HIK v HCA[2024] QDC 155

DISTRICT COURT OF QUEENSLAND

TABLE OF CONTENTS

Introduction

1. [1]
   The Appellant, who I will refer to as HIK, and the Respondent, who I will refer to as HCA, commenced a relationship in January 2010.  In mid-2010, they commenced living together.  They were engaged to be married in April 2014, but never married.  HIK and HCA have two biological children together.  They separated on 3 November 2017. 
2. [2]
   Throughout their relationship, HIK and HCA both used cannabis.  When the relationship ended, HIK stopped using cannabis.  HCA did not.
3. [3]
   In November 2017, HIK and HCA attended a mediation at which they agreed that the children would be predominantly in the care of HCA and would stay with HIK three nights per week. 
4. [4]
   Even though the relationship had ended, HIK and HCA continued to communicate by text message and email, predominantly with respect to issues associated with the children.
5. [5]
   In 2018, HIK commenced legal proceedings seeking parenting orders. 
6. [6]
   Over the course of the next few years, there were text and email communications between HIK and HCA in which they disagreed about the care of the children.
7. [7]
   On 1 December 2020, the Federal Circuit and Family Court of Australia made orders about parental responsibility for the children (“the 2020 Parenting Order”).  Under the 2020 Parenting Order, HIK was authorised to request HCA to undergo drug testing.  HCA was obliged to comply.  The order stipulated that if HCA tested positive or breached the order, HCA’s unsupervised time with the children would be suspended until such time that HCA provided HIK with a clear hair follicle test result.  These stipulations in the 2020 Parenting Order reflected the recommendations made by the family report writer.  The recommendations were made to address the family report writer’s concerns about the safety and welfare of the children.
8. [8]
   On 28 July 2022, HCA applied for a protection order. 
9. [9]
   In her application, HCA identified the grounds on which she sought the protection order as follows:

“The respondent has a pattern of behaviour of removing the children “without cause”.  The respondent intimidates and harasses me when I won’t agree to changes to care, he then humiliates me with testing for illicit drugs when I continue to refuse as no evidence of behaviours of concern are presented, he continues to withhold the children.  He refuses to communicate and engage in discussions with the school and delayed mediation by 6 weeks.  The respondent creates a pretense (sic) of concern, and subsequent removal to control me.  The respondent has kept the children home from school when he believes I may attend.  The respondent is aware my test in (sic) clean of illicit drugs but continues to withhold the children.  January 2020 – 3.5 months.  The respondent claimed “concerns” in January 22 – Witholding (sic) for 1 week.  March 22 – present.”

10. [10]
    The grounds advanced to support the children being named in the order were:

“The children are being emotionally harmed by 4 months of separation.  The children deserve to know when they will see their mother/father.”

11. [11]
    In support of the application, HCA provided copies of various email communications between HCA and HIK about parenting arrangements and a copy of the 2020 Parenting Order.
12. [12]
    On 28 July 2022, in the absence of HIK, the Magistrates Court made a temporary protection order.  The children were named persons in the temporary protection order.  The order contained non-contact and non-approach conditions that were inconsistent with the 2020 Parenting Order.
13. [13]
    The temporary protection order was varied on 2 August 2022 to allow for contact as agreed, or for conferences, counselling or mediation, or compliance with court orders. 
14. [14]
    On 16 August 2022, the temporary protection order was further varied to add an exception to the order prohibiting contact with the named children if the contact complied with an order of a court. 
15. [15]
    HIK appealed against the making of the temporary protection order made on 28 July 2022 and the varied temporary protection order made on 2 August 2022.  The appeal was on foot when the learned Magistrate commenced hearing HCA’s application for a protection order on 7 September 2023 but was abandoned prior to the second day of hearing on 30 November 2023.
16. [16]
    On 22 February 2024, a Magistrate in the Maroochydore Magistrates Court made a protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Protection Order”).  HIK is the named respondent to the Protection Order.  HCA is the aggrieved person for whose benefit the Protection Order was made.  The two children of HIK and HCA are named persons in the Protection Order.  HIK was present (via telephone) when the learned Magistrate made the Protection Order.  It continues in force until 21 February 2029, unless otherwise ordered.
17. [17]
    HIK appeals against the learned Magistrate’s decision to make the Protection Order.  He seeks an order setting it aside.  He also seeks his costs of the appeal.
18. [18]
    The notice of appeal filed on behalf of HIK contains seven grounds of appeal and multiple allegations of error.  HCA disputes each of the alleged errors. 
19. [19]
    On 9 September 2024, I ordered that:

    1. (a)
       the appeal is allowed;
    2. (b)
       the decision of the learned Magistrate in Maroochydore Magistrates Court to grant the Protection Order made 22 February 2024 is set aside; and
    3. (c)
       the application for a protection order filed 28 July 2022 is dismissed.
20. [20]
    I indicated that I would publish my reasons for judgment shortly.  I reserved my decision about the costs of the appeal and provided each of the parties an opportunity to provide written submissions on that issue.  These are my reasons for the substantive issues in the appeal and the orders I made on 9 September 2024.

What is the relevant legislative context governing a decision to grant a protection order?

21. [21]
    Section 37 of the Domestic and Family Violence Protection Act 2012 prescribes when a court may make a protection order.  Relevantly, it states:

1. (1)
   A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—

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

Note—

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

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

1. (2)
   In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence—

1. (a)
   the court must consider—

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

…”

22. [22]
    Section 4 of the Domestic and Family Violence Protection Act 2012 outlines the principles for administering the Act.  It states:

“Principles for administering Act

1. (1)
   This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
2. (2)
   Subject to subsection (1), this Act is also to be administered under the following principles—

1. (a)
   people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
2. (b)
   to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
3. (c)
   perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
4. (d)
   if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;

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

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

1. (e)
   in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection—

1. (i)
   the person who is most in need of protection in the relationship should be identified; and
2. (ii)
   only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other;

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

23. [23]
    Domestic violence is defined to include behaviour, or a pattern of behaviour, that is emotionally or psychologically abusive or is coercive: s 8(1) of the Domestic and Family Violence Protection Act 2012.  The behaviour or pattern of behaviour may occur over a period of time and may be more than one act, or a series of acts, that considered cumulatively is abusive, threatening or coercive: s 8(2) of the Domestic and Family Violence Protection Act 2012.  For s 8 of the Domestic and Family Violence Protection Act 2012, “coerce” is defined to mean “compel or force a person to do, or refrain from doing, something”.
24. [24]
    Emotional or psychological abuse is defined in s 11 of the Domestic and Family Violence Protection Act 2012 as:

“behaviour, or a pattern of behaviour, by a person towards another person that torments, intimidates, harasses or is offensive to the other person.”

25. [25]
    Section 53 of the Domestic and Family Violence Protection Act 2012 stipulates when a court may name a child in a domestic violence order.  It states:

“The court may name, in a domestic violence order, a child of the aggrieved, or a child who usually lives with the aggrieved, if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from:

1. (a)
   associated domestic violence; or
2. (b)
   being exposed to domestic violence committed by the respondent.”

26. [26]
    In s 9 of the Domestic and Family Violence Protection Act 2012, “associated domestic violence” is defined as behaviour mentioned in s 8(1) of the Domestic and Family Violence Protection Act 2012 by a respondent towards a child of an aggrieved.  In s 10 of the Domestic and Family Violence Protection Act 2012, a child is defined as being exposed to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence.

27. [27]
    Section 56 of the Domestic and Family Violence Protection Act 2012 stipulates the standard conditions that must be imposed in a domestic violence order.  It states:

“Domestic violence order must include standard conditions

1. (1)
   A court making a domestic violence order must impose a condition that the respondent—

1. (a)
   must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved; and
2. (b)
   if the order includes a named person who is an adult—

1. (i)
   must be of good behaviour towards the named person; and
2. (ii)
   must not commit associated domestic violence against the named person; and

1. (c)
   if the order includes a named person who is a child—

1. (i)
   must be of good behaviour towards the child; and
2. (ii)
   must not commit associated domestic violence against the child; and
3. (iii)
   must not expose the child to domestic violence.

1. (2)
   If the court does not exercise its power to impose conditions under subsection (1), the court is taken to have done so.”

28. [28]
    Under s 23(2) of the Domestic and Family Violence Protection Act 2012, a domestic violence order is defined to include a protection order. 
29. [29]
    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, and the standard of proof is the balance of probabilities: s 145 of the Domestic and Family Violence Protection Act 2012.

What is the nature of the appeal?

