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  • Unreported Judgment

ABF v DZT

 

[2020] QDC 136

DISTRICT COURT OF QUEENSLAND

CITATION:

ABF v DZT [2020] QDC 136

PARTIES:

ABF

(Appellant)

v

DZT

(First Respondent)

FILE NO/S:

D319 of 2019

DIVISION:

Appellate

PROCEEDING:

Domestic Violence Appeal

ORIGINATING COURT:

Magistrates Court Southport

DELIVERED ON:

22 June 2020

DELIVERED AT:

Southport

HEARING DATE:

28 May 2020

JUDGE:

McGinness DCJ

ORDER:

  1. Confirm the decision appealed against.
  2. The appeal is dismissed.

CATCHWORDS:

DOMESTIC VIOLENCE – APPEAL – whether the Magistrate heard and determined the application to vary according to law – whether the application to vary was made in accordance with the legislation – whether the Magistrate gave sufficient reasons.

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) Sections 8, 11, 29, 37, 42, 43, 86, 91, 93, 164 and 169

CASES:

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 29

Edwards v Noble (1971) 125 CLR 296

Soulemezis v Dudley (Holdings) Pty Ltd NSWLR 247

Teelow v Commissioner of Police [2009] 2 Qd R 489

COUNSEL:

The appellant and respondent appeared self-represented.

Introduction

  1. [1]
    The appellant appeals under s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) against a decision made by the Magistrate on 29 November 2019 in the Southport Magistrates Court to vary a two year protection order made pursuant to s 86 of the Act. On that date, the Magistrate granted a variation of the original protection order made on 29 January 2018 by extending the duration of the order for a period of three years to 29 January 2023.
  1. [2]
    The respondent and appellant have filed written submissions and made oral submissions at the appeal hearing.[1]Both are self-represented.

History of the matter

  1. [3]
    The appellant and respondent married on 29 July 2006 and separated under the same roof on 12 September 2015. They have one child, G.
  2. [4]
    On 25 September 2017, the respondent made a complaint to police at Southport Police station that she had been assaulted by the appellant in the garage at their home. The police completed a Police Protection Notice. The respondent’s grounds for the application were set out in a 4 page document attached to the Police Protection Notice and an affidavit sworn by the respondent on the same day.[2]The respondent deposed that the appellant physically assaulted her on 25 September 2017. The respondent claimed that, in the days leading up to the assault, the appellant had demanded she pay his phone bill, which she refused to do, because she believed he had been spending money on drugs. After another demand on 25 September 2017, the appellant walked towards her, grabbed her shoulders with both hands, and then pushed her causing her to fall into her car. He grabbed her left wrist and squeezed hard. She felt immediate pain and screamed because she believed he was going to kill her. The appellant let go when she screamed and she ran into the house. The respondent left the house with their daughter and went to police. The respondent also deposed that the appellant had access to firearms, was financially controlling, was taking illicit drugs, and was constantly verbally and emotionally abusive.
  3. [5]
    Later that day, on 25 September 2017, police served the appellant with the Police Protection Notice naming the respondent as the aggrieved and the appellant as the respondent. The notice contained conditions that the appellant have no contact with the respondent and move out of the family home. A temporary protection order was made on 11 October 2017.[3]
  4. [6]
    On 29 January 2018, the application for a protection order under s 37(1) of the Act proceeded to hearing. The respondent filed an addendum affidavit.[4] She deposed that the appellant was physically violent,[5]financially controlling, and had been emotionally and psychologically abusive for many years; bullied her on an almost daily basis; told her she didn’t meet his expectations as a wife; and accused her of being the sole cause of his failing business.[6]The affidavit includes numerous examples of the alleged domestic violence.[7]
  5. [7]
    On the morning of the hearing, the appellant, who was represented by a barrister, ultimately consented to a two year protection order. The order was made on a “without admission basis”.
  1. [8]
    On 22 January 2019, the appellant was found guilty in the Magistrates Court of two breaches of the protection order. There are no details of the breaches before this court apart from the parties agreeing the breaches were in relation to contact.
  2. [9]
    On 15 November 2019, the respondent applied for a variation of the protection order seeking it be extended for a further three years due to ongoing domestic violence in the form of emotional and psychological abuse.[8]Annexed to the respondent’s application was a 13 page statement setting out allegations of continuing emotional abuse.
  3. [10]
    The matter was set for hearing on 27 November 2019.

