DBZ v CBZ[2023] QDC 201

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal pursuant to section 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (Act). The appellant appeals against the order of the Magistrate of 19 October 2022 making a protection order against him and dismissing his application for a protection order (cross-application).

2. [2]
   The appellant and respondent were married but this relationship ended by about the end of 2019 or beginning of 2020. On 3 March 2020 the respondent applied for a domestic violence order and on 4 March 2020 a temporary protection order was made against the appellant. It included an outster condition and the appellant moved out of the family home.

3. [3]
   On 8 October 2020 the appellant provided a signed undertaking to be of good behaviour towards the respondent and the temporary protection order was not extended. On 16 January 2021, the appellant returned to the family home gaining access with the assistance of a locksmith and recommenced living in the family home.

4. [4]
   On 19 January 2021 the respondent lodged an application for a domestic violence order and the court made a temporary protection order with an ouster condition. The appellant lodged a cross-application on 21 January 2021 and sought a temporary protection order which the court declined to make.

5. [5]
   The hearing of the application and cross-application subject to this appeal took place over two days on 5 September 2022 and 27 September 2022. Both the appellant and the respondent were represented by Counsel. They each gave evidence and were cross-examined.

6. [6]
   The learned magistrate handed down her decision on 19 October 2022. The learned Magistrate granted the application for a protection order against the appellant determining that:

1. a relevant relationship existed;
2. the appellant committed domestic violence against the respondent and;
3. the protection order is necessary or desirable to protect the respondent from domestic violence.

7. [7]
   The learned Magistrate dismissed the appellant’s cross-application determining that whilst a relevant relationship existed, she was not satisfied that the respondent had committed domestic violence.

8. [8]
   The appellant nominates the grounds of appeal in his Notice of Appeal as:

1. The learned magistrate made errors of law, errors of fact and mixed errors of law and fact.

2. That the learned magistrate erred in the exercise of discretion:

1. by making a protection order against the appellant;

2. by not making a protection order for the protection of the appellant.

3. Such other grounds as amended upon provision of the transcript of the proceedings.

9. [9]
   The appellant filed a 1.5 page document on 17 January 2023 signed by Philip Whitehead Solicitor. It has a heading “Grounds of Appeal” and contains under the heading “grounds of appeal on question of law” seven numbered paragraphs. Next it contains, under the heading “grounds of appeal on questions of facts”, five numbered paragraphs. There is no reference to any of the documents read on the primary proceeding, the exhibits or the transcript. The appellant elected to self-represent at the hearing of the appeal.

10. [10]
    The respondent filed on 5 July 2023 an Outline of Argument. It was signed by counsel. The respondent elected to self-represent at the hearing of the appeal.

The nature of the appeal

11. [11]
    I agree with the analysis of Moynihan KC DCJ in HBY v WBI & Anor [2020] QDC 81 at [16]-[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 evidenceand 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 –

(a)  confirm the decision appealed against; or

(b)  vary the decision appealed against; or

(c)  set aside the decision and substitute another decision; or

(d)  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…”.

12. [12]
    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.

The material relied upon

13. [13]
    The following material was relied on in the application and cross-application:

1. Initiating application;

2. Cross-application filed on 21 January 2021;

3. A total of three affidavits under appellant’s hand filed on 30 November 2021 and 11 January 2022;

4. Affidavit of Sergeant Kaz filed on 25 March 2022;

5. A total of five affidavits under the respondent’s hand filed on 3 November 2021, 17 December 2021 and 20 January 2022;

6. Media exhibits of footage and other electronic material.

14. [14]
    The appellant and respondent each gave evidence and were cross-examined as was Sergeant Kaz and another police officer.

The grounds of appeal

1. The learned magistrate made errors of law, errors of fact and mixed errors of   law and fact 

15. [15]
    The respondent alleged numerous incidents of domestic violence as summarised in the decision of the Magistrate at page 3 lines 1-16. It is clear that the Magistrate did not accept aspects of both the appellant and respondent’s evidence. Ultimately, the learned Magistrate only made the express finding that the incident on 15 December 2019^[1] (the 15 December 2019 incident) constituted domestic violence as defined by the Act. As the learned Magistrate noted, the 15 December 2019 incident is independently corroborated as it was captured on CCTV. The learned Magistrate was satisfied, “taking into account the footage obtained from [name of place], that [the appellant] assaulted [the respondent] on the 15^th of December 2019 and that that assault constituted domestic violence as defined by the Act.”

