WJM v NRH [2013] QMC 12

(2) The application is taken to have been made under section 32 of this Act.

198 Domestic violence committed before commencement

A court may make an order under a provision of this Act in relation to domestic violence committed before the commencement of the provision.

[4] Under s 195 'repealed Act' means the Domestic and Family Violence Protection Act 1989.

[5] Therefore, as the parties were aware, this application, having been made before the commencement of the Act, while the repealed Act was still in force, must now be determined under the Act.

[6] The application is therefore deemed to be an application under sections 32(1)(c) and to be an application 'by a police officer under section 100(2)(a)' which empowers a police officer to apply to a court for a protection order under part 3, division 1 if, 'after an investigation, the police officer reasonably believes domestic violence has been committed'.

[7] In part 3, division 1, section 37 of the Act sets out what the court must be satisfied of, and what it must and may consider, before the discretion to make a protection order is enlivened:

(1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is 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) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court -

(a) must consider the principles mentioned in section 4; and

(b) may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.

[8] At the commencement of the hearing Mr Sochacki informed the court that the respondent made three admissions:

1. A 'relevant relationship' existed;

2. The 'physical altercation' alleged in the application did take place; and.

3. Domestic violence was committed by the respondent during that physical altercation.

[9] During his closing address Sgt Foort (for the applicant) conceded that it may not be 'necessary' to make an order but submitted that it is 'desirable' to make an order to protect the aggrieved from domestic violence.

[10] In reaching my decision that it is desirable, in this case, to protect the aggrieved from domestic violence I have had regard to and considered each of the principles mentioned in section 4 of the Act. Section 4 states:

(1) This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

(2) Subject to subsection (1), this Act is also to be administered under the following principles -

(a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives minimised;

(b) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;

(c) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;

Examples of people who may be particularly vulnerable to domestic violence -

• people from a culturally or linguistically diverse background

• people who are lesbian, gay, bisexual, transgender or intersex

(d) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;

(e) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.

[11] I have also considered each of the main objects mentioned in section 3 of the Act. Section 3 states:

(a) to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and

(b) to prevent or reduce domestic violence and the exposure of children to domestic violence; and

(c) to ensure that people who commit domestic violence are held accountable for their actions.

(a) allowing a court to make a domestic violence order to provide protection against further domestic violence; and

(b) giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and

(c) imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence.

[12] Section 56 sets out which standard (mandatory) conditions must be included in a domestic violence order.

[13] Under section 57 the court may also impose other conditions that the court considers both necessary in the circumstances; and desirable in the interests of the aggrieved, any named person or the respondent. Section 57 states:

(1) A court making or varying a domestic violence order may also impose any other condition that the court considers -

(b) desirable in the interests of the aggrieved, any named person or the respondent.

(2) The principle of paramount importance to the court must be the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

[14] A temporary protection order has been in force since 5 September 2012. It has only the one condition, the mandatory condition, that the respondent must be of good behaviour toward the aggrieved and must not commit domestic violence against her. The applicant does not seek any additional conditions.

Meaning of 'necessary or desirable to protect the aggrieved' in s 37

[15] In Armour v FAC [2012] QMC 22 I had cause to consider and rule upon the meaning of the phrase 'necessary or desirable to protect the aggrieved' in s 37 of the Act.

[16] The parties here were provided with a copy of that decision and I invited submissions because there is no authoritative decision to the contrary by any higher court in the appellate and supervisory jurisdiction of the District or Supreme Courts. Neither party wished to contest the views I expressed about the law in Armour v FAC. The facts in that case are, of course, distinguishable from the facts in this case.

[17] In Armour v FAC, at [14] to [20], I held:

"[14] The first thing to observe is that the test is stated in the alternative.

[15] A court may find it desirable to make an order without finding it to be necessary. One example may be where a perpetrator of domestic violence needs to be held accountable.

