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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
KEM v GYB  QDC 262
BD 1404 of 2019
16 October 2020
27 July 2020
CRIMINAL LAW – APPEAL AND NEW TRIAL – where the appellant appealed the making of a domestic violence protection order naming him as respondent – where the appellant failed to appear at the trial – where the appellant’s request for adjournment was refused – where the appeal proceeded on the filed written submissions of the parties – where the appeal was dismissed
Domestic and Family Violence Protection Act 2012 (Qld) s 4, s 8, s 23, s 37, s 42, s 164, s 165, s 168, s 169, s 177
Criminal Code Act 1899 (Qld) s 359B
Allesch v Maunz (2000) 203 CLR 172
Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194
FCA v Commissioner of the Queensland Police Service  QDC 46
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
McDonald v Queensland Police Service  2 Qd R 612
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679
AC Black for the respondent
KLM Solicitors for the respondent
- The appellant, by a Notice of Appeal wrongly filed in the Queensland Court of Appeal on 17 October 2018, appealed a decision of a Magistrate sitting at the Cleveland Magistrates Court, made on 19 September 2018, to make a Domestic Violence Protection Order naming the appellant as respondent and the respondent in this appeal, GYB as the aggrieved, and their three children as named persons. The order is to remain in force until 18 September 2023.
- On 13 February 2019, President Sofronoff remitted the appeal to the District Court pursuant to section 165(1) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) which reads “[t]he appeal is started by filing a notice of appeal with the registrar of the appellate court”. Relevantly, appellate court is defined in the DFPVA as “(a) for a decision made by the Magistrates Court – the District Court”.
Appeals under the DFPVA
- An appeal against a decision made under the DFPVA is brought pursuant to DFPVA section 164. Section 164 permits an appeal to be brought by a person aggrieved by:
- (a)a decision to make a domestic violence order;
- (b)a decision to vary, or refuse to vary, a domestic violence order;
- (c)a decision to refuse to make a protection order;
- (d)if the person sought a temporary protection order in a proceeding under this Act – a decision to refuse to make the order.
Relevantly, the making of a domestic violence order includes the making of a Protection Order.
- Section 168 provides 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. In this appeal, the applicant foreshadowed in his Notice of Appeal he would seek at trial a hearing de novo of the proceeding and leave to adduce fresh evidence. I will discuss this issue further later on.
- The powers of this Court in an appeal under the DFVPA are found in section 169, which provides:
- (1)In deciding an appeal, the appellate court may–
- (a)confirm the decision appealed against; or
- (b)vary the decision appealed against; or
- (c)set aside the decision and substitute another decision; or
- (d)set aside the decision appealed against and remit the matter to the court that made the decision.
- (2)The decision of the appellate court upon an appeal shall be final and conclusive.
History of the matter before the District Court
- On 15 November 2019, this court ordered “the appellant file and serve a certificate of readiness by 6 December 2019, failing which, the appeal is dismissed”. The appellant’s certificate was filed on 6 December 2019. On 13 March 2020, this court listed the appeal for trial for 5 days from 27 to 31 July 2020.
- On 9 June 2020, my associate notified the parties the matter was listed for trial from 27 to 31 July 2020 before myself and enquired as to their availability for a mention on either 13 or 14 July.
- On 10 June 2020, the solicitors for the respondent confirmed they were available for either date.
- On 12 June 2020, the appellant informed my associate that due to the COVID-19 pandemic there was “no way for [him] to come to the court any time soon”. He stated he “can’t appear in another way”. He requested the trial be adjourned for two months. That afternoon, the respondent’s solicitors stated the respondent does not consent to any further adjournments of the matter.
- On 15 June 2020, my associate informed the appellant that given the recent easing of restriction in Queensland and the ability to socially distance in the courtroom, his request for adjournment was denied. Again, he was asked to confirm whether 13 or 14 July was more suitable for a mention of the matter.
- On 18 June 2020, the appellant replied stating he was sorry for his delay in responding but he is not an “English native speaker”. He stated he wished the trial would have happened over two years ago as then the “sufferings would have been completely stopped”. He stated:
~99.99% of all of what the lawyers ask, the courts agree
~00.01% is for what I ask (over 2 years like that)
- On 19 June 2020, my associate reiterated to the appellant that the restrictions in Queensland had eased and there is sufficient space in the courtroom to allow for social distancing. It was stated that at 13 July 2020 a maximum of 100 people will be allowed to gather and as such, the request for adjournment was not granted. The appellant was informed the matter was listed for mention on 13 July at 9:30am and it was imperative he attend such hearing otherwise his appeal may be struck out. He was notified he may appear by telephone and the hearing should take no more than 30 minutes.
- On 8 July 2020, the appellant notified my associate there was no way for him to appear at the mention or the trial as he was overseas and unable to return to Australia. He stated he “was caught in Covid-19 lockdowns for months far away from home” and had “lost all income”. He stated he was unable to appear in any way as he had no local phone or reliable internet connection and was not allowed to communicate. Again, he asked the trial and mention be adjourned for two months.
- On 9 July 2020, my associate notified the appellant I required proof he was currently outside the country in order to consider his request for adjournment. He was asked to provide proof of where he was currently located and specific reasoning as to why he was unable to appear via telephone or audio-visual link.
- On Friday 10 July 2020, my associate enquired whether the appellant would be appearing via telephone at the mention the following Monday (13 July 2020). The appellant responded at 4:59pm stating his “situation is very difficult” and providing “a few examples for better understanding”:
I was unjustly deprived of freedom and presented as a bad person because I was deprived of freedom. I was unjustly deprived of my job and presented as lazy because I had no job. My career has been destroyed by domestic violence, next by endless lies, etc. and I was punished for having a destroyed career.
I was forced to leave Australia to seek help, because I am practically prohibited to do it in Australia. Now I can't appear in court because I am not in Australia and I can't return because of the order which I appealed.
I am not even allowed to write in that email any more details, not to be send to jail for mentioning one prohibited word. I am scared of mentioning a prohibited word. I do not want to go to jail again. Just for mentioning my reasonable fears I am described as obsessed, while those who are obsessed are seen as sane.
