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Queensland Judgments
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  • Unreported Judgment

JKL v DBA

 

[2020] QDC 159

DISTRICT COURT OF QUEENSLAND

CITATION:

JKL v DBA [2020] QDC 159

PARTIES:

JKL

(Appellant)

v

DBA

(Respondent)

FILE NO/S:

21/19

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Gympie

DELIVERED ON:

16 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2020

JUDGE:

Byrne QC DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – where the appellant appeals against the making of a Protection Order made under section 37 of the Domestic and Family Violence Protection Act 2012 (Qld) – where the Order is enforced for five years – where the Order contains a total of six conditions directed at the appellant’s dealings with the respondent and their five children – whether there was a lack of procedural fairness – whether a relevant relationship was established on the evidence – whether the learned Magistrate failed to give sufficient weight to a police report filed in the proceedings – whether the learned Magistrate failed to properly consider that the terms of the Order were impractical – whether the learned Magistrate failed to consider the impact of orders made in the Family Court - whether the learned Magistrate failed to consider the ability of the appellant to commit domestic violence

Domestic and Family Violence Protection Act 2012, s 4, s 9, s 11, s13, s 14, s 15, s 18, s 23(2), s 37, s 42, s 53, s 56, s 57, s 145, s 164(a), s 168, s 169

ADH v AHL [2017] QDC 103

AK v Western Australia (2008) 232 CLR 438

Allesch v Maunz (2000) 203 CLR 172

Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194

Dietrich v The Queen (1992) 177 CLR 292

DL v The Queen (2018) 356 ALR 197; [2018] HCA 26

Fox v Percy (2003) 214 CLR 118

GKE v EUT [2014] QDC 248

House v King (1936) 55 CLR 499

McDonald v Queensland Police Service [2018] 2 Qd R 612

MDE v MLG & Queensland Police Service [2015] QDC 151

Nudd v The Queen (2006) 225 ALR 161

R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228

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

Sudath v Health Care Complaints Commission [2012] NSWCA 171

COUNSEL:

Appellant in person.

Ms. M Cullen for the Respondent.

SOLICITORS:

Appellant in person.

KLM Solicitors for the Respondent.

  1. [1]
    The appellant appeals against the making of a Protection Order under section 37 of the Domestic and Family Violence Protection Act 2012 (DFVP Act) in the Gympie Magistrates Court on 20 November 2019.
  1. [2]
    The order was made for a period of five years and contained a total of six conditions, directed towards the appellant’s dealings with the respondent and each of their five children, as named persons. It was in the following terms:
  1. (1)
    That the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
  2. (2)
    That the respondent be of good behaviour towards the named person and not commit associated domestic violence against the person and not expose any named child to domestic violence
  3. (3)
    The respondent is prohibited from entering, attempting to enter or approaching to within 100 meters of where the aggrieved or named child/ren live, work or attend for the purposes of education or child care.
  • Except for the purpose of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court
  • Except with the written consent of the aggrieved including a text message or email
  1. (4)
    The respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved or named child/ren
  • Except in compliance with an order of a Court
  1. (5)
    The respondent is prohibited from following or remaining or approaching to within 100 metres of the aggrieved or named child/ren when the aggrieved or named child/ren are at any place.
  • Except when appearing personally before a court or tribunal;
  • Except when attending an agreed conference, counselling, or mediation
  • Except for the purpose of having contact with child/ren but only as set out in writing between parties or in compliance with an order of a Court
  • Except with the written consent of the aggrieved including by text message or email.
  1. (6)
    The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved or named children by any means whatsoever including telephone, text or internet.
  • Except when appearing personally before a court or tribunal;
  • Except when attending an agreed conference, counselling or mediation
  • Except for the purpose of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court
  • Except with the written consent of the aggrieved, including by text message or email.
  • Except concerning parental or contact issues but then only by text message or email.
  1. [3]
    A reference in that Order to the aggrieved is a reference to the respondent in this appeal, and a reference in that Order to the respondent is a reference to the appellant in this appeal.

Grounds of Appeal

  1. [4]
    The appellant is self-represented and does not have the benefit of English as his primary language. The filed grounds of appeal were a little difficult to understand because they were particularly abbreviated, but during pre-hearing management they were amended to reflect the appellant’s written outline of argument. They asserted errors, and hence a miscarriage of justice, in that:
  1. There was a lack of procedural fairness;
  2. No relevant relationship existed between the parties;
  3. The Magistrate failed to give sufficient weight to a police report filed in the hearing by the appellant;
  4. The Magistrate failed to properly consider that the terms of the Order made were impractical;
  5. The Magistrate failed to consider the impact of orders made in the Family Court; and
  6. The Magistrate failed to consider the ability of the appellant to commit domestic violence as alleged given issues with his mobility at the time.

