CEE v CNH[2024] QDC 76

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant and the respondent were married in April 2019.  At that time the appellant had three children of a previous marriage (“the appellant’s children”) and the respondent had one son (“the respondent’s son”).  As a result of their union, they had one daughter (“their daughter”).  They separated on or about 9 July 2022.
2. [2]
   On 20 July 2022 the appellant filed an application for a Protection Order (“PO”) under the Domestic and Family Violence Protection Act 2012 (“the Act”).  The next day a Temporary Protection Order (“TPO”) was granted in favour of the appellant against the respondent, with the appellant’s children and their child nominated as “named persons”. That order was varied on 24 August 2022 and 26 October 2022, in each instance by consent and without any admissions.  The variations are of no moment for present purposes.
3. [3]
   In summary the initial form of the TPO provided that the respondent must be of good behaviour towards the appellant and not commit domestic violence against her, that the respondent must be of good behaviour towards the appellant’s children and their daughter, that the respondent was prohibited from contacting directly or indirectly the appellant subject to certain exceptions, that the respondent was prohibited from following, remaining or approaching within 100 metres of the appellant subject to certain limited exceptions and that the respondent was prohibited from using the internet to communicate with or publish other matters concerning the appellant. In particular, one of the conditions provided:

“The respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the (appellant) lives or works or currently staying (sic).”

4. [4]
   The same day as that TPO was granted, the respondent filed an application for a PO in his own favour.  He testified that he filed the application prior to being served with the TPO.  No TPO was granted consequent to his application, probably because one was in existence between the parties. 
5. [5]
   In November 2022 the respondent commenced proceedings in the Federal Circuit and Family Court of Australia.   Those proceedings remain on foot.
6. [6]
   The oral hearing of the cross-applications was heard on 16 May 2023 and 5 September 2023, with written submissions, and replies thereto, subsequently filed.  Both parties had legal representation throughout that hearing.
7. [7]
   In early January 2024, the respondent filed a further application for a PO against the appellant.  I am informed that it is listed for hearing in the Pine Rivers Magistrates Court in July 2024. 
8. [8]
   On 24 January 2024 the Magistrate dismissed both cross-applications and provided written reasons. The effect of that was that the TPO was immediately no longer in force,^[1] if the decision was enforceable. The appellant has appealed that decision.  The respondent has not.

Grounds of appeal

9. [9]
   The pleaded grounds of appeal, after anonymisation, are:

1. a)
   The Magistrate erred in her summary of the evidence at paragraph 51, in describing (the appellant) filming the incident on a GoPro when it was (the respondent’s) mother who was filming;

2. b)
   The Magistrate erred in finding there was no corroborating evidence for the allegation that (the respondent) threatened to slash (the appellant’s) tires (sic) with a knife;

3. c)
   The Magistrate erred in finding that the act of (the respondent) withholding the wallet from the appellant for a lengthy period following their separation did not amount to an act of domestic violence;

2. d)
   The Magistrate erred in failing to deal with the following alleged acts of domestic violence perpetrated by (the respondent):

1. i.
   preventing (the appellant) from gaining access to a mortgage offset account, which the evidence demonstrated she had mostly paid to the money to (sic); and

2. ii.
   making and pursuing vexatious police complaints in relation to the son of (the appellant).

5. e)
   The Magistrate erred in concluding that (the respondent’s) domestic violence history did not “disclose a preponderance” of domestic violence; and

6. f)
   The Magistrate erred in concluding that (the appellant) was not a person in need of protection from (the respondent).

10. [10]
    The appellant was self-represented on the appeal.  Her written outline and oral submissions included further arguments which were not specifically pleaded as grounds of appeal.  The respondent’s Counsel dealt with the matters as though they had in fact been pleaded.  Given the significant overlap with the pleaded grounds of appeal, this was appropriate. His written outline adequately distils the arguments into three points:

1. a)
   That her Honour was under a positive duty to make specific factual findings, and that her Honour failed to do so and thereby committed an appealable error;

2. b)
   That her Honour’s reasons were inadequate; and

3. c)
   That her Honour failed to correctly apply the legislative framework by not making findings of fact as to whether the allegations of domestic violence made by the parties occurred, and that accordingly her Honour failed in her duty to determine whether the respondent committed acts of domestic violence against the appellant.

11. [11]
    Additionally, the appellant complained that the timeline concerning the initial filing of the application, the two days of hearing and the delivery of judgment and reasons was so elongated as to mean that there was a procedural irregularity, and provided an explanation as to why errors were made. This, it was submitted, impacted on the fairness of the hearing.
12. [12]
    Given that the respondent had notice of these allegations and has responded to them, it is appropriate to deal with those further allegations as though they were contained within the Notice of Appeal.

