Wong on Civil Liability

Domestic Violence / Abuse in Australia (esp. Queensland)

Tortious liability, and private DV applications, and others. 

Work-in-progress, 12 January 2025


[DV1] Domestic Violence Torts: see eg, 

Literature

> See also, Anni Gethin, 'Editorial: Can we Begin to End the War against Women?' (2019) 28(3) Human Rights Defender 4 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/hurighdef28&div=36&id=&page=>; full issue text at <https://issuu.com/humanrightsdefender/docs/unswa013_human_rights_defender_publication_vol28_i>. 

> See also, 'About us and fees' (Webpaage, Brigid Justice) <https://www.brigidjustice.org.au/about>, archived at <https://archive.is/4mZt6>.  

> See also, 'Legal services' (Webpage, Brigid Justice) <https://www.brigidjustice.org.au/legal-services>, archived at <https://archive.md/hj8up>.  

Assault


Intentional Infliction of Emotional Distress

  -->  Giller v Procopet majority refused to decided if this action on the case was available in Australia, but Maxwell P in dissent: "[20]  With respect, what their Honours said in Nationwide News serves to highlight the difficulties which attend the present formulation of the Wilkinson tort by reference to an intention to cause “a psychiatrically cognizable injury to mental health”. First, rarely if ever could the intent of a defendant be so characterised. Hardly anyone would know how to recognise such an injury, let alone how to bring it about intentionally. Second, while it should be possible to demonstrate that mental harm was a reasonably foreseeable result of the intentional conduct, it would seem inordinately difficult for a plaintiff to have to establish that “a psychiatrically cognizable injury” was foreseeable. ... [28]  In Bunyan,47 decided in 1937, the plaintiff’s “injury” was described as neurasthenia. According to a 2007 definition, “neurasthenia” is: … a set of psychological and physical symptoms, including fatigue, irritability, headache, dizziness, anxiety and intolerance of noise. It can be caused by organic damage, such as a head injury, or it can be due to neurosis.48 This list of symptoms suggests that the diagnostic label “neurasthenia” could have been applied to a wide variety of conditions, ranging from the quite mild to the quite severe. Yet Dixon J in Bunyan had no doubt that a person suffering from neurasthenia had sustained sufficient injury to claim under the Wilkinson tort." -- see also, below.

-> cf Dickens v NSW [2017] NSWSC 1173, at [40] et seq: "Elements of the tort recognised in Wilkinson v Downton ...[31]  For the purpose of determining the defendants’ notices of motion it is not necessary that the Court should examine rigorously or exhaustively authorities regarding the tort of intentional infliction of harm, upon which the plaintiff solely relies. A short summary of the elements of the tort, without definitive analysis of precise limits where there is uncertainty in the cases, will suffice. ... [32]  In Wilkinson v Downton the defendant had falsely told the plaintiff that her husband was seriously injured and lying in hospital. This caused her “violent shock” with serious permanent physical and psychiatric consequences. Wright J said at pp 58–59: The defendant has, as I assume for the moment, willfully done an act calculated to cause physical harm to the plaintiff — that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant. It remains to consider whether the assumptions involved in the proposition are made out. One question is whether the defendants act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. [33]  Separated into point form the elements appear to be: (i)a wilful (or deliberate) act by the defendant; (ii)the act is calculated to cause physical harm to the plaintiff (meaning — having regard to the usage of the word “calculated” in the second paragraph of the above extract — an act of a nature which inherently would likely cause physical harm); (iii)physical harm is in fact caused to the plaintiff by the defendant’s act; (iv)there was no lawful justification for the defendant’s act and (v)the harm suffered is not too remote.… The other question is whether the effect was, to use the ordinary phrase, too remote to be in law regarded as a consequence for which the defendant is answerable. [34]  The second paragraph of the passage quoted at [32] from Wilkinson v Downton appears to require that the defendant’s act must be so clearly “calculated” to cause harm (in the sense referred to in element (ii) at [33]) that the court may impute to the defendant an intention to cause it. In Magill v Magill (2006) 226 CLR551; [2006] HCA 51 at [117] Gummow, Kirby and Crennan JJ understood Wright J’s judgment in this sense, thus not requiring that the plaintiff prove a subjective intent on the part of the defendant to cause harm. See alsoWainwright v Home Office [2004] 2 AC 406 per Lord Hoffman at 424 andGiller v Procopets (2008) 24 VR1; [2008] VSCA 236 per Maxwell P at [32].[39]  On current authority a plaintiff invoking the tort would have to be able to prove that he or she suffered a recognised psychiatric illness, not merely distress, sadness, fright or other emotional disturbance: Tame v New South Wales (2002) 211 CLR317; [2002] HCA 35. In Giller v Procopets Maxwell P held that the Wilkinson v Downton tort should be developed in the common law to permit recovery for emotional distress falling short of psychiatric illness in cases where the defendant subjectively intended to inflict such harm. This was a minority point of view. Ashley JA at [161]–[166] held that existing Australian authority precluded recovery for mental distress as distinct from psychiatric injury. Neave JA at [471] concluded that “no Australian decision positively precludes the expansion of the tort of intentional infliction of harm to cover cases in which the plaintiff suffered distress, humiliation or other forms of emotional discomfort” but was not prepared to have the court expand the common law in this respect as part of its decision in the appeal before it. ... [40]  In Clavel v Savage [2013] NSWSC 775 Rothman J reviewed most of the cases in which Australian courts have consideredWilkinson v Downton and derived, at [36], a list of six elements. These are different in significant respects from the five which I have derived from the judgment of Wright J as set out at [33] above. With respect to Rothman J, I have not been able to satisfy myself that the subsequent cases have authoritatively confirmed the existence of the tort in these altered terms. I consider there to have been one reasonably clear development, concerning elements (ii) and (iii). Namely that, following the High Court’s decision in Tame v New South Wales the “physical harm” which the defendant’s actions must have been calculated to cause and which must have been in fact caused is limited to a cognizable psychiatric illness and will not be satisfied by mere distress, sorrow, humiliation or the like. In this I respectfully agree with the conclusion of Ashley JA in Giller v Procopetsthat recovery for mere mental distress is precluded in relation to this as well as other torts."

> Neave JA, obiter: "[471]  I agree with Maxwell P that no Australian decision positively precludes the expansion of the tort of intentional infliction of harm to cover cases in which the plaintiff suffered distress, humiliation or other forms of emotional discomfort, rather than physical or psychiatric injury. In this case, however, I have held that Ms Giller is entitled to recover damages for breach of confidence. In my opinion, it is therefore unnecessary to decide whether the tort of intentional infliction of harm should be expanded to cover mental distress. [472]  However, if this court were to hold that damages can be awarded for intentionally caused mental distress, the approach discussed by Lord Hoffman has some advantages. It would permit recovery for mental distress, while abandoning the legal fiction of imputed intention which provided the basis for recovery of damages in cases such as Wilkinson. The requirement to prove an actual (rather than imputed) intention to cause harm in the sense described by Lord Hoffman, would confine the scope of the tort and go some way towards meeting concerns that its expansion could lead to a flood of litigation.499 [473]  Although there are arguments in favour of such an expansion, there are also some contra-indications. It must be conceded that the law of torts operates inconsistently by providing compensation for intentional infliction of purely mental distress in torts such as defamation and false imprisonment, but not in the case of the tort of intentionally causing harm. However the expansion of the Wilkinson principle to cover mental distress would also create inconsistencies. Over the past decade, legislatures across Australia have imposed limits on the availability and amount of damages recoverable in negligence for physical injury. It would seem anomalous to expand the possibility of recovering damages for hurt feelings, even when intentionally caused, at a time when recovery of damages for non-economic loss arising out of physical injury has become increasingly limited.500 [474]  An expanded tort could potentially apply to a very broad range of situations, including harassment based on race, gender and sexual orientation, bullying, practical jokes, unkindness in family and social relationships and the insensitive management of medical patients, employees,501 and consumers. As Lord Hoffman commented in Wainwright (at [46] ): [46] [i]n institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation … The requirement of a course of conduct [in the Protection From Harassment Act 1997] shows that Parliament was conscious that it might not be (2008) 79 IPR 489 at 601 in the public interest to allow the law to be set in motion for one boorish incident. It may be that any development of the common law should show similar caution.502 [475]  A person who has suffered mental distress as the result of a defendant’s intentional acts may recover compensation under some other legally recognisable claim, as can Ms Giller. In other situations, domestic violence and anti-stalking laws may provide more effective remedies to victims than the payment of compensation after the event. Some acts done, or words spoken, with the intention of causing mental distress are regulated by anti-discrimination laws and statutory complaints schemes, which may or may not provide compensation. Where there is no statutory compensation for victims of such behaviour, I am not convinced that the common law should fill the gap. [476]  A court which has the task of deciding an individual case is poorly equipped to consider the balance which should be struck between providing compensation for intentionally caused mental distress and recognising that the exigencies of life result in some people intentionally causing mental distress to others from time to time. If the intentional infliction of mental distress is to be recognised as a tort, the legislature is in a better position to determine how that balance should be struck. [477]  As Lord Hoffman noted in Wainwright,503 the Protection from Harassment Act 1997 (UK) prevents recovery of damages for single incidents of harassment.504 In the United States, The Restatement of the Law (Second) Torts 2d describes the tort of “intentional infliction of emotional distress” as requiring the intentional or reckless causing of severe emotional distress by “extreme and outrageous conduct”.505 Both these limitations may operate as sensible controls on the availability of damages. As I have said, these are matters which should be considered by the legislature. [478]  I would therefore dismiss Ms Giller’s appeal against the learned judge’s failure to award her damages for intentional infliction of emotional distress."

> the majority in Giller v Procopets did not decide on whether intentional mental distress was actionable as an intentional tort. Maxwell P, in dissent, held it could. 

-> Bunyan, cited within (Dixon J): "... [12]  In Bunyan,16 the plaintiff had suffered neurasthenia17 as a result of having seen the defendant produce a revolver and then having heard him say he was going to shoot someone. The High Court accepted the law as stated in Wilkinson and Janvier,18 but held that the plaintiff’s claim must fail because the defendant’s statement had not been made to her or in her presence. Moreover, in the view of Latham CJ, the defendant’s conduct could not “be said to be calculated or likely to cause harm to any person”.19 [13]  In the view of Dixon J, it was open to the jury to find that the defendant’s actions: threw the plaintiff into a sufficiently emotional condition to lead to a neurasthenic breakdown amounting to an illness. I have no doubt that such an illness without more is a form of harm or damage sufficient for the purpose of any action on the case in which damage is the gist of the action …20 His Honour considered, however, that it was an essential element of any such cause of action that there have been a reasonable likelihood that harm of some such nature as that claimed by the plaintiff would result from the act done.".

> Houda v NSW (2005) Aus Tort Reps 81-816: According to Cooper AJ in Houda v New South Wales,59 personal injury damages are limited to damages for bodily injury.60 He said: It needs to be borne in mind that the purpose of the Civil Liability Act was to restrict the damages which courts could award. If the legislation was intended to restrict the damages which flow from the torts pleaded in this case, then the legislature could have expressly said so. It could have included within the definition of ‘injury’ such matters as injury to reputation, injury to feelings for indignity, humiliation and disgrace. It has not done so.61 His Honour considered that the heads of damage claimed in Houda were not personal injury damages, as they did not arise ‘out of any injury to the body of the person affected’, but rather they arose ‘out of the injury to a person’s reputation and the emotional upset, anxiety and distress caused by the commission of the particular torts’, and the ‘injury to the plaintiff’s civil rights’.62

--- see also, discussion in Tina Cockburn and Bill Madden, 'Intentional torts to the person, compensation for injury and the Civil Liability Acts — Recent cases and contemporary issues' (2007) 18 Insurance LJ 1 (Lexis).

> Tort of Intentionally causing Harm by Words (IHW): GKE v Gunning [2023] EWHC 332 (KB): "189. The Claimant also seeks a separate award (of £20,000) for aggravated damages for the tort of IHW, over and above compensatory damages for personal injury which the Claimant claims at £30,000. 190. In opening the Claimant relied upon the old rule in Wilkinson v Downton [1897] 2 QB 57 and upon Wainright v Home Office [2003] UKHL 53, to submit that the IHW tort is completed on proof of intention to cause harm or recklessness about whether harm would result from the Defendant’s actions. 191. Wilkinson was a novel decision. The facts were that a female, married publican suffered a recognised psychiatric disorder as a result of a “joke” played upon her by a customer. He told her that her husband had suffered a serious accident and was lying in the road bleeding with two broken legs. He did not mean to harm her but he did. She had no pre-existing psychiatric vulnerability. Wright J ruled as follows: “The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff—that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.” 192. The IHW tort was approved in Janvier v Sweeney [1919] 2 KB 316. During the first World War, in order to persuade a Mayfair maid (or companion) to hand over letters belonging to her employer, the defendant (a private investigator) pretended to be from Scotland Yard and working on behalf of the military and told her that she had been corresponding with a German spy. The plaintiff suffered a severe shock, resulting in neurasthenia, shingles and other ailments. Duke LJ ruled as follows: “This is a much stronger case than Wilkinson v. Downton . In that case there was no intention to commit a wrongful act; the defendant merely intended to play a practical joke upon the plaintiff. In the present case there was an intention to terrify the plaintiff for the purpose of attaining an unlawful object in which both the defendants were jointly concerned.” 193. In Wong v Parkside [2001] EWCA Civ 1721, the Court of Appeal ruled that for the IHW tort to be made out the Claimant had to prove a recognised psychiatric injury. Hale LJ ruled as follows at para. 12: “12.  For the tort to be committed, … there has to be actual damage. The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant's interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not ‘mean’ it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour.” 194. The IHW tort was reconsidered in Wainwright v Home Office [2003] 2 A.C. 406. The relevant facts were that a mother and son were strip searched by prison officers on a prison visit. This was humiliating and distressing. The son had cerebral palsy and suffered post traumatic stress syndrome as a result. The judge held that two torts had been committed: (1) trespass to the person of both claimants, consisting of wilfully causing a person to do something to himself which infringed his right to privacy, and (2) trespass to the person, consisting of wilfully causing a person to do something calculated to cause harm to him, namely infringing his legal right to personal safety, against the second claimant, and battery (touching his penis and pulling back his foreskin). He awarded basic and aggravated damages totalling £2,600 to the first claimant and £4,500 to the second claimant. The Court of Appeal overturned the judgment for the mother ruling that there was no tort of invasion of the right to privacy. The House of lords dismissed the appeal upholding the ruling that there was no tort of invasion of the right to privacy. Further the House dismissed the claim for IHW because the evidence was insufficient to prove “intent” but acknowledged the existence of the tort. Lord Hoffman set out the development of the law relating to nervous shock which had pretty much overshadowed the need to argue IHW because, so long as a claimant could prove negligence by shock and recognised psychiatric injury, damages were awarded. Lord Hoffman dealt first with the issue of whether anything less than a recognised psychiatric disorder could found an IHW claim: “41. Commentators and counsel have nevertheless been unwilling to allow Wilkinson v Downton to disappear beneath the surface of the law of negligence. Although, in cases of actual psychiatric injury, there is no point in arguing about whether the injury was in some sense intentional if negligence will do just as well, it has been suggested (as the claimants submit in this case) that damages for distress falling short of psychiatric injury can be recovered if there was an intention to cause it. This submission was squarely put to the Court of Appeal in Wong v Parkside Health NHS Trust [2003] 3 All ER 932 and rejected. Hale LJ said that before the passing of the Protection from Harassment Act 1997 there was no tort of intentional harassment which gave a remedy for anything less than physical or psychiatric injury. That leaves Wilkinson v Downton with no leading role in the modern law.” Dealing with intention element of the IHW tort head-on Lord Hoffman said this: “44.  I do not resile from the proposition that the policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle, you have to be very careful about what you mean by intend. In Wilkinson v Downton Wright J wanted to water down the concept of intention as much as possible. He clearly thought, as the Court of Appeal did afterwards in Janvier v Sweeney [1919] 2 KB 316 , that the plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the Victorian Railway Comrs case 13 App Cas 222 prevented him from saying so. So he devised a concept of imputed intention which sailed as close to negligence as he felt he could go.” Then Lord Hoffman himself effectively restricted IHW without recognised psychiatric injury thus: “45. If, on the other hand, one is going to draw a principled distinction which justifies abandoning the rule that damages for mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not. Lord Woolf CJ, as I read his judgment [2002] QB 1334, 1350, paras 50-51, might have been inclined to accept such a principle. But the facts did not support a claim on this basis. The judge made no finding that the prison officers intended to cause distress or realised that they were acting without justification in asking the Wainwrights to strip. He said, at paragraph 83, that they had acted in good faith and, at paragraph 121, that: "The deviations from the procedure laid down for strip-searches were, in my judgment, not intended to increase the humiliation necessarily involved but merely sloppiness." 46. Even on the basis of a genuine intention to cause distress, I would wish, as in Hunter's case [1997] AC 655, to reserve my opinion on whether compensation should be recoverable. In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation. The Protection from Harassment Act 1997 defines harassment in section 1(1) as a "course of conduct" amounting to harassment and provides by section 7(3) that a course of conduct must involve conduct on at least two occasions. If these requirements are satisfied, the claimant may pursue a civil remedy for damages for anxiety: section 3(2). The requirement of a course of conduct shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident. It may be that any development of the common law should show similar caution. 47. In my opinion, therefore, the claimants can build nothing on Wilkinson v Downton [1897] 2 QB 57. It does not provide a remedy for distress which does not amount to recognised psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established.” 195. So Lord Hoffman left an uncertain and tiny gap open for claimants to argue that an IHW tort could lead to an award of damages for distress falling short of a recognised psychiatric injury despite Hale LJ’s decision to the contrary in Wong. 196. Lord Scott was stricter still and stated: “60 …I agree with the Court of Appeal, and with your Lordships, that if there had been no touching, as there was not in Mrs Wainwright's case, no tort would have been committed. The unjustified infliction of humiliation and distress does not, without more, suffice at common law to constitute a tort.” 197. The Claimant relied on C v D and SBA [2006] EWHC 166. This was a sex abuse case involving physical acts and videoing naked boys. Three allegations were made: (1) touching genitals (denied); (2) videoing showering (admitted); (3) partially undressing and looking at genitalia and touched them (denied). Field J found that a school teacher who pulled down a school boy’s trousers and stared at his genitalia and touched when the boy felt faint and was in the infirmary so was liable for causing the Claimant’s psychiatric condition (para. 98). Field J also awarded damages for intentionally causing harm on the basis, not that the Defendant intended such but instead, that he was reckless, para 100: “In my judgment, although it was foreseeable that psychiatric injury to C would result from D1’s conduct in the first infirmary incident, such injury was not sufficiently likely for the necessary intention to cause harm to be imputed on the first two bases of imputation. However, I am satisfied that D1, behaving as he did during this incident, was reckless as to whether he caused psychiatric injury to C and accordingly I hold that he is liable to C under the Wilkinson v Downtown principle for the psychiatric injury caused by his conduct on the first occasion in the infirmary.” 198. Despite this decision as to recklessness, I do not consider that it is sufficient to make out the tort of intentional harm by words. By the end of submissions, the Court having put before the parties (the Defendant was after all a litigant in person) the decision in O (a child) v Rhodes [2015] AC 2019, the Claimant abandoned the assertion that recklessness can be sufficient to make out the “intentional harm” tort (IHW) and accepted that intention was required for it. Baroness Hale ruled in Rhodes as follows: “87. … Our answer to the second question is not to include recklessness in the definition of the mental element. To hold that the necessary mental element is intention to cause physical harm or severe mental or emotional distress strikes a just balance…” “88. … We are inclined to the view, which is necessarily obiter, that the tort is sufficiently contained by the combination of (a) the conduct element requiring words or conduct directed at the Claimant for which there is no justification or excuse, (b) the mental element requiring an intention to cause at least severe mental or emotional distress, and (c) the consequence element requiring physical harm or recognised psychiatric illness.” Furthermore at paras. 112-113 Lord Neuberger ruled as follows: “112 Thirdly, I consider that there must be an intention on the part of the Defendant to cause the Claimant distress. This requirement might seem at first sight to be too narrow, not least because it might appear that it would not have caught the Defendant in Wilkinson v Downton: he merely intended his cruel statement as a joke. However, the fact that a statement is intended to be a joke is not inconsistent with the notion that it was intended to upset. How, it might be asked rhetorically, could Mr Downton not have intended to cause the apparently happily married Mrs Wilkinson significant distress by falsely telling her that her husband had been very seriously injured? That was the very purpose of the so-called joke. There are statements (and indeed actions) whose consequences or potential consequences are so obvious that the perpetrator cannot realistically say that those consequences were unintended. 113. Intentionality may seem to be a fairly strict requirement, as it excludes not merely negligently harmful statements, but also recklessly harmful statements. However, in agreement with Baroness Hale DPSC and Lord Toulson JSC, I consider that recklessness is not enough.” (my emboldening) 199. Mixed physical abuse and IHW were considered in C v WH [2015] EWHC 2687. Nelson J was judging a sexual grooming case which involved physical abuse and emotional manipulation. Normal tort and intentional tort were asserted. Nelson J ruled at para. 89 as follows: “89 I should note, however, that I am entirely satisfied that a claim under Wilkinson v Downton as explained in Rhodes is established. This tort of intentional infliction of harm in its reformulation has three elements: (a) the conduct element; (b) the mental element; and (c) the consequence element. (Rhodes at [73]) I am satisfied that each is established. Mr Whillock acted unjustifiably towards the Claimant by emotionally manipulating her and encouraging her to send indecent images of herself to him and engaging in sexual banter in the texts. His manipulation was successful in that she became infatuated with him and wanted to make him happy. She is still infatuated by him now. The mental element requires the Claimant to establish that Mr Whillock intended to cause severe mental or emotional distress to her. There are however, as was said in Rhodes at [112], actions whose “consequences or potential consequences are so obvious the perpetrator cannot realistically say that those consequences were unintended”. It was obvious that the illicit relationship would in the end cause nothing but harm to the vulnerable Claimant some 39 years younger than her groomer and those consequences must have been entirely clear and obvious to Mr Whillock. The consequence element is also established. As I have found under the heading of causation she suffered from an adjustment disorder after the disclosure in January 2010 with an acute exacerbation of her mental health problems when the abuse became public. 90 The assessment of damages involves considering both the Wilkinson v Downton element and the assault element as one. I therefore deal with them together.” 200. C v WH was reported in the same year as but appears to have been decided before the judgment in Rhodes was delivered because Rhodes was not referred to in the judgment. 201. As a result of ruling in Rhodes the Claimant’s counsel, Mr O’Donnell, revised his submissions to assert that the Defendant’s actions in the third counselling/therapy session in April 2018 had consequences which were so obvious that the Defendant cannot realistically say that those consequences were unintended. 202. Rounding up, despite the passage of over 100 years there is still lack of clarity surrounding the long term effects of the decision in Wilkinson and the tort of IHW. Assault and battery have long attracted the potential for an award uplift for aggravated damages, but in my judgment, from the case law in the appellate courts, that should be reflected in the compensatory award for personal injuries being increased to cover all of the distress and humiliation caused by any malicious intent. Absent physical assault or batter or abuse the IHW tort is made out if a recognised psychiatric condition has been caused to the victim and the two other elements are proven: intention and sufficiently damaging words with a foreseeable result of personal injury in those words. So where is IHW to be of use as a stand alone tort claim when there has been no recognised, diagnoseable psychiatric injury? Herein lies the problem. Personal injury law exists to compensate for personal injury not mere distress and humiliation. Libel and slander law compensate for damage to reputation and the like. The Harassment legislation deals with harassment. In my judgment it is difficult to justify, in personal injury law, a tort of IHW which causes no personal injury but only distress and humiliation. 203. The editors of Clerk & Lindsell on Tort law suggest at para. 14-17 that foreseeability of harm is not relevant for intentional torts relying on Wainwright but I do not accept that foreseeability has no role in IHW torts, which are verbal torts. Foreseeability of harm affects both the existence and scope of the duty of care and the standard of care. It may be different with the torts of assault and battery."

> modern slavery - 'too scared and intimidated to do other than comply' -- probable overlap with false imprisonment: "16. Judgment in default has been entered in favour of each claimant and they are entitled to have damages assessed in accordance with those judgments. 17. I will deal, first, with their claims for general damages. Each claimant is entitled to general damages under the following heads: i) Because they were subjected to the intentional torts of intimidation and harassment, which deprived them of their personal autonomy in circumstances closely akin to false imprisonment, they are entitled to an award of damages reflecting those circumstances. ii) They are entitled to awards for pain, suffering and loss of amenity, consequent on their psychiatric injuries. iii) They are entitled to an award for what I might call “sub-clinical” distress, anxiety and injury to feelings. That falls to be assessed by reference to the well-known Vento guidelines. The guidelines stipulate three bands. Suitably uprated for inflation, the bands are as follows. Interposing the up-to-date figures, I quote from paragraph 65 of the judgment of the Court of Appeal, which is reported at [2003] ICR 318: “(i) The top band should normally be between £27,000 and £45,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £45,000. (ii) The middle band of between £9,000 and £27,000 should be used for serious cases which do not merit an award in the highest band. (iii) Awards of between £900 and £9,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”. iv) The claimants are, lastly, entitled to an award of exemplary damages, reflecting the fact that the defendant cynically exploited them in order to make a profit, thus falling into the second category of exemplary damages set out by Lord Devlin in Rookes v Barnard [1964] AC 1129. 18. For the avoidance of doubt, I do not regard an award of aggravated damages as appropriate because such an award could only be made in order to compensate the claimants for the affront to their feelings and their dignity caused by the defendant’s highhanded and oppressive conduct. But that injury is already reflected in the award made under the Vento guidelines and to award anything further would, therefore, involve double counting. 19. A separate question is whether general damages should consist of distinct awards for each of the heads I have identified, or a single rolled-up (or “global”) award. Treacy J, in the case of AT v Dulghieru [2009] EWHC 225 (QB), rolled up awards (i) and (ii), but, following some observations made by Janet Smith LJ in Choudhary v Martins [2008] 1 WLR 617, he made a separate award for injury to feelings. In the circumstances of these cases, I have concluded that to make separate awards would involve very substantial overlap and, therefore, double recovery. For each claimant, this was a single, lived experience, albeit that it has impacted upon them in a variety of ways. I propose to identify, for each claimant, the relevant bracket for each head of loss and then make a single award, leaving out only exemplary damages, which I will assess separately. 20. In addition to general damages, the claimants are entitled to claim financial losses, comprised of: (i) the wages they earned and were entitled to receive but did not receive at Kozeesleep; (ii) past loss of earnings caused by psychiatric injury; (iii) future loss of earnings attributable to psychiatric injury; and (iv) the costs of medical treatment. ...": Balogh v Hick Lane Bedding Ltd [2021] EWHC 1140 (QB). 


False imprisonment - trespass to the person - intimidation or harassment, threat of force:


Assault

> Hall v Fonceca: Intention as to consequences requires consideration of the aim, purpose, objective. ‘A person intends a particular consequence of their conduct if their purpose is to produce that consequence by their conduct. A person is reckless in relation to a particular consequence of their conduct if they realise that their conduct may have that consequence, but go ahead anyway’: ibid, at 535. As to whether recklessness suffices for the intention element, see Hall v Fonceca [1983] WAR 309 at [40]–[45] per Smith and Kennedy JJ: ‘It is unnecessary to consider whether recklessness, where the assailant adverts to the consequences of his conduct, suffices for this purpose [ie to satisfy the requirement of intention], although there is strong support for the view that it does.’".


Battery


Tort of Intimidation

>  NSWSC held in Bracher v Club Marconi & Ors [2000] NSWSC 1007 that it was at least arguable: "... 56 With regard to the alleged tort of intimidation, it is submitted that this tort is not complete until the recipient of the threat or threats has submitted to the intimidation. The plaintiff having given the evidence and afforded the co-operation, the submission is made that the tort has not been perfected. 57 The elements of an action founded upon the tort of intimidation are described in the Law of Torts Balkin and Davis, 1991 Ed. at 648 as follows:- "There are three elements to this action: (1) that the defendant has made a demand, coupled with a threat to either the plaintiff or a third party; (2) that the threat is to commit an unlawful act; and (3) that the person threatened complied with the demand, thereby causing loss to the plaintiff." 58 It is the third element abovementioned upon which Counsel for the defendants relies to establish that this cause of action cannot be maintained by the plaintiff. 59 At 652 of the text appears the following:- "The third element of the tort is that the person threatened must submit to the demand made of him by the defendant. If he does not comply, but instead stands up to the threats, the defendant will have failed to effectuate his intention of causing harm to the plaintiff; the latter will not have suffered any loss - at least, not by reason of the defendant's intimidation." 60 The authority cited for this proposition is Stratford & Son Ltd. v Lindley & Ors. (1964) 2 All ER 209. This is a decision of the English Court of Appeal where at 215, Lord Denning M.R. said this:- "The fifth point is whether the defendants were guilty of the tort of intimidation. Such a tort has long been known in cases of threats of violence. If one man says to another, 'I will hit you unless you give me five pounds', or 'unless you give the cook notice', or 'unless you stop dealing with your butcher', and the party so threatened submits to the threat by paying over the five pounds or by giving notice to the cook, or by ceasing to deal with the butcher, then the party damnified by the threat - the payer of the five pounds, or the cook or the butcher, as the case may be - has a cause of action for intimidation against the person who made the threat. But it is essential to the cause of action that the person threatened should comply with the demand. If he has the courage to resist it, and replies saying, 'you can do your worst. I am not going to pay you five pounds', or 'I am not going to give notice to the cook', or 'I am not going to stop dealing with the butcher', then the party threatened has no cause of action for intimidation. Nor has the cook. Nor the butcher. For they have suffered no damage by the threat ." (Emphasis added) 61 On one view, the gist of the third element of the tort of intimidation is the suffering of damage. In the present case where the plaintiff's damage lies in suffering a personal injury it seems to me at least arguable that the tort of intimidation was perfected when the plaintiff suffered the psychiatric and psychological injury he claims to have experienced and that, at that stage, the tort is perfected. The point being at least arguable, in my view it is inappropriate to strike out the pleading.".

> **2023** Family Violence - suit for tort of intimidation and IIED - earlier family law proceedings no res judicata: "1. This is a contested interlocutory application filed by the defendant seeking to strike-out the plaintiff's statement of claim in personal injury proceedings claiming common law compensatory damages for family violence. The plaintiff claims damages in respect of the intentional torts of assault, battery, and unlawful conduct intended to cause emotional distress. ...  33. With regard to the present case, it is noteworthy that in the Family Court proceedings, the former wife did not advance a specific claim for monetary compensation in respect of the assaults, batteries, or harmful intimidatory behaviours perpetrated by the former husband. In fact the former husband's submissions concede that in the judgment of the Family Court it was noted the former wife made no claim for damages in those proceedings: FCAJ, at [533]. 35 A fair reading of the FCAJ makes it clear that the issue of family violence was raised in order to identify its incidence and its effects in order to enable the Family Court to quantify the effect on the capacity of the parties to “contribute” to the marriage in the broad terms identified in s 79(4) of the FL Act dealing with the settlement of property matters and earning capacity, as explained in Keating & Keating [2019] FamCAFC 46, at [37], citing Spagnardi & Spagnardi [2003] FamCA 905, at [47]-[49]. Those factors did not involve assessment of damages for tortious compensation. 36 Therefore, I conclude that there is no res judicata or issue estoppel in this case. ... 19. In my assessment, the suggestion that the former wife's claims framed in tort against the former husband lack elements of a justiciable case must be rejected. 20. First, the claim framed in assault and battery are well recognised as being actionable intentional torts. Secondly, the claim that the former husband intentionally caused emotional distress sufficiently aligns with the elements of the tort of intimidation if nothing else. If that view is considered to be incorrect, given that the conduct in question amounted to trespass to the person, an analysis invoking the innominate action on the case is at least arguable. Accordingly, the former husband's claim that aspects of the former wife's claim are unknown to the law must be rejected. ...": Giunta v Giunta [2023] NSWDC 202.

> see also, S v S [2023] NSWDC 345, discussion on Giunta. - tort suit commenced alongside family law property settlement, risks of inconsistent findings. 


Duress & Tort of Intimidation

See discussion in James Edelman, 'Equitable Torts' (2002) 10 Torts Law Journal 64 (Lexis): "(iii) Duress Duress is the cause of action at common law that reverses transfers of money or property which are made as a result of illegitimate pressure. In Universe Tankships Inc of Monrovia v International Transport Workers’ Federation,155 a workers' union ‘blacked’ the plaintiffs' ships which did not hold a union-approved certificate. This meant that the ships were unable to depart from the English port. The plaintiffs, fearing disastrous commercial consequences, acceded to the demands of the union and made payments to the crew members of additional back pay and a payment to the union's welfare fund. The plaintiffs sought restitution of the payments made, although they later dropped the claim for the back pay payments. This was because legislation had been held to legitimate such demands.156 The House of Lords held that the payments to the welfare fund were recoverable as they had been made as a result of duress. Lord Diplock explained the basis of the recovery: The rationale is that his apparent consent was induced by the pressure exercised upon him by that other party which the law does not regard as legitimate, with the consequence that the consent is treated in law as revocable unless approbated either expressly or by implication after the illegitimate pressure has ceased to operate on his mind. It is a rationale similar to that which underlies the avoidability of contracts entered into under colour of office, or under undue influence or in consequence of threats of physical duress.157 The basis for the action for duress is, therefore, the defective consent of the plaintiff rather than any breach of duty by the defendant. In the same way as undue influence, duress should be an available cause of action in a three-party situation. Indeed, duress is, in many cases, indistinguishable from actual undue influence. Once it is accepted that pressure in duress cases need not be tortious or unlawful generally as long as it is ‘illegitimate’,158 it is very difficult to draw a line between cases of ‘undue’ pressure amounting to actual undue influence and cases of pressure amounting to duress.159 Thus, in a case in which X coerces Y to make a payment to Z, Y can bring the action for duress against Z to recover the money. Although there are no cases specifically on this point,160 Goff and Jones argue that this result should follow by analogy with the cases of money paid by mistake to a third party.161 An innocent recipient of money paid under compulsion should be in no better position than an innocent recipient of money paid under mistake. In these three-party cases of duress compensatory damages should be unavailable and duress should be considered as an action in unjust enrichment. The same would apply to the action for duress in a two-party situation. Lord Diplock made clear that this was the effect of his understanding of the nature of duress. However, as was mentioned in relation to undue influence, there is no reason why a concurrent wrong cannot be recognised in the two-party cases. In the case of duress this would not involve the creation of a new wrong. There is an existing tort which is the tort of intimidation (which can operate in a two-party context).162 In another passage in the Universe Tankships case, quoted by Lord Goff in the leading speech in The Evia Luck,163 Lord Diplock emphasised that it is necessary to identify a tort separate from the unjust enrichment action for duress in order to recover compensatory damages: The use of economic duress to induce another person to part with property or money is not a tort per se; the form that the duress takes may, or may not, be tortious. The remedy to which economic duress gives rise is not an action for damages but an action for restitution of property or money extracted under such duress and the avoidance of any contract that had been induced by it. Where the particular form taken by the duress used is itself a tort, the restitutionary remedy for money had and received by the defendant to the plaintiff's use is one which the plaintiff is entitled to pursue as an alternative remedy to an action for damages in tort.164".


Tort of Coercive Control


[DV2] Domestic Violence Orders, Qld: see eg,

> "‘While the legislation in other States cannot affect the jurisdiction of this court, the types of considerations referred to by the various Acts may provide some insight into the types of considerations which may, in appropriate cases, be relevant considerations in the determination of whether it is necessary or desirable for this court to make an order. They certainly do not provide anything approximating an exhaustive list of possible relevant circumstances. Whether they are relevant will depend on the law in Queensland and on the facts and live issues of each case. What weight ought to be given to any such relevant circumstance must also depend on the overall facts and circumstances of each hearing. The types of considerations referred to by the various Acts may simply provide this court with some inkling about the types of considerations legal minds, and judicial minds, may need to bring to bear on the determination of issues raised under the Queensland Act. However, I have taken great care to look at the context in which each of the other state laws is drafted.’": Armour v FAC [2012] QMC 22, [47]. 

> "although the rules of evidence to not apply to such proceedings, as was noted in ADH v AHL1 the court’s decision must derive from relevant, reliable and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue.": ADH v AHL [2017] QDC 103, [46], [82]; AVI v SLA [2019] QDC 192.

>> DFVPA as “remedial legislation [it] ought to have been given the widest construction that the terms can fairly bear [44].”

>> ADH v AHL, at [46]: "The premise of the section is clear – the court ought have all pertinent information to fulfil the purpose of the proceeding reflected in the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.111 Nevertheless, although not bound by the rules of evidence, it is well settled that the court’s decision must derive from relevant, reliable and rationally probative evidence that tends to show the existence of the facts in issue112. It is not enough to suspect or speculate that something might have occurred.113"

> "[47] The relevant principle is that depending on the nature and gravity of the allegation against a party, the strength of the evidence required to meet the standard of proof may vary. What this means is that for more serious allegations, the court ought to more closely examine the evidence to ensure that it is strong enough to prove the allegations on the balance of probabilities. However, it is important to recall that the Briginshaw principle does not create another standard of proof.": LDC v TYL and STP [2017] QDC 197, [47] (Muir DCJ). 

> "Although not bound by the rules of evidence, it is well settled that the court’s decision must arrive from relevant, reliable, and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue. It is not enough to suspect or speculate that something might have occurred. Further, the seriousness of the allegations and the gravity of the consequences of the proceedings in a protection order being imposed also warrants the considerations drawn from Briginshaw v Briginshaw (1938) 60 CLR at 362. That is, the seriousness of the allegations in the case and the gravity of their consequences warrant that a higher degree of certainty be satisfied on the balance of probabilities.": RCK v MK [2018] QDC 181.

> "7. ... Onus of proof [49] The onus of proof is on the applicant to establish on the balance of probabilities the matters set out in Section 37 of the DFVPA. [50]   By his Outline, Mr Senior referred to the principles in Briginshaw v Briginshaw and implicitly to the practical consequences of the making of an order to the Respondent. Where relevant, Briginshaw is applied, I thus note: “… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be inexact proofs, indefinite testimony or indirect references”. (footnotes omitted) ... 29. With respect to the reasons, including paragraphs [115], [119] and [120], it was submitted that the learned Magistrate reversed the onus of proof by referring to the absence of any evidence from the respondent as to steps taken to address his behaviour and demonstrate remorse or insight.  As earlier noted, the learned Magistrate was quite aware of the onus of proof upon the Briginshaw standard, and I do not understand the remarks referred to indicate a reversal of that onus on the ultimate question as to whether or not a domestic violence order was necessary or desirable.": GJC v Commissioner of Police [2024] QDC 120.

> "Section 37 of the DFVP Act sets out that to grant a protection order the Court needs to be satisfied that: 1.   A relevant relationship exists between the aggrieved and the respondent. 2. The respondent has committed domestic violence against the aggrieved. 3. The protection order is necessary or desirable to protect the aggrieved from domestic violence.": EW v RW [2024] QDC 151, [42] (Smith AM DCJA). 

> Not made out on evidence: "In my view, it is appropriate to consider the matter afresh in relation to whether a protection order imposing appropriate prohibitions or restrictions on the behaviour of the appellant is necessary or desirable.  In doing this I have to act on the evidence that was before the Magistrate. If there are other acts of domestic violence alleged then there are other appropriate avenues available to the first respondent.  If the first respondent is breaching Family Court orders or the appellant is breaching Family Court orders then the proper avenues are for those to be taken up in the Family Court. In the present case, it is not in issue that a relationship exists. As I said earlier, I consider there was evidence that the appellant had committed domestic violence under section 37(b) of the Act. This then requires me to consider whether a protection order is necessary or desirable to protect the aggrieved from domestic violence. This requires me to undertake the three-prong approach that I identified earlier. In particular, I must assess the risk of future domestic violence between the parties in the absence of any other orders. In doing this, I have had recourse to the evidence of the first respondent and, in particular, that he is worried that if a domestic violence order is not put in place to protect him, his mother and daughter, then the appellant might try and take their daughter and harm her as she does not have a stable mind and has mental health issues. In particular, in the first respondent’s affidavit he states: With every time LDC comes to my house her behaviour escalates and each time she comes back it gets worse. In my view, bearing in mind the gravity of these allegations and the Briginshaw Test, without more, this evidence of itself does not satisfy me that there is the necessary risk of future domestic violence. This evidence and the evidence of the first respondent’s mother that the appellant would try to take the appellant’s daughter is that of speculation and mere possibility. On the evidence that I have before me, which was before the Magistrate, and, bearing in mind, as I said, the gravity of the allegations, I am not satisfied that there is sufficient evidence of a risk of future domestic violence. In particular I note that there are broad assertions about the appellant not having a stable mind and having mental health issues, but the evidence as it stands before me is that these are assertions being made by the first respondent and there is no other evidence that has been adduced to support such assertions. I also need to assess the need to protect the aggrieved from the domestic violence in the absence of any order and I do accept that, of course, one of those relevant considerations is that this is not a case where there are two strangers involved.  It is a case where there are ongoing relationships. The difficulty I have in the present case is that there is not sufficient evidence before me to support a conclusion that there is a risk of future domestic violence in the absence of an order. I have also considered the third limb of the test, that is whether imposing a protection order is necessary or desirable to protect the aggrieved from the domestic violence, and I have had regard to the principles set out in section 4(1) of the Act. Overall, I do not consider that there is an evidentiary basis to support a conclusion that a protection order is necessary or desirable to protect the aggrieved from domestic violence.": LDC v TYL & STP [2017] QDC 197 [70]-[76].

> Evaluative Criteria (departure from MDE v MLG?): "What is at issue here is the application of the statutory test as to whether “the protection order is necessary or desirable to protect the aggrieved from domestic violence”. For my part, I respectfully, do not share the view that this test is appropriately to be applied as rigidly or as structured in the observations made in MDE v MLG & Queensland Police Service.[20] In particular, it is necessary to note that the adoption of such a “three-staged test” was directed at some views expressed in an earlier decision as to the departure of the legislation from an earlier requirement for the court to assess the likelihood of domestic violence occurring in the future, before making such an order, in the context of the explanatory notes for the amendment which was made.  That is set out as follows: [20]         In coming to this conclusion, I am conscious that these observations have been noted and applied, in varying respects, in other decisions of this Court. However what may be noted is that in SK (A Child) v Commissioner of Queensland Police & Anor [2023] QDC 65 at [71], the same judge who decided MDE v MLG & Queensland Police Service, described his observations, at [55], as setting out “a process to consider whether the protection order is necessary or desirable in the particular circumstances of each case to protect the aggrieved from domestic violence”. Further, in some other decisions, it is to be observed that particular reference is also made to the earlier observations in GKE v EUT: KAL v DJL [2022] QDC 152, at [81] and ZTP v BBY [2023] QDC 59, at [21]. “[51] 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. [52] The use of the phrase “necessary or desirable” invokes a very wide and general power, and should be construed in a similarly liberal manner to enable a court to properly respond, and, if appropriate, tailor an order to protect a person from domestic violence. The phrase is not unusual in that it appears in both state and federal legislation, including analogous anti-domestic violence legislation. [53]   In GKE v EUT [2014] QDC 248 McGill SC DCJ considered the requirement and said at [32] to [33]: “[32] In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved. [33]         I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future. Broadly speaking I agree with what the Magistrate said in the passage beginning “fourthly” of his reasons, though I would express the last sentence as “the risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.” 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 [54]   This is consistent with the explanatory notes of the Domestic and Family Violence Protection Bill 2011: “The Bill replaces the ‘likelihood’ element with a requirement that a court be satisfied that an order is necessary or desirable to protect an aggrieved from domestic violence. This change focuses the court on the protective needs of the aggrieved and whether imposing conditions on the respondent’s behaviour is necessary or desirable to meet these needs. The court may still consider evidence which suggests that domestic violence may occur again, or a threat may be carried out, however the court does not need to be satisfied that such an event is ‘likely’. Further, a court can look at other factors, including whether an aggrieved is in fear, when it is determining this element. The new grounds also require a court to consider the guiding principles in deciding whether an order is necessary or desirable for the protection of the aggrieved. The priority of the Bill is the safety and wellbeing of the aggrieved and the grounds for making a protection order are directed toward achieving this aim. These measures are also consistent with the objective of ensuring that orders are only made for the benefit of the person who is in need of protection and are intended to reduce inappropriate cross applications and cross-orders.”[21] [21]         MDE v MLG & Queensland Police Service [2015] QDC 151 (citations omitted) The essence of the earlier referenced observations and which are in my view, correctly noted to be consistent with the referenced explanatory memorandum, is in recognising that the full implication of the phrase “necessary or desirable to protect the aggrieved from domestic violence” lies in understanding a requirement to assess the prospect or risk of future acts of domestic violence occurring, in the absence of an order; and in thereby determining whether such prospect or risk is “sufficiently significant to make it necessary or desirable to make an order in all the circumstances”. In my view and more importantly, that conclusion is supported by reference to the main objects of the DFVPA, and how those are to be achieved, in s 3, and particularly the statement that: “(2)   The objects are to be achieved mainly by— (a)          allowing a court to make a domestic violence order to provide protection against further domestic violence; …” The statutory test is to be applied as to determining whether, in the circumstances, it is “necessary or desirable” to make an order. Dependent upon all of the relevant circumstances, whilst a finding of no substantial future prospect or risk of domestic violence occurring, would be an obvious impediment to any determination that it was necessary or even desirable to make an order, it does not follow that upon any finding of such substantial prospect or risk of future domestic violence, it could not be found that it was desirable to make an order, even if the circumstances do not warrant a finding that it was necessary to do so. So much may be seen as being consistent with the further considerations, as mandated by s 37(2)(a)(i), as were recognised as requiring attention in MDE v MLG & Queensland Police Service, in terms of consideration of the following principles set out in s 4: “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; Examples of people who may be particularly vulnerable to domestic violence— •women •children •Aboriginal people and Torres Strait Islanders •people from a culturally or linguistically diverse background •people with a disability •people who are lesbian, gay, bisexual, transgender or intersex •elderly people (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.” It is apparent from the extract of the Magistrates findings leading to his conclusion that it was both necessary and desirable to make the order, which is appealed,[22] that he has made no explicit finding as to any assessment of the risk of future acts of domestic violence by the appellant. Whilst there are potentially implications of such consideration in the findings, there was no explicit approach to that conclusion by having regard to any necessity or desirability for the protection of the aggrieved from domestic violence, having regard to any such assessment of future risk to her or otherwise. Moreover, the expressed reasoning of the Magistrate, albeit in noting the aggrieved’s contention as to her need for protection in respect of their expected further communications as to their property settlement and in concluding in terms of deciding that “an order protecting the aggrieved from domestic violence in the future is necessary and it is also desirable” and some contrary contentions of the appellant, discernibly demonstrates particular focus upon what were accepted as to the particular concerns and vulnerabilities of the aggrieved and that “the respondent should be held accountable for his actions”; that is his past acts of domestic violence, as had been found to have occurred. The conclusion to which this Court is driven, is as to the absence of consideration of more than the aggrieved’s concerns as to such future conduct, rather than some assessment of the significance of any prospect of the appellant doing so, as the necessary foundation for any conclusion that it was necessary or desirable to make the protection order. ... The Magistrate had made it, appropriately, clear from an early stage of the cross-examination that he was only interested in determining the issues arising under s 37 and not in determining the ongoing property dispute between the parties.[36] However, a difficulty and particularly in the light as to what has been found above about the erroneously narrow approach taken by the Magistrate as to the issue as whether it was necessary or desirable to make the protection order, is in the breadth of a further assertion by the Magistrate that he was not interested in property settlement negotiations.[37] That is particularly when it is understood that the main findings of acts of domestic violence of the appellant were in statements he made in correspondence exchanged as part of the property settlement negotiations. As the appellant, at a later point, said to the Magistrate in answer to further query as to the relevance of some of his questioning of the respondent: “So I’ll tell you how it is; as far as I’m concerned, this is all about actions that [FJH] has taken all the way through the separation, which has resulted in me responding to an email. All right. The emails is what she’s actually objecting to, she’s saying I have not appropriately addressed her in any email; that’s your domestic violence claim, that I – my emails to her are not appropriate, that they are rude, et cetera. I’m saying your actions have precipitated a response in my emails, and this action – in particular, this one – was nasty, and it got a reaction – a really bad reaction – from me, because I suffered extreme financial hardship as a result thereof, and still do.”[38] Quite apart from any admission of the inappropriateness of his emails and leaving aside the inherent difficulty of any “she made me do it” approach, if, as was found here and ultimately not pressed as challenged in this appeal, the responses include acts of domestic violence, there remains a discernible need of understanding the relevant context to such acts of domestic violence, in terms of addressing the issue as to whether an order is necessary or desirable in the particular circumstances; including, but not limited to, any assessment of the risk of further acts of domestic violence. [36]         T 1-18.4 – 1-19.18. [37]         T 1-18.45. [38]         T 1-21.48 – 1-22.8. Whilst it must recognised that that the Magistrate, otherwise, had and considered the evidence placed before him by the appellant and also that there was no ruling that the appellant could not ask any particular question of the respondent, what has been observed as to the interactions with the appellant leaves a clear impression that there was some dissuasion in respect of the appellant seeking to fully explore the appellant’s case in cross-examination of the respondent. He was entitled to do this and it may have been important in terms of gaining better understanding of the context to the particular messages found to contain acts of domestic violence and, in turn, in considering whether it was necessary or desirable to make an order to protect the respondent from further acts of domestic violence. It is unnecessary to further consider whether this amounted to a denial of procedural fairness such as to vitiate the determination made below, as the discussion to this point, in the light of the finding of the error of the Magistrate in respect of his consideration of the issue as to whether or not it was established to be necessary or desirable to make an order, serves to illustrate why this Court should not seek to now determine that issue on the available materials and that there should rather be an order, as the appellant ultimately seeks, for the matter to be remitted to the Magistrates Court. Conclusion Accordingly, it is appropriate to order that the decision on 19 October 2022 to make a domestic violence order, is set aside and the application filed by the respondent on 20 April 2022, is remitted to the Magistrates Court at Gympie to be determined according to law. In the circumstances which have been outlined, prudence would indicate that such determination should be by a different Magistrate. The parties will be given opportunity to be heard in respect of any further order.": FAJ v FJH [2024] QDC 23 [18]-[20], [32]-[35]. 

> See also, Domestic and Family Violence Protection Act 2012 Benchbook at p 90. <https://perma.cc/ZQ5T-5HNQ>. 

> Cf, MDE v MLG referred to above: "[55] In my view, the third element of whether “the protection order is necessary or desirable to protect the aggrieved from domestic violence” requires a three stage process supported by a proper evidentiary basis (adduced pursuant to s 145 of the Act): 1.            Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order. There must evidence to make factual findings or draw inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders (s 37(2)(b)), 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. 2.            Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations may include evidence of the parties’ future personal and familial relationships, their places or 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. 3.           Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence. In this regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1) that: (a) the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount; (b) people who fear or experience domestic violence, including children, should be treated with respect, and disruption to their lives minimised; (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. 4. Finally, if the court is satisfied of the other pre-conditions of a relevant relationship and domestic violence are established, the court may exercise its discretion to make a protection order imposing appropriate prohibitions or restrictions on the behaviour of a respondent necessary or desirable to protect the aggrieved from the domestic violence.” ... Section 57 requires the court to consider whether the conditions are necessary in the circumstances and whether the conditions are desirable in the interests of the aggrieved. Those matters discussed at paragraphs 67 to 70 of these reasons are similarly relevant to the exercise of the discretion under s 57 i.e.: The nature of the domestic violence committed by the respondent; The absence of remorse; The circumstances of the parties (the nature of their relationship, their residence and proximity) and, finally, The aggrieved’s entitlement to a protection order i.e. to the safety that the protection order ought provide. Additional to those considerations s 57(3) provides that a paramount consideration is the safety, protection and wellbeing of the aggrieved. In all the circumstances in considering the imposition of the additional conditions sought I find that it is both necessary in the circumstances and desirable in the interests of the aggrieved that the protection order include conditions which prohibit the respondent from: Attending or remaining at the aggrieved’s residence; Approaching the aggrieved; or, Contacting or asking someone to contact the aggrieved.": KAO v DL [2017] QMC 16, [66], [84]-[87]. 

> MDE  v MLG & Queensland Police Service  [2015] QDC 151 <https://jade.io/article/395051>, [55] et seq.

> "Necessary or Desirable": Assess the risk of future domestic violence between the parties in the absence of any order: "In my opinion, a number of the acts I found to have been committed by the appellant amount to domestic violence – the rubbing of the beard was physically abusive, the taking of the phone was physically abusive[87] and the insulting words about the first respondent was in my view emotionally or psychologically abusive.[88] [87]         Section 8(a) of DFVP Act. [88]         Section 8(b) of DFVP Act – in that they were intimidated, harassing and/or offensive – s 11 of the Act. The next question is whether the protection order is necessary or desirable to protect the aggrieved from domestic violence. The phrase invokes a very wide and general power to make the order.[89] [89]         DMK v CAG [2016] QDC 106 at [68]. In GKE v EUT[90] McGill SC DCJ considered this phrase.  His Honour said that the order must be necessary or desirable to protect the aggrieved from domestic violence.  It is specifically for the purpose of protecting the aggrieved from domestic violence. [90]  [2014] QDC 248 at [27]. Applied in MDE v MLG [2015] QDC 151 and AJS v KLB [2016] QDC 103. His Honour said at [28]: “This is concerned with the situation in the future, something which cannot be proved as a matter of historical fact, but depends on the magistrate’s assessment of the circumstances, bearing in mind the extent to which there is likely to be a continuing need for contact between the parties.  It seems to me from the evidence that the respondent would very much like not to have to have anything more to do with the appellant, but in circumstances where they have had children together, and bearing in mind the terms of the Family Court order referred to in the evidence, it is clear that, at least for a long time, there is going to be some continuing contact between the parties, in connection with their respective rights and obligations in relation to the children.  This is a relevant consideration…” Also at [32]-[33]: “[32] In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that.  The magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis.  I agree with the magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved. [33] I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future.  Broadly speaking I agree with what the magistrate said in the passage beginning ‘fourthly’ of his reasons, though I would express the last sentence as ‘the risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.’  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.” This reasoning equally applies in the present case. The term “necessary” is defined in the Concise Australian Oxford Dictionary as “requiring to be done, achieved; requisite, essential”. The term “desirable” is defined as “worth having”.  It may be seen there is a lower threshold when one is concerned with the term “desirable”. But both are focussed on the need to protect the aggrieved from domestic violence. I consider the JR’s reasoning correct on this issue.[91]  There is no doubt that the parties are embroiled in Federal Circuit Court proceedings.  There are children of the relationship about whom contact/care arrangements will need to be made.  These will need to be dealt with in a civilised and appropriate fashion.[92] I have considered s 4 of the Act. In light of the history between the parties, the events of 14 August 2015, the nature of the relationship, and degree of animosity expressed by the appellant towards the first respondent, in my view, it was both desirable and necessary that the order be made in favour of the first respondent. Like the JR, I consider without such an order there is a real risk of future domestic violence. [91]         Reasons, page 4.1-6. [92]         In this regard, I refer to the affidavit of the first respondent, Exhibit 7 at [36]-[38] and [39]-[42].  I accept this evidence. I reject the ground alleging the decision was against the weight of the evidence.": WJ v AT  [2016] QDC 211, [131]-[141].

> Once-off isolated incident: "The Magistrate’s findings can be summarised briefly. The evidence of the history of the relationship was unremarkable. The parties had been in a casual relationship on and off for three years, with occasions of verbal arguments followed by reconciliation. On the date of the incident, Lisa had gone to Richard’s home uninvited to confront him over suspicions of infidelity. She waited in the carpark of his unit complex. Upset and angry, Lisa confronted Richard when he arrived in his car. They had a verbal interaction which escalated to a physical interaction, initiated by Lisa punching Richard through the car window, followed by a scuffle outside the car in which Lisa bit Richard on the arm. Richard left to go to his apartment. Lisa later followed him to the apartment, he let her in, Lisa continued the verbal argument and threw some of his possessions off the balcony. Richard then physically removed Lisa from the apartment and called police. ... The court has a broad discretion whether to make a protection order. The discretion must be exercised judicially, by reference to the relevant statutory criteria. Where there is some evidence to support the exercise of discretion, it will be difficult to demonstrate on appeal that the Magistrate erred in finding it was necessary or desirable to make the order. The question is not whether a different Magistrate may not have been so satisfied, it is whether the Magistrate erred in making the order. The risk of future domestic violence and the need for Richard to be protected from it had to be considered in all the circumstances, including past domestic violence. I respectfully agree with the views of McGill DCJ in GKE v EUT:[13] [32] In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. … [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. Here, there were a number of uncontested facts assessed in the context of the evidence as a whole which militated against a finding that it was necessary or desirable to make a protection order. There had been no previous history of domestic violence. The interaction giving rise to the temporary protection order was an isolated incident arising out of a particular situation. Although the Magistrate found that the physical interaction was initiated by Lisa, both parties suffered some physical injuries as a result of it. Richard was a trained security guard. Richard was larger and stronger than Lisa. The parties did not have children, share finances, own common property, or live together. The parties were no longer in a relationship. They had no mutual friends and no reason to interact with each other again. The hearing occurred 10 months after the incident. There was no evidence of any contact between the parties during that period. There had been no contraventions of the temporary order. There was no allegation of any further act of domestic violence by Lisa against Richard. There was no evidence that Richard feared Lisa. In her oral evidence, Lisa maintained that she had not initiated the physical contact by first punching Richard. She accepted that she went to his apartment building, and said that after she confronted him verbally, he exited his car and assaulted her. Her oral evidence included evidence to the effect that Richard placed her in a choke hold from behind, by placing his right arm up under her right arm and pushing her head down forcing it forward with his other arm around and in front of her, and that she then bit him on the arm to make him to let go of her. She said after he let her go he pushed her and she fell to the ground, losing control of her bladder. In considering whether it was necessary or desirable to make the order, the Magistrate relied upon his findings about Lisa’s role in the altercation (which were different to her account). He also found that Lisa gave an account to police in which she did not accept responsibility and her maintaining an account (in her affidavit and in court), which was contrary to Richard’s version, suggested ‘hostility’ towards Richard.  He concluded, “So in those circumstances, I’ve concluded that the making of a protection order is necessary and desirable with the conditions that have been sought. On the evidence, the descriptor of ‘hostility’ was inapt. As respondent to the order sought, Lisa was entitled to challenge Richard’s version of events and give her own account of what occurred. She accepted that she had bitten him in the course of the altercation but provided an alternative explanation for how that occurred. Exercising her right to do so in the proceeding did not, in and of itself, suggest ‘hostility’ towards Richard, nor did other evidence support that finding. It was never put to Lisa in cross-examination that she continued to be ‘hostile’ towards Richard, nor was she cross-examined about her attitude towards him generally. The Magistrate’s reasons do not reveal any other basis for concluding that a protection order was necessary or desirable. While the facts of the altercation were relevant to the exercise of the discretion, even giving them their full weight, in my view they were not sufficient to overcome the weight of the other undisputed facts I have referred to above. The Magistrate appeared to recognise the countervailing evidence in the undisputed facts by reducing the term of the order from the standard five years to two years, rather than in considering whether that militated against the making of an order at all. In the circumstances, I do not consider that a finding that it was necessary or desirable to make a protection order was open upon the whole of the evidence before the Magistrate.": Lisa (a pseudonym) v Commissioner of Police & Richard (a pseudonym) [2024] QDC 184, [14], [40]-[49] (Fantin DCJ).

> Obiter - self defence: "In considering the circumstances of this case, the facts militating against the exercise of a discretion in favour of the Appellant for stay are that the Appellant identified self-defence as the underlying basis for the lawfulness of his assault upon the aggrieved. But that evidence is before the court in the form of statements made by the Appellant to police recorded on the body-worn camera footage. Obviously enough those statements were neither tested nor sworn to but nonetheless in circumstances where the court has broad powers concerning the reception of evidence, those factors would simply be weighed in the mix. Any claim for privilege against self-incrimination would not have been corrupted by the presentation of the body-worn camera footage to the court and thus it is difficult to see how the Appellant was prejudiced by this proceeding preceding any criminal trial which was then to be disposed of. That of course ignores other relevant differences in the proceedings including the burden and standard of proof in a criminal proceeding being much stricter.": IAW v Commissioner of the Queensland Police Service & Anor [2024] QDC 190, [39] (Burnett DCJ) <https://www.queenslandjudgments.com.au/caselaw/qdc/2024/190>. 

> Asserted independence of the aggrieved is not a factor militating against: "With respect to the matter in contention on appeal, the learned Magistrate provided reasons as follows: ... As to the need for protection, the Aggrieved is a vulnerable person being a woman. She is single, a working nurse. She has children that live with her and her former husband. She experienced an erratic relationship with the Respondent with the highs of engagement and the lows of estrangement. She was confronted by vengeful and hurtful messages. The Respondent texted and emailed prolifically. He was prepared to escalate his campaign against the Aggrieved to her ex-husband and a person Dan in a cynical attempt to undermine her. While significantly restricted to electronic communication, the domestic violence that I found perpetrated by the Respondent is so easy to do in an age of ubiquitous personal digital devices. We are all able to reach out so easily to others to help or harm. It is the boon and curse of technology. [121] The asserted independence of the Aggrieved does not militate against making an Order. A person does not have to be terrified or cowed to receive protection. The Aggrieved is free of the relationship. There is no prospect of it resuming. [122]   I do contemplate the impact of making an order upon the Respondents career. However, no evidence was led on that point. Moreover, the Respondent apparently is already bound by a domestic violence order made on the application of his former wife. [123] It does not seem that there was any impact upon his career from it or, indeed, the current TPO though Mr Senior volunteered that the Legal Services Commission are aware of these proceedings. [124] All in all, I am satisfied that a Protection Order is necessary and desirable. As a matter of discretion, I am also satisfied that I should make a Protection Order in favour of the Aggrieved." ... [30]Further, I do not accept the submission that any lack of remorse or insight was an irrelevant consideration in the exercise of discretion. It was clearly relevant to the future risk of the respondent engaging in further similar acts of domestic violence against the aggrieved. [31]With respect to the tenor of the findings by the learned Magistrate critical of the respondent throughout this part of the reasons, it was submitted that such reasons were, in effect, intemperate and lacked the requisite unbiased, dispassionate consideration of whether an order was necessary or desirable. It is clear that the learned Magistrate formed an adverse view as to the character of the respondent but, given the matters under consideration, it was open to his Honour to form and express such views in the course of considering whether there was such a risk of future domestic violence that the making of an order was necessary or desirable. I do not consider that the reasons in this regard demonstrate any error of fact or law. [32]Likewise, I do not accept that the matters expressed in paragraphs [116] and [117] are irrelevant. They were relevant to the continuing animus of the respondent towards the aggrieved and thus of some relevance to future risk. [33]Particular criticism is made of the last sentence in the first paragraph [120], but such statement must be seen in the context of an analysis by the learned Magistrate of the particular risk of the respondent in engaging in future acts of domestic violence. [34]As to the second paragraph of paragraph [120], particular criticism is made of the first sentence. Regarded in isolation, such statement could be arguably a misstatement of law if read as meaning that every woman is vulnerable to domestic violence: contrast the terms of section 4(2)(d) of the Act, which provides that women may be particularly vulnerable to domestic violence. However, such sentence must be read in the context of what follows. The learned Magistrate clearly did not conclude that the aggrieved was vulnerable merely because she was a woman, but went on to state other factors relevant to his finding of vulnerability. Such finding was reasonably open on the evidence, and I do not discern any error of law or fact in the first sentence of that paragraph read in proper context. [35]Criticism was made of the terms of paragraph [121], but I discern no error in fact or law in such part of the reasons. [36]It is clear that the learned Magistrate weighed up those factors, both supporting and militating against the making of a protection order, in concluding that such an order was necessary and desirable and that, in the exercise of discretion, such an order should be made. [37]I am not satisfied that the learned Magistrate failed to take into account any relevant consideration, or took into account any irrelevant consideration. I am not satisfied that there was any material error of fact or law. Having given due respect to the advantage enjoyed by the learned Magistrate in making his decision, I am not satisfied that such decision was wrong.[38]No error of fact or law or discretion having been established, the appeal must be dismissed.": GJC v Commissioner of Police [2024] QDC 120, [11], [30]-[38] (Allen KC, DCJ). <https://www.queenslandjudgments.com.au/caselaw/qdc/2024/120>. 

> Insight, attitude: "I am satisfied EVE’s behaviour of turning up and remaining on the property in breach of court orders was an intentional breach by her of those orders. Her behaviour on those occasions (Incidents 16, 17, 20 and 21) amounted to harassing, offensive and tormenting behaviour which constituted emotional or psychological abuse.[72] She was aware the children were present on some occasions, when police had to attend, yet persisted to harass ETT by her conduct. I am satisfied these incidents amounted to harassment and were distressing and intimidating to ETT and to the children when they were present. I am satisfied the other incidents, alone and/or in combination, also amounted to a course of conduct that constituted harassment and intimidation constituting domestic violence. Section 4(1) sets out the guiding principles of the Act which is that the safety, protection, and wellbeing of people who feel or experience domestic violence, including children, is paramount. I am satisfied there was a proper basis for the magistrate finding that a protection order was necessary and desirable to protect ETT from domestic violence for the reasons he enunciated.[73] Proceedings are ongoing in the Federal Circuit Court and/or Family Court. At the appeal hearing, EVE continued to have little, if any, insight into the fact her behaviour has been unacceptable. She made clear her intention was to pursue ETT further through the courts. She maintained she was entitled to return to live at the property. I am satisfied a protection order was, and is clearly, still necessary or desirable to protect ETT from further domestic violence.": EVE v ETT [2021] QDC 161 [75]-[77] (McGinness DCJ). 

> alleged DV occured long before trial, no conduct directly directed at the appellant, no further DV suggested, here is the possibility of future contact concerning family law orders but he has engaged a family lawyer and is proceeding through proper legal processes: "In this case the only allegations of conduct directed directly at the appellant by the respondent were alleged to have occurred quite some time prior to the trial. Taking into account the nature of the proved conduct, the risk of domestic violence in my view is low. There was no conduct directly directed at the appellant. The inquiry was as a result of the respondent’s interest in his children. Also it must be borne in mind in the period between the dismissal of the previous application and the bringing of the present application when there was no protection order in place there were no acts of domestic violence. The respondent had no interest in locating the appellant and is unaware of the appellant’s present address.[132]  He has a new partner. He went to the school with his fiancé.[133] The respondent is educated and is studying a degree and an employment[134].  He has also completed a counselling program through relationships Australia.[135]    It is not suggested there has been any act of domestic violence since 2 March 2018. There are Federal Circuit Court proceedings on foot[136] and there is the possibility of future contact concerning family law orders but he has engaged a family lawyer and is proceeding through proper legal processes. I find on the evidence it is not necessary or desirable on the evidence as found for any order to be made.": AVI v SLA [2019] QDC 192, [127]-[132] (Smith DJCA).

> Aggrieved's medical conditions, including PTSD (going to vulnerability): "The fact is the matter should have been heard in the Toowoomba Magistrates Court when one considers all of the material. The fact is the appellant was the vulnerable one here and was most in need of protection. The respondent was the only witness in his case. His case involved one act. The appellant’s case was far more extensive. She had the children living with her and it would have been extremely disruptive to the children to have the hearing in Noosa. The appellant had another witness living in Toowoomba. It was not in dispute there were more extensive DV facilities in the Toowoomba court as well. Furthermore, there was clear evidence the appellant suffered PTSD which was a weighty factor indeed.": LAF v AP [2022] QDC 66, [54] (Smith DJCA). 

> parties engaging in provocative conduct, two bulls clashing horns, not necessary or desirable: "I have detailed much of the evidence given in this case to highlight the many areas of difference between the versions of CDM and GR.  The findings of the court when making the protection order were adverse to GR’s credit, in that it was found that his evidence was ‘difficult to accept’, ‘vague’ and inconsistent.  There was also a finding that his statements appeared self-serving. On this occasion, on the evidence before me, I find that CDM’s evidence is somewhat unreliable.  For example, his statement that GR was wearing a jacket which he removed to intimidate, when there is no independent evidence that this was so, and indeed CCTV evidence that GR did not have a jacket when he entered the hotel.  I also find it is more probable than not that CDM’s memory of events is not as accurate as he submits.  For example, the changing of the date of the helicopter incident from 25 November to 18 November after sighting GR’s CASA documentation. I am also satisfied that GR’s actions at the Windsor Hotel and during the incident outside his home were somewhat provocative. This is a situation where CDM and his ex-partner (Sally-Anne) have resolved family law issues with regard to the children and there are final orders in place.  GR is Sally-Anne’s step-father.  There is a history of what could be classed as clashes between CDM and GR.  Mr Selfridge (for GR) referred to the situation as two bulls clashing horns – in this case I think, a very apt description. But of course, this is not the test which I have to apply.  I must have regard not only to the grounds of the application (which I have set out above), but the findings of the court which made the original protection order.  In doing so, I must have regard to the wishes of the aggrieved and named person, any contact between the parties and any other relevant matter – that is whether a variation is necessary or desirable. The grounds of the application are the helicopter incidents, the Coffee Club incidents, the Windsor Hotel incident and the Home incident.  For the reasons set out above, I am not satisfied, on the balance of probabilities, that these incidents by themselves would enliven my discretion to vary the protection order. However, that is not the end of the matter.  I am required to take into account CDM’s wishes which is for the variation to be ordered.  I am also required to take into account any contact between the parties.  I also must give consideration as to whether a variation is necessary or desirable to protect the aggrieved from domestic violence. Morzone QC DCJ in MDE v MLG & Queensland Police Service [2015] QDC 151 sets out a three stage process which must have an evidentiary basis in determining this element. These are – ... Having considered all of the evidence before me and the principles set out in Section 4 of the Act, I am satisfied on the balance of probabilities that a variation to the protection order is not necessary or desirable.": CDM v GR [2015] QMC 15, [49]-[57] (Magistrate K Ryan).

> Respondent's contempt for the legal system: "The learned Magistrate spoke of his observations of both the first respondent and the appellant in their demeanour in the witness box which he said assisted him in assessing the credibility or otherwise of the witnesses.  He noted that the first respondent sat turned, hardly acknowledging the question with a glance.  She appeared frightened.  He noted that the appellant, on the other hand, appeared confident and in control and was not overawed or intimidated by the surroundings or his position. After discussing the relevant law the learned Magistrate then went on to make his relevant findings. He said: “I accept that the letter Exhibit 6 to the affidavit of the aggrieved would amount to domestic violence, being a continuation of the stalking behaviour constituted by the text messages. By this letter, the respondent exposes his other side. He denies allegations of harassment. He makes allegations of illegal activity on the part of the aggrieved. He wrote under the hand of his alias. He acts like a spurned lover, the injured party, all the while continuing with the sham of his alter ego, which he continued to early June through instructions to his lawyers. The texts are of themselves, no doubt, an unpleasant and unwanted airing of private moments, and the evidence the slow unravelling of the relationship, which finally appears to have been accepted by the respondent around 18 May 2015. Whilst unwanted and upsetting to the aggrieved they do not amount to the most serious acts of domestic violence to come before the court. This is only relevant to my consideration of the third limb of section 37; and of course, as I often comment, it’s easy to make those comments in the sheer sober light of day in a sterile courtroom and not to be on the receiving end of such behaviour. Back of the question of ‘necessary or desirable’.  The aggrieved was clearly upset in court.  She appeared as the epitome of a ‘beaten woman’.  I hasten to say that this is not the allegation here.  She sat in the witness box on the side, she stared into the air; and she just about tore up the papers that she had in her hands, she was grasping them so tightly.  Even when removed to the vulnerable witness room, she covered her face from the camera (T2-4, lines 45-46, T2-5, lines 1-21)”. Further on he said: “The respondent says the relationship is over.  The respondent is a self-confessed liar who cheated on his wife and maintained an extra-matrimonial affair with the aggrieved. The words ‘necessary or desirable’ are a real conundrum. Weighing the factors, it is a very close call. On the evidence there has been no further communication from the respondent to the aggrieved. I am that satisfied that it is necessary to make an order to protect the aggrieved from domestic violence. (T2-5, lines 29-36)” He went on to note that the first respondent was genuinely traumatised by his behaviour and says that he could not accept the appellant’s word to the effect that he would never contact her again (T2-5, lines 44-45, T2, lines1-3). He referred particularly to some of the statements made on the last page of the nine-page letter and noted that they concerned him.  He noted that there was no agreement reached subsequent to the receipt of his letter and that there was no resolution of the matters he raised (T2-6, lines 26-28). He found that it was not necessary to make the protection order but went on to conclude that he was satisfied in all the circumstances that it was desirable to make the order to protect the first respondent from domestic violence. He made the order in relation to her, but did not take it as far as the application which sough to include her children (T2-6, 30-34). ... Finally, he noted that if the court was satisfied of the other preconditions of a relevant relationship and domestic violence, the court may exercise its discretion to make a protection order imposing appropriate prohibitions or restrictions on the behaviour of the respondent necessary or desirable to protect the aggrieved from the domestic violence. In this case the learned Magistrate clearly placed considerable weight on the past behaviour of the appellant which I must say was quite exceptional behaviour. After finding that it was not necessary to make the order to protect the first respondent from domestic violence he said: “There is no doubt the respondent’s actions in contacting the aggrieved after the relationship was ended, and the betrayal she has endured, no doubt made her feel vulnerable, frightened and concerned.  That might be in part because of the private communications being made public or the thought of some action being brought against her, some perceived action by – being brought against her, sorry, by the respondent or otherwise.  My assessment is that she was genuinely traumatised by the respondent’s behaviour. (T2-5, lines 38-45)” He placed considerable weight on the threatening tone of the letter Exhibit 6 to her affidavit and the fact there had never been any agreement or resolution of the issues raised by him in that letter.  By implication he was concerned, against the background of this matter, that there had been no such resolution. It was incumbent upon the learned Magistrate to look at all of the evidence in this case.  The behaviour of the appellant in this matter was consistent with someone who had maintained control and who had lost that control and who was trying to reassert that control.  This was particularly apparent in the nine-page letter and even by implication in his pathetic attempt to lie his way out of the matter once the court had made an order. This illustrated his contempt for the legal system and was clearly relevant on consideration of the issue as to whether or not it was necessary or desirable to make the protection order to protect the first respondent from domestic violence. Both of these letters illustrated the extent to which he was prepared to go, not just to maintain a lie but to continue to intimidate her. It is of significance that the learned Magistrate noted that she was clearly intimidated and he was the person best placed to make the necessary observations of both of them during the course of their evidence. I am not satisfied that the learned Magistrate erred in finding, on the balance of probabilities, that it was desirable to make the necessary protection order for the protection of the first respondent from domestic violence. Whilst the learned Magistrate did not refer specifically to each of the three stages of the three-stage process referred to in MDE (supra) I am not convinced in any way that he was in error. The first matter the court must assess is the risk of future domestic violence between the parties in the absence of any order. Here the learned Magistrate was entitled to place considerable weight on the behaviour both before and after the issuing of the temporary order, particularly the two letters referred to. The position taken by the appellant in this appeal seems to be that these matters should be ignored, but they both form a critical part of the relevant evidence. They do not show any genuine remorse nor do they show any rehabilitation. The mere fact that he has not contacted her since he was caught out on 9 June 2015 does not advance the issue of rehabilitation any further. One matter which is particularly relevant is the compliance with voluntary temporary orders.  Here he tried to lie his way out of that order and that has to be relevant on this whole question of risk, as does the matter relied upon by the learned Magistrate, namely the unresolved referred to in the nine-page letter. These matters all are sufficient to make the necessary finding that there was a risk of future domestic violence in the absence of any order and they took the matter much further than the mere possibility or speculation of the prospect of domestic violence. Further, in relation to the second stage of the process the court could have regard to the impact his behaviour had on the applicant, as was clearly apparent to the learned Magistrate, and the fact that both live and work in the Atherton Tablelands which is a relatively small community and where there were real opportunities for direct and indirect contact in the future.  The evidence in this case was clearly sufficient to satisfy the second stage. In relation to the third stage, a number of the matters set out in section 4(1) of the Act were relevant. The safety, protection and wellbeing of the first respondent is relevant under paragraph (a) as with the need to treat her with respect and to ensure that the disruption to her life was minimal under paragraph (b). Paragraph (c) is also relevant in terms of holding the perpetrator, being the appellant in this case, responsible for his domestic violence and its impact on the first respondent. The lengths that he went to in writing the nine-page letter and in trying to avoid this application through lies presented via his solicitors to the police, display an ongoing need for him to be held accountable and that can best be done by means of a protection order. Paragraph (d) is also relevant because it was clear to the learned Magistrate that the first respondent was having difficulty coping when giving evidence and it would appear that she would be vulnerable in that regard should there be any further contact of a like nature from him in the future. In summary, there was sufficient evidence before the learned Magistrate to satisfy all three stages as described by Morzone DCJ in MDE (supra) and ground 1 is not made out.": AJS v KLB v Anor [2016] QDC 103, [56]-[62], [76]-[91] (Harrison DCJ).

> abusive and malicious Facebook posts, pattern of behaviour harassing and denigrating the respondent, lack of insight: "The Magistrate considered all relevant factors under section 37 of the Act. Consistent with her findings, I am satisfied to the requisite standard:·     A relevant relationship existed between the appellant and the respondent.[83] · The appellant has committed numerous acts constituting domestic violence against the respondent over the relevant period.[84] Section 8 of the Act defines domestic violence for the purposes of the Act. It includes behaviour by a person towards another person which is emotionally or psychologically abusive,[85] and behaviour that torments, harasses or is offensive.[86]  During the relevant period, the appellant sent abusive and intimidating messages to the respondent, published abusive and malicious Facebook posts, and sent numerous messages denigrating the respondent to others.  The email and text communications between the appellant and the respondent clearly show a pattern of the appellant harassing and denigrating the respondent.  I have summarized some of examples of these earlier in this judgment.  The appellant did not and could not challenge that she had sent the relevant material to the respondent and others.  The appellant sent some of this material in breach of a Temporary Protection Order and after being convicted of earlier breaches of the Temporary Protection Order. · There was a proper basis for the Magistrate finding that a protection order was necessary and desirable to protect the respondent from domestic violence.[87] Proceedings are ongoing in the Federal Circuit Court and/or Family Court.  It is clear from reading the transcript of the original hearing that the appellant continued to express resentment and animosity towards the respondent.  Under cross-examination, the appellant refused to accept that she was in any way at fault for sending or posting the abusive and false material. The appellant’s state of mind at the time of the original hearing was relevant as to whether it was necessary or desirable to make a protection order. At the appeal hearing, the appellant continued to have little if any insight into the fact her behaviour has been unacceptable. She made clear her intention was to pursue the respondent further through the courts. I am satisfied a protection order was and is clearly necessary and desirable to protect the respondent from further domestic violence.": ATD v TBC [2020] QDC 236, [74]-[75] (McGinness DCJ). 

> Abuse of process - collateral advantage; predominant purpose of the application is to effect a change in the current living arrangements of the children of the marriage, with the subsidiary purpose being to obtain protection from any retaliatory acts by the Respondent that may amount to domestic violence should the Aggrieved be successful in the primary purpose of the application: "Should the Aggrieved‘s application proceed to hearing, the issue of whether or not the parties are in a relevant relationship is not in dispute. Depending upon how the Court assessed the evidence of the Aggrieved and her witnesses as well as the Respondent and his witnesses, there may or may not be parts of the Aggrieved‘s evidence that a Court might find was or were an act or acts of domestic violence committed by the Respondent against the Aggrieved. The final element of section 37(1) of the Act requiring proof, namely whether a protection order is necessary or desirable to protect the Agrieved from further domestic violence will depend upon the Court’s assessment of the risk of an act of domestic violence being committed by the Respondent against the Aggrieved in the future having regard to the evidence adduced at the hearing of the application and the factors set out in section 37(2) of the Act. Whilst the Aggrieved’s application and affidavit material enumerates some evidence that the Court might find are acts of domestic violence, in the Courts view, the concern that seems to have brought the Aggrieved to court is the fact that the children of the relationship have been retained by the Respondent. Both in her application and her affidavit material whilst the Aggrieved complains of acts that might constitute domestic violence, in the Court’s opinion the more dominant theme of her application, and the one to which she returns constantly to is what affect the children residing with the Respondent has had on her, whom the children will reside with in the future, whom the children should spend time with, and what retaliation the Aggrieved might suffer from the Respondent if she withholds the children from the Respondent in the future. Of course the Family Law Act 1975 (Cth) provides that each of the parents of a child who has not turned 18 years has parental responsibility for a child[xxx]. Where there are disputes between the parents concerning parental responsibility in relation to children then those disputes should be resolved under Part VII Division 6 of the Family Law Act 1975 (Cth) by courts of competent jurisdiction [xxxi]. Except in very limited circumstances, a Queensland Magistrates Court exercising jurisdiction under the Domestic and Family Violence Protection Act 2012 (Qld) with respect to an applications for a protection order has no power to make orders that affects parental responsibilities of the parents of a child who are in dispute[xxxii]. Having regard to all the facts and circumstances surrounding the Aggrieved‘s application for a protection order including her affidavit evidence, the Court finds that the predominant purpose of the application is to effect a change in the current living arrangements of the children of the marriage, with the subsidiary purpose being to obtain protection from any retaliatory acts by the Respondent that may amount to domestic violence should the Aggrieved be successful in the primary purpose of the application. The Court therefore finds that the Aggrieved‘s application for a protection order to be an abuse of process of the court and should be permanently stayed.": SGLB v PAB [2015] QMC 8, [41]-[44] (Magistrate HW Hasted). 

> Insight, or lackof: 

>> "During the appeal hearing on 28 May 2020, the appellant made oral submissions. He continually blamed the respondent for inciting him to send her the relevant messages, for keeping him from seeing his daughter, and for mentally harming their daughter. I am satisfied he displayed almost no insight into how his ongoing written communications with the respondent would amount to emotionally or psychologically abusive behaviour.37 I have considered the factor under s 91 of the Act. I have also considered the factors under s 37(1) of the Act. An extension of the current order until 23 January 2023 is necessary and desirable to protect the respondent from domestic violence. I confirm the decision appealed against.38": ABF v DZT [2020] QDC 136 [47]-[48] (McGinness DCJ).

>> "It is sufficiently clear from her Honour’s reasons that she considered that there was a risk of future domestic violence based on the past history of violence and the need for future contact and communication, particularly in the context of Family Court proceedings. Her Honour’s conclusion in that regard was, in my respectful view, correct. She reached it having considered the appellant’s evidence that, in respect of past circumstances from which the incidents of domestic violence arose, he would have done things differently, in hindsight. Her Honour was entitled to consider there to be a risk of future domestic violence notwithstanding the appellant’s evidence in that regard, and did not err in doing so in my respectful opinion. The appellant’s evidence before the learned Magistrate in which he said that he did not consider that he was of bad behaviour to MF on 25 October 2015, demonstrated a lack of insight on his part in respect of that conduct.  It is sufficiently clear in my opinion that it was such a lack of insight which her Honour had in mind when referring to the appellant’s personal views of his disciplinary methods not according with those of the broader community.  To that could be added, in my view, the appellant’s apparent delineation between conduct which might nonetheless be violent, but which he considered was not engaged in with a view to hurting the person to whom it was directed.  The appellant did not seem to be able to appreciate that his conduct might be harmful even if engaged in by him without the intention to cause harm. In light of those matters, it was open for the learned Magistrate to conclude that there was a risk of future domestic violence from which the aggrieved may not be protected in the absence of a protection order. In my view, her Honour’s reasons should be understood as having reached that conclusion. Even if I am wrong in interpreting her Honour’s reasons in that way, on a re-hearing of the evidence before her Honour, I myself would reach that conclusion. The learned Magistrate considered that it was appropriate, desirable and necessary for there to be an order in place.  I would respectfully disagree with her Honour’s conclusion that an order was necessary.  Earlier in her reasons, her Honour had referred to the plain meaning of necessary as set out by Magistrate Costanzo in WJM.  The Oxford English Dictionary definition was set out.  It is: “―That is needed; ―Needed to be done, achieved, or present; essential; ―Indispensable, vital, essential; requisite.” In my opinion, the evidence of risk of future domestic violence in the absence of a protection order is not such that it could be found that the protection order is necessary to protect the aggrieved from it. It does not rise that high. Her Honour’s reasons do not, with respect, expose how that conclusion was reached; but upon the facts it was unreasonable and reached in error. However, the finding that the protection order was desirable was a finding which was open, and one which in my opinion ought to have been made. There is, for reasons already explained, identifiable risk. Part of that risk is the appellant’s idiosyncratic view of what may constitute domestic violence, he seemingly still being unable to identify his treatment of MF on 25 October 2015 as falling within that description or of being abusive. In those circumstances, and with the identified ongoing need for interaction between the parties because of their shared child, it is desirable that there be a protection order to protect against future domestic violence. The learned Magistrate was correct in so finding. That aspect of her decision was not affected by error. Although there was error in the finding that it was necessary there be a protection order to protect against domestic violence, because there was no error in the finding that it was desirable that there be a protection order to protect against domestic violence, the learned Magistrate did not err in making an order. However, in my view the learned Magistrate did err in making the order in the terms which she did.": ACP v McAulliffe [2017] QDC 294, [76]-[84] (Horneman-Wren SC DCJ). 

> making police complaints for collateral purpose (going to abusive conduct), lack of insight thereof: "In relation to s 8(1)(b), s 11 defines ‘emotional or psychological abuse’ as follows: “Emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.” Proof of emotional or psychological abuse depends not only on the inherent behaviour but also its effect of tormenting, intimidating, harassing or offending the subject aggrieved.  The same could be said about s 8(1)(f) which requires proof of behaviour that in some way controlled or dominated an aggrieved to cause her to fear for her safety or wellbeing or for that of someone else.  For that reason, evidence of the subjective response of the aggrieved respondent to the offending behaviour is relevant and admissible.[18] Here, as is often the case, the parties were in the midst of an acrimonious marriage break-up where the parties were unable to communicate, Family Court orders and pending proceedings in that court. As ought to be expected, the police acted on the appellant’s complaints by launching appropriate investigations and action. In this context, I think the appellant’s complaints were demonstrably over-reaching, baseless or made for a collateral purpose. This in turn impacted the respondent and those associated with her, namely the children and her partner. Otherwise, the threatening communication with the children was also found to constitute domestic violence calculated to erode confidence and support of the children’s mother, the respondent. The magistrate found, and it was open on the evidence, that the respondent was the focal point of the appellant’s complaining behaviour. It seems to me that the complaints were also variously over reaching, or baseless or made for a collateral purpose. The threatening communication with the children would also constitute domestic violence, as being calculated to erode confidence and support of the children’s mother, the respondent. The magistrate found that the appellant lacked of insight into the inappropriateness of his conduct and its effect on the aggrieved as to constitute domestic violence. This was also obvious from the appellant’s arguments below and on appeal. The magistrate accepted the respondent’s evidence that the appellant’s conduct caused her to live in constant fear that the appellant would act on his threats to kill her; that she was in fear of the police because of the complaints made by the appellant; that she felt he was using the protection order to bully and harass her; and that she was in fear of what the appellant would say to the children.  The magistrate properly considered that the allegations of breaches of the Family Court orders should have been the subject of contravention proceedings in that federal jurisdiction, rather than by police complaint.  He was satisfied that the complaints made by the appellant to the police were targeted and directed towards the respondent and not just a mere desire for compliance with court orders.It seems to me that the appellant’s course of conduct over an extended period between approximately November 2013 and March 2014 evidenced his harassment and intimidation so as to cause the respondent substantial fear for her own safety and that of her children, her partner and his children, as well as feelings of frustration and embarrassment. It was open for the magistrate to find, and compelling on the evidence, that any and all of the appellant’s imputed behaviour was caught by s 8(1)(b) and (f) of the Act. Also his threatening communication with the children fell within s 8(1)(d) of the Act. On the whole, it seems to me that the appellant’s behaviour was clearly capable of amounting to harassment and intimidation under the Act, and His Honour correctly found that the appellant’s behaviour was “domestic violence” within the meaning of the Act. ... It seems to me that the proceeding was commenced and maintained for the substantial and legitimate purpose of obtaining the appropriate remedy under the Act. I cannot discern any improper purpose from the evidence to support the appellant’s contention of an abuse of process.": DMK v CAG [2016] QDC 106 [42]-[49], [64] (Morzone QC DCJ). 

> Extent of animosity that is likely to remain even with family law proceedings, parties are not mature aged people, context of controlling and dominating behaviour: "In my view, each of the instances of controlling behaviour collectively amount to emotional or psychological abuse, as defined. There are a myriad of lesser complaints contained within the respondent’s affidavits. They need not be considered in detail as the matters I have outlined are sufficient to find that domestic violence has been occasioned by the appellant on the respondent. Error having already been established, grounds 2 to 4 inclusive need not be specifically considered and, as noted above, ground 4 was not pursued in oral submissions. However, it is necessary that as part of the independent exercise of my discretion I consider whether it is necessary or desirable that a protection order be made[39] and, if so, the conditions of the order.[40] The grounds pursued and the submissions made on the appeal will assist with determining what conditions are in dispute, although I must still consider what conditions, if any, ought to be included in protection order if one is made. ... Bearing in mind those matters, and in particular the mandatory requirements of section 37 (2)(a) of the Act in light of the findings I have made under the first ground of appeal, I am satisfied that it is both necessary and desirable that a Protection Order be made in favour of the respondent. The recording of 6 April 2019 is a compelling piece of evidence to establish the extent of the bilateral animosity existing in the relationship to that time. It is not only what is said, but the manner of expression which tells compellingly in favour of the grant of the Order. It was of such a level that it is likely to linger for considerable time. There are then the ongoing acts by the appellant which amount to threatening or controlling behaviour and so are acts of domestic violence after the parties separate on that date. Given the extent of the animosity evident in the material, the conduct of family law proceedings is unlikely to reduce the likelihood that the animosity will remain. I was told without demur that the family law proceedings had not reached the point of a conciliation conference at the time of the appeal hearing and it was expected that there was a long way to go in them, with little present prospect of a settlement being reached between the parties. I do not accept the oral submission by the appellant to the effect that as the parties are mature aged people who have now separated, it can be assumed that they will not misconduct themselves.[44] There are two points to be made about that. First, as far as I am aware, they are only separated because of the protection order, and the ouster condition in particular. Second, the history of their conduct tells against any such conclusion. It is true that there are no allegations of any notable instances of physical violence, and whilst that is a consideration, it is not a prerequisite to the making of an order that physical violence be inflicted. In my view, it all leads to the conclusion that a Protection Order is, in the circumstances of this matter, both necessary and desirable. Doing the best that I can to look into the future, and bearing in mind the evidence from the hearing below and the findings I have made, I consider that the period of 5 years imposed by the Magistrate was appropriate. It of course remains open to either party to apply for a variation of that condition if circumstances relevantly change.": MNT v MEE [2020] QDC 126, [90]-[98] (Byrne QC DCJ). 

> threats to kill self, lack of insight thereof, not sought any treatment for mental health issues: "Having found there were acts of domestic violence in this case the remaining question was whether it was necessary and desirable for the order to be made. There are a number of features of this case which demonstrated that an order was necessary: (a)          The appellant committed acts of domestic violence against the respondent; (b)          The appellant did not accept responsibility for his behaviour[130]; (c)          He was not deterred from committing acts of domestic violence in breach of the temporary protection orders;[131] (d)          The respondent lived alone at times on an isolated rural property and was especially vulnerable;[132] (e)          The most serious episode of domestic violence involved the appellant threatening to use a firearm to kill himself. The imposition of domestic violence order will prevent him from holding or obtaining a weapons licence for the duration of the order; (f)          There was every reason to be concerned about the appellant’s mental health. He had not sought any treatment for his mental health issues and seemed to have little or no insight into the extent of them. Further or alternatively a number of features demonstrated that an order was desirable: (a)          The appellant needed to be accountable for his behaviour; (b)          The appellant needed to understand that his behaviour was unacceptable and would not be tolerated by the courts. This was particularly important considering he did not accept he had engaged in domestic violence and he tried to minimise and justify his behaviour on 2 January 2021; (c)          The appellant needed to understand that further acts of domestic violence or breaches of orders of the court would result in immediate action by the police; (d)          The respondent needs to be protected by the court.": TJB v CRC [2022] QDC 67, [94]-[95] (Smith DCJA). 

> Conduct that not strictly amounting to DV (rather, an expression of grief and dealing with grief), but ongoing passive aggressive acts, found that PO was necessary or desirable: "There was no evidence from any of the children that there was domestic violence committed against them and in the circumstances, given that they are adults and would have been able to give evidence, it was within the Magistrate’s discretion to find that there was no domestic violence committed against the children. The Magistrate accepted the respondent had given $50,000 to the appellant as well as repairing a Barina for their daughter ET’s use. She found that the appellant had access to the business accounts and withdrew significant amounts of money and it was therefore necessary for him to put a stop to monies being withdrawn by the appellant for the sake of the business. In the end the Magistrate found that there was no domestic violence by the respondent. She then turned to whether the order was necessary or desirable in the circumstances. The respondent submitted during the hearing that he had no interest in having contact with the appellant and it is true that there has been little contact since a family wedding. The Magistrate found that the risk of the respondent committing an act of domestic violence against the appellant in the future was minimal to non-existent and that the incident at Paluma was an isolated incident that involved yelling, swearing and the taking of property in circumstances where he did not expect to see the appellant on the day in question. He may not have expected to see her on that day but he did expect her to arrive the next day. It was within the Magistrate’s power to find that the respondent did not expect the appellant at the property on that day. However, the Magistrate did not take into account the fact that he went up there deliberately to pervert any attempts by the appellant to attend the property on the following day, or in fact, with the intention to confront her, refuse her entry on the basis of the domestic violence order taken out against her and warn her that she would be in breach of the domestic violence order. It was clearly a deliberate attempt to cause trouble between himself and the appellant in a similar way to the refusal to deliver the furniture for six weeks after an order was made for the delivery, despite police being brought to the property for the furniture to be handed over. Even accepting the Magistrate’s findings that the respondent was not likely to be violent towards the appellant in the future, his passive aggressive acts such as going to Paluma the day before she was due to arrive, refusing to hand over furniture,  and handing over the wrong keys to his solicitors so when the appellant did attend Paulma, she would be unable to enter the cabin, all amount to controlling and emotionally abusive behaviour that has the potential to be repeated during the course of the property settlement. Contact is inevitable during that period. In my view the magistrate erred in finding that it was not necessary or desirable to protect the appellant from future domestic violence.": SHW v ABC [2021] QDC 151, [33]-[38] (Richards DCJ).

> Expert report on respondent's personality traits, unsympathetic, impatient, demanding, controlling: "The evidence of the experts is in my view of assistance but limited in some respects.  Ms McDonald clearly did not believe that the appellant was domestically violent or a controlling person in the past or since. She did not accept the allegations made against the appellant. Her assessment of the appellant through the lens of the therapeutic relationship they were in revealed a bias that significantly affected the weight of her evidence. Dr Jha’s report was informative in that he diagnosed some mental health issues that explained some of the appellant’s actions. He was not privy to all the documents in relation to the domestic violence application so his conclusions that there was a low risk was based on his compliance with his medication rather than assessment of past behaviour. Dr Morris had all the material in front of her and came to the conclusion that he was no risk of offending. She was not a domestic violence expert but nonetheless her opinion carried weight in assessing the risk. She noted that some of his personality traits would present as unsympathetic, impatient, demanding and controlling. The learned Magistrate noted that the aggrieved has experienced domestic violence for a significant period of time, in fact for most of this century. The March 2016 Protection Order which expired on 2 March 2018 involved allegations that the appellant had told her he could "go all Baden-Clay” on her, that he placed his hands around her neck on two occasions and that he had called her abusive names. The Protection Order was made by consent without admissions but nonetheless for an order to be made the Magistrate must have found that there was a basis for making the order on the facts presented to the court. The day that the appellant took FA and attempted to take RA, occurred less than a month after the expiration of the 2016 Protection Order.  On that occasion there was planning involved.  He lay in wait in the garden for two hours before leaving the residence with the child.  He involved his child SE in the behaviour.  SE was prepared to do that at his father’s request.  He has previous convictions for offences of violence.  He has access to weapons. They share children and therefore it is likely that some contact, either direct or indirect, will occur in the future. He has not breached the orders that were in place.  Given his profession one would expect him to obey orders of the Court but it also demonstrates that he complies with the orders while they are in force. The affidavit signed by SE and presented in this hearing indicates, in my view, that he still has the capability of causing emotional distress to the aggrieved and has no hesitation in supplying material to that effect. In my view, given the wide discretion for finding whether an order is necessary or desirable, and focussing on the paramount need for the protection of an aggrieved from domestic violence, the learned Magistrate was within his powers to find that the order was necessary or desirable. I note that the Magistrate made the order to expire five years from the temporary protection order being taken out rather than the original order which was current for ten years. Finally, the appellant maintains that it is not necessary for the order to be made in relation to his children or the aggrieved partner’s children. Given the events of 1 April 2018, the fact that the children were exposed to domestic violence, and the fact that the appellant still lacks insight into the effect involving his children in this dispute might have on them, I find that there was sufficient cause for all those parties to be included on the order.": MRO v Commissioner of Police [2023] QDC 205, [57]-[65] (Richards DCJ). 

> Future interactions between parties, divorce, separation, etc, in context controlling behaviour, etc: "In any event, for the sake of completeness, the Magistrate went on to consider whether a protection order was otherwise necessary or desirable to protect the respondent from domestic violence. First, the Magistrate considered the “relationship” between the appellant and respondent, including the likely electronic and personal contact in the future. The Magistrate did take into account that although the appellant and respondent were divorced, they had young children whom they were co-parenting, and they had a number of interactions about personal and parenting matters up until the hearing. A finding that the subsequent interactions between the parties did not amount to domestic violence does not mean those interactions are irrelevant when considering whether the protection order under s 37(1)(c) of the Act is necessary or desirable to protect the aggrieved from domestic violence. It is clear from the whole of the evidence that the appellant and respondent will be required to have ongoing regular contact to co-parent their young children, and that their relationship after separation is neither amicable nor agreeable. The discourse between them concerning their ongoing relationship and the management and care of the children on 23 December 2021, 6 June 2022 and 24 June 2022 demonstrates the real potential for disagreement, dispute and conflict. This is relevant to the assessment of the probability of future domestic violence as defined in the Act. The Magistrate did not err in taking those matters into account when exercising the discretion, notwithstanding he found they did not amount to domestic violence as defined in the Act. Secondly, the Magistrate relied on the fact that the respondent had alleged the appellant had breached the temporary protection solely for the purpose of assessing “the nature of the relationship and the potential for conflict into the future”: see page 15 of the judgment. The Magistrate made this clear, stating, “I raise this point not to make any findings against the [appellant] with respect to any of those matters”: see page 15 of the judgment. The fact that the respondent is likely to allege a breach of the order in the future may be a source of irritation and conflict at that time and is relevant directly or indirectly to an assessment of the probability of domestic violence in the future. Thirdly, the Magistrate did take into account the appellant’s completion of an anger management course and his efforts to improve his response to the end of the marriage. The Magistrate also took into account that since 7 January 2020, the appellant had engaged lawyers and applied under the Family Law Act 1975 (Cth) to the Federal Circuit and Family Court of Australia (Division 2) for an order concerning parenting and care of the children: see pages 15 and 16 of the judgment. The Magistrate was also correct to say that “[h]owever, those are not matters which taken alone, can adequately address the question of whether an order, in these circumstances, is necessary or desirable”: see page 16 of the judgment. The Magistrate was correct to observe that these matters were relevant but not overwhelming considerations in determining whether the protection order was necessary or desirable. It should also be noted that the parenting order covers different matters to the protection order and does not contain conditions to protect the respondent from domestic violence. The Magistrate’s reasons adequately explain how he took these matters into account as part of synthesising relevant competing considerations when exercising the discretion. More generally, the Magistrate’s comprehensive written reasons describe the conflict between the parties in sufficient detail that a person reading the judgment could understand the factual basis for the decision. His written reasons expose the analysis and reasoning underpinning the determination, explain his findings of fact, his preference for one part of the evidence over other parts, and his analysis and resolution of the conflicts produced by the factual and legal aspects of the case. The reasons adequately disclose the underlying intellectual process giving rise to the conclusions the Magistrate reached concerning the necessity or desirability of making a protection order: see WAJ v CRA [2021] QDC 85 [47]-[49] and ZTP v BBY [2023] QDC 59 [36]-[37]. Fourthly, the Magistrate did take into account “the impact of any order on the [appellant]”: see page 15 of the judgment. The Magistrate properly balanced that consideration with the main object (see s 3) and the principles (see s 4) of the Act. The appellant contends that a protection order is not necessary or desirable when the respondent has complained about “trivial” interactions that do not amount to domestic violence. However, the respondent has also given evidence of serious acts of domestic violence which demonstrate that a protection order is necessary to protect the respondent. If a protection order is otherwise justified, then any subsequent trivial, frivolous, or vexatious use of the order can be dealt with by either the exercise of prosecutorial discretion, an application for a stay of any proceeding as an abuse of process, an application for a variation of the order or an order for costs. Fifthly, the Magistrate did take into account “on the evidence, that the [respondent] has a genuine concern and fear of future conflict with the [appellant]”: see page 15 of judgment. However, that finding is relevant to the exercise of the discretion and is adequately supported by the respondent’s evidence that “he seeks to destroy me any way he can” and “I think that he is going to continue to try and control me and manipulate me in any way, shape or form he can”: see T 1-42.3 & 1-48.10 22/11/2022. Finally, the Magistrate concluded that future decisions concerning the children and division of matrimonial property and “the likely stress and difficulties associated with those matters are such as to provide potential for future conflict between the [appellant] and [respondent]”: see page 14 of the judgment; and “on the evidence,  that it is desirable that an order issue so as to limit the potential for future conflict between the [appellant] and the [respondent]”: see page 17 of the judgment. I am not satisfied that the Magistrate acted upon a wrong principle, nor that he allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or failed to take into account some material consideration in making the relevant findings. In the absence of some legal, factual or discretionary error, the appeal should be dismissed.": BN v LMN [2024] QDC 31, [32]-[38] (Moynihan KC DCJ). 

> ** further contact in family proceedings or unresolved relationship issues, or inexplicable or irrational outburst of severe physical violence, lack of insight thereof: "What I said in Armour about the difficult balancing exercise involving private and public rights and whether the public interest will in appropriate cases outweigh private rights is especially relevant here. Mr Sochacki for the Respondent submits that if the State imposes itself upon this couple and their marriage by making a domestic violence order it would “get in the way’ of the ongoing reconciliation by the parties. I also observed that it may be necessary or desirable to make an order in order to protect an aggrieved person even if one of the grounds for finding that domestic violence has been committed by the respondent has ceased to exist. Also, if one reason why it is decided that a risk of future domestic violence is because of ongoing contact, such as in family court proceedings or because of other unresolved relationship issues, the order may need, in appropriate cases, to extend beyond the likely conclusion of those proceedings or resolution. It may also be necessary or desirable to make an order in order to protect an aggrieved person having regard not only to evidence which establishes that domestic violence has been committed by a respondent, according to the definition of domestic violence, but also by having regard to all the other facts and circumstances disclosed to the court. This may include evidence which is properly before the court but which was not led by or relied upon by the applicant. It is also clear that in some cases it may be appropriate to make an order not only if the relevant risk is ‘likely’ but also if it is ‘possible’. A further factor to consider may be the gravity of the situation. The gravity of a situation could include an inexplicable or irrational outburst of severe physical violence as was the case here. Even if a court considers it could not, on the information before the court, say that it was “necessary” to make the order sought, but that on the other hand, the gravity of the situation strongly suggests that it is “desirable” that a measure of protection be afforded to the aggrieved, an order may still be made. There is also an element of risk assessment and risk management in the judgment the court is called upon to make. The nature and duration of orders may be fashioned to reflect the court’s assessment of evidence of the existence of a risk or possibility of further violence which gives rise to the necessity for, or desirability of, a protective order. However a court will not likely find it necessary or desirable to make a protection order where there is no such risk or possibility. ... I am not persuaded that the respondent has gained sufficient insight into his own behaviours which contributed to him committing domestic violence against his wife. Every marriage needs work and commitment. Not every marriage has the same stressors but every marriage has stressors at various times. At the time of the hearing before me, the respondent was still on a waiting list to see a personal therapist as recommended to him. While the aggrieved was somewhat understandably confrontational and even physical on the occasion, I do not see that she shares any responsibility for the acts of domestic violence committed against her by the respondent. However, there is an even more important consideration and that is the level of violence used. The severity of the violence used by the respondent when persistently confronted about his affair with another woman is of the gravest concern in this case.  As a matter of logic and common sense, the more severe the violence exhibited by a perpetrator, the more risk there is that serious violence will be used again unless there has been an appropriate and sufficient intervention.  The gravity of the situation is that the degree of violence used was inexplicable and irrational. I congratulate the parties on achieving the reduction of stressors on their relationship and for taking the steps they have each taken, but it has not yet gone far enough to say the risk of further domestic violence has been negated or that it does not call for some management. In my view the aggrieved, although not currently in fear as she was on the night, remains vulnerable to more domestic violence albeit her vulnerability appears to be on a diminishing trajectory. The totality of the evidence satisfies me that although the aggrieved does not feel or believe that she needs to be protected from the respondent or from further acts of domestic violence, it is desirable that such protection be ordered.": WJM v NRH [2013] QMC 12 [20]-[26], [51]-[55] (Magistrate Costanzo JJ).

> appellant’s lack of remorse; continuing drug and alcohol which may affect his capacity to self-regulate his emotional state; and the familial relationship between the parties: "As his primary ground of appeal, the appellant challenged whether the making of the order was necessary or desirable. In deciding this the court is required to consider the principles mentioned in s 4. Section 4 requires the DV Act to be administered “under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.” Further, subsection 2(a) requires that people who “fear or experience domestic violence should be treated with respect and disruption to their lives should be minimised.” The issue for the court is not simply whether an aggrieved wants an order to be made, or indeed whether the aggrieved would feel better if an order was made, but whether the making of such an order is necessary or desirable, specifically for the purpose of protecting the aggrieved from domestic violence. The Magistrate refers to the appellant’s past conduct including acts of physical violence and a course of conduct designed to intimidate and frighten the first respondent as sufficient in finding the order is both necessary and desirable.  This was informed by: “[the appellants] lack of remorse, and [the appellant] embarked on the course of conduct which included inappropriate text; his conduct at the mother’s funeral, which included him having a friend read out a eulogy which named [the first respondent] as the cause of the mother’s death; physically grabbing [the first respondent] at the nursing home, causing both physical and emotional harm; a credible possibility that he had, in fact, damaged [the first respondent’s] car whilst it was parked at the nursing home; and, further, no acknowledgment from [the appellant] in his part of the wrongdoing, including other inscrutable statements about retribution from God.” The appellant submitted an order was not necessary as there was no ongoing relationship with his sister, that he only ever saw her accompanied with the parents and both parents have since passed. The Magistrate did not accept this submission and considered there to be sufficient evidence to draw an inference that domestic violence may occur again in the future. The Magistrate referred to several factors including the familial relationship and the fact that the first respondent is the executrix of the mother’s estate, which estate includes the house in which the appellant lives. Further, the appellant is of the belief that there are other wills executed by their mother that he is aware of or had in his possession and to which he is a beneficiary. The Magistrate found that there was likely to be a need for ongoing contact between the appellant and the first respondent. The Magistrate also correctly considered the appellant’s lack of remorse; continuing drug and alcohol which may affect his capacity to self-regulate his emotional state; and the familial relationship between the parties. The Magistrate made a finding of satisfaction as required by a 37(1)(c) of the DV Act and, in the circumstances, it could not be said that there was a failure by the Magistrate to correctly exercise the discretion. I am satisfied that the circumstances justify the conclusion that a protection order was necessary and desirable. The appeal against the grant of that order against the appellant is dismissed.": RBG v BKS & Anor [2021] QDC 234 [79]-88] (Sheridan DCJ). 

> "34. I do note, however, for the guidance of Magistrates in hearings of this kind, that the delivery of ex tempore reasons such as these could be better organised than in this case. The reasons were, as in CF v KT, somewhat discursive. A better approach would be to organise such remarks under headings, such as, for example: the nature of the application; the legislative framework; a summary of the evidence; a summary of the submissions; relevant factual findings and the reasons therefor; and the conclusion. Approaching the matter in this way would have the benefits of imposing the discipline of fleshing out the reasoning process in the mind of the judicial officer, and at the same time exposing the reasons, and necessarily making it easier for the losing party to understand. It may also make the judgment both easier for an appellate court to understand, and possibly more difficult to attack on appeal. I offer this not as a counsel of perfection but hopefully as a practical guide.": HEG v Queensland Police Service & UHB [2024] QDC 134, [34] (Kent KC DCJ). 

> "Fifth, his Honour failed to deal with a central argument advanced by the appellant: that his conduct since the filing of the application for the protection order indicated he had understood that his nephew did not want to continue their relationship in the way it had been conducted in the past.  In that circumstance, why was an order necessary or desirable? Frankly, given the nature of the past relationship, that circumstance strongly indicated no order was required. One of the requirements for adequate reasons is to engage with the principal submissions put by the unsuccessful party.  The reasons did not do so in this regard. I am acutely conscious of the pressure on Magistrates in dealing with the domestic violence list. However, where there are contested facts, and the circumstances are such as to make both the identification of acts of domestic violence and the need for an order open to serious question, it is necessary for properly considered reasons to be given. Those reasons must, at a minimum, cover the following matters:(a)          The Court must make findings of fact on the principal contested factual issues with some explanation of the basis for the finding by reference to the evidence; (b)          The Court must identify expressly what acts are found to comprise acts of domestic violence and why; (c)          The Court must explain the basis for concluding that an order is necessary and desirable in the light of the acts found and the other relevant circumstances; (d)          The Court must explain why the principal submissions made by the unsuccessful party on these issues have been rejected.": FLC v MRT [2021] QDC 264, [57]-[58] (Porter QC DCJ). 

> "10.  In this case the applicant was wrongly prevented from withdrawing her application and compelled by the court to continue the application to hearing. ... 48. The DFVP Act does not make express provision for the withdrawal of a complaint. However, pursuant to s 142 of the DFVP Act, the Domestic and Family Violence Protection Rules apply for a proceeding in a court under the DFVP Act. Those rules do make provision for the withdrawal of an application. Rule 50 provides: “50    Withdrawal of DFVP application (1)           An applicant may withdraw a DFVP application before a DFVP court decides the application in 1 of the following ways— (a)      orally during a proceeding in a DFVP court; (b)           in writing to the clerk of the DFVP court (an application to withdraw). (2)     An application to withdraw must state the following— (a)           the name of the person withdrawing the DFVP application; (b)           the role of the person in the proceeding that is to be withdrawn, including whether the person is, represents or is acting on behalf of, a party to the proceeding; (c)          the proceeding in which the application is to be withdrawn, including the name of the parties and the file number; (d)           the date of the next court appearance for the proceeding, if the person knows the date. (3)           If the clerk of the DFVP court receives an application to withdraw, the clerk must send a copy to the nearby police officer for service on the other parties in the proceeding. (4)           The nearby police officer must personally serve a copy on the other parties in the proceeding. (5)           A DFVP court may decide an application to withdraw without the parties appearing, unless a DFVP court orders otherwise. …” 49. Rule 50(1)(a) confers an apparently unqualified right upon an applicant for a protection order to withdraw the application orally during a proceeding in a Domestic and Family Violence Protection Court before the court decides the application. The balance of the rule is concerned with what the rule describes in short form in r 50(1)(b) as “an application to withdraw”. That is, where an applicant withdraws the protection application in writing to the Clerk of the Court. The use of that short form description in r 50 appears to have resulted in the parties in the court below referring to the applicant’s attempt to withdraw the application for a protection order on 15 October 2015 as an “application” to withdraw, notwithstanding that it occurred orally during the proceeding rather than in writing to the Clerk of the Court. 50. The second respondent submitted that the reference in r 50(5) to the fact that the court may “decide” an application to withdraw carries with it the implication generally that a court must have the power to refuse the withdrawal of an application regardless of whether the purported withdrawal occurs in writing or orally in court.  However the reference to “decide” in r 50(5) is only to a court deciding “an application to withdraw” which, in the context of r 50, only relates to a purported withdrawal in writing to the Clerk of the Court.  The notion that a court may “decide” a purported withdrawal in writing to the Clerk of the Court but has no particular decision to make in the event of a withdrawal made orally during a proceeding is consistent with the structure of r 50’s machinery provisions regarding written applications.  Those provisions herald a need for care in ensuring all parties are made aware of the written application and the potential need to require the appearance of the parties, neither of which needs are likely to be present when an application is made orally during the proceeding in court. 51. It might be that a power to prevent a withdrawal of an application for a protection order can be implied, from the court’s power to control and prevent an abuse of its own process,[10] for the narrow purpose of preventing a withdrawal which is not genuinely made because the applicant is acting under duress.  However that does not fall for determination here because that was not the basis for refusing the withdrawal. 52. The power to refuse a withdrawal was regarded as akin to an unfettered discretion below.  It was there argued and accepted that the power fell to be exercised in the same way as the discretion to grant or refuse an application for leave to discontinue.  Of that discretion Fraser JA observed in Fuller v Toms & Ors,[11] citing Graham J in Covell Matthews & Partners v French Wools Ltd:[12] “The discretion to grant or refuse leave to discontinue is not fettered, but the court ordinarily grants leave if that will not cause injustice to the opponent, since it is ordinarily not desirable to compel a claimant to litigate.” 53. However r 50 is not couched in terms requiring the applicant to seek leave to withdraw an application for a protection order.  Even if a court had a narrow implied power to prevent a withdrawal, which is not genuinely made, that would not provide a basis to imply a power so broad as to equate to an unfettered discretion whether or not to grant leave.  The latter discretion only arises by reason of a legislative requirement, not present here, to seek leave.  In Boal Quay v Kings Lynn Conservancy Board [1971] 1 WLR 1558; [1971] 3 All ER 597 it was relevantly observed by Salmon LJ: “Whenever an application is made to a tribunal or to the courts for that matter, as a rule, there is nothing to compel you to go on with it.  You are entitled to withdraw your application at any stage. … It is quite true that the legislature sometimes, for policy reasons, lays down that an application made under a statute cannot be withdrawn in specified circumstances. … But quite independently of authority it seems to me to follow on principle that in the absence of a statutory prohibition, once you have made an application you can always withdraw it; and once you have withdrawn the application, it ceases to exist.”[13] ... 56. For the above reasons r 50 did not confer an unfettered discretion upon the presiding Magistrate to permit or prevent the applicant to withdraw her application.  There was no cause for concern here that the applicant’s withdrawal was anything other than voluntary.  It was the court’s response which wrongly turned the attempted oral withdrawal into an “application”.  The proper construction of the applicant’s counsel’s oral submission on 15 October 2015 is to regard it as an oral withdrawal during a proceeding in a DFVP court within the meaning of r 50.  What followed ought be regarded as a nullity because the application, having been withdrawn, should have been regarded as no longer being before the court. 57. Even if I am wrong and if the learned presiding Magistrate did have an unfettered discretion whether to permit or prevent the withdrawal by reference to whether injustice would be caused to the respondent, her Honour nonetheless erred in not permitting the withdrawal. The only basis advanced for there being any “injustice” to the respondent was that the respondent would, in consequence of the withdrawal being allowed, be deprived of a then non-existent right to seek costs. What was urged on and accepted by the court as a means of preventing injustice was really just a construct designed to avoid the orthodox application of s 157. 58. It is unnecessary to consider whether the position might be different in the extreme example posited in submissions, of a withdrawal being attempted during a hearing, prior to the Magistrate’s decision.  That was not the situation below.  The listed hearing was still 12 days away when the applicant attempted to withdraw her application. 59. What followed after the refusal of the withdrawal only serves to confirm the nature of the error. On an occasion when the hearing was not listed to proceed the applicant was given no practical choice other than to acquiesce to a hearing on the papers of an application which she no longer sought the granting of. That contorted course was undertaken solely to afford the second respondent an opportunity to pursue a costs order against the applicant. The taking of such a course demonstrates that in truth the “injustice” which the refusal of the withdrawal served to prevent was the correct application of s 157(1) and its requirement that the second respondent would have to bear his own costs.": KAV v Magistrate Bentley & Anor [2016] QSC 46. 

> "The Act does not stipulate the mechanism by which an applicant may withdraw a DVO application. However, its provisions acknowledge a party bringing an application may withdraw it. For example, s 98(d) provides that temporary protection orders cease having effect when the related application for a protection order “is withdrawn”.[25]Further the Rules make specific provision for the withdrawal of a DVO application. Rule 50 relevantly provides: “50  Withdrawal of DFVP application (1)  The applicant for a domestic violence order or the variation of a domestic violence order may withdraw the applicant’s DFVP application before a DFVP court decides the application in 1 of the following ways— (a)     orally during a proceeding in a DFVP court; (b)          in writing to the clerk of the DFVP court (an application to withdraw). …” Note the timing of the oral withdrawal allowed by r 50 is “before a DFVP court decides the application”.  It does not confine the operation of the means of oral withdrawal to some earlier stage of the application.  For example, it does not say, “before the listed day of hearing”. It should also be noted r 50 uses different language for oral and written withdrawals.  An oral withdrawal in court is described as just that.  In contrast a written withdrawal is described as an “application to withdraw”. Beyond sub-s (1) the balance of r 50 deals only with a written application to withdraw, describing its content, procedures for notice by service of it on the parties and, at sub-s (5), providing the court “may decide an application to withdraw without the parties appearing, unless a DFVP court orders otherwise”.  Thus, as was explained in KAV v Magistrate Bentley & Anor,[26] sub-ss (2) to (5) are machinery provisions regarding written applications.  They are provisions calculated at effecting the withdrawal of an application without the need for parties to appear.  Their contemplated need to ensure proper notice of the parties and a potential need to require parties to appear are not needs arising in the context of an oral withdrawal “during a proceeding in a DFVP court”, per s 50(1)(a). [26]         [2016] QSC 46. The reference in r 50(1)(a) to the withdrawal orally in court falls to be read with r 50(1)’s introductory text.  It allows that the applicant “may withdraw”, not merely may “apply” to withdraw.  This does not suggest the court has some discretionary power to exercise over whether or not the withdrawal may occur. Peter’s counsel places reliance upon another rule, r 6, to contend a Magistrate’s continuation of a proceeding, despite a r 50 oral withdrawal, would not be a nullity.  Rule 6 provides a failure to comply with a rule “is an irregularity and does not render a proceeding, a document or step taken in the proceeding a nullity”.  Rule 26 provides to similar effect in respect of a failure to comply with a direction under the Rules.  Peter’s counsel places reliance upon r 6(1). Reliance on r 6(1) is misconceived in the present context.  A failure to comply with r 50 is a failure relating to the method of the withdrawal.  So, for example, if an applicant deploying r 50’s out of court documentary application to withdraw provisions failed to include some of s 50(2)’s requisite content it would not render the ensuing withdrawal a nullity.  In a similar vein, if it is clear an applicant is orally withdrawing the DVO application in court per s 50(1)(a), but in doing so says “I apply to withdraw my application”, rather than “I withdraw my application”, such imprecision of language would not render the act of withdrawal a nullity. It is not a failure to comply with r 6’s procedure for effecting a withdrawal which is the issue here.  The present issue is one of jurisdiction or improper exercise of power. Rule 6 says nothing about the court’s jurisdiction or power to decline or refuse to allow the act of oral withdrawal. Peter’s counsel in this review emphasised r 50 says nothing as to how a court should act in consequence of an applicant’s oral expression of withdrawal in court.  That carries no significance because it is not the court which is ending the proceeding.  The applicant is ending it by orally withdrawing it. It was also submitted it is a matter for the court in managing the proceeding before it as to when it allows the oral withdrawal to be heard.  The orderly management of proceedings by the court could potentially require a presiding Magistrate to momentarily postpone hearing an applicant who attempts to articulate an oral withdrawal.  However, the withdrawal of a proceeding is of determinative significance to the need to continue the proceeding.  An applicant seeking to orally withdraw the application should therefore be heard as soon as is practicable.  To fail to do so would be antithetical to the orderly management of the proceeding. In any event, the act of oral withdrawal did not fail below because it went temporarily unheard by the presiding Magistrate.  It failed because her Honour specifically refused to allow the withdrawal. In KAV v Magistrate Bentley & Anor,[27] I rejected the argument that a Magistrate had the unfettered discretion to refuse an act of withdrawal in court of a DVO application.  As there explained, by reference to longstanding authority, a party who has brought a proceeding has the right to withdraw it, subject to any limitation of that right imposed by statute, such as a requirement for leave.  There is no such statutory limitation or requirement applicable to applicants orally withdrawing their DVO applications in court. In KAV I left open the question whether, and if so in what way, the right of withdrawal was subject to the court’s power to control and prevent abuse of its own processes. For example, it was observed at para [51] of KAV: “It might be that a power to prevent a withdrawal of an application for a protection order can be implied, from the court’s power to control and prevent an abuse of its own process,[28] for the narrow purpose of preventing a withdrawal which is not genuinely made because the applicant is acting under duress.  However that does not fall for determination here because that was not the basis for refusing the withdrawal.” [28]         Citing R v Jell, ex parte Attorney-General [1991] 1 Qd R 48. The reasons in KAV also found it unnecessary to consider the example of a withdrawal being attempted during the substantive hearing but prior to the Magistrate’s decision. As explained at [58] of KAV, that was not the type of event under consideration in that case.  It was, however, the type of scenario which attracted the following observations,[29] of Mahoney JA in Schipp v Herfords Pty Ltd:[30] “I must myself confess to feeling, uninstructed by authority, that in many cases injustice may well be done if a person in the position of a plaintiff can proceed to the point of judgment and then, having decided that he may fail, or having been told that he is about to fail, withdraw his proceeding as of right.  However, “intuitive feelings for justice” have been said to be “a poor substitute for a rule antecedently known, more particularly where all do not have the same intuitions”; and the right of a person in the position of a plaintiff so to withdraw is, it has been said, based upon authorities dating back to the time of Coke.”[31] A similarly extreme scenario was posited by Mitchell J in Frigger v Holbrook,[32] in declining to set aside a notice of discontinuance likely filed with the purpose of avoiding the possibility a filed application for summary dismissal would succeed.     In finding the plaintiffs’ discontinuance was not an abuse of process his Honour observed: “It might well be an abuse of process if, for example, the plaintiffs filed a notice of discontinuance after the master announced his decision to grant summary judgment but before an order was made.  However, the position is different when a plaintiff discontinues before determination of the merits of his or her case.”[33] [32]         [2015] WASC 469. [33]         [2015] WASC 469 [48]. That type of extreme scenario did arise in the criminal jurisdiction in R v Jell; ex parte Attorney-General.[34]  There a trial judge refused to allow the prosecution to discontinue its proceeding at a stage when the hearing of the prosecution had closed, the trial judge had ruled there was no case to answer and all that remained was for the trial judge to direct the jury to return a not guilty verdict.  The judge was held to have the power to refuse the discontinuance in the exercise of his power to control proceedings to prevent unfairness. [34]         [1991] 1 Qd R 48. But such an extreme scenario did not arise in the present case.  The oral withdrawal, of which notice had been given the day before, was clearly attempted to be effected at the outset of the appearance, before the court embarked upon any form of substantive hearing. It is well known to be an occasional source of frustration to legal practitioners that some of their client respondents expend costs preparing to defend DVO applications which end up being withdrawn.  It is frustrating because the power to award costs derives solely from statute and the Act does not confer a power to award costs if a DVO application is withdrawn.  That was obviously the deliberate choice of the legislature.  It evidently did not want sometimes emotionally conflicted applicants to be deterred from bringing applications because it could expose them to costs liability if they have a change of heart and withdraw them. The absence of potential power to award costs for a withdrawn application could not of itself provide a potential basis for rejecting or refusing to hear an oral withdrawal.  Deploying a right of withdrawal of an application before it is substantively heard could not conceivably constitute an abuse of process merely on the basis it deprives a respondent of a chance to argue for a costs order which could only occur in the event of a completed hearing and ensuing dismissal. The only potentially relevant power to order costs under the Act is conferred by s 157, which relates to an application which has continued and is heard and dismissed. Section s 157 provides: “157 Costs (1)  Each party to a proceeding for an application under this Act must bear the party’s own costs for the proceeding. (2) However, the court may award costs against the party who made the application if the court hears the application and decides— (a)          to dismiss the application and, in doing so, also decides that the party, in making the application, intentionally engaged in behaviour, or continued a pattern of behaviour, towards the respondent to the application that is domestic violence; or Note— This type of behaviour is known as systems abuse or legal abuse. It is behaviour in which a person intentionally misuses the legal system, including, for example, by starting court proceedings based on false allegations against another person, as a way to intentionally exert control or dominance over the other person or to torment, intimidate or harass the other person. (b)           to dismiss the application on the grounds that it is malicious, deliberately false, frivolous or vexatious. (3) In this section— party includes an aggrieved.” Section 157 in its present form differs from the content of s 157 at the time of KAV. Below and in this review Peter’s representatives referred to that change in an attempt to distinguish KAV.  There is no relevant distinction arising. ... The above analysis compels the following conclusions. Grace’s solicitor, in what she said from the outset below, was orally withdrawing the DVO application in court.  Grace then had the right to orally withdraw the application.  That right was unfettered by the limitations or requirements of statute. It is unnecessary to conclude whether a withdrawal could be rejected by the court as an abuse of process because, even if it could be, this act of withdrawal was not an abuse of process.  The possibility the application was begun with a retaliatory motive could not logically make the withdrawal of it an abuse of process.  The possibility the withdrawal could have occurred earlier was frustrating. But that it occurred, on notice, at the immediate outset of the listed hearing, did not make the withdrawal an abuse of process.   Nor did the hypothetical possibility a like application could be brought in the future make it an abuse of process to withdraw the existing application. The DVO application was orally withdrawn.  There was no lawful basis to refuse to allow that oral withdrawal.  It was an improper exercise of power to do so and to instead proceed to decide the application by dismissing it.  The withdrawal had the effect that the application was no longer before the court.  What followed was in effect a nullity because her Honour had no jurisdiction to proceed to purportedly hear and dismiss an application which had been withdrawn.": Grace v Peter [2024] QSC 69, [46]-[78] (Henry J).

> "[11] The applicant sought to withdraw her applications during the first mention on 16 December 2015: see rule 50(1) (a) of the Domestic Violence and Family Protection Rules 2014 (the rules).  I have not had the benefit of any submissions on this rule or the effect of it in the circumstances of this case.  The ultimate question is whether the court has any say in whether the withdrawal should be accepted in circumstances where the respondents seek the applications be dismissed and an order for costs under section 157. [12] Under rule 50(1) an applicant can withdraw orally during a proceeding or in writing to the Clerk of the Court. Subsequent sub rules deal with service of written applications to withdraw that have been received by the Clerk of the Court. [13] Sub rule 50(5) then provides that a court “may decide an application to withdraw without the parties appearing unless [the court] orders otherwise”. Rule 50 as a whole seems to be directed to written applications to withdraw that have been received by the Clerk of the Court prior to a court date. It also contemplates that a court has the power to decide the “application to withdraw” after service on the opposing party whether or not the parties are required to appear. The rule is silent about oral applications to withdraw “during a proceeding in a DFVP court[2]”. By inference at least, I take the view that a court may hear and decide such applications.  If that was not the case, it could lead to a manifestly unjust result by preventing an order being made under section 157 where an opposing party, who is entitled under section 146(1) to be represented by a lawyer, has incurred legal costs.  Section 157 requires the application to be “dismissed” on various grounds for a costs order.  In my view, the rules should be amended to make it abundantly clear[3]. ...": MHH v LAN [2016] QMC 1 (Magistrate G Lee). 


[DV3] Coercive Control - Self-Harm Threats - Criminal Liability

> See, Latrell & Latrell [2024] FedCFamC1F 211 <https://jade.io/article/1076806>: "52. The wife says that the principles in Kennon v Kennon[8] are relevant where she says that her contributions were made more onerous throughout the marriage by reason of the husband’s physical violence, threats and coercive control. ... 122. The wife particularised to Dr B the family violence in the same details as evident in her affidavit, comprising of prolonged coercive control, a pattern of manipulative, controlling and intimidating behaviours aimed to isolate people from their supports; the denial of autonomy and independence and a propensity to regulate everyday behaviour. 123. Similarly, the wife particularised the husband’s threats to kill or shoot her and that the husband kept weapons on the property.  She described the husband as being capable of sadistic acts.  The wife particularised instances of sexual violence where, without consent, might legally constitute rape. ... 162. Consequently, it follows on my findings that the husband poses an unacceptable risk of harm to the children should he have any direct or communicative relationship with them. I find that the husband is a person of inherent violent disposition and that he has unreasonably perpetrated violence on the children being of a physical, sexual, emotional/psychological types. Similarly, I find that he has perpetrated violence on the wife of a physical, sexual, emotional/psychological, and coercive/control type. ... 201. The wife relies on the principles Kennon (supra).  She gives evidence that throughout the marriage she was subjected to physical, emotional, psychological, financial, and sexual violence as detailed above and from the husband.  She was subjected to isolation from family and other support by the husband thereby making her contributions more onerous given the relative lack of assistance provided by the husband.  She was deprived of medical care or attention during her three pregnancies and post the birth of those children.  She and the children were deprived of medical attention and dental care during the marriage.  She was subjected to physical assault whilst providing homemaker contributions.  She was subjected to ridicule and derogatory taunts whilst undertaking household duties.  She was monitored personally and financially by the husband whilst undertaking household duties such as shopping.  She was required to provide household duties on a limited supply of utilities such as water and electricity.  She was given limited allowances of money in order to provide household necessities and to feed the children. 202. I am able to find that the wife’s substantial contributions were made more arduous by the behaviour of the husband particularised above. ..."


[DV4] Misc

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