MRO v Commissioner of Police[2023] QDC 205

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 13 May 2022 a protection order was made naming the appellant as the respondent and his ex-partner ME as the aggrieved.  Also named in the order as associates of the aggrieved were her partner SH, his children and the children of the aggrieved [who are also the children of the appellant].  There were non-contact provisions attached to the order with a rider that the Family Court or Federal Circuit Court could make orders allowing contact.  The appellant has appealed this order.
2. [2]
   The appellant appears on his own behalf and has filed a lengthy appeal notice which was amended on 25 August 2022.  The grounds of appeal are summarised as follows:

• firstly, he seeks to appeal the making of an Intervention Order in December 2021 on the basis that: it did not comply with the mandatory provisions of s 69(3) of the Domestic and Family Violence Protection Act 2012 (‘Act’),  that the learned Magistrate did not satisfy himself as to the availability of an approved provider under s 69(3) of the Act, and that he did not explain or cause to be explained to the respondent the purpose and effect of the order pursuant to s 70 of the Act.
• secondly, the learned Magistrate exhibited bias in his reasoning. 
• thirdly, the learned Magistrate did not give sufficient weight or any weight to the medical report tendered on behalf of the respondent and the conclusions raised in those reports that the respondent was no longer a risk of committing future domestic violence.
• fourthly, that as a result of those reports the continuation of an order was neither necessary nor desirable. 
• fifthly, the learned Magistrate erred in including the children of the aggrieved and the associates of the aggrieved in the protection order.

3. [3]
   On the hearing of the appeal, the appellant sought to lead fresh evidence in relation to allegations made by his son which were considered by the Magistrate at the hearing.

Background

4. [4]
   The aggrieved and the appellant began a relationship in 1994 and married in 1997.  They have four children from the marriage: SE born on 17 June 2003, OP born on 19 January 2005, FA born on 12 January 2009 and RA born on 24 May 2011.  They separated in 2015 however, initially lived under the same roof.  On 3 March 2016, a domestic violence order was taken out by ME in Brisbane Magistrates Court.  The appellant was the respondent and the order was made by consent without admissions. 
5. [5]
   In relation to this matter, events appear to have escalated from around 25 March 2018.  On that day OP made a disclosure to ME in relation to a sexual incident occurring between herself and her older brother SE.  The incident occurred without the knowledge of either parent. ME took the child to the police and an investigation commenced. 
6. [6]
   As a result of those allegations, ME decided that she no longer wanted the younger children going to the respondent’s home where SE currently resided.  She sought help from the police and was told that as there was no Family Court Order in place they couldn’t help her but she then consulted a solicitor and decided to withhold the children from a scheduled visit. Worried about the appellant’s reaction to this stance, ME decided to stay at her partner’s place over the Easter break largely because she believed that the appellant did not know where her partner lived.  However, on 1 April 2018, the appellant took SE to her partner’s house, hid in the bushes for two hours and when FA came out of the house to hunt for Easter Eggs, the appellant grabbed him.  The appellant went into the house attempting to take RA but was unsuccessful. The appellant and SE left taking FA with them.
7. [7]
   The police investigated this incident and the appellant was charged with stalking and wilful damage as a result of this behaviour, however, those charges were discontinued and he entered a plea of guilty to trespass.  He was fined $700. The police issued a police protection notice and which then resulted in this application for a domestic and family violence protection order.

