CTW v PAB[2017] QMC 4

MAGISTRATES COURT OF QUEENSLAND

The Police Application

1. [1]
   The Aggrieved and Respondent are described in this police application as being de-facto partners.^[1] There are no children. The Aggrieved is a 34 year old woman and the Respondent a 33 year old man. They live separately since she ended their three year relationship one month previously. She moved out of their apartment in Toowong and back in with her family in Sherwood.^[2]

2. [2]
   On the 1 November 2016 the police became involved after a call out by the Aggrieved stating that the Respondent had attended her address and was being aggressive and verbally abusive to her and her friend.

3. [3]
   The Aggrieved and her friend provided their versions to police. They had been out to dinner and upon returning observed the Respondent parked outside her address standing by his vehicle. He approached the Aggrieved’s vehicle, opened the driver’s side door, pushed his head into the cabin calling the Aggrieved a “cheating whore” and yelling at the friend “you’re a dead man”. The friend told the Respondent he should not be there. The Respondent returned to his vehicle and left.^[3]

4. [4]
   The Aggrieved informed police that during their relationship they had often argued and one occasion he said to her “right now I just want to throw you through a wall”. “He has always been very angry and often accused her of cheating”.^[4]

5. [5]
   Police had attended the residence on three prior occasions on the 4 December, 2 August 2015 and 31 July 2016 after reports from the Aggrieved’s mother and neighbour of a loud disturbance between the couple. The Aggrieved had been referred to and accepted counselling.^[5]

6. [6]
   The police applicant observed the Aggrieved to appear clearly fearful of the Respondent and at times shaking. The Aggrieved said she had concerns for her safety as the Respondent is an instructor in martial arts and holds a weapons licence and currently holds stock of three weapons. She had previously canvassed making a private domestic violence application however did not want the Respondent to lose his weapons licence.^[6]

7. [7]
   Police attended the Respondent’s residence and spoke with him. He confirmed that he had attended the Aggrieved’s address unannounced as he wanted to speak with her about a joint counselling session they had booked for the following week which the Aggrieved had cancelled because she had a medical procedure to attend. He stated to police that he saw the friend’s vehicle parked outside the address then observed the Aggrieved and he driving into her driveway. He was jealous and became angry. He believed that she had previously been unfaithful to him during their relationship. He denied making threats to either the Aggrieved or the friend.

8. [8]
   The Respondent went on to say that they had spent the previous weekend together and had been intimate. He believed the Aggrieved wanted to continue the relationship. The police officer contacted the Aggrieved to clarify this but she denied seeing the Respondent that weekend at all and stated that she was attending counselling with the Respondent only because the Respondent wanted to use the sessions as “closure”.

The Temporary Protection Order 

9. [9]
   On the first return of the application on 8 November 2016 a temporary protection order was made with two conditions – the mandatory term and a prohibition from the Respondent entering or approaching within 200 metres of the Aggrieved’s residence. The Respondent through his solicitor Mr Gardiner offered a written undertaking in the same terms as the temporary protection order and produced a letter from Jamie Jackson psychologist of the Brisbane Counselling Centre dated 4 November 2016 which states:

“(the parties) have been attending couples counselling in order to improve communication skills. There is no issue of abuse in this relationship merely the repeated frustration of mis-attuned communication.

[The Respondent] also attended individual counselling following his unexpected discovery that [the Aggrieved] was secretly seeing another man thereby diverging from their agreement to focus on relationship skills and remain faithful to one another during this process.

It is my considered professional opinion that [the Respondent] is mentally and emotionally healthy and stable… is not an aggressive man and poses no threat whatsoever to any other individual.

It is my opinion that a restraining order against [the Respondent] would be unwarranted and unnecessary.”

The Material and Evidence

10. [10]
    At the trial I was assisted by affidavits of the investigating police Senior Constable Geck and Constable Trembath, the Aggrieved and the Respondent and a short follow up letter from the psychologist. The Aggrieved and the Respondent were each separately represented and opposed the making of the final orders sought by police.

11. [11]
    In her affidavit sworn the 22 December 2016 Senior Constable Geck states that she and her partner Constable Trembath were tasked to attend reports of a domestic violence incident at the Aggrieved’s residence. There they located the Aggrieved and her friend, the witness Mr Jones. The Aggrieved told her that her former partner was present outside her address when she and Mr Jones arrived home at 9:30pm. The Respondent approached her vehicle which was being driven by Mr Jones, opened the driver’s side door, aggressively ‘got in their faces’ and began to yell at them both calling her a slut and yelling that Mr Jones was ‘a dead man’. He continued to yell at both until Mr Jones told him that he should leave. The Aggrieved then immediately called 000.

