MAS v FEM[2025] QMC 1

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   This matter is a cross-application for domestic violence orders made by two different police officers.

2. [2]
   Senior Constable Done issued a police protection notice protecting the female partner (FEM) of a relationship on 14 June 2023. A TPO was made on 28 June 2023. Neither partner appeared.

3. [3]
   Constable Barnes filed a DV01 on 26 July 2023 seeking to protect the male partner (MAS). A TPO protecting him on 28 August 2023.

4. [4]
   Both applications named the two children of the couple. One of these was born during the many years over which the events in the applications occurred.

5. [5]
   MAS has never appeared before the Court in any of the 11 mentions the matter has required. FEM has appeared in person a few times to consent to an order being made against her. She was also represented from time to time by ATSILS who more than once sought leave to withdraw as they had no instructions.

6. [6]
   As a result of the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (the CC Act), final orders can no longer be made against both parties in a relationship except in limited circumstances.

7. [7]
   Those provisions commenced by proclamation and appeared first in the reprint of Domestic and Family Violence Protection Act 2012 (the DV Act) Reprint current from 1 August 2023 to 31 January 2024

8. [8]
   These reasons include why I found that I could make that order without considering who was the most in need of protection at the time of making the TPO to protect the male and why I now make an order in favour of both of them.

Can a TPO protect the second aggrieved if the first already has an order?

9. [9]
   Properly construed, DV the Act does not prohibit a Magistrate from making a TPO to protect as an aggrieved, someone already named as a respondent in an existing order (or another live application).

10. [10]
    There is a divergence of opinion in the Magistracy about this issue and my view may not be shared by the majority. I am not aware of any binding authority on this point.

11. [11]
    The recent changes made to the DVAct by the CCAct have required careful consideration of how they are to be applied in practice.

12. [12]
    The provisions about cross-orders are aimed at reducing the use of systems abuse by perpetrators. They are drafted broadly enough to cover cross-applications made by police.^[1] Police cross-applications outnumber private cross-applications by about 10 to 1 in this district and they are required to be treated in the same manner as if the applicant officers were engaged in systems abuse. This is no doubt to attempt to overcome the misidentification by police of the true aggrieved as the respondent though I note that the rate of cross-applications by police remains as high as it was before the amendments.

13. [13]
    One view is that the amendments reflect a legislative intention to ensure that the person most in need of protection is identified as early as at the first mention of an application and even a TPO ought not be made against them (unless the exemption in s 4 applies).

14. [14]
    The Court need not determine who is most in need of protection or consider the exemption at this very early stage. My view would not prevent a court embarking on that exercise if it were able to but arises here where that task would be very difficult if not impossible on the state of the information available at the time of considering a TPO.

15. [15]
    A TPO cannot be altered by the Magistrate without an application to vary it. That is because it continues by force or law until the underlying application is decided.^[2]

Arguments in relation to whether the Court must determine the person most in need of protection before making a TPO.

16. [16]
    Section 4 of the DV Act is the logical starting point. Relevantly it says:

4 Principles for administering Act

1. (1)
   This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

1. (2)
   Subject to subsection (1), this Act is also to be administered under the following principles—

…

1. (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—

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

1. (ii)
   only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other;

17. [17]
    The Act must be interpreted in the way that will best achieve its purpose.^[3] That purpose is identified in Section 3:

3. Main objects

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

1. (2)
   The objects are to be achieved mainly by—

18. [18]
    There is some tension between Sections 3 and 4.

19. [19]
    Section 3 seeks to maximise protection for all people who experience or fear domestic violence.

20. [20]
    Section 4 seeks to provide no protection at all under the Act for the person who is not the person most in need of protection (subject to the exceptional circumstances exemption).

21. [21]
    That position is most deliberate. Resort to the Explanatory Notes^[4] to resolve the ambiguity^[5] show this.

Lastly, the Bill aims to ensure that the person who is most in need of protection is identified. This is particularly important where cross-applications are made, which is where each party to a relationship alleges domestic violence against the other and which often result in cross-orders.

During consultation, stakeholders reported a disproportionate number of cross-applications and cross-orders and expressed the concern that in many instances domestic violence orders are made against both people involved.

This is inconsistent with the notion that domestic violence is characterised by one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. Both people in a relationship can not be a victim and perpetrator of this type of violence at the same time.

A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings.

Also, violence used in self-defence and to protect children can be misconstrued as domestic violence if a broader view of the circumstances is not taken.

