FLC v MRT [2021] QDC 264

DISTRICT COURT OF QUEENSLAND CITATION: FLC v MRT [2021] QDC 264 PARTIES: FLC (Appellant) v MRT (Respondent) FILE NO: 1380/21 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Cleveland DELIVERED ON: 1 November 2021 DELIVERED AT: Brisbane HEARING DATE: 22 October 2021 JUDGE: Porter QC DCJ ORDER: 1. Orders made by the Magistrates Court at Cleveland dated 26 May 2021 be set aside; 2. The application be remitted to the Magistrates Court, to be reheard before a different Magistrate. CATCHWORDS: DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where the learned Magistrate made a protection order in favour of the respondent – where the appellant submits that the learned Magistrate failed to give sufficient reasons for the decision to grant the application for a protection order – where the appellant submits that the learned Magistrate took into account extraneous matters including the demeanour of the respondent’s support person – where the appellant submits that the learned Magistrate failed to properly consider or direct himself in line with the principle from Jones v Dunkel – whether the learned Magistrate erred in failing to make sufficient findings of fact and in failing to explain how he concluded that the requirements for making a protection order had been established LEGISLATION: Appeal Costs Fund Act 1973 (Qld), s.15 -- 1 of 21 -- 2 Domestic and Family Violence Protection Act 2012 (Qld), s.11 CASES: Briginshaw v Briginshaw (1938) 60 CLR 336. Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 GKE v EUT [2014] QDC 248 Jones v Dunkel (1959) 101 CLR 298 LKF v MRR [2012] QDC 355 R v Hooper; ex parte Cth DPP [2008] QCA 308 Wainohu v New South Wales (2011) 243 CLR 181 COUNSEL: J. Feeley for the Appellant M. Jackson for the Respondent SOLICITORS: Fuller & White Solicitors for the Appellant Rawlings Criminal Law for the Respondent Summary [1] On 26 May 2021, after a trial lasting one day, the learned Magistrate made a protection order in favour of the respondent requiring the appellant: (a) To be of good behaviour towards the respondent and not commit domestic violence against him; (b) Not to approach, enter or remain at the premises where the respondent lives or works; (c) Not to have any direct or indirect contact with the respondent, including through social media. [2] Although short, the trial contained issues requiring careful attention, particularly given the conflicting versions of the appellant and the respondent and the legal issues which arose as to whether domestic violence had occurred, if so what kind, and whether (depending on the findings as to the character of any acts of domestic violence established) an order was necessary. The learned Magistrate’s reasons covered some 35 lines of transcript (the reasons). The reasons failed sufficiently to address any of those matters. Reference to the trial transcript to supplement the reasons did not assist. The reasons also disclosed fundamental errors. [3] Failure to provide adequate reasons for judicial decisions undermines confidence in the judicial process. At the hearing of this appeal, I made orders for his Honour’s orders to be set aside and for the matter to be remitted for rehearing by another Magistrate. These are my reasons for those orders. The evidence [4] The following matters were uncontentious. The appellant is the respondent’s uncle. The respondent’s mother is the appellant’s sister. The respondent also has a sister. The respondent was 29 years old at trial. The respondent said he was diagnosed with -- 2 of 21 -- 3 autism in 2017, though the appellant swore that he was aware that the respondent was diagnosed with Asperger’s syndrome when the respondent was a child. It was never established with any clarity as to how the respondent was affected by his condition except that the appellant’s opinion was that it made the respondent susceptible to influence, and the respondent accepted that he avoided conflict if he could, and that it affected his mood and thought processes. [5] The appellant has had a long involvement with the respondent’s family. The respondent’s mother has had a long history of serious mental illness and alcoholism, having been an involuntary patient from March to October 2020 and possibly on other occasions. [6] From 2003 to 2005, the respondent lived with the appellant and his partner. Although the precise circumstances were contentious, the reason the respondent lived with the appellant was the inability of the respondent’s mother to care for him. The appellant paid for the respondent to go to high school and for his maintenance and support. The respondent’s mother’s incapacity and his difficulties have meant that the appellant has been involved in frequent contact with the family, especially the respondent and his mother, although the extent that he did so between 2005 and about 2016 was in contest on the affidavit material. [7] There are Supreme Court proceedings on foot involving the administration of the appellant’s father’s estate. That gentleman is of course the grandfather of the respondent and his sister, and also the father of the respondent’s mother. The precise nature of the proceedings was not in evidence, and it appears they also involve related family trusts benefitting the respondent, his mother and his sister. [8] The nature of the family trust arrangements was not fully explained at trial. Counsel for the respondent volunteered from the Bar Table without objection that a company called Natif Pty Ltd (Natif) owned a bank account which channelled money to the respondent’s mother from the family trust and that the account was under the control or monitoring (whatever that meant) of the appellant’s brother. Disputes arising from those proceedings and trusts exist between the appellant, the respondent’s sister and the appellant’s brother, those disputes are acrimonious and unspecified proceedings are continuing. [9] Turning to the contentious issues, the respondent swore that in or around 2016, he began to be fearful for his safety when he was with the appellant. The matters which he alleged sustained that position were as follows:1 (a) The appellant was aggressive toward the respondent between the ages of 11 and 13 years when he was living with him. There was no physical violence, but there was unspecified emotional and psychological abuse; (b) The appellant was alleged to have assaulted the respondent’s mother on 16 November 2016, in the absence of the respondent, which resulted in her exiting a car and breaking her foot; 1 Outline of Submissions on Behalf of the Appellant filed 4 August 2021 at paragraph 9 (a)-(l), footnotes omitted. -- 3 of 21 -- 4 (c) On 20 March 2017, at Belmont, it was alleged the appellant became irate and aggressive in a conversation with family members, other than the respondent; (d) In March 2020, the respondent was alleged to have intimidated his sister including yelling and pointing at her and then failing to leave the address; (e) In June 2020, the appellant was alleged to have taken the respondent to get fish and chips during which trip a financial dispute between the family was discussed; (f) Following that trip, the appellant was alleged to have returned home and