There is much proof of lies against me, they are obvious and confirmed with facts. Yet only those who speak untruth enjoy support, and I am seen as a liar without a single proof that I ever consciously lied (apart from one false accusation I can prove is false)
- He stated he had “found a way to show [he] was not in Australia … with Centrelink” and attached a partial screenshot of correspondence from Centrelink notifying him his claim for JobSeeker Payment had been rejected because he was not in Australia when he lodged the claim. However, I note the following line of the letter which states “Centrelink has based this decision on information provided by you and/or Australia’s immigration department (emphasis added)”. He reiterated he had no local phone number or stable internet and stated he hoped in two months to be back in Australia or have someone to represent him. He asked the trial and mention be adjourned.
- On the morning of 13 July 2020, the appellant emailed my associate stating he had “been asking for that 2 months adjournment a few times since 12 June”. He said he “had tried to get some representation but it is not possible due to the order which I have appealed and because of Covid-19”. He reiterated he could not appear in any way as he was overseas and it was the middle of the night. Again, he asked for adjournment.
- He sent a further email that morning stating he had “been asking for that 2 months adjournment a few times since 12 June”. He said he “had tried to get some representation but it is not possible due to the order which I have appealed and because of Covid-19”.
- On the afternoon of 13 July 2020 my associate replied to the appellant as follows:
Good afternoon [KEM],
Thank you for your several emails.
His Honour notes you say you are currently overseas; however, you will not or cannot say where you are or how long you have been out of Australia.
As you are aware, your appeal was listed for hearing for 5 days commencing 27 July 2020 on 13 March 2020. His Honour is informed that on that occasion your mother appeared on your behalf. Your mother speaks little or no English and was, as his Honour has been informed, little assistance to the court. However, the appeal was listed for 5 days as a result of a time estimate given by you. As a result, five days of court time have been allocated commencing 27 July 2020. It is incumbent on those seeking to use the courts to expeditiously prosecute their claim, or in your case, appeal.
The appeal was mentioned today before his Honour (as the Judge allocated to hear the appeal). His Honour decided the appeal should remain listed to commence on 27 July 2020.
Whilst his Honour notes you seek a two month adjournment, you have not provided any information which would assist the court to properly assess your request, including a definitive date in the future on which you may be in Australia and in a position to proceed with the appeal.
His Honour reminds you that this is your appeal and it is incumbent on you to proceed with it in a timely fashion.
His Honour asks you provide the following information:
- 1.Where overseas you are;
- 2.When you travelled to that place and why;
- 3.To what extent COVID-19 has caused your travel or hindered your return;
- 4.When you expect to return;
- 5.When you would, with as much certainty as possible, be in a positon to proceed with your claim, with reference to dates i.e. week commencing 1 October 2020 etc.
It is possible you could:
- telephone into the court and make any submission you wish to make via video link (but that may be impractical and/or costly depending where you are currently residing);
- video into the court and make any submission you wish to make via video link;
- provide further written submission setting out your argument; or
- advise the court the matter can proceed on the written material already provided to the court.
Unless you provide the information sought above in points numbered 1 to 5, or agree to proceed in a way described in the bullet points above, your appeal may be decided in your absence on the information before the court.
- The appellant replied on 16 July 2020. He stated he was stuck in lockdowns due to COVID-19 on a stopover in Asia. Further, he had asked the immigration office the day before and was told he could “leave now but no later than 31 of July 2020 which means [he] will need to travel to another country practically during the scheduled trial dates.” He stated he was terrified in Australia and was “stalked, robbed, persecuted, two years unable to seek help”. He stated his best option to prepare for the trial was to go to Europe where he can “communicate and have access to family and friends… and access to lawyers that speak English well. I just couldn’t go because of the Covid-19”. In response to the question regarding his return, he stated:
While waiting in lockdown I found some online income and made helpful contacts. I also had more time to think clearly. As a result, I became increasingly concerned about suspicious behaviour from the Police. I started to fear that the Police would plot to silence me upon return rather than admitting to their own mistakes. There is no answer to dozens of letters, to proofs, to an official complaint etc. I know the vast majority of police officers are good people, but maybe not all.
Therefore, I would highly appreciate the court's referral to the Police to investigate the proof I sent in many letters or provided in court documents. I am happy to answer any questions if something is not understandable. I wish to return to Australia as soon as possible, and I trust such referral would help a lot.
- On 17 July 2020, my associate notified the appellant I considered his response inadequate and his request for adjournment was refused. On 17, 21 and 23 July 2020 the appellant emailed stating he could not appear and requesting an adjournment.
- I also note the appellant was in contact with the Supreme Court Civil Applications List Manager during this period. Notably, on 17 July 2020 he emailed asking whether his matters in the Supreme Court could be heard between 27 and 31 July, that is, the dates allocated for his appeal in this court.
- The District Court Civil List Manager notified the appellant on the afternoon of 24 July 2020 the trial was proceeding on Monday, 27 July 2020 and he may appear in-person or via telephone or video-link.
- For the reasons which I will set out the request for adjournment was not granted and the appeal was struck out.
- For completeness, I note I received a letter from the appellant via email at 11:07am on the morning of the trial, after the appeal was struck out and my reasons reserved. In such letter the appellant notes “[t]his case concerns almost exclusively European Citizens” and “[o]nly my DVO was breached by committing domestic violence. Only I was punished for breaching a DVO, despite not one breach was by committing domestic violence”. He stated “[a]ll I have seen against me are just lies and twists”.
History of the matter before the Magistrates Court
- The following is a summary of the history of the applications before the Magistrates Domestic Violence Court at Cleveland:
16 October 2017
Temporary Protection Order made for aggrieved [GYB] and an order was made for cross-application in Beenleigh to be transferred to Cleveland. Application adjourned to 8 November 2017.
8 November 2017
Application adjourned to 9 November 2017 with notation; To remain with criminal charges. The defendant was noted as being in custody. It appears from the notation that “(Wild)” was present, who was possibly a duty lawyer.
