KNK v MAX[2023] QDC 123

Background

1. [1]
   On 5 April 2022 the present respondent applied for a Protection Order under the Domestic and Family Violence Protection Act 2012 (“DFVP Act”) in the Holland Park Magistrates Court. That application was heard initially on 20 April 2022, at which time the acting Magistrate granted a Temporary Protection Order in favour of the present respondent and gave directions that included that the present respondent must file affidavits of each witness to be called on or before 18 May 2022, that the appellant must collect the affidavits from the Court Registry one day later, and must file any affidavits of each witness to be called in response to the application on or before 15 June 2022. The matter was listed for review on 29 June 2022 and further listed for hearing on 20 July 2022. The appellant was legally represented at that hearing. A Notice of Adjournment was issued by the Magistrate’s Court Registry, andposted to the appellant’s personal address, indicating the hearing had been adjourned to 20 July 2022.

2. [2]
   When the appellant’s legal representative attended the Registry to collect the material, only one affidavit had been filed which was from a witness and not the present respondent. It transpired that her affidavit had apparently been delivered to a liaison officer with the Queensland Police Service prior to 18 May 2022, but not given by that person to the Registry for filing until 22 May 2022. That affidavit was broadly consistent with the contents of the initial application.
3. [3]
   It is unclear what, if anything, happened on 29 June 2022. However, by the time of the hearing on 20 July 2022, no material had been filed on behalf of the appellant and neither was there any appearance at the hearing on his behalf. The Notice of Appeal refers to the failure to file any material owing to an oversight on the appellant’s solicitor’s behalf, and the failure to appear being attributable to a “diary deficiency on his solicitor’s behalf”. I will return to that matter in the course of these reasons.
4. [4]
   On 20 July 2022, the acting Magistrate accepted the present respondent’s affidavit and, in absence of any material from the appellant, granted a Protection Order in favour of the present respondent. The conditions were that:

3. “[1]
   The respondent (i.e. the appellant in this appeal) must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

3. [2]
   The respondent must be of good behaviour towards the child, must not commit associated domestic violence against the child and must not expose the child to domestic violence.”

5. [5]
   The order was imposed for five years, and the parties’ child was a named person.

6. [6]
   It is against this order that the appeal has been brought.

Grounds of appeal

7. [7]
   The grounds of appeal are:

3. “[1]
   The order was decided in the absence of the appellant at first instance, owing to a diary mistake by his legal representative, and

3. [2]
   The order was made without any affidavit material being deposed to by the aggrieved applicant (the First Respondent to this appeal), and

3. [3]
   The making of the order was neither necessary nor desirable to prevent domestic violence.”

8. [8]
   The Notice of Appeal also foreshadows an application to adduce evidence on the hearing of the appeal.

9. [9]
   The second ground is factually inaccurate, and it was not pressed on the appeal. It probably arose from the fact that the respondent’s affidavit had not been filed by the time the appellant’s legal representatives collected the material from the Registry, and they were otherwise unaware of the affidavit because there was no appearance at the hearing. As it was not pressed, I need not consider it further.

The Nature of the Appeal

10. [10]
    A person who is aggrieved by a decision to make a domestic violence order may appeal against the decision.^[1] The making of a domestic violence order includes the making of a Protection Order.^[2]
11. [11]
    This appeal is to be decided on the evidence and proceedings before the Court below, unless this Court makes an order to the contrary.^[3] In this appeal, such an application has been made. There is a broad discretion to allow further evidence to be relied upon at the hearing, however a successful application does not convert what would otherwise be an appeal conducted by way of re-hearing into a hearing de novo.
12. [12]
    The DFVP Act does not prescribe the manner in which the discretion under s 168(2) is to be exercised. I accept and adopt the observations of Moynihan QC DCJ in HBY v WBI & Anor^[4]where his Honour observed that the interpretation of the provision that best achieves the purpose of the Act is that the discretion is engaged when good reason is shown for there to be an exception made to the rule under s. 168(1). I have found helpful the examples cited by Bowskill QC DCJ (as her Honour then was) in Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors^[5].
13. [13]
    It is desirable, where possible, that good reason be deduced on the basis of accepted principles. A distinction is traditionally drawn between “fresh” and “new” evidence. Fresh evidence is admissible, in the context of a criminal appeal, where there is a significant possibility that the tribunal of fact would, in light of all admissible evidence including the fresh evidence, have acquitted. A more stringent test applies to new evidence. To be admissible it, along with all other admissible evidence, must require that the conviction be set aside to avoid a miscarriage of justice.^[6]
14. [14]
    Subject to the outcome of the application to adduce further evidence, and the extent of that evidence, the appeal before me is in the nature of an appeal by re-hearing on the record and including any additional evidence. I must consider the evidence andmake up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts.^[7]

