CEE v CNH (No. 2) [2026] QDC 91

DISTRICT COURT OF QUEENSLAND CITATION: CEE v CNH (No. 2) [2026] QDC 91 PARTIES: CEE (appellant) v CNH (respondent) FILE NO/S: No 3666 of 2025 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) ORIGINATING COURT: Magistrates Court at Pine Rivers DELIVERED ON: 10 July 2026 DELIVERED AT: Brisbane HEARING DATE: 30 March 2026 JUDGE: Heaton KC DCJ ORDER: 1. Appeal dismissed 2. No orders as to costs CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appellant applied for a protection order under s 32 of the Domestic and Family Violence Protection Act 2012 (Qld) naming her former husband as the respondent – where the application for a protection order was dismissed – where the appellant successfully appealed the decision of the magistrate to dismiss her application for a protection order – where the matter was remitted back to the magistrates court – where the application for a protection order was dismissed a second time – whether the learned magistrate erred by failing to properly apply the ‘necessary and desirable’ test – whether the learned magistrate erred by failing to consider mandatory statutory factors under s 37(2) of the Domestic and Family Violence Protection Act 2012 (Qld) – whether the learned magistrate erred by failing to consider economic abuse as domestic violence – whether the learned magistrate erred by failing to consider domestic violence at, or affecting, the child – whether the learned magistrate erred by failing to consider systems abuse and litigation abuse – whether the learned magistrate erred by failing to consider relevant material filed prior to the decision – whether the learned magistrate erred by making findings inconsistent with the evidence before the court -- 1 of 27 -- 2 Domestic and Family Violence Protection Act 2012 (Qld), s 4, s 8, s 32, s 37, s 164, s 168, s 169 AKM v CJM [2021] QDC 199 Armour v FAC [2012] QMC 22 CEE v CNH [2024] QDC 76 FAJ v FJH [2024] QDC 23 Fox v Percy (2003) 214 CLR 118 GKE v EUT [2014] QDC 248 McDonald v Queensland Police Service [2018] 2 Qd R 612 McDonald v Queensland Police Service [2017] QCA 255 MDE v MLG & Queensland Police Service [2015] QDC 151 Teelow v Commissioner of Police [2009] 2 Qd R 489 COUNSEL: The appellant appeared on her own behalf The respondent appeared on his own behalf Introduction [1] The appellant applied for a protection order pursuant to s.32 of the Domestic and Family Violence Protection Act 2012 (Qld) (the DFVP Act) naming her former husband as the respondent to that order. That hearing came before Magistrate Hennessy in the Magistrates Court at Pine Rivers and the application for a protection order was dismissed on 24 January 2024. The appellant successfully appealed that decision1 and, on 7 June 2024, the orders of Magistrate Hennessy were set aside, and the matter was remitted back to the Magistrates Court for a new hearing before a different magistrate. [2] The new hearing of that application came before the Magistrates Court at Brisbane on 7 and 8 April 2025. The evidence before the magistrate consisted of the written affidavits with exhibited documents filed by the appellant as well as a single affidavit of the respondent and a number of printed text messages tendered as exhibits in the hearing. In addition, the appellant and the respondent gave evidence and were each cross-examined in the hearing. 1 CEE v CNH [2024] QDC 76. -- 2 of 27 -- 3 [3] The magistrate delivered her decision on the application on 21 November 2025. The application for a protection order was dismissed. [4] By Notice of Appeal filed on 17 December 2025, the appellant appeals against the decision of the learned magistrate in dismissing her application for a protection order and her finding that the appellant is not a person in need of protection. She pleads seven grounds; 1. Failure to properly apply the ‘necessary and desirable’ test (error of law). a) The magistrate erred in law by failing to properly apply s.37(1) of the DFVP Act, including the requirement to determine whether a protection order was necessary or desirable to protect the aggrieved from domestic violence. b) The magistrate failed to correctly apply the three-stage process required by MDE v MLG & Queensland Police Service [2015] QDC 151 (MDE) and GKE v EUT [2014] QDC 248 (GKE) when determining whether ‘the protection order is necessary or desirable to protect the aggrieved from domestic violence’ and failed to apply the principles for administering the DFVP Act under s.4. c) Having found several acts of domestic violence proven, the magistrate failed to consider those findings cumulatively and failed to assess whether, in light of those findings, a protection order was necessary or desirable to protect the appellant from future domestic violence. 2. Failure to consider mandatory statutory factors under s.37(2) of the DFVP Act including: a) the respondent’s history of alleged and/or established domestic violence including previous orders, police call outs, and sworn evidence given under cross-examination; b) the pattern, frequency and escalation of the respondent’s conduct; c) the impact of the respondent’s past conduct on the appellant; d) the impact of the respondent’s conduct on the child, including exposure to domestic violence; -- 3 of 27 -- 4 e) evidence before the court of breaches of an existing Temporary Protection Order, including the respondent attending the appellant’s residence and the child’s day-care contrary to the terms of that order; f) the magistrate erred by failing to treat those breaches as relevant to risk, instead mischaracterising them as permissible conduct or as parenting- order matters; g) the cumulative effect of coercive control and system abuse on the appellant’s safety, wellbeing and risk of future domestic violence; and h) evidence before the court relevant to future risk, including ongoing controlling and retaliatory behaviours. 3. Failure to consider economic abuse as domestic violence (error of law). a) The magistrate erred in law by failing to treat established acts of economic abuse as domestic violence within the meaning of s.8(1)(d) of the DFVP Act, including; • withholding the appellant’s wallet; • removing the vehicle used to transport the child; and • blocking access to mortgage redraw funds; despite accepting, or not disputing that those acts occurred, the magistrate failed to incorporate them in the necessary or desirable assessment. 4. Failure to consider domestic violence at, or affecting, the child. a) The magistrate erred in law by failing to consider the significance of acts of domestic violence that directly or indirectly affected the child, including coercive and controlling conduct involving the child and acts found to have impacted the appellant’s ability to meet the child’s needs. Under s.8(4) of the DFVP Act behaviour that causes a child to be exposed to domestic violence is itself domestic violence. 5. Failure to consider systems abuse and litigation abuse. a) The magistrate erred in law by failing to consider the respondent’s conduct of filing multiple cross-applications; filing a second cross-application before the first decision was handed down by the Magistrates Court at Pine -- 4 of 27 -- 5 Rivers and then withdrawing that on the first day of the second hearing, utilising police and administrative systems in a manner consistent with coercive control. Such conduct was relevant to the pattern of coercive control and the assessment of future risk and should have formed part of the s.37 assessment. 