EVE v ETT

Case [2021] QDC 161

DISTRICT COURT OF QUEENSLAND

CITATION:

EVE v ETT [2021] QDC 161

PARTIES:

EVE

(Appellant Respondent)

v

ETT

(Respondent Aggrieved)

FILE NO:

D480 of 2021

DIVISION:

Appellate

PROCEEDING:

Domestic Violence Order Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

18 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2021

JUDGE:

McGinness DCJ

ORDER:

1. Appeal dismissed.

2. EVE pay ETT’s costs fixed in the amount of $13,000.
CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to section 164(a) of the Domestic and Family Violence Protection Act 2012 (Qld) – where a Protection Order was made under section 37 of the Domestic and Family Violence Protection Act 2012 (Qld) – whether the Magistrate erred in fact and/or law by finding that the appellant had committed an act/s of domestic violence against the respondent – whether the Magistrate erred in law by failing to properly consider whether it was necessary or desirable to make a domestic violence order.
LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 8, 11, 37, 56, 57, 145, 164, 168
CASELAW:

BAK v Gallagher (No. 2) [2018] QDC 132
BBB v RAB [2006] QDC 080
Briginshaw v Briginshaw [1938] 60 CLR 366
DGS v GRS [2012] QDC 74
D v G [2004] QDC 477
Edwards v Noble (1971) 125 CLR 296
HZA v ZHA [2018] QDC 125
LKF v MRR [2012] QDC 355
Teelow v Commissioner of Police [2009] 2 Qd R 489
COUNSEL:

EVE is self-represented

R Gordon for ETT
SOLICITORS: Best Wilson Buckley Family Law for ETT

Introduction

  1. This is an appeal from a protection order made under the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) in the Magistrates Court at Brisbane on 18 December 2020, naming the respondent to this appeal (ETT) as the aggrieved and the appellant to this appeal (EVE) as the respondent. On that date, the magistrate granted ETT a protection order for five years. The order includes conditions that EVE must be of good behaviour towards ETT and their children, not commit domestic violence against him or the children and not expose the children to domestic violence. EVE is prohibited from entering, remaining at, or approaching within 100 metres of the former matrimonial property, and from following or approaching within 100 metres of ETT at any place.

    Relevant Legal Principles

  2. Section 164 of the Act relevantly provides:

    164 Who may appeal

    A person who is aggrieved by any of the following decisions of a court may appeal against the decision—

    (a)a decision to make a domestic violence order;

    (b)a decision to vary, or refuse to vary, a domestic violence order;

    (c)a decision to refuse to make a protection order;

    (d)if the person sought a temporary protection order in a proceeding under this Act—a decision to refuse to make the order.

  3. The appeal is to be decided on the evidence in proceedings before the Court that made the original decision. The Appellate Court may order that the…

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EVE v ETT [2021] QDC 161
Case
[2021] QDC 161
Decision Date

CaseChat Overview and Summary

In this appeal, EVE contests a decision made by the magistrate under the Domestic and Family Violence Protection Act 2012 (Qld) to grant ETT a five-year protection order against her. The dispute arose from a deteriorating relationship between the parties, which led to their permanent separation in April 2018. The magistrate found that EVE had committed domestic violence against ETT and that a protection order was necessary or desirable to protect him from further abuse. EVE argues that the magistrate erred in fact and/or law by finding that she had committed acts of domestic violence against ETT and by failing to properly consider whether it was necessary or desirable to make a domestic violence order.

The court needed to determine whether the magistrate's findings were reasonably open on the evidence presented. The magistrate particularised 21 incidents of alleged domestic violence and was satisfied that 12 of those incidents occurred. The court considered the evidence given by both parties, the inconsistencies in EVE's evidence, and her demeanour in the witness box. The court concluded that the magistrate's findings were supported by the evidence and that EVE's appeal should be dismissed.

The court held that the magistrate correctly applied the relevant principles and was satisfied on the balance of probabilities that EVE committed domestic violence against ETT. The court found that the 12 incidents amounted to a combination of physical, verbal, and psychological/emotional abuse within the definition of domestic violence under the Act. The court also held that the magistrate properly considered whether a protection order was necessary or desirable to protect ETT from further abuse.

