CPD v Ivamy & Anor [2018] QDC 244

DISTRICT COURT OF QUEENSLAND CITATION: CPD v Ivamy & Anor [2018] QDC 244 PARTIES: CPD (appellant) v SENIOR CONSTABLE SKYE IVAMY (first respondent) and BPO (second respondent) FILE NO/S: D324 of 2017 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Southport DELIVERED ON: 5 December 2018 DELIVERED AT: Southport HEARING DATE: 8 August 2018 JUDGE: Muir DCJ ORDER AND DIRECTIONS: The order of the court is that: 1. The appeal is allowed; 2. The Magistrate’s order of 10 November 2017 is set aside; and 3. The matter is remitted to the Magistrates Court for re-hearing. The court directs that: 1. If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Wednesday, 12 December 2018. CATCHWORDS: APPEAL AND NEW TRIAL – domestic violence – appeal against protection order following summary trial in Magistrates Court – whether Magistrate erred in finding subsequent communications sent by appellant’s mother amounted to further acts of domestic violence – whether Magistrate erred in finding the conduct of the appellant’s counsel during the trial was an act of domestic violence – whether the protection order was necessary or desirable. -- 1 of 20 -- 2 LEGISLATION: Domestic and Family Violence Protection Act 2012 (Qld), ss 4, 8, 9, 37, 100, 145, 164, 168, 169 CASES: BAK v Gallagher & Anor (No 2) [2018] QDC 132 Bode v Commissioner of Police [2018] QCA 186 Briginshaw v Briginshaw (1938) 60 CLR 336 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Edwards v Noble (1971) 125 CLR 296 Fox v Percy (2003) 214 CLR 118 GKE v EUT [2014] QDC 248 House v The King (1936) 55 CLR 499 McDonald v Queensland Police Service [2018] 2 Qd R 612 MDE v MLG [2015] QDC 151 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 COUNSEL: A J Edwards for the appellant E F Kennedy (sol) for the first respondent SOLICITORS: Jacobson Mahony for the appellant QPS Legal Unit for the first respondent Overview [1] This is an appeal under s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) against the decision of a Magistrate on 10 November 2017, after a four-day summary trial conducted in March and April 2017, to make a five- year Protection Order against the appellant. [2] The appellant does not dispute the existence of a relevant relationship under the Act or the finding by the Magistrate that he committed an act of domestic violence on 1 November 2015. Two main grounds of appeal are agitated by this appeal. First, whether the Magistrate erred in finding that subsequent communications sent by the appellant’s mother and the conduct of the trial by his counsel1 amounted to further acts of domestic violence. Second, whether the Protection Order was necessary and desirable to protect the appellant’s ex-wife (the second respondent) and the children of the relationship, from the appellant.2 [3] For the reasons discussed below, in my view, the entire trial process in this case was infected by deep seated and mostly irrelevant conspiracy theories emanating from and distracting all parties involved. This resulted in an unnecessarily opaque, protracted and acrimonious trial and led the Magistrate into error. In the resolve, I have determined that the Protection Order ought to be set aside and the matter remitted to another Magistrate for re-hearing. 1 A different counsel appeared for the appellant on the appeal. 2 The first respondent is the police woman who made the original application on behalf of the second respondent. The second respondent sat at the bar table beside the solicitor advocate for the first respondent during the appeal hearing but made no separate submissions. -- 2 of 20 -- 3 Relevant legal principles [4] An appeal is a creature of statute. The nature of the appeal right therefore depends on the construction of the statute concerned.3 [5] Section 168 of the Act provides: “168 Hearing procedures (1) An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed. (2) However, the appellate court may order that the appeal be heard afresh, in whole or part.” [6] Under s 168(2) the court may order that the appeal be by way of a hearing de novo. No such order has been sought or made in this case. The nature of the appeal in this case is therefore one of a re-hearing and is to be decided on the evidence and proceedings before the Magistrates Court below.4 [7] The court of appeal conducting an appeal by way of re-hearing is bound to conduct a real review of the evidence at first instance and of the Magistrate’s Reasons for judgment, to determine whether the Magistrate has erred in fact or law.5 The appellant must demonstrate some legal, factual or discretionary error of the trial Magistrate.6 The question is not whether the appellate court may have itself made a different finding but rather, whether the finding made by the Magistrate was reasonably open on the evidence before her.7 [8] Where, as in the present case, the decision under appeal involves an exercise of discretion, an error of the kind discussed by the High Court in House v The King (1936) 55 CLR 499, must be identified:8 “If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.” [9] Section 169 of the Act sets out the powers of the appellate court as follows: “169 Powers of appellate court (1) In deciding an appeal, the appellate court may— (a) confirm the decision appealed against; or (b) vary the decision appealed against; or (c) set aside the decision and substitute another decision; or 3 See the observations of Bowskill J in McDonald v Queensland Police Service [2018] 2 Qd R 612 at [11] with reference to Fox v Percy (2003) 214 CLR 118 at [20]. 4 See the observations by McGill SC DCJ in GKE v EUT [2014] QDC 248 at [3]. 5 See the observations of McMurdo JA in Bode v Commissioner of Police [2018] QCA 186 at [42] with reference to the High Court in Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at 686-687; [2016] HCA 22 at 43. 6 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]-[17]. 7 Edwards v Noble (1971) 125 CLR 296 at 304. 