DU v TG & Anor [2022] QDC 247

DISTRICT COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: DIVISION: PROCEEDING: ORIGINATING COURT: DU v TG and Another [2022] QDC 247 DU (Appellant) v TG (First Respondent) Queensland Police Service (Second Respondent) 88/22 District Court of Queensland Appeal Southport Magistrates Court DELIVERED ON: 16 September 2022 DELIVERED AT: Southport HEARING DATE: 16 September 2022 JUDGES: Jackson KC DCJ ORDER: 1. The appeal in relation to the final order be dismissed. 2. The appeal in relation to the cross-application be allowed and the matter be remitted to the Magistrates Court at Southport to be heard and determined by a different Magistrate. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN AN APPEAL LIES – ERROR OF LAW – where the learned Magistrate made a Domestic Violence Protection order against the appellant – where the learned Magistrate refused the appellant’s cross-application – where the appellant appeals the decision under section 164 of the Domestic and Family Violence Protection Act 2012 (Qld) – whether the learned Magistrate erred in finding that the protection order against the appellant was necessary or desirable – whether the learned Magistrate erred in finding that the cross application was not necessary or desirable. COUNSEL: Self-represented for the appellant No appearance for the first respondent I Fraser (Legal Officer) for the second respondent -- 1 of 20 -- 2 SOLICITORS: Self-represented for the appellant No appearance for the first respondent Queensland Police Service for the second respondent Introduction [1] Orders were made in the Southport Magistrates Court on 2 March 2022 under the Domestic and Family Violence Protection Act 2012 (“the Act”) being a final order on a police protection notice against the appellant and a refusal of the appellant’s private application for a protection order against the first respondent, which I will call the cross-application. [2] The appellant appeals each decision by a notice of appeal filed 30 March 2022. [3] The hearing before his Honour commenced on 19 October 2021 but was adjourned to allow the appellant the opportunity to obtain a lawyer in circumstances where the second respondent’s application pursuant to s 151 of the Act was allowed such that the appellant was not permitted to personally cross-examine the first respondent. The matter came back on for hearing on 2 February 2022. However, the appellant had not obtained a lawyer and there was thus no cross-examination of the first respondent on the resumption of the hearing. One of the grounds of appeal concerns his Honour’s decision pursuant to s 151 of the Act, to not allow cross-examination by the applicant. [4] The matter was adjourned to a date to be fixed and a decision was given on 2 March 2022 in the terms I have already identified. [5] The first respondent has indicted via an email and I have also been told uncontroversial today, that she did not wish to take part in the appeal or to be contacted again.1 The second respondent has also indicated that while it is not a party to the appeal in respect of the cross-application, it concedes an error as to the adequacy of reasons for the finding that there were no acts of domestic violence perpetrated by the first respondent. 1 The email is Exhibit 1. -- 2 of 20 -- 3 Grounds of Appeal [6] There are 21 grounds of appeal. Some of them clearly concern the police protection notice while others clearly concern the cross application. In respect of others the position is not so clear. It should also be noted at this stage that the material before his Honour was voluminous and in my view the appellant was given a fulsome opportunity to cross-examine those witnesses he did cross-examine, particularly having regard to the tenuous relevance of the matters he sought to raise and the manner of cross-examination. Like his Honour, my review of that evidence reflects more poorly on the appellant than it does on the credit of the witnesses he sought to impugn by such cross-examination. [7] The grounds as follows: “This Appeal is on the grounds that: 1. The Appellant is exercising the right to appeal pursuant to section 164 of the Domestic & Family Violence Protection Act 2012. 2. The Learned Magistrate erred in law finding the 1 st Respondent committed no acts of Domestic Violence, consistent with legal abuse. 3. The Learned Magistrate erred in law finding the 1 st Respondent committed no acts of domestic violence, consistent with physical abuse. 4. The Learned Magistrate erred in law finding the 1 st Respondent committed no acts of domestic violence, consistent with sexual coercion. 5. The Learned Magistrate erred in law finding the 1 st Respondent committed no acts of domestic violence, consistent with verbal abuse, emotional abuse & coercion. 6. The learned Magistrate failed to give material consideration the 1st Respondent is predisposed to committing domestic violence, rather than a vulnerable person. 7. The learned magistrate failed to give material consideration the Appellant is a vulnerable person. -- 3 of 20 -- 4 8. The learned Magistrate erred in finding it wasn’t necessary & desirable to grant a Protection Order against the First Respondent, when having regard to the entirety of the evidence. 9. The Learned Magistrate demonstrated actual judicial bias against the Appellant, where evidence presented would not alter their decision. 