[16] A court may find it necessary to make an order without finding it to be desirable. One example may be where a court finds it is necessary despite the wishes of an aggrieved who stands opposed to the making of an order.

[17] Secondly, giving these terms their plain English meaning, the following meanings are given to the words 'necessary' and 'desirable' in the Online Oxford English Dictionary:

"Needed to be done, achieved, or present; essential";

"Indispensable, vital, essential; requisite. Also with to or for (a person or thing)"

"Of an action: that needs to be done; that is done in order to achieve the desired result or effect. if necessary: if required by the circumstances"; and

"That which is indispensable; a necessary thing; an essential or requisite".

"That which is desirable; a desirable property or thing".

[18] Thirdly, whether the court finds it necessary or finds it desirable, the finding must be made in the context that it is either necessary or desirable that the order be made in order to protect the aggrieved. Logically, this must mean that the necessity or desirability of an order being made must arise or derive from a need to protect the aggrieved with the terms of an order. The necessity or desirability must be predicated upon a finding that there exists a need to protect the aggrieved from domestic violence.

[19] Fourthly, in the absence of authority to the contrary, and on the basis of the authorities I refer to below, I would hold that the need for protection must be a real one, not some mere speculation or fanciful conjecture. Need often arises from risk. The court needs to assess the risk to the aggrieved and assess whether management of the risk is called for.

[20] The risk of further domestic violence and the need for protection must actually exist. There is no stated necessity that the need or the risk be significant or substantial. The need for protection of an aggrieved must be sufficient, however, to make it necessary or desirable to make the order in all the circumstances."

[18] When considering what facts and circumstances can be taken into account in deciding whether a protection order is necessary or desirable to protect an aggrieved from domestic violence, I observed in Armour that the court must, under s 37(2)(a), consider the principles mentioned in section 4. However, the Act does not say that the court can not consider other matters. If they are relevant the court may also have regard to other matters. Therefore, even though the likelihood test has been repealed, it was still logically a relevant consideration that if a respondent is likely to commit some act of domestic violence against an aggrieved again in future then a court may find that the need to protect the aggrieved is sufficient to make it necessary or desirable to make the order in all the circumstances. However, under the new Act there may now be circumstances where, even in the absence of the degree of likelihood previously required, the making of a protection order may be found to be necessary and/or desirable to protect an aggrieved from domestic violence.

[19] In AB v Magistrates' Court at Heidelberg [2011] VSC 61 Mukhtar AsJ relevantly held:

[61] I think the statute is investing faith in the Magistrate to form a belief judicially, which is based not on caprice or convenience or personal value, but on some rational grounds. There is a natural inclination to say probative as well but there are bound to be cases where allegations may not be improbable but not manifestly so, and a Magistrate forms a belief conscientiously that "a risk may be posed" as s 78(5)[1] says. Perhaps it could be a real and sensible risk. However one poses the test, in my view, a belief can be formed about a risk on the basis of allegations that are yet to be proven, but have to be taken seriously (or not dismissed as frivolous) until they are eventually tested. An element of judgment has to be involved, especially as a child is involved, and so much will depend on the circumstances. To that end, regard must be had to the evidentiary requirements and the inquisitorial flavour of s 65 which states that:

"Subject to this Act, in a proceeding for a family violence intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary." ...

[82] ... I think it is right to say that by and large, the legislation looks to the Magistrate to undertake or allow a form of inquisitorial justice. A demonstration of that is s 78(5) itself. Another example is s 81 which permits the Court to include in a family violence intervention order "any conditions that appear to the Court necessary or desirable in the circumstances".

[20] What I said in Armour about the difficult balancing exercise involving private and public rights and whether the public interest will in appropriate cases outweigh private rights is especially relevant here. Mr Sochacki for the Respondent submits that if the State imposes itself upon this couple and their marriage by making a domestic violence order it would "get in the way' of the ongoing reconciliation by the parties.