Nature of the Appeal

  1. [5]
    A person who is aggrieved by a decision to make a domestic violence order may appeal against the decision.[1] The making of a domestic violence order includes the making of a Protection Order.[2]
  2. [6]
    The appeal is to be decided on the evidence and proceedings before the Court below, unless the appellate court makes an order to the contrary.[3] There was no application in this appeal for an order to the contrary, and no such order was made.
  3. [7]
    Therefore, this appeal is in the nature of an appeal by re-hearing on the record. In an appeal of that nature it is necessary for me to consider all the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts.[4]  I must give recognition to the fact that the Magistrate had the advantage of seeing and hearing the witnesses in the evaluation of credit and in assessing the “feeling” of the case.[5] The onus is on the appellant to show that there is some error in the decision under appeal.[6]
  4. [8]
    As the making of the Protection Order involves the exercise of a discretion, error of the kind explained in House v The King[7] needs to be demonstrated before the appeal can succeed. The test has sometimes been expressed as requiring satisfaction that no reasonable decision maker could have made the decision under appeal.
  5. [9]
    In the event that error is demonstrated, I must consider the whole of the evidence to determine whether the orders made are nonetheless justified.
  6. [10]
    The powers of this Court in an appeal under the DFVP Act are found in section 169 of the DFVP Act. Under section 169(2), the decision of this Court is final and conclusive.

Legislative Framework

  1. [11]
    Section 4 of the DFVP Act sets out the principles for administering the Act. The primary principle is that the safety, protection and wellbeing of people who fear or experience domestic violence are paramount.[8] Other principles include that people who experience domestic violence should be treated with respect and disruption to their lives should be minimised.[9]
  2. [12]
    “Domestic violence” is defined at section 8, and includes behaviour within a relevant relationship that is physically abusive, emotionally or psychologically abusive[10] and behaviour that is threatening, coercive or in any other way controls or dominates the other person and cause him or her to fear for their safety or wellbeing.
  3. [13]
    “Associated domestic violence” is defined at section 9 and includes domestic violence towards a child of the aggrieved.
  4. [14]
    The term “relevant relationship” is defined at sections 13, 14, 15 and 18, so far as is relevant to the present matter.
  5. [15]
    Section 37 relevantly provides as follows:

37 When court may make protection order

  1. (1)
    A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—
  1. (a)
    a relevant relationship exists between the aggrieved and the respondent; and
  1. (b)
    the respondent has committed domestic violence against the aggrieved; and

Note—

See the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12, which define the terms domestic violence, emotional or psychological abuse and economic abuse.

  1. (c)
    the protection order is necessary or desirable to protect the aggrieved from domestic violence.
  1. (2)
    In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence—
  1. (a)
    the court must consider—
  1. (i)
    the principles mentioned in section 4; and …”
  1. [16]
    Section 53, permits a child of the aggrieved to be named in a domestic violence order, and thereby become a “named person”, if the court is satisfied that it is necessary or desirable to name the child to protect the child from associated domestic violence[11] or from being exposed to domestic violence. Section 54 mandates that the Court must consider naming as child of the aggrieved when, inter alia, hearing an application for a domestic violence order, as is the case here.
  1. [17]
    Section 56 outlines the conditions that must be contained in a domestic violence order. Section 57 empowers the Court to impose any other condition that the Court considers to be necessary in the circumstances and desirable in the interests of the aggrieved, any named person or the respondent to the application, subject to the principle of paramount importance at section 4(1).
  1. [18]
    In deciding any matter, the Court need only be satisfied on the balance of probabilities of the matter, and the rules of evidence do not apply.[12] Although not bound by the rules of evidence, it is well settled that the court’s decision must derive from relevant, reliable, and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue.[13]