22. [22]
    Parliament has implemented the result of that consultation using the Domestic and Family Violence Protection Bill 2011 which became the Act. The Act covers a large range of relationships and a large range of conduct which can be viewed as falling under the very broad definitions of domestic violence.

23. [23]
    At least in my experience, many of these instances do not readily lend themselves to being identified as a pattern of behaviour seeking to control or dominate; certainly not from the very limited information police applicants bring to the Court. This usually only involves their interaction with the parties in relation to an event or events to which police attended.

24. [24]
    I also note on the material that when either party used violence against the other, I was not able to attribute any aspect of self-defence or defence of another. The most common motive appears to have been jealousy or anger over perceived infidelity. As it will become relevant later, I note that these are very common reasons for which domestic violence becomes physical.

25. [25]
    As recently as 2023, amendments were made to reinforce the position that there is only one true perpetrator in a relationship.^[6]:

In SRV v Commissioner of the Queensland Police Service & Anor [2020] QDC 208, it was held that cross applications require the consideration of the matters referred to in section 37 of the DFVP Act and should not be decided on the basis of the principle in section 4(2)(e) (the identification of the person most in need of protection). To make it clear that the court must identify the person most in need of protection when deciding a cross-application, the Bill provides that section 37 of the DFVP Act applies subject to new section 41G (Deciding cross applications)

26. [26]
    That Explanatory Notes address section 41G which is limited to what are defined as ‘cross-applications’.

27. [27]
    Section 41G only applies to matters heard together under s. 41C, 41D and 41E. Those are quite limited to where there are at least two ‘live’ (undecided) applications/cross-applications.

28. [28]
    Section 41G is in Division 1A Cross-Application of Part III Domestic Violence Orders. It is headed 41G Deciding cross applications. I would emphasise the use of the word ‘deciding’.

29. [29]
    Section 41G also provides:

1. (1)
   This section applies to a court hearing the following applications together under section 41C, 41D or 41E—

30. [30]
    The purpose of those provisions includes getting the cross-applications before the same Court.

31. [31]
    41G also provides for dire consequences for the party/applicant who is not the most in need of protection (referred to as the other application):

1. (c)
   if the other application is an application for a protection order—to dismiss the other application; and

1. (d)
   if the other application is an application for the variation of a protection order—to vary the order by reducing its duration so that the order ends.

32. [32]
    This reinforces the view that this decision is meant to be made after a considered hearing with cross-examination and full natural justice.

33. [33]
    If it applied to TPOs, the decision to grant the second one could be made ex-parte and before service of the first aggrieved and result in their whole application being dismissed before a full hearing.

34. [34]
    In section 41C(3) (which is also in Division 1A), where applications are adjourned without being decided, the Court must consider whether to make a temporary order and is referred to doing so under Division 2. The same applies under s. 41D(4).

35. [35]
    It follows that s 41G does not apply to a TPO because it only applies the hearing of the cross-applications and not to the TPO which are dealt with under Division 2.

36. [36]
    Division 2 does not expressly require consideration of the same principles as s. 41G does.

37. [37]
    As the Explanatory Notes quoted above show, Section 37 is expressly made subject to s. 41G. That means that when making the final decision on a cross-application, s. 41G must be considered. Section 37 is in Division 1 Protection Orders

38. [38]
    The proposition in favour of s. 4/22A applying is that because Section 23 Act defines a ‘domestic violence order’ to include both a protection order and a TPO, Section 37 applies to a TPO.

23 What orders can a court make to prevent domestic violence

1. A court can make a domestic violence order against a respondent for the benefit of an aggrieved.

2. A domestic violence order means—

1. (a)
   a protection order; or

1. (b)
   a temporary protection order.

1. (3)
   A temporary protection order is an order made in the period before a court decides whether to make a protection order for the benefit of an aggrieved.

1. (4)
   Sometimes, the court can make a domestic violence order even though the person against whom the order is made—

1. (a)
   is not notified about an application for a domestic violence order; or

1. (b)
   does not appear in court.

39. [39]
    I take a different view of what Parliament said with this choice of language.

40. [40]
    Section 37 is in Division 1. TPOs are in Division 2. They are subject to a very limited range of requirements. This is consistent with seeking to intervene to protect even potential victims at the earliest possible time. This includes not just aggrieved but named persons including children.

41. [41]
    Section 37 has section title^[7] of When court may make a protection order.

42. [42]
    Section 44 has the section title of When court may make temporary protection order.

43. [43]
    Each type of order is governed by its own section in its own division.

