Family Law Act 1975 (Cth)

Crimes Act 1914 (Cth), s 75(b)

Domestic Violence and Protection Orders Act 2001 (ACT), ss 5, 6, 9, 40, 41, 58, 59, 78, 79

Crimes Act 1900 (ACT)

Magistrates Court Act 1930 (ACT), pt X

Court Procedures Rules 2006 (ACT), r 5103

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572

CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

SI bhnf CC v KS bhnf IS [2005] ACTSC 125; (2005) 195 FLR 151

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430

Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246

Pettitt v Dunkley [1971] 1 NSWLR 376

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Mifsud v Campbell (1991) 21 NSWLR 725

Stoker v Adecco Gemvale Constructions Pty Ltd and Anor [2004] NSWCA 449

Acuthan v Coates (1986) 6 NSWLR 472

Tez v Longley [2004] NSWSC 74; (2004) 142 A Crim R 122

Winwood v Burk [2002] TASSC 54

Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435

Alice Springs Town Council v Mpweteyerre Aboriginal Corporation and Ors (1997) 139 FLR 236

Australian Law Reform Commission (ALRC), Domestic Violence (ALRC: Sydney, 1986) Report No 30

Seddon N, Domestic Violence in Australia: The Legal Response (Federation Press: Sydney, 1993) 2nd ed.

Naffin, N, Domestic Violence and the Law -a Study of s 99 of the Justices Act (South Australia) (Women's Adviser's Office, South Australia: Adelaide, 1985)

The Community Law Reform Committee of the ACT, Domestic Violence - Civil Issues (ACT: Canberra, 1995) Report No 11

1. The time within which the Appellant may file the notice of appeal is extended to 1 June 2007.

1. In 2003, the appellant, CM married the first respondent, TM, whom he had met over the internet when she lived in Russia and he in Canberra. They married in her home city of Volgograd on 3 May 2003.

2. There were difficulties in arranging a visa for TM to come to Australia and it appears that CM sponsored her visa, but she arrived in mid-December 2005 and moved in to CM's home in Richardson.

3. It appears that there were stresses in the marriage, the perceptions of the nature and cause of which were described, perhaps unsurprisingly, in rather different ways by husband and wife.

4. On 24 August 2006, CM wrote a letter to the Department of Immigration and Multicultural Affairs withdrawing his sponsorship of TM and her daughter, the second respondent, under which they had obtained their visas to enter Australia.

5. On 31 August 2006, TM and her daughter both applied to the Magistrates Court for a Protection Order under the Domestic Violence and Protection Orders Act 2001 (ACT) (Protection Orders Act). It appears that Interim Orders were made on 31 August 2006.

6. Ultimately, the applications came on for hearing on 26 and 27 February 2007. The Learned Magistrate reserved his decision. On 4 May 2007, orders were made restraining CM from engaging in behaviour that constitutes domestic violence in relation to TM and her daughter with other associated conditions or orders.

7. On 1 June 2007, CM filed a notice of appeal against the orders.

8. This court has jurisdiction to hear and determine appeals from the Magistrates Court exercising jurisdiction under the Protection Orders Act under s 79 of the Act. That section requires that there be an appealable decision and that the person seeking to appeal files a notice of appeal, where, as here, the person was present when the order was made, within 21 days from the date of the order.

9. An appealable decision, described in s 78 of the Act, includes the making of a protection order.

10. The time limit prescribed for other civil appeals under r 5103 of the Court Procedures Rules 2006 (ACT) (the Rules), namely 28 days, is longer than that provided for in the Protection Orders Act. As noted above (at [8]), s 79(2) of the Act requires a notice of appeal to be filed within 21 days, but s 79(3) permits the court to allow a notice to be filed after the 21 days "if satisfied that it is appropriate to do so".

11. Applying s 79 of the Protection Orders Act, CM's notice of appeal was filed outside the 21 day period; indeed, it was filed 27 days after the order was made, he no doubt thinking that it was within time. Had it been another civil appeal, it would have been within time.

12. CM applied for permission to file it out of time. Neither TM nor her daughter opposed that and I will make an appropriate order.

13. Appeals instituted under the Protection Orders Act are regulated by that Act, which provides, relevantly:

1. In an appeal, the Supreme Court must consider the evidence given in the proceeding from which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.
2. On an appeal, the Supreme Court may -

(a) confirm, reverse or amend the decision or order appealed from; or

(b) make the decision or order that, in all the circumstances, it considers appropriate, or refuse to make an order; or

(c) set aside the decision or order appealed from, completely or partly, and remit the proceedings to the Magistrates Court for further hearing, subject to the directions the Supreme Court considers appropriate.

1. The filing of an appeal against the making or amending of an order under this Act does not affect the operation of the order appealed against.

14. Having regard to those provisions and the approach that this court has taken to appeals from decisions of the Magistrates Court, it seems to me that the appeal is an appeal by way of rehearing. I described such appeals in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 as follows (at [78]):

1. Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.

15. The obligation of appellate courts, especially where there are issues as to the credibility of witnesses is concerned, has been the subject of recent consideration by the High Court in cases such as Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 and, more recently, in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458.

16. In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ repeated (at 127; [25]) what had been said in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, where the majority repeated (at 551) the rule that:

[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

17. Their Honours then referred to the "trilogy" of cases which reiterated the need for appellable respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom, of course, the trial judge sees, but the appellate court does not. Those cases were Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 (at 351-2); Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 (at 179) and Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 (at 472, 482-3). Their Honours continued (at 127 - 8; [27] to [29]):

1. The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
2. Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
3. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.

18. The approach was restated by Kirby J (with whom Gleeson CJ agreed) in CSR Ltd v Della Maddalena where his Honour said (at 466; [21] to [22]:

[21] Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.

[22] However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it'.

(Footnotes omitted).

19. This is the approach I will take to this appeal.

20. CM appealed from both orders. The grounds of appeal were set out in the Notice of Appeal. They were:

1. The Learned Magistrate erred by not finding facts to justify the orders.
2. The Learned Magistrate reversed the onus of proof by finding first that the appellant was not a witness of truth without considering whether the respondents were witnesses of truth.

1. The Learned Magistrate erred by failing to consider, notwithstanding his findings, that the appellant was not credible, that the respondents had the onus of establishing their case which required a consideration of whether or not the respondents were credible.

21. CM had prepared and filed the Notice of Appeal himself. At the hearing, he was represented by Mr S Whybrow of counsel. In his written submissions, Mr Whybrow clarified the grounds of appeal. Referring to the grounds in the Notice of Appeal, he wrote:

Those grounds do not adequately delineate between the two orders being appealed from nor do they adequately identify the particular complaints the appellant says should lead to the relief sought being granted.

