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  • Unreported Judgment

HDI v HJQ

 

[2020] QDC 83

DISTRICT COURT OF QUEENSLAND

CITATION:

HDI v HJQ [2020] QDC 83

PARTIES:

HDI

(Appellant Respondent)

v

HJQ
(Respondent Aggrieved)

FILE NO/S:

D226 of 2019

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

14 May 2020

DELIVERED AT:

District Court at Southport

HEARING DATES:

11 and 20 February 2020.

JUDGE:

Muir DCJ

ORDER:

  1. The appeal is allowed;
  2. The permanent stay imposed by the Acting Magistrate on 14 August 2019 is set aside as a nullity;
  3. The Protection Order – Varied Order made on 9 February 2018 is confirmed subject to the following variations to be made:
  1. The words “this order does not refer to” at condition (9) are amended to “this condition does not apply to”; and
  1. A Family Law Exception as follows is to be inserted at conditions (4), (5), (7) and (9):

“This condition does not apply to the extent that it is necessary for the parties to attend an agreed conference, counselling, mediation session, or when having contact with a child as set out in writing between the parties or in compliance with an order of a Court.”

  1. The applicant’s Application to Vary a Protection Order filed on 27 March 2019 is otherwise dismissed.
  2. There will be no orders as to costs, subject to allowing the parties until 4:00pm Thursday 21 May 2020 to provide short written submissions (no longer than 2 pages) as to why another order is appropriate.

CATCHWORDS:

DOMESTIC VIOLENCE – APPEAL – Appeal against Magistrate’s refusal to vary a Protection Order – where respondent submitted the application was made for improper purpose – where the application was alleged to be made in furtherance of parenting issues – where final parenting orders had been made in the Family Court of Australia – where Magistrate granted permanent stay of application – whether Magistrate has power to stay – whether refusal to vary was reasonable – whether Magistrate ought to have dismissed application.

DOMESTIC VIOLENCE – APPEAL – Appeal against Magistrate’s refusal to Vary a Protection Order – where order was confusing on its face – where District Court has broad powers on appeal – whether the confusion ought to be rectified.

MAGISTRATES – GENERALLY – POWERS AND DUTIES – IMPLIED POWERS – ABUSE OF PROCESS – PERMANENT STAY – SUMMARY DISMISSAL – DOMESTIC VIOLENCE PROCEEDINGS – where Magistrate granted a permanent stay of an application made under the Domestic and Family Violence Protection Act 2012 on the grounds of abuse of process – whether Magistrate has express power to grant a stay of or summarily dismiss an application on the grounds of abuse of process – whether Magistrate has implied power to grant a stay of or summarily dismiss applications under the Domestic and Family Violence Protection Act 2012

LEGISLATION:

Civil Proceedings Act 2011 (Qld), s 7

District Court of Queensland Act 1967 (Qld), s 69

Domestic and Family Violence Protection Act 2012 (Qld), ss 3, 4, 21, 38, 93, 94, 157, 164, 168, 169

Domestic and Family Violence Protection Rules 2014 (Qld) ss 5, 6, 22, 26, 48, Part 6

Family Law Act 1975 (Cth) s 68Q

Magistrates Act 1991 (Qld), s 8

Magistrates Court Act 1921 (Qld), ss 8, 42H, 139

Uniform Civil Procedure Rules 1999 (Qld), r 16(g)

CASES:

ADH v ALH [2017] QDC 103.

Attorney General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342.

BAK v Gallagher & Anor (no 2) [2018] QDC 132.

Bode v Commissioner of Police [2018] QCA 186.

Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139.

Consolidated Press Holdings Ltd v Wheeler (1992) 84 NTR 42.

Dey v Victorian Railway Cmrs (1949) 78 CLR 62.

Doonan v McKay [2002] QCA 514.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

Edgar v Freeman [1915] VLR 16.

GKE v EUT [2014] QDC 248.

Grassby v The Queen [1989] HCA 45.

Hamilton v Oades (1989) 166 CLR 486.

Harvey v QPS [2018] QCA 064.

Higgins v Comans (2005) 153 A Crim 565; [2005] QCA 235.

Jago v District Court of NSW & Ors (1986) 168 CLR 23.

Johnson v Queensland Police Service [2014] QCA 195.

Mbuzi v Torcetti [2008] QCA 231.

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2019] QCA 184.

O’Toole v Scott (1965) 65 SR (NS) 113.

Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 162 ALR 336; (1999) 198 CLR 435.

Powell v Queensland University of Technology [2017] QCA 200.

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679.

Rogers v R (1994) 181 CLR 251.

SGLB v PAB [2015] QMC 8.

United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323.

Walton v Gardiner (1993) 177 CLR 378.

Webb v The Queen (1994) 122 ALR 41.

Williams and Ors v Spautz (1992) 174 CLR 509.

YJ Pty Ltd & Ors v Huang’s Properties [2018] QDC 240.

COUNSEL:

Applicant is self-represented

LA Brandon (sol) for the Respondent Aggrieved

SOLICITORS:

Applicant is self-represented

Evans Brandon Family Law for the Respondent Aggrieved

Introduction

  1. [1]
    The applicant appeals under s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (‘the DFVP Act’), against the decision of an Acting Magistrate of the Southport Magistrates Court on 14 August 2019, to order a permanent stay of his application to vary a protection order, on the basis that the application was an abuse of process.[1]
  1. [2]
    The appeal is opposed by the respondent aggrieved, the applicant’s former wife.[2]
  1. [3]
    The following two issues emerge for my determination:
  1. Does a Magistrate have power under the DFVP Act to order a stay of an application under that Act as an abuse of process?
  2. Should the application to vary the protection order be allowed, dismissed or referred back to the Magistrates Court for further hearing?
  1. [4]
    Before addressing these issues, it is necessary to briefly summarise the long and vexed history of litigation between the parties which spans some four years and involves litigation in both the State and Family Law Courts.[3]