12. [12]
    The Aggrieved stated that she had been in a relationship with the Respondent for more than two years and had cohabited with him for approximately two years but had moved out of the unit they shared at Toowong about four weeks prior due to a relationship breakdown. She had canvassed the idea of making a private domestic violence application on previous occasions however did not want the Respondent to lose his weapons licence. She stated that the relationship had always been volatile and within a month of the beginning of the relationship the Respondent had become aggressive with her and would throw papers at her. She confirmed the police had previously attended their residence due to disturbances.

13. [13]
    Senior Constable made contemporaneous notes of her conversation with the Aggrieved. Under the heading Version she records:

“I saw him today at 3 o’clock to get my TV at our Toowong address. I moved out about four weeks ago after ending our relationship. I said “I’m getting my TV”. He said “yep” and we had no further conversation.

We have spoken a couple of times and texted since we broke up. It has been quite civil. He said he blames me for everything to do with the break up. I make him angry, I make him do the things he does. He said that any man would do what he does if they went out with me.

My friend [Mr Jones] and I were out to dinner and we arrived back to my house at around 9:30pm. I saw his car and I saw him walking. I said to [Mr Jones] ‘maybe we should keep driving’. We drove in the driveway. [Mr Jones] was driving. He walked up beside the car. I’m not sure whether he or [Mr Jones] opened the driver’s door. He started screaming, he started swearing, he called me a slut and said that [Mr Jones] was a dead man and kept yelling. I felt spittle from his mouth on my face, it wasn’t a big spit it was because he was yelling. He’s done it before, he doesn’t mean it, it just happens when he yells. [Mr Jones] said something to him like he should leave. He got out of our faces, we were both still in the car and he walked away. I called 000 because he was still outside during the call. I think that’s when he drove away.”

The Aggrieved’s signature and hand printed name appears at the end of Senior Constables handwritten notes.

14. [14]
    In his affidavit Constable Trembath states that he and his partner attended the Aggrieved’s residence at approximately 10:15pm. They spoke with both the Aggrieved and Mr Jones and he made contemporaneous notes of his conversation with Mr Jones:

“Friends with [the Aggrieved]… Known [the Respondent] nearly two years through training. Two weeks ago phone conversation with [the Respondent] – talking and yelled at me about being friends with [the Aggrieved].

11/1/16 [The Aggrieved] and I went out to dinner and returned home at 9:30pm. [The Respondent] was parked behind my van. He walked to my side (driver’s side). [He] opened the door and said something like ‘you cheating dog fuck’. Lent in close. I said ‘you shouldn’t be here’. [He] lent over to [the Aggrieved’s] (passenger side) and said something like ‘you cheating whore’ and then said to me ‘you’re a dead man’. [He] spat in the car in the direction of [the Aggrieved]. [He] walked to his car and drove off.”

The statement was signed and dated by Mr Jones.

15. [15]
    In questioning by Mr Doyle for the Aggrieved Mr Jones said he couldn’t clarify whether the Respondent spat but had heard the Aggrieved say he spat. When cross examined by Mr Gardiner for the Respondent he said the incident took about five seconds – it was over quickly. He denied when put to him that the Respondent had just said ‘You’re a fucking idiot’. ‘No, he said “You’re a dead man”’.

16. [16]
    Later the police officers attended the Respondent’s residence and had a recorded conversation with him. During that conversation the Respondent claimed that he and the Aggrieved had spent most of the previous weekend together going out to dinner, and had been intimate on more than one occasion. He was of the view that they were remaining in a relationship and receiving counselling. Senior Constable contacted the Aggrieved who denied that they had spent the weekend together at all however did confirm that they had been attending counselling as she believed it would help bring closure to their relationship.

17. [17]
    On the recording the Respondent is heard to say

We’ve had issues. We had a counselling session booked but she cancelled it because of a medical appointment.

I went to talk to her. I get there – she cheated on me a couple of months back. She admitted it.She was lying that she did it. She was constantly talking to other guys and hanging out with other guys. The counsellor said to her ‘Cut it out.’  I said ‘No talking to other guys about our relationship’. When I found out she cheated I didn’t cut and run. I should have. I don’t know who she cheated with. I knew she was talking to guys on the side. It’s never a good thing.

[On that night] I went over there. She and the date were coming back from a date. We were hanging by a thread. I called her a whore and a liar and said to him ‘…. you’re a fucking idiot. I want nothing more to do with her.’ No threats were made. It was a brief angry conversation.

