Queensland Police Service v OMD [2026] QMC 2

FAMILY LAW AND CHILD WELFARE - THE FAMILY LAW ACT AND RELATED LEGISLATION - CHILDREN - ORDERS FOR A CHILD TO SPEND TIME WITH OR COMMUNICATE WITH A PERSON (AND FORMER CONTACT ORDERS) - where correspondence within legal proceedings can be systems abuse and contravene Protection Order - where Family Law Act 1975 (Cth) recognises parties to proceedings may use those proceedings to harass other party - where Family Court processes did not mandate Defendant to communicate with Court or Expert Witness or Aggrieved in manner alleged - where parties must act in way consistent with overarching purpose for just resolution of disputes according to law as quickly, inexpensively and efficiently as possible - where Defendant required to comply with Family Court rules and guidelines - where Family Court rules and guidelines not inconsistent with Protection Order - where Family Court Orders not inconsistent with Protection Order - where shared parental responsibilities or their negotiation do not outweigh probative value of evidence of systems abuse

Domestic and Family Violence Protection Act 2012 (Qld), s 157D, s 159, Schedule

Evidence Act 1977 (Qld), s 103CA, s 103CB, s 130

Family Law Act 1975 (Cth), s 68P, s 68Q

Federal Circuit and Family Court of Australia Act 2021 (Cth), s 67, s 68

Barden v Barden (1921) SR (NSW) 588

Baron v Walsh [2014] WASCA 124

Bunning v Cross [1978] HCA 22; [1978] 141 CLR 54

R v Christie [1914] AC 545

R v Ireland [1970] HCA 21; (1970) 126 CLR 321

R v Lee [1950] HCA 25; (1950) 82 CLR 133

Rodgers v Rodgers (1964) 114 CLR 608

Verge v Devere Holdings Pty Ltd [2009] FCA 832; (2009) 258 ALR 464

Wendo v R [1963] HCA 19; (1963) 109 CLR 559

[1] The Queensland Police Service has charged the Defendant with five Contraventions of Domestic Violence Order:**

1. A Contravention between 3 October 2023 and 4 January 2024 of a Temporary Protection Order dated 14 September 2023;

2. A Contravention on 23 January 2024 of a Temporary Protection Order dated 14 September 2023;

3. A Contravention on 22 February 2024 of a Temporary Protection Order dated 23 January 2024;

4. A Contravention on 26 March 2024 of a Temporary Protection Order dated 11 March 2024; and

5. A Contravention on 3 April 2024 of a Temporary Protection Order dated 11 March 2024.

**[2] The alleged contraventions are communications sent by the Defendant to the Aggrieved while engaged in litigation about their children in the Federal Circuit and Family Court of Australia.[1]

[3] Each Temporary Protection Order requires the Defendant to be of good behaviour towards the Aggrieved and not commit domestic violence against her, with extra conditions. Both Temporary Protection Orders include an extra condition that:

The respondent must not contact or communicate with or attempt to contact or communicate with, or ask someone else other than a lawyer to contact or communicate with the aggrieved in any way. This includes contact or communication by telephone, text message, email and any internet or social messaging services.

Except when having contact with children in accordance with an order of a Court.[2]

[4] Because this Application relates to a domestic violence proceeding, the parties have been de-identified.[3]

[5] The Defence sought to exclude three categories of evidence for unfairness:**

(a) Correspondence sent by the Defendant to the Federal Circuit and Family Court of Australia where the Aggrieved was copied into that correspondence;[4]

(b) Correspondence sent by the Defendant to an Expert Witness where the Aggrieved was copied into that correspondence;[5] and

(c) Correspondence sent by the Defendant to the Independent Child Lawyer and the Aggrieved.[6]

**[6] The Courts have a general discretion to exclude evidence if in all the circumstances it would be unfair to admit the evidence.[7] The discretion includes excluding evidence where its prejudice to the Defendant outweighs its probative value.[8] At common law, the Defence must prove the evidence should be excluded on grounds of unfairness according to the civil standard of proof.[9]

[7] In exercising its discretion, the Court must weigh two competing public interests: bringing to conviction those who commit crimes; and protecting the individual from unlawful and unfair treatment.[10]

Can communications in Family Court proceedings be evidence of contravention of a Protection Order?

