BN v LMN[2024] QDC 31

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   BN (the appellant) and LMN (the respondent) met in February 2015 and married on 11 February 2016. They had two children: ILN, who was born on 5 October 2017, and EMN, born 27 September 2018. The appellant and the respondent separated on 5 September 2019.
2. [2]
   On 27 September 2019, the respondent applied to a Magistrates Court under s 32 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) for a protection order (the application), citing incidents of domestic violence. A Magistrate made a temporary protection order.
3. [3]
   The application was heard on 7 May 2021, and on 20 May 2021, a Magistrate made a protection order. An appeal against that order was allowed on 21 February 2022, the order was set aside, and the application remitted to the Magistrates Court to be heard by a different Magistrate.
4. [4]
   On 17 May 2023, after hearing the application, Magistrate Nolan (the Magistrate) acting under s 37 of the Act found that:

1. a.
   a relevant relationship existed between the appellant and respondent;
2. b.
   the appellant had committed domestic violence against the respondent; and
3. c.
   a protection order was both necessary and desirable to protect the respondent from domestic violence.

5. [5]
   The Magistrate made a protection order against the appellant for the benefit of the respondent for a period of five years.

The appeal

6. [6]
   On 16 June 2023, the appellant filed a notice of appeal under s 165 of the Act appealing the Magistrate’s decision to make the protection order.
7. [7]
   The grounds of the appeal as stated therein are:

“1. The Magistrate erred at law in finding that a domestic violence order was ‘necessary and desirable’ to protect the Aggrieved from domestic violence in accordance with section 37 of the Domestic and Family Violence Act 2012 (Qld) (sic); and

2. The Magistrate erred in providing insufficient or inadequate reasons for the decision that he made.”

8. [8]
   In HBY v WBI & Anor [2020] QDC 81 at [16]-[18], I set out the nature of an appeal against the making of a protection order under the Act as follows:

“[16] The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing a notice of appeal and the start of an appeal does not affect the operation of the decision unless there is a further order of the court: see s 165 and 166 of the Act. Section 168 of the Act provides that the ‘hearing procedures’ for the appeal are:

168 Hearing procedures

(1) An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.

(2) However, the appellate court may order that the appeal be heard afresh, in whole or part.

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

169 Powers of appellate court

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

(a) confirm the decision appealed against; or

(b) vary the decision appealed against; or

(c) set aside the decision and substitute another decision; or

(d) set aside the decision appealed against and remit the matter to the court that made the decision.

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

[18] An appeal under s 168(1) of the Act is by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: see Fox v Percy (2003) 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for further evidence to be relied on: see Glover at [76]. The exercise of the discretion under s 168(2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13]. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of the surrounding provisions relating to the appeal and the Act as a whole including its main objects (see s 3), the interpretation that best achieves the purpose of the Act is that the discretion in s 168(2) is engaged when good reason is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include “that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”.: see s 4(1) of the Act.”

9. [9]
   The decision to make a protection order under s 37 of the Act involves the exercise of a discretion.  A complaint on appeal about the exercise of a discretion engages the principle from House v The King (1936) 55 CLR 499 at p 504-505 that:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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 his 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

 The appellant’s contention

10. [10]
    The appellant contends that the Magistrate erred when assessing whether a protection order made pursuant to s 37 of the Act is necessary or desirable to protect the respondent from domestic violence because the Magistrate, when assessing the risk of future domestic violence:

• failed to properly assess the risk of domestic violence in the future;
• took into account interactions between the appellant and respondent that he found did not amount to domestic violence when considering the risk of domestic violence in the future;
• failed to give any or sufficient weight to the fact that the appellant had completed an anger management course and demonstrated that he could engage Family Court processes to avoid conflict concerning the care and welfare of the children;
• took into account a finding that the respondent had a genuine concern and fear of further conflict when there was no evidence to support that finding;
• took into account alleged and unproven breaches of the temporary protection order;
• “Failed to appreciate the effect of the Family Law proceedings and any Family Law Court orders on these proceedings…;”
• “… failed to appreciate the appellant’s submission that the making of a protection order could be unusually severe given the Aggrieved’s propensity to report minute and trivial matters;”
• “… failed to appreciate the anger management course completed by the appellant, and the insight he had shown in now addressing his parenting concerns through the proper avenue of enforceable Family Law Court proceedings...;” and
• “… in the absence of addressing the relevant Family Law proceedings, it is submitted that the trial Magistrate failed to provide proper reasons as to why there is a risk of future domestic violence in the absence of any order.”