Nature of the appeal

13. [13]
    A person who is aggrieved by a decision to refuse to make a protection order may appeal against that decision.^[2]
14. [14]
    The appeal is to be decided on the evidence and proceedings before the Court below, unless the appellate Court makes an order to the contrary.^[3] In the course of oral submissions, the appellant referred to more recently obtained material that she contended should be admitted as further evidence on the appeal.  There was no formal application to adduce further evidence however, and the documentation she referred to in oral submissions was not provided to me. Further, the respondent did not respond to those submissions.
15. [15]
    On the basis of the oral submissions made, the only aspect of this additional material that was not canvassed in the cross-examination below concerned an alleged alteration of a date of a text message or messages sent. This forms part of a series of cross-allegations of interference with cloud-based records. It is very unlikely to have any material effect on the consideration of the issues raised by the appeal and, in the circumstances, it is appropriate that I proceed solely on the basis of the material below as good reason has not been shown for the admission of the further evidence.^[4]
16. [16]
    Therefore, this appeal is in the nature of an appeal by re-hearing on the record.  The powers to dispose of the appeal are found at s. 169 of the Act. This Court’s jurisdiction to interfere with the orders below is not enlivened unless relevant error is established.
17. [17]
    In conducting the re-hearing, I must recognise the natural limitations that exist in the case of any appellate Court proceeding wholly on the record, including the fact that the Magistrate had the advantage of seeing and hearing the witnesses as part of the process of the evaluation of credit and reliability.^[5] Within those constraints, this Court is required to conduct a real review of the evidence and proceedings below, including the reasons below, and make its own determination of relevant facts in issue from the evidence, including any inferences to be drawn, giving due respect and weight to the Magistrate’s conclusions.^[6] 
18. [18]
    The onus is on the appellant to show that there is some error in the decision under appeal.^[7] 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 evidence, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.  As the refusal to grant a PO involves the exercise of a discretion, error of the kind explained in House v The King^[8] needs to be demonstrated before the appeal can succeed, unless some other form of error not related to the exercise of the discretion is established.  The last category referred to in House v The King has sometimes been expressed as requiring satisfaction that no reasonable decision-maker could have made the decision under appeal.
19. [19]
    Under s. 169(2) of the Act, the decision of this Court is final and conclusive.

Legislative framework

20. [20]
    Given the issues that are raised in the appeal, it is unnecessary to provide a detailed overview of the legislative framework provided by the Act. Section 4 sets out the principles for administering the Act.  Part 2, Division 2 of the Act provides the various definitions concerning relevant concepts including that of “domestic violence”.
21. [21]
    Section 37 is of significance in this appeal.  It relevantly provides:

“37 When court may make protection order

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.

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

2. (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

2. (ii)
   …; and

3. (iii)
   the respondent’s criminal history and domestic violence history filed in or given to the court under section 36A; and

2. (b)
   ...

3. (3)
   ...

4. (4)
   ...

5. (5)
   …

6. (6)
   This section applies subject to section 41G.”

22. [22]
    Section 41C(2) requires the Court to hear an application and a cross-application together, unless it is necessary in the circumstances to hear them separately for certain stated reasons.  They were properly heard together here. Section 41G applies, in the case of cross-applications heard together, to require an assessment of which applicant is the person most in need of protection from domestic violence. 
23. [23]
    In deciding any matter on the hearing of the applications, the Court need only be satisfied on the balance of probabilities of the matter, and the rules of evidence do not apply.^[9]  Although not bound by rules of evidence, it is well settled that the Court’s decision must derive from relevant, reliable and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue.^[10]  Equally, principles of natural justice and fairness are not displaced by the legislative provision.

The reasons below

24. [24]
    Her Honour correctly found that a relevant relationship existed for the purposes of s. 37(1)(a) of the Act. There is, and can be, no complaint about that finding.
25. [25]
    As to the remainder of the matters going to satisfaction of the issues in s. 37, the appellant’s Counsel below had summarised the appellant’s allegations in the filed application as:

1. a)
   The respondent holding a knife in front of the appellant and threatening to slash her car tyres if she did not give him the car keys while staying at the Sunshine Coast on 7 June 2020;

2. b)
   The respondent shoving the appellant against a wall to prevent her entry into the respondent’s son’s bedroom in 2019;

3. c)
   The respondent shoving a dish rack off the kitchen bench during an argument causing glasses to smash in front of the appellant and the children on 8 July 2022;

4. d)
   During an argument between the appellant and the respondent on 9 July 2022, the respondent ran into the bedroom of the appellant’s daughter waving his phone in front of her face and telling her it was her fault, causing the child to yell and scream;

5. e)
   The respondent holding and not returning the appellant’s wallet between 9 July 2022 and 20 July 2022; and

6. f)
   The respondent changing the locks to the house without the appellant’s knowledge or consent and failing to provide her with a copy of the changed keys to the house, on 12 July 2022.

