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LDC v TYL[2017] QDC 197

DISTRICT COURT OF QUEENSLAND

CITATION:

LDC v TYL & STP [2017] QDC 197

PARTIES:

LDC

(appellant)

v

TYL

(1st respondent)

AND

STP

(2nd respondent)

FILE NO/S:

D299 of 2016

DIVISION:

Appellate

PROCEEDING:

s 222 Appeal

ORIGINATING COURT:

Toowoomba Magistrates Court

DELIVERED ON:

14 June 2017, delivered ex tempore

DELIVERED AT:

Southport

HEARING DATE:

13 June 2017

JUDGE:

Muir DCJ

ORDER:

  1. Appeal is allowed
  2. Order of the 20 November 2016 is set aside
  3. The application for a protection order dated 19 April 2016 is dismissed

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – APPEAL AND REVIEW – where appellant appeals a two year domestic violence protection order made in the Toowoomba Magistrates Court – where the second respondent submits that if the appeal is dismissed, the matter should be remitted back to the magistrates court for rehearing – whether the learned magistrate erred at law in determining the protection order was ‘necessary or desirable’ – whether the protection order is ‘necessary or desirable’ - whether there is sufficient evidence of a risk of future domestic violence – whether the matter should be remitted back to the Magistrates court for rehearing.

Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 9 - 12, 37, 67, 100(2), 145, 151, 164, 168, 169.

ADH v AHL [2017] QDC 103, followed

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39, cited

Briginshaw v Briginshaw (1938) 60 CLR 366, applied

GKE v EUT [2014] QDC 248, followed

House v the King [1936] HCA 40, cited

Liftronic Pty Limited v Unver (2001) 75 ALJR 867, considered

MDE v MLG [2015] QDC 151, followed

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85, cited

Mbuzi v Torcetti [2008] QCA 231, considered

Norbis v Norbis [1986] HCA 17, cited

R v War Pensions Entitlement Tribunal ex parte Bott (1933) 50 CLR 288, cited

Sudath v Health Care Complaints Commission [2012] NSWCA 171, cited

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 48, considered

COUNSEL:

M Cable (sol) for the second respondent

SOLICITORS:

The appellant appeared unrepresented

The first respondent appeared unrepresented

Ms M Cable for the Queensland Police Service for the second respondent

Relevant background to the hearing

  1. [1]
    Yesterday, I heard an appeal by LDC against an order made by the learned Magistrate in the Toowoomba Magistrates Court on 29 November 2016 that a domestic violence protection order be issued against her, for a period of two years up until 28 November 2018 under section 37 of the Domestic and Family Violence Protection Act 2012 (Qld).[1]  I will refer to that Act as “the Act” during the course of my reasons.
  1. [2]
    The first respondent to the appeal is the appellant’s former husband, TYL. The second named respondent is the Toowoomba Police Service, however, as the application for a protection order was a police application brought by STP under section 100(2) of the Act, it was uncontroversial that STP is the proper second respondent and ought to be substituted as such.
  1. [3]
    The appellant represented herself before me yesterday, relying on her notice of appeal filed 2 December 2016 and her written outlines of 6 and 22 December 2016. These written submissions were also supplemented by her oral addresses to me.
  1. [4]
    The first respondent was in court at the bar table, but did not file any written submissions or make any oral submissions. The second respondent, STP, was represented by Ms Cable, a solicitor employed by the Queensland Commissioner of Police. 
  1. [5]
    The appeal was opposed, with the second respondent relying on a written outline filed 10 March 2017. I also heard oral argument from Ms Cable.  I reserved this matter overnight so that I could consider the material and the arguments further. 
  1. [6]
    I also requested that an email be sent by my Associate early this morning with a query in relation to paragraph 70 of the first respondent’s submissions.[2]  I gratefully received written submissions on behalf of the second respondent this morning, and I also heard further oral argument from Ms Cable.  The issue that I raised through my Associate’s email was the basis upon which (if I was to uphold the appeal), the second respondent submitted in paragraph 70 of her submissions, that the matter ought to be remitted to the Magistrates Court pursuant to section 169(1)(d) of the Act, to be reheard.   
  1. [7]
    I have considered the further written submissions and oral submissions made to me today. These are my ex tempore reasons for judgment, which I will revise and tidy up before they are published.