9 November 2017
Application adjourned to 23 November 2017. Defendant was noted as not being present and in custody. On this occasion a “White” was noted as being present, again, possibly a duty lawyer.
23 November 2017
Application adjourned to 21 December 2017. The defendant was noted as being present in person with no legal representative.
21 December 2017
Application adjourned to 1 March 2018. The respondent was noted as being present in person and “Wild (Quinn and Scattini)” was noted as appearing for him.
1 March 2018
Application adjourned to 7 March 2018. The respondent was noted as appearing in person and Ms Allen, Burns Law was noted as representing him. Notations on the file are: “1. No further adjournments to be granted. 2. (R) to indicate consent or seek directions for trial on 7 March 2018.”
7 March 2018
Application adjourned to 27 March 2018. File noted variations to temporary order, “but add exceptions B, C, D, E to conditions 4, 6, 8, 9”. The respondent was noted as present in person and “has Burns Lawyers”.
27 March 2018
Application to 20 June 18 the file notes “at same time of hearing”. The respondent is noted as appearing in person and represented by “allen (Burns Law)”.
12 June 2018
Adjourned to 3 July 2018. The respondent was noted as appearing in person and represented by Mr Burns.
3 July 2018
Application adjourned to 24 July 2018. The respondent was noted as appearing in person.
24 July 2018
Application adjourned to 9 August 2018. The respondent was noted as not in attendance and represented by Mr Allen.
9 August 2018
Application adjourned to 10 August 2018. No appearances noted.
10 August 2018
Application adjourned to 14 August 2018. The respondent was noted as appearing in person and represented by “allen”.
14 August 2018
Application adjourned to 22 August 2018. The respondent was noted as not in attendance and represented by “allen”.
22 August 2018
Application adjourned to 28 August 2018. No note of any appearance by or for the respondent.
28 August 2018
Application adjourned to 29 August 2018. The respondent was noted as appearing in person but in custody.
29 August 2018
Application adjourned to 19 September 2018. The respondent was noted as appearing in person and Mr Rogers (amicus curia).
19 September 2018
The file notes: “I grant permanent order as per TPO to expire on 18 September 2023.” The respondent is noted as being present in person. No legal representation is noted.
- On 29 August 2018, the defendant appeared in custody before the Cleveland Magistrates Court both for Domestic Violence matters and as a result of having been charged with several charges arising from breaches of the Temporary Protection Order. The Magistrate was at pains to ensure the appellant obtained legal advice.
- It appears from what the Magistrate was told by the prosecutor that none of the local duty lawyers were prepared to act for him:
SGT HARRY: Your Honour, the duty lawyers, one of the firms in this area, is actually a victim of sorts in relation to one of the breaches, but also represents the aggrieved in the Family Court matters. The other duty lawyer, Fuller & White, they’ve had previous dealings with the defendant, where they won’t be retained on his behalf. There’s been some issues there. The solicitor that he had on file as of last week was Burns Law. They subsequently withdrew. And I understand that there was another solicitor earlier on in the progress - - -
- The Magistrate noted, “I recognise you are vulnerable. You are before the court in custody with handcuffs. You have no legal representation. You are vulnerable.” The Magistrate considered sending the appellant to Brisbane so he could obtain legal advice from a duty lawyer there. Mr Dan Rogers, a highly experienced and respected criminal lawyer, prominent human rights lawyer, and principal of Robertson O’Gorman Solicitors happened to be in the court and offered to appear for the appellant pro bono:
Good morning, your Honour. My name is Dan Rogers. I’m the principal of Robertson O’Gorman Solicitors. I’m here today instructing Mr Everhart (sic). Your Honour, I can’t promise that I can assist this man, but I’m happy to see him without fee in the cells now and see whether or not I can advance the matter. It’s, obviously, a matter for him, whether he wishes to see me, but I’m prepared to help.
BENCH: Yes. I think it’s incumbent that he sees someone, Mr Rogers. I really appreciate the gesture, but I think if there’s going to be a conflict with the lawyers here, at some point, we’ve got to organise a grant of aid for him.
- Mr Rogers did speak to the appellant in the cells and subsequently returned to the court and advised as follows:
BENCH: Now, just before the court there’s concern that the defendant didn’t have any legal representation. I was minded to have these matters transferred to Brisbane so he could get access, and, thankfully, we had the assistance of Mr Rogers, who’s appeared amicus curiae. Now, have you had a chance to get instructions from the defendant, Mr Rogers?
MR ROGERS: I have, your Honour. For the record, Rogers, initial D., solicitor at Robertson O’Gorman. I appear as a friend of the court. Your Honour, I’ve had a chance to speak to [KEM] and also speak to my friend. I understand that she will take a certain course in respect of all of the charges of breaching a temporary protection order and that will relieve a single charge of unlawful stalking to which he will enter a plea. I understand the application for a protection order is before your Honour’s court also. Subject to your Honour’s view, it’s proposed that the temporary-protection order remain in place and that application be adjourned to the Domestic Violence Court, but we’re not in a position to resolve the DV application today, but we are in a position to resolve the criminal matters.
- The appellant was then arraigned on one charge, namely, between 1 July 2017 and 18 October 2017 at Cleveland, he unlawfully stalked GYB. The appellant pleaded guilty to this charge and the prosecutor outlined the facts as follows:
Your Honour, the victim in the matter is a [GYB]. The victim and the defendant are known to each other. They were married and separated in July 2017. On separating, the defendant has left the family home at Cleveland and on leaving the address he’s left all keys to the unit, but maintained possession of a remote for the automatic garage door. It’s alleged that during the periods the dates of the offence, the defendant left the family home up until 18th of October ’17. He’s engaged in behaviours which have caused significant fear and apprehension for the victim. The victim has located a spy-type application on her phone, which accesses her location and text messages sent and received. The defendant has confronted a mutual friend about private messages sent between the victim and this mutual friend. The defendant’s also attended outside the lounge-room window of the victim and filmed her sitting in the lounge room area watching TV. There is footage of that – footage of those allegations.