26. [26]
    Counsel also summarised the allegations concerning acts of alleged domestic violence after the granting of the TPO (“post-TPO conduct”) as:

1. a)
   The respondent attending the residence of the appellant on the day he was served with the TPO and removing property from the residence;

2. b)
   The respondent making arrangements for the removal of the KIA motor vehicle from the appellant’s possession;

3. c)
   The respondent making false and vexatious complaints in his cross-application and to police that one of the appellant’s sons had committed sexual offences against other children and displayed other sexually inappropriate behaviour;

4. d)
   The respondent filing a notice of a risk of abduction in the Family Court in an attempt to prevent the appellant from leaving the country when he knew she was travelling for family reasons; and

5. e)
   The respondent blocking the appellant from being able to access a redraw facility attached to the mortgage of their residence.

27. [27]
    The appellant relied on this latter series of events both as proof of domestic violence occurring and, given they occurred since the granting of the TPO, to fortify a submission that a PO was necessary or desirable and that the appellant was the person most in need of protection in the relationship.
28. [28]
    A similar summary of allegations was provided concerning the allegations by the respondent in the cross-application. Given he has not appealed, it is unnecessary to summarise them.
29. [29]
    In the prepared written reasons, her Honour purported to deal with the complaints in both applications. It is unnecessary to analyse each of her findings in detail, although I will make more detailed reference to parts of them when considering the arguments in the appeal. Her Honour also made findings of credit damaging to both parties, both broadly and, in some instances, relevant to specific allegations.
30. [30]
    Her Honour, in essence, found that, with the exception of that referred to in [25] e) above, she could not be satisfied that any of the conduct referred to in [25] above occurred as alleged. As to that exception, she could not be satisfied it amounted to domestic violence. She found that the matters referred to in [26] above were “not persuasive”. I will return to examine that finding.
31. [31]
    Accordingly, so far as the appellant’s application was concerned, her Honour was not satisfied that the respondent had committed domestic violence against the appellant, as required by s. 37(1)(b) of the Act.
32. [32]
    Consistent with protocol, her Honour purported to give reasons touching on the issue at s. 37(1)(c) of the Act, in the event she was in error on the precedent issue.

Submissions

33. [33]
    In essence, the appellant argues in relation to the pleaded grounds of appeal that:

1. a)
   There was a clear factual error as to who was filming the incident on the GoPro on 25 December 2022 at the time of the changeover under the parenting orders made by the Family Court.

2. b)
   There was in fact corroborating evidence for the allegation that the respondent threatened to slash the appellant’s car tyres with a knife on 7 June 2022, namely the evidence of a text message having been sent by the appellant to a third party a relatively short time after the threat was made.

3. c)
   The Magistrate erred in finding that the withholding of the appellant’s wallet for a lengthy period did not amount to an act of domestic violence.  In essence, it was submitted that the only reasonable finding was that it did amount to domestic violence.

4. d)
   The matters of preventing the appellant from gaining access to the mortgage offset account and of the pursuit of “vexatious” police complaints in relation to the appellant’s son required specific findings that were not properly dealt with in the judgment.

5. e)
   The Magistrate erred in not giving sufficient weight to the respondent’s previous domestic violence history by observing that it did “not disclose a preponderance of domestic violence” on his part.

6. f)
   The Magistrate erred in not finding that the making of a PO was necessary or desirable in all of the circumstances, including conduct that occurred since the granting of the TPO.

