Domestic Violence Order Application to Vary – a recent case

CDM v GR [2015] QMC 15 (21 October 2015)

Last Updated: 23 October 2015

MAGISTRATES COURTS OF QUEENSLAND

 

CITATION:
CDM v GR [2015] QMC 15
PARTIES:
CDM
(Applicant/Respondent)
v
GR
(Respondent/Aggrieved)
FILE NO/S:
MAG-00063658/14(6)
DIVISION:
 Domestic Violence 
PROCEEDING:
Application to Vary Protection Order
ORIGINATING COURT:
Dalby Magistrates Court
DELIVERED ON:
21 October 2015
DELIVERED AT:
Dalby
HEARING DATE:
3 September 2015
MAGISTRATE:
K Ryan
ORDER:
Application to Vary is refused
CATCHWORDS:
 DOMESTIC VIOLENCE  – Application to Vary – Factors to consider – meaning of “protection order” and “ domestic violence  order” in Section 92
LEGISLATION –
Domestic and Family Violence Protection Act 2012
CASES –
GKE v EUT [2014] QDC 248
MDE v MLG & Queensland Police Service [2015] QDC 151
COUNSEL:
SOLICITORS:
Ms K Payne for the Applicant/Aggrieved
Mr J Selfridge for the Respondent by direct brief
Murdoch Lawyers for the Applicant/Aggrieved

The Law
[1] The Applicant/Aggrieved CDM has filed an application to vary a Protection Order made in this court on 17 July 2014, to extend the operational period of the order and to add a condition to that order.
[2] The Act requires that, when considering the application for variation I must consider –
• The grounds set out in the application for the protection order; and
• The findings of the court that made the  domestic violence  order[1]
[3] Any variation a Protection Order which is contested by the aggrieved who is fearful of  domestic violence  occurring, enlivens Section 92 of the Act.
[4] This means that when considering whether to make the variation, I must have regard to (in this instance where relevant) –
• Any expressed wishes of the aggrieved or named person; and
• Any current contact between the aggrieved or named person and the respondent; and
• Any other relevant matter.[2]
[5] I am aware that I may only vary the order if I consider the safety, protection or wellbeing of the aggrieved or the named person would not be adversely affected by the variation.[3]
[6] Mr Selfridge for GR has submitted that when considering the application to vary, I must also consider whether the variation is necessary or desirable. He argues that by not applying that test, the court could fall into error. He further argues that as the protection order referred to in section 92(2) was made pursuant to section 37 which requires the court to impose the test, then the court must also do so when considering a variation to the order.
[7] I consider the ejusdem generis rule[4] applies and that consideration of “any other relevant matter” in Section 92(2)(d) is confined to a consideration of the safety, protection or wellbeing of CDM and the named person.
[8] I find that when having regard to the safety, protection or wellbeing of CDM and the named person, as part of “any other relevant matter”, I should give consideration as to whether it is necessary or desirable to vary the order.
The evidence
[9] CDM submits that since the Protection Order was made, the respondent has continued to exhibit intimidating and threatening behaviour towards the Applicant/Aggrieved and the named person.
[10] He relies on four specific events –

(a) The respondent flying his helicopter at a very low height over CDM’s residence (the helicopter incidents);
(b) The respondent staring and pointing at the named person whilst she paused at a pedestrian crossing on two occasions (the Coffee Club incidents);
(c) The respondent approaching and staring at the Applicant/Aggrieved at a wake held at the Windsor Hotel and walking towards him and making comments outside the hotel some time later (the Windsor Hotel incident); and
(d) The respondent staring at CDM and his fiancé when they arrived at GR’s home to pick up the children for an access visit (the home incident).

