WAJ v CRA[2021] QDC 85

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 19 June 2020 the respondent and the appellant appeared before a Magistrate at Noosa. The respondent, then represented by counsel and solicitor, sought a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’). The appellant, who was also then represented by counsel and solicitor, opposed the order. After hearing evidence the Magistrate found that the appellant had committed acts of domestic violence and made a protection order. The appellant is dissatisfied with this decision. He challenges the decision, asking for it to be set aside and the matter be remitted to the Magistrates Court for rehearing.
2. [2]
   Counsel who appeared for the appellant at the hearing before the Magistrate settled an outline of submissions, raising seven grounds of appeal. These grounds can be distilled to four:

1. The findings made by the Magistrate were not open on the evidence;
2. The Magistrate erred in taking into account allegations of domestic violence said to have occurred in New Zealand;
3. A fair-minded lay observer would reasonably apprehend the Magistrate did not bring an impartial mind to the resolution of the question to be decided; and
4. The reasons of the Magistrate were inadequate.

3. [3]
   At the hearing of the appeal, the appellant was no longer represented. He did not argue the grounds advanced in the outline filed on his behalf. Indeed, the appellant submitted that the Magistrate was correct to reach the decision he did on the material presented at the hearing. Instead, the appellant criticised the conduct of the hearing by his lawyers and claimed they had not presented relevant evidence. The appellant’s contention was that this evidence would demonstrate the respondent’s testimony should not be accepted.
4. [4]
   The respondent did not have the benefit of lawyers to respond to the appeal. She filed a short statement indicating her wish to see the protection order remain in place. The respondent also appeared in person at the hearing.
5. [5]
   Having reviewed the evidence at the hearing, the decision of the Magistrate, and the written and oral submissions of the appellant, I have concluded the appeal must be dismissed. These are my reasons for reaching that conclusion.

The application and evidence at the hearing

6. [6]
   It is appropriate to commence with a summary of the application and the evidence at the hearing. The respondent completed an application for a protection order under the DFVPA on 17 December 2019. She declared, in the present of a Justice of the Peace, that the information set out in the statement was true and correct to the best of her knowledge and belief. The respondent identified that she and the appellant had been in a relationship for eight years and that there were three children of the relationship. She described herself as a ‘stay at home mum’ who was financially dependent upon the appellant. The respondent asked for a temporary protection order to be made. Her reasons for such an order included allegations that in August 2019 she left the family home because the appellant accused her of having an affair, smashed her phone and shoved her against the wall. This was said to be a response to the respondent declining to sign passport applications for the children. She also alleged the appellant sent her abusive text messages and referred to her as a ‘slut’.
7. [7]
   In her grounds for seeking a protection order, the respondent set out the following:

– Constant abusive text messages June 2019 – Nov 2019.

– Not allowing me to FaceTime the children whilst they are with him Oct 2019 – Nov 2019.

– Financial control. Separated and left in August. Has refused to put property on the market. Had to borrow money from friends.

– Putting marijuana in a cigarette.

– Telling my son he cannot call his mother and if he does [the appellant] will tell the police and his school teacher. [The son] is very scared of going to jail – Nov 2019.

– Calling me names. Constant.

– Smashing my phone. September 2019.

– Going through my personal paperwork – constant since left.

– No allowing [the son] to call me when he wants to – constant.

– Calling me a slut. Dec 2019.

– Degrading me in front of the children. Constant.

8. [8]
   The matter came to be listed for hearing in June 2020. Directions were given as to the filing of material. The respondent’s material was late. The appellant filed affidavits on 11 June and 18 June 2020. In his first affidavit, the appellant deposed that the allegations in the application were false and vexatious. He alleged they were a response to a complaint he made to police about the respondent driving unsafely with a child in the car. He devoted five paragraphs to complaints about the respondent’s non-compliance with the directions. The respondent specifically denied that he:

1. Smashed the respondent’s phone and shoved her against the wall;
2. Spiked her cigarette with marijuana;
3. Sent her abusive text messages
4. Went through her papers; or
5. Controlled her finances.