34. [34]
    It was submitted that there were simply too many errors for this Court to ignore and it should be found that the orders made were erroneous.
35. [35]
    In relation to the further matters not specifically pleaded in the Notice of Appeal, the appellant acknowledged (without accepting, in her case) that the Magistrate found that the credit of both parties was lacking.  It was submitted that in those circumstances it was incumbent on the Magistrate to make specific findings as to why the matters complained of were not accepted. 
36. [36]
    Further, it was submitted that the Magistrate failed to consider the post-TPO conduct in deciding if domestic violence had been proven. 
37. [37]
    Finally, it is complained that her Honour dealt with the allegations in a compartmentalised manner whereas in truth many of them were part of the one course of conduct, and that the concept of considering them “over a period of time” is specifically required by s. 8(2) of the Act.
38. [38]
    Central to the respondent’s submissions is the proposition that the Magistrate found that neither party was a credible or reliable witness, and that accordingly none of the respective complaints could be proven to the required standard.  It is argued that that was a finding that was open and, given the principles applied on appeal, is not one that is easily overturned.  It is submitted it should not be overturned in this case, and that the decision to dismiss both applications was reasonably open.
39. [39]
    In relation to the actual pleaded grounds, it is submitted that many of the complaints do not in truth amount to an error, or where there was one, it does not rise to the level of an appealable error. 
40. [40]
    It is further argued that when it is remembered that the reasons of the Magistrate need to be considered as a whole and making appropriate allowance for the fact that the jurisdiction is an undeniably busy one, the reasons given were adequate.  Having said that, it was accepted that in some respects they could have been more fulsome, however it is maintained that they were nonetheless adequate, as that term has been understood in jurisprudence. The sufficiency of reasons needs to be considered on the basis of quality and not quantity.
41. [41]
    Further, it is submitted that there is no requirement for the Magistrate to have made a finding on every specific allegation in what was a case containing a myriad of sometimes minute and minor allegations. It will be sufficient if the finding can be inferred.

Consideration

Credit Findings

42. [42]
    I accept the submissions by both parties, but particularly pressed by the respondent, that the Magistrate had found that neither party’s accounts could be accepted. It should be inferred that her Honour made that finding where there was no independent support for the allegation, given the observation at paragraph 84 of the Reasons that it was significant that there was some support for one allegation from a third-party. The adverse finding as to the credit of both parties was not expressly made, but it is the only way that the judgment can be understood when read as a whole. Further, that acceptance is consistent with the short oral explanation given by her Honour at the time judgment was given and the reasons were delivered on 24 January 2024, where she said, in part, “The end result, however, is that both applications are dismissed without orders as to costs, effectively due to adverse credit findings in relation to both parties.”^[11]
43. [43]
    The observations of Pritchard J (as her Honour then was) in Gartner v Brennan^[12] are apposite, even though the present decision was not delivered ex tempore;

“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)

44. [44]
    Those observations do not obviate the need for adequate reasons being provided, but they illustrate why some latitude is appropriately given when critically reading them. For those reasons, I accept that adverse credit findings were made against each party, albeit not expressly.
45. [45]
    The need to respect the advantage that the Magistrate had in seeing and hearing the testimony has earlier been mentioned. I have read the whole of the transcript of the proceedings. Not all features that lead to an unfavourable impression of a witness’ credibility will necessarily be apparent on the face of the written record, however there are indicators in the transcript that tend to support the making of the adverse findings against each party. There is nothing that I can identify that would justify departing from those findings, bearing in mind the appropriate principles.^[13] Accordingly, I must assess the evidence through the prism of that finding.
46. [46]
    However, that does not logically mean that everything that the parties said cannot be accepted. As will be explored, some of the events should have been accepted as having occurred, if only because it was not in issue that the event occurred but with differing reasons or explanations for it, or because there is independent supportive evidence for the fact it occurred.
47. [47]
    I pause to observe that the explanation for the apparent delay in the delivery of judgment since the filing of the initial application is, no doubt, explained by the busy nature of the Magistrates Court. There are indicators in the transcript of the first day of hearing that there was an expectation that the matter could be heard in one day. When it was not, the next available day for hearing was 5 September 2022.^[14] It was completed that day and judgment and reasons delivered 24 January 2023. Delays of this nature in that jurisdiction are regrettable, but not uncommon, especially where the initial hearing estimate is inadequate.
48. [48]
    The appellant submits that it raises a concern as to the procedural fairness of the proceeding due to the asserted inability of the Magistrate to balance the evidence and make findings of fact. That cannot be accepted. The Magistrate was, as is apparent on the face of the transcript, taking notes of the evidence, and had available to her transcripts of the respective hearing days. Further, her Honour is an experienced Magistrate and, unfortunately, accustomed to delivering decisions after the passage of time caused by other professional commitments.
49. [49]
    The concern that such a delay has on issues of procedural fairness is understandable, but I am satisfied that it did not impact on the fairness of the present hearing.

Ground 1 – Error in the identification of who operated the GoPro.

50. [50]
    This was an accepted error. However, it was a mere slip of expression about an event that formed one of the bases for the respondent’s application. It made no difference to the assessment of the appellant’s complaints, either singularly or in a cumulative sense. It does not rise to the level of being an appealable error.

