and desirable for the protection of the male partner in this case that an order be made and, in my view, there was insufficient evidence that could sustain that conclusion, even allowing for the lesser standard embodied in the word “desirable”. 
47. [47]
    For that reason only, I set aside the domestic violence order made by his Honour.  To be clear, I have not set aside his Honour’s order on the basis that he erred in concluding that there were acts of domestic violence proved against the male partner.