Factual Background

Domestic Violence Proceedings

  1. [5]
    The parties were married for a period of 23 years. They have two daughters: R who was born in 2003 and J who was born in 2006. During the marriage the applicant and respondent jointly owned and operated an international import Business.
  1. [6]
    The parties separated in February 2016 following an alleged incident of choking which led the respondent to leave the former matrimonial home and file an application for a Protection Order under the DFVP Act. A Temporary Protection Order, which included both children as named persons, was granted on 9 February 2016. The matter was then set down for hearing on 4 October 2016. Two days after the Temporary Protection Order was granted, the respondent made an application to vary its terms, seeking an order ousting the applicant from the former matrimonial home on the basis that the respondent had no funds to seek rental accommodation of her own. She also took steps around this time to remove the applicant from the Business and have her brother take his place as company director because she considered that she and her brother were much more capable than the applicant at running the Business.[4]
  1. [7]
    At some stage – although it is not clear precisely when, the applicant filed a cross application seeking a Protection Order against the respondent. This application was also adjourned for hearing to 4 October 2016 but was subsequently (apparently for cost reasons) withdrawn on that date.
  1. [8]
    At the contested hearing in the Magistrates Court on 4 October 2016, the applicant acknowledged that a physical altercation had taken place on 3 February, but denied that it involved choking. However, the Magistrate found the applicant’s evidence unsatisfactory as parts of it were inconsistent with earlier orders made in the Cairns Magistrates Court, and considered that the applicant “did not have regard to the seriousness of the proceedings in which he was involved.” Ultimately, the Magistrate rejected the applicant’s version of events and accepted the respondent’s evidence and made a two-year Final Protection Order (‘the Original Order’) naming both children and the respondent as aggrieved and which remained in force until 3 October 2018. The respondent’s application to remove the applicant from the matrimonial home was dismissed. 
  1. [9]
    The Original Order contained the following conditions:
  1. (1)
    The respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
  2. (2)
    The respondent be of good behaviour towards the named person [sic] and not commit associated domestic violence against the named person [sic] and not expose the child [sic] to domestic violence.
  3. (3)
    The respondent is prohibited
  • From remaining at;
  • Entering or attempting to enter;
  • Approaching to within 100m of the aggrieved’s place of residence.
  1. (4)
    The respondent is prohibited from following or approaching to within 100m of the aggrieved when the aggrieved is at any place. This condition does not apply to the extent that it is necessary for the respondent to appear personally before a Court or Tribunal.
  2. (5)
    The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved.
  3. (6)
    The respondent is prohibited from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of, or make comments concerning the aggrieved.
  4. (7)
    The respondent is prohibited from making telephone calls or sending text messages to the aggrieved.
  5. (8)
    The respondent is prohibited from locating, attempting to locate, or asking someone else to locate the aggrieved. [Emphasis added]
  1. [10]
    Two applications to vary the Original Order were then made. The First Application to Vary was made by the applicant on 26 April 2017, the effect of which was to set aside the Original Order.  The second application was a Police Application which was made in May 2017 after the respondent made a breach complaint. This application resulted in a Magistrate making a Second Temporary Order against the applicant on 22 May 2017. The hearing of both the applications were adjourned for a further hearing in early February 2018.
  1. [11]
    In June 2017, the applicant made a second application for a Protection Order against the respondent. This Second Application for a Protection Order by the applicant was also adjourned for hearing with the First Application to Vary and the Police Application.
  1. [12]
    The hearing of three applications took place on the 8 and 9 February 2018 before a Magistrate at Southport. After the contested hearing, the Magistrate made the following orders on 9 February 2018:
  1. the applicant was guilty of breaching the Original Order and fined; and
  2. the applicant’s First Application to Vary was dismissed; and
  3. the Second Temporary Order was revoked and replaced with a Varied Order; and
  4. the applicant’s Second Application for a Protection Order was adjourned to 4 October 2018.
  1. [13]
    The Varied Order, which continues in force up to and including 9 February 2023, named the respondent, both children and two associates of the respondent (Mr M and Ms Y). The Varied Order contained the following conditions:
  1. (1)
    The respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
  2. (2)
    The respondent be of good behaviour towards the named person [sic] and not commit associated domestic violence against the named person [sic] and not expose the child [sic] to domestic violence.
  3. (3)
    The respondent is prohibited:
  • From remaining at;
  • Entering or attempting to enter
  • Approaching to within 100m of the aggrieved’s place of residence.
  1. (4)
    The respondent is prohibited from following or approaching to within 100m of the aggrieved when the aggrieved is at any place.
  • This condition does not apply to the extent that it is necessary for the respondent to appear personally before a Court or Tribunal.
  1. (5)
    The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved.
  2. (6)
    The respondent is prohibited from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of, or make comments concerning the aggrieved.
  3. (7)
    The respondent is prohibited from making telephone calls or sending text messages to the aggrieved.
  4. (8)
    The respondent is prohibited from locating, attempting to locate, or asking someone else to locate the aggrieved.
  5. (9)
    You, the respondent, must not
  • Go within 100m of;
  • Enter; or
  • Remain at any place where any person named in this order lives, or stays, or works, including…
  • This order does not apply to R.
  1. [14]
    On 13 February 2018, the applicant appealed the Orders (referred to in paragraph 12 above) made by the Magistrate on 9 February 2019, to the District Court of Queensland, and the appeal was set down for hearing in December 2018.
  1. [15]
    In the interim, the applicant’s Second Application for a Protection Order was heard on 4 October 2018 before another Magistrate at Southport. Material filed by the applicant in support of that application raised a series of issues relating to parenting matters which were outside the jurisdiction of the Magistrates Court. That material also included the following alleged acts of domestic violence:-
  1. that the respondent had “stalked him” via the ‘Find my iPhone’ app in 2015;
  2. that the respondent had verbally abused him;
  3. that the respondent had financially abused him by her conduct towards him in the Business;
  4. that an associate of the mother, Mr M threw eggs at his car on an unknown date; and
  5. that Mr M damaged the applicant’s car with an axe-like tool in 2016.[5]
  1. [16]
    For unexplained reasons, the applicant did not attend court on 4 October 2018. On that day the solicitors for respondent made an oral application that his Second Application for a Protection Order be “estopped” or “stayed” for abuse of process. In the absence of any submissions from the applicant, the Magistrate made the following findings:[6] 
  1. as regards the alleged incidents of domestic violence, the applicant was estopped from pursuing the allegations of the mother’s stalking of him, the alleged verbal abusive behaviour, and the alleged financial abuse, on the basis that these matters were in the process of being litigated in the ongoing property dispute in the family law jurisdiction, or were otherwise subject to an Anshun estoppel.
  2. the applicant was also estopped from pursuing the allegations relating to Mr M on the basis of submissions made by the solicitors for the respondent  that those matters had already been litigated in the family law proceedings; and
  3. the elements of the applicant’s Second Application for a Protection Order that related to parenting issues which had already been finalised in the Family law jurisdiction, and constituted an abuse of process.
  1. [17]
    Accordingly, the applicant’s Second Application for a Protection Order was permanently stayed.
  1. [18]
    The applicant did, however, attend court the hearing of his appeal in the Southport District Court. After hearing submissions from the parties, the following orders were made by another Judge of this court on 10 December 2018:[7]
  1. the appeal against conviction is dismissed;
  1. the appeal against the [Varied Order] is dismissed and the [Varied Order] is confirmed; and
  1. the applicant is at liberty to make an application to vary or revoke the [Varied Order] in the Magistrates Court.

Family Law Proceedings

  1. [19]
    Concurrently with domestic violence proceedings, the respondent also commenced family law proceedings in March 2016. A number of interim orders were obtained by the parties in their family law proceedings which appear, on the material before me, to have arisen out of numerous applications made by both parties throughout the course of the Family Law proceedings.
  1. [20]
    The content and evolution of the various interim orders is long, and fraught. The specific details of the issues ventilated in the family law jurisdiction are not relevant to the current appeal. What emerges from a review of the material before me is that a variety of parenting arrangements, including week about and supervised time arrangements, were trialled in that jurisdiction in an attempt to resolve matters between the parties. But all of these attempts were ultimately foiled by the increasingly acrimonious nature of the parties’ relationship.
  1. [21]
    Consequently, when the Family Law matters were finalised on 29 June 2018, Justice Baumann expressed that he felt he had little choice but to make the unusual final orders currently in place, which include:[8]
  1. (a)
    that the child J live with the mother, and have no contact with the father unless as agreed or expressed by J; and
  1. (b)
    that the child R live with the father, and have no contact with the mother unless as agreed or expressed by R.

The Current Appeal

  1. [22]
    On 27 March 2019, the applicant applied to the Southport Magistrates Court to vary the Varied Order by removing conditions 3-9 and removing J as a named person. By this most Recent Application to Vary, the applicant provided the following reasons he wished J to be removed as a named person in the Varied Order:-

“J is my daughter. There has never been any family violence involving or directed at my daughter. The mother [respondent] has used the order to completely alienate J from myself, her sister R and family.”

  1. [23]
    An Annexure to the Recent Application to Vary contained a list of nine points in support of the Application to Vary. Points 1-3 contained a brief history of the proceedings, and point 6 noted that the parties have been living separate lives since February 2016.
  1. [24]
    Point 4 alleged that:

“There has [sic] been dozens of vexatious complaints made by the Aggrieved [respondent]. Police has [sic] been to our Home dozens of times, something that had a profound effect on our daughter R and my elderly mother that I am a registered Carer for.”

