SGB v STG[2024] QDC 128

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   I am able to provide this decision ex tempore only due to the history of the matter before me. As I will go on to detail, there has been delay in the hearing of the appeals, and on some occasions the adjournment applications were made relatively close to the hearing date. As such, and in preparation for previous hearing dates and today, I have read and re-read the voluminous appeal record book and viewed the relevant footage (as well as audio). Today, I was assisted by counsel who were able to focus their submissions on the true issues in dispute. 
2. [2]
   The appellant, who I will call SGB, appeals a decision made in the Magistrates Court at Southport on 20 December 2022 naming her as the respondent in a protection order. The appellant, who I will call WTS, appeals a decision made in the Magistrates Court at Southport on 20 December 2022 naming him as the respondent in a protection order. In each case, the respondent in this appeal, who I will call STG, is named as the aggrieved. I made an order, by consent, at the hearing of the appeals, that the appeals be heard together and gave leave to SGB and WTS to file Further Amended Notices of Appeal, as the filed notices and amended notices incorrectly referred to SGB and WTS as the first and second appellants on the one appeal.
3. [3]
   There has been some delay in the hearing of the appeals due to STG’s change in legal representation and then due to the joint submission of the parties that the hearing of the appeals should await the outcome of family court proceedings and then an appeal of those proceedings. The appeal decision of the Federal Circuit and Family Court of Australia (Division 1) was delivered on 22 February 2024. STG then sought special leave to appeal to the High Court of Australia but subsequently discontinued his leave application.
4. [4]
   On 5 April 2024, SGB and WTS filed an application seeking an order pursuant to s 168 (2) of the Domestic and Family Violence Protection Act 2012 (Qld)(Act) that the appeal be heard afresh, in part, and that the appeal be decided on the evidence and proceedings before the Magistrates Court as well as the following fresh evidence which the appellants contended came into existence and / or into the possession of the appellants since the decision of the learned Magistrate on 20 December 2022:

1. (a)
   Orders of the Federal Circuit and Family Court of Australia made on 11  August 2023;
2. (b)
   Reasons for Decision of the Federal Circuit and Family Court of Australia made on 11 August 2023;
3. (c)
   Video of alleged incident on 28 February 2021 (including sound) said to have been provided by STG to the appellants on 1 August 2023 (the new recording); and
4. (d)
   Orders and Reasons of the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction made on 22 February 2024.

1. [5]
   At the hearing of the appeals, after discussion and viewing of the new recording, counsel for SGB and WTS did not press the application for the hearing to be heard afresh in part and was content for the hearing to proceed on the basis of the evidence before the Magistrate and, if the court allowed the appeal and was substituting its own decision on appeal, then sections 77 and 78 of the Act would operate such that the orders and reasons of the Federal Circuit and Family Court of Australia and Orders and Reasons of the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction are to be considered. The respondent agreed with this approach.

The Nature of the Appeal

1. [6]
   Whilst recognising that it has been said that the legislation is far from clear,^[1]  I agree with the analysis of Moynihan KC DCJ in HBY v WBI & Anor [2020] QDC 81 at [16]-[18] which I set out below:

1. [16]
   “The power to appeal a relevant decision is found in s 164 of the [Domestic and Family Violence Protection Act 2012 (Qld) (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:

1. “168
   Hearing procedures

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

1. [17]
   Section 169 of the Act provides that the powers of the appellate court are:

1. “169
   Powers of appellate court

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

1. (a)
   confirm the decision appealed against; or
2. (b)
   vary the decision appealed against; or
3. (c)
   set aside the decision and substitute another decision; or
4. (d)
   set aside the decision appealed against and remit                    the matter to the court that made the decision. 

1. (2)
   The decision of the appellate court upon an appeal shall be final and conclusive.”

1. [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.”

1. [7]
   In Ratten v The Queen (1974) 131 CLR 510 the High Court determined that to be considered on appeal, fresh evidence must be evidence which was not available to the appellants at the trial,^[2] and it is relevant and credible evidence.^[3]
2. [8]
   The onus is on the appellant to show that there is some error in the decision under appeal.^[4] I recognise that in conducting the re-hearing, I must consider that the Magistrate had the advantage of seeing and hearing the witnesses as part of the process of the evaluation of credibility and reliability.^[5]  I must conduct a real review of the evidence and proceedings below, including the reasons below, and make my own determination of relevant facts in issue from the evidence including any inferences to be drawn giving due respect and weight to the Magistrate’s conclusions.^[6]

The Proceedings before the Magistrates Court

Background facts

1. [9]
   In 2007, STG suffered a motorcycle accident which resulted in him becoming a quadriplegic. He is confined to a wheelchair. SGB and STG formed a relationship in 2008; commenced residing together in 2009; married in 2011 and are the biological parents of 2 children. SGB and STG separated in March 2020.