Factual Background

  1. [19]
    In the rest of this judgment[14] I will refer to the parties by their respective titles of appellant and respondent in the present appeal, so as to save confusion with the fact that the appellant to this appeal was the respondent below.
  1. [20]
    At the time of the hearing below, the appellant was aged 59 years and the respondent 36 years. They had been in a relationship for about 7 or 8 years and there were 5 children the product of the union, all aged under 6 years.
  1. [21]
    The respondent applied for a Protection Order on 28 May 2018. A temporary Protection Order was granted ex parte that day on the basis of the statutory declaration forming part of the pro forma application document.
  1. [22]
    On 28 June 2018 the appellant contravened the terms of that Order by contacting her, and also by following and approaching her. In short, he and the respondent happened to come across each other near the post office in Gympie. It was found that he followed her and questioned her unnecessarily with a raised (but not yelling) voice about the respondent’s closure of a post office box.
  1. [23]
    The breach was contested, but proven. As a consequence, on 6 March 2019 he was placed on a recognisance with no conviction recorded. The Magistrate also purported to act under section 42 of the DFVP Act to vary the temporary Protection Order in terms that it became a final Protection Order for a period of five years.
  1. [24]
    The appellant successfully appealed the latter order made, and on 21 August 2019 the matter was remitted to the Magistrates Court. Although not perfectly clear, it appears that nothing was done in relation to the remittal, and the matter was heard on 20 November 2019 as a consequence of the original application, with evidence received on the application. It is that hearing which is the subject of this appeal.
  1. [25]
    Evidence in chief of the witnesses at the final hearing was largely in the form of filed affidavit material. There were two affidavits of the respondent, one dated 28 May 2018 (part of the application for the Order) which attached photos relied on in the hearing and one dated 25 June 2018 (as part of an application to vary the order). There were also two affidavits of a friend of the respondent, each dated 25 June 2018.
  1. [26]
    In respect of the present appellant’s case, there were three affidavits under his hand dated 9 July 2019, 20 September 2019 and 23 September 2019. The last two affidavits appear to me to be more in the form of submissions, and the fact they are sworn may reflect the appellant’s lack of familiarity with legal process. He is not to be criticised for that. His material attached, amongst other things, a copy of a medical certificate, a copy of a police report and a copy of an order from the Federal Circuit Court of Australia made under the Family Law Act.
  1. [27]
    The appellant and respondent first met when the respondent lived in the Philippines. They commenced a relationship, with the appellant travelling between the Philippines and Australia until the respondent moved here in 2016. The respondent moved from the shared home in a small rural township in south-east Queensland in May 2018.
  1. [28]
    One of the principal allegations was an incident on 17 March 2018 wherein the appellant was said to have struck their 3 year old child to the face, with sufficient force to cause the child to fall to the ground, after the child forcefully dropped a pet guinea pig. The respondent variously deposed that the appellant then commenced stomping on or kicking the child on the ground and when the respondent sought to intervene he punched her once to the arm. Photos of bruising to the respondent’s arm and the child’s upper neck were provided which were said to support the allegations made. She said that she threatened to call the police, and that the appellant replied to the effect that if she left he would have her visa cancelled and that he would rather that the children be placed in foster care than she having them.
  1. [29]
    Other generalised complaints of erratic and violent behaviour and outbursts over a period of time were also outlined, including the use of vulgar language in the presence of, and about, the children.
  1. [30]
    Further, there were allegations on two specific dates in April 2018 when it was asserted that the appellant failed to care for or show proper regard for the safety of one of their children, then aged 19 moths. In effect it was asserted that the child was alone outside the house, cold, dishevelled and crying whilst everyone else was inside and on the other occasion the same child was left alone in an outside bath naked and crying. The affidavits of the friend tended to support the fact the child was found in this way on both dates.
  1. [31]
    Finally it was asserted that the appellant unduly limited the respondent’s access to money and to food for herself and the children, including when he would travel away for up to a month and only leave her with $10 or $20 for the duration of his absence.
  1. [32]
    Broadly speaking, the appellant’s affidavit material denied wrongdoing and suggested that he now understood that the respondent had planned all along to come to Australia, to have children and to enjoy her life with them but without a man in her life. He asserted that she was gaining control of the children through the use of a Protection Order, and that she was not adhering to the terms of the family law order, meaning that he had no access to his children. Having said that, he did admit to having slapped the child during the incident of 17 March 2018 in an effort to stop the child mistreating the guinea pig.
  1. [33]
    A central plank of his defence in the affidavit material was his assertion that he could not have harmed the child as alleged on 17 March 2018 because he at the time had suffered a serious leg fracture which made it impossible to have done the things alleged. It was also said that his injury accounted for why a child was twice left alone outside the house; that is, he could not carry or lift the child.
  1. [34]
    The appellant also pointed to a police report which said that there was “no evidence at the scene to support domestic violence occurring” when police attended on 18 March 2018. That observation was made in the context of the respondent having told police that the incident the previous day had been an isolated event, and that she did not want any action taken. That police report contained an account the appellant gave to police where he admitted “disciplining the child, but not excessively”.
  1. [35]
    The appellant also complained that he was at an unfair disadvantage in that he had no legal representation (through Legal Aid having been refused) whilst the respondent was legally represented, and also asserted that a Protection Order could not be made because he and the respondent were no longer in any form of relationship.
  1. [36]
    At the hearing, the cross examination of both the respondent and her friend revealed nothing substantially different from the affidavit material on those topics. When it was in effect suggested that the two incidents in April 2018 occurred because the respondent had left him alone with the children, against his protests, and when she knew he could not care for them the respondent denied that, and stated that on the first occasion the appellant had taken her to hospital when she injured herself and her friend drove her home because he refused to come into town to collect her. The friend supported that version of events.
  1. [37]
    Under cross-examination, the appellant confirmed the admission about slapping the child and he accepted that because there were family law proceedings on foot, he and the respondent would need to be in contact for “quite a substantial period of time”.

