KAO v DL[2017] QMC 16

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   The aggrieved KAO and the respondent DL were in a short and problematic relationship from May 2016 to early November 2016. The applicant GWB (a Constable of Police) applies for a protection order pursuant to s 32 of the Domestic and Family Violence Protection Act 2012 (DFVPA).

2. [2]
   GWB is not only, as the parties concede, authorised but also compelled to apply to the court for a protection order, in circumstances where he reasonably suspects that domestic violence has been committed.^[1]

Application for Protection Order

3. [3]
   The application, filed on 5 December 2016, is for a protection order with the standard conditions i.e. that the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved (prescribed by s 56 DFVPA), and the following additional conditions:

1. That the respondent is prohibited from remaining at or entering or attempting to enter or approaching any premises where the aggrieved resides and works;

2. That the respondent is prohibited from approaching the aggrieved; and

3. That the respondent is prohibited from contacting the aggrieved or asking someone else to contact the aggrieved.

4. [4]
   The respondent opposes the making of any order.

The Parties’ Material

5. [5]
   Directions were made for the parties’ evidence in chief to be by way of affidavit or statement.

6. [6]
   In compliance with those orders both the applicant and respondent filed and served material and seek to rely on that material in respect of the hearing of the application.

Applicant’s Material

7. [7]
   The applicant’s material is:

1. Application for protection order filed 5 December 2016;

2. Affidavit of KAO sworn 3 December 2016;

3. Affidavit RCG (house mate of KAO) sworn 18 February 2017.;Affidavit of GWB sworn 20 February 2017.

Respondent’s Material

8. [8]
   The Respondent’s material is an affidavit by the respondent DL sworn 23 March 2017.

The Hearing

9. [9]
   The hearing proceeded on 15 May 2017. The applicant was represented by a police prosecutor, Senior Constable Berry, and the respondent was represented by Ms Hadley of Hadley Family Law.

10. [10]
    All witnesses who had deposed affidavits in the proceedings were cross examined.

Evidentiary Provisions

11. [11]
    The evidentiary provisions in respect of the hearing of an application for a protection order are contained in s 145 of the DFVPA which provides:

2. (1)
   In a proceeding under this Act, a court—

1. is not bound by the rules of evidence, or any practices or procedures applying to courts of record; and
2. may inform itself in any way it considers appropriate.

2. (2)
   If the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.
3. (3)
   To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order.

12. [12]
    In hearing and determining an application for a protection order this court must therefore:

1. Be satisfied of the relevant matters on the balance of probabilities; and,

2. Apply a more relaxed test in respect of the admissibility of evidence.

Legislative Test – making a Protection Order

13. [13]
    Section 37 of the DFVPA relevantly provides:

2. (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,

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. the principles mentioned in section 4; and
2. if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the respondent’s failure to comply with the order

14. [14]
    Section 37 required the court to be satisfied of the three requisite elements prescribed in subsection 1 before exercising the discretion to make a protection order. As noted the court need only be satisfied of a matter on the balance of probabilities and the applicant bears the onus to prove that the requirements have been satisfied.

Relevant Relationship

15. [15]
    The aggrieved and respondent both concede that a relevant relationship existed between them. The evidence of the parties was that they did not reside together but were in what could be loosely described as a “boyfriend/girlfriend relationship”.

16. [16]
    The relationship was clearly an intimate personal relationship as defined by s 14 DFVPA and as a consequence it was a relevant relationship for the purpose of s 37.

Domestic Violence

17. [17]
    Section 37(1)(b) DVFPA requires that the applicant prove that the respondent committed domestic violence against the aggrieved.

18. [18]
    Section 8 DVFPA provides a broad definition of “domestic violence” which includes behaviour that is physically or sexually abusive, emotionally, psychologically or economically abusive, threatening or cohesive, or behaviour in any way controls or dominates another person causing fear.