1. [10]
   WTS is the biological father of SGB and the grandfather of the children. Prior to the separation, he was also STG’s father-in-law.
2. [11]
   From the time of separation in March 2020, the children resided with both parents in an equal parenting arrangement until 4 July 2021 when STG refused to hand the children back to SGB.
3. [12]
   SGB and WTS had not spent any time with the children since July 2021.
4. [13]
   On 5 July 2021, SGB commenced proceedings in the Federal Circuit and Family Court of Australia seeking urgent interim parenting orders.
5. [14]
   On 16 July 2021, STG filed an Application for a Protection Order against SGB. On 29 July 2021, STG filed an Application for a Protection Order against WTS.

The Proceedings below

1. [15]
   The application for the protection orders against SGB and WTS were heard in the Magistrates Court over five days on 11 April 2022; 12 April 2022; 20 May 2022; 16 August 2022; and 19 August 2022.
2. [16]
   During the course of the hearing, SGB and WTS conceded that a relevant relationship exists between each of them and STG and the children, and that section 37 (1)(a) of the Act is satisfied. SGB and WTS also accepted that the respondent is a vulnerable person for the purposes of section 4(2)(d) of the Act by virtue of his physical disability.
3. [17]
   The appellants opposed the making of the protection orders sought by the respondent on the grounds that:

1. (a)
   Section 37 (1)(b) of the Act had not been satisfied because no act of domestic violence had been committed against either STG or the children as alleged by STG or at all;
2. (b)
   Section 37 (1)(c) of the Act had not been satisfied because a protection order is neither necessary or desirable to protect STG or the children from domestic violence; and
3. (c)
   The making of the applications for protection orders by STG was for illegitimate purposes and was malicious, frivolous, vexatious and an abuse of process.

1. [18]
   During the course of the hearing, STG confined his allegations of domestic violence for the purposes of section 37 (1)(b) of the Act to the following alleged incidents:

SGB

1. (a)
   an incident on 28 February 2021 in which STG alleges that SGB pushed him from his wheelchair;
2. (b)
   an allegation that SGB smacked the male child on a number of occasions; and
3. (c)
   SGB’s involvement in an incident at the childrens’ school on 15 July 2021.

WTS

1. (a)
   in December 2019, WTS smacked a friend of the male child at a school Christmas concert;
2. (b)
   in January 2020, WTS smacked the male child in the backyard of STG’s parent’s house in Helensvale;
3. (c)
   WTS pulled the male child off some boxes stacked in STG’s garage at Helensvale;
4. (d)
   WTS pushed or pulled the male child so to cause him to suffer carpet burns;
5. (e)
   on 15 July 2021 WTS opened the respondent’s moving car door to try and remove the male child from the vehicle in the car park of the Coomera Anglican College.

1. [19]
   At the hearing, SGB, WTS and STG gave evidence and were cross-examined together with a number of other witnesses.
2. [20]
   Following the hearing, the parties filed written submissions.
3. [21]
   The learned Magistrate, in a written decision delivered on 20 December 2022, found that SGB had committed an act of domestic violence by pushing STG from his wheelchair on 28 February 2021,^[7] and that her involvement in the incident at the school on 15 July, 2021 also amounted to domestic violence.^[8] However, the learned Magistrate did not make any findings that SGB had committed an act of domestic violence by smacking the male child on a number of occasions.^[9]
4. [22]
   The learned Magistrate found that WTS had committed an act of domestic violence by opening STG’s car door during the incident at the school on 15 July 2021.^[10] However, the learned Magistrate did not make any findings that WTS had committed any other act of domestic violence.^[11]
5. [23]
   The learned Magistrate found that it is necessary and desirable to make the protection orders in relation to STG^[12] and the children.^[13]
6. [24]
   In relation to the application brought by STG filed on 16 July 2021, a protection order was made in the mandatory conditions naming SGB as the respondent, STG as the aggrieved and including as named persons the children for a term of five years ending 19 December 2027.^[14]
7. [25]
   In relation to the application brought by STG filed on 29th July 2021, a protection order was made in the mandatory conditions naming WTS as the respondent, STG as the aggrieved and including as named persons the children for a term of five years ending 19 December 2027.^[15]

The Act

Section 37 (1) of the Act

1. [26]
   Section 37 (1) of the Act provides the Court may make a protection order against the respondent for the benefit of the aggrieved if the Court is satisfied that:

1. (i)
   A relevant relationship exists between the aggrieved and the respondent; and
2. (ii)
   The respondent has committed domestic violence against the aggrieved; and
3. (iii)
   The protection order is necessary or desirable to protect the aggrieved from  domestic violence.

Meaning of Domestic Violence

1. [27]
   Section 4 (2)(d) of the Act relevantly provides:

“if people have characteristics that make then particularly vulnerable to domestic violence, any response to the domestic violence should take into account those characteristics.”

Section 8 (1) of the Act defines “domestic violence” to relevantly include behaviour that:

1. (a)
   is physical or sexually abusive; or
2. (b)
   is emotionally or psychologically abusive;^[16] or
3. (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.