- The prosecutor also noted:
Your Honour, he was subject to an arrest warrant on 14 October ’17; a recovery order for the couple’s children issued at Federal Court; and he was subsequently arrested in relation to this matter. He was spoken to about the matter and, in relation to filming the aggrieved, he exercised his right to silence, but spoke openly about videoing his wife through the open window, stating that he was concerned for her wellbeing and that she was not in fear of him in any way. Your Honour, the – as I indicated, there’s no criminal history for the defendant, just the traffic history. I do submit that in relation to the penalty that the court, although limited traffic history, it’s a matter where the defendant could be considered. A disqualification occurred on his driver’s licence for turning up at the aggrieved’s residence and filming her. The other submission I make is in relation to a stalking order, and the prohibition of contact for the - - -
- Mr Rogers made the following submission:
MR ROGERS: Your Honour, I’ve had half an hour with him, and these are some of the important instructions that he’s provided to me. He’s 40 years of age. He was born in Poland. He’s a permanent resident of Australia. He separated from his wife in July of last year and that was the commencement of the stalking period on the basis that he accepts that around that point there was a device placed on her phone, so that he could have some knowledge of her activities. He instructs me that the reason he did that was that he was concerned that his wife, who was from Columbia, may take steps to leave the jurisdiction with the children.
Obviously, that’s unlawful for him to do that, but that was the intended course of him doing that at that time. The second fact that makes up the unlawful stalking is the occasion where he attended at her home after there had been a separation and he’s walked down the side of the house, seen her through the window, pulled out his iPhone and taken a video of her. The best insight into why he did that is contained within a letter that he provided to me from Dr Samit Roy, which I’ll tender for completeness, but they’re – there’s reference to possible diagnosis and I’ll read briefly. It says:
On the basis of the assessment, I found no evidence that he’s suffering from mental illness. He denies symptoms of depression, hypomania, mania or PTSD. On the basis of the assessment, he doesn’t present with psychotic symptoms. It is noted that he holds overvalued ideas regarding his children’s 20 safety and the potential risk that his wife may pose to the children based on reports that his wife may suffer from depressive illnesses.
So on my reading of that, he has overvalued idea the wife presents a harm to the children and he instructs me that on this occasion he was concerned about the welfare of the children. I don’t say that that concern was well-founded. There is reference in the police material to him contacting the police on numerous occasions asking the police to go and do welfare checks on his home in circumstances where he was the primary caregiver, I’m told, for two years. The separation occurred. He lost contact with those children. Again, it doesn’t excuse unlawful stalking, but it does give context in terms of why he did the two things that are particularised as the stalking.
The – that behaviour then prompted the police to bring a – well that behaviour prompted a cross-application for a protection order against him and the temporary protection order was in place after the stalking period. So at the time of the stalking, he wasn’t in breach of any – of the court’s orders. He is in proceedings in the Family Court, and I’m told that there is a review of that matter on the 6th of September, where he intends to appear. He’s currently self-represented, but we’ve discussed the services that he might access from either Legal Aid or from Caxton Community Legal Centre where I serve as secretary. And I’ve told him about - - -
BENCH: That’s good sound advice, Mr Rogers.
MR ROGERS: He needs to obtain representation for that, but he also needs representation in relation to the application for the DVO, which I understand will be adjourned back to that court for a mention perhaps in a couple of weeks, so that he can get some advice and decide what to do about that matter. Of course, the temporary protection order would stay in place. The other matters that are important are that he lives with his mother near Mount Tambourine. So he’s geographically isolated, I’m told, from where the complainant now lives. He assists his mother, who is unwell. She has an operation on 7 September in relation to a cancer diagnosis. He’s employed in IT, working for Hexagon Mining. That’s a recent position that he obtained only a few weeks ago, and, as a result of the last week in custody, he will find out whether the position is still there upon his release. He provided me with some references, and I don’t intend to ask your Honour to read those.
BENCH: Now, what impresses me about these people who come before the court, Mr Rogers, you’ve got a bloke who’s got no criminal history. I mean, that speaks volumes, particularly at this age, but it speaks volumes about a person’s character, but when you look at a breakdown in a relationship, particularly when children are involved, you can expect the behaviour to become a little bit erratic.
MR ROGERS: Yes.
BENCH: But the erratic conduct, provided it doesn’t infringe on any of the laws, a person with otherwise good character can manage to get through the - - -
MR ROGERS: Yes.
BENCH: - - - sad circumstances of the breakdown in a relationship. And they do get on with their lives and they do survive, but - - -
MR ROGERS: Yes.
- Mr Rogers went on to submit as follows:
ROGERS: He has taken some proactive steps by engaging with his GP, and I have letters confirming that. He has made an appointment to see a psychiatrist, Dr Roy, on the 5th of September, and he tells me that’s because he recognises that he’s not coping with the kinds of stressors that his Honour has just summarised. A probation order would encourage him to continue to do that. It has been explained to him what the conditions of a probation order entail of him and what are the consequences of breaching a probation order.
He has now had four weeks in custody and, in my respectful submission, having regard to that period of time, his absence of criminal history, the way in which the matter has now been resolved as a single unlawful stalking some 11 months ago with two particularised pieces of offending, that it would be within your Honour’s discretion to impose probation and also to exercise your discretion not to record a conviction.
He has no history. He will continue to be a provider for these children and a conviction would certainly affect his economic wellbeing and that of his family. And also he’s dealing with – although he doesn’t have a diagnosed mental health issue, he’s clearly addressing personal issues and, in my submission, a conviction would have some social impact on him as well. The circumstances of the offences are acknowledged as serious, but there are no violence or threats of violence. There are two things: namely, the installation of that app for the reasons that I’ve explained to your Honour, and a single occasion of him attending the home in a very misguided way to check on the welfare of his family that he was isolated from.
Having regard to those circumstances, I do submit that this would be an appropriate matter for your Honour to exercise a discretion. It’s been explained to him that if he breached the probation order, then that leniency, which may be afforded to him, would be quickly lost and a conviction would be recorded if he breached the probation order.
