TJB v CRC[2022] QDC 67

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant appeals the decision of the Toowoomba Magistrates Court made on 25 August 2021 to make a domestic violence order (“DVO”) against him in favour of the respondent.
2. [2]
   Section 168(2) of the Domestic and Family Violence Protection Act 2012 (Q) (“DVA”) allows this court to hear the matter de novo, but this is not sought by the appellant.
3. [3]
   The appellant seeks a rehearing alleging the Magistrate made a number of errors in this case. However, it is further submitted the DVO should be removed or alternatively the matter should be remitted for rehearing.
4. [4]
   In a rehearing the appeal court is to conduct a real review of the evidence and of the Judge’s reasons for judgment to determine whether the Judge erred in fact or law. If the Court of Appeal concludes the Judge erred in fact it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But an appeal court should not interfere with findings of fact unless they are clearly demonstrated to be wrong.^[1]     
5. [5]
   An appellate court on a rehearing can substitute its own decision based on the facts and the law as they then stand.^[2] Indeed section 169 of the DVA contemplates this.

Evidence before the Magistrate

Respondent’s case

CRC

6. [6]
   CRC, the respondent swore an affidavit in which she said she was 31 years of age. Her former partner was TJB, the appellant. They commenced living together around February 2017 and resided at his property in Toowoomba. They separated finally on 1 January 2021.
7. [7]
   On 12 February 2021, she filed an application for a protection order in the Ipswich Magistrates Court. A temporary protection order was made on 15 February 2021. In this order, the appellant was prohibited from or remaining or attempting to enter or approach within 100 metres of where her parents lived or where she lived. He was also prohibited from attempting to locate or asking someone to locate her or her parents.
8. [8]
   The appellant and she owned a property located at Torrens Creek. This property was purchased by her and her former husband PR in December 2014. She retained the Torres Creek property as part of the property settlement. TJB became an owner of Torrens Creek on or about 21 April 2020. The Torrens Creek property is a farming property predominantly used for running cattle. She was intimately involved in running the Torrens Creek property and frequently visited to check on the livestock, but this became increasingly difficult as TJB demanded to know exactly and precisely what business she was carrying out when she was there. He would also demand that he attend the property with her on all occasions. He frequently spoke negatively about the Torrens Creek property. Torrens Creek was her principal place of residence. Her work though was based in Mackay which is about seven hours drive from Torrens Creek. She always travelled up to the Torrens Creek property for weekends, holidays and when she was not working.
9. [9]
   On 2 January 2021, TJB and she were having a discussion about their separation and the removal of his property from the Torrens Creek property. He became increasingly aggressive and irate and his conduct spiralled out of control. He picked up her Remington 308 gun and said he was going to shoot himself. He said that she would get the blame and go to jail and never live it down. The respondent called the police and whilst on the phone he waved the gun around and then threw it out onto the verandah. He then punched one of several screen windows causing it to come away from the frame. He also threw her belongings around her bedroom, emptied the draws, threw her clothes and belongings on the floor and pushed the furniture around onto its side. The respondent was scared that she would be hurt or TJB would cause significant damage.
10. [10]
    Police finally arrived and suggested a protection order be imposed. TJB was glaring at her, she felt intimidated by this and declined the police offer. Police spoke to TJB and recommended he leave and he said he would leave the next morning. Once the police left, he started berating her about what she told the police.
11. [11]
    Later that evening, TJB would not sleep in a separate bed or bedroom and insisted on sleeping in the same bed as her. She was terrified of him and did not know what to do. The following morning, he refused to leave. Ultimately, the respondent left to travel to her parent’s residence and she saw TJB follow her and get into his truck. He followed her right up until she reached her parents’ house at Greenmount. She was terrified by his actions and felt intimidated.
12. [12]
    In the months following her separation from TJB, she spent more and more time at the property. She says that she was fearful of what TJB might do to her on an isolated property. In May 2021, she became aware that TJB had installed a camera in one of the trees on the property. She suspected this as third parties told her that TJB told them about various activities on the property.
13. [13]
    In May 2021, she arranged for about 76 cattle to be agisted. Fifteen minutes after the arrival, TJB called the stock agent, the owner of the cattle and the delivery driver, yelling abuse and making various threats towards them about the agistment. The respondent holds concerns about her personal safety in attending the Torrens Creek property and damage TJB might cause.
14. [14]
    The respondent sets out how her father and his friend travelled to the Torrens Creek property on 22 May 2021 and found a camera and solar panel in a tree about 25 feet off the ground facing towards the homestead and the driveaway. Police were informed about this.
15. [15]
    On 16 May 2021, the respondent received a telephone call from her mother who told her that TJB had attended the property located between their residence and a nearby residence at Greenmount. At 10.20pm on 16 May 2021, she heard the sound of a truck which she thought was TJB’s. The truck was there and photographs were taken. On 17 May 2021, the respondent’s mother informed her that TJB had driven past their residence and her brother’s residence and had stopped at a property nearby theirs at Greenmount. Satellite map images were tendered as Exhibit CC06. The respondent became distressed and frightened about this. TJB lives about 15 hours from the Torrens Creek property and 11 hours’ drive from her parents and had no reason to be in close proximity to either property.
16. [16]
    When the respondent started her business in Mackay TJB would call her between each lesson and if she did not answer he would call over and over again. Call logs were produced as Exhibit CC07. Ultimately, the respondent blocked him from her personal Facebook page. In addition to TJB’s harassment via electronic means he would hound her and berate her. He would call her “slut” and a “cunt”. On 3 January 2021, after she went to her parent’s house, she took a tranquiliser gun with her.
17. [17]
    Following separation TJB has repeatedly contacted her mother despite her asking him to cease. He has made threatening and intimidating comments to the mother.