1. [28]
   Section 9 of the Act defines “associated domestic violence” to include any behaviour mentioned in section 8 towards a child of an aggrieved and section 10 of the Act provides that a child is “exposed” to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence.

The Necessary or Desirable Test

1. [29]
   Section 37 (2)(a) of the Act provides that in deciding whether a protection order is necessary or desirable, for the purposes of section 37 (1)(b), the court must consider:

1. (i)
   The principles in section 4; and
2. (ii)
   If an intervention order has previously been made against the respondent, any failure to comply with the order.

1. [30]
   The paramount principle in section 4 (1) is the safety, protection and wellbeing of people who fear or experience domestic violence, including children.

1. [31]
   Section 145 provides that a court hearing an application for a protection order is not bound by the ‘rules of evidence’ or ‘any practices or procedures applying to courts of record’. As well, the court need only be satisfied of a matter on the balance of probabilities.

Grounds of Appeal

1. [32]
   I have considered the appeal grounds in a different order than that in the Further Amended Notice of Appeal and, on occasions, together. This has been necessary given the overlap of issues raised and the disposition of this matter.
2. [33]
   I will consider the appeal by SGB first.

Appeal ground 1: The learned Magistrate erred in making a finding that SGB had committed an act of domestic violence by pushing STG from his wheelchair on 28 February 2021

Appeal ground 2: The learned Magistrate failed to properly consider and evaluate all of the evidence and give any or any proper or adequate reasons for the finding

1. [34]
   There are two grounds relevant to the finding that SGB committed an act of domestic violence by pushing STG from his wheelchair. One contends error in law or fact in the finding. The other contends failure to give proper or adequate reasons. Whilst these form separate grounds of appeal, to my mind, they overlap to such an extent that they should be considered together.

The reasons of the Magistrate

1. [35]
   In the learned Magistrate’s written reasons, which were delivered four months after the final hearing date, his reasons for finding that SGB pushed STG from his wheelchair are contained at paragraphs [28]-[37]. After stating at [30] what evidence he had reviewed, including that he had “watched the footage of the incident a number of times”, the learned Magistrate indicated that he was satisfied to the requisite standard that SGB pushed STG from his wheelchair. His reasons for so finding appear to be:

1. (i)
   SGB appeared frustrated on the footage;
2. (ii)
   STG suffers from a lack of core strength and only requires a slight push to fall out of the wheelchair;
3. (iii)
   STG impressed him as a credible witness and he did not find SGB to be a credible witness;
4. (v)
   SGB made no effort to enquire as to STG’s welfare or whether he had been injured when he fell from the chair;
5. (vi)
   It is quite unlikely he fell from the chair himself.

SGB’s position on appeal

1. [36]
   SGB submits that there were substantial issues with the respondent’s credit which emerged from the evidence and submissions, however, the learned Magistrate failed to refer to, or consider, or provide reasons in relation to the respondent’s credibility issues at all when deciding that he preferred the respondent’s evidence over the evidence of SGB in finding that SGB pushed the respondent from his wheelchair.
2. [37]
   SGB also submits that her conduct after the event is not relevant to determining whether the preceding incident occurred, and in any event, having regard to the audio on the recording,^[17] it is clear that the learned Magistrate was mistaken about whether SGB enquired as to the respondent’s welfare. I pause to make it completely clear, as I indicated to counsel for the appellants during the appeal hearing, that I am not prepared to make a finding that this occurred. To my mind there is a real issue as to whether it is, in fact, SGB or another person who uttered the words contended by SGB to have been uttered by her. This was not advanced below. Returning to the submissions of SGB, there are a number of other possible explanations for the Magistrate’s finding that SGB did not offer assistance to the respondent after he fell from his chair which are consistent with SGB’s innocence that the Magistrate did not consider at all:

1. (a)
   In paragraph [32] of his Decision, the Magistrate accepted that the microphone attached to the camera may not have detected the conversations inside the residence so it follows that the microphone may not have detected SGB asking after the respondent;
2. (b)
   The evidence was that there were 2 other persons in the house at the time who were coming to the aid of the respondent; and
3. (c)
   WTS, who was outside, realised the respondent had fallen from his wheelchair and yelled out to enquire if he was alright.

1. [38]
   SGB submits that if the video is slowed down to ¼ speed, the following becomes clearly apparent:

0.00.54 SGB enters house.

0.01.08 respondent moves and positions his wheelchair in the middle of the doorway facing with back to the road.

0.01.11 respondent falls backwards out of his wheelchair.

1. [39]
   It is submitted that the video does not depict the respondent contemporaneously accusing SGB of pushing him. The video depicts the respondent giving SGB a piece of paper after the incident rather than accusing her of pushing him and when asked what happened, the respondent did not contemporaneously tell his partner what had allegedly occurred.