16. [16]
    The appellant contends in his outline of submissions on the appeal and in oral argument that the learned judge erred in fact in assessing the appellant’s conduct in the 15 December 2019 incident as amounting to domestic violence against the respondent. In my view, there is no merit in this contention whether it be contended to be an error of law or fact. The learned Magistrate did not err. It was open to the Magistrate to make a finding that the appellant assaulted the respondent and the assault constituted domestic violence as defined by the Act. The respondent’s evidence is that the appellant wrapped his arms around her tightly to forcefully grab the paper she was holding out of her hands. Further, the appellant attempted to bite her bare back and the appellant eventually overpowered her and forced the paper out of her hands.^[2] The appellant said, in cross-examination, that he was trying to grab the paper she was holding to make a photocopy^[3] and otherwise in affidavit evidence said he was attempting to get the paper from her and strongly denied ever attempting to bite her. The appellant considered his behaviour to be “appropriate”.^[4] The CCTV footage demonstrates the appellant making physical contact with the respondent on a number of occasions. Whilst the appellant may well have had the intention of obtaining something being held by the respondent, it is clearly capable of amounting to an assault as the appellant directly applied force to the respondent without her consent and it was not raised that it was authorised, justified or excused by law. It was a protracted episode of not insignificant physical force being applied by the appellant to the respondent. The Magistrate did not expressly make a finding in relation to whether the appellant attempted to bite the respondent and, to be clear, I have proceeded on the basis most favourable to the appellant that there was no finding that the attempted biting occurred. The force applied by the appellant to the respondent was capable of amounting to domestic violence as defined in section 8 of the Act as it was behaviour by the appellant towards the respondent which was physically abusive.

17. [17]
    The remaining contention of the appellant, relevant to the making of the protection order against him, is that the Magistrate erred in law and fact in finding that it was necessary or desirable to make the protection order against him. There is no merit in this contention. The learned Magistrate properly set out the requisite law stating that she was required to weigh up the risk that domestic violence will occur in the future. She made express reference to section 4 of the Act and the decisions of GKE v EUT [2014] QDC 248 and MDE v MLG & Queensland Police Service [2015] QDC 151. The learned Magistrate determined that:

“it is necessary and desirable to make a protection order for [the respondent] taking into account the following matters. One, that [the appellant] physically assaulted [the respondent] at [place]. Two, that [the appellant] moved back into the house in January 2021 without her consent. Three, that [the appellant] gave evidence in this proceeding that he may do so again if he was not prohibited from doing so. Four, that there are ongoing disputes between the parties in relation to custody and financial matters. And finally, that they will continue to have contact due to the fact that they have three young children.”^[5]

18. [18]
    As to the factors detailed by the Magistrate by numbering adopted by the Magistrate:

1. I have already determined it was open to find that the appellant physically assaulted the respondent during the 15 December 2019 incident.

2. It was also open to find that the appellant moved back into the house in January 2021 without the respondent’s consent. The brief outline of submissions of the appellant is largely about this issue but most of what is detailed is not relevant on the appeal as the Magistrate’s finding was limited to “the appellant moved into the house in January 2021 without the respondent’s consent”. On the appellant’s own evidence, he used a locksmith to gain entrance as he no longer had keys,^[6] he knew that the respondent did not want him to move back into the home^[7] and the respondent did not agree to him doing so.^[8] It was open for the Magistrate to make the finding.

3. The appellant did give evidence that he may do so again if he wasn’t prohibited from doing so.^[9]

4. It was clearly open to the magistrate to find that there were ongoing disputes between the parties in relation to custody and financial matters and they would continue to have contact due to the young children. This is referenced and accepted in the affidavits of both parties and in their evidence.

19. [19]
    The Magistrate did not err in fact or law in determining that on the basis of the factors detailed by her, it was “necessary and desirable” to make the order. As I have already set out, the learned Magistrate set out the relevant law and then applied it to the facts as she found them to be.

