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Queensland Police Service v MAG (re TLS)[2025] QMC 2

Queensland Police Service v MAG (re TLS)[2025] QMC 2

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Police Service v MAG (re TLS) [2025] QMC 2

PARTIES:

QUEENSLAND POLICE SERVICE

Applicant

TLS

Aggrieved

v

MAG

Respondent

FILE NO/S:

MAG-22507/24(9)

DIVISION:

Domestic and Family Violence

PROCEEDING:

Application for Protection Order

ORIGINATING COURT:

Caboolture

DELIVERED ON:

5 February 2025

DELIVERED AT:

Caboolture

HEARING DATE:

2 December 2024 (Caboolture)

MAGISTRATE:

Acting Magistrate Janelle (Payne) Boegheim

ORDER:

Pursuant to s 37 of the Domestic and Family Violence Protection Act 2012, a protection order is made protecting the aggrieved, the child of the aggrieved and two associates of the aggrieved (as named in the temporary protection order varied order dated 12 December 2024) on the following conditions:

  1. (1)
    The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
  1. (2)
    The respondent must be of good behaviour towards each of the named persons and must not commit associated domestic violence against either or both named persons.
  1. (3)
    The respondent must be of good behaviour towards the named child and must not commit associated domestic violence against the named child and must not expose the named child to domestic violence.

The order continues in force until 5 February 2027.

CATCHWORDS:

Domestic and family violence – protection order – relevant relationship – whether domestic violence committed – where aggrieved does not support the order – where named persons do not support the order – whether isolated mental health episode – whether order “necessary desirable” to protect the aggrieved and named child from domestic violence – whether child should be named – conditions of order – where aggrieved wants contact – whether respondent should be restrained from contacting aggrieved – whether conditions limiting contact between parent and child should be made – Duration or length of protection order.

ACP v McAulliffe [2017] QDC 294

ADH v ALH [2017] QDC 103

BAK v Gallagher [2018] QDC 32

Briginshaw v Briginshaw (1938) 60 CLR 336

DGS v GRS [2012] QDC 74

GKE v EUT [2014] QDC 248

LDC v TYL & STP [2017] QDC 197

MDE v MLG & Queensland Police Service [2015] QDC 151

PRH v LPL & Anor [2021] QDC 17

Pickford & Pickford [2024] FedCFamC1A 249

R v Hatahet (2024) 98 ALJR 863

SCJ v ELT [2011] QDC 100

Domestic and Family Violence Protection Act 2012, ss 8, 37, 56, 57, 58, 62, 92

COUNSEL OR SOLICITORS:

Mr Melville (Prosecutor) for the applicant.

No legal representative for the aggrieved.

No legal representative for the respondent.

