ZTP v BBY [2023] QDC 59

[4] MNP opposed both the making of the temporary and the final order. She does not appear in this appeal.

[5] The appellant does not challenge the existence of a relevant relationship under the Act or broadly speaking that it was open on the evidence for the Magistrate to have found as she did that he committed an act of domestic violence on 10 November 2021. The sole ground of appeal is that the Magistrate erred in finding the protection order was necessary or desirable to protect the aggrieved from domestic violence in accordance with s 37 of the Act. As part of this ground of appeal, the appellant criticised the general nature of, or rather the lack of precision, in the Magistrate's finding as to the acts of domestic violence said to have been committed by him on 10 November 2021 and earlier.

[6] Before turning to the substance of the appeal is it instructive to firstly set out the relevant legal principles governing the making of protection orders and any consequential appeals under the Act.

(1) An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.

(2) However, the appellate court may order that the appeal be heard afresh, in whole or part."

[8] Under s 168(2), the court may order that the appeal be by way of a hearing de novo. No such order has been sought or made in this case. The nature of the appeal in this case is therefore one of a re-hearing and is to be decided on the evidence and proceedings before the Magistrates Court below.[1]

[9] The court of appeal conducting an appeal by way of re-hearing is bound to conduct a real review of the evidence at first instance and of the Magistrate's reasons for judgment to determine whether the Magistrate has erred in fact or law.[2] The appellant must demonstrate some legal, factual or discretionary error of the trial Magistrate.[3] The question is not whether the appellate court may have itself made a different finding but rather, whether the finding made by the trial Magistrate was reasonably open on the evidence before her.[4]

[10] Where, such as in the present case, the decision under appeal involves an exercise of discretion, an error of the kind discussed by the High Court in House v The King (1936) 55 CLR 499 at [505], must be identified:

"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

[11] It is uncontroversial, and I accept, that this court ought not interfere with the protection order made in the exercise of discretion unless it is vitiated by an error of principle, there has been a failure to appreciate the salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which a court's discretion should be exercised is not a sufficient justification for review. It must be shown that the discretion miscarried.

[12] Section 169 of the Act sets out the powers of the appellate court as follows:

(1) In deciding an appeal, the appellate court may -

(a) confirm the decision appealed against; or

(b) vary the decision appealed against; or

(c) set aside the decision and substitute another decision; or

(d) set aside the decision appealed against and remit the matter to the court that made the decision.

(2) The decision of the appellate court upon an appeal shall be final and conclusive."

[13] These appeal principles must be considered in the context of the Act as a whole.

[14] Relevantly, s 4(1) outlines the principle for administering the Act as follows:

(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."

[15] Section 8 defines Domestic Violence for the purpose of this Act and includes:

(1) 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 -

(a) is physically or sexually abusive; or

(b) is emotionally or psychologically abusive; or

(c) is economically abusive; or

(d) is threatening; or

(e) is coercive; or

(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.

(2) Without limiting subsection (1), domestic violence includes the following behaviour -

(a) causing personal injury to a person or threatening to do so;

(b) coercing a person to engage in sexual activity or attempting to do so;

(c) damaging a person's property or threatening to do so.

"emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person."

[17] Section 37 sets out that a court may make a protection order if it is satisfied of three things:

(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

See the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12, which define the terms domestic violence, emotional or psychological abuse and economic abuse.

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

(2) AS TO THE THIRD REQUIREMENT: In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence -

(a) the court must consider -

(i) the principles mentioned in section 4; and

(ii) if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order - the respondent's failure to comply with the order; and

(b) if an intervention order has previously been made against the respondent and the respondent has complied with the order - the court may consider the respondent's compliance with the order.

(3) However, the court must not refuse to make a protection order merely because the respondent has complied with an intervention order previously made against the respondent.

(4) If an application for a protection order names more than 1 respondent the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court considers appropriate."

[18] The focus of this element is the paramount need for the protection of an aggrieved from domestic violence and whether imposing a protection order is necessary or desirable to meet that need.

[19] On any view this requires an assessment of the risk of future domestic violence between the parties in the absence of any order. To that end I respectfully adopt the observations of Judge Morzone KC in MDE v MLG [2015] QDC 151 as to how this risk might be assessed.

