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- Unreported Judgment
RTQ v OLB QDC 216
DISTRICT COURT OF QUEENSLAND
RTQ v OLB  QDC 216
Magistrates Court at Brisbane
24 October 2019 (delivered ex-tempore)
District Court at Brisbane
23 October 2019
CIVIL – APPEAL – DECISION BY MAGISTRATE – TEMPORARY PROTECTING ORDER – STAY OF CONDITION – DOMESTIC AND FAMILY VIOLENCE PROVISIONS – where applicant married to respondent – where they have a child – where respondent has possession of that child because of condition of a temporary protection order made in Magistrates Court – where applicant filed an application and notice of appeal seeking an order to stay that condition of the temporary protection order.
Domestic and Family Violence Protection Act 2012 (Qld) s 77, s 78, s 166
Aldridge v Keaton  FamCAFC 166
Williams & Ors v Spautz  174 CLR 509
J Selfridge for Appellant at hearing
M Dore (solicitor) for Appellant at judgment delivery
D Evans (solicitor) for Respondent
Daykin Family Law for Appellant at hearing
Barry.Nilsson. Lawyers for Appellant at judgment delivery
Evans Brandon Family Lawyers for the Respondent
- The applicant is married to the respondent. I shall refer to them hereafter as the husband and the wife because each is an applicant and a respondent in various proceedings in the Federal Circuit Court (FCC) and the Magistrates Court and in this Court. They have a son born on the 22nd of August 2012, who is now seven years old. He has been, since about 8.45pm on the 22nd of October, in the care of the wife. She has had possession of the boy because condition 6 of a temporary protection order made in the Magistrates Court on the 22nd of October provided that the husband:
…must not have contact with the child forthwith until he is collected by the (wife) from (a particular address).
- Other conditions of the order provided that the husband must be of good behaviour towards the wife and the boy; he was prohibited from entering or approaching within 100 metres of the premises where the wife and boy live or work or “are at”, except to attend the residence to have contact with the child as agreed in writing or in other designated formal ways or in compliance with a Court order.
- The husband filed an application yesterday, the 23rd of October, which I heard yesterday afternoon. He also filed a notice of appeal from the Magistrate’s order of 22nd October. Both the appeal and application were directed against condition 6 of the temporary protection order.
- The application seeks an order that I stay condition 6 of the order in accordance with section 169 of the Domestic and Family Violence Protection Act 2012 (Qld) (hereinafter DFVPA) pending the appeal. In the application, the husband, in circumstances where the wife had collected the child from the stated address as earlier outlined, sought an order that the wife return the child to the husband. In fact, the relevant provision of the DFVPA is section 166 of the Act. Section 169 concerns the powers of an appellant Court on an appeal under the Act. Section 166 provides:
Effect of appeal on decision
(1) The start of an appeal against a decision of the court does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2) However, the court or the appellate court may make an order staying the operation of the decision being appealed against until the appeal is finally decided.
(3) The court or the appellate court may act under subsection (2) on the application of the appellant or on its own initiative.
- Nothing turns on the erroneous reference to section 169 rather than 166 in the application.
- The wife’s solicitor submitted before me that the “operation” of condition 6 of the order appealed from had been completed upon the wife taking possession of the child on the night of the 22nd of October. He noted the condition restrained the husband from having contact with the child “forthwith until he is collected” by the wife. Since since that event had already occurred, he submitted that there was nothing left to be stayed.
- It is in my view at least arguable that the effect of section 166(2) of the DFVPA, which empowers the Court to make an order “staying the operation of the decision”, empowers the Court to effectively reverse the practical operation of the order – in this case by ordering, as the husband seeks, that the wife return the child to the husband.
- Counsel for the husband also relied on a decision of the High Court in Williams & Ors v Spautz  174 CLR 509 at 518, in which the High Court ruled that the power to stay proceedings extends to the prevention of an abuse of process resulting in oppression. He argued that the proceedings before the learned Magistrate on the 22nd of October were an abuse of process because the issue of the custody of the child was one before the FCC. It was common ground that proceedings had been instituted in that Court, though no orders have yet been made. The matter is returnable before that Court on the 11th of November.