6. Failure to consider relevant material filed prior to the decision. a) The magistrate erred in law by failing to consider relevant material placed on the court file prior to the delivery of judgment, despite the courts confirming in writing that such material had been received. That material included allegations and evidence of withholding the child, gate keeping, medical manipulation, an alleged QPS breach currently before the court, and other coercive behaviours directly relevant to the assessment of future risk. Failure to consider relevant material before the court constitutes an error of law. 7. Making findings inconsistent with the evidence before the court. a) The magistrate erred in law by accepting the respondent’s explanations in circumstances where they were inconsistent with the evidence, contradicted by documentary exhibits, or inconsistent with previous sworn accounts, without providing adequate reasons. This constitutes an error of law in the exercise of discretion. [5] There is considerable overlap in the various grounds, but I will deal with each of them in turn. In essence, the collection of pleaded grounds amount to the submission that the magistrate failed to have regard to the evidence of domestic violence, in its various forms, by the respondent towards the appellant, and factual findings made by the learned magistrate ought to have resulted in the making of a protection order. She submits that the error is found in the failure to carry her factual findings through into the ‘forward looking’ assessment of future risk which is required by s.37 of the DFVP Act. Factual Background [6] The appellant, CEE and the respondent, CNH, commenced their relationship in 2016 and married in April 2019. At that time, CEE had three children to a prior relationship and CNH had one child. During the marriage, they had a child together. Their -- 5 of 27 -- 6 relationship deteriorated and in July 2022 they separated. CEE made an application for a Temporary Protection Order on 20 July 2022 which was granted in favour of herself and all of her children. [7] The Temporary Protection Order provided that the respondent must be of good behaviour towards the appellant and not commit domestic violence against her, that he must be of good behaviour towards the appellant’s children and their daughter, that he is prohibited from contacting directly or indirectly the appellant subject to certain exceptions, that he is prohibited from following, remaining or approaching within 100 metres of the appellant subject to certain limited exceptions, that he is prohibited from entering, attempting to enter or approaching within 100 metres of where the appellant lives or works or is currently staying, and that he is prohibited from using the internet to communicate with or publish other matters concerning the appellant. The appellant now seeks a protection order in the same terms. [8] In November 2022, CNH commenced proceedings in the Federal Circuit and Family Court of Australia which concluded with parenting orders being made on 4 September 2024 in relation to their shared child giving the primary care of the child to the appellant. That order was varied on 24 August 2022 and 26 October 2022 by consent and without admissions. The Hearing in the Magistrates Court [9] As noted above, the relevant hearing took place on 7 and 8 April 2025. The appellant was self-represented. The respondent was represented by a solicitor. The parties agreed about the manner in which the hearing would be conducted including that the hearing would proceed on the basis of the material filed in the proceedings to be the evidence in chief and that each of the parties would be available for cross- examination, commencing with CNH. [10] The appellant’s filed evidence consisted of five affidavits which outlined detail of the relationship between her and the respondent and the events within it relied upon to support her application for a protection order. In addition, she tendered 15 further exhibits including documents such as various correspondence and text messages. The respondent’s filed evidence consisted of a single affidavit and two exhibits of text messages. -- 6 of 27 -- 7 [11] At the hearing, the parties agreed that the acts alleged by the appellant to be acts of domestic violence relevantly relied upon to support the making of the protection order were reduced to writing in the form of a schedule enumerating 40 acts. That schedule was admitted in the proceedings as ‘Exhibit A’, and it was used as a focus for the evidence and cross-examination of the appellant and the respondent. That schedule was also the foundation for the consideration of the issues in the decision of the presiding magistrate. [12] The magistrate noted that the evidence in the hearing was admitted without objection and included material relied upon in the earlier hearing, as well as the entire transcript of the earlier hearing.2 In addition to the written material, CNH was cross-examined by the appellant extensively, and CEE and her witness, were also cross-examined by the respondent’s solicitor. The cross-examination of both parties was clearly and helpfully focussed on the 40 acts alleged to be domestic violence as set out in the Exhibit A schedule. [13] At the end of the evidence, CNH’s solicitor made brief oral submissions supplemented by written submissions. CEE was given the opportunity to present her arguments in writing. Her written submissions were filed on 17 April 2025. [14] Section 37 of the DFVP Act sets out the circumstances in which a court may make a protection order. In s.37(1) of the DFVP Act, a court may make an order if satisfied of three things; firstly that a relevant relationship exists between the parties; secondly, that the respondent has committed acts of domestic violence (as that is defined within the DFVP Act), and thirdly, that a protection order is necessary or desirable to protect the aggrieved from domestic violence. In this case, there was no dispute that a relevant relationship existed. The focus therefore was on the second and third of the essential criteria for the making of an order. [15] The material filed by the appellant evidenced the history of the relationship and conduct between the appellant and the respondent. The material was detailed and voluminous and contained the evidence of the events alleged by the appellant to be acts of domestic violence as set out in Exhibit A. [16] It was well understood that the question for determination was whether any of the 40 alleged acts set out in Exhibit A were domestic violence,3 and then, on the basis of 2 contained within Exhibit 3, affidavit of MSJ filed on 1 August 2024. 3 s.37(1)(b) of the DFVP Act. -- 7 of 27 -- 8 that conduct, or whatever of it was accepted by the magistrate, whether a protection order was necessary or desirable to protect the appellant from domestic violence. It was therefore necessary for the presiding magistrate to assess the evidence to determine whether any of the alleged acts did constitute domestic violence, and then whether, on the basis of the acts she was satisfied about, in the context of the broader evidence relevant to the relationship between the parties, a protection order was necessary or desirable to protect the aggrieved from domestic violence.4 Further Evidence – Emails Sent to the Court After the Hearing [17] Following the hearing on 7 and 8 April 2025, the appellant emailed the court with allegations of further matters which she asked to be brought to the attention of the presiding magistrate. The material was never formally filed or exhibited to an affidavit, and no application to adduce further evidence was made. Of that material, in particular, on 31 October 2025, the appellant emailed the court (and cc’d the respondent’s solicitor), setting out allegations of post hearing conduct and ongoing breaches by the respondent. On 13 November 2025, she