The respondent’s position on appeal

1. [40]
   The respondent submits that adequate reasons were given and the learned magistrate was entitled to use his overall observations of SGB, including in relation to the incident on 15 July 2021 which was inconsistent with other witnesses, when assessing her credibility in relation to the wheelchair incident. The respondent further submits that the learned Magistrate had the advantage of hearing and seeing the witnesses give evidence which is not enjoyed by this Court sitting on appeal.
2. [41]
   At the hearing today, the respondent’s position was that the learned Magistrate did consider and reject other reasons for why SGB did not offer assistance to him. The respondent’s position is that the magistrate did this at paragraphs 30 and 31 of his reasons when he said “I have reviewed the evidence of both parties” and “having reviewed all of the evidence…”. It was also submitted that the post-offence conduct of SGB was one of the considerations but was not determinative.

The ground/s are established

1. [42]
   It is my view that the learned Magistrate failed to give adequate reasons for finding that SGB pushed the respondent from his wheelchair or, alternatively, the conclusion is erroneous.
2. [43]
   The only witnesses to the alleged incident are SGB and the respondent. SGB denies pushing the respondent out of his wheelchair on 28 February 2021. The respondent’s evidence was that SGB pushed him on the shoulder causing him to fall out of his wheelchair.
3. [44]
   There was CCTV footage^[18] although the footage does not show the incident only the immediate aftermath.
4. [45]
   As was ultimately accepted by SGB in not pursuing the application for the new recording to be considered on the appeal as fresh evidence, there seems little difference in the quality of the audio of the recording tendered below and the new recording. What can be heard may depend on the device that is being utilised to play the recording and how the audio is being listened to, for example, whether a headset is used. The difficulty is that it is unknown what of the audio the learned Magistrate was able to hear on the footage tendered in the proceeding. It seems it was not played in open court. It is not referred to in the Magistrate’s reasons other than the Magistrate noting that he could not hear any request on the footage of the respondent asking SGB to pick up the child’s hat^[19] and “what can be heard on the footage is what appears to be the sound of the [respondent’s] wheelchair rolling backwards down the ramp from his door.”
5. [46]
   I recognise that reasons do not need to address every aspect of the evidence in making relevant findings. However, a failure to provide adequate reasons for a decision made can amount to an error of law if it relates to the central issues. Reasons do not need to be lengthy or elaborate but it is necessary that the essential ground or grounds upon which the decision rests should be articulated.^[20] In Hamra v The Queen (2017) 260 CLR 479 at [42] the High Court said:

“…it is not necessary in every case to refer to every factor which has weight in a discretionary decision. What is sufficient in each case does not depend upon any rigid formula and will be informed by all the circumstances of the case, including the submissions that were made.”

1. [47]
   I also accept that the busy nature of a Magistrates Court may have relevance although, here, written reasons were provided some four months after the final hearing date. It cannot excuse an error of law if it has occurred due to the reasons being inadequate.
2. [48]
   As I have said, in my view, it is clear that the Magistrate’s reasons for conclusion are inadequate, or alternatively the conclusion is erroneous. Whilst this is not determinative, it would have been a far easier process on appeal to consider whether the new recording was, in fact, fresh evidence if the audio was summarised in the reasons of the Magistrate. It was not and, as such, time was taken considering the respective positions of the parties as to the “quality” of the new recording versus that tendered in the proceedings below. Counsel for SGB ultimately accepted that the new recording was of little to no difference in sound quality to that available at the hearing. However, that does not ultimately assist the respondent as, to my mind, more detailed reasons were required including considering parts of the audio in the reasons. The reasons leave the appellate court wanting in understanding the path of reasoning taken to the finding. To my mind, the reasons were inadequate for at least the following considerations alone or in combination:

1. (i)
   The learned Magistrate found at [36], that SGB “made no effort to enquire as to the [respondent’s] welfare [after the incident]” and used that, it seems, as a circumstance relevant to his finding that SGB pushed the respondent out of the wheelchair. However, the learned Magistrate failed to state in his reasons that he had considered, weighed, and rejected other explanations which in this case would include that it was not necessary for SGB to offer assistance given that WTS had asked whether the respondent needed assistance and the respondent indicated that he had asked his partner for assistance and she immediately attends. That was, in fact, the evidence of SGB in her affidavit. It is not clear at all how and why this was rejected on the state of the evidence. I do not accept the submission of the respondent that I should infer that the magistrate had weighed, considered and rejected other explanations as the Magistrate said generically that he had “reviewed the evidence of both parties” and “[had] reviewed all of the evidence”. I also do not accept the submission of the respondent that I should infer that this was not a determinative factor in the learned Magistrate’s reasoning. It is unknown how much weight was given to this factor.
2. (ii)
   the respondent says that immediately following being pushed from the wheelchair he recalls saying words to the effect of “…fucking hell are you doing?”. He says he “sat up on the ground and waited for assistance however [SGB] walked straight past and down the driveway”.^[21] The respondent fails to mention what is heard on the recording which includes that he asked his partner for assistance which should have been considered and weighed by the magistrate in determining whether the respondent’s evidence should be accepted in whole or in part.
3. (iii)
   The learned Magistrate did not address in his reasons any of the contentions of SGB on matters said to impact the respondent’s credibility. This includes at least the timing of the complaint by the respondent and how it came to be made and the respondent’s statements to police. As such, it is unknown what the Magistrate made of these matters and why he preferred the respondent’s evidence over that of SGB in relation to this incident. It will not be necessary in all matters for a Magistrate to set out in reasons why the evidence of one witness is preferred over the other, but the factors in the present case were, to my mind, of sufficient import to be set out in the reasons and details provided as to why the respondent’s evidence was accepted to the requisite standard.