started screaming at the respondent’s sister and was then forcibly removed by the respondent’s father, which the respondent witnessed; (g) The appellant was alleged to have attended the respondent’s address at least six times in the week of 26 October 2020 and yelled at the respondent’s mother. This was followed by a refusal to leave the address; (h) The appellant was alleged to have attended that same property, while the respondent was absent and pulled a phone from a wall during a verbal argument with the respondent’s mother; (i) In mid-December 2020, the appellant was alleged to have left two dogs at the respondent’s house which, in the appellant’s absence, subsequently killed three cats, with one of those incidents being witnessed by the respondent; (j) On 11 December 2020, it was alleged the appellant demanded the respondent withdraw $300 from a bank account and drove him to an ATM for that purpose; (k) On 14 December 2020, the appellant was alleged to have returned to the respondent’s house and repeated the demand for now for $800; (l) Around 19 December 2020, it was alleged that the appellant turned up at the respondent’s house on several occasions uninvited and the respondent hid from him. [10] The appellant contested key aspects of each of these allegations. In summary, he responded:2 (a) The appellant denied any aggression or abuse between 2003 and 2005, the allegations were historical, uncorroborated, unparticularised and inconsistent with later interactions between the parties; (b) The appellant denied ever assaulting the respondent’s mother and stated that she fell from the car while intoxicated injuring her foot. This was the only direct evidence of this allegation; (c) In relation to the allegation from March 2017, the appellant denied that this occurred; (d) As to the incident in March 2020, the appellant admitted attending the house on that occasion, but said that the respondent’s sister screamed at him and threatened him after which time he remonstrated with her; 2 Ibid at paragraph 10 (a)-(l), footnotes omitted. -- 4 of 21 -- 5 (e) The appellant admitted that he took the respondent out for fish and chips and discussed the family trust; (f) In relation to the subsequent encounter at the respondent’s house, the appellant stated that there was a course of abuse begun by the respondent’s family and then threats directed at him after which he vacated the property; (g) The appellant denied becoming aggressive with his sister in the week of 26 October 2020 and stated that he attended the property to check on the respondent given the personal situation that he was then in and to assist the respondent with transport; (h) The appellant admitted that he was at the respondent’s house on 2 November 2020, but stated that the respondent’s mother was intoxicated and pulled the phone out of the wall in anger after being refused more alcohol by the appellant; (i) In relation the allegation as to the appellant’s dogs, it was stated effectively that the dogs were invited, stayed attended by the respondent and the cats died of natural causes which he attended to the burial of at the respondent’s mother’s request; (j) The appellant admitted driving the respondent to withdraw money on 11 December 2020 but denied demanding or intimidating him. The money belonged to a separate entity and was withdrawn for the respondent and to reimburse the appellant; (k) The appellant denied the allegation in respect of the demand for a further ATM withdrawal on 14 December 2020; (l) In response to the allegation of attendances around 19 December 2020, the appellant agreed that he was in the habit of turning up at the house although did not address those specific unparticularised occasions. There was no evidence that this occurred after service of the application. [11] The material points emerging from the respondent’s cross-examination were these: (a) The appellant had never offered any violence, verbal or physical, to the respondent in any of the incidents the respondent described; (b) At around October 2020, the appellant would often help the respondent with transport, particularly to and from work, though he said on numerous occasions he wanted to take the bus but went with the appellant instead. He did not say he ever told the appellant that he did not wish to be driven by him; (c) He accepted that he was not present for the argument in which his mother told him that the appellant pulled the phone out of the wall, but that his mother did not appear intoxicated or unwell that day and would not have been strong enough to pull the phone out of the wall; (d) He said that, in respect of the dogs at his home, he wanted the appellant to take them home, but he had no choice but to accept them. It was not clear if he made that request many times or just once. He accepted some of the cats died of natural causes. -- 5 of 21 -- 6 (e) He accepted that, in respect of the $300, he went with his uncle to take out money to pay for his mother’s haircut, and in respect of the larger amount, his uncle came to the house with an invoice for work done on the respondent and his mother’s house and pool, which work he accepted had been done. (f) In re-examination, he gave evidence that the appellant often forced him to drive to and from work with him in his car, rather than take the bus, and would talk about the trust issues. He gave no evidence of any act amounting to forcing him to do this except that he arrived at his job unannounced to drive him home. [12] It is very difficult to get a feel for the respondent’s character and persuasiveness as a witness from the transcript. However, there were aspects of his evidence which were unsatisfactory. His account in his affidavit and in his oral evidence about the alleged dog attacks on the cats seemed very unlikely and was not borne out by the texts exhibited to the appellant’s affidavit: see the exchange on 16 December 2020. Similarly, his account of being overborne by his uncle’s determination to drive him around against his will is inconsistent with the texts: see for example the exchange on 5 November 2020 where the respondent declined an offer of a lift with no demur from the appellant, and the text on 14 December 2020. Offering in re-examination that the appellant “forced” him to be driven by the appellant had the flavour of trying to create the impression of oppression or aggression without a specific basis for that impression. His Honour never mentioned, much less grappled with, these problems or other problems in the respondent’s account. [13] The character of the appellant’s cross-examination emerges distinctly from the transcript. He was confrontational and suspicious with the cross-examiner, he gave long and wandering answers to simple questions hedged with complex explanations, he came across as bombastic and officious.3 [14] His evidence also showed considerable animus to the respondent’s sister and the appellant’s brother, who he plainly considers have behaved improperly in respect of the family funds. He appeared to be evasive in conceding his belief about the respondent’s sister, though he apparently also has autism of some form and the evasiveness might be related to the way the questions were asked.4 He gave unclear evidence about the particulars of the money for which he sought reimbursement from the respondent, though no suggestion was made in cross-examination that he had not spent money for the benefit of the respondent’s mother or on her house and pool (which seemingly was owned by the trustee company). [15] He was cross-examined on the suggestion that he described one of the dogs on Facebook as an attack dog. He did not accept the suggestion (though his responses could fairly be characterised as evasive). Surprisingly, cross-examining counsel nonetheless told the Court from the Bar Table that the allegation was true.5 Considerable time was spent suggesting that the respondent’s version in relation to the dogs was correct but, in my view, without much effect. His Honour observed 3 For example, see TS1-40.25, TS1-42 from line 19, TS1-48.18 to .34, TS1-56.27 and TS1-65.29. 