  1. [25]
    Point 5 asserted that there has never been any family violence, and this assertion is repeated in point 9. This assertion is plainly inconsistent with the evidence both as determined in previous domestic violence proceedings, and on the respondent’s own evidence in the Family Law proceedings when he conceded to a family report writer that there had been an incident where he had smacked the mother when R was around 3 months old. The applicant alleged this had occurred in response to the respondent having threatened to kill the baby; the respondent denied ever having made any such threat;and the incident resulted in a 2-year good behaviour bond being made against the applicant.[9]
  1. [26]
    Point 7 alleged that the respondent was using the Varied Order as means of separating and alienating the children from each other, which, again is plainly not the case. At the time the applicant made the Recent Application to Vary, the children were living separately by virtue of the Parenting Orders made by Justice Baumann in June 2018, and those orders were made for the reasons set out in Justice Baumann’s judgment. Whilst his Honour did consider the terms of the Varied Order in reaching his decision, there were also a number of other factors which also influenced his findings.[10]
  1. [27]
    The crux of the applicant’s Recent Application to Vary is encapsulated by point 8, which states:

“A protection order is not required nor desirable. Contrary to its purpose to protect the aggrieved, it has become a tool to harass, intimidate, monitor my every move, hack into my personal phone, social networking sites and continue to brainwash the child J.”

  1. [28]
    The Respondent’s Affidavit in response to the Recent Application to Vary is short, but it contains two exhibits. Exhibit A is a comprehensive bundle of documents that span the 4 years of litigation as I have set it out above. Exhibit B is a series of social media posts made by the applicant which are said to demonstrate his intention to continue to file proceedings in this and other courts in order to obtain alternate parenting orders.
  1. [29]
    The Recent Application to Vary was listed for a contested hearing on 8 August 2019. On that day, the solicitors acting for the respondent made an oral application for a permanent stay of this application on the grounds that it was an abuse of process. After reviewing the parties’ materials and hearing submissions from the parties, the Acting Magistrate adjourned the matter to 14 August 2019.
  1. [30]
    On the 14 August 2019, the Acting Magistrate granted a permanent stay of the Recent Application to Vary and consequently, the contested hearing did not proceed.
  1. [31]
    It is this decision that is that subject of the current appeal.

The grounds of appeal

  1. [32]
    The Notice of Appeal filed on 27 August 2019 states as follows:

“(a) The Verdict and Judgment Record is defective as it cites Rule 62 of the Criminal Practice Rules. A Protection Order is a civil matter.

  1. (b)
    On 10 December 2018, Judge McGinness DCJ from the Southport District Court made an Order in paragraph 3 of the Order to the following [sic]: ‘The appellant is at liberty to make an application to vary or revoke the protection order in the Magistrates Court.’
  1. (c)
    The Acting Magistrate allowed an oral application by [the Respondent’s Solicitor] to dismiss the matter when it was listed for Hearing (Trial) on the 8th August 2019.
  1. (d)
    The Prosecution has withdrawn from the matter.
  1. (e)
    The Magistrate did not review the evidence by the applicant.
  1. (f)
    The Magistrate agreed the Protection Order was defective, yet reinstated same.”
  1. [33]
    Several of these grounds can be dealt with swiftly.

Ground (a) 

  1. [34]
    There is no error in the Verdict and Judgment Record. That document relates to the applicant’s breach of the Original Order. Whilst applications for and variations of protection orders are civil matters, breaches of protection orders are criminal matters. Ground (a) of the appeal therefore fails.

Ground (b)

  1. [35]
    The Order of the District Court on appeal was that the applicant be at liberty to make an application: it was not an order that ensured the success of any such application. Ground (b) of the appeal therefore fails.

Ground (c)

  1. [36]
    The issue of whether the Acting Magistrate wrongly allowed an oral application from the respondent to stay the applicant’s Recent Application to Vary overlaps with the issue of whether he had the power to order a stay and is discussed under that heading later in these Reasons.

Ground (d)

  1. [37]
    The Recent Application to Vary was a fresh matter and the Queensland Police were not, nor have they ever been, a party to that application. Consequently, they cannot have ‘withdrawn’ from it. That ground is therefore nonsensical and Ground (d) of the appeal fails.

Grounds (e) and (f)

  1. [38]
    These grounds appear to be elements of the same broader ground of appeal: that is, that the Acting Magistrate erred in not allowing the Recent Application to Vary because he failed to take into account:
  1. the evidence provided by the applicant in support of his Recent Application to Vary; and
  1. the apparent inconsistency on the face of the Varied Order in that R is a named person but also resides with the applicant.
  1. [39]
    This ground raises live issues which I will return to later in these Reasons.

Other grounds of appeal

  1. [40]
    The applicant’s written submissions developed his appeal grounds as follows:
  1. (a)
    “it is my submissions that no grounds for any justifiable accusation of Abuse of Power were established by [the Acting Magistrate];” and
  1. (b)
    “any exercise of discretionary power used or relied upon to make the order is flawed and miscarried.”
  1. [41]
    In his written submissions, the applicant also contested a Magistrate’s power to grant a stay:

“It remains uncertain which provisions of the DV Act [sic] the learned [Acting Magistrate]; relied upon before proceeding to apply the decisions made on August 14 2019.”

  1. [42]
    I allowed the respondent’s legal representatives the opportunity to provide further oral and written submissions on this issue. It follows that the issue of a magistrate’s power to order a stay of a protection order under the DFVP Act was fairly raised in this appeal. This issue is discussed in further detail later in these Reasons.
  1. [43]
    Finally in oral submissions, the applicant raised an issue of “apprehended bias” on the part of Acting Magistrate, specifically, that he had demonstrated a personal bias against him through his conduct and attitude during the hearing on 14 August 2020.
  1. [44]
    The accepted test to determine whether or not a Judge is disqualified on the ground of the appearance of basis is whether, in all the circumstances, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question.[11]
  1. [45]
    Having reviewed the transcript of the proceedings before the Acting Magistrate, I could find no evidence of bias. The applicant submitted that the Acting Magistrate appeared “angry,” but this subjective assertion is without any basis. A review of the transcript reveals that the applicant was asked on a number of occasions by the Acting Magistrate to be quiet after interrupting submissions made by the respondent’s solicitor. Such a request was both legitimate and necessary to ensure the fair and efficient conduct of the court proceedings. This ground of appeal therefore fails.

Conclusion: remaining grounds appeal

  1. [46]
    It follows that the grounds of appeal that remain to be considered are whether the Acting Magistrate erred in:
  1. allowing an oral application to permanently stay the Recent Application to Vary on the basis it was an abuse of process;
  1. not allowing the Recent Application to Vary to proceed to full hearing.

Orders Sought by the applicant

  1. [47]
    In his Notice of Appeal, and written submissions, the applicant seeks the following orders or declarations:
  1. that the decision of the Acting Magistrate be set aside;
  1. that no party in the proceedings file a private application for a protection order on the basis that no domestic violence between the parties took place;
  1. the parties have had no personal contact for four (4) years.
  1. [48]
    The order sought in 47.2 above seeks to re-agitate issues already determined in previous proceedings, and otherwise appears to seek a permanent injunction restraining both parties from further filing applications under the DFVP Act. This court may in certain circumstances impose restrictions requiring parties to seek leave of the court before serving court documents or commencing proceedings but I am not satisfied that this court has the power to order a permanent injunction restraining the parties from filing any further applications under the DFVP Act. Even if such a power existed, it is difficult to imagine any circumstances that would ever justify such a drastic and broad reaching order being made as it is plainly contrary to the main objects of the DFVP Act.
  1. [49]
    The applicant has failed to provide any explanation for the basis for the making of the declaration sought in 47.3.
  1. [50]
    In the hearing of this matter before me on 20 February 2020, I requested that the applicant clarify the orders he was seeking. The answers he gave were lengthy, confusing and emotive and reflective of the applicant’s obvious frustration and disagreement with previous orders made in both this and the Family Court jurisdiction. But doing the best I can, I infer that in addition to an order setting aside the Acting Magistrates order to stay, the applicant is also seeking:
  1. to remove both children as named persons on the Varied Order; and
  1. to amend the end date of the Varied Order to the current date, effectively meaning the Varied Order is at an end.