- The appellant had spent 7 days in custody at the time of sentence. He was sentenced to 18 months’ probation and no conviction was recorded. It was noted he had no history of criminal offending. The domestic violence application was adjourned for further mention to the Domestic Violence Court list at Cleveland on 19 September 2018.
- Pursuant to schedule 1 of the Criminal Code a “domestic violence offence” means:
[A]n offence against an Act, other than the, [DFVPA], committed by a person where the act done, or omission made, which constitutes the offence is also-
- (a)domestic violence or associated domestic violence, under the [DFVPA], committed by the person; or
- (b)a contravention of the [DFVPA] section 177(2).
- In this case, section 177(2) is not relevant, as at the time of committing the offence no DFVPA order was in place. However, the offence of Unlawful Stalking under section 359B does constitute a domestic violence offence as it is both an offence against an Act other than the DFVPA and is domestic violence as defined by the DFVPA. Pursuant to section 8 of the DFVPA domestic violence means:
behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—
- (a)is physically or sexually abusive; or
- (b)is emotionally or psychologically abusive; or
- (c)is economically abusive; or
- (d)is threatening; or
- (e)is coercive; or
- (f)in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.
Subsection 8(2) sets out a non-exhaustive list of examples of domestic violence behaviour and relevantly includes unauthorised surveillance of a person and unlawful stalking of a person. Both of these were part of the charge the appellant pleaded guilty to. Accordingly, it is clear the appellant committed a domestic violence offence. This is of course, relevant to what happened next.
- On 19 September 2018, the matter was mentioned in the Cleveland Domestic Violence Court as the appellant had filed an application to vary the temporary domestic violence order made in favour of the respondent and against the appellant.
- At this hearing, Ms Martin appeared for the respondent. She informed the court:
Last night I was called by my client who again was received – received a visit from Queensland police with yet another application to varying the existing order. I’d like to post on the record, your Honour that this is getting ridiculous. My client’s –the - applications are now becoming a further form of domestic violence. The police are there in the evening with the three young children of this relationship witnessing police at the house continuously because there is constant applications to vary an order that is in place. [KEM] was found guilty of stalking behaviour towards my client. Your Honour sentenced him with respect to that. My submission, it I’d been here on that day is that these orders should have been made permanent. My Client shouldn’t have to be put through a trial with respect to a protection order when she is already, your Honour, on my submission, suffered enough. These matters have been ongoing for a ridiculous amount of time now. And they need to be finalised. I’ve read [KEM]’s most recent 52 page application. He seeks to have the orders with – I think the order suspended immediately and the he be – that the children not be named on the order. The children were witness to the stalking behaviour.
- The Magistrate then took submissions from the appellant, who informed the court it had been misled. He stated the children had not witnessed stalking. He had recordings of how the respondent had breached the domestic violence order which he put in place. He had tried his best, but it was never enough, and a psychologist had advised him to move away.
- Further discussion took place between the Magistrate, Ms Martin and the appellant about the various issues. Ms Martin commented the issues raised by the appellant were properly issues for the Family Court.
- Ultimately, the Magistrate brought the discussion to a head when he said:
The only reason why I adjourned the matter was because the poor solicitor who was here on the day acted as a friend of the court because you had no legal representation. You were in custody. You were crying like a little baby. And I said to the solicitor, go and talk to this bloke in the watch house, and there were a number of charges that you were facing. Now, when he came back he said, “Look, I’ve managed to negotiate the dismissal of a number of charges, there was breaching a temporary order and he’s pleading guilty to a one single charge of stalking.” Now, the stalking charge related to your conduct on regard to your dysfunctional behaviour with respect to your ex-wife. Turning up at her place with a camera. Videoing while they’re inside their house…
- Further submissions continued between the prosecutor, Ms Martin and the appellant about similar issues as raised by the appellant earlier: namely, the court had been misled, the respondent had contravened orders, the appellant had recordings, references and reports from psychologists and he had been stabbed many times.
- The Magistrate noted:
People have so much capacity in their lungs, Ms Prosecutor…talk and talk. If you let them talk loud enough and long enough they run out of breath…He has an exceptional lung capacity…so you’ve just got to let him talk until he can’t talk any more. Keep talking.
- The Magistrate made an order in the following terms:
Where there is a temporary protection order where you have been sentenced on a charge of stalking which relates specifically to the relationship that was subject to the stalking conduct. That is also enmeshed in this application for domestic violence. Now, where a court hears and determines a matter and there is a finding of guilt, the court, of its own volition, can enter a permanent protection order. But before I do that, I must be satisfied that it is necessary and desirable for the court to grant such an order. When I look at the nature and circumstances, particularly involving the allegations that involved the stalking, the fact that you have no history, the fact that this is a very volatile relationship and you are embroiled in federal court matters at the moment, a lot of stuff that you are referring to today and previously relate to matters that would, having considered the application to vary, I am going to strike your application out. In regard to the temporary – or varied protection order that was granted by the court back on 7th of March ’18, I am going to grant a permanent protection order. As for the terms and conditions set out in the temporary varied order…that would expire on 18th of September… 2023.
- I note this was not a trial. No trial date had been set. It was set as a mention for the appellant to obtain legal advice about the making of an order in favour of the respondent. The appellant had also filed an application to vary the temporary domestic violence order made in favour of the respondent and against the appellant, as referred to by Ms Martins.
- The Magistrate did not specifically articulate the relevant section which gave him the power to make the order on the courts own initiative. However, section 42 of the DFVPA states:
- (1)This section applies if a court convicts a person (the offender) of a domestic violence offence.
- (2)The court may, on its own initiative, make a protection order against the offender if the court is satisfied that, under section 37, a protection order could be made against the offender.
- (3)If a domestic violence order is already in force against the offender, the court—
- (a)must consider the order and whether, in the circumstances, the order needs to be varied, including, for example, by varying the date the order ends; and
- (b)may, on its own initiative, vary the order.
- (4)However, the court may not make a protection order under subsection (2) or vary a domestic violence order under subsection (3) unless the following persons have been given a reasonable opportunity to present evidence and to prepare and make submissions about the making or variation of the order—
- (a)the offender;
- (b)the prosecuting authority for the offence;
- (c)if reasonably practicable, the person who is or would be named as the aggrieved in the order.