[8] Behaviour that could constitute domestic violence is neither sanctified nor sanctioned because it is done during in, or in perceived furtherance of, Family Court proceedings.

[9] The Family Law Act 1975 (Cth) recognises that parties to proceedings may use those proceedings to harass the other party. The proceedings themselves increase the risk of coercive control. An Aggrieved may feel intimidated by the other party using the proceedings under the guise that they 'just want to see their children'. Correspondence within the context of legal proceedings can therefore be systems abuse and contravene a Protection Order.

[10] This can include language that is reproachful or diminishing. Or the communication may be part of a broader pattern over time. The impacts may be intersecting and cumulative.[11] Would the communication cause the Aggrieved to fear the consequences of not fulfilling the Defendant's request or expectations?

Should the correspondence sent by the Defendant to the Federal Circuit and Family Court of Australia and to the Expert Witness and copied to the Aggrieved be excluded?

[11] The Defence submitted the 'Court correspondence' should be excluded because:**

(a) The Defendant was required to include the Aggrieved in the correspondence; and

(b) The correspondence forms part of his submission to the Court and therefore his comments about the Aggrieved are necessary for him to properly run his argument.

[13] The Defendant's communications with the Aggrieved had to comply with the Temporary Protection Orders. Neither the Court nor the Expert Witness solicited the Defendant's communications. He was not required to make them. He chose to. When making that choice, the Defendant had to consider whether the requirement of the Family Court to include the Aggrieved as the other party would contravene the Protection Orders.[12]

[14] This means that in deciding whether and how to communicate with the Family Court and the Expert Witness (and copied to the Aggrieved), the Defendant had to ensure any communications complied with Family Court rules and guidelines and the Temporary Protection Orders.

[15] The communications by the Defendant were multiple, occurring over a period of some six months. They include:**

(b) References to "burn this court down" and to "attack (the Aggrieved's) character and conduct without mercy"; and

(c) referring to the Aggrieved as "a liar and a bully", "sitting in the Machiavellian corner of the Dark Triad", and "criminally dishonest and nasty".[13]

**[16] Family Court rules and guidelines fetter communications by the parties in its proceedings. The Family Court processes did not mandate the Defendant to communicate with the Court, Expert Witness or the Aggrieved in the manner alleged. In Family Court proceedings, the parties must act in a way consistent with the overarching purpose for the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.[14]

[17] To further this purpose, any communication with the Court must be "necessary and appropriate" and at all times parties must communicate courteously with each other and with the Court.[15] The communications are not to be abusive, threatening, offensive, unnecessarily burdensome, scandalous or vexatious.[16] The Family Court rules and guidelines are not inconsistent with the condition of the Temporary Protection Orders for the Defendant to be of good behaviour towards the Aggrieved and not commit domestic violence against her.

[18] Recourse to legally available processes when used by a party with improper intent or purpose can be an abuse of process.[17] Systems abuse is a well-recognised form of domestic violence. The content, volume and cumulative effect[18] of the correspondence to the Court and to the Expert Witness in their Court-appointed role is relevant to systems abuse.

[19] The communications were not isolated. They continued over a period. They are on their face both indiscreet and intemperate. Not all were directed to the Aggrieved. But they can convey to her that the Defendant controls the dynamic - rather than the Courts. That is relevant to potential systems abuse. Whether or not it is systems abuse is relevant to whether the Defendant was not of good behaviour towards the Aggrieved.

