ACJ v AD[2023] QDC 176

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant and respondent were once in a relationship. It ended in April 2022. On 12 April 2022 the respondent filed an application for a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA), describing a pattern of behaviour by the appellant which, if proved, might amount to ‘domestic violence’.^[1]
2. [2]
   The application was opposed by the appellant. It was listed for hearing in November 2022. That day the parties appeared before a Magistrate at Maroochydore. Unfortunately, the Magistrate scheduled to hear the matter had been taken ill. The pressure of other matters already listed meant that no other Magistrate was available to hear evidence in the application that day. A Magistrate mentioned the application and informed the parties of this development. Various options were discussed. To his credit, the Magistrate was concerned about further delays in the proceeding caused by the unexpected illness of the Magistrate scheduled to hear the application. Commendably, the Magistrate, who otherwise had a busy list in the arrest court, offered to decide the application ‘on the papers’. The parties took up the Magistrate on his offer. Material was read, including affidavits from the appellant and respondent, and a week later the legal representatives made submissions to the Magistrate. It was apparent by this time, if not earlier, that the versions of the appellant and respondent about relevant events were very different.
3. [3]
   The Magistrate reserved his decision and in a substantial written decision delivered four weeks later attempted to resolve the factual disputes. He expressed conclusions as to the facts and allowed the application, making a protection order against the appellant and in favour of the respondent and her children.
4. [4]
   Unfortunately, the Magistrate set for himself an impossible task. With the benefit of hindsight, it is apparent that the factual disputes between the appellant and respondent could not be decided solely on the written material and without each version being tested in cross-examination. The affidavit material considered by the Magistrate did not disclose a proper basis for preferring one witness’s evidence over another. The result is that the decision of the Magistrate at first instance must be set aside and the matter remitted for rehearing in the Magistrates Court.

The nature of the appeal – statutory framework and legal principles

5. [5]
   It is convenient to begin with the nature of the appeal. Such was 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. An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
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. 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. 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.

The statutory framework for the decision of the Magistrate

6. [6]
   It is appropriate as well to say something of the framework for the decision of the Magistrate. Section 37 of the DFVPA provides that a court may make a protection order if satisfied that

1. a relevant relationship exists between the aggrieved and the respondent; and
2. the respondent has committed domestic violence against the aggrieved; and

…

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

7. [7]
   It was not in dispute that a ‘relevant relationship’ existed. ‘Domestic violence’ was widely defined in Part 2, Division 2 of the DFVPA. At the time of the Magistrate’s decision, ‘domestic violence’ was defined in section 8 of the DFVPA as

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. is physically or sexually abusive; or

2. is emotionally or psychologically abusive; or

3. is economically abusive; or

4. is threatening; or

5. is coercive; or

6. 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.

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

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

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

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

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

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

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

7. 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. unauthorised surveillance of a person;

1. unlawfully stalking a person.

8. [8]
   The DFVPA also contained definitions of ‘emotional or psychological abuse’ and ‘economic abuse’.^[2] The acts alleged by the respondent, if established, may have constituted ‘domestic violence’.
9. [9]
   In deciding whether a protection order was necessary or desirable, the Magistrate was required to have regard to the principles in section 4 of the DFVPA. One other provision of the DFVPA 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’. This was sufficient to permit the Magistrate to decide the application ‘on the papers’, if that was otherwise appropriate. As well, the Magistrate need only be satisfied of a matter on the balance of probabilities.
10. [10]
    The contest before the Magistrate concerned whether the appellant had committed any acts of domestic violence and, if he had, whether it was ‘necessary or desirable’ to make a protection order.

The evidence before the Magistrate

11. [11]
    The evidence before the Magistrate consisted of the following:

• The application for a protection order filed 12 April 2022
• An application to vary the protection order filed 24 May 2022
• Affidavits of the respondent filed on 21 June 2022 and 5 August 2022
• Material from a family counselling service returned under subpoena
• Written submissions for the respondent
• Affidavits of the appellant filed on 18 July 2022 and 2 August 2022
• Affidavits of PF and LB,^[3] the appellant parents, filed by the appellant’s solicitors on 15 August 2022
• A case plan setting out the appellant’s contentions
• Written submissions of the appellant

12. [12]
    Each side had some objections to the evidence relied upon by the other. These objections were identified before the Magistrate who made instanter rulings. These rulings are not challenged in the appeal.
13. [13]
    The material before the Magistrate may be summarised as follows.

