BJH v CJH [2016] QDC 27

DISTRICT COURT OF QUEENSLAND CITATION: BJH v CJH [2016] QDC 27 PARTIES: BJH (appellant) v CJH (respondent) FILE NO/S: D68/2015 DIVISION: Appeal PROCEEDING: Appeal ORIGINATING COURT: District Court at Southport DELIVERED ON: 26 February 2016 DELIVERED AT: Southport HEARING DATE: 24 August 2015 JUDGE: Rackemann DCJ ORDER: The appeal is allowed CATCHWORDS: APPEAL – protection order – made under the Domestic and Family Violence Protection Act 2012 – where evidence justified a finding of domestic violence on a single evening, but the learned magistrate erred in findings about the extent of domestic violence established on the evidence – where the making of a protection order was not, in the circumstances, necessary or desirable COUNSEL: G Barr for the appellant E Gullo (solicitor) for the respondent SOLICITORS: Butler McDermott Lawyers for the appellant Public Safety Business Agency for the respondent -- 1 of 21 -- 2 The appeal [1] This appeal is against a decision, made in the Magistrates Court at Southport on 2 February 2015, to make a Protection Order against the appellant, pursuant to the Domestic and Family Violence Protection Act 2012 (“the Act”). That order required the appellant to be of good behaviour towards the aggrieved and her son. The basis for the order related to alleged domestic violence perpetrated by the appellant against the aggrieved on 14 September 2014. [2] This appeal is brought pursuant to s 164 of the Act. Under s 169, in deciding this appeal, the court can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court. The effect of s 168, is that the appeal proceeds by way of rehearing.1 It is appropriate that this court observe the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. This court should interfere with the order made below only where it is the result of some identified legal, factual or discretionary error.2 In so far as discretionary considerations are concerned, the appropriate approach is as stated in House v The King3. “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.” [3] The protection order was made pursuant to s 37(1) of the Act which provides as follows: “(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- 1 GKE v EUT [2014] QDC 248. 2 See Merrin v Commissioner of Police [2012] QCA 181 at para 10, citing the earlier observations made in Teelow v Commissioner of Police [2009] QCA 84 at paras 2-4. 3 (1936) 55 CLR 499 at 505. -- 2 of 21 -- 3 (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.” [4] The court must be satisfied of all 3 of the matters in sub-paragraphs (a), (b) and (c) before it may make a protection order. It is common ground that, at all relevant times, the appellant was the de facto partner of the aggrieved and so a relevant relationship existed for the purposes of s 37(1)(a).4 The appellant contended, however, that the learned magistrate had erred in finding that domestic violence had been committed against the aggrieved and in finding that it was necessary or desirable to make the order to protect the aggrieved from domestic violence. [5] The expression “domestic violence” is defined in s 8 of that which provides, in part, 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… abusive; or (b) is emotionally or psychologically abusive; or (c) … (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 welling or that of someone else. (2) Without limiting subsection (1), domestic violence includes the following behaviour- … (c) damaging a person’s property or threatening to do so; … (5) In this section- Coerce, a person, means compel or force a person to do, or refrain from doing, something. …” 4 See s 13. -- 3 of 21 -- 4 [6] The learned magistrate found that the appellant had committed domestic violence against the aggrieved in their home on the evening of 14 September 2014. The Police attended the premises on that evening. [7] In a proceeding under the Act, a court is not bound by the rules of evidence. In particular, s 145 provides: 145 Evidence (1) In a proceeding under this Act, a court— (a) is not bound by the rules of evidence, or any practices or procedures applying to courts of record; and (b) may inform itself in any way it considers appropriate. (2) If the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities. (3) To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order. [8] In determining what occurred on the relevant evening (and whether it amounted to domestic violence), the learned magistrate had the benefit of three versions of events, namely: (i) the version which the Police said the aggrieved gave on the night in question; (ii) the version which the aggrieved gave in a subsequent affidavit and in her testimony at the hearing; (iii) the version provided in the testimony of the appellant at the hearing. [9] There were levels of inconsistency among those versions. Leaving aside those matters of inconsistency however, the evidence demonstrated the following:  Those at home on the relevant evening were the appellant, the aggrieved