44. [44]
    I can see no link between section 44 and section 41G.

45. [45]
    Unlike s. 37, section 44 has no reference to s. 41G (or any part of Division 1A).

46. [46]
    Unlike s. 37, section 44 is governed by s. 45 which provides there are only two elements required before a TPO can be made:

45 Matters court must be satisfied of

1. (1)
   A court may make a temporary protection order against a respondent only if the court is satisfied that—

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

1. (b)
   the respondent has committed domestic violence against the aggrieved.

47. [47]
    I have therefore concluded that TPOs can be issued in favour of someone already named as a respondent in an existing PO, TPO or application at the same or another Court without having regard to s. 41G.

48. [48]
    The impact of this is that there will be two existing TPOs until the hearing of the cross-applications and the outcome of that.

49. [49]
    Any desire to identify the unwarranted cross-application at the earliest possible time to prevent systems abuse seems very much outweighed by the prospect of the true aggrieved not getting even a TPO simply because the first police officer on the scene misidentified them as the Respondent or the true perpetrator filing an application first.

Does s 4(2)(e) and s. 22A apply despite the fact that Division 1A does not?

50. [50]
    The Explanatory Notes footnote Attorney-General for the State of Queensland v Marama [2015] QSC 8 when considering how limited ‘exceptional circumstances’ are (my underling)

It is intended that the meaning of the term ‘exceptional circumstances’ is defined in accordance with its ordinary meaning. ‘Exceptional circumstances’ may describe a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon. It need not be ‘unique, or unprecedented, or very rare’, but it cannot be a circumstance that is ‘regularly, or routinely, or normally encountered’. Whether exceptional circumstances are shown to exist will depend on the facts and circumstances of a particular case.

51. [51]
    Contrary to that expectation, police in this district regularly and routinely bring cross-applications. I suspect that this is because they cannot work out who is most in need of protection and because both need protection. It is not simply a matter of training. Officers simply don’t have enough time to get the information or make the assessments such an exercise would require. Thus, two officers will routinely make cross-applications and it becomes a matter for the Court.

52. [52]
    The key to interpreting s. 4(2)(e) comes from the words in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence.

53. [53]
    Nowhere does Parliament clearly express where these circumstances or allegations are to be found. Do they arise simply where the Respondent standing over the injured Aggrieved says to the police as they drag him off her: It’s all her fault or She started it or I was just defending myself or Look what she made me do?

54. [54]
    That does not appear to be consistent with the purpose of the Act but there is room for uncertainty. Regard can be had to the explanatory notes for the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022 which bought in this change.

55. [55]
    They make it clear that what is being aimed at is ‘cross-applications’.^[8]

The Bill also strengthens the court’s response to cross applications and the making of cross orders against victims of DFV by:

• requiring applications and cross applications to be heard together;

…

• requiring the court to identify the person most in need of protection in the context of the relationship as a whole; and
• only allowing the court to make one order to protect the person most in need of protection, unless there are exceptional circumstances where there is clear evidence that each of the parties in the relationship are in need of protection from each other.^[9]

56. [56]
    This is consistent with the strict language of Division 1A defining cross-applications and limiting the to ‘live’ applications.

57. [57]
    Despite being included in that Division, section 41F is the only relevant law in relation to one live application and one live order. It merely requires the Court considering the final order to have regard to the earlier file. For the same reasons as I have help section 41G doesn’t apply to a TPO, I do not think s. 41F applies to one either. Otherwise an urgent TPO would have to await the transmission of a file from an archive or remote courthouse on a weekend or during an natural disaster.

58. [58]
    For that reason, in the context of this application where there is one live application and one live order, it does not apply at all (let alone to a TPO).

59. [59]
    The Explanatory Notes make it clear that the only work s. 4(2)(e) has to do is in relation to cross-applications.

Who is the ‘most in need of protection’?

60. [60]
    The CC Act is based on the notion that mutual domestic violence only occurs in the context of a clear perpetrator/victim dichotomy. It reads:

22A Who is the person most in need of protection in a relevant relationship

1. (1)
   A person (the first­ person), who is in a relevant relationship with another person (the second person), is the person most in need of protection in the relationship if, when the behaviour of each of the persons is considered in the context of their relationship as a whole—

1. (a)
   the behaviour of the second person towards the first person is, more likely than not—

1. (i)
   abusive, threatening or coercive; or

1. (ii)
   controlling or dominating of the first person and causing the first person to fear for the safety or wellbeing of the first person, a child of the first person, another person or an animal (including a pet); or

1. (b)
   the first person’s behaviour towards the second person is, more likely than not—

1. (i)
   for the first person’s self-protection or the protection of a child of the first person, another person or an animal (including a pet); or

1. (ii)
   in retaliation to the second person’s behaviour towards the first person, a child of the first person, another person or an animal (including a pet); or

1. (iii)
   attributable to the cumulative effect of the second person’s domestic violence towards the first person.

