AKM v CJM[2021] QDC 199

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant appeals against the decision of a Magistrate made on 5 June 2020.
2. [2]
   By the decision, pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (the DV Act) the court made a domestic violence protection order against the appellant for the benefit of the respondent.
3. [3]
   As in the proceedings below, the appellant is self-represented and the respondent is represented by counsel.

Nature of Appeal

4. [4]
   An appeal against a decision made under the DV Act is brought pursuant to s 164 of the DV Act.  Section 164 permits an appeal to be brought by a person aggrieved by any of the following decisions of a court:

“(a) a decision to make a domestic violence order;

  (b)  a decision to vary, or refuse to vary, a domestic violence order;

  (c)  a decision to refuse to make a protection order;

(d)  if the person sought a temporary protection order in a proceeding under this Act – a decision to refuse to make the order.”

5. [5]
   In accordance with s 168(1), the appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.  However, under s 168(2) of the DV Act the appellate court may order that the appeal be heard afresh, in whole or in part.  No such order was sought or made in this case. 
6. [6]
   Under s 169, in deciding this appeal, I can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court.
7. [7]
   In conducting an appeal, s 142(2) of the DV Act provides that Ch 18 (the appeal provisions) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) apply, to the extent that such rules are not inconsistent with the DV Act.  In that way, it is said the nature of the appeal is by way of rehearing.^[1]
8. [8]
   A re-hearing requires that I conduct a real review of the evidence at first instance and of the Magistrate’s reasons for decision, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.^[2]  In Mbuzi v Torcetti, Keane JA described the task as:

“On such an appeal the judge should afford respect to the decision of the Magistrate and bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.”^[3]

Evidence before the Magistrate

9. [9]
   There was eventually agreement between the appellant and the respondent that the following material was to be considered on the appeal:

   1. Notice of Appeal filed 22 June 2020;
   2. Transcript of proceedings, including Decision, before Magistrate Davies dated 5 June 2020;
   3. Outline of Argument filed by appellant 17 August 2020;
   4. Outline of Submissions filed by respondent 14 September 2020;
   5. Application of CJM filed 10 December 2019;
   6. Affidavits of AKM sworn 9 March and 15 May 2020;
   7. Affidavit of AKM’s mother sworn 15 May 2020; and
   8. Amended Notice of Child Abuse filed 15 May 2020.
10. [10]
    On appeal, the appellant also sought to rely upon a second affidavit of her mother, filed in the Magistrates Court on 10 March 2020.
11. [11]
    The respondent objected to the affidavit being admitted into evidence on the appeal; it being said that the affidavit was not received into evidence below. 
12. [12]
    While it appeared the affidavit was not made an exhibit in the proceedings below, AKM’s mother was called as a witness and cross examined by the respondent.  It would appear that the appellant, who was also self-represented below, intended to rely on both affidavits.  Counsel for the respondent accepted that the receipt of the affidavit in the appeal would not raise any real problem for the respondent and accepted that he had an opportunity to cross examine AKM’s mother, in the proceedings below.  In the circumstances, I accepted the affidavit into evidence in the appeal proceedings.
13. [13]
    The appellant also sought to refer to the transcripts of each occasion on which the application was mentioned in the court below being the transcripts of the mentions on 14 January 2020, 10 March 2020 and 2 June 2020.  After an initial objection, the respondent agreed to their admittance.
14. [14]
    In a proceeding under the DV Act, as the Magistrate informed the parties, the court is not bound by the rules of evidence and can inform itself in any way it considers appropriate.^[4]