The Magistrate’s Findings

  1. [38]
    In ex tempore reasons, the Magistrate correctly identified the three matters requiring satisfaction under section 37 of the DFVP Act before the application could be granted.
  1. [39]
    His Honour accepted that a relevant relationship existed; although not married, they were in an intimate personal relationship that was a couple relationship, and was also a spousal relationship because they were the biological parents of their children.[15]
  1. [40]
    His Honour accepted that during the incident of 17 March 2018 the appellant slapped his then 3 year old son and punched the respondent when she intervened.[16] He did not accept that the appellant had stomped on the child as alleged, as the photographs of the injuries did not seem to bear that out.[17] Nonetheless he considered that the non-acceptance of that allegation did not detract from the acceptance of the rest of the respondent’s evidence.[18] His Honour had earlier noted the appellant’s denial of doing anything other than slapping the child.[19]
  1. [41]
    He expressly accepted allegations against the appellant of financial control,[20] and of controlling the respondent by threatening to cancel her visa.[21]
  1. [42]
    Having thereby accepted that acts of domestic violence had occurred, his Honour went on to consider if the making of a Protection Order was necessary or desirable, expressly recognising that question must determined on the basis of future risk.[22]
  1. [43]
    His Honour noted that the appellant had previously been convicted of breaching the temporary order. He found that the appellant struck him as a person “who will, or is prone to, get angry when things have not gone his way”,[23] and noted that this was consistent with both his assault of his son and the facts of the previous breach, and concluded there thereby existed a risk of future domestic violence if an order was not made.[24] He concluded that there was a need to protect the respondent from domestic violence, particularly noting that she was in a vulnerable position.[25]
  1. [44]
    His Honour expressly considered the appellant’s submission that the making of the order would preclude him from contact with his children, but considered that notwithstanding the inconvenience that caused, an order was necessary. He also noted that the appellant will have the opportunity to access his children in accordance with the orders made in the family law proceedings.[26]
  1. [45]
    On the basis of the finding concerning the assault on the son, his Honour was persuaded that the order should include all of the children as named persons as it was necessary or desirable to protect them from associated domestic violence and from also being exposed to domestic violence.[27]
  1. [46]
    His Honour considered that the appropriate period for the Order was five years, having regard to the age of the children and the need for contact between the parties over the raising of the children.[28]

Consideration

  1. [47]
    It is convenient to consider the grounds of appeal in an order different to that in which they are numbered.

Ground 1: Was there a lack of procedural fairness?

