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AVI v SLA[2019] QDC 192

DISTRICT COURT OF QUEENSLAND

CITATION:

AVI v SLA [2019] QDC 192

PARTIES:

AVI

(Appellant)

v

SLA

(Respondent)

FILE NO/S:

1951/19

DIVISION:

Civil

PROCEEDING:

Appeal pursuant to s 169 of the Domestic and Family Violence Protection Act 2012 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

2 October 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

25 September 2019

JUDGE:

Smith DCJA

ORDER:

  1. The appeal is dismissed.
  2. The decision made in the Magistrates Court in this matter is confirmed.
  3. I will hear the parties on the question of costs.

CATCHWORDS:

FAMILY LAW – DOMESTIC VIOLENCE – PROTECTION ORDERS – QUEENSLAND – whether Magistrate erred in refusing to make order – whether an act of domestic violence occurred – whether appeal should be allowed – whether rehearing should occur or whether matter should be remitted to the Magistrates Court

Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 8, 11, 37, 145, 168, 169

ADH v AHL [2017] QDC 103 cited

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 applied

GKE v EUT [2014] QDC 248 applied

MDE v MLG [2015] QDC 151 applied

Parsons v Raby [2007] QCA 98 cited

R v War Pensions Entitlement Appeals Tribunal ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 cited

Robinson Helicopter Company v McDermott (2016) 90 ALJR 679; [2016] HCA 22 cited

SCJ v ALT [2011] QDC 100 cited

Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40 cited

COUNSEL:

Mr Lake for the appellant

Solicitors for the respondent

SOLICITORS:

Murdoch Lawyers for the appellant

Bouchier Khan lawyers for the respondent

Introduction

  1. [1]
    This is an appeal against the decision of the Magistrates Court at Brisbane on 9 May 2019 whereby the Magistrate refused to make a domestic violence order in favour of the appellant.
  1. [2]
    The powers of this court are contained in s 169 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”).

Background

  1. [3]
    The appellant on 27 February 2018 filed an application for a domestic violence order in the Magistrates Court[1] alleging that she and the respondent had separated in January 2015.  She alleged she and the children had suffered emotionally during the relationship.  It was alleged the respondent had been arrested in Zimbabwe for “biting” her.[2]  She further alleged that the children of the relationship had witnessed domestic violence between the appellant and the respondent.  She alleged that between 2015 and 26 December 2017 the respondent had followed her in his car; the respondent had stopped the woman who did day care from helping out; the respondent had phoned her hairdresser to get information about the appellant namely where she was living; the respondent had followed the children in his car and the respondent had gone to the children’s school.
  1. [4]
    A temporary protection order was made in the Magistrates Court on 4 April 2018 and the matter came on for trial on 15 November 2018.