Relevant legal principles

General principles of Appeal

  1. [51]
    The applicant relies upon his right of appeal under s 164(b) of the DFVP Act, which provides that a person who is aggrieved by a decision to vary, or refuse to vary, a domestic violence order may appeal against the decision. I am satisfied that Acting Magistrate’s order that the Second Application to Vary be permanently stayed constitutes a refusal to vary the Varied Order. It follows that the applicant has standing to bring this appeal.
  1. [52]
    An appeal is a creature of statute. The nature of the appeal right therefore depends on the construction of the statute concerned.
  1. [53]
    Section 168 of the DFVP Act provides:

168 Hearing procedures

  1. (1)
    An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
  1. (2)
    However, the appellate court may order that the appeal be heard afresh, in whole or part.”
  1. [54]
    Under s 168(2), the court may order that the appeal be by way of a hearing de novo. No such order has been sought or made in this case. The nature of the appeal in this case is therefore one of a re-hearing and is to be decided on the evidence and proceedings before the Magistrates Court below.[12] This requires a real review of the evidence at first instance and of the Acting Magistrate’s reasons for judgment to determine whether he has erred in fact or law.[13]
  1. [55]
    Turning then to the first issue for my determination on this appeal.

Does a Magistrate have power to grant a permanent stay of an application made under the DFVP Act

  1. [56]
    In reaching the conclusion he had the power to order a stay of the Recent Application to Vary on the basis it is an abuse of process, the Acting Magistrate relied upon the decision of SGLB v PAB [2015] QMC 8 (which also concerned an application under the DFVP Act). 
  1. [57]
    But in my respectful view, and for the reasons discussed below, the decision of SGLB was wrongly decided.

Decision of SGLB v PAB

  1. [58]
    In reaching the conclusion that the application by the aggrieved for a protection order under the DFVP Act ought to be permanently stayed as an abuse of process, the Magistrate in SGLB firstly considered the type of conduct warranting characterisation as “an abuse of process”.[14]  In doing so, he correctly identified that the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances and with care,[15] and that one of the following three characteristics are usually present in cases of abuse of process:
  1. the court’s processes is being invoked for an illegitimate or collateral purpose;
  1. the use of the court’s procedures is being unjustifiably oppressive to a party;
  1. the use of the court’s procedure is bringing the administration of justice into disrepute.[16]
  1. [59]
    The Magistrate then considered whether a Queensland Magistrate had the jurisdiction to grant “the dismissal or permanent stay of proceedings”.[17]  In doing so he correctly identified the Magistrates Court as an “inferior court” with no inherent power to control proceedings or to prevent abuses of its process such as exists in a superior court.[18] He then observed that whilst inferior courts do not have any inherent powers,[19] they “may have implied powers upon the basis that a grant of power carries   with it the power to do everything necessary for its exercise.”[20]
  1. [60]
    The facts in the decision of Consolidated Press Holdings which was cited in SGLB are not of great assistance on the specific issue of an implied power to stay because that case concerned whether there was an implied power to summarily dismiss proceedings under the Work Health Act 1986 (NT), (which was found to be incidental to an express power under the Local Court Act (NT) and the Local Court Rules).
  1. [61]
    The Magistrate then observed that “subject to any statutory provisions” the implied powers of inferior courts of other jurisdiction have been found to include [amongst other things] the power to:[21]
  1. devise procedures to ensure the proper determination of issues before it;[22]
  1. control the practice, procedures and conduct in court;[23] and
  1. deal with proceedings as an abuse of process.[24]
  1. [62]
    It is instructive that none of the cases referred to above included an implied power to order a stay.
  1. [63]
    In SGLB the Magistrate referred to there being “a dearth of direct authority on whether a Queensland Magistrates Court has the power to deal with proceedings as an abuse of process.”[25] But he then relied upon the following observations of Williams JA in Doonan v McKay [2002] QCA 514 at [12]  to support his ultimate conclusion that an implied power to stay proceedings as an abuse of process existed:

Williams v Spautz (at 518) confirms that Australian Superior Courts have inherent jurisdiction to stay proceedings which are an abuse of process. Nothing was said in argument in this case as to the jurisdiction of a Magistrates Court (or District Court) to stay proceedings in such circumstances and it may be assumed for present purposes that the jurisdiction is the same in all Courts associated with the case. The critical principle established by Williams v Spautz (at 522) is that proceedings maybe stayed where they have been instituted for an improper purpose even where there were reasonable grounds for commencing the proceedings, and even where the moving party had established a prima facie case.” [Emphasis added].

  1. [64]
    In SGLB, the Magistrate stated that the above passage “would seem to suggest that it is accepted in Queensland that a Magistrate Court, as a court of inferior jurisdiction does have such a power.”[26]
  1. [65]
    In my respectful view this conclusion overlooked the following three important matters:
  1. First, that the observations by Williams JA were expressly stated to have been confined to the facts of that case.
  1. Secondly, both Doonan, McKay[27]and Williams v Spautz[28] concerned a magistrate’s implied powers in the criminal jurisdiction.  As stated above, an application under the DFVP Act is a civil proceeding (although depending on the nature and gravity of the allegation against a party, the strength of the evidence required to meet the standard of proof [on the balance of probabilities] may vary).[29]
  1. Thirdly, that in the 2005 decision of Higgins v Comans,[30] the Queensland Court of Appeal determined in a unanimous judgment on a case stated to it, that a Magistrate in Queensland has no implied power to stay committal proceedings. The Magistrate in SGLB was not apparently referred to this decision. 
  1. [66]
    It follows that I am not satisfied that SGLB supports a finding that a Magistrate in Queensland has the power to grant a permanent stay of an application made under the DFVP Act.
  1. [67]
    Chapter 5.5 of the Domestic and Family Violence Benchbook sixth edition published in 2019 contains a chapter headed “5.5 Permanent Stay of Proceedings for An Abuse Of Process,” and cites the case of SGLB as an example of a matter where a permanent stay has been granted. But this section of the Benchbook does not analyse or discuss the source of the implied power. Although it does relevantly provide that:

“[This benchbook] is a guide only and each judicial officer must form his or her own opinion as to whether jurisdiction to deal with an application exists and the appropriate procedure according to law in each case.” [Emphasis added].

  1. [68]
    It is therefore necessary to analyse whether the power to order a permanent stay under the DFVP Act can be found by other means.

Relevant legislative provisions 

  1. [69]
    As a starting point, the Magistrates Act 1991 (Qld) sets out the powers of Magistrates as follows:

8 Jurisdiction and powers of Magistrates

A Magistrate may exercise, throughout the State, all the jurisdiction, powers and functions conferred on a Magistrate, or on 2 justices, by or under any law of the State.”

  1. [70]
    Section 139 of the Magistrates Court Act 1921 (Qld) in conjunction with s 6 of the DFVP Act confers jurisdiction upon Magistrates to hear applications under the DFVP Act.