  1. [48]
    This complaint centres around a contention that only a few minutes before the hearing started the appellant was handed the application for the Protection Order by the respondent’s solicitor. He claims that he was caught by surprise and didn’t have time to translate the document into English and further that he needed a solicitor to understand it. When asked by me to read part of the document he was referring to, it is clear that what he was handed was a copy of written submissions that the respondent’s solicitor below intended to rely on.
  1. [49]
    Written submissions were not mandated, but the respondent’s solicitor was entitled to rely on them and, if intending to do so, she was obliged by practice to provide them to the appellant. Strictly, they need not have been provided in advance and could have been handed over at the Bar Table as the submissions were orally delivered. But that is not the end of the matter. Where a self-represented opponent does not have the benefit of English as a primary language, and often where they do, it is far preferable that submissions be delivered at a time which will afford the party the opportunity to consume and understand the document. To do otherwise will raise a risk of a relevant unfairness, such as is asserted here.
  1. [50]
    I have read the hearing transcript in full. It is apparent that the appellant managed to get his case across adequately. Although his points did not succeed and at least one was not open as a matter of law, they were on the whole appropriate submissions with logical arguments supporting them. In particular, the main thrust of his submissions both in this Court and below was that it was not necessary or desirable to make a Protection Order which would have the effect of severely curtailing his access to his children. He was able to communicate this to the Magistrate, who was obviously aware of the significance of the submission in making his decision.
  1. [51]
    Having considered all the material, and notwithstanding the undesirability of the respondent’s solicitor providing written submissions at the time they were provided, I cannot be satisfied that the appellant was denied procedural fairness, nor that there was any other relevant unfairness associated with the delivery of the submissions in the particular circumstances of the matter.
  1. [52]
    Before moving on, there is a further complaint which permeates the submissions both below and in this Court. Although it does not strictly fit under the rubric of this ground of appeal, it is convenient to deal with it here.
  1. [53]
    The appellant has complained that he has been denied Legal Aid for the hearing and, unlike the respondent who has legal representation, he is disadvantaged in the conduct of his case. He contends that this accumulates on the fact that English is not his primary language and so there has been a miscarriage of justice in not adjourning the hearing below. In the course of submissions on the appeal, the appellant submitted that the present appeal should be adjourned so that he can do whatever is necessary to obtain legal representation if he was not otherwise likely to succeed.
  1. [54]
    In the context of criminal law, there is no requirement that the respective legal representation must be of equal ability for there to be a fair trial.[29] That observation is apposite here. However, where an unrepresented litigant is so disadvantaged by a lack of legal representation that there will be an unfairness in the conduct of the litigation, it may be appropriate to stay the proceedings.[30]
  1. [55]
    That is not the situation here. It is fully understandable that the appellant might feel that he is disadvantaged in the conduct of his case, but the Courts are increasingly alive to the issues faced by self-represented litigants and regularly take account of any actual disadvantage. Here, for the reasons outlined above, the appellant is better armed than many self-represented litigants and in my view suffered no actual disadvantage.
  1. [56]
    The material before me establishes that the appellant has been denied Legal Aid in respect of proceedings concerning the making of the Protection Order (but not the previous breach of the Order) since at least 6 March 2019. He appeared self-represented when he successfully prosecuted a previous appeal against the making of the Order in June 2019. He also signed a certificate of readiness for this appeal on 31 January 2020 and he subsequently appeared before Porter QC DCJ for the purposes of case management.
  1. [57]
    In those circumstances, I declined to adjourn this appeal. His assertion that he didn’t know he could apply for an adjournment prior to the hearing does not sit well with the long history of adjournments of the matter in the Magistrates Court, nor with his signing of the certificate of readiness, which he said he signed because he thought an appeal against the withdrawal of Legal Aid would be determined by the time of hearing. Given the lengthy period that Legal Ad has not been available, I considered it unlikely to be re-installed at this late stage if a further adjournment were granted. I also considered that his advocacy skills were such that he was suffering no actual disadvantage in the conduct of his appeal.
  1. [58]
    For these reasons the appellant cannot succeed on the first ground as understood by encompassing both the ground as pleaded and the complaint about a lack of legal representation.

Ground 6: Did the Magistrate fail to consider the ability of the appellant to commit domestic violence as alleged given issues with his mobility at the time?

  1. [59]
    The respondent concedes that the Magistrate did not expressly refer to the evidence of the appellant that he was suffering a serious orthopaedic injury at the time and could not have committed the acts he is accused of. Further, the appellant points to a brief statement from a doctor which he asserts supports that position. The respondent contends that an express consideration of the issue was not required in the circumstances of the matter.
  1. [60]
    The obligations of the Magistrate in this situation are encapsulated by the following:

“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”[31] (footnote omitted)