10. The learned Magistrate erred in allowing unjustifiably oppressive abuse of process by the 2nd Respondent. 11. The learned Magistrate erred in law failing to apply the rule of Browne v Dunn. 12. The learned Magistrate erred in law preferring perjured, untested accusations. 13. The learned Magistrate failed to give material consideration the 1st Respondent admitted to wilfully upsetting the Appellant for months, & the Appellant became distressed. 14. The learned Magistrate failed to give material consideration to the evidence showing 2 letters presented by the 1st Respondent were not written by the Appellant. 15. The learned Magistrate failed to give material consideration the prosecution witness made false representations while obliged to tell the truth. 16. The learned Magistrate failed to give material consideration the prosecution witnesses were biased & uncredible. 17. The learned Magistrate erred in law by prohibiting the impeachment of prosecution witnesses. 18. The learned Magistrate failed to give material consideration to prior & recent exemplary conduct by the Appellant towards the 1st respondent. 19. The learned Magistrate erred in fact finding the 1 st Respondent didn’t experience psychosis & delusions, then failed to give material consideration to its implications. 20. The learned Magistrate erred in finding a Police Protection Order was necessary & desirable against the Appellant, when having regard to the entirety of the evidence. -- 4 of 20 -- 5 21. The Appellant did not receive a fair trial because the Magistrate failed to adequately sum up the Appellant’s case.” [8] Clearly the statement making up ground 1 indicates the section affording the right of appeal as opposed to being a ground of it. Otherwise, it seems to me that grounds 2 to 5 and possibly 6, 7 and 8 clearly relate only to the cross-appeal. That has some significance because as I have indicated the second respondent accepts the learned Magistrate’s reasons with respect to his decision to refuse the cross-application on the basis that there were no acts of domestic violence are insufficient such that an error of law arises.2 [9] Grounds 9 (actual judicial bias), 10 (allowing unjustifiably oppressive abuse of process by the second respondent), ground 11 (failing to apply the rule in Browne v Dunn and failing to draw a Jones v Dunkel inference) and ground 12 (that the learned Magistrate preferred perjured, untested accusations), ground 15 (that the learned Magistrate failed to give material consideration to the alleged fact that the prosecution witnesses made false representations while obliged to tell the truth), ground 16 (that the learned Magistrate failed to give material consideration to the alleged fact that the prosecution witnesses were biased and uncredible) and ground 17 (that the learned Magistrate erred by prohibiting the impeachment of prosecution witnesses) may be regarded as applicable to both appeals and can be conveniently dealt with when considering the submissions. [10] That leaves grounds 14, 18, 19 and 20 which appear to relate to the final order made rather than to the cross-application and ground 21 which appears to relate to both aspects of the appeal. Nature of the appeal [11] A right of appeal exists pursuant to s 164 of the Act for a person aggrieved by the making of a domestic violence order or the refusal to make one. As is clear from s 168 of the Act the appeal is a rehearing to be decided on the evidence and proceedings before the court that made the decision although there is a residual power to order the appeal be heard afresh in whole or part. Such an application is made in this matter to adduce further evidence consisting of a letter written by the first 2 See Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [57]. -- 5 of 20 -- 6 respondent to the prosecutor dated 16 September 2021. That was relied upon, for amongst other reasons, on the basis that the second respondent is alleged to have sought to withhold exculpatory evidence from the court. [12] I allowed the admission of that document largely because it was a document which had been considered below. It should not be thought in relation to that that I was otherwise satisfied any of the appropriate tests for admission of fresh evidence were applicable. [13] Section 168(2) aside, the principles applicable to an appeal by way of rehearing are well settled. It is necessary for the appellate court to conduct a real review of the evidence recognising the advantage to the primary judge of seeing and hearing that evidence. [14] If the appellate in an appeal such as this is to succeed, it must be shown that the result below was a result of an error.3 [15] The question is not whether the appellate court may have come to a different conclusion. Instead, the relevant question is whether or not the decision reached by the primary court was reasonably open on the evidence before it.4 Relevant provisions [16] Section 4 of the Act sets out the principles relevant to administering the Act including that the Act is to be administered under the principle that the safety, protection and wellbeing of persons who fear, or experience domestic violence are paramount. [17] Of some relevance to this matter is ss 4(2)(e) of the Act which provides that where there are conflicting allegations of domestic violence or indications that both persons in the relationship are committing acts of violence, the person who is most in need of protection should be identified. [18] In the explanatory notes to the Domestic and Family Violence Protection Bill 2011, the following was said as to that provision: 3 House v The King (1936) 55 CLR 499; Allesch v Maunz (2000) 203 CLR 172 at [23] and McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. 