In conclusion, the appeal was dismissed, and EVE was ordered to pay ETT's costs fixed in the amount of $13,000. The court found that the magistrate's decision to grant ETT a five-year protection order against EVE was justified based on the evidence presented.

Orders

Orders of the court

1. Appeal dismissed.

2. EVE pay ETT’s costs fixed in the amount of $13,000.

Background

Background to the litigation

The appeal is to be decided on the evidence in proceedings before the Court that made the original decision. The Appellate Court may order that the appeal be heard afresh.[1] The appeal is by way of a rehearing on the evidence given in the proceedings before the magistrate. The Court must have regard to all of the evidence before it and determine whether the order made by the magistrate is the result of some legal, factual or discretionary error.[2] The Appeal Court must conduct a real review of the trial and the magistrate’s reasons, and make its own determination of relevant facts and issues from the evidence giving due deference and attaching a good deal of weight to the magistrate’s view. In the event that error is demonstrated, the court must consider the whole of the evidence to determine whether the orders made are nonetheless justified. The question is not whether the Appellate Court may have made a different finding but rather, whether the magistrate’s finding was reasonably open on the evidence.[3] [1]Section 168 of the Act. [2]See Teelow v Commissioner of Police [2009] 2 Qd R 489.[3]Edwards v Noble (1971) 125 CLR 296, [304].Relevant Background EVE and ETT commenced living together around 1 March 2004 and were married in 2006. They have four children aged 14, 11, 9 and 7 years. Their relationship began to deteriorate in 2016 to a point where the parties separated permanently on 10 April 2018 under the same roof.[4] On 6 August 2019, EVE moved out of the matrimonial home which was located on a cattle property at Bymount, north of Roma, owned and managed by ETT (the property).[5] EVE and ETT shared custody of the children. [4]Transcript 1-36, [43]-[44].[5]ETT’s Affidavit filed 25 May 2020 [3], [9] (‘ETT’s Affidavit’). On 14 September 2019, EVE turned up at the property unannounced and refused to leave. ETT decided he had no choice but to leave the property. He spoke with solicitors. On 18 September 2019, ETT filed an application for a protection order naming EVE as the respondent in the Roma Magistrates Court. The grounds of the initial application for a protection order included allegations of physical, psychological and emotional domestic violence. EVE left the property after 6 days on 20 September 2019. On 23 September 2019, the magistrate at Roma made a temporary protection order (TPO) in EVE’s absence. The TPO contained a condition prohibiting EVE from remaining at, entering, attempting to enter, or approaching the property where ETT lived. On 7 October 2019, EVE again returned to the property and remained until 10 October 2019 without ETT’s consent. The TPO was served on EVE at the property on 9 October 2019. On 15 October 2019, EVE and ETT attended court in relation to the TPO which remained in place. The magistrate reiterated to EVE she could not attend the property except on one occasion to remove her belongings. Despite the terms of the TPO, EVE attended the property at approximately 11:30am. EVE continually refused to leave. ETT eventually called police. They attended and tried to reason with EVE. When she refused to cooperate, they arrested and charged her with breaching the TPO.

