CCE v CJE[2023] QDC 125

DISTRICT COURT OF QUEENSLAND

1. [1]
   By notice of appeal filed 14 February 2023, the self-represented appellant appeals against the order made in the Magistrates Court at Maroochydore on 17 January 2023, that the appellant be of good behaviour towards the first respondent and not commit domestic violence against her.  Accordingly, this is an appeal brought pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (“DFVPA”).
2. [2]
   At the hearing of this appeal on 6 July 2023, the Court made an order, pursuant to s 169(1)(c) of the DFVPA, to set aside the order made in the Magistrates Court at Maroochydore on 17 January 2023 and instead ordered that the application made by the second respondent, by police protection notice dated 11 January 2023, be dismissed.  What follows are the reasons for the making of that order.
3. [3]
   Apart from seeking relief that the decision and “all costs” be set aside, the notice of appeal contains a purported exercise of right to have this appeal “heard de novo” by this Court.  As is correctly contended for the second respondent, in reference to HBY v WBI & Anor,^[1] there is no such right provided by s 168 of the DFVPA, which rather provides for a primary position that such an appeal “must be decided on the evidence and proceedings before the court that made the decision appealed”.  The nature of such an appeal being that the powers of the appellate court are exercisable upon demonstration of some legal, factual or discretionary error in the making of the subject order.^[2]  However, there is, pursuant to s 168(2) and where it is appropriate to do so, a discretion to allow the appeal “to be heard afresh, in whole or part”.  In the current circumstances, it is unnecessary to dwell upon such a prospect. 
4. [4]
   It is apparent that the subject order made on 17 January 2023, was a consequence of proceedings effectively commenced by way of issuance of a police protection notice on 11 January 2023.^[3]  That occurred consequently to the attendance by police in respect of an altercation at the rented residence of the appellant and first respondent, her husband and children.
5. [5]
   Moreover, the order was one purportedly made, on the first return or appearance of the parties at Court and pursuant to s 51 of the DFVPA.  That provision provides a power for the making of such an order, whether or not the respondent admits to any of or all of the particulars of the application and without the necessity of satisfaction of the matters in s 37(1)(b) or (c) (for a protection order) or s 45(1)(b) (for a temporary protection order), with the court only having to be satisfied of the existence of a relevant relationship.  Here, that is adequately recognised as a mother/daughter-in-law relationship.  It may also be noted that pursuant to s 145 of the DFVPA, in such a proceeding, and apart from the provisions of the Evidence Act 1977 in respect of sexual assault counselling privilege, a court is not bound by the rules of evidence or any practices or procedures applying to courts of record, may inform itself in any way it considers appropriate, need not have the personal evidence of an aggrieved before making a domestic violence order and is only required to be satisfied of a matter on the balance of probabilities. 
6. [6]
   However, the pre-condition to any such exercise of power under s 51, is that the parties “consent to the making of the order or do not oppose the making of the order”. It is clear that this requirement is the essence of the appellant’s complaint in that her main contention is that she was unable, due to impaired hearing, to follow the proceedings below and did not give her consent or make clear any lack of opposition to the making of the order. 
7. [7]
   Whilst for the second respondent it is appropriately identified that to the extent that the appellant’s materials clarify matters, there are various complaints as to whether she was adequately provided with procedural fairness in the hearing below, it is also accepted that the essence of the complaints lies in a contention that the fundamental premise for the making of the order was not adequately satisfied.  As was noted in PR v KJ,^[4] the order may not be made unless the court is satisfied that the parties consent to it being made or at least do not oppose it being made.
8. [8]
   Accordingly, it is not necessary to dwell upon all of the complaints which are, albeit perfunctorily, made in the written materials provided by the appellant.  Neither is it necessary to dwell upon another matter noted for the second respondent, as lying in the absence of properly prepared evidence in support of the claim for any fresh hearing of the proceeding or indeed in support of the appellant’s hearing impairment.  This is because:

   1. (a)
      There is some material accompanying the notice of appeal, which on its face tends to support the contention that the appellant is subject to support under the NDIS for hearing impairment.  This included a copy of a report of an audiologist, dated 29 November 2022, confirmatory of such impairment and recommending referral for cochlear implants at a public hospital; and
   2. (b)
      It is, as the second respondent concedes, discernible from the transcription of the hearing conducted on 17 January 2023 that there is some particular difficulty in identifying any appropriate basis for the making of the order. 
9. [9]
   First, it may be observed that at the very brief hearing of the matter, it was identified that the appellant was deaf or had hearing difficulties, albeit by some unidentified person, who was then permitted to relay information to her, and ultimately, and on the critical issue, speak for her.  It was not made clear upon what basis that was permitted to occur, noting that s 146 of the DFVPA provides that “a party to a proceeding … may appear in person or be represented by a lawyer”.  Despite the Magistrate initially requesting that this person identify themself, this did not occur and was not insisted upon. 
10. [10]
    Secondly, and despite the Magistrate specifically identifying that the first respondent (aggrieved)^[5] was present at the hearing, the matter proceeded only in respect of seeking the consent of the appellant, with the order being formally made and endorsed as being made “by consent without admissions”.
11. [11]
    However, that only occurred as transcribed as follows:

SNR CONST BURRELL: [CJA]? Yep.  Just there on the blue chair.  Thank you.  So this is a police application, your Honour.  It’s – only mandatory conditions sought.  Mother, daughter – mother-in-law/daughter-in-law relationship.  Some damage to property and physical assault alleged.  No named person sought. 

HIS HONOUR: I’ve had regard to the police protection notice – good morning.  Yes, I have noted your appearance this morning, [CJA] – police protection notice, which is application made on the 11th of January 2023.  The outlined circumstances are domestic violence allegations.  It notes that both the respondent and the aggrieved are in a relevant relationship, you being the daughter-in-law of the respondent, and the necessity and desirability aspect that I need to consider is fairly stated at the bottom of page 3 of the application.  While this matter is before me, what do you have to say, [CCE], about the application made by police seeking just the mandatory condition in the order to be made for you to be of good behaviour towards the aggrieved, [CCE], and not commit domestic violence against her?

UNIDENTIFIED SPEAKER: He’s asking what – what do you think of the application, like not committing domestic violence against her.  It’s like – we’ve – we’ve moved out. 

RESPONDENT: I didn’t – I – I didn’t do anything to her.  They hit me.

HIS HONOUR: So you can proceed in a – in a couple of ways.  You can either consent to me making that final order today – without making admissions, you make that consent, and I’ll sign this order ---

UNIDENTIFIED SPEAKER: Yes ---

HIS HONOUR: --- and make this order, or the matter can be adjourned for a contested hearing ---

RESPONDENT: No, I just want ---

HIS HONOUR: --- if you oppose it.

UNIDENTIFIED SPEAKER: No ---

RESPONDENT: --- it to finish.

UNIDENTIFEID SPEAKER: --- we don’t – she doesn’t want a contested hearing.  Just sign it, so – like sign it off today.  So – yeah.

HIS HONOUR: So – alright.  So do you agree with that, [CCE]?

UNIDENTIFIED SPEAKER: Do you agree with that? With just ---

RESPONDENT: [indistinct]

UNIDENTIFIED SPEAKER: Yeah.

HIS HONOUR: Alright.  Very well.

Moreover and whatever may have been the final utterance of the appellant, it became clear as the order was then orally announced, that there was at least difficulty with any conclusion as to consent to it, by her:

HIS HONOUR: So I make that final order with your consent without admissions, [CCE], naming you as the respondent; [CJA] being the aggrieved.  And the mandatory condition under the Act is that you be of good behaviour towards the aggrieved and not commit domestic violence against her.  I make that order then.  That order shall remain in force up to and including the 17th of January 2028, with your consent, without admissions ---

RESPONDENT: What is the ---

HIS HONOUR: --- being made.

RESPONDENT: What is happening?