18. [18]
    During the relationship he was cruel towards her on many occasions. Aside from calling her slut and cunt he made comments such as “you’ll be able to sit with your legs wide open all the time now.” “Yep you’ll be able to show everyone your vagina probably what you used to do” and “that’s how you get blokes see. You could have everyone because you’ve got a vagina that’s what you do” and “that’s why you love driving around in your driver trainer car with fucking 16 and 18 year olds it turns you on all day.” He insinuated that she had threesomes with local property owners. At the time of the separation, he threatened to shoot himself and threatened to attend the Torrens Creek property and her parent’s residence.
19. [19]
    He had installed at least one camera of the Torrens Creek property. He had become abusive towards third parties. He blamed her for his issues with his body including an inability to urinate. He attempted to isolate her from her family and friends
20. [20]
    Ultimately, she sought a final protection order against TJB as she was fearful for her life, scared and anxious.
21. [21]
    The respondent gave oral evidence at the hearing on 19 July 2021.
22. [22]
    In evidence the respondent said that the DV case had nothing to do with the property settlement. The reason for bringing the application for the domestic violence was because she was fearful and wanted to be left alone.^[3] At no stage did the appellant tell him that he had installed a security camera at her property. As to the property, the closest neighbour is about 18 kilometres away. The nearest police station is about 40 kilometres away. She lives at the property whenever she’s not working depending on work commitments.^[4] No one else lives with her at the property.
23. [23]
    In cross-examination, she said that TJB had an interest in the property and she informed him numerous times that the land was to be used for agistment purposes.^[5] The profit from agistments was going to the mortgage and other property expenses. She agreed her decision to break up with the appellant was one which she made on or about 1 January 2021. This happened before her parents left the property.
24. [24]
    She confirmed in her evidence that on 2 January 2021 the appellant upended the bed, punched the window, took off with the gun, said he was going to kill himself and she’d spend the rest of her life in jail.^[6] This triggered her to call 000. It took about two hours for the police to turn up.^[7] She confirmed that the gun was waved in her direction.^[8] She had a concern he was going to shoot her.^[9] She confirmed that when the police asked her about taking the protection order the appellant was glaring at her and she agreed she told the police she wasn’t fearful of the appellant.^[10] She agreed that she told the police she might not submit her private DV application depending on whether they came to a solicitor’s agreement on Monday for separation and deliberation on property ownership.^[11] She said it was agreed that the appellant would pack up his stuff and leave the following morning and if he didn’t leave she was to call police but he refused to leave the following morning.^[12] She left first and he followed her. She went to her parent’s house to be in a place of safety.^[13] She agreed that she sent a message to the appellant showing him that she had blown her tyre at one point.^[14] It was her belief that she left the property on 3 January 2021.^[15] With respect to the flat tyre she didn’t need a hand to change it. He insisted on giving her a hand.^[16] The appellant didn’t follow her all the way to the parent’s place but stopped an hour out. On 5 January 2021, she sent a text “wait until Dad leaves and then you can pop around.” This was because he still had some property there. He came around and picked up some property.^[17] As regards to the tranquiliser gun, she agreed she wrote a text “pity you can’t stick to your agreement, you’re not getting the serial number as you have broken our agreement.”
25. [25]
    She said she ran a driver training company and also the cattle property. She also worked part time as a truck driver. After the separation she was at the Torrens Creek property much more.^[18] She disagreed that the appellant would do the lion’s share of work at the property.^[19] She agreed that during the relationship she also called the appellant names including the word “cunt”.^[20] She said that during the relationship the appellant was very controlling of her. When they were in the United States, she told the appellant the relationship was over.^[21] She agreed that she could be abusive towards the appellant leading up to January 2021 because she would stick up for herself.^[22] She denied tormenting the appellant about mental health conditions.
26. [26]
    She said there were other incidents aside from January 2021 where police were called. She often encouraged him to get a friend and go and have a drink because he needed a social life.^[23] There was one occasion when he had her up against a wall, but it wasn’t normally physically abusive, it was mental and verbal.^[24]
27. [27]
    The day after the incident on 2 January 2021 she denied that they were working or driving around the property. She was following him while he was packing his things.^[25] She did not dispute that on 10 February 2021 the appellant’s solicitor rejected a settlement offer and the application for the protection order was filed on 12 February 2021.^[26] She agreed the temporary protection order was made 15 February 2021. Since the temporary protection order was put in place she discovered that there was a camera on her property and on two occasions in May 2021 the appellant’s truck was parked near her parents place.^[27] She agreed that at that time there were cattle on the property by way of an agistment, but she hadn’t received any money yet and the appellant was fully aware of this as he’d been told in solicitor letters.^[28] She agreed that on 1 November 2017, the police were called because she was locked outside and couldn’t get her keys, phone or wallet to leave. She disconnected the fridge and there was a struggle outside and the fridge fell over.^[29]
28. [28]
    In re-examination, she said that bolts and magazines from both of her rifles were missing from her property.^[30] Also, her tablet was missing. During the holiday with the appellant in the United States it was the worst four or five weeks.^[31] She sent emails to her mum during that period of time. In one email she said she was going to get a DVO when she got home but he talked her out of it.^[32] He said he would get some help and went to a couple of counselling sessions, but he didn’t change.^[33] Whenever anyone was around they used to have a good time but as soon as they left she was interrogated.^[34] He’d previously threatened to kill himself but never had gone as far as taking the gun.^[35] After they broke up but before the domestic violence order was served on the appellant, she received another message about him killing himself.^[36]