4 Edwards v Noble (1971) 125 CLR 296 at [304]. -- 6 of 20 -- 7 “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 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.” [19] Domestic violence means behaviour by a person towards another person with whom the first person is in a relevant relationship with that is threatening or coercive or 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. Examples of what constitutes domestic violence are set out in ss 8(2) of the Act. Section 11 sets out the meaning of emotional or psychological abuse and it means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person. [20] Apart from one instance of physical contact the issues in this matter primarily concern emotional or phycological abuse. [21] Section 37 of the Act sets out the circumstances in which a protection order may be made. There are three requirements – first, that a relevant relationship exists between the aggrieved and the respondent, secondly that the respondent has committed domestic violence towards the aggrieved and thirdly that a protection order is necessary or desirable to protect the aggrieved from domestic violence. The court is explicitly required to consider the principles in ss 4 of the Act, including ss 4(2)(e), in deciding whether or not such an order is necessary or desirable. -- 7 of 20 -- 8 [22] Here the application and cross-application were heard together as is dictated by ss 41C(2). [23] Section 56 provides that a domestic violence order must contain the conditions set out in that section. Section 57 allows the court to impose other conditions. In this matter the appellant told his Honour he did not want the first respondent to be ordered to not have contact with him. His Honour was right, in my view, to question this given the contention that the first respondent had been abusive to the appellant over a long period of time.5 In my view, this raised a real question as to whether it would have been necessary or desirable to make an order against the first respondent even if his Honour had been satisfied that there had been acts of domestic violence. But it is unnecessary to consider this aspect further because his Honour was not so satisfied. Factual Background [24] The first respondent and the appellant met sometime in 2013 when the first respondent was 14 years of age and the appellant was 22. They dated on and off from 2015 until early 2021 when the events underlying this matter arose. On 27 February 2021 his Honour found that a physical incident took place. A police protection notice was served soon thereafter. On 3 March 2021 a temporary protection order was made including the mandatory terms and other non-contact conditions. On 4 June 2021 the appellant filed an application naming the first respondent as respondent. [25] The evidence comprised an affidavit of Constable Lang Keith, an affidavit of the first respondents’ father, an affidavit of the first respondents’ mother, affidavits of the first respondent and of the appellant. There was also cross-examination of the first respondent’s parents, Constable Lang Keith, and the appellant. [26] There was also cross-examination of the first respondent’s parents, Constable Lankeith and the appellant. As I have already indicated his Honour allowed an application pursuant to s 151(2) of the Act on the basis that the first respondent was a protected witness whom the self-represented appellant wished to cross-examine. His Honour was satisfied that the first respondent was likely to suffer emotional harm or distress or be so intimidated as to be disadvantaged as a witness. 5 See the transcript of the second day of the hearing at 1-76/3 to 1-77/19. -- 8 of 20 -- 9 The findings below [27] The learned Magistrate further adjourned the matter after the second day of the hearing on 2 February 2022 and delivered his reasons on 2 March 2022. [28] He referred to the evidence in appropriate detail. He referred to the appellant’s cross- examination of the first respondent’s parents and the attack on their credit. He recorded finding that he found the first respondent’s father to be a credible witness who, inferentially, had appropriate reasons for not wanting to have anything further to do with the appellant which reasons were further exposed as the cross-examination continued. His Honour also clearly accepted the first respondent’s mother’s evidence and upon review of her evidence and her cross-examination that is hardly surprising. [29] The further the cross-examination went the more obvious it became that the first respondent’s parents had reasons for wanting the appellant out of their lives. But his Honour was not satisfied, and nor would I be, that this demonstrated that they had some motive to lie which they exercised in giving their evidence or somehow orchestrating or assisting the complaint by the first respondent. [30] His Honour records that following the cross-examination