JC v KP[2017] QDC 175

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE LONG SC

No 1 of 2017

JCAppellant

and

KP Respondent

GYMPIE

2.50 PM, FRIDAY, 26 MAY 2017

JUDGMENT

Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge.

HIS HONOUR: In this matter, the appellant appeals, by notice of appeal filed on the 31^st of January 2017 and pursuant to sections 164 and 165 of the Domestic and Family Violence Protection Act 2012 (“DFVPA”), in respect of an order made on the 22^nd of December 2016 and on the first return date of the application filed by the respondent to this appeal, seeking such an order.

The parties are brothers and it can be noted that in the application for the protection order, filed in the Magistrates Court, the grounds relied upon, make particular reference to events that occurred on the 10^th of March 2016 and as the domestic violence allegedly committed against the aggrieved, who is the respondent to this appeal.  As is noted on the order itself, it is expressed as being a protection order made pursuant to s 37 of the Domestic and Family Violence Protection Act 2012. 

But it has also expressly been noted, the order was made “by consent without admissions”.  That indicated that the provisions of s 51 of the DFVPA were engaged in the making of the order.  That section permits such a protection order to be made and without the Court being satisfied of any matter mentioned in section 37(1)(b) or (c) of the DFVPA and which would otherwise be matters of which the Court had to be satisfied, before making such an order.  Accordingly and providing that the parties before the Magistrate consented to the making of the order or did not oppose the making of the order, the Magistrate otherwise only needed to be satisfied that a relevant relationship existed.  Here, that was clearly not in dispute.  They are brothers.  There was a family relationship.^[1] 

This appeal is concerned with the first issue. That is, as to whether there was consent, in particular, or at least the lack of opposition, to the making of the order.  The grounds of appeal are set out in the following way: 

1. (1)
   That the Magistrate erred in making the order by consent;
2. (2)
   That in making the order, the Magistrate has acted on a premise that is wrong in law.

   1. (a)
      The Magistrate was aware that the appellant was unrepresented.
   2. (b)
      The Magistrate should have been aware that the appellant did not fully understand the effect of the order at the time of giving apparent consent
   3. (c)
      The appellant’s consent to the order was induced by the Magistrate representing that the appellant would not lose his shooters licence or his right to possess his firearms as a result of the order.
   4. (d)
      The statement was made in direct response to a question raised by the appellant about the effect of the order upon his shooters licence and his right to own firearms.
   5. (e)
      The Magistrate knew or ought to have known that but for the said representation as to the effect of the order, the appellant would not have consented to the making of the order, but would have persisted in his previous course of seeking the matter be set for a contested hearing.
3. (3)
   The statement as to the effect of the proposed order made by the Magistrate was wrong in law.
4. (4)
   the appellant has relied upon that statement to his detriment in circumstances where it was reasonable for the appellant to rely upon the statement made by the Magistrate as to the effect of the order.
5. (5)
   the appellant has not therefore, given informed consent to the order being made.
6. (6)
   the order could not therefore, be properly made in all the circumstances.

It may be noted that those grounds obviously reflect a number of circumstances that are set out in the written information, which is attached to the order that was made, in compliance with s 85 of the DFVPA.  And particularly, in that information drawing particular attention to the consequences of the order as far as any shooters licence held by the appellant was concerned, and in terms of his being licensed to have firearms under the Weapons Act 1990. 

The grounds are also directed at the course of events, which are recorded in the transcript of the hearing and in particular, what can be discerned as to the Magistrate’s interventions, in the light of indications that the matter would need to be set for a contested hearing in respect of the application, and discussions with both the appellant and the respondent and more particularly with the respondent, in seeking to ascertain whether he would be prepared to consent to an order being made.  That was the critical issue, as opposed to the aggrieved or respondent’s consent, because clearly he was seeking the making of such an order.  In particular, attention is drawn to the passage which appears at page 8 of the transcript, following on from about line 10, where the appellant, who is recorded as being the respondent in the proceedings below, specifically asked the Magistrate:

Does it, by me consenting to that, does that mean I lose my shooters licence and my guns and all that sort of stuff?