Ground 2 – Error in failing to find there was corroborative evidence concerning the allegation of the threat to slash the tyres.

51. [51]
    The Magistrate found that, in the context of the credit findings, the appellant’s account of a threat by the respondent to slash the car tyres was “not supported by extraneous evidence”.^[15] The appellant’s submission is, in effect, that the fact that there was evidence that she sent a text message to a third party referring to a threat to slash her tyres at a time relatively shortly after the complained of conduct occurred means that there was corroborative evidence that should have been used to buttress the credibility and reliability of her complaint.
52. [52]
    As a matter of law, that evidence is not corroborative of the appellant’s account as it has emanated from the appellant. Nonetheless, the issue is whether the text message is circumstantially supportive of the appellant’s account, particularly in light of when it seems to have been accepted that it was sent.
53. [53]
    Ultimately, I accept the respondent’s submission that it remains a case of the appellant bolstering herself by reliance on the text message. There was no real dispute that there was an argument at the time alleged, the issue was what was said and done at that time. Any probative value in the text message had to come from its contents, and not the mere fact a message was sent, and so its probative value is so slight as to mean that the finding by the Magistrate was open to her.

Ground 3 – Error in failing to find that the withholding of the appellant’s wallet did not amount to an act of domestic violence.

Adequacy of reasons.

54. [54]
    Consideration of ground 3 of appeal is part of a broader consideration of the adequacy of the reasons.
55. [55]
    A failure to provide adequate reasons for the decision made can amount to an error of law,^[16] although the failure will not achieve that characterisation unless the inadequacy relates to the reasons why adequate reasons must be provided. An inadequate explanation of a matter not related to the central issues may not amount to an error of law.
56. [56]
    The concept of “adequacy” is rather elastic and adapts to the circumstances in the case at hand. There have been many attempts over the years to attempt to define what will amount to adequate reasons, but it is that elasticity which prevents a comprehensive and universally applicable definition. Nonetheless, it is helpful to understand what has previously been said on the topic. In Drew v Makita (Australia) Pty Ltd^[17] Muir JA (Holmes JA and Daubney J agreeing) observed:

59. “[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."

60. [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."

61. [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 the reasons must incorporate an extended intellectual dissertation upon the claim of reasoning which authorises the judgment which is given."

62. [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."” (footnotes omitted)

57. [57]
    More recently, the High Court unanimously said:^[18]