of the first respondent’s parents, she communicated to Ms Robertson, who appeared on behalf of the second respondent, that she was very anxious about being cross-examined by the appellant. That circumstance is recorded in the judgment however the reasons in respect of granting the application under s 151 appear in the transcript of the first day’s hearing on 19 October 2021. Those reasons appear at pages 74 through to 77 of the transcript. I should indicate immediately that I regard those as orthodox reasons for having made the order and in my view his Honour did not fall into error in doing so. Also, as his Honour pointed out on the bottom of page 77 of the transcript, another reason he made the order under s 151 was because the appellant did not listen to him. He recorded that the appellant continued to speak when he was asked not to and continued to cross-examine about topics he was told were of little relevance to the matter. The accuracy of those two statements is borne out by an examination of the transcript and it accords with my experience. -- 9 of 20 -- 10 [31] His Honour recited the evidence relevant to finding the episodes of domestic violence that he did and for making the finding that it was necessary or desirable for an order to be made. [32] In my view, while I will address the grounds specifically shortly, it can immediately be said that upon my review of the evidence, it was open to his Honour to take the view of it that he did. [33] His Honour made the following findings which are set on pages 12 and 13 of the transcript of the decision: “1. [The first respondent] and [the appellant] were in an on/off intimate personal relationship which continued for some years. 2. [The first respondent’s] parents did not approve of [the appellant’s] and did (did not want him to be part of their daughter’s life). 3. [The first respondent] faces challenges in her life as a result of her psychiatric conditions and her IQ. This makes her a vulnerable person. 4. On many occasions, [the appellant] took advantage of her vulnerability and manipulated and threatened her and I have referred to some of those occasions in my reasons. 5. [The appellant] cast himself as the victim but sought to control [the first respondent] through insults, belittling behaviour, manipulation and threats. [The first respondent] is the person in need of protection, in my view. 5. [The appellant] committed an act of domestic violence when he struck [the first respondent] whilst in the car on 27 February 2021. This followed by his own admission disgusting behaviour when he sought to manipulate and threaten [the first respondent] via text messages over the previous three days. On the physical violence alone, I am satisfied that the required standard that an act of domestic violence occurred. 6. [The appellant] breached the Police Protection Notice and attempted to manipulate and threaten [the first respondent] into discontinuing the application. He subsequently breached the temporary protection order with a further letter and an invitation to contact him. 7. He subsequently engaged in contact with [the first respondent] on a number of occasions using the fact that she had initiated the contact with him as an excuse. I find that he did that in an effort to further influence and manipulate her. -- 10 of 20 -- 11 8. In the absence of an order there is a real risk that [the appellant] will revert to his previous pattern of manipulative and threatening behaviour which are in and of themselves emotional abuse. 9. [The first respondent] is a vulnerable woman who is in need of protection from [the appellant]. 10. It is both necessary and desirable to make an order in the same terms as that made on the temporary protection on 3 March 2021.” [34] His Honour recorded that in relation to the cross-application he was not satisfied that any acts of domestic violence had occurred and therefore that application was dismissed. His Honour did not identify the reasons why he was not satisfied that there had been acts of domestic violence perpetrated upon the appellant by the first respondent despite the submissions of the appellant to the effect there had been. He did not go on to consider whether it was necessary or desirable to make such an order, given his finding as to the absence of acts of domestic violence. For these reasons, it was unnecessary for him further consider the relevance of the fact that he had by this stage made an order that the appellant not contact the first respondent and that the appellant positively did not want any order that the first respondent not contact him. The parties’ submissions The appellant [35] The appellant relies on written submissions filed 27 April 2022 and further submissions (in the form of an affidavit) filed 22 June 2022 in response to the second respondent’s outline of submissions which was filed on 15 June 2022. In addition, the appellant filed an application on 1 July 2022 to adduce further evidence relying on an affidavit filed 1 July 2022 and the affidavit filed 22 June 2022. [36] As I have already indicated, I permitted the email dated 16 September 2021 to be admitted into evidence and it became exhibit one, not because I regard it appropriately as fresh evidence, but because there was no real dispute in relation to it and it was a matter which had been the subject of submissions