8 House v The King (1936) 55 CLR 499 at 505. -- 3 of 20 -- 4 (d) set aside the decision appealed against and remit the matter to the court that made the decision. (2) The decision of the appellate court upon an appeal shall be final and conclusive.” [10] These appeal principles must be considered in the context of the Act as a whole. [11] Relevantly, s 4(1) outlines the principles for administering the Act as follows: “4 Principles for administering Act (1) This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.” [12] Section 8 defines Domestic Violence for the purpose of this Act as follows: “8 Meaning of domestic violence (1) Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that— (a) is physically or sexually abusive; or (b) is emotionally or psychologically abusive; or (c) is economically abusive; or (d) is threatening; or (e) is coercive; or (f) in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else. (2) Without limiting subsection (1), domestic violence includes the following behaviour— (a) causing personal injury to a person or threatening to do so; (b) coercing a person to engage in sexual activity or attempting to do so; (c) damaging a person’s property or threatening to do so; (d) depriving a person of the person’s liberty or threatening to do so; (e) threatening a person with the death or injury of the person, a child of the person, or someone else; (f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed; (g) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed so as to control, dominate or coerce the person; (h) unauthorised surveillance of a person; -- 4 of 20 -- 5 (i) unlawfully stalking a person. (3) A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence. (4) To remove any doubt, it is declared that, for behaviour mentioned in subsection (2) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt. (5) In this section— coerce, a person, means compel or force a person to do, or refrain from doing, something. unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including for example, by using technology. Examples of surveillance by using technology—  reading a person’s SMS messages  monitoring a person’s email account or internet browser history  monitoring a person’s account with a social networking internet site  using a GPS device to track a person’s movements  checking the recorded history in a person’s GPS device unlawful stalking see the Criminal Code, section 359B.” [13] Section 9 defines associated domestic violence to include behaviour mentioned in s 8(1) by a respondent towards a child of the aggrieved. Section 10 provides that a child is exposed to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence. [14] Section 37 provides that a court may make a protection order in the following circumstances: “37 When court may make protection order (1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that— (a) a relevant relationship exists between the aggrieved and the respondent; and (b) the respondent has committed domestic violence against the aggrieved; and Note— -- 5 of 20 -- 6 See the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12, which define the terms domestic violence, emotional or psychological abuse and economic abuse. (c) the protection order is necessary or desirable to protect the aggrieved from domestic violence. (2) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence— (a) the court must consider— (i) the principles mentioned in section 4; and (ii) if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the respondent’s failure to comply with the order; and (b) if an intervention order has previously been made against the respondent and the respondent has complied with the order— the court may consider the respondent’s compliance with the order. (3) However, the court must not refuse to make a protection order merely because the respondent has complied with an intervention order previously made against the respondent. (4) If an application for a protection order names more than 1 respondent the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court considers appropriate.” [15] It is not in issue in this case that the relevant relationship existed or that there was an act of domestic violence. The real issue for this court’s determination is whether the Magistrate erred in finding that the protection order was necessary or desirable to protect the second respondent and the children of the marriage from domestic violence. [16] The focus of this element is the paramount need for the protection of an aggrieved from domestic violence and whether imposing a protection order is necessary or desirable to meet that need. In MDE v MLG [2015] QDC 151, Morzone QC DCJ identified that the section invokes a very wide and general power. He identified that the third limb required a three-stage process supported by a proper evidentiary basis adduced pursuant to s 145 of the Act as follows:9 (a) First, the court must assess the risk of future domestic violence between the parties in the absence of any order. This means there must be a factual finding or inferences drawn of the nature of and prospect that domestic violence may occur in the future. This will 9 MDE v MLG [2015] QDC 151 at [55]. -- 6 of 20 -- 7 depend on the circumstance of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, psychological counselling, compliance with any voluntary temporary orders and changes of circumstances. Unlike its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence. (b) Second, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations may include the evidence for the party’s future, personal and familial relationships, their places of residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children. (c) Third, the court must then consider when imposing a protection order whether it is necessary or desirable to protect the aggrieved from domestic violence. [17] In GKE v EUT [2014] QDC 248, McGill SC DCJ observed relevantly:10 “[32] In my opinion, the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature and whether it can properly be said in the light of that evidence that it is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that, the making of an order is necessary or desirable to protect the aggrieved. [33] I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future… In assessing such a risk, it is relevant to consider the fact that there is going to have to be some ongoing relationship because of the position of the children, and, if as the appellant alleges, the respondent has been difficult and uncooperative in the past in relation to the arrangements for him to have the opportunity to spend time with the children, there is a risk that there will be situations arising of a kind which have in the past produced domestic violence.” 