DES v CJR[2022] QDC 154

DISTRICT COURT OF QUEENSLAND

1. [1]
   By this proceeding the applicant/appellant seeks to appeal against the decision of an acting magistrate, made on 27 October 2021, that an application by the applicant/appellant to vary a domestic violence order be dismissed and that she pay the respondent’s costs in the sum of $1,500.00.  The proceeding in this Court was commenced by way of a notice of appeal subject to leave because, having been filed on 8 December 2021, it was out of time.  By reason of s 165(4) of the Domestic and Family Violence Protection Act 2012 (the Act), a notice of appeal must be filed within 28 days after, relevantly, the day upon which the decision was made.  A power to extend time is conferred on the appellate court by s 165(5) of the Act.
2. [2]
   By reason of s 168 of the Act, an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.  The appellate court may however, order that the appeal be heard afresh, in whole or in part.  In the notice of appeal subject to leave, the appellant sought a hearing de novo.
3. [3]
   The matter came before me for consideration of whether the time for filing the notice of appeal ought be extended.  The parties were content however, for me to hear the substantive arguments in relation to the appeal and to go on to determine the appeal in the event that I decided to grant the extension of time, but refuse the application for the appeal to be heard afresh, in whole or part.
4. [4]
   The notice of appeal was filed two weeks late.  The magnitude of the delay is not particularly great and it has not caused the respondent any particular prejudice.  The explanation for the delay, in essence, relates to the fact that the applicant/appellant is a  self-represented litigant who lives outside Bundaberg and has been attending to matters involving the respondent not only in connection with this proceeding, but also in relation to proceedings in the Federal Circuit and Family Court (as a consequence of which she was being inducted into the “lighthouse project” which took up some of her time).  She also has had difficulty in attempting to obtain advice and she needed assistance with funding for the payment of the filing fee.  She was also investigating a particular incident that had been the subject of evidence at the hearing.  Her affidavit says that, despite all of this, she attempted to file her notice of appeal on 1 December (one week late), but was informed that she had used the wrong court form and would need to use the form for an appeal subject to leave and include grounds for seeking leave (the extension of time).  Given her circumstances, it took a further week to file the proceeding in the proper form.  I accept that the applicant/appellant has provided an explanation for the delay.
5. [5]
   A relevant matter in considering whether to extend time is whether the appeal has some prospects of success.  For the reasons set out later, I consider that the appeal is, at least in part, soundly based.  In all the circumstances I am prepared to exercise the discretion to extend the period for the filing of the notice of appeal to 8 December 2021, being the day upon which the applicant/appellant filed the notice of appeal subject to leave.
6. [6]
   The Police Commissioner has a right to appear and be heard on an appeal (s 167).  By letter dated 7 January 2022, the Registrar was informed that the Commissioner would not be exercising that right.
7. [7]
   I have already noted that the applicant/appellant requested the appeal to be heard afresh.  In the event that the matter proceeded in that way, she intended to have subpoenas issued to a principal/teacher at a certain primary school and to a police officer at Agnes Waters.  Those subpoenas would require the production of an array of documents.  I am not prepared to accede to the request for this appeal to proceed on that basis. 
8. [8]
   The directions given in the matter at first instance required the parties and any witness that either party wanted to call to give evidence, to provide an affidavit.  Further, anyone who gave an affidavit was required to attend trial and be available to be cross-examined.  The applicant/appellant filed her own affidavits.  Whilst her material purported to exhibit affidavit material from others, she did not produce those others as witnesses at the hearing and their material was consequently excluded.  The applicant/appellant made it clear that she had made a conscious decision not to produce any other witnesses.^[1]  Having made that forensic decision I would ordinarily be loathed to permit the applicant/appellant to turn the appeal into a hearing de novo to allow her to depart from the course she chose to take at first instance.  In this case, I have, for the reasons given later, come to the conclusion that the decision below was, at least in part, infected with error.  I consider that the most appropriate course is to set aside the relevant part of the decision and remit the matter to the Magistrates Court for hearing and determination rather than consider entertaining any hearing afresh on this appeal. 
9. [9]
   It has already been observed that the application considered by the court below was an application to vary a domestic violence order.  The order, the subject of that application, was made on 12 February 2020 in response to an application made on 29 November  2019.  A temporary protection order had been made, on an ex-parte basis, on 4 December 2019.  The protection order names the respondent as the aggrieved and a child as a named person protected by the order.  The order is for a period of five years.
10. [10]
    It would appear from the affidavit material that the applicant/appellant did not appear when the court made the protection order.  In her affidavit material she says that she attended court on that day, but arrived late, after her matter had already been dealt with.  It appears that no attempt was then made to have the matter called back on or relisted in an endeavour to have the order vacated and there was no appeal.  The order stands.  The applicant ultimately filed the subject application on 13 April 2021, a year and two months after the order was made.  Such applications are provided for by s 86 of the Act.  Sub-section 4 provides as follows:

“The variations sought may relate to any aspect of the domestic violence order including, for example, the following—

1. a condition of the order;
2. the duration of the order;
3. the persons named in the order.”

11. [11]
    In her application the applicant/appellant gave the following details of the variations sought:

“1. the entire DVO be revoked (“for the safety of D… and myself may I please request URGENCY”)

2. the consequent BREACH charge against myself be EXPUNGED

3. the ‘court fees’ billing (via SPER) for 11/01/21 be withdrawn or to shorten the end of time if the conditions here are undoable.”

12. [12]
    The acting magistrate formed the view, correctly, that a revocation of a protection order is not a variation which may be sought.  In that regard the position under the current Act differs from that under the corresponding provisions of the now repealed Domestic and Family Violence Protection Act 1989 (the 1989 Act) which provided, in s 35 for applications to vary and, in s 36, for applications to revoke.  It should be noted however, that, by reason of s 36 of the 1989 Act, a revocation (or variation) only took effect on the day it was made.  A revocation was not retrospective.  The right to apply for a revocation was not carried forward to the current Act.
13. [13]
    The second and third orders sought relate to a proceeding in which the applicant/appellant was dealt with for a breach.  The acting magistrate correctly identified that those orders could not be sought by way of an application for variation. 
14. [14]
    At the suggestion of the respondent’s counsel, the acting magistrate also correctly permitted the proceeding to continue to a hearing on the basis that the final section of the details of the variation sought was a request, in the alternative, for a variation to the duration of the order.  As was observed in CAO v HAT [2013] QDC 42 at [43], such orders can potentially be to the same (or at least similar) effect as a revocation order under the 1989 Act.
15. [15]
    The notice of appeal subject to leave did not seek orders varying the protection order by varying the duration of the order.  When I questioned the applicant/appellant about this however, she said that she would like to seek, in the alternative, such an order and I gave a direction that the notice of appeal be taken to have been amended to seek that relief in the alternative.
16. [16]
    By reason of s 91 of the Act the court must, before it varies a domestic violence order, consider:

    1. the grounds set out in the application for the protection order; and
    2. the findings of the court that made the domestic violence order.

That is not an invitation to challenge the grant of the protection order. 

17. [17]
    The acting magistrate, in his reasons, stated that he had considered the “contents of the original application”, which I take to be a reference to the grounds.  There was however, no reference to the findings of the court that made the protection order.  Upon the applicant/appellant not appearing, the court was entitled to proceed to hear and decide the application for a protection order in her absence.^[2]  In order to make the protection order, the magistrate would have had to have been satisfied, upon such a hearing, of the matters in s 37 of the Act, including that domestic violence had been committed^[3], but there is no reference to any specific finding.
18. [18]
    Section 92 applies if the court considers that a variation proposed to be made to a domestic violence order may adversely affect the safety, protection or well-being of the aggrieved or any named person.  The acting magistrate correctly considered that the section applied because the variation sought was, relevantly, for a reduction to the duration of the order.  That being so, s 92(2) required the court to have regard to:

    1. any express wishes of the aggrieved or named person; and
    2. any current contact between the aggrieved or named person and the respondent; and
    3. whether any pressure has been applied, or threat has been made, to the aggrieved or named person by the respondent or someone else for the respondent; and
    4. the principle that the safety, protection and well-being of people who fear or experience domestic violence, including children, are paramount; and
    5. any other relevant matter.
19. [19]
    By reason of s 92(3) the court may vary the order only if the court considers:

    1. the safety, protection or well-being of the aggrieved or the named person would not be adversely affected by the variation; and
    2. if the variation is to reduce the duration of the order – there are reasons for doing so.
20. [20]
    In this case the duration of the protection order is five years.  That is the default period for the duration for a protection order under s 97 of the Act.  When a protection order is made the court may make an order that it remain in force for a period of less than five years only if the court is satisfied there are reasons for doing so.^[4]
21. [21]
    I have already referred to the directions that were given for the filing of affidavits and for the deponents to be available for cross-examination.  Prior to the hearing the applicant/appellant filed three affidavits.  The first largely took issue with the claims that had been made in the respondent’s application for the protection order or tried to place text messages relied upon by him in that material in context (as having been provoked by his “baiting”).  The affidavit does however, also contend that the protection order has been used by the respondent to “block” her from expressing concerns about their child.  She claims that he is a perpetrator of coercive control.
22. [22]
    The applicant/appellant’s first affidavit was met with one from the respondent that:

    1. set out his version of events in relation to an incident that occurred on 8  November 2019 and had been referred to in his application for a protection order and also in the applicant/appellant’s first affidavit;
    2. deposed, in general terms, to the applicant/appellant’s intimidating, threatening and harassing text messages and emails forwarded in the period prior to his application for a protection order and exhibited those that had been filed with his application for a protection order;
    3. traversed and joined issue with, the allegations in the applicant/appellant’s first affidavit;
    4. deposed to breaches of the protection order, on many occasions, by the applicant/appellant and exhibited text messages received by him from her since the protection order was made, and
    5. deposed there have, in effect, been no change of circumstances since the protection order was made and it is his wish for the protection order to remain in place.
23. [23]
    The respondent’s affidavit was met with a further affidavit by the applicant/appellant.  That affidavit, amongst other things, further elaborated on the incident of 8  November  2019 and signalled an intention to address, in the course of cross-examination at the hearing, what the applicant/appellant said was “multiple statements of denial and further inclusion of communication” provided by the respondent “that provides only one side and no context in the respondent’s affidavit”.
24. [24]
    On 26 October 2021, the day before the hearing, the applicant/appellant provided a third affidavit.  It raised concerns about an incident involving her, the respondent and their child at the child’s school on 17 September 2021.  Her affidavit accuses the respondent of “paranoia-based harassment/intimidation”. 
25. [25]
    The parties appeared on the date for hearing and the court was called upon to hear and decide the application.^[5]  At the hearing, counsel for the respondent said that he would take no objection to the late third affidavit of the applicant/appellant so long as he could “hand up” a statement made by the respondent to the police about that incident and also some text messages with the principal of the school which would have featured in a brief affidavit, save for time constraints.  The applicant/appellant did not take issue with that^[6] and the acting magistrate ruled that the material could be introduced.^[7]  Ultimately however, those documents were not tendered.  Rather, reference was made to them in the course of cross-examination of the applicant/appellant. 
26. [26]
    In the course of her cross-examination the applicant/appellant maintained, in effect, that the respondent is a manipulative and threatening person who exercises coercive control directed towards her.  She contended that he uses the protection order as an instrument with which to exercise that control.
27. [27]
    Following the completion of the cross-examination of the applicant/respondent the acting magistrate went on to hear argument and then to dispose of the matter without giving the applicant/appellant an opportunity to cross-examine the respondent, as she wished to do.  That is a matter about which she complains in the appeal.
28. [28]
    Upon completion of the cross-examination of the applicant/appellant, counsel for the respondent made a submission that “the application and the evidence don’t make out the relief sought, so really there is no need for my client to give evidence” and “there would be no basis on the evidence called in support of the application to grant the application”.  It is tolerably clear that, in so submitting, counsel for the respondent was making a no case submission and that was the basis upon which the acting magistrate proceeded.  That is so notwithstanding that, after hearing submissions, the acting magistrate said that “I will accede to the application to strike out the application on the basis that there is want of prosecution, if I can use that term, to justify calling upon the respondent to go into evidence”^[8] and, in his ex-tempore reasons, concluded by saying that the applicant/appellant’s application was struck out “for want of prosecution” and that there had been “an abuse of process”.  Despite some confusion in the expression of the legal concepts, an examination of the argument and the reasons demonstrate that the acting magistrate ruled in favour of a no case submission.  To determine whether the acting magistrate was right to deny the applicant/appellant the opportunity to cross-examine the respondent prior to the matter being determined, it is therefore necessary to consider whether he erred in disposing of the matter by accepting the no case submission.
29. [29]
    In his reasons the acting magistrate said that the applicant in any proceeding of a civil nature has a responsibility to establish that there is sufficient evidence to warrant the matter being put to the respondent for an answer.  The respondent in a civil proceeding may make a no case submission at the conclusion of the applicant’s case and I accept that the respondent to an application for variation under the Act may do so.^[9]  Such submissions are however relatively rare in civil proceedings.  That is no doubt due to the ordinary rule of practice, in a proceedings of a civil nature, that a judge will not rule on a submission of no case to answer unless the moving party announces that it will not call any evidence in the event that its submission does not succeed (the election).  The court has a discretion to depart from that general rule, so as not to put the moving party to the election.  That discretion is guided by considerations of what is just and convenient in the circumstances.  The nature of the allegations made against the respondent is a relevant consideration.  For example, the authorities recognise that a departure from the general rule is often justified where fraud is alleged against the moving party.^[10]
30. [30]
    In this case the acting magistrate proceeded to consider the no case submission not only without putting the moving party to the election but without raising the issue of the election or giving it any consideration.  Counsel for the respondent did not volunteer an election.  I note that his submission immediately followed his saying “just before my client goes into evidence…”.  Whilst the acting magistrate had a discretion to determine the application without putting the respondent to an election, he erred in failing to consider whether or not he should do so.^[11]  That was not however, the only error.
31. [31]
    The acting magistrate’s ultimate conclusion, with respect to that part of the application to vary which sought a variation of the duration of the order, was that a reduction was not justified on the evidence.^[12]  In coming to that conclusion, the acting magistrate was called upon to consider the evidence of the applicant/appellant.  The acting magistrate considered that her evidence was largely irrelevant to the application to vary.  Reference to both the transcript of the argument^[13] and to the reasons^[14] reveals that the acting magistrate regarded the applicant/appellant’s attack on the claims made by the respondent in support of his application for the protection order as an impermissible attack on the order, rather than anything of relevance to a variation of its duration.  Further, he saw her claims of being the victim of coercive control at the hands of the respondent as potentially relevant to an application by her for a protection order, or a variation in the terms of an order in her favour, rather than anything relevant to a consideration of a variation of the duration of the subject order.
32. [32]
    I respectfully agree that it is not for the court, in considering an application to vary, to impugn the making of the order.^[15]  Indeed, because a revocation under the 1989 Act only took effect from when it was made, the focus of even an application for such an order under that Act was on whether it was appropriate for the order to continue, rather than whether it should have been made.  I also respectfully agree that it is not for the court, in considering an application to vary, to determine whether the applicant/appellant requires the benefit of a protection order or a variation of the terms of a protection order in her favour.^[16]  That does not necessarily mean however, that the applicant/appellant’s evidence was entirely irrelevant or that she did not have an intelligible case.
33. [33]
    The applicant/appellant’s case included that the respondent and the named child have no need for protection from her.  If accepted, that is capable of supporting a finding that s 92(3)(a) of the Act is satisfied.  At one point in his reasons the acting magistrate observed that there is no evidence of a positive outcome for the aggrieved associated with a reduction in the duration of the existing order.  That might have been the rejection of an assertion by the applicant/appellant, but  s 92(3)(a) only requires that the aggrieved or named person not be adversely affected.
34. [34]
    The applicant/appellant’s evidence to the effect that the respondent’s allegations regarding her past and continuing conduct are untrue or misleadingly devoid of context, is relevant to the extent it goes to supporting her case that she currently poses no threat to the safety, protection or well-being of the aggrieved or the named child.  She should not however, in the application to vary the protection order, be heard to challenge the making of the protection order or the properly made findings of the Court that made the order, which findings must be considered pursuant to s 91 of the Act.  It is however, not apparent precisely what those findings were.  Further, an adverse finding against the applicant/appellant at that time would not necessarily prevent a different finding as to whether she poses a risk having regard to the facts at this, now later, point in time.
35. [35]
    The primary complaint of the applicant/appellant in relation to the ongoing effect of the order is that it is, she says, being misused by the respondent as, in effect, a sword, to enable to his coercive control, rather than as a protective shield.  The acting magistrate regarded that as irrelevant to the application before him and so rejected it “in the context of this application”, although he observed that “different rules may apply and the evidence that has been presented may be of probative effect in a different forum”.^[17]  If the applicant/appellant’s case was made out however, the misuse of a protection order in that way,  particularly if there was also found to be no continuing need for its protective^[18] function, is capable of being a “relevant matter” under s  92(2)(e) and of assistance in potentially providing a reason for reducing the duration of the order for the purposes of s 92(3)(b) of the Act.
36. [36]
    I am conscious that the acting magistrate also found that the appellant/applicant provided evidence that “was not inherently credible in some key factors” and that her evidence was unreliable.^[19]  It is certainly open to a judicial officer who is considering a no case submission to perform an assessment of the quality of the evidence.  That assessment must however, be an assessment of the evidence having regard to the case which the moving party submits he is not required to answer.^[20]  In his reasons however, the acting magistrate disclosed that he read and considered the affidavit material of the moving party, namely the respondent.  In particular, he said:^[21]

“Whilst I have read the affidavit material of Mr R, given my view that he need not be called upon to answer the application because it does not meet the threshold of doing so, I can make commentary that I found Mr R’s affidavit of material internally consistent and credible in contrast to that of the evidence of Ms S”.

Notwithstanding what the acting magistrate said about the respondent not needing to be called upon, the subsequent commentary on his affidavit material reveals that the acting magistrate read, considered and assessed the credibility of the contents of his affidavit material.  The acting magistrate, in considering a no case submission, should not have given any consideration to the untested affidavit material filed by the respondent.  He erred in doing so.

37. [37]
    For the reasons given, the decision of the acting magistrate was infected with error.  I have determined that I ought not attempt to redecide the matter having regard only to the evidence in the applicant/appellant’s case.  Not only do I not have the advantage of a trial judge in considering the quality of the evidence, but there has been no consideration given to the election and it is unknown whether the respondent would wish to persist with a no case submission if ultimately put to the election.  I also do not have the benefit of the findings of the court that made the protection order, which must be considered. 
38. [38]
    In the circumstances the decision of the acting magistrate, in so far as it dismissed the application for a variation to the duration of the order, should be set aside.  It follows that the costs order, that was based on a finding that the proceeding was vexatious,^[22] ought also be set aside.  I will, pursuant to s 169(1)(d) of the Act, remit those matters to the Magistrates Court to be heard and determined according to law.  Given the strong findings made by the acting magistrate, that hearing and determination should be by a different magistrate.  The appeal in so far as it is against the dismissal of the application for the other forms of relief sought by the applicant/appellant in the variation application is dismissed.