The basis upon which the protection order was made

  1. [8]
    The application for a protection order against the appellant made by the second respondent, was heard on 29 November 2016 at the Toowoomba Magistrates Court.[3]  Sergeant Budgon appeared on behalf of the second respondent at this hearing. The appellant was self-represented.[4] 
  1. [9]
    Affidavits from SBT and Constable Matthew Stoiles were tendered by the second respondent at the hearing, together with an affidavit from the first respondent’s mother. There was no oral evidence-in-chief of substance adduced by the second respondent at the hearing before the Magistrate. 
  1. [10]
    The appellant being unrepresented, was, by virtue of the Act, not able to cross-examine her former husband. There was some brief cross-examination by the appellant of the police officers, and she did not cross-examine her former mother-in-law.
  1. [11]
    By way of background, as elicited from the outline of submissions on behalf of the second respondent dated 10 March 2017, the grounds for the protection order were set out in the application for a protection order dated 19 April 2016.[5]The first respondent is the ex-husband of the appellant and shares an eight-year-old daughter with the appellant. The application particularises an incident on 19 April 2016 in which the appellant attended the first respondent’s home address demanding to see their daughter. The first respondent’s mother, was present and caring for the child at the time. The appellant yelled at the first respondent’s mother, insulting her with obscene names and was said to be banging on and kicking the front screen door, resulting in damage.  The child was present and in the house at the time of this incident.
  1. [12]
    It was uncontroversial before me, and indeed, the second respondent’s submissions referred to the parties being subject to a family law order. In paragraph 20 of the second respondent’s outline of submissions, there was a reference to the parties being subject to ongoing family law proceedings, whereby an order is in place mandating limited time between the appellant and the child, with conditions. In oral address, it was submitted that there were no outstanding family law proceedings from the first respondent’s perspective, but that there were “applications outstanding”, insofar as the appellant was concerned.
  1. [13]
    A temporary protection order was issued on 4 May 2016. The Magistrate delivered her decision on the same day as the hearing, that is the 29 November 2016, and granted a domestic violence protection order for two years against the appellant. The Magistrate’s reasons are relatively short. It is necessary, for present purposes, to repeat them:

LDC has, in cross-examination, denied that she had committed any sort of domestic violence.  It was put to her that she had damaged the door.  She said she didn’t accept that she banged on the door and then she said, ‘Maybe I banged on it once, but my hand would have been really sore.’

She did also state in her cross-examination in her evidence that she shouted a few things and stomped around.  She was upset, and she said very upset.  She doesn’t think that [the appellant and first respondent’s daughter] would be upset by all of this yelling and banging on the door.  She probably was in hearing range, and she also stated that she couldn’t possibly have damaged the door unless she was a ninja. 

This incident appears to have arisen out of LDC wishing to see [the appellant and first respondent’s daughter]. She alleges that her ex-partner has been refusing to arrange contact pursuant of the Family Court order.  The Family Court orders are there for a reason, and I note – and of course it’s not for this court to decide, but it will be relevant perhaps in the Family Court proceedings.

In any event, with whatever reason that LDC went to the house, when she went there, she has intimidated [TYL’s mother], has frightened [the appellant and first respondent’s daughter], and I find that this is the case from the evidence given by LDC in her affidavit, and TYL’s observations of [the appellant and first respondent’s daughter] as well, and indeed, [TYL’s mother] said that [the appellant and first respondent’s daughter] would have been able to hear, although she did not think that [the appellant and first respondent’s daughter] would have been scared.

I also note that there are three – no, four witnesses who state that they saw the door damaged.  Whilst there is no photograph of that, it is sworn evidence and I only have to be satisfied on the balance of probabilities that there was damage, and I am so satisfied based on the evidence of the police witnesses.  I therefore find that there has been an act of domestic violence committed. 

I then have to decide whether it is necessary or desirable to make an order – a protection order, and I note that this – these matters are going to continue in the Federal Circuit Court or Family Court in February of next year, and whilst the definition of the case law with regard to necessary or desirable has changed slightly from what the old test used to be, it still – I am still required to consider whether there is going to be ongoing contact between the parties in the future as to whether an order is necessary or desirable.

This is a case where I think matters still appear to be unresolved on behalf of [TYL’s mother], at least, with regard to contact and custody and therefore I am satisfied that on the balance of probabilities, an order – a protection order is necessary to protect TYL, [TYL’s mother] and [the appellant and first respondent’s daughter] from domestic violence.[6]

  1. [14]
    Her Honour then ordered in the following terms:
  1. (1)
    the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved,
  1. (2)
    the respondent must be of good behaviour towards any named person in this order and not commit associated domestic violence against the named person, and should the named person be a child/children, the respondent must not expose the child/children to domestic violence,
  1. (3)
    the respondent is prohibited from going to, underneath that, entering or remaining in premises where the aggrieved or any named person resides or is currently staying, including [the first respondent’s current address],
  1. (4)
    the respondent is prohibited from having or attempting to have any contact whatsoever by any means of communication, including telephonic or electronic communication, either directly or indirectly with the aggrieved and any of the named persons in this order. 

Exceptions:

  1. (a)
    except when attending any court, tribunal or counselling, arbitration or mediation required by that court or tribunal or when attending Legal Aid conferencing or other mediation
  1. (d)
    except – which seems to be a typo – except for the purpose of having contact with a child/children as set out in writing between the parties or as is permitted by an order made under the Family Law Act.

