JEK v REM[2025] QMC 10

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   JEK applies to vary order protecting her and her children from REM by ending it immediately. These are the reasons for dismissing that application.

2. [2]
   REM has 5-page criminal history covering his whole adult life. Offences of public nuisance, assault police and liquor offences are prevalent. 2017 saw the first of his 5 previous court appearances for domestic violence offences.

3. [3]
   A Domestic Violence Order was made on 22 Feb 2023 against the Respondent which protected the Aggrieved. The first condition was the mandatory condition protecting her, the second her children. The third prevented the Respondent from contacting her (with a number of exceptions) and the last fourth from him going within 50m of her (also with exceptions). Neither party attended the original hearing of the matter, filed any material, or had a lawyer there to represent them.

4. [4]
   In 2023 the Respondent received a suspended sentence which he breached with offending against this Aggrieved. He was imprisoned to be released on 1 March 2024.

5. [5]
   On 10 July 2024 JEK file the present application to effectively end the entire order and cease all protection for her and her children, one of whom is the respondent’s. Many of the applications to vary I deal with are from Aggrieved seeking to reduce or remove orders for their own protection or that of their children.

The Variation Application

6. [6]
   Any party can apply to vary any DV order including a TPO as often as they wish.

7. [7]
   The application must:^[1]

1. (a)
   be in the approved form; and
2. (b)
   state the grounds on which it is made; and
3. (c)
   state the nature of the variation sought; and
4. (d)
   if the applicant is not a police officer—be verified by the applicant by a statutory declaration (a variation declaration); and
5. (e)
   be filed in the court.

8. [8]
   The approved form appears to permit three type of sub-applications to be made. In Item 5, the first is to vary the conditions of the order. It asks for ‘details of the condition/s that you would like added or varied’. This Application simply states ‘All conditions’.

9. [9]
   In the following box marked ‘Give Reasons’ the Aggrieved wrote ‘Help with the children with everything. Etc- indoors, outdoors & travelling’.

10. [10]
    Item 5B allows for a request to vary the duration of the order. This was ticked and the box ‘When would you like the order to end?’ contains the letters ‘ASAP’. The form then says ‘Give reasons’ without providing any box or even a space to do so.

11. [11]
    Item 5C Allows for persons to be added or removed but does not provide a place to indicate which. Three children are listed on this application only two of which are named on the DVO. There is another child listed on this DVO but not in the application. There is a ‘Give Reasons’ box but it is blank.

12. [12]
    Attached to the form is a handwritten document which states:

REM and I have a child together. The child is an infant and has a very close bond with REM. I am currently working at [a place] and will need help with all children that’s listed. My mother is my only support at the moment but she has doctors appointment to attend to which cut myself down on work. My mother also has health issues & heart problems is her biggest issue. For myself to be safe from DV I’m currently seeing a support worker. I’ve also got cimesafe screens in place, security sensors lights installed and security cameras. Will be need [REM’s] help ASAP with the children including indoors, outdoors & travelling. The respondent is currently attending appointments – AODS

13. [13]
    I take it that there are in effect three applications to vary. The first is to remove all conditions, the second to vary it to expire immediately and the last to remove the children.

14. [14]
    The stated grounds are that the Aggrieved wants the Respondent to assist with the children.

15. [15]
    Her affidavit filed 8 Nov 2024 expands somewhat on the grounds. It says ‘I am aware that the current order allows for REM to approach and contact me for purposes of having contact with our child or children. I am, however, finding that I am in need of greater help with day-to-day parenting tasks than the order allows.’

16. [16]
    In continues ‘For example, I would like [REM] to be able to assist with shopping, cooking, cleaning, laundry and other household chores. Many of these will need to be done at times when the children are not around, and so are not directly connected with his contact with them. The orders, or at least makes it very difficult, for him to do so.’

What resulted in the order?

17. [17]
    The Court can only vary an order if it considers both the grounds of the original order and the finding of the court that made it.^[2]

18. [18]
    A large proportion of orders are made without hearings and without findings because the Respondent consents without admissions. The only ‘finding’ is that there is a relevant relationship and that the Aggrieved also consents.^[3]

19. [19]
    What weight attaches to the grounds in such a matter is therefore an open question. This section seems to elevate them from mere allegations to something, the truth of which is assumed and makes them relevant to the application to vary.

20. [20]
    In this case however there were findings.

21. [21]
    The original application sets out an incident occurring on 19 Feb 2023 at 4:15am when JEK called police stating her partner had assaulted her in the head. On arrival, both were intoxicated. The Aggrieved said she was struck from behind and fought back. He has thrown items at her and headbutted her and pulled her hair out before throwing her into a portable speaker. At the time the Aggrieved said the relationship was over and she feared REM.

22. [22]
    The Respondent told police he was making food and when an argument commenced, the Aggrieved grabbed a bread knife. He used the items to defend himself and then went to leave.

23. [23]
    The QP9s for that incident record that as police placed him into the police car, he yelled at her ‘You’re a dumb cunt, wait til I get out of jail’.

24. [24]
    I made the order when neither party affected by the order sought attended at Court. That means my findings must have included that there was an act of domestic violence and that an order protecting the parties was necessary and desirable. That clearly was an acceptance of her version which that application makes clear was supported by the police observations of the scene and the injuries to the Aggrieved.