Fresh evidence

8. [8]
   On 4 April 2018 SE was driven to a police station by his father, the appellant and made a complaint of a sexual nature against his mother. On 17 April 2018 he retracted his statement alleging that his father had told him to make the complaint and told him what he should say.
9. [9]
   In April 2018 he also made the complaint that his father had shown him indecent photographs on his phone. The police investigated that allegation and there were no such photographs found on the appellant’s phone.
10. [10]
    The applicant has submitted an affidavit from SE affirmed on 8 December 2022, which now says that he was made to withdraw his complaint against ME, was made to allege that the appellant instructed him to make the complaint against her, and that his mother was the one who was mistreating him, not his father.^[1]
11. [11]
    I have read the affidavit submitted on behalf of the appellant and signed by SE. It concerns me very much that this young man is being used in this way. It is clear from the evidence that SE was a troubled youth. He was charged with indecent treatment of his sister.  He became homeless for a while and was using drugs. He has been attacked during that time. He has had three haemorrhages on his brain while living rough on the streets.^[2]  I have watched the interview between the police and SE where he withdrew his complaint. His distress and concern about being forced to make the complaint appeared to be quite genuine and believable. His vulnerability is evident.
12. [12]
    In relation to the issue of whether the appellant can adduce this further evidence and whether SE can give further evidence on oath, I accept the submissions of Mr O'Brien for the respondent that much of the affidavit is simply gratuitous and irrelevant to the issue being litigated. It appears to be designed to be hurtful to the ME and in fact is suggestive of further domestic abuse by the appellant who would have been aware that the affidavit would be read by ME. At the very least it lacks insight.
13. [13]
    The appellant is a solicitor and it can therefore be assumed he has some grasp on the relevance and weight of evidentiary material. This young man who, as I have already noted, is clearly troubled, has given, on his own version, two false complaints: one against his mother and one against his father. He has withdrawn the complaint against his mother saying his father coerced him to make it and now he is saying that was a lie. He is saying he made up the complaint against his father. He is saying the allegations he made to the police that his father was controlling was a lie. It is impossible now for the court to be able to consider him a witness of credit and giving evidence in court against one of his parents would likely be a traumatic experience for him. I do not propose to put a young person in that position, particularly when it is unlikely to make any difference to the outcome of this appeal.
14. [14]
    The application to adduce further evidence is refused.

The Intervention Order

15. [15]
    The respondent submits that there is no right of appeal from the making of an intervention order.
16. [16]
    Section 164 of the Domestic Violence and Family Protection Act 2012 provides:

“A person who is aggrieved by any of the following decisions of the court may appeal against the decision -

1. a decision to make a domestic violence order;

2. a decision to vary or refuse to vary a domestic violence order;

3. a decision to refuse to make a protection order;

4. if the person sought a temporary protection order in a proceeding under this Act a decision to refuse to make the order.”

17. [17]
    The District Court is a court created by statute and any rights of appeal are granted only by statute.  A domestic violence order under the Act is defined under s 23(2):

“A domestic violence order means –

1. a protection order; or

2. a temporary protection order.”

18. [18]
    Division 6 of the Act deals with intervention orders. Section 69(1) provides of the Act provides:

“If a court makes or varies a domestic violence order, the court may make an order (an intervention order), with the agreement of the respondent mentioned in section 71(b) and (c), that requires the respondent to attend either or both of the following—

1. an approved intervention program provided by an approved provider;

2. counselling provided by an approved provider.”

19. [19]
    Division 6 of the Act also provides that the Court cannot make the order unless it is satisfied that there are approved providers that are available and at a convenient location for the respondent and  the court must explain or cause to be explained the order to the respondent.^[3]  The appellant submits that these provisions are mandatory, that they were not complied with, and therefore the order is void.  This non-compliance, it is argued, invalidates any further orders that were made.
20. [20]
    The Intervention Order was made at a hearing on 15 December 2021 when the appellant was represented by experienced counsel. At that hearing, the appellant sought to rely on reports generated by mental health practitioners that had been prepared chiefly for Family Court proceedings.  The reports were not current and the learned Magistrate expressed some concerns about whether they dealt more with his ability to parent than the risk of further domestic and family violence.  In light of that expressed concern, counsel for the appellant then sought an adjournment to get updated reports and there was discussion about specific domestic violence counselling.^[4]  The matter was stood down so that counsel could have a discussion with the appellant and upon return there was an offer made to participate in domestic violence counselling or a programme.  Before the Magistrate made the order he was concerned to make sure that there was consent.  It was indicated specifically that the instructions were to consent to an order.^[5]  It is not evident that an approved provider was sourced before the order was made and given the time of year it was evident that attending an approved provider might be difficult. Despite this issue, counsel suggested that if a course of counselling or a program was started during the adjournment, that might assist the Court in its ultimate determination.
21. [21]
    The Magistrate, in making the order did not comply with the mandatory provisions contained in Division 6 of the Act. He was led into error in that regard by the submissions of counsel who pressed the issue suggesting that the appellant could, at least, start the counselling.^[6]
22. [22]
    The order was not validly made, however, I do not accept that it invalidates any order made thereafter. The Magistrate did take into account the fact that the order was not complied with in his reasons.^[7] I will deal with that aspect of the reasons when I later consider the issue of whether the order was necessary or desirable.
23. [23]
    I accept the respondent’s submissions that an Intervention Order is not subject to an appeal.  It is not a domestic violence order under the Act and in the absence of any statutory power to appeal there is no power to appeal.  There is no merit in this ground of appeal.