[20] Most particularly, Judge Morzone KC relevantly identified that the third limb required a three-stage process supported by a proper evidentiary basis adduced pursuant to s 145 of the Act as follows:

"(a) First, the court must assess the risk of future domestic violence between the parties in the absence of any order. This means there must be a factual finding or inferences drawn of the nature of and prospect that domestic violence may occur in the future. This will depend on the particular circumstance of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, psychological counselling, compliance with any voluntary temporary orders and changes of circumstances. Unlike its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is 'likely'. However, there must be more than a mere possibility or speculation of the prospect of domestic violence.

(b) Second, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations may include the evidence for the party's future, personal and familial relationships, their places or residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children.

(c) Third, the court must then consider when imposing a protection order it is necessary or desirable to protect the aggrieved from domestic violence.

[21] In GKE v EUT [2014] QDC 248, Judge McGill SC also relevantly observed as follows:[5]

"[32] In my opinion, the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature and whether it can properly be said in the light of that evidence that it is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that, the making of an order is necessary or desirable to protect the aggrieved.

[33] I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the appellant for the order is concerned that such a thing may happen in the future.... in assessing such a risk, it is relevant to consider the fact that there is going to have to be some ongoing relationship because of the position of the children, and, if as the appellant alleges, the respondent has been difficult and uncooperative in the past in relation to the arrangements for him to have the opportunity to spend time with the children, there is a risk that there will be situations arising of a kind which have in the past produced domestic violence."

[22] With these principles in mind I now turn to the hearing below.

[23] At the contested hearing in July 2022, Constable Beattie who made the application on behalf of MNP (although against MNPs express wishes) was represented by a police prosecutor. The evidence relied upon by the prosecutor included affidavits sworn in February 2022 by Officer Beattie and her partner Officer Darcy who attended at the home of the appellant and MNP on 10 November 2022 together with an affidavit from a neighbour Ms Kris McAllister sworn in early February 2022. The police prosecutor also tendered the recording of the 000 call made by APA and the Body Worn Camera recordings taken by the officers who attended on the day. Ms Beattie and APA were cross examined by a counsel who represented the appellant - that is a different counsel than who argued the appeal.

[24] The appellant called evidence - relying on his affidavit from March 2022 and an affidavit from MNP also sworn in March 2022 who gave evidence in the appellant's case.

[25] Both the appellant and MNP were cross examined by the police prosecutor.

[26] After hearing all of the evidence, the Magistrate gave reasonably ex tempore reasons determining the final protection order for a period of two years was desirable.

[27] The reasons are short - but that is not necessarily a criticism, this is a busy jurisdiction. The Magistrate clearly turned her mind to many parts of the evidence and the relevant sections of the Act and the authorities.

[28] Most relevantly, the Magistrate's findings included that she was satisfied as a matter of law that an act of domestic violence was committed of an emotional and psychological nature within section 8(1)(b) and section 11 of the Act, and that had been committed on 10 November 2021. She accepted the evidence of APA that there had been occasions that were occurring prior to that day but observed that that is not what is relied upon by the police officer. In determining whether the order was necessary or desirable, her Honour observed that this is a case where the behaviour, in terms of the evidence of APA, was going on with different frequency for at least six months. She also observed that:

"The complaint is not a complaint that originated with the aggrieved making a complaint where the Court could be satisfied that the change and the steps that have been embarked upon can be seen to have been taken place as a consequence of what was an original aspect of behaviour".

[29] Her Honour referred to the principles in section 4(1)(c) that:

"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.

"...to an extent it's appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought."

[31] The Magistrate observed that this is not a case where MNP was afraid of the respondent, but was satisfied that MNP had experienced domestic violence and that an order should be made in the mandatory terms, though she observed that the respondent's steps were "heartening" for a court to see, and on this basis she made an order for two years as opposed to five years.

[32] In her reasons, her Honour was not satisfied that there were any physical injuries but there was emotional and psychological abuse. The evidence that the Magistrate relied on heavily was the evidence borne out in the body-worn camera footage on 10 November 2021 and the evidence of APA and the appellant's evidence of how he accepted his behaviour needed to change.