Application to Vary Hearing on 27 November 2019

  1. [11]
    At the hearing, the respondent was represented. The police were represented. The appellant appeared self-represented. He declined assistance from the duty lawyer.[9] The respondent relied on her 13 page statement and copies of messages annexed to the application that the appellant had sent her whilst he was subject to the original protection order.
  2. [12]
    The respondent also filed an affidavit with attachments of written correspondence between the parties, which allegedly showed the appellant continuing to abuse the respondent. The Magistrate was also provided with an interim order of the Federal Circuit Court of Australia in relation to parenting and custody matters, delivered on 15 March 2019.
  3. [13]
    During the hearing, no witnesses were cross-examined. The respondent’s lawyer referred the Magistrate to numerous messages, annexed to the respondent’s affidavit, which the appellant sent the respondent between the date of the original order and date of the application to vary. The messages reflect that the appellant accused the respondent of perjuring herself in court documents, using emotional blackmail, and manipulating their daughter. The appellant did not deny that he had sent the messages to the respondent.
  4. [14]
    It was uncontested that the appellant had also failed to remove his property from the family home, provided for under condition 6 of the protection order; he sent a message to the respondent informing her he had had a gutful and was going to leave his property [in the house] until late January 2020, which is when the order was due to expire;[10]the property settlement before the Federal Circuit Court was still unresolved, and the respondent’s lawyer submitted the respondent was concerned the appellant would try to move back into the house once the protection order ceased; the appellant had been convicted of two breaches of the Protection order on 22 January 2019; he had consistently failed to undertake hair follicle drug testing for “ice and ecstasy”[11]as required under the Federal Circuit Court Order; and he had not undertaken counselling which was ordered by the Federal Circuit Court.
  5. [15]
    The respondent’s lawyer submitted that, in all the circumstances, the respondent was fearful that if the order was not extended, the respondent would be at risk of further domestic violence. The order was due to expire approximately 2 months later on 29 January 2020.
  1. [16]
    The Magistrate next called on the appellant to make his submissions. The appellant was granted leave to read and file statutory declarations from TJ, SJR and DK. They were friends of the appellant. They swore to his good character and the fact they had never witnessed him act in a violent manner. The Magistrate appears to have read the statutory declarations.[12]The appellant also handed up an affidavit under his own hand.[13]The appellant addressed the Magistrate. He submitted he was forced to consent to the original protection order under duress from his barrister.[14]He submitted that he was not an abusive person, rather the respondent was a liar and the abusive one in the relationship.[15]His main concern was that the protection order was preventing him from seeing his daughter. The Magistrate pointed out to the appellant that it was his failure to comply with drug testing under the Federal Circuit Court Order that was preventing him spending time with his daughter. The appellant conceded he hadn’t undertaken drug testing but complained he couldn’t afford to do so. The respondent’s solicitor informed the court that the respondent had agreed to pay the invoices for any drug tests, and that this formed one of the conditions of the Federal Circuit Court Order. She had also agreed to pay for the counselling programme ordered by the Federal Circuit Court. When the Magistrate asked him why he had not complied with the Federal Circuit Court Order dated 15 March 2019, to attend and complete the Parenting Orders Programme with Centacare, the respondent submitted that “as I have not committed domestic violence … it was deemed that I would be better off going down for some one on one counselling which I attended”.[16]
  2. [17]
    The appellant’s submissions centred on problems with access to his daughter. The Magistrate reminded the appellant that access to his daughter was governed by the Federal circuit court orders, not the Protection Order. The Magistrate gave the appellant sufficient opportunity to make his submissions before delivering his decision.
  3. [18]
    The Magistrate determined, having heard submissions, that he was satisfied in all the circumstances that it was appropriate to order the protection order be extended until 29 January 2023. That is an extension of 3 years, making a total of 5 years from the date of the original protection order. His reasons state as follows:

“This is the matter of the Aggrieved [DZT] and the Respondent [ABF]. On the 29th of January 2018 in this Court, with the Respondent being represented by Mr Campbell of counsel, a protection order was entered into on certain terms. Also on that day, an intervention order was entered into, where it was anticipated that the Respondent would be entered into a men’s behaviour program. The application before me today is an application by the Aggrieved for an extension of the time of that protection order.