  1. [61]
    First, it should be noted that the doctor’s statement, dated 1 June 2018, confirmed that the appellant was seeing a doctor at the clinic, but not the author of the statement. There is therefore a hearsay component to the statement. It related that the appellant could only walk with the use of crutches and that he had an appointment to see an “orthopaedic doctor” at a fracture clinic, and that he was not fit to “walk or stand a long distant (sic)”. It further related that the appellant stated that he was not strong enough to lift “heavy things (more than 5kg or pushing or pulling things”. The author was not called to testify at the hearing. The form of the statement did not demand complete acceptance of its contents, especially in the absence of direct testimony by the author at the hearing.
  1. [62]
    The Magistrate did not accept the respondent’s account of the incident of 17 March 2018 in so far as she alleged that the appellant stomped on or kicked his son once he had knocked him to the ground, but he otherwise generally accepted her evidence both as to the events of that day (which included one threat to cancel the visa) and more generally in respect of control of finances and other threats to cancel the respondent’s visa. That was a course open to him, both as a matter of principle and in the circumstances of this matter. In particular the Magistrate did not accept that the stomping occurred because the tendered photos of the bruising suffered did not support that precise allegation. That too was a finding that was open to him, and once he made that finding it was no longer necessary to consider the impact of the evidence of orthopaedic injury in so far as it potentially impacted on the ability of the appellant to have stomped on his son.
  1. [63]
    Further, the evidence of the broken leg could not have sensibly affected any finding that the appellant had struck his son with his hand, as recounted by the respondent. The doctor’s statement spoke only in terms of mobility being limited by the use of crutches. It did not mean that he was incapable of slapping the child and, in any event, the appellant himself accepted that he had struck his son, both to police and in the course of his testimony. Consideration of the medical statement could not have realistically affected any finding as to the slapping of the child.
  1. [64]
    Although of potential relevance to allegations of what was in effect neglect of at least one of the other children, no finding was made about those matters and I consider them to have been contextual allegations rather than allegations of domestic violence, per se and the failure to consider the statement in that context was not an error. The medical statement was of no relevance to the other conduct which was the subject of specific acceptance by the Magistrate, namely control of finances and threats to cancel the respondent’s visa, and so need not have been considered in that context.
  1. [65]
    Whilst it would have been preferable for the medical statement to have been expressly considered, in the circumstances of this particular matter I accept the respondent’s submission that it was not in fact necessary to do so given the other findings which were made. Accordingly, this ground of appeal cannot succeed.

Ground 2: Was a relevant relationship established on the evidence?

  1. [66]
    There was no dispute at the hearing, or on appeal, that the appellant was the father of the respondent’s five children, nor that they had co-habited as a couple between some time in 2016 and May 2018. On that basis the Magistrates findings summarised at paragraph 38 herein were correct.
  1. [67]
    The present ground of appeal, and the basis of the argument below, is that there could be no finding of a relevant relationship given that the respondent left the shared premises in May 2018 and has never returned and that they had never married. That is, at the date of the hearing they were not in any form of relationship.
  1. [68]
    With respect, the appellant’s argument overlooks the fact that, as a matter of law, the definition of a “couple relationship” applies if the parties “have or had a relationship as a couple”. That is, it can apply to a relationship that has dissolved by the time of the hearing, as is not uncommon. Further, the “spousal relationship” definition applies because of the joint parenting of a child, and does not require an ongoing relationship at the time of the hearing.
  1. [69]
    Whilst this ground of appeal must fail, the submissions provide an example of one of the appellant’s submissions, albeit failing for a particular reason, being developed logically and supported by evidence even though the appellant has no legal training.

Ground 3: Did the Magistrate fail to give sufficient weight to a police report filed in the proceeding?

  1. [70]
    The contents of the police report have been summarised above. The appellant wished to place particular reliance on that part of the report which referred to there being a lack of evidence at the scene to support the occasioning of domestic violence. It seems that the appellant considered that this should have resulted in a conclusion that he had not perpetrated domestic violence on the respondent, or any of the children. In fact it contained a broadly consistent account of the events of 17 March 2018, but contained a denial of the existence of any evidence of domestic violence.
  1. [71]
    The report was brought to the Magistrate’s attention in the course of the hearing who summarily dismissed it from further consideration on the basis that it provided only evidence of a policeman’s opinion that there was no such evidence, and because it was unknown what he knew about the matter it had no weight.[32] Implicit in the Magistrate’s response is the proposition that he had considered the material, and considered it did not deserve any weight. That was a finding open to his Honour, although it must be said that his observation was not entirely accurate.
  1. [72]
    There was in fact evidence of what the officer knew about the matter on the face of the report; there was an account of 17 March 2018 from the respondent. It was broadly consistent with the account given by the respondent in testimony. To have regard to that report ran the very real risk that the Magistrate may have considered that the report supported the respondent’s credit. Although that would not have been permissible under the rules of evidence, proceedings such as the present are not bound by them. The failure to give detailed consideration to the report therefore did not work an injustice against the appellant, and in fact may have been to his benefit, and so the misstatement does not affect the outcome of this ground of appeal.
  1. [73]
    Further, it is difficult to see what objective evidence there could be. Unless the police happened to arrive when some violent incident was occurring, it is difficult to understand what would be hoped to be seen on the day after a particular incident that was not said to involve damage to property or some other lasting remnant of the incident itself. Accordingly there was, in my view, little or no weight to be given to the police report, and there was no error in the refusal to consider it further.

Ground 4: The Magistrate failed to properly consider that the terms of the Order made were impractical.

Ground 5: The Magistrate failed to consider the impact of orders made in the Family Court.