emailed again and advised the court simply that she had made a formal complaint to police alleging a breach of the Temporary Protection Order then in place. [18] The relevance of this material to the appeal is unclear. The material is simply allegations of other conduct which has not been put formally before the court and therefore not tested. At the commencement of the hearing of this appeal, the appellant was concerned to ensure that the material was ‘before the court’ but she said that she was ‘not relying on this evidence’, and ‘I’m not relying on them as actual evidence, but their context is relevant to the fact that it was ongoing at the time, so future risk’. She acknowledged that the magistrate ‘did reference some of that in her decision making, so it was…it’s relevant for future risk’. [19] The respondent informed the court that he had not previously seen the emails and was not aware of the contents. He was provided with a copy of the documents only, it seems, at the hearing of this appeal. [20] The appellant contends in Ground 6 that an error of law by the magistrate occurred by her failure to consider ‘relevant material filed prior to the decision’. It is helpful 4 s.37(1)(c) of the DFVP Act. -- 8 of 27 -- 9 to deal with this contention at the outset so as to ensure that all relevant material is considered in the determination of the issues raised in this appeal. [21] At the end of the hearing in the magistrates court, the appellant was given the opportunity to file written submissions. The magistrate clearly explained the limits of those submissions, that is, concerning only the evidence presented at the hearing and the appellant’s submissions as to what the magistrate should make of that evidence. The magistrate specifically explained that if there were matters raised in the submissions that required the court to reconvene, they were at liberty to ‘raise that with the registry’. [22] It seems that the court did not reconvene to consider the additional evidence sent to the court in the form of an email in which further allegations were made. Given the informality of the new allegations being raised in an email and that they were untested assertions of further conduct in the context of serious credibility issues on the part of the appellant, it is unsurprising that they were given no weight by the magistrate in the consideration of the issues in the application. I can find no reference to the material in the lengthy reasons published by the magistrate. [23] It is difficult to know what should be made of them in this appeal hearing. The appellant was at pains to ensure that I had them, but disclaimed reliance on them as ‘actual evidence’ but asserted that the contents were relevant to future risk. Whilst ordinarily some allowance must be made for the fact that the appellant is representing herself, she has demonstrated through these proceedings, considerable awareness of the court’s processes and the need to place evidence to be relied upon before the court in a formal way. The failure of the magistrate to refer to this material or to take it into account does not evidence error. It was not properly before the court and there was no opportunity for it to be tested. [24] Further, the nature of the allegations made in the email of 31 October 2025 continue the theme of the complaints within much of the schedule of 40 acts of ‘Alleged Domestic Violence’ that was the focus of the hearing and the decision of the magistrate. In the email the appellant alleges a sustained pattern of domestic violence manifested through coercive control, manipulation and breaches of court orders evidenced, she says, by the events set out therein. I am unable to conclude that the alleged events evidence the ‘sustained pattern of domestic violence’ she alleges. The appellant has, in my assessment of the whole of the record of these proceedings, -- 9 of 27 -- 10 demonstrated a proclivity to view every interaction between her and the respondent through the prism of him having some nefarious intention to control, manipulate or harm her. The factual events she alleges in these emails, even if they were accepted by the respondent, fall well short of demonstrating that to be so. If I were to form any view based on this fresh evidence and the attempts by the appellant to include it within the material for consideration by the magistrate, it is that there is an atmosphere of continued hostility and disrespect between these two former partners which is impacting on their capacity to conduct their continued interactions for the sake of their shared daughter with dignity and respect. That does not however support the making of a protection order. Rather than being evidence of sustained domestic violence (as that is defined), what more powerfully emerges is that the appellant has attempted to seize upon every failure by the respondent to strictly follow the terms of the parenting order, no matter how trivial or explicable, to advance her legal positioning within this unfortunate relationship. [25] No application to adduce fresh evidence was made, in fact, the appellant, despite advancing some ‘context relevance’, told me that she was not purporting to rely on these emails as ‘actual evidence’. Regardless, were I to make allowances for her being self-represented and treat this as an application to adduce fresh evidence, good reason has not been shown for the admission of further evidence and the contents of these emails would, in my view, have no material effect on the consideration of the issues in this appeal and I would therefore refuse the application. [26] That deals with Ground 6, which must fail. The Relevant Legislative Framework [27] A person who is aggrieved by a decision to refuse to make a protection order may appeal against that decision by virtue of s.164(c) of the DFVP Act. That appeal is then to be decided on the evidence and proceedings before the court below, unless the appellate court makes an order to the contrary.5 Subject to what I have explained about the emails referred to above, no submission was made by either party that the appeal should be determined otherwise. It is appropriate that I proceed on the basis that this appeal is in the nature of an appeal by re-hearing on the record. As such, I am required to conduct a real review of the evidence at the trial, and the magistrate’s reasons, and make my own determination of relevant facts in issue from the evidence, 5 s.168 of the DFVP Act. -- 10 of 27 -- 11 giving due deference and attaching a good deal of weight to the magistrate’s view, she having had the benefit of seeing and hearing the witnesses give evidence and be cross-examined as part of the process of evaluating credibility and reliability.6 [28] In such an appeal, this court’s jurisdiction to interfere with the orders below is not enlivened unless the appellant can establish some legal, factual or discretionary error.7 The onus is on the appellant to show that there is some relevant error in the decision the subject of the appeal. [29] The powers to dispose of the appeal are found at s.169 of the DFVP Act. The appellant seeks primarily that the decision of the magistrate made on 21 November 2025 be set aside and that I substitute an order granting a protection order in favour of the appellant in the same terms as the Temporary Protection Order previously put in place on 20 July 2022. The respondent submits that the appeal should be dismissed. [30] Given the contentions of the appellant in this appeal, it is necessary to set out something of the legislative framework of the DFVP Act. The principles for administering the DFVP Act are set out in s.4 giving primacy to the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, is paramount. Section 8 defines ‘Domestic Violence’ in the following terms: ‘Domestic violence means behaviour, or a pattern of 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.’ [31] The definition goes on in subsection (2) to provide that the behaviour, or a pattern of behaviour, may occur over a period of time; and may be more than one act, or a series 6 Fox v Percy (2003) 214 CLR 118 at [22]-[25]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. 7 Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4]; McDonald v Queensland Police Service [2017] QCA 255 ibid. -- 11 of 27 -- 12 of acts, that when considered cumulatively is abusive, threatening, coercive or causes fear in a way mentioned; and is to be considered in the context of the relationship between the first person and the second person as a whole. In subsection (3), a non- exhaustive list of behaviours is expressly stated, and in subsection (5), the legislation provides for the making of an order on the basis of behaviour even if the behaviour is not proved to the criminal standard of beyond reasonable doubt. [32] Section 37 then provides the circumstances in which a protection order may be made by a court. The requirements of s.37 is the focus of the failures said by the appellant to arise in this case. Relevantly, it provides; ‘37 When court may make protection order (1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that— (a) a relevant relationship exists between the aggrieved and the respondent; and (b) the respondent has committed domestic violence against the aggrieved; and (c) the protection order is necessary or desirable to protect the aggrieved from domestic violence.’ [33] In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence the court must consider the principles mentioned in s.4; and any relevant criminal or domestic violence history.8 [34] As noted, in the circumstances of this case, there is no dispute that a relevant relationship exists between the appellant and the respondent. The question that arose at the hearing of the application for a protection order was whether it was necessary or desirable that a protection order be made so as to protect the appellant from domestic violence, given the acts of domestic violence committed by the respondent. The basis upon which it was said by the appellant, in the circumstances of this case to be ‘necessary or desirable’, was because the respondent had committed acts of domestic violence, namely those set out in the schedule of 40 alleged acts (Exhibit A). [35] The learned magistrate appropriately therefore focused her consideration of the circumstances of the allegations of domestic violence set out therein, and then, 8 s.37(2) of the DVFP Act. -- 12 of 27 -- 13 considered whether, in light of her findings about those acts, a protection order was necessary or desirable to protect the aggrieved from domestic violence. [36] In considering an application of this nature, the issue for the court is not simply whether an aggrieved wants an order to be made, or whether she would feel better if an order was made, but whether the making of a protection order is ‘necessary or desirable’, specifically for the purpose of protecting the aggrieved from domestic violence.9 [37] The full implication of the phrase ‘necessary or desirable to protect the aggrieved from domestic violence’ lies in understanding a requirement to assess the prospect or risk of future acts of domestic violence occurring, in the absence of an order, and in thereby determining whether such prospect or risk is sufficiently significant as to make it ‘necessary or desirable’ to make an order in all of the circumstances.10 [38] In this case, that appropriately required an assessment of all of the evidence of the relevant history of this relationship with a focus on the acts alleged to be domestic violence said to give rise to the conclusion that the risk of future acts of domestic violence was such as to require the making of a protection order. [39] In her detailed reasons, the learned magistrate set out the evidence relevant to each of the alleged acts of domestic violence and made findings about them. Whilst there was some concurrence in the evidence of the parties as to the events, the circumstances in which the various events occurred was often in conflict. In making her findings, the magistrate had the opportunity to assess the credibility of each of the parties and to make findings of credit. She found that both the appellant and the respondent were lacking in credibility and that impacted on her findings. I can find no error in the analysis of the evidence and no basis upon which to question the validity of her findings. Findings of Domestic Violence [40] Overall, the learned magistrate found very few of the alleged events to amount to domestic violence. She did find the following four events to be domestic violence; 9 see AKM v CJM [2021] QDC 199 per Sheridan DCJ at [70]). 10 Adopting what was said by Long DCJ in FAJ v FJH [2024] QDC 23 at [19] -- 13 of 27 -- 14 [41] Act 7: 9 to 20 July 2022. The appellant left the family home following the argument in the kitchen on 8 July 2022 (Act 3) and in doing so, left behind her wallet. She returned to collect her wallet and passports of herself and the children, as well as other items but she was unable to locate her wallet and passports. The respondent denied having taken them. In correspondence by text message thereafter, the magistrate concluded that ‘the respondent used the return of the wallet as a bargaining chip in the early days, post separation’. She found this to be an act by the respondent to exert control over the appellant, denying her access to her finances when she had the care of four children, and that it was therefore an act of domestic violence. Similarly, his attempt to deny her possession of her passport was coercive behaviour and an act of domestic violence. [42] In relation to these events, the magistrate found the evidence of the respondent to be unconvincing. [43] Act 8: 12 July 2022. The appellant returned to the family home on 12 July 2022 to find that all of the locks had been changed. The magistrate found that the respondent had deliberately withheld providing the new keys to the appellant so as to prevent her from accessing her own home. As such, this was an act of economic abuse such as to amount to domestic violence. [44] Act 15: 31 July 2022. The respondent attended at the former family home in the company of police and took the KIA car. It was common ground that the car was taken that evening with the assistance of the police. It was a car apparently purchased through the respondent’s business and the appellant ultimately did not resist it being taken. However, the magistrate found that it left the appellant without a vehicle to transport her school aged children and baby. The respondent knew that she did not have access to another vehicle whereas, it seems that he did have access to other vehicles through his business. As a result, the magistrate found this to be an act of economic or emotional abuse amounting to domestic violence. [45] Act 19: January 2023. The respondent unilaterally blocked the appellant’s access to the mortgage redraw facility. The respondent accepted that he did block the appellant from access to the redraw facility but only after she had withdrawn some money from the facility, and then only so as to prevent her from increasing the debt. The appellant also accepted that she did withdraw from the facility in order to meet household expenses for her children and herself. The magistrate found that his actions in -- 14 of 27 -- 15 blocking her access to the jointly held mortgage and preventing her from