The Domestic and Family Violence Protection Act 2012

  1. [71]
    The main objects and principles for administrating the DFVP Act are set out in ss 3 and 4 of that Act as follows:

3 Main objects

  1. (1)
    The main objects of this Act are—
  1. (a)
    to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and
  1. (b)
    to prevent or reduce domestic violence and the exposure of children to domestic violence; and
  1. (c)
    to ensure that people who commit domestic violence are held accountable for their actions.
  1. (2)
    The objects are to be achieved mainly by—
  1. (a)
    allowing a court to make a domestic violence order to provide protection against further domestic violence; and
  1. (b)
    giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and
  1. (c)
    imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence.

4 Principles for administering Act

  1. (1)
    This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
  1. (2)
    Subject to subsection (1), this Act is also to be administered under the following principles—
  1. (a)
    people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
  1. (b)
    to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
  1. (c)
    perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
  1. (d)
    if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;

Examples of people who may be particularly vulnerable to domestic violence—……”

  1. [72]
    The powers of a court on an application for a protection order (in which the respondent[31] appears) are set out in s 38 of the DFVP Act as follows:

38 Hearing of application—appearance of respondent

  1. (1)
    This section applies if a respondent appears before the court that is to hear and decide an application for a protection order.
  1. (2)
    The court may—
  1. (a)
    hear and decide the application; or
  1. (b)
    adjourn the application, whether or not it makes a temporary protection order under division 2; or
  1. (c)
    subject to subsection (3), dismiss the application without deciding it.
  1. (3)
    The court may dismiss an application without deciding it only if—
  1. (a)
    the applicant has not appeared; and
  1. (b)
    if the applicant is a police officer—no other police officer or service legal officer has requested an adjournment; and
  1. (c)
    no other person eligible to apply for the protection order has appeared.
  1. (4)
    The dismissal of an application does not affect the right of the applicant to make a further application against the respondent.” [Emphasis added]
  1. [73]
    The circumstances in which a court can vary a domestic violence order (when the respondent appears) are set out in s 93 of the DFVP Act as follows:

93 Hearing of application—appearance of respondent

  1. (1)
    This section applies if a respondent appears before the court that is to hear and decide an application for a variation of a domestic violence order.
  1. (2)
    The court may—
  1. (a)
    hear and decide the application; or
  1. (b)
    adjourn the application, whether or not it makes a temporary protection order under division 2; or
  1. (c)
    subject to subsection (3), dismiss the application without deciding it.
  1. (3)
    The court may dismiss the application without deciding it only if—
  1. (a)
    the applicant for the variation is a person other than the respondent; and
  1. (b)
    the applicant has not appeared; and
  1. (c)
    if the applicant is a police officer—no other police officer or service legal officer has requested an adjournment; and
  1. (d)
    no other person eligible to apply for the variation has appeared.
  1. (4)
    The dismissal of an application does not affect the right of the applicant to make a further application against the respondent.” [Emphasis added]
  1. [74]
    The circumstances in which a court can vary a domestic violence order (when the respondent does not appear) are set out in s.94 of the DFVP Act as follows:

94 Hearing of application—non-appearance of respondent

  1. (1)
    This section applies if a respondent fails to appear before the court that is to hear and decide an application for a variation of a domestic violence order and the court is satisfied that the respondent has been served with a copy of the application.
  1. (2)
    The court may—
  1. (a)
    hear and decide the application in the absence of the respondent; or
  1. (b)
    adjourn the application, whether or not it makes a temporary protection order under division 2; or
  1. (c)
    subject to section 156(1), order the issue of a warrant for the respondent to be taken into custody by a police officer and brought before the court; or
  1. (d)
    if the applicant is the respondent – dismiss the application without deciding it.” [Emphasis added].
  1. [75]
    The provisions highlighted above reveal that the Magistrates Court has power to summarily dismiss an application made under DFVP Act in certain circumstances.
  1. [76]
    Section 157 deals with the issue of costs and expressly contemplates a dismissal on the basis that an application is malicious, deliberately false, frivolous or vexatious as follows:

157 Costs

  1. (1)
    Each party to a proceeding for an application under this Act must bear the party’s own costs for the proceeding.
  1. (2)
    However, the court may award costs against a party who makes an application that the court hears and decides to dismiss on the grounds that the application is malicious, deliberately false, frivolous or vexatious.
  1. (3)
    In this section—

 party includes an aggrieved.” [Emphasis added]

  1. [77]
    It follows that by expressly contemplating that applications that can be categorised as malicious, deliberately false, frivolous or vexatious the DFVP Act provides either expressly or by implication for applications that are an abuse of its process to be dismissed. But there is no express reference to a power to stay such a proceeding on these bases.

The Domestic and Family Violence Protection Rules 2014

  1. [78]
    The objects of the DFVP Rules are set out as follows:

5 Main objects of rules

  1. (1)
    The main objects of these rules are—
  1. (a)
    to allow a DFVP court to decide a proceeding in a way that—
  1. (i)
    is consistent with the main objects of the DFVP Act; and
  1. (ii)
    resolves a proceeding under that Act with a minimum of expense; and
  1. (iii)
    facilitates the just and expeditious resolution of the issues relevant to the proceeding; and
  1. (b)
    to provide for the practice and procedure of a DFVP court for a proceeding.
  1. (2)
    These rules are to be applied by DFVP courts with the objective of avoiding undue delay, expense and technicality and facilitating the objects of these rules and the DFVP Act.
  1. (3)
    A party to a proceeding undertakes to the DFVP court and to the other parties to proceed in an expeditious way.” [Emphasis added]
  1. [79]
    Section 6 of the DFVP Rules provides for a failure to comply with rules as follows:

6 Failure to comply with rules

  1. (1)
    A failure to comply with a rule is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding a nullity.
  1. (2)
    However, a DFVP court can make an order dealing with a failure to comply with a rule if the court considers it appropriate.
  1. (3)
    The DFVP court may waive compliance with a rule, or excuse noncompliance with a rule, if the DFVP court considers compliance with the rule would be inconsistent with—
  1. (a)
    the main objects of the DFVP Act under the DFVP Act, section 3; or
  1. (b)
    the principles for administering the DFVP Act under the DFVP Act, section 4.”
  1. [80]
    Rule ­­22 of the DFVP Rules sets out around 16 directions that may be issued by a Magistrate Court in a DV proceeding. These directions include matters such as the removal of scandalous or oppressive matter from an affidavit or from the court file. None of these directions include a power to stay a proceeding.  By rule 26, a failure to comply with a direction is an irregularity and does not render a proceeding or a document or a step taken in a proceeding a nullity.
  1. [81]
    Rule 48 of the DFVP Rules, deals with return of exhibits at the conclusion of a matter and defines a “finalised proceeding” to include a proceeding which a DFVP court has dismissed a DFVP application without deciding it.[32]
  1. [82]
    Part 6 of the DFVP Rules is headed “Ending proceedings early” but deals only with the circumstances of one party withdrawing an application.
  1. [83]
    It follows that the DVFP Rules makes express provision for the summary dismissal of applications but no reference to the power to stay a proceeding.
  1. [84]
    It also follows that there is nothing on the face of either the DFVP Act or its accompanying Rules to suggest that Parliament contemplated that applications made under that legislation would be finalised by way of a grant of a permanent stay, or indeed, even temporarily stayed.
  1. [85]
    Even when one looks more generally for a source of the power, it appears to be lacking.