Bias

24. [24]
    The appellant claims that the learned Magistrate displayed actual bias or in the alternative, apprehended bias.  He relies on two matters:  firstly, that the Magistrate made the original temporary protection order and secondly, that the Magistrate made comments that the order would be in the same terms as the temporary order.  
25. [25]
    The learned Magistrate made the following comment on 15 December 2021^[8] :

“I can tell you now, I haven’t made up my mind, but it would be unlikely that I would make any other order today – it is unlikely that I would make an order today if I was invited to, and that order would be in the same terms as the temporary, but with the general family order sections attached to those, because of the risk issue which I am struggling with.”

26. [26]
    It is not unusual for a Magistrate to hear a temporary protection order and then the final order. 
27. [27]
    The making of a temporary protection order is governed by s 45 of the Act which says that the Magistrate should make an order only if satisfied that a relevant relationship exists and the respondent has committed domestic violence against the aggrieved.  On the face of it, both those factors were evident in this case.  They were clearly in a relevant relationship and the appellant admitted committing domestic violence against the aggrieved.  It is an interim order made on the face of the material without that material being tested by cross-examination. A temporary order does not require any finding about whether an order is necessary or desirable to continue the order and therefore there is no question of bias arising. The issue of the temporary order is made on the prima facie evidence before the court, without making final findings of fact and without determining whether a final order is necessary or desirable.
28. [28]
    The comments made by the Magistrate raising concern about the type of counselling not being specific to domestic violence did not represent a fixed position. The learned Magistrate was simply giving notice to the appellant that the weight he would give to the reports would be affected by the purpose for which they were prepared. This gave the appellant’s counsel an opportunity to alleviate those concerns. 
29. [29]
    The Magistrate was right to be concerned about the fact that some of the reports were quite dated, that they were prepared for family matters rather than for a domestic violence hearing and focussed therefore more on parenting than on his risk towards the aggrieved.^[9] This is a case where there was demonstrable domestic violence committed by the appellant. This is the second time an order had to be taken out against the appellant by the aggrieved and the Magistrate was simply demonstrating a cautious approach to the assessment of the risk involved in not making an order.
30. [30]
    The test in relation to bias is summed up in the case of Johnson v Johnson (2000) 201 CLR 488 at para [13]:

“While the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They developed to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.”

31. [31]
    In Vakauta v Kelly,^[10] Brennan, Deane and Gaudron JJ referring both to trial and appellate proceedings, spoke of:

“the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.

…

Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate pre-judgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”

32. [32]
    There is no basis on which to assume that the learned Magistrate was doing anything other than giving counsel the opportunity address his concerns, which counsel did by asking for an adjournment to get further information to put before the court.

Necessary or desirable

33. [33]
    The real question in this appeal is whether the order was necessary or desirable given the issues that had been addressed by the appellant since the making of the temporary protection order and the efforts he had made to try and address his behaviour. I accept the test held by McGill SC, DCJ in GKE v EUT [2014] QDC 248 at [33]:

“There must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future.”

