The submissions on appeal about the critical issue
49 The appellant argued on appeal that the primary judge's reasons reveal an error in not finding that the Tribunal failed to consider whether her former partner was her family member from the time of the threatening text onwards, which meant that the Tribunal failed to carry out its statutory task and acted unreasonably.
50 The gist of the two grounds of appeal, which were in substance the same as those contended for below, was that the Tribunal assumed, and did not consider and explain why, JA was a member of the appellant's family within the meaning of Direction 90, and that it was necessary to do so in circumstances where the marriage between them had broken down, they lived in different houses, they had "re-partnered" and where, it was said to be inferred, they were not financially dependent. As Mr HPT Bevan SC, who appeared with Mr SZ Stagliorio of counsel, put it, accepting that the "family" is an ordinary English word, "that still doesn't answer the question, because it just means … that … the Tribunal … has to find as a matter of fact and engage upon who is or is not the members of the family". Mr Bevan agreed with the proposition that that was the critical issue for the purposes of the appeal.
51 As Mr Bevan put it:
[B]ecause of the … the facts that tended against it and show - particularly the marriage breakdown; the ending of relationship; the dissolution of the marriage, whether formally by decree at a time that we don't know or otherwise, but a breakdown; repartnered; different houses; no express findings in relation to financial dependency, but would infer separated or different - that that - let's just call it deeply human murky aspect - required, in my respectful submission, the [T]ribunal to engage in a finding as to whether or not, at that time, JA was a member of the - of my client's family, in order to fall within the definition.
52 Mr Bevan also sought to make something of the fact that when the Tribunal recited the definition of "family violence" at [77] ("…violent, threatening or other behaviour by a person that…causes the family member to be fearful"), the senior member omitted "(the family member)" from the quote.
53 Mr P Knowles SC, who appeared with Mr N Swan of counsel for the Minister, made the following submissions about the critical issue.
54 The Queensland Police Service Court Brief dated 2 March 2017, relating to the appellant being charged with the offence of using a telephone service in such a way that reasonable persons would regard that use as menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code (Cth), and which was part of the material before the Tribunal, recorded that JA and the appellant separated in March 2016 and that the threatening text was sent in February 2017. Mr Knowles pointed out in his oral address that s 48(2) of the Family Law Act 1975 (Cth) provides that that an order for divorce cannot be made except after 12 months after the separation of the parties. He submitted that "that may be at least some evidence that, at the time of the incident, the parties were in fact still married, legally, albeit separated". The brief also recorded that as at February 2017, JA and the appellant had joint custody of their children.
55 Next, he relied on the Tribunal's finding at [41] that JA had after August 2017 obtained orders which allowed him to put the family home on the market, although it was not altogether clear to us what inference was sought to be drawn from that fact.
56 Mr Knowles' oral submission continued as follows:
The member refers to family violence and the definition at paragraph 77. Now, it's said against me by my learned friend that this quote leaves out the defined term "family member", the words "family member" defined to mean "member of the family", in a somewhat tautologous but perhaps space-saving way.
There's - nothing turns on that, because the senior member was clearly aware and quoted from the definition that the violent, threatening or other behaviour had to cause the family member to be fearful. And there's then a discussion of the particular circumstances, at paragraph 78, including that there was a new partner, and there can't be any real doubt, in my submission, that the tribunal member turned … his mind … to the definition and whether this event satisfied that definition, including because the relevant people involved were members of the family.
… At paragraph 103, the tribunal member finds that certain acts, although breaches of a domestic violence order, were not family violence as defined in the direction. Clearly, the tribunal member is turning … his mind to that definition, and then, at paragraph 105, the tribunal member weighs what he finds is the single act of violence, which was at the very lowest end of seriousness …
O'CALLAGHAN J: Well, it also goes on to say there's a single threat of violence which made a family member fearful.
MR KNOWLES: Yes. And that's important, with respect, and I thank your Honour for pointing that out, is that there's no real doubt that the tribunal reached a decision, not only was this family violence, but the victim of the violence was a family member. Nothing turns on 106. I don't take a materiality point, even though this was a fairly minor point in the scheme of things.