10 GKE v EUT [2014] QDC 248 at [32]-[33]. -- 7 of 20 -- 8 Relevant background [18] The appellant, a former detective, and the second respondent, a police prosecutor, met in 2004 and moved to the Gold Coast region in 2005. They were married in 2007. Their daughter was born in September 2008 and their son in April 2010. The second respondent accused the appellant of controlling, emotionally abusive and threatening behaviour towards her during their marriage. The appellant denied such behaviour but accepted that the relationship was not a healthy one. The couple separated in July 2015 but remained cohabiting. The appellant was concerned during the demise of the marriage that the second respondent would invoke her standing as a police prosecutor to use the police and courts as leverage through a domestic violence application and that she would exaggerate or fabricate allegations against him. On 28 October 2015, the appellant was served with Family Court proceedings, seeking parenting and property orders. [19] On 1 November 2015, the second respondent left the family home following an incident that occurred after the second respondent attended an open house inspection for a rental property. The circumstances were described differently by both parties, but it appears to be accepted that the second respondent was filling out a rental form when the appellant arrived home and tried to remove the form from her. In the presence of the children, the appellant filmed the second respondent and followed her as she tried to remove herself, so she could complete the form. At one point she too began filming the confrontation. The second respondent placed the form on the kitchen bench and the appellant reached out to pick it up and there was a scuffle over it which resulted in the form being ripped apart. The second respondent took her phone and the form and ran to a neighbour’s home for help and telephoned the police. [20] This incident led to the making of a Temporary Protection Order (with the consent of the appellant without any admission) on 4 November 2015, naming the second respondent and the two children (because this incident occurred in their presence) as the aggrieved.11 [21] The terms of the Temporary Protection Order included the usual orders that the appellant be of good behaviour towards the second respondent and the children. It also prohibited him from approaching within 100 metres of where the second respondent lived or was present or going within 100 metres of the children’s school or other premises. It further prohibited the appellant from contacting or attempting to contact the second respondent except to the extent that it was necessary for him to appear before a Court or Tribunal. The order included a written undertaking signed by the second respondent which provided for communication between the appellant and her to be by text message through the appellant’s mother, to arrange for the children to be collected (by the appellant’s mother), from the second respondent’s house, for their agreed contact with the appellant. That undertaking was in place until 8 December 2015, when Family Court proceedings were due to be determined. [22] Subsequently, due to issues in relation to the second respondent not allowing the appellant to take the children on holiday, as she had agreed during the hearing on 4 November 2015, the appellant filed an application to vary the Temporary Protection 11 As the Magistrate observed at the outset of her Reasons, on 1 November 2015 Senior Constable Skye Ivamy filed an application for a domestic violence order against the appellant which noted instances of abuse from January 2015 escalating from July through to late October 2015. The precipitating event is said to occur on the 1st of November 2015. -- 8 of 20 -- 9 Order to remove the children’s names. This application was adjourned until 9 December 2015 after the date of the Family Court hearing. [23] On 8 December 2015, interim orders were made in the Family Court allowing the appellant ongoing contact with the children supervised by his mother. [24] On 9 December 2015, the appellant’s application to amend the Temporary Protection Order to remove the children from the order so that he could have contact, as had been contemplated in the Family Court order the day before, came before the court. The second respondent was prepared to consent to this order, but the police prosecutor opposed the removal of the children. [25] On 18 February 2016, following a mediation in the Family Court proceedings, an agreement between the parties as to parenting and property was reached. On 29 February 2016, final consent orders were made in the Family Court. These orders provided for increasing contact between the appellant and the second respondent and included that the parties were to communicate via email and that the appellant’s mother was no longer the conduit between them. In accordance with these orders the parties themselves were in charge of the changeovers. At this time the appellant gave an undertaking to be of peace and good behaviour and not commit any acts of domestic violence. Both parties agreed to do all they could do to remove the Temporary Protection Order. [26] In accordance with the terms of the Family Court consent order, the second respondent contacted the police and asked for the Temporary Protection Order to be withdrawn. The police prosecution refused to withdraw the order. [27] On 11 March 2016, the domestic violence hearing listed to commence on 14 March 2016 was adjourned to allow the appellant the opportunity to make submissions for the discontinuance of the domestic violence application in line with the Family Court consent order.12 [28] On 11 March 2016, the appellant was charged with breaching the Temporary Protection Order. Three breach charges proceeded to trial on 20 May 2016 and the appellant was acquitted of all but one of these charges. The conviction related to a contravention that on 11 March 2016, the appellant had contact with the second respondent. The factual circumstances were that he contacted her on FaceTime to ask her a question about a medication dosage for their son. The appellant was sentenced to an absolute discharge with no conviction recorded.13 The two charges of which he was acquitted related to sending an email in which he thanked the second respondent for being decent and for bombarding her with emails on 11 and 29 March 2016. [29] After the hearing on 20 May 2016, the prosecutor was invited to withdraw the domestic violence order application but submitted she did not have the power to do that. The appellant then gave an undertaking that his mother would act as the contact person. The second respondent was not consulted about this and did not become aware of this fact until 7 September 2016. On 7 September 2016, this undertaking was extended. 12 Police Prosecutions opposed this application. 