  1. Nature of the application
  1. [1]
    This is a contested police application under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA), seeking a protection order against the respondent (MAG) for the protection of the aggrieved (TLS), her parents and a child of the relationship.
  1. [2]
    The aggrieved and the respondent were a couple. According to them, their relationship was mostly a happy one until the respondent’s son died tragically in July 2023 and further strained when their house was storm damaged, forcing them to live in a caravan, whilst it was being repaired.
  1. [3]
    Events escalated between 23 January 2024 to 1 February 2024, with police being called by both the aggrieved and her parents after the respondent made threats to burn down the aggrieved’s parents’ home and attended their home, without any arson paraphernalia but in a highly acute state. The respondent was admitted to mental health treatment at Caboolture hospital but is not actively pursuing treatment.
  1. [4]
    Neither the aggrieved nor her parents support the order being made.
  1. Issues
  1. [5]
    It is not in issue that the parties were in a relevant relationship. They were a couple living together and have a child together.
  1. [6]
    This application being one under s 37 Domestic and Family Violence Protection Act 2012 (Qld), the court must decide, on the balance of probabilities, having regard to the principles in s 4 DVFPA, if:
  1. the respondent has committed domestic violence against the aggrieved; and
  1. the protection order is necessary or desirable to protect the aggrieved from domestic violence.
  1. [7]
    The central issues to this application are whether a protection order is necessary or and should be made:
  1. where the aggrieved and named relatives do not support the order?
  1. if the incidents in question were potentially isolated and triggered by broader trauma, events or a mental health episode?
  1. If it would be punitive to the respondent’s employment?
  1. [8]
    Further, if a protection order is made, the court must decide:
  1. whether the parties’ son (currently 9 years old) should be named in the order?
  1. whether the aggrieved’s parents should be named in the order?
  1. for how long the order should remain?
  1. Background
  1. [9]
    On 7 February 2024, pursuant to s 100(2)(a) DVFPA, a police officer filed an application for a protection order, in the form of a Police Protection Notice (“PPN”) under s 112(1) DFVPA. A police officer is an eligible applicant under s 25(1)(c) DFVPA.
  1. [10]
    The aggrieved is presently 35 years of age.
  1. [11]
    The respondent is presently 46 years of age.
  1. [12]
    The aggrieved’s parents are 69 and 65 (though the aggrieved’s father did affectionately described the aggrieved and respondent as “the kids”). They are currently named on a temporary protection order.
  1. [13]
    The parties have been in a relationship for approximately 14 years.
  1. [14]
    The aggrieved and respondent share care of their son (R) who is currently 9 years old and currently a named child.
  1. [15]
    The aggrieved and the respondent (and their family) have had a very tragic time recently including the death of the respondent’s 22-year-old son (the aggrieved’s step-son), in July 2023. The aggrieved and the respondent are both grief-stricken and allege a lack of medical attention, whilst in hospital, after an accident caused his tragic death. Their house was also storm-damaged, forcing the aggrieved, the respondent and their son to be living in a caravan whilst it was repaired. In the words of the aggrieved’s father (who was subpoenaed by the Police to give evidence), they have endured “horrendous trials and tribulations in the past two years”.
  1. [16]
    Prior to that these life events, the respondent says he and the aggrieved had never argued. They both say they tried valiantly to work together “as a team” but the tragic life events “ripped them apart”.
  1. [17]
    The respondent sobbed, obviously and regularly, throughout the proceeding and he was both upset and angry including blaming the existence of the proceedings for the breakdown of his relationship, though is not borne out by the timeline and events I have described above.
  1. [18]
    The tragic life events the aggrieved and respondent have endured are immense – and condolences were and are again expressed to the aggrieved and respondent for the death of their son - but do not change the relevant considerations prescribed under the DVFPA.
  1. January/February 2024
  1. [19]
    There has been no police involvement between the parties until 1 February 2024, when at about 3:21pm, the aggrieved’s father called police to report threats made by the respondent to burn down his house and the respondent’s attendance at his home. The incident was captured on CCTV (including audio) which was played to the Court.
  1. [20]
    At 6:07pm that day, the aggrieved called police saying she had to leave with the child “to go to a safe place” and wants “police to come and speak to her about the DV and because [the respondent] is continuously ‘blowing up her phone’ trying to get in contact with her”.
  1. [21]
    The applicant alleges four separate incidents of domestic violence:

Allegation 1 - On 23 January 2024, the respondent was in an emotionally heightened state; he took the aggrieved’s mobile phone, and immersed it in the pool at their residence, damaging the phone. Upon attempting to reclaim the phone from the respondent, the aggrieved indicates that the respondent smashed the phone against the ground. A physical altercation then ensued, during the course of which, the respondent tackled the aggrieved through a nearby fence, causing bruising to her body.

The respondent admits the argument over the phone but says it was after he found “sexy messages on it that were NOT to me” (emphasis in original).  He admits the phone did get broken in half; and one half ended up in the pool but does not admit he was the cause and as further that the aggrieved “was assaulting me by pulling my hair, punching me, scratching me, she event attempted to hit me in the head with a BBQ plate, that I managed to push away just before she hit me.”

[This incident resulted in both the aggrieved and respondent going through their Colorbond fence but as to how that precisely happened is not known or pressed by the Applicant]

Allegation 2 - On 30 January 2024, the aggrieved was wearing a backpack belonging to their child as she attempted to depart; the respondent ripped the backpack off her shoulder to try to prevent her from leaving (it was previously alleged but not pressed that the respondent used the backpack to hit the aggrieved over the head and then snatched the aggrieved’s mobile phone, and struck it against a benchtop).

In both his Affidavit and in cross-examination, the respondent admits to ripping the bag off the aggrieved’s shoulder (Exhibit 13, paragraph d)

Allegation 3 - On 1 February 2024, the aggrieved dropped the couple’s child to the respondent’s address whereupon the aggrieved observed the respondent to be in a frantic emotional state; the respondent stated that he intended to go camping with the Child but was vague as to the location causing the aggrieved to flee with the child.

The respondent says he was trying to take their son on a camping trip as he was struggling in school ‘with everything that was going on’ and he had asked the aggrieved to pick up the child from school.  He said in cross-examination that he had told the aggrieved he would either be at his brother’s house (who would not be home) or “[K’s” house]. “[K]”, he said, “was a girl whose got the hots for me and wanted to sleep with me”. 