The appellant seeks to clarify the grounds of appeal as follows:

In relation to both DV 06/518 and DV 06/520

(a) the Learned Magistrate failed properly, or at all, to consider the matters set out in s 40 of the Act before exercising his discretion to make the orders, in particular whether an Order was necessary to achieve the objects of the Act in this case;

(b) the Learned Magistrate's discretion to make the order miscarried in that no or no sufficient regard was had to the matters that mitigated against making the order; and

(c) the Learned Magistrate's exercise of discretion was, in all the circumstances so unreasonable as to amount to a failure to properly exercise the discretion conferred by section 40 of the Act.

(d) the Learned Magistrate failed to give adequate reasons or make findings of fact justifying the making of the Orders.

In relation to DV 06/520 [where TM's daughter was the applicant]

(e) the Learned Magistrate erred by finding that the appellant had engaged in offensive and harassing behaviour towards the 2nd respondent;

(f) the Learned Magistrate failed to make any findings of fact or provide any reasons that would justify a finding that the appellant had engaged in offensive and harassing behaviour towards the 2nd respondent.

22. The ACT first legislated for domestic violence orders in 1986, following an inquiry by the Australian Law Reform Commission (ALRC), Domestic Violence (ALRC: Sydney, 1986) Report No 30.

23. In that Report, the Commission noted, in particular, that domestic violence should not be confined to physical violence. The Report noted (at [10]):

10. Mental violence, which includes constant verbal abuse, harassment, excessive possessiveness, isolation and deprivation of physical and economic resources, can be devastating. In some cases its effects will be more long-lasting than a broken limb or a black eye. An overall approach to domestic violence would undoubtedly include mental violence. But legal remedies are often a blunt instrument for dealing with this kind of abuse in the family. No enforceable legal remedy can be devised to protect a person from, for example, constant humiliation. The law can aid such a person indirectly: by providing a way of ending the legal relationship (divorce plus adequate maintenance for children); by ensuring that the offender stays away from the home. The law can also help to prevent various forms of harassment such as constant telephoning and appearing suddenly at windows. But it cannot deal with conduct such as obsessive jealously or possessiveness. The answer to these problems lies, if anywhere, in counselling and other ways of encouraging changes in the parties' behaviour, perceptions and expectations. Accordingly, the suggestions for changes to the law in this report will be confined to physical violence and to harassment.

24. Seddon N, Domestic Violence in Australia: The Legal Response (Federation Press: Sydney, 1993) 2nd ed., noted the inclusion of harassment in domestic violence legislation "to cover conduct which is not criminal or tortuous." In explaining the inclusion, the author commented (at 3):

Harassment can be just as terrifying as actual violence and may, if not stopped, cause psychological injury. Examples of harassment are constant telephoning, waiting outside a house in a car, suddenly appearing at a window, or removing essential household items.

25. As a result, the ALRC recommended (at 88) the "[n]ew kind of order" which would not carry the slur of a criminal conviction and "in many cases would impose no hardship on the respondent. It would merely prohibit further violence or harassment, or pain or criminal penalties for breach".

26. Such orders are now in place in every jurisdiction in Australia. A substantial report on their operation in South Australia, Naffin, N, Domestic Violence and the Law -a Study of s 99 of the Justices Act (South Australia) (Women's Adviser's Office, South Australia: Adelaide, 1985), concluded that:

• Protection orders are a necessary complement to the criminal law to cater properly for the varying needs of domestic violence victims;

• They are an improvement on the South Australian equivalent of the 'keep the peace order';

• They are generally more effective than injunctions under the Family Law Act 1975 (Cth).

27. The Report interviewed many of those involved in applying for and making orders. Welfare and legal workers were reported (at 116) as saying:

according to this survey group, the chief advantage of the orders is that they deter persons who are normally law-abiding from engaging in further acts of violence. To a limited extent, the orders are effective. The main problem with the orders - their principal disadvantage - is that they fail to deter persistent offenders who have developed cynical attitudes toward the law. It follows that the attitude of the respondent is all important. The extent to which the respondent takes the order seriously is the extent of its effectiveness.

28. The 1986 Act has since been amended a number of times and ultimately replaced with a substantially new Act in 2001, the Protection Orders Act.

29. Central to the regime established by the Protection Orders Act and to this case, are ss 40 and 41 which provide:

1. What are grounds for making final order (other than workplace order)?

(1) The Magistrates Court may make a final order (other than a workplace order) on application if satisfied that the respondent has -

(a) engaged in domestic violence; or

(b) engaged in personal violence towards the aggrieved person and may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.

(2) If an interim order has been made on the application and the respondent has objected to the interim order, in making the final order the Magistrates Court must consider the respondent's objection.

1. What must court consider before making final order other than workplace order?

(1) In deciding an application for a final order, the Magistrates Court must consider the following:

(a) the objects of this Act (in section 5) and the principles for making orders (in section 6);

(b) the welfare of each child (if any) affected, or likely to be affected, by the respondent's conduct;

(c) the accommodation needs of the aggrieved person, each child (if any) of the aggrieved person, and each child (if any) of the respondent;

(d) any hardship that may be caused to the respondent or anyone else by the making of a protection order;

(e) if the court proposes to include in the protection order a prohibition or requirement of a kind mentioned in section 42(3) - the income, assets and liabilities of the respondent and the aggrieved person (other than an aggrieved person who is a child);

(f) whether contact between the aggrieved person or the respondent, and any child of either of them, is relevant to the making of the protection order, and to any relevant family contact order of which the court is aware;

(g) if the respondent has previously engaged in conduct that is domestic violence, personal violence or personal violence in relation to a workplace - that conduct;

(h) if a protection order has previously been made in relation to the respondent - the protection order;

(i) if the respondent has previously contravened a protection order - the contravention;

(j) the need to ensure that property is protected from damage.

(2) The Magistrates Court may also consider anything else that is relevant.

(3) A failure by the Magistrates Court to consider the matter mentioned in subsection (1) (f) before making an order does not affect the validity of the order.

30. Section 40 refers to "domestic violence". That is defined in s 9, which is in the following terms (omitting the definition of 'animal violence offence', not presently relevant):

9 What is domestic violence etc?

(1) For this Act, a person's conduct is domestic violence if it -

(a) causes physical or personal injury to a relevant person; or

(b) causes damage to the property of a relevant person; or

(c) is directed at a relevant person and is a domestic violence offence; or

(d) is a threat, made to a relevant person, to do anything in relation to the relevant person or another relevant person that, if done, would fall under paragraph (a), (b) or (c); or

(e) is harassing or offensive to a relevant person; or

(f) is directed at a pet of a relevant person and is an animal violence offence; or

(g) is a threat, made to a relevant person, to do anything to a pet of the person or another relevant person that, if done, would be an animal violence offence.