I have heard submissions from [the respondent], and he has handed up a number of affidavits and statutory declarations, including one from [TMJ] dated the 25th of November, a statutory declaration of [SJR], a doctor, dated the 25th of November 2019, another statutory declaration of [DK] dated 25 November 2019, an outline of argument and an affidavit of himself sworn the 27th of November. I have also been handed an order of the Federal Circuit Court of Australia delivered on the 15th of March 2019 of Judge Egan, where it outlines certain conditions around the access and custody of the named child, who is also named as a child of the Aggrieved in the protection order. I am satisfied that in all the circumstances, it is appropriate to order the protection order be extended from an expiration date of the 21st [sic] – 29th of January 2018 to run for an additional period of five years, being what would have been the ordinary period of a protection order, so it will be extended until the 29th of January 2023. Ms Chuer. Ms Robinson.”

Appellant’s submissions on Appeal

  1. [19]
    The appellant submits the learned Magistrate erred by:
    1. Finding, pursuant to s 29 of the Act, that the respondent’s circumstances have changed since the making of the original protection order, and failing to take into consideration that the respondent’s circumstances have not changed since the making of the protection order;
    2. Failing to take into consideration the appellant’s affidavit and other evidence he handed up at the hearing attesting to the appellant’s good character and non-violent nature; and
    3. Failing to consider whether a variation of the protection order was necessary and desirable to protect the respondent and named person from domestic violence.

Respondent’s submissions on Appeal

  1. [20]
    The respondent submits that, in her Application to Vary, she attached copies of recent messages sent to her by the appellant which confirmed the appellant continued to emotionally and psychologically abuse her, and which caused her fear and emotional harm.[17]
  2. [21]
    On this appeal, the respondent relied on the original material filed in the earlier application to vary and on an affidavit filed on 4 February 2020, which included copies of the earlier messages. The respondent submits that the same evidence was relied upon by the learned Magistrate in his decision to grant the variation as requested by the respondent.
  3. [22]
    The respondent submits that the hearing of the Application to Vary on 27 November 2019 lasted approximately 45 minutes, and the appellant was given sufficient time to make submissions. At the hearing, the appellant was granted leave to file his affidavit and statutory declarations – the character references. He was given an opportunity to make submissions to the Magistrate. The respondent submits it was open to the learned Magistrate to hear and decide the Application to Vary on that day.
  1. [23]
    The respondent further submits the appellant has erred in concluding that the only way a protection order can be varied is by relying on s 29 of the Act.

Relevant legal principles

  1. [24]
    Section 169 of the Domestic and Family Violence Protection Act 2012 provides the appellate court may:
  1. (a)
    confirm the decision appealed against; or
  2. (b)
    vary the decision appealed against; or
  3. (c)
    set aside the decision and substitute another decision; or
  4. (d)
    set aside the decision appealed against and remit the matter to the court that made the decision.
  1. [25]
    The appeal is by way of a rehearing on the evidence given in the proceedings before the Magistrate. The court must have regard to all of the evidence before it and determine whether the order made by the Magistrate is the result of some legal, factual or discretionary error, see Teelow v Commissioner of Police [2009] 2 Qd R 489.
  2. [26]
    The appeal court must conduct a real review of the trial and the Magistrate’s reasons, and make its own determination of relevant facts and issues from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.
  3. [27]
    The question is not whether the appellate court may have made a different finding, but rather whether the Magistrate’s finding was reasonably open on the evidence, see Edwards v Noble (1971) 125 CLR 296 at 304.
  4. [28]
    Section 86 of the Act provides the court may vary a domestic violence order upon a written application for a variation to the court. The court may vary a domestic violence order in a number of ways:
  1. (a)
    if circumstances change after a domestic violence order is made, (s 29 of the Act);
  2. (b)
    upon conviction of a domestic violence offence, (s 93(2));
  3. (c)
    on its own initiative (ss 42 and 43);
  4. (d)
    upon written application for a variation to the court.
  1. [29]
    The application must be in the approved form, state the grounds on which it is made, and state the nature of the variation sought. The variation may relate to varying the duration of the order.[18]
  2. [30]
    Section 91 of the Act provides for when a court can vary a domestic violence order and what factors it must consider. Relevantly, the court must consider the grounds set out in the original application for the protection order and the findings of the court that made the original protection order.[19]
  3. [31]
    Under section 91(3), before the court varies a domestic violence order, the court must consider a respondent’s failure to comply with a previous intervention order or may consider the respondent’s compliance with a previous intervention order.