19. [19]
    The applicant in seeking to prove that the respondent committed domestic violence against the aggrieved, in the application, affidavit material and evidence at the hearing, relied upon two alleged incidents of domestic violence – one on 13 August 2016 and one on 2 December 2016.

The Parties’ Evidence

20. [20]
    The applicant sought and was granted leave to adduce some further oral evidence of the aggrieved. The witnesses were each cross examined, although that much of the cross examination appeared to be of little relevance to the principle issues for determination.

Evidence of Constable GWB

21. [21]
    The affidavit of the applicant officer was very brief and simply confirmed that he had received a complaint from the aggrieved who in fact had sworn an affidavit on 3 December 2016 and handed it to him.

22. [22]
    The cross examination of Constable GWB was similarly brief. He was asked about the conduct of other police officers who had allegedly attended the aggrieved residence on the evening of 2December 2016. His response was that he was not the officer attending on that night and knew nothing of the incident.

Evidence of KAO

23. [23]
    KAO’s affidavit provides evidence of the two alleged incidents on 13 August 2016 and 2 December 2016. The aggrieved also gave evidence, with leave, effectively responding to matters that were raised in the respondent’s affidavit material, being:

1. a conversation the respondent allegedly had with an unknown female seeking to warn him in respect of the aggrieved;

2. an incident in respect of her alleged treatment of pets; and,

3. an overseas trip which the parties undertook (although ultimately separately).

24. [24]
    On any view of the evidence, nothing turns on those three matters.

Incident of 13August 2016

25. [25]
    The aggrieved gave evidence that she and the respondent had arranged to stay overnight at Yungaburra. She said that in the course of the evening they had argued and that the respondent had shouted at her and used profanities amongst other things calling her a “whore and slut”. She alleged that he had assaulted her by kicking her in the back and requiring her to sleep on the floor.

26. [26]
    She further alleged that he had in the course of the evening snatched a mobile phone from her hands and pushed her to the floor and then tried to drag her out of the room at which time she was yelling and screaming.^[2]

27. [27]
    The applicant was cross examined about that incident and conceded in that cross examination that the accommodation facility at which she and the respondent were staying was quite a small complex and that there were guests in the adjoining apartment and that the managers lived on site and were close by.^[3]

28. [28]
    She also conceded that when the respondent shouted he had a loud voice and that his yelling and shouting would have disturbed the neighbours, as would have her screaming.^[4]

29. [29]
    She accepted that, notwithstanding her assertions that both the respondent having shouted and her having screamed, no one at the accommodation facility made any contact with them at any time.

30. [30]
    The respondent in his affidavit denied that the incident occurred as alleged by the aggrieved and denied assaulting her as she asserted.

31. [31]
    His evidence was that after going to bed to sleep he was awoken by the aggrieved kneeling on his back and pushing him and that after some time she left, although she had shouted some obscenities toward him after leaving the cabin.^[5]

32. [32]
    He was cross examined in respect of that incident but only to the extent of it being put to him that his account of the incident was untruthful. Whatever the cross examination was aimed at achieving it did not.^[6]

33. [33]
    The aggrieved and respondent give completely different versions of the alleged incident on 13 August 2016. The aggrieved asserts that the incident occurred over a relatively prolonged period with the respondent shouting at her and her screaming as she was assaulted and forcibly dragged from the room. The respondent conversely gave evidence that after an argument with no raised voices, the aggrieved left the cabin shouted some profanities and then apparently left the area.

34. [34]
    The aggrieved’s evidence accepts that there were others in close proximity including, it appears an onsite manager and yet not with-standing the ruckus which she describes including her screaming for help no one sought to intervene.

35. [35]
    Neither the aggrieved nor the respondent were particularly impressive witnesses. Their evidence in the proceedings I suspect was influenced by their embittered position toward each other.