[21] I also observed that it may be necessary or desirable to make an order in order to protect an aggrieved person even if one of the grounds for finding that domestic violence has been committed by the respondent has ceased to exist. Also, if one reason why it is decided that a risk of future domestic violence is because of ongoing contact, such as in family court proceedings or because of other unresolved relationship issues, the order may need, in appropriate cases, to extend beyond the likely conclusion of those proceedings or resolution.

[22] It may also be necessary or desirable to make an order in order to protect an aggrieved person having regard not only to evidence which establishes that domestic violence has been committed by a respondent, according to the definition of domestic violence, but also by having regard to all the other facts and circumstances disclosed to the court. This may include evidence which is properly before the court but which was not led by or relied upon by the applicant.

[23] It is also clear that in some cases it may be appropriate to make an order not only if the relevant risk is 'likely' but also if it is 'possible'.

[24] A further factor to consider may be the gravity of the situation. The gravity of a situation could include an inexplicable or irrational outburst of severe physical violence as was the case here. Even if a court considers it could not, on the information before the court, say that it was "necessary" to make the order sought, but that on the other hand, the gravity of the situation strongly suggests that it is "desirable" that a measure of protection be afforded to the aggrieved, an order may still be made.

[25] There is also an element of risk assessment and risk management in the judgment the court is called upon to make. The nature and duration of orders may be fashioned to reflect the court's assessment of evidence of the existence of a risk or possibility of further violence which gives rise to the necessity for, or desirability of, a protective order.

[26] However a court will not likely find it necessary or desirable to make a protection order where there is no such risk or possibility.

[27] I again remind myself of, and take into account, the following principles extracted by Barr AJ in Conway v Jerram, Magistrate and NSW State Coroner (2010) 78 NSWLR 371; [2010] NSWSC 371:

"In my view, this court should not hesitate to order an inquest if, after considering the evidence, it concludes that the interests of justice make it necessary or desirable to do so. In Knight v FP Special Assets Ltd (1992) 174 CLR 178 Gaudron J said At 205 -

"It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.""

[28] The Act is protective legislation but it is not intended to be punitive for the respondent unless, of course, he breaches a protection order after it is made. Indeed the Act, in aiming to hold the perpetrators of domestic violence accountable also aims to ensure the person is given an opportunity to change their behaviour.

[29] The facts are not in dispute (see the formal admissions listed at paragraph 8 above).

[30] The applicant relied upon the affidavits by four police officers, the field recording (discussed below) and the three photos of the injuries sustained by the aggrieved. The aggrieved and respondent each gave oral evidence at the hearing.

[31] The applicant's case arose from a complaint by the aggrieved on 2 September 2012. Police attended the home of the Aggrieved and Respondent. As evidenced in the photographs (exhibits 1, 2, and 3) the police noted blood on the bridge of the aggrieved's nose and an abrasion and bump on the right side of her head.

[32] I have listened to the field recordings taken by Constable WJM of the conversations which then followed individually with the aggrieved and then with the respondent.

[33] While clearly very distressed, the aggrieved told police that her husband had an affair with a woman at work (his Pharmacy in Murwillumbah, NSW) and that she was the last one to know about it after a call from the woman's husband. She described their argument and that he punched her twice, with a fist, to her head. She described it as a heavy strong punch. She said this was the first time he had assaulted her. She said the second punch was 10 times stronger and that it was so strong her head was shaking and lost her vision for a few seconds and that she hit the floor. The aggrieved said they were both highly educated and she could not believe he did this. The aggrieved told police "How can I trust him. I have No-one here (in Australia)". When speaking about whether she felt too unsafe at the house she said anything can be possible because the respondent had not seemed like the sort of person who would have an affair while she looked after his baby. She said she needed to protect herself and her son. She questioned the police if they could get an order that he was not to come near her.

[34] Some of her fear was more immediate, having expressed a need "to make sure I am safe tomorrow", and her fear was clearly and understandably influenced by the shock of it all and because this was the first time in the eight years of their relationship that he had become violent.