1. [49]
   This ground is successful.

Appeal ground 3: The learned Magistrate erred in making a finding that SGB had committed an act of domestic violence by virtue of her involvement in the incident at the school on 15 July 2021

Appeal ground 4: The learned Magistrate failed to properly consider and evaluate all of the evidence and give any or any proper or adequate reasons for the finding

1. [50]
   There are two grounds relevant to the finding that SGB committed an act of domestic violence by virtue of her involvement in the incident at the school on 15 July 2021. One contends error in law or fact in the finding. The other contends failure to give any or adequate reasons. Whilst these form separate grounds of appeal, to my mind, they overlap to such an extent that they should be considered together.
2. [51]
   The relevant witnesses in relation to this incident were SGB, WTS, the wife of WTS, a friend of SGB and the respondent. There was also footage taken by the respondent from his car and footage of the incident from the school grounds.
3. [52]
   The respondent alleged that he was approached while driving his car in which the children were passengers and that WTS opened the door of that car and grabbed the wrist of the male child. The respondent said that he was intimidated by SGB and WTS who were in the company of WTS’s wife and friend. The respondent said he was fearful for the safety and welfare of himself and the children. He gave evidence that he believed the appellants attended the school in order to remove the children without his consent. The appellants denied this. There was an allegation from the appellants that the respondent had driven his car at the wife of WTS and that was the reason for WTS opening the door of the car driven by the respondent.

The reasons of the Magistrate

1. [53]
   The Magistrate summarises the evidence of the respective witnesses at [33]-[56]. The Magistrate ultimately finds that the car door being opened by WTS is an act of domestic violence (see [61] and [62] and heading before [57]). It does not appear that any other act of WTS was found to be an act of domestic violence. In relation to SGB, the Magistrate finds that her involvement “in this incident” amounts to an act of domestic violence.

SGB’s position on appeal

1. [54]
   SGB submits that her only action during the carpark incident was to say “I love you” to the children that she had not seen for a long time.
2. [55]
   It is submitted that as a matter of law, the sole act of saying “I love you” could not fall within the ambit of the definition of domestic violence, as defined by section 8 (1) or 8 (2) of the Act or the definition of emotional or psychological abuse, intimidation or harassment of the respondent, or the children, as defined by section 11 of the Act. Therefore, even at its highest, this allegation could not possibly satisfy the test in section 37 (1)(b) of the Act.
3. [56]
   SGB submits that the learned Magistrate’s reasons for finding that SGB’s involvement in the carpark incident amounted to domestic violence appears to be based on his finding, in [60] of the decision, that the reasons for the appellants attending the school amounted to a conspiracy to recover the children, if at all possible.
4. [57]
   However, SGB submits that there is no relevant, reliable or objective evidence upon which that finding could be reasonably based and the finding is purely based on irrelevant, circumstantial evidence. It is submitted that even if SGB did attend the school on a single occasion with the intention of recovering the children, which is denied, then that, in itself, was not unlawful or contrary to any order and did not render her sole act of saying “I love you” to the children an act of domestic violence.
5. [58]
   SGB submits that the facts of this case bear striking similarity to the facts in AVI v SLA [2019] QDC 192. In that case, Smith DCJA dismissed an appeal against the refusal to make a protection order, finding, inter alia, a single incident in that case did not amount to intimidation and was not an act of domestic violence within the meaning of the Act.

Respondent’s position on appeal

1. [59]
   The respondent submits that it was open on the evidence to find that the actions of SGB in being present and participating in the incident in the car park, when he was driving, was an act of domestic violence. It is an act of intimidation. The respondent submits the role of SGB was greater than that contended for by her. She was in company with WTS and others who approached the moving vehicle to intimidate him. The respondent submits that the actions were more extensive than just saying “I love you” and extended to her entire behaviour on the day at the school. Today, in submissions, counsel for the respondent submitted that I should infer that the act of domestic violence was collectively going to the school without a reasonable explanation and confronting the respondent in the way that occurred. This is what the Magistrate meant by “[SGB’s] involvement in this incident.”