11. [11]
    The appellant’s ultimate submission is that “the learned Magistrate should have found that this was not a case where the evidence suggested the likelihood of future conflict was sufficiently established on the evidence when taken as a whole,” and that I should “overturn” the decision of the Magistrate and substitute a decision that a protection order is not necessary or desirable to protect the respondent from domestic violence.

The Statutory Requirements

12. [12]
    Section 37(1) of the Act provides that:

“(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—

(a)  a relevant relationship exists between the aggrieved and the respondent; and

(b)  the respondent has committed domestic violence against the aggrieved; and

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

13. [13]
    Section 37(1) of the Act gives the court power to exercise the discretion to make a protection order against a person only if the three requirements in s 37(1)(a), (b), and (c) are satisfied. In relation to s 37 (1)(c) of the Act, it may be observed that:
14. [14]
    First, the subsection is not engaged unless the court is first satisfied under s 37(1)(a) and (b) that a relevant relationship as defined in sections 13 to 20 of the Act exists between the aggrieved and the respondent, and the respondent has committed domestic violence against the aggrieved as defined in sections 8, 11 and 12 of the Act. Domestic violence is broadly defined in sections 8, 11 and 12 of the Act to include behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that: (a) is physically or sexually abusive; or (b) is emotionally or psychologically abusive; or (c) is economically abusive; or (d) is threatening; or (e) is coercive; or (f) in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else: see s 8(1) of the Act.
15. [15]
    Relevantly, ‘emotional or psychological abuse’ means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person: see s 11 of the Act.
16. [16]
    Secondly, in those circumstances the purpose of the protection order is to protect the aggrieved from domestic violence. The word ‘protect’ is not defined in the Act and is to be given its ordinary meaning, including “to defend or guard from” (see Macquarie Dictionary (9th ed, 2023) ‘protect’ (def 1)) the domestic violence.
17. [17]
    Thirdly, the court must be satisfied that the protection order is necessary or desirable to achieve the purpose of protecting the aggrieved from domestic violence.
18. [18]
    The Explanatory Notes to the Domestic and Family Violence Protection Bill 2011 specifically refer to the purpose of the amendment to s 20(1)(b) of the Domestic and Family Violence Protection Act 1989 (Qld). Section 20(1)(b) required that “the person who committed domestic violence is likely to commit domestic violence again or, if the act of domestic violence was a threat, that the person is likely to carry out the threat.” The Explanatory Notes relevantly state:

“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.”

19. [19]
    Further, the Legislature used the word ‘or’ in this section of the statute to make clear that the words ‘necessary’ and ‘desirable’ are disjunctive. That is, the court need only be satisfied of one or the other and not both. The words ‘necessary’ and ‘desirable’ are not defined in the Act but are to be given their ordinary meaning.
20. [20]
    Fourthly, in deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court must consider, amongst other matters, the principles mentioned in section 4 of the Act: see s 37(2)(a)(i), (ii) and (iii) of the Act. Section 4 of the Act provides:

“(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) Subject to subsection (1), this Act is also to be administered under the following principles—­

(a)  people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;

(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;

(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;

(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;

(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—­

(i) the person who is most in need of protection in the relationship should be identified; and

(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;

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

21. [21]
    Fifthly, in deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court may consider any matter, fact or circumstance that is relevant. That would include any matter, fact or circumstance that could rationally affect, directly or indirectly, the assessment of whether a protection order is necessary or desirable to protect the aggrieved from domestic violence. The court may have regard to the main objects of the Act in s 3, which relevantly provides:

“(1) The main objects of this Act are—

(a) to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and

(b) to prevent or reduce domestic violence and the exposure of children to domestic violence; and

(c) to ensure that people who commit domestic violence are held accountable for their actions.

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

(a) allowing a court to make a domestic violence order to provide protection against further domestic violence;…”

22. [22]
    Sixthly, in a proceeding under the Act, a court is not bound by the rules of evidence, or any practices or procedures applying to courts of record and may inform itself in any way it considers appropriate. If the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities: see s 145(1) and (3) of the Act. The hearing must be procedurally fair, i.e., the rules of procedural fairness apply: see Allesch v Maunz (2000) 203 CLR 172 at [35]. 

