One protection-order application produced two dismissals in the Magistrates Court, two appeals to the District Court and one remitter for a new hearing. That shape matters. It shows that proving past domestic violence and proving a present need for protection are separate tasks, even after a court accepts several acts as domestic violence.
In CEE v CNH (No 2) [2026] QDC 91, delivered on 10 July 2026, Heaton KC DCJ dismissed the former wife’s second appeal. The magistrate had found four of 40 alleged acts to be domestic violence, but had not been satisfied that a protection order was necessary or desirable. The District Court found no legal, factual or discretionary error and said that, on its own review, it would reach the same conclusion.
The decision is a useful corrective to the idea that a finding of domestic violence carries the final limb of the test. It does not. My caution is that practitioners should not read the decision as approving thin reasons on cumulative risk. The statute makes the relevant considerations mandatory, and a pattern case should show the accumulation in the evidence and in the reasoning.
The second appeal was about error, not a third trial
CEE and CNH separated in July 2022. A temporary protection order had then been made for CEE and her children. Her application for a protection order was dismissed in January 2024. She successfully appealed, the dismissal was set aside, and the application returned for a new hearing before a different magistrate.
At the second hearing, the parties used a schedule of 40 alleged acts to focus the evidence and cross-examination. The magistrate dismissed the application again in November 2025. CEE’s seven appeal grounds alleged, in substance, that the magistrate had failed to carry the proven conduct into a forward-looking assessment. They included economic abuse, conduct affecting the parties’ child, alleged use of legal processes as abuse, and material sent to the registry after the hearing.
The appeal proceeded on the record. That follows the structure of the Domestic and Family Violence Protection Act 2012 (Qld) s 168, unless the appellate court orders a fresh hearing. CEE therefore had to identify error in the decision below. The Court nevertheless conducted what it described as a real review of the evidence, gave due weight to the magistrate’s opportunity to see and hear the witnesses, and made its own assessment. This distinction matters: dismissal of the appeal was not a fresh finding that none of the alleged conduct occurred.
Past violence did not answer the forward-looking question
The three requirements in Domestic and Family Violence Protection Act 2012 (Qld) s 37 are cumulative. A relevant relationship must exist, the respondent must have committed domestic violence, and an order must be necessary or desirable to protect the aggrieved from domestic violence. The final expression is disjunctive, so either limb is sufficient.
Here, the first requirement was not disputed. The magistrate found four acts of domestic violence. They concerned withholding CEE’s wallet and passports as a bargaining tool, withholding keys after changing the locks, taking the vehicle she used to transport the children, and blocking access to a joint mortgage redraw facility used for household expenses. The findings included controlling and coercive conduct, economic abuse, and conduct characterised as economic or emotional abuse.
Those findings established past domestic violence, but they did not dictate the third requirement. The Court said the need for protection must be real rather than speculative. Past conduct informs whether future domestic violence is likely, but the evidence must support a risk of sufficient weight to make an order necessary or desirable in the circumstances.
The timing and changed circumstances did most of the work. The proven acts occurred shortly after separation or in early 2023. By the second decision, the property settlement had concluded, parenting arrangements were regulated by final orders, and the parties had no shared social, business or financial interests apart from responsibility for their child. Contact would continue, but the Court agreed that the evidence did not lift future risk beyond possibility or speculation.
A pattern must be built cumulatively
The Court was right to resist deciding the case by labels. Calling conduct coercive, controlling or economically abusive does not itself explain what that conduct predicts. The circumstances, sequence and continuing opportunities for repetition matter. For economic abuse, practitioners should connect the evidence to the statutory conception in Domestic and Family Violence Protection Act 2012 (Qld) s 12 and then explain why the conduct bears on future risk.
But the opposite error is to atomise the evidence. Section 8(2) of the Domestic and Family Violence Protection Act 2012 (Qld) requires a series of acts to be considered cumulatively and the behaviour to be considered in the context of the relationship as a whole. An incident that falls short as a standalone allegation may still supply context. The District Court itself treated two disputed episodes in that way, even though it was not satisfied that either amounted to domestic violence attributable to CNH.
That gives the evidence a practical architecture. First, identify each act and prove the primary facts. Secondly, characterise the accepted conduct under s 8. Thirdly, assemble the acts chronologically and explain the asserted pattern. Finally, connect that pattern, the likely future contact and any changed circumstances to the risk against which the proposed order would protect.
Alleged systems or litigation abuse needs the same discipline. It is not a separate statutory category. The Court accepted that use of legal processes can amount to domestic violence, but found no error in rejecting that characterisation on this evidence. A party alleging it should identify the conduct, the purpose or effect said to make it abusive, and its place within the s 8 pattern. The mere fact that an application was made or withdrawn proves little.
Mandatory considerations should not remain implicit
Section 37(2) requires the court to consider the principles in Domestic and Family Violence Protection Act 2012 (Qld) s 4, relevant non-compliance with earlier intervention or diversion orders, and the filed criminal and domestic violence history. The paramount principle includes the safety, protection and wellbeing of children who fear or experience domestic violence. These are not optional prompts.
The reasons repeatedly said that the magistrate’s treatment could have been more fulsome but was sufficient when read as a whole. On the child-related ground, the Court said the finding that risk to the child did not warrant an order was implicit in the magistrate’s conclusion. That is the part I would handle cautiously. An implicit conclusion may survive an error-based appeal where the record and reasons disclose the path, but it is poor drafting practice for a decision governed by mandatory considerations.
There is a fair counterpoint. The second hearing was extensive, the 40-item schedule focused the contest, both parties were cross-examined, and credibility findings affected what could safely be accepted. The magistrate expressly addressed future risk, continuing parental contact, the final parenting arrangements and the temporary order. The District Court also reviewed the record for itself and reached the same view. This was not a case in which the statutory question disappeared altogether.
The sharper criticism is narrower. The decision does not give practitioners a model for displaying the bridge between the cumulative pattern required by s 8(2), the mandatory matters in s 37(2), and the ultimate risk finding. Applications and submissions should build that bridge expressly, particularly where the accepted acts are old but contact remains unavoidable.
What practitioners should do with the decision
Start with the future, then work backwards. Identify the contact, financial connection, parenting arrangement or other setting in which further conduct is said to be possible. Tie each proven act to that setting. Deal directly with stabilising changes such as final parenting or property arrangements, because silence lets those changes carry the risk assessment.
Do not rely on informal correspondence as the evidentiary route for post-hearing allegations. CEE emailed further allegations to the registry after the evidence had closed, but did not formally file or exhibit them and made no application to adduce further evidence. The magistrate’s failure to consider them was not error. If later conduct matters, put it before the court by the proper evidentiary and procedural route and allow the other party to answer it.
For related practice context, Fraser Lawyers’ pages on family law disputes, parenting orders and property settlement explain the adjoining processes. The protection-order question remains distinct. A parenting or property order may change the occasions for contact and therefore the risk evidence, but it does not replace the statutory inquiry.
Published 5 August 2026.
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