36. [36]
    I find that the aggrieved’s version of the alleged incident on 13 August 2016 is implausible on the basis that had it occurred in the manner which she described, it surely would have drawn the attention of others at the accommodation facility to the incident which it clearly did not.

37. [37]
    I am not satisfied on the balance of probabilities that the applicant has proven that the respondent committed an act of domestic violence toward the aggrieved on 13 August 2016 at Yungaburra.

Incident of 2 December 2016

38. [38]
    The aggrieved asserts that shortly after midnight on Friday 2 December 2016 she received on her mobile phone a text message from the respondent stating, “If I call you in the next five minutes will you answer?”

39. [39]
    She did not reply to that message and says that approximately five minutes later a telephone number which she recognised as the respondent’s rang her mobile phone but that she did not answer. There was a second call sometime later which similarly was not answered.^[7]

40. [40]
    She said that approximately 12.45am she was in bed when she heard a knocking sound on her bedroom window and heard the respondent calling her name. She arose from the bed and attended the back area of her residence where she saw the respondent standing on the back patio outside her back window. She said the outside light was on and that she could clearly see the respondent standing there. She said she had a conversation with the respondent where he sought to reconcile their relationship and that after receiving her response that she was not open to that suggestion he became aggressive before lunging at her and trying to grab her. She fled back inside her residence and called out for help from her housemate RCG. She said that after RCG arrived she and he searched the area with a flash light but could not locate anyone but then observed what appeared to be motor oil spread across the driveway. She called the police who attended some time later and took up with her.^[8]

41. [41]
    The aggrieved was cross examined about that incident and about her residence and access to the rear of her residence with a fenced yard. Her evidence was that the gate accessing the rear of the property was not locked at the time. It was put to her in cross examination that she fabricated the entire incident and that the respondent did not attend at her residence as she had alleged. It was put to her that the respondent in the past would frequently contact her including by text message late in the evening which she accepted as correct.^[9]

42. [42]
    Under cross examination she did not recant from her version of the incident on 2 December.

43. [43]
    The aggrieved was robustly cross examined. She was challenged about this incident, but notwithstanding a direct assertion she was fabricating her evidence she remained steadfast. I have had the opportunity of observing her give her evidence and her demeanour. As noted earlier in these reasons, I have been unpersuaded by the aggrieved’s evidence about the incident on 13 August 2016. It is generally unusual to reject a witness’s evidence in one respect but accept it in another. The aggrieved’s evidence about the 2 December 2016 incident was in my view plausible, but more importantly was corroborated in a number of important aspects.

Evidence of RCG

44. [44]
    RCG deposed a brief affidavit concerned with the 2 December 2016 incident. He said he had known the aggrieved for about 15 years and knew the respondent as her “ex-partner”.

45. [45]
    He said he had been the aggrieved’s house mate for about two years.

46. [46]
    He said that at about 11.30pm on 1 December 2016 he received a telephone call from an unknown number and the caller said “RCG its DL”. Sometime after he arrived home from work at 12.20am on 2 December 2016, he heard the aggrieved scream “RCG its DL”. He did not see the respondent. He observed the aggrieved to be visibly upset and distressed.^[10]

47. [47]
    RCG’s evidence was to a significant degree corroborative of the version that the aggrieved had given. He said that after the arrival of the police, when he was outside the residence, he observed a large amount of what appeared to be motor oil spilt on the concrete drive way which had not been present when he parked his car there approximately 15 minutes earlier.

48. [48]
    RCG was cross examined about the 2 December 2016 incident and his relationship with the aggrieved and the respondent generally. He was cross examined about the telephone call that he had received on his mobile phone early in the evening from the respondent. It was put to him that the conversation with the respondent was an attempt by the respondent to have RCG assist in the respondent retrieving some personal items that were in the aggrieved’s residence. He denied that.^[11]

49. [49]
    RCG was quite robustly cross examined by the respondent’s legal representative but did not waiver from the version of the incident on 1 and 2 December 2016 to which he had deposed in his affidavit. RCG, although a housemate of the aggrieved, was in my view independent of both the parties.