13 Exhibit 6 contains the Transcript of the hearing before Magistrate Strofield. -- 9 of 20 -- 10 [30] On 11 April 2017 (the last day of the summary trial), the previous undertakings providing for the appellant’s mother as the contact person were withdrawn and it was agreed that the Family Court order operated between the parties. The hearing below [31] The trial before the Magistrate was heard on 22 and 23 March 2017 and 10 and 11 April 2017. From the outset, the trial was plagued by acrimony and confusion. The transcript of the hearing is difficult to follow due to constant interruptions and exchanges between the bench and the legal representatives. [32] In what was wrongly characterised (in my view) as an opening, the scene was set by the police prosecutor for the chaos to come, as follows:14 “…….The police application relies on a clearly demonstrated pattern of behaviour by the respondent. This pattern of behaviour does include taking facts out of context. And the first point that has never been fully brought before the court in any proceeding is the full evidence of the aggrieved, [the second respondent], and, in particular the history of the relationship and the domestic violence that she says occurred in the relationship. Now, the nature of the abuse in this case will be alleged to be abuse of the intimidating, verbally abusive and emotionally abusive kind, as opposed to, perhaps direct violence, although there are incidents of physicality. This kind of constant exposure, it will be submitted, is the behaviour that creates cracks in a victim’s psyche. And that will go towards the need for protection in the future to [the second respondent] from the behaviour. Your Honour, it is the applicant’s case that throughout the material, the respondent, it will be alleged, began formulating a plan to circumvent any domestic violence allegations before the incident where police were called and an order was taken on the 1st of November. The respondent’s case is that the conspiracy is the aggrieved – that she was domestic violence order shopping, being a serving police officer; that she was using her position, or was going to use her position, to try to abuse the system as such. But this is the applicant’s case: is that the conspiracy was indeed the respondent’s. And this began by saying things to the aggrieved, like that she will use her authority to abuse the system, making threats to the aggrieved in relation to, if she was to do so, complaints would be made about her – her position, her career would be in jeopardy and, in fact, part of the respondent’s own material is a letter he writes, to the lawyer, acting for the aggrieved, before the domestic violence incident, which contains a veiled threat to her career, if domestic violence proceedings are to be taken. So, your Honour, when constable – Senior Constable Ivamy arrives and, it is our case, it is her decision to take out the domestic violence order, not the aggrieved’s, the state has already been set by the respondent that the conspiracy as arrived. The aggrieved has 14 Transcript of hearing before Acting Magistrate Tynan at T1-10 – T1-11. -- 10 of 20 -- 11 won. She’s got her way and that this is all contrived and manipulated in order to bring action against him. … This state being set was complicated by – it will be our submission, a Senior Constable Manche, who’s involvement in this matter, has caused a lot of controversy and if – and I say if, because of the prior difficulties in obtaining Senior Constable Manche at court dates, if she is put in the witness box the applicant will be challenged from her actions and credibility in relation to how she handled the matter, both professionally and personally. You see, your Honour, there were breach proceedings in May 2015, where the respondent was charged with three counts of breaching the temporary protection order. I’ve asked that a copy of that transcript be provided for the – these proceedings at the last mention. … The fact that there were breach proceedings, your Honour, goes to the – whether or not there’s a need in the future, in my submission for an order. So the case will be that the respondent was ready with a – and there will be – there’s a – a digital recording of when the police turned up and the respondent’s way and manner in which he addressed the allegations, will in my submission demonstrate that he was ready with this conspiracy when police turned up on the day and in – it’s during that digital recording he had consulted with his solicitor, the instructing solicitor, Mr Peter Cobb in relation to those. … Your Honour, it will, in my submission come out in the evidence that the current situation’s still emotionally affecting the aggrieved and there’s still unresolved issues, still control issues, and still a need for protection to enable the power imbalance that occurs in the mind of an aggrieved, during such a time when she was involved in the relationship, so that she may---” [Emphasis added] [33] Evidence in chief before the trial Magistrate was by way of affidavit. Both the appellant and the second respondent swore three affidavits which contained several exhibits including affidavits prepared for the Family Court proceedings. There was also an affidavit from the first respondent and other police officers involved in the prosecution and affidavits from the appellant’s mother. All of these witnesses were cross-examined. The Magistrate’s reasons [34] The Magistrate gave ex tempore reasons on 10 November 2017, some seven months after the hearing. The transcript of the Reasons is 32 pages. At the outset, the Magistrate discussed in general the evidence and her observations of the various witnesses and the overall conduct of the case particularly by the appellant. [35] The Magistrate referred to the evidence in chief of the second respondent attesting to episodes of verbal and emotional abuse pre-dating the birth of the children and threats by the appellant to leave the relationship as early as 2010. She referred to the large number of incidences of alleged abuse and criticism including the appellant yelling at her, pointing his finger in her face, using obscene language towards her and making threats as to her care and her relationship with the children. The Magistrate referred -- 11 of 20 -- 12 to her evidence of occasions of verbal abuse and threatening demeanour when the children and others were present. She also referred to the appellant’s sworn evidence denying the allegations and explaining his conduct from his perception of that event as being benign. [36] The Magistrate was critical of the police investigation, describing it as flawed, “to say the least”.15 She referred to Officer McConaughey as a poor witness and that his memory of his participation in the investigation was “negligible and contradictory and confused”.16 She also observed that “If this were an example of Officer Ivamy’s usual work