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

58. [58]
    Further, the duty to give adequate reasons has often been linked to the availability of rights of appeal^[19] and so the duty to provide adequate reasons after trials and important interlocutory applications is well established.^[20]
59. [59]
    It may also be that the considerations referred to earlier concerning the busy nature of a Magistrates Court could have relevance in a particular case, but that cannot be a complete answer where the reasons are inadequate. They may help explain why the reasons were produced in that manner, but that does not excuse the fact that an error of law has occurred if the reasons are inadequate for the purpose they were delivered.
60. [60]
    In relation to the conduct the subject of the third pleaded ground of appeal,^[21] the Magistrate sufficiently summarised the evidence and summarised the competing submissions.^[22] Her Honour found (in terms that clearly include an unintentional miswording that makes the sentence difficult to read at first blush) that given that the appellant had electronically withdrawn, or transferred, $21,000 from a bank account on 8 and 9 July 2022, immediately prior to her leaving the premises, it was unlikely that she was deprived of money to support the children. That finding was made in response to a submission that the respondent acknowledged that the appellant had told him that.^[23]
61. [61]
    Her Honour considered that, as to the allegation of financial control applied by withholding the wallet, “there was no evidence, nor is it the only reasonable inference to draw that (the respondent’s) actions amounted to financial control”. The reference to “financial control” is, I assume, a shorthand reference to the term “economic abuse” at s. 12 of the Act.
62. [62]
    Her Honour then moved to a consideration that the respondent’s actions were “manipulative”. While this too is not a term picked up by the Act, the findings were in response to the appellant’s written submissions which used that term. ^[24] It was being used compendiously with the phrase “financially abusive”, and so it may be understood to reflect the legislative reference to “unreasonably controls” in the definition of “economic abuse”. Alternatively, it may have been a reference to the definition of “emotional or psychological abuse” at ss. 8(1)(b) and 11 of the Act. Her Honour made express reference to both definitions in her reasons,^[25] and she cannot be criticised for using the term where it had been advanced by one of the parties.
63. [63]
    Her Honour found that “The allegation of manipulation in attempting to trade off the return of the wallet for his own demands could potentially be domestic violence, but looking at the situation at the time as a whole and taking into account the credit finding regarding (the appellant), I am not satisfied its proven domestic violence”.^[26]
64. [64]
    There are three significant concerns with the findings referred to at [60] to [63] herein. They either reveal that the reasons for this conclusion are inadequate or, alternatively, that the conclusion is erroneous.
65. [65]
    First, in finding it was unlikely that the appellant was deprived of financial support through the withholding of the wallet, her Honour did not deal with the direct evidence by the appellant to the effect that her bank access cards were in the wallet, inferentially meaning that she had no way of accessing that transferred money.^[27] That evidence was not directly challenged by way of affidavit or in cross-examination. It is an allegation that seems to be supported by common sense, even in light of the general credit finding concerning the appellant, given the acceptance by the respondent that he had the wallet for much of the period complained of, and that the appellant told him the cards were in the wallet. It may be that the conclusion reached was open, but it needed to be explained why.
66. [66]
    Second, there was evidence that the conduct amounted to “financial control” as the phrase was being used. It came from the appellant. The respondent in effect accepted that he had been in possession of the wallet for eight days of the 12-day period, although he provided purportedly innocent explanations for why it was not returned earlier. In those circumstances, it should have been accepted that he was in possession of it for at least eight days, and it may be inferred that finding was made.
67. [67]
    However, the respondent’s explanations were far from compelling, and it was open to accept he had been in possession of it for all 12 days, especially in light of the general adverse credit finding made about him. It was open to find that withholding it, even for the lesser period, constituted economic abuse in circumstances where the evidence was capable of establishing that the appellant could not access any money at all, and where the respondent accepted he had been told that by the appellant. That is especially so where the broader context is that they had separated on or about 9 July 2022, the first day of the 12-day period alleged by the appellant and part of the items being withheld were passports which would have precluded the appellant visiting family overseas, as had been earlier discussed.
68. [68]
    Although not expressly stated, it must therefore be that her Honour found that the respondent’s explanations meant that she was not satisfied that economic abuse, as defined, had been proven. However, where adverse credit findings had been made against each of the appellant and respondent, it was incumbent on her Honour to explain why an explanation by the respondent meant that satisfaction about a finding that was otherwise clearly open on the evidence was not achieved, especially where the explanations given were not particularly convincing on their face.
69. [69]
    Further, if there was a different, but reasonable, inference to be drawn other than that the conduct amounted to “financial control”, an explanation was required as to what that was.
70. [70]
    Thirdly, when dealing with the “allegation of manipulation”, her Honour appears to have accepted that the respondent was bartering the return of the wallet for things he wanted, but declined to find that it amounted to domestic violence because of “the situation at the time as a whole” and the appellant’s adverse credit finding.
71. [71]
    Broad, undefined, findings such as “the situation at the time as a whole” are rarely helpful in understanding why a finding was made, and especially so where her Honour considered that this conduct was the only allegation that might justify a finding that domestic violence had occurred.
72. [72]
    Depending on the view taken, there were many things happening that would contribute to understanding just what the “the situation at the time as a whole” was. Some of those things would undoubtedly assist with a finding of torment, intimidation or unreasonable control,^[28] others would not, and there may have been a whole range of findings in between.  In order to be adequate, for the purposes of the proceeding below, more detailed and transparent reasons were required concerning this allegation. The reasons are inadequate as they do not allow the reader to understand the logic behind the path taken to a central finding in the proceedings.
73. [73]
    That finding of an error of law would be sufficient to determine the disposition of the appeal. However, there are some further matters that I should consider, but they will only be touched on briefly given the finding I have made.

Ground 4 – Error in failing to deal with certain allegations of domestic violence.

Error in failing to make specific findings of fact as to conduct amounting to domestic violence.

74. [74]
    There is considerable overlap between the specifically pleaded ground 4 of appeal, and the submissions as to a failure to find the post-TPO conduct amounted to domestic violence.^[29] The allegations concerning the post-TPO conduct have been summarised at paragraph [26] herein, and those that form the specifically pleaded ground 4 are those at [26] c) and [26] e). It is convenient to deal with each of the complaints on appeal compendiously.
75. [75]
    When considering these matters, her Honour commenced by observing, in an unnumbered paragraph immediately before [30] of her Reasons:^[30]

“These matters are considered for the context of the relationship and perhaps later in relation to the issue of Necessary or desirable (sic), and not in relation to breaches as uncharged or not before the Court and would be in a different jurisdiction.”