- (5)A court exercising jurisdiction under this section—
- (a)may make the protection order, or vary the domestic violence order, before the offender is discharged by the court or otherwise leaves the court; or
- (b)may adjourn the matter of making the protection order, or varying the domestic violence order, to a later fixed time and day and may, in the meantime, make a temporary protection order under division 2.
- (6)If the court adjourns the matter under subsection (5)(b), the court—
- (a)must inform the offender that if the offender does not appear in court at the later time and day to which the matter has been adjourned—
- (i)a protection order may be made, or a domestic violence order varied, in the offender’s absence; and
- (ii)the court may issue a warrant for the respondent to be taken into custody by a police officer if the court believes that it is necessary for the respondent to be heard; and
- (b)may issue any direction that it considers necessary.
- In this case, if the Magistrate intended to rely on the section, which he clearly did, he was required to first, in making an order, be satisfied under section 37 a Protection Order could be made against the offender. Section 37 provides a court may make a Protection Order if the court is satisfied:
- (a)a relevant relationship exists between the aggrieved and the respondent;
- (b)the respondent has committed domestic violence against the aggrieved; and
- (c)the protection order is necessary or desirable to protect the aggrieved from domestic violence.
- In deciding whether a Protection Order is necessary or desirable the court must consider the principles mentioned in DFVPA section 4 and whether the respondent has breached a previous order. However, before making an order, the court is required to give the offender, prosecuting authority for the offence (in this case, the Queensland Police Prosecution Service) and if reasonably practicable, the person who is or would be named as the aggrieved in the order, reasonable opportunity to present evidence and prepare and make submissions about the making or variation of the order.
- When the criminal charge matter came before the court on 29 August 2018 and the appellant was sentenced on his plea of guilty, the domestic violence matter was adjourned to 19 September 2018. It is not clear if 19 September 2018 was a day set for the making of submissions after the parties had been given a reasonable opportunity to present evidence and to prepare for and make those submissions. What is clear, is on that day the appellant was present. The QPS was also represented. The aggrieved was represented by Ms Martin. Clearly, the parties were given a reasonable opportunity to make submissions about the making of the order. It is also clear the appellant had police serve on the aggrieved a 52-page document referred to as an application to vary the existing order.
- In my view, DFVPA section 42(4) does not require a trial. It requires the appellant and other parties have an opportunity to present evidence and to prepare and make submissions about the making of the order. In my view, this occurred. Although the Magistrate used some injudicious language, he did allow the appellant a lengthy opportunity to argue against the order being made. The Magistrate clearly took the view the submissions from the appellant were more appropriately made in the Family Court.
- I am satisfied the Magistrate addressed the issues he was required to under section 37 and was satisfied it was necessary or desirable for the order to be made, for the reasons he placed on the record. It was clearly open to the Magistrate to form the view he did, that the issues the appellant raised would continue to arise until Family Court proceedings were finalised, whenever that might be, given the appellants propensity to prolong the matters.
- In any event, the appellant appealed the decision of the Magistrate.
- By Notice of Appeal filed 17 October 2018, the appellant appealed the decision of the Cleveland Magistrate to make a domestic violence order on 19 September 2019. The appeal sought orders the Protection Order made against the appellant on 19 September 2019 be dismissed.
- In his grounds of appeal the appellant notes a Protection Order was made in his favour, which he says the respondent contravened many times. He says this order was struck out by mistake by the Magistrate which was contrary to the DFVPA. He states both applications should have been heard together before one was decided. He notes “if it wasn’t structed (sic) out by mistake, it would be clear that the [r]espondent had been the only perpetrator of domestic violence in the relationship, not the [a]ppellant”.
- He notes an application to vary the respondent’s order was dismissed without being read and submits this application provided evidence that proved what the respondent had claimed “is untrue, clear manipulation and perjury, with included confirmations from over dozen of witnesses”.
- He noted the only physical violence was perpetrated on him by the respondent and he had not committed any act of physical domestic violence against the respondent.
- He further noted DFVPA section 37 states the order can be granted if the order is necessary and desirable to protect from domestic violence. “Within a year there was not even a slightest suggestion that a domestic violence could be committed by the [a]ppellant while there is an ongoing domestic violence by the [r]espondent at least in the form of social abuse to aggrieved children and the [a]ppellant.”
- The appellant submits “[a]ccording to the [DFVPA] children should be protected only when there is a risk of harm to them. There is no confirmed risk of harm to children and there is nothing that could suggest any risk of harm for the appellant. The opposite, a forensic psychiatrist pointed out it is the [r]espondent who poses a risk of harm to the aggrieved children, especially while they remain in the care of the [r]espondent”.
- The appellant filed an outline of argument on 29 April 2019. He noted he is Polish and doesn’t understand the laws in Australia. He said he is concerned for his safety and asked if the appeal could be heard on written submissions only. He noted he is “defined” by Queensland Police as “a vulnerable person”. He also notes he has been assessed by “multiple mental health professionals” and does not suffer any mental health issues, although he says he has actively sought help over the years to cope with his “ex-wife’s unpleasant behaviours”.
- He then addresses the appeal under a number of headings, “Summary”, “Children”, “Cruelty and Exploitation” and “Proven acts of domestic or family violence”, before providing a schedule which headed “Tiny Few Examples Of Proven Domestic Violence From Ex-wife (Reasons for my DVO)”.
- In his application, he sets out some provisions of the DFVPA, and notes he is seeking leave to “request copies of all documentation filed in the Magistrates Court in Cleveland in regards to the DVO and Vary Bail applications” and to adduce further evidence in respect of the Magistrates Court domestic violence proceedings.
- In his argument, the appellant notes he was the first to file a domestic violence order to protect his children from the respondent and the children were very happy living with him. As a result of him being jailed and the respondent falsely accusing him of relocating with the children he has lost everything. The children now do not have contact with him or his mother (the children’s grandmother). He notes there are significant examples he can provide to the court showing domestic violence was perpetrated against him and not by him against the respondent. The appellant says the respondent harms the children and the children appear scared of the respondent. He notes the children reported they “feared …being poisoned by her”.
