FAJ v FJH[2024] QDC 23

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 15 November 2022 the appellant filed a notice of appeal in respect of the order made on 19 October 2022, in the Magistrates Court at Gympie, that there be a final protection order made pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (“DFVPA”), against him and in favour of the respondent, the aggrieved in the proceedings below.
2. [2]
   Accordingly, that order must necessarily have been made having regard to the following provisions of s 37 of the DFVPA:

“37 When court may make protection order

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. the court must consider—

1. the principles mentioned in section 4; and

3. [3]
   The grounds of appeal are expressed, in the notice of appeal, as being that:

“1. The Magistrate erred by finding domestic violence occurred.

  2. The Magistrate erred by finding that a domestic violence order was necessary or desirable.”

4. [4]
   As notified in the written submissions filed for the appellant on 21 April 2023, leave was sought and was granted at the hearing of the appeal, to amend those grounds of appeal so as to delete the first ground and to “include an additional ground of appeal” that:

“The appellant was denied procedural fairness as he was not properly prepared to conduct the hearing.”

5. [5]
   As was noted by the Magistrate in his decision, the parties had met in 2010 and married on 23 July 2011, had previously separated in 2017 but resolved to resume their relationship and separated for the final time, on 24 September 2020.  The aggrieved filed her application on 20 April 2022 and a temporary protection order had been made when the matter first came before the Court on 20 April 2022 and then adjourned to allow service on the respondent. As a result of directions given on 11 May 2022, affidavits were filed in the matter and it then came before the Court on 28 September 2022, for hearing.
6. [6]
   At that time and not uncommonly in proceedings of this kind, that hearing proceeded with each of the parties being legally unrepresented. It was also without any police involvement.  Neither is there any involvement of the Commissioner of Police in this appeal, as is permitted by s 167 of the DFVPA, with the requirement pursuant to s 165 of service of the notice of appeal on the Police Commissioner.  No affidavit has been filed on behalf of the appellant, as it should have been, in order to evidence that such service has occurred, but it can be noted from correspondence on the Court file,^[2] that there has been acknowledgment, on behalf of the Commissioner, of service occurring, with an indication of there being no intention to exercise a right of appearance.

The nature of this Appeal

7. [7]
   Pursuant to s 168 of the DFVPA and subject to any order of the Court that the appeal be heard afresh in whole or part (which is neither an order sought nor made here), the appeal “must be decided on the evidence and proceedings before the court that made the decision being appealed”. Notwithstanding this, the effect is to provide for an appeal in the nature of rehearing on the record of the proceedings below.^[3] Such a proceeding was described in Coal and Allied Operations Pty Ltd v AIRC, in the following terms:

“Ordinarily, if there has been no further evidence submitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the powers are to be exercised for the correction of error.”^[4]

8. [8]
   Subsequently, in Fox v Percy, it was relevantly explained that:

“20 Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word “rehearing”. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term “appeal”, or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.

 ….

9. [9]
   A further explanation of relevant principles is to be found in Powell v Chief Executive Officer of Australian Customs Service,^[6] as follows:

“[34] The task of an appellate court in conducting an appeal by way of rehearing was recently described by the High Court in Robinson Helicopter Co Inc v McDermott as follows:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’ or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.”

Their Honours there cited, amongst other cases, Fox v Percy and, in particular, the statements to which I have just referred. In Marriner v Australian Super Developments Pty Ltd, the Victorian Court of Appeal cited that passage from Robinson Helicopter Co Inc as relevant to cases where a finding of fact depended upon a view taken of conflicting testimony rather than being an inference drawn from uncontroverted facts.”^[7]

10. [10]
    Despite being referenced in the written submissions for the appellant,^[8] it is at least doubtful that a determination pursuant to s 37 of the DFVPA does involve any exercise of discretion to which the principles discussed in House v The King,^[9] are applicable. Rather and as recently discussed by way of distinction, in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore,^[10] there may ultimately be a requirement of evaluative judgment attracting the "correctness standard" identified in Warren v Coombes,^[11] as the applicable standard for appellate review,^[12] with that distinction explained as follows:

“16 The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a ‘discretion’ is ‘apt to create a legal category of indeterminate reference’, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for ‘value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right’. The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the ‘correctness standard’ applies) was identified as that between questions lending ‘themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions’ in which event ‘it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance’, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.”^[13]

In any event, the approach of the appellant on the hearing of this matter was in addressing the correctness standard, as is the approach in this decision.