50. [50]
    It was put to him in cross examination that he had colluded with the aggrieved.^[12] It was not put to him that the aggrieved did not scream out to him nor that the oil spill he had referred as having seen on the drive way was not present.

51. [51]
    In the course of cross examination RCG made concessions where he was unsure of matters or could not give evidence about matters with more precision.^[13] I have had the opportunity of observing him as a witness and observing his demeanour. I am satisfied that he gave a truthful and accurate account of what he saw and heard on the evening of 1December and the early hours of the morning of 2 December.

Evidence of DL

52. [52]
    DL in his affidavit material conceded that he contacted RCG by telephone at or about 11.30pm on 1 December 2016. His version was of a longer conversation where he sought assistance from RCG in respect of the recovery of personal items from the aggrieved.

53. [53]
    His evidence was that he sent a text message to the aggrieved’s mobile phone at 12.14am on 2 December 2016 and then rang her number at 12.20am and 12.23am but received no answer. He asserted that at the time of that text message and those telephone calls he was at his home at and that he never travelled anywhere near the aggrieved’s residence.

54. [54]
    He was cross examined about the incident by the applicant’s legal representative.

55. [55]
    The aggrieved’s evidence is completely consistent with the evidence of both the respondent that he sent the text message and made the telephone calls (which were unanswered) and with the evidence of RCG that he received a telephone call on the late hours of the evening of 1 December 2016 from the respondent.

56. [56]
    RCG’s evidence is corroborative of the aggrieved’s account in that she shouted out to him that the respondent was at her residence and subsequently that when he observed her she seemed to be shaken and upset.

57. [57]
    I am satisfied, as it is uncontroversial, that the respondent was in fact awake and active at the time of the alleged incident.

58. [58]
    His evidence was that he was at home and did not attend the aggrieved’s residence.

59. [59]
    In relation to this incident the aggrieved’s evidence, in my view, was consistent with the other objective evidence and having had an opportunity of considering her evidence and her demeanour in relation to this incident I am persuaded that she is giving a truthful and reliable account of that incident.

60. [60]
    RCG I accept unreservedly as giving a truthful and reliable account.

61. [61]
    I am therefore satisfied on the balance of probabilities that the respondent did attend at the aggrieved’s residence at or about 12.30am on 2 December 2016, having entered her yard through an unlocked gate, and then had a conversation with her where ultimately he became aggressive and attempted to grab her.

Findings of fact

62. [62]
    I am satisfied on the balance of probabilities and therefore find as follows:

1. That the aggrieved and respondent were in an intimate personal relationship from about May 2016 until about 11 November 2016;

2. That sometime shortly after 12am on 2 December 2016:

1. a)
   The respondent contacted the aggrieved by text and telephone call

2. b)
   The respondent attended at the aggrieved’s residence at and entered the yard of that dwelling;

3. c)
   The respondent spoke to the aggrieved at the rear patio of the dwelling;

2. d)
   The respondent’s conduct toward the aggrieved was ultimately aggressive;

3. e)
   The respondent assaulted the aggrieved by trying to grab her.

63. [63]
    Having made those findings of fact in respect of the incident on 2 December 2016 I am satisfied on the balance of probabilities that the defendant has committed an act of domestic violence against the aggrieved on that date.

Protection of the Aggrieved

64. [64]
    Section 37(1)(c) DVFPA requires that the court be satisfied that “the protection order is necessary of desirable to protect the aggrieved from domestic violence”.

65. [65]
    That consideration was the subject of discussion in the decision of MDE v MLG & Commissioner of the Queensland Police Service. ^[14]

66. [66]
    In that case His Honour Judge Morzone DCJ stated:^[15]

“Protection of Aggrieved

“[50] The third element in s 37(1)(c) is that “the protection order is necessary or desirable to protect the aggrieved from domestic violence”.