30. [30]
    A person who is aggrieved by a decision to make a domestic violence order may appeal against that decision: s 164(a) of the Domestic and Family Violence Protection Act 2012.  A “domestic violence order” is defined to encompass a protection order: ss 5 and 23(2) and the schedule of the Domestic and Family Violence Protection Act 2012.
31. [31]
    The Commissioner of Police has a right to appear and be heard: s 167 of the Domestic and Family Violence Protection Act 2012.  In this case, the Commissioner has elected not to exercise the right.
32. [32]
    The appeal is to be decided on the evidence and proceedings before the Magistrates Court below, unless the appellate Court makes an order to the contrary: s 168 of the Domestic and Family Violence Protection Act 2012.  Although the Outline of Submissions on behalf of HIK foreshadowed an intention to seek leave to adduce fresh evidence, HIK did not persist with that application.
33. [33]
    I recognise that it has been said that the legislation is far from clear in its identification of the nature of the appeal: DU v Jackson (DCJ) [2024] QCA 122, [74].  In my view, the nature of this appeal is a rehearing on the record: ss 168 and 142(2) of the Domestic and Family Violence Protection Act 2012 and rr 783, 785 and 765 of the Uniform Civil Procedure Rules 1999 (Qld).  In this respect, I agree with the analyses of his Honour Judge McGill in GKE v EUT [2014] QDC 248 at [1] – [3], His Honour Judge Horneman-Wren QC in ACP v McAuliffe [2017] QDC 294 at [5] – [12] and His Honour Judge Moynihan KC in HBY v WBI & Anor [2020] QDC 81 at [16] – [18]. 
34. [34]
    If I am wrong about that, it is of no consequence in the determination of the appeal in this case.  That is because, whether this is an appeal in the strict sense or an appeal by way of rehearing:

    1. (a)
       the Court is required to reconsider the conclusions of fact reached by the learned Magistrate: DU v Jackson (DCJ) [2024] QCA 122, [45];
    2. (b)
       the onus is on HIK to show there is some error in the decision under appeal: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, [23]; Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission & Ors [2000] HCA 47; (2000) 203 CLR 194, 202-4 [11]-[17]; DU v Jackson (DCJ) [2024] QCA 122, [45]. 
    3. (c)
       there has been no change to the law that is of relevance to the determination of this appeal: see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 619-20; DU v Jackson (DCJ) [2024] QCA 122, [45].  In this respect, I am cognisant that there was a change to s 37 of the Domestic and Family Violence Protection Act 2012 that took effect on 18 March 2023.  However, pursuant to s 237 of the Domestic and Family Violence Protection Act 2012, the amendment in question only applies to an application for a protection order made after 18 March 2023.  This appeal relates to an application made on 28 July 2022.
35. [35]
    This Court is required to conduct a real review of the proceedings below, including the Magistrate’s reasons, and make its own determination of relevant facts in issue from the material, including any inferences to be drawn: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125-7 [22]-[25].  The Court must recognise the natural limitations that exist in any appellate Court proceeding wholly on the record, including the advantage that the learned Magistrate had of seeing and hearing the witnesses: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-7 [25].  That said, the fact that this Court did not have the opportunity to observe the witnesses as they gave their evidence does not relieve the Court of its obligation to reach its own conclusions on the evidence: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-9 [25]-[31].
36. [36]
    The powers of this Court to interfere with the orders below are exercisable only where the appellant can demonstrate that, having regard to all the material, the decision that is the subject of the appeal is the result of some legal, factual or discretionary error: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission & Ors [2000] HCA 47; (2000) 203 CLR 194, 202-4 [11]-[17]; OMD v Queensland Police Service & Anor [2021] QDC 282, [23]-[26].
37. [37]
    Where an alleged error involves the exercise of a discretion, error of the kind explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5 must be demonstrated before the appeal can succeed.  As was observed in that case:

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then this determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

38. [38]
    Care must be exercised to identify the character of the judicial determination that is under consideration in the appeal.  There is no one rule for all issues in all appeals under the Domestic and Family Violence Protection Act 2012: OMD v Queensland Police Service & Anor [2021] QDC 282, [27]. 
39. [39]
    While s 37(1) of the Domestic and Family Violence Protection Act 2012 confers a discretion on the Court to make a protection order, a decision to make a protection order should not be treated as a discretionary judgment in all respects. 
40. [40]
    Section 37(1) of the Domestic and Family Violence Protection Act 2012 provides three threshold conditions that must be satisfied before the discretion will arise.  The matters in ss 37(1)(a) and (b) of the Domestic and Family Violence Protection Act 2012 articulate a fixed rule for application to the facts.  As such, the principles in House v The King about discretionary errors do not apply to an appeal in respect of a Magistrate’s conclusion on either of those threshold conditions. 
41. [41]
    In contrast, s 37(1)(c) of the Domestic and Family Violence Protection Act 2012 calls for the formation of an opinion about whether, on the facts proved, a protection order is necessary or desirable to protect the aggrieved.  This gives rise to a discretionary decision because the assessment of what is necessary to protect the aggrieved is one that calls for formation of an opinion based on a value judgment.  That threshold condition, and the exercise of the ultimate discretion to make a protection order, are each discretionary decisions to which the principles in House v The King apply: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518; OMD v Queensland Police Service & Anor [2021] QDC 282, [27]-[31].
42. [42]
    The Court may confirm or vary the decision the subject of the appeal or may set the decision aside and either substitute another decision or remit the matter to the court below: s 169(1) of the Domestic and Family Violence Protection Act 2012.  The decision of this Court is final and conclusive: s 169(2) of Domestic and Family Violence Protection Act 2012.

What was the evidence before the learned Magistrate?

43. [43]
    The evidence before the learned Magistrate consisted of:

    1. (a)
       the application made by HCA on 28 July 2022, which attached:

       1. (i)
          various emails; and
       2. (ii)
          a copy of the 2020 Parenting Order;

    1. (b)
       an affidavit of HCA affirmed and filed on 24 May 2023, which attached, amongst other things, a copy of a parenting order made by the Federal Circuit and Family Court of Australia on 14 February 2023 about parental responsibility for the children (“the February 2023 Parenting Order”);
    2. (c)
       an affidavit of HIK affirmed on 31 July 2023;
    3. (d)
       copies of a temporary protection order made on 28 July 2022, and the temporary protection order varied orders made on 2 August 2022 and 16 August 2022;
    4. (e)
       a copy of a parenting order made by the Federal Circuit and Family Court of Australia on 20 June 2023 about parental responsibility for the children (“the June 2023 Parenting Order”), which was marked as Exhibit 1;
    5. (f)
       copies of email communications between HCA and HIK between 19 January and 24 January 2022, which were marked as Exhibit 2;
    6. (g)
       copies of email communications between HCA and HIK between 24 March and 28 March 2022, which were marked as Exhibit 3;
    7. (h)
       copies of email communications between HCA and HIK on 15 April, 2 and 31 May, and 12 and 16 June 2022, which were marked as Exhibit 4;
    8. (i)
       copies of email communications between HCA and HIK on 17 and 18 March, 6 and 12 April, and 22, 23, 24, 26, 27, 28 and 30 June 2022, which were marked as Exhibit 5;
    9. (j)
       the transcript of proceedings before the Magistrates Court on 28 July 2022 and the decision with respect to the temporary protection order, which were collectively marked as Exhibit 6;
    10. (k)
        a bundle of expert reports from Mr Michael Robertson and Ms Michelle Williams and two letters from Dr McDermott, which were collectively marked as Exhibit 7;
    11. (l)
        oral testimony given by HCA on 7 September and 30 November 2023; and
    12. (m)
        oral testimony on 30 November 2023 that was given by:

        1. (i)
           HIK;
        2. (ii)
           Ms Emma Rzoska, who was the author of a family report for the purpose of proceedings in the Federal Circuit and Family Court of Australia;
        3. (iii)
           Ms Jacqueline Reeves, who was the author of a family report for the purpose of proceedings in the Federal Circuit and Family Court of Australia;
        4. (iv)
           Mr Michael Robertson, an independent forensic consultant with expertise in hair follicle testing, who gave evidence about some drug test results for tests undertaken by HCA; and
        5. (v)
           Ms Michelle Williams, an expert toxicologist who gave evidence about HCA’s drug tests.

What were the issues in contention before the learned Magistrate?

44. [44]
    At the hearing before the learned Magistrate, there were five key issues in contention, namely:

    1. (a)
       whether HIK had engaged in behaviour prior to his separation from HCA as alleged by HCA in her affidavit;
    2. (b)
       whether HIK’s requesting that HCA undergo drug testing and maintaining the children in his care was behaviour that was domestic violence;
    3. (c)
       whether a protection order was necessary or desirable to protect HCA from domestic violence;
    4. (d)
       whether, in the exercise of the discretion, the learned Magistrate should make a protection order; and
    5. (e)
       whether naming of the children of HIK and HCA in a protection order was necessary or desirable to protect the children from associated domestic violence or being exposed to domestic violence committed by HIK.

What was the learned Magistrate’s decision about the issues in contention?

45. [45]
    The learned Magistrate was not satisfied, on the balance of probabilities, that the evidence established that HIK engaged in behaviour prior to separation as alleged by HCA.  None of those findings are the subject of this appeal. 
46. [46]
    For each of the other issues in contention, the learned Magistrate made findings adverse to the defendant.  Those findings are in issue in this appeal.  I will return to the findings made by the learned Magistrate later.

What are the grounds of appeal?

47. [47]
    The notice of appeal filed on behalf of HIK identifies seven grounds of appeal.

48. [48]
    It is apparent from the submissions advanced for HIK that the arguments about the various alleged errors overlap to such extent that it is more efficient to address them by considering the following four issues:

1. 1.Is there a material error in the learned Magistrate’s findings that HIK has committed domestic violence against HCA for s 37(1)(b) of the Domestic and Family Violence Protection Act 2012?
2. 2.Is there a material error in the learned Magistrate’s findings that a protection order was necessary or desirable to protect HCA from domestic violence?
3. 3.Is there a material error in the learned Magistrate’s decision to make a protection order?
4. 4.Is there a material error in the learned Magistrate’s decision to name the children of HIK and HCA?