UNIDENTIFIED SPEAKER: So – so Honour has – he has made an order that you do not have any aggression or any – any domestic violence towards [CJA] over – till – when was it, sorry? Twenty-eight?

SNR CONST BURRELL: Five years.

UNIDENTIFIED SPEAKER: So five years.

HIS HONOUR: Five years.

UNIDENTIFIED SPEAKER: So five ---

REPSONDENT: I did not ---

UNIDENTIFIED SPEAKER: No ---

RESPONDENT: I did not do anything to her.

UNIDENTIFIED SPEAKER: Without any admission – we do not want any admission. It just gets – and that is done, and then ---

REPSONDENT: [indistinct]

HIS HONOUR: Alright.  Thank you, [CCE].

UNIDENTIFIED SPEAKER: Oh, okay.

HIS HONOUR: Thank you.  Thank you, [CJA].”

12. [12]
    Again, it is unnecessary to be concerned as to what may have been the final utterance of the respondent, as this matter differs from that considered by this Court in PR v KJ, where the appellant had been legally represented at the hearing and where at [24], it was noted that there was nothing in the conduct of the hearing “that might have alerted the magistrate to any concern as to the apparent understanding of what was occurring”.  As is appropriately conceded by the second respondent, here there is such a cloud placed over the essential condition to the making of this order that it should be set aside. 
13. [13]
    Notwithstanding any understanding that this was a matter being dealt with in a busy list of similar matters, it would have been clearly desirable for the Magistrate, in these particular circumstances, to have taken some more time to clarify a clearly articulated position from the appellant, so as to at least have a clear record of the basis upon which the Court purported to act and at the latest, before the order was perfected or formalised, as it is ultimately evidenced by the written form of order executed by the Magistrate on 17 January 2023, accompanied by a written explanation of the order, as it appears in the court file.  Such written explanation is, by s 85 of the DFVPA, required to accompany the copy of the order served on the respondent,^[6] and also that given to the aggrieved by the Court.^[7] It may be noted that such written explanation is to contain the information mentioned, respectively, in s 84(2) and (3).
14. [14]
    Section 84 provides for some particular procedural requirements in respect of dealing with applications for a domestic violence order. It is desirable to set out the entire provision:

84   Court to ensure respondent and aggrieved understand domestic violence order

1. (1)
   If a court is hearing an application for a domestic violence order, and the aggrieved or the respondent is personally before the court for the first time in relation to the application, the court must ensure that the aggrieved or respondent understands the nature, purpose and legal implications of the proceeding and of any order or ruling made by the court.

2. (2)
   If a court is about to make a domestic violence order, and the respondent is before the court, the court must ensure the respondent understands—

   1. the purpose, terms and effect of the proposed order, including, for example, that—
      1. (i)
         the order may be enforceable in other States and New Zealand without further notice to the respondent; and
      2. (ii)
         if the respondent has a weapons licence, or is a body’s representative as mentioned in the Weapons Act, section 10(3), the licence or endorsement as the body’s representative is dealt with by the Weapons Act, section 27A or 28A; and
      3. (iii)
         under the Weapons Act, section 10B, a person against whom a protection order is made can not apply for a weapons licence for a period of 5 years from the date of the order; and
      4. (iv)
         under section 83(2), a person against whom a domestic violence order is made is not exempt from the Weapons Act, despite the Weapons Act, section 2; and
      5. (v)
         the consequences of a domestic violence order, as set out in subparagraphs (ii) to (iv), can only be avoided if the respondent successfully appeals the domestic violence order; and
   2. the type of behaviour that constitutes domestic violence; and

Note—

See the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12, which define the terms domestic violence, emotional or psychological abuse and economic abuse.

3. (c)
   what may follow if the respondent contravenes the proposed order; and
4. (d)
   that the respondent may apply for a variation of the order.