The Magistrate’s Decision

15. [15]
    The Magistrate summarised the case against the appellant as being that over a period of years and continuing until recently, the appellant made numerous serious allegations against the respondent to the police and child safety which are alleged to be without foundation and support and which amount to intimidation or harassment and constitute domestic violence.  The allegations by the appellant are said to have been made on a repeated basis.
16. [16]
    The Magistrate observed that the onus was on the aggrieved to prove on the balance of probabilities that there was a relevant relationship (which was not in issue) and that there were acts of domestic violence and that it was necessary or desirable for an order to be made.
17. [17]
    The Magistrate went through each of the alleged incidents as particularised in the application for a domestic violence order filed on 10 December 2019.  The Magistrate referred in particular to the evidence of complaints made by the appellant of the respondent having tried to poison or to kill her; of the respondent having sexually assaulted his four year old daughter for a period of four years from when the child was a newborn; of the respondent planting or having someone plant listening devices at the house where the appellant lived and of the respondent having or causing someone to hack her computer and of the respondent having assaulted the appellant in court during the Family Court proceedings.
18. [18]
    In relation to those incidents, the Magistrate referred to the very serious nature of some of the allegations, the fact that the complaints to police by the appellant were made subsequent to the separation of the respondent and the appellant, the appellant’s assertion that the police have done absolutely nothing, which the Magistrate said contradicted the police notes, and the appellant’s assertion that somehow the respondent had managed to exert influence over the police.
19. [19]
    The Magistrate declined to make any findings in relation to the alleged incidents in the application of the allegations by the respondent of the appellant stalking him and the allegations by the respondent of the appellant’s numerous reports to Child Safety.
20. [20]
    The Magistrate heard evidence from the respondent, the appellant and the appellant’s mother.  Each witness was subject to cross-examination with the Magistrate also asking questions of the appellant.  The Magistrate found the appellant to be a witness who could not be accepted and whose evidence he rejected.  He found the appellant to be “grossly unreliable and at times dishonest.”  He concluded that where there was a conflict, of which he found there was a great deal, he preferred the evidence of the respondent, which he found “accord[ed] with common sense and with the record that is before the Court.”
21. [21]
    In all the circumstances, the Magistrate found there had been domestic violence ongoing over a number of years.  He described it as a “form of intimidation and harassment causing emotional or psychological damage, stress …brought about by these false complaints which were used to victimise and penalise [the respondent].”
22. [22]
    The Magistrate found that the most recent incident, made in the last couple of months, involved the appellant accusing the respondent of having sent a letter to the appellant’s employer, which the appellant said resulted in the appellant losing her job. The Magistrate found there was no evidence to establish that it was the respondent who sent the letter and concluded that this was an example of the risk the respondent faces in the future if an order were not made.
23. [23]
    Finally, there is the following exchange when the Magistrate explains the order to the appellant:

“[AKM], can you stand up please…I have to tell you if you do breach the order you will be reported to the police…The jail is full at the moment of people, a lot of them are there because the [sic] have breached domestic violence orders, sadly.

RESPONDENT: Why isn’t he in jail, your Honour?

BENCH: Okay, you are the one who is, it seems to me, to be at risk. I think that some of your evidence was deluded and ridiculous, and so you be careful because with that attitude and mindset, where you do not accept responsibility and look at yourself truthfully, you are the kind of person who will breach an order.  So I would be very careful, do you understand.”^[5]

24. [24]
    In the outlines of argument there was some dispute as to what the Magistrate meant by this exchange, with it being suggested by the appellant that the Magistrate was referring to her being at risk.  It is clear from the passage that the risk being referred to was the risk of the appellant going to jail for breaching the domestic violence order.

Grounds of Appeal

25. [25]
    The appellant based her appeal on nine grounds.  In the appellant’s outline of argument these nine grounds are broadly referred as “No Procedural Fairness and Combined Errors of Fact and Law.”
26. [26]
    In oral submissions, the essence of the appeal appears to be that:

    1. The application was frivolous and vexatious and the protection order was not necessary or desirable;
    2. The Magistrate refused to consider certain evidence, resulting in error;
    3. The Magistrate failed to consider all the factual evidence before him and, on the evidence before him, there was no basis for making a finding of domestic violence against the appellant.
27. [27]
    In terms of the factual evidence, in particular the appellant maintained:

    1. There was a refusal to consider the medical evidence as to the appellant’s mental health;
    2. There was a failure to consider other evidence, including the photographic evidence of the injuries sustained to the appellant and her son; and
    3. There was a general failure by police to follow police protocol which has caused the suggestion of domestic violence, through the lack of police exercising their powers and responsibilities.
28. [28]
    The first and third of these specific grounds can be dealt with fairly simply.
29. [29]
    As to the first ground, the appellant’s complaint appears to be that the Magistrate failed to take into consideration her view that she was not mentally ill and a certificate from her general practitioner which she tendered which was to the same effect.
30. [30]
    It is important to understand how this issue arose.  In his opening statement in the application, the respondent had stated that the appellant had a mental health issue.  In response, the Magistrate explained that in the absence of the doctor being called that evidence could not be put before the court.  The Magistrate also explained that the focus of the application was not the opening statement, and said that if the application had been left at that without particulars, it would have been thrown out.  The Magistrate referred to the eight particulars of domestic violence given in the application and said that it was those that the appellant must focus on. 
31. [31]
    The Magistrate’s observations were correct.  The appellant’s mental health was not and is not in issue.  There is no substance to this ground.
32. [32]
    As to the second ground, the appellant maintained that there was a denial of procedural fairness as there were a lot of documents that were put before the Magistrate which he did not rely upon.  When pressed to refer to particular evidence, the appellant referred to the evidence of her mother as to her physical injuries and the photographic evidence of the injuries to her ankle.
33. [33]
    As will be apparent in discussing the particulars grounds, the issue was not whether there was an injury, but whether the injuries were caused by the respondent.  The evidence did not support the contention that the injuries were caused by the appellant. Again, there is no substance to this ground.
34. [34]
    As to the third ground, there was no evidence before the Magistrate about police protocols nor was there an analysis provided either way of an independent expert or by the appellant demonstrating that the police had failed to follow protocols and to investigate complaints.  The police files were not tendered.
35. [35]
    The highest the evidence reached was some extracts of police diaries and notes that had been annexed to the respondent’s application filed 10 December 2019, and evidence by the appellant that she had made complaints to the police.
36. [36]
    As to the documentary evidence, by his questioning of the appellant, it was clear that the Magistrate had read and considered the extracts of the police notes which were in evidence.  As to the appellant’s evidence, it appeared to consist of little more than her going to various police stations making complaints, and her assertions that sometimes they would refuse to accept them and when they did so, she travelled to other stations.  Her evidence was that she had attended at least four different police stations,  Wynnum, Capalaba, Mount Gravatt and Holland Park, making complaints.
37. [37]
    There was no evidence demonstrating there was any failure by the police as alleged.
38. [38]
    It is now necessary to consider the general grounds of appeal and the evidence which formed the basis for the making of the protection order.  This can be conveniently done having regard to the eight incidents relied upon by the respondent in the application.
39. [39]
    The first incident relied upon in the application alleged that the appellant had accused the respondent of having poisoned her.
40. [40]
    The appellant accepted having made a complaint to police in December 2018 of attempted murder by the respondent by poisoning between 2010 and 2013 and of having caused grievous bodily harm to the appellant.  Both these allegations were denied by the respondent.  The respondent confirmed that he was questioned by the police about them. 
41. [41]
    In support of the complaint, the appellant referred to an admission to hospital.  The appellant asked the respondent whether he was shown the hospital record by police.  The respondent’s evidence was that the hospital record showed that the appellant had acute viral hepatitis.  The discharge summary from the hospital visit, as referred to by the Magistrate, supported the respondent’s evidence of the hospital visit.  The complaint was dismissed by police.
42. [42]
    There was no evidence led by the appellant supporting the complaint made by the appellant to police of her having been poisoned other than her assertions as to being sick and the hospital visit.  The Magistrate rejected the appellant’s evidence.  In rejecting the appellant’s case the Magistrate also referred to the fact that the appellant alleged the poisoning took place between 2010-2013, but no complaint was made about it until 2018.  There is nothing before me which suggested that the Magistrate misused his advantage of hearing and seeing the witnesses, or which lends any support to the appellant’s complaint that this ground for the making of an order was unsubstantiated.
43. [43]
    The second incident alleged that the appellant had made a very serious allegation of sexual abuse by the respondent to his daughter from when she was a newborn until she was four.  The incident was said to have involved the appellant telling their daughter that the respondent had sexually assaulted her, stating the allegation in proceedings before Magistrate Vasta and informing the police.
44. [44]
    In cross examination of the respondent, the appellant put to the respondent a number of incidents of things done by the respondent to their daughter, all of which were denied.  The appellant maintained her allegation in these proceedings, relying on medical notes made by a doctor, and accepted by the doctor, as having recorded that when the daughter was four, on examination, she had a swollen vagina.   The appellant maintained that the doctor had stated in Family Court proceedings that the child did not have a urinary tract infection but, as the Magistrate commented, the transcript of those proceedings did not record that.  As further observed by the Magistrate, there is no reference to child abuse and following the consultation there is no suggestion of any report being made by the doctor of suspected abuse.  The Magistrate further observed that no allegation was made until years after the alleged events; despite the appellant being a school teacher of long standing.  The Magistrate found that there is no evidence to support this very serious allegation.