The respondent says there was an argument between himself and the aggrieved as to who was the most stressed and at some point he said “You want to know what stress is, put on your running shoes, we’ll go for a run” and then he went inside to get his running shoes but returned and the aggrieved had gone with his son. The respondent said this caused what happened next.

Allegation 4 - After the aggrieved left with the child, the respondent called her incessantly and left voicemail messages, including calling the aggrieved “a fucking mole”, and stated that he intended to attend upon the residence of the aggrieved’s parents, and burn the dwelling down;

The respondent admitted in cross-examination that he called the aggrieved, without ceasing, from the time she left to the time he got to her parent’s house and accepted (after the CCTV footage was played in court before he gave evidence) he called her a “fucking mole” and “made threats to burn down the parent’s house” but had no recollection of doing so.

  1. [22]
    The respondent also referred to an incident in the caravan where he pushed the aggrieved against a wall but says this was in self-defence (Exhibit 13, paragraph 1). This event is not relied upon by the Applicant.
  1. The hearing and material
  1. [23]
    The matter proceeded by way of contested hearing on 2 December 2024.
  1. [24]
    Neither the aggrieved nor the respondent were legally represented but Mr Melville was helpful to the Court in cross-examining the respondent and tempering his questions and submissions, to reflect that the respondent was not legally represented.
  1. [25]
    As required by s 90A, the respondent’s criminal and domestic violence history (in this case evidence of the lack thereof) was before the Court.
  1. [26]
    Section 145 provides that a court hearing an application for a protection order is not bound by the “rules of evidence” or “any practices or procedures applying to courts of record”.
  1. [27]
    The statements of the relevant police officers that attended were tendered by consent; the officers were present but neither the aggrieved nor the respondent wanted to ask them any questions, so they were excused.
  1. [28]
    The aggrieved filed an affidavit declining to provide any evidence.
  1. [29]
    The aggrieved’s father (named person) was subpoenaed and gave evidence.
  1. [30]
    CCTV footage was played to the Court of the incidents at the home of the aggrieved parent’s home.
  1. [31]
    The respondent sobbed uncontrollably when the CCTV footage was played and had his head in his hands on a number of occasions. Tissues, water, pen and paper and regular breaks, including breaks to obtain medical or emotional support, were offered to the respondent (as well as the aggrieved) but he wanted to continue. Still, regular breaks were taken.
  1. [32]
    Both during and after one particular recess, the aggrieved was given the opportunity to remain outside whilst CCTV of the incident at her father-in law’s home were played but declined.
  1. [33]
    The respondent says the incident was out of character and blames the distress of his son “being taken by the aggrieved” coupled with his grief at losing his adult son for the incident.
  1. [34]
    Nevertheless, the CCTV played to the Court of the incident clearly shows why the police have acted in the protective way they have. The footage shows the respondent at the door for a number of minutes, with a person inside. He is agitated, heightened, angry and often incoherent. Signs of aggression and paranoia are evident. He is swearing or making other incoherent comments about the aggrieved whilst variously pacing at, or yelling through, the door. The situation was clearly terrifying for those inside but deescalated when the respondent’s nephew comes out and offers the respondent a cigarette.
  1. [35]
    The aggrieved’s father explained the situation as one caused by the stress the respondent was under and urged on the Court not to make the order.
  1. [36]
    Police attended. They observed the burnout marks and damage to the front lawn and the respondent “ranting and animated” in his movements, constantly accusing the Police of being there to arrest him and demanding they bring his son to him. He was also continuously ranting “this is the one thing that you don’t do to kids”.  Police further said that the respondent was observed to be erratic the whole time appearing to get aggressive at times before backing away, rubbing his head with his hands quite aggressively and breaking down emotionally. Police reports the respondent eventually ran away from police.
  1. [37]
    The unchallenged evidence of Senior Constable Douglas of Burpengary Police Station was:

“I observed [the respondent] to be very heightened, on edge and distressed. I would describe his behaviour as someone who had used drugs or was suffering from a mental health episode. [The respondent’s behaviour] bordered on being paranoid as every step I took towards him he would take several steps back to the point that he ran from [Constable] STEVENSON and I while I was trying to speak to him.  I recall offering to [the respondent] to have the Queensland Ambulance Service attend the address and conduct a check on him. [The respondent] refused this and believed that I was attempting to have him locked up in Mental Health.”

