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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
BM v CM & Anor  QDC 30
MM BY HIS LITIGATION GUARDIAN CM
10 of 2019
Appeal pursuant to section 164 of the Domestic and Family Violence Protection Act 2012 (Qld)
Bundaberg Magistrates Court
31 January 2020
23 January 2020
The appeal is allowed. The part of the decision by which MM was named in the order is set aside and the matter is remitted to the Bundaberg Magistrates Court to decide whether MM should be named. The matter is to be reheard by a different magistrate.
DOMESTIC VIOLENCE APPEAL – APPEAL AGAINST PROTECTION ORDER – where appellant sought an order varying the protection order by setting aside the naming of the child – identity of those required to be served with a copy of the notice of appeal – where first respondent added as a respondent and appointed litigation guardian of second respondent with other respondents being deleted – where appellant sought hearing de novo – where appeal conducted by way of rehearing on the record – whether the learned magistrate failed to give adequate reasons for naming the child in the protection order – whether the learned magistrate erred in naming the child in the protection order – where matter remitted for a decision, by a different magistrate, as to whether the child should be named
Domestic and Family Violence Protection Act 2012 (Qld) ss 8, 9, 37, 53, 145, 160, 164, 165
The appellant appeared on his own behalf
The first respondent appeared on his own behalf
The second respondent appeared by his litigation guardian
The appellant appeared on his own behalf
The first respondent appeared on his own behalf
The second respondent appeared by his litigation guardian
- This is an appeal against part of a decision of a magistrate made on 8 May 2019 to make a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (the Act). The appeal is brought by the respondent, BM, to the application for the order. The order was sought by the respondent’s brother, CM, as the aggrieved. The order applies to the conduct of BM, not only towards CM, but also towards others named in the order. Those named were CM’s fiancée AM, her mother BM2, and brother ML. CM’s son MM was also named.
- The subject proceedings arose in the context of family friction. CM’s family reside in Victoria. CM was previously married to the mother of MM. CM’s other brother, ARM, was the sperm donor for the pregnancy which produced MM. CM’s wife suffered a premature death, following which CM formed a relationship with his current fiancée, and soon thereafter made plans to move to Bundaberg with her and MM.
- It would seem that CM’s family, and the appellant in particular, did not take well to those plans, formed a very dim view of AM and held concerns for MM. There was even a family intervention meeting to discuss matters, including in relation to MM. It is against this background that CM made allegations that BM engaged in harassment and abuse amounting to domestic violence against him.
- The magistrate was informed that there had been Federal Circuit Court proceedings involving CM and other members of his family in relation to parenting arrangements for MM. Orders have been made giving CM’s mother H and ARM rights to spend time with MM. The appellant does not wish to be locked out of contact with MM.
- Although BM generally denies the allegations against him, his notice of appeal expressly takes no issue with the protection order insofar as it relates to the aggrieved CM or the named AM. The appeal as lodged was confined to that part of the decision whereby ML, BM2 and MM were named. The appellant sought orders varying the decision by setting aside the naming of those persons.
- Section 165 of the Act requires the appellant to serve a copy of the notice of appeal on the other persons entitled to appeal against the decision, as well as on the Police Commissioner. In the absence of an affidavit of service, the registry took the precaution of sending the notice of appeal to the Queensland Police Service Legal Unit, which subsequently advised that the Commissioner of Police would not be electing to appear on the appeal.
- Insofar as other persons entitled to appeal against the decision are concerned, they are identified by reference to section 164 of the Act, which refers to persons who are aggrieved by any of the decisions which are described in that section. Read together, the sections should be construed as requiring service of the notice on other persons who, if aggrieved, would be entitled to appeal against the decision.
- The persons who may appeal are not limited to the aggrieved applicant for the order or to the respondent to the application, but may extend beyond the parties to the application to, relevantly, persons named in the order. In this case, the appellant named as respondents those whose naming in the order he was seeking to have deleted. He should also, however, have included the applicant CM, who sought orders naming those persons. An order was made joining CM as a party, and he was heard on the hearing of the appeal.
- The appellant encountered difficulties in effecting service. In order to avoid further delay, he abandoned his appeal save in respect of the naming of the child MM. Orders were made deleting the other respondents and appointing CM as MM’s litigation guardian. Ultimately, no point was taken about service on CM or MM.