15. [15]
    The onus is held by the appellant to show that there is some error in the decision under appeal.^[8] In establishing what amounts to error, it must be recalled that on an appeal by re-hearing, “the rights of the parties must be determined by reference to the circumstance as they then exist and by reference to the law as it then exists; the appellate court may give such judgment as ought to be given if the case at that time were before the court of first instance”.^[9]
16. [16]
    It follows that, in the absence of the admission of further evidence, actual error by the magistrate must be established. In the event further evidence is admitted, error must be established in light of all evidence now before the Court, even though it may not be shown that the Magistrate erred on the material actually before him or her.
17. [17]
    In the event that error is demonstrated, I must consider the whole of the evidence to determine whether the order made was nonetheless justified or if another order is appropriate. Section 169(1) of the DFVP Act prescribes the orders that can be made. Under s. 169(2) of the DFVP Act, the decision of this Court is final and conclusive.

Legislative framework

18. [18]
    Section 3 of the DFVP Act sets out the Main Objects of the Act. They are supported by s. 4 of the DFVP Act which sets out the principles for administering the Act. The primary principle is that the safety, protection and well-being of people who fear or experience domestic violence are paramount.^[10] Other principles include that people who experience domestic violence should be treated with respect and disruption to their lives should be minimised.^[11]
19. [19]
    Domestic violence is defined at s. 8 and includes behaviour within a relevant relationship that is emotionally or psychologically abusive, economically abusive, behaviour that is threatening, coercive or in any other way controls or dominates the other person and causes him or her to fear for their safety or well-being or that of someone else, such as a child.
20. [20]
    The term “relevant relationship” is relevantly defined for present purposes at ss. 13 to 15. It is not in dispute for the purposes of this appeal that a relevant relationship existed.

21. [21]
    “Emotional or psychological abuse” is defined at s 11 as:

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

3. One of several examples incorporated into that definition is of “repeated derogatory taunts, including racial taunts”. The use that can be made of that example is in accordance with s. 14 of the Acts Interpretation Act 1954.

22. [22]
    Section 37 provides the power to make a Protection Order, upon satisfaction that there exists a relevant relationship, that the respondent to the application has committed domestic violence against the aggrieved and that the order is necessary or desirable to protect the aggrieved from domestic violence.
23. [23]
    In deciding the issues, the Court need be satisfied on the balance of probabilities of the matter or matters in issue, and the rules of evidence do not apply.^[12] Although not bound by the rules of evidence, it is well settled that the Court’s decision must derive from relevant, reliable, and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue.^[13]
24. [24]
    A Court may hear and decide an application for a protection order in the absence of the respondent if satisfied that the respondent had been served with a copy of the application.^[14]

Factual background

25. [25]
    As far as can be gleaned from the material before both the acting Magistrate and this Court, the parties were previously in a spousal relationship. There is a child of that relationship.
26. [26]
    The application for the protection order refers to the present respondent having left the appellant some eight years ago and, she asserts, there has been animosity by him towards her ever since. It refers broadly to the use of abusive language to and about the present respondent, the infliction of emotional abuse and offensive conduct, including threats to (she says falsely) report the present respondent to Centrelink because of work she does, and to taunting her about a depressive illness she suffers. In essence, she refers to having put up with this conduct for many years but deciding that a recent incident involving abuse about the need to provide lunch to their child while the child was in the appellant’s care was the final straw, thereby resulting in the subject application.

