AB (a pseudonym) v CD (a pseudonym)
[2024] QMC 11
•1 August 2024
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
AB (a pseudonym) v CD (a pseudonym) [2024] QMC 11
AB (a pseudonym)
PARTIES:
(Aggrieved)
v
CD (a pseudonym)
(Respondent)
FILE NO/S:
MAG-00123363/23(0)
DIVISION:
Magistrates Court
PROCEEDING:
Domestic Violence – Application for a Protection Order
ORIGINATING COURT:
Brisbane
DELIVERED ON:
1 August 2024
DELIVERED AT:
Brisbane
HEARING DATE:
27 March 2024
MAGISTRATE:
J Pinder
ORDER:
THE APPLICATION FOR A PROTECTION ORDER IS DISMISSED.
CATCHWORDS:
Domestic Violence Application for a Protection Order.
Domestic and Family Violence Protection Act (2012) s.145 and 37SOLICITORS:
Ms A Frizells instructed by Paramount Legal (Aggrieved/Applicant)
Mr N.J Laing instructed by JP Family Law (Respondent)
INTRODUCTION
The aggrieved applicant (AB) and the respondent (CD) were married on 1 March 2014 and separated on 6 June 2022. They continued for a reasonably lengthy time to “live under the same roof” through until 20 July 2023, when the respondent left the former matrimonial home.
The respondent vacated on 20 July 2023. The respondent’s departure was not voluntary, he left consequent upon this court making a temporary protection order including an ouster provision against him on the 18 July 2023.
This court in respect of applications brought pursuant to the Domestic and Family Violence Protection Act 2012 (the Act) (and informed by the objects and principles of the act)[1] exercise a serious and important function in cases to prevent domestic violence and to protect those who experience domestic violence. This is not one of those cases.
[1]Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4.
APPLICATION FOR PROTECTION ORDER
The application for a protection order seeks the standard conditions[2], (i.e. that the respondent be of good behaviour towards the aggrieved and named children and not commit an act of domestic violence) and the following additional conditions, and additional conditions that –
[2] Ibid, s 56.
1) An ouster condition from the matrimonial home.
2) The respondent not to enter or attempt to enter or approach within 200 meters or approach the premises.
3) The respondent not to follow or approach the aggrieved.
4) The respondent not to contact or ask someone else to contact the aggrieved.
The respondent opposes the making of any order.
THE PARTIES’ MATERIAL
Directions orders were made for the parties’ evidence in chief to be way of affidavit or statements.
In compliance with those orders both the aggrieved and the respondent filed and served material and seek to rely on that material upon the hearing of this application.
APPLICANT’S MATERIAL
The applicant’s material is:
i. Application for protection order filed 18 July 2023.
ii. Affidavit of the aggrieved (affirmed 26 September 2023 and filed 27 September 2023)
RESPONDENT’S MATERIAL
The respondent’s material is an affidavit by the respondent sworn 30 November 2023 and filed 8 December 2023.
THE HEARING
The hearing proceeded on 27 March 2024. The parties were represented by counsel:-
· Ms A.J Frizells for the aggrieved.
· Mr N.J Laing for the respondent.
Both witnesses who had deposed affidavits in the proceeding (the aggrieved and the respondent) were cross examined.
Upon an initial inquiry by the court in relation to any family law orders the aggrieved was given leave to read and file exhibit 1 – An order of the Federal Circuit Court of Australia dated 13 October 2023.
The aggrieved also, without opposition, was given leave to adduce additional evidence in chief, being the tender of exhibit 2 a photograph of a plastic bottle.
At the conclusion of the hearing both counsel conveniently provided written outlines of argument to assist the court.
EVIDENTIARY PROVISIONS
The evidentiary provisions in respect of the hearing of an application for a protection order are contained in s 145 of the DFVPA which provides;
(1) In a proceeding under this Act, a court—
(a) is not bound by the rules of evidence, or any practices or procedures applying to courts of record; and
(b) may inform itself in any way it considers appropriate.