I had previously rang [Mr Jones] and had a conversation with him. I said ‘You can still talk to her but not talk to her about our relationship.’

[Crying] Your heart just explodes when you see them together.

18. [18]
    The police said to the Respondent that they had already been to the address twice. The Respondent replied ‘Yes but that’s her mother calling. She would be angry with her mother.’

19. [19]
    Senior constable said ‘She’s quite fearful, that’s why she called tonight. We must investigate’. The Respondent replied ‘She has a history of stuff’. He stated he was a sporting shooter and police advised him that his weapons may be taken from him.

20. [20]
    There are clear inconsistencies between the version the Aggrieved gave to police and a later affidavit sworn 1 December 2016.

21. [21]
    She says during their three year de facto relationship they had small break ups and got back together a few times.^[7]  She denies having any fear of the Respondent possessing a weapons licence nor any fear for her physical safety.^[8]  She does not feel it is necessary to have a domestic violence order against him, now or in the past. She says she is currently in a relationship with the Respondent and wishes to live together and to move on with their lives.^[9]

22. [22]
    She denies having ended the relationship.^[10] She says they ‘were still in contact in negotiating ways to improving and making our relationship work’.^[11] In a previous counselling session she had said ‘I would not talk or see my friend [Mr Jones], as I had been with him inappropriately and it was affecting the relationship she wanted’ with the Respondent.^[12]

23. [23]
    On the weekend in question she says that she and the Respondent ‘had spent the Friday and Saturday evenings …….together and had been intimate on these occasions’^[13]

24. [24]
    The incident occurred at 10:30pm on Tuesday 1 November 2016 as she was returning home with her friend. The Respondent was waiting in the driveway. ‘[He] yelled through the open door ‘You cheating whore. You are dead to me’. I said ‘You shouldn’t be here, please leave. I will call the police.’ He immediately left.’^[14]

25. [25]
    The Aggrieved went to the Sherwood Police Station on 7 November in an attempt to change her original statement about not seeing the Respondent that weekend and to withdraw the application. It was suggested that she contact the constable who wrote the statement but she was unable to do that as she was ill.^[15]

26. [26]
    The Aggrieved gave evidence that she is a physiotherapist by profession. In questioning by the Respondent’s solicitor the Aggrieved says the whole incident took ten seconds. She explains that she made her affidavit one month later after calming down and considering things. She says the prior police call outs were as a result of requests from her mother. She again denies being in fear of the Respondent.

27. [27]
    She stated that she and the Respondent were having counselling but there was no domestic violence element to this.

28. [28]
    The Respondent’s affidavit evidence largely accords with his statement to police. He remembers saying something to the effect ‘you’re a lie-er (sic) and a cheater, I want nothing more to do with you’.  He does not accept threatening Mr Jones with ‘You’re a dead man’. He may have said something like ‘You’re a fucking idiot’.  He denies he spat at anyone or into the car.^[16] 

29. [29]
    He apologises for his actions, but does not feel that the Aggrieved felt threatened or scared by the interaction. He accepts he was out of line.^[17]

30. [30]
    He characterises the relationship at the time as “still together….(but that) she had moved out of our shared townhouse with her mother next door and agreed living apart was our best option to work on our disagreements……We had dinner and been intimate on the previous weekend’.^[18]

31. [31]
    In evidence the Respondent agreed that he got angry and was upset when he saw the Aggrieved and Mr Jones together. He (the Respondent) had “rolled up to her place uninvited”. He admitted that he had spittle coming from his mouth. Since the incident he has had relationship counselling in joint sessions with the Aggrieved to give him ‘understanding and (something) to work upon’ and this counselling includes some elements of domestic violence.^[19] He hopes to marry the Aggrieved.

The Law

32. [32]
    The Domestic and Family Violence Protection Act 2012 (the Act) is beneficial and protective legislation.

33. [33]
    In proceedings I am not bound by the rules of evidence or any practices or procedures applying to courts of record and may inform myself in any way considered appropriate. I need only be satisfied of a matter on the balance of probabilities.^[20]

34. [34]
    I may make a protection order against the Respondent for the benefit of the Aggrieved if I am satisfied of three things: that that a relevant relationship exists (it does), and the respondent has committed domestic violence against the aggrieved, and a protection order is necessary or desirable to protect the aggrieved from domestic violence.^[21]

35. [35]
    In deciding the third element I must have regard to the principles mentioned in section 4 of the Act.

