CPS v CNJ [2014] QDC 47

1. that the making of the order was unsafe and unsatisfactory;

[4] The appeal grounds were more specifically articulated in the appellant's Outline of Submissions as follows:-

"2. The defendant (sic) feels aggrieved for the reason that the Magistrate erred in:

(a) finding that the respondent had repeatedly asked the appellant to desist and stop contacting her;

(b) finding that that (sic) 'continuous contact and comments' made by the appellant were capable of constituting domestic violence in the circumstances by amounting to harassment;

(c) his unlawful finding that by taking up with the respondent's ex-partner, that was a clearly provocative step that he has taken after the end of the relationship;

(i) due to a conjunction of the findings given at paragraphs 2(b) and (c) above; and

(ii) in being satisfied that a protection order was necessary to protect the respondent from harassment;

(iii) for the stated unlawful reason that had it not been for the steps taken by the appellant to seek out the respondent's 'partner' and to strike up a relationship with him, he would have perhaps not felt it either necessary or desirable to make the order."

[5] The respondent filed an application for a protection order on 19 October 2012 and was granted a temporary protection order on 19 November 2012. The matter then came for trial before the learned magistrate at Beenleigh on 16 January 2013.

[6] The learned magistrate had before him a detailed affidavit of the respondent filed 11 December 2012 and an affidavit of the appellant dated 21 December 2012, which in turn annexed a series of affidavits of other witnesses.

[7] The respondent chose not to cross-examine the appellant on his affidavit material.[1] The respondent was cross-examined by the appellant at some length.

[8] "Domestic violence" is defined in DFVPA s 8(1) as follows:

"Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that -

(f) in any other way controls or dominates the second person and causes the second person to fear for the second person's safety or wellbeing or that of someone else."

[9] The meaning of "domestic violence" is further amplified in DFVPA ss 8(2)-(5).

[10] The meaning of "couple relationship" is set out at length in DFVPA s 18.

[11] In order to make a protection order the court must be satisfied that:

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

(b) the respondent has committed domestic violence against the aggrieved; and

(c) the protection order is necessary or desirable to protect the aggrieved from domestic violence.[2]

[12] As McGill DCJ held in SCJ v ELT [2011] QDC 100 para [12]:

"... the onus is on the person seeking an order to prove that the requirements have been made out... ."

[13] The learned magistrate found, uncontroversially, that the appellant and the respondent had been in a "relationship" from May until late September or early October 2012.[3]

"Upon reading all of the material, I formed and retain a very firm belief that both of the parties have lived out this episode as though it was a soap opera, and have behaved in often puerile, immature and childish ways. That is unfortunate, but regrettably not unusual. If either of the parties had taken an approach that one would have thought commensurate with their age and maturity, this situation would not have resulted."[4]

[15] The learned magistrate then identified the behaviour asserted by the respondent as amounting to "domestic violence", as "repeated early contact [amounting] to harassment, that complaints about property amounted to harassment, and taking up with [the respondent's] ex-partner, constituted harassment because of the continuing poor relationship that [the respondent] has with that previous partner."[5]

[16] The learned magistrate then went on to note that:

"Often [the respondent] was giving as good as she got in respect of the acrimonious comments that were being made. But, the only person who was attempting to bring this pathetic situation to an end was [the respondent] by repeatedly asking [the appellant] to desist and stop contacting her."[6]

"... on the material that the continuous contact and comments made by [the appellant] were capable of constituting domestic violence in the circumstances by amounting to harassment. But, I have hesitated in finding that [the respondent] has actually been harassed for the reasons that I have already mentioned.

I am, however, now ultimately satisfied that the conduct of [the appellant] has amounted to harassment, by a conjunction of the messages that has (sic) been sent, the comments that have been made, and the clearly provocative step that [the appellant] has taken after the end of the relationship, to seek out the earlier partner and strike up a relationship with him."[7]

[18] I am not persuaded (contrary to the submissions made on behalf of the appellant) that the learned magistrate erred in concluding that "continuous contact and comments" made by the appellant were capable of constituting domestic violence.

[19] The definition of "domestic violence" includes behaviour that is "emotionally or psychologically abusive"[8] and/or "is threatening"[9] and/or "coercive"[10] or "in any other way controls or dominates the second person and causes the second person to fear for the second person's safety or wellbeing of that of someone else".[11] It was open to the learned magistrate to conclude, on the basis of the respondent's sworn affidavit[12] and cross examination,[13] that the appellant's conduct, verbal and by text, fell within one or more of the categories in DFVPA s 8(1).

[20] I am therefore not persuaded that the learned magistrate fell into error in concluding that the appellant's conduct subsequent to the end of the relationship was harassment which amounted to "domestic violence".

[21] Given my conclusion the learned magistrate was appropriately satisfied that a relevant relationship existed between the respondent and the appellant,[14] and that the appellant had "committed domestic violence" against the respondent,[15] the final issue remains whether then "the protection order [was] necessary or desirable to protect [the respondent] from domestic violence."[16]

[22] In that respect, the learned magistrate clearly indicated that it was only the fact that the appellant had taken steps to seek out the respondent's former partner and strike up a relationship with that former partner, which satisfied the learned magistrate that it was "necessary or desirable in the circumstance to make an order".[17] The appellant's decision to take up with the respondent's ex-partner, G, is curious, and his explanation for initiating that connection is less than convincing.[18]

[23] However, I am not persuaded, on balance, that the actions of the appellant in seeking out and striking up a relationship with the respondent's ex-partner, was sufficient to have persuaded the learned magistrate that a protection order was "necessary or desirable to protect [the respondent] from domestic violence"[19] in the future. Such a conclusion, in my view, was entirely speculative, and was not supported on the evidence.

[24] On an appeal by way of rehearing, it is necessary for me as the appellate judicial officer to "make up my own mind, having due regard to the advantages the magistrate had in seeing and hearing the witnesses."[20] As outlined above, I consider the learned magistrate fell into error in concluding that the appellant's friendship with G raised such a risk of future domestic violence that it was necessary to make an order for the respondent to be protected. I am therefore not persuaded, on the basis of that relationship with G, that the domestic violence order should have been made.

2. Order of the Magistrate of 16 January 2013 set aside.

3. Application for a domestic violence order dismissed.

[2] DFVPA s 37(1).

[8] DFVPA s 8(1)(b).

[9] DFVPA s 8(1)(d).

[10] DFVPA s 8(1)(e).

[11] DFVPA s 8(1)(f).

[12] Affidavit of CNJ sworn 5 Nov, 2012.

[14] DFVPA s 37(1)(a).

[15] DFVPA s 37(1)(b)

[16] DFVPA s 37(1)(c).

[19] DFVPA s 37(1)(c).

[20] SCJ v ELT [2011] QDC 100 para [24]; Parsons v Raby [2007] QCA 98.