REH v MIH
[2025] QMC 13
•24 April 2025
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
REH v MIH [2025] QMC 13
PARTIES:
REH
v
MIH
FILE NO/S:
86555/24(7)
116567/22(9)
DIVISION:
Magistrates Courts
PROCEEDING:
Domestic Violence Application
Police Protection Notice
ORIGINATING COURT:
Murgon
DELIVERED ON:
24 April 2025
DELIVERED AT:
Murgon
HEARING DATE:
25 February 2025
MAGISTRATE:
Sinclair
ORDER:
DOMESTIC VIOLENCE ORDERS MADE NAMING THE FEMALE AS THE AGGRIEVED. ORDER MADE WHERE THE MALE IS THE AGGRIEVED VARIED TO EXPIRE 24 APRIL 2025.
CATCHWORDS:
Domestic Violence Order – Most in need of protection
LEGISLATION:
Domestic and Family Violence Protection Act 2012 Section 3, 4, 22A, 37,41G
CASES CONSIDERED:
MDE v MLG & Queensland Police Service [2015] QDC 151
SOLICITORS:
QPS for both applicants.
K. Green – AFLS for the female aggrieved
The male aggrieved was unrepresented
MIH pleaded guilty before me to a number of drug offences and to breaching his domestic violence order made in favour of REH. REH has also breached domestic violence orders where he is the aggrieved and she been convicted of drug offences.
They have a child who remains in the care of REH and in front of whom both have perpetrated domestic violence.
Constable Jackson as applicant thinks that REH is the most in need of protection as MIH provokes her with acts of domestic violence.
Senior Constable Scheu thinks that MIH is the party most in need of protection because REH when provoked uses weapons to threaten or harm MIH.
The prosecutor who appeared made submissions favouring an order protecting MIH because he is attacked with weapons. AFLS made submissions favouring their client REH because she is only reacting to his DV towards her.
I have decided that REH is the most in need of protection and these are my reasons for that decision.
Winner Takes All
As a result of the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (the CC Act), final orders can no longer be made against both parties in a relationship except in limited circumstances.
I note that neither of the applicants here is a ‘systems abuser’ seeking to perpetrate domestic violence by unwarranted cross-applications. They are both police officers who each take a different but understandable approach to the situation they have been confronted with.
Section 41G nonetheless governs these cross-applications and will render one partner and the child with no protection from the domestic violence of the other partner.[1]
[1] Section 41G(2) DFVPA
The CC Act is based on the notion that mutual domestic violence only occurs in the context of a clear perpetrator/victim dichotomy. I have previously observed some of the difficulties in applying that strict dichotomy to the range of relationships the Court encounters.
Once again, there is very little information about the ‘context of the relationship as a whole’ and again there was no cross-examination. This is again because the parties affected by the order do not participate in the process to the extent of wishing to cross-examine.
There is however in this case little dispute as to the facts. He goes to her house and says things and does acts of DV that cause her to react. [2] She reacts with violence and weapons. He gets chased away if not actually harmed.
[2] Incidents E-G in submissions
Both have breached various forms of orders. Both have exposed their children to violence.
Her offending is more persistent, serious, and recent. She uses weapons on him and he has shown the scars to police who have photographed his injuries. These are not necessarily thought to be fresh.
Both have the same factors listed in s22A(2)(e) except of course that she is a woman. She also has the primary care of a young child, is physically slight and is indigenous.
As they have a child together, the parties have relevant relationship. They have each admitted to police that they have done a number of acts towards the other which amount to domestic violence. These are analysed in more detail below. For now, it is sufficient to note that, if there was only one application, or s.41G did not exist, I would not hesitate to conclude that the requirements for the making of an order protecting both (and the child to exposure to DV from both) are clearly met.[3]
Evidence
[3]MDE v MLG & Queensland Police Service [2015] QDC 151 at [55]
REH
REH is perhaps not the most eloquent of speakers in the footage tendered. Her affidavit is as well written as a university essay. It is replete with submissions and opinion which diminish the focus on its only real purpose: to convey facts about which a conclusion can be drawn. Parties are best served by complying with the directions in Annexure A of PD 4 of 2022 and submitting affidavits which address the evidence only.