76. [76]
    None of the post-TPO conduct was contained in the application which commenced proceedings, as all of it was alleged to have occurred after that time. The evidence was adduced and responded to. Her Honour provided a sufficient factual summary of the post-TPO conduct.^[31] Her Honour purported to deal with each of the allegations contained in the application under headings in her reasons entitled “Credit of the Parties” and “Acts of Domestic Violence”. The only place in her Honour’s reasons that the post-TPO conduct was considered was under a heading “Necessary and Desirable + Person in most need of protection”, and even then in a single paragraph that commenced by addressing submissions on the basis of who is in most need of protection. There her Honour briefly found that the allegations were “not persuasive and have been addressed above.”^[32]
77. [77]
    While it is difficult to understand what is meant by the latter part of the unnumbered paragraph from the reasons, it is not correct to say that the allegations of post-TPO conduct were before the Court only for context and determination of the issue under s. 37(1)(b) of the Act. While it is the case that the appellant sought to also rely on them as evidence justifying the making of the orders in her case given the tests under ss. 37(1)(c) and 41G of the Act, they were allegations of domestic violence that bore upon the issue in s. 37(1)(a) of the Act. Both parties addressed them on that basis.
78. [78]
    The respondent before me, properly, accepted that they fell for determination below on the issue under s. 37(1)(b). His submission in essence was that the finding that those allegations were “not persuasive” meant that her Honour did make findings about them, especially in light of the general credit findings; even though it was contained under a different heading, a finding was made that was applicable across all issues. I cannot accept that is the case.
79. [79]
    The combination of the prelude to consideration of the post-TPO conduct in the unnumbered paragraph and the fact there is no finding about any of them until, briefly, considering the matters raised by ss. 37(1)(c) and 41G strongly points to a conclusion that her Honour failed to give consideration to these allegations for the determination under s. 37(1)(b). The failure by her Honour to explain what she meant by them being “unpersuasive”, as I will discuss immediately below, means that I cannot be satisfied that it was a finding of broad application.
80. [80]
    If I am wrong about that, I would have found that the reasoning around these matters was also inadequate. Her Honour’s reasons do not disclose why the allegations were “unpersuasive”, even accepting the credit findings made. Three possibilities of what it meant immediately come to mind; it could reasonably mean that they were unpersuasive in establishing that the alleged conduct occurred, that they did not persuade her that, although the conduct occurred, any of them amounted to domestic violence or that, although any or all of them occurred, they were not persuasive on the issue raised by s. 37(1)(c) of the Act. It could mean something else.
81. [81]
    Further, the reference to them having been “addressed above” adds nothing and is misleading. Those words can only refer to the summary of the factual allegations, which did not contain a consideration of their merit. That was only done through the agency of the broad and undefined term “unpersuasive”. Clearer reasoning was required if these allegations were to be found to be insufficient to ground a finding under s. 37(1)(b) of the Act, which was central to the disposition of the proceedings.
82. [82]
    On either view, the manner in which these allegations were considered was erroneous.
83. [83]
    There is one further aspect of the post-TPO conduct, and how it was dealt with, that merits attention.
84. [84]
    One of the allegations made related to the respondent attending the residence in contravention of the TPO that had been issued earlier that day. It was said this amounted to a breach of the condition reproduced at [3] above.
85. [85]
    It was not in contest that he had attended the premises, but he put in issue the reason why he attended and why he was not deliberately or knowingly in breach of the order. The operative finding was that the allegation was “unpersuasive”, as noted above. However, in circumstances where his credit was the subject of an adverse finding, it was incumbent to make specific findings as to why his explanation diluted what would have otherwise been an obvious prima facie case of breaching the order.
86. [86]
    In relation to this allegation her Honour’s reasons were inadequate or, alternatively, the finding was erroneous.

Ground 5 – Error concerning the respondent’s domestic violence history.

Ground 6 – Error in concluding that the appellant was not in need of protection from the respondent.

87. [87]
    Each of the complaints under these pleaded grounds concern comments and findings made under the protocol of considering issues in the event that the substantive finding dismissing the proceeding is found to be in error. Given her Honour was not satisfied that the respondent had committed domestic violence against the appellant, neither of the asserted errors had any impact on the functional findings and outcome and, if erroneous, do not amount to appealable errors, singularly or in combination.

Disposition of the appeal.