Evidence below

Appellant’s case

Appellant’s evidence

  1. [5]
    The appellant relied on an affidavit sworn on 3 April 2018.[3]  In her affidavit the appellant said that she and the respondent had divorced in 2017.  They had two children, C aged 10 and M aged 7.  C and M and the appellant’s older daughter R, were named on the order.  The respondent had previously been subject to a protection order in 2015 which had expired in December 2017.  It was alleged that during the course of that protection order the respondent breached the order on numerous occasions.  It was alleged that while the temporary order was in place the respondent contacted her by telephone on 8 November 2015 to have his contact time with the children and instead yelled abuse at her.[4]  Earlier, on 8 November 2015, the respondent followed the appellant from her workplace in Toowoomba as she walked home.  She made a statement to the police about that incident.[5] 
  1. [6]
    In July 2016 just before they went to court for the children, the respondent told the appellant that he had hired a private investigator and said he knew where she was living and that he had driven to her house. The appellant was so scared she began packing and they moved from that house.[6]  On the same day a lady who cared for the children suddenly stopped agreeing to care for them.  The woman said that she had received a message from the respondent and he shouted at her calling her a bitch and a prostitute for caring for the children.[7]  The carer had also received calls from a friend of the respondent who shouted at her.[8]
  1. [7]
    On 16 August 2016 the respondent called her phone and asked her to drop the court case and that she was lying in court material. The appellant hung up.[9]
  1. [8]
    The respondent rang several other times over that month. The appellant went to the police and complained about it, but the police did not come back to her about that. The appellant changed her phone number as well.[10]  The police informed the appellant that they had spoken to the respondent and told him to leave her alone.[11] 
  1. [9]
    On 29 September 2016 the respondent’s sister texted her abusing her because the police had been to his house.[12]
  1. [10]
    On 7 August 2016 the appellant’s sister in law contacted her and told her the respondent called her asking her to tell the appellant he was sorry and to forgive him and that he would pay back the bride price to her family if she’d get back together with him.[13] 
  1. [11]
    On 9 October 2016 the appellant was driving with her children to church at about 7.00pm and saw the respondent’s car in front of them. He got out of his car and started walking towards them and looked at them. They ran into the church frightened. The pastor arranged for them to be escorted to their car.[14] 
  1. [12]
    In January 2017 the carer told the appellant that the appellant’s hairdresser had been contacted by the respondent and she had been to his house several times.[15] 
  1. [13]
    On 4 March 2017 one of the appellant’s sisters told the appellant that the respondent had gone to visit her in Toowoomba and asked her to speak to the appellant about allowing the children to see him secretly without the court knowing.[16]  The sister told the appellant the respondent was asking her where the appellant lived and if she had a boyfriend as he had seen her Facebook page with a photo of a man on it.[17] 
  1. [14]
    In early June 2017 the appellant and the children were at a park in Darling Heights waiting for R to finish work nearby. The respondent’s car drove by and he parked. He started walking towards the appellant and the children. The children ran off. The appellant gathered the children up and drove off. They were all very afraid.[18] 
  1. [15]
    In November 2017 the children told the appellant they saw the respondent as they were walking to school. They hid at a service station.[19] 
  1. [16]
    On 23 February 2018 the appellant’s pastor JN contacted her and told her he’d received a message from the respondent asking him to help him see the children. She alleged that the respondent had known for a long time that he was able to see the children by agreement with her and needed to contact her through his lawyer. He had not done so for over 18 months until he had recently engaged a lawyer.[20] 
  1. [17]
    On 26 February 2018 the respondent went to the childrens’ State School and told the principal he was allowed to see the children. The principal queried this.[21] 
  1. [18]
    On 2 March 2018 the respondent was outside of the school and C had seen him and run to the teacher as he was scared.[22] 
  1. [19]
    The appellant alleged that she remained afraid the respondent would find her again and try and harass her. She sought an order against the respondent.
  1. [20]
    The appellant gave oral evidence before the Magistrate.
  1. [21]
    In cross-examination the appellant accepted that she had filed an application in December 2017 to vary the protection order which was heard in the Toowoomba court on 17 January 2018.[23] On that occasion the Magistrate ordered the application to be struck out such that there was no order in place after that.[24]  The appellant was aware the respondent contacted her lawyer on a number of occasions seeking contact with the children.[25]  She agreed that a Family Court order was made which permitted the respondent seeing the kids at a contact centre.[26]  She alleged that the respondent contacted her lawyer about seeing the kids and the lawyer told him that he should ring the contact centre to make the arrangements as to when he could see the children.[27]  She agreed that between 17 January 2018 and the time when she brought the new application (27 February 2018) there was no contact between the respondent and the children.[28]  She agreed the respondent had contacted Pastor JN, a respected member of the community, to see whether he could assist in some sort of mediation in relation to contact with the children.[29]  She admitted sending a text message to the respondent after this dated 23 February 2018.[30]  She agreed the respondent did not respond to that text message.[31]  She admitted that since August 2017 the respondent had not telephoned her or sent her any messages,[32] but despite this, the appellant contacted the respondent on a number of occasions.[33]  She admitted sending text messages to him on 10 October 2016, 5 March 2017, 14 April 2017, 23 February 2018 and 12 April 2018.[34]  She admitted the respondent never replied to those text messages.[35] 
  1. [22]
    She denied that the reason that she brought the application on 27 February 2018 was because he had contacted the pastor and he had attended the school on 26 February 2018.[36]  She accepted that she swore her application the very next day on 27 February 2018.[37] I might say I found the appellant’s evidence on this point unconvincing. It was more than just a coincidence the application was filed just after the contact with the school.  
  1. [23]
    She agreed that after her application was struck out on 17 January 2018 she didn’t take any other steps to renew her application until the day after he went to the school to speak to the children.[38]  She denied trying to use these proceedings to enforce the Family Law order.[39]  She admitted not putting a lot into her affidavit even though she had a lawyer assisting her.[40]  She agreed that the respondent was never charged with any contravention of the order by the police.[41]  She reported the matters to the police; as far as she knew they were investigating.[42]  She agreed the police took the contraventions seriously.[43]  She agreed that on the alleged occasions that the respondent followed her or approached her, he never said anything to her.[44] 
  1. [24]
    With respect to the allegation in July 2016 that the respondent said that he had a private investigator following her and knowing she lived at [redacted], she did not report that to the police; she only told her lawyer about it.[45] 
  1. [25]
    With respect to the incident in 2017 when she was at the park, he didn’t say anything to her.[46]  She agreed that she did not have affidavits of a number of witnesses.[47] 
  1. [26]
    With respect to the incident at the church in October 2016, she did not report that to the police.[48]  She accepted it happened over two years prior and she had not seen the respondent since 17 June 2017.[49]

Pastor’s evidence

  1. [27]
    The appellant also relied on the affidavit of JN.[50]  JN said that he was a senior pastor of a Church.  On or about 9 October 2016 there was a church service and the appellant came to him after the service and said the respondent had followed her and her children to the church.  She said she had taken the children and had run into the church.  After this he arranged for one of the church members to escort the appellant and the children to the car.  On or about 7 October 2016 the respondent first contacted the pastor via Facebook Messenger. 
  1. [28]
    On 23 February 2018 he further contacted the pastor requesting assistance to see the children. On or about 28 February 2018 the pastor messaged the respondent stating that his request was best dealt with by a lawyer and the authorities and the matter was out of his hands.

Respondent’s case

  1. [29]
    The respondent relied on an affidavit sworn on 30 May 2018.[51]  The respondent said that since 26 January 2015 he and the appellant had never lived in the same house.  He said that he had never committed any domestic violence against his family and never followed or approached the family in any way.  He was presently employed by an Aged Care facility as a personal assistant and was studying a Bachelor of Nursing at University.  He was raised in the Democratic Republic of Congo and relocated in 2001 to Zimbabwe as a refugee.  On 28 March 2014 the appellant and respondent relocated to Australia.  The respondent had no criminal convictions from Zimbabwe.[52]  When they were still in Zimbabwe the appellant and R left him with C and M.  R threatened to kill herself when they were living in Zimbabwe and she ran off with a young man who was the father of her child.  The appellant and he worked hard to convince R to come to Australia. 
  1. [30]
    The appellant and the respondent married on 3 May 2004 and lived together for about 11 years. He was shocked that she made claims of domestic violence. There were three children of the marriage, R born 1 January 2001 (the Appellant’s daughter), C born 20 August 2006 and M born 16 October 2010.
  1. [31]
    On 26 January 2015 the appellant left the matrimonial home without notice with the three children. The respondent had no contact with the children from 26 January 2015. Supervised contact commenced at a children’s contact centre on 5 November 2015. After the appellant had run away from the home, the respondent tried to ring her, but the phone was off and he rang the police reporting her missing. The appellant later claimed that she never loved him and was forced to get married to him. His contact with his two sons ceased on 19 May 2016 because he could not afford a lawyer. On 11 January 2017 the divorce was finalised.
  1. [32]
    On 8 March 2015 he was served with a temporary protection order naming him as respondent. The matter was without his knowledge and in his absence. He consented to the order without admissions on the advice of a lawyer on 7 December 2015. The protection order was in place for two years and was due to expire on 6 December 2017. The respondent denied the allegations of the appellant in her affidavit that he had breached the order on a number of occasions. He denied that he yelled at her on 8 November 2015.[53]  He denied following her on that date and indeed he was working from 6.30am until 13.30pm that day.[54]  He never contacted the carer concerning the children.[55]  He did not have R’s phone number.[56]  Contrary to what the appellant said, it was the appellant who contacted him on 23 July 2016.  Exhibit GMMN is a screen shot of the missed call.[57]  He denied ringing the appellant on 16 August 2016.[58]  He said that he had been interrogated twice by the police about breaches and no action was taken. 
  1. [33]
    He denied contacting the appellant’s family on 7 August 2016. He was already in a new relationship with his fiancé.[59] 
  1. [34]
    He denied driving in front of her on 9 October 2016.[60]
  1. [35]
    He denied asking her sister to advocate for him on 4 March 2017.[61]  He denied following her or the children in June 2017.[62]  He denied the alleged events in November 2017.[63] 
  1. [36]
    He accepted he contacted the pastor to advise of the outcome of the court on 17 January 2018 and asked the pastor for help. He said that in 18 months he had tried to seek help from Legal Aid, an advocacy centre, Relationships Australia, a contact centre and Kenneth Lawyers.[64] 
  1. [37]
    He agreed that on 26 February 2018 he went to his sons’ school to present the court outcome and to find out how the sons were progressing.[65] 
  1. [38]
    He denied being outside the school on 2 March 2018.[66]
  1. [39]
    He also attaches as GMM11-GMM15 a number of text messages from the appellant to the respondent, some of which were intimidating and abusive.
  1. [40]
    The appellant filed an application to vary a protection order in the Magistrates Court at Toowoomba on 6 December 2017 which was struck out by the Magistrate on 17 January 2018.
  1. [41]
    The respondent did not accept there had been acts of domestic violence by him and he went to the childrens’ State School with his fiancé on 26 February 2018 to enquire about the sons’ school progress. The police advised him he was permitted to go to the school because the order had expired. He also agreed he had contacted the pastor to assist to see the children.[67] 
  1. [42]
    The respondent says the protection order is not necessary or desirable to protect the appellant or the children from domestic violence.[68] 
  1. [43]
    His primary concern is to have a meaningful relationship with his children and the parenting matter is now being dealt with by his lawyers.[69] 
  1. [44]
    There is a further affidavit from the respondent sworn 30 May 2018.[70]  This notes that he accepts that he sent messages to the pastor on 23 February 2018.  This was after the domestic violence order application was struck out on 17 January 2018. 
  1. [45]
    The respondent gave evidence (through an interpreter) and adopted the contents of his affidavits.[71]  In cross-examination the respondent said that he was a gospel minister.[72]  He denied that there was any domestic violence in the relationship.[73]  He alleged that the appellant was lying.[74]  The appellant was not a nice person who wanted to do bad things.[75]  He accepted he was in the Federal Circuit Court when the Judge made final orders on 29 July 2016, but denied walking out of the court before the matter was finalised.[76]  He didn’t agree with the orders made by the court.[77]  He didn’t appeal the order because of lack of money.[78]  He agreed that he had some supervised time with his children in 2018, six or seven times in total and then it stopped.  He denied this was because he was abusive to contact centre staff.[79]  He denied that the appellant left him because she was scared.[80]  He agreed that the appellant had sent him text messages telling him to remain out of her life.[81]  He did not believe her motives were genuine.[82]  When he went to the school he was civil and well dressed.[83]  He agreed he was at the school for about 40 to 45 minutes.[84]  He said the principal was rude and arrogant and threw him out.[85]  He said that the fact there was a Family Law order did not stop him from asking at the school and the police said he could go and ask.[86]  He denied driving past her slowly and doing U-turns.[87]  He stated he didn’t follow her.[88]  He denied parking near her at the church on 9 October 2016.[89]  He loved his children and missed them.[90]  He denied being arrested by police in Zimbabwe for hitting the appellant.[91]  The Federal Circuit Court made supervised access orders because of lies told by the appellant.[92]

Respondent’s submissions below

  1. [46]
    The respondent submitted that many of the statements made by the appellant in her affidavit were hearsay and should not be given any weight. The court would ignore those items of evidence.[93]  The respondent’s submission is that the focus should be on recent events and in particular, events which occurred in February 2018.  The respondent had engaged in behaviour which did not constitute domestic violence.  He contacted a third party to ask for help in relation to seeing his children and his attendance at the school was not domestic violence.  He was arriving to enquire as to the progress of his sons.[94]  It was submitted that there was no risk of domestic violence in the future.[95]  The most recent event was an approach in a park in June 2017.[96]  Even if it was accepted that that event happened, that did not necessarily make it an act of domestic violence.  It was further submitted it was not necessary or desirable to make any order as there was not a sufficient risk of future domestic violence.[97]  In the period between the dismissal of the application in January 2018 and the bringing of this application, there were no acts of domestic violence such as any attempts to contact or follow the appellant.  The respondent had no interest in reconciling the relationship and both parties had new partners.[98]  The old allegations were very old and sporadic and would not amount to domestic violence.[99]

Appellant’s submissions below

  1. [47]
    The appellant submitted that the application heard in the Toowoomba Magistrates Court on 17 January 2018 was dismissed because of insufficient details.[100]  It was submitted that the respondent’s evidence was evasive and the court would prefer the evidence of the appellant.  It was submitted the court would accept there had been acts of domestic violence.  It was submitted the court would take into account the fact there was an order for supervised contact.[101]  It was submitted it was necessary and desirable for an order to be made.  It was submitted it was relevant that after the application was struck out on 17 January, the respondent was selective with the police being aware of the Family Court orders in place.[102]  It was about protecting a mother and the children in fear.[103] 

Magistrate’s decision

  1. [48]
    The Magistrate delivered a written decision on 9 May 2019. The Magistrate examined the relevant provisions of the Act and examined the relevant case law concerning the matter. The Magistrate was satisfied that a “relevant relationship” had been proved. The Magistrate at [47] was not satisfied that the respondent had caused trauma and anxiety to the appellant and two children. As to the allegations of following the appellant at [56] the Magistrate was not satisfied that the appellant had discharged the onus on the balance of probabilities that the three alleged incidents occurred.
  1. [49]
    As to allegations the appellant lived in fear, at [60] the Magistrate was not satisfied that the appellant had discharged the onus of proof.
  1. [50]
    With respect to attending the children’s school, the Magistrate was satisfied on the balance of probabilities that the respondent had attended the children’s school on 26 February 2018 without authority and the child was scared.  He was also satisfied that the respondent had contacted the pastor asking for his help to see the children. 
  1. [51]
    However, the Magistrate was not satisfied that either of those two acts amounted to domestic violence. In those circumstances it became unnecessary for him to consider the “necessary or desirable” element and the application was dismissed.

Alleged errors

  1. [52]
    The appellant in her notice of appeal alleges that three errors have occurred namely:
  1. (a)
    The Magistrate erred in law at [79] of the judgment in applying the standard of beyond reasonable doubt to a finding when required under s 145(2) of the Act to apply the standard on the balance of probabilities;
  1. (b)
    The Magistrate failed to take into account as a material consideration the visit by the respondent to the named persons school on 26 February 2018 as an act of intimidation; and
  1. (c)
    The Magistrate failed to take into account as material consideration the appellant’s claim the respondent beat her in Zimbabwe. 

Appellant’s submissions

  1. [53]
    The appellant in her outline repeats the errors relied upon and submits that each matter is material and as a result the appeal should be allowed; the decision at first instance should be set aside and the matter should be reheard with leave to adduce new evidence or alternatively remitted for a new trial.
  1. [54]
    In oral submissions the appellant said:
  1. (a)
    The Magistrate erred in referring to beyond reasonable doubt and the appeal should be allowed on this ground alone.
  1. (b)
    The Magistrate failed to determine whether the visit to the school was an act of intimidation in the context of the message of the appellant to the respondent on the Friday night.
  1. (c)
    There was some evidence concerning the Zimbabwe incident before the court in exhibit 1, the respondent was cross examined about it and submissions were made about it and it should have been dealt with by the Magistrate.
  1. [55]
    The appellant submitted that as demeanour was important in this matter and if error was found the matter should be remitted to the Magistrates Court for rehearing.

Respondent’s submissions

  1. [56]
    The respondent on the other hand submits that with respect to the first ground, the reference in paragraph [79] was not strictly necessary and the use of the words “beyond reasonable doubt” was unfortunate but no error is established.
  1. [57]
    With respect to Ground 2 it is submitted that the Magistrate appropriately dealt with the facts of the matter and the Magistrate did not err in his application of statements of principle.
  1. [58]
    With respect to the third ground, it is submitted that there was limited reference to the Zimbabwe incident and no evidence was given by the appellant at the hearing about it. The matter was not required to be considered by the Magistrate.
  1. [59]
    In any event, it is submitted if error had occurred and the matter was reheard there were no acts of domestic violence and/or it is not necessary or desirable to make the order. The only acts the learned Magistrate was satisfied about were acts relating to the respondent wanting to see the children. These did not amount to domestic violence and further it was not necessary or desirable for the order to be made.
  1. [60]
    In oral submissions the respondent submitted that:
  1. (a)
    There was no clear evidence from the appellant as to the Zimbabwe incident, the respondent denied it, it was long ago now and no error has been established.
  1. (b)
    As to the standard of proof point, the Magistrate correctly referred to the standard earlier in his reasons and applied the correct standard to the factual findings. As it was a conclusion of law there was no need to refer to a standard of proof.
  1. (c)
    Whilst it is true the Magistrate did not consider whether the visit to the school on 26 February 2018 was an act of intimidation there was insufficient evidence that it was.
  1. (d)
    This court should rehear the matter as it is as good a position to determine the matter in light of the factual findings made.         

Discussion

Ground 1

  1. [61]
    With respect to Ground 1 it is my respectful view that the Magistrate did err at paragraph [79] in finding that he could not be satisfied beyond reasonable doubt that contact with JN fell within a satisfactory definition of domestic violence. The fact is that the standard of proof for applications for a domestic violence order “need only be” on the balance of probabilities.[104]  
  1. [62]
    However even though the Magistrate erred I consider that if his Honour applied the correct standard of proof in making the finding he did he would have come to the same conclusion and the error was therefore immaterial.
  1. [63]
    Section 8 of the Act defines domestic violence as:

“(1) 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—

  1. is physically or sexually abusive; or
  2. is emotionally or psychologically abusive; or
  3. is economically abusive; or
  4. is threatening; or
  5. is coercive; or
  6. 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.
  1. Without limiting subsection (1), domestic violence includes the following behaviour—
  1. causing personal injury to a person or threatening to do so;
  2. coercing a person to engage in sexual activity or attempting to do so;
  3. damaging a person’s property or threatening to do so;
  4. depriving a person of the person’s liberty or threatening to do so;
  5. threatening a person with the death or injury of the person, a child of the person, or someone else;
  6. threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
  7. causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
  8. unauthorised surveillance of a person;
  9. unlawfully stalking a person.”
  1. [64]
    Section 11 of the Act provides:

11  Meaning of emotional or psychological abuse

Emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.

Examples—

  • following a person when the person is out in public, including by vehicle or on foot
  • remaining outside a person’s residence or place of work
  • repeatedly contacting a person by telephone, SMS message, email or social networking site without the person’s consent
  • repeated derogatory taunts, including racial taunts
  • threatening to disclose a person’s sexual orientation to the person’s friends or family without the person’s consent
  • threatening to withhold a person’s medication
  • preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity.”
  1. [65]
    In GKE v EUT,[105] McGill SC DCJ held at [23] that in his view a person cannot be said to be harassed by a single incident. “Harass” is defined in the Oxford Concise Australian Dictionary as “trouble and annoy continually or repeatedly.”
  1. [66]
    As to the term “intimidation”, McGill SC DCJ noted at [22] that intimidation refers to a process where a person is made fearful or overawed particularly with a view to influencing that person’s conduct or behaviour. This is consistent with the definition in the Oxford Concise Australian Dictionary.
  1. [67]
    But as his Honour noted at [23] it is not just a question of the aggrieved being upset.
  1. [68]
    The message from the respondent to JN is extracted in the respondent’s affidavit.[106] 
  1. [69]
    It is my view the respondent was seeking help from a church pastor to act as an intermediary to see if he could have some contact with his children. It does not contain any threatening or abusive language. There was no order in place preventing him from doing this. It was not behaviour towards the appellant.
  1. [70]
    As a matter of law on the accepted facts in this matter, I am not satisfied that the act in approaching the Pastor was an act of domestic violence. In other words I am satisfied on all of the evidence that on the balance of probabilities it did not constitute domestic violence as defined.

Ground 2

  1. [71]
    With respect to Ground 2 I do not consider the appellant has established a material error here.
  1. [72]
    I accept that the Magistrate did not refer to “intimidate” when he came to consider this act at [72] despite the submissions made by the appellant below.
  1. [73]
    The Magistrate dealt with the attendance of the respondent at the children’s school at paragraphs [61] to [65] and [72] to [74].
  1. [74]
    The facts of the incident involved the respondent attending the children’s school office on one occasion to enquire about the children. An email from the principal to the respondent’s then lawyers, which was annexed to the respondent’s affidavit confirmed he was civil and he did not see the children. It is apparent he left the school without incident.[107]
  1. [75]
    Exhibit MC3 to Exhibit 2 was the letter from the Principal which disclosed the respondent showed her the expired DVO but not any Family Court orders. He said he was not the custodial parent. He simply asked for information about the boys.
  1. [76]
    In my respectful view the Magistrate was correct in finding at [76] this was not proved to be an act of domestic violence.
  1. [77]
    In my view, the prima facie position is (absent any order to the contrary) a parent is entitled to check on the progress of his children at school. Without more this is not domestic violence. Again it is not just a matter of the aggrieved finding it upsetting.[108]   
  1. [78]
    It is difficult to see how the respondent attending at the children’s school on one occasion to enquire about how his children were progressing could amount to domestic violence. This is particularly so when one considers the findings of fact which held that the only other contact was the contact between the respondent and the pastor.
  1. [79]
    Whilst it is true the appellant had sent a text message to him on the Friday night he did not engage in any contact directly towards her.
  1. [80]
    At the hearing there was no evidence put forward to support any finding that the event was intimidating. Generalised statements were made by the appellant in her application and affidavit but that is to be considered in the context of other unproved allegations.
  1. [81]
    The appellant also complains about the finding made at [65]. The learned Magistrate found that the evidence did not establish that the respondent had attended the school on 2 March 2017.
  1. [82]
    Although the rules of evidence do not apply to such proceedings[109] as was noted in ADH v AHL[110] 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.
  1. [83]
    Also as was said in R v War Pensions Entitlements Tribunal ex parte Bott[111] the tribunal should not simply set aside the rules of evidence and every attempt should be made to administer substantial justice.   
  1. [84]
    In this case the only evidence as to 2 March 2018 was in a document which contained double hearsay.[112]
  1. [85]
    The respondent denied the incident. There was no description of the car such as to identify it as the respondent’s. There was no evidence as to whether the road was a major arterial one or whether it was a quiet back street.
  1. [86]
    As the Magistrate found on the state of the evidence, it could not be shown the respondent was deliberately there.
  1. [87]
    The onus was on the appellant to establish that the incidents amounted to domestic violence.[113]  The Magistrate was correct in finding the appellant has not.
  1. [88]
    In my respectful opinion no material error has been established concerning Ground 2.

Ground 3

  1. [89]
    As to Ground 3 the only reference in the appellant’s evidence to the alleged Zimbabwe incident was in the application where the aggrieved wrote “2012 He was arrested in Zimbabwe because he [unintelligible] me up in front of the policy”. The unintelligible word could be “bit” or “beat” but appears to be crossed out. There was no further particularisation of this allegation in the application. It was not explained or supported by any reference in the appellant’s affidavit which was prepared with the assistance of lawyers.
  1. [90]
    This is not surprising as the event occurred in 2012, three years prior to the appellant’s first application and was not immediately relevant to whether an order should have been made. There was no evidence given by the appellant at the hearing about the alleged incident.
  1. [91]
    The respondent was cross-examined about it and denied it. There was no evidence about what the appellant was referring to.
  1. [92]
    Indeed the respondent produced evidence that he had no convictions in Zimbabwe which tended to refute the allegation.
  1. [93]
    In my opinion there was insufficiently clear evidence in the application capable of founding any allegation of domestic violence relevant to this case.
  1. [94]
    In those circumstances I do not consider it was required to be considered by the learned Magistrate in light of the fact that no real emphasis was placed on the matter by the parties in the evidence.
  1. [95]
    I reject this ground of appeal.

Rehearing

  1. [96]
    Even if I am incorrect as to my approach as to the particular grounds of appeal, this matter may be conducted by way of rehearing on the evidence given below.[114]
  1. [97]
    In my view, in light of the factual findings made (many of which were not the subject of challenge by the appellant) and the material before me I consider I should rehear the matter.
  1. [98]
    In conducting the rehearing it is appropriate for the court to give due weight to the Magistrate’s findings of fact.[115]  It must be borne in mind the Magistrate had the opportunity of hearing and observing the witnesses here.
  1. [99]
    As was said by the High Court in Robinson Helicopter Company v McDermott[116] a trial judge’s decision on factual matters should be not be overturned unless the findings are demonstrated to be wrong by incontrovertible facts or uncontested testimony or contrary to compelling inferences.
  1. [100]
    In this case the Magistrate had the evidence of the appellant on the one hand and the evidence of the respondent on the other. No other oral evidence was called.
  1. [101]
    The Magistrate on the evidence was perfectly entitled to find as he did at [47] that the respondent had not caused trauma or anxiety to the appellant and the children; at [56] the appellant had not proved that a number of alleged incidents had occurred; and at [60] the appellant had not proved that the respondent had caused the appellant to live in fear.
  1. [102]
    The appellant had bought an application to vary the previous order by extending its term. That application was heard in the Toowoomba Magistrate’s Court on 17 January 2018 and was dismissed. There was no appeal against that decision.
  1. [103]
    The appellant at the hearing sought to rely on many grounds that predated her previous application. However I am not finding that issue estoppel applies here bearing in mind further allegations were made.
  1. [104]
    In any event the Magistrate did not accept these assertions. He was entitled to.
  1. [105]
    Many of these allegations were supported only by hearsay evidence and I do not attach much weight to those allegations. It is also relevant that the respondent was never charged with respect to any alleged breaches by the police.
  1. [106]
    The respondent disputed the appellant’s evidence in relation to these matters and in fact produced evidence contradicting the appellant’s account in several respects. The respondent’s phone records demonstrated there had been contact towards him by the appellant rather than the other way around. The appellant did not produce phone records to verify her claims of contact.
  1. [107]
    Turning to the particularised acts prior to 2018, it is my assessment that where the evidence of the appellant conflicts with that of the respondent the evidence of the respondent should be preferred (aside from one incident which I will discuss shortly).
  1. [108]
    The reasons are as follows:
  1. (a)
    Even though the appellant made some complaint to the police, no charges were brought against the respondent.
  1. (b)
    As to the allegations in paragraph 8(a) there were no phone records produced supporting the appellant’s version.
  1. (c)
    As to the allegation at paragraph 8(b) no charge was brought by the police concerning this alleged incident.
  1. (d)
    As to the allegation at paragraph 8(d) no complaint appears to have been made to the police.[117]  Also it was the appellant who called the respondent in July 2016.[118]
  1. (e)
    As to the allegations at paragraph 8(e) and (f) no evidence was called from Ms B.
  1. (f)
    As to the allegation at paragraphs 8(g) and (h) no supporting records were produced by the appellant.
  1. (g)
    As to the allegation at paragraph 8(i) no supporting text messages have been produced by the appellant.
  1. (h)
    As to the allegation at paragraph 8(j) there was no evidence called from any family member in Zimbabwe or the sister in law.
  1. (i)
    As to the allegation in paragraph 8(k) there is some supporting evidence from JN however all this incident proves is that the respondent went to a church on 9 October 2016 – two years before the hearing.  There is no evidence of any threats by him or words spoken.[119]  The matter was not reported to the police.[120]
  1. (j)
    As to the allegation at paragraph 8(l) no evidence was called from M or the hairdresser.
  2. (k)As to the allegations at paragraphs 8(m) and (n) no evidence from called from the sister.
  3. (l) As to the allegations at paragraphs 8(o) and (p) no complaint appears to have been made to the police.
  1. [109]
    I am not satisfied that the appellant proved the Zimbabwe incident on the balance of probabilities for the following reasons:
  1. (a)
    The application is unclear;
  1. (b)
    No details of the incident were provided in the affidavit of the appellant or in oral evidence;
  1. (c)
    The respondent denied the incident in cross-examination;[121] and
  1. (d)
    The respondent has produced a certificate of no conviction.
  1. [110]
    I considered the respondent’s evidence more convincing and was supported in particular by the text messages[122] and the phone records.[123]  I thought it relevant the respondent never contacted the appellant by phone or text after 2016.[124]  It was the appellant who rang and sent messages.[125]  The respondent did not reply.[126]
  1. [111]
    I also thought it telling that despite the text sent by the appellant on 23 February 2018 there was no response from the respondent.[127]
  1. [112]
    I also thought the appellant exaggerated the situation. For example she alleged that the children witnessed domestic violence[128] but gives no details of this.  Also she gives no real details as to why the children are fearful for their safety.[129]    
  1. [113]
    I am therefore not satisfied on the balance of probabilities that the particularised acts alleged by the appellant between 2015 and 2017 occurred. With respect to 8(k) for the reasons expressed I do not find that has been proved to be an act of domestic violence.
  1. [114]
    I am satisfied on my review of the evidence that the Magistrate was correct in finding that the only acts which occurred were:
  1. (a)
    The respondent contacting the appellant’s pastor JN to ask for help in seeing the children on 23 February 2018 (after the DVO expired);
  1. (b)
    Attending at the school of the children on 26 February 2018 to enquire about them; and
  1. (c)
    Possibly 2 March 2018 being outside the school.
  1. [115]
    As I have noted previously I am not satisfied on the balance of probabilities that either act was proved on the balance of probabilities to be domestic violence as defined.
  1. [116]
    I am not satisfied that the contact with the pastor was domestic violence as defined. The reasons for this are at [69]-[70] above.
  1. [117]
    I am satisfied on my review of the evidence that the respondent’s attendance at the school on my view of the case was not domestic violence as defined. It was not behaviour towards the appellant. He did not make any attempt to see the children himself but rather attended the school office. The email from the principal to the respondent’s lawyer states that the respondent was civil, did not see the children and he left without incident. Also see my reasons at [74]-[80] above.
  1. [118]
    The final allegation relates to a suggestion the respondent drove past the children’s school on 2 March 2018. This was recorded in a letter the appellant produced from the school principal which recorded a report made by another teacher that that teacher had been told by one of the children he had seen the father’s car drive past. This was hearsay upon hearsay and should not be given any weight. Also see my reasons at [84]-[85] above.
  1. [119]
    In any event there was no direct evidence the respondent was in the car, what the context was or how this conduct was directed towards the appellant.
  1. [120]
    There was no basis for finding the respondent had committed domestic violence as defined on any of the above occasions.
  1. [121]
    Given the findings of the Magistrate confirmed by me on review I am not satisfied that acts of domestic violence had been proved on the balance of probabilities.
  1. [122]
    But even if the three acts could be considered to be domestic violence an issue arises as to whether it is necessary or desirable for the order to be made.
  1. [123]
    In deciding this question s 37(2)(a)(i) of the Act requires the court to have regard to the principles mentioned in s 4 of the Act.
  1. [124]
    Section 4 of the Act provides:

“4 Principles for administering Act

  1. This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
  2. Subject to subsection (1), this Act is also to be administered under the following principles—
  1. people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
  2. to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
  3. 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;
  4. if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;

Examples of people who may be particularly vulnerable to domestic violence—

  • women
  • children
  • Aboriginal people and Torres Strait Islanders
  • people from a culturally or linguistically diverse background
  • people with a disability
  • people who are lesbian, gay, bisexual, transgender or intersex
  • elderly people
  1. 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;
  2. a civil response under this Act should operate in conjunction with, not instead of, the criminal law.”
  1. [125]
    McGill SC DCJ stated in GKE v EUT:[130]

“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.”

  1. [126]
    Also in MDE v MLG[131] Morzone QC DCJ sets out a number of factors to be taken into account on this issue. I specifically take these matters into account and I specifically take into account s 4 of the Act.
  1. [127]
    In this case the only allegations of conduct directed directly at the appellant by the respondent were alleged to have occurred quite some time prior to the trial.
  1. [128]
    Taking into account the nature of the proved conduct, the risk of domestic violence in my view is low. There was no conduct directly directed at the appellant. The inquiry was as a result of the respondent’s interest in his children.
  1. [129]
    Also it must be borne in mind in the period between the dismissal of the previous application and the bringing of the present application when there was no protection order in place there were no acts of domestic violence. The respondent had no interest in locating the appellant and is unaware of the appellant’s present address.[132]  He has a new partner. He went to the school with his fiancé.[133] The respondent is educated and is studying a degree and an employment[134].  He has also completed a counselling program through relationships Australia.[135]   
  1. [130]
    It is not suggested there has been any act of domestic violence since 2 March 2018.
  1. [131]
    There are Federal Circuit Court proceedings on foot[136] and there is the possibility of future contact concerning family law orders but he has engaged a family lawyer and is proceeding through proper legal processes. 
  1. [132]
    I find on the evidence it is not necessary or desirable on the evidence as found for any order to be made.

Conclusion

  1. [133]
    In conclusion I am satisfied giving due weight to the Magistrate’s view of the facts, on the rehearing that the order made below was the correct one.
  1. [134]
    In the circumstances my formal orders are as follows:
  1. The appeal is dismissed.
  2. The order made in the Magistrates Court in this matter is confirmed.
  3. I will hear the parties on the question of costs. 

Footnotes

[1]  Exhibit 1 below.

[2]  The word “biting” is not clear from the handwritten application.

[3]  Exhibit 2 below.

[4]  Paragraph 8 (a) of Exhibit 2.

[5]  Paragraph 8 (b) of Exhibit 2 and “MC2”.

[6]  Paragraph 8 (d) of Exhibit 2.

[7]  Paragraph 8 (e) of Exhibit 2.

[8]  Paragraph 8 (f) of Exhibit 2.

[9]  Paragraph 8 (g) of Exhibit 2.

[10]  Paragraph 8 (h) of Exhibit 2.

[11]  Paragraph 8 (i) of Exhibit 2.

[12]  Paragraph 8 (i) of Exhibit 2.

[13]  Paragraph 8 (j) of Exhibit 2.

[14]  Paragraph 8 (k) of Exhibit 2.

[15]  Paragraph 8 (l) of Exhibit 2.

[16]  Paragraph 8 (m) of Exhibit 2.

[17]  Paragraph 8 (n) of Exhibit 2.

[18]  Paragraph 8 (o) of Exhibit 2. 

[19]  Paragraph 8 (p) of Exhibit 2.

[20]  Paragraph 8 (q) of Exhibit 2.

[21]  Paragraph 8 (s) of Exhibit 2 and “MC3”.

[22]  Paragraph 8 (t) of Exhibit 2.

[23]  Transcript Day 1, p 11.20.

[24]  Transcript Day 1, p 11.35.

[25]  Transcript Day 1, p 11.41.

[26]  Transcript Day 1, p 12.11.

[27]  Transcript Day 1, p 12.30.

[28]  Transcript Day 1, p 13.5.

[29]  Transcript Day 1, p 13.25.

[30]  Transcript Day 1, p 14.21.

[31]  Transcript Day 1, p 14.27.

[32]  Transcript Day 1, p 14.45.

[33]  Transcript Day 1, p 15.20.

[34]  Transcript Day 1, p 15.40.

[35]  Transcript Day 1, p 16.1.

[36] Transcript Day 1, p 16.15.

[37]  Transcript Day 1, p 16.42.

[38]  Transcript Day 1, p 17.5.

[39]  Transcript Day 1, p 17.22.

[40]  Transcript Day 1, p 18.7.

[41]  Transcript Day 1, p 18.15.

[42]  Transcript Day 1, p 18.27.

[43]  Transcript Day 1, p 18.40.

[44]  Transcript Day 1, p 19.17.

[45]  Transcript Day 1, p 22.1.

[46]  Transcript Day 1, p 22.5.

[47]  Transcript Day 1, p 22.20.

[48]  Transcript Day 1, p 22.40.

[49]  Transcript Day 1, p 23.4.

[50]  Exhibit 3 below.

[51]  Exhibit 4 below.

[52]  Exhibit 4 Certificate of No Convictions “GMM1”.

[53]  Exhibit 4 paragraph 23 (a).

[54]  Exhibit 4 paragraph 23 (b) and “GMM8”.

[55]  Exhibit 4 paragraph 23 (e).

[56]  Exhibit 4 paragraph 23 (g).

[57]  Exhibit 4 paragraph 23 (g).

[58]  Exhibit 4 paragraph 23 (h).

[59]  Exhibit 4 paragraph 23 (j).

[60]  Exhibit 4 paragraph 23 (k).

[61]  Exhibit 4 paragraph 23 (m) and (n).

[62]  Exhibit 4 paragraph 23 (o).

[63]  Exhibit 4 paragraph 23 (p).

[64]  Exhibit 4 paragraph 23 (q).

[65]  Exhibit 4 paragraph 23 (s).

[66]  Exhibit 4 paragraph 23 (u).

[67]  Exhibit 4 paragraph 29.

[68]  Exhibit 4 paragraph 35.

[69]  Exhibit 4 paragraph 37.

[70]  Exhibit 5 below.

[71]  Transcript Day 1, p 25.

[72]  Transcript Day 1, p 28.27.

[73]  Transcript Day 1, p 31.15.

[74]  Transcript Day 1, p 31.41.

[75]  Transcript Day 1, p 33.31.

[76]  Transcript Day 1, p 34.15.

[77]  Transcript Day 1, p 34.35.

[78]  Transcript Day 1, p 34.45.

[79]  Transcript Day 1, p 35.

[80]  Transcript Day 1, p 37.12.

[81]  Transcript Day 1, p 39.

[82]  Transcript Day 1, p 41.32.

[83]  Transcript Day 1, p 44.40.

[84]  Transcript Day 1, p 46.15.

[85]  Transcript Day 1, p 46.35.

[86]  Transcript Day 1, p 50.27.

[87]  Transcript Day 1, p 55.15.

[88]  Transcript Day 1, p 55.22.

[89]  Transcript Day 1, p 56.5.

[90]  Transcript Day 1, p 61.22.

[91]  Transcript Day 1, p 63.22.

[92]  Transcript Day 1, p 64.42.

[93]  Transcript Day 1, p 68.45.

[94]  Transcript Day 1, p 69.10-22.

[95]  Transcript Day 1, p 69.45.

[96]  Transcript Day 1, p 70.3.

[97]  Transcript Day 1, p 72.35.

[98]  Transcript Day 1, p 72.45.

[99]  Transcript Day 1, p 73.12.

[100]  Transcript Day 1, p 74.5.

[101]  Transcript Day 1, p 77.15.

[102]  Transcript Day 1, p 77.40.

[103]  Transcript Day 1, p 81.25.

[104]  Section 145(3) of the Act.

[105]  [2014] QDC 248 at [23].

[106]  Exhibit 4 “GMM 10”.

[107]  Exhibit 4 “GMM 18”.

[108] GKE v EUT [2014] QDC 248 at [23].

[109]  Section 145 of the Act.

[110]  [2017] QDC 103 at [46].

[111]  (1933) 50 CLR 228 at p 256; [1933] HCA 30.

[112]  Exhibit 2 “MC 3”.

[113] SCJ v ALT [2011] QDC 100 at [12].

[114]  Section 168 of the Act. GKE v EUT [2014] QDC 248 at [3].

[115] Fox v Percy (2003) 214 CLR 118 at [25]; [2003] HCA 22 applied in Parsons v Raby [2007] QCA 98 at [23] and Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40 at [36].

[116]  (2016) 90 ALJR 679; [2016] HCA 22 at [43].

[117]  Transcript day 1, p 22.1.

[118]  Transcript day 1, p 15-30 and Exhibit 4 “GMM9”.

[119]  Transcript day 1, p 19.27.

[120]  Transcript day 1, p 22.40.

[121]  Transcript day 1, p 64.6.

[122]  Exhibit 4 “GMM11-13”.

[123]  Exhibit 4 “GMM9”.

[124]  Transcript day 1, pp 14.45 and 23.10.

[125]  Transcript day 1, p 15.20-45.

[126]  Transcript day 1, p 16.1.

[127]  Transcript day 1, p 14.27 and Exhibit 4 “GMM14”.

[128]  Exhibit 1 answer 7.

[129]  Exhibit 1 answer 7.

[130]  [2014] QDC 248 at [33].

[131]  [2015] QDC 151 at [55].

[132]  Exhibit 4 paragraph 36.

[133]  Exhibit 4 paragraph 33.

[134]  Exhibit 4 paragraph 4.

[135]  Exhibit 4 paragraph 16.

[136]  This was an admitted fact agreed to by the parties in the event I decided to rehear the matter.

Close

Editorial Notes

  • Published Case Name:

    AVI v SLA

  • Shortened Case Name:

    AVI v SLA

  • MNC:

    [2019] QDC 192

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    02 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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