REH does convey that MIH has falsely accused her of selling videos of herself online repeatedly, pushed her down, punched, kicked and even hit her with a wooden plank. He has taken her phone and locked her outside. She believes his ice usage makes him behave in this way. She might well know this as she is also a user of that drug. He has threatened to report he to Child Safety and have the baby taken from her.
She accepts that his behaviour towards him has made her physically lash out at him.
She says she does not know how to get away other than having an order in her favour. She still wants this person she describes as a monster to be able to come to her house but not to stay.
Her police notebook statement accepts that ‘We’re both using drugs atm’.
JACKSON
Officer Jackson confirms that the 21 May 2024 response involved him sighting the door ripped off which REH said MIH did.
I note Jackson’s ‘evidence’ at [29] which again is more of a submission:
I believe both parties perpetrate domestic violence against each other, and both MIH and REH should be protected by way of a [sic] cross domestic violence orders. As per section 41G(3) of the [DFVPA] it my understanding that there is clear evidence each party in the relationship require [sic] protection from the other party. I do not think it is possible to decide whether MIH required more protection from REH then [sic] vice versa. However, in my opinion REH requires more protection from MIH due to the size disparity, age, and social status. REH is only 25 years old and currently not working. She is receiving minimal support by way of Government benefits. She is the full-time carer of [their child], and it appears she receives little to no assistance in raising or careering [sic] for [the child] which is affecting her financially. I am aware both MIH and REH are drug users as stated by REH herself. It is likely this drug behaviour and their financial worries are affecting their relationship causing hostilities between each other and escalating the number of domestic violence incidents. If an order isn’t created, it is my belief domestic violence between the two will increase and escalate. Police have the Courts have an obligation to protection REH, MIH and [their child] from further domestic violence.
Firstly, Parliament has a different view about parties perpetrating domestic violence against each other (and their children). S41G makes it clear that based on the perpetrator/victim response model, there should be only one order.
Clear evidence that they both need or even want protection from the other does not mean this Court is permitted to protect both. It is only permitted to protect the ‘most in need of protection’. What ought to be exceptional is that the Court cannot determine who this is. A matter is not exceptional, and an order therefore should be made protecting both simply because it is clear that both need protection.
While SC Jackson might opine that it is not possible to tell who that is, he goes on to name some factors in REH’s favour. It is sometime hard to know how some of these such as the existence of a characteristic making them more vulnerable to domestic violence are relevant to the perpetrator/victim model, especially if both have them.
MIH
He has filed no affidavit in response and did not seek to cross-examine her. He said in closing submissions both that he loved her and that when he came out of prison he would have some ‘complaints’ to make.
SCHEU
Constable Scheu attended an event on 3 Jul 2024 as which her information read “[Informant] states that there is domestic happening next door. Inf states that the Female has thrown a child at a male to get the male to carry the child. She has then ripped the child out of the male and then chased the male down the street.”
On attendance she observed a very upset REH abusing MIH on the phone who said it was all about her getting upset at him not getting milk. Their child was being affected by her response to the DV that had taken place.
Scheu relied on several other incident reports in her application. These were given references during submissions.
Item E in paragraph 24 was on 21 June 2024. Scheu did not attend herself. REH has seen something on MIH’s phone that he did not want to discuss, and she asked him to leave her house. She then attacked him with scissors. He did not wish to make a complaint and the marks he showed police appeared old to them. REH did not admit to using scissors. I am unable to assess from the related QPRIME entries who called the police.
I assess this event as REH initiating the DV with monitoring of MIH’s phone. I do not accept that he was injured that night by her on the balance of probabilities.
Item F on 18 June 2024 records that the informant often hears fighting and that the Male is agitating the Female and she has knives. He had left by the time police arrived and said he had been calling her derogatory names and she had chased him outside with knives. An order had been made against MIH on 29 May 2024 but was unserved some 3-4 weeks later when this even happened. It is regrettably common that DV orders are not served for weeks or even months after being made and so have no effect.
A supplementary report notes that REH alleged MIH was berating her in text messages. Police photographed the messages and noted both parties appear to be equally abusive. I assess he has commenced the DV and she has responded.