The Current Appeal

  1. [15]
    The appellant appeals these orders on nine grounds as follows:[7]
  1. (1)
    he Magistrate allowed the hearing to proceed without the respondent being represented. This meant the respondent could not cross-examine the applicant or raise important points in the matter through the applicant’s affidavit, which was then accepted as evidence and uncontested, meaning this bias to be evidence considered by the judge against the respondent,
  1. (2)
    she did not suggest to adjourn the hearing so that the administrative issues, including lack of representation, could be addressed,
  1. (3)
    she did not offer the respondent representation provided by the court, and this was not offered by the applicant, making the court and the applicant biased against fair legal representation by the respondent,
  1. (4)
    she did not offer an alternative to making an order to the parties, such as dispute resolution,
  1. (5)
    she did not sufficiently consider the facts of the matter, including the current domestic violence being perpetrated towards the respondent by the applicant,
  1. (6)
    she did not consider the implications of making an order for the child of the parties, that is that this order would further disrupt the parenting responsibilities of the parties preventing them and their child from having usual contact,
  1. (7)
    she accepted hearsay evidence by the police in their statements, ie, there were no photographs of alleged damage, including in the police statements, therefore, there was no hard evidence and their allegations should have been dismissed,
  1. (8)
    she assessed my affidavit as incorrectly prepared and raised this at the end of the hearing rather than at the start, which indicated she thought it was invalid and she – and should have been refused pending required corrections,
  1. (9)
    without a solicitor, it was impossible for the respondent to cross-examine a key witness to address her statement because she is an Aboriginal person who is in a current parenting dispute with the respondent and it is therefore culturally inappropriate that the respondent cross-examine her.
  1. [16]
    Grounds 1 to 5, 8 and 9 are in my view complaints about procedural matters. Grounds 6 and 7 are essentially a layman’s way of saying that the Magistrate erred in law and in the application of the relevant principles under the Act. Before I address these grounds of appeal, it is necessary to say something about the mode of appeal in this instance.

Appeal Principles

  1. [17]
    Section 168(1) of the Act is mandatory in terms and confines the appeal to the evidence in proceedings of the court below.
  1. [18]
    Section 168(2) reposes discretion in this appellate court to hear the appeal afresh in whole or in part. Judge Morzone QC in ADH v ALH and the Commissioner of Police [2017] QDC 103 said, relevantly:

It seems to me that this discretion may be invoked if the appellant demonstrates some legal, factual or discretionary error of the trial Magistrate.  This may allow the appellant court to consider the matter afresh in whole or in part, unfettered by the decision of the court below and not restricted to the evidence before the court below.[8]

  1. [19]
    In the present case before me, it was not submitted that I receive fresh evidence that was not before the court below, and in relation to that, I note that the fundamental rule that a party is bound by the conduct of his or her own case is set out in University of Wollongong v Metwally (No 2).[9]Further, fresh evidence should only be received in the most exceptional circumstances.[10]
  1. [20]
    In the context of this protective jurisdiction, I note the comments of Judge Morzone QC in ADH v ALH that the admission of new evidence in the appeal ought to be reserved for the most exceptional circumstances.[11]As I said, however, in the present case, it was not submitted that if the appellant had demonstrated some legal, factual or discretionary error and I was to consider the matter afresh, that there was fresh evidence to be adduced. 
  1. [21]
    Judge McGill SC in GKE v EUT [2014] QDC 248 described an appeal under section 168 to be one by way of rehearing.[12]As the Queensland Court of Appeal said in Mbuzi v Torcetti [2008] QCA 231,that involves this court affording respect to the decision of the Magistrate, bearing in mind the advantage the Magistrate had in seeing and hearing the witnesses give evidence, but reviewing the evidence, weighing conflicting evidence and drawing its own conclusions.[13]
  1. [22]
    It is uncontroversial, and I accept, that this court ought not interfere with the protection order made in the exercise of discretion unless it is vitiated by an error of principle, there has been a failure to appreciate the salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which a courts discretion should be exercised is not a sufficient justification for review. It must be shown that the discretion miscarried.[14]
  1. [23]
    Section 169 of the Act provides for the powers of this court in deciding an appeal. The 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.