accessing funds for day to day living was financially controlling and an act of economic abuse amounting to domestic violence. [46] It can be observed the Acts 7, 8 and 15, which were found to have been domestic violence, occurred early in dissolution and post separation period of this relationship, and Act 19 was a little later, but still early in the process of this couple settling into the new state of their severed relationship. [47] I note that the learned magistrate did not expressly make any findings in relation to Act 1, involving an allegation that the respondent ‘shoved’ the appellant against a wall. That event occurred in the context of an argument over a heater in the respondent’s son’s room, which the appellant decided to remove so as to provide it to the other children. Whilst, on the evidence, it can be accepted that some physical contact likely occurred between the two of them in the heat of that event, I am unable to conclude, in my own assessment of the evidence, that it amounts to an act of domestic violence which can be attributed to the respondent. Throughout the evidence in this case, the appellant has demonstrated, in my assessment, a capacity to hold and assert strong views. This was likely an example. She saw the situation about the heater one way, and he saw it another. Her attempt to remove the heater, and his attempt to block her from doing so likely resulted in contact, but it is not an act which, in my view amounts to domestic violence which can be attributed only to the respondent. Regardless, it is an act, which may nonetheless provide some context to the pattern of behaviour relevant to the assessment as to whether it is ‘necessary or desirable’ for a protection order to be made so as to protect the appellant from the risk of domestic violence. [48] Of the other acts, the magistrate was either not satisfied that the acts as alleged occurred at all, or that if they did, they did not amount to domestic violence. Of those remaining acts, the following observations are perhaps relevant; [49] Act 2: 7 June 2020. The respondent threatened to slash the appellant’s tyres with a knife. The appellant alleged that this event occurred on what was to be a romantic getaway to Maleny. Instead, they argued and in the heat of the argument the respondent asked for the keys to the car so that he could get to a higher location for phone service. The appellant consistently refused, instead insisting that they continue to talk. She alleges that in the midst of this conflict, he obtained a knife, threatened -- 15 of 27 -- 16 to slash the tyres of the car with it, and went outside to the car. She says she videoed at least part of this event, but she has been unable to produce the video. He accepts that he threatened to let the tyres down with a pen and denied ever having a knife. [50] The learned magistrate, with the benefit of having seen the parties give evidence, did not accept the appellant’s evidence but she did accept, on balance, that the respondent threatened to let the tyres down with a pen. She made no finding as to whether the event was an act of domestic violence. I am unable to conclude, in my own assessment of the evidence, that it amounts to an act of domestic violence which can be attributed to the respondent. It is, however, an act which may nonetheless provide some context to the pattern of behaviour relevant to the assessment as to whether it is ‘necessary or desirable’ for a protection order to be made so as to protect the appellant from the risk of domestic violence. [51] Act 3: 8 July 2022. This was, it seems, the catalyst for the separation. During an argument about who of the children should be doing the dishes, the dish rack containing glassware was knocked from the bench by the respondent causing the contents to smash on the floor. The appellant alleged it was a deliberate act by the respondent. He explained that it was an accident caused when he moved to prevent her from lunging at his son. The learned magistrate, with the benefit of having seen the parties give evidence rejected the evidence of the appellant and found the respondent’s evidence more credible. This is not therefore an act of domestic violence relevant to the question that arises on this appeal but may provide some context in which the assessment of ‘necessary or desirable’ can be made. [52] The learned magistrate found the following alleged acts to be not acts of domestic violence: Acts 4, 6, 9, 11-13, 16-18, 20, 21, 23-25 and 27-40, [53] Further, she was unable, on the evidence, to conclude that five of the alleged acts, that is, Acts 5, 10, 14, 22 and 26, occurred as alleged. [54] Having made her findings on the evidence, and having found there to have been some acts of domestic violence, she then turned to consider the question required by s.37(1)(c) of the DFVP Act, that is, whether a protection order is ‘necessary or desirable’ to protect the appellant from domestic violence. -- 16 of 27 -- 17 Finding as to ‘Necessary or Desirable’? [55] The learned magistrate recognised that the question required an assessment as to the risk of future domestic violence based on the evidence before the court.11 The evidence established that the appellant and the respondent had been separated since July 2022. Neither party wishes to renew the relationship. They have no continuing social or business interests and the property settlement in relation to their finances and assets has been completed. They remain jointly responsible for the young child of the relationship, however, and so continued contact is inevitable. [56] A final parenting order is in place to regulate the shared responsibilities of the parties in relation to their child. [57] A Temporary Protection Order has been in place essentially since July 2022. Subject to only to the contents of the emails which I have discussed above and place no weight on, the respondent has not been charged with any breaches. [58] The learned magistrate considered whether there was more than a mere possibility or speculation of future domestic violence. She concluded, having regard to the features established by the evidence in this case that any risk of future domestic violence was no more than speculative and that it was neither necessary nor desirable that a protection order be made. Contrary to the contentions of the appellant in this appeal, the magistrate’s assessment was clearly forward looking, and based on her assessment of the evidence she had carefully assessed. The Contentions of the Appellant in this Appeal [59] As noted above, the appellant pleads seven grounds in her contention that the magistrate erred and the appeal should be allowed. There is some overlap in the contentions which distil into a contention that the learned magistrate failed to properly apply to requirements of s.37 of the DFVP Act, that she failed to properly consider the acts of domestic violence in the context of a pattern of behaviour towards herself and its effects on the children, that she failed to take into account the contents of the emails (dealt with above) and that the magistrate’s conclusion on the ‘necessary and desirable’ question was contrary to the evidence. 