  1. [38]
    Senior Constable Douglas also gave evidence, in a written statement that was tendered by consent, that he did not observe any materials that could be used to have burned a house down.
  1. [39]
    That the respondent was suffering an acute mental health episode is confirmed by his admission to the Caboolture Mental Health team. The respondent says this was for 4-5 days but was unable to tell me his diagnosis or the name of his medication. This will become a relevant consideration as to whether the order is necessary or desirable.
  1. [40]
    The respondent had no independent memory of incident at the home of his parents-in-law. Watching the footage caused both the aggrieved and the respondent to sob; and at one point they both urged on me to stop playing it.
  1. [41]
    The parties are in the process of selling their former home.
  1. [42]
    They have an informal agreement for 50/50 care of their son which I am told is working well but may need to change depending on where the aggrieved and their son are able to live long-term but the aggrieved presently has no plans to change the contact arrangements.
  1. Relevant considerations
  1. [43]
    Section 37 of the Domestic and Family Violence Protection Act 2012 (QLD) (DVFPA) provides that a Court may make a Protection Order against the respondent for the benefit of the aggrieved if the Court is satisfied that:
  1. (1)
    a relevant relationship exists;
  1. (2)
    that the respondent had committed domestic violence against the aggrieved; and
  1. (3)
    an order is necessary or desirable.
  1. [44]
    By the word ‘may’ used in s 37 DFVPA, the Court retains a discretion as to whether or not to make an order.
  1. [45]
    "Domestic violence" is defined in s 8(1) DFVPA as a pattern of behaviour, which is abusive, threatening, coercive or controlling and causes the other person to fear for their safety. The behaviour can manifest in various ways: physically/sexually, emotionally/psychologically, or economically.
  1. [46]
    Domestic violence is defined in s 8(1) to include behaviour, or a pattern of behaviour, by the first person towards the second person with whom the first person is in a relevant relationship that is:
  • Physically or sexually abusive; or
  • Emotionally or psychologically abusive (as defined in s 11); or
  • Economically abusive (as defined in s 12); or
  • Threatening; or
  • Coercive (see s 8(6) for meaning of coerce); or
  • In any other way controls or dominates the second person and causes the second person to fear for his/her safety or wellbeing or for that of someone else.
  1. [47]
    Section 8(2) provides that behaviour, or a pattern of behaviour:
  • may occur over a period of time; and
  • may be more than one act, or a series of acts, that when considered cumulatively is abusive, threatening, coercive or causes fear (in a way mentioned in s 8(1)); and
  • is to be considered in the context of the relationship as a whole.
  1. [48]
    Section 8(3) expands on the definition by providing a non-exhaustive list of behaviours that constitute domestic violence of which the following are relevant here:
  • Damaging or threatening to damage a person’s property;
  • Threatening a person with the death or injury of the person, a child of the person, or someone else;
  • Threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed.
  1. [49]
    As to whether an order is ‘necessary and desirable’, the relevant principles are well-enunciated in the decisions of Judge McGill in GKE v EUT [2014] QDC 248 and of Judge Morzone KC in MDE v MLG and Queensland Police Service [2015] QDC 151.
  1. Conditions of any order
  1. [50]
    If the Court makes a domestic violence order, section 56 DVPA requires the Court to impose, as a minimum:
  1. (i)
    in relation to the aggrieved, a condition that the respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved;
  1. (ii)
    in relation to any named person or named child, a condition to be of good behaviour and not to commit any associated domestic violence; and
  1. (iii)
    in respect of a child, the conditions in (ii) as well as a further condition not to expose the child to domestic violence.
  1. [51]
    Then, under s 57(1) DVPA, the Court must consider whether imposing any other condition is necessary or desirable to protect:
  1. (a)
    the aggrieved from domestic violence; or
  1. (b)
    a named person from associated domestic violence; or
  1. (c)
    a named person who is a child from being exposed to domestic violence.
  1. [52]
    In doing so, the Court must consider whether to impose an ouster condition on the respondent in relation to the aggrieved’s usual place of residence.
  1. [53]
    Section 57(3) makes it clear that:
  1. “(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.”
  1. [54]
    Section 58 DVPA sets out the types of conditions that might be imposed. It provides:

“58 Conditions relating to behaviour of respondent

Without limiting section 57, the court may impose a condition on the respondent that—