Consideration

23. [23]
    This appeal concerns only the Magistrate’s decision under s 37(1)(c) of the Act that a protection order is necessary or desirable to protect the respondent from domestic violence, because the appellant concedes that the learned Magistrate was correct to find that there was a relevant relationship between the appellant and respondent, and that the appellant had committed domestic violence against the respondent.
24. [24]
    The parties agree that the record for the purposes of the appeal includes the respondent’s affidavit filed on 22 June 2022 annexing the transcript of the first hearing before Magistrate Fowler on 7 May 2021, the transcript of the hearing before Magistrate Nolan on 22 November 2022, the transcript and written reasons of Magistrate Nolan on 17 May 2023, and exhibits 1 and 2 tendered at the hearing of the appeal.
25. [25]
    I am satisfied on the whole of the evidence that Magistrate Nolan was correct to find that prior to the parties’ separation, the appellant did the following acts which constitute acts of domestic violence and caused the respondent to fear the appellant.
26. [26]
    First, during an argument in May 2019, the appellant initially took hold of the respondent by the shoulder and then moved his hands toward her neck and said “I will fucking kill you. Just shut the fuck up. I’ll fucking kill you” (the May 2019 act). The respondent’s evidence of this act is supported in part by the appellant’s admission that he did take hold of the respondent by the shoulders and a statement he made to the respondent in an email on 28 September 2019 in which he said that:

“…Not that I need to be told that once attempting to strangle your missus, chucking stuff around, breaking things, yelling, shouting, generally lashing out, saying horrible things, restraining you etc are wrong. I always knew they were so wrong no doubt about it. I found myself unable to lovingly, rationally and normally dealing with many situations….”

27. [27]
    Secondly, in the presence of the respondent, the appellant angrily raised a machete above his head and slammed it down into a metal drum, causing an indentation. The respondent’s evidence of this act was supported by the appellant’s statement in an SMS message to the respondent that:

“…I had to lift a bag of chook pellets this arvo and felt my heart rate rise chest hurt and anger raise……them I saw the machete mark in that drum. So sorry – that’s not the real me.”