20. [20]
    Turning to the dismissal of the appellant’s cross-application, the Magistrate was not satisfied that the respondent committed domestic violence. The contentions of the appellant under this ground appear to relate to findings made re the emails and an incident at the car dealership but also a general contention that the “learned trial judge erred in the fact that the judge was not satisfied that the respondent had committed acts of domestic violence”.

21. [21]
    The learned Magistrate found in the appellant’s favour determining that the respondent instigated the contact at the car dealership going there with the intention of confronting the appellant and finding that the footage of the incident is consistent with the respondent following the appellant out to the car park when he was trying to distance himself from her. The Magistrate rejected the explanation provided by the respondent of why she was at the dealership. However, the magistrate was not satisfied that there was conduct which amounted to domestic violence as defined in the legislation^[10] stating “I am not satisfied though that this was an incident of domestic violence as defined by section 37.” No reasons are provided as to why the Magistrate was not so satisfied.

22. [22]
    To my mind, this is a matter where reasons were required to be given as it is at least raised on the evidence that the incident was capable of amounting to domestic violence. The Magistrate found that the respondent, knowing that there was a temporary protection order in place against the appellant preventing him from having any contact with her, went to a public place with the intention of confronting the appellant and followed him when he was trying to distance himself from her. The incident was captured on CCTV footage and the footage also contains other conduct which is capable of supporting additional allegations of the appellant which were not mentioned by the learned magistrate in her findings. These include that the appellant was at the dealership for the purpose of picking up his car from being serviced. The respondent walked towards him “ordering that I had to leave the place immediately, screaming to the hearing of everyone there that there is a DV order against me, which I was breaching by being close to her. She also threatened to call the police. The [respondent’s] actions were distressing to me…When I walked away from the [respondent] she followed me, kept threatening and abusing me and was aggressive. It was so embarrassing and humiliating that I left the place without completing the briefing…”.^[11] It is unknown whether those additional factors were accepted by the Magistrate as there is no mention of them in the decision.  I am satisfied that the learned magistrate did err in at least failing to provide adequate reasons as to why the facts, as she found them to be, did not amount to domestic violence.

2. That the learned magistrate erred in the exercise of discretion by making a protection order against the appellant and by not making a protection order for the protection of the appellant 

23. [23]
    In my view, the learned magistrate did not err in the exercise of discretion in making a protection order against the appellant. It is clear from the decision that the learned magistrate carefully evaluated the evidence and was only satisfied to the requisite standard that the 15 December 2019 incident, which was captured on CCTV footage, amounted to domestic violence. It was open, in the exercise of discretion based on the factors detailed above and after setting out the requisite law, that it was necessary or desirable to make the order against the respondent.

24. [24]
    I have already determined that the appeal should be allowed in relation to the appellant’s cross-application pursuant to the first ground of appeal and, as such, it is not necessary to consider the second ground relevant to the cross-application in all the circumstances.

Disposition- Cross-application

25. [25]
    I have determined that the appropriate order in relation to the appellant’s cross-application is to allow the appeal and remit the cross-application to the Magistrate’s Court. I consider that to be the appropriate disposition of the appeal relating to the cross-application as this is a matter where findings of credibility must be made. As I have detailed, the Magistrate’s reasons are silent about some matters relevant to the incident at the car dealership which can only be determined by considering the credibility of the appellant and respondent’s respective evidence. That is best done by a Magistrate who hears and sees the witnesses giving evidence and, as such, the matter should be remitted to be heard by a different Magistrate I note today, also, that the respondent indicated that she wished to obtain, or at least consider obtaining, legal representation in relation to the cross-application if the appeal is allowed and urged the court to remit the matter back to the Magistrates Court.

Order

26. [26]
    The orders of the court are as follows:

1. The appeal in respect of the decision to grant the respondent a protection order against the appellant is dismissed.

2. The appeal in respect of the decision to dismiss the appellant’s application for a protection order is allowed.

3. The decision of the Magistrate to dismiss the appellant’s application for a protection order is set-aside.

4. The appellant’s application for a protection order is remitted to the Southport Magistrates Court to be re-heard before a different Magistrate.

5. There be no order as to the costs of the appeals.