49. [49]
    Before turning to consider each of those questions, it is helpful to first consider what a review of the evidence reveals.

What does a review of the evidence reveal?

50. [50]
    Having conducted a real review of all the evidence that was before the learned Magistrate, it seems to me that much of the evidence was uncontentious.  There are many incontrovertible facts established on the evidence, including about:

    1. (a)
       the existence of a relevant relationship;
    2. (b)
       the initial arrangements for the care of the children;
    3. (c)
       changes to the legal arrangements with respect to the care of the children;
    4. (d)
       HCA’s drug use and drug testing, and the results of the testing; and
    5. (e)
       the content of reports prepared by family report writers for consideration in making parenting orders.
51. [51]
    There was also little controversy about the actions of HCA and HIK with respect to the care of the children and about where the children were residing from time to time.  The real controversy relates to HIK’s motivation in requesting drug tests and the credibility of HCA’s evidence on that issue.

What was the uncontentious evidence?

Was there a relevant relationship?

52. [52]
    It was an incontrovertible fact that HCA and HIK were former de facto partners and were in a relevant relationship for the purposes of ss 13, 14 and 15 of the Domestic and Family Violence Protection Act 2012.  See also s 32DA and sch 1 of the Acts Interpretation Act 1954 (Qld).

What were the initial arrangements for the care of the children?

53. [53]
    HIK and HCA have two biological children together.  They were born in 2014 and 2017.  From the time each was born, HCA was the primary carer for the children.  This changed around November or December 2017.
54. [54]
    In November 2017, HCA and HIK attended a mediation at which HCA and HIK agreed that the children would be predominantly in the care of HCA and would stay with HIK three nights per week.  HIK gave evidence that the agreement was subject to stringent conditions about drug testing.  This was not challenged by HCA.

How did the legal arrangements for the care of children change?

55. [55]
    In 2018, HIK commenced legal proceedings for parenting orders. 
56. [56]
    Under the Family Law Act 1975, before making a parenting order, the Federal Circuit and Family Court of Australia must be satisfied that a proposed parenting order is appropriate.  In deciding whether to make a particular parenting order in relation to a child, the Federal Circuit and Family Court of Australia must regard the best interests of the child as the paramount consideration.
57. [57]
    On 1 December 2020, the Federal Circuit and Family Court of Australia made the 2020 Parenting Order.  Paragraphs 20 and 21 and notation A of the 2020 Parenting Order state:

1. “20.That the mother shall submit to random hair follicle tests for the presence of illicit drugs on the following terms:-

1. a)
   Within 24 hours of a written request from the father, the mother shall attend upon a general practitioner and obtain a referral to a reputable pathologist in their local area to undertake supervised hair follicle testing, to determine the presence of illicit drugs.  
2. b)
   That the father shall be responsible for the costs of the testing at first instance, and the mother shall reimburse the father in the event that the test results indicate the presence of illicit drugs.
3. c)
   That no more than 2 tests per year will be requested by the father and the requirement for the mother to undertake such testing will be for no more than three years after the date of these orders.

1. 21.In the event of a positive test or any breach of this order by the mother, the mother’s unsupervised time with the children under this order is suspended until she supplies the father with a clear hair follicle test result, and the parents will arrange supervised time to occur at Harmony House in the intervening period with the parents to equally share in the costs associated with same.

…

Notations

1. A.The mother will engage in at least monthly drug counselling and education and supply the father with a monthly report from the counsellor on her progress in addressing her drug use for a period of 12 months should the need arise.”

58. [58]
    HCA and HIK both consented to the 2020 Parenting Order.  HCA and HIK were both legally represented at the time.
59. [59]
    An attachment to the 2020 Parenting Order explains that there is an obligation to comply with it.  Under a heading about legal obligations, the attachment explains:

“You must do everything a parenting order says.  In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect.  …

60. [60]
    The attachment also explains that the 2020 Parenting Order remains in force until a new parenting order is made by the court or, in some situations, until the parties enter a parenting plan.  This is the case even if the needs or circumstances of the parties or the children change.
61. [61]
    On 14 February 2023, the Federal Circuit and Family Court of Australia made the February 2023 Parenting Order.  It states, amongst other things:

“Orders of 1 December 2020

1. 2.That orders 4, 5, 6, 9, 14, 20, 21 and Notation A of the final parenting Orders made on 1 December 2020 by this Honourable Court are discharged.

Care arrangements

1. 3.Unless otherwise agreed by the parties in writing, the children shall live with mother each alternate weekend from afternoon on Friday (or 3.00pm on a non-school day) to before school the following Monday (or 9.00am on a non-school day), commencing Friday 17 February 2023, but subject to the following conditions:

1. (a)
   The mother shall submit to a supervised urinalyses test for illicit substances on the Friday morning (before 12.00pm) that the children are due to come into her care, and she shall immediately provide the test results to the father (by authorising the laboratory/testing clinic to send the results to the father directly);
2. (b)
   The mother shall submit to a further supervised urinalyses test for illicit substances on the Monday that the children have left her care, and she shall immediately provide the test results to the father (by authorising the laboratory/testing clinic to send the results to the father directly);
3. (c)
   The mother shall submit to a supervised hair follicle test (in accordance with Order 5 herein) in the last week of May 2023, and she shall immediately authorise the drug testing clinic to send the results to the father directly;
4. (d)
   For the purpose of the urinalysis testing at (a) above, the mother shall meet the cost of that test;
5. (e)
   For the purpose of the hair follicle testing at (b) above, the father shall meet the cost of that test;
6. (f)
   For the purpose of the hair follicle testing at (c) above, the parties shall each meet 50% the cost of that test, and the mother shall meet the cost of any required doctor’s referral;
7. (g)
   and the children shall live with the father at all other times.

1. 4.In the event the mother submits hair follicle test results in accordance with Order 3(c) herein that do not indicate the presence of any tested substance, then the mother’s time with the children each alternate weekend shall continue until further written agreement is reached by the parties or by Order of this Court, and the mother will no longer be required to submit to urinalysis tests pursuant to Order 3(a) and (b) herein.
2. 5.For the purpose of hair follicle tests in accordance with Order 3(c) herein:

1. (a)
   The mother shall not cut her hair shorter than 6cm;
2. (b)
   The tests be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia, in accordance with the current Australian Standard for the collection and detection of drugs of abuse;
3. (c)
   That the mother provides the pathologist with photographic identification to be recorded before each test, and the authority to provide the results of each test to the father immediately upon its completion;
4. (d)
   The test shall be for the detection of amphetamine type substances, cannabis, opiates (including heroin and morphine), sedative type drugs, cocaine, chronic alcohol use and any other drugs of abuse.

1. 6.In the event that the mother:

1. (a)
   Does not comply with Order 3; and/or
2. (b)
   Does not provide a urinalysis test that shows negative results to all drugs tested (pursuant to Order 3 herein); and/or
3. (c)
   Does not provide a hair follicle test that shows negative results to all drugs tested (pursuant to Orders 3 and 5 herein);
4. (d)
   the mother’s time with the children is to immediately suspended (sic), and the children’s time with the mother shall take place under supervision at Harmony House in Cotton Tree every second weekend to the maximum extent Harmony House is able to facilitate.

Telephone time

1. 7.The mother is at liberty to contact the children by telephone every Tuesday and Thursday between 5.00pm and 5.30pm, with the mother to initiate that call.

Psychologist

1. 8.The mother shall continue to engage with her Clinical Psychologist for treatment on a regular basis, until such time as her psychologist deems it unnecessary for further treatment to continue.

…

Our Family Wizard

1. 14.The parties shall each forthwith subscribe to Our Family Wizard, with each party to meet their own subscription costs, and the parties shall use Our Family Wizard to exchange communication with one another, save for in emergency situations in which communications may be by text message.”

62. [62]
    Under the February 2023 Parenting Order, HCA’s psychologist was to be provided with a copy of Ms Reeves family report dated 4 November 2022 and a copy of the toxicology report of Dr Robertson dated 1 December 2022.  I will return to the evidence about those reports later.
63. [63]
    HCA and HIK both consented to the February 2023 Parenting Order.  They were both legally represented at the time.
64. [64]
    On 20 June 2023, the Federal Circuit and Family Court of Australia made the June 2023 Parenting Order.  It states, amongst other things:

“Further Hair Follicle Test

1. 12.[HCA] is restrained from using drugs of abuse.
2. 13.In the week commencing 7 August 2023, [HCA] is to submit to hair follicle tests for the detection of such drugs at the appointments made by [HCA]’s lawyers.
3. 14.For the purpose of hair follicle test:

1. (a)
   [HCA] shall not cut her hair shorter than 3 centimetres until the date specified in the preceding paragraph of this order;
2. (b)
   Within (sic) [HCA] will obtain from a medical practitioner a referral to a pathologist for the conduct of such test.
3. (c)
   The test be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the Australian Standard for the collection and detection of drugs of abuse.
4. (d)
   [HCA] will provide the pathologist with photographic identification, to be recorded before the test, and the authority to provide the results of each test to [HIK]’s lawyers and [HCA]’s lawyers immediately upon its completion;
5. (e)
   Each test shall be for the detection of amphetamine-type substances, cannabis, opiates (including heroin and morphine), sedative-type drugs, cocaine, chronic alcohol use and any other drugs of abuse.