What has happened since the order was made?

25. [25]
    QPS relied on the QP9s setting out some events since the order was made which resulted in convictions of the Respondent.

26. [26]
    At 1:30am on 1 Oct 2023 there was argument over a misplaced scoop of baby formula. He verbally abused her with some children present. He then walked back to the verandah where he had obtained two hammers, holding one in each hand. She grabbed one which he grabbed back. While she was holding their baby, he held a pair of scissors to her head and said ‘Put that baby down so I can kill you’.  He then punched her in the head and mouth more than once as she held the baby, splitting her lip and causing bruising. She had to get one her children to call tiple 0. There are photos of her injuries.

27. [27]
    It was this incident that saw him imprisoned for some time.

Would the safety, protection or wellbeing of the Aggrieved or children be adversely affected the variation.

28. [28]
    It is this same man that the Aggrieved says of in her affidavit “I am confident that, if the application is granted, the children and I will be able to remain safe”.

29. [29]
    Section 92(3) requires her to convince the Court of that^[4] on the balance of probabilities.

30. [30]
    He uses violence and weapons towards her and in front of the children. The lights, cameras and screens she mentions will do nothing to protect her or them if he has been allowed into the house.

31. [31]
    The existing order keeps the Respondent away from the Aggrieved unless they are at an agreed contact.

32. [32]
    A letter was provided from a service provide who ‘provides support to the Cherbourg Community experiencing domestic and family violence with a primary focus on improving immediate safety’. Support was provided from Oct 2023 to May 2024. The letter was written in Nov 2024. Nowhere does it indicate that the author knows that the Aggrieved wants the Respondent back in her home.

33. [33]
    There is a five dot-point list of items covered one being ‘Keeping boundaries in place, for safety’. Whatever was actually discussed, it is difficult to accept that such a topic has been fully acted on by the Aggrieved if the order is sought to be varied to end, to have all conditions removed and have the children removed.

What is the Respondent’s position?

34. [34]
    The Respondent for his part has not appeared or filed any material. There is nothing at all to show that he has changed at all from the person who breached the order in its current form.

35. [35]
    There is nothing to show he even wants this application granted or that he wants to do the housework the Aggrieved has in mind for him. There is also nothing from the Aggrieved setting out anymore other than he was at one point going to AODS^[5]. While he may have continued that since it would be a significant departure from the last 15 years of alcohol related offending.

Necessity

36. [36]
    The QPS, who were the original applicant, point out that the variation sought is unnecessary to meet the reasons given in the application. In this Court’s experience, it is probably more common than not that this is the case when an Aggrieved seeks to weaken orders.

37. [37]
    At present he can do housework etc. even at the Aggrieved’s home if she is not there or while having contact with the children by written agreement.

38. [38]
    Despite this her material fails to address whether they have a written agreement and if not why or why it has proven unworkable.

39. [39]
    She can also contact him anytime without being impeded. If she were to ring him or seek him out and meet him, he would not breach his order by participating in that conversation.^[6]

The wishes of the Aggrieved

40. [40]
    This is just one of the factors that must be considered. This is especially so to stop the exposure of the children to domestic violence:

1. (2)
   In considering whether to make the variation, the court must have regard to—

1. (a)
   any expressed wishes of the aggrieved or named person; and
2. (b)
   any current contact between the aggrieved or named person and the respondent; and
3. (c)
   whether any pressure has been applied, or threat has been made, to the aggrieved or named person by the respondent or someone else for the respondent; and
4. (d)
   the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount; and
5. (e)
   any other relevant matter.

41. [41]
    There is simply no evidence about any current contact between the parties. There is also no way of assessing whether any pressure has been applied. At its highest, these are the Aggrieved’s own genuine wishes.

Consideration

42. [42]
    Without being necessary to decide, it is difficult to see how an application to reduce an order can ever succeed until at the very least, the Respondent has demonstrated some sustained change in behaviour resulting from the successful completion of an appropriate behaviour change course and the passing of sufficient time to show it has made a difference to the risk.

43. [43]
    Even that would not be sufficient in many cases to meet the strictures of s.92(3):

1. (3)
   The court may vary the order only if the court considers—

1. (a)
   the safety, protection or wellbeing of the aggrieved or the named person would not be adversely affected by the variation; and
2. (b)
   if the variation is to reduce the duration of the order—there are reasons for doing so.

44. [44]
    The section specifies all of things that the Aggrieved wants varied as being ‘Examples of variations that may adversely affect the safety, protection or wellbeing of a person’.

45. [45]
    The assumption in the DFVPA is that only orders and conditions that are necessary and desirable have been made following the procedure set out in the Act. There should be finality in such decisions unless there is a significant change of circumstances^[7] and some evidence to compel the Court to conclude safety no longer requires the aspects of order sought to be varied.^[8]

46. [46]
    What is of most relevance here is the children. While the Aggrieved might be prepared to take her chances, they should not be put at risk by being exposed to the Respondent if he attacks the Aggrieved as he has done on other occasions. Her wishes are just one factor listed.

47. [47]
    There is no evidence of change from the Respondent and the evidence of the Aggrieved shows she has not fully appreciated the risk he poses to her and her children. The Applicant has not discharged the onus in respect of s. 92(3).

48. [48]
    The Application to Vary is dismissed in respect of all aspects.