The respondent’s written submissions in favour of a protection order

14. [14]
    It is convenient to commence with the respondent’s submissions to the Magistrate in favour of the making of protection. These submissions identified the acts of domestic violence the respondent alleged had occurred and which, it was submitted, provided the foundation for a conclusion that a protection order was necessary or desirable. Eleven acts were identified.
15. [15]
    The first alleged act was said to have occurred in December 2019 in Slovenia while the appellant and respondent were visiting the respondent’s family. It was alleged the appellant tried to isolate the respondent from her family by coercing her to return to Australia earlier than planned, threw passports across a room, tried to prevent the respondent seeing an old male friend, and harassed her when he discovered she met with her friend.
16. [16]
    The second alleged act was said to have occurred between December 2019 and late 2021. It consisted of the appellant tormenting and harassing the appellant by constantly accusing her of extra-marital affairs, controlling and intimidating her by repeatedly demanding details of her whereabouts, and invading her privacy by reading her personal messages and emails without her knowledge and consent.
17. [17]
    The third alleged act was said to have occurred in November or December 2021. It was alleged that the appellant coerced the respondent to stay in the relationship by threatening to ‘take full custody’ of the children and sell the family home if she left, tormented the respondent by telling her she was ‘not functioning well and unemployed’, and denigrated her by telling her she had ‘mental health issues’.
18. [18]
    The fourth alleged act was said to have occurred in or around December 2021. This concerned allegations that the appellant disparaged the respondent in front of the children for her being financially dependent on the appellant, imposed an unreasonable budget for groceries then screamed abuse at her in front of the children for not being able to afford more groceries, and threatened to tell the children it was the fault of the respondent if their relationship ended.
19. [19]
    The fifth alleged act was said to have occurred in late 2021 or early 2022. This was described as ‘the effect of the [appellant’s] abusive behaviours towards the [respondent] over the years caused her to fear that he would kill her’.
20. [20]
    The sixth alleged act was said to have occurred in or around January 2022. It was alleged the appellant unreasonably monitored the respondent’s movements, and verbally abused her in front of the children by telling her she was ‘mental’ and needed to see a doctor.
21. [21]
    The seventh alleged act was said to have occurred in or around February 2022. It consisted of the appellant pressuring the respondent to find employment and contribute financially to the household before ‘manipulating’ her to resign, making the respondent feel worthless and inferior.
22. [22]
    The eighth alleged act was said to have occurred on or around 28 March 2022. This was alleged to be the appellant becoming angry at the respondent when she expressed concern about his behaviour to a psychologist in a counselling session. The appellant locked himself in his bedroom for two weeks after, causing the respondent to feel unsafe and unable to voice her concerns.
23. [23]
    The ninth alleged act was said to have occurred in early April 2022. It was said the appellant verbally abused and physically threatened the respondent when she tried to talk with him about the children.
24. [24]
    The tenth alleged act was said to have occurred between 11 and 24 April 2022. This act was constituted by the allegation that after the respondent left the appellant, he harassed the respondent and children by repeatedly calling them and tried to coerce the children to reveal their location.
25. [25]
    The eleventh allegation was a compendious allegation that during the relationship the appellant ridiculed the respondent in front of the children, taunted her for not contributing financially to the household, denied the respondent economic and financial autonomy, and exposed the children to this behaviour.
26. [26]
    The evidence relied upon by the parties was directed toward whether any of this conduct occurred. To understand the stark difference between the parties in their description of these alleged events it is helpful to summarise the relevant evidence as it concerned each allegation.

The first allegation

27. [27]
    AD deposed that she and the appellant began a relationship in 2011 and married in late 2012. There were two children of the relationship, born in 2013 and 2017. The appellant left the Australian Defence Force about 2016.
28. [28]
    In relation to the first alleged act of December 2019, AD said they were visiting her family in Slovenia. The appellant told the respondent she was happy, that she should stay with her family, and he would leave. He threw the passports of the respondent and the children and packed his bag as if to leave. He was persuaded to stay by the respondent’s mother. While in Slovenia, the respondent planned to have coffee with an old friend but the appellant did not want her to go, saying, ‘You are going to kiss him.’ The respondent saw her friend anyway and when the appellant found out he questioned whether they had kissed, hugged, or otherwise touched.
29. [29]
    In contrast, ACD deposed that he was happy to be visiting Slovenia and intended to stay for three months. He said that while there, he accidentally discovered a trail of messages between the respondent and a man in Australia. After seeing more messages, he queried the respondent about whether she was having an affair. She became abusive and assaulted the appellant by hitting and slapping him. The appellant said the respondent’s mother also slapped him in the face. A couple of days later, after things settled down, the appellant asked the respondent if she wanted to return to Australia or stay in Slovenia. The respondent said she wanted to go back to Australia to finish her studies. The appellant denied that he discouraged the respondent from seeing friends while in Slovenia, throwing passports, or packing his bag as if to leave.