  1. [74]
    It is convenient to consider these two grounds together, as both require consideration of the terms of the family law order and each ground requires a consideration as to whether it was open to the Magistrate to have found that it was necessary or desirable to make the Protection Order in the terms which he did.
  1. [75]
    In essence, the complaint underlying the fourth ground of appeal is that the terms of the Protection Order mean that the appellant cannot travel into Gympie through fear of accidentally coming into contact with the respondent and/or the children and thereby being in breach of the order and in jeopardy of prosecution.
  1. [76]
    The appellant lives in a small township outside of Gympie. I accept that it is necessary that he travel to Gympie with some regularity so that he may attend to his affairs. He also has unreliable internet connectivity at his home and he says he often needs to travel to Gympie to use the internet at the library. In oral submissions on the appeal he alluded to having been charged with breaches of the Protection Order (in addition to the breach he has already been convicted of) which are, he asserts, based on innocently coming into contact with the respondent and she fabricating evidence. He has not been convicted of these later charges, and I take them into account only for the purposes of considering his submissions on these grounds of appeal.
  1. [77]
    The essence of the complaint underlying the fifth ground of appeal is the appellant’s belief, based he says on what has been told by the independent child lawyer appearing in the family law proceedings, that if a Protection Order is made it will “prevent effectively any Family Court judge to make any further ruling in my favour, depriving me to see my kids for the next five years.”.[33] The same submission, albeit in less clear terms, was placed before the Magistrate. Further, it is asserted that the appellant is effectively deprived access to his children because the family law order permits limited supervised access only and he either cannot always arrange supervision or the respondent refuses to make the children available.
  1. [78]
    Very broadly speaking the family law order provides, by consent, for the children to live with the present respondent, for three hours supervised access by the present appellant each Sunday and for both parties to be involved in the decision that involve long term issues attending each child. It also required, not by consent, the present appellant to enrol in and complete certain nominated parenting courses and the parties to participate in conferences as directed.
  1. [79]
    The terms of the Protection Order are set out earlier in these reasons, and impose broader restrictions on the appellant, but were expressly made in recognition of the existence of the family law order. For example, it can be seen that apart from the conditions mandated by section 56 of the DFVP Act in the first two orders, all orders are made subject to compliance with a court order or requirement, and so the Protection Order does not operate to frustrate the family law order in any way.
  1. [80]
    In determining if the making of the Protection order is necessary or desirable, regard must be had to future need for protection,[34] and to the principles found at section 4 of the DFVP Act. This is finely balanced, but in light of the fact that the Magistrate found, and was entitled to find, that:
  1. physical violence was inflicted by the appellant on the respondent and, tellingly, one of the children; and
  2. that the children were exposed to associated domestic violence; and
  3. that the financial control undertaken by the appellant directly impacted not only the respondent but also all of the children; and
  4. that there were threats to have the respondent’s visa cancelled, thereby indirectly impacting on the welfare of the children;
  5. that the respondent was effectively in a vulnerable position; and
  6. that the appellant has once previously breached the terms of the Protection Order
  1. [81]
    In my opinion it was reasonably open to the Magistrate to make a Protection order in the terms he did. That is, one which limited contact and interaction with not only the respondent but the children also, as named persons. In my view, it would have also been open to fashion an order in less restrictive terms and which more directly aligned with the family law order, but that does not mean that making the order in the terms it was made was erroneous or in other words could not reasonably have been made.
  1. [82]
    I have also given consideration to the length of the order, namely five years from the date of the final hearing. The unfortunate history of this matter means that presently the appellant will be restrained by Protection Order of one form or another for a total of about 6½ years. Whilst I consider this also to be finely balanced, I have concluded that it was open to make the present order operative for five years given the young age of the children, the undoubted need for the parties to be in contact with each other involving long term parenting issue decisions for more than 10 years and the fact that they will continue to come into contact during the family law proceedings for a number of years yet as a means of providing a disincentive for further misconduct.
  1. [83]
    It is true that the Order potentially makes trips to Gympie difficult for the appellant, but it does not mean that they cannot be undertaken at all. The terms of the Order do not prohibit the appellant from coming into contact with the respondent or the children, but it does in effect require that if that happens accidentally he must do something to cease that contact immediately if the contact is not otherwise authorised by a Court order.
  1. [84]
    I cannot act on his stated but unproven assertion that the respondent has and will fabricate evidence against him if he happens to run into her or the children. Similarly I cannot act on the stated but unproven assertion that the respondent is improperly denying the appellant access to his children. Those complaints can be made to the appropriate forum at the appropriate time. I must assume that the respondent will act lawfully, in which case unexpected contact between the parties and/or the children will be inconvenient but not unlawful, provided it is taken no further.
  1. [85]
    Similarly, whilst I accept that the appellant honestly believes that the making of the protection order will result in no amendment ever being made to the existing family law order in terms of access to the children, I cannot assume that to be the case. I must assume, and am confident that the Judge will act judiciously, that is by considering the material in front of him or her and making decisions according to the applicable legislative framework as applied to the factual circumstances that exist at that time.
  1. [86]
    As far as I can see on the material before me, there is no reason why the strictures of the family law order might not be relaxed in the future if it can be shown that relevant risks have been sufficiently mitigated or eliminated through, for example, the effluxion of time and/or participation in appropriate courses. It is clear to me that the Magistrate carved exceptions out of the Protection Order conditions to facilitate the operation of the existing family law order, not to restrict it. That was appropriate and there is no reason to suspect that a different approach would be taken on an application to amend the Protection Order if the family law order were to be amended. Even if the family law order were not amended, there is nothing precluding an application to amend the protection order, at least in those respects where its reach is greater than the family law order, where the future risk can be shown to have been sufficiently mitigated or eliminated. Put another way, on the material before me neither order is set in concrete and each may be amended at later dates to reflect the justice of the situation then able to be demonstrated.
  1. [87]
    Although the appellant has established that a Protection Order could have been made in terms different to that made, he has not established an injustice based on either of these two grounds of appeal. Accordingly the appeal must be dismissed on these grounds too.