[11] In his affidavit of 15 July 2015, CDM also deposes that he had been advised by other persons that the respondent had been pig shooting on properties in the Moonie area, which would be in breach of the provisions of the protection order. He states that he is extremely concerned for his safety and that of the named person, his fiancé.
[12] At the outset, I note that despite CDM’s statements that the respondent had continued his harassing and intimidating behaviour, no complaints were made to police that the respondent had breached the order and no charges have ever been laid against him.
[13] When this was put to him in cross-examination CDM stated that he did not know what to do and he reported the behaviour to his solicitor. He said that he didn’t think the behaviour would continue. I note that he has only complained of these actions when lodging the application to vary by way of extending the operational period, which application was lodged some 6 weeks prior to the expiry date of the protection order.
[14] CDM and his fiancé (the named person) gave evidence in support of the application.
The Helicopter Incident
[15] CDM stated in his sworn affidavit that the respondent flew his helicopter at a very low height over CDM’s home on two occasions, once in early November 2014 and on Tuesday 25 November 2014. He says he recalls the latter date clearly because his children were at his home on an access visit.
[16] In his examination in chief, CDM made one change to his sworn affidavit that the second occasion occurred on 18 November and not the 25 November. It was put to him in cross examination that he changed this date to ensure it coincided with the CASA records of the respondent’s flights which were provided with GR’s affidavit.
[17] CDM said that he knew it was the respondent’s helicopter as he had been a passenger in it previously, before the breakdown of his relationship with GR’s daughter. GR’s evidence was that the helicopter currently owned by him was not the one in which CDM had flown, he having purchased the current aircraft “sometime during the relationship” between his daughter and CDM.
[18] CDM’s fiancé also gave evidence with regard to the helicopter incident. She described a helicopter flying over the backyard of the home heading towards the airport. She said it was “just a helicopter”. She did not know the date when this occurred before the day of court, and now agreed that it occurred on the 18 November 2014.
[19] I note that CDM’s home is located in Roche Street, Dalby, being near the site of the Dalby airport which is located on the north- west outskirts of the town. GR stated that he flew his helicopter on the dates listed on the CASA documents for pleasure and had been doing so for some years. He denied purposely flying over CDM’s home in order to harass or intimidate.
[20] I have had the opportunity of observing the witnesses give their evidence and I am mindful that pursuant to the legislation, I am to take into account the findings of the court, including those findings made regarding the credibility of GR, when considering the application to vary.
[21] CDM appeared to be quite earnest in his belief that GR was continuing to harass and intimidate. Whilst this court made an adverse finding relating to GR’s credibility on the hearing of the original application, GR’s evidence in response to the application to vary was straightforward and believeable.
[22] It is my view that CDM took the opportunity given to him by GR’s provision of the CASA records to change the date he alleged the helicopter incident occurred. I consider that if the helicopter incidents were so concerning, and frightening, CDM would have made a proper note of the times and dates when this occurred. This view is supported by the differing versions of who was present at the time of the alleged incidents, especially that alleged to have occurred on 18 November 2014.
[23] CDM’s fiancé did not appear to be concerned at all with the alleged helicopter incidents, evidenced by her comment that “it was just a helicopter”.
The Coffee Club Incidents
[24] CDM gave indirect evidence of two incidents where he alleged that GR had stared and pointed at his fiancé whilst GR was sitting outside the Coffee Club in Dalby and CDM’s fiancé was driving past. He said that his fiancé came home on both occasions “quite distressed and frightened”.
[25] CDM’s fiancé also gave direct evidence of these alleged incidents. She stated that she was driving down Cunningham Street at Dalby in her white Lexus which she says GR knows from “changeover when picking up” the children. The car also has personalised number plates. She says that as she approached a pedestrian crossing which is located adjacent to the Coffee Club in Cunningham Street, she saw GR seated with two or three other men.
[26] She says that she saw him pointing at her and staring for about 10 seconds. She says she felt “very intimidated and distressed” by the behaviour especially given the events which led up to the making of the protection order. She was six months pregnant at the time.
[27] A further incident occurred, she says, in early 2015 when she was heavily pregnant. In her affidavit, she states that she was approaching the same crossing and saw GR seated outside the Coffee Club by himself. He was pointing at her and looking. She did not stop, but felt intimidated.
[28] In cross-examination, of the first incident, she said that the incident occurred in the afternoon and that GR was with three or four other people. This is inconsistent with her sworn affidavit. With regard to the second incident, in cross-examination she stated that there were two other persons with GR and that it occurred in the afternoon. This is also inconsistent with her sworn affidavit.
[29] It is inevitable that in a small community such as Dalby, that CDM, his fiancé and GR are likely to see each other in the street. GR denies that he pointed and stared as alleged and could not recall any occasions on which this could have happened, although he admitted that he does go to the Coffee Club.
[30] Whilst I am satisfied that GDM’s fiancé may have seen GR at the Coffee Club when she was driving past, I am not persuaded that GR has deliberately pointed and stared at her.
The Windsor Hotel Incident
[31] Both CDM and GR went to a mutual acquaintance’s funeral and wake on 21 February 2015. After the wake at the Dalby Leagues Club, it would appear that CDM went home for a short while (his fiancé having recently given birth to a son), before attending the Windsor Hotel where many of the mourners had retired to celebrate the life of the deceased.
[32] GR also attended the Windsor Hotel. CDM states that GR walked past him at the hotel and made a comment. He cannot recall what that comment was. The CCTV footage of this particular incident was obtained by CDM and is exhibit 4 to his affidavit sworn on 15 July 2015.