[20] The Temporary Protection Orders do not allow communication with the Aggrieved other than having contact with children in accordance with an Order of a Court.[19]

[21] The Defendant and the Aggrieved had an existing Order of the Federal Circuit and Family Court of Australia that relevantly provides:

6. The father is to have no communication with the mother or the children except as specifically provided in these orders.

7. The children spend time with the father supervised by... [details omitted]... for... [details omitted].

12. The father must not communicate with the mother by letter, email, sms (sic) message or social media except in the case of an emergency when the communication must relate strictly to the children and occur by SMS message.[20]

[22] Family Court Orders prevail over inconsistent Protection Orders.[21] However, the Court should not diminish the standard of protection given by a Temporary Protection Order for the purpose of facilitating consistency with a Family Court order. The Family Court Orders are not inconsistent with the Temporary Protection Orders. The Family Court Orders do not allow communication with the Aggrieved other than having contact with children in accordance with an Order of a Court. The Family Court Orders only allow contact with the Aggrieved relating to the children in an emergency.

[23] The 'Court correspondence' is correspondence to the Aggrieved via the Court after the existing Family Court Order.[22] The 'Expert Witness correspondence' is correspondence to the Aggrieved via an Expert Witness.[23] Both are evidence of contact other than with children in accordance with an Order of a Court.[24] Both are evidence of contact other than in an emergency relating strictly to the children.

[24] The Temporary Protection Orders do not provide an exception for the Defendant to have contact with the Aggrieved when appearing personally before a Court or Tribunal. The Defendant's involvement in Family Court proceedings does not obviate or exempt him from compliance with the Temporary Protection Orders.

[25] The 'Court correspondence' and the 'Expert Witness correspondence' are therefore relevant to, and probative of, facts in issue including:**

(a) Whether the Defendant used communications that was not of good behaviour towards the Aggrieved;

(b) Whether the Defendant by copying the Aggrieved into communications with the Court and an Expert Witness, the Defendant had contact with the Aggrieved other than contact with children in accordance with an Order of a Court; and

(c) Whether those communications therefore contravened a Temporary Protection Order naming the Aggrieved.

**[26] It is not unfair to admit those communications into evidence when nothing in the Family Court processes required the Defendant to communicate with the Aggrieved in the manner alleged.

[27] The 'Court correspondence' and 'Expert Witness correspondence' are therefore admissible[25] and not to be excluded for unfairness at trial.

Should the correspondence sent by the Defendant to the Independent Child Lawyer and the Aggrieved be excluded?

[28] The Defence submitted that the 'Direct Communication' sent to the Aggrieved and Independent Child Lawyer was an attempt at negotiation and effectively 'without prejudice'.[26]

[30] Although the communication seeks access to the children during the Family Court proceedings, shared parental responsibilities or their negotiation do not outweigh the probative value of the communication as evidence of systems abuse - regardless of whether it could otherwise be categorised as 'without prejudice'.

[31] This is because the privilege attaching to 'without prejudice' communication is not absolute.[27] It may not apply where it might defeat other public policy interests.[28] The public policy here is the prevention of systems abuse in a domestic violence setting. Both the Legislature and the Courts recognise systems abuse as a form of domestic violence. Whether the communication rises to this level is a question of fact for a summary hearing upon consideration of all the evidence.

[32] The Temporary Protection Orders do not allow communication with the Aggrieved other than having contact with children in accordance with an Order of a Court.[29] The Family Court Orders do not allow communication with the Aggrieved other than having contact with children in accordance with an Order of a Court. The Family Court Orders only allow contact with the Aggrieved relating to the children in an emergency.

[33] The 'Direct Communication' is an email to the Aggrieved directly and via the Independent Child Lawyer. It relates to the Defendant wanting to see the children. It is evidence of contact other than with children in accordance with an Order of a Court.[30] It is evidence of contact other than in an emergency relating strictly to the children.

