DLM v WER & The Commissioner of Police
[2022] QDC 79
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- Unreported Judgment
- DLM v WER & The Commissioner of Police[2022] QDC 79
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DLM v WER & The Commissioner of Police[2022] QDC 79
DLM v WER & The Commissioner of Police[2022] QDC 79
DISTRICT COURT OF QUEENSLAND
CITATION: | DLM v WER & The Commissioner of Police [2022] QDC 79 |
PARTIES: | DLM (appellant) v WER (first respondent) THE COMMISSIONER OF POLICE (second respondent) |
FILE NO: | D2/2020 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Courtat Kingaroy |
DELIVERED ON: | 6 April 2022 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 28 May 2021, further written submissions delivered 10 June 2021 and 15 June 2021 |
JUDGE: | Cash QC DCJ |
ORDERS: |
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CATCHWORDS: | FAMILY LAW – DOMESTIC VIOLENCE – APPEAL – where appellant and first respondent brought opposing applications – where a protection order was made against the appellant – whether the Magistrate erred in imposing further conditions in the protection order – whether the Magistrate erred in refusing issue of subpoenas – whether the Magistrate erred in finding the appellant committed acts of domestic violence – whether fresh evidence ought to be allowed on appeal – where the respondent sought costs for the appeal |
LEGISLATION: | Domestic and Family Violence Protection Act 2012 (Qld Domestic and Family Violence Protection Rules 2014 (Qld) Evidence Act 1977 (Qld) Uniform Civil Procedure Rules 1999 (Qld) |
CASES: | HBY v WBI & Anor [2020] QDC 81, [16]-[18] House v The King (1936) 55 CLR 499 John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199, [8] and [10] MNT v MEE [2020] QDC 100, [6]-[11] R v Hodges [2018] QCA 92; [2019] 1 Qd R 172, [21] R v Lawrence [2002] 2 Qd R 400 R v McCosker [2011] 2 Qd R 139; [2010] QCA 52 R v Spina [2012] QCA 179, [32] R v Spizzirri [2001] 2 Qd R 686, [7] and [24] |
APPEARANCES: | The appellant in person J K Kennedy for the first respondent J Paratz for the second respondent |
SOLICITORS: | Rosegold Legal for the first respondent Queensland Police Service Legal Unit for the second respondent |
Introduction
- [1]On 4 July 2019 the appellant, DLM, filed an application pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). In it, he sought a protection order, including a temporary protection order, in relation to the first respondent, WER.[1] She was DLM’s former partner. They had been in a relationship for several years until 2018. There was one child of the relationship (who, without intending any disrespect, and to conform to the legislative requirement for anonymity, I will refer to only as ‘the child’). A temporary protection order was made in favour of the appellant on 19 July 2019. The appellant applied to vary the order on 26 July 2019. The final hearing of the appellant’s application was adjourned several times throughout the rest of 2019. On 30 January 2020 the first respondent filed her own application for a protection order. Eventually, both applications came to hearing on 14 August 2020. After hearing from the appellant and the first respondent, who were then each represented by lawyers, the Magistrate reserved his decision. On 18 September 2020 the Magistrate delivered his judgment. He dismissed the appellant’s application for a protection order but allowed the application of the first respondent and made an order in her favour.
- [2]The appellant is dissatisfied with both decisions of the Magistrate. On 14 October 2020 he filed a notice of his intention to appeal against the whole of the decision of the Magistrate. In his notice, the appellant identified seven grounds of appeal,[2] though these grounds were changed somewhat in the material filed prior to the appeal. The appellant also sought to adduce on the appeal ‘fresh’ evidence to the establish ‘[a]cknowledgement by the first respondent of acts of domestic violence’ and her ‘lack of accountability for domestically violent behaviour (sic)’. I heard the appeal on 28 May 2021 in Kingaroy. After hearing from the parties, I refused the appellant’s application to adduce evidence and dismissed his appeal. I gave the parties an opportunity to file submissions as to the costs of the appeal and indicated that I would decide this issue and give my reasons later. These are my reasons for dismissing the appeal and my decision on costs.
- [3]It is appropriate to commence by setting out something of the nature of an appeal against a decision made under the DFVPA and some relevant legal principles.
The nature of the appeal – statutory framework and legal principles
- [4]The nature of an appeal such as the present was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below.
- [16]The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing a notice of appeal and the start of an appeal does not affect the operation of the decision unless there is a further order of the court: see s 165 and 166 of the Act. Section 168 of the Act provides that the ‘hearing procedures’ for the appeal are:
“168 Hearing procedures
- (1)An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
- (2)However, the appellate court may order that the appeal be heard afresh, in whole or part.”
- [17]Section 169 of the Act provides that the powers of the appellate court are:
“169 Powers of appellate court
- (1)In deciding an appeal, the appellate court may—
- confirm the decision appealed against; or
- vary the decision appealed against; or
- set aside the decision and substitute another decision; or
- set aside the decision appealed against and remit the matter to the court that made the decision.
- (2)The decision of the appellate court upon an appeal shall be final and conclusive.”
- [18]An appeal under s 168(1) of the Act is by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: see Fox v Percy (2003) 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for further evidence to be relied on: see Glover at [76]. The exercise of the discretion under s 168(2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13]. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of the surrounding provisions relating to the appeal and the Act as a whole including its main objects (see s 3), the interpretation that best achieves the purpose of the Act is that the discretion in s 168(2) is engaged when good reason is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include “that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”: see s 4(1) of the Act.
- [5]One other provision of the Act should be mentioned. Section 145 provides that a court hearing an application for a protection order is not bound by the ‘rules of evidence’ or ‘any practices or procedures applying to courts of record’. As well, the court need only be satisfied of a matter on the balance of probabilities.
- [6]Because the appellant wished to rely upon evidence that was not before the Magistrate, it is appropriate to say something more about the circumstances where this Court might receive evidence when determining an appeal of this kind. As Moynihan QC DCJ observed, the legislation provides that an appeal is to be decided on the evidence and proceedings at first instance. The reception, on an appeal, of evidence that was not before the Magistrate is exceptional. Guidance as to when it is appropriate to receive such evidence may be found in the approach of the common law to ‘fresh’ and ‘new’ evidence. The distinction between fresh and new evidence is important. As McMurdo P stated in R v Spina [2012] QCA 179 at [32] (citations omitted):
Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.
- [7]While her Honour’s observations related to criminal proceedings, they are apposite here. Parties to any proceeding should generally be held to their conduct at first instance. An appeal by way of rehearing is not to be regarded as an opportunity for a disappointed litigant to try a different approach to the one that failed at first instance. Before a party would be permitted to rely upon new evidence (that is, evidence available at the hearing at first instance), it would usually be necessary for the party to show that the evidence compels the conclusion that the decision at first instance was wrong. In other words, new evidence will only be received where it demonstrates there has been a miscarriage of justice. In the case of fresh evidence, the barrier to admission may be easier to overcome.[3]
The evidence in the proceedings at first instance
- [8]At the commencement of the hearing before the Magistrate the parties identified the material upon which each relied. The appellant identified his affidavits of 17 September 2019, 7 July 2020, and 23 July 2020. The first respondent relied upon her affidavits of 8 August 2019 and 30 January 2020, and her application also filed on 30 January 2020.[4] Both the appellant and first respondent testified. A summary of the relevant evidence follows.
The appellant’s affidavits
- [9]The appellant’s affidavit of 17 September 2019 set out something of the history of the relationship. He said they stopped living together in July 2018. Under headings such as ‘Events leading to this application’ and ‘Violence during the relationship’ the appellant described events mostly involving the first respondent. It is clear the affidavit was written without the assistance of a lawyer and it is difficult to discern the relevance of much of the information it contains. Only a few of the incidents were relied upon by the appellant at the hearing as constituting domestic violence. I will refer only to those parts of the affidavit material that seem relevant to this appeal.
- [10]The appellant complained about a series of messages sent by the first respondent on 30 May 2019 regarding contact with the child. As a result of the messages the appellant said he was stressed and concerned for his, and the child’s, health, safety, and well-being. These, and other messages discussed below, were exhibited to the affidavit. It is helpful to set out the messages that were said by the appellant to cause him concern:
First respondent | Appellant |
Just letting you know that I’m moving back to Kingaroy. I would appreciate it if I could have [the child] for the week you don’t have [your own children]. Going back to 50/50. | No |
Why not? | You released [the child] into my care and left. The legal process for custody of the [the child] has begun and the matter will be finalized in a court of law. |
The minimum of care is 50/50 an you know that. There is nothing saying I released him into your care. I’m his mother an I have a right to 50/50 custody no matter where I live! Why drag this through the court when you know that is what’s going to happen at a bear minimum. | Change of child care details form with centrelink. |
Yer that means nothing. That was just so you could get the payments for [the child]. That’s not a court signed document saying I released him into your care giving up all parental rights. It also said I would have [the child] over school holidays an that hasn’t happened so?!?! That is out the window. |
|
- [11]The appellant deposed that on 13 May 2019 the first respondent ‘sent her emotions’ via text message, which he found offensive. On 19 April 2019 the appellant and first respondent spoke on the telephone about custody. The appellant told the first respondent they should ‘continue to follow due process’. He said the first respondent became ‘emotionally abusive in assigning guilt to [his] actions’ and called him a ‘fucking retard’. The appellant stated that on 4 April 2019 he was at the park supervising contact between the first respondent and the child when she ‘used [the child] to coerce custody arrangements’ and spoke in a threatening and aggressive manner when he did not respond favourably.
- [12]The appellant cited messages of 11 January 2019 from the first respondent.[5] He said he found these messages offensive. He only produced the part of the conversation written by the respondent, stating in his oral testimony that his own messages were not ‘backed up’.[6] The messages of the first respondent were as follows (emoji in the original messages have not been reproduced and are not of significance):
Friday, 11 January 2019
Would you of come back if I had kicked you out? 21:08
If all u needed was time than why kick someone out that you your meant to “love”. That to me isn’t love. 21:12
Constantly kicking me out when shit got hard isn’t trying to work things out. I apologize for everything I did an have done I an did try to correct them for me an for us because I really did love you. 21:16
But we are done for good. I cant put myself in a place where I’m worried about being kicked out an where would I go if it happened AGAIN just because you need time. I’ve been extremely lucky to have friends that took me in evan when they had there own shit going on.
- [13]The appellant said that on 7 December 2018 the first respondent attended his house uninvited, discussing matters such as explicit images of the appellant in her possession, acts of ‘road rage’ and her sexual encounters with other men. He stated, without explaining why, that he feared for his well-being. A particular allegation that was later referred to in evidence was said to have occurred on 7 February 2017, during the relationship. The appellant described seeing the first respondent asleep and having a nightmare. He made a recording. The affidavit seems to suggest the first respondent’s nightmare cause the appellant to ‘feel traumatised, sad, hurt and a loss of self worth’. The appellant alleged that in early 2017 the first respondent routinely threatened self-harm. He stated that she would hold scissors against her neck or burn herself with a lighter. The appellant told her this made him uncomfortable, but she responded by laughing.
- [14]He said that at times between 2014 and 2017 the respondent would subject the appellant to sexual acts without his consent. He tolerated this behaviour because of the appellant’s understanding of the first respondent’s history of sexual abuse. On occasions he resisted by moving her hands away and she responded with angry outbursts. The appellant claimed economic abuse because of the first respondent spending money from the joint bank account while also not paying for household expenses or taking responsibility for telephone bills. Something of this latter allegation deserves to be set out in full (with my emphasis added to the last sentence):
- [47]In Early November 2012 [the respondent] and I again filled out the required paperwork for [her] to put her phone into a separate account in her name. The same deceptive behaviour as outlined in paragraph 42 occurred. Once [the respondent] had made her intentions clear regarding her moving away I became adamant in attending the local Telstra store to retain my financial autonomy. While in attendance at the store [the respondent] tried to coerce me into leaving without this process having been completed because [she] had forgotten to bring any form of identification. I remained adamant and in the store with our children until [the respondent] returned with identification to complete this process.
- [15]He said that in March 2018 the first respondent destroyed some couches without his consent. The appellant pointed to text messages relating to this event. The messages are set out below:[7]
Appellant | First respondent |
I guess I don’t get to use those couches anymore? | I am going to get outdoor chairs. |
So that’s no | No sorry I am getting actual outdoor chairs. |
| I am not sure how to start talking without sounding aggressive. I just want to talk to find out what’s wrong. I am deeply sorry for not talking to you about the chairs I know now that I should of communicated with you about what I was doing. Love you always baby [Kiss Mark emoji] |
- [16]The appellant stated that on 30 November 2018 they argued about a car they owned jointly. He alleged the first respondent called him a ‘fuckhead’ in front of the children. He said she did something similar on 24 September 2017. The appellant referred to steps taken by the first respondent in May 2019, while she was living in Townsville, to obtain a protection order herself. Her application named the appellant as respondent to the protection order. A temporary order was made in May and there was a hearing of the matter on 3 July 2019. The application was dismissed when the first respondent did not appear in Court. The appellant’s application was filed in Kingaroy the very next day.
- [17]The appellant’s affidavit of 7 July 2020 was concerned with an unsuccessful application he made to access ‘protected counselling communication’ pursuant to Part 2, Division 2A of the Evidence Act 1977 (Qld). As far as I could tell, it was not relevant to either the hearing at first instance or this appeal.
- [18]The appellant’s third affidavit, filed 23 July 2019, was said by him to be provided ‘by way of update’. Exhibited to the affidavit were wads of texts messages and legal correspondence. Of present relevance, the appellant referred to his ‘education at Graham House Community Centre’, a topic about which he was cross-examined. He complained about the conduct of the solicitor retained by the first respondent. Without articulating how, he alleged this was a continuation of behaviour by the first respondent to ‘control and dominate [the appellant] using any method available’. The balance of the affidavit is a combination of submissions and descriptions of events relating to the Court proceedings. Much of it simply recounts an event followed by a statement of the appellant he was ‘threatened’ or ‘coerced’. An example is set out below:
- [76][The solicitor for the first respondent] approached me a short time later with a handful of paperwork trying to coerce me from entering the court room. [The solicitor] sat next to me for a period of time consistently telling me I was in big trouble. I ignored [the solicitor] the entire time fearful of her controlling and dominating behaviour towards me.
- [77][The solicitor] approached me a third time with even more paperwork, and told me that I needed to go away and ring legal aid. I again ignored [the solicitor]. [The solicitor] left, entered the court room and I could tell that she was upset and frustrated that I was not allowing her to coerce me from seeking my rights, despite her constant threats towards me.
- [19]The appellant alleged that the first respondent had breached the temporary protection order made in his favour on 19 July 2019. One alleged breach was described by the appellant as:
On Monday 4 May 2020 while complying with family law orders for [the child] to be returned to my care … [the respondent] intentionally dressed [the child] in a manner with the specific intent to be able to text me and to retaliate against me …’
- [20]The text messages exhibited to the affidavit included a complaint by the appellant that the first respondent had not returned some of the child’s clothes after a visit. After raising the issue with the first respondent, the appellant wrote to her, ‘If his clothes are not with the designated person on Sunday I will withhold [the child].’
The appellant’s evidence at the hearing
- [21]Testifying before the Magistrate, the appellant confirmed the contents of his affidavits were true and correct. No other evidence was led in chief. In cross-examination the appellant was taken to the text messages he said caused him offence. When asked how the messages caused him offence, the appellant could only say that they were ‘attacking’ and ‘passed blame’.[8] He was asked about the first respondent’s nightmares that he said left him traumatised. The appellant agreed that the first respondent had been asleep, and he assumed the nightmare was about sexual abuse. He also agreed that his response to seeing the first respondent in this way was to make an audio recording, one that he no longer had.[9] He said that he felt traumatised by the nightmares and that they were a deliberate act of the first respondent intended to traumatise him.[10] The following exchange took place:[11]
So just so I understand your evidence clearly, because I don’t want to misquote you later on, you’re saying that she deliberately had these nightmares as a means to traumatise you because she didn’t get her own way? --- I believe so, yes, Mr Kennedy.
- [22]The appellant described the first respondent’s ‘economic abuse’ as her making ‘very little contribution to the household expenses, but not only that – the deceitful manner in which she withheld contribution.’[12] He alleged the first respondent’s deceitful manner of withholding contributions was to say she would pay a bill and then not pay it. The appellant agreed that for several years during his relationship with the first respondent, he received a sole parent payment from Centrelink. He did not tell Centrelink he was in a relationship.[13] He said the last time the first respondent had been at his home was in early January 2019. The appellant agreed that he had declined to accept a ‘50/50’ parenting arrangement.[14]
- [23]He was asked about an allegation he made that the first respondent allowed the child to fondle her breasts. He agreed the matter had been raised with the Department of Child Safety and with the child’s school. When asked what either entity did in response, the appellant dissembled:[15]
What did the school do?---I am not part of the school, Mr Kennedy.
Okay?---I cannot say.
So the answer is as far as you are aware nothing is happening in relation to that allegation?---I cannot say, Mr Kennedy. I’m not part of those entities.
No, but as far as you are aware?---I cannot say, Mr Kennedy. I’m not part of those entities. I don’t know. I could say – well I don’t know.
- [24]The appellant agreed that he filed his application after the first respondent returned to Kingaroy, but he denied he did it to withhold the child from her.[16] He said that he believed the first respondent had borderline personality disorder and possibly narcissistic personality disorder. His opinion was based upon reading he had done.[17]
- [25]The cross-examiner turned to the appellant’s attendance at Graham House Community Centre. The appellant said he went there to attend a men’s behavioural change course, mainly revolving around domestic and family violence. The appellant said that he did not think he needed to change his behaviour but went there to meet different people and to learn things.[18] He claimed not to remember the catalysts that led him to attend, but denied that it was connected to a domestic violence matter.[19] Later in the cross-examination the appellant agreed that one reason for his attendance was because he felt people were not listening to him and saw him only as ‘a man screaming and yelling.’ He expressed the opinion that in family matters ‘that probably women are more favoured when it comes to relationships or are more favoured when it comes to the children.’[20]
- [26]The appellant was asked about some images produced by the first respondent in her affidavit material. These images showed the appellant holding his penis near the face and buttocks of the sleeping first respondent. The first respondent in her material deposed that they were taken in July 2018 while she, the appellant and the children were staying in a hotel in Brisbane. The first respondent agreed that he took the images using the first respondent’s telephone while she was asleep. He explained that they spoke earlier that day. The appellant claimed he said to the first respondent, ‘How about I come into your bedroom tonight while you’re sleeping, and I’ll wake you up?’[21] (Apparently the inference to be drawn from this alleged conversation being that the first respondent understood the appellant would behave as he did.) The appellant accepted he had some intimate images of the first respondent that he kept ‘to use them as evidence if I need to.’[22] When asked about his own request in the original application for the first respondent to delete intimate images of the appellant, he acknowledged the apparent unfairness of his position.[23]
- [27]The appellant agreed that he had spoken about the first respondent’s history of sexual abuse with her mother and two of her brothers, despite not having the first respondent’s permission.[24] He agreed that he insisted upon supervising the first respondent’s contact with the child:
So, in your view, the only way she could see [the child] is in a park with your supervision?---Yes.
Do you see how that could be described as coercive on your part?---Well, I submitted family court orders that – where the Federal Circuit Court has agreed with that [the respondent] needs supervised visitation, so.
Well, we’re not quite there yet but you – you can see where your actions might be seen as coercive, can’t you? A yes or no will do?---No.
- [28]The appellant was asked about some text messages exchanged in July 2019, which are set out below.[25]
First respondent | Appellant |
Can I spend a night with him a week please |
|
Or time that you are not present. Evan if it’s at mums place | I have been very consistent that I will not release [the child] into your care without legally binding court orders. |
I’m his mum. I’d like to spend time with him without having you around constantly. It’s uncomfortable. | I sit outside of the park boundary and allow you to spend time with [the child] with reasonable privacy. I allow you to spend time that you desire at the park with [the child] when we arrange to meet, and do not force specific time frames for the time that you spend with [the child] when we arranged to meet. |
- [29]The appellant agreed that he was maintaining a position that the first respondent would not be allowed to see the child without the appellant’s supervision. He agreed he could see how this behaviour could be described as controlling.[26]
The first respondent’s affidavits
- [30]The first respondent’s first affidavit was filed in response to the appellant’s application. The later affidavit was filed in support of her own application. In the first affidavit the first respondent set out what she said was the history of the relationship. She then referred to the photographs taken by the appellant as he held his penis near her face and buttocks. She denied any suggestion she was aware of or agreed to such conduct. The first respondent deposed that she applied for a protection order in Townsville and was granted a temporary order. This caused the appellant to stop calling and texting her. The first respondent did not attend the hearing date in Townsville which resulted in her application being dismissed. The first respondent stated that she did not, at the time of her first affidavit, feel she needed a protection order. She denied the appellant’s allegations and suggested he was motivated to improve his position in family proceedings. She specifically denied:
- Attending the appellant’s home uninvited;
- Disclosing intimate images of the appellant;
- Burning herself or holding scissors to her neck;
- Acting in an inappropriate sexual way in the presence of children;
- Driving recklessly with the child in the car.
- [31]The first respondents’ affidavit of 30 January 2019 was affirmed in support of her application for a protection order filed in Kingaroy. The first respondent repeated that the photographs taken by the appellant of his penis near her face were taken without her consent. She explained that did not pursue a final protection order in Townsville as she returned to Kingaroy in May 2019. The first respondent set out how, in July 2019, the appellant obtained a temporary protection order and then complained the first respondent had breached the order. The first respondent was charged with alleged breaches, but these were subsequently withdrawn or dismissed. She admitted that at times she swore at the appellant out of frustration, citing as examples when the appellant sold her car without permission or refused to allow her unsupervised contact with the child.
- [32]The first respondent alleged that the appellant moved to live closer to her home in Kingaroy and regularly drove down her street, despite that not being on the direct route from the appellant’s home to town. She referred to the appellant’s apparent amateur diagnosis of her, denying she had been diagnosed with any psychological conditions other than depression and anxiety. The first respondent stated that on 28 January 2020 she attended school with her daughter on what was also the child’s first day of school. The appellant was at the school with the child. When the first respondent approached and the child hugged her, the appellant told her to leave, or he would take the child and not come back. The first respondent stayed for a time before leaving the school room. The appellant followed and told her she had ruined the child’s first day at school. The first respondent deposed that she was taking medication to deal with stress induced by the appellant’s allegation she had allowed the child to fondle her breasts. She also complained of the appellant “stalking” her by driving past her house, causing the first respondent to temporarily move to her mother’s home.
The first respondent’s evidence at the hearing
- [33]The first respondent confirmed the contents of her affidavits was true. In cross-examination the first respondent admitted that, contrary to an assertion in her affidavits, she had drunk alcohol and taken non-prescription drugs as a 20-year-old in 2018. She admitted to smoking marijuana. Further cross-examination on the topic was abandoned after the Magistrate queried its relevance. The first respondent accepted that both she and the appellant had taken intimate pictures of each other during the relationship. She denied agreeing to the appellant taking the photographs exhibited to her first affidavit. In the balance of the cross-examination the first respondent accepted that she had been verbally abusive to the appellant on one occasion and said that neither had been physically abusive toward the other at all during the relationship. She agreed that she intended to reside some distance away from Kingaroy and only return for the purpose of visits.[27]
The Magistrate’s decision
- [34]The learned Magistrate reserved his decision and on 18 September 2020 gave reasons for dismissing the appellant’s application and allowing that of the first respondent. First the Magistrate correctly identified the statutory test to be met before a protection order could be made. His Honour did so with reference to decided cases and it is not suggested that his Honour applied the wrong test. His Honour also identified that there was no dispute that a relevant relationship existed and the real issues in the hearing were whether there had been acts of domestic violence and, if so, whether a protection order in favour of one or both of the parties was necessary and desirable.
- [35]The Magistrate then dealt with the appellant’s application. His Honour addressed the key allegations of the appellant, which were that he was intimidated or offended by the first respondent’s messages and behaviour. The Magistrate examined the evidence and formed the view that none of the behaviour described by the appellant, even if it occurred, constituted domestic violence as defined in the DFVPA. In reaching this conclusion the Magistrate referred to the absence of specificity in the appellant’s claims that the first respondent’s actions caused him concern for his health, safety, or wellbeing. The Magistrate also considered the exchanges evidence by text messages were “neither constant, nor harassment” and that no objective reader would find anything in those messages that was “in any way attacking or offensive”.
- [36]The Magistrate considered the appellant an unimpressive witness. He dismissed the appellant’s claims that the first respondent deliberately had nightmares about previous abuse to “traumatise” the appellant. In this regard the Magistrate said “either [the appellant] was lying when he said that or he has a completely unrealistic and, ultimately, self-centred view of any conduct that happens which he doesn’t like”. The Magistrate also found that the text messages sent by the appellant about contact with the child were aggressive and controlling. He concluded his assessment of the appellant’s evidence by stating
In short, in his cross-examination it took not very long for [the appellant] to destroy any semblance of credibility or reliability, and I am not prepared to accept any of his evidence as being reliable on any point whatsoever where it is not specifically admitted or corroborated by written evidence.
- [37]Turning to the first respondent’s application, the Magistrate considered the text messages between the parties. He was satisfied that it was probably the case the appellant withheld the child from contact with her. The Magistrate also concluded that the appellant had used the first respondent’s history of abuse and mental health issues to control and manipulate her, including through the proceedings in the Magistrates Court. This included his maintaining the claim that she had serious mental health disorders despite such disorders not being diagnosed by any mental health professional. The Magistrate did not accept all the first respondent’s assertions. He expressed doubt at her claims that the appellant deliberately drove past her home intending to harass her. The Magistrate also concluded the appellant’s insistence that the first respondent get counselling was probably because he perceived it as being for her benefit, rather than as coercive or controlling behaviour.
- [38]The Magistrate found that the appellant took the photographs described above without the knowledge or consent of the first respondent. He also found the appellant retained, and threatened to use, other intimate photographs of the first respondent. These were acts of domestic violence representing, as the Magistrate found, an “attempt to dominate and control her, to punish her and to cause her fear that he will … release and use these images as he has done on at least one occasion in the Family Court”. The Magistrate was satisfied that it was necessary to make a protection order for the protection of the first respondent. As such the Magistrate made an order that included conditions that the appellant was not to go within 100 metres of the first respondent’s home (condition 2); contact her other than as in accordance with some stated exceptions (condition 3); approach within 100 metres of her other than in accordance with some stated exceptions (condition 4); and he was not to use the internet to communicate with the first respondent or publish pictures or comments about her (condition 5).
The grounds of appeal
- [39]Several grounds of appeal were identified by the appellant, in addition to the application to adduce fresh evidence. It is convenient to address each in turn. In doing so I have adopted headings that appear to me to reflect the substance of the appellant’s complaints, which are difficult to follow and not expressed with the precision that might be expected of a lawyer.
The evidence was not sufficient to establish it was probably necessary or desirable to impose conditions 2, 3, 4 and 5
- [40]In dealing with this complaint, it is necessary to identify the legislative basis for the orders. The Magistrate was first required to consider if a protection order should be made having regard to section 37 of the DFVPA. This section permits an order if the Magistrate was satisfied of the three matters set out in section 37(1). If an order was to be made, section 56 required that it include some conditions (“the mandatory conditions”). Section 57 then required the Magistrate to consider if any other condition was “necessary or desirable” to protect the first respondent from domestic violence. This consideration was to take place having regard to the paramount importance of the safety, protection and wellbeing of people who fear or experience domestic violence.
- [41]It follows that the decision to impose further conditions occurred in circumstances where a Magistrate has already decided that a relevant relationship existed, there had been domestic violence, and a protection order (with at least the mandatory conditions) was necessary or desirable. Having reached such a state of satisfaction, the Magistrate had to consider if any further condition was necessary or desirable. The words “necessary or desirable” are not words suggestive of restriction or limitation. In terms of additional conditions, the Act reposed in the Magistrate a very wide discretion. A corollary is that the decision of the Magistrate, made in the exercise of this discretion, should only be set aside if it were affected by error of a kind identified in House v The King (1936) 55 CLR 499. The appellant does not suggest the Magistrate, when imposing these conditions, erred in law, had regard to an irrelevant consideration or ignored a relevant one. That leaves only the possibility that the decision was one that was unreasonable or plainly unjust.
- [42]The decision of the Magistrate as to conditions is to be understood in the context of the findings that he had already made, including satisfaction that the appellant attempted to dominate or punish the first respondent. This conduct did not include physical assault, but it did involve the appellant taking intimate images of the first respondent without her consent. The Magistrate had also found the appellant sought to control the first respondent through limiting her access to the child. Seen in this context, the decision to impose kinds of non-contact conditions was not unreasonable or plainly unjust.
- [43]A specific complaint of the appellant concerns a message sent by the first respondent asking if she could go to the appellant’s home to see the child. It seems to be suggested by the appellant that she would not have made such a request if she felt she needed to be protected from him. There are at least two difficulties with this suggestion. The first is that the decision of the Magistrate to impose conditions did not depend upon a finding that the first respondent reasonably apprehended the appellant would be violent toward her. The second is that a single message of this kind, where the first respondent had only limited contact with her child and was obviously desirous of more contact, is not inconsistent with the first respondent simultaneously being apprehensive of the appellant.
There was a procedural error in the two applications being heard together
- [44]This ground of appeal relates to a decision that the two applications be heard together. In many circumstances, cross-applications for protection orders must be heard together.[28] There are also requirements for the service of applications on interested parties.[29] The appellant argues that he was not served with the first respondent’s application in sufficient time before the Magistrate ordered the matters be heard together. For this reason, he says the Magistrate erred when ordering the application be heard together.
- [45]That order was made on 30 January 2020. The hearing of the applications occurred on 14 August 2020, by which time the appellant was represented by a lawyer, who did not submit that the applications should be heard separately. By the time the applications were heard the appellant had more than enough notice of the first respondent’s application. A procedural error of the sort identified by the appellant, even if it were established, was of no consequence and would not provide a basis for setting aside the decision of the Magistrate. It can further be said that the time for the appellant to complain of such a procedural irregularity was when the matter came before the Magistrate in August 2020. By acquiescing to a hearing, the appellant may be taken to have waived any complaint in this regard.[30] Whether or not the Magistrate was right to order a joint hearing in January 2020 is no longer relevant.
The Magistrate erred by not having regard to any family law order that existed
- [46]Section 77 of the DFVPA required the appellant to bring the existence of a family law order to attention of the Magistrate. Section 78 then required consideration of any such order when deciding whether to make a protection order. But the absence of such consideration is expressly stated to not invalidate a protection order. In full, section 78 provides
78 Court must consider family law order
- (1)Before deciding whether to make or vary a domestic violence order, the court must—
- (a)have regard to any family law order of which the court has been informed; and
- (b)if the family law order allows contact between a respondent and a child that may be restricted under the proposed domestic violence order or variation—consider whether to exercise its power, under the Family Law Act 1975 (Cwlth), section 68R or the Family Court Act 1997 (WA), section 176, to revive, vary, discharge or suspend the family law order.
- (2)However, the court must not diminish the standard of protection given by a domestic violence order for the purpose of facilitating consistency with a family law order.
- (3)If the court is considering whether to exercise its power as mentioned in subsection (1) (b), the court must give the parties to the proceeding a reasonable opportunity to present evidence and to prepare and make submissions about the exercise of the power.
- (4)However, subsection (3) does not apply if the court is deciding whether to make a temporary protection order under section 47.
- (5)Failure to comply with subsection (1) does not invalidate or otherwise affect a domestic violence order or a variation of a domestic violence order.
- [47]The saving provision in subsection 5 is directed toward the validity of any order made by the Magistrate. But it may also be taken as an expression that a failure to have regard to a family law order is unlikely to amount to appellable error. At first instance there was almost no mention of a family law order. Presumably that was because neither party thought it was significant. It follows that even if the Magistrate failed to consider a family law order, whether because the appellant failed to bring it to his attention or for some other reason, it is not a basis for setting aside the decision at first instance.
The appellant’s human rights were ignored
- [48]It is more than a little difficult to understand this ground of appeal. The appellant cited the Human Rights Act 2019 (Qld). In particular, he cited section 19, which is concerned with freedom of movement, and section 48, which is concerned with the interpretation of statutes. The appellant seemed to (wrongly) assume that section 19 confers a paramount right to freedom of movement that has been impermissibly restricted by the protection order. If that is the appellant’s position, it finds no support in the Human Rights Act 2019 (Qld), which explicitly recognises in section 13 that “rights” may be subject to reasonable limits. Another difficulty for the appellant is that no question of the interpretation of the DFVPA was raised before the Magistrate. It would not now be appropriate to permit the appellant to raise an argument not put at first instance.
The Magistrate erred in refusing the issue of subpoenas sought by the appellant
- [49]On 30 July 2020, about two weeks before the hearing, the Magistrate ruled on applications by the appellant for the issues of subpoenas. The application was made and decided pursuant to section 154 of the DFVPA, which confers a broad power on a Magistrate to issue a subpoena for production or to require a witness to testify. The appellant seems to have complied with the Domestic and Family Violence Protection Rules 2014 (Qld) (“DFVPR”) in respect of subpoenas by filing drafts of the subpoenas he sought.[31] He also provided to the Magistrate a document setting out, in very general terms, the information he sought. At the hearing concerning the subpoenas, the first respondent was permitted to present submissions against their issue. The Magistrate declined to issue any subpoena, citing a lack of relevance.
- [50]As the appellant applied for the issue of five subpoenas, it is helpful deal with each in turn. The first proposed subpoena was directed to the Queensland Police Service (“QPS”) and sought the production of “all documents, records, reports and statements” from 1 September 2019 concerning the appellant and first respondent. In a document given to the Magistrate the appellant said this material was relevant “updated material” concerning ongoing police investigations into allegations of domestic violence between the parties. It is apparent that one (or both) parties had already obtained material from the QPS relating to the period up to 1 September 2019. The first respondent did not seem to resist the issue of a subpoena compelling the QPS to disclose whatever new documents had been brought into existence since then. Nevertheless, the Magistrate refused its issue based on a want of relevance.
- [51]It is true, as the Magistrate noted, that matters recorded in the documents were unlikely to have produced direct evidence to substantiate the allegations of domestic violence made by the parties. But the documents may have contained matters relevant to the assessment of the credit of the parties, such as indications of prior inconsistent statements. If it was “on the cards” that material of this kind would be found in the documents a subpoena should usually issue.[32] It may be that the Magistrate was too quick to refuse to issue this subpoena based on irrelevance. However, the Magistrate was confronted with a litigant in person who, by his application for the issue of multiple subpoenas, created the impression of a “fishing expedition”. It was for the appellant to demonstrate the relevance of the witnesses or material sought by the subpoenas. He did not assist his argument by pursuing clearly nonsensical claims, such as the attempt to subpoena the first respondent’s solicitor discussed below.
- [52]The Magistrate was entitled to have regard to this and to be conscious that the court should avoid an abuse of its powers. The first respondent had informed the Magistrate the appellant had already filed “more than 171 pages in these proceedings”. The Magistrate was also aware that a final hearing was scheduled two weeks later where the application and cross-application would each be determined. In the circumstances the Magistrate was entitled to refuse to issue the subpoena to compel the production of “updated records” to ensure the hearing remained manageable and focussed on the real issues to be decided. While this was not the basis for the Magistrate’s decision to refuse the subpoena, it means that even if there was error in the Magistrate’s reasons, the result was correct.
- [53]The second proposed subpoena was directed to the Department of Child Safety, Youth and Women (“DOCS”). It sought “all documents, records, reports, statements and records of interview” relating to the appellant, the first respondent and the child. The appellant claimed it was relevant to his allegation under the heading “Child abuse” in his affidavit of 23 July 2020. The appellant cited section 55 of the DFVPA in support of his application to issue the subpoena. Such reliance was misconceived. Section 55 permits the court to require the “chief executive (child protection)” to provide information to the court in defined circumstances. It had no bearing on the application to issue the subpoena. As for relevance, the appellant deposed that
To the best of my knowledge and belief, as yet there has been no departmental involvement as [the child] has been determined to have a parent willing and able to protect him from risk of significant harm.
- [54]On this basis there could be no expectation relevant material would be found in the documents. The Magistrate was right to refuse to issue this subpoena.
- [55]The third proposed subpoena was directed to Rebekah Butler and would have required her attendance to give evidence at the hearing in August 2020. The appellant’s material does not make it clear who Ms Butler is, or what relevant evidence she may have been able to give. The document produced by the appellant for his application to issue subpoenas merely cites passages of the affidavit material. Ms Butler is not mentioned by name in any of these passages, nor was there any evidence before the Magistrate about what she might say if she testified. Hence the Magistrate’s determination that
It is not apparent on the material referred to in the material filed with the request for the subpoena that Ms Butler is the person referred to in any of the cited passages, that she would have any relevant evidence to give or that the topics that are in those passages (and hence any evidence she might give) is relevant to either party proving or disproving any fact of any relevance in the application or cross-application.
- [56]There is nothing in the appellant’s written or oral submissions in the appeal to cast doubt on the correctness of the Magistrate’s conclusion.
- [57]The fourth proposed subpoena was directed to Jay Rose. Ms Rose was (and is) the first respondent’s solicitor. The subpoena would have required Ms Rose to attend to give evidence at the hearing. The appellant said the potential relevance of her testimony concerned paragraph 71 of the first respondent’s affidavit of 30 January 2020, and pages 3 to 5 of his own affidavit of 23 July 2020. As to the former, paragraph 71 of the first respondent’s affidavit stated
It is only with the assistance of a legal representative that I have finally agreed to discuss what has happened and seek to attend counselling so I can not continue to suffer from anxiety and distress.
- [58]Compelling Ms Rose to be questioned about this topic could not have produced relevant evidence. First, if the appellant called Ms Rose, he would have faced the obvious difficulty of being limited to ask only non-leading questions. Secondly, it is impossible to see what admissible testimony Ms Rose could have given about the topic identified above. There is a real likelihood that any questions about conversations between the first respondent and her legal adviser would be met by a claim of legal professional privilege. Even if such questioning were permitted of the first respondent when she testified, her answers on the topic would have presumably been final. It is unlikely that the Magistrate would have permitted Ms Rose to testify about conversations with the first respondent on matters going only to credit.[33]
- [59]The appellant also suggested Ms Rose should have been required to testify about matters raised by the appellant in his affidavit of 23 July 2020. These assertions were under the heading “The counselling or procuring of other persons to commit acts of violence”. They relate to unsubstantiated, and nonsensical, accusations that Ms Rose had been procured by the first appellant to commit acts of domestic violence against the appellant. For example, the appellant complained that at a hearing (before a different Magistrate to the one who made final orders) in August 2019 Ms Rose sat in the seat that should have been reserved for the appellant as the then applicant for a protection order. The appellant deposed (my emphasis)
I could hear both the Magistrate and the police prosecutor ask [Ms Rose] to move into the correct seating position. I was located at a further distance from these persons that [Ms Rose], so I am sure that [Ms Rose] could also hear these persons I was left in stunned silence as [Ms Rose] was trying to dominate me.
- [60]Later in the hearing, according to the appellant, Ms Rose was arguing with the Magistrate. The appellant asserted
[Ms Rose] was clearly critical of the judicial decisions of the Magistrate. I was left fearful at the thought of this behaviour possibly being within some grey area of the law, that would not be determined as an act of violence against me, and that [Ms Rose] had free reign to control and dominate me as she saw fit.
- [61]While further allegations are levelled against Ms Rose it is unnecessary, and unhelpful, to set them out here. The appellant did not set out any basis for his belief that the first respondent and Ms Rose had collaborated to commit acts of domestic violence. He referred to no evidence that could support such a conclusion. An attempt to issue a subpoena to the legal representative of the opposing party was, in these circumstances, an abuse of process and the Magistrate was correct to refuse the appellant’s application. I should, however, note that Ms Rose was in fact present at the hearing. At no stage did the appellant or his lawyer suggest she should be called to testify, much less attempt to do so. Even if the decision to refuse the issue of the subpoena was wrong, no injustice has been done as it was open to the appellant to attempt to call Ms Rose at the hearing (though for the reasons I have set out above, that would have been futile).
- [62]The final proposed subpoena was directed to Pamela Topp and would have required her to give evidence at the hearing. The Magistrate was correct to refuse to issue the subpoena for the same reasons as relate to Ms Rose. The appellant’s argument appeared to be that Ms Topp could give relevant evidence about the events in court set out above. Even if she were present in court that day (something which is not at all clear) her evidence could not have assisted the appellant.
“Ostensible bias”?
- [63]The appellant in his written submissions did no more than to refer extensively to a paper on bias written by the Hon Brian Sully QC, formerly a Judge of the Supreme Court of New South Wales. The appellant set out no argument about why I should conclude the decision was affected by bias, real or apprehended. I can discern no merit to this complaint.
The Magistrate erred in finding the appellant had committed acts of domestic violence
- [64]The final ground argued by the appellant was a general complaint that the evidence was not sufficient to prove the appellant had committed acts of domestic violence, or that a protection order was necessary or desirable. His oral argument at the appeal amounted to no more than an expression of the appellant’s own view that the Magistrate was wrong. Nevertheless, it is appropriate to detail why, in my view, the Magistrate was right to come to the conclusions he did. I will do so by first setting out what the Magistrate had to decide.
- [65]As I have already noted, section 37 of the DFVPA provides a court may make a protection order if it is satisfied, on the balance of probabilities,[34] of three things:
- (a)A relevant relationship exists; and
- (b)The respondent has committed domestic violence against the aggrieved; and
- (c)The protection order is necessary or desirable to protect the aggrieved from domestic violence.
- [66]There was no dispute that a relevant relationship existed. “Domestic violence” is expansively defined by reference to Part 2, Division 2 of the Act. It is sufficient for present purposes to set out on subsection 1 of section 8 of the DFVPA:
8 Meaning of domestic violence
- (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—
- (a)is physically or sexually abusive; or
- (b)is emotionally or psychologically abusive; or
- (c)is economically abusive; or
- (d)is threatening; or
- (e)is coercive; or
- (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.
- [67]“Emotional or psychological abuse” is defined in section 11:
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
- [68]“Economic abuse” is defined in section 12:
12 Meaning of economic abuse
"Economic abuse" means behaviour by a person (the "first person") that is coercive, deceptive or unreasonably controls another person (the "second person"), without the second person’s consent—
- (a)in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or
- (b)by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or a child, if the second person or the child is entirely or predominantly dependent on the first person for financial support to meet those living expenses.
Examples—
• coercing a person to relinquish control over assets and income
• removing or keeping a person’s property without the person’s consent, or threatening to do so
• disposing of property owned by a person, or owned jointly with a person, against the person’s wishes and without lawful excuse
• without lawful excuse, preventing a person from having access to joint financial assets for the purposes of meeting normal household expenses
• preventing a person from seeking or keeping employment
• coercing a person to claim social security payments
• coercing a person to sign a power of attorney that would enable the person’s finances to be managed by another person
• coercing a person to sign a contract for the purchase of goods or services
• coercing a person to sign a contract for the provision of finance, a loan or credit
• coercing a person to sign a contract of guarantee
• coercing a person to sign any legal document for the establishment or operation of a business
- [69]From these provisions it can be seen that, in this case, the Magistrate could have been satisfied the appellant committed an act of domestic violence if the Magistrate thought it was more probable than not that he:
- (a)Harassed or offended the first respondent by preventing her from keeping connections with the child; or
- (b)Unreasonably controlled the first respondent in a way that denied her financial autonomy; or
- (c)Otherwise behaved towards the first respondent in a way that was threatening or coercive.
- [70]In his reasons, the Magistrate set out why he was not inclined to accept the evidence of the appellant. This included the appellant’s ridiculous claim that the first respondent deliberately had nightmares to antagonise, something that the Magistrate rightly concluded seriously undermined the appellant’s credibility. The position did not improve in the balance of the cross-examination.[35] The finding as to the appellant’s credit was, sensibly, not challenged in the appeal. The Magistrate analysed the first respondent’s contentions, indicating that he did not accept all that she alleged. But the Magistrate was satisfied that the appellant withheld the child, used his knowledge of the first respondent’s background to manipulate her and kept intimate images of the first respondent, threatening to use them in other court proceedings. These were findings that were supported by the evidence. Proof of the appellant’s threats to use the intimate images he retained came from his own evidence. Support for the finding that he withheld the child in a manner that was manipulative is also found in the appellant’s own messages. In these he claimed that a Centrelink form detailing a change in child-care arrangements amounted to the first respondent releasing the child into his care. Requests by the first respondent for reasonable access to the child were immediately rebuffed by the appellant. The appellant maintained at the hearing that the only way he would let the first respondent see the child was at the park under his supervision. It is clear to me that his conduct was intended to harass or offend the first respondent.
- [71]These findings were sufficient to enliven consideration of whether a protection order was necessary or desirable. In addition to the findings of the Magistrate, the evidence at the hearing established other domestic violence. In the appellant’s first affidavit he complained of the first respondent not taking responsibility for telephone bills. The appellant’s response was to take her a telephone store to make sure she changed billing arrangements. When the first respondent could not produce the necessary identification at the store the appellant stayed there with children until the first respondent retrieved the identification. To my mind, this was clearly controlling behaviour. As well there is the conduct of the appellant in secretly taking photographs of his penis near the first respondent as she slept. This was plainly sexually abusive.
- [72]Once these matters were established it was an inevitable conclusion that a protection order was necessary or desirable. The appellant had by his conduct demonstrated a pattern of domestic violence. There was the real prospect of future domestic violence, especially where the parties shared a child, and it was likely they would have to maintain some contact. There was no error in the Magistrate’s conclusion that a protection order should be made in favour of the first respondent.
The appellant’s attempt to introduce evidence in the appeal
- [73]The material upon which the appellant sought to rely was exhibited to his affidavit of 18 November 2020 (court document 10). This affidavit also serves as a statement of the appellant’s reasons why the evidence should have been admitted on the appeal. It is difficult to relate the exhibited material to the reasons advanced in the affidavit. The simplest approach is to identify the exhibits and explain why they were not admissible on the appeal.
Correspondence from the first respondent’s solicitor
- [74]This is exhibit “A” to the affidavit. It consists of printouts of emails in June and July 2020 raising potential objections to evidence filed by the appellant in the protection order applications. There is nothing in the emails that could possibly be relevant to the issues in the appeal.
Order made 9 September 2020 under the Family Law Act 1975 (Cth)
- [75]Exhibit “B” to the appellant’s affidavit was a copy of an order made in the Federal Circuit Court of Australia on 9 September 2020. This was a few weeks after the hearing before the Magistrate but nine days before he delivered his decision. If the existence of the order was relevant, the appellant or his lawyers could have brought it to the attention of the court. They did not do so. An obvious reason why it was not brought to the Magistrate’s attention is that the order was not relevant to any matter the Magistrate had to decide. Nor is it relevant to any issue in the appeal.
An affidavit of the first respondent filed in the Federal Circuit Court
- [76]Exhibit “C” to the appellant’s affidavit is a copy of two pages of an affidavit of the first respondent, bearing the date 11 February 2020. The asserted relevance of this document was said to be that it proved the first respondent breached a temporary protection order in favour of the appellant by “publishing” explicit photographs of him. In a sense it is correct to say that the first respondent published explicit photographs of the appellant. But she did so by exhibiting the photographs taken by the appellant, showing his penis near the appellant’s mouth and buttocks while she slept, to an affidavit filed in the family law proceeding. The appellant’s conduct in creating the images would have been a relevant matter in those proceedings, and it is hardly surprising that the first respondent would want to refer to that conduct. Any suggestion that by deposing to the images the first respondent contravened the order, much less that it amounted to an act of domestic violence against the appellant, could not be sustained. The information in the two pages of the first respondent’s affidavit was irrelevant to the matters decided by the Magistrate and to the appeal. The circumstance that the material was available to the appellant at the time of the hearing in August 2020 presents a further obstacle to his argument that it should be admitted in the appeal.
An affidavit of the appellant filed in the Federal Circuit Court
- [77]Exhibit “D” to the appellant’s affidavit was a page from one of his own affidavits filed in the Federal Circuit Court and a printout of rule 4.07 of the Federal Circuit Court Rules 2001 (Cth). Nothing in the documents was relevant to any issue in the appeal.
A further affidavit of the first respondent filed in the Federal Circuit Court
- [78]Exhibit “E” to the appellant’s affidavit is an extract from another affidavit of the first respondent filed in the Federal Circuit Court. The appellant said it amounted to a waiver by the first respondent of “sexual assault counselling privilege”. As much as I can understand the appellant’s argument, this goes to an unsuccessful application he brought in July 2020 for access to “protected counselling communication”.[36] It is sufficient to deal with this matter by noting three things. First, this was a document available to the appellant at the time he made his application, and he did not rely upon it before the Magistrate. Secondly, it was not part of the appellant’s complaints on the appeal that the decision of the Magistrate to refuse access to protected counselling communication was wrong. Thirdly, the extract from the first respondent’s affidavit would have been of no assistance in any event. There is nothing in it that even resembles a waiver of “sexual assault counselling privilege” in accordance with section 14I of the Evidence Act 1977 (Qld), which requires a clear indication, usually in writing, of the waiver of the privilege in respect of an identified document.
Other documents from the family law proceeding
- [79]Exhibits “F”, “G” and “H” to the appellant’s affidavit were reports or other material provided to the Federal Circuit Court. One is dated March 2020 (“Child Inclusive Conference Memorandum”), one July 2020 (“Family Report”) and the other May 2020 (results of hair follicle analysis in respect of the first respondent). All pre-date the hearing in August 2020 and must have been available to the appellant. There is nothing in the material that would compel the conclusion the decision of the Magistrate was wrong, and the responsibility for failing to adduce the evidence before the Magistrate rests with the appellant. None of it is admissible in the appeal.
Conclusion on the appeal
- [80]As I hope I have made clear, the appellant’s many arguments and points are not easy to decipher. This is not unusual when a litigant appears in person. I have dealt with each point to the degree that I understand it and concluded they are without merit. But I would also observe that even if there were some errors in the proceeding below, I would nevertheless have dismissed the appeal. A consideration of the evidence before the Magistrate persuades me that he was right to find there had been no acts of domestic violence by the first respondent directed to the appellant; that there had been acts of domestic violence by the appellant toward the first respondent; and that a protection order in her favour was necessary or desirable. There was no suggestion the parties were not in a “relationship” as defined in the legislation. It follows that on a review of the evidence I am satisfied the orders of the Magistrate were correct.
- [81]It was for these reasons that on 28 May 2021 I refused the appellant’s application to adduce evidence and dismissed the appeal.
Costs of the appeal
- [82]At the conclusion of the hearing the parties were directed to file written submissions concerning the costs of the appeal. The Commissioner of Police did not seek an order as to costs. The first respondent seeks costs fixed in the amount of $3,344.99. The appellant submits there should be no order as to the costs of the appeal.
- [83]The District Court has the power to make an order about the costs of the appeal. That is because the Uniform Civil Procedure Rules 1999 (Qld) applies to an appeal under the DFVPA.[37] Rule 766(1)(d), which is picked up by rule 785, permits the District Court to make “the order as to the whole or part of the costs of an appeal it considers appropriate”. The well-established principle that “costs are in the discretion of the court but follow the event, unless the court orders otherwise” applies.[38] In this regard it is to be noted that the first respondent succeeded in the appeal. The appellant points to an unsuccessful application brought by the first respondent to strike out the appeal to suggest that she has not been wholly successful in the proceeding. But failing in this interlocutory skirmish does not warrant departure from the general principle.[39] The appellant raises no other point that might provide a basis for denying the first respondent her costs.
- [84]The first respondent has filed evidence as to the costs of the appeal. In the circumstances it is appropriate to make an order fixing the costs, rather than putting the parties to the expense of having them assessed. It is noted that as the first respondent’s lawyers were funded by Legal Aid Queensland any costs actually paid by the appellant will be refunded to them.
- [85]For these reasons I make the further order that the appellant is to pay the first respondent’s costs of the appeal fixed in the amount of $3,344.99.
Footnotes
[1]There were two respondents to the appeal, WER and the Commissioner of Police. While the applications were ‘private’ applications and the Commissioner was not involved at first instance, the Commissioner exercised her statutory right to appear in the appeal pursuant to section 167 of the DFVPA. Written submissions were filed on the Commissioner’s behalf and a legal officer appeared at the hearing of the appeal.
[2]The grounds in the application number eight but the first ‘ground’ is simply a recitation that the appeal was brought pursuant to section 164 of the DFVPA.
[3]R v Hodges [2018] QCA 92; [2019] 1 Qd R 172, [21].
[4]The first respondent also filed an affidavit on 10 October 2019, but this was not relied upon by her at the hearing.
[5]Page 12 to exhibit B to the appellant’s affidavit of 17 September 2019.
[6]T.1-7.11.
[7]Page 13 to exhibit C to the appellant’s affidavit of 17 September 2019.
[8]T.1-7.23-T.1-8.5.
[9]T.1-9.21-35.
[10]T.1-9.37-40.
[11]T.1-10.43-46.
[12]T.1-12.39-43.
[13]T.1-14.1-8.
[14]T.1-19.33.
[15]T.1-21.10-40.
[16]T.1-22.10-20.
[17]T.1-25.1-8.
[18]T.1-25.35-T.1-26.13.
[19]T.1-27.29-39.
[20]T.1-40.8-17.
[21]T.1-33-T.1-34.
[22]T.1-34.40-46.
[23]T.1-35.1-10.
[24]T.1-39.25.
[25]Exhibit E to his affidavit of 17 September 2019.
[26]T.1-57.1-3.
[27]I note that at several points the Magistrate, with justification, queried the relevance of the cross-examination, indicating that the issue he was concerned with related to the specific allegations of domestic violence. In making this observation I intend no criticism of the solicitor appearing for the appellant, who was appeared to be doing their best with a difficult brief.
[28]DFVPA, section 41C.
[29]DFVPA, section 34.
[30]R v McCosker [2011] 2 Qd R 139; [2010] QCA 52.
[31]DFVPR, Part 5, Division 4.
[32]R v Spizzirri [2001] 2 Qd R 686, [7] and [24]. That case concerned access to material that had been returned under subpoena. I am prepared to assume the principles discussed in the decision apply to an application to issue a subpoena under the DFVPA, though there may be an argument that the requirement to apply to the court (rather than asking a registrar as is the usual case in criminal matters) implies the parliament intended there be a higher bar.
[33]R v Lawrence [2002] 2 Qd R 400.
[34]DFVPA, section 145.
[35]See paragraphs [23] to [25] above.
[36]See Evidence Act 1977 (Qld), Part 2, Division 2A.
[37]DFVPA, section 142(2). See also MNT v MEE [2020] QDC 100, [6]-[11].
[38]John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199, [8] (citing Sequel Drill & Blast P/L v Whitsunday Crushers P/L (No 2) [2009] QCA 239).
[39]John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199, [10].