as well as discussion by his Honour below. The other affidavit in relation to fresh evidence is evidence of material filed by the first respondent in respect of an application to vary the final order. [37] It is necessary, of course, for the appellant to demonstrate an error in the approach adopted by the learned Magistrate. This further material, at first, as least, seems from -- 11 of 20 -- 12 the affidavit to have been sought to be admitted and considered if error is otherwise demonstrated (I say that at least from the reference to paragraphs 123 to 128 and 129(c) of the second respondent’s outline). However, it appears that the evidence is sought to be relied upon more broadly. The submission being that apart from that matter the appeal may proceed by way of rehearing. I do not regard that evidence of an application to vary the final order as relevant to whether or not his Honour fell into error at all. While it could be relevant to whether this court would put a temporary protection order in place if the appeal were allowed, I do not consider it otherwise relevant. [38] I will now consider the submissions on individual grounds in turn. [39] As to Ground 2 the appellant seeks to rely on largely historic difficulties between he and the first respondent. He says this preceded his conduct in early 2021. He also says that the first respondent contacted him in various ways following the filing of the application. In relation to these matters there is no reason to believe that his Honour did not take them into account. In my view he was perfectly entitled to proceed on the basis that these matters did not mean that the appellant had not committed acts of domestic violence or that it was not necessary or desirable to make the order he did. [40] To the extent to which the grounds should properly be regarded as relating to the appeal in relation to the cross application, I have already noted the second respondent concedes that. This means that aspect of the appeal must be allowed. [41] As to grounds 3, 4, 5, 6 and 7, as I have mentioned, the second respondent concedes error as to the cross-application. [42] But further as to ground 6, it is relevant to consider the terms of ss 4(2)(e) of the Act. That subsection requires the court to identify the person who is most in need of protection in circumstances such as the present case. His Honour was entitled on the evidence to find that that person was the first respondent and that her psychiatric conditions and her IQ rendered her a vulnerable person. [43] The real issue is what particular significance such a finding might have. It is to be borne in mind that the principles in ss 4 are required to be considered on the question -- 12 of 20 -- 13 of whether or not a protection order is necessary or desirable to protect the aggrieved from domestic violence. [44] I have already referred to the terms of the explanatory note in relation to ss 4(2)(e). I have also recorded that his Honour was not satisfied that there were any acts of domestic violence by the first respondent. It must follow in terms of the applicability of this principle that his Honour considered that there were “conflicting allegations of domestic violence” as opposed to “indications that both persons in a relationship are committing acts of violence” given his finding. [45] I should record that although the explanatory notes express the view that unmeritorious cross-applications are often made, I do not understand them to be suggesting that once the person most in need is identified an order cannot be made in favour of the other person, although perhaps the matters in which such a second order would be made could be considered quite rare. The proper approach of course is the consider the terms of s 37 of the Act, including as it does reference to the principles in s 4. In this respect, I respectfully agree with the analysis of her Honour, Judge Sheridan in SRV v Commissioner of The Queensland Police Service & Anor [2020] QDC 208 at [52]-[56] as to the interrelation of ss 37 and 4 in this respect. [46] As to ground 8, plainly his Honour did not consider whether or not it was necessary or desirable to make an order against the first respondent given he was not satisfied the first respondent had committed any act of domestic violence towards the appellant. It is of course relevant to note the concession on behalf of the second respondent made as to that finding. In the appellant’s submissions in reply, he appears to argue that, as the second respondent makes this concession, it is appropriate to allow the appeal in respect of the cross-application and the result must be findings - both that acts of domestic violence were committed by the first respondent against the appellant and that it is necessary or desirable to make the order. Of course, the existence of an error in this respect requiring the appeal be allowed says nothing as to what orders, if any, should be made by this court on the cross-application. [47] As to ground 9, as I made clear, I regard the suggestion that his Honour was biased to be without any valid basis whatsoever. I note appellant is self-represented. Had a lawyer said that in relation to this matter I would have been most concerned as to -- 13 of 20 -- 14 whether or not they were complying with the relevant rules governing proper professional conduct. This