27. [27]
    The present respondent’s affidavit was to the same broad effect as the application, but also had attached to it printouts of email messages that the present respondent contended provided support for her account. Additionally, she attests that the appellant’s conduct towards her has improved since the granting of the Temporary Protection Order.
28. [28]
    While how many is not clear, there were also one or two affidavits on the Court file at the time of the hearing from another person or persons and filed on behalf of the present respondent. They were not referred to by the acting Magistrate and are not important for present purposes.
29. [29]
    As noted earlier, there was no material before the acting Magistrate on the appellant’s behalf.

The additional evidence

30. [30]
    The application to adduce evidence is made in respect of two affidavits, one by the appellant and one by his solicitor.
31. [31]
    The solicitor’s affidavit simply testifies to the fact that it was his error that resulted in material not being filed on the appellant’s behalf and there being no appearance on the hearing date.
32. [32]
    Broadly speaking, the appellant’s affidavit purports to respond to the present respondent’s allegation paragraph by paragraph. Unusually, he has done this without the benefit of seeing the text message printouts attached to her affidavit. He either denies the alleged conduct occurred or accepts that some things were said and done, but asserts that it was in the context of shared parenting arrangements and things being said and done in the heat of the moment. Some of his assertions are undermined, and some of them considerably undermined, by the content of the text messages attached to the present respondent’s affidavit. He denies, at various parts of the affidavit, any intention to cause her harm or distress and denies “concerted” or ongoing conduct on his behalf.
33. [33]
    Also attached to his affidavit is a printout of a message trail between the two from June 2019 which he says shows that the present respondent was herself at least very assertive and that any conflict was mutual. It is said that this text trail allows a fuller picture of the relationship to be appreciated.

Consideration

34. [34]
    It is convenient to deal with the third ground of appeal first. It asserts an inability to be satisfied of the third limb of s. 37(1) of the DFVP Act. In his written submissions, the appellant also agitates an inability to be satisfied of the second limb, but in oral submissions that was explained as an acceptance that domestic violence had occurred but that it was of such a nature as to not compel a conclusion that a protection order was necessary or desirable.

35. [35]
    The acting Magistrate considered the present respondent’s affidavit and concluded that she was satisfied of both of the matters stated the three limbs of s. 37. She specifically recorded her satisfaction “that there has been emotional and psychological abuse through the sending of those text messages”.^[15]
36. [36]
    The central thrust of the appellant’s submissions is that the allegations made by the present respondent are so vague as to time and place as to mean that the acting Magistrate could not be satisfied that the making of the Protection Order was either necessary or desirable, and that term was explained by Morzone DCJ in MDE v MLG & Queensland Police Service.^[16]
37. [37]
    I cannot accept those submissions. I have reviewed the whole of the initial application and the present respondent’s affidavit, including the attached printouts of text messages. Some of the text messages are on their face dated.^[17] However the trail of messages from page 6 of the attachment to the affidavit appear to commence in April 2022, the same month the application was made. It is also consistent, when read with the application and the affidavit, as being of recent origin (as at the time of the application).
38. [38]
    While accepting that there is imprecision in the allegations made and a general vagueness about them, broadly speaking all messages, whether described by me as dated or not, provide support for the allegations she makes, and hence are supportive of her generally. Some of them are generally capable of amounting to emotional or psychological abuse, as defined, particularly when the cumulative effect of the conduct over a period of time is factored in. It was open on the uncontested material before the acting Magistrate to conclude that the present respondent suffered torment, intimidation, harassment or offence.
39. [39]
    I also consider that it was open to the acting Magistrate to conclude on the uncontested material, on the balance of probabilities, that it was either necessary or desirable for the Protection Order to be made to protect the present respondent from domestic violence, particularly when the Main Objects at s. 3 of the DFVP Act and the principles at s. 4 of the DFVP Act are given appropriate weight.
40. [40]
    The uncontested evidence was that this had been occurring over a number of years, with the inference being that it would continue if some impediment was not put in place. Further her attestation that things had gotten better since the imposition of the Temporary Protection Order is circumstantial evidence as to the at least desirability of the Protection Order being made, in light of the main objects of the Act and the principles for its administration.