“[51] The focus of this element is the paramount need for the protection 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 appears in both state and federal legislation, including analogous anti-domestic violence legislation.4

“[53] In GKE v EUT [2014] QDC 248 McGill S.C. 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.

“[55] In my view, the third element of whether “the protection order is necessary or desirable to protect the aggrieved from domestic violence” requires a three stage process supported by a proper evidentiary basis (adduced pursuant to s 145 of the Act):

1.  Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order.

There must evidence to make factual findings or draw inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders (s 37(2)(b)), and changes of circumstances.

Unlike, its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence.

2.  Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order.

Relevant considerations may include evidence of the parties’ future personal and familial relationships, their places or residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children.

3. Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence.

In this regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1) that: (a) the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount;

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

(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, the person who is most in need of protection should be identified;

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

4.  Finally, if the court is satisfied of the other pre-conditions of a relevant relationship and domestic violence are established, the court may exercise its discretion to make a protection order imposing appropriate prohibitions or restrictions on the behaviour of a respondent necessary or desirable to protect the aggrieved from the domestic violence.”

67. [67]
    That decision is binding upon this court.

68. [68]
    Conveniently the decision sets out the appropriate approach to the requirement under s 37(1)(c) commencing at paragraph 55.

69. [69]
    In these proceedings, at first blush somewhat oddly, the applicant in cross examination put to the respondent that he had been previously convicted of contraventions of a protection order. Exhibit 1 is a copy of the respondent’s criminal history which shows that he was convicted on 7 January 2004 in this court for breaches of domestic violence orders for incidents on 18 September 2003 and 8 October 2003. The admission into evidence of the criminal history was not objected to by the respondent’s legal representative and is in evidence.

70. [70]
    The criminal history, which the respondent accepted under cross examination was correct, confirms two things:

1. That a protection order was previously made against the respondent; and,

2. That the respondent breached that order on two occasions on 18 December 2003 and 8 October 2003.

71. [71]
    Turning then to the test enunciated in MDE v MLG & Commissioner of the Queensland Police Service^[16] – the “three stage process”.

The risk of future domestic violence.

72. [72]
    In assessing the risk of future domestic violence between the parties in the absence of an order the following matters are relevant:

1. The nature of the domestic violence committed by the respondent towards the aggrieved is serious - he attended uninvited at her residence in the early hours of the morning of 2 December 2016 and was aggressive toward her and assaulted her;

2. He has committed past domestic violence (albeit not against this aggrieved) as is evidenced by his criminal history;

3. He has demonstrated no remorse (and certainly no genuine remorse) as he has denied the committing domestic violence;

4. There is no evidence of rehabilitation medical treatment or psychological counselling;

5. A temporary protection order has been in place and there have been no alleged breaches of that temporary protection order.

The need to protect the aggrieved from domestic violence

73. [73]
    In respect of the need to protect the aggrieved from domestic violence relevant considerations are:

1. The parties were in an intimate personal relationship of short duration but which on any view of the evidence was problematic;

2. The parties reside in a relatively small community at Cairns and clearly the opportunity for them both socially and in business to interact is reasonably significant;

3. Their residences and places of work are not in direct proximity but not so distant   as to make the prospect of future contact remote;

4. They have no need for an ongoing relationship and therefore no need to communicate.

Protection Order is “Necessary and Desirable”

74. [74]
    Thirdly, is the protection order “necessary and desirable”. In respect of the exercise of the discretion under the test prescribed in s 37(2)(a) DVFPA, those principals set out in s 4 are relevant in that:

1. The aggrieved is entitled to the safety a protection order will provide having experience domestic violence from the respondent; and,

2. The respondent as a perpetrator of domestic violence should be held accountable for his conduct one of the consequences for which is the making of a protection order in favour of the aggrieved.