The transcript then records “[indistinct]”, followed by the words:

Thank you.

It is the appellant’s evidence (presented to this Court to supplement the record in circumstances where it is understood that the recording does not allow for any discernment as to precisely what is in the indistinct section)  that he obtained a negative response from the Magistrate in answer to his question and that explains his responding further, as “thank you”.  And I note that the respondent is not prepared, on this hearing, to agree that the evidence provided to the Court by the appellant is correct.  I do not think it is necessary to resolve that issue. Although, it can be said that there is much to indicate that the appellant was left with the impression, at least, that he had a negative answer to that question.

It can also be noted, before I move to the respondent’s position in this Court, that this all occurred in the context of what is recorded as the Magistrate taking an approach, which he acknowledged himself at one point, may have been stepping outside his actual role and of attempting to mediate an outcome.  One can understand, given the pressures of work that are well understood, how such a thing might occur. But what has to be recognised is the danger in doing that, particularly with people who lack legal training and are self-representing before the Court.  And the very danger of some misunderstanding as to the consequences of things, to which agreement might be obtained.  In saying that one can understand the pressures on busy Magistrates to do so, is not to say that it is appropriate that this course of action should occur. 

The respondent’s position before this Court is to resist the appeal.  He contends that his brother should have been aware of the law and, in effect, should have had an understanding of what his obligations were in respect of his shooters licence and that in any event, it is clear that he consented to the order being made.  He particularly refers to an earlier exchange with the Magistrate, which is at page 5 in the transcript at about lines 20 through 30.  And it is clear that the respondent is recorded as saying he would be happy to consent to be on his best behaviour to him, because:

I’ve done nothing but that. 

It is also clear that is only in response to the Magistrate inquiring whether he would consent to being of good behaviour towards him and not commit any act of domestic violence, for a period of 12 months.  Of course, things moved on from there, because ultimately the order was made in different terms. That is, for a period of five years.  And that occurred in circumstances which followed the passage which the appellant particularly relies upon and to which I have already adverted, and after the respondent or aggrieved was not prepared to agree to 12 months. It eventually became five years,^[2] in circumstances where the respondent said:

You can make it as long as you like, your Honour.

And he then made it five years. That was obviously on the understanding that the appellant was agreeing to not commit an act of domestic violence.  It does not stand, it seems to me, as any agreement as to, or any understanding of the full consequences of such an order being made, either for 12 months or five years. 

Accordingly, the appellant’s contention that the order has been unlawfully made, should be accepted.  It can be noted that s 51(7) of the DFVPA, expressly provides that s 84 of that Act continues to apply in relation to a proceeding under that section. And it is s 51 that allows for the exception where there is consent to making the order. Subsection 51(7) is clearly directed at ensuring that orders, made pursuant to the exception provided in section 51 and as to what the Court must be satisfied of, are made when the consent or absence of objection, which enlivens the provision, is a properly informed position in respect of the consequences.  Section 84 provides:

“84 Court to ensure respondent and aggrieved understand domestic violence order

1. (1)
   If a court is hearing an application for a domestic violence order, and the aggrieved or the respondent is personally before the court for the first time in relation to the application, the court must ensure that the aggrieved or respondent understands the nature, purpose and legal implications of the proceeding and of any order or ruling made by the court.
2. (2)
   If a court is about to make a domestic violence order, and the respondent is before the court, the court must ensure the respondent understands—

   1. (a)
      the purpose, terms and effect of the proposed order, including, for example, that—

1. (i)
   the order may be enforceable in other States and New Zealand without further notice to the respondent; and
2. (ii)
   if the respondent has a weapons licence, or is a body’s representative as mentioned in the Weapons Act, section 10(3), the licence or endorsement as the body’s representative is dealt with by the Weapons Act, section 27A or 28A; and
3. (iii)
   under the Weapons Act, section 10B, a person against whom a protection order is made can not apply for a weapons licence for a period of 5 years from the date of the order; and
4. (iv)
   under section 83(2), a person against whom a domestic violence order is made is not exempt from the Weapons Act, despite the Weapons Act, section 2; and
5. (v)
   the consequences of a domestic violence order, as set out in subparagraphs (ii) to
6. (vi)
   can only be avoided if the respondent successfully appeals the domestic violence order; and

2. (b)
   what may follow if the respondent contravenes the proposed order; and
3. (c)
   that the respondent may apply for a variation of the order.