45. [45]
    There is no basis to interfere with that finding.
46. [46]
    The third incident relied upon by the respondent for an order was an allegation that the appellant had falsely complained to the police that he had broken into her home and installed a listening device.
47. [47]
    The respondent denied having put a listening device into the appellant’s house.  The respondent said he was questioned by police following the making of the complaint and asked whether he had put a listening device into her house.  He denied the allegations.
48. [48]
    In questioning by the Magistrate, the appellant denied making a complaint that the respondent had broken into her house and put a listening device in the house.  Rather, the appellant stated that she had told the police that she had found a listening device in her house and to having been asked by the police, “Who do know that would have done something like this?”  She admitted to also having given police an affidavit with evidence of factual stuff that she said the respondent knew (inferentially as a result of the listening device) but denied having accused the respondent of it. 
49. [49]
    The inescapable inference is that, whilst being evasive in her oral evidence on the subject, in reporting the matter to police, she did accuse the respondent of having installed a listening device, and without any real justification.
50. [50]
    The Magistrate observed, on the basis of the police notes in evidence, that the police were unsure about whether the item relied upon by the appellant was in fact a listening device, or merely a toy.
51. [51]
    The Magistrate was justified in reaching the conclusion he did on the evidence.
52. [52]
    The fourth incident relied upon by the respondent was that the appellant falsely complained that the respondent had rammed a chair into the ankle of the appellant during a Family Court proceeding.
53. [53]
    The respondent denied ramming the chair into the appellant.  He said he was questioned by police. 
54. [54]
    In support of making of the complaint to the police, the appellant referred to the affidavit of her uncle and to the fact of the consent by the respondent to a variance to the domestic violence order which was made after the alleged assault.  As the Magistrate observed, the agreement to vary the order was made without admissions, and as the Magistrate observed, that was clearly stated in a letter from the respondent’s solicitor to the appellant.  The appellant declined to agree that she knew that.  The respondent referred in evidence to the fact of everyone else in the court room not having seen the incident.  The Magistrate found that it was impossible to view this complaint as anything other than another false compliant made to police.  In reaching that conclusion the Magistrate evidently took into account his assumption that the act was alleged to have occurred when the court was about to sit and there were lots of people in the court, and the fact that the complaint was not made until 17 days later.  There is no basis to disturb that finding.
55. [55]
    The fifth incident alleges that the appellant on a number of occasions notified children services and the police of incidents at the house involving the children.  In the application the particular incident identified was an incident involving the youngest child when he was said to have tripped on a chair and hit his head.  The respondent gave evidence as to the circumstances surrounding the incident.  The respondent explained that he was not home when it happened.  The respondent raised a question as to why the appellant had not contacted him and asked what had happened.  When asked by the Magistrate, the appellant said she was justified in calling the police, the ambulance and children services.  The appellant said that the respondent should have taken the child to the doctor and had not done so.  In answering the question, the appellant made reference to other occasions as to when, she said, it was necessary, to make a report.  On that occasion, it was not challenged by the appellant that no action was taken by the police and it was determined that no action was necessary.
56. [56]
    There was no evidence in relation to the making of reports to children services, and the Magistrate found that he was not going to making any finding in relation to the allegation that the appellant called children services unnecessarily as it was not entirely clear, based on the evidence, as to how significant the reporting was and how frequently it occurred; although he said that he suspected that the appellant had reported unnecessarily. 
57. [57]
    The seventh incident relied upon in the application was one of stalking and statements made by the appellant of the respondent having had affairs and the like.  The complaint was denied by the appellant.
58. [58]
    The Magistrate declined to make any finding; determining that he did not consider it was of much assistance to the court at the end of the day.
59. [59]
    As to the complaints particularised in incidents six and eight, in the course of the proceeding, the Magistrate raised a question as to the pursuit of these complaints in domestic violence proceedings and the complaints were not pressed.
60. [60]
    In summary, there was evidence which justified the decision of the Magistrate in relation to incidents one, two, three and four.  In reaching his conclusions, the Magistrate not only relied upon his own observations of the appellant, but other facts; such as the period between the alleged events and the complaints about them, the independent evidence of the doctor who examined the daughter, the police notes and the appellant’s behaviour in making repeated allegations about the respondent in different courts on the same grounds.  This review does not show that another decision was open.
61. [61]
    There is nothing which shows that the Magistrate failed to use or palpably misused his advantage in making his assessment of the appellant as a witness or acted on evidence which was inconsistent with facts incontrovertibly established or which was glaringly improbable.^[6] Indeed, the opposite is the case.