4 TS1-49 to 50. 5 TS1-59.35. -- 6 of 21 -- 7 during this difficult and confrontational cross-examination that “this diatribe’s probably not going anywhere but it gives me a strong impression”.6 [16] Cross-examination then moved to the request for $300 from the respondent. Again, the responses were confrontational and evasive, but the point of it was unclear given the respondent’s evidence about the basis for the $300 to be paid to the appellant. No questions were asked suggesting any basis for concluding pressure was deliberately applied to the respondent nor was forceful language used to him. [17] The respondent’s sister participated in the trial as his support person (despite having an adverse attitude to the appellant on both party’s versions of events). At one point during the hearing, she became upset, and his Honour noted her distress and made some suggestions as to how she might handle the situation.7 Submissions at trial [18] The main points made in submissions by the appellant’s solicitor were as follows: (a) The appellant denied that there were any acts of domestic violence as alleged by the respondent; (b) The event in November 2016 was not witnessed by the respondent and his mother was not called; (c) The argument with the respondent’s sister in March 2020 was not corroborated by her and she could have been called. After that event, the parties continued to have regular contact; (d) The argument with the respondent’s sister and father in June 2020 was not corroborated by either being called as a witness; (e) The argument between the appellant and his sister in November 2020 was again not witnessed by the respondent and she was not called; (f) There is no corroboration of the alleged attacks by the appellant’s dogs and the respondent’s account is not consistent with the text traffic; (g) The withdrawal of money could not be characterised as domestic violence in the context of the appellant’s role as support and carer for the family over many years; (h) In any event, no order was necessary or desirable because there was no temporary protection order made and despite that, no complaints were made about the appellant’s conduct since the application was filed (6 months before); (i) An order might also restrict the appellant from executing his duties as executor or be used by other family members to boost their versions of events and might fracture family relationships. [19] I will set out the submissions by the respondent’s counsel and include some key observations made by the learned Magistrate. The latter is necessary because Mr 6 TS1-63.28. 7 TS1-29.9 to .19. -- 7 of 21 -- 8 Jackson, who appeared on the appeal for the respondent, relied on comments in argument as informing and supplementing his Honour’s reasons. [20] As to the respondent’s mother and sister, and Jones v Dunkel,8 the following occurred:9 MR ENGWIRDA: Your Honour, if I just deal with a couple of preliminary matters. Firstly, the reference to the Jones v Dunkel inference that might be drawn from the failure to call certain witnesses. [The respondent’s mother] is one of those witnesses who wasn’t called. Your Honour’s heard evidence today that she’s --- HIS HONOUR: I understand that poor woman’s in hospital at the moment. MR ENGWIRDA: And that’s precisely my point. HIS HONOUR: And I think the issue is that if it’s a underlying mental health issue, it’s probably good that both parties have considered her position and would not expose her to this traumatic experience. I’ve had people sitting here today sobbing and crying because of the stressful nature of these proceedings. You wouldn’t want a woman who struggles in and out of her mental health to be exposed to this. I think it’s good for both parties that she’s not here. MR ENGWIRDA: Which is precisely my point on a – any Jones v Dunkel inference to be drawn from that. Similarly, as your Honour’s observed…the sister, found it very difficult to cope with today’s proceedings. And a decision was made not to call her. The rules of evidence don’t apply in this jurisdiction. The Jones v Dunkel inferences, in my respectful submission, would be entirely inappropriate in the circumstances where this is being aired: hurtful family issues. And that some parties would choose not to want to participate in that is entirely reasonable. [underlining added] [21] It is to be noted here that there was no evidence given by any witness that the respondent’s sister chose not to be involved, nor that a decision was made not to call her for that reason. Counsel’s use of passive voice provided no basis to assess whether that had happened or who made the decision. [22] Next, the respondent’s counsel submitted that making the orders would not fracture any relationships, because it should be evident from the events during the hearing that the relationships were fractured. He also submitted there was no evidence that an order would impact on the appellant’s ability to act as executor. His Honour commented that, on that point, the Supreme Court proceedings were a red herring.10 [23] The respondent’s counsel next submitted that his Honour should find the appellant was fixated on the Supreme Court proceedings and they have infected his relationships with other members of the family. [24] The respondent’s counsel next characterised the appellant’s submissions as being that there was no domestic violence because the appellant never yelled at, nor threatened, the respondent. That is a wrong characterisation of the gravamen of those submissions, which were that the Magistrate could not be satisfied that any of the acts relied upon by the respondent occurred as he described. 8 (1959) 101 CLR 298. 9 TS1-68.41 to TS1-69.18. 