ground fails. [48] As to ground 10, I do not accept the submissions made as to s 151 of the Act. I do not consider there was an error in allowing that application. Not only did it not exhibit legal error it was, in my respectful view, completely correct. Further, the reason that it was raised at the time it was is obvious from a cursory review of the transcript including the nature of the appellant’s cross examination of the first respondent’s parents. The reference to there being an abuse of process in this respect is misconceived. The reference to the statement by the first respondent referred to in paragraphs 7 and 31 of the reply submissions being relevant to the s 151 application does not assist. This application was decided on 19 October 2021. In my view, a statement made by the first respondent on 2 May 2022 in the context of an application to vary says nothing as to her attitude to being cross-examined at an earlier time. Much less does it indicate any error when it was not evidence available to the Learned Magistrate. [49] Further as to the same ground, and equally, the reference to the use of text messages as “media exhibits” being in some way an abuse of process or somehow to the disadvantage of the appellant is misconceived. There was no unfairness at all in circumstances where the appellant had access to the documents for months. Whether or not they were media exhibits appears to me to be of no significance at all in circumstances where they had been disclosed. The appellant’s reference in the reply submissions to there being an abuse of process “by want of prosecution” adds nothing to what I have already said. Nor do I consider anything additional arising from the reply submissions as to the “media exhibits” issue is of any significance at all. The reference to filing the documents without providing a copy to the appellant is inapt to describe what actually occurred. Whether or not the documents were “media exhibits” the appellant had copies disclosed to him months before the hearing. They were also in large part documents he would be plainly be familiar with. This ground fails. [50] As to ground 11 and the alleged failure to comply with the rule in Browne v Dunn, the appellant’s complaint in this respect misunderstands the operation of the rule in circumstances where the respondents’ evidence was largely on affidavit or was given -- 14 of 20 -- 15 by witnesses during cross-examination before the appellant gave evidence. These were not things that could have taken the appellant by surprise because he either had the affidavit material or heard the evidence in cross-examination. In those circumstances the appellant would have no difficulty in understanding what case he was required to meet before he gave his evidence. There was no unfairness. The reference to Jones v Dunkel is also misconceived. [51] The new authorities referred to in the appellants reply in relation to the rule in Browne v Dunn and Jones v Dunkel are of no additional assistance. Taking those well-known statements of legal principle and seeking to have them applied in this matter is completely out of context and is of no assistance. The obligation in respect of Browne v Dunn is to put to an opponent’s witness matters which are inconsistent with what the witness says and which are to be the subject of submissions later. In a case where the evidence on both sides is largely by way of affidavit, the opportunity to respond already exists because one has seen what is in the other party’s affidavits. [52] Nor does the reference to these cases without any precise reference to the matters which it is alleged have not been put assist in any way. [53] In addition, there has been no attempt to identify the witnesses said to have been the appropriate subject of a Jones v Dunkel inference. The appellant has not sought at all to articulate what that inference should be. Also, if there were anything in this it is a submission which ought to have been made before his Honour. This ground fails. [54] As to ground 12, as I have said the learned Magistrate was entitled to conclude that the appellant had engaged in acts of domestic violence on the basis of all of the evidence. The hearing was adjourned after day one to allow the appellant the opportunity to obtain legal representation for the purposes of cross-examining the first respondent. Unfortunately, the appellant did not obtain legal representation which meant that the first respondent was not cross-examined. Thus, the significance or otherwise of what are contended to be inconsistencies in her evidence were not tested. [55] While as I have previously said, I do not think there was any error in the order made pursuant to s 151 of the Act, the result is that the first respondent’s evidence was wholly untested. I do not consider that the learned Magistrate failed to take account -- 15 of 20 -- 16 of this in determining the matter. I have no doubt that his Honour would have taken this into account, that is the fact that the evidence was untested. Thus I reject the submission that the learned Magistrate did not take account of the effect upon the appellant of preventing cross-examination of the first respondent. [56] While this evidence was not tested in cross-examination, his Honour was perfectly capable of taking that into account in making the findings he did. His