RJC

29. [29]
    RJC, the father of the respondent, in his affidavit confirmed that in April 2021 the respondent informed him that she had arranged for an agistment on the station and cattle were scheduled to arrive on 10 May 2021.
30. [30]
    On 10 May 2021, she called him and told him she thought there was a surveillance camera installed at the station. On 21 May 2021, he and a friend travelled to the station and ultimately located the camera facing directly to the homestead and driveway. The camera had “TB” written on it inside in yellow marker. He became distressed that his movements had been tracked by his visits that year. Also, TJB’s behaviour had been upsetting. He attended one of the neighbouring properties to his residence in Greenmount on a number of occasions despite the temporary protection order preventing this. He put on the engine brakes as he drove past his property. On 17 May 2021, he saw truck tracks near his neighbour’s property. Later that day he saw TJB’s truck parked at the neighbour’s property. It was there on the morning of 18 May 2021 as well.
31. [31]
    In Christmas 2020 he and his partner spent time at the property and saw that TJB was overly and unnecessarily critical of the respondent in almost everything she did. There were other incidents in December 2018 and May 2018.
32. [32]
    RJC gave evidence that on 10 May 2021, the respondent expressed a concern that she thought there might be a camera on the station.^[37] He agreed that the camera was facing directly at the homestead and the driveway and it was in a perfect position to watch over any persons or vehicles located at the homestead.^[38] He agreed that he saw the appellant’s truck at a neighbour’s property on 17 May 2021 and it was there again on the morning of 18 May 2021.^[39] He was cross examined about a text message he sent to the appellant on 6 January 2021 about his moving his gear.^[40]

AC

33. [33]
    AC, the respondent’s brother in his affidavit says that on 16 May 2021 at about 11.20pm he was awoken by his mother calling who told him that TJB’s truck was just parked down the road. He took a video recording of the truck. He recognised the truck as TJB’s. On 17 May 2021, he was standing under his open carport and heard TJB’s truck drive up the roadway.

34. [34]
    AC gave evidence with respect to the incident on 16 May 2021, he received a phone call from his mother at about 11.20pm who said she heard a truck pull up and suspected it was the appellant’s. Later, he made a video recording of the truck and formed the opinion it was the appellant’s.^[41] He later saw the truck which he believed was the appellant’s on 17 May 2021.

BC

35. [35]
    BC, the mother of the respondent, in her affidavit confirmed that the appellant’s truck was near their premises on 16 May 2021 and 17 May 2021. Also, following the separation TJB contacted her via text message and made demands and made various offensive comments. In January and February 2021, he sent numerous text messages demanding that the respondent provide the serial number for the tranquiliser air rifle.
36. [36]
    On 19 January 2021, the appellant forwarded a text he had sent to the respondent as to reimbursement. In January 2021, he sent a number of text messages containing insults and offensive comments about the respondent.
37. [37]
    He kept trying to involve her in financial matters even though she told him to stop. She talked about witnessing the respondent losing weight and vomiting during the relationship with TJB. She talked about incidents in December 2018 and 2019. The respondent was clearly scared of the appellant.
38. [38]
    BC gave evidence that on 16 May 2021 she heard the loud sound of a truck which she thought was the appellant’s truck.^[42] She agreed that her son took the photographs of the truck.^[43] She agreed that after the separation there was an occasion where the appellant came around to her place to collect some belongings.^[44] She sent him a text about this. She agreed she left the Torrens Creek property on 1 January 2021 and found out later that the relationship had ended. She agreed that the respondent on occasions described the appellant as a cunt.^[45] She agreed that the appellant would send her text messages because he said he couldn’t get through to the daughter about property matters he sent her.^[46]
39. [39]
    In re-examination, the witness talked about how the respondent had told her the appellant was controlling.^[47]