1. 15.The parties pay equally for the cost of such test.

65. [65]
    HCA and HIK both consented to the June 2023 Parenting Order.  They were both legally represented at the time.

What was the evidence about HCA’s drug use and drug testing, and the results of the testing?

66. [66]
    HCA gave evidence that from the moment she and HIK separated, HIK expressed concern about the extent of HCA’s drug use. 
67. [67]
    During cross-examination, HCA was questioned about whether she was using cannabis at various times.  She was asked:

    1. (a)
       whether she was using cannabis in November or December 2018, at the time when one of her children sustained a burn injury while in her care;
    2. (b)
       whether around February 2019, when the children were not in her care, she was using cannabis daily; and
    3. (c)
       whether she had a history of cannabis use.
68. [68]
    HCA initially declined to answer those questions on the basis that her answers might incriminate her in the commission of an offence. 
69. [69]
    That said, HCA confirmed that she undertook a hair follicle drug test on 13 November 2018 and 18 December 2019.  The test results were both positive for cannabis.  HCA also undertook urine tests on multiple occasions between February 2020 and 7 October 2020 that were negative for cannabis and yet on 10 August 2020 another hair follicle test was positive for cannabis.
70. [70]
    The results of those tests were analysed by Dr Robertson, who is an expert pharmacologist and forensic toxicologist.   
71. [71]
    In his report dated 27 October 2020, Dr Robertson explains that tetrahydrocannabinol (THC) is the active component in cannabis.  When THC is ingested, it is metabolised to CarboxyTHC and incorporated into the hair at the time of use.  It is also excreted in urine but is only present in urine for between 24 and 48 hours after cannabis use.
72. [72]
    Dr Robertson reports that:

    1. (a)
       the test of HCA’s hair follicles collected on 13 November 2018 revealed that CarboxyTHC was detected at a concentration of 128 picograms per 10 milligrams;
    2. (b)
       the test of HCA’s hair follicles collected on 18 December 2019 revealed that CarboxyTHC was detected at a concentration of 90.2 picograms per 10 milligrams;
    3. (c)
       the test of HCA’s hair follicles collected on 10 August 2020 revealed that CarboxyTHC was detected at a concentration of 3.7 picograms per 10 milligrams; and
    4. (d)
       urine samples were collected approximately fortnightly between 27 February 2020 and 7 October 2020, and they were negative for all drugs, including cannabis.
73. [73]
    According to Dr Robertson, the presence of CarboxyTHC in hair is consistent with regular use of the drug in the period represented by the hair segment.  He explains that CarboxyTHC concentration at or above 2 picograms per 10 milligrams is consistent with chronic use.  Dr Robertson opines that the concentrations of CarboxyTHC in HCA’s hair was consistent with regular use of cannabis and indicates that there was a reduction in use over the period November 2018 to August 2020.  He opines that the results from the hair sample in August 2020 are indicative of low-level use of cannabis between early April 2020 and late July 2020.
74. [74]
    Dr Robertson explains that typical negative short-term effects of cannabis use include impairment of time and distance, lack of motivation and attention, poor concentration and disorientation and anxiety.  Those effects may be followed by effects associated with withdrawal such as agitation, anger or irritability, confusion, disruption of sleep patterns, loss of appetite and paranoia.  Long-term effects are those typically associated with mood disorders, including depression and anxiety and possibly schizophrenia and suicide.
75. [75]
    This evidence from Dr Robertson was not challenged by HCA.
76. [76]
    During cross-examination, HCA confirmed that she had undertaken the hair follicle drug testing referred to by Dr Robertson.  She was aware of the results from his report.  She received the results before the 2020 Parenting Order.
77. [77]
    On 19 January 2022, HIK emailed HCA and requested that she undertake a further hair follicle drug test.  In his email request, HIK referred to the 2020 Parenting Order.  HIK indicated that he would comply with the order by arranging payment for the test at HCA’s choice of provider.  An appointment was booked for a test on 24 January 2022.  HIK made payment for the test, but HCA refused to undertake it.
78. [78]
    On 18 March 2022, HIK again requested HCA to undertake a hair follicle test for the detection of drugs.  HCA did not undertake the test as requested.
79. [79]
    Later in the day on 18 March 2022, HIK sent an email to HCA advising that considering the repeated avoidance of drug tests in breach of the 2020 Parenting Order, he would be suspending HCA’s unsupervised time with the children.  Between 22 March and 24 June 2022, the children resided with HIK. 
80. [80]
    On 12 April 2022, HIK again asked HCA to undertake a drug test.  HCA did not undertake the test as requested. 
81. [81]
    In May 2022, HCA says that she obtained a prescription for medicinal cannabis oil.  The evidence of HCA in this regard was supported by two letters from Dr McDermott.  HCA explained that the prescription was not written by Dr McDermott.  Rather, HCA obtained cannabis oil from the United States, which she then took to Dr McDermott and asked him to write a letter in relation to it.  She says that she was also prescribed cannabis in the form of flowers to be vaporised.  There was no independent evidence of such a prescription before the learned Magistrate.
82. [82]
    In a letter dated 18 July 2022, Dr McDermott states that HCA has been prescribed balanced oil of CBD:THC (cannabis), which she has been taking since May 2022.  In the letter, Dr McDermott states that HCA takes one dose when she returns home from work and that he has no reason to suspect that the medicine, at that dose, would impair her ability to safely parent her children.
83. [83]
    In a letter dated 25 August 2022, Dr McDermott indicates that, based on the bottle of cannabis oil medicine shown to him by HCA, HCA was taking one millilitre on occasional nights to manage anxiety and insomnia.  He says that the concentration of the liquid is 10 milligrams of THC and 10 milligrams of cannabidiol (CBD) per one millilitre.  Dr McDermott opines that it is not possible to accurately relate the quantity that HCA was taking orally to a hair analysis result. 
84. [84]
    Dr McDermott did not give evidence.  There are no documents that identify his qualifications, nor the basis of his opinion. 
85. [85]
    In an email to HCA on 16 June 2022, HIK again noted HCA’s refusal to undertake a hair follicle test and expressed concern about the children’s safety.  He invited HCA to undertake a test or to otherwise complete her intake at Harmony House for supervised visits with the children.
86. [86]
    On 21 July 2022 and 4 October 2022, HCA permitted a further hair sample to be taken to facilitate testing for drugs. 
87. [87]
    On 19 September 2022, Dr Williams gave a toxicologist interpretation report about the hair follicle test undertaken by HCA on 21 July 2022.  Dr Williams says that the test revealed that CarboxyTHC was detected at a concentration of greater than 45 picograms per 10 milligrams.  In her report, Dr Williams opines that it is implausible that the results are from the consumption of the amount of cannabis medicine that are identified in the letters from Dr McDermott.  She opines that the results are indicative of heavy, regular use of cannabis.
88. [88]
    When questioned about the result of the 21 July 2022 test being reported as a figure “greater than” 45 picograms, Dr Williams explained that the laboratory instruments had been calibrated to provide accurate results for amounts up to 45 picograms.  The instruments were not calibrated to provide precision for amounts above 45 picograms.  That said, even without calibration above 45 picograms, the instruments can indicate if the result only slightly exceeds that quantity or greatly exceeds the quantity.  Dr Williams explained that HCA’s result was many times greater than 45 picograms.
89. [89]
    This evidence from Dr Williams was not challenged by HCA.

90. [90]
    On 1 December 2022, Dr Robertson provided a report about the test results from HCA’s further hair follicle samples.  In his report, Dr Robertson says:

    1. (a)
       the test of HCA’s hair follicles collected on 21 July 2022 revealed that CarboxyTHC was detected at a concentration of more than 45 picograms per 10 milligrams; and
    2. (b)
       the test of HCA’s hair follicles collected on 4 October 2022 revealed that CarboxyTHC was detected at a concentration of more than 90 picograms per 10 milligrams.

91. [91]
    In his report, Dr Robertson recites the information available to him from the letters from Dr McDermott to which I have referred above.  He explains that CBD does not result in the presence of THC.
92. [92]
    Having regard to the information in the letters from Dr McDermott, Dr Robertson opines that the concentration of CarboxyTHC in the latest hair follicle samples was not consistent with use of the prescribed amount of THC on occasional nights and that it was likely that additional THC was ingested by HCA during the timeframe represented by the hair samples.  Dr Robertson explains that it cannot be determined whether the additional THC was illicit THC, that is whether it resulted from the use of cannabis or from the use of more than the prescribed amount of THC.
93. [93]
    Dr Robertson gave evidence at the hearing on 30 November 2023.  When questioned about the test results from 13 November 2018, he said:

“It’s very difficult to predict dose from a hair sample, but what we can say is that that number, as I alluded to earlier, is quite high or very high and so, therefore, it’s consistent with daily use of cannabis and it might reasonably be consistent with multiple – or the equivalent of multiple joints of cannabis, perhaps per day or different days, but different hair colours, there’s a number of variables that can dictate the amounts in hair, but I wouldn’t expect a vast difference simply due to things like hair colour. Darker hair can incorporate high concentrations, but that wouldn’t explain these differences. So I would – I would estimate that this is consistent with, as I alluded to, near daily use of cannabis and probably multiple doses of cannabis per day or, on average, at least multiple doses of cannabis per day.”