factual findings could not be said in any sense to be glaringly improbable. Should it also be relied upon in relation to this ground, I reject the submission that his Honour erred in accepting the evidence of the first respondent’s parents. This ground fails. [57] As to ground 13, I have addressed the substance of this ground in relation to ground 2. [58] As to ground 14, and similarly to ground 12, the difficulty is that what in some respects appear at first blush to be inconsistencies is that they might not be at all. A good example is the evidence of the first respondent on page 21 of the transcript of day 2. She had clearly proceeded on the basis that the letter was authored by the appellant but was now unsure that it was his handwriting. There was no exploration as to these matters or why she was not sure as to the handwriting. It could not have been safely concluded that neither letter was authored by the appellant as he asserts should have occurred. His Honour carefully considered the appellant’s arguments as to whether or not they were letters authored by the appellant and he was entitled to reach the conclusion he did. [59] I should also identify in relation to this that I do not accept the allegations as to misconduct by the QPS in this respect. Further, as to the suggestion that the letters might have been authored by the first respondent’s father, that matter was not even put to him during cross-examination so that he might have had the opportunity to comment on it and his Honour might have had the benefit of that. As to the submissions in reply by the appellant, it is incorrect to say that his Honour did not turn his mind to evidence against the authorship of the letters. Further the reference to a finding on the balance of probabilities being insufficient is simply wrong. It misunderstands the test in Briginshaw v Briginshaw and is inconsistent with s 145(3) of the Act. This ground fails. -- 16 of 20 -- 17 [60] As to ground 15, I do not accept that the witnesses made false representations. Nor do I accept the proposition that his Honour prevented the appellant from further impeachment as he puts it. [61] The suggestion in the appellant’s reply as to this ground that the second respondent deliberately sought to distract the court from consideration of some other material is rejected as baseless and unhelpful. The assertions as to the parents’ evidence also need to be addressed. It is not clear what the reference is to evidence having been planted by the witnesses but any complaint about the parents’ evidence of prior conduct between 2013 and 2021 should be rejected in the clearest of terms. That evidence was elicited by the appellant during cross-examination of the parents, much to his Honour’s frustration when seeking to try and understand the relevance of it. To elicit that evidence from those witnesses in cross-examination and then to complain that the learned Magistrate had some regard to it should not be entertained. This ground fails. [62] As to ground 16, his Honour acknowledged the antipathy felt by the first respondent’s father towards the appellant but found him to be a credible witness. His Honour was entitled to do that. Further, not only do I consider that there was no error in this respect, I consider that his Honour was right to limit cross-examination in the way he did. [63] As to the appellant’s reply and the submission that the parents’ credit is fatally impaired by the first respondent’s statements in her application to vary that is simply not correct. All that constitutes is, yet another inconsistent version at a different point in time in an apparent statement by the first respondent in May this year which offers her opinion as to the evidence given by her parents in October the previous year. This is of course untested hearsay and there is no evidence as to the circumstances in which it came to be prepared. [64] There is an oddity in relation to this as well in that the appellant contends, on this occasion, the Court should unquestionably accept untested hearsay evidence of the first respondent while otherwise contending her to be a witness wholly lacking in credit in respect of any evidence which is contrary to the appellant’s submissions. This ground fails. -- 17 of 20 -- 18 [65] As to ground 17, similarly to grounds 12, 15 and 16, I do not consider that any error has been demonstrated in his Honour’s approach. This ground fails. [66] As to ground 18, whether or not there had been good conduct by the appellant at some other time did not alter the fact that his Honour had found that there were occasions of domestic violence perpetrated by him and that there had been breaches of the police protection notice and attempts to manipulate and threaten the first respondent into discontinuing the application. This ground fails. [67] As to ground 19 it is not accurate to refer to his Honour as having mocked the appellant. What his Honour was referring to was that the appellant had raised many matters about the first respondent seemingly with a view to demonstrate that he was the person being manipulated by her and not the converse. What he said about this was, with respect, an accurate statement. The appellant does not grapple with the fact that these matters were not relevant to the finding against him. Again, this ground fails. [68] As to ground 20, his