36. [36]
    The general principle is that the safety, protection and wellbeing of people who fear or experience domestic violence are paramount.^[22](emphasis added)

37. [37]
    Furthermore, people who fear or experience domestic violence should be treated with respect and disruption to their lives minimised.^[23] To the extent it is appropriate and practicable I should have regard to the views and wishes of people who fear or experience domestic violence before making a decision which affects them.^[24] Perpetrators should be held accountable for their use of violence and its impact on other people.^[25]

38. [38]
    Domestic violence means physical,^[26] emotional or psychological abuse,^[27] behaviour that is threatening,^[28]coercive,^[29] or in any other way controls or dominates so as to cause Aggrieveds to fear for their safety or wellbeing or that of someone else.^[30] Emotional or psychological abuse means behaviour that torments, intimidates, harasses or is offensive to another.^[31]

39. [39]
    Domestic violence also includes threats of personal injury or death.^[32]  In this regard I need not be satisfied beyond a reasonable doubt.^[33]

40. [40]
    In GKE v EUT [2014] QDC 248 McGill SC DCJ analyses the second and third precondition for the making of a protection order. Of the second element viz has the Respondent committed domestic violence against the Aggrieved, he says at [21] - [23] and [25]:

One issue which arose under (the previous act) was whether regard had to be had to the subjective state of mind of the person alleged to have been intimidated or harassed. That matter is no longer an issue since s 11 is defined in terms which make it clear that what matters is whether the behaviour torments, intimidates, harasses or is offensive to the other person. That depends not on the inherent character of the behaviour, but whether it has that effect on that person, a subjective matter. For that reason evidence of the subjective response of the aggrieved to the behaviour ….is relevant and admissible. (emphasis added)

A number of examples are set out in the Act, most of which involve some persistence in the relevant behaviour, but, as I have said previously, I think there can be a single incident of conduct which intimidates, which would satisfy the definition in s 11. Intimidation refers to a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour.

On the other hand I remain of the view that a person is not going to be harassed by conduct which is constituted by a single incident.

Simply going to the respondent’s residence would not necessarily amount to intimidation, but it seems to me that it is the sort of conduct which could amount to conduct which intimidated the (aggrieved) if in fact (she) was put in fear by the presence of the appellant at her residence.

41. [41]
    He continues at [32] – [35]

In my opinion the focus must be on the issue of protecting the aggrieved for 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 and desirable to make an order in order to protect the aggrieved from that………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.

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…….(T)he risk 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.

I would add that it is also relevant to bear in mind any changes in pre-existing patterns of behaviour which have already occurred; the fact that on this occasion the appellant, in going to the respondent’s residence, did something which he had not previously done was therefore a relevant circumstance.

In addition the Magistrate had the opportunity to observe both parties before him in the course of the hearing, and had the opportunity to make an assessment of the extent of the fear of the respondent….

The Position of the Parties

42. [42]
    The police applicant contends that on the totality of the evidence I can be reasonably satisfied that

1. (a)
   The Respondent has committed domestic violence against the Aggrieved.

This is contested and is made harder to resolve by confused, conflicting and inconsistent evidence of the parties and witnesses about what happened in the past. The weaknesses of human recollection together with the dangers of mixed motives and self-interest mean that historical events can only ever be partially known or ascertained.

2. (b)
   The protection order is necessary or desirable to protect the Aggrieved against recurrence.

This is a matter of discretion informed by the principles stated in s. 4 of the Act and the probable facts as agreed or found.

43. [43]
    The Aggrieved concedes past domestic violence at the hands of the Respondent but denies fearing it will happen again. She submits that there is no unacceptable risk to her personal safety from a repetition in the future if a protection order is not made and, therefore it is not necessary or desirable to make one against her wishes.

44. [44]
    The Respondent denies committing any act of domestic violence against the Aggrieved and asserts that a protection order is neither necessary nor desirable.

Analysis and Findings

45. [45]
    The paramount need to be met is the protection of those at risk of domestic violence in a way that does not unduly intrude or disrupt their daily lives, and to the extent appropriate, respecting their own views and wishes.

46. [46]
    The State has a limited role to play in regulating the personal relationships of consenting adults. In this domain it acts to meet growing community expectations that too high a price is not paid by vulnerable people sharing an intimate relationship with someone else and to hold the violent and undisciplined accountable for their behaviour and its harmful impact on those they claim to love and respect.

47. [47]
    The Court’s function is to ensure that the State intervenes in domestic relationships no more or less than the circumstances justify so that those who need protection get it and those who don’t need it, don’t get unwanted or unnecessary orders. There must be good and sufficient cause to exercise the discretion to intervene.

