CES v JAT [2017] QDC 315

DISTRICT COURT OF QUEENSLAND CITATION: CES v JAT [2017] QDC 315 PARTIES: CES (appellant) v JAT (respondent) FILE NO/S: 3665/17 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Wynnum DELIVERED ON: 20 December 2017 DELIVERED AT: Brisbane HEARING DATE: 27 November 2017 JUDGE: Richards DCJ ORDER: Appeal allowed. Order set aside. CATCHWORDS: MAGISTRATES – ORDERS AND CONVICTIONS – ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY – where a previous protection order is in place – whether there is evidence of circumstances which would be open to a finding of prospective domestic violence Domestic and Family Violence Protection Act 2012, ss 4, 8, 11, 14, 37 MDE v MLG [2015] QDC 151 COUNSEL: Mr JP Benjamin for the Appellant Mr JA Fraser for the Respondent SOLICITORS: Holding Redlich for the Appellant Fuller & Watts for the Respondent [1] This is an appeal against a protection order made by Magistrate Sara in the Wynnum Magistrates Court on 1 September 2017. -- 1 of 8 -- 2 [2] It is accepted that between July 2016 and 6 February 2017 the appellant and respondent were in an intimate personal relationship within the meaning of s 14 of the Domestic and Family Violence Protection Act 2012. There was a previous protection order in place naming the appellant as the aggrieved taken out by police on 15 January 2017. On 27 April 2017 the appellant complained to the police that as a result of texts being sent to her the respondent was in breach of that domestic violence order. On 28 April 2017 the respondent filed an application in the Cleveland Magistrates Court seeking a protection order against the appellant. That order was granted on 1 September 2017 to remain in force until 11 January 2018, the same date that the previous domestic violence order was due to expire. It was a period of four months and 11 days. [3] At the beginning of the hearing the magistrate indicated that he would focus his attention on the applicant’s allegations arising after the end of the relationship. There were allegations of domestic violence during the relationship, however it was agreed that it was appropriate to proceed on that basis. The evidence was given by affidavit with cross-examination. In arriving at his decision the magistrate focussed on the behaviour that was independently established or agreed to between the parties. Therefore, while there were other allegations of other acts of domestic violence, the magistrate in his decision did not rely on or refer to those allegations. [4] The magistrate in ruling in favour of the respondent did not make any findings in relation to the credibility of the witnesses, relying instead on the agreed facts in reaching his decision. This can be seen in his decision: “… it just seems to me when I looked at the demeanour of the witnesses as they presented their evidence to the court, they were very immature. And it seems to me to a large extent the behaviour is probably more attributed to two immature adults trying to resolve very difficult complex emotional connections.”1 [5] The magistrate relied on the following incidents in deciding that a domestic violence order was appropriate: (a) text messages and phone calls between the parties; (b) an occasion on 14 March 2017 when the appellant left a letter under the respondent’s car windscreen; (c) an occasion on 6 April 2017 when he woke in the night and the appellant was in his apartment; 1 Transcript of Decision, page 3, line 30-34. -- 2 of 8 -- 3 (d) an occasion on 15 April 2017 when the appellant attended his workplace with two males. [6] There was a further incident alleged on 3 June 2017 when he alleged he noticed the appellant’s car outside his work as he was leaving. However, this incident is not mentioned in the magistrate’s decision and it was accepted by the respondent that he did not know the type of car that the appellant was driving by that date and that he only thought it was her because it had green P-plates. He did not actually see the appellant at his place of work on this particular day. [7] The domestic violence provisions are widely drawn. Section 37 of the Act sets out the matters a court must consider when determining an application for a protection order. It provides: “37 When court may make protection order (1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that— (a) a relevant relationship exists between the aggrieved and the respondent; and (b) the respondent has committed domestic violence against the aggrieved; and (c) the protection order is necessary or desirable to protect the aggrieved from domestic violence. (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 of 8 -- 4 The principles of the Act are: “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. (2) Subject to subsection (1), this Act is also to be administered under the following principles— (a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised; (b) to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act; (c) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change; (d) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics; (e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified; (f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.”2 [8] Domestic violence is defined 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 2 Domestic and Family Violence Protection Act 2012 (Qld) s 4. -- 4 of 8 -- 5 (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.”3 [9] In this case there is no allegation of physical or sexual abuse post break-up and no allegations of economic abuse or threats or coercion. The only basis on which domestic violence is alleged is emotional or psychological abuse. Emotional or psychological abuse is defined as: “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 with 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.”4 [10] The appeal is brought on three grounds: (i) Ground 1 the learned magistrate erred in finding that the appellant had committed domestic violence against the respondent. (ii) Ground 2 the learned magistrate erred in finding that the making of a protection order was necessary or desirable to protect the aggrieved from domestic violence and 3 Domestic and Family Violence Protection Act 2012 (Qld) s 8. 