11 MDE v MLG & Queensland Police Service [2015] QDC 151; GKE v EUT [2014] QDC 248 -- 17 of 27 -- 18 [60] It is necessary to say something about each of the grounds that she promotes. I will deal with them in order. Ground 1 – Failure to Properly Apply s.37(1) of the DVFP Act (‘Necessary or Desirable’) [61] The appellant contends that the magistrate failed to properly consider whether a protection order was necessary or desirable. The challenge on this ground has a number of facets. The appellant submits that upon finding that the respondent had committed coercive behaviour and economic and emotional abuse and therefore domestic violence, the magistrate failed to consider that conduct in the context of a broader risk assessment of future violence. Instead, she submits that the magistrate’s reasoning ‘collapsed s.37(1) into a retrospective seriousness assessment’ contrary to the approach in the cases of GKE and MDE”.12 She submits that the necessary or desirable enquiry is ‘forward-looking and protective’, and therefore requires an assessment of future domestic violence in the absence of an order. She does recognise that the assessment is informed by past conduct and patterns of behaviour and the principles in s.4 of the DFVP Act. [62] In support of this ground, the appellant submits that the evidence of a prior protection order in favour of the respondent’s previous partner ought to have been, but was not, taken into account, and that the contents of the emails she sent to the court after the hearing were required to be, but were not, taken into account in making the assessment required of s.37. [63] She submits that the magistrate failed to properly consider the future parental relationships and opportunities for direct contact in the future and then failed to set out her reasons for refusing a protection order in light of the s.4 principles. [64] She submits that these errors demonstrate that the magistrate failed to apply a forward-looking assessment of the circumstances to evaluate future risk and thus the resulting decision was erroneous. Consideration [65] The contentions of the appellant are made without reference to any specific passages of the decision of the learned magistrate. It seems that the submission is that the reasons fail to demonstrate the various considerations contended by the appellant and 12 Referred to above -- 18 of 27 -- 19 that their specific absence is demonstrative of the error. I cannot accept that submission. [66] The experienced magistrate set out the relevant principles in the opening passes of her decision under the heading ‘Legislative Framework’. She then conducted a detailed analysis of the evidence of the alleged acts of domestic violence and found four of the 40 alleged acts to be domestic violence. In the concluding passages, under the heading ‘Is an order ‘Necessary or Desirable’’, she specifically referred to the need for an assessment as to the risk of future domestic violence based on the evidence before the court. That approach is consistent with the decisions of MDE and GKE to which the appellant refers. [67] The appellant does recognise that the evidence of the relationship and the history of it informs the assessment of future risk. It is, in my view, unhelpful to simply apply a label to conduct such as ‘coercive behaviour’ or ‘economic and emotional abuse’ and then ignore the particular circumstances of the actual conduct. The submissions of the appellant have a tendency to do that. The reasons of the magistrate do not. [68] The need for protection must be a real one and not speculative. There must be a proper evidentiary basis for concluding that there is a risk, and something more than a mere possibility is required. The risk of further domestic violence must actually exist and must be of sufficient weight to make it necessary or desirable to make the order in the particular circumstances of the case. The focus of the inquiry is, as the appellant submits, forward looking, in that it is the risk of future domestic violence that must be considered, not the fact of past domestic violence. Although, of course the evidence of what has happened in the past, as well as what contact will likely happen in the future, all goes to inform the sometimes difficult balancing exercise.13 [69] The reasons of the learned magistrate read as a whole, and particularly at [199] to [204], disclose her awareness of these principles and the relevant authorities (to which the appellant refers in support of her contention), as well as their application to the circumstances of the present case. Whilst her reasons might have been more fulsome, they sufficiently illuminate the reasoning in the resolution of the issues in this case. I am unable to conclude that the failures alleged by the appellant are made out. The magistrate was aware of the need to assess future risk based on the evidence in the trial. 13 See Armour v FAC [2012] QMC 22. -- 19 of 27 -- 20 [70] In my own assessment of the evidence, I can find no error in the conclusion of the magistrate. The respondent was found to have withheld the return of the appellant’s wallet and passports in order to bargain with the appellant. He changed the locks and then resisted providing her with a key to access the house. He unilaterally blocked her access to the jointly held mortgage redraw facility and he insisted on the return of the vehicle used by the appellant (but financed through the business) leaving her without a vehicle to transport her children, and their child. [71] These acts of domestic violence must be viewed in their proper context. They were actions taken by the respondent shortly after their separation in July 2022 and in the context of the heightened emotions understandably attending a life changing event such as that. Much has changed since that time. The property settlement has concluded, and a parenting order is in place. Their shared life and financial interests, apart from their daughter, are now at an end. Apart from their shared responsibilities for the welfare of their daughter, they have no interest in resuming any form of relationship. The heightened emotions that perhaps intruded on sound decision making and petty one-upmanship of the aftermath of the separation and the establishment of their new normal, is subdued. [72] The proper enquiry is not about punishing for past behaviour but in looking forward to the requirement of a protective order such as that which s.37 provides. [73] Ground 1 is not made out. Ground 2 – Failure to Consider Relevant Evidence/Taking Irrelevant Considerations into Account [74] There is considerable overlap between this ground and the contentions in Ground 1. The appellant submits that the magistrate failed to consider the evidence of the domestic violence and pattern of behaviour of the respondent when making the assessment as to whether an order was necessary or desirable. She submits that the reasons of the magistrate do not ‘engage with what the evidence revealed about coercive dynamics or future risk’. [75] Again, the appellant tends to categorise conduct and attach labels rather than focus on the specific conduct and what it says about whether an order is necessary or desirable. Simply submitting that the respondent engaged in coercive and controlling behaviour, or economic and emotional abuse does not answer the necessary question. -- 20 of 27 -- 21 [76] As to the irrelevant matters said to have been improperly considered, this seems to be focussed on the occasion when the appellant met with the respondent at a hotel after separation. The appellant has not identified where or how it is said that the magistrate impermissibly took this event into account. In any event, all of the conduct between the appellant and the respondent is potentially relevant, in that it may provide some context to the acts of domestic violence and inform something of the risk of future domestic violence and the need to protect against that risk by the use of a protection order. [77] Whilst again, it can be accepted that the reasons could have been more fulsome, the lack of greater detail in the reasoning process does not establish error. Contrary to the contention of the appellant, the magistrate’s conclusion was consistent with the