[35] The police spoke with the respondent inside the house. He said his wife found out he had an affair. They had spent the day "reconciling" and then while he was sleeping, the aggrieved came in, grabbed at him, and punched him six times. He said he responded by pushing her and that she tripped and hit her head. He was specifically asked if he punched her. He replied "No". He said he pushed her into the wall and that is what caused the damage. He said there was no excuse for what had happened that night but that he was asleep. He said he lost his glasses too when she punched him.

[36] The aggrieved gave evidence at the hearing. As well as repeating what she had told police the aggrieved stated the following. She is a qualified accountant. She has Masters Degrees in Economic and Commerce from QUT and Griffith University. They have no financial problems, are both well educated and both have good family support. However, while the respondent's parents are in Brisbane, her family is all in China. She explained that she now believes the woman with whom her husband had the affair was trying to play him for his money.

[37] The aggrieved explained some of the steps they had taken to reconcile since the incident. They had moved to Brisbane to be closer to her husband's parents for help and support. They had seen a psychologist. He now works less and spends more time with her. She feels supported by her husband and his family. He has encouraged her in her desire to go back to work since having their son.

[38] They have been to a family therapist three times, but the respondent had yet to see an individual therapist as recommended to him by their family therapist, because he was still on a waiting list. She said he was still making an effort and that all his effort has been into their marriage since the incident.

[39] The aggrieved said also that they had identified that in the past her focus had been on their son while the respondent's focus had been on work. She said the respondent was extremely embarrassed by his conduct and did not want it to influence his son.

[40] The aggrieved states she is an independent person and that if she feels scared she will not stay with the respondent. She can simply fly away (to China). She states that making a protection order would not make a difference to how safe she feels.

[41] When I pointed out to her that her husband had denied punching her and asked if that raised concerns for her safety, the aggrieved looked surprised and said "It may". She said he might have had concerns about holding on to his Pharmacy licence when he denied the punches. She added " if he intends to punch me he will. I can't stop him." It was concerning that she then added "I don't expect him to change as much as me".

[42] The aggrieved said she was not as afraid now as she was in September last year. "He's not psycho. Why would he want to hurt me?" She conceded she can not guarantee his or her own future behaviour.

[43] However, in cross-examination it was revealed that during the counselling with the family therapist he had admitted punching her. She also said that the respondent has told her that if the magistrate thinks I need to be punished then "don't worry for me. I'll cop it."

[44] I do not intend to punish the respondent for his assault on his wife. However, the law requires that in appropriate cases perpetrators of violence in domestic situations be held accountable by making protection orders and voluntary intervention orders.

[45] The aggrieved ended her evidence saying she felt weak at the time of the incident, but not now.

[46] The respondent gave evidence that he intends to see the personal therapist he was referred to by their family therapist because he intends to find out the reason for his behaviour and to remove the reason. One issue identified to him that he may need to work on is anger management. He said he was really sorry he lied to police about not punching his wife. He said he was confident it won't happen again and tat he will do everything possible to ensure it won't happen again. He corroborated his wife's list of the things he and they had done to reconcile including taking time off work, working less days, moving closer to his family, being supportive of his wife's return to work and three sessions with the family therapist in September and October 2012.

[47] He said his denial to the police was made because of the shock and confusion and because he did not know what would happen to him. He says he has removed himself from risk factors with work hours and stress and that he needs to set more boundaries for himself and that he will always put his family first.

[48] Mr Sochacki submitted that in the circumstance of this case the parties are capable by themselves to mend their relationship and that the State should not be imposed on their marriage. He submitted that a relevant risk must exist before an order can be made and that none has been shown to exist in this case. He submitted the risk of what is likely to occur in future can not be based on a single event. It was submitted there is a danger under the new Act that making a protection order may become a presumptive or default position.