4 Ibid s 11. -- 5 of 8 -- 6 (iii) Ground 3 the learned magistrate took into account an irrelevant matter in determining that the making of a protection order would serve to bring balance to the situation between the appellant and the respondent. [11] A review of the evidence led by the respondent indicates that there were significant discrepancies in his evidence; some of which were teased out in cross-examination and some of which were apparent from the affidavits. Despite filing an affidavit from RC about an incident occurring on 4 February 2017 he did not mention anything happening on that date between himself and the appellant. In relation to the text messages and phone calls the respondent talks of ignoring text messages and calls from the appellant which then caused her to visit his apartment. He annexed phone calls to his affidavit.5 An analysis of those phone records show, however, that the respondent was also calling the appellant at this time and the text messages show a total of six messages over a period of a week following her request to him (in a letter which she placed on the windscreen of his car) to meet her at Cleveland to revive their ailing relationship. When confronted about the phone calls that he had made to the appellant the respondent indicated that it was his friend, RC, not he who had made the calls. Interestingly, when RC gave evidence she did not mention at any stage that she had been the author of such calls. There was no attempt to recall her to support that suggestion. Additionally, although the respondent annexed text messages from around that time from the appellant but no text messages from him. In cross examination he admitted sending a series of abusive and threatening texts to the appellant including one on 10 March and a number in April 2017. [12] The magistrate found that the accumulation of the messages, the letter, the trip to the apartment and the visit to the work amounted to domestic violence. Although the basis was not clear, presumably it was held to amount to emotional abuse on the grounds of harassment of the appellant or offensive behaviour. It is difficult to see how this could be established. The text messages were mutual. The appellant’s text messages were not abusive. The respondent’s text messages were extremely abusive and threatening and sent whilst a domestic violence order was in place against him. The letter left by the appellant was clearly nothing beyond a foolish attempt at reconciliation and the visit to the apartment was, on the appellant’s evidence, because his landlord had told her she was concerned that the respondent had committed 5 Exhibit JAT2 of Affidavit of JAT. -- 6 of 8 -- 7 suicide. There was no evidence called to the contrary in this regard and given that the magistrate did not make any findings adverse to her credit, it is difficult to see how the magistrate could have acted on that incident as evidence of domestic violence. [13] The attendance of the appellant with friends at the respondent’s workplace could, on a broad examination, have been designed to be intimidating however the actions of the appellant and her companions would suggest otherwise given that there was no conversation and no attempts to harass him or co-workers whilst at the workplace. The respondent’s reaction to the visit was to act in an emotionally abusive way himself by forwarding intimate pictures of the appellant to the appellant’s friend causing her enormous embarrassment. These actions by the respondent suggest that he did not feel intimidated by her and her friend’s actions at all. [14] Finally, a finding that the domestic violence order was necessary or desirable to protect the aggrieved from domestic violence requires some evidence or findings that domestic violence may occur in the future. I adopt the propositions of Morzone QC DCJ in MDE v MLG & Queensland Police Service [2015] QDC 151 at [55], namely that there needs to be evidence of circumstances which would be open to a finding of prospective domestic violence. In this case the appellant has had no continuing contact with the respondent, she has undergone 10 counselling sessions to work through her despair at the collapse of the relationship and they are no longer in contact and no longer together. In those circumstances it is difficult to see why the domestic violence order was necessary. If there were genuine concerns about future domestic violence being committed then it is unlikely that an order that ran for less than 6 months would have been appropriate. The fact that the order was made for such a short time indicates that the magistrate did not hold concerns for future domestic violence by the appellant. His comments that he needed to maintain a balance between the two parties is, in my view, indicative of an error in his reasoning. The Act is not there to maintain balance but rather to protect those in need from future domestic violence. [15] A review of the evidence before the court demonstrates that although the appellant was clearly distraught about the collapse of the relationship, she was not aggressive towards the respondent nor was she emotionally abusive. The respondent was not the -- 7 of 8 -- 8 victim of domestic violence at her hands and no order should have been made in his favour. [16] In my view the appeal should be allowed, the order set aside and the application dismissed. -- 8 of 8 --