- In the respondent’s outline of argument, counsel noted the history of the matter, particularly with respect to family law proceedings in the Federal Circuit Court and Family Court. Particularly, it was noted:
- “(a)On 21 July 2017, the appellant filed an initiating application in the Federal Circuit Court seeking interim and final parenting orders. On 25 September 2017, the respondent filed her response and supporting material;
- (b)Contemptuously with service being effected upon the appellant, he withheld that party’s three children. On 10 October 2017, the respondent filed an urgent interim application seeking that the children be returned to her care;
- (c)The matter was listed for hearing on 12 October 2017. Judge Spelleken ordered that the appellant bring the children to the Commonwealth Courts Building at 4.00pm so that they can be returned to the respondent’s care. The appellant did not deliver the children to the court. Rather, he sent a text message to the respondent stating that:
“I am ready to give my life for our children” and “I am also ready to give up my life to protect our children if I must”;
- (d)The matter was relisted in the afternoon of the 13 October 2017. Judge Spelleken that the recovery order be made and she issued a warrant for the appellant’s arrest. Police issued missing persons updates between 12 and 17 October 2017. On 16 October 2017 an Amber Alert was issued. Temporary Protection Order was made naming the respondent as the aggrieved party. The children were named on the order. Eventually the appellant was arrested and the children returned to the respondent. The submission notes that on 29 August 2018 the appellant pleaded guilty to one charge of unlawful stalking and was sentenced to 18 months’ probation. No conviction was recorded. It was noted that the proceedings were adjourned to allow the applicant to seek legal advice. The matter was relisted for mention on 19 September 2019. On that day the presiding magistrate exercising discretion under s 42 of the DFVP Act made a Protection Order. It was submitted that the unlawful stalking charge was the reason the magistrate made the Protection Order under s 42 and it was noted that there no reasons for judgment delivered as the matter did not advance to a final hearing.”
- In respect of Family Court proceedings, it was noted the matter was listed on 13 December 2017 in the Magellan docket to be determined by the Honourable Justice Carew. The matter proceeded to trial on 3 to 7 June 2019 before Carew J.
- The respondent’s submissions continued. On 29 June 2019, the appellant’s application in an appeal was heard. The appellant also filed two further applications in the appeal, which were yet to be determined. It was submitted the Family Court appeal was complicated by the appellant filing multiple and conflicting applications which were procedurally flawed.
- It was submitted the matters raised under DFVPA section 37 are not contentious. It was noted the parties were in a relevant relationship. The appellant admitted committing acts of domestic violence towards the respondent and it was determined a Protection Order was necessary and desirable to protect the respondent from domestic violence. It was submitted no error of law can be established regarding the making of the order. It was submitted the court was entitled to make an order against the appellant as no finding was made that the respondent had perpetrated any acts of domestic violence against the appellant.
- In no circumstances was it inappropriate for the court to refuse to make an order in the appellant’s favour and it was submitted “the court also corroborated the making of the order with the appellant’s admission of guilt and unlawfully stalking the respondent”.
- It was further submitted if the appellant is unsuccessful in his application to adduce further evidence, then there has been no relevant change in law, and a court entertaining an appeal by rehearing can exercise appellate powers only if it satisfied there was error on the part of the primary decision maker. It was further submitted the appellant has failed to substantiate any lack of competence, discernible error of fact or law, or any matter that would question the Magistrate’s adherence to his duties and obligations to the court and the parties in this matter.
- In conclusion, it was submitted the Magistrate correctly determined the granting of a Protection Order was necessary and desirable in this case. It was submitted there is simply no discernible error of law; that is, there was no error in the Magistrate’s decision, which would warrant allowing the appeal.
- Accordingly, it was submitted the appeal ought be dismissed.
- The appellant failed to appear at the time and date set for the hearing of the appeal. As set out above, significant email exchanges occurred between the court and the appellant with respect to the time and date for the appeal and whether he would be attending. I am not satisfied the reasons advanced by the appellant for his failure to appear are reasonable and satisfactory. Initially, he indicated he did not want to attend the court because of the COVID-19 restrictions. However, by the date of the appeal restrictions had eased significantly and litigants were attending the court in person subject to social distance rules. There was clearly no impediment to the appellant attending the court in person. If there was any medical reason for his inability to attend, he did not advance one. He was given an opportunity to appear by phone or video link. Subsequently, the appellant admitted he was not in the country, although he would not say where he was. It appears from material attached to the email exchanges that at least at some time the appellant may have been in Thailand.
- It is incumbent on the appellant to prosecute his appeal in a timely way. The matter was listed for hearing on 27 July 2020 and notice sent to the appellant on 3 March 2020. The matter had come before the court on that date but the appellant did not appear. His mother appeared on his behalf instead. Her understanding of the English language was for all intents and purposes extremely limited. I had first-hand experience of this when she attended court on the hearing date. There does not appear to be any good reason why the appellant failed to appear as required by the order of the court. The appellant’s request for adjournment is refused. Instead, I propose to consider the merits of the application having regard to the applicant’s written submissions and the submissions of the respondent.
- As discussed, the applicant foreshadowed in his Notice of Appeal he would seek at trial a hearing de novo of the proceeding and leave to adduce fresh evidence as follows:
1. An Application in a Case to dismiss the Independent Children’s Lawyers;
2. An Application in a Case for other family members to ‘intervene’ in the proceedings;
3. “proofs” of purported “contraventions” of a Protection Order granted to protect the Appellant; and
4. An Application to Vary the Appellant’s Bail Order.
- In respect of any leave to adduce further evidence, the respondent submitted the application was misguided. It was further submitted DFVPA section 168 provides an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed; however, the appellate court may order the appeal be heard afresh in whole or in part. It was submitted in conducting the appeal, it is appropriate the court conduct a real review of the material and reasons of the Magistrate paying due regard to those reasons.