standard, it is somewhat lacking in competence and professionalism.”17 [37] The Magistrate referred to the application made during the hearing before her that the domestic violence application be struck out as failing to meet the requirements of s 100 of the Act because the police had not interviewed the appellant. In her Reasons she stated that:18 “On reflection, and having listened to the whole of the evidence and the arguments again, I remain of the view that there was every reason for the police to act in the circumstances and to bring the matter to the Court for adjudication.” [38] The Magistrate referred to the trial being focussed on the institution and continuation of the proceedings by the police service and the role of the second respondent in this. She referred to the thrust of the cross-examination of the second respondent to be that she had abused her position and contacts as a prosecutor to have the proceeding initiated. The Magistrate accepted the second respondent’s evidence that she had not abused her position as a prosecutor and that she did not use the process to manipulate. In doing so the Magistrate found that:19 “The conduct of the matter, then, is a far better representation of the real respondent than his reasonable persona in court. The major focus for two full days was on the contention that the aggrieved had trawled her contacts in QPS to initiate a false application for a domestic violence order. The cross-examination of her can only be seen to be an attack on the aggrieved in her professional capacity and upon her integrity as a person. It was prolonged and repetitive and unnecessary and unsuccessful and ultimately abandoned. Focussing for as long as it did on the issue of the validity or otherwise of the initiating application, the respondent’s case lost sight of the bigger picture. This case is not about a singular incident of alleged domestic violence culminating in an application by the police. It was not confined to the last few days or weeks before QPS intervention. It was about a long list of allegations of domestic violence over several years, and ultimately culminating in an application by the police, which it was submitted to be relevant only to a certain degree. But highlights the focus of the case on the allegations about a false institution of proceedings. 15 Reasons at 7-26. 16 Reasons at 7-31. 17 Reasons at 7-34. 18 Reasons at 7-18. 19 Reasons at 22-14. -- 12 of 20 -- 13 … Little of the respondent’s case focussed on a serious challenge to the allegations of abuse of several years. I do not intend to address each of the historical allegations of abuse, but, having regard to my assessment of the credibility of the aggrieved and the respondent, I find on the balance of probabilities that the accounts given by the aggrieved are to be preferred. There are, however recent events which bear particular comment and which assist me in that assessment of the parties and their credibility.” [Emphasis added] [39] The Magistrate focussed on the letter written by the appellant to the second respondent’s solicitor on 4 October 2015. This letter, amongst other things, stated:20 “I have concerns in relation to [the second respondent’s] vindictive nature towards me. I have been informed that she has run me down and bad mouthed me to neighbours. I have noticed a shift in her mental state and believe that this process may be taking a toll on her. I hope she stays rational and doesn’t make any rash decisions in an attempt to strengthen any case she may pursue in the Family Court. I know my wife, and I have real concerns that [the second respondent], due to her standing as a Police Prosecutor, may attempt to circumvent the system and process through exaggeration and fabrication. It is not my wish to become the respondent to a load up or verbal. [The second respondent] has a wonderful career ahead of her and I would hate for that to be placed in jeopardy due to misguided actions or an error in judgment. I have no intention of using the courts to ‘get in first’ as no one can benefit from this and it will only take further focus away from what is best for our children.” [40] The Magistrate found this letter to be a pre-emptive strike against the potential for allegations of domestic abuse. She considered the letter a cunning and cynical attempt by the appellant to denigrate the second respondent and impact her credibility in a prejudicial way. She found that it attacked her personally and professionally. She also referred to the appellant’s evidence in an affidavit filed by him in the Family Court proceedings, that the second respondent had approached numerous members of the Police Service to take out an order, to be an orchestrated attempt by the appellant to undermine the reputation and thereby the career of the second respondent. [41] The Magistrate also referred to the correspondence between the appellant’s mother and the second respondent as excessive and harassing and observed that there were far more emails to the second respondent than emails from her. [42] The Magistrate made the following specific findings:21 “I accept the evidence of the aggrieved that over a period of time, and especially after service upon the respondent of the Family Court papers, the respondent acted towards the aggrieved in a demeaning and bullying and overbearing manner, using verbal abuse and slurs and finger pointing and threats, which ultimately led to her seeking to relocate from the home. As to the incident on the 1st of November, 15, I accept that she returned to the home in 20 Exhibit 2 to the affidavit of the second respondent filed 1 December 2015. 21 Reasons at 24-13. -- 13 of 20 -- 14 possession of an application form for rental accommodation, and that the respondent allowed her no peace while she attempted to complete that form, such that she moved from kitchen to dining table to home office to escape his attempts to take the form from her, which he had no right or cause to do. I accept that the aggrieved returned to the kitchen bench to collect her handbag and keys in order to leave the premises to go to the real estate agent, at which time the respondent grabbed for the form and it became torn in the scuffle over it. The aggrieved picked up the pieces and left to seek shelter with a neighbour. It was submitted that the document was contrived by the aggrieved. If that is so, the respondent had it within his power to demonstrate that to the court. The respondent filmed some of his conduct, but deleted that record, a matter upon which I have already made adverse comment. This overbearing conduct towards the aggrieved on the 1st of November