94. [94]
    According to Dr Robertson, if HCA were only using cannabis for one week out of every two, that is when she did not have the children, the results from 13 November 2018 would be consistent with heavy use during those weeks.
95. [95]
    With respect to the prescription for THC, Dr Robertson explains that the prescribed 10 milligrams of THC is a relatively small amount.  By way of comparison, Dr Robertson says that one joint of marijuana might contain 20 to 30 milligrams of THC.
96. [96]
    This evidence from Dr Robertson was not challenged by HCA.

What was the evidence from the family report writers?

97. [97]
    On 30 November 2023, the learned Magistrate heard evidence from Ms Rzoska and Ms Reeves.
98. [98]
    Ms Rzoska gave evidence that, on 28 February 2019, she provided a family report for the Federal Circuit and Family Court of Australia.  At the time that the report was prepared, Ms Rzoska had access to hair follicle tests that indicated that HCA had been using cannabis.  Ms Rzoska’s family report records that HCA told Ms Rzoska that she was using one or two joints of cannabis every day that the children were not in her care. 
99. [99]
    In the report, Ms Rzoska recommends that HCA:

    1. (a)
       be subject to an undertaking not to use marijuana when the children were in her care and 24 hours prior;
    2. (b)
       engage in at least monthly drug counselling and education; and
    3. (c)
       be required to undertake random drug testing in a timely manner in response to requests made by HIK.
100. [100]
     Ms Rzoska explains that her recommendations were informed by HIK’s concerns about HCA’s drug use and Ms Rzoska’s own concerns about that same issue.  Ms Rzoska gave evidence that it was her impression that her level of concern was possibly greater than that being expressed by HIK at the time.  Ms Rzoska was of the view that the recommendations were advisable as they would provide monitoring to address the children’s safety.
101. [101]
     HCA did not challenge any of the evidence of Ms Rzoska.  In fact, during her cross-examination, HCA confirmed that she had, at times, smoked between one and three joints of cannabis each day that the children were not in her care.  HCA also confirmed that she had told that to the authors of the family reports.
102. [102]
     Ms Reeves gave evidence that she authored a family report for the Federal Circuit and Family Court of Australia on 4 November 2022.  At the time that she wrote her report, Ms Reeves was aware of the existence of hair follicle tests for HCA between 2018 and 2022 and that they showed positive results for cannabis. 
103. [103]
     In her report, Ms Reeves recommended continued monitoring of HCA’s drug use through hair follicle testing.  The report also indicated that HCA and HIK agreed to have an expert prepare a toxicology report in respect of all hair follicle tests to identify whether the levels of drugs detected reflected HCA’s current prescription for medicinal cannabis.
104. [104]
     Ms Reeves gave evidence that she authored a further family report on 11 August 2023.  At the time of that report, there were some further hair follicle test results that were negative for cannabis.  In the report of August 2023, Ms Reeves expressed the view that there was a much more positive trajectory with respect to parenting and HCA’s drug use.  In those circumstances, Ms Reeves did not recommend further hair follicle testing.  Ms Reeves’ recommendations in the 11 August 2023 report focussed on communications between HCA and HIK and the use of a mobile phone app known as “Our Family Wizard” for such communications.
105. [105]
     HCA did not challenge any of the evidence of Ms Reeves.

What was HIK and HCA’s evidence about the motivations for HIK’s actions with respect to drug testing and the residential care arrangements for the children?

106. [106]
     As I have mentioned, there is no real controversy about where the children resided from time to time.  The real controversies between the parties relate to:

     1. (a)
        the reason HIK requested HCA to undertake drug testing at various times; and
     2. (b)
        the reasons HCA refused to undertake the requested testing.

107. [107]
     That said, the actions with respect to the residential arrangements for the children are informed by HIK and HCA’s actions with respect to drug testing.  As such, it is convenient to consider these aspects of the evidence together.

What was the undisputed evidence about the requests for drug tests and the evidence about the actions taken in relation to the care arrangements for the children?

108. [108]
     As I have already mentioned, in November 2017, HCA and HIK attended a mediation at which HCA and HIK agreed that the children would be predominantly in the care of HCA and would stay with HIK three nights per week.  HIK gave evidence that the agreement was subject to stringent conditions about testing.  HCA did not challenge that evidence.
109. [109]
     In February 2018, one of the children fell from the bed while being bottle fed by HCA and broke his collarbone.  Around November or December 2018, that same child sustained a burn from a hot iron in December 2018 whilst in the care of HCA.  HIK reported each of these incidents to the Department of Child Safety.

110. [110]
     Around this time, HCA undertook a hair follicle test for drugs.  The test of HCA’s hair follicles collected on 13 November 2018 revealed that CarboxyTHC was detected at a concentration of 128 picograms per 10 milligrams.  Considering those test results, and HCA’s revelation that she was using one or two joints of cannabis every day that the children were not in her care, in February 2019 Ms Rzoska recommended that HCA be required to undertake random drug testing.  The timing of the tests was to be determined by requests made by HIK.

111. [111]
     On 18 December 2019, HCA again returned a test that was positive for cannabis use.  Her test results showed a concentration of 90.2 picograms per 10 milligrams. After that, for the four-month period between January and April 2020, the children resided solely with HIK. 
112. [112]
     HIK gave evidence that the arrangements in that respect were informed by conditions related to HCA’s drug use and injuries sustained by the children while they were in HCA’s care.  That evidence was not challenged by HCA.

113. [113]
     Between October 2021 and January 2022, there were multiple email communications between HCA and HIK about the holiday arrangements for the children.  The emails reveal that HCA and HIK disagreed about the effect of the 2020 Parenting Order in terms of the residential arrangements for the December and January school holidays. 
114. [114]
     On 19 January 2022, in accordance with the 2020 Parenting Order, HIK requested HCA undertake a hair follicle test.  HCA did not comply with the request.  Immediately following that, the children resided with HIK.  Although HCA had still not undertaken a hair follicle test, the following week the children stayed with HCA and then spent week about with each parent until mid-March 2022.
115. [115]
     On 20 January 2022, HCA emailed HIK to indicate that a booking had been made to undertake a drug test. 
116. [116]
     On 21 January 2022, HCA indicated to HIK that she did not undertake the test as she wanted evidence that he had paid for the test.
117. [117]
     On 18 March 2022, HIK again requested HCA to undertake a hair follicle test for the detection of drugs.  That same day, HIK sent HCA an email advising that, because she was breaching the 2020 Parenting Orders by refusing to take the test, he would be suspending HCA’s unsupervised time with the children.   
118. [118]
     On 22 March 2022, HIK took the children into his care.  They resided with him until 24 June 2022.
119. [119]
     On 25 March 2022, HIK informed HCA that he had contacted Harmony House to arrange their involvement in supervised visits with the children for HCA and indicated that Harmony House was expecting HCA’s call.  HCA responded indicating that she intended to arrange a mediation as the best option.
120. [120]
     On 28 March 2022, HCA sent HIK an email requesting HIK to explain why he perceived there was a risk to the children such that it warranted the drug test. 
121. [121]
     On 12 April 2022, HIK again asked HCA to undertake a drug test.  HCA did not undertake the test as requested. 
122. [122]
     On 15 April 2022, HCA emailed HIK indicating that she was expecting contact about a potential mediation in May 2022.
123. [123]
     In an email dated 2 May 2022, HIK indicated to HCA that he was not willing to consent to changes to the parenting orders as he was concerned about HCA’s drug use and its impact on the children.  He noted that he had paid his fee for the intake at Harmony House but that they still had not been contacted by HCA. 
124. [124]
     On 24 June 2022, HCA lied to the administration at the children’s school and removed the children from their school at lunchtime.  The children resided solely with HCA for the two weeks of school holidays, during which time HCA did not permit HIK to have contact with them.  This was confirmed by HCA during cross-examination.  It is supported by email communications dated 26, 27, 28 and 30 June 2022, in which HIK indicates his desire to speak with the children and expresses concerns about their safety.
125. [125]
     During the two-week long school holiday period when HCA had the children and refused contact, HIK contacted the police to ask for a welfare check on the children.  The police told HIK that they would undertake such a check.
126. [126]
     On 11 July 2022, at the commencement of the third term of school, HCA returned the children to school and apologised to the principal of the school for her deception.
127. [127]
     On Friday 15 and Friday 22 July 2022, HIK did not take the children to school.
128. [128]
     On 28 July 2022, HCA applied for the protection order the subject of this appeal. 

What was HIK’s evidence about why he requested the various drug tests and acted to change the children’s residential care arrangements?

129. [129]
     HCA alleges that HIK kept the children from HCA for a four-month long period from January to April 2020.  While HCA was questioning HIK about that allegation, the learned Magistrate intervened and interrogated HIK further about the allegation.  The exchange was as follows:

“In 2020, the children were returned to me after – after four-month removal, when I agreed to a fifty-fifty week about care arrangement, isn’t that correct?---I – I can’t – I cannot remember that, the exact - - -

The children were returned to me after four months when I agreed to a fifty-fifty week about care arrangement.