10 TS1-69.36. -- 8 of 21 -- 9 [25] The respondent’s counsel submitted that the appellant’s acts could amount to domestic violence under s. 11 Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). That section provides: 11 Meaning of emotional or psychological abuse Emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person. Examples—  following a person when the person is out in public, including by vehicle or on foot  remaining outside a person’s residence or place of work  repeatedly contacting a person by telephone, SMS message, email or social networking site without the person’s consent  repeated derogatory taunts, including racial taunts  threatening to disclose a person’s sexual orientation to the person’s friends or family without the person’s consent  threatening to withhold a person’s medication  preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity [26] He referred to the ordinary meaning of intimidation as referring to “a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour”. The following important exchange then occurred:11 …If I just dwell, for a moment, on that term “fearful or overawed”. In my respectful submission, having observed the witnesses today, you will accept that that was undoubtedly the case as far as [the respondent] was concerned. He --- HIS HONOUR: See, both of them were looking directly at the bench. Not once did I see them look at the respondent. And you wonder, if we sit here and observe a person’s demeanour, why would they not look upon the respondent? And this is just an observation. MR ENGWIRDA: One part of a number of observations that might be made, in my respectful submission, about the way that [the respondent] feels in the presence of his uncle and when his uncle and when his uncle is speaking is that in effect, his uncle has a great deal of power that he wields over him. One of the things that is not required in an intimidation is that [the appellant] intend to be intimidatory in his behaviour. That would be to give a gloss to the section that simply does not exist. His behaviour might be intimidatory even though he does not want it to be if that is the effect it has on the other person. [underlining added] [27] I note his Honour’s comment referred to the behaviour of “both of them”. That must have meant the respondent as well as his sister. [28] The respondent’s counsel cited parts of the following passage in support of the proposition that subjective intention to intimidate is unnecessary:12 [29] In particular, much of the appellant’s application depended upon proof of intimidation or harassment of her. Whilst those concepts are to be judged by a criterion of the impact of behaviours upon the person to whom they are directed, the essential enquiry is an objective one. Accordingly, there is no requirement of proof of any particular intent or state of mind or other subjective requirement in relation to a respondent’s actions. Similarly and without the fact of intimidation or harassment being objectively 11 TS1-70.41 to TS1-71.10. 12 LKF v MRR [2012] QDC 355. -- 9 of 21 -- 10 established, it will usually not be enough that an applicant subjectively regards particular conduct as intimidation or harassment. Although in some circumstances, particular characteristics of the parties or their relationship may be relevant to a conclusion as to whether domestic violence in the nature of intimidation or harassment has occurred. [30] In this instance and whilst it may be discerned that the appellant holds and has strongly expressed views that she is intimidated and harassed by various behaviours of the respondent, as the Magistrate found, she failed to establish either that he was in any way responsible for conduct of which she suspected him or, where his conduct was established, that it did involve intimidation or harassment. In the latter respect, her views, no matter how genuinely she may hold them or how stridently she may express them, are insufficient… [31] Although such conduct may, to an extent, be subject to regulation in the course of family law proceedings, such as stood as context to the issues arising in this case, that would not necessarily prevent a protection order being made under the DFVPA, if the circumstances warranted such an order. … [34] Further and in the course of these proceedings, the appellant has demonstrated that she is not a person who is particularly timid or likely to be easily cowed by assertive or even overbearing behaviour by the respondent and that she is capable of being combative towards him. Each of the parties could be seen, in the context of these proceedings, as particularly focussed on the righteousness of their own position and generally lacking preparedness to yield any ground to the position or point of view of the other. [29] It was submitted the respondent presented as a person who avoids conflict and was malleable. He submitted the appellant used the respondent as a vehicle for advancing his arguments with the rest of the family about the estate. He made no submissions on any specific incident except the period when the respondent had access to the Natif bank account. He submitted the appellant twice asking the respondent to draw money from that account was conduct which was intimidating. [30] He submitted the appellant is oblivious to his effect on the respondent and that justified an order. As to the question of whether an order is necessary and desirable, he submitted:13 Of course, it has been indicated to you that there has been no problems since the application was brought before the court. It seems that the day before it came before the court for the first time there was an incident that took place. So for whatever reason, simply having the application in play has had the effect of diffusing the situation that exists. Moving forward, in my respectful submission, an order is plainly necessary and desirable to maintain that status quo, to stop further instances of domineering behaviour of [the appellant] towards [the respondent]. [31] The incident to which he referred was not identified. The only incident which seems to be relevant is that referred to in paragraph [9](l) above described in paragraph 27 of the respondent’s affidavit, set out in paragraph [33] below. There was no evidence that the appellant’s visits on that occasion had anything to do with the filing of this application. Indeed, there was no evidence it had even been served. [32] He also submitted that the existence of the Supreme Court proceedings justified an order because it involved ongoing risk. 13 TS1-72.28 to .34. -- 10 of 21 -- 11 [33] His Honour then referred to paragraph 27 of the respondent’s evidence which provides: I lodge an application for a protection order against [the appellant] on 19th of December 2020. After I lodged the application, I remember [the appellant] showing up to my house unannounced on several occasions. On each occasion [the appellant] would enter our house and call out for me. Every time I heard him come inside and call my name, I would hide in my mother’s bathroom upstairs as I was fearful for my safety. I was living by myself during this period as my mother was in the mental health hospital. I believe that a protection order is necessary. [34] His Honour then made this observation:14 And when we look at domestic violence, though, it’s anticipated in the act and it’s probably more of a broader construct when you look at the impact, we have children in those dysfunctional relationships. And the legislation allows the court to make an order which would protect children, for example, from exposure to domestic violence. This seems to be more of a case where the trauma, the vicarious trauma, is occurring in circumstances where people come together. The [appellant] and [the respondent] seem to be the common denominator at each of these exchanges. That seems to be the