No harm from emotional domestic flare-up … Life in the suburbs … Too much pineapple juice … Queensland Madge hauled over the coals … Miscarriage of justice … Apprehended bias … (No. It’s not Sal Vasta) … Threats to solicitor … New trial … Start again … Michael Baker reports 

In an excoriating judgment, Judge Michael Williamson QC decided that a combination of irregularities in the conduct of a hearing for a protection order under the Domestic and Family Violence Protection Act 2012 gave rise to a reasonable apprehension of bias and necessitated a new trial. 

On the February 3 Magistrate Linda Bradford-Morgan made a protection order against the appellant including an “ouster condition” barring him from access to his residence, which he shared with his wife of 32 years – the second respondent. 

Williamson’s judgment did not name the magistrate but Justinian has confirmed that it is Bradford-Morgan, who was appointed to the court in 2004 and in 2016 became a specialist domestic violence magistrate. 

Shortly after the call the husband left the home and was intercepted by police. He was emotional, yet cooperative, coherent and rational, and expressed concern for his wife.

The drama arose as a result of their current financial position and the loss of their business.

The application for the protection order was made by police after what was described as a “bad joke” had been taken for an actual threat of domestic violence by the appellant’s wife. 

At the hearing, the appellant asserted that his wife was intoxicated and in emotional distress at the time of the incident and had overreacted. 

The lawyer for the aggrieved wife, sought to lead evidence that his client did not support the order being made and, consistent with the appellant’s evidence, that she was intoxicated at the time of the incident. 

The magistrate had other ideas. 

Reluctant to allow the the wife’s affidavit to be filed and read in the hearing, the magistrate described as a “hard sell” the inclusion of a paragraph that contradicted an account of the incident the wife had previously given to police. 

Unhappy with the delay and the apparent problem of recalling “several police officers”, the magistrate asked that the wife’s affidavit be returned to her. 

As a result of “judicial pressure”, the solicitor was left making a submission without evidence that there was no threat of domestic violence, that the wife was unharmed and that the order was unnecessary and undesirable.

In addition to Bradford-Morgan severely limiting the wife’s ability to participate in the hearing, Judge Williamson had several other serious concerns about the conduct of the trial.   

The husband’s solicitor, a Natasha Shorter of Armstrong Legal, was accused of being discourteous, unprofessional, and having an “unfortunate habit” of interrupting the magistrate. 

Judge Williamson found that the transcript did not bear this out, and in fact suggested the opposite: 

“It was the magistrate that routinely interrupted oral submissions made by the appellant’s solicitor.”

The appellant himself was described by the magistrate as “gun-toting” and engaging in “classic victim shaming”, without evidence to support the assertion.

Reasonable requests during cross-examination to replay recordings of an interview the appellant had given to police were ignored. The magistrate would later criticise the appellant for his answers stating, without qualification, that he “wouldn’t answer any questions”.

The District Court also found that Bradford-Morgan’s reasons did not disclose how mandatory considerations were taken into account. 

This was an error of law which infected her decision to impose the condition to exclude the husband from the domestic residence. 

The magistrate’s primary consideration in granting the order appears to have been the “Duluth model” and the “Power and Control Wheel”, where an aggrieved person in an abusive relationship frequently privileges an abuser’s wellbeing above their own. 

There was just one problem – there was no evidence of this model having application to the married couple, who, according to the wife’s solicitor had been married for 32 years without incident. 

All of this occurred in a hearing that took just short of three hours – not including the adjournment taken by the magistrate to attend a “Domestic violence stakeholders meeting”.