28. [28]
    Thirdly, that earlier on the day they separated, the appellant and respondent were involved in trying to round up some cows that had escaped from a paddock through an open gate. The appellant had “acted in an abusive manner” when he yelled at the respondent, including calling her “useless” because she did not remember to bring the feed to encourage the cows to return and crashed a vehicle into a boundary fence at low speed with the children in it.
29. [29]
    The Magistrate did not find any of the other interactions between the appellant and the respondent following their separation relied on by the respondent to support the application amounted to domestic violence. The Magistrate made clear that because he found that the acts did not amount to acts of domestic violence, he did not take them into account when making the finding under s 37(1)(b) of the Act: see pages 6, 7, 8, 10 and 13 of the judgment. The only acts relied on by the Magistrate for the purpose of making the finding that the respondent had committed domestic violence against the aggrieved were those committed before the parties’ separation and identified in paragraphs [26] to [28] above: see page 13 of the Magistrate’s judgment.
30. [30]
    The appellant submits that “whilst past acts of Domestic Violence are a relevant factor to aid in any decision, the risk of future domestic violence between the parties in the absence of any order is respectfully the true consideration. The test is not ‘has a significant act of DV occurred and what will the future relationship look like.’” That submission is not supported by the text of s 37 of the Act read in the context of the whole of the Act, including the main objects (see s 3) and principles (see s 4), and the decisions of this court in MDE V MLG [2015] QDC 151 and GKE v EUT [2014] QDC 248. The nature of the act or acts of domestic violence committed against the respondent is a relevant consideration and may, by itself or in combination with other relevant considerations, support a finding that a protection order is necessary or desirable to protect the aggrieved from domestic violence.
31. [31]
    In deciding whether in this case a protection order under s 37(1)(c) of the Act is necessary or desirable to protect the aggrieved from domestic violence, the Magistrate first considered only the three acts that he found amounted to acts of domestic violence. The Magistrate found that the May 2019 act was “the most serious act” (see page 13 of the judgment), properly rejected the appellant’s submission that it was at “a very low level” (see page 14 of the judgment) and held that act of domestic violence “is of itself ‘sufficiently significant’ to make it necessary to make an order” to protect the respondent from domestic violence (see page 4, 14 and 17 of the judgment). Having regard to all the evidence before me, I am not satisfied that finding is the result of some legal, factual or discretionary error. This is sufficient to dismiss the appeal.
32. [32]
    In any event, for the sake of completeness, the Magistrate went on to consider whether a protection order was otherwise necessary or desirable to protect the respondent from domestic violence.
33. [33]
    First, the Magistrate considered the “relationship” between the appellant and respondent, including the likely electronic and personal contact in the future. The Magistrate did take into account that although the appellant and respondent were divorced, they had young children whom they were co-parenting, and they had a number of interactions about personal and parenting matters up until the hearing. A finding that the subsequent interactions between the parties did not amount to domestic violence does not mean those interactions are irrelevant when considering whether the protection order under s 37(1)(c) of the Act is necessary or desirable to protect the aggrieved from domestic violence. It is clear from the whole of the evidence that the appellant and respondent will be required to have ongoing regular contact to co-parent their young children, and that their relationship after separation is neither amicable nor agreeable. The discourse between them concerning their ongoing relationship and the management and care of the children on 23 December 2021, 6 June 2022 and 24 June 2022 demonstrates the real potential for disagreement, dispute and conflict. This is relevant to the assessment of the probability of future domestic violence as defined in the Act.  The Magistrate did not err in taking those matters into account when exercising the discretion, notwithstanding he found they did not amount to domestic violence as defined in the Act.
34. [34]
    Secondly, the Magistrate relied on the fact that the respondent had alleged the appellant had breached the temporary protection solely for the purpose of assessing “the nature of the relationship and the potential for conflict into the future”: see page 15 of the judgment. The Magistrate made this clear, stating, “I raise this point not to make any findings against the [appellant] with respect to any of those matters”: see page 15 of the judgment. The fact that the respondent is likely to allege a breach of the order in the future may be a source of irritation and conflict at that time and is relevant directly or indirectly to an assessment of the probability of domestic violence in the future.
35. [35]
    Thirdly, the Magistrate did take into account the appellant’s completion of an anger management course and his efforts to improve his response to the end of the marriage. The Magistrate also took into account that since 7 January 2020, the appellant had engaged lawyers and applied under the Family Law Act 1975 (Cth) to the Federal Circuit and Family Court of Australia (Division 2) for an order concerning parenting and care of the children: see pages 15 and 16 of the judgment. The Magistrate was also correct to say that “[h]owever, those are not matters which taken alone, can adequately address the question of whether an order, in these circumstances, is necessary or desirable”: see page 16 of the judgment. The Magistrate was correct to observe that these matters were relevant but not overwhelming considerations in determining whether the protection order was necessary or desirable. It should also be noted that the parenting order covers different matters to the protection order and does not contain conditions to protect the respondent from domestic violence. The Magistrate’s reasons adequately explain how he took these matters into account as part of synthesising relevant competing considerations when exercising the discretion.
36. [36]
    More generally, the Magistrate’s comprehensive written reasons describe the conflict between the parties in sufficient detail that a person reading the judgment could understand the factual basis for the decision. His written reasons expose the analysis and reasoning underpinning the determination, explain his findings of fact, his preference for one part of the evidence over other parts, and his analysis and resolution of the conflicts produced by the factual and legal aspects of the case. The reasons adequately disclose the underlying intellectual process giving rise to the conclusions the Magistrate reached concerning the necessity or desirability of making a protection order: see WAJ v CRA [2021] QDC 85 [47]-[49] and ZTP v BBY [2023] QDC 59 [36]-[37].
37. [37]
    Fourthly, the Magistrate did take into account “the impact of any order on the [appellant]”: see page 15 of the judgment. The Magistrate properly balanced that consideration with the main object (see s 3) and the principles (see s 4) of the Act. The appellant contends that a protection order is not necessary or desirable when the respondent has complained about “trivial” interactions that do not amount to domestic violence. However, the respondent has also given evidence of serious acts of domestic violence which demonstrate that a protection order is necessary to protect the respondent. If a protection order is otherwise justified, then any subsequent trivial, frivolous, or vexatious use of the order can be dealt with by either the exercise of prosecutorial discretion, an application for a stay of any proceeding as an abuse of process, an application for a variation of the order or an order for costs.
38. [38]
    Fifthly, the Magistrate did take into account “on the evidence, that the [respondent] has a genuine concern and fear of future conflict with the [appellant]”: see page 15 of judgment. However, that finding is relevant to the exercise of the discretion and is adequately supported by the respondent’s evidence that “he seeks to destroy me any way he can” and “I think that he is going to continue to try and control me and manipulate me in any way, shape or form he can”: see T 1-42.3 & 1-48.10 22/11/2022.

Finally, the Magistrate concluded that future decisions concerning the children and division of matrimonial property and “the likely stress and difficulties associated with those matters are such as to provide potential for future conflict between the [appellant] and [respondent]”: see page 14 of the judgment; and “on the evidence,  that it is desirable that an order issue so as to limit the potential for future conflict between the [appellant] and the [respondent]”: see page 17 of the judgment. I am not satisfied that the Magistrate acted upon a wrong principle, nor that he allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or failed to take into account some material consideration in making the relevant findings. In the absence of some legal, factual or discretionary error, the appeal should be dismissed.

Orders

39. [39]
    The appeal is dismissed.
40. [40]
    The decision appealed against is confirmed.