Honour’s findings appear to be based on the evidence of witnesses rather than any concession by the appellant. For example, as to the physical aspect, the first respondent made a correction to paragraph 16 of her 3 March affidavit where she had referred to the appellant being constantly abusive. She said that was not correct. As part of that she said, “I mean that’s the first time he ever, like, hit me.” I have also referred during submissions to the text messages which are exhibited to the first respondent’s affidavit filed 2 February 2022. [69] His Honour’s reference in this respect to the appellant’s admission was the admission as to his behaviour in the three days during which he sent a huge number of Facebook messages and texts. [70] Considered in context I do not regard it as accurate to describe the appellant’s statements to the first respondent in the way he has sought to do on page 15. It is unnecessary to address again the reference to earlier grounds which I have already dealt with. I should also note that I find the appellant’s position that he wished to be left alone difficult to reconcile with his position that he did not wish to have a no contact order imposed in relation to the first respondent. I do consider the evidence before his Honour did support a tendency to be abusive or coercive after the three- -- 18 of 20 -- 19 day texting spree. It is not necessary to refer to more than the breaches of the police protection order. Nor do I accept that the risk of repetition could be eliminated by granting a protection order against the first respondent particularly where the appellant contended for there to be no prohibition on contact. [71] As to the appellant’s reply in this respect, it is difficult to understand the complaint in relation to the reference to the first respondent’s IQ and whether she had only completed Grade 2. These are matters set in the appellant’s affidavit. It is also to be recalled that the appellant believed there is nothing insulting about referring to the first respondent having an IQ of 68 because he believed that to be true. It is difficult to understand why in the circumstances his Honour could have been obliged to ask the respondent if her IQ was in fact 68. It would also be an error to lose sight of paragraph 4 of the first respondent’s affidavit filed 2 September 2021 in which she says that she agrees that her IQ in 2018 was 68 although she disagreed with it being that as at the time she swore the affidavit, but also making it clear that she had not had any other test. [72] The fact that she has now said something different in the passage extracted at paragraph 7 of the appellant’s affidavit filed 2 June 2022 is, as I have said before, of no consequence. As I have said, I have no understanding as to the origin of that document, the time it refers to or whether it is inconsistent with the evidence she has previously given or that given by the appellant. Finally, in relation to the supplementary reply submissions made by the appellant the appellant appears to submit that neither party should have an order made against them. He refers specifically to a temporary protection order in this respect. [73] His Honour addressed the test in relation to necessary or desirable as described by Judge Morzone QC in MDE v MLG & Queensland Police Service [2015] QDC 151 and considered each of the relevant matters. This ground fails. [74] As to ground 21 to the extent to which this ground is directed at the appeal on the cross-application, I have already identified the appeal must be allowed. [75] It may be a matter of speculation but his Honour in querying the appellant as to his position as to whether he was abused might have been based on a proposition that he was finding that difficult to reconcile with a proposition that he did not want to have -- 19 of 20 -- 20 a contact order and wished to continue a relationship with the first respondent. But it is unnecessary to consider that any further. Consideration [76] It will be clear from what I have said that the appeal in relation to the final order ought in my view be dismissed and the appeal in relation to the cross-application must be allowed. [77] As to that, the cross-application ought to be remitted to the Magistrates Court, to be determined by a different Magistrate. That is because there the evidence can be properly tested and issues relevant to whether it is necessary or desirable to make an order and if so in what form can be considered. Including by reference to perhaps more recent material as to interactions between the appellant and first respondent. The appellant will of course be able to pursue that application should he wish to. Equally, to the extent there has been some change as to the relationship status between the parties or as to matters relevant to the order currently in place, that should properly be subject to an application to vary in my view rather than seeking to rely on the evidence relevant to such an application to contend that his Honour made some error in respect of the matters the subject of this appeal. In the circumstances, the orders will be that the appeal in relation to the final order be dismissed and the appeal in relation to the cross application be allowed. The matter be remitted to the Magistrates Court at Southport to be determined by another Magistrate. -- 20 of 20 --