Consideration

Change of circumstance not necessary, but present here

  1. [32]
    The appellant’s submission that the respondent has failed to show any change of circumstances has occurred since the granting of the original order is misconceived for two reasons. First, an Application to Vary under s 91 of the Act does not require a change in circumstances, although a change in circumstances may be one reason to apply for a variation pursuant to s 29 of the Act. Second, I consider there has been a change in circumstances since the granting of the original protection order. For example, the appellant has subsequently been convicted of twice breaching the original order and he has continued to send abusive messages to the respondent.

Failing to take into consideration the appellant’s affidavit and other evidence

  1. [33]
    The appellant’s submission that the Magistrate failed to take into consideration evidence handed up at the hearing attesting to the appellant’s good character and non- violent nature is without merit.
  2. [34]
    At the hearing, the appellant was present in court. He handed up an affidavit under his own hand and three character references in the form of statutory declarations. The Magistrate granted leave for him to read and file that material, and the Magistrate allowed the appellant to present his arguments during the hearing. The Magistrate specifically referred to the affidavits and statutory declarations of TMJ, SJR and DK, the appellant’s outline of submissions, and the appellant’s affidavit in his reasons. The only reasonable inference is that he considered this material. The good character evidence is, in any event, not relevant to whether the protection order should have been varied.

Insufficient Reasons

  1. [35]
    Although the self-represented appellant did not submit the Magistrate gave insufficient reasons, this is a matter that requires some consideration.
  2. [36]
    The transcript of the hearing does show the Magistrate had a copy of the original protection order before him, because he referred to the date entered at the bottom of the order during the hearing.[20]The Magistrate made no mention in his reasons that he had a copy of the original police application before him. He did not refer to having read or considered it either during the hearing or in his reasons.
  3. [37]
    Pursuant to s 91 of the Act, the Magistrate was required to consider the following matters before granting a variation of the protection order:
  • The grounds set out in the original application for the protection order;
  • The findings of the court that made the original protection order;[21]and
  • The respondent’s compliance or non-compliance with any intervention order.[22]
  1. [38]
    The Magistrate’s reasons for granting the variation by extending the order until 29 January 2023 are short and devoid of any specific reasons for granting the Application to Vary, except to say he was satisfied in all the circumstances it was appropriate to order the protection order be extended. He did not state that he had considered the matters under s 91 of the Act.
  1. [39]
    This is, at the very least, unfortunate. Failure to give proper reasons, even in the busy domestic violence jurisdiction, makes it difficult or sometimes impossible for an appeal court to be satisfied the Magistrate made the correct decision and had regard to the relevant facts and law. Had the Magistrate given proper reasons on this occasion, it would have assisted the appellant to understand why the Magistrate was granting an extension and what material he had considered. It also would have prevented a very real risk of the appeal being allowed on the basis of lack of reasons, therefore putting the parties through further delay as well as the stress of a rehearing of the Application to Vary the Protection order in the Magistrates court.
  2. [40]
    In Drew v Makita (Australia) Pty Ltd[23](Makita), in the reasons of Muir JA, Holmes JA as her Honour then was, and Daubney J agreeing, the court relevantly observed:

“[57] A court from which an appeal lies must state adequate reasons for its decision. The failure to give sufficient reasons constitutes an error of law.

[58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with ‘a justifiable sense of grievance’ through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide ‘the foundation for the acceptability of the decision by the parties and the public’ and to further ‘judicial accountability’.”