- In the notice of appeal, BM asserted a right to have the appeal heard de novo. There is no such right. Section 160, subsection (1) provides that an appeal must be decided on the evidence and proceedings before the Court that made the decision being appealed. That is what I have done. Subsection (2) gives the Court a discretion to order that the appeal be heard afresh in whole or in part, but there was nothing which would persuade me to adopt that course in this case. The parties variously sought to annex further material to their outlines or to make further factual allegations in their outlines or during their oral presentations. I have put those to one side and have proceeded pursuant to subsection (1).
- By reason of section 145 of the Act, the magistrate was not bound by the rules of evidence or any practices or procedures applying to courts of record, and was entitled to inform himself in any way he considered appropriate. In this case, the magistrate considered the matter on the basis of the affidavit material before him and the submissions of the parties.
- The appellant complains that the Court did not hear from a witness which he had brought to Court, and further, that the magistrate ought to have had regard to a bundle of unsworn references sent to the Court at an earlier time. Whilst the magistrate had the power to inform himself in any way he considered appropriate, that does not mean that he was bound to consider anything and everything sent to the Court at any time prior to the hearing or that he was obliged to permit a witness to be called to give oral evidence-in-chief at the hearing.
- Directions had been given in the matter. Those directions required the evidence-in-chief of all witnesses to be by affidavit filed in Court in advance of the hearing in accordance with a stated timetable. The deponents were required to be available for cross-examination. The magistrate was not obliged to take account of evidence provided by way of unsworn references. It may also be noted that those references were not in any event sought to be tendered at the hearing.
- The witness brought to Court by the appellant was ARM. His evidence-in-chief was required by the directions to be by way of affidavit. He had duly sworn an affidavit, which was before the magistrate, and he was not required for cross-examination. The central issue is whether the magistrate erred in naming the child MM in the protection order. The discretion to name a child is granted by section 53 of the Act as follows:
53 Naming child
The court may name, in a domestic violence order, a child of the aggrieved, or a child who usually lives with the aggrieved, if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from–
- (a)associated domestic violence; or
- (b)being exposed to domestic violence committed by the respondent.
- Associated domestic violence is defined in section 9 of the Act and it means behaviour mentioned in section 8, subsection (1), by a respondent towards, relevantly, a child of the aggrieved. Section 8(1) of the Act provides that:
8 Meaning of domestic violence
- (1)Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that–
- (a)is physically or sexually abusive; or
- (b)is emotionally or psychologically abusive; or
- (c)is economically abusive; or
- (d)is threatening; or
- (e)is coercive; or
- (f)in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.
- In order to exercise the discretion to name the child MM in the order, the magistrate had to be satisfied that it was either necessary or desirable to protect the child from either or both of the matters in subparagraphs (a) or (b) of section 53. That would necessarily involve an assessment of the risk of those matters in the absence of any order. The magnitude of the risk which would be sufficient to justify a conclusion that it is necessary or desirable to protect the child by naming the child in the order will depend on the circumstances, but the risk would need to be more than a bare possibility or a matter of mere speculation. The applicant’s fear of such a risk would not be sufficient. There would need to be a proper evidentiary basis for concluding that there was such a risk.
- The magistrate’s reasons with respect to naming MM were sparse. Indeed, other than observing that, “There’s also allegations there towards the aggrieved’s son,” his Honour appears to have contented himself with concluding that MM was one of those in relation to whom, “I am satisfied that they should be included on an order.” Insofar as the allegations concerning the past conduct of BM towards MM is concerned, the reasons record that there were allegations, but the reasons do not expressly identify them, deal with the evidence in relation to them, or expressly make findings about them.
- The magistrate made some general observations about the evidence. He said that he placed a great deal of weight upon the fact that CM’s version of events was corroborated by AM. Having recited the matters of which he was required to be satisfied before making a protection order under section 37 of the Act, he said:
The respondent’s material and supporting affidavits, they do not rebut any of the aggrieved’s material to any concerning degree in relation whereupon I disregard the aggrieved’s evidence.
- The comment that the respondent’s material and supporting affidavits do not rebut the aggrieved’s material “to any concerning degree” is relatively uninformative and was not further explained. It is also unclear whether it related just to the evidence in relation to section 37, or was intended to extend to the evidence in relation to the named persons, and, in particular, MM.