The Magistrate’s Decision

11. [11]
    The Magistrate correctly noted that some context for the respondent’s application was that the parties were engaged in what he described as “property settlement litigation” in the Federal Circuit and Family Court of Australia.  At the time of the hearing of this application, those proceedings had not been concluded.
12. [12]
    Early in his reasons, the Magistrate correctly noted that there was no question that the parties were in a relevant relationship, being a spousal relationship, for the purpose of applying s 37 of the DFVPA and that the disputes in the hearing before him related to each of the remaining requirements; that is, whether the Court was satisfied that:

    1. the respondent had committed an act of domestic violence against the aggrieved; and
    2. a protection order is necessary or desirable to protect the aggrieved from domestic violence.
13. [13]
    In the context of notation of the definition in s 8 of the DFVPA, as to behaviour which is in the nature of domestic violence, the Magistrate, largely, found the acts of domestic violence of the appellant in four of his electronic communications with the respondent, occurring in the context of their dealings in respect of their property settlement.  The specifically relevant findings were:

[12]  “In her affidavit of 3 June 2022, the aggrieved added to the instances of domestic violence, an allegation of stalking.  The aggrieved annexed an email sent by the respondent to her on 28 January 2022, to that affidavit which says in part:

‘Hi [FJH]

Do not repay evil for evil.

… you know I live my life like that … so why would you be scared that I might know where you live …  Do you think I may come and put sugar into your petrol tank … just as was done to my BMW!!

No relax, vengeance is mine says the Lord … I leave it up to him … to sort matters out.

Btw, I have known since Oct where your new home with blurred ownership lines is …  [address] Road ?

My eyes are open wide!!

[FAJ]’

[13] The respondent admitted to sending that email.  When giving evidence about that, he first said in cross-examination that he had a friend in real estate that he had approached, intimating that that friend had told him where she had purchased property.  When asked for the friend’s name, he said he didn’t want to say it.  Then he said when being further asked, that it was in fact the person who used to clean for them both, namely [SA] who later gave evidence in this matter, that she has family in real estate and that she had got someone in the family who was in real estate to check where the aggrieved had purchased and that he now knows that it was in Pie Creek.  It seems the respondent felt that he could tell the court an untruth in order to try and protect [SA] and/or a member of her family from being embarrassed about being involved in this.

[14]  [SA] also gave evidence about this and didn’t remember conversations.  She did accept that she had a family member in real estate.  I found her evidence unimpressive and lacking in credit.  I shall ignore her evidence.

[15] The preparedness of the respondent to tell the court an untruth also leads me to being very cautious of his evidence. 

…

[17] The aggrieved in her 3 June 2022 affidavit, said in paragraph 3b that she and the respondent had been separated for eighteen months.  She said she kept her location safe from him, never told him where she lived however, both times, in her rental accommodation and her current home, he has managed to find her.  This has made her to feel unsafe, especially in the light she says of her being with him when he has driven around Gympie and stalking his ex-wife.

….

[19] I find the email of 28 January 2022, referred to above by me, to be an act of domestic violence as it was behaviour that was emotionally or psychologically abusive and/or behaviour that was threatening and/or behaviour that was done in such a way so as to dominate the aggrieved and cause her to fear for her safety or wellbeing.

[20] This is also underlined by the evidence given by [CR], whose evidence I accept, that whilst at the aggrieved’s house on 24 July 2021 she saw the aggrieved become alarmed when the aggrieved noticed the respondent’s Toyota HiLux driving slowly along the road where she lived.  She said that she saw the aggrieved’s emotional response to this, which was to become suddenly fearful, scared and shocked that he had apparently found out where she lived.