Appellant’s case

TJB

40. [40]
    TJB, in his affidavit confirmed that he and the respondent separated on a final basis on 6 January 2021. He claimed that he had no contact with the respondent or her family since 23 February 2021. Even though he filed a cross application for a protection order, he would not pursue that application. He said that the respondent’s application for the protection order was not genuine. He pointed out a chronology in this regard.
41. [41]
    He says that he has a strong interest in the land.
42. [42]
    As to the camera on the property, he said that on 3 February 2021 he installed this before allegations of domestic violence were made. The primary motivation was to ensure there was no agistment occurring without his consent. He accepts he contacted AM and JC as to an agistment on 10 May 2021 but denies he was abusive. As to the 2 January 2021 incident, the respondent and he arrived at the property after returning from a work trip at Mt Isa. Later that evening, the respondent said, “we’re done”. He alleges he was distraught and the next day the respondent refused to talk to him about it. He agreed he tipped the bed upside down and punched one of the screen windows. He says there was no property damage. He accepts he said hurtful comments to her but was embarrassed about that. He admits he retrieved the gun but was upset at that point and thought of suicide. He denied waving the gun in her direction. He said he had the gun for about 10 minutes. The police later arrived and the respondent did not want to make an application. He denied deliberately following the respondent on 4 January 2021, it was a convey of sorts.
43. [43]
    As to 16 and 17 May 2021, he alleges that he was contracted to deliver water pipes from Toowoomba to Ayr and he stopped in at his friend DP’s house at Greenmount which happens to be near the respondent’s parents’ house.
44. [44]
    TJB was cross-examined and did not accept that his behaviour towards the respondent was anymore controlling than hers.^[48] He accepted he sent a text message to her about the way she dressed.^[49] He agreed he was aware of the temporary protection order in either February or March 2021, well before May.^[50] He knew that one of the conditions of the order that he was prohibited from going within 100 metres of the parents’ house at Greenmount.^[51] He accepted though he drove straight by it which was within that distance.^[52] He did not clearly respond to the suggestion it was 75 metres from the road to the parents’ front door.^[53] He ultimately, after being pressed, accepted it was not the only route he could have taken but was argumentative in his answer.^[54] He accepted he was not allowed to go within a 100 metres of that address but drove by it north and south.^[55] He accepted he parked his truck for the first time just a little further than 100 metres away “because I knew it was over 100 metres.”^[56] He claimed he did not know it was a breach to drive past someone’s house.^[57] He accepted he sent a text message about her having a short skirt on.^[58] Despite this he claimed he was not angry with her.^[59] I did not find that very convincing.
45. [45]
    He said he was not watching her but was talking to her grandfather on the phone prior to sending that message.^[60] He did not know what he was trying to achieve by sending the text message.^[61] He knew that a truck turned up with cattle at the property through the camera which he had put there. The camera would send a text message to his phone because it was movement activated.^[62] He was asked by counsel to find the photograph which was sent via the text. He then said he didn’t have the first picture.^[63] The first photo he had was the 18 March and said that the earlier ones from 3 February had been deleted.^[64] He said that the earlier photos had been sent to his lawyers.^[65] He agreed that by 8 March he was aware there was a domestic violence order in place prohibiting him from going to the property where the camera was located.^[66]
46. [46]
    He denied installing the camera well after 3 February.^[67]  He was 100 per cent sure that pictures before 18 March were emailed to Wilsons, the family lawyers.^[68]  He claimed that after he became aware of the domestic violence order, he did not tell the police or the respondent’s solicitors about the camera because his solicitor Reagan Wilson advised him not to.^[69]  He asked Mr Wilson about the camera before he  purchased it before 3 February 2021 and the solicitor advised him there would be no breach of anything by putting the camera on the property.^[70] 
47. [47]
    He then did not want to comment further about talking to his solicitor.^[71]  After the DVO was served he took no steps to notify his solicitor that the camera should be removed.^[72]  He agreed the camera captured everyone who was coming and going from the house.^[73]  He agreed that he became part owner of the Torrens Creek property in April 2020 putting in about $150,000.^[74]  He denied he did not like the respondent spending time at the Torrens Creek property.^[75]  He denied going off at the respondent about a Great Dane chasing a calf and said he gave an honest opinion that her coffee was “shit”.^[76]  He denied being unnecessarily critical of the respondent in what she was doing.^[77]  He denied calling her useless.  He simply asked, “Why did you leave the gate open?”.^[78]  He denied being furious that the Great Dane pup had scared a young calf.  He agreed that there was a discussion about hitting a cow on the Barcaldine trip. He claimed he was a peacekeeper.^[79]  He claimed that the respondent’s father was making things up.^[80]  He admitted threatening to take the gun to the paddock to kill himself but said this was the only time.^[81]  Even though he said in the text dated 15 February 2021, “I don’t want to be here anymore”.  He claimed this was not talking about killing himself.^[82] I don’t accept that evidence.  He admitted sending further text messages that day asking, “Have you found somebody else?”.^[83]  He admitted sending texts to rekindle a relationship.^[84]  Even though he upended the bed on 2 January 2021 he said he was just annoyed not in a rage.^[85]  He admitted turning the mattress over, punching a screen out but denied throwing her stuff around the room.^[86]  He denied pushing her against a wall but then said they bumped into each other and she ended up against the wall.^[87]  That seems improbable to me.
48. [48]
    He agreed that he lived in Toowoomba.  He accepted when he was walking around and grabbed the gun that is when the respondent called the police and he accepted it was fair for her to do that in those circumstances.^[88]  He accepted he may have told her he was going to shoot himself but denied that he said she’d get in trouble and go to jail.^[89]  He accepted she did not want to sleep in the same bed with him that evening and moved to a different room and that he followed her.^[90]  He did not dispute that he had a go at her about what she was wearing in a truck.^[91]  He was asked whether after the respondent started her business in Mackay he would call her between each lesson and if she did not answer would call her over and over again but did not give a responsive answer about that.^[92]  He initially denied demanding she provide the work diary and dictate what days and times she could work but said he asked for a copy of the work diary so he did not call her in the middle of lessons.^[93]  He denied calling her a slut and a cunt.^[94]  He accepted that he may have said that the respondent was pathetic in messages to the mother in January 2021.^[95]  He did not dispute that during the relationship he would often yell at the respondent but “not as much as [she] would yell at me.^[96]  He denied ever calling her a slut and a cunt and was 100 per cent sure of that.^[97]  He was then told that a recording was to be played and he added “except on the day of the verandah”.^[98]  He agreed he said to her, “You’ll be able to sit with your legs wide open all the time now.”^[99]  He admitted on 2 January saying, “You’ll be able to show everyone your vagina probably what you’re used to and ‘that’s how you get blokes [respondent].  You can have everyone because you’ve got a vagina that’s what you do’”.^[100]  He admitted also saying, “that’s why you love driving around in your driver training car with the fucking 16 and 18 year old’s that turns you on all day.”^[101]  He admitted saying the only reason she talked to the grandfather was because he gave her money and the only reason she did driver training was she was a “lazy fucking bitch”.^[102]  He blamed her for issues with his body including an inability to urinate because they didn’t have enough sex.^[103] 
49. [49]
    In re-examination he was asked about the temporary protection order and said that David’s house at Greenmount was over 100 metres away from the parents’ house.^[104]  He also said he took that route because it was the shortest route.