The second allegation

30. [30]
    The evidence of AD concerning the second allegation consisted of broad allegations that the appellant would accuse her of having affairs and insist on knowing where she was going, and with whom, whenever she left the house. The only specific act alleged was an event in late 2021 when the respondent said the appellant questioned her about contact with a former male friend.
31. [31]
    Unsurprisingly, the appellant did not respond directly to these broad allegations. Instead, he described his goal in the relationship as being to keep the respondent happy and alleged he was subject to verbal and physical assaults.

The third allegation

32. [32]
    The respondent described this as occurring in late 2021. She deposed that she had a conversation with the appellant after the children were asleep. The appellant told the respondent that he could not see the marriage continuing and that he would take full custody of the children because the respondent was ‘not functioning well’. The appellant described his tone as calm and serious when he said this.
33. [33]
    For his part, the appellant deposed that the respondent announced in front of the children that she wanted a divorce, after which the appellant indicated they should work on maintaining the marriage. He denied ever threatening to take the children away from the respondent or speaking in a manner that could have caused her fear or apprehension.

The fourth allegation

34. [34]
    The respondent alleged that around December 2021 the appellant, in front of the children, told her she was lazy and spending all his money. She complained that the appellant set her an unreasonably small food budget. When she told the appellant the budget for the fortnight had been spent he screamed at her while the children were in the same car. The respondent alleged that when she asked the appellant not to speak to her that way in front of the children, he said he would tell the children it was her fault the relationship ended.
35. [35]
    The appellant denied the allegations of financial abuse, deposing that he happily supported her financially. He specifically denied talking to her in the way alleged by the respondent.

The fifth allegation

36. [36]
    This allegation was based on a paragraph in the respondent’s affidavit filed 21 June 2022. This paragraph read, ‘I recall saying to him words to the effect of, “You’re going to kill me one day.” [The appellant] told me that he would not kill me, but I was so scared of him, that is how he made me feel.’
37. [37]
    In response, the appellant denied any behaviour that could have reasonably given rise to the fear described by the respondent.

The sixth allegation

38. [38]
    The matter alleged by the respondent fell under the heading ‘verbal abuse’ in her first affidavit. She described the appellant following her from room to room in the house and saying she should have her mental health checked by a doctor. The respondent detailed paranoid behaviour by the appellant, such an making sure the blinds in the bedroom we closed. The respondent said that when she raised it with the appellant, he replied that she could not see the danger as he could.
39. [39]
    The appellant denied following the respondent around the house. He agreed there was an occasion when he made sure the blinds were closed but said it was early one morning when the respondent woke him up, demanding that he make breakfast, and he noticed neighbours looking in through the window. He otherwise denied the allegations.

The seventh allegation

40. [40]
    This allegation concerned events around February 2022 when the respondent said she felt pressured by the appellant to find paid employment. She won a job as a cleaner, but alleged the appellant became paranoid, asking her to write down the number plates of cars near hers at work. The respondent deposed that the appellant’s behaviour made her concerned she could be in danger, so she declined the job offer.
41. [41]
    The appellant stated that he did not discourage the respondent from finding work, but that it was difficult in the prevailing economic climate. As for the respondent’s specific allegations, he said she had to turn down the cleaning job because she broke her toe at yoga.

The eighth allegation

42. [42]
    The respondent’s description of these events began with a meeting with a psychologist in March 2022. There was a discussion between the respondent, appellant, and psychologist about the relationship. The respondent alleged that after the session, the appellant withdrew to his bedroom and would not talk to the respondent or the children for two weeks.
43. [43]
    The appellant denied this occurred, saying that during the meeting with the psychologist the respondent said she wanted to sell the house and take the children to Slovenia. The appellant said that after the session the family celebrated a birthday with dinner and cake without any change in the appellant’s mood or demeanour. He further explained his apparent isolation at this time as being because he was studying with exams looming.