9. [9]
   The respondent filed an affidavit on 4 June 2020. In it she gave details of the relationship and children. She alleged that she left the appellant due to ongoing domestic violence and, after leaving, the relationship further deteriorated. In particular, the respondent alleged financial abuse arising from her dependency upon the appellant. She said she had only worked for brief periods in the relationship and primarily cared for the children. The respondent detailed what she said was financial abuse perpetrated by the appellant. This included denying her access to funds, only doling out amounts for household expenditure. She also alleged the appellant monitored her use of social media.
10. [10]
    The respondent alleged specific acts of physical and verbal abuse, including the following. While living in New Zealand the appellant was drunk and smashed a bedroom door. On the appellant’s fiftieth birthday in 2016, while the family still lived in New Zealand, he became drunk and verbally abused the respondent. In June 2019, in Queensland, the appellant surreptitiously put marijuana in one of the respondent’s cigarettes. In August 2019 the appellant demanded that the respondent ‘sign passports’ for the children (sic, presumably a reference to a passport application) and, when she refused, smashed her telephone and shoved her against a wall. That night the respondent left the family home with the children. In the months that followed the appellant sent her abusive messages.
11. [11]
    On 22 December 2019 the appellant drove to the respondent’s rented home. The children were in the car. The respondent alleged that the appellant tried to force his way into the house. The respondent resisted. This happened in the presence of the children who were upset by the events. After separation, the appellant retained personal photographs and paperwork belonging to the respondent. The respondent sent a text message to the appellant in which she discussed withdrawing the application for a protection order. The appellant responded by telephoning her and yelling abuse.
12. [12]
    The appellant filed a second affidavit in which he reiterated his complaints that the respondent had not complied with the filing directions. He rejected the respondent’s allegations, repeating his denial that he smashed her telephone.
13. [13]
    At the hearing before the Magistrate, the respondent testified first. She confirmed the contents of the application and her application were true. She was then cross-examined about dates and when she provided particular information to police or others. The respondent conceded that reference in the application to her phone being smashed in September 2019 may be wrong, as she recalled it happening in August 2019. The cross-examiner attempted, without much success, to establish that the respondent had invented more recent allegations. The respondent was asked about her allegation of ‘constant abusive text messages’. She explained she did not have the messages as her phone had been broken some months before. She agreed that she did not state in her affidavit that the messages kept coming through to November 2019.
14. [14]
    The respondent agreed that she filed an affidavit in Federal Circuit Court proceedings (‘the family proceedings affidavit’) in between filing her application for a protection order and filing an affidavit in support of the application (‘the protection order affidavit’). She agreed that she did not mention being shoved into a wall in the family proceedings affidavit. She also agreed she did not mention abusive text messages from the appellant over a period from June to November 2019. The respondent explained why some matters that were later alleged in the protection order affidavit were not mentioned in the family proceedings affidavit. She said it was because the proceedings were concerned with quite different matters.
15. [15]
    The appellant testified, adopting as correct the statements made in his affidavits. In cross-examination he agreed that there was a time after the children were born that the respondent was entirely financially dependent upon the appellant. He controlled all of the income that came into the household, but denied he controlled ‘the purse strings’. While the appellant denied calling the respondent a slut, he agreed that at times he called her ‘unhygienic’. He explained that it was not intended as an insult but was a criticism of the manner in which she maintained the children’s bedrooms and clothing.
16. [16]
    The appellant was asked about the allegation that he tried to force his way into the respondent’s home in December 2019. He agreed that he ‘came close to her and, with [his] body movement, indicated that [he] was trying to get into the house’, but denied the balance of the allegations. The appellant went on to provide an account of the events, despite not having done so in his affidavits. He said that he questioned the respondent about her driving with one of the young children in the front seat. The appellant said he would report her to the police. The appellant was cross-examined about his version. He agreed that one of the children in the car became upset during the event, but attributed that to conduct of the respondent. At one point in the appellant’s testimony he said the child was upset and screaming as the respondent moved toward the car. Later he said the child was upset after the respondent opened the car door and tried to pull him out of the car.
17. [17]
    The appellant alleged the respondent was very abusive on another occasion. He appeared to accept that he had not included this allegation in his affidavits. The appellant agreed that it was the respondent who ended the relationship and that he was not happy with her decision. He suspected her of an affair and gave an account of events that led to his suspicion:

Our next door neighbours had moved out, and the house was empty next door, and a young man had moved into that house to take care of the house. This was in the summertime. And [the respondent] would be very – just with her knickers on, out in the garden with the children whilst this man was gardening or whatever, and I asked her on several occasions not to do that and I – that I found that very inappropriate. He could see her in a very revealing way, and I don’t think that’s a – a good message to send across to the next door neighbour.