1. (2)
   In deciding which person in a relevant relationship is the person most in need of protection, a court must consider—

1. (a)
   the history of the relevant relationship, and of domestic violence, between the persons; and

1. (b)
   the nature and severity of the harm caused to each person by the behaviour of the other person; and

1. (c)
   the level of fear experienced by each person because of the behaviour of the other person; and

1. (d)
   which person has the capacity—

1. (i)
   to seriously harm the other person; or

1. (ii)
   to control or dominate the other person and cause the other person to fear for the safety or wellbeing of the first person, a child of the first person, another person or an animal (including a pet); and

1. (e)
   whether the persons have characteristics that may make them particularly vulnerable to domestic violence.

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

• women
• children
• Aboriginal peoples and Torres Strait Islander peoples
• people from a culturally or linguistically diverse background
• people with disability
• people who are lesbian, gay, bisexual, transgender or intersex
• elderly people

61. [61]
    Careful attention to s. 22A reveals that the ‘first person’ is most in need of protection if one of two things apply.

1. 1.
   The first focuses on the behaviour of the second person. In s. 22A(1)(a) it is described in terms readily recognisable as domestic violence.

1. 2.
   The second in s. 22A(1)(b) focuses why the first person does the things that themselves are domestic violence towards the second person.

62. [62]
    I note that there is no express requirement for retaliation to be in relation to behaviour that is itself domestic violence. Therefore, each party hitting the other because of jealousy and fears of infidelity at first blush falls into s. 22(1)(b)(ii) [regardless of whether the infidelity was actual or imaginary]. This would automatically make them both ‘the most in need of protection’ under the section.

63. [63]
    There is no express requirement that the behaviour retaliated against be domestic violence, unlawful or even morally ‘wrong’. Thus, a person can hit their partner because they do not like the way they changed the nappies of a child and they could argue they are the ‘most in need of protection’ under s. 22(1)(b)(ii).

64. [64]
    There is also no requirement that any of the s. 22(1)(b)(ii) behaviours of the first person are proximate in time or proportionate in nature.

65. [65]
    These absurdities illustrate that Parliament must have meant that the behaviour retaliated against must be viewed in the light of the matters in s. 22A(2).

66. [66]
    It can readily be seen that a detailed examination of the ‘behaviour of each of the persons … in the context of the relationship as a whole …’ is the most important part of s. 22A when a Court is required to embark on such an exercise.

67. [67]
    The Court has no power to conduct an investigation; only to determine the applications the parties bring as best it can from the evidence that is produced.

68. [68]
    The matter proceeded to a hearing without either of the actual parties affected by the orders sought filing any material, giving evidence or being cross-examined. As is common, the Court has little more to go on that the versions recorded by police attending to isolated events.

69. [69]
    As is common there is little or no investigation beyond perhaps consulting neighbours or witnesses who make themselves known at the scene of 000 callout.

70. [70]
    I know nothing at all about the ‘context of the relationship as a whole’ and very, very little about the ‘behaviour of each of the persons’ in it. The Court cannot be more informed or aware than the officers who present these cases to it.

71. [71]
    I have considerable sympathy for the officers called to these scenes. Police officers undertake difficult and sometimes dangerous roles and citizens should be grateful that officers are prepared to undertake this work on their behalf. In this district, police on duty are so scarce that they must frequently leave one significant incident part way through because they have been called to other more urgent duties and there are no other crews on duty. This has been set out by officers themselves regularly in bail affidavits, search warrant applications and QP9s.

72. [72]
    This shortage of police might also help explain the regular delays of weeks or months in serving TPOs that were sought urgently but remain ineffective until served or the more than 12 months it recently took for a prisoner on parole for whom a return to prison warrant had been issued to be arrested or the growing apprehension of members of the community where police stations are no longer staffed^[10] or the doubling of aggrieved presenting to the Kingaroy Courthouse to take out private applications after unsuccessfully seeking police assistance to do so.

73. [73]
    The submission is made on behalf of both busy applicants, that both parties need protection and that the applicants both agree that they cannot work out who is the most in need of protection.