HIS HONOUR: Do – do you agree with that or not?---I – I can’t – I don’t remember. I honestly don’t remember. I don’t – I don’t, then. Yeah.

All right. Well - - -?---Yeah. I - - -

She’s split it up to help you, perhaps - - -?---I was some time - - -

Did you keep the children from their mother for four months?---During that period - - -

In 2020?---Quite possibly. She – the - - -

Quite possibly?---There – there’s been incidents of drug use and addiction for - - -

Answer my question. I’m – don’t – you can give your reasons or whatever later if you’re asked about it - - -?---Yes.

- - - but do you agree - - -?---Yes, I do agree.

Okay. And then, did you agree with a fifty-fifty - - -?---Under – under stringent conditions and testing - - -

A fifty-fifty care of the children - - -?---Yes, your Honour.

- - - and was that after that four month - - -?---It was.

- - - removal of the children?---It was, your Honour. And – and there were strict conditions for drug testing after that.”

130. [130]
     With respect to the drug test requested on 19 January 2022, HIK explained that around that time, he and HCA had been arguing about the effect of the court orders in terms of the children’s residential arrangements over the holidays.  According to HIK, HCA was displaying behaviours that were consistent with her behaviour during their relationship when HCA was using drugs.  He described the behaviour as repetitive communications about HCA’s request to change the court orders.  HIK also gave evidence that the children had made comments that caused him concern about the potential that HCA was using drugs.  According to HIK, the children said that they were not doing a lot at HCA’s.  They said that they were very bored, watched movies all the time and would eat junk food daily, and that HCA was not making a lot of effort.  HIK considered that those matters were consistent with behaviour exhibited by HCA during their relationship when she was using drugs.
131. [131]
     HIK explained that he requested a test on 18 March 2022 because HCA had still not undertaken the requested test. 
132. [132]
     HIK gave evidence that he took the children into his care on 22 March 2022 because HCA had not complied with the requirements of the 2020 Parenting Order to undertake a hair follicle test. 
133. [133]
     As I have mentioned, on Friday 15 and Friday 22 July 2022, HIK did not take the children to school.  He explained that his decision in that respect was informed by HCA’s refusal to undertake a hair follicle drug test despite a request that she do so.
134. [134]
     Generally, with respect to his behaviour in requesting testing and maintaining residential care of the children, HIK gave evidence that his requests were informed by HCA’s history of drug use and his concern for the safety of the children and the environment to which they were being exposed.  In his affidavit, HIK explained that he took the requirements of the various parenting orders, and his obligation to comply with them, seriously because there had been two occasions where one of the children was injured while in HCA’s care.  HIK felt that he had been criticised by Ms Rzoska in her report of 28 February 2019 for not seeking primary care of the children and for expressing insufficient concern about the previous injuries and HCA’s drug use.  This informed his requests for compliance with the parenting orders.
135. [135]
     HIK also gave evidence that, in recent times, HCA has produced clean test results from two hair follicle drug tests.  HIK is aware that the most recent family report does not suggest ongoing monitoring of drug use through testing.  He accepts that, based on HCA’s positive trajectory, there would be no need for drug testing in those circumstances.

What was HCA’s evidence about why she refused to undertake the requested drug tests?

136. [136]
     As I have already mentioned, HCA gave evidence that, from the moment she and HIK separated, HIK expressed concern about the extent of HCA’s drug use. 
137. [137]
     Throughout her evidence, HCA provided several different explanations about why she did not undertake the requested drug tests and how she viewed the requests.
138. [138]
     Initially HCA said that on 20 and 21 January 2022, when she indicated to HIK that she would take the requested tests, she had already decided that she would not be doing so.  She sent her email of 20 January 2022 to give the perception that there was an intention to take the test.  On 21 January 2022 she asked for a receipt evidencing HIK had paid for the test in the hope of obtaining evidence that HIK had not paid for the test.  She explained that, in her view, HIK requested the tests so that he could avoid returning the children to her at the end of the school holidays when she considered he was obliged to under the 2020 Parenting Order. 
139. [139]
     HCA also gave evidence that she considered the requests were made to coercively control her.
140. [140]
     Later in her evidence, HCA said that she knew she had been using drugs in the three to four months prior to January 2022.  She said that throughout 2022, she had been smoking cannabis when she did not have the children in her care.  HCA said that she knew that there was the potential that her use of cannabis would show up in the tests and that, as a result, the children would not be permitted to reside with her.

141. [141]
     During her evidence, HCA also confirmed that HIK had only ever refused to allow the children to reside with her at times when she had tested positive to drugs or refused to undergo the form of drug testing to which HCA had agreed.  On each occasion, HIK permitted HCA to speak with the children over the telephone.  HIK also arranged for HCA to see the children by arranging visits through Harmony House.
142. [142]
     When HCA was questioned about her conduct in taking the children without permission for the two weeks of school holidays in June 2022, HCA said she knew that her conduct contravened the court orders.  She said she was “doing back to [HIK] what he did to me”.
143. [143]
     During cross-examination, HCA was also questioned about the fact that in her application for a protection order she stated that HIK was aware that she had tested clean of illicit drugs but continued to withhold the children.  HCA maintained the accuracy of the statement.  HCA said that, although she had tested positive for cannabis, the result was not one for “illicit drugs” as she had supplied evidence of a prescription for cannabis oil.

What were the issues addressed by the learned Magistrate?

144. [144]
     The learned Magistrate provided written reasons for judgment on 22 February 2024.
145. [145]
     At the outset, the reasons correctly identified the requirements of ss 37 and 53 of the Domestic and Family Violence Protection Act 2012 and the grounds on which HCA sought a protection order as identified in HCA’s application.  The learned Magistrate also correctly identified the relevant parts of the definition of domestic violence in ss 8 and 11 of the Domestic and Family Violence Protection Act 2012. 
146. [146]
     Having recorded those matters, the learned Magistrate proceeded to consider:

     1. (a)
        whether HCA’s allegations of domestic violence prior to the separation of HCA and HIK were established;
     2. (b)
        whether HCA’s allegations of domestic violence subsequent to the separation of HCA and HIK were established;
     3. (c)
        whether a protection order was necessary or desirable;
     4. (d)
        whether it was necessary or desirable to impose conditions on the protection order in addition to those mandated under s 56 of the Domestic and Family Violence Protection Act 2012; and
     5. (e)
        whether the naming of the children was necessary or desirable.
147. [147]
     As I have already mentioned, the allegations in the appeal focus on the learned Magistrate’s findings that HIK committed domestic violence after the couple separated, that a protection order was necessary or desirable and that naming of the children was necessary or desirable.  I will address the relevant findings in that respect when considering the alleged errors.

Is there a material error in the learned Magistrate’s findings that HIK has committed domestic violence against HCA for s 37(1)(b) of the Domestic and Family Violence Protection Act 2012?

148. [148]
     Although the grounds for a protection order in HCA’s application were focussed on issues with respect to access to the children and contact with them, in the reasons for judgment, the learned Magistrate considered more broad ranging allegations.

What were the relevant findings of the learned Magistrate?

149. [149]
     Paragraphs [29], [33], [40], [50], [60] and [61] of the learned Magistrate’s reasons for judgment contain the material findings about domestic violence.  They relevantly record:

149. “[29]
     In November 2017 [HIK] sent text messages to his and the [HCA]’s families alleging that [HCA]was a drug addict.  It’s argued by Counsel for [HIK] that the texts were not identified or particularised, but he accepted that he did send them and regretted doing so.  She gave evidence, which I accept, that she felt that [HIK] was trying to isolate her from her and his families in sending the message that she was a drug addict.  It is argued that the outing of her to their families as being a drug addict should be looked at in the context of her serious history of cannabis use.  Whether or not she has a serious history of cannabis use, (and in this regard I don’t accept that her use was as heavy as the respondent argues) this action on his part was behaviour that was emotionally or psychologically abusive and therefore is behaviour that is domestic violence.

…

149. [33]
     In 2020 [HIK] agrees that he kept the children from the aggrieved for a four-month period (January to April 2020).  This is behaviour that is emotionally or psychologically abusive behaviour and is domestic violence.  It is also controlling behaviour.

…

149. [40]
     The children spent a week about with each parent from then until mid-March 2022 when the respondent on 17 March 2022 advised [HCA] “[HCA] to date you have nothing but refused or deny my requests, your avoidance of this matter must cease and you be given until today the 18^th of March at 3pm to advise me of another local reputable pathologist.  If I am unable to book and make another payment to a local provider before they are close endo (sic) of 18^th March 2020 (sic), this will clearly be in breach of the orders and your time with the children will be suspended as stated in the orders below” This statement was not denied by [HIK].  It has the look of having been drafted by his then solicitor, but not very well copied by him.  He did give evidence regarding the testing requests that he has been advised by his solicitors on the best path moving forward.  It is coercive behaviour in that it threatens to suspend her time with the children if she doesn’t comply with his demand.  It is also controlling behaviour, which made the aggrieved fear for her relationship with her children and therefore their wellbeing.