(2) If the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.
(3) To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order.
In hearing and determining an application for a protection order this court must therefore:
Be satisfied of the relevant matters on the balance of probabilities and;
Apply a more relaxed test in respect of the admissibility of evidence.
LEGISLATIVE TEST – MAKING A PROTECTION ORDER – S37
Section 37 of the DFVPA relevantly provides:
(1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that —
(a) A relevant relationship exists between the aggrieved and the respondent; and,
(b) The respondent has committed domestic violence against the aggrieved; and,
(c) The protection order is necessary or desirable to protect the aggrieved from domestic violence —
(2) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence—
(a) the court must consider—
(i) the principles mentioned in section 4; and
(ii) if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the respondent’s failure to comply with the order
Section 37 requires the court to be satisfied of the three requisite elements prescribed in subsection 1 before exercising the discretion to make a protection order. As noted the court need only be satisfied of a matter on the balance of probabilities and the applicant bears the onus to prove that the requirements have been satisfied.
RELEVANT RELATIONSHIP(A)
The respondent concedes[3] that a relevant relationship existed between he and the aggrieved. The parties cohabited before marriage, were married on the 1 March 2014 and remained cohabiting until the respondent was outstared from the former matrimonial home on the 20 July 2023.
DOMESTIC VIOLENCE(B)
[3] Respondent’s Submissions, para 14.
Section 37(1)(b) of the DVFPA requires that the applicant prove that the respondent committed domestic violence against the aggrieved.[4]
[4]Domestic and Family Violence Act 2012 (Qld) s37(1)(b).
Section 8 of the DVFPA provides a board definition of “domestic violence” which includes behaviour that is physically or sexually abusive, emotionally, psychologically, or economically abusive, threatening or coercive, or behaviour in any way controls or dominates another person causing fear.[5]
[5]Domestic and Family Violence Act 2012 (Qld) s8.
The aggrieved in seeking to prove the respondent committed domestic violence against her, in the application, affidavit material and evidence at the hearing relies upon the following alleged instances of domestic violence:
1. On unparticularised occasions throughout the relationship when he was verbally abusive towards her when he would raise his voice, clench his fists whilst raising them toward her and threaten to hit her.
2. On 12 February 2023 when he slammed the door on her and said something like “fuck you bitch”.
3. On other unparticularised occasions when he would get angry and slam doors draws and cupboards.
4. Occasions when the respondent was angry and yelled at the children;
· On 2 May 2023 – banging on a cupboard.
· On 15 June 2023 – yelling “you can put yourselves to bed”.
· On 11 July 2023 when a child had lost a jumper – yelling “I told you so many times to stop crying”.
5. On unparticularised occasions when the children where in the respondent’s care – prohibiting the children from looking at talking to or interacting with the aggrieved.
6. On unparticularised occasions checking on where the aggrieved was in the home.
7. On various unparticularised occasions being financially controlling of the aggrieved.
8. On 24 June 2023 – yelling and swearing at the aggrieved, throwing an empty water bottle at her and then threating her by saying “I’m going to fucken kill you, you cunt.”
9. On 8 July 2023 – by swearing at the aggrieved and accusing her of taking his circular saw.
THE PARTIES’ EVIDENCE
Each parties’ evidence-in-chief is by affidavit. Additionally, evidence in cross examination in the hearing, of the aggrieved and the respondent respectively is to be considered.
EVIDENCE OF THE AGGRIEVED
The evidence in chief of the aggrieved subject to leave having been given to tender exhibit 2 a photo of a plastic bottle is confined to her affidavit affirmed on 26 September 2023.
The aggrieved’s allegations of acts of domestic violence committed by the respondent toward her or the children are contained within paragraphs 8-27 of that affidavit and are summarised above in paragraph 22 of these reasons.
The aggrieved was cross examined at length about those alleged acts of domestic violence committed by the respondent.