Grounds 1 to 5, 8 and 9 of the Appeal

  1. [24]
    Turning now to the grounds of appeal.
  1. [25]
    As I have said, of the nine grounds of appeal, grounds 1 to 5 and 8 and 9 are complaints about procedural matters. In relation to ground 1, that is that the Magistrate allowed the hearing to proceed without the appellant being represented, I note that section 151 of the Act prevents cross-examination of a protective witness by a respondent who is not represented by a lawyer. The transcript of the hearing reveals that at the outset, Sergeant Budgen raised with the learned Magistrate that recent changes to the legislation had been made with respect to an unrepresented respondent cross-examining an aggrieved. The transcript also reveals the learned Magistrate engaged in lengthy discussion with the appellant to ensure she understood the limitations upon her as a self-represented respondent. The transcript also reveals that the appellant stated:

Well, I’m fine to go ahead today because I don’t have a lawyer and I won’t be – it won’t be possible for me to get a lawyer in the foreseeable future, so unfortunately myself representing is all I can offer.[15]

  1. [26]
    The Magistrate then confirmed that was fine, and stated further:

I’m just warning you that you won’t be able to cross-examine TYL.[16]

The appellant replied: 

That’s perfectly okay.[17]

  1. [27]
    The learned Magistrate then proceeded to provide ample explanation as to how the hearing would run, what she needed to be satisfied of to make the order and, once again, sought confirmation from the appellant that she understood what was happening, to which the appellant responded:

Okay, that sounds fine.[18]

  1. [28]
    I accept the submission of the second respondent. In my view, the transcript clearly indicates that considerable efforts were made by the learned Magistrate to ensure the appellant was aware of the restrictions placed upon her as a self-represented respondent prior to the hearing commencing. This is affirmed by the appellant’s responses to the Magistrate when stating, “That’s perfectly okay,” and, “Okay, that sounds fine.” This ground of appeal is, I accept, misconceived and does not identify any legal, factual or discretionary error by the Magistrate.
  1. [29]
    Ground 2 relates to the Magistrate failing to suggest an adjournment of the application. In my view, for the reasons I have articulated in relation to ground 1, this ground of appeal is misconceived and there is no legal, factual or discretionary error identified.
  1. [30]
    Ground 3 relates to the Magistrate not offering the appellant representation provided by the court, making the court and the second respondent biased against fair legal representation by the appellant. Again, for the reasons that I have articulated in relation to ground 1, this ground of appeal is misconceived. Furthermore, it is not the responsibility of the court, nor the Queensland Police Service to insist that a party have legal representation.  This remained the responsibility and the choice of the appellant.  This ground of appeal is misconceived and there is no legal, factual or discretionary error.
  1. [31]
    Ground 4 relates to an alleged failure by the Magistrate to offer an alternative to making an order to the parties, such as dispute resolution. Section 4 of the Act outlines the principles for administering the Act, in particular section 4(1) states that:

This Act is to be administered under the principle that the safety, protection and well-being of people who feel or experience domestic violence, including children, are paramount.

  1. [32]
    I accept the submissions of the second respondent that the role of the learned Magistrate is to hear the evidence presented to the court and make a determination on the balance of probabilities whilst ensuring the principles of the Act are appropriately considered and administered. It is not for the Magistrate to consider any other alternative means of resolving greater issues between the parties.
  1. [33]
    In this case, the Magistrate was presented with a police application, which was contested by the appellant. It was and needed to be determined on the evidence and the Act administered so as to ensure the safety, protection and well-being of the first respondent and the other named persons. The offer of an engagement of dispute resolution is not an option available to the Magistrate, and certainly contrary to the principles of the Act. In any event, the reference to dispute resolution by the appellant really seems to point to the ongoing family law dispute more than the issues that were for determination by the Magistrate. I find that there is no legal, factual or discretionary error has been identified on the basis of ground 4.
  1. [34]
    By ground 5, the appellant contends that the Magistrate did not sufficiently consider the facts of the matter, including the current domestic violence being perpetrated by the appellant. There is, in my view, nothing to suggest that the Magistrate did not consider the matters that the appellant raised in relation to the alleged current domestic violence being perpetrated towards her, to the extent that the Magistrate may have considered it relevant to the application she was hearing. In my view, there has been no factual, legal or discretionary error raised in relation to ground 5 of the appeal.
  1. [35]
    Turning now to ground 8. It is contended by the appellant that the Magistrate assessed the appellant’s affidavit as incorrectly prepared and raised this at the end of the hearing rather than at the start, which indicated she thought it was invalid and should have been refused pending required corrections. In my view, there is no substance to this ground of appeal at all. It is clear that the appellant took an oath and was asked if the matters stated in her statement were true and correct. That in itself, in my view, was sufficient. Whilst the Magistrate stated that the affidavit did not strictly comply with the requirements for affidavits, she specifically referred to taking into account those matters in the affidavits which relate to the alleged incident of domestic violence. In my view, the contents of the affidavit were before the court and were not rejected on the basis that the appellant’s affidavit did not strictly comply with the requirements for affidavits. In relation to ground 8, the appellant has not identified any legal, factual or discretionary error.
  1. [36]
    Turning to ground 9. The appellant contends that without a solicitor, it was impossible for her to have cross-examined a key witness in relation to her statement. By this I understand she means her former mother-in-law, the first respondent’s mother. It was clear in my view that the appellant was given the opportunity to cross-examine all of the witnesses except (quite properly) the first respondent. She chose not to cross-examine the first respondent’s mother. As I said earlier in relation to ground 1, in my view, the learned Magistrate gave the appellant ample explanation as to how the hearing would run and what the limitations were upon her as a self-represented respondent.  Accordingly, in relation to ground 9, there is no legal, factual or discretionary error.