The grounds/s are established

1. [60]
   In my view, the learned Magistrate did err. The Magistrate failed to give adequate reasons for finding that SGB committed an act of domestic violence (and what that act was), alternatively, the conclusion is erroneous.
2. [61]
   The Magistrate determined that as SGB was also “involve[ed] in this incident” this amounted to an act of domestic violence by SGB.^[22] No or inadequate reasons were provided by the Magistrate as to any findings of fact leading to a pathway of what the “act” of domestic violence was. I recognise that the learned Magistrate did say that “four persons approached the vehicle…” but nothing further is detailed as to what act of domestic violence was committed by SGB. The “act” which the learned Magistrate referred to as being “undertaken to instil fear in [the respondent] and demonstrate his vulnerability and therefore amounts to an act of intimidation” must be WTS opening the car door. The learned magistrate fails to consider in his reasons that there was no evidence that SGB even knew that this was going to occur. 
3. [62]
   I do not accept the submission of the respondent that the reasons of the Magistrate are such that it should be clear or implied that the “act” of SGB was going to the school with others without a reasonable explanation and confronting the respondent in the way that occurred. To my mind, it is not clear from the reasons what act of domestic violence was found against SGB. Error is established on this ground.
4. [63]
   Given my findings in relation to the grounds above, it is unnecessary to determine the remaining grounds in relation to SGB. I consider further the appropriate disposition of the appeal below which is also relevant as to why I have not considered the ground of appeal relating to SGB of making a finding that it was necessary and desirable to make the protection order.
5. [64]
   I turn to the appeal by WTS.

Appeal ground 1: The learned Magistrate erred in making a finding that WTS had committed an act of domestic violence by opening the car door during the incident at the school on 15 July 2021

Appeal ground 2: The learned Magistrate failed to properly consider and evaluate all of the evidence and give any or any proper or adequate reasons for the finding

The Magistrate’s reasons

1. [65]
   The Magistrate summarises the evidence of the witnesses at [38]-[56]. The Magistrate then sets out the definitions of domestic violence in sections 8 and 11 of the Act as well as statements of principle at [57]-[59]. The finding of the Magistrate as to the act of domestic violence was limited to the opening of the car door whilst the vehicle was moving. It is relevant that the opening of the car door followed four persons approaching the vehicle being driven by STG. That is, it gives the act context.

WTS’s position on appeal

1. [66]
   It is submitted by WTS that his act of opening the car door was not domestic violence, as defined by section 8 (1) or 8 (2) of the Act. This incident occurred at the school and at the time that it occurred, neither appellant knew or could have known that the children were not at school or would be arriving at the carpark with the respondent whilst the appellants were there. The entire interaction was purely coincidental.
2. [67]
   It is further submitted that there is no relevant or objective evidence that WTS was there as part of some conspiracy to take the children from the school or enrol them in another school, as alleged by the respondent. There were no protection orders in place at the time of the incident which would have prevented either appellant from attending the school.
3. [68]
   WTS emphasises his explanation for opening the left hand (passenger) front car door.^[23] Specifically, he contends that:

1. (a)
   he did not know that a child was sitting in the front passenger seat of the car;
2. (b)
   he opened the car door to talk to the respondent about what had just occurred on the pedestrian crossing involving his wife;
3. (c)
   he did not touch the child and definitely did not grab at him. By slowing the video down to ½ speed, it is apparent that there is no evidence of him grabbing the child;
4. (d)
   whilst the child was visibly upset during the incident, he did not intend to cause any fear in the child or anyone else. When he saw the child in the front seat, he just said “hello” and as the respondent had started to accelerate the vehicle, he immediately closed the front door for safety; and
5. (e)
   there was no verbal abuse or harassment of any person during the incident and no injuries sustained by any person during the incident.

1. [69]
   WTS submits that even at its highest, this allegation which is based on a single event does not satisfy the test in section 37 (1)(b) of the Act because, as a matter of fact, it did not amount to domestic violence, harassment or intimidation.

Respondent’s position on appeal

1. [70]
   The respondent submits that WTS was the person who actually opened the car door whilst he was driving the vehicle. The respondent submits that it was clearly open on the evidence for the Magistrate to find this was an act of intimidation by WTS and therefore an act of domestic violence. He submits that the Magistrate found the evidence of WTS unreliable and his explanation for opening the car door was not accepted.

The ground/s are not established

1. [71]
   In my view the learned Magistrate did not err in finding that WTS’s act of opening the car door was an act of domestic violence as it was intimidation. I agree that intimidation “refers to a process where the person is made to feel fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour.”^[24] The reasons, whilst they could have been more fulsome, adequately set out the process of reasoning and there is no error in it.
2. [72]
   The act of WTS opening the car door was captured on recordings. The vehicle was moving. The learned Magistrate set out the evidence of the respective witnesses and properly considered and rejected the evidence of WTS as to his explanation for opening the door ([40]-[45] and [61]). As the learned Magistrate correctly determined “the opening of the car whilst it was moving was unnecessary and unexpected…It is generally accepted practice that one does not open the door of a moving vehicle, particularly where a child is seated. It is clear that both children were distressed…”.
3. [73]
   A single event of opening a car door would not in all circumstances amount to intimidation but it is the sort of conduct which could amount to conduct which intimidated. It was not an error for the learned Magistrate to determine in the circumstances that the act by WTS of opening the car door was “undertaken to instil fear in [the respondent] and demonstrate his vulnerability and therefore amounts to an act of intimidation. [The respondent], given his disability, would have no ability whatsoever to react or to act to defend his son should there have been an attempt to remove him from the vehicle. It is obvious helplessness which founds the fear.”^[25] Given the circumstances and the vulnerability of the respondent, no error has been demonstrated in the Magistrate’s finding that it was an act of domestic violence being intimidation.