- It was submitted “the appellant has failed to substantiate any ground upon which an order would favour the appellant’s application to adduce the evidence of the nature sought by him and his notice of appeal therefore, the application made by the appellant must fail (emphasis removed)”.
- As discussed, the appellant failed to appear at the time and date set for the hearing of the appeal and his request for adjournment was refused. Accordingly, an application for a hearing de novo of the proceedings was never made or determined. Even if such an application was made, it would likely have been dismissed. The Independent Children’s Lawyer is relevant only for the appellant’s family court proceedings. It is unclear what evidence the appellant was seeking to adduce in his application for other family members to ‘intervene’ in the proceedings; however, prima facie, it appears irrelevant. Potential contraventions of a Protection Order in which the appellant is the aggrieved are not relevant to this appeal and this court has no jurisdiction to vary the appellant’s bail.
- Therefore, this appeal is in the nature of an appeal by re-hearing on the record. In any appeal of that nature it is necessary for me to consider the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts. I must recognise the Magistrate had the advantage of seeing and hearing the witnesses in the evaluation of credit and in assessing the “feeling” of the case.
- The appellant bears the onus of showing there is some error in the decision under appeal. The making of a Protection Order involves the exercise of discretion. Consequently, error of the kind explained in House v The King must be demonstrated. Where error is demonstrated, I must consider the whole of the evidence to determine whether the orders made are nonetheless justified. As her Honour Judge Kingham (as she then was) noted in FCA v Commissioner of the Queensland Police Service, “[t]he question is not whether the appellate court might have itself made a different finding but is, rather, whether the finding made by the trial judge was reasonably open on the evidence before them”.
- The appellant pleaded guilty to one count of stalking on 28 August 2019. On that occasion, the Magistrate provided the appellant with an opportunity to obtain legal advice before considering whether a domestic violence order should be made pursuant to section 42(4) of the DFVPA. Whilst it should be noted his Honour did not make reference to that provision, the effect of his order provided the appellant with such an opportunity to present evidence and to prepare and make submissions about the making of the order. On 19 September 2018, the learned Magistrate took into account submissions by the prosecutor, by the legal representative of the respondent and of the appellant. He determined the provisions of DFVPA section 37 were satisfied for the reasons he gave, in particular:
[w]hen I look at the nature and circumstances, particularly involving the allegations that involved the stalking, the fact that you have no history, the fact that this is a very volatile relationship and you are embroiled in Federal Court matters at the moment, a lot of the stuff that you are referring to today and previously relate to matters that would properly be resolved in the Federal Court jurisdiction.
- The Magistrate considered the appellant’s application to vary the Temporary Protection Order (then in force) naming him as respondent should be struck out. In his view, it was necessary and desirable for the court to make a protection order in favour of the respondent. I am satisfied the Magistrate’s order was in accordance with the provisions of the DFVPA, in particular, section 42. It is clear given the appellants guilty plea, a Protection Order in favour of the respondent was open.
- Having complied with the provisions of the DFVPA and having made the findings he did with respect to the need for an order I am satisfied the discretion of the Magistrate was exercised appropriately.
- In those circumstances, I am satisfied that on balance the appellant has no prospects of success in the appeal. On that basis, the appeal should be dismissed.
Court document 1.
Domestic and Family Violence Protection Act 2012 (Qld) sch (definition of ‘appellate court’).
Domestic and Family Violence Protection Act 2012 (Qld) s 23(2).
Court document 10.
Court document 11.
Court document 12.
Transcript of Magistrates Court at Cleveland on 29 August 2018 at 1-7.
Transcript of Magistrates Court at Cleveland on 29 August 2018 at 1-5, ll 22-3.
Transcript of Magistrates Court at Cleveland on 29 August 2018 at 1-6.
Transcript of Magistrates Court at Cleveland on 29 August 2018 at 1-9.
Transcript of Magistrates Court at Cleveland on 29 August 2018 at 1-10.
Transcript of Magistrates Court at Cleveland on 29 August 2018 at 1-11.
Transcript of Magistrates Court at Cleveland on 29 August 2018 at 1-15.
Transcript of Magistrates Court at Cleveland on 29 August 2018 at 1-18.
Criminal Code Act 1899 (Qld) sch 1 (definition of ‘domestic violence offence’).
Domestic and Family Violence Protection Act 2012 s 177(2).
Criminal Code Act 1899 (Qld) s 359B.
Domestic and Family Violence Protection Act 2012 s 8.
Domestic and Family Violence Protection Act 2012 s 8(2)(h)-(i).
Transcript of Hearing at Magistrates Court at Cleveland on 19 September 2018 at 1-2.
Transcript of Hearing at Magistrates Court at Cleveland on 19 September 2018 at 1-8.
Ibid at 1-9.
Transcript of Decision of Magistrates Court at Cleveland on 19 September 2018 at 1-2.
Domestic and Family Violence Protection Act 2012 (Qld) s 42.
Ibid s 42(2).
Ibid s 37(2).
Ibid s 42(4).
Domestic and Family Violence Protection Act 2012 (Qld) ss 37(1), 4.
Court document 1, p 3.
Ibid, p 2.
Ibid, p 3.
Court document 4.
Ibid at .
Ibid at .
Ibid at .
Ibid at .
Ibid, pp 11-4.
Ibid, p 15.
Ibid, p 5.
Court document 6.
Operations Pty Ltd v Australian Industrial Relations Commission  2003 CLR 194.
Court document 1, p 3.
Fox v Percy (2003) 214 CLR 118 at -; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at , ; McDonald v Queensland Police Service  2 Qd R 612 at .
Fox v Percy (2003) 214 CLR 118 at ; McDonald v Queensland Police Service  2 Qd R 612.
Allesch v Maunz (2000) 203 CLR 172 at ; Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, ; McDonald v Queensland Police Service  2 Qd R 612.
House v The King (1936) 55 CLR 499.
FCA v Commissioner of the Queensland Police Service  QDC 46 at .
Transcript of Decision of Magistrates Court at Cleveland on 19 September 2018 at 1-2.
- Published Case Name:
KEM v GYB
- Shortened Case Name:
KEM v GYB
 QDC 262
16 Oct 2020