- Insofar as concerns in relation to BM’s conduct towards MM is concerned, the affidavit of CM:
- (i)claims that MM is scared of BM;
- (ii)having observed that MM repeats most things said around him or done to him, expresses a desire to protect his family from BM’s abusive behaviour;
- (iii)asserts that MM has complained of BM continually yelling abuse at him and hitting him repeatedly;
- (iv)says that MM had bruises on his back when returned from BM’s care on one occasion, and
- (v)says that MM complains of severe nightmares and refers to “the bad people”, who he identifies as H, ARM and BM, and who he says are trying to hurt him and take him away from CM.
- The claim that MM is scared of CM is a bare, unparticularised and unsubstantiated assertion contradicted by BM, and to which no or no significant weight could properly be attached. CM’s desire to protect his family from what he says is BM’s abusive behaviour is no proof that BM has behaved in an abusive manner towards MM, or that MM has been exposed to domestic violence committed by BM.
- The evidence of MM complaining of BM’s verbal and physical abuse of him with consequent severe nightmares about “the bad people”, including BM, and the attempt to infer that BM was responsible for some bruises said to have been found on MM’s back are serious allegations. Whilst the magistrate need only be satisfied of matters on the balance of probabilities, the seriousness of the allegations should be considered in determining whether the Court is satisfied that the allegations are made out.
- The allegations receive support in the affidavit of AM, who speaks of being told that MM had been hurt physically by BM, and that BM was always angry with MM and yells at him. She also corroborates MM complaining of nightmares about “the bad people”, who are identified as including BM, and that he often cries that the bad people are coming to get him again. She also corroborates that MM was returned on one occasion with bruises on him.
- Those serious allegations did not go unanswered. In his affidavit, BM:
- (i)described the claim that MM is scared of BM as a “spurious allegation” presented to advance CM’s application;
- (ii)agreed that MM repeats most things said around him or done to him, but rightly observed that CM’s professed desire to protect his family does not deal with the veracity of what is claimed;
- (iii)denied that he ever harmed MM and questioned why if there were any concerns about bruising on MM, they were not assessed by a doctor rather than reported to a lawyer, and
- (iv)described the allegations concerning nightmares as unsubstantiated and contrary to the experience of MM when he was under the guardianship of H.
- Further, he, at least by inference, raises a claim of recent invention by pointing out that a similar allegation in an earlier affidavit filed in the Federal Circuit Court proceedings did not include him as one of the “bad people” in the alleged nightmares.
- BM received support in the affidavit of ARM, in which it was deposed that:
- (i)at no time had ARM ever seen MM show any signs of fearing BM, and indeed, to the contrary, when he last saw them together, MM climbed all over BM with lots of hugs and kisses goodbye;
- (ii)he has never witnessed BM abuse MM;
- (iii)the claims about nightmares have previously been made in the Federal Circuit Court proceedings but it is only in the affidavit of the current proceedings that BM has been added to the list of “bad people”;
- (iv)MM showed no signs of nightmares when in the care of H, and on the morning following his last sleepover, woke up happy and jovial, and
- (v)during MM’s time with H and ARM, there was never any mention made of taking him away from CM.
- The magistrate did not discuss any of that evidence or make any specific findings about it. While CM’s allegations were corroborated by AM, they were firmly put in issue by BM, whose denials were supported by the evidence of ARM. They were not merely bald denials, but claims of inconsistency between what CM reported in terms of MM’s claims and their experience of his behaviour otherwise. Further, they raised an allegation of recent invention, which went unanswered. They were not challenged by way of cross-examination. It is difficult to see how his Honour’s observation that the respondent’s material and supporting affidavits do not rebut any of the aggrieved’s material to any concerning degree could apply to this part of the evidence, and his Honour did not otherwise explain how he resolved this conflict, even if he did so.