Grounds 6 and 7 of the Appeal

  1. [37]
    Turning then, to the remainder of the grounds of appeal, that is grounds 6 and 7. These grounds as I have said, deal with what are apparently errors of law in the making of the protection order.
  1. [38]
    Section 37 of the Act provides as follows:
  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;
  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, the court;
  1. (a)
    must consider the principles mentioned in section 4, and;
  1. (b)
    may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order
  1. (3)
    if an application for a protection order names more than one respondent, the court may make a domestic violence order or domestic violence orders naming one, some or all of the respondents as the court considers appropriate.
  1. [39]
    This section requires the court to first be satisfied of three requisite elements prescribed in section 37(1), before exercising the discretion to make a protection order. Satisfaction of each element requires further considerations of fact and law. Once satisfied of those matters, the court may, in the exercise of its discretion, make a protection order.
  1. [40]
    The court need only be satisfied of a matter on the balance of probabilities by section 145(2), and the onus is on the applicant to prove that the requirements have been made out.
  1. [41]
    The second element of section 37(1) is the requirement that the respondent has committed domestic violence against the aggrieved, including someone associated with the aggrieved. The definition of domestic violence in section 8 of the Act reflects the contemporary understanding of domestic violence and includes behaviour that is physically or sexually abusive, emotionally, psychologically or economically abusive, threatening or coercive, or behaviour that in any other way controls or dominates another person causing fear. Particular modes and types of abuse are defined further in sections 9, 10, 11 and 12 of the Act.

Ground 7

  1. [42]
    Ground 7 of the appeal raises the issue of there being no evidence of damage, which was what it appears, at least in part, the basis of the Magistrate’s finding as to there being sufficient evidence of domestic violence. The appellant complains that the hearsay evidence of police was accepted about the damage, and there was no “hard” evidence of the damage, meaning no photographs. The photographs that were taken were apparently not available as they were tied up with other court proceedings.
  1. [43]
    Section 145 of the Act deals with evidence in these matters and provides that:
  1. (1)
    In a proceeding under this Act, a court;
  1. (a)
    is not bound by the rules of evidence or any practices or procedures applying to courts of record, and
  1. (b)
    may inform itself in any way it considers appropriate.
  1. (2)
    If the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities,
  1. (3)
    To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order.
  1. [44]
    As Judge Morzone QC observed in ADH v AHL:

The premise of this section is clear -  the court ought have all pertinent information to fulfil the purpose of the proceeding reflected in the principle that the safety, protection and well-being of people who fear or experience domestic violence, including children, are paramount.  Nevertheless, 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.[19]

  1. [45]
    In ADH v AHL Judge Morzone also noted that it is not enough to suspect or speculate that something might have occurred.[20]
  1. [46]
    The seriousness of the allegations and the gravity of the consequences of the proceedings also enlivens considerations of the Briginshaw principle. In Briginshaw v Briginshaw [1938] 60 CLR 366, Dixon J said: 

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved. [21]

  1. [47]
    The relevant principle is that depending on the nature and gravity of the allegation against a party, the strength of the evidence required to meet the standard of proof may vary. What this means is that for more serious allegations, the court ought to more closely examine the evidence to ensure that it is strong enough to prove the allegations on the balance of probabilities. However, it is important to recall that the Briginshaw principle does not create another standard of proof. Again, as Judge Morzone QC identified in ADH v ALH

It does not displace the requirement that the court need only be satisfied on the balance of probabilities.  Instead, it permits the court to require a higher standard of satisfaction to discharge that standard where the seriousness of the allegations and consequences of sustaining them warrant that approach.[22] 