  1. (a)
    prohibits stated behaviour of the respondent that would constitute domestic violence against the aggrieved or associated domestic violence against a named person; or
  1. (b)
    prohibits stated behaviour of the respondent that is likely to lead to domestic violence against the aggrieved or associated domestic violence against a named person; or
  1. (c)
    prohibits the respondent from approaching, or attempting to approach, the aggrieved or a named person, including stating in the order a distance within which an approach is prohibited; or
  1. (d)
    prohibits the respondent from contacting, attempting to contact or asking someone else to contact the aggrieved or a named person, including, for example, if the aggrieved or named person has taken shelter at a refuge; or
  1. (e)
    prohibits the respondent from locating, attempting to locate or asking someone else to locate the aggrieved or a named person if the aggrieved’s or named person’s whereabouts are not known to the respondent; or
  1. (f)
    prohibits stated behaviour of the respondent towards a child of the aggrieved, or a child who usually lives with the aggrieved, including prohibiting the respondent’s presence at or in a place associated with the child.”
  1. [55]
    Section 58 DVFPA is non-exhaustive and must be read in the context of the definition of ‘named person’ in s 24(6) DFVPA which includes any specifically named person, including a child.
  1. Limiting contact between parent and child
  1. [56]
    Where a condition limiting contact between parent and child is sought or being considered, section 62(2) requires that the condition must limit contact between the respondent and the child only to the extent necessary for the child’s safety, protection and wellbeing (subject to the important principle in s 57(3) that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount).[1]
  1. Standard of proof
  1. [57]
    The burden of proof applicable for the applicant to be successful in establishing that an act of domestic violence occurred is on the balance of probabilities.
  1. [58]
    Whilst not changing the standard of proof, the gravity of the allegations may require the court to more closely examine the evidence to discharge that standard (the Briginshaw[2] principle.
  1. [59]
    Section 8(5) of the DVFPA makes clear that for behaviour that may constitute a criminal offence, a court may make an order under the Act on the basis the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt.
  1. If neither the aggrieved nor the named relatives want the order, can the Court still make a Domestic Violence Order?
  1. [60]
    If this were an application by the aggrieved personally, (often known as a ‘private’ application), the applicant can withdraw such application before the court has made its decision.
  1. [61]
    Here, the applicant is a Police Officer who is still entitled to seek a protection order protecting the aggrieved, if all the factors in s 37 DVFPA exist, including, if it is “necessary or desirable”.
  1. [62]
    By section 32(2) of the DVFPA, in determining whether the order is necessary or desirable to protect the aggrieved from domestic violence, the court must consider the principles mentioned in section 4, the respondent’s criminal and domestic violence history and compliance (or failure to comply) with any intervention order.[3]
  1. [63]
    There is no criminal history or domestic violence to speak of and the respondent has not been the subject of any intervention order.
  1. [64]
    As set out by Judge Morzone KC in MDE v MLG and Queensland Police Service [2015] QDC 151:

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

  1. [65]
    In in MDE v MLG Judge Morzone KC helpfully summarised that 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), namely:

“First, the court must assess the risk of future domestic violence between the parties in the absence of an order…

Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of an order…

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

  1. [66]
    The test is stated in the alternative. As well set out by Magistrate Costanzo in Armour v FAC [2012] QMC 22:
  1. [15]
    “A court may find it desirable to make an order without finding it to be necessary. One example may be where a perpetrator of domestic violence needs to be held accountable.
  1. [16]
    A court may find it necessary to make an order without finding it to be desirable. One example may be where a court finds it is necessary despite the wishes of an aggrieved who stands opposed to the making of an order.”
  1. [67]
    Even though the parties may say the protection order is not “desirable” by the parties, the making of the order may be “necessary”. Or it may still be “desirable” even if not “necessary”.
  1. Findings
  1. [68]
    It was not in issue that the parties were in a relevant relationship.
  1. [69]
    I find that the four allegations of domestic violence are made out. As to allegation 1, I find the respondent damaged the phone, both parties went through the fence but in the absence of evidence from the aggrieved, I am unable to determine that the respondent deliberately tackled the aggrieved or that the aggrieved suffered bruising. The balance of the allegations are admitted by the respondent and allegation 4 is borne out by the CCTV footage mentioned above.
  1. [70]
    I do not find that the respondent has suborned the aggrieved or his father-in-law into resisting the order.
  1. (i)
    Risk of future domestic violence
  1. [71]
    As set out in MDE v MLG & Queensland Police Service [2015] QDC 151 at [55]:

“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.”