EVIDENCE OF THE RESPONDENT
The respondent’s evidence in chief is similarly limited to the single affidavit sworn by him on 30 November 2023. In that affidavit the respondent responds to the allegations of domestic violence as follows:
i. In respect of the alleged incident 24 June 2023 at paragraph 9.
ii. Incident 24 June 2023 – at paragraph 9.
iii. Incident 8 July 2023 – at paragraph 10 and 11.
iv. The unparticularised acts summarised in paragraph 24 and above in paragraph 11.
v. On the unparticularised allegations of financially controlling behaviour at paragraphs 24 and 14.
vi. On the unparticularised allegation of financially controlling behaviour in paragraphs 14B and C, 15, 17 and 18.
The respondent was similarly comprehensively and robustly cross examined by the aggrieved’s counsel.
EVIDENCE OF THE AGGRIEVED – CROSS-EXAMINATION
The aggrieved is a person for whom English is not her first language. I draw no adverse inferences from that and throughout the cross-examination of her she clearly had no difficulties either understanding the questions or responding in English. The aggrieved conceded she had had the benefit of legal representation and advice in respect of preparing the application for a protection order and her affidavit.
The evidence of the aggrieved is critical in establishing on the balance of probabilities the particularised alleged acts of domestic violence committed by the respondent. The respondent in both his affidavit (evidence in chief) and his cross-examination adamantly denies the aggrieved’s allegations. There were no other witnesses called by either party and an acceptance or rejection of each witness’s evidence is underpinned by it being an “oath on oath” case.
Having observed the aggrieved give her evidence and carefully considering her responses I found her to be a less than impressive witness. In responding to questions in cross-examination, she often appeared evasive, was reluctant to concede she was mistaken, and on occasions failed to give convincing explanations for her conduct or actions.
By way of example:
· At paragraph 17 of her affidavit, she asserted she was only allowed to work during school hours – but reluctantly conceded under cross-examination that she worked outside those hours and in a number of jobs.[6]
[6] Transcript of Proceedings, AB v CD (Brisbane Magistrates Court,123363/23(0), Magistrate Pinder, 27/05/2024), pages 1 – 12 (25), pages 1 – 13 (45).
· At paragraph 19 asserting that she was never permitted to have her own money – but conceding that was untrue in cross-examination.[7]
[7] Transcript pages 1 – 14 (1), pg 1 – 15 (5).
· Tellingly accepting in response to a question that she was free to do what she liked with her own money, she responded “that’s correct.”[8]
[8] Transcript pages 1 – 16 (10).
· At paragraph 18 of the affidavit asserting the respondent was controlling – by taking a role in America in 2014 – yet clearly conceding that that was a family decision and that she was supporting him.[9]
[9] Transcript pages 1 – 17 (10 – 40).
· In her application asserting that on 23 June 2023 she had no choice but to leave and stay with a friend – but conceding that she regularly undertook social visits and had on that evening planned to stay with a friend.[10]
[10] Transcript pages 1 – 20 (4 – 40).
· Not accepting that she had left the kitchen in an untidy state – notwithstanding clear photographic evidence to the contrary.
· In respect of the water bottle the aggrieved asserts was thrown by the respondent toward her – having no proper explanation as to why the photograph Exhibit 2 was not produced by her prior to the commencement of the hearing.[11]
[11] Transcript pages 1 – 24 (5).
· Having asserted the photograph of the water bottle was taken the next day and the photograph emailed to her lawyers – being unable to provide evidence of that fact.[12]
[12] Transcript pages 1 – 24 (45).
· In respect of the alleged threat to kill made by the respondent on 24 June not accepting the proposition that she responded “that if he spoke to me nicely I would clean it” but then conceding when referring to para 25 of her affidavit that was correct.[13]
[13] Transcript pages 1 – 26 (15).
· Having asserted she attended and made a complaint to the police in respect of the respondent’s threat to kill providing no proper explanation for her returning to the home the following day and no proper explanation for not bringing the application for the protection order immediately after the alleged threat to kill was made.