  1. [41]
    In Makita, their Honours also considered Soulemezis v Dudley (Holdings) Pty Ltd:[24]

“[59] The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and "the function to be served by the giving of reasons." For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said: ‘… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’

[60] McHugh JA's view was that reasons sufficient to meet the  above requirements do not need to be lengthy or elaborate but ‘… it is necessary that the essential ground or grounds upon which the decision rests should be articulated’.”

  1. [42]
    Due to the Magistrate’s brief reasons, it is not possible for me to be satisfied that he had regard to the required relevant factors under s91 and s37 of the Act. In other words, I cannot exclude the possibility that his decision was the result of some legal, factual or discretionary error.

Rehearing

  1. [43]
    In the circumstances of the present case, although the Magistrate failed to give adequate reasons, this court has all the material necessary to conduct a rehearing on the evidence given in the proceedings before the Magistrate. This court must conduct a real review of the hearing and the Magistrate’s reasons, and make its own determination of relevant facts and issues from the evidence.
  2. [44]
    I have considered the material filed in the original application for a protection order. The material includes the original application for a protection order, the grounds for the original application for a protection order, the transcript of proceedings of the original application for a protection order, and a copy of the protection order consented to without admission by the appellant. I have read all relevant material filed for the Application to Vary the Protection order, including the appellant’s affidavit and submissions, and statutory declarations from three friends, and the respondent’s attached statement and annexures filed prior to the application. I note there was no cross-examination of any witnesses. I also have regard to the four affidavits filed by the appellant and the one affidavit filed by the respondent as evidence on the current appeal, all of which I granted leave to read and file.
  3. [45]
    I have reviewed the evidence from the hearing of the original protection application on 29 January 2018, as well as the conditions of the original protection order. The order was made by consent, without admission, for a period of two years. I have reviewed the transcript of the Application to Vary the Magistrate’s reasons and carefully reviewed the material relied on by the appellant and respondent to this appeal.
  4. [46]
    I am satisfied that there was evidence before the Magistrate on 27 November 2019 which warranted an extension of the protection order for a further three years. I am satisfied the appellant has continued to fail to comply with the conditions of the original protection order. I have regard to the following factors:
  • The grounds of the initial application for a protection order included allegations of physical, psychological and emotional domestic violence;
  • The appellant consented without admission to the original protection order for a period of two years;
  • The first condition of the order is that the appellant be of good behaviour towards the respondent, yet the appellant has continued to send sarcastic, abusive and intimidating messages to the respondent, some of which I am satisfied go close to amounting to domestic violence as defined in s 8(1)(b) of the Act. The correspondence annexed to the respondent’s statement filed in the earlier proceedings, and copies of messages the appellant has sent her which are annexed to the respondent’s affidavit on appeal, display numerous examples of emotionally abusive messages sent on the Talking Parents Website between September and November 2019,[25]and after the variation of the protection order on 29 November 2019, in January 2020.[26]Some of the many examples are as follows:

On 25 October 2019:

“Stop lying [D]. Saying I am full of anger and hatred is without foundation and just another attempt to deflect from the real issue and provoke a reaction out of me. Men that are full of anger and hatred for their ex-partner and can’t control their emotions generally kill their ex-partner. The fact that you’re not only still alive, but you have never been harmed by me in any way confirms you are lying again.[27]

On 8 September 2019:

“You waited all day Friday? You created this situation, and damaged your own daughter’s future, by going to the police and lying about being assaulted by me. I’m really sorry if you were inconvenienced, but tough titties, as far as I’m concerned. You seem to have forgotten that you are living in my house, these are my belongings, just because you lie and manipulate people, that doesn’t change. As I said, I will have 1 more attempt to arrange to pick up what ever belongings I choose, in what ever manor is convenient to me. What you want is of little relevance”.[28]

On 13 September 2019:

“Of course [D], you would never lie and manipulate people. You’re a Christian after all. I’m just curious to know why you’re so willing to call the police today and last Friday, yet you refused to call the police on numerous occasions when I suggested that it was the simplest way to arrange this. Your words seem to contradict your actions. The only surprising thing is that after all these years I still expect that you’re capable of behaving like a decent person”.[29]