  1. [48]
    In the present case, the learned Magistrate in her judgment refers only to the evidence of damage to the screen door. Despite the particulars about kicking and banging, there was no evidence of any person seeing the respondent kicking, and certainly no evidence from the only person who gave a statement about what actually happened when the appellant turned up at the first respondent’s house on the day, that is the first respondent’s mother, about there being any damage to the door. The statement of the first respondent’s mother was that she could hear yelling and banging on the screen door. As I said, she gave no evidence about any kicking, and she gave no evidence about seeing any damage to the screen door or to the garage door.
  1. [49]
    The evidence from the first respondent was that when he arrived home, the appellant was not there. He then went outside and noticed that the front screen door and the garage roller door had been damaged. He said the front door screen was dented, and that the garage door was also dented and off its hinges.
  1. [50]
    The second respondent’s evidence was that the first respondent showed her the damage to the front screen door and garage door caused by the appellant banging on them that afternoon and that she noticed the screen door to be bent-in and the garage roller door to be dented and off its hinges.
  1. [51]
    One of the police officers attending on the day gave evidence that he was shown a security door and observed that part of the door was bent, and that he observed a dent in the garage roller door and that one side was off the runner. In his evidence he said that the first respondent told the second respondent that the security screen door and roller door did not have any damage prior to the appellant’s attendance and that first respondent said that the appellant must have caused the damage.
  1. [52]
    I note that in the second respondent’s statement, there is no reference to this conversation with the first respondent, and I note in the first respondent’s statement, there is no reference to this conversation with the second respondent.
  1. [53]
    As I have said earlier, the original application for the protection order, which was summarised at paragraph 19 of the second respondent’s submissions, referred also to there being banging and kicking of the front screen door, resulting in damage. There was no evidence about there being any kicking. There was also no finding by the Magistrate that there was kicking. She referred only to the evidence of the banging.
  1. [54]
    In my view, the seriousness of the allegation of damage and the gravity of the consequences warranted a higher degree of certainty to be satisfied on the balance of probabilities in relation to the damage. In my view, the learned Magistrate in this case did not turn her mind to the gravity. There was no evidence from anyone who was present when the appellant was at the property that they saw the appellant cause the damage, and the hearsay evidence from the other witnesses who arrived at the scene later ought not to have been given the weight that appears to have been afforded by the learned Magistrate. This is particularly so where there really was no evidence of where the alleged damage on the screen door occurred and in circumstances where there were photographs in existence but they were not produced.
  1. [55]
    However, in my view, in so far as the Magistrate found that the appellant had committed domestic violence against the first respondent and the aggrieved on 19 April 2016, that finding was, at least to some extent, justified by the evidence about the fear and intimidation of the first respondent’s mother and the appellant and respondent’s daughter by the appellant’s presence and conduct at the first respondent’s residence on the day. Despite the finding of damage, which, as I have said, I consider was unjustified on the evidence, the finding of domestic violence, in my view, is not otherwise diminished. In my view there was sufficient evidence to support a finding of domestic violence in this case. Therefore, ground 7 of the appeal has no merit.

Relevant Principles – is the protection order necessary or desirable?

  1. [56]
    The third element in section 37(1)(c) is that the protection order is necessary or desirable to protect the aggrieved from domestic violence.
  1. [57]
    The focus of this element is the paramount need for the protection of an aggrieved from domestic violence and whether imposing a protection order is necessary or desirable to meet that need. As Judge Morzone QC said in MDE v MLG:

The use of the phrase “necessary or desirable” invokes a very wide and general power, and should be construed in a similarly liberal manner to enable a court to properly respond, and, if appropriate, tailor an order to protect a person from domestic violence.  The phrase is not unusual in that it appears in both state and federal legislation, including analogous anti-domestic violence legislation.[23]

  1. [58]
    In GKE v EUT, Judge McGill SC also considered the requirement and said: 

In my opinion, the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature and whether it can properly be said in the light of that evidence that it is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis.  I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that, the making of an order is necessary or desirable to protect the aggrieved.[24] 

  1. [59]
    Later in GKE v EUT, Judge McGill SC stated further:

I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future.  Broadly speaking, I agree with what the Magistrate said in the passage beginning “fourthly” of his reasons, though I would express the last sentence as “the risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.” 

In assessing such a risk, it is relevant to consider the fact that there is going to have to be some ongoing relationship because of the position of the children, and, if as the appellant alleges, the respondent has been difficult and uncooperative in the past in relation to the arrangements for him to have the opportunity to spend time with the children, there is a risk that there will be situations arising of a kind which have in the past produced domestic violence.[25] 

  1. [60]
    Judge Morzone QC, in MDE v MLG, identified that the third element of whether the protection order is necessary or desirable to protect the aggrieved from domestic violence required a three-stage process supported by a proper evidentiary basis adduced pursuant to section 145 of the Act.[26]  In that case, his Honour articulated that:
  1. (a)
    The court must assess the risk of future domestic violence between the parties in the absence of any order. This means there must be a factual finding or inferences drawn of the nature of and prospect that domestic violence may occur in the future.  This will depend on the particular circumstance of the case.  Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, psychological counselling, compliance with any voluntary temporary orders and changes of circumstances.  Unlike its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence.
  1. (b)
    Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order.  Relevant considerations may include the evidence for the party’s future, personal and familial relationships, their places or residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children.
  1. (c)
    Thirdly, the court must then consider when imposing a protection order it is necessary or desirable to protect the aggrieved from domestic violence. [27]
  1. [61]
    In this regard, and again pursuant to section 37(2)(a), the court must consider the principles in section 4(1) of the Act, that is:[28]
  1. (a)
    the safety, protection and well-being of people who fear or experience domestic violence, including children, are paramount;
  1. (b)
    people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives minimised;
  1. (c)
    perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
  1. (d)
    if people have characteristics that may make them particularly vulnerable to domestic violence, any response to domestic violence should take account of those characteristics;
  1. (e)
    in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;
  1. (f)
    a civil response under this Act should operate in conjunction with, not instead of, the criminal law.
  1. [62]
    Finally then, if the court is satisfied that the other preconditions of a relevant relationship and, domestic violence are established, the court may exercise its discretion to make a protection order; imposing appropriate prohibitions or restrictions on the behaviour of a respondent, necessary or desirable to protect the aggrieved from domestic violence.