Evidence

Evidence Before The Court

ETT deposed the incidents of alleged domestic violence caused him to feel intimidated by, and fearful of EVE due to her unpredictable and explosive behaviour. He found her conduct to be harassing and derogatory. On each occasion EVE attended the property in breach of court orders, the children were exposed to her erratic behaviour and police having to remove her from the property.[16] ETT denied he had ever assaulted EVE.[16]ETT’s Affidavit [72].Summary of EVE’s evidence EVE deposed that ETT told her he wanted a divorce in April 2018. They remained living separately under the same roof. In June 2018, ETT had an unexplained absence for some weeks and did not contact her or the children. He agreed in October 2018 to move out. He then told her in late 2018 she was not to return to the house. EVE returned home in January 2019 after a panicked call from her daughter stating her 4-year-old son had almost drowned in the dam at the property. On 20 March 2019, after an argument about her son’s birthday party, she made a complaint to police that ETT had assaulted her on several occasions. She did so because she was concerned about his mental health and about firearms being kept at the property. She deposed that ETT had admitted to the alleged incidents of assault to police.[17] Police asked her whether she wanted a protection order, but she did not see the point. Police attended and spoke to ETT who gave them his guns. EVE deposed that ETT on separate occasions:· Bent her fingers back after she questioned him about $40,000 worth of cattle he had given to his cousin.· Placed clothing over her face and bent and jammed her arm in a sliding door.· Kicked her in the shins with steal cap boots when she placed a caveat over the sale of part of the property.· Struck her on the arms and legs with a broken piece of kitchen cabinetry.· Dragged her by the arm, kicked her in the stomach and threw a pillow at her head which nearly knocked her down the stairs.[17]EVE’s Affidavit filed 9 July 2020 [11] (‘EVE’s Affidavit). ETT denied under cross-examination that he had assaulted her.[18] There was no evidence to support EVE’s evidence that ETT had admitted assaulting her to police. I note police did not apply for a TPO against ETT at the time.[18]Transcript 1-23, [40] – 1-24, [33]. EVE denied she was ever emotionally, physically, or verbally abusive towards ETT. She admitted some of the incidents occurred such as throwing food at ETT on the same occasion he kicked her. She admitted arguing with ETT with a knife in her hand on 3 August 2019 but said she had just taken it from the dishwasher and may have inadvertently waved it around. She denied intending to harm herself. She referred to a letter from Dr Evans who assessed her on 3 August 2019, after police organised a mental health assessment. Dr Evans opined EVE was not at risk to herself or others, and that the incident was an isolated situational crisis.[19][19]EVE’s outline of argument attachment GA-07.

Decision

Reasons for decision

EVE deposed that the children were not in need of protection from her. She had always been their primary carer, she had worked in teaching and child protection for many years, and they had not witnessed her commit domestic violence. For the purposes of this appeal, it is unnecessary to summarise her affidavit material or evidence further at this stage. Some of it is referred to below where relevant.Review of Magistrate’s Decision and Reasons On 18 December 2020, the magistrate made a protection order for five years naming ETT as the aggrieved and EVE as the respondent with the same conditions as in the TPO made on 26 March 2020. On 3 February 2021, the magistrate handed down his reasons. The magistrate referred to the relevant principles to be considered when applying the Act.[20] He correctly directed himself that the court must be satisfied on the balance of probabilities bearing in mind and applying the Briginshaw principle.[21] He then considered the three limbs requiring proof before a court can make a protection order under section 37 of the Act.[20]Section 4 of the Domestic and Family Violence Protection Act 2012 (Qld) (‘the Act’). [21]Section 145 of the Act; Reasons [45]-[54]. Section 37 of the Act relevantly provides as follows:37 When court may make a protection order(1)A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—(a) a relevant relationship exists between the aggrieved and the respondent; and(b) the respondent has committed domestic violence against the aggrieved; and(c) the protection order is necessary or desirable to protect the aggrieved from domestic violence.(2)In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence—(a) the court must consider—(i)the principles mentioned in section 4; and(ii)…Relevant relationship (section 37(1)(a) of the Act) It is not controversial that the first limb was satisfied. ETT and EVE agreed they were in a relevant relationship at the time.[22][22]Section 37(1)(a) of the Act.Domestic Violence (section 37(1)(b) of the Act) The magistrate particularised 21 incidents of alleged domestic violence in his reasons. He was satisfied to the requisite standard that 12 of those incidents occurred. After considering all the evidence, the magistrate was satisfied EVE committed domestic violence against ETT. The magistrate accepted 12 of ETT’s allegations entirely. The inconsistencies in EVE’s evidence led the magistrate to determine that EVE’s evidence was unreliable and lacked credibility. The magistrate formed this view after hearing EVE give evidence, observing her demeanour in the witness box, and reading her affidavits. He concluded that EVE was evasive on occasion and did not directly answer questions put to her. He concluded that the EVE’s evidence was not believable.[23] [23]Reasons [24]. The magistrate concluded that 12 incidents amounted to a combination of physical, verbal, and psychological/emotional abuse within the definition of domestic violence under sections 8 and 11 of the Act.[24][24]Reasons [132], [143]-[144].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.