evidence. The onus was on the appellant to demonstrate that an order was necessary or desirable. In my assessment of the whole of the record, the evidence in this case falls short. [78] As noted in relation to Ground 1 above, it is necessary to look particularly at the pattern of conduct and the context of it to decide whether an order is necessary or desirable. Just because the respondent has engaged in conduct, or a pattern of conduct, in the past does not, of itself, dictate that he will do so in the future, and, that an order is therefore necessary or desirable. There must be some evidential foundation for a conclusion that the risk of future conduct is such as to warrant the making of a protection order, that is, that the past conduct informs what the future conduct is likely to be. The magistrate conducted a detailed analysis of the evidence and the alleged acts of domestic violence. Her reasoning is transparent, and reflects the evidence and as well, her assessment as to the credit of the appellant and the respondent. As already noted, I can find no error in her conclusions. [79] On the other hand, the appellant has a tendency to perceive events involving the respondent from a subjective perspective and to frame otherwise potentially or ostensibly reasonable conduct in a sinister context. In my own assessment, the evidence rarely supports the perspective the appellant promotes. [80] The magistrate did not fail to take relevant evidence into account, nor did she take irrelevant evidence into account and therefore no error is established on this ground. This ground also fails. -- 21 of 27 -- 22 Ground 3 – Failure to Adequately Consider Economic Abuse as Domestic Violence [81] The appellant contends that the magistrate erred in law by failing to characterise established economic abuse as domestic violence within s.8(1)(c), and by excluding that conduct from the s.37(1) protective assessment. [82] She contends that despite the findings by the magistrate at [74] (regarding Act 7, failure to return the appellant’s wallet and passports), [106] (regarding Act 15, taking the KIA car) and [123] (regarding Act 19, unilaterally blocking the appellant’s access to the redraw facility) that those acts were acts of domestic violence, the magistrate ‘failed to characterise the conduct as domestic violence under s.8(1)(c)’. The express words used by the magistrate in her decision demonstrate the falsity of the appellant’s claim. [83] The appellant contends in the alternative, that the magistrate failed to integrate the findings into the s.37(1) ‘necessary or desirable’ assessment. There is no basis upon which such a conclusion is supported in the evidence. The three Acts the appellant refers to are three of the four (of the 40 alleged acts) acts which she found to be acts of domestic violence. As explained above, the relevance of the proven acts to the assessment as to whether a protection order is necessary or desirable lies not simply in the categorisation of the conduct as ‘economic abuse’ or otherwise, but in the circumstances of it and what it says about the risk of future domestic violence against which an order is necessary or desirable to protect the appellant. In that sense, the proven acts of domestic violence are to be considered in the context of all of the conduct between the parties, but there is nothing to support the contention that the magistrate failed to do that. [84] The appellant places some stock now on the respondent’s failure to pay child support. I note that that was not an act of domestic violence alleged in the hearing, and so no specific finding was made about that feature. Regardless, on the evidence in this case, I am not prepared to conclude that the failure to pay child support, if that is what the respondent has done, amounts to domestic violence or ‘economic abuse’ that either alone, or in combination with the other acts of domestic violence and other conduct between the parties, renders a protection order necessary or desirable. It is, in my view, a matter more properly regulated in the Family Court under the parenting order and with the powers that Court possesses for enforcement. -- 22 of 27 -- 23 [85] There is no error demonstrated in the reasoning nor the decision of the magistrate on this ground. Ground 3 also fails. Ground 4 – Failure to Consider Domestic Violence Directed at or Affecting the Child [86] The appellant next contends that the magistrate failed to properly consider the parties’ future parental relationships and the opportunities for direct and indirect contact and future communication in relation to their daughter that may give rise to the risk of future discord and the risk of domestic violence in the absence of a protection order. [87] Again, there is no foundation upon which the contention of the appellant can be accepted in this case. There can be no dispute that the principles in DVFP Act apply to children of the relationship. However, the evidence in this case does not suggest that the risk to the child is such as to render it necessary or desirable that a protection order be put in place, either alone or in combination with other evidence. That finding was implicit in the conclusion of the magistrate and no error is exposed by her conclusion in that regard. [88] The fact that the appellant and respondent share the responsibility for parenting the child of their relationship was a central feature of the evidence in the hearing. The magistrate recognised the need for future contact between the parties in her decision at [203] and [205]. The magistrate also properly recognised that the risk of future domestic violence must be more than a mere possibility or speculation in order to find that a protection order is necessary or desirable. [89] The particular circumstances of the acts of domestic violence in this case are, of course, highly relevant to inform the necessary assessment as to whether a protection order is necessary or desirable. As already noted, the particular acts found by the magistrate occurred in the immediate aftermath of the relationship breaking down. The parties have demonstrated otherwise a degree of continuing hostility towards each other but there is nothing to suggest that they cannot recognise that the best interests of their daughter are that they act responsibly and respectfully towards each other, at least in the company of their child, and that they act in the best interests of the child. Even though history suggests that there may well be disagreement about what the best interests of the child are, that does not require that a protection order be put in place. Now that a parenting order is in place, another factor transparently recognised by the magistrate, the shared responsibility for the child is best managed by the Family Court. -- 23 of 27 -- 24 [90] There is no substance in Ground 4 and it too fails. Ground 5 – Failure to Consider Systems Abuse and Litigation Abuse [91] Again, there is no dispute that the use of legal processes can amount to domestic violence in the form of system or litigation abuse. There is, however, no foundation to any suggestion that the magistrate erred in her assessment of the need for a protection order because of a lack of consideration of this factor. The protections of the DFVP Act, and indeed other laws, are available to the respondent, just as they are to the appellant. He is entitled to bring applications if he feels that circumstances warrant the making of a protection order. I cannot conclude any malice or sinister reasoning in the decision to withdraw his application at the commencement of the hearing. Despite the appellant’s insistence on a sinister perspective, his decision to withdraw may simply be