48. [48]
    Precautionary, preventative or protective action is called for (or necessary) when failing to take it in the circumstances is taking an unacceptable risk with someone else’s safety and wellbeing.^[34]

49. [49]
    The exercise of the Court’s discretion is further complicated when neither Aggrieved nor Respondent support the making of orders.

50. [50]
    But intervention is sometimes necessary or desirable to protect the unwary or naïve from their own false sense of security and inability or unwillingness to identify, assess and avert clear dangers from evolving into actual harm. In those cases it is better to be safe than sorry in the public interest.

51. [51]
    Contrary to the Respondent’s submissions I am reasonably satisfied that the Aggrieved was probably intimidated and frightened by his abusive and threatening behaviour during the incident on 1 November 2016. This conclusion is based on findings that

52. [52]
    This naturally means that I reject the Aggrieved’s affidavit sworn 1 December 2016 to the extent of any inconsistency with those findings.

53. [53]
    Specifically, I find it inherently improbable that the Respondent’s connection with martial arts and access to weapons is not a subjective matter of concern in the context of a relationship she herself describes as ‘volatile’ and plagued with unresolved suspicions of infidelity and angry outbursts fuelled by jealousy and blame.

54. [54]
    I do however, accept that she does not currently fear for her physical safety, does not believe a protection order is necessary or desirable and hopes to stay in a domestic relationship with the Respondent.

55. [55]
    Thus the Aggrieved is someone who I find experienced domestic violence in the past but does not fear it, at least in a physical sense, in the future. Accordingly, her safety, protection and wellbeing are still of paramount importance.^[35]

56. [56]
    Fear is an emotion. The best evidence of its existence is a truthful statement by the person whose sense of fear is in issue but in the realm of unstable personal relationships where emotions are often confused and mixed, the human fact finding process is imperfect and there is always a risk of error especially where the Aggrieved’s evidence about past events is inconsistent with her own previous statements and independent witnesses. 

57. [57]
    Tellingly, the Aggrieved’s affidavit does not mention anything about emotional or psychological abuse via intimidating or threatening behaviour similar to her experience on 1 November 2016. I infer from her silence on that point that the truth would not help the Respondent’s case.

58. [58]
    The following evidence also fortifies that conclusion particularly in the context of a Respondent who shows controlling tendencies. On his own admission the Respondent says

“She was constantly talking to other guys and hanging out with other guys. The counsellor said to her ‘Cut it out.’  I said ‘No talking to other guys about our relationship’. When I found out she cheated I didn’t cut and run. I should have. I don’t know who she cheated with. I knew she was talking to guys on the side. It’s never a good thing.”

Constable Trembath’s unchallenged diary note of his conversation with Mr Jones states:

Two weeks ago phone conversation with [him] – talking and yelled at me about being friends with [her].

59. [59]
    The system has failed to protect the Aggrieved from experiencing domestic violence in the past and every reasonable effort should now be taken to shield her from it happening again.

60. [60]
    The safest most risk averse option is to make to make the protection order for the Aggrieved’s own good in spite of herself.

61. [61]
    But this is not what the Act demands. It requires the victims of domestic violence to be treated with respect and disruption to their lives minimised. Their views and wishes must be regarded (not disregarded) before a decision that affects them is made.^[36]  Adults who have experienced domestic violence are allowed to take reasonable risks with their own safety and wellbeing. The Court’s authority and duty to act coercively against their will is triggered when they are taking unacceptable safety risks or are unable or unwilling to self-protect.^[37]

62. [62]
    The overriding consideration here is whether the reluctant Aggrieved will be safe enough in the future without the protection of court ordered conditions that may interfere with relationship she wants with the Respondent.

63. [63]
    But I have lingering concerns about whether the domestic violence an isolated event or a characteristic feature of their relationship evidenced by the three previous police responses to reported disturbance between the couple on 4 December and 2 August 2015 and 31 July 2016.

64. [64]
    I also have reservations that the joint counselling after 1 November 2016 is any more effective in resolving the issues than the session they had beforehand.

65. [65]
    Moreover, relationships are not static. This relationship has had long periods of volatility with four incidents of police response. The Respondent has at time controlling tendencies. He has access to weapons. He shows some insight. He has been having counselling but regrettably this counselling focuses on reunification rather than the Respondent’s self-discipline and behaviour change. His counsellor says ‘There is no issue of abuse in this relationship.’

66. [66]
    Overall however, I am inclined, with the following reservations and residual scepticism to accept and act on the submissions made on the Aggrieved’s behalf, presumably on her instructions that:

67. [67]
    These are the factors that I find mitigate the risk to the Aggrieved

68. [68]
    On this basis I conclude that:

69. [69]
    The police application is dismissed.