(2) In this Act:

Domestic violence offence means an offence against -

(a) section 34 (which is about contravening protection orders); or

(b) a provision of the Crimes Act 1900 mentioned in schedule 1 (which deals with domestic violence offences); or

(c) any of the following provisions of the Criminal Code:

• (i) section 311 (Burglary);
• (ii) section 316 (Going equipped with offensive weapon for theft etc);
• (iii) section 403, section 404, section 405, section 406, section 407 or section 408 (which deal with property offences); or

(d) any of the following provisions of the Road Transport (Safety and Traffic Management) Act 1999:

(i) section 6 (1) (which is about negligent driving);

(ii) section 7 (1) (which is about furious, reckless or dangerous driving);

(iii) section 8 (1) or (2) (which is about menacing driving); or

(e) any of the following provisions of the Firearms Act 1996:

• (i) section 53 (Unregistered firearms);
• (ii) section 80 or section 81 (which are about discharge of firearms or possession endangering life).

31. There is a reference to "relevant person" in s 9 (1) and this is defined in the dictionary as follows:

Relevant person****, in relation to a person (the original person), means -

(a) a domestic partner of the original person; or

Note a domestic partner need not be an adult (see Legislation Act, s 169).

(b) a relative of the original person; or

(c) a child of a domestic partner of the original person; or

(d) a parent of a child of the original person.

32. Section 41 refers to the objects of the Act (s 5) and the principles for making orders (s 6). These sections are as follows:

5 Objects

The objects of this Act include -

(a) to prevent violence between family members and others who are in a domestic relationship, recognising that domestic violence is a particular form of interpersonal violence that needs a greater level of protective response; and

(b) to facilitate the safety and protection of people who fear or experience violence by -

• (i) providing a legally enforceable mechanism to prevent violent conduct; and
• (ii) allowing for the resolution of conflict without the need to resort to adjudication.

6. Principles for making protection orders

(1) In deciding an application for a protection order, the paramount consideration is -

(a) for a domestic violence order - the need to ensure that the aggrieved person, and any child at risk of exposure to domestic violence, is protected from domestic violence; and

(b) for a personal protection order (other than a workplace order) - the need to ensure that the aggrieved person is protected from person violence; and

(c) for a workplace order - the need to ensure that employees and other people at the workplace are protected from personal violence at the workplace.

(2) If a protection order is to be made on an application under this Act, it must be the protection order that is least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect to subsection (1).

33. Mention should also be made of s 19 which provides that the level of satisfaction required of a magistrate considering making an order is satisfaction on the balance of probabilities.

34. The difference in the matters of which the Magistrates Court must be satisfied under s 40 between a domestic violence order (that is, one based on domestic violence) and a personal protection order (that is, one based on personal violence) is clear. It is explained in the Explanatory Memorandum as follows (at 10):

The grounds for a domestic violence order, consistently with the current DVA requirements, are simply that the respondent has engaged in domestic violence. The grounds for a person protection order, consistently with the current MCA requirements, are that the respondent has engaged in personal violence and may, if the order is not made, engage in personal violence during the time the order is proposed to operate. The difference in the grounds is based on the existing legislation which treats the particular relationship of the parties in a domestic violence matter as sufficient, of itself, to give rise to the need for an order to protect the aggrieved person from the domestic violence behaviour.

35. The genesis of this approach to domestic violence orders may be found in the Report of The Community Law Reform Committee of the ACT, Domestic Violence - Civil Issues (ACT: Canberra, 1995) Report No 11. In that report (at pp 26-7; [98] to [101]) the Committee referred to restraining orders, as they were then available under the Magistrates Court Act 1930 (ACT), Part X, (to become personal protection orders under the Protection Orders Act) as compared to domestic violence orders then available under the Domestic Violence Act 1986 (ACT). The Report commented:

1. The Magistrates Court Act, does not apply a 'likely to recur' requirement where the ground for the restraining order is that the respondent has behaved in an offensive or harassing manner. It is noted that conduct which falls within the other grounds is likely also to be 'harassing' and possibly 'offensive', and that it is possible to rely on multiple grounds when seeking a restraining order. Consequently, in a high proportion of cases under the Magistrates Court Act the 'likely to be repeated' criteria does not need to be considered. This in turn means that there is a significant difference between the liberal approach authorised by the Magistrates Court Act and the more restrictive criteria in the Domestic Violence Act.
2. Seddon notes that the 'likely further incident' element has occasionally been a stumbling block in Australian jurisdictions where it is included in legislation, including South Australia and Tasmania. Seddon points out that if an applicant seeks an order after the first violent incident or if there is a long interval between incidents, the present criteria may cause difficulty.
3. Whether conduct is likely to occur again, or a threat is likely to be carried out, is not an issue which can be the subject of strict objective proof. In practical terms, it is the fact of violence or harassment or offensive behaviour, or the threat of violence which indicate that the victim is at risk. Added to this is the general difficulty of attempting to predict the respondents behaviour. Because of the diversity of domestic violence, it is not possible to prescribe an exhaustive list of factors which could be relied upon to assess the 'likely to occur' element.
4. The Committee considers that section 4 of the Domestic Violence Act should be amended to delete the 'likely to occur' element from section 4(1)(a) and (b) so that proof of prior conduct would be sufficient.

Recommendation 6:

That section 4 of the Domestic Violence Act should be amended to delete the requirement, from sub sections 4(1)(a) and (b) that the Court find that the respondent is likely to engage in conduct or in further conduct that would constitute a domestic violence offence.

(Footnotes omitted).

36. This clearly sets out the case for the current form of s 40(1)(a) of the Protection Orders Act.

37. The sections I have referred to above show, in particular, that

• for domestic violence (s 40(1)(a)), there is no requirement that the magistrate be satisfied that the respondent may engage in domestic violence in the future, in contradistinction to the position in respect of personal violence. That is because of the recognition that in a domestic situation, where there are bonds between the parties, there is always a risk of future domestic violence, as a result of the power and personal relations involved.

• the domestic violence may be directed at a relevant person not the applicant and that includes the daughter or mother of the applicant.

38. It seems to me that this, taken in conjunction with ss 5 and 6 of the Protection Orders Act, means that where the court is satisfied that domestic violence has occurred, it should ordinarily make an order unless satisfied that there is no probable likelihood of such circumstances, like the ongoing relationship that the appellant and respondent have, that would put the applicant at risk. This may put a burden of proof on the respondent but, of course, it could only be and, in my view, is an evidential burden to raise the issue such that the applicant must then show, on the balance of probabilities, that such circumstances are not proven or do not outweigh the need for protection.