is patently an episode of domestic violence. I find that the overzealous, unsubstantiated attack on the aggrieved in her professional capacity throughout the conduct of this trial was a prolongation of bullying of her through harassment and intimidation. I find that the letter written to her solicitor, in that it attacks her personally and professionally, was a cynical attempt by the respondent to denigrate the aggrieved and impact her credibility in the eyes of her solicitor in a prejudicial way. I find that the volume of messages between the paternal grandmother and the aggrieved is unrelenting and continues despite requests to cease. I find that if the paternal grandmother is merely the conduit, then the respondent is the one driving the messages. The volume and content of the messages placed pressure on the aggrieved unfairly and unnecessarily. Thus the correspondence between the paternal grandmother and the aggrieved is excessive and harassing.” [Emphasis added] [43] The Magistrate referred to evidence from the second respondent that she had become so distressed by the conduct towards her from the appellant that she was physically ill, crying and shaking and vomiting on occasions and that the emotional response to the incident on 1 November is further evidence of how heavily the situation was weighing on her. [44] The Magistrate observed that while the appellant might have complied with the undertaking not to have direct contact with the second respondent, his contact with her had been indirect and through his mother, and that the messages from time to time contained unnecessary comments critical of the second respondent. She considered that there was no evidence of genuine remorse or rehabilitation on the behalf of the appellant and that in her view, his conduct since May 2016 and the conduct of the trial as it unfolded, was a continuation of the appellant’s harassing and offensive conduct towards the second respondent in another form and through agents. [45] The Magistrate was not satisfied that despite resolution of the matters in the Family Court, the conflict between the parties would necessarily be at an end. -- 14 of 20 -- 15 [46] In turning her mind to whether there was a need for a future order, the Magistrate observed that there was a depth of distrust between the parties which in her view would not dissipate with the conclusion of these proceedings such that:22 “The enmity between these parties is such that, in my view, the respondent has threatened to jeopardise the career of the aggrieved as a manifestation of his power over her. His conduct towards her is not recent or resultant upon separation. Thus it is a sustained and continuing attack over a substantial period. His denigration of her and his questioning of her mental health are attempts to control her and get his own way.” [47] In the resolve, the Magistrate concluded that she had:23 “[N]o hesitation at all in making the findings that the respondent has perpetrated acts of domestic violence against the aggrieved over a number of years. The onus of proof is that of the balance of probabilities, and I am well satisfied of those findings on that onus.” Analysis [48] It was uncontroversial that since the appellant and the second respondent had ceased cohabitating on 1 November 2015, there was a minor breach of the Temporary Protection Order on 11 March 2016, for which the appellant was convicted but absolutely discharged. [49] The contentious issues are the findings by the Magistrate that the emails sent by the appellant’s mother and the conduct of the trial by his counsel, were other acts of domestic violence, upon which a finding that an order was necessary or desirable in terms of s 37(1)(c) of the Act was considered open and indeed made. Emails [50] The Magistrate found the appellant was an unimpressive witness even allowing for the stress of being subject to the proceedings.24 The evidence was that the appellant and his mother resided together at various times when the emails were being sent. The appellant’s evidence about the generation of the emails was that he would tell his mother generally what he wanted to say, and she would then put it in her own words.25 It was suggested to him, and he denied, that he had put words into the emails.26 The Magistrate found that the appellant’s mother had conveyed the appellant’s wishes to get on with his life and live in peace and asked that the second respondent put her hatred to one side and co-parent. In doing so, she recognised that there was no evidence whether the appellant had intended that to be conveyed. However, the Magistrate found these sorts of comments inflammatory and that the appellant’s mother had passed on that “unhelpful and critical content to the aggrieved”.27 [51] The Magistrate noted the appellant’s evidence that he had not checked that only appropriate messages were sent by his mother but considered the references in the email of 21 October 2016, to the expressions “[the appellant] wishes”, “[the 22 Reasons at 26-14. 23 Reasons at 25-6. 24 Reasons at 21-13. 25 Transcript of hearing before Acting Magistrate Tynan at T3-86-19. 26 Transcript of hearing before Acting Magistrate Tynan at T3-89-14. 27 Reasons at 13-30. -- 15 of 20 -- 16 appellant] believes” as supporting a finding that “[c]learly his thoughts are being conveyed.”28 The Magistrate observed that if the appellant had not seen the messages there was “all the more reason to check that that is all that is being said.”29 Relevantly she stated her view of this evidence to be: “[f]rankly, I consider that unwise and unlikely, in the circumstances. It certainly leaves him open to the accusations that arise here, given that message content is not confined to arrangements for the children.”30 [52] The second respondent’s evidence was that she suspected the emails came from the appellant through his mother. But curiously on 30 January 2017, she requested that any further communication with her be through the appellant sending an email to his mother which could then be forwarded on to her because “I wanted to get a direct – what [the appellant] wanted to know and know that it was coming from [the appellant] because [the second respondent] interferes.”31 By this point, the second respondent accepted she knew there was an undertaking and that she would not expect the appellant to email her directly or to phone or text her directly. Her evidence about this issue suggests that the second respondent did not consider the content of the emails were words from the appellant’s mouth. Tellingly, the second respondent also said “trust me I do not want to be going through you