MEE applied for a protection order on 13 April 2019 after several domestic and family violence incidents, and a temporary protection order was granted ex parte on 13 May 2019 (i.e. MNT did not appear at the hearing). The parties were no longer in a de facto relationship at the time the application was made
MNT subsequently filed a cross-application for protection orders and a temporary protection was granted on 14 May 2019.
The final hearing in respect of both applications was heard on 19 September 2019. The Magistrate found that there was “ample evidence” to establish that an act of domestic violence had occurred by MNT and an order was necessary and desirable to protect MEE. As part of the orders the Magistrate included an ouster condition*. The Magistrate also made findings that were critical of the credibility and reliability of MNT.
MNT’s cross-application was dismissed in the same decision.
* an ouster condition means that the respondent must leave the house or property they share with the aggrieved.
MNT appealed the decision of the Magistrate on the following grounds:
- The Magistrate erred in finding that MNT committed an act of domestic violence when such finding was not open on the evidence;
- The Magistrate erred in law by failing to consider whether the domestic violence order was necessary or desirable;
- The Magistrate erred in law by making an ouster condition; and
- The Magistrate erred in law by failing to provide adequate reasons for the decision.
The appeal was determined by re-hearing, meaning the same evidence that was before the Magistrate Court was considered by the Appeal Judge, who was then able to reach his own conclusion as to whether the orders made were justified.
On appeal it was confirmed that there was sufficient evidence that MNT’s conduct amounted to controlling behaviour that fell within the ambit of emotional or psychological abuse as prescribed under the Domestic and Family Violence Act. Such behaviour contributed to the MEE’s fear for her own wellbeing and safety, therefore the order was necessary and desirable.
The Appeal Judge was also satisfied that, there was significant animosity between the parties that was unlikely to be dispelled in the near future, especially in circumstances where family law proceedings were currently in progress. Some of that behaviour also continued after MEE had left the house and as such, it was concluded that the order was in fact necessary and desirable.
With regards to the ouster condition, the Appeal Judge stated that there are various factors that require balancing when exercising the discretion involved in the consideration of an ouster condition. His Honour concluded that “a place cannot cease to be a person’s usual place of residence simply because he or she flees for their own safety” and “the protection of [MEE’s] property was a relevant consideration”. Therefore, the ouster condition was necessary and would not affect the division of property at family law proceedings (because it dealt only with the access to the land, not ownership).
The appeal was dismissed and the protection order was upheld.
A LESSON IN CREDIBILITY
Both the Magistrate and the Appeal Judge preferred the evidence of MEE in this case – you can see this throughout their decisions. The Appeal Judge stated that MNT “he had a tendency to be evasive, vague and argumentative when questioned about topics in which the cross examiner seemed to make headway”.
It is important to remember that the court places significance on the credibility of a witness when reaching a conclusion, not only in domestic violence matters but all family law proceedings.
If you or anyone you know is experiencing domestic violence that puts your safety or their safety at risk, please contact the police or other crisis support services (you can find more information here) and/or make an appointment to see one of our family lawyers for assistance.
Written by Melissa Zulch.