Reagan Wilson

50. [50]
    Reagan Wilson, a partner of Wilsons The Family Lawyers also provided an affidavit. He swore that he acts for the appellant in the property settlement. He says that on 10 May 2021 the appellant contacted him about the agistment on the property. Mr Wilson then contacted Mr Craig who told him that the cattle had been delivered to the property. He denies he was aggressive to Mr Craig. On 11 May 2021 the police contacted him and asked him to advise the appellant not to further contact Mr Craig or Mr Maffe.    
51. [51]
    In cross-examination he accepted that the installation of a surveillance camera might well in certain circumstances be an act of domestic violence.^[105]  He said he first became aware of the surveillance camera to the best of his recollection probably in March or April of 2021.^[106]  The respondent’s solicitors on 1 April 2021 wrote to him asking how his client knew of the respondent’s whereabouts.  He definitely did not know about the surveillance camera before it was installed.^[107] 
52. [52]
    In re-examination he said his understanding of the purpose of the surveillance camera was to keep an eye on the property in terms of whether the cattle were being delivered for agistment purposes and whether maintenance or third parties were attending the property for works claimed.^[108]  It was his understanding police did not take any action for breach of the temporary protection order.^[109]  In further cross-examination he said the appellant told him that the camera was in place from early February.^[110]
53. [53]
    I note that Mr Wilson sent a letter to the respondent’s solicitors advising that the respondent had not been to the property “for ages.” In cross examination he admitted receiving these instructions from the appellant. I infer from this the appellant was monitoring the respondent’s movements
54. [54]
    On 1 April 2021 the respondent’s lawyers wrote to Mr Wilson wanting to know how it was the appellant knew of the respondent’s whereabouts. A further similar letter was sent on 11 May 2021. Mr Wilson did not respond to these questions.     

Decision

55. [55]
    The Magistrate adjourned the matter and received written submissions.  He provided his decision on 25 August 2021.  In his decision he referred to the history of the application and he took into account the material filed, the exhibits and the oral evidence.  His Honour then referred to the relevant legislative provisions and relevant case authority.  He referred to the history of the relationship and then referred to the events on 2 January 2021.  He noted the allegations of ongoing domestic violence in the past.^[111]  He then summarised what occurred on 2 January 2021.^[112]  The appellant’s counsel relied on subpoenaed evidence from the police concerning the incident on 2 January 2021.  The respondent’s counsel submitted the subpoenaed material had not been placed into evidence.  The Magistrate stated that as they had not been expressly been put into the record, he had not read the records although the appellant’s affidavit incorporated some of them, so that was in evidence.  He accepted the respondent’s submissions that little weight should be placed on the police records.^[113]  The Magistrate accepted that on 2 January 2021 the appellant upended the bed, messed up a room and other furniture, punched a screen damaging it and verbally abused the respondent.  On the appellant’s evidence alone, he found he committed domestic violence that day.^[114]  He then examined the two different versions as to the journey after 2 January 2021 but did not appear to place much weight on what occurred then.
56. [56]
    As to the camera, it was installed on 3 February 2021 and he referred to the evidence concerning the camera.  He then referred to the incidents of 16 and 17 May 2021 and summarised the evidence concerning that.  The Magistrate accepted the respondent’s submissions that the parents’ and brother’s evidence was reasonably consistent.  The Magistrate found that even though the appellant installed the camera before the DV proceedings, this did not excuse him from continuing to do so after the temporary order had been made of which he became aware on 26 February 2021.  He rejected the appellant’s claim that installed the surveillance camera on the advice of his solicitor because this was contrary to Mr Wilsons’s evidence.^[115]  He found this was a breach of the temporary protection order.  He found that domestic violence had been committed as a result of the incident of 2 January 2021 and the continuous use of the surveillance camera.^[116]
57. [57]
    As to the necessity or desirability to make the protection order, he assessed the future risk of domestic violence in the absence of such an order.  He had regard to the incidents of past violence alleged in the respondent’s affidavit and the parents’ affidavit.  He found the appellant had no insight and no remorse.  There was no evidence of rehabilitation or counselling.  The Magistrate took into account he continued to use the surveillance camera after being aware of the temporary protection order.  He rejected the explanation the camera was used for the sole purpose of security.  He found it desirable to make an order for five years.^[117]

Appellant’s submissions

58. [58]
    The appellant submits that on the Magistrate’s findings, the domestic violence must relate to three incidents, namely the incidents of 2 January 2021 the allegation the appellant followed the aggrieved to her parents’ house and the installation of cameras at the subject property.  The appellant points out that no protection order was made at that time.  As regards the Magistrate’s approach concerning the subpoenaed records, it is submitted the appellant adopted the records in evidence and the Magistrate erred in assigning little weight to this evidence.  It was also submitted the Magistrate was incorrect in the way he characterised the evidence of what happened on 2 January 2021.
59. [59]
    It is next submitted that the Magistrate erred regarding the allegations concerning following the respondent to the parents’ house.  It was submitted there was independent evidence which corroborated the appellant’s account particularly concerning text messages and a text message of a blown tyre. 
60. [60]
    As regards the installation of the camera the Torrens Street property, it is submitted the Magistrate erred in this regard as well.  It is pointed out the appellant was and still is part owner of the Torrens Street property and he erected the camera for legitimate reasons.  The camera was erected before any allegations of domestic violence and the Magistrate erred in not accepting the appellant’s evidence on this. 
61. [61]
    Ultimately, it is submitted that any domestic violence fell towards the lower end of seriousness and it was not necessary or desirable for the order to be made.  The court would not find there was any domestic violence and it is noteworthy that there was a court undertaking filed on 19 July 2021.
62. [62]
    In oral submissions Mr Jones made the following points:

• The finding of domestic violence was limited to a number of events.
• The incident on 2 January 2021 was low level and limited to swearing.
• In terms of whether it was necessary or desirable to make the order court can rely on the undertaking given in July 2021- The defendant can be proceeded against for a contempt of court if the undertaking is breached.
• If the errors alleged are found the application for the DVO should be dismissed, alternatively the matter should be remitted to the Magistrates court for rehearing.
• This court also had the power to vary the order to allow access to the property.
• As to the subpoenaed material the Magistrate erred in failing to place weight on it when part of it was adopted by the appellant and therefore was in evidence. The particular aspect of this material is the respondent did not want a protection order as at 2 January 2021 and she gave reasons to the police for this.
• The respondent should have been disbelieved as to her having to flee the property on 4 January. The fact is she contacted the appellant regarding her tyre and sent the text message for him to come around when the father had gone out.^[118]
• As to the use of the surveillance camera, the Magistrate erred in failing to find that the purpose of it was the check on cattle being agisted at the property. There was no evidence he turned up when the respondent was there. The surveillance commenced on 3 February 2021 before the TPO.^[119] It was the appellant’s understanding the house was largely unoccupied. His use of the footage was supported by the evidence.
• It was not necessary or desirable to make the order on the evidence.    

Respondent’s submissions

63. [63]
    On the other hand, the respondent submits the Magistrate did not make any significant legal or factual errors but, in the alternative, submits the undisputed facts amply justified the order being made.  It is submitted that serious acts of domestic violence occurred on 2 January 2021, the most serious of which was his decision to threaten to kill himself with a rifle.  It is submitted that since that day various acts of domestic violence occurred.  It is submitted there was a lack of insight and empathy on the part of the appellant and it was clearly open to the Magistrate to make the order which he did.
64. [64]
    From paragraphs [24] to [36] the respondent refers to the undisputed facts justifying the making of the order.  It was submitted it was open to the Magistrate to take into account the appellant’s demeanour in the witness box.  The Magistrate was entitled to reject the appellant’s demeanour in the witness box.  The Magistrate was entitled to reject the appellant’s evidence as self-serving and dishonest.  It was understandable the respondent did not seek an order immediately.  The respondent, on the other hand, was an honest and reliable witness and made concessions against her interest and her evidence was corroborated by parts of the appellant’s evidence and text messages. 
65. [65]
    Ultimately, the features of the case demonstrated that the order was necessary and desirable.
66. [66]
    In oral submissions Mr Eberhardt QC made the following points:

• The respondent’s mother and father corroborated the respondent’s account of other acts of domestic violence before 2 January 2021.
• The Magistrate was entitled to accept their evidence.
• As to the submissions concerning 4 January 2021 there was nothing false as to the respondent’s evidence. It is understandable that she would message the appellant concerning the flat tyre as she was in the middle of nowhere and they had been in a relationship. As to the text, the reason she sent this was the father did not like the appellant.
• Mr Eberhardt submitted there was a pattern on concerning behaviour by the appellant here. First was the incident of 2 January 2021 most of which was not disputed by the appellant. Second was the installation of the surveillance camera occurred on 3 February 2021. Third was the text on 6 February 2021 about what she was wearing at a restaurant in Mackay clearly implying he was watching her. Fourth was text on 15 February about him ending it all. Fifth was the surveillance on 10 May 2021. Sixth was a few days later driving past and parking near the parents’ house on 16 and 17 May 2021.
• The respondent had considered taking out a DVO against the appellant. This was clear from the text to her mother in 2019 from the USA.
• It is crucial that the appellant did not tell his solicitors about the surveillance camera when he installed it contrary to his evidence. Also, in the variation application on 21 March 2021 he failed to disclose its existence at that point.
• There was no error of law here.
• The Magistrate was confronted with a vulnerable woman and a man who needed to be accountable for his behaviour.^[120]      
• An undertaking was not sufficient. A DVO prevented the appellant from having access to weapons. He would be on the police system and there would be penalties for breaches of the order.
• There were no errors of fact or law.      

   Discussion

67. [67]
    Section 37 of the DVA provides:

“37 When court may make protection order

3. (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

Note—

See the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12, which define the terms domestic violence, emotional or psychological abuse and economic abuse.

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

3. (2)
   In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence—

1. (a)
   the court must consider—

1. (i)
   the principles mentioned in section 4; and

2. (ii)
   if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the respondent’s failure to comply with the order; and

2. (b)
   if an intervention order has previously been made against the respondent and the respondent has complied with the order—the court may consider the respondent’s compliance with the order.

3. (3)
   However, the court must not refuse to make a protection order merely because the respondent has complied with an intervention order previously made against the respondent.

3. (4)
   If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court considers appropriate.”

68. [68]
    Section 8 of the DVA defines domestic violence as:

“8 Meaning of domestic violence

3. (1)
   Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

1. (a)
   is physically or sexually abusive; or

2. (b)
   is emotionally or psychologically abusive; or

3. (c)
   is economically abusive; or

4. (d)
   is threatening; or

5. (e)
   is coercive; or

6. (f)
   in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

3. (2)
   Without limiting subsection (1), domestic violence includes the following behaviour—

1. (a)
   causing personal injury to a person or threatening to do so;

2. (b)
   coercing a person to engage in sexual activity or attempting to do so;

3. (c)
   damaging a person’s property or threatening to do so;

4. (d)
   depriving a person of the person’s liberty or threatening to do so;

5. (e)
   threatening a person with the death or injury of the person, a child of the person, or someone else;

6. (f)
   threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;

7. (g)
   causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;

8. (h)
   unauthorised surveillance of a person;

1. (i)
   unlawfully stalking a person.”