- Inevitably, tension can arise between the jurisdiction of the FCC and the Family Court on the one hand and State Courts dealing with issues of family violence on the other. Sections 77 and 78 of the DFVPA seek to address that issue. Section 77 requires a person who applies for a protection order to inform the Court of any family law order of which the applicant is aware. Section 78 requires the Court when considering whether to make a DVO to have regard to any family law order and, in such circumstances, to consider whether to exercise its power under section 68R of the Family Law Act 1975 (Cth) to rewrite, vary, discharge or suspend the family law order.
- No order under the FLA has, as I indicated, yet been made, but counsel submitted the primacy of the FCC and the Family Court in issues of parenting of a child, and the fact that applications relating to those issues had been filed in the FCC, returnable on the 11th of November, made the application to the Magistrate on the 22nd of October an “abuse of process”.
- I do not accept that to be so. No doubt, the fact of those applications and their listing for determination on only the 11th of November was a fact that the Magistrate could properly take into account in determining whether to make the orders she did. Indeed, there was every reason to think that she in fact did so.
- I do not think that the husband’s counsel’s reliance on Williams & Ors v Spautz (supra) on the basis that the application was an abuse of process can succeed. I do not consider that the wife’s filing the Magistrate’s Court application returnable on the 22nd was an abuse of process. However, in circumstances where it is at least arguable that the power of this Court to stay the “operation” of the learned Magistrate’s decision to adopt the words used in subsection (2) of section 166 of the Act includes power to reverse the practical operation of the order. I will consider whether it would be appropriate to do so.
- The difficulty for the husband is that while I accept that there may be such a power, in the circumstances of this case I have concluded that it would be inappropriate to exercise it for the reasons which follow.
- Before stating those reasons, I shall refer briefly to some legal principles concerning stay applications, particularly as they relate to parenting cases, set out at paragraph  ff, in particular, of the decision of Aldridge v Keaton  FamCAFC 166. I will not set out all of the dot points in that paragraph, but of particular importance are the following, expressed in my language having regard to the circumstances of this case:
- The onus to establish a proper basis for the stay rests on the husband.
- The husband’s bone fides.
- Issues of the balance of convenience and the competing rights of the parties.
- The desirability of limiting the frequency of any change in the child’s living arrangements.
- The child’s best interests.
- In my view, considerations of those issues and their application to this case strongly favour the refusal of the husband’s application. In order to understand why I say that, it is necessary to say something about the parties’ circumstances.
- The husband is 46 years of age. The wife is 40. Both are Australian citizens born overseas. They married on the 19th of December 2009 and their son was born on the 22nd of August 2012. They lived together, though it seems with significantly increased disharmony, until the husband left the matrimonial home taking the boy with him on the 17th of October, only seven days ago. On that day, he filed an application in the FCC seeking sole parenting responsibility for the child and for the child to have time with the mother as the Court “deemed appropriate”. He also sought orders restraining the mother from attempting to remove the child from Australia. I interpose that although an Australian citizen, it is said and seems common ground, that the wife had significant family connections to Canada.
- That application in the FCC was listed for hearing on the 29th of November. It showed the husband’s address as the family home, which he had, in fact, decided to leave and did so the following day. Thereafter, the wife did not know of the child’s whereabouts until the making of the Magistrates Court order. The application and supporting affidavit included allegations that the child had been subject to repeated abuse by the wife “for a number of years”. In summary, it was said:
- She was verbally abusive of him on an almost daily basis, saying to him, for example, that he was a piece of shit, she wished he was dead, and that he was dumb and that she would “shit in your mouth”.
- She caused him to cry and be fearful of her, visibly shaking.
- She “forces” him without reason to wear a nappy every day to defecate and, apart from his reaction to his mother’s behaviour, he is “a fairly healthy seven year old”. The wife, the husband says, has him wear a nappy “because he had stomach issues when he was young”. In relation to this issue, he says in the application to the FCC that “apart from the usual baby spit up issues when (he) was younger, I have no idea what she is talking about”.