­­­­­­Conclusion and Order

  1. [88]
    The appellant has failed to establish any of the grounds of appeal, nor that there has been an injustice occasioned through the lack of Legal Aid being afforded to him. The appeal must therefore be dismissed. That is the order that I make.

Footnotes

[1]    Section 164(a) of the DFVP Act.

[2]    Section 23(2) of the DFVP Act.

[3]    Section 168 of the DFVP Act.

[4]    Fox v Percy (2003) 214 CLR 118 at [22]-[25]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47].

[5]    Fox v Percy (2003) 214 CLR 118 at [22]; McDonald v Queensland Police Service, ibid.

[6]    Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, [14];  McDonald v Queensland Police Service, ibid.

[7]    (1936) 55 CLR 499 esp. at 505.

[8]    Section 4(1) of the DFVP Act.

[9]    Section 4(2)(a) of the DFVP Act.

[10]   Which is defined at section 11 of the DFVP Act.

[11]   Defined at section 9 of the DFVP Act.

[12]   Section 145 of the DFVP Act.

[13]   Sudath v Health Care Complaints Commission [2012] NSWCA 171; R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228 at 249-250, 256; ADH v AHL [2017] QDC 103, [46].

[14]   Contrary to the approach taken in paragraph 2 herein where the terms of the Order were quoted.

[15]   Transcript of reasons page 2 lines 15 to 21.

[16]   Transcript of reasons page 3 lines 6 to 10.

[17]   Transcript of reasons page 3 lines 18 to 20 and lines 21 to 22.

[18]   Transcript of reasons page 3 line 20.

[19]   Transcript of reasons page 2 lines 43 to 44.   

[20]   Transcript of reasons page 3 line 12 and lines 22 to 23.

[21]   Transcript of reasons page 3 lines 13 to 14.

[22]   Transcript of reasons page 3 line 45 and following.

[23]   Transcript of reasons page 4 lines 8 to 10.

[24]   Transcript of reasons page 4 lines 4 to 18.

[25]   Transcript of reasons page 3 lines 37 to 43 and page 4 lines 20 to 21.

[26]   Transcript of reasons page 4 lines 25 to 35.

[27]   Transcript of reasons page 4 lines 37 to 42.

[28]   Transcript of reasons page 5 lines 43 to 46.

[29]  Nudd v The Queen (2006) 225 ALR 161 per Gleeson CJ at [11].

[30]   Dietrich v The Queen (1992) 177 CLR 292.

[31]  AK v Western Australia (2008) 232 CLR 438 at [85], cited favourably in DL v The Queen (2018) 356 ALR 197; [2018] HCA 26 at [33].

[32]   Transcript of hearing 1-17 lines 5 to 17.

[33]   Transcript of appeal hearing 1-8 lines 12 to 14.

[34]   GKE v EUT [2014] QDC 248, [32]-[33] per McGill SC DCJ and MDE v MLG & Queensland Police Service [2015] QDC 151, [55] per Morzone QC DCJ.

Close

Editorial Notes

  • Published Case Name:

    JKL v DBA

  • Shortened Case Name:

    JKL v DBA

  • MNC:

    [2020] QDC 159

  • Court:

    QDC

  • Judge(s):

    Byrne DCJ

  • Date:

    16 Jul 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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