a reflection of a rational assessment by him (maybe upon advice from his legal representatives) as to the merits of his application and the recognition that the circumstances as between the appellant and the respondent are not such as to warrant the making of a protection order. [92] It is also relevant that the magistrate did not accept any of the allegations of ‘systems’ or ‘litigation’ abuse as acts of domestic violence.14 In my own assessment of the evidence relating to those acts, no error is disclosed in the conclusion of the magistrate on those matters. Nor can it be properly said that the conduct either individually, nor in combination with other conduct, supports the conclusion that a protection order is necessary or desirable. [93] There is no substance in this ground and Ground 5 therefore also fails. Ground 6 – Failure to Consider Relevant Material Filed Prior to the Decision [94] I have dealt with this contention above. This is about the emails forwarded to the registry after the hearing but before the magistrate handed down her decision. There is no error in the failure of the magistrate to consider this material, which was sent to the court registry after the hearing, with no application to adduce further evidence and not properly put into evidence. Regardless, the contents of it do not support the contention that the appellant seeks to advance, so even if it were properly put into evidence, it would not change the outcome. 14 Acts 6, 11, 12, 16 and 27. -- 24 of 27 -- 25 [95] For the reasons explained above, Ground 6 fails. Ground 7 – Making Findings Inconsistent with the Evidence Before the Court [96] Whilst this ground on its face seems to advance an argument that the findings by the magistrate were unreasonable having regard to the evidence, in fact the focus of the appellant’s submissions in support of this ground is that the magistrate has not disclosed how she did not take into account evidence which the appellant contends is irrelevant. The contention of the appellant goes a step further to submit that the magistrate’s decision, that is, finding that a protection order is necessary or desirable suggests that the magistrate took into account this irrelevant evidence, because she submits, otherwise the magistrate would have found a protection order to be necessary or desirable. There is simply no substance in this ground either. [97] The appellant refers to evidence given by the respondent in the hearing in which he alleges assaults and abusive conduct by the appellant towards him. These allegations were the subject of an application by him for a protection order which was dismissed by Magistrate Hennessy on 24 January 2024. Magistrate Hennessy made findings of fact about those allegations and found them to be either ‘frivolous’ or matters for the Family Court. The appellant submits those findings should have found their way into the decision making by the magistrate in this case so as to similarly dismiss the allegations into irrelevance. [98] The appellant’s submission is misguided. Firstly, this was an entirely new hearing. Any findings of fact or credibility by the previous magistrate on the evidence given in that case are not relevant to the decisions to be made in the application for a protection order. It was for the new magistrate to make her own findings on matters relevant to the application. [99] It is however telling that the appellant promotes the findings by Magistrate Hennessy in relation to the respondent’s application for a protection order as being somehow incontrovertible, and yet Magistrate Hennessy’s findings in relation to the appellant’s application were challenged by the appellant, successfully, and resulted in a whole new hearing. This further demonstrates a lack of rational objectivity in the appellant’s perception of events, and therefore, her evidence about them and, in my view, undermines her credibility and reliability on matters where the evidence is in dispute. -- 25 of 27 -- 26 [100] Further, there is no basis upon which the conclusion can be drawn that the magistrate had regard to matters not relevant to the question that arose for her determination, that is, was a protection order necessary or desirable? The hearing before the presiding magistrate was focussed on the schedule of events said by the appellant to necessitate the making of a protection order (Exhibit A). The evidence was clearly given by each of the parties by reference to the matters raised in that schedule. The magistrate in her decision very carefully analysed the evidence relevant to each of those events to determine whether they were acts of domestic violence. Having undertaken that task, she then considered whether, in light of her findings and the circumstances of this case, a protection order was necessary or desirable. Her finding on that primary question was, in my assessment of all of the evidence relevant to those events and what they say about the relationship between the parties, soundly based and free from error. [101] The appellant’s contention that the findings made by the magistrate in this case cannot be reconciled with the evidence must be rejected. There is no substance in this ground and it too fails. Conclusion [102] The appellant has challenged the conclusion of the magistrate in refusing the application for a protection order. Despite the findings of fact to the contrary, the appellant seeks to promote the conduct alleged to be domestic violence in support of her application. Only four of the 40 alleged acts were found to be acts of domestic violence. The learned magistrate, quite properly in my own assessment of the evidence, did not find the remaining alleged acts to be domestic violence. Regardless, the appellant continues to promote the conduct of the respondent from her sinister perspective (which is, in my view, demonstrably unreliable) to support her application for a protection order. [103] The acts found to be domestic violence occurred in the immediate, or short, aftermath of the separation. That context is relevant to the assessment of whether, looking forward, there is a demonstrated need for protection from future domestic violence. Without in any way seeking to undermine the significance of those acts of domestic violence, they were committed in the context of the emotional aftermath of the relationship breaking down and were focussed on economic or emotional abuse, and asserting of respective positions, when settling into their post break up situation. That -- 26 of 27 -- 27 was in July 2022 and into early 2023. Their conduct within the relationship and in the aftermath of the breakup, may, but does not necessarily dictate their conduct moving forward. A lot of time has passed, and with it the opportunity for the heightened emotions to subdue. [104] In my own review of the whole of the evidence in this case, I am unable to conclude that the decision of magistrate delivered on 21 November 2021, was the result of some legal, factual or discretionary error. In my view, the conclusion of the magistrate reflects a sound and rational view of the evidence and its application to the relevant principles. [105] Even if that were not so, and I was to substitute my own view of the evidence to the issues that arise, I would also conclude that the evidence fails to establish that it is necessary or desirable for a protection order to be make. [106] Given that conclusion, the appeal must fail. [107] Both parties submit for an order as to costs. Given that both litigants represented themselves in this appeal, and no quantum of costs has been provided, I am not prepared to make any order as to costs. [108] Orders: 1. Appeal dismissed. 2. No order as to costs. -- 27 of 27 --