39. TM gave evidence that she had been married before in Russia and had two children, a son aged 26 and a daughter aged 17, the second respondent. It appears that her first husband died. She met CM, who was a builder, she described him as "a good builder", over the Internet and he visited her in Russia. They were married in May 2003 and he stayed for a month then returned to Canberra. She only obtained a visa in November 2005 and came to Canberra in mid December that year.

40. She said that when she arrived, CM was not as nice to her as he had been in Russia. When she arrived, she found the refrigerator empty of food. She was an IT engineer but CM did not help her find work. She said he became angry when she proposed to go to Centrelink for help to get a job.

41. She thought that he may have a problem with money and sought to discuss this with him but he became angry and raised his voice at her.

42. She also said that he had exposed his penis to her when she was in the kitchen and said he "would like to cook the sausages." Her daughter was with her at the time, and was upset by this display.

43. She also told of an occasion when they were at the Hyperdome in Tuggeranong on 12 March 2006 and he shouted at her. He shouted "Bloody Russian. Fuck you" and she could not calm him down. She claimed he often shouted at her. Sometimes his mood was changed by small things that happened. He often shouted at her in their home including saying things like "Go back to Russia, bloody Russian. Go away".

44. She said he told her that he had a problem with aggressive behaviour because of his experience in Vietnam. She went to the Vietnam Veterans Counselling Service in February 2006 to seek help for him. She spoke to a counsellor, but CM did not undertake any counselling.

45. CM had a number of military items about the house. He had a display which was a montage of military photography. In April 2006, he showed her two guns. She said he told her "Be careful with me. If your behaviour will be bad I will use them." He also showed her a "military knife" (which CM described as a World War I bayonet that belonged to his grandfather). She was afraid of it.

46. TM also described how she went to the Migrant Resource Centre for assistance.

47. She said that during 2006 things became a little better but during August things became much worse. CM had anniversaries in September and he refused to discuss them with her.

48. On 24 August 2006, she asked to go to the club with him. CM gave evidence that every Thursday, he would go to the Buffaloes Club and have dinner with some work associates and trades people. He told her that she could not go with him and grabbed her wrists and pulled them. She followed him to his car and found he was very angry. He shouted at her "Go away, bloody Russian, I killed you. I don't love you". CM climbed into his truck. It had a trailer attached and as he left, the trailer touched her.

49. She went to bed but in the morning decided to leave and she went to the Migrant Resource Centre and was taken to a refuge where she had since lived. She had no further contact with CM. She said she was scared of him, as he has guns and knives which she was afraid he might use against her or her daughter.

50. She was called on Monday by an officer of the Immigration Department about her visa.

51. In cross-examination, TM denied not liking the Buffaloes Club, which she had visited with CM a number of times.

52. She said that there were difficulties with money. She said she tried to talk to CM about it but it became a big problem. She also reiterated that CM did not help her find a job. She and her daughter did do the cooking at home.

53. It was put to her that CM was never angry but she denied that. She also explained about an incident which caused friction when her daughter babysat for CM's daughter's children. There was a dispute about payment for the babysitting. She denied shouting at CM that his daughter was "taking advantage of Russian peasants".

54. She affirmed that there was little money, though conceded that CM had paid for a school excursion and other items for her daughter. She and CM went shopping together. There was some cross-examination about an allowance paid by CM. She agreed that he paid her some money each week but then stopped. She said that CM told her he did not have enough money to pay her.

55. It was suggested that the relationship soured over the babysitting dispute. She denied that. She said, however, that she loved CM and tried to show it to him.

56. She denied that they would not speak to each other in bed and that each slept right on the opposite edge of the bed.

57. She maintained that CM had told her that he had served in Vietnam and that he had worked in the police force.

59. It was put to her that because CM had withdrawn his sponsorship, the only way she could stay in Australia was if the relationship breakdown was the result of domestic violence. She said that one of the persons supporting her had told her that. It was put to her that she was lying in her evidence because of that and she denied this.

60. The next witness was a worker from the Migrant Resource Centre who confirmed that she had contact with TM first on 10 January 2006. She saw her on and off for the next few months but in May 2006 she said TM told her that her husband had been aggressive and verbally abusive, raising his voice at her. She said that TM was interested in pursuing the relationship but wanted to help her husband control his anger. TM mentioned that she had gone to see if the Vietnam Veterans Association could help.

61. She saw TM again in June and was told that things were not going well and that CM was not a Vietnam Veteran, which had surprised her.

62. She then saw her on 25 August 2006 and was told matters had escalated and was told of the incident when CM exposed himself. They discussed the issue of safety, especially in the light of the guns and knife in the house and her fear. She then found a safe place for her and her daughter.

63. They did not discuss the issue of a permanent residence visa.

64. Under cross-examination, she said she did not know that CMhad withdrawn his visa sponsorship. She also denied advising TM to get a domestic violence order, though they may have briefly touched on the issue.

65. A Vietnam Veteran also gave evidence. He had met CM though his wife who attended the English course TM had been taking at the Canberra Institute of Technology.

66. He recalled conversations with TM about her husband and his behaviour. He recalled that she told him that CM was a Vietnam Veteran and suffered from Post Traumatic Stress Disorder which caused him to lose his temper and shout at her.

67. He went with her to the Vietnam Veteran's Counselling Service and spoke to a person there in about February 2006. She mentioned to him the shouting incident at the Hyperdome and his production of the guns. She presented as stressed and unhappy, trying to seek help from her husband.

68. TM's daughter also gave evidence. At the time she was in school in Year 12. She reported the way CM behaved to her mother in 2006 "shouting at her and ... quite aggressive and always verbal [sic] abused her". This, she said happened often.

69. She also said that CM had exposed his penis in front of her, saying "Would you like to cook this sausage?" She said this happened more than once.

70. She recounted incidents on 22 and 23 August 2006. Those allegations were not accepted by the Learned Magistrate and so it is not necessary to recount them in detail, though the Learned Magistrate's non-acceptance of them is relevant and I shall deal with that later.

71. She related that she was frightened of CM because of his guns and knife. She did say that CM threatened her that if she told anyone about the incidents, he would kill her and her mother. As the Learned Magistrate did not accept that the incident occurred, this threat is of no consequence to the making of the order.

72. In cross-examination, she agreed that CM had bought her an MP3 player for her birthday.

73. Much of the cross-examination was taken up with the incidents which were not accepted by the Learned Magistrate. TM's daughter was also asked questions about the babysitting incident. She said that CM's daughter had only paid her part of the money agreed for the babysitting and she was very distressed that she had not been paid the rest. She said that CM started shouting, screaming at her, calling her "trash" and slamming doors.