Ground 6

  1. [63]
    Turning, then, to ground 6 of the appeal. This ground raises, in my view, an error by the Magistrate as to whether or not the order was necessary or desirable. In my view, the Magistrate’s reasons have confused and conflated the considerations relevant to section 67(1)(c) of the Act namely whether a protection order is necessary or desirable to protect the first respondent from domestic violence.
  1. [64]
    Furthermore, the reasons are insufficient to discern whether the Magistrate had regard to some material considerations required in section 37(1)(c), or the evidential basis or process of reasoning, supporting the conclusion that it was desirable to make a protection order. In particular, it seems to me that the Magistrate failed to assess at all, the nature and risk of future domestic violence. By that I mean that the nature of such a risk, the protective needs of the aggrieved, if any, and if a need was found, how imposing a protection order was necessary or desirable to meet those needs, ought to have been addressed by the learned Magistrate, but they were not.
  1. [65]
    Whilst it is relevant to take into account the need for ongoing contact between the parties, I consider it was a giant leap, and indeed an error, for the Magistrate to have concluded a two-year protection order was necessary without even turning her mind to the nature and risk of the future domestic violence. In my respectful view, the learned Magistrate erred in exercising her discretion by acting upon a wrong principle in determining whether the order was necessary or desirable and allowed erroneous or irrelevant matters to guide or affect her.
  1. [66]
    The second respondent submitted that if I reached such a conclusion, I should remit this matter back to the Magistrates Court. As I stated earlier, this view was articulated in paragraph 70 of the outline of submissions filed by the second respondent on 10 March 2017, and in particular in further written submissions of 14 June 2017 following a request where, through my Associate, I asked why it is appropriate to remit the matter to the Magistrates Court as opposed to substituting another decision as is within my power under section 169(1) of the Act.  In response, the written submissions articulated that it is appropriate to remit the matter to the Magistrates Court for rehearing because section 168 of the Act outlines the hearing procedures in appeals and includes “that the appellant Court may order that the appeal be heard afresh in whole or part.” 
  1. [67]
    When I pressed the solicitor for the second respondent about what I considered a disconnect between these submissions and the question, I was unable to understand and I did not consider that there was an adequate response given to me as to why the matter needed to be remitted back to the Magistrates Court as opposed to me substituting my own decision. Section 168 of the Act relates to the power the appellate Court has to order that the appeal be heard afresh in whole or part and is not related to the power to remit the matter back to the court that made the decision.
  1. [68]
    I should pause to note that I did canvas whether it was the case that the second respondent was submitting that there was a need to adduce fresh evidence and it was made clear to me that that was not the position. There were, in the written outline of the second respondent at paragraphs 24 and 25, submissions made about breaches of the protection order, but there was no evidence about these breaches adduced, of course, quite properly, given that the matters as they stand, have not been determined.
  1. [69]
    It seems to me that what the second respondent wants is another chance at running the case in the Magistrates Court. I do not find there to be any persuasive argument for this to happen. This is particularly so in the case where the evidence-in-chief was by affidavit. There was a suggestion by the second respondent that the matter could be remitted back to the Magistrates Court so the appellant could get her chance to cross-examine the first respondent, but I do not accept this as a persuasive reason.  I have dismissed the lack of opportunity to cross-examine the first respondent as a ground of appeal. In any event, the appellant did not, when I asked her yesterday, want this course.  Her submission was that she wished the matter to be dealt with by me.

Considering the issue of necessity or desirability for a Protection Order afresh

  1. [70]
    In my view, it is appropriate to consider the matter afresh in relation to whether a protection order imposing appropriate prohibitions or restrictions on the behaviour of the appellant is necessary or desirable. In doing this I have to act on the evidence that was before the Magistrate.
  1. [71]
    If there are other acts of domestic violence alleged then there are other appropriate avenues available to the first respondent. If the first respondent is breaching Family Court orders or the appellant is breaching Family Court orders then the proper avenues are for those to be taken up in the Family Court.
  1. [72]
    In the present case, it is not in issue that a relationship exists. As I said earlier, I consider there was evidence that the appellant had committed domestic violence under section 37(b) of the Act. This then requires me to consider whether a protection order is necessary or desirable to protect the aggrieved from domestic violence. This requires me to undertake the three-prong approach that I identified earlier. In particular, I must assess the risk of future domestic violence between the parties in the absence of any other orders.
  1. [73]
    In doing this, I have had recourse to the evidence of the first respondent and, in particular, that he is worried that if a domestic violence order is not put in place to protect him, his mother and daughter, then the appellant might try and take their daughter and harm her as she does not have a stable mind and has mental health issues. In particular, in the first respondent’s affidavit he states:

With every time LDC comes to my house her behaviour escalates and each time she comes back it gets worse. 