  1. [72]
    The allegations have been made out.
  1. [73]
    The coronial inquest in relation to the respondent’s son are not finalised, potentially triggering more stress for this family.
  1. [74]
    The acute and serious nature of the incidents that I find, occurred, particularly the threat to burn down the aggrieved’s parents’ home and his acute and heightened behaviour outside her parents’ home, and the lack of any therapeutic intervention to prevent such behaviour from reoccurring, mean that there is a still a risk of future domestic violence in the absence of the order.
  1. (ii)
    Need to protect the aggrieved by an order
  1. [75]
    Relevant considerations may include evidence of the parties’ future personal and family relationships, their places of residence or 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.[5]
  1. [76]
    The parties have a child together and will continue to have ongoing contact and communication.
  1. [77]
    The parties may or may not resume their relationship.
  1. [78]
    As the respondent has not addressed the underlying mental health issues, there is a risk of future domestic violence if an order is not made.

  1. (iii)
    Necessary or desirable to protect the aggrieved from domestic violence.
  1. [79]
    In this regard, s 37(2)(a), requires the Court to consider the principles in s 4(1),[6] that is:
  1. “(a)
    people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
  1. (b)
    to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
  1. (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;
  1. (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;
  1. 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

  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;
  1. (f)
    a civil response under this Act should operate in conjunction with, not instead of, the criminal law.”
  1. [80]
    Whilst the aggrieved’s wishes against the order have been heard and are acknowledged, the safety and, wellbeing of her, her parents, and particularly, the named child is of paramount importance. By principle (d), the aggrieved, her elderly parents and her child are all deemed to be particularly vulnerable.
  1. [81]
    The extreme seriousness of the threat to burn down the aggrieved’s parents’ home followed by actions, including attendance at that home (even without arson paraphernalia) and the lack of adequate therapeutic intervention to address the cause of this behaviour, means the ongoing supervision and protection provided by a protection order is ‘necessary’, even if none of the aggrieved, the named persons or the respondent find it ‘desirable’.
  1. [82]
    The impact upon the respondent’s prospects as a future foster carer does not change the task faced by the Court, which is to decide if the order is necessary or desirable. Consistent with R v Hatahet (2024) 98 ALJR 863, a decision that might be made by an executive branch of government is an irrelevant consideration, particularly, in this case, in determining whether the aggrieved is in need of protection.
  1. Should the aggrieved’s parents be named?
  1. [83]
    Section 52 DVPFA provides that if the Court is satisfied that naming a relative or associate of the aggrieved is necessary or desirable to protect the relative from associated domestic violence the court may name them in the order (s 52).
  1. [84]
    In this case, the most serious incident occurred at the aggrieved’s parents’ house and was a threat against them to burn it down for supporting their daughter. They are grandparents to R and, by virtue of their age, are assumed under the DVFPA to be vulnerable.
  1. [85]
    For the same reasons as the aggrieved, it is necessary or desirable for them to be named, notwithstanding their objection.
  1. Should the aggrieved’s child be named?
  1. [86]
    Where the aggrieved has a child or there is a child who usually resides with the aggrieved, section 54 requires the Court to consider whether the child should be named.
  1. [87]
    The court may name a child of the aggrieved or who usually resides with the aggrieved (that is, a child who spends time at the residence of an aggrieved on a regular or on-going basis (s 24(2)) in a domestic violence order if the court is satisfied that naming the child is necessary or desirable to protect the child from:
  • Associated domestic violence (defined in s 9)
  • Being exposed to domestic violence by the respondent (defined in s 10).
  1. [88]
    In CED v HL [2016] QDC 345, Kent KC DCJ at [38] confirmed:
  1. (a)
    the Court must give reasons, with reference to s 48(2) and 49 of the DFVPA;
  1. (b)
    the Court must have sufficient evidence that the order was necessary or desirable in terms of s 48 or 57.
  1. [89]
    In CED v HL [2016] QDC 345, the District Court removed the child from the order, when the child’s presence at the incident of domestic violence was incidental and not prolonged, dangerous, or wilfully brought about or persisted with by the appellant (the respondent to the order); and it was unlikely to be repeated.
  1. [90]
    In BM v CM & Anor [2020] QDC 30, Rackemann DCJ explained what is needed for the exercise of discretion that it is necessary or desirable to name a child pursuant to s 53, at [16]:

“That would necessarily involve an assessment of the risk of those matters in the absence of any order. The magnitude of the risk which would be sufficient to justify a conclusion that it is necessary or desirable to protect the child by naming the child in the order will depend on the circumstances, but the risk would need to be more than a bare possibility or a matter of mere speculation. The applicant’s fear of such a risk would not be sufficient. There would need to be a proper evidentiary basis for concluding that there was such a risk.