74. She was also questioned about the incident on 24 August 2006 and confirmed that CM had been shouting at her mother.

75. A witness who had met TM at the CIT English classes in April 2006 was also called. She recalled TM talking about her marriage and that TM said she did not have a good relationship because CM insulted her and was rude to her, saying things like "Bloody Russian", "Fuck you" and "Go away". She also said TM told her she was frightened because of CM's guns and that he threatened to use them if she "misbehaved". She also said that TM had told her about CM exposing his penis to her and her daughter and saying "Would you like to cook the sausage?"

76. A worker from the refuge where TM was staying was also called. She confirmed she met TM and her daughter on 25 August 2006 when she picked TM up at the Migrant Resource Centre and afterwards her daughter at the Woden bus interchange.

77. She heard of the incidents described by TM's daughter and took steps that it is not necessary to detail.

78. She described TM as very upset and fearful. She was frightened that CM would find her. She said that "[a]ll indications were she had been through a great amount of stress and trauma". Her daughter was under somewhat more control.

80. CM was then called. He largely confirmed the circumstances under which he and TM married and she and her daughter came to Canberra.

81. He confirmed that he had joined the Police Department and left in 1974. He also confirmed that he had pleaded guilty to a charge of "pretending to be someone I wasn't" and was discharged without conviction but required to pay $250 to the Salvation Army. It appears the actual charge was for falsely representing to be a public official contrary to s 75(b) of the Commonwealth Crimes Act 1914. The incident arose out of an incident when he used a business card which described him as connected with the 'NCA" (possibly the National Crime Authority, he said) when he had no such connection.

82. He denied service in Vietnam and denied telling TM that he had. He said that she "seemed to think that everyone in Australia served in the Army, as they do in Russia". He agreed that he had a montage of military photographs on his wall.

83. He explicitly denied that the incident described by TM as happening at the Hyperdome had ever occurred.

84. He denied the incidents with TM's daughter on 22 and 23 August 2006, but, for the reasons mentioned earlier, I do not need to detail his response to them.

85. He denied ever exposing his penis to TM's daughter or saying "Do you want to cook this sausage?"

86. He confirmed that on the morning of 24 August 2006, he typed a letter to the Immigration Department withdrawing his sponsorship of TM and her daughter. He posted the letter later in the day.

87. He said that, in the evening, he returned home and TM said she wanted to go to the club with him, but he said she could not because he said she did not like it there. He had his shower and, when he was dressed, he found she was also dressed ready to go to the club. He told her he was not taking her but she came close to him, pressing her case.

88. When he went to his truck, which had a trailer attached, she grabbed the steering wheel through the window and he told her, "I've already spoken [sic] to the Immigration Department. You're going back to the people's paradise which you love so much". She let go and said "You may as well kill me now. I am not going back to Russia." He said "Don't be stupid, I'm not going to kill you". He then drove off slowly down to the club where he had dinner. He denied shouting at TM that night.

89. He denied that his attitude to TM changed when she came to Australia and said he helped show her how his computer worked. He denied also that he knew she was planning to go to Centrelink.

90. He also referred to the babysitting incident which he said arose simply because his daughter did not have enough cash on her that night and simply forgot to pay later. He said he gave TM's daughter the extra money himself.

91. He said that TM and her daughter would speak in Russian in front of him, despite his request for them to use English. He felt he was treated just as a source of money and that TM was pushing her citizenship.

92. He denied threatening TM with the guns or the bayonet. He said he was proud of the weapons and showed them to her in that context.

93. In cross-examination, he admitted that he was prone to anger but denied ever shouting at TM. He admitted knowing about Russian women seeking to use Australian men to gain citizenship in Australia and that he knew of that since May 2003. Despite this, he pressed the Department to let TM come to Australia.

94. He denied swearing at TM and denied using the word "fuck". He denied using the expression "fat bitch" towards women but had to concede that he had, in fact, used the expression "stupid lazy bitch" in a document sent to the Immigration Department.

95. He said he initially tried to disabuse TM of her notion that he was a Vietnam Veteran. He implied that he just stopped denying it.

96. He was also shown a curriculum vitae which was downloaded from his computer. Although it was entitled "Personal Particulars" and his name appeared on it, the details were not his. He suggested that a friend had given it to him to use as a template and he denied preparing it.

97. He said that he had discussed with a person the deportation of TM and her daughter, but that it should not occur until the latter had finished her Year 12 studies.

98. He said that he put money into TM's bank account, $100 per week, but that she did not have to use it for clothing, food or the house mortgage. He accepted that he was not always able to put in $100; sometimes it was less, but sometimes a little more. The last bank transfer shown in a document he produced, however, was in early June.

99. He was referred to a document which he had prepared in the process of obtaining a visa for TM. In it, there was a reference to bullet wounds he received in his hands. It appears that this document may have been prepared by TM but that he submitted it to the Department without correcting that reference which he said was false.

100. CM's mother gave evidence. She stated that she had heard her son swear but not use the word "fuck". She stated that she had never seen CM walk around the house with his penis exposed or say "Would you like to cook this sausage?" She confirmed that he did not serve in Vietnam and had not discussed such service with TM in her presence.

101. A customer for whom CM was doing renovations was also called but gave no evidence relevant to my determination.

102. A friend of CM gave evidence. She had known CM for about six years but had only met TM once. She exchanged some emails with TM but said that nothing was mentioned in them about unhappiness in the marriage.

103. A neighbour of the Ms also gave evidence. She said that she had known CM for ten years, but had seen, but did not know, TM She said she had not heard any loud voices from the M's flat. She said she had never seen CM walking around with his penis exposed or ever say "Do you want to cook this sausage?" She said she had heard him use the work "fuck" in response to her, telling her a joke or she having used the word.

104. Another friend of CM's gave evidence. She had known him for nine years. She knew of his efforts to get TM to Australia. She had met Mr and Mrs M on a number of occasions. She said she had no conversations with TM where she expressed "dissatisfaction with" CM. She did recall a conversation where CM said that TM had, after six to eight weeks after her arrival, pressured him about buying a bigger house. She also said she had heard CM swear and use the word "fuck" but in the context of quoting what someone had said. She had not heard him use it as an expletive.

105. She said CM's attitude to women was "chivalrous". She had never seen him walk around the house with his penis exposed or say "Do you want to cook this sausage?" She also said she had not heard him speak of anyone in a belittling way.

106. In cross-examination she said she had only had two conversations with TM when CM was around and both were in the first couple of months after her arrival.

107. A housemate of CM gave evidence. She now lives in the spare room in CM's house. She said she had never seen CM walk around the house with his penis exposed or say "Do you want to cook this sausage?" She said he had never abused her. She had seen him upset, but he did not slam the door or scream. She described him as easy going and generous with a sense of humour.