Appeal ground 3: The learned Magistrate erred in making the finding that it was necessary and desirable to make the protection order against WTS

Appeal ground 4: The learned Magistrate failed to properly consider and evaluate all of the evidence and give any or any proper or adequate reasons for the finding

1. [74]
   I have determined that the learned magistrate did not err in finding that WTS committed an act of domestic violence by opening the car door at the school. The Magistrate then determined that it was necessary and desirable to make the protection order against WTS.

Reasons of the Magistrate

1. [75]
   The learned Magistrate referred to the decision of MDE v MLG v Queensland Police Service [2015] QDC 151. In relation to WTS, in considering whether there is a risk of future domestic violence between the parties in the absence of an order, he concluded that:

1. (i)
   he was “present at the incident on 15 July 2021 and it was he who opened the door of the vehicle”;^[26]
2. (ii)
   “it seem that he is supportive of [SGB] and plays an active part in her life and wishes to have an active role in the children’s life…”;^[27]
3. (iii)
   “I find that there is an evidentiary basis that there is a risk of future domestic violence in the absence of an order against [SGB and WTS], particularly taking into account that [STG] and [SGB] have young children and the parties will need to remain in contact for at least the next twelve years…”.^[28]

1. [76]
   The learned Magistrate then said he needed to assess the need to protect STG from domestic violence in the absence of an order. In relation to WTS he concluded that the “behaviour” may well continue in the absence of an order and made reference to the vulnerability of STG.^[29] Finally, the learned Magistrate considered whether imposing a protection order is necessary or desirable. The learned Magistrate found at [79] that given the family court proceedings it is “clear that there is going to be some continuing contact between both the aggrieved and [SGB and WTS] in connection with their respective rights and obligations in relation to the children, keeping in mind that [WTS] is the biological grandfather to [STG’s] children.”^[30] The learned Magistrate again referenced the vulnerability of STG and found that it is “necessary and desirable to make protection orders against [SGB and WTS] to protect [STG], a person with a significant disability, from domestic violence. In my view his disability makes him particularly vulnerable to domestic violence as displayed by the conduct of [SGB and WTS] on 25 July 2021”.^[31]

Position of WTS on the appeal

1. [77]
   WTS properly accepts in his submissions that the learned Magistrate correctly described the approach to be followed in assessing the risk of future domestic violence: there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing might happen in the future. WTS submits that the decision being appealed in MDE v MLG & Queensland Police Service is in very similar terms to the present decision and the Magistrate erred as per the grounds of appeal.

Position of the respondent on the appeal

1. [78]
   The respondent submits that the Magistrate properly considered whether it was necessary and desirable to make an order against WTS at paragraphs [68]-[81] of his decision. His Honour referred to the three stage process in MDE v MLG & Queensland Police Service and then applied the facts of the present matter to that process. The respondent submits that the concessions by him in cross-examination do not detract from the fact that acts of domestic violence were committed against him and that there is a risk that future acts may be committed in the absence of an order. The respondent submits that future contact in relation to the children and the ongoing litigation are relevant to the making of the assessment of risk.

Error established

1. [79]
   To my mind, when the evidence is considered the learned Magistrate did err in determining that it was necessary and desirable to make a protection order in relation to WTS. Notwithstanding that the respondent is a vulnerable person, the making of a protection order was neither necessary or desirable to protect the respondent from domestic violence because there was no evidence of any risk of domestic violence occurring in the future, if an order is not made. The Magistrate erred in determining that there was. There must be a proper evidentiary basis for concluding that there is such a risk.

1. [80]
   The Respondent conceded in cross-examination that:

1. (i)
   WTS has never been to his house for any inappropriate or unreasonable purpose;
2. (ii)
   WTS had never damaged his property at his residence;
3. (iii)
   WTS had never trespassed or tried to gain access to his residence;
4. (iv)
   WTS had never threatened to do any of these things.