impression the court is getting. And --- [35] This suggests his Honour’s concern with the respondent’s exposure to conduct directed towards others. If so, his Honour did not deal with that proposition in the reasons. [36] In reply, the appellant’s solicitor emphasised that although the rules of evidence do not apply, they do guide the weight to be given to evidence and the failure to call either the respondent’s mother or sister should be taken into account. He also emphasised the submission that there was no evidence of any acts directed towards the respondent. His Honour appeared to reject those suggestions by reference to the alleged unannounced visits, the March 2020 incident and the two incidents of alleged violence to the respondent’s mother. [37] The respondent’s counsel was then invited to respond to that submission and made further submissions which assumed the correctness of the respondent’s version of events. He also submitted that his Honour did not have to resolve evidentiary difficulties, because having seen the appellant give evidence, the Magistrate should conclude the respondent would be overawed by him and do things he did not want to do, regardless of the appellant’s intention. His Honour’s reasons [38] His Honour gave the following reasons:15 Just stand up, please… Having considered the matter and listened to this and observed the demeanour of people who have been giving evidence in these proceedings, I am satisfied that your conduct, as it has been expressed by the Aggrieved…is sufficient to satisfy the Court that you have, to a large extent, imposed on him in a way where your behaviour is seen to be intimidating and caused him some emotional and psychological distress. There is clear evidence, in my view, that there are issues when you come into contact – take your hands out of your pockets – there are issues that arise when you are in the company of [the Aggrieved], his sister, or members of the sister’s family, and [the Aggrieved’ s] family. I have observed their demeanour today as they have witnessed you in the witness box giving your account of what you believe to be the case. Now, when I see all these things and come to 14 TS1-73.20 to TS1-74.26. 15 Decision at page 2, lines 1 to 35. -- 11 of 21 -- 12 the conclusion that a domestic violence order is necessary, I do that on the basis, focusing on most of the evidence that you have given, which corroborates [the Aggrieved’ s] version of his perspective. The other thing is I am satisfied, for the purpose of these proceedings, that you are his biological uncle, and his mother is your sister. Sadly, she is not here today. She is unwell and we hope she has a speedy recovery. Now, whether or not this order should go any further – is it necessary and desirable. It would appear to me, and I think the word that was used by Mr Engwirda was, “fixated”. There is, obviously, some matters that are going on, which involve your late father’s estate, and these are often unsavoury and acrimonious procedures. For you, I guess it has been going on for a number of years now, and I daresay it will continue to unravel until there is a finding as to what the circumstances will be. To some extent, that part of the has little or no impact in regard to the decisions that I have made here today. However, I am satisfied, given that this is an ongoing issue, I daresay that this behaviour, particularly the car side vigil’s, the interviews and so forth that I have heard of today will be matters that are going to be of some concern over the next couple of years until the Supreme Court issue is resolved. Now, it is on that basis that I am satisfied that it is necessary and desirable for the orders of the Court to be put in place… [underlining added] The reasons were inadequate Principles [39] In Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, Muir JA (with whom Holmes JA, as the Chief Justice then was, and Daubney J agreed) was dealing with an appeal from a Judge of this Court in a civil matter. That appeal is, like this one, an appeal by way of rehearing. The appeal concerned a judgment for damages for personal injury arising from the unfortunate loss by the respondent of his hand while using a circular saw. His Honour summarised the law on the scope of the duty to give reasons as follows: [57] A court from which an appeal lies must state adequate reasons for its decision. The failure to give sufficient reasons constitutes an error of law. [58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with “a justifiable sense of grievance” through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide “the foundation for the acceptability of the decision by the parties and the public” and to further “judicial accountability”. [59] The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and “the function to be served by the giving of reasons”. For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said: “… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.” -- 12 of 21 -- 13 [60] McHugh JA’s view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but “… it is necessary that the essential ground or grounds upon which the decision rests should be articulated”. [61] In Strbak v Newton, Samuels JA said: “…What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.” [62] Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith, said that the decision maker: “…should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions.” [63] Meagher JA in Beale v Government Insurance Office of NSW stated these propositions: “… there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.” [64] Whilst, in my respectful opinion, it would be inconsistent with authority to apply the three “fundamental elements” rigidly, and I do not understand his Honour to be suggesting otherwise, they provide useful guidance for a determination of the sufficiency of reasons in the general run of cases. [underlining added] [40] The following matters should be noted: -- 13 of 21 -- 14 (a) The rationale which guides the assessment of adequacy of reasons is the need to explain to the unsuccessful party the reasons for failure, to explain the basis for judgments being made according to law and to facilitate the right of appeal; (b) Reasons need to respond to the issues raised in the proceedings, but ordinarily reasons should disclose the key factual findings made, the law to be applied, and the reasoning by which the application of the law, as stated to those facts as found, led to the orders made; and (c) Where there is a conflict on the evidence as to the facts, findings of fact assume particular importance. In that context, the underlined passage from Beale assumes particular significance. [41] Mr Jackson submitted that the content and detail of the reasons to be provided will vary according to the nature of the jurisdiction which the Court is exercising as well as the particular matter the subject of the decision.16 That is plainly correct. He also submitted that where ex tempore judgments are given, impreciseness of language can have less significance than it otherwise would have. That can also be accepted. However, the case he referred to involved observations by the Court of Appeal on ex tempore reasons for a sentence