- The wife does not allow him to use eating utensils at home, but insists on feeding him herself, forcing him to eat “to the point of vomiting”, which the husband says he does a couple of times each week from her force-feeding him.
- She has him sleep in a room “on a thin mattress” and does not allow the husband into the room at all.
- The husband also alleged that the wife had been angry and abusive towards him almost daily and, on occasions, was physically violent, slapping and hitting him often. This conduct was said to often take place in front of the child.
- The husband also says the wife “kept bags full of prescription only medication” at home. He says he has seen her “give pills” to the child. When asked, he says she has said they are “for iron or multi-vitamins”. Although, he says she is a doctor working part-time at the Gold Coast, he says he is concerned “she abuses prescription medication”.
- The husband’s affidavit says that, generally, the child is “a relatively healthy child with no health issues I am aware of” and is progressing well at the school.
- On the 17th of October, after being given a hearing date in the FCC of the 29th of November, the husband filed an application for a DVO in the Magistrates Court. A temporary protection order was made on that day, ex parte. The matter was filed and heard in Brisbane. The husband did not disclose his address in the application, indicating he did not want that information given to his wife. The application was supported by annexure A, which detailed matters very similar to that in the material filed in the FCC to which I have referred.
- The Magistrates Court temporary protection order of the 17th of October requires the wife to be of good behaviour and prohibits her from being within 100 metres of the husband. Numerous persons, who it appears are the husband’s relatives, are named persons under the order, as was the child. She was required to be of good behaviour towards them also.
- Those orders were, as I have said, made ex parte despite the husband knowing of her whereabouts. The wife, on the 21st of October, applied for an order varying the TPO of the 17th of October. Her application was heard on the 22nd of October and resulted in the orders earlier referred to. Both parties were, on that occasion, legally represented. I interpose that counsel who appeared for the husband before me was not the same counsel who appeared in those Magistrates Court matters.
- In support of her application, the wife filed her own affidavit and one of Trudy Hughes, which is not of critical importance. I was told she had also filed almost identical affidavits in the FCC and obtained the hearing date of the 11th of November, rather than the 29th of November as had earlier been allotted. Her affidavit discloses she works as a GP three to four days per week to “fit with my care” of the child. She says the husband works 8 am to 6 pm six days a week, apparently in the family business, having only Sundays off.
- She discloses her husband took possession of the child from the school he attends on the 17th “at midday, telling the teacher he was leaving early for a family trip”. In submissions to me, his counsel said that, despite the TPO obtained that morning, the husband did not have “a piece of paper” confirming that to show to the teacher.
- Whilst the Magistrate on the 22nd of October thought his conduct at the school somewhat secretive and deceitful, I am unpersuaded that this is so and accept his counsel’s explanation as feasible. The wife says that over a two-week period prior to the 17th of October, she had sought to discuss their relationship with the husband and that this is, in her opinion, what triggered her husband in taking the child as he did.
- She says the husband had recently been quite abusive to the child and to herself. She also says the child has “a long-managed serious condition”, oesophageal reflux disease or GORD. He was under the care of a specialist paediatrician, Dr Pincus, and was medicated. He had frequent and severe vomiting which had, in the past, required hospitalisation. She said:
As his gut developed, he would vomit less, but he still does so quite frequently if his diet is not carefully managed.
- She speaks of the significant adverse effects on the child of inappropriate foods. She says the husband and his mother do not see a problem in permitting the child to have inappropriate foods. She says that a consequence of his condition is that the child has been slow to be toilet trained and uses what are described as pull-up pants. I note this is a term also used in medical reports to which I should shortly refer. She says this has led to conflict, especially with the husband and his family, who she says or infers, do not understand the nature of the child’s condition.