[33] But in my view the Magistrates reason did not adequately make findings of fact that underpinned her overall reasoning. In my view she failed to do this in a number of ways.

[34] Firstly, there was conflicting evidence before the Magistrate about the nature of and extent of the domestic violence said to have been inflicted by the appellant against MNP - both on 10 November and earlier. Those discrepancies were important as their resolution was crucial to any reasoning about whether or not a final protection order was necessary or desirable. But the Magistrate did not resolve these issues. Most relevantly she did not address at all MNP's unchallenged affidavit evidence which gave considerable insight into what had happened on the day and also the nature of the relationship between the appellant and MNP. This was crucial as MNP resiled considerably from what she said at the roadside to Constable Beattie - and her version was also quite different to the summary Constable Beattie gave in the application in support of the application for a protection order.

[35] Secondly, the Magistrate made observations that she had found the most helpful evidence was the body worn camera footage from Constable Beattie and the evidence of APA, the neighbour witness who provided evidence of what she heard on the day and the frequency of disturbances in the past. The Magistrate also observed from the 000 call that the last call report to police was in March 2021 and that APA confirmed that not all disturbances were reported and that she described disturbances of a similar nature coming from the residence of the appellant and MNP, occurring over a period of some six months prior to 10 November 2021. The Magistrate referred to APA's evidence of the incidents becoming more and more frequent and intense. This finding underpinned to some extent the Magistrates reasoning for the protection order to be necessary and desirable to protect MNP from future domestic violence. But all of this evidence was very general in nature - without for example any identification that a particular person or gender was the perpetrator of the acts of domestic violence - or even what those acts were. The Magistrate made no other findings about the types of disturbances coming from the residence prior to 10 November 2021 but seems to have inferred without stating why that these were all acts of domestic violence committed by the appellant. This inference was not open on the weak state of that evidence. Nor was such a finding necessarily corroborated by MNP.

[36] Reasons for judgment do not necessarily need to provide a comprehensive description of a dispute but they must describe the conflict between the parties in sufficient detail that someone reading the judgment understands the factual basis for the decision. Reasons for judgment must also expose the reasoning process which has led to the determination. This will include explaining why the judge has made findings of fact, explaining preferences for one part of the evidence over other parts, and an analysis and resolution of the conflicts thrown up by the factual and legal aspects of the case.[6]

[37] When the Magistrate's decision is viewed through such a lens, the essential requirement that a magistrate must disclose the underlying intellectual process giving rise to the conclusions she reached has not been met in this case.

[38] I am satisfied that this is an error that justifies the setting aside of the Magistrate's order.

[39] I considered very seriously after I reserved this matter on Monday whether I should remit the matter back to the Magistrate's Court given that issues of credit arise on the evidence. But after hearing from the parties and particularly given the passage of time and that the Commissioner of Police does not seek leave to adduce any evidence of breach of the order such that it is reasonable to assume as I do, that there is no relevant evidence to be admitted, I have determined there is little if any utility in re-mitting this matter back for re-hearing.

[40] I have determined that the appropriate course is for me to decide the application on the evidence before the Magistrate.

[41] I have determined that from the exhibits that I have identified in the appeal, including the USB - that was provided to me through my associate - that contains some of the footage that I had not previously watched, which I have now watched.

[42] I am satisfied that an act of domestic violence was committed on 10 November 2021 and that domestic violence was in the nature of an emotional and psychological abuse as was abundantly apparent in MNP's contemporaneous evidence on the day as to how the appellant had made her feel and the appellant's yelling at her and her feelings of feeling tormented and intimidated.

[43] I am satisfied that the evidence of MNP of how the appellant had spoken to her and how it made her feel whilst not precise, is adequate to satisfy me that she was subject to emotional abuse at the hands of the appellant by his yelling at her in a way that she found distressing and offensive. The emotional abuse that was committed included that MNP was trying to offer the appellant support but he became verbally upset with her and blamed her for the arguments as she stressed him out.

[44] The finding is consistent with the appellant's own evidence that he needed help to address how he spoke and interacted with MNP.