The ninth allegation

44. [44]
    This allegation followed the two-week period when the appellant was alleged to have isolated himself. The respondent deposed that she spoke to him about the children, causing the appellant to immediately become angry and yell at the respondent that he did not want any more to do with her. As he did this he walked toward the respondent before passing her and sitting on a sofa.
45. [45]
    The appellant did not specifically address this allegation.

The tenth allegation

46. [46]
    In April 2022 the relationship ended and the respondent left the family home with the children. The appellant called the children regularly. The respondent alleged that in these conversations the appellant asked the children to say where they were.
47. [47]
    The appellant admits that he called or texted the appellant many times but said this was out of concern because the respondent left without any indication or announcement. He said there were only three occasions that he spoke directly to the children, and on each occasion the children appeared hesitant and shy, as if they were being coached.

The eleventh allegation

48. [48]
    The basis for this allegation was broad complaints by the respondent that the appellant demeaned her for not contributing money to the household. The appellant denied the allegation of financial abuse.

Other evidence

49. [49]
    The affidavits of the appellant’s parents spoke to the appellant’s character and of events connected with the birth of the two children. It is unnecessary to summarise the contents of the affidavits beyond noting that they described events in a manner that was inconsistent with the respondent’s allegations.
50. [50]
    It is apparent from the summary of the evidence above that none of the alleged acts of domestic violence could be established unless the Magistrate was satisfied the allegations of the respondent were probably true. Given the denials and explanations of the appellant, it was also the case the respondent’s allegations could not be accepted unless the appellant’s denials were probably untrue. Reaching such a state of satisfaction required a consideration of the evidence to decide if there was a proper basis for concluding that what the appellant said was probably untrue, and what the respondent said was probably true.

The decision of the Magistrate

51. [51]
    On 22 December 2022 the Magistrate published reasons. These reasons may be summarised as follows.
52. [52]
    After setting out the procedural history of the application, the Magistrate correctly identified the relevant legislation and legal principles. He then set out the respondent’s contentions as to acts of domestic violence by repeating parts of the respondent’s written submissions. The Magistrate said of the appellant’s affidavits that he merely denied each alleged act of domestic violence. Then the Magistrate stated, without further explanation, ‘In some respects, it is extremely difficult to accept all the denials of the [appellant]’.
53. [53]
    There followed several pages reciting the respondent’s allegations in a manner that implied, but did not explain why, the Magistrate accepted what she alleged was probably true. Some statements of fact were followed by the words, ‘I ACCEPT THIS’ in bold capitals. No further explanation was provided. What seems to be a critical part of the Magistrate’s reasoning appears in a footnote. The footnote recorded the Magistrate’s finding that the appellant had read more of the respondent’s private messages than he was willing to admit. This finding was seemingly based on the knowledge of the content of the respondent’s communications which the appellant provided in his own affidavit material. This finding was said by the Magistrate to affect the confidence he had in the appellant’s explanations and evidence. The Magistrate went on to find that the respondent’s allegations of domestic violence were ‘independently corroborated’ by a letter written by a support worker and annexed to the respondent’s first affidavit, as well as by the contents of records maintained by a counselling service the respondent used after leaving the appellant. A further conclusion recorded by the Magistrate was that the appellant ‘made admissions to committing various acts of domestic violence’. The difficulty with these findings on the material before the Magistrate is discussed below.
54. [54]
    As for the appellant’s ‘bare denials or counter-allegations’, the Magistrate recorded they ‘lack any corroborative evidence (despite the [appellant] calling (sic) several witnesses in this proceeding), which may lead the Court to drawing adverse inferences against the [appellant]’. A footnote referred to the decision of the High Court in Jones v Dunkel.^[4] That decision is authority for the principle that the failure to call a material witness without explanation may give rise to a direction that the trier of fact can more readily accept the uncontradicted evidence of the opposing party. It is difficult to see what application it could have in the context of this contested application which was, by agreement, to be decided ‘on the papers’.
55. [55]
    Having stated his conclusion that the appellant’s evidence ought not be accepted, the Magistrate went on to treat his allegations as perpetuating his ‘ongoing abuse against her’. He found that a protection order was necessary or desirable and proceeded to determine the appropriate terms and make an order.
56. [56]
    One obstacle I have encountered with the Magistrate’s reasons is the absence of any clearly identified findings about which of the 11 alleged acts of domestic violence were proved. Paragraph 26 of the written reasons may indicate the Magistrate largely accepted the allegations, except for at least the fifth and tenth allegations.^[5] No doubt this reflects the difficulty encountered by the Magistrate in attempting to resolve the factual disputes between the parties on the limited material he had.