- AM’s affidavit refers to an alleged incident at the completion of a birthday party when it is said that BM, against the wishes of MM, held and refused to let MM go whilst his presents were put into ARM’s car rather than CM’s car. Counsel for CM referred to it as a power play between the family. The magistrate did not specifically refer to this allegation, whether he accepted it as true, or whether, if true, he regarded it as associated domestic violence by exposing the child to domestic violence committed by BM, or whether it was in some other way relevant to a determination as to whether MM should be named pursuant to section 53 of the Act. The alleged birthday incident was not mentioned in the affidavit of CM, so it cannot fall within the magistrate’s comment about the comfort he took from AM’s corroboration of CM. That allegation also did not go unanswered. BM in his affidavit rejected the allegations as both false and irrelevant. It is difficult to see how the magistrate’s comment about the respondent’s material not rebutting the aggrieved’s material to any concerning degree could apply to this evidence either.
- The magistrate commented favourably on the submissions of counsel for CM. At one point, he said that:
She covered all aspects of the material before me and I concur.
- He also concurred with her submissions. That does not greatly assist with respect to the fact-finding exercise in relation to the allegations of conduct towards MM. Insofar as the alleged birthday party incident is concerned, counsel asserted that BM did not deny the evidence but only claimed it was irrelevant. That was wrong and the magistrate would have fallen into error had he acted on that basis. The magistrate’s fact-finding in relation to the allegations of conduct by BM towards MM were deficient in identifying the facts found if, indeed, any were found.
- There were, however, other difficulties with his Honour’s reasons. It was not sufficient, in order to enliven the discretion under section 53, for the magistrate to simply observe that there were allegations concerning the conduct of BM towards MM or even to find that those allegations were true if, indeed, that is what he did. MM could not be named in the order unless the magistrate was satisfied that naming MM was necessary or desirable to protect the child from one or other (or both) of the matters in section 53(a) or (b). That relates to protection of the child from associated domestic violence or exposure to domestic violence in the future. Findings in relation to past conduct will be relevant to assessing future risk in order to conclude whether naming the child is necessary or desirable for the purpose stated in the section, however, section 53 requires more than just a finding that there are allegations or even proven incidents of past conduct of the kind described in section 53(a) or (b).
- Leaving to one side any difficulties with the magistrate’s findings of fact, the reasons:
- (i)do not carry out any assessment (absent MM being named) of the risk of MM either being the subject of associated domestic violence or being exposed to domestic violence committed by the appellant;
- (ii)do not find that naming MM is necessary or desirable to protect MM from the things referred to in either sections 53(a) or (b), and
- (iii)give no or no sufficient reasons for naming MM.
- The magistrate said that he was satisfied that it was both necessary and desirable for an order to be made, but it is tolerably clear that was a reference to the requirement in section 37(1)(c) for the making of a protection order. Where it is proposed to name a child in the order, the Court also has to be satisfied that it is necessary or desirable to protect the child from the matters stated in section 53(a) or (b). His Honour’s reasons do not state that he was so satisfied, far less give reasons for that satisfaction. Indeed, there was no mention of section 53. His Honour simply stated in relation to the named persons:
I am satisfied that they should be included on an order.
That is insufficient.
- It has already been observed that the magistrate purported to generally concur with the submissions of counsel for CM. Counsel submitted that the birthday party incident was relevant in relation to naming MM in the order but otherwise simply submitted that the Court should be satisfied, given the reach of the appellant and the relentless nature of his correspondence with various people, that it is appropriate in the circumstances to name people, including MM, in the order. The matters that she pointed to would perhaps be more relevant to the other persons named. There was nothing pointed to in relation to MM in particular and, in any event, her submissions fell short of the exercise which the magistrate would have been required to undertake before naming MM in the order.
- For those reasons, the magistrate has fallen into error either by naming MM in the order without being satisfied that naming MM was necessary or desirable to protect the child from associated domestic violence or being exposed to domestic violence committed by BM; or at least in failing to give adequate reasons for being so satisfied if, indeed, he was.
- The appeal is therefore allowed. That part of the decision by which MM was named in the order is set aside and the matter is remitted to the Bundaberg Magistrates Court to decide whether MM should be named in the order. Given my reasons and the fact that there has been no hearing of oral evidence in the proceeding today, it is appropriate that I direct that the matter be reheard by a different magistrate. It will, of course, be a matter for that magistrate whether he or she permits further evidence at that hearing.
- Published Case Name:
BM v CM & Anor
- Shortened Case Name:
BM v CM
 QDC 30
31 Jan 2020