  1. [74]
    In my view, bearing in mind the gravity of these allegations and the Briginshaw Test, without more, this evidence of itself does not satisfy me that there is the necessary risk of future domestic violence. This evidence and the evidence of the first respondent’s mother that the appellant would try to take the appellant’s daughter is that of speculation and mere possibility. On the evidence that I have before me, which was before the Magistrate, and, bearing in mind, as I said, the gravity of the allegations, I am not satisfied that there is sufficient evidence of a risk of future domestic violence. In particular I note that there are broad assertions about the appellant not having a stable mind and having mental health issues, but the evidence as it stands before me is that these are assertions being made by the first respondent and there is no other evidence that has been adduced to support such assertions.
  1. [75]
    I also need to assess the need to protect the aggrieved from the domestic violence in the absence of any order and I do accept that, of course, one of those relevant considerations is that this is not a case where there are two strangers involved. It is a case where there are ongoing relationships. The difficulty I have in the present case is that there is not sufficient evidence before me to support a conclusion that there is a risk of future domestic violence in the absence of an order.
  1. [76]
    I have also considered the third limb of the test, that is whether imposing a protection order is necessary or desirable to protect the aggrieved from the domestic violence, and I have had regard to the principles set out in section 4(1) of the Act. Overall, I do not consider that there is an evidentiary basis to support a conclusion that a protection order is necessary or desirable to protect the aggrieved from domestic violence.

Conclusion

  1. [77]
    In all the circumstances, I do not consider that the evidence supports a conclusion that it is necessary to make a protection order in order to protect the first respondent and the other aggrieved from domestic violence and, having due regard to the principles mentioned in section 4 of the Act, I do not consider that it is desirable to make such an order to protect them from domestic violence.
  1. [78]
    After considering all of the material before me and all of the written and oral arguments, I make the following orders:
  1. The appeal is allowed;  
  1. The order of the 29 of November 2016 is set aside;  
  1. The application for a protection order dated 19 April 2016 is dismissed. 
  1. [79]
    The appellant also sought an order that, if I allowed the appeal, I should order that the parties be sent to a dispute resolution process to discuss the matter and reach communication and contact terms that are appropriate to their situation. I refuse to make this order. It is not an appropriate order or one that I can see is within my power to make. It really relates to the family law issues.

Footnotes

[1]Brought under s 164 of the Domestic and Family Violence Protection Act 2012 (Qld).

[2]This email is marked for identification ‘A’. 

[3]For ease of reference in these published reasons, I have referred to the parties in the hearing before the learned Magistrate as they are referred to in the appeal proceedings before me.

[4]The named aggrieved in the application were: 1) the first respondent 2) the appellant and the first respondent’s daughter 3) the first respondent’s mother.

[5]See respondent’s outline of submissions document no. 3 in this appeal.

[6]Judgment transcript p 5 – 6.

[7]Notice of Appeal, court document no. 1. 

[8][2017] QDC 103 at [26]. 

[9][1985] 59 ALJR 481 at 483. 

[10]See Liftronic Pty Limited v Unver [2001] 75 ALJR 867 at 483, for example, where the interests of justice unequivocally demand it. 

[11][2017] QDC 103 at [27]. 

[12][2014] QDC 248 at [2] – [3]. 

[13][2008] QCA 23 at [17].

[14]House v the King [1936] HCA 40; [1936] 55 CLR 499 at 504, 505. See also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; [1981] 148 CLR 170 at 176, 178 and Norbis v Norbis [1986] HCA 17; [1986] 161 CLR 513 at 517 to 519. 

[15]Proceedings transcript 1-5

[16]Ibid

[17]Ibid

[18]Ibid

[19][2017] QDC 103 at paragraph 46, with reference to Sudath v Health Care Complaints Commission [2012] NSWCA 171 per Maher Justice of Appeal, and R v War Pensions Entitlement Tribunal ex parte Bott [1933] 50 CLR 288 at 256.

[20]Ibid, with reference to Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85.

[21]At 362.

[22]See supra note 3 at [49].

[23][2015] QDC 151 at [52].

[24][2014] QDC 248 at [32].

[25]Ibid at [33].

[26][2015] QDC 151 at [55].

[27]Supra note 27

[28]These principles were recognised and set out again by Judge Morzone QC in MDE v MLG [2015] QDC 151 at [55]

Close

Editorial Notes

  • Published Case Name:

    LDC v TYL & STP

  • Shortened Case Name:

    LDC v TYL

  • MNC:

    [2017] QDC 197

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    14 Jun 2017

Appeal Status

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