[21] The respondent accepts that he sent a text message to the aggrieved, on 5 April 2021, which said in part:

‘… you will see the spine in me flex the way it did with [L], pity it’s going to cost us both money to remind you that when I’m in a corner, I come out fighting, let it begin.’

[22] [L] is the respondent’s former wife.  I find the sending of this text message to the Aggrieved to be an act of domestic violence in that it was emotionally or psychologically abusive.  It was threatening.

[23] The respondent sent an email to the aggrieved, on 4 January 2021, which in part said:

‘You’re going to be even more tired, cuz I am not, I am going hard honey, and I won’t stop until you get what you deserve.

It will be fair, fair to me, and I thought you were smart, now I know you are not you are just cunning and conniving, that will ultimately cost you … and btw, the handwritten doc that you BS about typing, would have more than put a roof over your head, you bloody liar … now you’re going to struggle to get one over your head, and I don’t care … but I’ll make sure of that … liar.’

[24] This was sent in the context of their property settlement dealings.  The respondent admitted sending it.

[25] I find that it was also an act of domestic violence in that it was emotionally or psychologically abusive and it was threatening.

[26] On 5 April 2021 the respondent sent a text message to the aggrieved which in part said:

‘… why can’t you show me the documented figures … why my lawyer … how dare you preach to me about threats, I asked you to prove your 40% and in typical fashion you refused, no wonder it does not work … you remove all the documents from my house, then tell me to prove it … what does that say about you …. thief … liar … oh and let’s not forget … caveat … do as I say then you can have what you need … if that isn’t a threat then what is … you are a pasty church hypocrite … Jesus had a lot to say about the likes of you … no we could never agree in marriage … so why would we agree in separation!!  Good luck with your legal bills cow … you have pushed me too far!!!’

[27] Again, I find this to be an act of domestic violence as it was emotionally or psychologically abusive and was threatening in the sense that impliedly he was saying that he had been pushed too far so look out for his reaction.

[28] The respondent, in final arguments stated that some of the emails were written by him in frustration and he could’ve chosen his words differently and could’ve chosen them better.  That’s true however, the email and text referred to above by me were still emotionally or psychologically abusive and threatening.

[29] Further, the aggrieved gave evidence of the respondent not allowing her to attend the actual births of her grandchildren in Tasmania and Cairns.  She said he had forbidden her from attending the births, saying she had to work on the farm.  He allowed her to go to Tasmania and Cairns subsequent to the birth.  I find that behaviour to be coercive behaviour and therefore acts of domestic violence.”

14. [14]
    In dealing with the requirement in s 37(2) that a protection order is necessary or desirable to protect the aggrieved from domestic violence, the Magistrate first and as required by that provision, had regard to the principles for administering the Act, as set out in s 4.  He then found that “as a woman in these circumstances I find that she is somewhat vulnerable to domestic violence” and also in the context of noting some reference in the material to the aggrieved having taken some 200 bars of silver, worth approximately $200,000, with her upon leaving the relationship and after noting the aggrieved’s contention of bringing assets into the relationship and that these issues would be brought into account in the property proceedings, the Magistrate reasoned that:

“Even if that taking of the whole of the silver bars was found to be an act of financial control by her over him and therefore an act of domestic violence, I am of the view that of the two she is the person who is most in need of protection, as her actions in taking the bars was to preserve some of the joint assets.”

15. [15]
    The Magistrate then reasoned to a conclusion that a protection order was necessary and desirable as follows:

“[34] The respondent argues that an order is not either necessary nor desirable as:

1. they separated in September 2020 and she did not bring her application for 18 months; and

2. he knew where she lived from November 2021 to February 2022 but that she didn’t find out that fact until early February 2022 and upon finding out that he knew where she lived, she didn’t commence proceedings until April 2022.