18. [18]
    The appellant accepted that he later made a sarcastic remark to her about having an affair with the neighbour.
19. [19]
    The appellant was questioned about the incident alleged by the respondent where she said her phone had been smashed. The appellant was asked, ‘Did you smash a phone?’, and he responded, ‘Yes, I did, sir.’^[1] He denied he did so because he was angry about his suspicions of an affair and the respondent’s unwillingness to sign passport applications for the children. On the appellant’s account, he was upset that the respondent had lost a number of phones, so he doused the phone in water and, when she tried to grab it, threw it over the deck where it hit the ground and smashed. He said he did this for spite.
20. [20]
    The appellant also claimed that the respondent offered to discontinue the protection application if the appellant bought her a house. He agreed he had not mentioned this in his affidavits.
21. [21]
    No other witnesses were called. While there had been reference to affidavits provided by the mother of the appellant and one by the mother of the respondent, both counsel indicated they did not require these witnesses for cross-examination. The affidavit of the appellant’s mother is discussed further below.

The decision of the Magistrate

22. [22]
    The Magistrate first recited some uncontroversial facts. These were that the appellant and respondent were in a de facto relationship from 2011 until June 2019, when they separated but shared the same house until August 2019. At that time the respondent moved out. His Honour set out the three matters to be proved by the respondent before a protection order might be made. The first, that there was a relevant relationship, was not in dispute. The other matters to be proved were that the appellant had committed domestic violence and that the protection order was necessary or desirable to protect the respondent from domestic violence. His Honour referred to the extensive definition of ‘domestic violence’ in section 8 of the Act.
23. [23]
    As to the evidence of the appellant and respondent, the Magistrate said he generally preferred the evidence of the respondent as being accurate and reliable. The Magistrate was concerned by the appellant’s changing account of events when the respondent alleged he tried to get into her house in December 2019. The Magistrate thought the failure of the appellant to set out his version in the affidavit material or for it to be put to the respondent in cross-examination undermined his credibility. He concluded that the events took place in the manner described by the respondent and constituted domestic violence.
24. [24]
    In relation to the incident involving a phone, the Magistrate was satisfied that even on the appellant’s version he had committed an act of domestic violence. In any event, the Magistrate accepted the respondent’s account of this event and that it amounted to domestic violence. The Magistrate was not persuaded there had been behaviour that was ‘economically abusive’ so as to constitute domestic violence. He briefly referred to the alleged events in New Zealand. His Honour considered that he could have regard to these events, but did not appear to make any particular finding as to what occurred. The events in New Zealand do not appear to have influenced the Magistrate’s decision. There was also a brief reference to the affidavits of the mothers of the appellant and respondent. Again, the contents of the affidavits do not appear to have influenced the decision of the Magistrate to any significant degree.
25. [25]
    Based largely upon the finding about domestic violence in December 2019, the Magistrate was satisfied that a protection order was necessary or desirable for the protection of the respondent.

The nature of the appeal – statutory framework and legal principles

26. [26]
    The nature of an appeal against the making of a domestic violence protection order was recently considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below.

16. [16]
    The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing a notice of appeal and the start of an appeal does not affect the operation of the decision unless there is a further order of the court: see s 165 and 166 of the Act. Section 168 of the Act provides that the ‘hearing procedures’ for the appeal are:

“168  Hearing procedures

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

17. [17]
    Section 169 of the Act provides that the powers of the appellate court are:

“169  Powers of appellate court

1. (1)
   In deciding an appeal, the appellate court may—

   1. confirm the decision appealed against; or
   2. vary the decision appealed against; or
   3. set aside the decision and substitute another decision; or
   4. set aside the decision appealed against and remit the matter to the court that made the decision.
2. (2)
   The decision of the appellate court upon an appeal shall be final and conclusive.”