108. The final witness was a computer expert. His evidence went to the issue of the serious allegations made by TM's daughter and so I do not need to detail his evidence, except to say that it cast doubt on the events described by her.

109. The evidence of the witnesses called by CM was generally somewhat supportive of his evidence but only marginally. For example, the evidence of his mother that he did not use the word "fuck" was inconsistent with other witnesses who had heard him use it. Similarly, the evidence of the neighbour not hearing shouting was unhelpful in the absence of any information about the physical relationship between the two residences. The relationships of the other witnesses with CM were quite different from those of TM and her daughter.

110. In the Magistrates Court, both counsel filed detailed written submissions with extensive reference to the transcript. I refer to the counsel for TM and her daughter as "TM's counsel". The Learned Magistrate had clearly read the submissions.

111. TM's counsel summarised the evidence and noted that TM was seeking assistance to deal with CM's behaviour in early 2006, well before TM could have in mind advantaging herself in respect of her immigration status in the way alleged. In any event, the tenor of such activity was directed to helping resolve the difficulties she saw the two of them experiencing.

112. The confabulation in respect of military service in Vietnam was, he submitted, strongly supported by the evidence of TM's acquaintance who was a Vietnam Veteran. TM's counsel also relied on his prior conviction and his demeanour in the witness box when questioned about it.

113. TM's counsel also noted that the production of the guns was surprising and the attitude corroborated by the accounts given to others. Similarly, the exposing of CM's penis is corroborated by accounts given to another witness well before any challenge to TM's immigration status had been made. The same applies to the shouting and abuse.

114. He submitted that the fact that TM left on 25 August 2006 and went to a refuge was corroborative of the violence the night before. He also said the events were not corroborative of CM's version. He noted that CM's statement to TM on 24 August 2006, that he had withdrawn his sponsorship of TM and her daughter, was never raised with the worker whose assistance she sought at the Migrant Resource Centre the next day when she had every reason to do so, especially if his report of her reaction to it was correct.

115. The submissions of TM's counsel in relation to TM's daughter were to a similar effect and noted the abusive approach to her by CM, though challenged in cross-examination. The court was urged to consider these in the context of the abusive behaviour towards TM.

116. Reliance was placed on TM's daughter's demeanour in the witness box and her reticence about making the serious allegations she did make.

117. CM's counsel challenged the applicants' case on the basis that they could not establish that it was more probable than not that the conduct occurred. His first challenge was to the credit of TM's daughter. He submitted that she should not be believed because of her demeanour in the witness box (her evidence given "as if ... rehearsing for a play ... she had learned her lines poorly"), neglect of details or inexact details, "failure to come up to proof" (differences between her evidence and her police statement, claimed differences between her evidence in chief and in cross-examination and the computer evidence which conflicted with her evidence).

... that [TM] is not creditworthy. The main reason is that she is closely aligned with her daughter and stands to benefit if her daughter is successful in obtaining a Domestic Violence Order. The benefit is that if her daughter as a member of her family unit has suffered domestic violence committed by the respondent who is the sponsoring spouse for immigration purposes she can obtain the right to remain in Australia (the respondent having withdrawn his sponsorship of her to Australia): see Migration Regulation 1994 Schedule 2 Paragraph 100.221(4).

119. Later, CM's counsel submitted that "little insight can be gained into TM's creditworthiness". He then made specific comparisons between TM and CM in the witness box, describing her evidence as venal and judgmental (no food in the house when she arrived), references to money and lack of money, a person who likes to drink coffee outside the house, a small inconsistency (where her evidence about what happened when CM grabbed her wrist on 24 August was confusing) and not coming up to proof (on a minor discrepancy in the words she alleged CM used when showing her the guns). Heavy reliance was placed on the demeanour of both CM and TM, as well as of TM's daughter, and a comparison of their presentation when giving evidence.

120. CM's counsel submitted that attempts to discredit CM's evidence had failed, referring to the prior conviction, his denial of the use of "stupid bitch" and the curriculum vitae.

121. The Learned Magistrate reserved his decision and delivered written reasons on 4 May 2007. They were neither extensive nor elaborate. That, in my view, was not necessary.

122. It was clear that his Honour had carefully read and considered the written submissions of counsel. His Honour set out the background to the marriage and summarised TM's evidence. In the course of doing so, his Honour noted CM's express denials of the allegations made against him.

123. His Honour then considered the challenges that CM made to TM's evidence as to the allegation that he had suggested that he was a veteran of the Vietnam War. He gave cogent reasons for rejecting that denial because of the way in which TM had pursued the assistance she had sought for him as a result of her belief.

124. His Honour further considered the challenge that CM made to TM's evidence that he had been the victim of a conspiracy by TM and her daughter to make false allegations so as to bolster her immigration position. He assessed TM's character and the impression she had made upon him. He assessed the corroborative evidence and concluded that this evidence was not consistent with the allegation of a conspiracy.

125. His Honour then considered the case for TM's daughter. He noted that there was no corroboration of the serious allegations made by her and referred to the difficulties exposed of the timing of them, a clear reference to the comprehensive evidence of the computer expert. He came to the conclusion that he could not be satisfied that those allegations had been made out. No doubt, as he was bound to do, his Honour applied the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (at 362), especially when dealing with these allegations. His Honour did, however, express himself to be satisfied that there was evidence which he accepted that CM had behaved in an offensive and harassing manner towards her.

126. As a result, his Honour made the orders sought.

127. I have set out the grounds of appeal above. I do not need to repeat them. I also had comprehensive written submissions from counsel and heard oral submissions.

128. I shall deal with the grounds of appeal, as reformulated by the appellant's counsel (CM's counsel) seriatim.

(i) Failure to consider the matters in s 40 of the Protection Orders Act

129. This ground encompasses what is expressed in the reformulated grounds (a), (b) and (c) above (at [21]).

130. The terms of s 40 of the Protection Orders Act are set out above (at [29]). I do not need to repeat them. I have also set out the effect that I say the section has (at [37]). I have also set out the approach that I consider should be taken (at [38]).

131. The gravamen of this complaint seemed to be that since the parties had now separated and had been separated for nine months, there was no need for an order because of the unlikelihood of future inappropriate conduct.

132. This is based on the obligation under s 41 (see [29] above) to consider at least the objects and principles of the Act which refer to the "prevention] of violence" (s 5(a)) and "the need to ensure ... [protect[ion] from domestic violence" (s 6(1)(a)) and the like, together with "any hardship to the respondent" (s 41(1)(d)).

133. It was accepted that likely future conduct was not a jurisdictional issue with domestic violence orders but was "central to the exercise of the discretion". There are, however, two answers to this, one legal and one evidentiary.