34. [34]
    The appellant’s case in this regard is essentially that the learned Magistrate gave undue weight to the fact that he had not completed the Men’s Behaviour Change Programme or had not been able to get into those programmes and that he should have placed more weight on the medical evidence that was placed before him.
35. [35]
    Essentially the appellant submitted that the reasoning process adopted by the Magistrate was unreasonable and that there was no legal basis for rejecting the opinions of those experts. The Magistrate in giving his reasons cited relevant cases in relation to the question of whether an order was necessary or desirable and noted that the comments by Horneman-Wren SC, DCJ in ACP v McAulliffe [2017] QDC 294 at [68] were apposite in this case, namely that the administration of the Domestic Violence and Family Protection Act 2012 invokes a wide and general power that should be construed liberally. He noted that:

“Because satisfaction under s 37(1)(c) that the protection order is necessary or desirable does involve subjectivity and value judgment in forming a discretionary opinion, the exercise of that discretion should not be constrained by prescriptive steps which might be thought mandatory in all circumstances.”^[11]

36. [36]
    Specialist reports were provided by Dr Ambica Prasad Jha, a psychiatrist, Dr Laurel Morris, a psychologist, Margaret McDonald, a psychologist and Dr Trevor Lotz, a psychiatrist.
37. [37]
    Dr Jha diagnosed the appellant with Attention Deficit Hyperactivity Disorder (‘ADHD’), cyclothymia and Post-Traumatic Stress Disorder. He said the combination of ADHD with cyclothymia leads to impulsivity, reduced frustration tolerance and impulsive decision-making without thinking of the consequences.^[12] He said despite his experience as a highly regarded lawyer for many years the appellant showed poor judgment in times of duress.^[13] The appellant had engaged in cognitive behaviour therapy and accepted some commitment therapy as well as the Triple P parenting course. He was now medicated for ADHD making it unlikely that he would be unpredictable or impulsive in the future. He stated that while he continues to be compliant with treatment he could not see that he poses any risk to self or his ex-wife, children or others.^[14]
38. [38]
    Dr Jha provided a report (dated 30 November 2020) prepared for the Family Court and at the time had access to his medical history, a personality assessment, reports from Lifecare (a supervised contact centre on his contact supervision), reports from Dr Morris, Dr Varghese, Family Court affidavits, the Family Court decision, Family Court orders, medical test results, and further reports from Dr Laurel Morris and Margaret McDonald.^[15] Dr Jha did not give oral evidence.
39. [39]
    Dr Laurel Morris provided an affidavit and two reports one dated 5 November 2020 and another dated 25 September 2021 attaching a report from Dr Trevor Lotz, a psychiatrist who diagnosed the appellant as having Asperger’s syndrome. Dr Morris opined that after conducting risk assessments that the risk the appellant poses to his children and other persons is low.^[16] Dr Morris in preparing her report was given a lot of material including affidavits from the ME and statements from the police who attended on the incident on 1 April 2018 together with the Family Court decision.^[17]
40. [40]
    Her report noted that he now acknowledges his behaviour and that he had become quite controlling in the marriage. She noted that his attitudes, particularly early in the marital relationship, towards relationships and parenting were shaped by his early experiences and that he now reports a change in his parenting and interpersonal style.^[18]
41. [41]
    Dr Morris administered a number of tests including a State Trait Anger Inventory which showed that he did not display a pre-disposition for anger and that his scores were consistent with someone who has developed ways to control their anger through therapy.^[19] His scores suggested he is unlikely to act on anger.
42. [42]
    The next test was the Personality Assessment Inventory.^[20] That profile showed his problematic personality traits of impulsivity, history of problems in inter-personal relationships, pre-occupation with a fear of abandonment and uncertainty about life goals although it was opined these difficulties would likely reduce once the stresses of the court cases were overcome. He exhibited traumatic stress related to the family breakdown and reported overall anxiety and depressive symptoms. The testing suggested that his tendency to be active, outgoing and ambitious could impact on others as impatient or demanding. Likewise, his bold and impulsive personality style could impact as unsympathetic and controlling. That was seen as an unwitting consequence of his ADHD and his early experiences in his family of origin. It is reflected in his intense presentation.^[21] The test showed a strong motivation for self-improvement and treatment.
43. [43]
    It was noted at [59] of the report:

“In interpersonal relationships it contributed to past difficulties as he was most likely domineering and overcontrolling, expected respect and admiration, and had difficulty in tolerating differences. Over the past two years I have observed him to address these issues.”