75. [75]
    Finally, as I am satisfied that the other preconditions of a relevant relationship and domestic violence are established, the discretion to make the protection order must be exercised.

76. [76]
    Having considered the evidence and the findings of fact made and applying the test prescribed in MDE v MLG & Commissioner of Queensland Police Service^[17] the discretion ought be exercised in favour of the applicant and I am satisfied that a protection order is necessary or desirable to protect the aggrieved from domestic violence.

Conditions of order

77. [77]
    The application seeks additional conditions in the protection order.

78. [78]
    Section 57 DVFPA provides that the court may impose other conditions:

1. (1)
   A court making or varying a domestic violence order must consider whether imposing any other condition is necessary or desirable to protect—

   1. the aggrieved from domestic violence; or
   2. a named person from associated domestic violence; or
   3. a named person who is a child from being exposed to domestic violence.
2. (2)
   Without limiting subsection (1), a court making a domestic violence order must consider whether to impose an ouster condition on the respondent in relation to the aggrieved’s usual place of residence.
3. (3)
   The principle of paramount importance to the court must be the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

79. [79]
    Section 58 DFVPA provides that a number of specific conditions may be imposed as conditions of a protection order. Those conditions sought by the applicant are within the power conferred by s 58.

80. [80]
    The court having determined that a protection order ought be made must then additionally consider the conditions sought by the applicant as required by s 57.

81. [81]
    I could not locate any relevant appellant authority on the discretion conferred by s 57 in relation to the imposition of conditions.

82. [82]
    I have however been assisted by the decision in Armour v FAC.^[18] At paragraph 58 and 105 of that decision the court considered the Supreme Court of NSW decision in Corporate Affairs Commission (NSW) v Walker ^[19] and found that the order should go no further than is necessary for the purpose of protecting the aggrieved from the respondent.

83. [83]
    The decision in MDE v MLJ and the Commissioner of Police^[20] commencing at paragraph 55 and referred to above in this decision, is helpful in the exercise of the discretion under s 37.

84. [84]
    Section 57 requires the court to consider whether the conditions are necessary in the circumstances and whether the conditions are desirable in the interests of the aggrieved.

85. [85]
    Those matters discussed at paragraphs 67 to 70 of these reasons are similarly relevant to the exercise of the discretion under s 57 i.e.:

1. The nature of the domestic violence committed by the respondent;

2. The absence of remorse;

3. The circumstances of the parties (the nature of their relationship, their residence and proximity) and, finally,

4. The aggrieved’s entitlement to a protection order i.e. to the safety that the protection order ought provide.

86. [86]
    Additional to those considerations s 57(3) provides that a paramount consideration is the safety, protection and wellbeing of the aggrieved.

87. [87]
    In all the circumstances in considering the imposition of the additional conditions sought I find that it is both necessary in the circumstances and desirable in the interests of the aggrieved that the protection order include conditions which prohibit the respondent from:

1. Attending or remaining at the aggrieved’s residence;

2. Approaching the aggrieved; or,

3. Contacting or asking someone to contact the aggrieved.

Disposition

88. [88]
    I am satisfied on the balance of probabilities, as required by s 37 DFVPA, that:

1. A relevant relationship exists between the aggrieved and the respondent;

2. The respondent has committed an act of domestic violence against the aggrieved on 2 December 2016; and,

3. The protection order is necessary or desirable to protect the aggrieved from domestic violence.

89. [89]
    I therefore propose to make a protection order in the following terms:

1. That the respondent be of good behaviour towards the aggrieved and not commit an act of domestic violence;

2. That the respondent is prohibited from remaining at, entering or attempting to enter or approaching any premises where the aggrieved resides;

3. The respondent is prohibited from following or approaching the aggrieved; and,

4. The respondent is prohibited from contacting or attempting to contact the aggrieved or asking someone to contact the aggrieved.

90. [90]
    I will hear submissions from the parties as to the duration of the order.