[35] The aggrieved argues that they will still have to have communications with each other until their property disputes are finalised and she needs protection until that occurs to stop him from being emotionally or psychologically abusive or coercive or threatening in these dealings.  She gave evidence in her affidavit of 3 June 2022 paragraph 8, that ‘… the quality of my life has diminished so significantly, all aspects of my life are being impacted.  My work is being affected, my memory gets jammed, I feel exhausted all the time and overwhelmed.  I have great difficulty sleeping … if I get communications from the RESP, my heart races, and I get surges of nervous energy.  I feel shut down and the RESP still is in control.  I wake for the next accusation … the RESP to date has not evidenced to me that he is willing to communicate respectfully or in a civil matter [sic] … we still need to communicate but I can’t do this when I am subjected to his allegations, threats and passive aggressive mannerism.

[36] I accept this evidence from the aggrieved, who gave evidence in a cogent, and clear manner.  She was not given to any histrionics and her reactions to the acts of the respondent in finding out where she lived, and letting her know he knew, and in threatening her that he will come out fighting and that she will get what she deserves are the reactions of a woman who is vulnerable to domestic violence.

[37] Further the respondent should be held accountable for his actions.^[14]

[38] It is for these reasons that an order protecting the aggrieved from domestic violence in the future is necessary and it is also desirable.”

The appellant’s contentions

16. [16]
    In respect of the ground of appeal directed at error in the Magistrate’s finding that a domestic violence order was necessary or desirable, the appellant contends that there was failure to have regard to the “three stage test” discussed in MDE v MLG & Queensland Police Service.^[15] More particularly, in respect of any assessment of the risk of future domestic violence, it is contended that the risk of future acts of domestic violence was low, in that:

    1. despite the Magistrate’s assertion that there was no evidence as to when the property settlement litigation might conclude,^[16] there was evidence that this dispute was listed for trial on 28 November 2022, which meant there “would be little need for the parties to have contact in the future”;
    2. “[d]espite the ‘frustration’ not providing a legal defence to such acts, it is a factor to be considered in determining the ‘likelihood’ of the appellant engaging in similar conduct in the future;
    3. there was no evidence of any breach of the temporary protection order imposed on 20 April 2022; and
    4. apart from in respect of the finalisation of the property dispute, “there was no evidence the parties would have any contact direct or indirect in the future”.^[17]
17. [17]
    More generally, it was noted that the found acts of domestic violence were limited, as noted above,^[18] and asserted that the significant impacts claimed by the respondent were related to “a much wider range of allegations of domestic violence”.^[19]  It may be noted that on the hearing of this appeal, it emerged that the respondent remains concerned about wider issues and implications in respect of her position, in seeking protection under the Domestic and Family Violence Protection Legislation.  However, for present purposes and where the orders ultimately sought by the appellant include that the respondent’s application be remitted to the Magistrate’s Court to be determined according to law, those are considerations for any such further determination of that or any other relevant application, upon such an outcome.
18. [18]
    What is at issue here is the application of the statutory test as to whether “the protection order is necessary or desirable to protect the aggrieved from domestic violence”.  For my part, I respectfully, do not share the view that this test is appropriately to be applied as rigidly or as structured in the observations made in MDE v MLG & Queensland Police Service.^[20] In particular, it is necessary to note that the adoption of such a “three-staged test” was directed at some views expressed in an earlier decision as to the departure of the legislation from an earlier requirement for the court to assess the likelihood of domestic violence occurring in the future, before making such an order, in the context of the explanatory notes for the amendment which was made.  That is set out as follows:

“[51] The focus of this element is the paramount need for the protection of an aggrieved from domestic violence, and whether imposing a protection order is necessary or desirable to meet that need.

[52] The use of the phrase “necessary or desirable” invokes a very wide and general power, and should be construed in a similarly liberal manner to enable a court to properly respond, and, if appropriate, tailor an order to protect a person from domestic violence. The phrase is not unusual in that it appears in both state and federal legislation, including analogous anti-domestic violence legislation.