44. [44]
    During examination-in-chief, and in reference to her affidavit of 15 February 2022 which was prepared for the final court hearing, Dr Morris indicated that her assessments led to a conclusion that MRO is not a risk to the aggrieved.^[22] She indicated that she had had a look at the material and there certainly had been risk factors in the past but looking at his behaviour over the last few years, particularly in light of the intervention he has received, and the unrecognised and undiagnosed disorders he was experiencing, his behaviour has improved significantly.^[23]
45. [45]
    In cross-examination Dr Morris confirmed that whilst she was not a specialist in domestic violence treatment, she has had quite a bit of clinical experience in the area of domestic violence counselling. She did find that historical coercive controlling behaviour had occurred.^[24]
46. [46]
    Margaret McDonald provided a report dated 10 November 2020 and two affidavits dated 18 March 2021 and 1 March 2022.  She opined that the appellant does not present any threat to his children and should have contact with them nor does he pose a threat to anyone else.^[25] As at March 2021, she had seen the appellant for 44 sessions of psychological counselling.  Her report indicated that she did not feel that the appellant was ever a risk to his children.  In her most recent affidavit, she indicated that he was still consulting with her and he was medication compliant.^[26]
47. [47]
    When giving evidence, Ms McDonald indicated that she had spent a considerable proportion of her counselling talking about domestic violence and treatment with the appellant in that respect.  When asked about coercive control, Ms McDonald indicated she didn’t think he ever was a coercive controller but even if he was in the past he was certainly not now.^[27]  She agreed she hadn’t seen ME but that she had found parts of her allegations absolutely amazing and that they don’t fit with anything that relates to the appellant, particularly as an example, a suggestion about him owing a gun and weapons.^[28]  He told her he has never owned a gun since 2000, had never applied for a licence and has not got any weapons.^[29]
48. [48]
    This comment was made against the backdrop of the police going to the appellant’s residence when they took out the original police protection order and seizing weapons from his house namely 40 hunting knives, axes and compound bows and arrows.^[30] The appellant has a history of violence with an assault offence occurring on 6 March 1996 and an assault occasioning bodily harm offence occurring on 10 February 2006 for which he was convicted and sentenced to twelve months’ imprisonment, wholly suspended for four years.^[31]
49. [49]
    In deciding the matter, the learned Magistrate went carefully through all the material.  He noted that there was an order of the Family Court on 22 February 2019 prohibiting the appellant from contact with the children and he was required to have regard to that order.^[32]  He was satisfied that a relevant relationship existed and that much was unchallenged.  It was established that there was domestic violence within the relationship not only by the admissions made but also by analysis of the evidence.  He analysed the cases as to the standard of proof and correctly outlined those.
50. [50]
    During the hearing of this matter in the lower court, certain conduct was admitted namely:

    1. there was an incident in 1997 where the appellant threatened to harm himself if ME left him;
    2. there was emotional abuse by the appellant between 2000 and 2003;
    3. the appellant attended ME’s partner’s residence on 1 April 2018, lay in wait for two hours in the bushes and took one of the younger children away with him. He involved his eldest child in this conduct. There was an element of pre-planning in that he hired a vehicle. There was three days between when the children were withheld and when he attended the aggrieved’s de facto home. He was wearing tan-coloured chinos and a taupe coloured skivvy that ME took to be camouflage colours.
51. [51]
    Dr Morris found that historical coercive control had been exhibited by the appellant in his relationship with ME.^[33]
52. [52]
    In relation to the allegations of sexual abuse made by SE towards his mother, the Magistrate accepted that the child had been told to make the complaint by the appellant and that he had told SE to make a false complaint.^[34] I have also watched the 93A statement and having regard to the interview and the explanation given by the child I accept that finding and that this behaviour amounts to domestic violence. The current affidavit that was sought to be used in this hearing does not dispel the soundness of that finding.
53. [53]
    The Magistrate then turned to whether it was necessary or desirable for the order to be made and again analysed a number of previous decisions of this court. I accept the analysis of Judge Horneman-Wren SC in ACP v McAulliffe [2017] QDC 294 and in Arte v Nugent & Anor [2020] QDC 268 that there is a very wide and general power in relation to whether an order is necessary or desirable to protect the aggrieved. In relation to the assessment of the risk there is a need for continuing contact between the parties if the appellant is to have contact with his children.
54. [54]
    It was submitted on the appellant’s behalf that there was a significant change in circumstances namely the diagnosis of ADHD with cyclothymia and Post-Traumatic Stress Disorder for which he is now receiving medication plus the significant amount of counselling and parenting courses that he has had over since 2018.
55. [55]
    The learned Magistrate analysed the evidence of the various medical professionals who had provided reports. His Honour did place importance on the fact that he had not participated in the intervention order and the fact that none of the experts that were called or used were experts in the field of Men’s Behaviour Change Programmes. I accept that this was not a failure by the appellant to attend but a factor of the demand on services of this kind. The lack of participation in specialist counselling or programmes cannot be used as a circumstance against the appellant in this case.
56. [56]
    In deciding whether the order was necessary or desirable his Honour had regard to the fact that the order made on 22 February 2019 in the Federal Circuit Court had not been disturbed.
57. [57]
    The evidence of the experts is in my view of assistance but limited in some respects. Ms McDonald clearly did not believe that the appellant was domestically violent or a controlling person in the past or since. She did not accept the allegations made against the appellant. Her assessment of the appellant through the lens of the therapeutic relationship they were in revealed a bias that significantly affected the weight of her evidence.
58. [58]
    Dr Jha’s report was informative in that he diagnosed some mental health issues that explained some of the appellant’s actions. He was not privy to all the documents in relation to the domestic violence application so his conclusions that there was a low risk was based on his compliance with his medication rather than assessment of past behaviour.
59. [59]
    Dr Morris had all the material in front of her and came to the conclusion that he was no risk of offending. She was not a domestic violence expert but nonetheless her opinion carried weight in assessing the risk. She noted that some of his personality traits would present as unsympathetic, impatient, demanding and controlling.
60. [60]
    The learned Magistrate noted that the aggrieved has experienced domestic violence for a significant period of time, in fact for most of this century. The March 2016 Protection Order which expired on 2 March 2018 involved allegations that the appellant had told her he could "go all Baden-Clay” on her, that he placed his hands around her neck on two occasions and that he had called her abusive names. The Protection Order was made by consent without admissions but nonetheless for an order to be made the Magistrate must have found that there was a basis for making the order on the facts presented to the court.
61. [61]
    The day that the appellant took FA and attempted to take RA, occurred less than a month after the expiration of the 2016 Protection Order.  On that occasion there was planning involved. He lay in wait in the garden for two hours before leaving the residence with the child. He involved his child SE in the behaviour.  SE was prepared to do that at his father’s request. He has previous convictions for offences of violence. He has access to weapons. They share children and therefore it is likely that some contact, either direct or indirect, will occur in the future.
62. [62]
    He has not breached the orders that were in place. Given his profession one would expect him to obey orders of the Court but it also demonstrates that he complies with the orders while they are in force.
63. [63]
    The affidavit signed by SE and presented in this hearing indicates, in my view, that he still has the capability of causing emotional distress to the aggrieved and has no hesitation in supplying material to that effect.
64. [64]
    In my view, given the wide discretion for finding whether an order is necessary or desirable, and focussing on the paramount need for the protection of an aggrieved from domestic violence, the learned Magistrate was within his powers to find that the order was necessary or desirable.  I note that the Magistrate made the order to expire five years from the temporary protection order being taken out rather than the original order which was current for ten years.^[35]
65. [65]
    Finally, the appellant maintains that it is not necessary for the order to be made in relation to his children or the aggrieved partner’s children. Given the events of 1 April 2018, the fact that the children were exposed to domestic violence, and the fact that the appellant still lacks insight into the effect involving his children in this dispute might have on them, I find that there was sufficient cause for all those parties to be included on the order. 

ORDER

66. [66]
    The appeal is dismissed.