69. [69]
    Section 11 of the DVA provides:

“11 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.

Examples—

• following a person when the person is out in public, including by vehicle or on foot
• remaining outside a person’s residence or place of work
• repeatedly contacting a person by telephone, SMS message, email or social networking site without the person’s consent
• repeated derogatory taunts, including racial taunts
• threatening to disclose a person’s sexual orientation to the person’s friends or family without the person’s consent
• threatening to withhold a person’s medication
• preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity.”

70. [70]
    In GKE v EUT,^[121] As to the term “intimidation”, McGill SC DCJ noted that intimidation refers to a process where a person is made fearful or overawed particularly with a view to influencing that person’s conduct or behaviour. This is consistent with the definition in the Oxford Concise Australian Dictionary. 
71. [71]
    In deciding whether it is necessary or desirable to make the order s 37(2)(a)(i) of the DVA requires the court to have regard to the principles mentioned in s 4 of the DVA.
72. [72]
    Section 4 of the DVA provides:

“4 Principles for administering Act

3. (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.

3. (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. (d)
   if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;

Examples of people who may be particularly vulnerable to domestic violence—

• women
• children
• Aboriginal people and Torres Strait Islanders
• people from a culturally or linguistically diverse background
• people with a disability
• people who are lesbian, gay, bisexual, transgender or intersex
• elderly people

5. (e)
   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;

6. (f)
   a civil response under this Act should operate in conjunction with, not instead of, the criminal law.”

73. [73]
    McGill SC DCJ stated in GKE v EUT:^[122]

“The risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.”

74. [74]
    Also, in MDE v MLG^[123] Morzone QC DCJ sets out a number of factors to be taken into account on this issue. I specifically take these matters into account and I specifically take into account s 4 of the DVA.

Was there domestic violence?

75. [75]
    Even if it can be shown in this case that the Magistrate erred in some respects, in my opinion on a review of this evidence, I find that the order should have been made.
76. [76]
    There were a number of undisputed facts which to my mind justified the finding that domestic violence had occurred and it was necessary or desirable to make the order.
77. [77]
    It was not in dispute that the respondent resided alone on an isolated cattle property in central north Queensland with her nearest neighbour about 18 kilometres away and the nearest police station about 40 kilometres away.  It took the police about two hours to respond to the 000 call the respondent made on 2 January 2021 when the appellant was armed with a rifle and threatening to kill himself.  It was not in dispute that the appellant upturned the bed and other furniture in the family home.  I find that he punched a screen damaging it.  He verbally abused the respondent using insults such as “cunt”, “slut”, “you’ll be able to sit with your legs wide open”, “you’ll be able to show everyone your vagina probably what you’re used to”, “that is how you get blokes [respondent].  You could everyone because you’ve got a vagina that’s what you do” and “lazy fucking bitch”.  It is undisputed he took the respondent’s loaded firearm from the house intending to commit suicide with it.
78. [78]
    It is not in dispute that after the breakup he sent a text message on 6 February 2021 to the respondent which read:

“It doesn’t look like I’ve got any worries but I thought you would have on something a bit shorter and skimpier than what you’ve got on at the moment. Have you done the court order yet?  I thought you said you didn’t need a man in your life. Looks to me like you are out looking for one.”

79. [79]
    As was submitted by the respondent I considered this clearly implied he was watching her and would have been cause for concern to her.
80. [80]
    It was not in dispute the appellant installed a surveillance camera pointing across the driveway and directly towards the respondent’s house on 3 February 2021. That of course was not a breach of any order at that point but importantly to my mind, he continued to monitor the surveillance camera remotely even after the temporary domestic violence order was imposed. A condition of this order prohibited him from locating or attempting to locate the respondent. He would have known that at times the footage would have captured her. I also thought it was telling he lied about being advised to install the camera by his lawyer.
81. [81]
    The appellant claimed in his evidence he erected the camera on the advice of his family lawyer and claimed he didn’t know it was a breach of the temporary protection order. His evidence was contradicted by the sworn evidence of Mr Wilson who gave evidence that his firm was not retained until 8 February 2021; he was not aware of the camera until late March 2021 and he did not advise the appellant to install it.
82. [82]
    It was not in dispute the appellant sent the respondent text messages on 15 February 2021 which included messages:

    1. (a)
       “Have you found someone else? Is that why you don’t reply” and
    2. (b)
       “I don’t want be here anymore”.
83. [83]
    The agistment of cattle incident occurred on 10 May 2021.
84. [84]
    It was not in dispute the appellant drove directly past the respondent’s parents’ house on 16 and 17 May 2021 in contravention of a condition of the temporary protection order which prohibited him from going within 100 metres of the respondent’s parents’ house. I did not accept his evidence that he claimed he did not realise he was in breach of the order by doing so. It is not in dispute the appellant parked his truck in the respondent’s parents’ neighbour’s driveway and on the road verge overnight on two occasions in May 2021. The fact is even if inconvenient, he could have taken another route or not stayed at DP’s house.
85. [85]
    So, in summary, there was no dispute that the respondent and appellant were in an intimate personal relationship. The relationship ended on 2 January 2021. The final straw for the respondent was the appellant’s attempt to control what she was wearing whilst driving a truck. The relationship did not end well and I find that serious acts of domestic violence occurred on that day the most serious of which was the appellant’s decision to arm himself with a rifle to shoot himself. I accept the respondent’s evidence that the appellant told her that she would go to jail as a result of him doing so. I also considered the appellant sought to minimise and justify his behaviour for that day and his behaviour throughout the relationship. I find that further acts of domestic violence occurred after that including:

    1. (a)
       Sending the respondent a text message whilst out with friends suggesting he was looking at her and commenting on what she was wearing and doing;
    2. (b)
       Sending the respondent text messages asking if she was in a new relationship and insinuating he was suicidal;
    3. (c)
       Continuing the use of the surveillance camera pointed directly at her house on an isolated property;
    4. (d)
       Driving directly past the respondent’s house in breach of the protection orders in May 2021 and parking the truck outside of the neighbour’s house in breach of the protection orders.
86. [86]
    It seems to me the appellant had no concern for the way his behaviour impacted the respondent and her family and he showed a lack of insight and empathy in his evidence. He had sought no psychiatric help for his dangerous behaviour on 2 January 2021 and I infer in light of this evidence there is a risk he would continue to commit further acts of domestic violence against the respondent and her family.
87. [87]
    Having read the transcript of the evidence in my opinion, the appellant’s demeanour afforded an insight into his character. Much of his evidence was improbable. He claimed that the only occasion he called the respondent vile names was on 2 January 2021, the occasion when he was being tape recorded. I did not accept this. He claimed his comment about the respondent wearing ripped jeans was only motivated by his concern for professional reputation. I did not accept that. He claimed that he did not intend to convey to the respondent that he was looking at her when he sent the text message about what she was wearing. I did not accept that. He claimed that his only purpose to install the surveillance camera was to protect his commercial interests. The fact is the images from the camera depicted the house. I did not accept his evidence on this. He claimed he innocently drove past the respondent’s parents’ house and parked a little over 100 metres away, completely innocently. I did not accept this.
88. [88]
    The Magistrate was entitled to reject the appellant’s evidence and I also do. It was understandable the respondent did not seek an order immediately. In such a situation where she was conditioned to accept his behaviour and desired a clean break from him. On the other hand, the appellant could not accept the relationship as over. He would not leave her alone.
89. [89]
    I found the respondent overall to be an honest and reliable witness who made concessions against her interests. Her evidence was corroborated by parts of the appellant’s evidence particularly concerning the events of 2 January 2021 and the text messages sent by him after the end of the relationship and the evidence of her mother and father. Her concerns about the appellant were shown to be legitimate bearing in mind his monitoring of the surveillance camera in breach of the temporary protection orders and his driving the truck past her parents’ house.
90. [90]
    The Magistrate was entitled to accept the respondent’s evidence and reject the appellant’s evidence and was entitled to find the parents of the respondent and her brother credible and reliable and I find them credible and reliable.
91. [91]
    As to the criticism of the respondent’s evidence as to the events after 2 January 2021, I consider she did believe she was fleeing the relationship. Bearing in mind the fact they had been in a lengthy relationship it is entirely understandable she would ask the respondent to assist with the tyre change and to enable him to collect some property.
92. [92]
    As to the criticism of her that she did not seek a protection order on 2 January 2021 when asked by the police I do not think that of much moment. It is understandable that a woman in her position would feel intimidated by the presence of the appellant when asked whether she wanted an order. This is particularly considering he had not long before threatened to kill himself with a loaded rifle.   
93. [93]
    I find there was a pattern of behaviour towards the respondent which constituted domestic violence as there was emotionally or psychologically abusive behaviour^[124] in this case as there was intimidating behaviour^[125]. There was an implied threat to her with the rifle,^[126] there was damage to the property and/or a threat to do so,^[127] there were threats to commit suicide,^[128] and there was unauthorised surveillance of the respondent.^[129] 

Was it necessary or desirable to make the order?

94. [94]
    Having found there were acts of domestic violence in this case the remaining question was whether it was necessary and desirable for the order to be made. There are a number of features of this case which demonstrated that an order was necessary:

    1. (a)
       The appellant committed acts of domestic violence against the respondent;
    2. (b)
       The appellant did not accept responsibility for his behaviour^[130];
    3. (c)
       He was not deterred from committing acts of domestic violence in breach of the temporary protection orders;^[131]
    4. (d)
       The respondent lived alone at times on an isolated rural property and was especially vulnerable;^[132]
    5. (e)
       The most serious episode of domestic violence involved the appellant threatening to use a firearm to kill himself. The imposition of domestic violence order will prevent him from holding or obtaining a weapons licence for the duration of the order;
    6. (f)
       There was every reason to be concerned about the appellant’s mental health. He had not sought any treatment for his mental health issues and seemed to have little or no insight into the extent of them.
95. [95]
    Further or alternatively a number of features demonstrated that an order was desirable:

    1. (a)
       The appellant needed to be accountable for his behaviour;
    2. (b)
       The appellant needed to understand that his behaviour was unacceptable and would not be tolerated by the courts. This was particularly important considering he did not accept he had engaged in domestic violence and he tried to minimise and justify his behaviour on 2 January 2021;
    3. (c)
       The appellant needed to understand that further acts of domestic violence or breaches of orders of the court would result in immediate action by the police;
    4. (d)
       The respondent needs to be protected by the court.^[133]
96. [96]
    In all of the circumstances, even if it shown that errors were made by the Magistrate on my review of this evidence there was ample evidence to justify the conclusion that a protection order ought to have been made.
97. [97]
    As to the alternative suggestion by Mr Jones that I vary the order to allow the Appellant to visit the property, I consider this court is not the appropriate forum to do this. It would be necessary for the appellant to bring an application in the Magistrates court for variation of the order with supporting material. It may be that the respondent consents to an appropriate variation.

Conclusion

98. [98]
    I make the following orders for the reasons given:

1. The appeal is dismissed.
2. The order of the Magistrate is confirmed.
3. I will hear the parties on the question of costs.