given by a Judge of this Court.17 However, the fact that a judgment was given ex tempore cannot convert inadequate reasons into adequate reasons. If a judicial officer cannot give adequate reasons on an ex tempore basis, then the decision must be reserved, even if only for a short time, to allow for the proper marshalling of the facts and law and the proper articulation of the reasons for the decision. [42] Mr Jackson developed his argument on adequacy of reasons by very extensive reference to observations made by his Honour during submissions. It can be accepted, in theory, that regard may be had to comments in submissions to assist in identifying a Court’s reasons, particularly where ex tempore reasons are given immediately at the end of argument. However, apart from referring to those reasons to resolve ambiguities which are explicable in context, care must be taken in doing this. A Judge’s reasons are primarily to be found in the reasons for judgment. Comments can be made in argument which do not reflect the Judge’s ultimate view, or which are put merely for the purpose of argument. Indeed, reference to the transcript can create more ambiguity than it resolves. A good example appears in paragraphs [34] and [35] above. Did his Honour in fact determine the application on the basis of the respondent’s exposure to domestic violence offered to others? If he did, this created issues which required careful analysis. However, these points were not expressly dealt with in the reasons. In this regard, reference to the transcript adds to, rather than reduces, the inadequacy of the reasons. Examples of that kind can be multiplied: for example his Honour considered the Supreme Court proceedings a red herring at one point, but relied on them almost exclusively as justifying the orders he made in his reasons. Analysis [43] In my respectful view, his Honour’s reasons were inadequate for the following reasons. 16 Wainohu v New South Wales (2011) 243 CLR 181 at [56]. 17 R v Hooper; ex parte Cth DPP [2008] QCA 308 at [23]. -- 14 of 21 -- 15 [44] First, this was a case where there were contested issues of fact which were central to whether any acts had occurred which could be characterised as domestic violence and if so, whether those acts were of a kind which could sustain the conclusion that an order was necessary or desirable to protect the respondent. I set out the conflicting positions in paragraphs [9] and [10] above. In a case of that kind, it is necessary for a Judge to set out his or her findings on key facts and give some explanation for how those findings were reached. His Honour failed to do so. [45] For most of the issues in dispute, his Honour failed to make any finding. For example, what did his Honour make of the conflict of evidence about the allegedly savage dogs? Did his Honour accept the respondent’s hearsay evidence of the two acts of actual physical violence by the appellant against his sister? What did his Honour conclude about the conflicting evidence on the two arguments sworn to by the respondent about the family trust issues? [46] Reference to his Honour’s comments during submissions does not fill the gap. Mr Jackson urged me to infer that the acts his Honour found proved were acts of intimidation arising out of the appellant seeking payment from the respondent from the trust company account for money disbursed by him on account of the respondent’s mother’s house and personal needs. It seems his Honour agreed these were overt acts of intimidation in submissions. But what did he conclude about the circumstances of those acts that resulted in them meeting the definition of emotional and psychological abuse? The transcript on this point is unclear.18 [47] Similarly, Mr Jackson urged me to infer that his Honour accepted the respondent’s evidence about the two family confrontations about the trust or the Supreme Court proceedings: in March 2020 and June 2020. However, it is unclear what his Honour found occurred or why.19 The reasons do not assist: they refer only to clear issues which arose when the appellant encountered the respondent’s other family members, and the disputed issues arose. [48] One of the problems with failing to make specific findings of fact on material issues is that it conceals what, if any, reasoning process informed the assessment of the evidence. That was a real issue in this case. Take, for example, the allegations of actual violence said to have been offered by the appellant to his sister and her telephone. There was no other evidence of any physical acts of violence by the appellant. The respondent’s evidence was hearsay. The respondent’s mother had a history of mental illness which had the potential to affect her recollection of actual events. And the acts alleged would arguably be criminal offences, bringing in the principles articulated in Briginshaw.20 Further, whether his Honour accepted or rejected the respondent’s account in this regard would be material to his consideration of the key issues of whether domestic violence occurred and whether an order was made. But his Honour’s reasons do not deal with what place, if any, these allegations had in in his decision- making process. There is a similar problem with the lack of any finding on the peculiar dog attack allegations by the respondent. Did he accept or reject them? If he rejected the respondent’s evidence, what, if any, implications did that have for his reliability on other contested issues? 18 TS1-73.27 to .34. 19 TS1-74.8 to .26. 20 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 15 of 21 -- 16 [49] Second, the brief finding which his Honour does make on the contested issues is conclusory and opaque. That finding is underlined in paragraph [38] above. One cannot determine from that statement what his Honour has found, much less why. While there is some overlap in the evidence of the appellant and the respondent, it cannot be said that the appellant’s account corroborates the respondent’s account in any area of material conflict. Indeed, the appellant’s evidence directly disputes the respondent’s account insofar as it makes allegations which tend to support the proposition that domestic violence occurred. [50] Third, his Honour does not explain in his reasons how the facts he finds constitute domestic violence as defined in the statute. The only relevant statement made in the reasons is that “you have…imposed on him in a way where your behaviour is seen to be intimidating and caused him some emotional and psychological distress”. It can be reasonably inferred that the basis upon which his Honour reached the conclusion that domestic violence was established, was by reference to s. 11 DFVPA. Beyond that, however, the reasons do not explain how any identified act met the requirements of that provision. [51] This is of real importance given the issues which arose in the trial. It was not contentious that the appellant never expressed any anger to the respondent or offered him any actual violence. It was not contentious that the appellant had played a significant supportive role over many years in the life of the family. It was submitted at trial by the appellant’s solicitor that no act had been done towards the respondent that