Other legislative sources

  1. [86]
    In other civil matters, the Magistrates Court has power to stay proceedings by rule 16(g) of the Uniform Civil Procedure Rules 1999 (Qld). However, section 142 of the DFVP Act expressly excludes the UCPR applying to applications made under that Act (but not to appeals), as follows:

142 Procedure for proceeding under this Act

  1. (1)
    The Domestic and Family Violence Protection Rules made under the Magistrates Courts Act 1921, section 57C apply for—
  1. (a)
    a proceeding in a court under this Act; or
  1. (b)
    the registry of a court in relation to a proceeding under this Act.
  1. (2)
    The Uniform Civil Procedure Rules 1999 apply to an appeal under this Act.
  1. (3)
    To remove any doubt, it is declared that the Children’s Court Rules 1997 and the Uniform Civil Procedure Rules 1999 do not apply to a proceeding in a court under this Act.” [Emphasis added]
  1. [87]
    There is a confined power under the Magistrates Court Act for a Magistrate Court to order stays of proceedings.  For example, there are specific provisions relating to employment claims that empower the Magistrates Court to stay claims until further order where parties have failed to comply with conciliation processes,[33] or to award costs where the claim is an abuse of process[34] - but these powers are narrow in scope and specific to employment matters.
  1. [88]
    These narrow powers can be contrasted with the express powers of this court under s69 of the District Court of Queensland Act 1967 (Qld) which include the power to stay proceedings as follows:

69 Powers of District Court

(1) Subject to this Act and to the rules of court, the District Court has, for the purposes of exercising the jurisdiction conferred by this part, all the powers and authorities of the Supreme Court, including the powers and authorities conferred on the Supreme Court by an Act, and may in any proceeding in like manner and to like extent—

  1. (a)
    grant such relief or remedy; and
  1. (b)
    make any order, including an order for attachment or committal in consequence of disobedience to an order; and
  1. (c)
    give effect to every ground of defence or matter of set-off whether equitable or legal;

 as may and ought to be done in like cases by a Judge of the Supreme Court.

  1. (2)
    Without affecting the generality of subsection (1), the District Court shall, in any proceedings in which jurisdiction is conferred under this part, have power to grant relief—
  1. (a)
    by way of a declaration of rights of the parties; and
  1. (b)
    by way of injunction, whether interim, interlocutory or final, in the proceedings; and
  1. (c)
    by staying the proceedings or part thereof…” [Emphasis added].
  1. [89]
    The Civil Proceedings Act 2011 (Qld) applies to the Supreme, District and Magistrates Courts and, unlike the UCPR, is not excluded by the DFVP Act.  Section 7 relevantly states:

"7 Concurrent administration of law and equity

  1. (1)
    A court must exercise its jurisdiction in a proceeding to ensure, as far as possible, that—
  1. (a)
    all matters in dispute between the parties are completely and finally decided; and
  1. (b)
    multiplicity of legal proceedings is avoided.
  1. (2)
    A court must give the same effect as it did immediately before the commencement of this section—
  1. (a)
    to all equitable estates, titles, rights, remedies, defences and counterclaims, and to all equitable duties and liabilities; and
  1. (b)
    subject to the matters mentioned in paragraph (a), to all legal claims and demands and all estates, titles, rights, duties, obligations and liabilities existing under the common law or under any custom or created under any statute.
  1. (3)
    If there is a conflict or difference between the rules of equity and the rules of the common law, the rules of equity prevail.
  1. (4)
    Nothing in this Act affects a court’s power to stay a proceeding if appropriate, either on its own initiative or on the application of any person, whether or not a party.
  1. (5)
    Nothing in this section limits any inherent or other power of a court to make an order for the decision by the court of a question or issue separately from another question or issue or to state a case for the opinion of the Court of Appeal.

(6) Also, nothing in this section increases the jurisdiction given to the District Court under the District Court of Queensland Act 1967 or to a Magistrates Court under the Magistrates Courts Act 1921.” [Emphasis added]

  1. [90]
    In my view the power to grant a stay contained in s 7(4) must be read in conjunction with 7(6) such that this section does not create an express power to order a stay of an application under the DFVP Act.
  1. [91]
    In the absence of an explicit statutory power, it is necessary to consider whether the power arises by implication under any of the above provisions.

Is there a power to stay by implication?

  1. [92]
    As discussed above, in a criminal context, the position in Queensland has been clearly stated to be that the Magistrates Court does not have the power to grant permanent stays at a committal hearing.[35]  Relevantly on the issue of whether powers can be conferred by implication, Keane JA (as his honour then was) made the following useful observations in Higgins (with reference to the High Court decision of Grassby v R[36] which considered the issue in the context of NSW legislation):

“[15] The Magistrates Court, as an inferior court, has only the powers, jurisdiction and functions conferred on it by its constituting statutes. In the absence of any express power to stay committal proceedings, the issue becomes whether such powers should be taken to be conferred on the Magistrates Court as a matter of necessary implication. As Dawson J pointed out in Grassby v R, this is because:

‘… a Magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise …’

[16] Whether or not an inferior court possesses a particular implied power must be determined by reference to the particular function or jurisdiction which that court is authorized by statute to exercise. As Dawson J said in Grassby:

It would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction'. There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings: cf R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 515.’

[17] In Grassby, Dawson J rejected the contention that the powers of a Magistrate conducting an examination of witnesses extended to ordering a stay of those proceedings. The judgment of Dawson J in Grassby was agreed in [sic] by Mason CJ, Brennan and Toohey JJ while Deane J, the only other member of the Court in that case, said that:

‘Subject to one qualification, I am in general agreement with the judgment of Dawson J. The qualification relates not to a matter of general principle but to the effect of the statutory provisions directly involved in this case. My view on that narrow question of construction leads, however, to a different conclusion about the outcome of the appeal from that reached by Dawson J.” [Emphasis added]

  1. [93]
    In my respectful view the above observations remain equally apposite to a consideration of this issue in the context of a civil case.

Conclusion

  1. [94]
    Caution must be exercised when considering whether a power to order a stay ought to be implied. This is particularly the case when considering a power which, even when exercised by a court authorised to do so, can only be granted in exceptional circumstances.[37] The relevant test, as I have stated, is the “necessary implication” test set out in Grassby.[38] In the present case, I am not satisfied that an implied power to stay proceedings is required for the effective exercise of a jurisdiction which is expressly conferred under the DFVP Act – namely the jurisdiction to summarily dismiss applications that are frivolous, vexatious or (either expressly or by implication), an abuse of the court process.
  1. [95]
    In the absence of any direct statutory conferral of the power to order a permanent stay (as appears in the relevant Victorian and NSW legislations),[39] I am not satisfied that such a power ought to be conferred upon the Magistrates Court as a matter of necessary implication under the relevant provisions of the DFPV Act.   
  1. [96]
    It follows that the Acting Magistrate had no jurisdiction to allow the oral application by the respondent’s solicitor to stay the Recent Application to Vary.
  1. [97]
    An order made without jurisdiction is a nullity, the effect of which is that it has no effect even absent an order by this court to set them aside.[40] But where an order is a nullity, it is susceptible to an appeal in which the court can determine whether the order was made in excess of jurisdiction and it can be set aside upon that basis. In Powell v Queensland University of Technology [2017] QCA 200 the Queensland Court of Appeal recognised that it is both appropriate and necessary that the record be corrected by such orders being set aside as nullities.[41]
  1. [98]
    It follows that the order staying the Recent Application to Vary ought to be set aside as a nullity.
  1. [99]
    But that is not the end of the appeal. This courts power on appeal are outlined in s169 of the DFVP Act as follows:

169 Powers of appellate court

  1. (1)
    In deciding an appeal, the appellate court may—
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    vary the decision appealed against; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision appealed against and remit the matter to the court that made the decision.
  1. (2)
    The decision of the appellate court upon an appeal shall be final and conclusive.”

Should the Recent Application to Vary be allowed, dismissed or referred back to the Magistrate’s Court for further hearing?