74. [74]
    In nearly every cross-application involving police, this submission is made. It is made ‘regularly’, ‘routinely’ and it is ‘encountered’ in nearly every cross-application.

75. [75]
    It is perhaps not surprising give their limited resources and the need to act on the spot that the police cannot make the assessment that the Court is required to attempt.

76. [76]
    Both applicants here have set out as best they can what is the history of the relevant relationship but only in terms of the visible tips of the iceberg that their duties present to them. They have set out to some extent the nature and severity of the harm each person causes the other.

77. [77]
    When attending incidents, they record (as is very common in some communities) that the persons do not want to make criminal complaints and often do not report the domestic violence. Both parties have at times expressed fear of the other to the police. In this case the male reports it more often. He is very worried about the female coming to his home and attacking him with weapons as she has done in the past.

78. [78]
    The helpful chronological index provided at the hearing summarises the material which has taken considerable time to consider. It shows that over many years she has tried to burn his property, lunged at him with police present, attempted to kick him in the face, punched a window, punched his face and pushed him in past years. In 2019 she stabbed him multiple times. In 2023 she smashed his phone and hit him with a golf club.

79. [79]
    He has pushed her, used a hammer to hit a door and on one occasion hit her in the head 3 times.

80. [80]
    Both have breached various forms of orders. Both have exposed their children to violence.

81. [81]
    Her offending is more persistent, serious, and recent. She uses weapons on him and he has shown the scars to police who have photographed his injuries.

82. [82]
    Both have the same factors listed in s 22A(2)(e) except of course that she is a woman.

83. [83]
    In considering the s. 22A(1)(b) factors I have almost no information necessary to make the determination that one or the other is acting in the ways provided.

84. [84]
    It is necessary and desirable that both should be protected from the other and that the children be named to protect them from exposure to domestic violence towards themselves or seeing their parents harm one another. It is likely the patterns of the last many years will continue, and an order is needed to try and protect the aggrieved. Their ongoing and recent interactions show the need to protect both in the absence of any order. It is otherwise entirely within the scope and spirit of the DV Act that both would be protected and prior to the CC Act, I would have exercised my discretion in favour of an order naming each as an aggrieved and granting both applications.

Exceptional Circumstances

85. [85]
    There is clear evidence that both are in need of protection from the other.

86. [86]
    Parliament has not made that the test. One approach it has required in addition that there be ‘exceptional circumstances’ in the relationship.

87. [87]
    As the Explanatory Notes set out these mean that circumstances that are regularly, routinely or normally encountered are not exceptional.

88. [88]
    Unfortunately, that precisely describes how often parties harming each other with weapons in front of their children is encountered. It is part of many weeks in this district.

89. [89]
    It is nowhere near unique, unprecedented, or very rare. It is not special.

90. [90]
    DV between partners or ex-partners is common. It is usual and as unremarkable as drink driving offences in the Magistrates Court. The use of golf clubs and the smashing of windows are such regular occurrences that I have sentenced many others for such behaviour between the hearing and the publishing of these reasons.

91. [91]
    I have come to the view that it is not that Parliament intended that there be something special or unique about the facts of the case, but that s. 4 conveys its view that it ought to be exceptional that the Court cannot tell who is most in need of protection.

92. [92]
    Section 22A does not require the Court to simply look at who has more of the indicia of vulnerability. It requires me to apply that label to the party that I assess meets the test it has set out in s. 22A(1).

93. [93]
    That hope might be met where the parties themselves are actively involved in the proceedings and the Court can get at least some glimpse into the relationship. This would be the case where there was a systems abuser actively involved in the proceedings.

94. [94]
    I am required to find who is most in need of protection, but I cannot do so given that I am unaware of ‘the context of their relationship as a whole’. I do not suggest the Court needs to know everything about the parties but where it knows as little as it does in this matter, it can not properly complete the task and risks mis-identifying the true aggrieved in the same way that at least one applicant must have.

95. [95]
    Unless police resources necessary to conduct an investigation of the type envisaged by the amendments are made available, it will not be rare that a Court cannot make the determination required.

96. [96]
    Being unable to make the determination required, I find there are exceptional circumstances and both are in need of protection from the other. I will make the orders in favour of FEM in the mandatory term for her and the two named children. I will also make the order in favour of MAS in the same terms with the additional requirements that she not go within 10m of his residence and that she not contact to approach within 10m of him with the standard ‘family law’ type exemptions as are already set out in the TPO. Both orders will expire 5 years from today.