[53] In GKE v EUT [2014] QDC 248 McGill SC DCJ considered the requirement and said at [32] to [33]:

“[32]  In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved.

[33] I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future. Broadly speaking I agree with what the Magistrate said in the passage beginning “fourthly” of his reasons, though I would express the last sentence as “the risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.” In assessing such a risk, it is relevant to consider the fact that there is going to have to be some ongoing relationship because of the position of the children, and, if as the appellant alleges the respondent has been difficult and uncooperative in the past in relation to the arrangements for him to have the opportunity to spend time with the children, there is a risk that there will be situations arising of a kind which have in the past produced domestic violence

[54] This is consistent with the explanatory notes of the Domestic and Family Violence Protection Bill 2011:

“The Bill replaces the ‘likelihood’ element with a requirement that a court be satisfied that an order is necessary or desirable to protect an aggrieved from domestic violence. This change focuses the court on the protective needs of the aggrieved and whether imposing conditions on the respondent’s behaviour is necessary or desirable to meet these needs. The court may still consider evidence which suggests that domestic violence may occur again, or a threat may be carried out, however the court does not need to be satisfied that such an event is ‘likely’. Further, a court can look at other factors, including whether an aggrieved is in fear, when it is determining this element. The new grounds also require a court to consider the guiding principles in deciding whether an order is necessary or desirable for the protection of the aggrieved. The priority of the Bill is the safety and wellbeing of the aggrieved and the grounds for making a protection order are directed toward achieving this aim. These measures are also consistent with the objective of ensuring that orders are only made for the benefit of the person who is in need of protection and are intended to reduce inappropriate cross applications and cross-orders.”^[21]

19. [19]
    The essence of the earlier referenced observations and which are in my view, correctly noted to be consistent with the referenced explanatory memorandum, is in recognising that the full implication of the phrase “necessary or desirable to protect the aggrieved from domestic violence” lies in understanding a requirement to assess the prospect or risk of future acts of domestic violence occurring, in the absence of an order; and in thereby determining whether such prospect or risk is “sufficiently significant to make it necessary or desirable to make an order in all the circumstances”. In my view and more importantly, that conclusion is supported by reference to the main objects of the DFVPA, and how those are to be achieved, in s 3, and particularly the statement that:

“(2) The objects are to be achieved mainly by—

The statutory test is to be applied as to determining whether, in the circumstances, it is “necessary or desirable” to make an order. Dependent upon all of the relevant circumstances, whilst a finding of no substantial future prospect or risk of domestic violence occurring, would be an obvious impediment to any determination that it was necessary or even desirable to make an order, it does not follow that upon any finding of such substantial prospect or risk of future domestic violence, it could not be found that it was desirable to make an order, even if the circumstances do not warrant a finding that it was necessary to do so. So much may be seen as being consistent with the further considerations, as mandated by s 37(2)(a)(i), as were recognised as requiring attention in MDE v MLG & Queensland Police Service, in terms of consideration of the following principles set out in s 4:

  “4 Principles for administering Act

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

•women

•children

•Aboriginal people and Torres Strait Islanders

•people from a culturally or linguistically diverse background

•people with a disability

•people who are lesbian, gay, bisexual, transgender or intersex

•elderly people

20. [20]
    It is apparent from the extract of the Magistrates findings leading to his conclusion that it was both necessary and desirable to make the order, which is appealed,^[22] that he has made no explicit finding as to any assessment of the risk of future acts of domestic violence by the appellant. Whilst there are potentially implications of such consideration in the findings, there was no explicit approach to that conclusion by having regard to any necessity or desirability for the protection of the aggrieved from domestic violence, having regard to any such assessment of future risk to her or otherwise. Moreover, the expressed reasoning of the Magistrate, albeit in  noting the aggrieved’s contention as to her need for protection in respect of their expected further communications as to their property settlement and in concluding in terms of deciding that “an order protecting the aggrieved from domestic violence in the future is necessary and it is also desirable” and some contrary contentions of the appellant, discernibly demonstrates  particular focus upon what were accepted as to the particular concerns and vulnerabilities of the aggrieved and that “the respondent should be held accountable for his actions”; that is his past acts of domestic violence, as had been found to have occurred. The conclusion to which this Court is driven, is as to the absence of consideration of more than the aggrieved’s concerns as to such future conduct, rather than some assessment of the significance of any prospect of the appellant doing so, as the necessary foundation for any conclusion that it was necessary or desirable to make the protection order.
21. [21]
    In this respect, the Magistrate was in error in not approaching this test from the perspective of assessing the future prospect or risk of acts of domestic violence by the appellant. Whilst at one point in the submissions for the appellant, it is contended that this Court should proceed to make a finding that on the evidence, the making of the order was neither necessary nor desirable, the essential difficulty lies in the further complaints as to the appellant not being afforded procedural fairness and particularly in respect of his desire to further explore the ongoing context of the property dispute, in which the communications which were found to be his acts of domestic violence, had occurred. 
22. [22]
    The contention in the second ground of appeal is that the appellant was not afforded “procedural fairness as he was not properly prepared to conduct the hearing”. 
23. [23]
    Although it may be noted that by s 143 and in respect of proceedings like that conducted below by the Magistrate, it is provided that “the provisions of the Justices Act 1886 apply to the proceeding unless the application of that Act is inconsistent with this Act”, s 145(1) of the DFVPA provides that the court in hearing and determining a proceeding under the Act, “is not bound by the rules of evidence, or any practices and procedures applying to courts of record” and “may inform itself in any way it considers appropriate”. Nevertheless, it is well understood that an appropriate sense of procedural fairness (or as it was previously termed, “natural justice”) must be afforded to each of the parties.^[23]  However and as noted in National Companies and Securities Commission v News Corporation Ltd:^[24]

“The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.”

24. [24]
    Of some particular assistance to the issues raised in this matter, is the following observations of Kirby J in Allesch v Maunz:^[25]

“[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.  The principle lies deep in the common law.  It has long been expressed as one of the maxims which the common law observes as ‘an indispensable requirement of justice’.  It is a rule of natural justice or ‘procedural fairness’.  It will usually be imputed into statutes creating courts and adjudicative tribunals.  Indeed, it long preceded the common and statute law.  Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.”

25. [25]
    Also and has been previously noted,^[26] notwithstanding being expressed in respect of relevantly equivalent precursor provisions in s 38(2) and s 84(2) of the Domestic and Family Violence Protection Act 1989, the following observations made in DMO v RPD,^[27] remain equivalently apposite to the current provisions:

“[9] Provisions of this nature are familiar, and they do not exclude an obligation to accord procedural fairness. Nor do they have the effect that an order can be made without any proper basis; the position is simply that the formal rules of evidence do not apply, so that it would be open, for example, in an appropriate case to receive material which would ordinarily be excluded as hearsay, or to receive evidence in written form. But there must still be evidence, in the sense of there being some material put before the court which provides a rational basis for arriving at the state of satisfaction contemplated by s 20, and it must be put before a court in a way which gives the opposite party the opportunity to challenge that evidence, and to put the opposite party’s case in relation to the matter.

[10]  Ordinarily, therefore, one would expect that the hearing of an application under the Act, where the respondent appeared and contested the matter, would proceed in much the same way as a civil trial; the applicant would give evidence or call evidence, and the applicant’s witnesses would be cross-examined by the respondent, and the respondent would then give or call evidence, and be subject to cross-examination. One would expect that the hearing contemplated by s 48 would be a hearing in the conventional sense. I note that s 39 of the Act contains a mechanism by which a person can be summoned to give evidence as a witness, and the section contemplates that that person will give evidence as a witness at a hearing on oath or affirmation”.^[28]