88. [88]
    Having accepted that the Reasons, and hence the decision below, are attended by relevant error, it falls to exercise the powers granted by s. 169 of the Act. Where error has been established, there is much to be said for the finalisation of proceedings by the exercise of powers under ss. 169(b) and (c) of the Act. Finality of litigation, and the attendant limiting of financial and emotional costs are important considerations.
89. [89]
    Were I undertaking the process of fact finding, I would have been prepared to find that the respondent had committed domestic violence against the appellant, however given what I consider to be the appropriate disposition of this matter, it is inappropriate for me to make more precise findings. In that event, the issue raised by s. 37(1)(c) would also have to have been determined, but the consideration of s. 41G would not have been raised as there was not a cross-application before me.
90. [90]
    I do not consider it appropriate to determine the issue under s. 37(1)(c) in the present circumstances. I have before me the terms of an order from the Family Court dated 21 March 2023. These orders can be varied frequently, and they are of obvious relevance to the assessment under s. 37(1)(c). Of course, updated versions of the orders, if any, and evidence as to compliance with the orders could, and no doubt would, be provided if requested.
91. [91]
    Of more weight is the fact that the respondent has brought another application for a PO, which is listed for hearing shortly, in July 2024. Any findings made in that proceeding may directly bear on the issues under s. 37(1)(c) in this proceeding. Given the closeness in time to the listed hearing, it is appropriate that the two applications be heard as cross-applications pursuant to ss. 41C and 41G of the Act.
92. [92]
    As earlier noted, the TPO made on 21 July 2022 purportedly ceased to be of effect upon the dismissal of the appellant’s application.^[33] My conclusion that the dismissal of the application for the protection order was attended by error means, in the present circumstances, that the termination of the TPO was never validly effected. As a matter of first principles, the varied TPO as in force at the date of the judgment below must be taken to be automatically reinstated, as s. 98(c) of the Act must be sensibly read as referring to an application being properly refused in order to mean that the TPO is no longer in force. The Magistrate’s decision was not properly made and hence is now known to have never been of effect.
93. [93]
    My view is supported by the fact that s. 169(1)(d) of the Act only permits me, when it is determined the matter should be remitted, as here, to set aside the decision rather than vary or substitute it with another decision. There is no express power under that provision, nor any other provision that I can locate in the Act, to expressly order the restoration of the TPO, nor to grant a TPO myself, although the power is likely to be found in an implied power to give effect to the expressly provided powers.^[34] Given the protective nature of the Act, as evidenced in part by ss. 3 and 4, it cannot have been a deliberate decision of the legislature to leave a successful appellant without a TPO in circumstances where one was in force at the time of an erroneous decision. The solution is that which I contend applies; the TPO in force at the time of the erroneous order is restored and is of effect.
94. [94]
    My reasoning in this respect has also been influenced by the fact that no additional evidence was adduced on the appeal. That fact has led to the conclusion that the Magistrate’s decision was never effective to achieve that which it purported to do. It may be that the receipt of additional evidence would not allow that conclusion to be reached. It would depend on the circumstances at hand, but that is an issue that does not arise for my decision.
95. [95]
    If it is necessary, the respondent should be taken to have been served with a copy of the re-instated TPO within three hours of the delivery of this judgment, unless he can establish otherwise.

Further Observations

96. [96]
    Given the orders that I have made concerning the disposition of this appeal, I have deliberately refrained from making detailed findings as to all aspects of the evidence or the Reasons below, lest it be thought that I was improperly influencing the Magistrate who hears the remitted hearing of the cross-applications. Regardless of how the evidence is adduced and received in the hearing of the cross-application, it will fall to the Magistrate to make appropriate findings on the basis of the evidence then before the Court, regardless of any views I may hold concerning the evidence adduced previously.

Costs

97. [97]
    The appellant has sought a costs order in her favour.^[35] There is a power to award costs for an appeal of this nature,^[36] however self-represented litigants ordinarily cannot recover costs because costs are awarded as a partial indemnity for professional legal costs incurred in the conduct of litigation.^[37] The rule does not apply to disbursements, such as filing fees. A perusal of the Court file reveals that the appellant paid a reduced filing fee on the filing of the Notice of Appeal, but not otherwise.
98. [98]
    Although the respondent did not respond to that application, I can see no reason why they should not be awarded on the basis that costs follow the event. They are limited to $144.70, and should be ordered to be paid within a stated period.

Orders

99. [99]
    My orders are as follows:

1. 1.
   Appeal allowed.

2. 2.
   The orders of the Pine Rivers Magistrates Court on 24 January 2024 are set aside.

3. 3.
   The matter is remitted to the Pine Rivers Magistrates Court to be listed at the first convenient opportunity as notified by the Registrar of that Court to facilitate the further hearing of this application and the respondent’s application filed in January 2024.

4. 4.
   The respondent is to pay the appellant’s costs, fixed in the sum of $144.70, within one month of today.