Freedom Law

Domestic Violence Orders – Case Review

Domestic Violence Orders – Case Review

KAO v DL [2017] QMC 16 (25 August 2017)

Protection of the Aggrieved

[64] Section 37(1)(c) DVFPA requires that the court be satisfied that “the protection order is necessary of desirable to protect the aggrieved from  domestic violence ”.

[65] That consideration was the subject of discussion in the decision of MDE v MLG & Commissioner of the Queensland Police Service. [14]

[66] In that case His Honour Judge Morzone DCJ stated:[15]

“Protection of Aggrieved

“[50] The third element in s 37(1)(c) is that “the protection order is necessary or desirable to protect the aggrieved from  domestic violence ”.

“[51] The focus of this element is the paramount need for the protection 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 appears in both state and federal legislation, including analogous anti- domestic violence  legislation.4

“[53] In GKE v EUT [2014] QDC 248 McGill S.C. 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.

“[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 .

 

  1. 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.

 

  1. 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 .”

 

[67] That decision is binding upon this court.

[68] Conveniently the decision sets out the appropriate approach to the requirement under s 37(1)(c) commencing at paragraph 55.

[69] In these proceedings, at first blush somewhat oddly, the applicant in cross examination put to the respondent that he had been previously convicted of contraventions of a protection order. Exhibit 1 is a copy of the respondent’s criminal history which shows that he was convicted on 7 January 2004 in this court for breaches of  domestic violence  orders for incidents on 18 September 2003 and 8 October 2003. The admission into evidence of the criminal history was not objected to by the respondent’s legal representative and is in evidence.

[70] The criminal history, which the respondent accepted under cross examination was correct, confirms two things:

1. That a protection order was previously made against the respondent; and,

2. That the respondent breached that order on two occasions on 18 December 2003 and 8 October 2003.

[71] Turning then to the test enunciated in MDE v MLG & Commissioner of the Queensland Police Service[16] – the “three stage process”.

The risk of future  domestic violence .

[72] In assessing the risk of future  domestic violence  between the parties in the absence of an order the following matters are relevant:

1. The nature of the  domestic violence  committed by the respondent towards the aggrieved is serious – he attended uninvited at her residence in the early hours of the morning of 2 December 2016 and was aggressive toward her and assaulted her;

2. He has committed past  domestic violence  (albeit not against this aggrieved) as is evidenced by his criminal history;

3. He has demonstrated no remorse (and certainly no genuine remorse) as he has denied the committing  domestic violence ;

4. There is no evidence of rehabilitation medical treatment or psychological counselling;

5. A temporary protection order has been in place and there have been no alleged breaches of that temporary protection order.

The need to protect the aggrieved from  domestic violence 

[73] In respect of the need to protect the aggrieved from  domestic violence  relevant considerations are:

1. The parties were in an intimate personal relationship of short duration but which on any view of the evidence was problematic;

2. The parties reside in a relatively small community at Cairns and clearly the opportunity for them both socially and in business to interact is reasonably significant;

3. Their residences and places of work are not in direct proximity but not so distant as to make the prospect of future contact remote;

4. They have no need for an ongoing relationship and therefore no need to communicate.

Protection Order is “Necessary and Desirable”

[74] Thirdly, is the protection order “necessary and desirable”. In respect of the exercise of the discretion under the test prescribed in s 37(2)(a) DVFPA, those principals set out in s 4 are relevant in that:

1. The aggrieved is entitled to the safety a protection order will provide having experience  domestic violence from the respondent; and,

2. The respondent as a perpetrator of  domestic violence  should be held accountable for his conduct one of the consequences for which is the making of a protection order in favour of the aggrieved.

[75] Finally, as I am satisfied that the other preconditions of a relevant relationship and  domestic violence are established, the discretion to make the protection order must be exercised.

[76] Having considered the evidence and the findings of fact made and applying the test prescribed in MDE v MLG & Commissioner of Queensland Police Service[17] the discretion ought be exercised in favour of the applicant and I am satisfied that a protection order is necessary or desirable to protect the aggrieved from  domestic violence .