26. [26]
    It is also well recognised that notwithstanding the particular difficulties which may confront a busy judicial officer in efficiently dealing with matters involving self-represented litigants, the requirement affording procedural fairness remains and is indeed heightened where there may be the lack of legal training and presumed understanding of the usual processes and the issues to be addressed.^[29] 
27. [27]
    Although the ground of appeal is qualified in the way which has been noted, in the written submissions for the appellant, the contention in support of seeking orders setting aside the decision of the Magistrate and remitting the matter for rehearing, is summarised as follows:

“32. With respect, the Learned Magistrate’s explanation to the appellant at the commencement of the trial failed to:

1. a.
   Adequately draw the appellant’s attention to the law to be applied by the Court in determining the issues before it;
2. b
   Adequately inform the appellant of the process and procedure which would be followed in determining the application.
3. c.
   Adequately inform the appellant of the rules and procedure regarding cross examination of witnesses, including, for example, the requirement to cross examine witnesses on evidential matters in dispute.
4. d.
   Allow the appellant time to prepare his cross examination of the respondent, given he had indicated he was erroneously advised by a lawyer that he would not be allowed to cross examine the respondent.

33. The transcript reveals the appellant:

1. a.
   struggled to phrase questions in an appropriate way;
2. b
   failed to cross-examine the respondent on a number of evidentiary matters he disputed;
3. c.
   was prevented from fully exploring the property dispute between the parties, which was the basis upon which a number of the recent acts of domestic violence originated from, and the reason the parties would have any contact in the future.

34. It is suggested the failure to appropriately explain the trial process, combined with the inadequate cross-examination, is such a fundamental unfairness that has denied the appellant natural justice and fair hearing.”^[30]

28. [28]
    The assertions set out in paragraph 32 a, b and c of this extract, are not to be accepted as giving rise to any concern as to the Magistrate not affording procedural fairness to the unrepresented parties in the proceeding below and in particular, the appellant. In the passages identified in respect of these contentions and whilst there may be an observation of terseness, there was adequate explanation as to the process to occur and the relationship of it to the matters to be determined by the Court pursuant to s 37 of the Domestic and Family Violence Protection Act 1989.^[31]
29. [29]
    Further, these and the contentions in paragraph 33 a. and b. are not readily directed at the ground of appeal added by leave and it is not necessarily to the point that it is suggested that the appellant was not adept at presenting his case at trial.
30. [30]
    As to the remaining issues, the concern pursuant to the ground of appeal and this Court’s review of the proceeding below must necessarily be as to any conduct of the Magistrate which may have served to preclude or hinder the full exposition of the appellants response to the application. 
31. [31]
    In the first instance, some criticism is directed at the Magistrate for proceeding with the hearing in circumstances where the appellant had asserted, at the outset and subsequently, that he had not come prepared to cross-examine the respondent, as he had, incorrectly as the Magistrate pointed out,^[32] been informed by a lawyer that he would not be allowed to do so. When asked if he wanted to cross-examine the respondent, the appellant told the Magistrate, before confirming that he did wish to cross-examine her:

“Your Honour, I probably do. I took legal opinion before this. I spoke to my lawyer about it and he said well, as far as he’s concerned I won’t be able to cross-examine, because the law said I can’t. So I’ve got to be honest, I haven’t prepared a whole bunch of questions to cross-examine her. But there certainly are things in her latest affidavit that need clarification.^[33]

 As is indicated in the last sentence and might be more broadly expected, where the parties had prepared affidavits for the purpose of this hearing, the appellant had a sense of awareness of the issues that he wished to litigate, and he did not immediately request any time to prepare any cross-examination of the respondent. However and twice, before he stated that he had no further questions, he did indicate that he was struggling because of his lack of preparedness due to the incorrect advice he had been given, without there being any response in allowing him any time to gather his thoughts. First, he did continue to ask some questions, after indicating:

“I’ve probably got much more, but anyway, I’m really not prepared for this, but …”^[34]

 Secondly, it can be noted that the appellant’s cross-examination of the respondent ended as follows:

 “HIS HONOUR: Yes, do you have any other questions of her?

RESPONDENT: Probably not, at this stage, your Honour, no.