18. [18]
    An appeal under s 168(1) of the Act is by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: see Fox v Percy (2003) 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for further evidence to be relied on: see Glover at [76]. The exercise of the discretion under s 168(2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13]. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of the surrounding provisions relating to the appeal and the Act as a whole including its main objects (see s 3), the interpretation that best achieves the purpose of the Act is that the discretion in s 168(2) is engaged when good reason is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include “that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”: see s 4(1) of the Act.

27. [27]
    One other provision of the Act should be mentioned. Section 145 provides that a court hearing an application for a protection order is not bound by the ‘rules of evidence’ or ‘any practices or procedures applying to courts of record’. As well, the court need only be satisfied of a matter on the balance of probabilities.
28. [28]
    Because the appellant wished to refer to evidence that was not before the Magistrate, it is appropriate to say something more about the circumstances where this Court might receive evidence when determining an appeal against the making of a protection order. As Moynihan QC DCJ observed, the legislation provides that an appeal is to be decided on the evidence and proceedings at first instance. The reception, on an appeal, of evidence that was not before the Magistrate is exceptional. Guidance as to when it is appropriate to receive such evidence may be found in the approach of the common law to ‘fresh’ and ‘new’ evidence. The distinction between fresh and new evidence is important. In R v Spina [2012] QCA 179, Mc Murdo P stated (at [32], citations omitted):

Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.

29. [29]
    While her Honour’s observations related to criminal proceedings, they are apposite here. Parties to any proceeding should generally be held to their conduct at first instance. An appeal by way of rehearing is not to be regarded as an opportunity for a disappointed litigant to try a different approach to the one that failed at first instance. Before a party would be permitted to rely upon new evidence (that is, evidence available at the hearing at first instance), it would usually be necessary for the party to show that the evidence compels the conclusion that the decision at first instance was wrong. In other words, new evidence will only be received where it demonstrates there has been a miscarriage of justice. In the case of fresh evidence the barrier to admission may be easier to overcome.

The grounds of appeal – new evidence

30. [30]
    With this in mind, it is appropriate to first deal with the complaint of the appellant about the conduct of the hearing. The appellant asserted that his lawyers did not present relevant evidence at the hearing. Part of this was said to be the affidavit of the appellant’s mother. As the transcript of the hearing at first instance shows, the affidavit was referred to in the proceedings. The respondent’s counsel confirmed at the end of the appellant’s evidence that he did not require the appellant’s mother for cross-examination. It is apparent this evidence was before the Magistrate. It was not mentioned in the closing submissions of the appellant’s counsel or by the Magistrate in his decision. The simple explanation for this is that the evidence did not assist the appellant. In her affidavit the appellant’s mother stated that she resided in Germany for much of the relevant period. She said she visited Australia for about four months in late 2018 to early 2019 and that the appellant and respondent lived with her in Germany at some earlier time. The appellant’s mother did not observe abusive behaviour at that time. This evidence was not apt to contradict the respondent’s allegations, which largely concerned a period later in 2019.
31. [31]
    The appellant’s mother did refer to being present in New Zealand for the appellant’s 50^th birthday when the respondent alleged he was drunk and abusive. The appellant’s mother stated she did not see the appellant drunk or abusive. As I have noted, the Magistrate did not make a finding about the allegations said to have occurred in New Zealand and did not rely upon them as a basis for his decision. This evidence does not affect the decision of the Magistrate. Similarly, the statement of the appellant’s mother that in June 2020 she observed he and the respondent to have a polite conversation at a café does not contradict the evidence of the respondent or undermine the decision of the Magistrate. Politeness in public is not inconsistent with an allegation that domestic violence had been committed in the past. In any event, this was evidence before the Magistrate and the appellant’s complaint that it was withheld cannot be sustained.
32. [32]
    The other evidence upon which the appellant wished to rely concerned the observations of other people of polite or courteous interactions between the appellant and respondent. The appellant accepted that this evidence was, or would have been, available to him at the time of the hearing at first instance. While the material was not provided to the Court on the appeal, it was described to me by the appellant. In my view, the evidence would have been of little consequence. Observations of polite behaviour in public or social settings would have achieved little to undermine the respondent’s claims of domestic abuse. It is the nature of domestic violence that it most often occurs in private settings. The material referred to by the appellant does not suggest the decision of the Magistrate was wrong. It certainly would not demonstrate that respondent’s evidence could not be accepted. It would be inappropriate to have regard to this material for the purposes of determining the appeal.