[45] But I am not satisfied that there is sufficient cogent and reliable evidence to be satisfied that previous acts of domestic violence were committed by the appellant for two main reasons.

[46] First, APA's evidence was of a very general nature and there was no cogent evidence about the substance of the arguments. It was impossible on the state of the evidence for there to have been any proper finding as to whether or not they involved acts of domestic violence committed by the appellant. I accept there was some evidence in the triple 000 call that police had previously been called to the residence but again there was no evidentiary basis to conclude that it was because the appellant had necessarily committed an act of domestic violence.

[47] Secondly, the evidence of MNP about earlier incidents was given through a number of leading questions at a time when MNP was clearly distressed and uncomfortable. The clarification by MNP in her later affidavit and under cross examination is plausible, reliable and reasonable. In terms of other acts committed by the appellant towards MNP, it is impossible on the evidence to make any cogent findings of the nature of these interactions. Although I am satisfied that by his own admission the appellant recognised he needed to do something about how he interacted with MNP - and this included prior to 10 November 2021.

[48] The critical question in this appeal is whether the order is necessary or desirable.

[49] The focus on this element, namely whether the protection order is necessary or desirable to protect MNP from domestic violence, requires me to consider the paramount need for the protection of MNP. The discretion is a wide one and it follows from a plain reading of this section that the court must assess the risk of future domestic violence between the parties in the absence of any order.

[50] In order to do this, there must be a factual finding or inferences drawn of the nature of and prospect that domestic violence may occur in the future. Of course, this always depends on the circumstances of the case.

[51] Relevantly in this case, the only cogent evidence in my view is that there was one act of domestic violence on 10 November 2021 and that act was in the nature of a verbal argument between the appellant and MNP during which time MNP felt distressed and offended. I am unable to make any findings about past acts of domestic violence except to say I accept that there have been earlier arguments between the appellant and MNP at the house - including that the police were called sometime in mid-2021.

[52] Having considered all of the evidence I am not satisfied that a protection order is necessary or desirable to protect MNP from acts of domestic violence being perpetuated by the appellant for a number of reasons.

[53] Firstly, MNP's evidence which I accept is that she is not in fear of the appellant and that she does not consider a protection order is necessary or desirable to protect her.

[54] Secondly, whilst there has been a past act of domestic violence - this occurred some 15 months ago and it was a relatively isolated incident that did not involve physical violence against MNP and the emotional and psychological abuse must be seen in the context of their relationship at that time - one of 6 years standing and one where they both clearly verbalised loudly their differences.

[55] Thirdly, there is evidence of genuine and immediate remorse and insight shown by the appellant into his conduct reflected by the fact that he has taken immediate steps towards rehabilitation by engaging in counselling sessions with a psychologist to improve his communication with MNP, a person he remains in a relationship with. I am also satisfied that the appellant has found better ways to deal with the disorder with his jaw which seemed to be at the root of a number of the arguments between MNP and him.

[56] Fourthly, the uncontested evidence is that even though the parties continue to co-habitat there have been no incidences at the house since 10 November 2021.

[57] Finally, the appellant complied with the temporary order that was made by consent without any admissions on 10 November 2021.

1. The appeal is allowed.
2. The final protection order made on 26 July 2022 is set aside.
3. The temporary protection order made on 17 Nov 2022 is set aside.
4. The original application for a police protection order dated 10 November 2021 and filed in the Holland Park Magistrates Court in November 2021 is dismissed.
5. The appellant does not apply for costs. I therefore order that there is no order as to costs.

[1] See the observations by McGill SC DCJ in GKE v EUT [2014] QDC 248 at [3].

[2] See the observations of McMurdo JA in Bode v Commissioner of Police [2018] QCA 186 at [42] with reference to the observations of the High Court in Robinson Helicopter Company Inc v McDermott [2016] HCA 22; [2016] 90 ALJR 679, 686-687; [2016] HCA 22 at 43.

[3] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 203-204 [14]- [17].

[4] Edwards v Noble (1971) 125 CLR 296, 304.

[5] GKE v EUT [2014] QDC 248 at [32].

[6] See Built Qld Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd [2022] QCA 266.