[33] Evidence has been given by both CDM and GR as to what has occurred. The CCTV footage does show CDM standing at a table with others with his back to the bar, when GR enters from the right of the picture and approaches the bar with another person. He turns around as though looking to see who was in the bar (which was moderately crowded) before ordering a drink. He then collects his drink and with his associate walk towards where CDM is standing towards the other part of the hotel. It would appear that GR pauses at the table and says something and then moves on.
[34] CDM states that GR saw him there and deliberately passed close by and made a comment which made him feel intimidated and anxious. He did not leave the hotel, staying for another 2 hours, saying his friends told him to stay and just ignore GR.
[35] GR’s evidence was that he saw a close friend of his standing at the table with CDM and stopped to say something to that friend. He says that he said nothing to CDM. All of this is observable on the CCTV footage. However, there is no sound and no evidence from any other person to say whether GR addressed CDM or someone else. I do note that CDM turned and stared at GR when he came in and did so on a couple of occasions.
[36] Of course, the protection order has a condition that GR is not to follow or approach CDM when he is at any place, nor is he to have any contact with him. On the face of the CCTV footage, GR has breached the protection order, albeit perhaps technically. But this is not a criminal trial for a contravention of the order, but an application to vary.
[37] There was argument that GR could have used another entrance and did not have to stand at the bar behind CDM. On a viewing of the CCTV footage, it would appear that GR did not see CDM until he was inside the hotel. He then approached a vacant area of the bar to be served. Any other vacant areas seemed to me to be blocked by seating for other patrons.
[38] There was a further incident on that night. This occurred when GR was leaving the hotel to go home. CDM was outside the hotel in vacant ground next door, taking a call on his mobile phone. GR exited the hotel to walk home. The direct path to his home took him past where CDM was standing. He did not change his direction so that he avoided CDM, but started walking past.
[39] CDM says that GR “proceeded with an aggressive demeanour” and he was fearful to the extent that he asked the person to whom he was talking to hold. He alleges that GR kept coming towards him and said words to the effect “you need to grow a set” and he believed GR was trying to goad him into a fight as had occurred in the past. He says he said something like “thanks Gary, have a nice night” and started walking back to the hotel. He says that GR removed his coat and he took this as a further action to intimidate him. There is no independent evidence by the person with whom CDM was conversing by phone, of what was said, if anything, or even whether that person heard the alleged conversation.
[40] GR denies he approached CDM or interacted with him in any way. He said that he walked straight past and did not have any verbal interaction with CDM. He also denied that he had a coat or jacket with him to take off. In his sworn affidavit his references to the wearing of a jacket at the Windsor Hotel indicate that he was unsure whether he had one or not.
[41] During cross-examination, GR stated that he hated wearing jackets, but believed he had worn one earlier in the day to the funeral to which he went with his wife. A viewing of the CCTV footage indicates that GR was not wearing a jacket when he entered the hotel and did not have one in his hand. Neither did his companion. I am therefore satisfied that GR did not wear a jacket or have one with him at the Windsor Hotel.
The Home Incident
[42] This incident allegedly occurred on 30 July 2015 when CDM attended at his ex-partner’s residence to pick up his children for a contact visit. His fiancé was with him and CDM parked his car in Curtis Street, Dalby opposite the side of the house and adjacent to a park which contained a block of toilets. He got out of the car to get ready to open the door for the children to get in. The children were nowhere in sight at that point.
[43] The house is also the home of GR, CDM’s ex-partner’s step father. The arrangement for pick- up at the side of the house near the park had been put in place following a previous incident which occurred during pick up between CDM and GR at the front of the house.
[44] On this occasion, CDM says that he saw a black Hilux Ute pull into the side driveway of the house. He saw GR exit the vehicle and stand and stare directly at him for “approximately 60 seconds”. He says he believed GR did this to intimidate him as he knew that CDM would be attending at that time on that day to pick up the children.
[45] CDM’s fiancé says that CDM was still in the car when GR pulled up. She remembers making a comment such as “There’s Gary. I wonder whose car that is” as neither she nor CDM recognised the Hilux Ute. She says, and I accept that CDM got out of his car to get ready to receive the children. I do not believe that he was outside the car when GR arrived.
[46] GR says that he was intending to park his son’s Hilux Ute in the garage whilst his son was away working. He saw a BMW parked adjacent to the toilet block near the park. He readily admits that he presumed it was CDM because his step-daughter had told him CDM had purchased a new car. He says he didn’t see anyone standing outside the car and he could not see into it because of the distance and angle between his garage and CDM’s car.
[47] He denies staring at CDM for 60 seconds, or at all. He says that he did look at the BMW as he hadn’t seen it before and that he walked through the side gate and into the door at the back of the garage to go inside and open the roller doors to park the Ute inside. He says that by the time he opened the roller doors, the BMW was gone.
[48] The only evidence before me to corroborate what occurred is that of CDM’s fiancé. She confirms that GR arrived in the Hilux Ute, exited the vehicle and looked at the BMW. When put to her about the length of time GR was looking at them, she thought it was longer than 10 or 30 seconds, describing it as a “very long exchange” and “long enough to feel intimidating”.
Discussion
[49] 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.
[50] 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.
[51] I am also satisfied that GR’s actions at the Windsor Hotel and during the incident outside his home were somewhat provocative.
[52] 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.
[53] 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.
[54] 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.
[55] 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.
[56] 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 –