134. As to the first, the legal position is not quite as it is submitted. To take the approach submitted by the appellant's counsel would converge the clear legislative distinction between domestic violence orders and personal protection orders to oblivion. It is clear from the difference between the two, quite precisely set out in the legislation, together with the explanation in the Explanatory Memorandum and in the report, Domestic Violence, that there is no basis for saying that future conduct is central to the exercise of the discretion in relation to domestic violence orders.

135. It seems to me that the legislature accepts that the very nature of a domestic relationship means that there is likely to be some kind of ongoing interaction between the parties to it, even when the relationship has irretrievably broken down at least for a time. For example, there may be matters in relation to property, custody of children and the like that need resolution even when the relationship has come to an end. In addition, the very nature of the relationship means that there are often more volatile consequences of its breakdown.

136. Bearing in mind that the protection is not limited to physical contact but includes harassment and offensive behaviour, such behaviour can occur even when the parties are not living together or even in the same town.

137. That does not mean, however, that proof of the commission of a domestic violence offence automatically requires an order to be made, but there must be some clear evidence to counter the legislative implication that in such a special relationship there is, ordinarily, an unacceptable risk of domestic violence in the future where proved domestic violence has occurred. Of course, the extent and seriousness of the violence would be relevant; a one-off incident may be different to the ongoing abusive and angry interaction of which there was evidence here.

138. On this point, there was a lack of evidence. CM gave no evidence that could have satisfied the Learned Magistrate that there was no reasonable likelihood of domestic violence in the future. Indeed, his evidence was that none had taken place, a position his Honour rejected. TM expressed ongoing concern. She did say that there had been no contact since she had left the home, but that was in the context of the interim orders and the pendency of these proceedings. On the evidence before his Honour, there was, in my opinion, no material that would justify refusal of the orders.

139. It is accepted that such orders can be restrictive and an interference with the liberty of CM. That position is clear from the decision of Higgins CJ in SI bhnf CC v KS bhnf IS [2005] ACTSC 125; (2005) 195 FLR 151 (at [108]) but, as his Honour there observed, such interference "will be human rights compliant if reasonably proportionate to the protection ... from harassment". Here, however, the terms of the orders did not seem very restrictive and there was no evidence of particular prejudice to CM, though, of course, he had no onus to discharge about that.

141. It is now accepted that the giving of reasons is an important incident of the exercise of the judicial function. As Meagher JA said in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (at 441-2):

It is well-settled that a judge or magistrate at first instance in particular cases has an obligation to provide reasons for the judgment given: Pettitt v Dunkley [1971] 1 NSWLR 376. That obligation arises as a matter of judicial duty: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 ...

A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost: Clutha Ltd v Risby (Court of Appeal, 26 March 1996, unreported)."

142. As Buchanan JA (with whom Phillips and Charles JJA agreed on this point) said in Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246 (at 270-1; [56]):

There is no general principle that a court's failure to give reasons is an error of law which vitiates the court's decision. That is not to deny the importance of the giving of reasons to the process of judicial decision-making. Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal, although even where a right of appeal exists, the nature of the decision and the circumstances of the case may require no more than a brief ruling and, where an appeal is de novo, an absence of reasons for the decision below can have no effect. Moreover, the provision of reasons for decisions affecting persons' rights and liabilities is usually desirable, serving objectives such as candour in decision-making, the accountability of decision-makers, the reconciliation of parties to the results of litigation and promoting the drawing of conclusions which are rational and soundly based on legal principles. Nevertheless, the general desirability of reasons, and in certain cases their necessity, in my view are not sufficient considerations to found an all-embracing principle that failure to state reasons or adequate reasons for a judicial decision constitutes an error of law vitiating the decision.

(Footnotes omitted).

143. See also Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 278-9); Mifsud v Campbell (1991) 21 NSWLR 725.

144. The nature of the reasons to be given has been the subject of judicial consideration. In Beale v Government Insurance Office, Meagher JA said (at 443) that whilst no "mechanical formula" could be given, there were three fundamental elements:

First, a judge should refer to relevant evidence ...

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached ...

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found.

145. It is, however, not necessary for a judgment to be a detailed exposition of the minutiae of every aspect of evidence adduced in a particular case; a judicial officer is not required to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. As the Court of Appeal in New South Wales said in Stoker v Adecco Gemvale Constructions Pty Ltd and Anor [2004] NSWCA 449 (at [41]):

It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.

146. Although this was not an ex tempore decision, it was nevertheless a decision from a busy Magistrates Court and the caution expressed by Kirby P (as his Honour then was) in Acuthan v Coates (1986) 6 NSWLR 472 (at 478-479) is apposite:

... It is also to fall into the error of examining this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates. When that substance is examined, it is sufficiently clear that the magistrate held the correct tests in mind and properly approached the exercise of the discretion reposed in him by the section.

147. See also Tez v Longley [2004] NSWSC 74; (2004) 142 A Crim R 122 (at 128-131); Winwood v Burk [2002] TASSC 54 (at [16]).

148. It is important to evaluate the Learned Magistrate's reasons in the context of the hearing. That is to say, the issues are those presented for consideration. In this context, the written submissions were critical. As Owen J said, though in a slightly different context, in Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435 (at 438):

The respondent contends that the relatively brief reasons for sentence by the learned magistrate should be read in light of the prosecuting statement of facts, the plea of mitigation made by counsel for the appellant and the pressures within which the Court of Petty Sessions operates. I have no difficulty in accepting that contention. I am also fully aware and have taken into account the pressure under which the Court of Petty Sessions operates. The magistrates must deal with a large number of matters. The same degree of thoroughness and depth in giving reasons could not be expected in those circumstances as might be the case in some other courts where additional time for consideration and preparation is available.

149. See also Stoker v Adecco Gemvale Constructions Pty Ltd and Anor (at [66]) and Alice Springs Town Council v Mpweteyerre Aboriginal Corporation and Ors (1997) 139 FLR 236 (at 261-2).

150. That this was a reserved decision does not make the comments about busy courts irrelevant though obviously less directly applicable. The busy-ness of a court means that there is still less time to read, cogitate and write decisions.

151. The issue at the hearing as put by both counsel was essentially one of credit and, in particular, the credit of CM which both counsel put squarely in issue.

152. While CM's counsel challenged TM's credit, it really was only on a limited basis. The first was that somehow by supporting her daughter, whose credit was undermined by the computer evidence, she was not to be believed. That is an odd submission and really does not address the issue of her own creditworthiness. It would be strange if a mother did not support her daughter, but that was really not the gravamen of her evidence. The submission was, however, directed principally at the relationship between herself and CM.

153. The other basis was her demeanour. Although the Learned Magistrate did not use a "magic" formula, such as "I found TM to be a believable witness" or the like, his Honour made it abundantly clear that he accepted her evidence. He directly addressed her presentation and demeanour and in the very terms of the challenge made by CM's counsel, namely her intelligence. He clearly indicated his acceptance of her determination, initially at least, to make the marriage work, quite contrary to the submissions made on TM's behalf.