The grounds of appeal – written submissions

33. [33]
    As noted, the appellant did not argue the grounds of appeal identified in the written submission filed on his behalf. However, it is still appropriate to deal with these complaints. They can be distilled to four and I will deal with each in turn.

Were the findings of the Magistrate open on the evidence?

34. [34]
    This complaint may be dealt with briefly. The respondent testified, in her affidavit and evidence, about matters that would constitute domestic violence. It is to be remembered that the Magistrate was only required to be satisfied it was more probable than not that domestic violence had occurred. While there were criticisms of what were said to be inconsistencies in her testimony, these were not such as to compel the Magistrate to reject her evidence. She gave a sufficient explanation for the inconsistencies: that the respondent was not assisted by a lawyer when preparing her application and the different purposes for which affidavits were prepared in proceedings in the Federal Circuit Court and the protection order application. Her evidence was contradicted by the appellant, but there were good reasons for rejecting the appellant’s testimony. It is sufficient to identify two such reasons. First, in relation to the incident in December 2019 when the appellant was alleged to have tried to enter the respondent’s home, he said nothing of this in his affidavit material. Apart from the bland suggestion that the appellant had not been ‘domestically violent’ toward the respondent, nothing of any substance was put to the respondent by way of challenging her version of this event. Yet when the appellant testified he gave a detailed version of what he said happened on that occasion. This included contradictory evidence about when and how one of the children came to be crying. The second reason relates to the incident where the respondent said the appellant smashed her phone. In his affidavit material the appellant simply denied this had occurred. When he testified, the appellant agreed that he had smashed a phone by running it under water then throwing it off the deck. The matters significantly undermined the appellant’s credibility.
35. [35]
    The evidence was such to permit the Magistrate to conclude that what the appellant claimed was probably not true, and that in contrast what the respondent said probably was true. There is no merit in this complaint.

Did the Magistrate err by having regard to allegation of domestic violence in New Zealand?

36. [36]
    It is enough to deal with this complaint to note that the decision of the Magistrate does not seem to have depended upon a finding that there was domestic violence in New Zealand. Even if the Magistrate had regard to these events, and was wrong to do so, that would not necessarily result in his decision being set aside.
37. [37]
    In any event, in my view the Magistrate was entitled to have regard to alleged domestic violence said to have occurred in New Zealand. There is much in the Act to support a conclusion that a Court may have regard to domestic violence, wherever it is said to have occurred, to decide if a protection order should be made. The objects of the Act are expressed broadly in section 3:

3  Main objects

1. (1)
   The main objects of this Act are—

   1. to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and
   2. to prevent or reduce domestic violence and the exposure of children to domestic violence; and
   3. to ensure that people who commit domestic violence are held accountable for their actions.
2. (2)
   The objects are to be achieved mainly by—

   1. allowing a court to make a domestic violence order to provide protection against further domestic violence; and
   2. giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and
   3. imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence.

38. [38]
    This provision is followed in section 4 by the principles for administering the Act. Again, the terms of the section are broad and not limiting. The principles emphasise the civil nature of proceedings under the Act, in contrast to criminal proceedings. The definition of ‘domestic violence’ in section 8 contains no words suggesting it is limited to acts that occur in Queensland. A Queensland court is given jurisdiction to hear and decide any application made under the Act by section 136. Pursuant to section 37, a protection order may be made if the court is satisfied, among other things, that ‘the respondent has committed domestic violence against the aggrieved’. Again, the language of the section does not imply it is limited to domestic violence that happened in Queensland.
39. [39]
    As well, part 6 of the Act is concerned with national, and international, recognition of domestic violence orders. Section 176A provides, in part:

176A  Interstate and foreign DVOs are recognised interstate orders

1. (1)
   Each of the following is a recognised interstate order—

   1. (a)
      an interstate order made in a participating jurisdiction;

2. (b)
   a registered foreign order registered in a participating jurisdiction.