On 29 October 2019:

“[D], you know all to [sic] well that I would be breaching the DV order, you falsely had put in place, if I was to attend this performance. Stop pretending you care about anyone other than yourself. This is yet another attempted provocation. Please stop contacting my friends and undermining my close relationship. I have spoken to you about this exact thing, so you know exactly how I feel about your behaviour. All you need to do is ask me. DO NOT CONTACT ANY OF MY FRIENDS WITHOUT 1ST CONTACTING ME. I know you’re desperate to report me to the police again but it won’t work! As much as I would love to tell you exactly what I think of your behaviour, I have the strength to restrain myself because I put [G’s] wellbeing ahead of my personal compulsions, like all good loving parents do. Please stop this destructive behavior and devote some energy to replying honestly to my previous messages”.[30]

On 29 October 2019:

You just said I have no reason to be worried. Are you for real? How can I be expected to communicate with a delusional person who is incapable of telling the truth? [31]

On 7 November 2019:

“What makes you think you’re entitled to live in a house you don’t own without paying any repayments or rent?”[32]

On 13 November 2019:

“Do you actually read my messages? This is about [G], I couldn’t care less about you or What you want. Stop using my daughter to manipulate me, it is wrong. Please read my last message, it clearly states what you need to do in order that I attend [G’s] graduation and awards ceremony. I’m not going to waste my time going over it again. You created this situation with your lies, you have greatly hurt your daughter, please stop”.[33]

On 15 November 2019 following the variation of the protection order: Only you can prevent your child from suffering the same trauma you did as a child but your mental illness won’t let you. It’s very hard to watch you hurt my daughter knowing you do so with the protection of the court and police”.[34]

On 13 December 2019:

“Don’t bullshit and say you could see the tears welling in her eyes, you were driving and should have been watching the road. Then you accuse me of focusing on the negative and not the positive aspects of

[G] report. More lies designed to be submitted to court. I had covered this subject in previous correspondence, but no doubt you won’t be submitting that, you just include small snippets of conversation that make me look bad. AS LONG AS YOU KEEP CREATING CONFLICT, YOU ARE HURTING [G]. PLEASE STOP IT, AND IF YOU CANT, PLEASE GET HELP”.[35]

  • The appellant’s counsel at the original hearing on 29 January 2018 submitted that the order should only be two years. In support of that submission, the appellant had already surrendered his weapons and undergone counselling, and was “offering to enter into an intervention order”.[36]Unfortunately, the appellant was found to be unsuitable to take part in the Intervention Programme. I note that under s 97(2)(b) of the Act, the court may make a protection order for less than 5 years only if the court is satisfied there are reasons for doing so. The only apparent reason for initially doing so was because of the appellant’s offer to enter into an intervention order. Although it may not be his fault that he was found to be unsuitable, he presented no evidence at the hearing of the Application to Vary that he had completed any domestic violence courses, although he apparently attended three counselling sessions.
  • The appellant was found guilty in the Magistrates Court of two breaches of domestic violence committed after the imposition of the protection order.
  • The appellant continually delayed, without good reason, the removal of his property from the house where the respondent and their daughter resided. At the time the Magistrate heard the Application to Vary, the parties had not reached a property settlement and the clear inference open to the Magistrate, based on some of the parenting messages, was that the appellant considered the house to be his, even though that is where the respondent and their daughter were living.
  • The appellant concedes he has a history of methylamphetamine use, yet he had failed as at the date of the Application to Vary and the date of the appeal hearing to undergo hair follicle drug analysis in accordance with the Federal Circuit Court Order dated 15 March 2019. The Order states the appellant is not to have unsupervised access to his daughter until he completes drug testing. The appellant has been refusing to regularly see his daughter unless his visits are unsupervised. The court order states the respondent will pay for the test, yet the appellant provided no reasonable excuse to the Magistrate or to this court for not undergoing drug testing. This is the main barrier to the appellant having unsupervised contact with his child, yet in written messages to the respondent, he blames her for ruining their daughter’s life and for not allowing him to have unsupervised contact.
  • The appellant has failed to undertake a court ordered Parenting Order Programme as directed under (21) of the Federal Circuit Court order dated 15 March 2019.
  1. [47]
    During the appeal hearing on 28 May 2020, the appellant made oral submissions. He continually blamed the respondent for inciting him to send her the relevant messages, for keeping him from seeing his daughter, and for mentally harming their daughter. I am satisfied he displayed almost no insight into how his ongoing written communications with the respondent would amount to emotionally or psychologically abusive behaviour.[37]
  2. [48]
    I have considered the factor under s 91 of the Act. I have also considered the factors under s 37(1) of the Act. An extension of the current order until 23 January 2023 is necessary and desirable to protect the respondent from domestic violence. I confirm the decision appealed against.[38]
  3. [49]
    The appeal is dismissed.