3. (3)
   If a court is about to make a domestic violence order, and the aggrieved is before the court, the court must ensure the aggrieved understands—

   1. (a)
      the purpose, terms and effect of the proposed order, including, for example, that the order may be enforceable in other States and New Zealand; and
   2. (b)
      what the aggrieved may do, and what may follow, if the respondent contravenes the proposed order; and
   3. (c)
      that the aggrieved may apply for a variation of the order
4. (4)
   The process that the court adopts to comply with this section may include using services of, or help from, other people to the extent the court considers appropriate. Examples of services or help the court may consider appropriate—

1  The court may arrange for the clerk, or a public service employee at the court, to explain the order to an aggrieved or respondent.

2  A professional interpreter or the telephone interpreter service (but not a relative or friend of the aggrieved or respondent) may be used to explain the order to an aggrieved or respondent.

3  Explanatory notes prepared for aggrieveds or respondents, including non-English speakers, may be given to an aggrieved or respondent.

4  The court may arrange with a local government indigenous regional council under the Local Government Act 2009, community justice group or group of elders for someone to explain the order to an aggrieved or respondent.

5  The court may arrange with a non-government service provider for a disability case worker to explain the order to an aggrieved or respondent who has a disability.

5. (5)
   Failure to comply with this section does not invalidate or otherwise affect a domestic violence order.”

The requirement in s 84(2), arises when a Court is “about to make a domestic violence order” and therefore, before it is made.^[3]And it is a separate requirement to that expressed in s 85 and as to a written explanation accompanying the written order served on the respondent, after the order is made and which is directed at ensuring that those consequences are fully understood for the purposes of implementation.

Section 84(5) is not a provision which stands in the way of the conclusion that this domestic violence order has been unlawfully made, as being made without consent or lack of objection, in any real or effective sense.  The better view of the subsection is that it establishes only a position that the domestic violence order is not to be regarded as ineffectual, in the absence of compliance with the earlier stated obligations, until some other order is made and which sets aside or invalidates that order. It may also be that the mere fact of noncompliance, may not be a sufficient basis for such an order and that it is necessary to have regard to the particular circumstances and effect of any such noncompliance.

Obviously, the circumstances where s 51(7) engages s 84(2) of the DFVPA, may be regarded as having different implications, as compared to the position when a Court has otherwise considered the evidence and is satisfied of all of the requirements for the making of the order and the issue is not about informed consent or absence of objection to the making of the order, but rather ensuring ongoing knowledge of the effect and consequences of that determination.

Here, it was the former situation and the particular circumstances indicate, at the very least, that a concern was raised as to the particular consequences that are expressly referred to in sections 84(2)(a)(ii) and (iii) and there was, at least, an absence of compliance with the obligation to ensure that the respondent understood those consequences. And whatever may have occurred in response to the applicant’s question, it is clear that his expressed consent to making of the order, proceeded upon his false understanding that there would be no such consequence and therefore, an incorrect understanding that should have been apparent to the Magistrate.

The decision of the Magistrate to grant a protection order, on 10 January 2017, is set aside and the proceeding upon the application of the respondent filed at the Magistrates Court at Gatton on 22 December 2016, is remitted to that Court, to be dealt with according to law and by first being mentioned, at a time to be notified to the parties. 

Mr [KP], is there anything else you want to say or raise with me?

MR [KP]: No, I am okay.

HIS HONOUR: Do you understand it has been sent back to Gatton, you will be notified by the Court when the matter is going to be listed to be mentioned and it will be managed by the Magistrates Court from there?

MR [KP]: Yes, I understand.

HIS HONOUR: All right.  Thank you.  Adjourn the Court, please.