[34] The Temporary Protection Orders do not provide an exception for the Defendant to have contact with the Aggrieved when appearing personally before a Court or Tribunal. The Defendant's involvement in Family Court proceedings does not obviate or exempt him from compliance with the Temporary Protection Orders.

[35] The 'Direct Communication' is therefore relevant to, and probative of, facts in issue including:**

(a) Whether the Defendant used a communication that was not of good behaviour towards the Aggrieved;

(b) Whether in communicating with the Aggrieved and the Independent Child Lawyer, the Defendant had contact with the Aggrieved other than contact with children in accordance with an Order of a Court; and

(c) Whether that communication therefore contravened a Temporary Protection Order naming the Aggrieved.

**[36] It is not unfair to admit the 'Direct communication' into evidence. The public policy of unveiling domestic violence by systems abuse outweighs any claim to privilege.

[37] The 'Direct Communication' is therefore admissible[31] and not to be excluded for unfairness at trial.

[38] The appropriate Order is that the Application To Exclude Evidence is dismissed.**

[2] Temporary Protection Orders dated 14 September 2023 and 11 March 2024 (Underlining added).

[3] Domestic and Family Violence Protection Act 2012 (Qld), s 157D, s 159, Schedule definition of 'proceeding under this Act'.

[4] Outline of Argument for the Prosecution filed 18 February 2026, Attachments 4, 5.

[5] Outline of Argument for the Prosecution filed 18 February 2026, Attachment 4.

[6] Outline of Argument for the Prosecution filed 18 February 2026, Attachments 4, 5.

[7] Evidence Act 1977 (Qld), s 130.

[8] R v Christie [1914] AC 545; Bunning v Cross [1978] HCA 22; [1978] 141 CLR 54.

[9] R v Lee [1950] HCA 25; (1950) 82 CLR 133; Wendo v R [1963] HCA 19; (1963) 109 CLR 559; R v Hall [1986] 1QdR 462.

[10] R v Ireland [1970] HCA 21; (1970) 126 CLR 321.

[11] Evidence Act 1977 (Qld), s 103CA(1)(b).

[12] Federal Circuit and Family Court of Australia Act 2021 (Cth), s 67, s 68; Federal Circuit and Family Court of Australia - Family Law Case Management Central Practice Direction_;_ Federal Circuit and Family Court of Australia - Guide To Communicating With The Courts (as at May 2025).

[13] Outline of Argument for the Prosecution filed 18 February 2026, Attachments 4, 5.

[14] Federal Circuit and Family Court of Australia Act 2021 (Cth), s 67, s 68.

[15] Federal Circuit and Family Court of Australia - Guide To Communicating With The Courts (as at May 2025), paragraphs 5, 11, 15, 20.

[16] Federal Circuit and Family Court of Australia - Guide To Communicating With The Courts (as at May 2025), paragraphs 20, 21.

[17] Baron v Walsh [2014] WASCA 124.

[18] Evidence Act 1977 (Qld), s 103CA(1)(b).

[20] Federal Circuit and Family Court of Australia (Division 2) Order dated 13 July 2023; Underlining added.

[21] Family Law Act 1975 (Cth), s 68P, s 68Q.

[25] Evidence Act 1977 (Qld), s 103CB.

[26] Although the correspondence was not labelled 'without prejudice', the privilege may still be inferred from surrounding circumstances. It is sufficient if the parties' words and conduct show they intended "off-the-record" negotiations: Rodgers v Rodgers (1964) 114 CLR 608.

[27] Verge v Devere Holdings Pty Ltd [2009] FCA 832; (2009) 258 ALR 464.

[28] Verge v Devere Holdings Pty Ltd [2009] FCA 832; (2009) 258 ALR 464, [5]; Barden v Barden (1921) SR (NSW) 588.

[30] Federal Circuit and Family Court of Australia (Division 2) Order dated 13 July 2023, paragraphs 6, 7, 12; Underlining added.

[31] Evidence Act 1977 (Qld), s 103CB.