XXG v XXH

Facts

A former husband and wife, married in February 2018 and divorced with final judgment on 31 July 2024, have one daughter. They brought cross-applications for personal protection orders: the husband in SS 2415/2024, filed on 23 December 2024, and the wife in SS 2453/2024, filed a week later. Because both were filed before 2 January 2025, the court applied Part 7 of the Women's Charter 1961 as it stood before the 2023 amendments.

Both relied on an incident on 30 November 2024 at the wife's home, during a discussion about the child's language classes. The husband said the wife suddenly grabbed and pulled his hair as he stood to leave; the wife said he staged an exclamation of pain and then pulled her hair, and her helper said she saw him pulling it. The wife also relied on an incident on 6 October 2024, alleging that the husband grabbed her neck and shoved her so that her head struck a bed frame; he denied this, though he received a police conditional warning for it. In her affidavit she further raised incidents from 11 March 2023 and 3 February 2024, which were not in her complaint form and had been the subject of an earlier application she withdrew and another that was dismissed. The wife appealed in HCF/DCA 106/2025 and HCF/DCA 107/2025.

Issues

1. Whether the wife could rely on incidents left out of her complaint form and covered by earlier withdrawn or dismissed applications
2. Whether the wife proved family violence by the husband on 6 October 2024
3. Whose account of the 30 November 2024 incident was more probable
4. Whether a protection order was necessary

Holding

The Family Court granted the husband's application and made a personal protection order against the wife, and dismissed the wife's application for an order against the husband. It also ordered both parties to attend counselling, and ordered each to bear their own costs.

Reasoning

The court treated the complaint form as akin to pleadings: absent special circumstances, past incidents not listed in it should not be considered. The 11 March 2023 incident had been given up when the wife, then represented, withdrew her earlier application on the husband's undertaking, and the 3 February 2024 incident had been dismissed after a full hearing, so both were res judicata. Using them to show the husband was more likely to have been violent later was also impermissible propensity reasoning.

As to the 6 October 2024 incident, the wife did not produce the CCTV footage she said captured the events, the hospital note did not reflect the choking she described, her police report was her own account, and a conditional warning has no legal effect. She also filed only after the husband's application. She had not proved family violence.

As to the 30 November 2024 incident, the wife disclosed her own recording only on the first day of trial, which the court regarded as gamesmanship. With several devices believed to be recording, staging the incident would have been a foolhardy gamble. The wife made no immediate retort to the husband's exclamation and no audible reaction to having her hair pulled, and the helper's account did not match the recordings. The husband's medical note recorded mild scalp redness. His account was more probable.

Given the parties' ongoing contact and conflict, an order was necessary to regulate their conduct, and counselling was needed to help them co-parent.

From the judgment