HIS HONOUR: Well you won’t get another chance.

RESPONDENT: Unfortunately, I’m not prepared for this. I was told I’m not going to – you won’t get to cross-examine her, so if I had I would be - - -

HIS HONOUR:  Who’s your lawyer?

RESPONDENT: [….]

HIS HONOUR: Okay. Well he got it wrong.

RESPONDENT: Well he went into the portal and he said you can’t cross-examine her – an aggrieved. That’s what it says, you can’t cross-examine an aggrieved if you haven’t got a lawyer.

HIS HONOUR: Of course you can.

RESPONDENT:  That’s what I was advised. I was told I couldn’t cross-examine the – anyway, it’s - - -

HIS HONOUR:  Any other questions, Mr [FAJ]?

RESPONDENT:  No, your Honour, I don’t.”^[35]

32. [32]
    The Magistrate had made it, appropriately, clear from an early stage of the cross-examination that he was only interested in determining the issues arising under s 37 and not in determining the ongoing property dispute between the parties.^[36] However, a difficulty and particularly in the light as to what has been found above about the erroneously narrow approach taken by the Magistrate as to the issue as whether it was necessary or desirable to make the protection order, is in the breadth of a further assertion by the Magistrate that he was not interested in property settlement negotiations.^[37] That is particularly when it is understood that the main findings of acts of domestic violence of the appellant were in statements he made in correspondence exchanged as part of the property settlement negotiations. As the appellant, at a later point, said to the Magistrate in answer to further query as to the relevance of some of his questioning of the respondent:

“So I’ll tell you how it is; as far as I’m concerned, this is all about actions that [FJH] has taken all the way through the separation, which has resulted in me responding to an email. All right. The emails is what she’s actually objecting to, she’s saying I have not appropriately addressed her in any email; that’s your domestic violence claim, that I – my emails to her are not appropriate, that they are rude, et cetera. I’m saying your actions have precipitated a response in my emails, and this action – in particular, this one – was nasty, and it got a reaction – a really bad reaction – from me, because I suffered extreme financial hardship as a result thereof, and still do.”^[38]

 Quite apart from any admission of the inappropriateness of his emails and leaving aside the inherent difficulty of any “she made me do it” approach, if, as was found here and ultimately not pressed as challenged in this appeal, the responses include acts of domestic violence, there remains a discernible need of understanding the relevant context to such acts of domestic violence, in terms of addressing the issue as to whether an order is necessary or desirable in the particular circumstances; including, but not limited to, any assessment of the risk of further acts of domestic violence.

33. [33]
    Whilst it must recognised that that the Magistrate, otherwise, had and considered the evidence placed before him by the appellant and also that there was no ruling that the appellant could not ask any particular question of the respondent, what has been observed as to the interactions with the appellant leaves a clear impression that there was some dissuasion in respect of the appellant seeking to fully explore the appellant’s case in cross-examination of the respondent. He was entitled to do this and it may have been important in terms of gaining better understanding of the context to the particular messages found to contain acts of domestic violence and, in turn, in considering whether it was necessary or desirable to make an order to protect the respondent from further acts of domestic violence.
34. [34]
    It is unnecessary to further consider whether this amounted to a denial of procedural fairness such as to vitiate the determination made below, as the discussion to this point, in the light of the finding of the error of the Magistrate in respect of his consideration of the issue as to whether or not it was established to be necessary or desirable to make an order, serves to illustrate why this Court should not seek to now determine that issue on the available materials and that there should rather be an order, as the appellant ultimately seeks, for the matter to be remitted to the Magistrates Court.

Conclusion

35. [35]
    Accordingly, it is appropriate to order that the decision on 19 October 2022 to make a domestic violence order, is set aside and the application filed by the respondent on 20 April 2022, is remitted to the Magistrates Court at Gympie to be determined according to law. In the circumstances which have been outlined, prudence would indicate that such determination should be by a different Magistrate. The parties will be given opportunity to be heard in respect of any further order.