Were the findings open on the evidence?

57. [57]
    A critical question for the determination of this appeal is whether the evidence before the Magistrate, untested as it was by cross-examination, permitted the conclusions summarised above. In my view it did not.
58. [58]
    The Magistrate was confronted with two very different descriptions of the relationship between the appellant and respondent. There seems to be three reasons for the decision of the Magistrate to prefer the evidence of the respondent. First, that the appellant’s credit was undermined because he secretly read more of the respondent’s private messages than he would admit. Secondly, that he made admissions to committing acts of domestic violence. Thirdly, the respondent’s allegations were corroborated. I will discuss each in turn.

Was the appellant’s credit undermined because he viewed private messages?

59. [59]
    The evidence concerning this was scant. The respondent alleged that in 2012 the appellant set up their iPads so that each could see what the other was doing. In 2021 the respondent received notifications that ‘someone was reading my messages’. The implication of the respondent’s evidence is that it was the appellant reading her messages. The appellant’s evidence was that he did see messages, but said that was the result of the longstanding arrangement by which they shared an iCloud account. He admitted to reading some of these messages and discussing them with the respondent.
60. [60]
    With respect to the Magistrate, I cannot find in the evidence support for the conclusion that, as a result, the appellant’s evidence ‘[did] not withstand any level of objective scrutiny’. His explanation was not inherently improbable and was in some ways consistent with the respondent’s evidence about how the devices were set up. The appellant viewing these messages in the context of the breakdown of the relationship may reflect poorly upon him, but it is not something he attempted to hide or deny. This fact, on its own, did not provide a basis for preferring the evidence of the respondent generally.

Has the appellant ‘made admissions’ to committing acts of domestic violence?

61. [61]
    The Magistrate indicated he preferred the evidence of the respondent for reasons including that the appellant ‘has made admissions to committing various acts of violence’. These were identified in his Honour’s reasons as ‘reinforcing his emotional and psychological abuse of [the respondent] by continuing to suggest that she suffered various mental health conditions’, conducting ‘unauthorised surveillance’ of her by reading her messages, perpetuating economic abuse by suggested he was entitled to read her messages because he paid the monthly bills, and that he demonstrated his controlling nature by statements in his own application to vary the temporary order.^[6]
62. [62]
    The Magistrate referred to the appellant’s own material in support of each proposition above. For the first conclusion the Magistrate cited passages in the appellant’s affidavit where he said the respondent suffered post-natal depression and ‘split personality disorder’. The Magistrate treated these statement as being part of a pattern of emotional or psychological abuse. The difficulty with reaching this conclusion, on the evidence before the Magistrate, is that there was no uncontested evidence that the statements were untrue. The suggestion of ‘split personality disorder’ calls for caution, if not scepticism. But that provides no basis for a conclusion that the application falsely and maliciously made these allegations in his affidavit as part of his abuse of the respondent.
63. [63]
    The second conclusion recites the same evidence mentioned above concerning the appellant reading the respondent’s messages. As I have observed, reading her messages may reflect poorly on the appellant, but it is not an admission to an act of domestic violence.
64. [64]
    The third conclusion is based on a misunderstanding of the appellant’s evidence. The Magistrate concluded that the appellant said he had a ‘right to monitor [the respondent’s] messages and emails because he paid the monthly internet bills and provided [her] with mobile phone credit’. What the appellant stated was, ‘I was paying monthly internet bills and phone credit for the [respondent], and it was just the way the apple account had been set up by Telstra and apple support’. On a fair reading of the appellant’s affidavit, he was not asserting any ‘right’ to read the messages. He was saying this was an incident of the way the devices had been set up.
65. [65]
    The fourth conclusion was based on the appellant’s statement that he understood ‘the [respondent] has been staying with friends that are not trustworthy who use alcohol and tobacco and are in same sex relationships’ which is an ‘environment not conducive to the welfare of children’. This was thought by the Magistrate to be another demonstration of the appellant’s controlling nature. I am unable to find support for this conclusion in the cited passage of the appellant’s affidavit. His view that those who smoke or drink or are in same-sex relationships cannot provide a good home for children may be wrongheaded. But it is not an act of domestic violence.
66. [66]
    The evidence before the Magistrate did not show that the appellant had made admissions to acts of domestic violence.

Was the respondent’s account ‘corroborated’?

67. [67]
    An important part of the Magistrate’s conclusions was the finding that the respondent’s account was corroborated.^[7] The support for the respondent’s account was said to be found in a letter annexed to her affidavit and notes in documents produced under subpoena by a counselling service. The letter was written in June 2022, well after the respondent commenced the application for the protection order. The letter recounted that a support worker, identified only by a first name, witnessed the ‘psychological impacts … due to domestic and family violence’ experienced by the respondent. At its highest, the letter might provide support for a finding that the respondent was psychologically distressed, and thus in need of protection, but it could not provide much assistance in proving that was because the appellant committed acts of domestic violence.
68. [68]
    The notes relied upon by the Magistrate were identified in his Honour’s reasons. The first contact between the respondent and the counselling service was in April 2022, after she had left the relationship. The notes recorded statements of the respondent alleging acts of domestic violence much the same as those the basis of the application. The Magistrate was not bound by the rules of evidence,^[8] pursuant to which prior consistent statements of a witness would be generally inadmissible. The evidence of the respondent’s statements could be considered by the Magistrate, but it was not corroborative in the legal sense because the evidence was not independent of the respondent. The fact the statements were apparently made was a relevant consideration. Consistency in accounts over time may be a matter that enhances the likelihood that the respondent’s account was true.^[9] But in the context of the dispute between the parties and the material before the Magistrate, this was not a sufficient basis to prefer the evidence of the respondent and reject that of the appellant.

Conclusion as to the findings of the Magistrate

69. [69]
    What I have written above should not be understood as a criticism of the Magistrate. Faced with the difficult circumstances created by the unexpected illness of another Magistrate, he generously offered to determine the application rather than adjourn the matter to another day. In doing so the Magistrate may not have appreciated the difficult task he had set for himself. The resolution of stark factual disputes based only on written material is never easy. Absent some clear reason emerging in the documents for rejecting the evidence of one or more witnesses, it is impossible. No such reason is apparent in this material. Had the witnesses testified, and been cross-examined, the Magistrate would have had the benefit of seeing the witness’s response when confronted with the opposing party’s case. Experience shows that cross-examination allows a full picture of the competing allegations to emerge and assists in deciding which version is to be preferred. In circumstances such as the present, ‘[c]ross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of [their] story.’^[10] That may be especially important where affidavits are prepared with the assistance of lawyers.^[11]
70. [70]
    By restricting himself to the written material the Magistrate unwittingly denied himself access to the tools necessary to resolve the dispute between the parties. It is unsurprising that the result was findings that do not find sufficient support in the limited evidence presented to the Magistrate by the parties. For this reason, the appeal must be allowed, and the respondent’s application reheard.

It is not appropriate for this court to attempt to decide the matter

71. [71]
    Counsel for the appellant submitted that if the appeal succeeded, I should determine the matter myself, as I was in just as good a position as the Magistrate. This court has the power to set aside the original decision and substitute another, and it is generally desirable for the District Court dealing with an appeal pursuant to the DFVPA to finally determine the matter. But in this case that is not possible. I agree that I am in as good a position at that of the Magistrate. But for the reasons I have already set out, that means it is not possible to resolve the stark factual disputes based only on the written material. Regrettably, it will be necessary to remit the matter to the Magistrates Court for rehearing.

Conclusion and orders

72. [72]
    The appeal will be allowed, and the matter remitted to the Magistrates Court for rehearing.
73. [73]
    I will, if required, hear the parties as to costs. It may assist the parties for me to express a tentative view. The problems that have resulted in a successful appeal began with the acceptance of the Magistrate’s offer to determine the matter ‘on the papers’. Had either party appreciated the difficulties that would result, it is likely these problems could have been avoided. In these unusual circumstances it may be that it is appropriate that there be no order as to the costs of the appeal.
74. [74]
    If, however, either party seeks an order as to costs the following directions will apply:

    1. The appellant is to file and serve written submissions as to costs not exceeding four pages on or before 13 October 2023;
    2. The respondent is to file and serve written submissions as to costs not exceeding four pages on or before 20 October 2023;
    3. The issue of costs will be decided by me on the written submissions without an oral hearing.