could be characterised as domestic violence under the DFVPA. Those aspects of the trial called for a specific explanation of the basis for the conclusion that domestic violence had occurred. [52] The elements of s. 11 DFVPA are that: (a) There is behaviour by person A; (b) It is behaviour towards person B; (c) That behaviour torments, intimidates, harasses or is offensive to person B. [53] On the evidence at trial, not only was there a dispute about the behaviour of the appellant, but there was also an issue raised as to whether any behaviour could be characterised as being towards the respondent. Further, as the passage in paragraph [28] demonstrates, whether behaviour torments, intimidates, or harasses must be assessed objectively, albeit in context, including the character of the person towards whom it occurs. Much of the behaviour complained about arguably could not objectively be intimidating, bearing in mind the ongoing nature of the contact between the appellant and the respondent. For example, if the appellant is not behaving unreasonably in the context of his historical relationship with the respondent by visiting him regularly, and the respondent does not tell the appellant that he does not wish him to continue visiting, how can that conduct properly be characterised as intimidation? At the least, it is doubtful it could be so characterised. [54] Fourth, his Honour failed similarly to make findings of fact or give adequate explanation of his reasoning to his conclusion that an order was necessary or desirable. His reasons are limited to finding that the appellant is fixated on the Supreme Court proceedings, that arguments about them are the cause of the problems and that -- 16 of 21 -- 17 therefore an order is required to stop domestic violence occurring because of those arguments. Of itself, I do not consider this sufficient to justify making the broad orders his Honour made. [55] In GKE v EUT [2014] QDC 248, McGill DCJ observed: [27] Section 4(1) requires the Act to be administered “under the principle safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.” Further principles are set out in greater length in ss (2), which includes that people who fear or experience domestic violence should be treated with respect and disruption to their lives minimised. Nevertheless, s 37(1)(c) requires satisfaction that the protection order is necessary or desirable to protect the aggrieved from domestic violence. Accordingly the issue is not simply whether an aggrieved wants an order to be made, or indeed whether the aggrieved would feel better if an order was made, but whether the making of such an order is necessary or desirable, specifically for the purpose of protecting the aggrieved from domestic violence. [28] This is concerned with the situation in the future, something which cannot be proved as a matter of historical fact, but depends on the Magistrate’s assessment of the circumstances, bearing in mind the extent to which there is likely to be a continuing need for contact between the parties. … [30] The Magistrate adopted a number of propositions which had previously been stated in another decision of the same Magistrate. The first of these noted the distinction between an order being “necessary” and an order being “desirable”, although the illustration of an instance where an order was thought to be “necessary” is not I think helpful, in circumstances where the focus should be on the prospect of future domestic violence otherwise occurring, rather than holding the respondent accountable for domestic violence. That seems to be tying the justification for the order to prior conduct. There are other mechanisms in the Act for giving effect to the purpose of holding perpetrators accountable. [31] In my opinion it is clear that this wording was adopted because of concern that, if the requirement had been to show that it was necessary, that might have proved a more stringent requirement than the legislature had intended. I would expect a greater level of concern about the risk of future domestic violence, both as to the prospect of it otherwise occurring and to the reasonably anticipated seriousness of such violence, to be relevant to the issue of whether such an order was necessary to protect the aggrieved from domestic violence, and even if that level of satisfaction is not achieved, the court may be satisfied that there is a sufficient risk of future violence, of sufficient severity, to make it desirable for such an order to be made for the protection of the aggrieved from domestic violence. [32] In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved. [33] I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a -- 17 of 21 -- 18 thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future. Broadly speaking I agree with what the Magistrate said in the passage beginning “fourthly” of his reasons, though I would express the last sentence as “the risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.” … [34] I would add that it is also relevant to bear in mind any changes in pre-existing patterns of behaviour which have already occurred; the fact that on this occasion the appellant, in going to the respondent’s residence, did something which he had not previously done was therefore a relevant circumstance… [56] I agree with these observations. The risk of future domestic violence and the need for the respondent to be protected from it must be considered in all the circumstances, including past domestic violence. If no proper findings are made on the respondent’s complaints, it is impossible to see how his Honour has concluded an order is necessary and desirable. A fortiori where the only factor he refers to in his reasons is the Supreme Court proceedings and where the evidence never properly identified what the Supreme Court proceedings were beyond the observation that they involved proceedings by the appellant as executor. The issue causing the disputes in the family seem to be connected to the operations of a family trust. It is unclear how the two relate to each other and his Honour did not explain. [57] Fifth, his Honour failed to deal with a central argument advanced by the appellant: that his conduct since the filing of the application for the protection order indicated he had understood that his nephew did not want to continue their relationship in the way it had been conducted in the past. In that circumstance, why was an order necessary or desirable? Frankly, given the nature of the past relationship, that circumstance strongly indicated no order was required. One of the requirements for adequate reasons is to engage with the principal submissions put by the unsuccessful party. The reasons did not do so in this regard. [58] I am acutely conscious of the pressure on Magistrates in dealing with the domestic violence list. However, where there are contested facts, and the circumstances are such as to make both the identification of acts of domestic violence and the need for an order open to serious question, it is necessary for properly considered reasons to be given. Those reasons must, at a minimum, cover the following matters: (a) The Court must make findings of fact on the principal contested factual