  1. [100]
    Neither party submitted that this matter ought to be remitted back to the Magistrates Court. The effect of the applicant’s argument on appeal was that this court would make orders that would result in there being no current orders under the DFVP Act in place between the parties.
  1. [101]
    In my view, there is no utility in sending this matter back to the Magistrates Court for further hearing. Having reviewed the transcript of the hearing below, including the reasons of the Acting Magistrate together with the material relied upon by the parties below and the submissions on appeal, I am in a position to determine this matter and substitute another decision.
  1. [102]
    The crux of the applicant’s argument below and on appeal is that the Varied Order should be set aside. The affidavit filed by the applicant in support of the Recent Application to Vary contained a number of allegations relating to parenting issues, and to child support issues which are irrelevant to the issue of whether a protection order is necessary and desirable. It focussed upon the separation of the two sisters, which is largely a result of Family Court Orders over which neither the Magistrates Court nor this court have power to vary. Crucially, the affidavit did not particularise, nor make any reference to the ‘vexatious complaints’ referred to in the Annexure nor does it provide any evidence of the respondent’s alleged use of the Varied Order to “harass, intimidate” or “monitor” the applicant.
  1. [103]
    Apart from the two exceptions identified below, all of the issues the applicant has raised are either: without any evidentiary foundation; have already been determined below; or were the subject of a hearing in the Family Court. In my view there is no basis to allow the Recent Application to Vary in full. But arising from that application and this appeal, I am satisfied on a review of all of the material before me, that there are two variations that ought to be made to the Varied Order.

First variation

  1. [104]
    The applicant sought to remove both his daughters’ names from the Varied Order. I am not satisfied that the applicant has demonstrated any error below warranting the removal of J or R’s names. But in my view, the Varied Order on its face is confusing because it refers to R as a named person but then later states at condition (9) that “this order does not apply to R.” The formatting of the order is ambiguous, and whilst the transcript of the proceedings on 9 February 2018 are not before me, the Acting Magistrate did have the benefit of that transcript and confirmed on the 14 August 2019 that the reference to the “order” not referring to R ought to be a reference to the fact that it is only condition (9) that does not apply to R, rather than the Varied Order in its entirety.[42] Further confusion can be avoided by amending the word “order” to the word “condition” at Order 9 of the Varied Order so that its wording is consistent with the exception contained at Order 4.

Second variation

  1. [105]
    As identified above, an issue emerged during the hearing of the appeal as to a tension between the existing Family Court Orders and the Varied Order in so far as they concerned the applicant’s ability to contact his daughter J in the future. The applicant submitted that the terms of the Varied Order are such that, should his daughter J decide she wished to re-establish contact with him or his side of the family, the Parenting Orders would allow him to contact J (but only in response to initial contact from her), but he would be in breach of the Varied Order if he responded to this contact or arranged further contact with the assistance of the respondent.
  1. [106]
    In response, the solicitors for the respondent submitted:
  1. First, that there is no evidence before the court that J does wish to spend time with the applicant; and
  2. Secondly, that the applicant is not prevented from contacting J because to the extent that there is an inconsistency, the Family Court Orders override the Magistrates Court Order.
  1. [107]
    Turning to the first matter raised by the respondent – that is that there is no evidence that J wishes to spend any time with the applicant. The only evidence of J’s attitude towards her father, the applicant, is found in the independent reports contained in Exhibit A to the respondent’s affidavit sworn 20 June 2019 as follows:
    1. The first Family Report dated 23rd June 2016 reported that:[43]
  1. (a)
    J said that she only sees her Father for 2 hours per week from 11.00am to 1.00pm on Saturdays, and she wants to have more time with him. J said that the reason they are being supervised is ‘so Daddy doesn’t tell us anything bad.’ J said that both of her parents say bad things about each other, and that makes it very hard for them, because she does not want to know about that stuff,”
  1. (b)
    “J said that she is completely fine doing a weekabout arrangement, however, this did not work for R… She said, ‘I want to live with them both, but R only wants to live with Daddy.’”
  1. (c)
    “J said that she would rather do a week-about arrangement, even if R does not do it, so that she can see her Father and sister. She said that it would be very sad to live only with one parent.”
  1. The second Family Report dated 29th May 2018 reported as follows:[44]
    1. (a)
      “J indicated that she has been living with her mother for the past two years and has not seen her father, apart from on a couple of occasions.”
    2. (b)
      “J said that when she sees her father, he asks her a lot of questions and gets angry if she does not answer… J described feeling extremely uncomfortable and pressured by these sorts of interactions.”
    3. (c)
      “J was very definite that she wants to stay living with her mother and said that she does not want to see her father at all.”
    4. (d)
      “When asked her reasons for not wanting to see her father, J reiterated that he always questions her and gets upset if she does not answer.”
    5. (e)
      “When asked if she would feel more comfortable spending time with her father if there were Court Orders in place for him to return her to the mother at the end of visits, J said that her father does not take any notice of the rules. She said that she would still be concerned that he would not send her back to her mother.”
  1. [108]
    The contents of these reports reveal that at least at one point, J expressed a wish to have closer contact with the applicant. But this is no longer the case. So, it is not the case that there is a complete absence of evidence before the court that J wants to spend time with her father. Rather, it appears that one sad consequence of the lengthy litigation of parenting issues, and, it is reasonable to infer, the applicant’s persistence in seeking to rebuild his relationship with his daughter, is that she has been driven away by his efforts. But, given J has changed her mind about how she wishes to interact with her parents in the past, it is reasonable to infer as I do, that she may well change her mind again in the future.
  2. [109]
    In terms of the tension between the Federal and State orders, should J eventually seek to re-establish contact with the applicant, the solicitors for the applicant correctly identify that to the extent of any inconsistency between the Family Court Orders and the Varied Order, the Family Law Orders prevail pursuant to s68Q of the Family Law Act 1975 (Cth).[45]
  3. [110]
    But in my view the tension between the two orders leaves things in an unsatisfactory state and gives rise to further potential of further unnecessary litigation between the parties. This is because, if the situation arose wherein J reached out to the applicant and he responded, if that action was reported to Police as a breach of the Varied Order, it would require the applicant either to pursue a declaration in the Family Court under s68Q of the Family Law Act, or else he would need to contest the breach and provide evidence of his Family Law Orders at that hearing.
  4. [111]
    Either course of action would be costly, burdensome and would require both parties to again appear before a court, which is clearly undesirable.
  5. [112]
    The practical issues arising from an apparent inconsistency between Protection Orders and Family Law Orders are not novel, and they are often addressed with the inclusion of what are colloquially known as “Family Law Exceptions.” The inclusion of such an exception in the present case will potentially alleviate some of the difficulties the applicant alleges he faces, and ought to have a de-escalating effect on the obvious acrimony between the parties. For example, the inclusion of an exception may encourage the parties to act consistently with Justice Baumann’s observation that if the children do wish to communicate and spend time with each other, “and it requires both the mother and father to facilitate travel, I am satisfied the parents will do so.”[46]
  6. [113]
    Importantly, I am satisfied that the inclusion of such an exception would not remove any of the protection afforded by the Varied Order,[47] which, subject to the two changes I have outlined will remain in place until 9 February 2023.
  7. [114]
    Solicitors for the respondent provided no persuasive reason as to why such an exception ought not to be included in the Varied order.

Orders

  1. [115]
    I therefore order as follows:
  1. The appeal is allowed;
  1. The permanent stay imposed by the Acting Magistrate on 14 August 2019 is set aside as a nullity;
  1. The Protection Order – Varied Order made on 9 February 2018 is confirmed subject to the following variations to be made:
  1. (a)
    The words “this order does not refer to” at condition (9) are amended to “this condition does not apply to”;
  1. (b)
    A Family Law Exception as follows is to be inserted at conditions (4), (5), (7) and (9):

“This condition does not apply to the extent that it is necessary for the parties to attend an agreed conference, counselling, mediation session, or when having contact with a child as set out in writing between the parties or in compliance with an order of a Court.”