  1. [91]
    Also, at [33]:

“Where it is proposed to name a child in the order, the Court also has to be satisfied that it is necessary or desirable to protect the child from the matters stated in section 53(a) or (b) (from associated domestic violence or exposure to domestic violence in the future).”

  1. [92]
    The applicant must inform the court of any family law order (s 77(2)) and the Court must have regard to any family law order (s 78(1)(a)) but there are none here.
  1. [93]
    Assessing the risk in this case, I am satisfied that, whether due to a mental health episode or emotional distress, the respondent gave the aggrieved two locations where he might be taking R, one of which was camping at his brother’s place but the other to an unknown location and there was an argument including in which the respondent said he was taking R to [a female’s] house as she was “a girl whose got the hots for me and wanted to sleep with him”. Presumably, R would be then present for these activities. Regardless of whether the respondent was just seeking to inflict psychological harm by trying to make the aggrieved jealous, he was using R to do so.
  1. [94]
    Also relevant to risk, is the respondent’s mental health and his behaviour and threats at the aggrieved’s parents. The respondent has not yet addressed the underlying issues and so there is a real (as opposed to speculative) risk that similar behaviour could be repeated, in R’s presence; and a need to protect R, including by way of urgent police intervention if a similar event was to occur.
  1. Non-approach/non-contact conditions
  1. [95]
    Conditions 3 to 7 are not necessary or desirable to protect the aggrieved from domestic violence; or a named person from associated domestic violence or a named person who is a child and being exposed to domestic violence.
  1. [96]
    As set out in PRH v LPL & Anor [2021] QDC 17 at [23]:

“… [T]here are a number of cases that make it quite clear that – and here I am referring, in particular, to a decision of the Magistrates Court in Armour v FAC [2012] QMC 22 where a number of observations were made including that any order should go no further than is necessary for the purpose of protecting the aggrieved and that the Act is intended to be protective legislation but it is not intended to be punitive upon the Respondent unless, of course, conduct warranted.”

  1. [97]
    Further, a condition preventing or limiting a respondent’s contact with their child must only limit contact between them to the extent necessary for the child’s safety, protection, and wellbeing (s 62(2)). The paramount consideration is the principle that the safety, protection, and wellbeing of people who fear or experience domestic violence including children are paramount (s 57(3)).
  1. [98]
    The views of the aggrieved have been sought and she wants the respondent to be involved in her and their child’s life on an ongoing basis, uninterrupted by any order. By Principle 4(a), the conditions the court should impose should disrupt the aggrieved and the child’s lives to the minimum possible extent.
  1. [99]
    Whilst the respondent’s mental health does need to be addressed, a no-contact condition will not minimise disruption to the aggrieved and the child but only further tear apart this family or cause more distress to the aggrieved and the child, who have already lost the respondent’s son.
  1. [100]
    The aggrieved is supporting the respondent and I am told all is going well in terms of contact arrangements with their son. R is attending school and doing well, and his father is a critical and support person in his life.
  1. [101]
    I find that, in this case, the non-approach and non-contact conditions sought go beyond what is necessary to protect the aggrieved, the aggrieved’s associates or child.
  1. Length of the order
  1. [102]
    Pursuant to s 97(2) and (3) DVFPA:
  1. “(2)
    The court may order that a protection order continues in force—
  1. (a)
    for any period the court considers is necessary or desirable to protect the aggrieved from domestic violence or a named person from associated domestic violence; but
  1. (b)
    for a period of less than 5 years only if the court is satisfied there are reasons for doing so.
  1. (3)
    In deciding the period for which a protection order is to continue in force, 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.”
  1. [103]
    Given the PPN, the aggrieved has been protected since 7 February 2024.
  1. [104]
    In this matter, the respondent’s behaviour appears to be isolated incidents triggered by the death of his son and the breakdown of the relationship. Over time, he is slowly adjusting to those events and addressing the underlying mental health concerns. It is not said he was otherwise violent during the relationship. However, the behaviour still placed the aggrieved, the aggrieved’s parents and the child at risk.
  1. [105]
    The respondent’s behaviour might be triggered by external events, including the Coronial inquest, which is expected to resolve within a year. The anniversary of the respondent’s son death (July) may have the potential to trigger further incidents.
  1. [106]
    The respondent has displayed genuine remorse. He has been admitted to a mental health facility for a period. He has complied with both the PPN and a temporary protection order restricting him from contacting or approaching the aggrieved for almost a year (I reduced the extent of the conditions on 2 December 2024) satisfying me that he both respects and is able to comply with the Court’s order, even when he may have disagreed with it.
  1. [107]
    The respondent ultimately wants to have a Blue Card to provide mentoring services in the community. A 5-year order may cause him to lose all hope and be unnecessarily punitive. The events occurred after he lost his own son and his home was damaged, not because the respondent had a propensity towards violence.
  1. [108]
    Under Principle 4(c), he should not be denied the opportunity to change. The respondent’s engagement with therapy and his GP is currently intermittent. Had the underlying causes been addressed, I may have considered a lesser period.
  1. [109]
    Should the respondent contravene the order, it can be varied and/or extended if needed.
  1. [110]
    Accordingly, I consider that there are reasons for making the order for less than 5 years and the safety, protection and wellbeing of the aggrieved and named child is not compromised by doing so.
  1. [111]
    For the above reasons,[7] I consider that 2 years from today’s date, being almost 3 years from the date of the PPN (7 February 2024) is the period that is necessary or desirable to protect the aggrieved from domestic violence or a named person from associated domestic violence.
  1. Conclusion
  1. [112]
    The discretion to make a protection order in favour of the aggrieved, the aggrieved’s parents and the child is exercised. The appropriate conditions are as set out in page 1.
  1. [113]
    The period of the order is 2 years from today’s date.