…

149. [50]
     On 28 July 2022, after [HIK] had withheld the children from school on Fridays 15 and 22 July 2022, the mother made this application, and a Temporary Protection Order was granted.  The act of not taking the children to school on those days (which was the place and time for collection of the children by the mother pursuant to the Order of 1 December 2020) denied [HCA]/mother of having time with her children and was behaviour which is emotionally and psychologically abusive behaviour on the part of the respondent.  Furthermore, it was controlling behaviour which caused the aggrieved to fear for her relationship with her children and therefore her and their wellbeing.  This is domestic violence.

…

149. [60]
     Further, I don’t accept that the respondent was motivated by the [HCA]’s cannabis use and his fear for the safety of the children to require that the aggrieved undergo these hair follicle and urine tests but rather by him wanting her to undergo them as she would likely test positive to the presence of cannabis and hence there’d be evidence of her use or she would refuse and therefore, in either result, he could limit her time with the children.  It was a win, win situation for him.  A situation that he had total control of, and he used that control to coerce her into losing unsupervised contact with the children.  This enabled him to control the behaviour of [HCA] and (by virtue of the fact that he would be spending more time with the children) enhance his position in the inevitable dispute over custody of the children.
150. [61]
     In summary, I am satisfied that [HIK] has committed the following acts of domestic violence against the aggrieved:

1. 1.The emotionally or psychologically abusive behaviour in keeping the children from the aggrieved in January to April 2020, when the agreement between them was that they were to spend 4 nights per week with her and the other 3 with him;
2. 2.The emotionally or psychologically abusive behaviour in keeping the children from spending unsupervised time with the aggrieved from March to June 2022;
3. 3.The emotionally or psychologically abusive and controlling behaviour in not taking the children to school on 15 and 22 July 2022 thereby limiting her opportunity to take the children from the school for her scheduled unsupervised contact with them;
4. 4.The coercive and controlling behaviour in continuing to require the aggrieved to undergo hair follicle and urine tests.”

(footnotes omitted)

150. [150]
     These findings were informed by multiple adverse inferences drawn by the learned Magistrate about HIK’s motives for his various actions and the learned Magistrate’s view that the parenting orders made by the Federal Circuit and Family Court of Australia were inappropriate.  Relevant findings in that regard include the learned Magistrate’s findings:

     1. (a)
        at paragraphs [31] and [32] of the reasons for judgment, wherein the learned Magistrate found that the reports made by HIK to the Department of Child Safety about the broken collarbone and burn injury sustained by his younger child were made to put pressure on HCA and to place HIK in a better position in any parenting or custody proceeding;
     2. (b)
        at paragraph [37] of the reasons for judgment, wherein the learned Magistrate observed that he failed to see the reason for the drug testing of the mother to be in the 2020 Parenting Order as it was not apparent to him that there was any nexus between the mother’s ingestion of cannabis and the youngest child sustaining the broken collarbone and the burn;
     3. (c)
        at paragraph [38] of the reasons for judgment, wherein the learned Magistrate found that HIK’s reason for requesting the drug test in January 2022 was not because HCA was displaying behaviours consistent with drug use, rather it was in retaliation for her request to have the children for the first week of school and the learned Magistrate’s findings that:

“It had the added advantage to him that if she didn’t comply, or if she did and the result was positive to cannabis use, unsupervised time with the children could be withheld from her.  No doubt, (given his evidence that hair follicle tests were requested by him as a result of the advice received from his solicitor, who, I should point out is not the firm that is representing him in these proceedings) this request was to enhance his legal position in the looming battle for custody as well.”

1. (d)
   at paragraph [43] of the reasons for judgment, wherein the learned Magistrate found that HIK notified the Department of Child Safety that HCA had removed the children from school without authorisation and was not letting him contact them was not out of HIK’s concern for the welfare of the children but to have the breach of the 2020 Parenting Order documented with a government department and, as such, to better HIK’s position to gain final custody of the children;
2. (e)
   at paragraph [45] of the reasons for judgment, wherein the learned Magistrate acknowledged that HIK emailed HCA to express concern about the safety of the children given they were in HCA’s care and phoned the police and left them to investigate it, but found:

“Surely if someone was afraid for the welfare of their children whilst in the custody of their drug smoking mother, they would do more than just one call to the police or write an email which is expressed in formal terms such as the one sent on 26 June.”

1. (f)
   at paragraph [46] of the reasons for judgment, wherein the learned Magistrate found that HIK’s resistance to participation in a mediation with HCA was because the orders were favourable to HIK in that he could completely control the time that the children spent with HCA as she was not undertaking hair follicle tests;
2. (g)
   at paragraph [52] of the reasons for judgment, wherein the learned Magistrate found that:

“In April 2023, despite the fact that [HCA] had produced a clear 3 month hair follicle test result, [HIK] still insisted that [HCA] undergo urine tests before allowing her unsupervised contact with the children.  Whilst he protests that he was entitled to do this as it was provided for in the consent orders of February 2023 and it was the first time she had been drug free for 6 months in 10 years, I am of the view that his real reason (or his solicitor’s) was that he wanted to enhance his position in the fight for full custody.”

1. (h)
   at paragraph [54] of the reasons for judgment, wherein the learned Magistrate said:

“[HCA] says that the hair follicle tests required by him were so required as a result of the advice of his lawyer.  One needs to ask why the testing regime had to include opiates, sedatives, cocaine and alcohol, when it’s (sic) never been alleged that [HCA] abused any of those drugs.  It has the appearance of aggressive behaviour by [HIK], no doubt, so advised by his then lawyers.”

What are the alleged errors regarding the findings that HIK committed acts of domestic violence?

151. [151]
     HIK says that the learned Magistrate’s findings that HIK committed acts of domestic violence were infected by multiple errors in that the learned Magistrate:

1. (a)
   failed to give proper or adequate reasons; and
2. (b)
   failed to take into account multiple relevant considerations, including:

1. (i)
   numerous matters that reflected adversely on HCA’s credit, including her admission that she lied to the school to gain access to the children;
2. (ii)
   HCA’s admitted drug use proximate to HIK’s request that HCA undertake a drug test;
3. (iii)
   the uncontradicted evidence of HIK about the basis for requesting the drug tests and withholding the children; and
4. (iv)
   the parenting orders of the Federal Circuit and Family Court of Australia; and

1. (c)
   reached unreasonable findings when the whole of the evidence is considered.

151. [152]
     Although these form separate grounds of appeal, they overlap to such an extent that it is convenient to consider them together.  Before doing so, it is convenient to identify the applicable principles with respect to adequacy of reasons.

What are the relevant principles with respect to adequacy of reasons?

153. [153]
     A failure to provide adequate reasons for the decision made can amount to an error of law: Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219, [57]. 

154. [154]
     What amounts to adequate reasons is an elastic concept that adapts to the circumstances in the case at hand, including the submissions that were made: Hamra v The Queen [2017] HCA 38; (2017) 260 CLR 479, 497 [42].

155. [155]
     In Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219, Muir JA (with whom Holmes JA and Daubney J agreed) observed at 237-8:

155. “[59]
     The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and “the function to be served by the giving of reasons”. For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:

“…And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.”

155. [60]
     McHugh JA’s view was that reasons sufficient to meet the above requirements 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”.

155. [61]
     In Strbak v Newton, Samuels JA said:

“… What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.”

155. [62]
     Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith, said that the decision maker:

“… should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions.”

155. [63]
     Meagher JA in Beale v Government Insurance Office of NSW stated these propositions:

“… there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.”

155. [64]
     Whilst, in my respectful opinion, it would be inconsistent with authority to apply the three “fundamental elements” rigidly, and I do not understand his Honour to be suggesting otherwise, they provide useful guidance for a determination of the sufficiency of reasons in the general run of cases.”

(footnotes omitted)

156. [156]
     Given the workload faced by the Magistrates Court, although it does not obviate the need to provide adequate reasons, it is appropriate to give some latitude when critically reading the reasons.  The observations of Pritchard J in Gartner v Brennan [2016] WASC 89 are apposite in that regard.  Her Honour observed at [58]:

“Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases.  Consequently, appeal courts should not scrutinise the reasons for decision given by Magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language.  The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached.  The adequacy of a Magistrate’s reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).”

(footnotes omitted)

157. [157]
     I now turn to consider the adequacy of the reasons and the applicable facts and controversies in this case.

Were the learned Magistrate’s reasons infected by error?