issues with some explanation of the basis for the finding by reference to the evidence; (b) The Court must identify expressly what acts are found to comprise acts of domestic violence and why; (c) The Court must explain the basis for concluding that an order is necessary and desirable in the light of the acts found and the other relevant circumstances; (d) The Court must explain why the principal submissions made by the unsuccessful party on these issues have been rejected. [59] The reasons in this case failed to address any of those matters. -- 18 of 21 -- 19 Demeanour of non-witness wrongly relied upon [60] The appellant also submitted that his Honour erred in considering the respondent’s sister’s demeanour in Court in circumstances where she was not called as a witness. There is no doubt that his Honour did rely on her demeanour: see paragraphs [26] and [38] (underlined sections) above. His Honour erred in doing so. While the rules of evidence do not apply in civil proceedings for a protection order under the DFVPA, the Court must still act on rationally probative evidence and must accord procedural fairness. His Honour’s reliance on her demeanour was indefensible on both grounds. [61] As to the former point, juries are warned to exercise care in relying on demeanour of a witness when giving evidence as an indication of truthfulness and reliability. Juries are also warned to consider whether there are alternative explanations for evidence of distressed state in sexual offences.21 How much more care should therefore be exercised if a Court is intending to rely on the apparent distress of a person who is not a witness, but who is merely attending the hearing. [62] His Honour appears to have ignored all such considerations and inferred that the respondent’s sister’s distressed state impugned the credibility or reliability of the appellant’s evidence. Her distress provided no rational basis for that inference. That is all the more the case as the evidence showed that she was hostile to the appellant. [63] As to the latter point, it was inimical to a fair trial for his Honour to draw inferences about the cause of the respondent’s sister’s distress adverse to the appellant without giving his solicitor an opportunity to cross-examine her. No such opportunity arose, however, because she did not give evidence. Accordingly, there was no way, consistent with a fair hearing, that his Honour could have drawn inferences adverse to the appellant from her apparent distress. [64] In this regard, the conduct of the trial fell below an acceptable level of fairness. Jones v Dunkel issue [65] The appellant’s counsel submitted that a Jones v Dunkel inference should be drawn against the respondent’s mother and sister. It was open to his Honour to reject that submission in respect of the respondent’s mother, given that she was in hospital at the time of the trial suffering with mental health issues, though that did not explain why an affidavit was not sought nor obtained from her. There was no evidence explaining that matter. [66] However, his Honour should have acceded to the submission in respect of the respondent’s sister. The respondent’s counsel submitted that “as your Honour’s observed…the sister, found it very difficult to cope with today’s proceedings. And a decision was made not to call her. The rules of evidence [do not] apply in this jurisdiction.”22 He also submitted that a Jones v Dunkel inference would be entirely inappropriate in the circumstances where there is being aired hurtful family issues. This submission was accepted by his Honour. He should have rejected it: 21 See Supreme and District Courts Criminal Directions Benchbook, Direction No 67.1. 22 TS1-69.11 to .13. -- 19 of 21 -- 20 (a) As I have observed, there was no evidence at all as to the reason for the respondent’s sister’s distress on the day of the hearing; and (b) There was no evidence that her distress at the prospect of giving evidence was the reason she was not called. [67] The submission was flawed and led his Honour into error. I recognise that, in the domestic violence jurisdiction, the Court might be more readily persuaded that little turns on the decision of a person involved in the events not to involve themselves in the proceeding. However, the respondent’s sister did involve herself very closely in the proceeding by attending as a support person for her brother. [68] Reasonable minds might have differed as to what place a Jones v Dunkel inference would have had in the fact finding process in relation to the events involving the respondent’s sister. That point is moot however, because it was plainly an error to assume, as his Honour did, that her evidence corroborated the respondent’s evidence in some manner. Remittal for rehearing [69] There was another error which underpinned the whole of his Honour’s approach to the trial. It was evident, almost from the moment that the appellant began to give evidence, that his Honour considered him rude and officious.23 There is no doubt that the appellant’s behaviour justified that assessment. However, as counsel for the appellant submitted, the learned Magistrate’s view of the appellant’s demeanour and character appeared to overwhelm all other considerations in the trial. [70] His Honour’s attitude to the appellant might be the explanation for his Honour’s decision to make him stand while he gave judgment and to reprimand him for having his hands in his pockets. This is the kind of procedure which applies where a person is being sentenced for a criminal offence. It is not ordinarily a proper procedure in a civil hearing. It was also not a proper procedure in this particular case, because even on his Honour’s approach, the worst which could be said about the appellant was that he was overbearing towards the respondent without realising it. No fixed rules can be established as to how a Court should conduct a hearing, but at least in this case, his Honour’s approach was not justified. [71] The impression given by the transcript and reasons overall is that the appellant’s demeanour, by itself, was taken to corroborate respondent’s evidence on any point of conflict. The result of that was that his Honour did not consider the whole of the evidence, did not make any sufficient findings on the contested facts and did not properly articulate reasoning on any key issue. [72] There is no part of his Honour’s observations or reasons which assists me in determining the application on this appeal. Further, if I was to proceed to attempt to determine the matter on this appeal, fresh submissions would have to be made on the trial record, the appeal having been conducted by the respondent at least based on defending the reasons. In those circumstances, the appropriate course is for the matter 23 TS1-40.29 to .40. -- 20 of 21 -- 21 to be remitted back to the Magistrates Court so the trial can be reheard by another Magistrate. [73] Further, while the appellant is entitled to his costs from the respondent, it is an appropriate case for the respondent to be granted an indemnity certificate in respect of those costs of this appeal under s. 15(2) Appeal Costs Fund Act 1973 (Qld). I have made a separate order to that effect. -- 21 of 21 --