· Again, after asserting that in 8 July 2023 incident involving allegations of domestic violence and threats by the respondent – continuing to remain at the property and again not immediately filing the application for a protection order.
· Accepting that on 12 July 2023 she received correspondence from the respondent’s lawyers with proposals in relation to matrimonial property matters – and failing to raise the alleged incidents on 24 June 2023 and 8 July 2023 in correspondence from her solicitors.
· Providing no proper explanation as to why, having regard to the allegations of acts of domestic violence previously on 24 June 2023 and 8 July 2023 not proceeding to bring an application for a protection order until 18 July 2023, after receiving correspondence from the respondent’s lawyers on 12 July 2023.[14]
· Having accepted that an ouster order was secured from this court on 18 July 2023 returning home on that date and continuing to reside in the same residence with the respondent until he finally vacated on 20 July 2023 (at the time the Queensland Police Service attended and served the documents).[15]
[14] Transcript pages 1 – 29 (45), pg 1 – 30 (15).
[15] Transcript pages 1 – 31 (20 – 45).
The aggrieved was unimpressive as a witness and much of her evidence was problematic. She gave the impression she would say anything to advance her case and was reluctant, even when confronted with a contrary version in her own affidavit evidence, to concede that she was incorrect. She was unable to explain satisfactorily how, she alleging that she had been threatened to be killed by the respondent, would return and remain at the property with him. Further, how in instructing her lawyers to respond to correspondence from the respondent’s lawyers dealing precisely with the issue of the difficulties of living under the one roof, she did not raise the alleged acts of domestic violence from 24 June 2023 and 8 July 2023.
I do not accept the evidence of the aggrieved in relation to both the unparticularised and very general allegations of domestic violence and reject her evidence of the specific examples alleged to have been committed by the respondent on 12 February 2023, 2 May 2023, 11 July 2023, 24 June 2023, and 8 July 2023.
EVIDENCE OF RESPONDENT – CROSS-EXAMINATION
The respondent’s evidence in chief is contained in his affidavit.
He was robustly and at length cross-examined by the aggrieved’s counsel. I consider he gave his evidence in a direct and straightforward manner and where appropriate conceded where he had no more detailed recollection of an incident. He accepted, for example, that in respect of the interaction following his complaints about the dirty kitchen, he was angry and raised his voice.[16]
[16] Transcript pages 1 – 43 (5).
He accepted that he had used profanity, swearing at the aggrieved.[17]
[17] Transcript pages 1 – 46 (20).
He accepted that he had thrown a water bottle that had fallen from the footwell of the aggrieved’s car back into the car.[18]
[18] Transcript pages 1 – 47 (15 – 25).
It was put to him that the photograph of a plastic water bottle which was annexed to his affidavit was in fact fabricated and not the bottle in question. The aggrieved’s counsel called for the production of his phone to prove his evidence as to the date and time the photo was taken, and after an adjournment at the conclusion of his cross-examination, that in fact was produced with a timestamp on the photo corroborative of the date and time the photo was taken being 24 June 2023.
Whilst it was put to him that the device could be manipulated to change the date and time and that the photo was not taken at 5:40PM on 24 June 2023, my assessment of his reaction under further cross-examination was that he was genuinely unaware of that capacity, and I accept him as being completely truthful and accurate as to the time and date the photograph was taken.
I find the respondent to be an accurate, reliable, and truthful witness. I accept his evidence where it differs from the aggrieved’s evidence without hesitation. I accept his evidence and he adamantly denied each of the particularised allegations of domestic violence by the aggrieved. I find on the balance of probabilities having rejected the aggrieved’s evidence and accepting the respondent’s evidence that no acts of domestic violence were committed by the respondent towards the aggrieved.
DISPOSITION
The aggrieved has failed to satisfy me on the balance of probabilities (as required by s 37(1)(b)), that the respondent has committed an act or acts of domestic violence against the aggrieved or named children, therefore the application must fail.
The application for a protection order is dismissed.
Magistrate J. Pinder
Dated 01/08/2024
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