41. [41]
    I note that the conditions imposed were the bare minimum that could be imposed,^[18] and I consider that was an appropriate course given the nature of the domestic violence that was accepted to have had occurred.
42. [42]
    However, it must be accepted that the allegations were somewhat vague and that my conclusion as to the sufficiency of the evidence is influenced by the fact that the allegations were unchallenged. Although the appellant’s material is far from conclusive, given the imprecise and vague nature of the present respondent’s material, it might have been that had the acting Magistrate the benefit of that sworn material that she would have reached a different conclusion.
43. [43]
    As the appellant’s affidavit constitutes new and not fresh evidence on the appeal, to be admissible it must satisfy the more stringent test referred to above. The possibility, even the significant possibility, of a different outcome will not suffice to permit the admission of the evidence.
44. [44]
    Regardless of the reason why there was no material before the acting Magistrate from the appellant, nor an appearance on his behalf, the acting Magistrate was entitled to conduct the hearing in his absence where it was proven that he had been served with a copy of the application. That latter requirement was established by the fact of his legal representation at the initial hearing on 20 April 2022, as well as an affidavit of service on the Court file. Further, the appellant’s legal representative was present when relevant dates the subject of directions and orders were allocated. The acting Magistrate was entitled to expect that they would be adhered to, if the appellant wanted to continue to contest the application and there was nothing before her to suggest any reason to suspect otherwise. He has been accorded procedural fairness, as judged in light of the legislative scheme.
45. [45]
    But the fact remains that through no fault of his own, he has become the subject of a protection order. That is a matter which must be disclosed for many types of employment and applications. It is not a matter which can now be avoided by applying for a variation of the period of the order, and it is a stain on his character and reputation of some importance in modern society.
46. [46]
    In those circumstances I am satisfied that the admission of the evidence is required to avoid a miscarriage of justice. That miscarriage of justice is the fact that he was not allowed, through no fault of his own, the opportunity to avoid the consequences of the making of a protection order against him after an assessment of the contested allegations.
47. [47]
    As that assessment will inevitably require some assessment of credibility, the proper forum is the Magistrates Court. Further, if it were to be done by this appellate Court, there would be no avenue of appeal.

48. [48]
    My conclusions should not be understood to prejudge the outcome of a remitted hearing. What is sought to be achieved is the opportunity for the appellant to put his case, regardless of what the outcome may be.
49. [49]
    It follows that I have concluded that the third ground of appeal must succeed. Accordingly, it is unnecessary to consider the first ground of appeal, although I have already observed that there was no procedural error in conducting the hearing as occurred.
50. [50]
    The effect of my findings is that the protection order was not properly made, even though there was no error on the part of the acting Magistrate, and hence there has not been a protection order made. My understanding of the operation of s. 98 of the DFVP Act is that the originally imposed temporary protection order will therefore again take effect until the application is finalised in the Magistrates Court, one way or the other. If I am wrong about that, steps should be taken to give effect to that outcome.
51. [51]
    The appellant has not sought costs. Given that the need for the appeal arose from his solicitor’s error, it would not be appropriate to burden the present respondent with such an order in any event.

Orders

52. [52]
    My orders are:

3. 1)
   The application for leave to adduce further evidence is allowed.

3. 2)
   Appeal allowed.

3. 3)
   The order of the acting Magistrate made 20 July 2022 is set aside and the matter is remitted to the Holland Park Magistrates Court for re-hearing.

3. 4)
   No order as to costs.