Was there Domestic Violence?

62. [62]
    The Magistrate concluded that the conduct as found by him fell within the definition of domestic violence.  Domestic violence is defined in s 8 to mean:

“… 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. (a)
   is physically or sexually abusive; or
2. (b)
   is emotionally or psychologically abusive; or
3. (c)
   is economically abusive; or
4. (d)
   is threatening; or
5. (e)
   is coercive; or
6. (f)
   in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.”^[7]

63. [63]
    Emotionally or psychologically abusive is defined in s 11 as behaviour by a person towards another person that “torments, intimidates, harasses or is offensive to the other person.”  The determination of that is a subjective matter; the relevant question being the effect of the behaviour on the person. 
64. [64]
    In the present case, there is evidence of multiple complaints made to police involving very serious allegations by the appellant against the respondent, of the respondent being questioned by police and even if not subjected to lengthy questioning, nevertheless questioned numerous times.  The respondent is clearly effected and saddened by the numerous false allegations and the impact of them on his relationship with his children.
65. [65]
    The conduct of the appellant has persisted over a number of years.  An element of persistence or repetition, as observed by McGill SC DCJ in GKE v EUT,^[8] can mean the conduct may be properly described as conduct which harasses someone. 
66. [66]
    The appellant admitted in giving evidence to the making of a number of complaints over a number of years.  In these proceedings, it was clear the appellant still maintained the substance of her complaints and that it was the police’s failure to investigate fully that has resulted in the failure for any action being taken.
67. [67]
    The conduct clearly falls within the definition of domestic violence.
68. [68]
    The issue for the court then is whether a protection order was necessary or desirable to protect the respondent from domestic violence.
69. [69]
    In deciding this the court is required to consider the principles mentioned in s 4. Section 4 requires the DV Act to be administered “under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”  Further, subsection 2(a) requires that people who “fear or experience domestic violence should be treated with respect and disruption to their lives should be minimised.”
70. [70]
    The issue for the court is not simply whether an aggrieved wants an order to be made, or indeed whether the aggrieved would feel better if an order was made, but whether the making of such an order is necessary or desirable, specifically for the purpose of protecting the aggrieved from domestic violence.
71. [71]
    The appellant submitted that the complaints were first reported many years back and “were old and held no weight.” 
72. [72]
    The Magistrate specifically referred to the age of certain complaints but considered that the most recent manifestation, being a letter which the appellant claimed the respondent had written to her employer, which she maintained caused her to lose her job.  The Magistrate concluded that if an order were not made there would be a real risk of “unrestrained conduct of the same type which had gone on for three plus years to continue.” 
73. [73]
    The appellant submitted that the making of the order was affecting her work.  The appellant referred to her evidence in relation to the sending of the letter by the respondent to the school and the resultant loss of her job.  In relation to that evidence, the Magistrate found there was no evidence before the court to establish it was the respondent who sent the letter to her employer which she says made her lose her job.  The Magistrate found that the accusation was “just another example of the risk he [the respondent] faces in the future of further allegations” unless an order was made.
74. [74]