3. (3)
   If a court is about to make a domestic violence order, and the aggrieved is before the court, the court must ensure the aggrieved understands—

   1. the purpose, terms and effect of the proposed order, including, for example, that the order may be enforceable in other States and New Zealand; and
   2. the type of behaviour that constitutes domestic violence; and

Note—

See the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12, which define the terms domestic violence, emotional or psychological abuse and economic abuse.

3. (c)
   what the aggrieved may do, and what may follow, if the respondent contravenes the proposed order; and
4. (d)
   that the aggrieved may apply for a variation of the order.

4. (4)
   The process that the court adopts to comply with this section may include using services of, or help from, other people to the extent the court considers appropriate.

Examples of services or help the court may consider appropriate—

1 The court may arrange for the clerk, or a public service employee at the court, to explain the order to an aggrieved or respondent.

2 A professional interpreter or the telephone interpreter service (but not a relative or friend of the aggrieved or respondent) may be used to explain the order to an aggrieved or respondent.

3 Explanatory notes prepared for aggrieveds or respondents, including non-English speakers, may be given to an aggrieved or respondent.

4 The court may arrange with a local government indigenous regional council under the Local Government Act 2009, community justice group or group of elders for someone to explain the order to an aggrieved or respondent.

5 The court may arrange with a non-government service provider for a disability case worker to explain the order to an aggrieved or respondent who has a disability.

5. (5)
   Failure to comply with this section does not invalidate or otherwise affect a domestic violence order.

Notwithstanding the provision in s 84(5), these requirements remain relevant to considerations such as procedural fairness in a hearing and as is demonstrable in this instance, serve to underscore the essential failing of the Magistrate to ensure that the basis for acting under s 51 was established, let alone understood. It is, in this respect, to be noted that in s 51(7) it is expressly declared, to remove any doubt, that s 84 does continue to apply in relation to a proceeding under that section. Further and of particular note here is the engagement of s 84(1), quite apart from the provisions of s 84(2) and (3), as this hearing was on the first return date of the application before the Court with both the aggrieved and the respondent present.

15. [15]
    An effect of s 84(4), is that the process by which a court complies with the section may be adapted to particular circumstances. The particular examples given for s 84(4)^[8] do not expressly refer to any involvement of legal representation which may be a relevant circumstance, but here there was no such issue and there was an apparently inappropriate involvement of an unidentified person who was effectively allowed to speak for the appellant, despite clear indications of difficulties as to whether he was actually representing her position at all, let alone an informed position, as appears to be a purpose of s 84.
16. [16]
    Moreover, and as the extracted transcription of the proceedings demonstrates, it is not apparent that any attention was paid to the obligations in respect of the aggrieved as well as the appellant.^[9] However, of greater significance is an understanding of further concern, in that, in accordance with s 51(3), there is an absence of apparent basis upon which there could have been any satisfaction that the aggrieved consented to the making of the order. There was certainly no adoption of the simple expediency of asking the aggrieved, so that her position was recorded.
17. [17]
    As was the position of the first respondent in this Court, she was simply never asked for her consent in the proceedings below. Further and in the conduct of the appeal hearing in this Court, it was clearly apparent that the first respondent was entirely and amicably supportive of the appellant and expressly recorded that she did not desire nor seek that a protection order be made. That issue particularly arose in the context of the second respondent’s initial contention that the power under s 169(1)(d) might be availed to set aside the order made below and to remit the matter to be further heard there. Although, in the light of what has been noted about the first respondent’s position and the circumstances to be more generally noted, below, that contention was not particularly pressed.
18. [18]
    Obviously given the emphasis in the DFVPA upon police investigation of domestic violence and the provisions enabling applications for protection orders to be made by police officers,^[10] and the ultimate absence of necessity for the consent of an aggrieved to the making of an order (except under s 51), the first respondent’s position before this Court is not necessarily determinative. However and in the circumstances and where it was also acknowledged by the first respondent that the parties were no longer residing together, these were particularly pertinent considerations in respect of assessment of the utility of remitting the matter for further hearing and particularly in respect of the prospect of any necessary finding that a protection order “is necessary or desirable to protect the aggrieved from domestic violence”.^[11]