  1. The applicant’s Application to Vary a Protection Order filed on 27 March 2019 is otherwise dismissed.
  1. [116]
    There is power to order costs on this appeal.[48] But given my findings, my current view is that there should be no order as to costs. But if another order is sought, I will allow the parties until 4.00pm Thursday 21 May 2020, to provide short written submissions of no more than 2 pages which should be emailed to my Associate.  Otherwise the order will be that there is no order as to costs.

Footnotes

[1]  The applicant, who is unrepresented, filed his Notice of Appeal on 27 August 2019, his first outline of argument on 19 September 2019 and his second outline of argument on 17 February 2020.

[2]  The respondent, who is legally represented, filed her first outline of argument on 21 October 2019. The matter was first heard before me on 11 February 2020, and at the request of this court, further written submissions were filed by the respondent on 13 February 2020, and by the applicant on 17 February, with a resumed hearing on 20 February 2020.

[3]  These facts are elicited from a short affidavit with lengthy exhibits sworn by the respondent (‘Respondent’s Affidavit’) on 20 June 2019 and filed in support of her opposition to the Recent Application to Vary.

[4]  Exhibit A of the Respondent’s Affidavit, p 308 at [13].

[5]  Exhibit A of the Respondent’s Affidavit, page 152, ll 1-32.

[6]  Exhibit A of the Respondent’s Affidavit, page 152, l 5 – page 153, l 3.

[7]  Unreported decision of McGinness DCJ of H v Queensland Police Service [2018] QDC delivered at Southport on 10 December 2018.

[8]  Exhibit A of the Respondent’s Affidavit, page 464 at (2)-(4), and page 466 at [3].

[9]  Exhibit A of the Respondent’s Affidavit, page 310 at [33].

[10]  Exhibit A of the Respondent’s Affidavit, page 502 at [96].

[11]Webb v The Queen (1994) 122 ALR 41, per Deane J at 67;  Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [33] per Gleeson CJ, McHugh, Gummow and Hayne JJ. See the more recent discussion on this issue by President Sofronoff in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2019] QCA 184 at [20].

[12]  See the observations by McGill SC DCJ in GKE v EUT [2014] QDC 248 at [3], citing Mbuzi v Torcetti [2008] QCA 231 at [17] and Johnson v Queensland Police Service [2014] QCA 195 at [27].

[13] See  the observations of McMurdo JA in Bode v Commissioner of Police [2018] QCA 186 at [42] with reference to the High Court in Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at 686-687; [2016] HCA 22 at 43.

[14] SGLB v PAB [2015] QMC 8 at [9] to [16] with reference to a number of authorities including Walton v Gardiner (1993) 177 CLR 378 at 395; Hamilton v Oades (1989) 166 CLR 486 at 502; Williams and Ors v Spautz (1992) 174 CLR 509 at 520. 

[15] Williams and Ors v Spautz (1992) 174 CLR 509 at 520; R v Smith [1995] 1 VR 10 at 14.

[16]  Full footnote omitted but with refers to the observations of McHugh J in Rogers v R (1994) 181 CLR 251 at 286.

[17] SGLB v PAB [2015] QMC 8 T [17] to [20].

[18]  Ibid at [17]. Full footnote omitted but with reference to Dey v Victorian Railway Cmrs (1949) 78 CLR 62 at 91.

[19] Grassby v R (1989) 168 CLR 1; [1989] HCA 45, cited in SGLB v PAB [2015] QMC 8 at [17].

[20] SGLB v PAB [2015] QMC 8 at [17] citing Consolidated Press Holdings Ltd v Wheeler (1992) 84 NTR 42, and Grassby v R (1989) 168 CLR 1 per Dawson J at [21].

[21] SGLB at [19].

[22] Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139.

[23] O’Toole v Scott (1965) 65 SR (NS) 113.

[24] Edgar v Freeman [1915] VLR 16.

[25] SGLB at [20].

[26] SGLB at [20].

[27] Doonan v McKay [2002] QCA 514 concerned a complaint charging two offences under the Forestry Act 1959.

[28] Williams and Ors v Spautz (1992) 174 CLR 509 concerned numerous criminal prosecutions made by Dr Spautz.

[29]  Bearing in mind the Briginshaw principle as discussed in ADH v ALH [2017] QDC 103 at pages 46 and 47 per Morzone QC DCJ.

[30] Higgins v Comans (2005) 153 A Crim 565; [2005] QCA 235 per McPherson and Keane JJA and White               J.

[31]  The term ‘Respondent’ for the purposes of ss 38, 93 and 94 of the DFVP Act is defined under s21(3) of that Act as “a person against whom a domestic violence order, or a police protection notice, is in force or may be made under this Act.”

[32]  Rule 48(6)(a) of the DFVP Rules.

[33] Magistrates Court Act 1921 (Qld) s 42H(3).

[34] Magistrates Court Act 1921 (Qld) s 42ZC(1)(a).

[35] Higgins v Comans (2005) 153 A Crim R 565; [2005] QCA 234.

[36] Grassby v R [1989] HCA 45.   

[37] Jago v District Court of NSW & Ors (1989) 168 CLR 23, at [14]-[16].

[38] Grassby v R (1989) 168 CLR 1 per Dawson J at [21].

[39]  In Victoria: Magistrates have an express power both to stay and dismiss Family Violence proceedings/ applications for proceedings which are scandalous, frivolous, vexatious or otherwise an abuse of the process of the Court (s.209  of the Family Violence Protection Act 2008 (Vic) and Rules 6.01 and 6.02 of the Magistrates Court (Family Violence Protection) Rules 2008 (Vic); and in a Family Violence Protection matter the court is also able to make litigation restraint orders under the Vexatious Proceedings Act 2014 (Vic); In  New South Wales: section 68 of the Crimes (Domestic and Personal Violence) Act 2007 No 80 (NSW) expressly confers powers on Magistrates/Local Courts to stay any application proceedings before it either permanently or temporarily; s. 53 of the Crimes (Domestic and Personal Violence) Act 2007 No 80 (NSW) also expressly contemplates a process where the registry can refuse to issue proceedings in applications for AVOs (the NSW equivalent of a Protection Order/ DVO) which are made without substance, are frivolous and vexatious.

[40] Attorney General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357 (per McHugh  JA) cited with approval inUnited Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 335 (per Samuels JA) with whom Clarke JA and Meagher JA agreed; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 162 ALR 336 at 343; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 at [27]- [28].

[41]  This decision and the issue of the effect of an order made without jurisdiction is discussed in YJ Pty Ltd & Ors v Huang’s Properties [2018] QDC 240 at [101]. 

[42]  Transcript of Proceedings – Domestic Violence Application, 14 August 2019, at 1-2, ll 24-29.

[43]  Family Report dated 23 June 2016, contained in Exhibit 1 of Respondent’s Affidavit.

[44]  Family Report dated 29 May 2018, contained in Exhibit 1 of Respondent’s Affidavit.

[45] Family Law Act 1975 (Cth) s68Q.

[46]  Exhibit A to the Respondent’s Affidavit, page 501 at [94].

[47]  See, eg: Harvey v QPS [2018] QCA 064.

[48]  s 157 of the DFPV Act as discussed in BAK v Gallagher & Anor (no 2) [2018] QDC 132 at [8]-[18].

Close

Editorial Notes

  • Published Case Name:

    HDI v HJQ

  • Shortened Case Name:

    HDI v HJQ

  • MNC:

    [2020] QDC 83

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    14 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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