158. [158]
     The learned Magistrate made no express findings about the credibility or reliability of the evidence given by HCA or HIK.  I am satisfied that it can be inferred that the learned Magistrate had formed the view that neither HIK nor HCA’s accounts could be accepted.  That inference is supported by the learned Magistrate’s observations with respect to the allegations of domestic violence prior to separation.  They include findings that the learned Magistrate could not be satisfied as to the truth of what was said by either HCA or HIK.  That the learned Magistrate formed an adverse view about the reliability or credibility of the evidence given by both HCA and HIK is the only way that the judgment can be understood when read as a whole.  For those reasons, I accept that adverse findings were made against each party, albeit not expressly.
159. [159]
     I must respect the advantage that the learned Magistrate had in seeing and hearing the testimony.  I have read the whole of the transcript of the proceedings.  Not all features that lead to an unfavourable impression of a witness’ credibility or reliability will necessarily be apparent on the face of the written record.  The evidence supports adverse findings about HCA’s credibility.  There are also indicators in the transcript that tend to support the making of the adverse findings about the reliability of HIK’s recollection of events prior to their separation.  There is nothing that I can identify that would justify departing from those findings, bearing in mind the appropriate principles.  As such, I must assess the evidence through the prism of those findings.
160. [160]
     Even with the limitations in mind, there are significant difficulties with the findings of the learned Magistrate referred to in paragraphs [149] and [150] above. 
161. [161]
     The learned Magistrate did not attempt to explain, let alone resolve, difficulties and inconsistencies between the learned Magistrate’s findings and incontrovertible facts on the evidence.  This includes the uncontroverted evidence that:

     1. (a)
        HIK’s actions were authorised by the 2020 Parenting Order, the February 2023 Parenting Order and the June 2023 Parenting Order, each of which HIK was obliged to comply with;
     2. (b)
        HCA consented to each of the parenting orders, and that she did so at a time when she was legally represented;
     3. (c)
        the drug testing requirements in each of the parenting orders reflected recommendations made by the family report writers;
     4. (d)
        the family report writers’ recommendations were informed by HCA’s admissions about her drug use and the writers’ concerns about the safety and welfare of the children; and
     5. (e)
        the results of HCA’s drug tests indicated regular, heavy use of cannabis by HCA that was inconsistent with the prescription referred to by Dr McDermott.
162. [162]
     The uncontroversial evidence supports reasonable inferences that HIK’s conduct was not domestic violence. 
163. [163]
     Another difficulty with the learned Magistrate’s reasons is that the learned Magistrate did not attempt to explain how the adverse findings in paragraphs [31] and [32] about HIK’s actions in making reports to the Department of Child Safety can be reconciled with the adverse finding in paragraph [45] that HIK’s action in phoning the police was insufficient.
164. [164]
     These difficulties reveal that the learned Magistrate’s reasons with respect to the alleged acts of domestic violence against HCA are inadequate.  In those circumstances, the learned Magistrate’s reasons required more detail and greater transparency in relation to the allegations of domestic violence than that provided.  The reasons do not allow the reader to understand the logic behind the path taken to the finding that HIK committed acts of domestic violence.
165. [165]
     When regard is had to all the evidence, including the uncontroversial evidence, it is not such that it could be found that HIK committed acts of domestic violence.  Having regard to the incontrovertible facts, the findings of domestic violence were unreasonable and reached in error.
166. [166]
     These errors of law and fact are sufficient to justify setting aside the decision of the learned Magistrate.  In those circumstances, I will only briefly touch on the alleged errors with respect to the other findings. 

Is there a material error in the learned Magistrate’s findings that a protection order was necessary or desirable to protect HCA from domestic violence?

167. [167]
     The learned Magistrate’s findings about why a protection order was necessary or desirable were brief.  They were contained in paragraph [65] of the learned Magistrate’s reasons for judgment, which states:

“The parties are going to have a lot to do with each other for many years to come.  Issues of residency of the children, and the time to be spent with the non-resident parent are yet to be determined in a contest before the Family and Federal Circuit Court of Australia.  Even after a determination is made, I am of the view that [HCA] and [HIK] will not see eye to eye on many issues of parental responsibility and living arrangements that arise.  It is more probable than not that there will be arguments over the interpretation of the Court’s orders, and it is more probable than not that absent any protection order [HIK] will commit further acts of domestic violence against [HCA] by restricting the time [HCA] is allowed to spend with the children.  I am therefore of the view that it is necessary or desirable that an order be made protecting [HCA] from the respondent being of not good behaviour to [HCA] and from committing domestic violence against [HCA].”

168. [168]
     These findings do not address HIK’s case about this issue.  HIK submitted that it was not necessary or desirable to have an order as the evidence demonstrates that:

     1. (a)
        HCA and HIK are successfully communicating through use of the Our Family Wizard app; and
     2. (b)
        there has been positive progress by HCA in terms of her drug use such that the need for further drug testing is considered unlikely. 
169. [169]
     These were incontrovertible facts to which the learned Magistrate made no reference when finding that a protection order was necessary or desirable.
170. [170]
     The reasons are inadequate in that regard.  This is an error of law.

Is there a material error in the learned Magistrate’s decision to make the Protection Order?

171. [171]
     At paragraphs [62] and [63] of the reasons for judgment, the learned Magistrate found:

171. “[62]
     I am also satisfied that [HCA] has committed the act of domestic violence against the respondent in taking the children from the school and withholding them from the respondent in June and July 2022.
172. [63]
     I identify, as I am required to do so pursuant to s 4 (2) (e) of the Act, [HCA] as being the person in the relationship who is most in need of protection, due to the prolonged acts of domestic against [HCA] when compared with her single act in 2022.”

172. [172]
     The learned Magistrate’s findings at paragraph [62] were informed by the earlier finding at paragraph [47] that:

171. “[47]
     In taking the children on 24 June 2022, and keeping them with her for the 2 weeks of the school holidays, the aggrieved was trying to coerce the Respondent into mediation.  This is behaviour that is domestic violence.”

173. [173]
     HIK alleges that these findings are infected by an error of law as s 4(2)(e) of the Domestic and Family Violence Protection Act 2012 is of no relevance in this case. 
174. [174]
     Section 4(2)(e) of the Domestic and Family Violence Protection Act 2012 contains one of the principles that applies in administering the Act.  It states:

“in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection—

1. (i)
   the person who is most in need of protection in the relationship should be identified; and
2. (ii)
   only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other; …”

175. [175]
     In this case:

     1. (a)
        HIK made no allegations of domestic violence;
     2. (b)
        the evidence does not support a finding that HCA committed an act of domestic violence against HIK; and
     3. (c)
        there was no evidence that HCA was committing acts of violence against HIK.
176. [176]
     In the circumstances, the learned Magistrate erred in law in considering who was the person in the relationship who is most in need of protection.  That error infected the exercise of the discretion to make the Protection Order. 

Is there a material error in the learned Magistrate’s decision to name the children of HIK and HCA?

177. [177]
     The learned Magistrate’s findings about the naming of the children in the protection order were brief.  The learned Magistrate found:

177. “[71]
     Is the naming of the children in the order necessary or desirable to protect the children from associated domestic violence or from being exposed to it?  The children have been exposed to the acts of domestic violence committed by [HIK] on [HCA] by the emotionally and psychologically abusive and controlling behaviour of keeping the children from [HCA].
178. [72]
     It may be argued that as there is already a clause stopping [HIK] doing this (as it would be an act of domestic violence against [HCA]) there is no necessity or desirability to name the children in the order.
179. [73]
     These children have been pawns in the dispute between their parents.  Each has withheld them from the other.  This must stop.  If the children are named, then (if [HIK] withholds them from [HCA]), it becomes a more serious breach of the order to also expose the children to domestic violence.  I am satisfied that it is necessary or desirable to name the children to protect them from being exposed to the domestically violent act of withholding them from spending time with their mother, [HCA].”

178. [178]
     Although the learned Magistrates’ reasons for judgment do not refer to the definition of “associated domestic violence” in s 9, nor to s 10 of the Domestic and Family Violence Protection Act 2012, it is reasonable to infer that the learned Magistrate was aware of the relevant definitions given the findings reference them.
179. [179]
     That said, the learned Magistrate’s reasons are inadequate.  In final submissions, HIK advanced a case that there was no justification for naming the children in any protection order.  It was HIK’s case that there was no evidence that the children were subjected to associated domestic violence or were exposed to domestic violence.  The learned Magistrate’s reasons did not address this critical issue.  The learned Magistrate did not attempt to identify any evidence that the children have seen, heard, or otherwise experienced the effects of the domestic violence that the learned Magistrate found to have been committed by HIK.  

What is the appropriate disposition of the appeal?

180. [180]
     As I have explained above, the learned Magistrate’s reasons are attended by relevant error.  As such, it now falls to me to exercise the powers granted by s 169 of the Domestic and Family Violence Protection Act 2012. 
181. [181]
     Where error has been established, there is much to be said for the finalisation of proceedings by the exercise of the powers under ss 169(1)(b) and (c) of the Domestic and Family Violence Protection Act 2012.  The finality of litigation, and the attendant limiting of financial and emotional costs, are important considerations.
182. [182]
     As I have found above, the evidence does not support a finding that HIK has committed domestic violence against HCA.  In those circumstances, it is appropriate that:

     1. (a)
        the decision of the learned Magistrate in Maroochydore Magistrates Court to grant the protection order made 22 February 2024 is set aside; and
     2. (b)
        the application for a protection order filed 28 July 2022 is dismissed.

Should there be an award of costs?

183. [183]
     HIK seeks a costs order in his favour.  I have permitted the parties to provide further written submissions on that issue.  As such, I reserve my decision with respect to the issue of costs for later determination.

What are the orders?

184. [184]
     My orders are as follows:

1. 1.The appeal is allowed.
2. 2.The decision of the learned Magistrate in Maroochydore Magistrates Court to grant the protection order made 22 February 2024 is set aside.
3. 3.The application for a protection order filed 28 July 2022 is dismissed.