[49] The police applicant submits that the aggrieved can still be a victim of domestic violence although she is articulate and well educated. It was submitted that because she is alone in Australia except for her husband, son and her husband's family, and being from a different cultural background, she is potentially more vulnerable. The applicant questions whether the respondent has done enough to self-manage the risk of committing further domestic violence. It was submitted that he had not taken responsibility on the night of the incident and had made little self reflection since, that he had little therapy and was well versed in dealing with his own behaviours leading to the incident.

[50] These are all valid considerations.

[51] I am not persuaded that the respondent has gained sufficient insight into his own behaviours which contributed to him committing domestic violence against his wife. Every marriage needs work and commitment. Not every marriage has the same stressors but every marriage has stressors at various times.

[52] At the time of the hearing before me, the respondent was still on a waiting list to see a personal therapist as recommended to him. While the aggrieved was somewhat understandably confrontational and even physical on the occasion, I do not see that she shares any responsibility for the acts of domestic violence committed against her by the respondent.

[53] However, there is an even more important consideration and that is the level of violence used. The severity of the violence used by the respondent when persistently confronted about his affair with another woman is of the gravest concern in this case. As a matter of logic and common sense, the more severe the violence exhibited by a perpetrator, the more risk there is that serious violence will be used again unless there has been an appropriate and sufficient intervention. The gravity of the situation is that the degree of violence used was inexplicable and irrational.

[54] I congratulate the parties on achieving the reduction of stressors on their relationship and for taking the steps they have each taken, but it has not yet gone far enough to say the risk of further domestic violence has been negated or that it does not call for some management. In my view the aggrieved, although not currently in fear as she was on the night, remains vulnerable to more domestic violence albeit her vulnerability appears to be on a diminishing trajectory.

[55] The totality of the evidence satisfies me that although the aggrieved does not feel or believe that she needs to be protected from the respondent or from further acts of domestic violence, it is desirable that such protection be ordered.

[56] I am satisfied that, on the balance of probabilities[2], that -

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

(b) the respondent has committed domestic violence against the aggrieved (in the manner described above; and

(c) a protection order is desirable to protect the aggrieved from the risk of further domestic violence by the respondent.

[57] Applying the principle of paramount importance[3] that the safety, protection and wellbeing of people who fear or experience domestic violence is paramount and having considered all of the evidence I find it desirable that the aggrieved be protected from further domestic violence.

[58] In coming to this conclusion I have also followed and applied Carey (No 3) (above) in fashioning an order which is determined by an assessment of the risk of further domestic violence by the respondent against the aggrieved. I have also applied Walker's case (above) in determining that the order made should go no further than is necessary for the purpose of protecting the aggrieved from the respondent. Also, applying Lone Star (No2) (above) the gravity of the situation makes it desirable that protection be given to the aggrieved and that the respondent is held accountable for his actions.

[59] Applying Carey (No 3) (above), this also means that, on my assessment of the risk of domestic violence to the aggrieved in this case, the duration of the order under s 97 of the Act, should be for nine months from today.

[60] Application granted. A protection order is made on the mandatory condition alone as required by s 56(1)(a) of the Act. The order is to expire on 2 February 2014.

[1] Section 78(5) of the Victorian Act provides:

"(5) A court may refuse to make a final order, or an order varying, revoking or extending a final order, to which the parties to the proceeding have consented if the court believes the order may pose a risk to the safety of one of the parties or a child of the affected family member or respondent."

[2] Following Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334 at CLR 362-3 , where Dixon J said that except in criminal matters, it is enough if an allegation is proved to the "reasonable satisfaction of the tribunal" and went on to say:

"But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal ...

This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.

The degree of satisfaction required by the civil standard of proof may vary according to the gravity of the fact to be proved: see Briginshaw v Briginshaw, at CLR 368- 9 , ALR 344-5, which was followed in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517; [1966] ALR 270; at CLR 521, where the High Court held:

"But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge."