Queensland

District Court

  • CED v HL [2016] QDC 345 (22 December 2016) – District Court of Queensland
    Children’ – ‘Protection orders’ – ‘Temporary protection order’ – ‘Vary

    Appeal Type: Appeal against variation to Temporary Protection Order.

    Facts: A temporary protection order was made against the appellant which stipulated his former female partner, the respondent, as the protected person. The appellant and the respondent had a son together, K. The terms of the temporary protection order were varied twice. The first variation occurred after the respondent took K out of school (against K’s wishes). The appellant arrived to pick up K, at K’s request. An argument ensued between the appellant and the respondent. The temporary protection order was varied to name K as a protected person.

    Second, the respondent reported that her father (the maternal grandfather of K) had made threats against the appellant in the presence of K. The temporary protection order was varied to prevent the appellant from permitting, encouraging or facilitating in-person contact between K and the grandfather. The appellant’s position was that he had never been threatened by the respondent’s father in that way and that K wanted to see his grandfather.

    The appellant applied to a magistrate to have these terms varied and removed. The application was refused.

    Issue/s: Whether the variations ought to be allowed?

    Decision and Reasoning: The appeal was allowed. Kent J held that there were insufficient reasons given for the orders made refusing the variations. This was an error of law and the decision had to be set aside on that basis. Further, there was an insufficient evidentiary basis to prove that either of the contested conditions were necessary or desirable. First, K’s presence at the incident between the appellant and respondent was purely incidental. It was upsetting but no more upsetting than other separate actions of the respondent. It was not prolonged or dangerous and not wilfully brought about, or persisted with, by the appellant. Second, the grandfather’s threats against the appellant were out of the appellant’s presence and not initiated by the appellant. They were unlikely to be repeated and did not involve any violence against K. This was too tenuous to substantiate the challenged conditions (see [38]).
  • RWT v BZX [2016] QDC 246 (30 September 2016) – District Court of Queensland
    Costs’ – ‘Cross-application’ – ‘Cross-orders’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Protection orders’ – ‘Sexual and reproductive abuse’ – ‘Systems abuse

    Appeal Type: Appeal against a protection order and an order for costs.

    Facts: The male appellant and the female respondent were married in India. It was an arranged marriage. They lived in Australia with their son and the appellant’s parents. Each applied for a protection order against the other, making serious allegations which were denied. There were also proceedings in the family court at the time of the protection order hearing.

    The respondent’s application and affidavit set out particulars of domestic violence under several headings: verbal abuse, controlling behaviour, psychological abuse using the child, sexual abuse, financial abuse, threats and intimidation. She perceived an alliance against her (the appellant, his parents and the son). She annexed to her affidavit a transcript of a recording she made as she was packing to leave the family home to provide evidence of this. Conversely, the appellant alleged that the respondent had assaulted the child. He had previously taken the child to a doctor and reported the complaint.

    The magistrate made an order in favour of the wife. He dismissed the appellant’s application and also made an order for costs. In doing so His Honour stated:

    ‘Sadly what I say in these proceedings can’t be used in the Family Court. These proceedings are private proceedings. I wish they could. I wish the Family Court could hear what I think about the reliability of [the appellant]. It’s been a scurrilous case. On my view, his application has been deliberately false and vexatious. I can say that, in 12 years as a magistrate, I have never ordered costs in a domestic violence case before. I intend to today for the first time in many hundreds of cases’.

    Issue/s: Some of the grounds of appeal included –

    1. There was no proper basis on the evidence for the learned Magistrate to make a protection order under s 37 of the [Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’);
    2. There was no proper basis for the learned Magistrate to order costs under s 157 of the Act against the appellant in favour of the respondent.

    Decision and Reasoning: The appeal was dismissed.

    Was there a proper basis for the order made against the appellant? (see [4]-[34])

    1. Devereaux SC DCJ held that it was open to the magistrate to conclude that the appellant had committed acts of domestic violence against the respondent: s 37(1)(b) of the Act.

      1. The magistrate was correct to use the transcript of the recording made by the respondent as proof of her case and as relevant to the credibility of the appellant. The transcript showed the manner in which the appellant treated the respondent. Further, the ‘startling’ language and attitude of the child towards his mother in the transcript gave rise to the inference that the appellant had treated the respondent in such a way over a lengthy period in front of the child: see [12].
      2. The magistrate, correctly, interpreted the transcript as confirmation of the respondent’s claim that the discussion was principally about money – the appellant’s demand that she deposit all her wages into the joint account: see [13]. Evidence of the respondent’s friend further corroborated the respondent’s evidence about financial abuse: see [18].
      3. Devereaux SC DCJ agreed with the magistrate’s analysis of the transcript of the recording (see [14], [29]). It provided evidence of threats by the appellant, that the appellant would shout at her in front of the child, and that the child had been ‘coached and poisoned against his mother’ (see [15]-[24]).
      4. His Honour further held that: ‘the passages I have referred to in this judgment from His Honour’s reasons reduce to the finding that his Honour rejected utterly the credibility of the appellant and accepted completely the credibility and reliability of the respondent. There is nothing in the materials which objectively suggests that those findings were not open to His Honour or that I should draw different inferences from facts in the record’ at [29].
    2. Devereaux SC DCJ also held that it was open to the magistrate to conclude that the protection order was necessary or desirable to protect the respondent from domestic violence: s 37(1)(c) of the Act.

      1. Devereaux SC DCJ noted the magistrate’s conclusions about the appellant’s application, namely that it was ‘an outrageous case and pure nasty, vindictiveness on this woman because she wouldn’t hand over her money to a controlling, bullying husband. I don’t believe she has been anything other than a good mother to her child. I dismiss the [appellant’s] application …, as I said, but I do intend to make an order in favour of the wife’.
      2. The magistrate continued: ‘[i]n my view, as I mentioned during submissions, the fact that property settlements in family law matters are still contentious and, indeed, the mother still isn’t even getting face-to-face contact with her own child at the moment, there is every opportunity for the husband to continue his bullying behaviour to try and manipulate the wife into caving in to his demands about the child, about financial affairs, and anything else that he might have a penchant to do in his bullying behaviour. She is absolutely in need of protection. He needs to be kept well away from her’ (see [26]).
      3. Devereaux SC DCJ held that these statements could be properly understood as the magistrate’s reasons for being satisfied that the protection order was ‘necessary or desirable to protect the aggrieved from domestic violence’ (see [28]). This reasoning, that it was necessary or desirable for an order to protect the respondent from domestic violence in the setting of the continuing family court proceedings, was correct: GKE v EUT (see [32]).

    Devereaux SC DCJ noted generally that ‘[i]t is advisable that a magistrate make specific findings with respect to the matters set out in s 37 of the DVFP Act’ (see [27]). However, here, ‘the manner in which His Honour reached and set out conclusions is sufficiently clear to be amenable to examination and review’ see [28].

    • The appeal against the costs order (see [35]-[68])
    Devereaux SC DCJ held that the magistrate was entitled to thoroughly reject any of the appellant’s assertions. Having done so, it was open to the magistrate to conclude that the appellant’s application was brought to vex the respondent – ‘it was deliberately false and vexatious’, brought because ‘she wouldn’t hand over her money to a controlling bullying husband’’ (see [65]-[66]).
  • WJ v AT [2016] QDC 211 (19 August 2016) – District Court of Queensland
    Cross-application’ – ‘Cross-order’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Family law’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Purpose of the domestic and family violence protection act 2012 (qld)’ – ‘Risk

    Appeal Type: Appeal against the making of a protection order against the appellant and appeal against the decision of the Court to dismiss the appellant’s application for an order.

    Facts: The male appellant and the female respondent were in a relationship. They had two children together, DJ and MJ (aged 3 and 2), and another daughter, LS (aged 8), from the respondent’s previous relationship. The appellant had been abusive to LS in the past. The parties had separated and the three children lived with the respondent. The respondent and the appellant each applied for a protection order against the other. There were also contact/care proceedings in the Federal Circuit Court.

    The respondent’s case was that on 14 August 2015 the appellant spoke loudly and in an insulting way towards her. Many, if not all, of these statements were made in front of DJ and MJ, upsetting the children. The appellant rubbed his beard against the respondent’s eye area and continued to verbally abuse her. The respondent tried to ignore him. He took her phone and ran outside. There was a struggle. He pushed the respondent, she was thrown onto the car bonnet and the appellant sustained some scratches (see [6]-[32], [112]-[126]). Conversely, the appellant alleged that the respondent ‘went berserk’, pushed him around the balcony, grabbed and attacked him, and he ran away from her. She then physically assaulted him. He sustained scratches and a ripped shirt. He also alleged he was a victim of economic abuse (see [33]-[53]).

    The Judicial Registrar (JR) made a protection order against the appellant in favour of the respondent. The JR dismissed the cross-application by the appellant (see [56]-[58]).

    Issue/s: One of the grounds of appeal was that the decisions of the Judicial Registrar were made against the weight of the evidence, namely the making of a protection order against the appellant in favour of the respondent; including the two children, MJ and DJ, in the order; including the child LS in the order; and the refusal to make a protection order against the respondent in favour of the appellant.

    Decision and Reasoning: The appeal was dismissed.

    • Should an order have been made against the appellant?

    First, Smith DCJA held that a number of the acts committed by the appellant amounted to domestic violence as per s 37(1)(b) of the Act Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’) – ‘the rubbing of the beard was physically abusive, the taking of the phone was physically abusive and the insulting words about the first respondent was in my view emotionally or psychologically abusive’ (see [131]).

    Second, in considering whether a protection order was ‘necessary or desirable’ to protect the aggrieved as per s 37(1)(c), Smith DCJ noted that the reasoning of McGill SC DCJ in GKE v EUT applied here. McGill SC DCJ said:

    ‘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 … 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 applicant for the order is concerned that such a thing may happen in the future’(see [32]-[33]).

    Smith DCJA noted that ‘necessary’ is defined by the dictionary as ‘requiring to be done, achieved; requisite, essential’ and desirable is defined as ‘worth having’. There is therefore a ‘lower threshold when one is concerned with the term ‘desirable’. But both are focused on the need to protect the aggrieved from domestic violence’ (see [137]-[139]).

    His Honour ultimately agreed with the JR’s reasoning that an order was both necessary and desirable to protect the aggrieved from respondent. At [140]:

    ‘There is no doubt that the parties are embroiled in Federal Circuit Court proceedings. There are children of the relationship about whom contact/care arrangements will need to be made. These will need to be dealt with in a civilised and appropriate fashion. I have considered s 4 of the Act. In light of the history between the parties, the events of 14 August 2015, the nature of the relationship, and degree of animosity expressed by the appellant towards the first respondent, in my view, it was both desirable and necessary that the order be made in favour of the first respondent. Like the JR, I consider without such an order there is a real risk of future domestic violence’.

    • Should MJ and DJ have been included in the order?

    Section 53 of the Act provides that the court may name a child ‘if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from (a) associated domestic violence or (b) being exposed to domestic violence committed from the respondent’. Section 10 of the Act defines the meaning of ‘exposed to domestic violence’.

    Smith DCJA was satisfied that the children were exposed to domestic violence (see [148]). Further, His Honour stated: ‘I do not consider there is any requirement they understand the words spoke, particularly bearing in mind they were spoken aggressively’(see [149]). Additionally, it was also necessary and desirable for the children to be included in the order because, as the JR found, there was a continued risk of exposure to domestic violence in the future. This was because the parties would continue to be in contact through the children of the relationship and proceedings were on foot in the Federal Circuit Court (see [150]-[151]).

    • Should LS have been included in the order?

    His Honour held that:

    ‘[I]n all of the circumstances, bearing in mind that there is a real possibility of contact between the appellant and LS, and bearing in mind the acrimonious situation between the parties and the events of 9 July 2015 [when the appellant was physically abusive towards LS] and 15 August 2015, I consider the JR was right to add LS to the order to avoid the risk of her being exposed to domestic violence’ at [159].

    • Should an order have been made against the first respondent?

    In this regard, Smith DCJA noted the respondent had tried to ignore the appellant and that the scratches sustained by the appellant could have been caused in self-defence or accidently by the respondent. In this regard, His Honour quoted the explanatory notes to the 2011 Bill at [166]:

    ‘Lastly, the Bill aims to ensure that the person who is most in need of protection is identified. This is particularly important where cross-applications are made, which is where each party to a relationship alleges domestic violence against the other and which often result in cross-orders. During consultation, stakeholders reported a disproportionate number of cross-applications and cross-orders and expressed the concern that in many instances domestic violence orders are made against both people involved. This is inconsistent with the notion that domestic violence is characterised by one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. Both people in a relationship cannot be a victim and perpetrator of this type of violence at the same time. A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings. Also, violence used in self-defence and to protect children can be misconstrued as domestic violence if a broader view of the circumstances is not taken’ (His Honour’s emphasis).

    In light of this, Smith DCJA held that there was no ‘physical abuse’ of the respondent by the appellant. Also, on the totality of the evidence, the respondent was most in need of protection (see [167]-[172]).
  • EAV v Commissioner of Police [2016] QDC 237 (16 September 2016) – District Court of Queensland
    Alternatives to imprisonment’ – ‘Community based orders’ – ‘Contravention of a domestic violence order’ – ‘Cross-application for mutual protection orders’ – ‘Magistrates’ – ‘People with mental illness’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Previous breaches of domestic violence protection order’ – ‘Protection orders’ – ‘Sentencing

    Charge/s: Breach of a domestic and family violence order.

    Appeal Type: Appeal against sentence.

    Facts: The male appellant and the female complainant were in a relationship. They were subject to a domestic violence protection order on 8 July 2015 for a period of two years. These were cross-orders. In October 2015, the appellant breached these orders and was fined $500. On 20 November 2015, police attended their address after reports of a dispute. The appellant told police that he and the complainant were in a heated argument, which the complainant had initiated. The appellant said he bumped into the complainant, causing her to stumble. The complainant slapped the appellant. He then grabbed the complainant, threw her on the bed, and restrained her with his body weight. He released her and the argument continued until police arrived.

    In sentencing, the magistrate expressed significant concern about the chronology of events namely, that the domestic violence order had been made in July 2015, breached by the appellant on 27 October 2015, the appellant was sentenced for that breach on 11 November 2015, and he then breached the domestic violence order again on 20 November 2015. The appellant was sentenced to three months’ imprisonment, wholly suspended, with an operational period of 12 months.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed. Dearden DCJ noted that the magistrate failed to give appropriate recognition to a number of relevant factors, namely at [22]:

    • ‘there were mutual, cross-orders for domestic violence in place at the time of the offending;
    • ‘the initial violence in the incident was, in fact, the complainant slapping the appellant;
    • ‘the appellant’s violence, in response, was relatively low level (although nonetheless unacceptable);
    • ‘the appellant had been in receipt of medical care in respect of a significant mental health issue, and importantly, had undertaken the Anglicare Living Without Violence Program, which was a substantial program, indicating on his part a significant willingness to change;
    • ‘the appellant had expressed his remorse to police immediately after the event’.

    His Honour noted that magistrates dealing with breaches of domestic violence are, of course, under significant time pressures and the learned magistrates sentencing remarks are brief’. However, His Honour held that, ‘the transcript does not indicate that the learned magistrate in any way considered alternatives other than imprisonment in respect of this matter, and appears only to have taken into account the chronology (which is obviously significant) and to some very minor extent (referenced at the conclusion of her sentencing remarks) the steps that the appellant had taken in respect of receiving assistance from Dr Calder-Potts and Anglicare’ (see [24]).

    The appellant was resentenced to 18 months’ probation with a special condition that he continue treatment and complete 100 hours of community service. No conviction was recorded.
  • IFM v Queensland Police Service [2016] QDC 140 (17 May 2016) – District Court of Queensland
    Breach bail condition’ – ‘Contravention of a domestic violence order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Repeated contraventions’ – ‘Sentencing

    Charge/s: Contravention of a domestic violence order x 2, breach bail condition x 2, and a further contravention charge.

    Appeal Type: Appeal against sentence.

    Facts: The male appellant and the female complainant were in a relationship. In relation to the first contravention of a domestic violence order, on 18 March 2015, the appellant pushed the complainant over and punched her to the jaw. No physical injury was alleged. After being arrested and charged, the appellant was released on bail. The second contravention of a domestic violence order occurred on 30 May 2015. The appellant grabbed the complainant by the throat and hit her, knocking her to the ground. He kicked her, dragged her to her feet and verbally abused her. The appellant then dragged her to a nearby park, knocking her to the ground again, hit her in the head, picked her up and continued to drag her. No physical injury was alleged. A head sentence of 15 months imprisonment was imposed on the second contravention of domestic violence order.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Counsel for the appellant submitted that a sentence of 12 months imprisonment with a release after four months was appropriate in light of the authorities of PMB v Kelly [2014] QDC 301 and Singh v QPS [2013] QDC 37. Durward SC DCJ distinguished both of these cases (see [20]).

    Here, Durward SC DCJ was satisfied that a sentence of 15 months imprisonment was not manifestly excessive. This was in light of a number of factors. The appellant’s conduct involved significant aggravating circumstances namely, the first contravention of a domestic violence order was committed two weeks after the expiration of an earlier imposed sentence, the second contravention charge occurred while the appellant was on bail for the former offence, and the appellant had previous convictions for breaches of domestic violence orders (including one committed against the same complainant) (see [21]). Further, the conduct of the appellant in the second charge was ‘sustained and patently violent’. It occurred not only in a residence but in a public area (see [22]). Finally, the appellant had a significant criminal history (see [23]).
  • AJS v KLB v Anor [2016] QDC 103 (13 May 2016) – District Court of Queensland
    Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Protection order’ – ‘Risk of future domestic violence’ – ‘Whether a protection order was necessary or desirable to protect the respondent from domestic violence

    Appeal Type: Appeal against protection order.

    Facts: The female respondent and the male appellant began a relationship in March 2014. The appellant gave her a false name, ‘Cray’, and other false details about his life. The respondent ended the relationship on 31 December 2014. From January to May 2015, the respondent received a series of text messages from the appellant. While at first these messages were consistent with someone trying to salvage the relationship, they became increasingly aggressive and abusive. Some included sexually explicit references.

    The respondent contacted police in February 2015. The police made contact with the appellant. The appellant asserted that he was not ‘Cray’ and, in a series of phone calls, threatened the police and the respondent with legal action. He then sent the respondent a nine page threatening and intimidating letter. A temporary protection order was made in favour of the respondent. The appellant then instructed his solicitors to write a letter seeking the proceedings to be discontinued. This letter denied that he ever knew the respondent.

    On 20 November 2015, the court made a protection order in favour of the respondent against the appellant. The magistrate noted in his findings that the respondent was clearly upset and frightened in court. She had difficulty giving evidence and, even when removed to the vulnerable witness room, she covered her face from the camera. The appellant, on the other hand, appeared confident and in control.

    Issue/s: One of the grounds of appeal was that there was no or no sufficient evidence to support the finding that His Honour was satisfied that an order was necessary or desirable to protect the respondent from domestic violence.

    Decision and Reasoning: The appeal was dismissed. Harrison DCJ had regard to the decision of Morzone DCJ in MDE v MLG & Commissioner of the Queensland Police Service where he asserted that the question of whether ‘the protection order is necessary or desirable to protect the aggrieved from domestic violence’ in s 37(1)(c) of [Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’) requires a three-stage process supported by proper evidentiary basis. As per Morzone DCJ at [55]:

    • ‘Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order:

      1. ‘There must evidence to make factual findings or draw inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders (s 37(2)(b)), and changes of circumstances.
      2. ‘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’.
    • ‘Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations may include evidence of the parties’ 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’.
    • ‘Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence. In this regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1)’.

    Harrison DCJ held that although the magistrate did not refer specifically to each of the three stages of the three-stage process described in MDE, the magistrate did not err in finding that it was desirable to make the necessary protection order for the protection of respondent from domestic violence:

    1. There was sufficient evidence to make the finding that there was a risk of future domestic violence in the absence of any order. Here, the magistrate had regard particular regard to the two letters from the appellant. These did not show any remorse or rehabilitation and the mere fact that the appellant had not contacted the respondent since he was caught on 9 June 2015 did not advance the issue of rehabilitation any further. Additionally, it was particularly relevant that the appellant tried to lie his way out of the temporary protection order. These considerations ‘took the matter much further than the mere possibility or speculation of the prospect of domestic violence’ (see [85]-[87]).
    2. The magistrate had regard to the impact of the appellant’s behaviour on the respondent, and the fact that they both lived and worked in the Atherton Tablelands (a relatively small community where there would be real opportunities for direct and indirect contact in the future). This evidence was clearly sufficient to satisfy the second stage in MDE (see [88]).
    3. In relation to the third stage, a number of matters in s 4(1) of the Act were relevant namely, the safety, protection and wellbeing of the respondent; the need to treat her with respect and to ensure minimal disruption to her life; holding the appellant responsible for his domestic violence and the impact it had on the respondent; and the respondent was vulnerable as under paragraph (d), as was demonstrated with her difficulties in giving evidence (see [89]-[90]).
  • DMK v CAG [2016] QDC 106 (15 April 2016) – District Court of Queensland
    Abuse of process’ – ‘Definition of domestic violence’ – ‘Desirability of protection order’ – ‘Domestic violence protection order’ – ‘Emotional and psychological abuse’ – ‘Evidentiary standard of proof’ – ‘Relevant relationship’ – ‘Systems abuse’ – ‘Vexatious or frivolous

    Appeal type: Appeal against domestic violence protection order

    Facts: The appellant and respondent were in a de-facto relationship for almost 10 years and had children together. After separating, the respondent became the children’s primary caregiver. The appellant assisted her in looking after the children and they continued in a parenting relationship. A domestic violence protection order was made against the appellant to protect the respondent in the Magistrates Court. The magistrate had regard to three court orders existing between the parties in making this order. These were a Family Court order, a protection order made against the respondent naming the appellant as aggrieved, and a temporary protection order with the respondent as the aggrieved.

    Prior to the making of the domestic violence protection order, the appellant made a complaint to police that his daughter was ‘sexting’. A few weeks later, he made another complaint that the respondent texted him in contravention of the protection order naming him as the aggrieved. However, after investigations the police determined both these complaints were unfounded. The appellant then allegedly threatened to kill their children, the respondent, her new partner and his children. The appellant than made a further complaint that the respondent’s new partner had unregistered firearms. After searching his home, the police did not find any of the alleged firearms. Several months later the appellant complained that the respondent kidnapped his 17-year-old daughter. This complaint was also unfounded. Finally, the appellant allegedly threatened the children that the respondent would be sent to gaol.

    The magistrate was satisfied that a protection order was desirable to protect the respondent from domestic violence. He accepted that the appellant’s conduct in making complaints to police caused the respondent to live in constant fear of the appellant. In particular, she feared that the appellant would act on his threats to kill her and her family. The magistrate considered that this amounted to domestic violence for the purposes of s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).

    Issues: Some grounds of appeal were:

    1. Whether magistrate erred in finding the appellant’s conduct in making complaints to the police was ‘domestic violence’ within the meaning of the Act.
    2. Whether the magistrate erred in failing to exercise his discretion reasonably by not finding that the prosecution case was frivolous or vexatious or otherwise an abuse of process.
    3. Whether the magistrate erred in failing to exercise his discretion reasonably by making the protection order.

    Decision and reasoning: The appeal was dismissed and the protection order was affirmed.

    As a preliminary issue, Morzone QC DCJ denied the appellant’s request for a de novo rehearing as of right ([12]-[23]). Further, His Honour rejected the submission that the evidentiary standard of proof under the Act is higher than on the balance of probabilities ([24]-[27]- discussing Briginshaw v Briginshaw [1938] HCA 34).

    1. The magistrate did not err in finding the conduct amounted to domestic violence under the Act. The appellant’s complaints to police were ‘over-reaching, baseless or made for a collateral purpose’ ([44]). They were not made for the purpose of protecting the children as submitted by the appellant, but rather to harass the respondent. This, together with the appellant’s threats to the children, impacted the respondent and caused her to live in substantial fear for her own safety and the safety of her children, her partner and his children. The complaints to police were harassing and intimating to amount to emotional and psychological abuse. They were also threatening and controlling or dominating to cause fear to the respondent’s safety. Therefore, the behaviour fell within the definition of domestic violence under ss 8(1)(b),(d) and (f) of the Act.

      In finding that the complaints amounted to domestic violence, the magistrate accepted the uncontested facts and rejected the appellant’s evidence where it conflicted with other witnesses. There were no identifiable incontrovertible facts or uncontested testimony to demonstrate the magistrate erred in making these conclusions about the evidence.
    2. The proceeding in making the protection order was not frivolous or vexatious: ‘It could not be characterised as being of little or no weight, worth or importance, and thereby frivolous. It is not usual for proceedings of this nature to trouble, annoy, or distress one of both parties. That may be natural consequence of the proper conduct of proceedings in the context of highly emotional family breakdown and litigation. There is no evidence of vexatious conduct in this case’ ([7]). Nor was the proceeding an abuse of process. The proceeding was commenced and maintained by the prosecution for the ‘substantial and legitimate purpose of obtaining the appropriate remedy under the Act’ ([10]).
    3. The magistrate did not err in concluding that a protection order was necessary or desirable to protect the respondent from domestic violence under s 37(1)(c) of the Act. The respondent was fearful of future domestic violence from the appellant. Therefore, the order was desirable. In coming to this conclusion, the magistrate considered and assessed that there was a risk of future domestic violence if an order was not made. The appellant and respondent remained in a dispute before the Family Court, were in contact frequently in relation to their children, and the appellant showed no remorse for his conduct. There was no requirement that the magistrate was satisfied that future domestic violence was ‘likely’. The magistrate also assessed that the appellant’s behaviour in the ongoing parental relationship was inappropriate and that he was misconceived about his ‘responsibility, entitlement and nobility, which manifested in an absence of insight into the consequences of his actions’ ([16]). These findings were open on the facts. Therefore, the magistrate exercised his discretion properly and reasonably in making the protection order against the appellant.
  • BJH v CJH [2016] QDC 27 (26 February 2016) – District Court of Queensland
    Damaging property’ – ‘Emotional and psychological abuse’ – ‘Meaning of domestic violence s 8’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Risk’ – ‘Whether it was necessary or desirable to make an order to protect the aggrieved

    Appeal Type: Appeal against a Protection Order.

    Facts: The appellant appealed against a magistrate’s decision to make a Protection Order requiring him to be of good behaviour towards the aggrieved (his partner) and her son. The order was made after a disagreement over the family meal. The appellant took the aggrieved’s mobile phone in an attempt to get her to go downstairs to discuss matters with him. The aggrieved tried to get the phone back and the appellant discarded it onto the floor, causing minor but irreparable damage to its cover. At some point, the back of the appellant’s hand came into contact with the aggrieved’s ear, causing relatively low level pain and no injury to the aggrieved. The appellant and the aggrieved continued arguing loudly until the police arrived (see [9]).

    The magistrate made the following findings of domestic violence (see [10]):

    • The appellant took the aggrieved’s phone in an attempt to force her downstairs. He threw the phone to the ground in response to the aggrieved’s attempts to retrieve the phone.
    • The appellant slapped the aggrieved in a backhanded motion to the head on purpose.
    • There was constant harassment by the appellant towards the aggrieved that night that was intimidating (causing her to retreat from him). This intimidation and harassment amounted to an act of domestic violence when considered with the yelling and the banging of plates (emotional and psychological abuse).

    Issue/s: Whether the magistrate erred in making a protection order under s 37 [Domestic and Family Violence Protection Act 2012 (Qld)], specifically:

    1. Whether the magistrate erred in finding that domestic violence had been committed against the aggrieved: s 37(1)(b).
    2. Whether the magistrate erred in finding that it was necessary or desirable to make the order to protect the aggrieved from domestic violence: s 37(1)(c).

    Decision and Reasoning: The appeal was allowed. Rackemann DCJ held that it was open to the magistrate to conclude that there was at least some domestic violence committed by the appellant against the aggrieved. His Honour agreed that the following behaviour amounted to domestic violence under s 8 [of Domestic and Family Violence Protection Act 2012 (Qld)]:

    ‘The action of the appellant in seizing the aggrieved’s mobile telephone was behaviour which, in the circumstances, was coercive - being designed to compel the aggrieved to do something which she did not wish to do (ie come downstairs to discuss matters of concern to the appellant). Further, the appellant responded to the aggrieved’s attempt to get her telephone back by, amongst other things, throwing the phone onto the floor thereby damaging it. That the phone was discarded in a throwing motion had support in the evidence’ at [11].

    However, beyond that, the magistrate erred in her findings of domestic violence. In light of the evidence (see consideration at [14]-[29]), the magistrate’s finding of an ‘intentional back-handed slap’ could not be supported. Further, the magistrate erred in characterising the appellant’s behaviour as emotionally or psychologically abusive – behaviour that, amongst other things, intimidates (a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour) or harasses (there must be an element of persistence): GKE v EUT. A consideration of the evidence could not support this conclusion (see [30]-[46]).

    The finding of more extensive domestic violence on the night in question than what occurred further affected the magistrate’s consideration of whether an order was necessary or desirable. In reconsidering whether an order was necessary or desirable, Rackemann DCJ again noted the decision in GKE v EUT where McGill SC DCJ observed in relation to s 37(1)(c) [Domestic and Family Violence Protection Act 2012 (Qld)] that:

    ‘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 … 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 applicant for the order is concerned that such a thing may happen in the future’ (see [32]-[33]).

    Here, the risk was not such to conclude that the making of a protection order was ‘necessary or desirable’ on the facts as established at the time of the hearing before the magistrate in February 2015. This was in circumstances where: there was no demonstrated history of domestic violence prior to the night in question; the event was a single incident involving domestic violence which, whilst in no way acceptable, was not at the most serious end of the scale of such conduct; the aggrieved gave evidence that she was not fearful of the appellant and did not believe that she needed protection from him; and, at the time of the hearing before the magistrate, the appellant and the aggrieved had continued their relationship without suggestion of further incident (see [49]-[50]).
  • Aboriginal and torres strait islander people’ – ‘Aggravating factor’ – ‘Assault occasioning bodily harm’ – ‘Breach of temporary protection order’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’ – ‘Temporary protection order’ – ‘Verbal abuse’ – ‘Victim

    Charges: Assault occasioning bodily harm, breach of temporary protection order (TPO) (4 counts), breach of bail (7 counts).

    Appeal Type: Appeal against sentence.

    Facts: Two weeks before the offending, a TPO was served on the respondent (an Aboriginal man) which named the complainant (his partner), their young son and their unborn child as protected persons. The order prohibited him from being in the vicinity of the complainant apart from authorised contact with their child with the complainant’s consent and required that he be of good behaviour towards the protected persons. The offending occurred when the respondent went to the complainant’s house to visit his son without authorisation. He approached the complainant with a metal pole and verbally abused her. He dropped the pole and walked towards the complainant with a clenched fist. He then punched, struck and kicked her which caused her to fall to the ground. She was taken to hospital and released that night. After fleeing, the respondent returned later that night, came into her yard and asked to talk to her. Police found him sitting in a car with a machete at his feet. His criminal history included property, street and driving offences, as well as a history of breaching community based orders. He had a serious drug addiction. He pleaded guilty early and was sentenced to 12 months’ imprisonment for assault occasioning bodily harm. Concurrent lesser terms for the other offences were imposed. The offending also wholly activated an existing suspended sentence. He was released on parole immediately.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was upheld. Her Honour held that the Magistrate erred in taking considering the respondent’s eventual surrender to police as a mitigating factor. While the surrender was voluntary, it had to be considered in the context of numerous bail breaches leading up to sentence, which was consistent with his history of disregard for court orders. In relation to the complainant’s apparent wish to continue the relationship with the respondent, her Honour noted at [34]-[35] that – ‘Courts in Queensland and in other states of Australia, have recognised the need to approach submissions about reconciliation with real caution, because of the particular features of domestic and family violence. The fact that a victim is a reluctant complainant is not a mitigating factor. Likewise, reconciliation after the victim has complained ought not mitigate the sentence. There may be cases in which reconciliation is relevant to an offender’s prospects of rehabilitation. However, that comes from the offender’s conduct, not the victim’s forgiveness. The nature of the relationship means victims may, contrary to their own welfare, forgive their attacker. That does not reduce the risk posed by the offender and, depending on the dynamics in a particular relationship, it could well exacerbate the risk. Necessarily, prospects of rehabilitation must be assessed by reference to the offender’s attitude and conduct, not the victim’s.’

    In this case, the Magistrate correctly did not treat the complainant’s support as a mitigating factor. However, the Magistrate did err by immediately releasing the respondent to encourage his rehabilitation. Rehabilitation is an important consideration for young indigenous people with drug addictions. However, given the seriousness of the offence and the vulnerability of the victim, the need for denunciation and deterrence outweighed the need for rehabilitation. In citing comparable authorities, (see from [45]-[62]), her Honour then concluded that the sentence was manifestly inadequate. The respondent was re-sentenced for assault occasioning bodily harm to 18 months’ imprisonment, with parole release set at the one third mark in the sentence. A conviction for a domestic violence offence was recorded.

  • Green v Queensland Police Service [2015] QDC 341 (27 November 2015) – District Court of Queensland
    Contravention of a domestic violence order’ – ‘Following, harassing and monitoring’ – ‘Prior history of contravention of domestic violence orders’ – ‘Sentencing’ – ‘Too much emphasis on prior criminal history’ – ‘Totality

    Charge/s: Contravention of a domestic violence order.

    Appeal Type: Appeal against sentence.

    Facts: The appellant was 24. He had a criminal history, including nine previous convictions for contravention of domestic violence orders. The appellant was hospitalised when his female partner, the aggrieved, stabbed him in the leg and foot with a knife during an argument. A temporary protection order was made prohibiting the appellant from contacting the aggrieved. The stabbing incident was not the subject of any charge. Over the next two days, the appellant contacted the aggrieved on her mobile phone 60 times. These calls did not involve any threats or actual violence. The appellant was on parole for a sentence imposed at an earlier time. The appellant was sentenced to six months imprisonment, which was to be served cumulatively upon the 15 month prior sentence.

    Issue/s: The magistrate erred in two significant respects which resulted in an excessive sentence:

    1. The magistrate placed too much emphasis on the appellant’s criminal history for like offending and imposed a sentence which was disproportionate to the gravity of the instant offence; and
    2. In imposing a cumulative term, the magistrate failed to review the aggregate sentence and consider whether the total sentence imposed was just and appropriate.

    Decision and Reasoning: The appeal was allowed. First, Morzone QC DCJ noted that the surrounding circumstances, the appellant’s criminal history and the stabbing incident, were properly provided by the prosecution by way of context for the subject offending. However, His Honour continued at [17]:

    ‘[t]he danger was that that context could potentially take on an overwhelming character with the prospect of elevating the nature of the offending the subject of the sentence. It seems to me that that danger was realised and can be demonstrated by the sentencing remarks of the magistrate where she conflated the past criminal history, other intervening behaviour and the subject offending’.

    Here, the criminal history and the conduct that constituted it were not as proximate to the subject offending as apprehended by the magistrate. Evidence of the stabbing was accepted in the context that the police did not press charges against the aggrieved but the magistrate determined that the aggrieved was acting in self-defence. Further, there was little or no regard given to any particular findings of fact surrounding the subject offending, namely, the 60 occasions of telephone contact. Rather, this was relegated to almost incident behaviour. Thus, Morzone QC DCJ held that ‘[b]y conflating the historical criminal behaviour and other violent behaviour with the subject offending, it seems to me that Her Honour mistook the facts and allowed erroneous or irrelevant matters to guide or affect her exercise of discretion’ (see [18]-[21]).

    Second, Morzone QC DCJ held that at [30]:

    ‘the magistrate acted on a wrong principle by characterising the pre-existing sentence to a “different issue altogether” because the appellant breached his parole by reoffending. She apparently had no regard to the “period of imprisonment” required by section 160F of the [Penalties and Sentences Act 1992 (Qld)]… and the extension of the totality principle … It seems to me that her approach caused her to fall into error by failing to take into account material considerations of the whole period of imprisonment (including the balance of the previous sentence), reviewing the aggregate sentences and considering whether the latter was just and appropriate’.

    The appellant was re-sentenced to three months imprisonment, to be served concurrently with the existing sentence.
  • TZL v Commissioner of Police [2015] QDC 171 (3 July 2015) – District Court of Queensland
    Breach of domestic violence order’ – ‘Criminal history’ – ‘Deterrence’ – ‘Minor breach’ – ‘Sentencing

    Charge/s: Breach of domestic violence order.

    Appeal type: Appeal against sentence.

    Facts: The appellant pleaded guilty and was convicted for contravening a domestic violence order and sentenced to 10 months’ imprisonment. The order prohibited the appellant from contacting the aggrieved apart from matters in relation to their child. He breached this condition by 41 sending emails over an 11 week period, the content of some of which were not solely in relation to their child. He was released on parole on the day of sentence. The appellant had an ‘appalling’ (see at [21]) history of breaching protection orders – consisting of 10 total convictions of which 8 related to the aggrieved. In fact, he was on probation for these offences when this offence was committed.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. Kingham DCJ acknowledged at [17] that this was an ‘unusual’ sentence. There was no physical violence, actual or threatened. There was no intimidation or any harassing or controlling behaviour. While there were 41 emails, they were sent over an 11 week period and not all of them breached the order as some were related solely to the child. There was also one very minor personal contact at a child care centre. Kingham DCJ found these facts in combination do not warrant a sentence of imprisonment. Notwithstanding, the appellant’s clear ‘disdain’ ([21]) for protection orders as evidenced by his criminal history warranted a strong element of personal deterrence in the sentence. However, her Honour emphasised that the purpose of the sentence was not to punish the appellant again for prior offending, and that the Magistrate, ‘gave the Appellant’s prior history such weight that it led to the imposition of a penalty which was disproportionate to the gravity of this offending’ (See at [22]). As such, the Court concluded (while also taking into account comparable authorities) that the sentence was excessive. It was reduced to 6 months. The immediate parole release was not changed.

  • SM v AA [2015] QDC 172 (29 May 2015) – District Court of Queensland
    Domestic violence order’ – ‘Ex parte application’ – ‘Following harassing, monitoring’ – ‘Physical violence and harm’ – ‘Verbal abuse

    Appeal Type: Application for an extension of time in which to file an appeal against the variation of a domestic violence order.

    Facts: The appellant (the respondent in a domestic violence order) failed to appear at the Magistrates’ Court for an application to extend the order. The Magistrate noted appellant’s absence. The Court proceeded to ‘hear and decide the application’ pursuant to section 94 of the Domestic and Family Violence Act 2012 (Qld).

    Issue/s: Whether the Magistrate correctly heard and decided the matter.

    Decision and Reasoning: The appeal was allowed. Judge Reid considered the remarks of the Magistrate. The remarks did not consider the reasons put before the Court by the applicant as to why the domestic violence order should be extended. These reasons included allegations of physical and verbal abuse and multiple breaches of the order. Instead, the Magistrate simply made the order and considered whether the order should be extended for 18 months or for two years. Judge Reid was concerned that the Magistrate dealt with the matter, ‘merely as a rubber stamp exercise’. There was nothing in the Magistrate’s remarks to indicate that she had read the material to ascertain whether or not the breaches of the order actually occurred. There was little or no particularity in the allegations, specifically about when or where the breaches occurred. In circumstances where parties do not attend, it is incumbent upon the Magistrate to ‘hear and decide’ the matter, even if it is entirely upon affidavit evidence. The transcript did not indicate that the Magistrate considered the question at all. As such, the order was set aside.

  • LKL v BSL [2015] QDC 337 (15 May 2015) – District Court of Queensland
    Affidavit evidence’ – ‘Domestic violence order’ – ‘Evidence’ – ‘Procedural fairness

    Appeal Type: Appeal from dismissal of application for protection order.

    Facts: The appellant appeared unrepresented in the Magistrates’ Court and filed for a protection order pursuant to the Domestic and Family Violence Act 2012 (Qld). She was initially granted a temporary protection order in the Magistrates’ Court. The Magistrate then made directions to the effect that the evidence of all witnesses in support of the application was to be filed as affidavit evidence. No such affidavit evidence was provided. The appellant believed that the application itself, without further affidavit evidence was sufficient. The application for the protection order was then refused, with the Magistrate concluding that there was no material before the Court (see further at [7]-[9]).

    Issue/s: Whether the aggrieved in a protection order application can rely solely on the application without further affidavit evidence.

    Decision and Reasoning: The appeal was upheld. The Domestic and Family Violence Act 2012 (Qld) makes clear that the formal rules of evidence do not apply and gives the Court broad powers to ‘inform itself in any way it considers appropriate’ (see s 145). However, the court obviously still has an obligation of procedural fairness. Dick SC DCJ explained that in hearing and determining an application for a protection order, ‘there still must be evidence in the sense of there being some material put before the Court which provides a rational basis for the determination and it must be put before the Court in a way which gives the opposite party the opportunity to challenge that evidence and put the opposite party’s case in relation to the matter’ (See at [11]). The Magistrate’s directions did not exclude the appellant’s sworn application as evidence. Therefore, the Magistrate’s conclusion that there was no material before the Court was an error of law. The Magistrate did not consider and determine the application. As such, it is clear that an aggrieved person can rely solely on the application as evidence without the need for further affidavit evidence. The respondent can then respond to the application if they choose. The application was remitted back to the Magistrates’ Court for determination by a different magistrate.

  • GKE v EUT [2014] QDC 248 (27 August 2014) – District Court of Queensland
    Costs’ – ‘Domestic violence order’ – ‘Emotional and psychological abuse’ – ‘Family law’ – ‘Following harassing, monitoring’ – ‘Harassing’ – ‘Intimidation’ – ‘Necessary or desirable’ – ‘Systems abuse

    Appeal Type: Appeal against the making of a domestic violence order.

    Facts: A domestic violence order was made in the Magistrates’ Court against the appellant in favour of the respondent. There had already been orders made in the Family Court in relation to arrangements for their three children. The appellant filed for enforcement of these orders in the Family Court. He attended the respondent’s home for the purpose of serving court documents. When the respondent opened the door, she closed it immediately because she felt frightened. This incident and other prior incidents led to the application for the order.

    Issue/s:

    1. Whether the appellant’s commencement of proceedings in the Family Court and the personal service of documents on the respondent constituted intimidation or harassment sufficient to meet the definition of emotional or psychological abuse and therefore domestic violence within the meaning of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).
    2. Whether a protection order was necessary or desirable to protect the respondent from domestic violence.
    3. Whether costs should be awarded against the respondent.

    Decision and Reasoning: The appeal was upheld.

    1. McGill DCJ upheld the Magistrate’s finding that the incident at the respondent’s home constituted domestic violence. His Honour considered the definition of ‘emotional and psychological abuse’ in s 11 of the Act. He noted that the issue is whether the behaviour is subjectively intimidating or harassing to the other person. Therefore, evidence of the subjective response of the aggrieved is relevant (see at [21]). His Honour noted at [22] that while examples in the Act refer to persistent conduct, intimidation within the meaning of s 11 could arise from a single incident. However, harassment cannot arise from a single incident. His Honour stated that there has to be ‘some element of persistence’ such that, ‘It is not just a question of whether the aggrieved finds something upsetting’ (see at [23]). As such, while the incident at the house amounted to domestic violence, the Family Court application itself was not an example of domestic violence –

      I suspect it would be possible for the making of repeated applications to the Family Court without justification to amount to “harassment”, though it would have to be a clear case; it would certainly not be harassment simply because from time to time the respondent denied the appellant access to the children and he made an application to the Family Court to obtain it’ (see at [20]). The mere fact the appellant takes steps to enforce Family Court orders does not and cannot constitute domestic violence. Conversely, the respondent unjustifiably withholding the children cannot justify domestic violence by the appellant.

    2. McGill DCJ noted that this question is concerned with the future. Another relevant consideration was that while the respondent did not want to see the appellant at all, the terms of the Family Court order and the presence of the children dictated that there had to be some continuing contact between the parties.

      See at [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 is necessary or desirable to make an order in order to protect the aggrieved from that…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….’

      The evidentiary basis for this risk must amount to more than the mere possibility of such conduct occurring (See at [33]). It is also relevant to consider the seriousness of the violence that is threatened, the credibility of the threat and the practical consequences of the order on the person against whom the order is made. For example, a no contact order ought not be made where some contact is necessary in relation to children (see at [42]-[43]). In applying these principles, his Honour found that it was not necessary or desirable to make an order. His Honour noted that while it was possible that circumstances could arise which amount to intimidation, the issues relating to the children remain in the Family Court. It would not be appropriate to make a protection order to interfere with the appellant’s right to enforce his rights in that jurisdiction. There was no real risk of domestic violence as long as the respondent complied with the Family Court orders (see at [67]).

    3. Costs were not ordered in favour of the appellant. Section 157 of the Act provides that each party must bear their own costs unless the court decides that their application was malicious, deliberately false, frivolous or vexatious. It is not clear whether this section applies to an appeal. However, his Honour concluded that while the general power to award costs under s 15 of the Civil Proceedings Act 2011 has not been expressly excluded by the Act, that power should be exercised having regard to the specific costs provision in s 157. Therefore, it is not simply a matter that costs follow the event for this type of proceeding. In any case, an adverse costs order against the respondent was not appropriate.
  • TND v Queensland Police Service [2014] QDC 154 (18 July 2014) – District Court of Queensland
    Assault’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Breach of domestic violence order, assault of a police officer.

    Appeal Type: Appeal against sentence.

    Facts: The appellant and the aggrieved were drinking, then returned home (in the Normanton district). Following a dispute, the appellant became agitated and punched the aggrieved, causing a minor injury. After police were called, officers were forced to use capsicum spray to subdue the appellant. He continued to threaten violence after his arrest. He had a long criminal history including many property and drug offences. He had one prior conviction for breaching a domestic violence order, for which he was fined $100. He submitted this matter was not one of ‘significant gravity’ (See at [9]). The appellant submitted in the Magistrates’ Court that the relationship was not one characterised by violence. Following pleading guilty, he was sentenced to six months’ imprisonment with immediate parole release for the breach offence. He was sentenced to one month imprisonment wholly suspended for an operational period of nine months for the assault offence. In his sentencing remarks, the Magistrate referred to crime statistics and noted the prevalence of breaches of domestic violence orders and offences against police in the Normanton district, which necessitated a strong element of general deterrence in sentencing.

    Issue: Whether the sentence for the breach offence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The Court acknowledged that the Magistrate did err by not properly indicating how he took into account of the plea of guilty, and by using the statistics, which were found to not be reliable. Mitigating factors included the appellant’s youth and his early plea of guilty. The relationship was long-term and was not characterised by actual violence. His criminal history, while relevant, was minor. However, at [35] Bradley DCJ emphasised that domestic violence involving psychical violence is a serious issue and the appellant did cause some injury to the aggrieved. He had been recently convicted of breaching a protection order and general and specific deterrence were important. He was subject to various court orders when he committed the offence. The maximum penalty was three years. As such, the sentence was held to be appropriate.

  • R v MKW [2014] QDC 300 (18 June 2014) – District Court of Queensland
    Abuse of process’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double jeopardy and other charges’ – ‘Double punishment’ – ‘Grievous bodily harm’ – ‘Permanent stay of proceedings’ – ‘Physical violence and harm

    Charge/s: Grievous bodily harm.

    Proceeding: Application for a permanent stay of proceedings.

    Facts: An indictment before the District Court charged the applicant with grievous bodily harm. The incident involved the applicant drinking alcohol in a group which included the complainant (his de facto partner). An argument ensued. The applicant struck the complainant with a collapsible chair. He was charged with breaching a domestic violence order, pleaded guilty in the Magistrates’ Court and was sentenced to 12 months’ imprisonment with parole release after four months. The police then obtained a medical report indicating that the complainant’s injuries, if left untreated were likely to have caused ‘disfigurement or loss of vision’ and could have proved life threatening (see at [3]). As a result, he was then charged with grievous bodily harm (GBH) three days after being released from custody.

    Issue/s: Whether the continued prosecution of the GBH charge would constitute an abuse of process under s 16 of the Queensland Criminal Code because the applicant had already been punished for the same act.

    Decision and Reasoning: The application was dismissed. O’Brien DCJA considered the test as applied in R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014). His Honour concluded at [9] that the applicant was punished in the Magistrates’ Court for the act of striking the complainant with the chair and that it was this same act which formed the basis of the GBH charge. Ordinarily, to punish the defendant again for that same act would contravene s 16 of the Code. However, the Crown submitted that s 138 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) operates to authorise the continued prosecution of the GBH charge. The Court accepted this argument. The crucial issue was whether the original prosecution for the breach offence against the Act constituted a ‘proceeding’ under that act. If it did, s 138(3)(a) would apply so that the prosecution for the breach offence would not affect any other proceeding against the applicant arising out of the same conduct. His Honour concluded that the prosecution for the breach offence was a proceeding under the Act (see at [15]). As such, R v Dibble; ex parte Attorney-General (Qld) (where a permanent stay was granted) was distinguished on the basis that the Act specifically authorises continuation of the prosecution. However, this issue has not been authoritatively resolved and uncertainty remains. See at [17] where his Honour states –

    ‘I should add that, if my tentative view of s 138(4) of the legislation is correct and if the applicant were to be convicted of the indictable offence, then the question remains as to whether s 16 of the Code prohibits him being further punished for that offence. At the very least, I would consider that ordinary and well-established sentencing principles would require that regard be had to the penalty imposed in the Magistrates Court for the breaching offence.’

    See pages 88-91 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book and the summary of R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014) for further information.

  • W v Queensland Police Service [2013] QDC 87 (2 May 2013) - District Court of Queensland
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Criminal history’ – ‘Physical violence and harm’ – ‘Possession of dangerous drug’ – ‘Sentencing

    Charge/s: Assault occasioning bodily harm, breach of domestic violence order, possession of dangerous drug.

    Appeal type: Appeal against sentence.

    Facts: Following an argument with the complainant, the appellant followed her, grabbed her by the harms and threatened her. She broke free, but was punched by the appellant in the right side of the jaw, causing her to bleed profusely. He was highly intoxicated. That constituted the assault offence. He was found to be in possession of cannabis at the time. The breach involved the same complainant. That offence occurred when she was heavily pregnant. The appellant demanded she have sex with him and she refused. He threw her phone at her and punched a door. He was intoxicated. He had a criminal history consisting of various street offences, one conviction for assault occasioning bodily harm and one conviction for breaching a domestic violence order. He was sentenced to three months’ imprisonment for the breach charge and nine months’ imprisonment for the assault charge, and fined $400 for the drug charge.

    Issue/s: Whether the penalty was too severe. More specifically, there were issues concerning –

    1. Whether the Magistrate misapplied Earl v Heron [2011] QDC 183.
    2. Whether the Magistrate gave excessive weight to the appellant’s criminal history and the need for specific deterrence.

    Decision and Reasoning: The appeal was dismissed.

    1. In relation to Earl v Heron, the appellant submitted inter alia that - in that case the offender committed a random act of violence on a stranger. This case concerned violence during a heated domestic argument between long term spouses, which makes this cases less serious. This argument was dismissed – with Smith DCJ concluding at [44] – ‘I do not accept the submission that an act of violence during a heated domestic argument between spouses is necessarily less serious than a random act of gratuitous violence on a stranger. It all depends upon the circumstances of the particular case.’ His Honour went on to make clear that the courts cannot condone either type of violence.
    2. In relation to the appellant’s criminal history, the Court concluded that the Magistrate was entitled to take into account the relevant prior convictions, and was also entitled to consider the injuries caused (a broken jaw), which were ‘reasonably significant’ (See at [50]). This made it an offence not at the low end of the scale.
  • Singh v Queensland Police Service [2013] QDC 37 (20 February 2013) – District Court of Queensland
    Aggravating factor’ – ‘Breach of bail condition’ – ‘Breach of domestic violence order’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse

    Charge/s: Breach of domestic violence order (2 counts), breach of bail condition.

    Appeal Type: Appeal against sentence.

    Facts: The appellant pleaded guilty in the Magistrates’ Court to two counts of breaching a domestic violence order. The order prevented him from directly or indirectly contacting the aggrieved. The parties had been in a de facto relationship for five years. The first count involved the appellant standing over the aggrieved, pointing menacingly at her. He was taken into custody and released on bail with a no contact condition. In breach of this condition, he attended her home, yelled insults at her, broke property, head butted an informant and verbally abused her, all in the presence of their children and a witness. The Magistrate acknowledged that the presence of the three young children was a serious aggravating feature. The appellant had a relevant criminal history, including four previous domestic violence convictions committed against the aggrieved. The Prosecutor provided minimal assistance to the Magistrate as to the appropriate sentence. He was sentenced to nine months’ imprisonment followed by two years’ probation for each count, to be served concurrently. He was convicted and not further punished for the breach of bail.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was initially dismissed. Robertson DCJ commented that it is ‘regrettable’ (see at [7] & [25]) that the prosecutor did not provide the Magistrate with any assistance as to the appropriate sentence. The Court held that these acts were a ‘nasty and prolonged’ (see at [29]) example of domestic violence against a vulnerable complainant, by an offender who had a long history of violence against the same woman. He had previously shown disregard for court orders, and in this case also showed complete disregard for the bail undertaking. The only mitigating factor was the early plea of guilty. While the sentences were ‘severe’, they were not so severe as to amount to an error by the Magistrate.

    (The appeal was then re-opened and upheld due to a procedural issue with taking into account the appellant’s prior convictions following the Court of Appeal’s decision in Miers v Blewett [2013] QCA 23 (22 February 2013). The requisite notice was not given, so the appellant’s prior convictions could not be taken into account. However, the Legislature has now amended s 47 of the Justices Act 1886 to ensure that prior convictions can be taken into account in sentencing whether or not notice has been served.)

  • LCJ v KGC and Commissioner of Police [2012] QDC 67 (30 March 2012) – District Court of Queensland
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Domestic violence order’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm

    Appeal Type: Appeal against a protection order.

    Facts: The appellant applied for and was granted a protection order (under the then Domestic and Family Violence Protection Act 1989 (Qld)). The applicant (the respondent/aggrieved) tendered evidence to the Magistrate that the appellant was physically violent to her on two occasions by grabbing her around the neck. There was also evidence that the appellant threatened to kill her if she went to the police. There was a history of violence in the relationship, which had involved verbal and physical abuse and controlling behaviour since 1992.

    Issue/s: Some of the issues concerned –

    1. Whether it was open to the Magistrate to be satisfied that the appellant committed domestic violence against the aggrieved.
    2. Whether it was open to the Magistrate to be satisfied that the appellant was likely to commit further domestic violence against the aggrieved.

    Decision and Reasoning: The appeal was allowed and the protection order was discharged.

    1. In relation to whether the Magistrate’s conclusion that the appellant committed domestic violence against the applicant was correct, Irwin DCJ concluded that the Magistrate was entitled to prefer the evidence of the applicant’s witnesses over the unsigned statements of the appellant and his witnesses. The statements tendered by the applicant were signed. The appellant’s statements were not. It was also open to the Magistrate to conclude that the appellant had continually harassed and intimidated the applicant.
    2. However, Irwin DCJ concluded that it was not open on the evidence for the Magistrate to conclude that the appellant was likely to commit an act of domestic violence again, or carry out a threat to do so. After the application was made, the applicant stated that the appellant had left the house where they were living, had not returned and there had been minimal contact since a temporary protection order was made. There was no evidence of physical violence and she said she did not feel threatened by him. As such, there was not sufficient evidence to support an inference that domestic violence was likely to occur again. While there were a string of emails that did constitute harassment, the last of these were 12 months before the Magistrate made the protection order. The appellant had also clearly indicated he wished to have no further contact with the applicant.