Footnotes

[1]Notation to s 62(2).

[2]Briginshaw v Briginshaw [1938] 60 CLR 366 per Justice Dixon.

[3]Though compliance with an intervention order does not mean an order will not be made (s 37(3)).

[4]See for example: Crimes (Domestic and Personal Violence) Act 2007 (NSW), 22 35, 96(2)(b), Family Violence Protection Act 2008 (Vic), 3 81; Summary Offences Act 1927 (SA) ss 99H & 99 AAC; Domestic Violence Protection Act 2008 (NT), 33 21, 94; Domestic Violence Protection Orders Act 2008 (ACT), s 48(1); Justices Act 1959 (TAS) S 106B; Family Violence Act 2004 (TAS) s 16.

[5]MDE v MLG & Queensland Police Service [2015] QDC 151 at [55(2)].

[6]MDE v MLG & Queensland Police Service [2015] QDC 151 at [55(3)].

[7]Which s 97(4) requires the Court to give.

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service v MAG (re TLS)

  • Shortened Case Name:

    Queensland Police Service v MAG (re TLS)

  • MNC:

    [2025] QMC 2

  • Court:

    QMC

  • Judge(s):

    Acting Magistrate Janelle (Payne) Boegheim

  • Date:

    05 Feb 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ACP v McAulliffe [2017] QDC 294
1 citation
Jump To
Cite 1 - [2017] QDC 294
ADH v ALH [2017] QDC 103
1 citation
Jump To
Cite 1 - [2017] QDC 103
Armour v FAC [2012] QMC 22
2 citations
Jump To
Cite 1 - [2012] QMC 22
Cite 2 - [2012] QMC 22
BAK v Gallagher [2018] QDC 32
1 citation
Jump To
Cite 1 - [2018] QDC 32
BM v CM [2020] QDC 30
1 citation
Jump To
Cite 1 - [2020] QDC 30
Briginshaw v Briginshaw (1938) 60 CLR 366
1 citation
Jump To
Cite 1 - (1938) 60 CLR 366
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
CED v HL [2016] QDC 345
2 citations
Jump To
Cite 1 - [2016] QDC 345
Cite 2 - [2016] QDC 345
DGS v GRS [2012] QDC 74
1 citation
Jump To
Cite 1 - [2012] QDC 74
GKE v EUT [2014] QDC 248
2 citations
Jump To
Cite 1 - [2014] QDC 248
Cite 2 - [2014] QDC 248
LDC v TYL [2017] QDC 197
1 citation
Jump To
Cite 1 - [2017] QDC 197
MDE v MLG [2015] QDC 151
6 citations
Jump To
Cite 1 - [2015] QDC 151
Cite 2 - [2015] QDC 151
Cite 3 - [2015] QDC 151
Cite 4 - [2015] QDC 151
Cite 5 - [2015] QDC 151
Cite 6 - [2015] QDC 151
PRH v LPL [2021] QDC 17
2 citations
Jump To
Cite 1 - [2021] QDC 17
Cite 2 - [2021] QDC 17
SCJ v ELT [2011] QDC 100
1 citation
Jump To
Cite 1 - [2011] QDC 100

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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