1. [81]
   The act of domestic violence of WTS, as found by the Magistrate, was limited to one occasion of intimidation in opening a car door at the school. I recognise that the context to that act is relevant including that there were four persons present; the Magistrate found that there was a nefarious purpose for their attendance at the school; it was unexpected; there were children in the car; and the act only ended as the respondent drove away.
2. [82]
   In relation to the incident where the respondent alleged that SGB pushed him out of the wheelchair, the objective evidence from the CCTV footage is that WTS waited in the car and was quick to enquire of STG’s welfare and offer assistance. This was not considered by the Magistrate at all.
3. [83]
   The Magistrate’s reasons for finding that a risk exists conflate what should have been the separate consideration of SGB and WTS. As an example, in looking at an assessment of future risk of domestic violence in the absence of an order, most of the reasoning relates to SGB. Then, the Magistrate briefly refers to WTS at [72] and concludes that there is a risk of future domestic violence referring back to the relationship between SGB and STG.
4. [84]
   It was an error for the Magistrate to determine that there was a risk of WTS committing domestic violence in the future if an order is not made. As I have said, there must be more than a mere possibility or speculation of the prospect of domestic violence. There was none in this case. It was an error for the Magistrate to determine that it was necessary to make a protection order, in order to protect STG from domestic violence by WTS. It was also an error for the Magistrate to determine that it was desirable to make such an order. The incident was an isolated one. I fully accept that there will be occasions where an isolated occasion is sufficient for it to be determined, in the exercise of discretion, that it was necessary or desirable for the order to be made. However, to my mind this is not such a case. On the evidence, there is no real risk of future domestic violence. A particular submission of the respondent’s counsel on the hearing today was that there was “heat in this relationship and animosity between all of these parties” and the Magistrate recognised that WTS would continue to have contact as a result of the shared custody arrangement. I accept that is the case and I recognise that the Magistrate had the opportunity to observe the parties before him in the course of the hearing and I have taken this into account in my determination. However, my view remains that on the evidence the Magistrate erred.

Disposition

WTS- set aside the decision and application is dismissed

1. [85]
   In relation to WTS, I allow the appeal and pursuant to s 169(1)(c) of the Act, I set aside the decision and substitute another decision namely that the application for the domestic violence order is dismissed. For the reasons I have already set out above in determining that there was error, I determine that it was not necessary or desirable for a protection order to be made against WTS. I note that as I have, in substituting a decision, decided whether to make a domestic violence order then pursuant to s 78 of the Act, I considered the family court orders.

Remit to Magistrate’s court for fresh hearing for SGB

1. [86]
   I have determined that the Magistrate was in error relating to his findings of domestic violence in relation to SGB. I have expressly considered whether this court should substitute its decision for that of the Magistrate or should remit the matter for a fresh hearing. Finality of litigation and limiting financial and emotional costs are important considerations. However, the trial in the Magistrate’s Court involved considerable evidence both by affidavit and orally. The Magistrate made findings of fact based on credibility and reliability. Assessments of credit have long been the subject of judicial discussion in appellate courts. It is well expressed that appellate courts, in attempt to assess the credit of witnesses, are almost always at a disadvantage in not having the same experience of the evidence or the ability to observe the witnesses as they gave evidence.

1. [87]
   Today, counsel for SGB made submissions which, to my mind, the respondent should be given the opportunity to answer before any determination is made. For example, no contemporaneous complaint was made by the respondent that SGB had pushed him from the wheelchair. There may well be an explanation for this and, as a matter of fairness, it should be put to the respondent in cross-examination before there can be reliance on that fact. That is but one example. The appropriate disposition of the appeal in relation to SGB is to remit the matter to the Magistrates Court for rehearing before a different Magistrate. It is accepted that the respondent is a vulnerable person. If, on rehearing, it is determined, in particular, that SGB pushed the respondent from his wheelchair, then it is very much in issue as to whether it is necessary or desirable to make a protection order in relation to SGB which should be considered on the state of the evidence before the Magistrates Court on the remitted hearing. Nothing I have detailed should be taken as expressing any view that I consider STG should continue with his application against SGB which was filed many years ago.

Orders

1. [88]
   The orders of the court are as follows:

In D No 8 of 2023

1. 1.In relation to SGB, appeal allowed;
2. 2.In relation to SGB, the order made by the Magistrates Court at Southport on 20 December 2022 be set aside;
3. 3.In relation to SGB, the matter is remitted to the Southport Magistrates Court to be heard by a different magistrate and listed at the first convenient opportunity as notified by the Registrar of that Court to facilitate the further hearing of the application filed on 16 July 2021;

In D No 211 of 2024

1. 1.In relation to WTS, appeal allowed.
2. 2.In relation to WTS, the order made by the Magistrates Court at Southport on 20 December 2022, be set aside;
3. 3.In relation to WTS the application for a protection order filed by the respondent against WTS on 29 July 2021 is dismissed.

In D No 8 of 2023 and D No 211 of 2024

1. 1.The appellants have 14 days from 30 July 2024 to file any submissions in relation to costs, to be limited to 3 pages;
2. 2.The respondent has 4 weeks from 30 July 2024 to file any reply submissions in relation to costs, to be limited to 3 pages;
3. 3.Any application for costs will be heard on the papers unless the parties are advised otherwise;
4. 4.Further Amended Notices of Appeal must be filed by 4pm 31 July 2024.