either”.32 [53] I have reviewed the exchange of emails between the appellant’s mother and the second respondent. In my view, the Magistrates finding that the appellant was behind the tone and wording of the emails was pure speculation. She seems to have relied upon the fact that both the appellant and his mother used the term “self-serving” as a basis for such a finding. In my view, this expression is commonplace and aptly describes some of the correspondence from the second respondent. Further, the volume and the content of the emails needs to be seen in the context that they are exchanges mainly dealing with the logistics of matters relating to the children such as payment of bills and drop off and pickups, over a relatively long period of time. The appellant’s mother clearly took her role as the intermediary seriously but the emails do, in my view, contain unnecessary and unhelpful comments. [54] In my view, the tone of some of the emails from the second respondent to the appellant is as equally unhelpful and unnecessary. For example, in response to an apology from the appellant’s mother that she could have easily dropped the children off earlier, the second respondent said “Interesting as you have always responded to my emails immediately or soon after. Dropping the kids off late didn’t affect me, only the kids”.33 [55] Further, on 9 July 2016, the second respondent sent an email to the appellant’s mother saying:34 “Don’t complicate things [the appellant’s mother] and leave it for [the appellant] and me to co-parent our children… Don’t contact me again 28 Reasons at 14-26. 29 Reasons at 12-46. 30 Reasons at 12-43. 31 Transcript of hearing before Acting Magistrate Tynan T1-108-35. 32 Undated text message exhibited to the affidavit of the second respondent filed 13 March 2017. 33 Email sent from the second respondent to the appellant’s mother on 18 August 2016, p 115 of Exhibit C to the affidavit of the second respondent’s mother filed 7 April 2017. 34 Email exhibited to the affidavit of the second respondent filed 13 March 2017. -- 16 of 20 -- 17 or I shall take this further. You upset me because of your lies to cover for your son’s behaviour towards me”. [56] In finding there was a real risk of future domestic violence between the parties in the absence of an order, the Magistrate stated as follows:35 “I am not at all satisfied that and it is not believable that the emails passing from the paternal grandmother to the aggrieved so passed without negative input from the respondent. The respondent concedes that he has input into the messages but denies that his input is at all pejorative. The messages from time to time contain unnecessary comments critical of the aggrieved. He would have been wilfully blind to be unaware of their content… While the respondent may have complied with the Undertaking not to have direct contact with the aggrieved, his conduct with her has been indirect and through his mother. Thus there is no evidence of genuine remorse or rehabilitation on the part of the respondent. Indeed, his conduct since May 2016 and the conduct at the trial as it unfolded was a continuation of the respondent’s harassing and offensive conduct towards the aggrieved in another form and through agents.” [57] With respect, on the above analysis, the Magistrate’s findings and reasoning about the appellant’s knowledge of what was being sent by his mother to the second respondent is difficult to reconcile and in my view, her findings were not open on the evidence. [58] In my view, it is clearly open to infer that the reason the appellant’s mother continued sending the emails, despite the Family Court orders, was to comply with the Magistrates Court undertaking. The Magistrate seemed to have recognised that fact in her Reasons.36 Despite the second respondent’s evidence that the appellant’s mother was interfering and she wanted the emails to come directly from the appellant, the Magistrate concluded that the appellant was behind not just the information or requests, but also the inflammatory and derogatory tone and wording of the emails from his mother. [59] It is apparent that the second respondent was frustrated that she had to deal with the appellant’s mother, but it was not until the hearing of the matter on 11 April 2017 that the undertakings were withdrawn, and it was agreed that the Family Court orders covered the situation. In my view, there was a very limited basis on which there could be anything more than a mere suspicion that the appellant was behind the tone of the emails. Further, the consequence to the appellant of a finding that he was behind the emails required a high level of satisfaction before such a finding of fact. There was no suggestion in the reasons that the Magistrate gave any consideration to the Briginshaw standard.37 Conduct of the trial [60] In relation to the conduct of the trial, the Magistrate said:38 35 Reasons at 26-31. 36 Reasons at 15-5. 37 Briginshaw v Briginshaw (1938) 60 CLR 336. 38 Reasons at 19-1. -- 17 of 20 -- 18 “The aggrieved underwent one of the most gruelling cross- examinations that I have witnessed. She was not a good witness in the sense of being placid and agreeable and in reciting her lines. She did not present stereotypically as weak, passive and powerless. On the contrary, the aggrieved appeared frustrated and annoyed and at times argumentative.” [61] The Magistrate also observed:39 “Lawyers advise their clients. They may not run a case plan at odds with the client’s instructions. As Mr Selfridge was quick to remind me, counsel is required to act upon the instructions of his client. If he is unable to do so, he must withdraw. The conduct of this matter, then must be seen to be driven by the client’s instructions. The conduct of the matter, then is a far better representation of the real respondent than his reasonable persona in court. The major focus for two full days was on the contention that the aggrieved had trawled her contacts in QPS to initiate a false application for a domestic violence order. The cross-examination of her can only be seen to be an attack on the aggrieved in her professional capacity and upon her integrity as a person. It was prolonged and repetitive and unnecessary and unsuccessful, and ultimately abandoned.” [62] The Magistrate found that the overzealous, unsubstantiated attack on the aggrieved in her professional capacity throughout the conduct of the trial was a prolongation of bullying of her through harassment and intimidation. She characterised this conduct at trial as an act of domestic violence.40 The conduct of the trial in this way may be relevant to other matters (such as the issue of costs) but in my view the finding that the conduct of the trial was a continuation of the appellant’s “harassing and offensive conduct” is not consistent with the nature of the relationship between counsel and client. The conduct of a trial may not only be a product of instructions but also of advice. In my view, the conduct of this trial was largely a product of the style of the counsel who argued with the Magistrate on numerous occasions throughout the trial. [63] That counsel may take their own course and exercise their own discretion in how to tactically handle a matter was further illustrated by the appellant’s affidavit evidence that he accepted that the second respondent had attempted to withdraw the Temporary Protection Order, yet counsel continued to suggest to the second respondent that she had not done so. The Magistrate considered this a pointless, “provocative and unproductive” line of cross-examination.41 That may be correct. But it is not cross- examination that the appellant ought to be punished for. [64] In my view, characterising the fact that the appellant’s counsel robustly cross- examined the second respondent in exercising his curial rights as an act of domestic violence was an error. Other matters [65] In this case, there had been a seven-month delay between the conclusion of the hearing and the Magistrate’s decision. By that time, two years had passed since the 39 Reasons at 22-10. 40 Reasons at 24-34. 41 Reasons at 11-12. -- 18 of 20 -- 19 parties had cohabitated. At the time of delivering her Reasons, the Magistrate did not enquire as to nature of the relationship in the intervening seven months since the undertakings were discharged. The appellant’s solicitor tried to make submissions on this point at the time of the Reasons but this course was objected to by the police prosecutor. [66] In my view, the tension and frustration about the appellant’s mother’s role as a conduit between the appellant and the second respondent obviously inflamed the already acrimonious relationship in this case. Evidence about how things had transpired over a seven month period since this issue had resolved was clearly relevant to the question of whether a protection order was necessary and desirable under the Act and ought to have been received. Conclusion [67] Bearing in mind the principles espoused in House v The King,42 it follows in my view, on the above analysis, that the Magistrate: (a) considered extraneous or irrelevant matters in reaching her decision, in particular her reliance on the conduct of the trial by counsel on behalf of the appellant and the communication from the appellant’s mother, as further acts of domestic violence committed by the appellant; and (b) failed to take into account a relevant matter in determining whether the order was necessary or desirable some seven months after the hearing had finished. This was particularly relevant in this case given that the tension between the Magistrates Court undertakings and the Family Court order had been resolved in April 2017 and the appellant’s mother was no longer acting as a conduit. [68] Further, more careful analysis ought to have been given to the necessity of including the children in the Protection Order. Whilst the early allegations related to when the children were present, there was no suggestion that the children were privy to any such acts since November 2015. The prospect in the future of the children witnessing any domestic violence was very unlikely, given the second respondent and appellant no longer lived together. [69] In all the circumstances, in my view the making of the Protection Order was infected with error and ought to be set aside under s 169(1)(c) of the Act. [70] The appellant submits that upon the setting aside of this order I am in the position to determine the appeal based on the evidence in the proceeding below. [71] I accept there is some attraction to this approach. This case concerned parties who were legally represented and were able to successfully mediate and agree on orders in the Family Court which encompassed all the property and parenting issues between them and included an order that the appellant not commit acts of domestic violence. Given the nature and circumstances of the alleged acts of domestic violence in this case and that the second respondent, whilst legally represented, was content to do all she could and indeed tried to comply with the terms of the order to remove the Temporary Protection Order, and acknowledging that police prosecuting these matters have a difficult job to perform, it is not clear to me why there was an insistence on prosecuting this matter to trial. 42 (1936) 55 CLR 499 at 504-505. -- 19 of 20 -- 20 [72] But after careful deliberation, I have determined that in reaching the view the Protection Order ought to be set aside, it is not appropriate for me to substitute my decision based on the evidence below, for a number of reasons. First, there were numerous credit findings made by the Magistrate who was in a better position than me to observe the witnesses. Second, such a course would be inconsistent with my finding that the Magistrate ought to have received and considered the state of affairs since the hearing, in order to determine whether an order was necessary or desirable. [73] It follows, in my view that the matter should be remitted back to the Magistrates Court for further hearing. In doing so, as matters currently stand, without anything more, I urge that careful consideration be given to the utility of committing police and court resources to this matter. Order [74] I therefore order that: 1. The appeal is allowed; 2. The Magistrate’s order of 10 November 2017 is set aside; and 3. The matter is remitted back to the Magistrates Court for re-hearing. Costs [75] The starting point for determining the costs of an appeal under the Act is that costs follow the event unless the court orders otherwise.43 In my preliminary view, given the conduct of all of the parties to this proceeding, there are good reasons why there should be no orders as to costs. I will allow the parties the opportunity to provide short written submissions if an alternative order as to costs is sought. If the parties are able to agree on some other form of costs order, that should be forwarded to my Associate. I will allow the parties until 4.00pm Wednesday, 12 December 2018 to either provide submissions or an agreed order. [76] If neither of these things occur within the time allowed, the costs order foreshadowed above will be made. 43 BAK v Gallagher & Anor (No 2) [2018] QDC 132 at [5] – [24]. -- 20 of 20 --