- The wife explains in her affidavit her routines with his care and use of medications and diet. She denies denigrating the child and says it is the husband who does so. She denies any intention to flee to Canada. She accuses the husband of violence against her and denies inappropriate use of prescription medication. She says she is a competent medical practitioner. She says that her husband works long hours, as earlier referred to, away from home and has not regularly cared for the child. She says he also regularly travels overseas, including recently for 10 to 14 days at a time, leaving she and the child on their own. She says this, I infer, not as a criticism of the husband, who I assume is seeking to support the family through his work, but to indicate his acceptance of her role as the primary caregiver and of the fact that he did not have such concerns about her care of the child not to go.
- Attached to her affidavit are reports of Dr Withers, a paediatric gastroenterologist, of the 5th of July 2015 and the 15th of September 2016, and Dr Blundell, a paediatrician, of the 27th of October 2015 and the 14th of September 2016. The reports were obtained, of course, when the child was between two years and 10 months old and just four years old, but clearly indicate a significant issue with vomiting and difficulty toilet training. It is not clear to me from the reports what the cause of his ongoing problems might be, at least in a particularised medical sense, or what treatment is now required, especially as all of those reports are now at least two years old.
- I have listened on Court.fm to proceedings before the learned Magistrate on the 22nd of October, including her reasons. Both parties were represented. The learned Magistrate, when making the determination she did, seems particularly to have been influenced by the following:
- The wife has been the primary carer of the child and actively involved in doing so for all of his life.
- That care included dealing with problems with diet and toileting, something she is suited to by reason of her professional qualifications as a GP.
- The husband has, in the past, been well prepared to leave the child with the wife, not just because of his busy daily work schedule, but for extended periods of overseas travel associated with his work.
- The fact the order of the 17th of November was obtained ex parte, despite the husband well knowing of the wife’s whereabouts, and in those ex parte proceedings made no mention of his knowing that the child had a significant health issue, or at least that he had one in the past, and the wife, a GP, maintained he still did, and needed her experienced care and supervision to deal with it. He simply stated his view that she was abusive and overly protective and did not disclose the genesis of the child’s health problems.
- In my view, these were all legitimate factors to be considered by the learned Magistrate.
- The husband’s counsel submitted before me that it was appropriate to grant the stay sought in circumstances where, on the material, the learned Magistrate should have, and I ought have, a real concern about the welfare of the child if he remained with the wife. He also strongly submitted that I should be persuaded to do so because of the way in which the wife had sought to, in his submission, inappropriately, bring proceedings for a DVO designed to disguise her real intention, which is to be given custody of the child at a time proceedings had been filed and were awaiting determination in the Federal Circuit Court.
- Such a submission is, to use the vernacular, a bit rich when his client had filed proceedings in the Federal Circuit Court on the 16th of October and then when given a return date of the 29th of November, then filed Magistrates Court proceedings for a TPO to be determined ex parte, the practical effect of which was to give custody of the child to the husband. And in that application which was as I said heard ex parte, the husband did not disclose that what he suggested was abuse by the wife was a matter that had a real medical genesis.
- Though I accept he may genuinely believe that the wife’s care was excessive and inappropriate, it seems to me that his bona fides would have been far less open to criticism if he had disclosed the genesis of the boy’s problems to the Magistrate. So too it would have been relevant, in my view, to have disclosed that, on an ex parte application, his concern about the wife’s alleged abuse over a number of years had not precluded him leaving the boy solely in her care when he travelled overseas for up to 14 days at a time.
- Ultimately, it is my view that consideration of the factors identified in Aldridge v Keaton (supra) and earlier set out as relevant to a stay application very strongly support refusing to make an order the effect of which would be to, again, alter the child’s living arrangements, for the fourth time in eight days, and to take him away from the person who has been by far the most significant carer all of his seven years.
- The application for a stay is dismissed. I will order that the applicant pay the respondent wife’s costs of and incidental to the application for a stay to be assessed on the standard basis.
- Published Case Name:
RTQ v OLB
- Shortened Case Name:
RTQ v OLB
 QDC 216
24 Oct 2019