(a) An assessment of the risk of future  domestic violence  between the parties should the order not be made. The court does not need to be satisfied that future  domestic violence  is ‘likely’, but there must be more than a mere possibility or speculation of the prospect of  domestic violence .
It would appear that there is ongoing ‘niggling’ between the parties. This is in spite of family law matters regarding the children have been finalised between CDM and Sally-Anne.
(b) An assessment of the need to protect the aggrieved from  domestic violence  in the absence of any order. Relevant considerations include evidence of future personal and familial relationships, places of residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication.

With both living in a small town, some interactions are inevitable. Both CDM and GR are adult males who should be able to act as responsible members of the community and avoid any actions designed to inflame the situation.

(c) Consideration whether imposing a protection order is necessary or desirable to protect the aggrieved from  domestic violence . In so considering, the court then is required to consider the principles of the Act set out in Section 4(1).

Those principles are –

(i) The safety, protection and wellbeing of people who fear or experience  domestic violence , including children, are paramount;
(ii) People who fear or experience  domestic violence , including children, should be treated with respect, and disruption to their lives minimised;
(iii) Perpetrators of  domestic violence  should be held account able for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
(iv) 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;
(v) 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;
(vi) A civil response under this Act should operate in conjunction with, not instead of, the criminal law.

[57] 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.
[58] The application to vary is refused.