and the aggrieved’s son (a young boy); -- 4 of 21 -- 5  The aggrieved and her son had been out in the afternoon and had returned in time for dinner;  The appellant had, in the meantime, been preparing a roast meal for all of them;  The roast had taken longer than expected and so the dinner was not ready to be served when the aggrieved and her son arrived home;  The aggrieved’s son was anxious to eat and eventually the aggrieved gave him a baked potato to tide him over until the dinner was ready;  The appellant became somewhat angered by the aggrieved’s son’s impatience for his meal, regarding this as a manifestation of selfishness and a lack of appreciation for what the appellant had done;  The consumption of the meal, when it was served, was not a leisurely and harmonious event, it lasted only a matter of minutes before the aggrieved and her son left the table and went upstairs;  The appellant subsequently went upstairs on a number of occasions. On one of those occasions he had a one-on-one discussion with the aggrieved’s son about another issue (namely, a difficulty in getting him to sleep in his own bedroom when he visited their house – he being the subject of a shared custody arrangement). The appellant also brought some more food upstairs. Further, the appellant unsuccessfully sought, on a number of occasions, to get the aggrieved to come downstairs so that they could discuss the issues about which the appellant was perplexed;  Having been initially unsuccessful in getting the aggrieved to come downstairs and discuss matters with him, the appellant decided to take the aggrieved’s mobile -- 5 of 21 -- 6 phone, on the basis that she would go wherever her mobile phone went. He seized the phone, which provoked the aggrieved to try to get it back. At some point the mobile phone was discarded onto the floor by the appellant, causing minor but irreparable damage to its cover, but no damage to the phone itself. Further, the back of the appellant’s hand came into contact with the aggrieved’s ear, causing relatively low level pain (described at 3 out of 10), but no injury, to the aggrieved and a small cut to the back of the appellant’s hand (as a consequence of it brushing the aggrieved’s earring);  Thereafter, the appellant and the aggrieved went downstairs and were heard to be arguing loudly with each other when the Police arrived;  When the Police arrived the aggrieved was observed to be upset and crying. The appellant was described as initially somewhat aggressive in challenging the Police officers as to their right to be in the home, but then behaved appropriately once the Police officers made clear who they were and why they were at the house;  Each of the appellant and the aggrieved had been drinking. The aggrieved described herself as drunk by the time the Police arrived. [10] In so far as whether the appellant had perpetrated domestic violence upon the aggrieved, the learned magistrate found as follows: “… I find that he wilfully damaged the aggrieved’s phone in the circumstances that were clearly domestic violence. He had been carrying on an argument all night with the aggrieved since 6.30pm. She had come upstairs to get away from him. On several occasions he tried to get her to go downstairs to continue the discussion with him. She refused. He came and took her phone, and he told the court, “where the phone goes, she goes” – clearly an attempt to force her downstairs. As he tried to get the phone back he gave evidence, and the aggrieved gave evidence, that he threw her phone onto the floor and the cover broke. He bought her a new one two days later. This is an act of domestic violence. As I -- 6 of 21 -- 7 have said, I do accept that he threw the mobile phone to the ground and broke the cover, since it is consistent evidence from all parties. I am further satisfied that the constant harassment of her that night was intimidating, causing her to retreat from him, and that this intimidation and harassment amounts to an act of domestic violence, when considered with the yelling and the banging of plates. I will deal with this issue more, later. I further find that he slapped her in a backhanded motion to the head… He hit her to the head, and that hit was on purpose.” [11] It was open to the learned magistrate to conclude that there was at least some domestic violence committed by the appellant against the aggrieved. The action of the appellant in seizing the aggrieved’s mobile telephone was behaviour which, in the circumstances, was coercive - being designed to compel the aggrieved to do something which she did not wish to do (ie come downstairs to discuss matters of concern to the appellant). Further, the appellant responded to the aggrieved’s attempt to get her telephone back by, amongst other things, throwing the phone onto the floor thereby damaging it. That the phone was discarded in a throwing motion had support in the evidence.5 [12] It should be noted that the phone was thrown onto a carpeted surface and that the relatively minor extent of damage is consistent with it not being thrown with great force. It is difficult however, to accept the submission, made on behalf of the appellant, that the appellant was merely acting so as to allow the aggrieved to retrieve her phone, once she objected to it being taken. It certainly was not apologetically handed back to her. It was open to the learned magistrate to conclude (as I would conclude) that the behaviour of the appellant in seizing the aggrieved’s mobile phone and in reacting to her attempts to retrieve it by throwing it on the floor, thereby causing some (albeit minor) damage, was part of the domestic violence perpetrated by the appellant. This was successful in that, following this incident, the aggrieved 5 See EG T1-47 L 37. -- 7 of 21 -- 8 came downstairs to have the argument which the appellant had been agitating for. In her testimony she said she did this to try to appease him.6 In the circumstances it was his conduct which compelled her to do so. [13] Beyond that, the version of events given in the aggrieved’s affidavit and testimony and in the appellant’s testimony did not support a finding of any further domestic violence. In finding to the contrary, the learned magistrate placed a deal of weight upon what the police observed and were told on the night in question. [14] It was submitted, on behalf of the appellant, that the magistrate erred in finding, on the balance of probabilities (but having regard to the Briginshaw standard) that the contact between the back of the appellant’s hand and the aggrieved’s ear constituted an intentional backhanded slap by the appellant. There were competing versions of how this contact came about and some difficulty in the way the learned magistrate dealt with the evidence. [15] The appellant, in his testimony, painted the contact as accidental. In particular, his testimony was that as the aggrieved lunged, in order to grab her phone back, as he was turning away from her:7 “… I spun – I didn’t purposely go to hit her or anything, I spun around and threw the phone down on the floor like that… and spun around and, as I spun – and I spun around to leave – to walk down the stairs and, as I spun around, because she was lunging at me, my left index finger caught the back of the earring, like, in her left ear and it was very sharp and it cut me just there.” [16] In the course of cross-examination he explained that at the point of impact, his hand was raised (as a result of him swinging around) but to a point no higher than his belly button.8 It has already been noted that, even on the night in question, the aggrieved 6 T1-43. 7 T1-60 8 T1-66 -- 8 of 21 -- 9 described the pain caused by the contact as relatively low (3 out of 10), which suggests that, the contact was not particularly forceful. [17] The evidence of the police officer, who took the aggrieved’s version of events on the night in question, was that she described the contact as a slap. The officer’s notebook records her as having said that the appellant “slapped me across my face with his left hand. It hit my ear. It caused me pain three out of ten.” Although that version contains no greater detail, it does not sit easily with the appellant’s description of accidental contact in the course of him swinging around. [18] In her oral testimony, the aggrieved said that the reference to the appellant slapping her was just a case of her adopting the terminology used by the police officer as they were working out what happened. That is however, inconsistent with the evidence of the officer, who was regarded, by the learned Magistrate, as credible and reliable. The learned Magistrate found that the aggrieved told the police the things which appeared in the notebook. [19] Insofar as the physical altercation is concerned, the aggrieved, in her affidavit, said that the appellant has never been physically violent towards her, that he did not slap her on the side of the face and that she did not consider the altercation to involve physical violence. [20] In her testimony at the hearing the aggrieved gave a demonstration of what happened. This court does not have the benefit of that demonstration. The aggrieved was questioned by the learned Magistrate about the altercation. The aggrieved said that she did not see the appellant deliberately trying to hit her. When the learned Magistrate said that the aggrieved’s demonstration seemed to be a “sort of back handed slap or hitting motion with his hand” the aggrieved responded that the -- 9 of 21 -- 10 appellant was “trying to push me away, from getting my phone”. When asked, in cross-examination, whether she had seen the appellant’s hand coming up to her face, the aggrieved said “I didn’t see it coming cause I was trying to get my phone”. She agreed that she was “just guessing as to how his hand came to hit her ear”,9 that the contact was not hard, was more of a brushing motion and resulted in no injury to her. [21] In finding that the appellant had intentionally delivered a back-handed slap to the aggrieved’s head, the learned Magistrate said as follows: “The version given by the respondent that her head was at the height of his belly button was not put to the aggrieved, and I find his version inherently improbable. She is not so short that her head would go to that level, even if trying to grab her phone back. On the night, she told police that he slapped her, and when giving evidence she accepted that at the time she thought that was what happened to her. The motion she demonstrated to the court was a back-handed slapping motion. She had attempted to resile somewhat from her statement, but, as I have said, the level of proof is to the balance of probabilities, and her evidence left me satisfied to the requisite standard that he hit her to the head, and that the hit was on purpose…” [22] This part of the reasoning starts with the observation that the version given by the appellant - that the aggrieved’s head was at the height of his belly button - was not put to the aggrieved. As was submitted on behalf of the appellant however, there was no need to do so, since the aggrieved’s testimony was not necessarily inconsistent, in this respect, with that which was to be given by the appellant. She had not said that she was upright when hit or otherwise claimed that contact was made when her head was higher than the appellant’s belly button. The appellant’s counsel was not obliged to put something to her in an endeavour to get further support for the version to be given by his client. The learned Magistrate erred in taking into account a failure specifically put to the aggrieved that her head was at belly-button height. No inference should have been drawn from that. 9 T1-49, L 15 -- 10 of 21 -- 11 [23] It was, as has already been noted, open to the learned Magistrate to accept that the aggrieved had, on the night in question, described the contact as a slap, but that should have been considered in light of the evidence of her condition when giving a version to the police (intoxicated and upset) and the fact that her description of events on the night in question, as recorded in the police notebook had, in at least one other respect, been demonstrated to be somewhat over dramatic. [24] The version of events, as recorded in the police notebook, included that the appellant “dragged” the aggrieved’s son into his bedroom and gave him a “lecture”. The evidence otherwise did not justify any suggestion of the appellant laying a hand upon the aggrieved’s son. The interviewing officer, in his testimony, volunteered that he had no doubt that there was not any physical contact between the two10 and the learned Magistrate said, in the course of argument, that she made no findings about that alleged behaviour towards the child.11 Further, since the discussion between the aggrieved’s son and the appellant took place in the absence of the aggrieved, there was no apparent basis for her to describe on the content of the discussion as a “lecture”. [25] It might be noted that the version of events recorded in the police notebook also stated that the appellant “slammed” the aggrieved’s phone onto the ground causing the case to break, but did not acknowledge that the extent of damage was very minor. Further, it had the appellant throwing the dinner plates when, for the reasons discussed later, it appears that he just put them down harder and more loudly than usual. [26] The learned Magistrate, was, of course, entitled to take into account the demonstration which the aggrieved gave during her testimony, but should have considered that in 10 T1-21,22 11 Pg 9 of reasons -- 11 of 21 -- 12 light of the aggrieved’s evidence as a whole, including her responses when the learned Magistrate questioned her about that. The aggrieved’s version of events, in relation to the alleged slapping, should also have been viewed in the context of her admission that she did not see the appellant’s hand in the motion she demonstrated before it connected with her ear and that she was only guessing as to how his hand came to hit her ear.12 [27] The learned Magistrate acknowledged that the aggrieved had “attempted to resile somewhat” from what she had said to the investigating officer on the night (which the aggrieved explained by reference to her condition when giving that version on the night), but nevertheless made the adverse finding against the appellant notwithstanding that there was no suggestion that the aggrieved was intentionally tailoring her evidence to suit the appellant. It should be noted, in this context, that the Magistrate erroneously stated that the aggrieved’s affidavit was taken by the appellant’s solicitors, when it was not. [28] In rejecting the appellant’s version of events, the learned Magistrate described that version as “inherently improbable”, on the basis that the aggrieved was not so short that her head would go to the level of the appellant’s belly button even if she was trying to grab her phone back. That seems to assume that the aggrieved was in an upright position when she grabbed for the phone. Indeed, in the course of argument, the learned Magistrate said, “… he seems to indicate it was accidental contact, but if she is standing up, as I understood her evidence to be, it’s difficult to see how it could be accidental in those circumstances”.13 That is difficult to justify in light of the aggrieved’s acceptance, in cross-examination, that she had “lunged” towards the 12 T1-49 13 T1-75. -- 12 of 21 -- 13 appellant who was then holding the phone in his right hand and twisting away from her.14 The position of her head, relative to the appellant, when she reached for the phone was obviously dependant on how far down she got as a result of the lunge, which indeed is what the appellant pointed out in re-examination.15 [29] In the circumstances, the learned Magistrate’s finding of an intentional back-handed slap was infected by error. There may have been some reason for suspicion about the appellant’s version of events but it is difficult to justify, on the state of the evidence, an adverse finding against the appellant having regard to the seriousness of the allegation and the proper application of the civil standard on the Briginshaw basis. [30] There was also material error in the learned Magistrate’s finding about the scope of the domestic violence otherwise and, in particular, in finding that the appellant perpetrated domestic violence by harassment and intimidation throughout the night. In that regard the learned magistrate said: “I am further satisfied that the constant harassment of her that night was intimidating, causing her to retreat from him, and that this intimidation and harassment amounts to an act of domestic violence, when considered with the yelling and the banging of plates. I will deal with this issue more, later.” [31] That paragraph suggests that the learned magistrate considered the appellant’s behaviour, over the course of the evening, to fall within s 8(1)(b) of the Act, as being emotionally or psychologically abusive. Section 2 of the Act defines emotional or psychological abuse as behaviour which, amongst other things, intimidates or harasses. What may constitute harassment or intimidation has been considered by the court in GKE v EUT16 where McGill SC DCJ observed that intimidation refers to a process where the person is made fearful or overawed, particularly with a view to 14 T1-47 15 T1-70. 16 2014 QDC 248. -- 13 of 21 -- 14 influencing that person’s conduct or behaviour. His Honour also observed that there must be an element of persistence (rather than a single incident) before conduct could properly be said to harass. [32] The so-called constant harassment amounting to intimidation, as found by the learned Magistrate, is that which was said to have caused the aggrieved to “retreat” from the appellant. Specific mention was made of, amongst other things, the banging of plates. This indicates that the learned Magistrate characterised the domestic violence as including what occurred when the meal was served, prior to the aggrieved and her son going upstairs. That requires an examination of the evidence of what occurred during that period. [33] Characteristically, the most dramatic version is that recorded in the police notebook. On that version the aggrieved and her son arrived home at 6.30pm. The “plate” incident is said to have occurred at about 8.00pm when, according to the version recorded in the police notebook, the appellant is said to have got three plates out of the cupboard and then “threw them onto the bench” causing the aggrieved to enquire “what’s up”. [34] The evidence otherwise suggests that the description of the plates as being “thrown” was overly dramatic. There was no suggestion of the plates being broken or damaged or of food being spilt. The testimony of both the appellant and of the aggrieved was that the plates were simply placed on the solid benchtop with more force (causing more noise) than usual, reflecting the appellant’s annoyance and causing the aggrieved to enquire about that annoyance. I note that the learned Magistrate did not adopt the description of the plates being “thrown” and instead found that the plates were ‘placed’ down loudly enough to indicate that the appellant was angry, causing the aggrieved to ask why. Whilst the appellant’s conduct in this regard may have been -- 14 of 21 -- 15 petulant, there was no proper basis to conclude that the “banging” of the plates in this way was intimidating. [35] From there, the dinner was, on all accounts, a quick affair. The learned Magistrate found that the aggrieved and her son went upstairs within four minutes The evidence did not justify a conclusion of persistent conduct amounting to harassment, far less harassment to the point of intimidation, in the period preceding the appellant and her son going upstairs. [36] There was evidence that, in the meantime, there were cross words, particularly from the appellant.17 There was at least some evidence (in the police notebook) that yelling was involved, but the evidence did not justify a finding that the aggrieved was intimidated at that stage or that her “retreat” upstairs was a result of harassment or intimidation. Her evidence was that she went upstairs because the appellant was upset. To choose to remove oneself from an agitated partner does not necessarily mean that you have been harassed or intimidated. There was no evidence that the aggrieved decided to go upstairs out of fear. [37] At no time in her interview with the police, her affidavit or subsequent testimony did the aggrieved say that she was fearful. The learned Magistrate nevertheless found that the aggrieved was fearful, at least at some point. That is discussed later, but even the matters relied upon by the learned Magistrate could not justify any finding that the aggrieved was intimidated prior to her “retreating” upstairs or that her “retreat” was the result of intimidation or fear. [38] It is also difficult to conclude that what occurred from the time the aggrieved and her son went upstairs to when the altercation involving the phone occurred, as involving 17 T1-38. -- 15 of 21 -- 16 harassment and intimidation of the aggrieved. The appellant’s actions in bringing food upstairs could not be that. Similarly, coming upstairs to speak privately with the aggrieved’s son could not be that (noting there was no basis to support any contention of physical contact between the two, and noting too that the son emerged from that discussion saying everything would be ok and the aggrieved described her son as not upset at that point).18 [39] The learned Magistrate appears to have relied upon the appellant’s continuing attempts to persuade the aggrieved to come downstairs to talk about the issues which were upsetting him. It is plain that the appellant was, for some time, seeking to persuade his partner to do so, but that does not, of itself, amount to domestic violence. [40] At some point in the evening when the aggrieved was upstairs and on her phone and prior to the police arriving, the aggrieved contacted another of her children. It appears that this led to the police being contacted and their subsequent attendance at the house. The version in the police notebook records the aggrieved as having made that contact to seek help. The aggrieved’s testimony was that she simply, in a text to her son, said the appellant had been yelling and was upset.19 The text message was not in evidence, there was no evidence from the son to whom it had been sent and the learned magistrate did not place any specific reliance on the communication in finding that the aggrieved was in fear or intimidated. [41] Whilst the appellant’s approaches may have been unwelcome and there was some evidence of him saying some inappropriate things (although that was not the subject of express findings by the learned Magistrate) and yelling, the evidence did not 18 T1-38, 1-50. 19 T1-38, 1-50. -- 16 of 21 -- 17 establish that the aggrieved was fearful or intimidated to that point. The aggrieved rebuffed the approaches until such time as the altercation occurred. [42] There was domestic violence involved in the altercation over the aggrieved’s telephone and the aggrieved subsequently decided to appease the appellant20 by coming downstairs to have the discussion/argument for which the appellant had been spoiling. What followed was, on the evidence, a loud argument in which both the appellant and the aggrieved participated. The police officer who attended heard yelling by both in the course of a continuous exchange, but heard no screaming or cries for help and, as has been noted, the aggrieved did not, at any stage, say that she was in fear and, indeed, in her evidence she denied that she was. [43] Despite the aggrieved’s denials, the learned Magistrate found that the aggrieved was in fear, in that regard the learned Magistrate said: “The police formed the view that she was fearful to the extent that Constable Hawkey went to some measures to try to obtain an affidavit from her. So that – I mean – is the response to the behaviour which I consider to be relevant and admissible, which was that she was shaking and clearly in fear when the police arrived. She told the Court that she was glad – that she was not unhappy that the police had arrived, because she was seeking a stop to the behaviour, as it had been continuing since 6.30 that night.” [44] It would be wrong to place any significant weight on the officer’s interpretation of what he saw, rather than on what he observed. Similarly, the fact that the officer tried to get an affidavit from the aggrieved is neither here nor there in establishing whether the aggrieved was in fear. [45] The aggrieved was observed to be upset and crying when the police arrived, but that is not an unequivocal sign of fear. She was intoxicated and had just been in a loud argument with her partner over her son. Her testimony was that she was crying 20 T1-43. -- 17 of 21 -- 18 because she was upset and wanted the appellant to stop lecturing her. That is a perfectly reasonable and understandable response which does no credit to the appellant, but it does not establish that the aggrieved was in fear of the appellant. [46] Similarly, whilst, as the learned Magistrate observed, the aggrieved was not unhappy to see the police arrive, so as to put a stop to the appellant’s behaviour, it does not follow that the unwelcomed behaviour was domestic violence or that the aggrieved was in fear of the appellant. Whilst there may have been grounds for suspicion about those matters, the state of the evidence did not justify finding that the aggrieved had been harassed, intimidated and was in fear. [47] For those reasons, whilst there was domestic violence involved in what I have referred to as the altercation over the mobile phone, the learned Magistrate erred in finding more extensive domestic violence on the night in question. The nature and extent of the domestic violence was a relevant consideration in assessing whether it was necessary or desirable to make a protection order. The learned Magistrate’s error in relation to the nature and extent of the domestic violence infected her finding in relation to whether an order should be made. So much is apparent from the learned Magistrate’s reference not just to the mobile phone incident but also to the so-called slapping and intimidation in the course of her consideration as to whether an order was necessary or desirable. This call for this Court to re-consider that question on the basis of the evidence which was before the learned Magistrate. [48] In GKE v EUT (supra) McGill SC DCJ observed in relation to s 37(1)(c) of the Act as follows: “[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 -- 18 of 21 -- 19 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 to 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. Broadly speaking I agree with what the Magistrate said in the passage beginning ‘fourthly’ of his reasons, although 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.’ 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.” [49] It is relevant to take into account, as the learned Magistrate did, that there had obviously been some disagreement, over a period of time, in relation to the child, that the two were in an on-going relationship which would also involve a continued relationship with the child and that there was, consequently, at least some potential for there to be some argument about the child in the future. In assessing the risk of this on-going relationship might be productive of domestic violence however, it needed to be borne in mind, that: (i) There was no demonstrated history (prior to the night in question) of domestic violence in the relationship, whether involving the child or otherwise. The police officer, in his testimony at the hearing, said that the aggrieved’s other son had claimed to have received text messages (from the -- 19 of 21 -- 20 aggrieved) on other prior occasions, but those text messages were not in evidence, no statement was later obtained from or evidence given by, that son and the learned Magistrate appears (rightly) to have placed no reliance on that; (ii) The event on the night in question, was a single incident involving domestic violence which, whilst in no way acceptable, was not at the most serious end of the scale of such conduct; (iii) The aggrieved, whilst not unhappy to see the police arrive and whilst having agreed to an application being made by the police, gave evidence that she was not fearful of the appellant and did not believe that she needed protection from him; (iv) The appellant and the aggrieved had, by the time of the hearing before the learned Magistrate, continued their relationship for a further period of almost five months without suggestion of further incident. On the evidence they had, during that time, maintained their relationship with the child and indeed had taken a holiday together in Tasmania. [50] In the circumstances, the risk was not such, in my view, as to conclude that the making of a protection order was necessary or desirable on the facts as established at the time of the hearing before the learned Magistrate in February 2015. [51] It should be noted that an appeal does not act as a stay of a protection order (s 166 of the Act). The protection order, on its face, was for 12 months (although the transcript suggested that a 2 year period was to be imposed in relation to good behaviour towards the aggrieved). This appeal was not heard until August 2015 and there was -- 20 of 21 -- 21 a regrettable delay in preparing this judgment.21 Accordingly a year has passed since the order was made and the incident, which occurred in September 2014, is now somewhat historical. [52] The appeal is allowed. The protection order is set aside and the application for a protection order is dismissed. 21 From September 2015 I had an extended period of leave including an extended period of special leave due to a medical incident. -- 21 of 21 --