154. A fair reading of his Honour's decision makes it clear that he accepted TM's evidence and why he did so. That he concentrated on the evidence of CM and made the finding that he was not able to believe him was because both counsel put that as a major issue. His Honour was doing what he was bound to do, namely to address the issues that the parties had identified for determination. His Honour did not reverse the onus of proof or require CM to prove anything, other than if he wished to produce evidence to show that TM's evidence could not be accepted on the balance of probabilities. One way to do this, the way the parties suggested, was by evaluating whether CM's evidence could, by its creditworthiness, be such as to undermine the acceptability of TM's so that her evidence lacked probative probability. The challenge to it by CM's counsel were otherwise of a minor nature and of little consequence, leaving it with prima facie acceptability.

155. In my view, it is clear why his Honour came to the view he did.

156. I pause to note that there were in CM's evidence a number of discrepancies which would have fully justified the findings of the Learned Magistrate in addition to the ones on which he relied. In addition, both counsel put a good deal of emphasis on the demeanour of the witnesses, a matter which is peculiarly the province of the Learned Magistrate.

(iii) No findings of fact that CM had committed domestic violence against TM's daughter

158. This was a slightly complicated matter, for the appellant and respondent approached it in different ways.

159. I read the Learned Magistrate's reasons as finding that he did not accept that, without corroboration, TM's daughter's evidence of the more serious allegation against CM could be accepted. Not only was there no corroboration of the serious allegations, as his Honour noted, but there were timing difficulties with the version of events of which TM's daughter gave evidence. That led his Honour not to be satisfied of her evidence as to this matter on the balance of probabilities.

160. CM's counsel challenged the evidence of TM's daughter about the serious incident; all the challenge was to that part of her evidence and it was a comprehensive, detailed challenge, which was ultimately successful. It did not, however, suggest a direct basis for challenge to any other of her evidence. The submissions were, however, that:

... she cannot be believed when she speaks of any bad behaviour she attributes to the respondent including the respondent shouting and screaming at her Mum on 24 August 2006, making belittling comments and offensive comments to both her and her mother, the exposure of his penis to her mother in her presence accompanied by the words "Would you like to cook this sausage" and the threat to kill her and her mother on 23 August 2006.

161. It is, of course, true that a court may reject some of a witness' evidence and accept some other part of it. Some reason needs to be given, however, for such an approach.

162. Counsel for TM submitted that her evidence "falls to be considered on issues of credit" with which counsel for CM then squarely joined issue.

163. By itself, acceptance of part of her evidence in the face of rejection of another part would require explanation in his Honour's reasons for decision and I am not able to say I can find it there.

164. The one issue that neither counsel addressed, however, was that TM gave evidence about CM exposing his penis in front of her and her daughter with the comment about "cooking the sausage". Accepting, as his Honour did, that this event occurred, it would have been sufficient to justify the order made and it seems likely that it was such as this that his Honour was referring in the reasons for decision. TM's daughter gave direct evidence of that event and was not cross-examined about it or challenged about it happening. TM was, of course, challenged and there was some slight evidence led to suggest it could not happen. His Honour, however, accepted TM's evidence about that.

165. In the circumstances, however, I do not accept that the Learned Magistrate made an error in accepting that evidence which had been given without specific challenge by TM's daughter and which was given also by TM whom his Honour accepted as a witness of truth. This certainly constituted, as found by the Learned Magistrate, behaviour of an offensive and harassing kind.

166. CM's counsel submitted that there was no evidence of domestic violence committed towards TM's daughter as distinct from such conduct directed towards TM. I consider that the exposure alleged was relevantly domestic violence. As can be seen from s 9 (see [30] above), only one paragraph refers to the conduct "directed at" a relevant person (s 9(1)(c)) and that is distinct from conduct referred to in another paragraph which "is harassing or offensive" (s 9(1)(e)) without the same limitation.

167. TM's counsel made a different point, however, that the domestic violence in respect of TM, which his Honour found proved on the balance of probabilities, amounted also to domestic violence in respect of TM's daughter because TM was a relevant person so far as her daughter is concerned. That is to say, domestic violence against TM (who is a relevant person) amounts to domestic violence in respect of TM's daughter. See s 9(1)(c) and the dictionary to the Protection Orders Act. That is correct at law if the legislation is read carefully.

168. The problem with this approach, however, is that it is not the way the case was argued before the Learned Magistrate. It might justify an order had I decided to set aside the order made by the Learned Magistrate, but I have not decided to do so. I do not accept this approach as being applicable here.

169. The consequence of all this is that this ground is not made out.

170. CM's counsel finally submitted that under the Protection Orders Act, the interim orders made on 31 August 2006 had expired well before the hearing on 26 February 2007.

171. Under s 58 of the Protection Orders Act, an interim order can only be extended until but not more than sixteen weeks after it was made. Under s 59(2) of the Act, a further interim order may be made, but not as a consent order (s 59(3)). There have, however, to be special or exceptional circumstances before doing so. Clearly, the legislation mandates that interim orders should be in truth just that, interim, and that final orders should be made promptly.

172. Whether that is so or not, CM's counsel submitted that as from 21 December 2006 (the end of the sixteen weeks from 31 August 2006) there was no order in force and that CM was not subject to any restraint from approaching or contacting either TM or her daughter.

173. It was put to TM's daughter in cross-examination that CM did not believe that since 13 January 2007 (a date not better explained) he was bound by the order. CM, however, did not give evidence about this. The question put to TM's daughter, of course, is not evidence about that matter, unless adopted by her, and it was not so adopted.

174. The point was made, however, that, in the light of non-contact since August, and during a period when there was no order in force, this constituted a good reason for not making the final orders. There was, it was submitted, significant delay with no order in place and yet still no contact, much less further domestic violence.

175. It may be true that there was a period when no interim order was in force but I do not need to make a finding about it. I had no evidence of CM's belief and, in any event, litigation seeking final protection orders was still pending and this, in itself, would be a powerful factor militating against any such contact.

176. The delay and absence of contact is a relevant factor but not overwhelming and for the reasons earlier given, there is a strong legislative indication that when domestic violence has been committed an order should be made unless the court can be satisfied that there is no real likelihood of circumstances such as further contact that might lead to further violence.

177. I cannot say that his Honour erred, he having seen the parties and assessed the situation. While I may not have approached this issue in the same way as did the Learned Magistrate, that is not sufficient to overturn the decision.

179. In the circumstances, I propose to dismiss the appeal. I shall hear the parties as to any other orders that should be made.

I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.