Item G / paragraph 26 happened on 21 May 202 MIH came to REH’s house and accused her of ‘Doing things online for money’. She threw a Weetabix packet at him. They scuffled throwing punches at one another. He ended up locked out but ripped off the screen door. He would not provide a statement to police and she denied the incident.
She also said she did not want the relationship to continue. She said both were actively using drugs that she is scared of him and that he has been going through her phone.
While QPS classified this as a ‘consensual fight’ it bears all the hallmarks of an attack on her which persisted after he was removed from the house.
Item J paragraph 28 happened on 16 April 2024. There was an argument over passwords. She slapped him with a remote control. There was a scuffle. He took her phone and was going to leave. He ended up locking her out (of her house). When he unlocked the door, she ran in and got a knife. The forgoing appears to be his version. Her version given later at the police station counter was that he hit her.
Item K was on 21 March 2024. It was her complaint that he had hit her with a stick and left. She told police that he had picked her up from Brisbane and they argued in the car and when they got home that she got a knife and tried to chase him out of the house after an argument and he got a machete and hit her with a pram.
Item M was on 16 July 2022 – Police stopped their car. She admitted causing him the injuries they could see. He didn’t want to make a complaint.
It follows from these events that both see themselves as the victim even where they started the incident; they both use weapons; they both lie to or refuse to cooperate with police and they both breach orders made against them.
The pattern of highly disadvantaged couples suffering from things such as organic or traumatic brain injuries, alcoholism, mental health issues, serious drug addiction or some combination of these is the everyday lived experience in the DV Court in this region. The systems abusing cross-applicant who perpetrates DV and tries to present themselves as the victim is rarely seen.
Most in need of protection
My assessment of their ‘relationship as a whole’ is that she flies off the handle to violence with weapons when he enters her house and initiates verbal abuse towards her. Her response is not necessarily proportionate, justifiable, or reasonable Section 22A(b) does not require it to be any of these. But it is a response to him calling her names or making other accusations. It is clear that she is scared of him, and he is not scared of her. This is not determinative, nor has it led to her seeking an order.
What distinguishes this case from some others is that there is little dispute about the events and where there is, there is little doubt that the instigating party is readily discerned to be true on the balance of probabilities. It is MIH. He is only the victim when he goes to her house and confronts her with allegations (of which there are no evidence).
That she is the most in need of protection is something that Parliament say should only not be able to be made except in exceptional circumstances. While the state of the evidence is far from being as clear as it might be, it is sufficient to make the determination.
I will make the orders in favour of REH in the mandatory term. That is all that is sought. While she has in her affidavit expressed fear of MIH, she has not made an application for anything else in the months this matter has taken to reach trial.
That means I must dismiss the application to vary the order in favour of MIH which seeks to add the child. The result of the application of s.41G(2)(c) is again a reduced level of protection for children. This does not appear to be consistent with their human rights[4].
[4] Section 26(2) of the Human Rights Act 2019 which is not address in the statement of Human Rights compatibility in relation to the effect of s. 41G
I am of the view that Act requires me to hear and determine applications under s.32. Those applications are limited to being made by certain people, required to be in writing and served. I do not believe that a Magistrate has a power to add conditions not sought in those applications. No such power is granted expressly or by necessary implication from s.3 and 4.
The only time a court may act on its own initiative is under s.42. Given their past histories of breaching orders, both parties seem quite possible they will expose themselves to this prospect in the future and s.42 is unfettered by Division 1A (the cross-application provisions). For example, if REH is convicted of an offence which is a ‘domestic violence offence’ under the Criminal Code[5] an order can be made against her even if she is the most in need of protection. Such an order could also name the child.
[5] domestic violence offence means an offence against an Act, other than the Domestic and Family Violence Protection Act 2012, committed by a person where the act done, or omission made, which constitutes the offence is also—
(a) domestic violence or associated domestic violence, under the Domestic and Family Violence Protection Act 2012, committed by the person;
The structure of the DV Act implies that an order in the mandatory term only will protect her and therefore that she will not need to use domestic violence herself in the future.
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