Footnotes

[1] 28 May 2020.

[2]Affidavit of Respondent sworn 25 September 2017.

[3] Transcript of hearing for protection order on 29 January 2018, p.5, l. 39.

[4]There is nothing on the court file to indicate when the affidavit was filed.

[5]Affidavit of Respondent sworn 10 November 2017, [35].

[6]Affidavit of Respondent filed 15 November 2017, [22] [24].

[7] Affidavit of Respondent sworn 15 November 2017, [24]-[35].

[8]Application to Vary filed 15 November 2019.

[9]Transcript of Application to Vary hearing on 27 November 2019, p. 2, ll. 10-15.

[10]Transcript of Application to Vary hearing on 27 November 2019, p. 5, ll.10-15.

[11]Transcript of Application to Vary hearing on 27 November 2019, p. 6, ll.10-15.

[12]Transcript of Application to Vary hearing on 27 November 2019, p. 13, l. 3.

[13]Affidavit of Appellant filed 10 November 2017.

[14]Transcript of Application to Vary hearing on 27 November 2019, p. 7, ll. 30-40.

[15]Transcript of Application to Vary hearing on 27 November 2019, p. 8, ll. 18-25.

[16]Transcript of Application to Vary hearing on 27 November 2019, p. 4, ll. 20-30.

[17]For example, Message dated 29 October 2019 in annexure C to Application to Vary filed 15 November 2019.

[18]Domestic and Family Violence Protection Act 2012 (Qld) s 86(2), (3).

[19]Domestic and Family Violence Protection Act 2012 (Qld) s 91(2).

[20]Transcript of Application to Vary hearing on 27 November 2019, p. 3, ll. 5-20

[21]Domestic and Family Violence Protection Act 2012 (Qld) s 91(2).

[22]Domestic and Family Violence Protection Act 2012 (Qld) s 91(3).

[23][2009] 2 Qd R 29.

[24]10 NSWLR 247.

[25]Respondent’s Application for Variation, Statement and Attachments A-H filed 15 November 2019.

[26]Respondent’s Affidavit and Attachments A-Z filed 4 February 2020.

[27]Respondent’s Statement and Attachment “I” filed 4 February 2020.

[28]Attachment “O” to the Respondent’s Statement filed 4 February 2020.

[29]Attachment “O” to the Respondent’s Statement filed 4 February 2020.

[30]Attachment “L” to the Respondent’s Statement filed 4 February 2020.

[31]Respondent’s Statement and Attachment “L” filed 4 February 2020.

[32]Respondent’s Statement and Attachment “S” filed 4 February 2020.

[33]Respondent’s Statement and Attachment “W” filed 4 February 2020.

[34]Respondent’s Statement and Attachment “J” filed 4 February 2020.

[35]Attachment “L” to the Respondent’s Statement filed 4 February 2020.

[36]Transcript of Original Protection Order Hearing p.7, ll. 19-23.

[37]Sections 8 and 11 of the Act define domestic violence and emotional abuse.

[38]Domestic and Family Violence Protection Act 2012 (Qld) s 169(1)(a).

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Editorial Notes

  • Published Case Name:

    ABF v DZT

  • Shortened Case Name:

    ABF v DZT

  • MNC:

    [2020] QDC 136

  • Court:

    QDC

  • Judge(s):

    McGinness DCJ

  • Date:

    22 Jun 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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