40. [40]
    As well, in a perhaps unintentional nod to Clause 6 of the Australian Constitution, Part 6, Division 4 provides for the registration and recognition, under the ‘national scheme’, of equivalent orders made in New Zealand. Once registered, a New Zealand order may be varied or revoked by a Queensland Court. This part of the legislation evidences a parliamentary intention that the scheme should work as seamlessly as possible throughout Australia and New Zealand.
41. [41]
    Finally, the provision of the Act relieving the Court from the rules of evidence and other practices and procedures suggests the legislation is intended to be implemented without undue deference to formal process.
42. [42]
    For these reasons I would conclude that the Act does not prohibit reliance upon domestic violence that occurs outside of Queensland. If the Magistrate did rely upon domestic violence occurring in New Zealand, he was not in error to do so.

Bias?

43. [43]
    The appellant makes no allegation of actual bias. Instead he alleges that a fair-minded lay observer would reasonably apprehend the Magistrate might not bring an impartial mind to the resolution of the question to be decided.^[2] To support this allegation the appellant submits that the Magistrate:

1. (1)
   Was dismissive of ‘issues of fairness’ raised by the appellant concerning the late filing of material by the respondent;
2. (2)
   Interfered with the cross-examination of the respondent by the appellant’s counsel; and
3. (3)
   Unfairly treated the appellant’s evidence.

44. [44]
    In my view, each of these claims is without substance. As to the first, when the appellant’s counsel raised the late filing of the respondent, the Magistrate asked if he wanted an adjournment. The appellant’s counsel said he did not and agreed that the matter should be heard. In offering an adjournment as a remedy, the Magistrate acted fairly and in accordance with established principles. Having chosen to proceed with the hearing, the appellant cannot now complain that he has been treated unfairly. The claim of improper interference in cross-examination is not borne out by an examination of the transcript. On occasions the Magistrate interrupted counsel to allow the witness to finish answer. On another occasion the Magistrate intervened when counsel asked a question with about 84 words and several distinct propositions.^[3] At times he queried the relevance of a question. But there is nothing that would cause a fair-minded lay observer to suspect bias on the part of the Magistrate.
45. [45]
    In relation to the appellant’s evidence, on some occasions the Magistrate expressed what may have been frustration at what he perceived were unresponsive answers to questions. If there was frustration, it was expressed in mild terms, and was the product of the manner in which the appellant testified. On my reading of the transcript there were many occasions when the appellant gave discursive or unresponsive answers. It is understandable that the Magistrate, who was required to decide the matter, wished to have the benefit of clear answers to the questions put in cross-examination. He did so by seeking clarification in a manner that was sometimes firm, but not unfair. No fair-minded lay person observing the proceedings could have concluded the Magistrate was showing bias against the appellant.
46. [46]
    There is no substance in this complaint.

Were the reasons of the Magistrate adequate?

47. [47]
    In claiming the Magistrate’s reasons were inadequate, the appellant principally criticises the brevity of the reasons. It has long been recognised that a court from which an appeal lies must give adequate reasons for its decision, and a failure to give sufficient reasons constitutes an error of law.^[4] The reasons, though, need not be prolix. What is required will depend upon the nature of the issues for determination.^[5]
48. [48]
    Here the evidence was short and the issues concise. The Magistrate had to determine if the respondent’s evidence established that domestic violence had occurred and, if so, whether it was necessary or desirable to make a protection order. The answer to the first question depended entirely upon an assessment of the two witnesses. The Magistrate explained why he preferred the evidence of the respondent and why that led him to conclude there had been domestic violence. Having reached this conclusion, the Magistrate went on to identify that the shared custody of the children meant there would be a need for some contact between the appellant and respondent in the future. The Magistrate reasoned that the domestic violence he found had occurred meant, in these circumstances, there was a need for an order to protect the respondent.
49. [49]
    In this way, the Magistrate articulated the essential grounds upon which his decision was reached.^[6] There is no merit in this ground.

Conclusion

50. [50]
    The appellant has not made out any of the grounds of appeal. I am not persuaded there was any error made by the Magistrate in the hearing at first instance. Having considered the evidence for myself, I am satisfied that it established the parties were in a relevant relationship, that the appellant committed domestic violence, and that a protection order was necessary or desirable to protect the respondent. It follows that the appeal must be dismissed.
51. [51]
    Neither the respondent nor the appellant had lawyers for the appeal. As such it is not appropriate to make an order as to costs.