    The Magistrate did not make any finding in relation to the impact of the making of the order on the appellant.  There was no comment by the Magistrate that he would not have any regard to the adverse consequences of an order and nor that they were not relevant. 
75. [75]
    Given the evidence which he accepted, the Magistrate’s focus was on the necessity of the order given the “real risk of unrestrained conduct [by the appellant] of the same type” and the desirability of the respondent being able to “be free to live his life without these ridiculous allegations.”
76. [76]
    The Magistrate made a finding of satisfaction as required by a 37(1)(c) of the DV Act and, in the circumstances, it could not be said that the Magistrate failed to correctly exercise his discretion.  It could certainly not be said, as was suggested by the appellant, that the application should have been considered to be vexatious and frivolous.
77. [77]
    The Magistrate had before him the domestic violence order made on 14 November 2018 in which the appellant is named as the aggrieved and determined the appropriate terms of this order in which the appellant is named as the respondent.  This order is directed to the appellant’s conduct, whereas the previous order is directed to the conduct of her ex-husband.  This order prohibits the appellant from remaining at, entering or attempting to enter premises or approaching to within 100 metres of the aggrieved except for educational premises where the distance is 20 metres.  The previous order in which the appellant is named as the aggrieved prohibits the ex-husband from following or approaching to within 100 metres of the aggrieved when the aggrieved is at any place.  Both orders contain the usual exceptions for contact with children and court appearances.
78. [78]
    There may be merit in the wording of both orders being the same but this particular order seems to be to the appellant’s advantage.  Absent some clear demonstration that the Magistrate made an error, I am not persuaded that there is any basis to interfere with the terms of the order.

Costs

79. [79]
    Section 157(1) of the DV Act provides that each party to a proceeding for an application under this Act must bear their own costs.  However, subsection (2) empowers the court to award costs against a party who makes an application that is dismissed on grounds that it is “malicious, deliberately false, frivolous or vexatious.” 
80. [80]
    It has been held, as its language suggests, that s 157 applies to proceedings at first instance and does not to apply to appeals under the DV Act.^[9]  Following an amendment effective 28 February 2015, Section 142 of the DV Act makes the UCPR apply to an appeal under the DV Act.  The effect of that amendment is to make Chapter 17A (the costs provisions) of the UCPR apply to appeals under the DV Act.^[10]
81. [81]
    Within Chapter 17A, rule 681 relevantly provides that the “costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.”  Consistent with that view, each party sought an order for costs of the appeal; the respondent belatedly seeking that those costs be on an indemnity basis.
82. [82]
    The starting point is that the costs of the appeal should follow the event unless I am persuaded it is an appropriate case to order otherwise.  The purpose of a costs order is not to punish the unsuccessful party but to compensate a successful party.^[11]
83. [83]
    There is nothing in the findings of the Magistrate below or the exercise of his discretion which gave any support to the appeal.  The appellant appeared to be using the appeal to ventilate again the same matters which were raised before the Magistrate.
84. [84]
    The respondent argued that he was entitled to an order for indemnity costs on the basis that the appeal was a further attempt to vex him. 
85. [85]
    I am not persuaded that there is sufficient justification for an indemnity costs order but there is no reason why costs should not follow the event.
86. [86]
    For these reasons, I make the following orders:

    1. Appeal dismissed.
    2. The appellant pay the respondent’s cost of the appeal assessed on the standard basis.