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SK (a child) v Commissioner of Police[2023] QDC 65

Reported at (2023) 3 QDCR 92

SK (a child) v Commissioner of Police[2023] QDC 65

Reported at (2023) 3 QDCR 92

DISTRICT COURT OF QUEENSLAND

CITATION:

SK (A Child) v Commissioner of Queensland Police & Anor [2023] QDC 65

PARTIES:

SK (A CHILD)

(appellant)

v

COMMISSIONER OF QUEENSLAND POLICE

(first respondent)

v

GT (A CHILD)

(second respondent)

FILE NO:

APPEAL NO: 141/22

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mt Isa

DELIVERED ON:

17 April 2023

DELIVERED AT:

Cairns

HEARING DATE:

31 January 2023, 10 February 2023 and 1 March 2023

JUDGE:

Morzone KC, DCJ

ORDER:

  1. Appeal allowed.
  2. The protection order made in the Magistrates Court on 26 April 2022 (and subsequently amended) is set aside.
  3. The temporary protection order made in the Magistrates Court on 16 February 2022 is set aside.
  4. The application for a domestic violence order is dismissed.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE – APPEAL – temporary protection order made – proceeding set for mention – protection order made after Childrens Court Sentence proceeding – whether a magistrate has jurisdiction to make a protection order – whether the appellant was afforded procedural fairness in terms of representation and an opportunity to be heard – whether the learned magistrate provided adequate reasons for the decision – whether the children where in a “relevant relationship” being a “couple relationship” under the Act – whether a domestic violence protection order was necessary or desirable – final orders.

LEGISLATION:

Domestic and Family Violence Protection Act 2012(Qld) ss. 8(4), 142, 145(1).

Justices Act 1886 (Qld), ss 222 & 223.

Uniform Civil Procedure Rules 1999 (Qld) rr. 93(1), 95, 371.

Youth Justice Act 1992 (Qld) ss. 245(1)(a); 247(a) & (b); 128.

CASES:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.

AK v Western Australia (2008) 232 CLR 438.

Commissioner of Police v Toomer [2012] QCA 233.

Coulton v Holcombe (1986) 162 CLR 1.

DL v The Queen [2018] HCA 26.

Donne v Lewis (1805) 11 VES JUN 601.

Douglass v The Queen (2012) 290 ALR 699.

Emanuele v Australian Securities Commission (1997) 188 CLR 114.

Faulkner-Mounsey v Baird & Anor (No. 2) [2020] QDC 75.

Fox v Percy (2003) 214 CLR 118.

House v The King (1936) 55 CLR 499.

Kioa v West (1985) 159 CLR 550.

MDE v MLG & Queensland Police Service [2015] QDC 151.

Norbis v Norbis (1986) 161 CLR 513.

SCJ v ELT [2011] QDC 100.

Suttor v Gundowda Pty Limited (1950) 81 CLR 418.

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.

SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456.

Wainohu v New South Wales (2011) 243 CLR 181.

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.

COUNSEL:

K Fuller of counsel for the Appellant

EL Sully (acting Legal Officer) for the First Respondent

SOLICITORS:

Legal Aid Queensland for the Appellant

QPS Legal Unit for the First Respondent

No appearance for the Second Respondent

Introduction

  1. [1]
    The appellant, SK, who was a respondent to a protection order at 12 years old, is challenging a decision by a magistrate made on 26 April 2022 who accepted that he was in a “couple relationship” with his then 12-year-old “girlfriend” and made a protection order under the Domestic and Family Violence Protection Act 2012 (“the Act”).
  2. [2]
    The questions for determination in the appeal are:
  1. Did the magistrate have jurisdiction to make a protection order?
  2. Was the appellant afforded procedural fairness in terms of representation and an opportunity to be heard?
  3. Did the learned magistrate provide adequate reasons for the decision?
  4. Are the children in a “relevant relationship” being a “couple relationship” within the meaning of the Act?
  1. Was a domestic violence protection order necessary or desirable?
  1. [3]
    The appellant contends that the decision fails on all grounds.  That is, the magistrate did not have the requisite jurisdiction because he purported to make the order in the Childrens Court after sentencing the child; the children’s relationship lacks the mature quality of a couple relationship under the Act; the order was neither necessary nor desirable and the child was neither effectively represented nor provided an opportunity to receive advice or be heard. 
  2. [4]
    The first respondent, Commissioner of the Queensland police service carried the proceeding below and is the only active respondent in the appeal.  The aggrieved did not participate in the hearing below, and, having been put on notice of this proceeding and by correspondence from the Aboriginal and Torres Strait Islander Legal Services on her behalf, she elected not to participate in the appeal.
  3. [5]
    The Commissioner contends that the appellant had the requisite legal capacity and was competently represented; and the magistrate did have jurisdiction and sufficient evidence to make a protection order consequent upon passing a sentence for a domestic violence offence in the Childrens Court.  However, the Commissioner properly concedes that the learned magistrate failed to give proper reasoned consideration to the s 37 factors pre-requisite to the making of the order.  Consequently, it is contended that the appeal should be allowed, the order set aside, and the matter be remitted for rehearing according to law, with the temporary protection order continuing in the interim.
  4. [6]
    On my review, it seems to me that after the learned magistrate completed the Childrens Court sentence proceeding, His Honour separately heard, determined the application for a protection order in the Magistrates Court jurisdiction and endorsed the file accordingly. 
  5. [7]
    However, in my respectful opinion that hearing, and determination was premature and deeply flawed in several ways. 
  6. [8]
    Firstly, the proceeding was only set for “mention” on that day and was neither intended nor ready for a final hearing and orders.  The material consisted of the initiating application with some narrative of the circumstances attested to by the investigating police.  Nevertheless, the hearing morphed into final orders without adequate reasons. 
  7. [9]
    Secondly, the appellant child was not afforded procedural fairness due to inadequate representation absent a guardian and not being afforded any reasonable opportunity to be heard.  I do not accept that the child can be said to have retained the duty lawyer, instead the representation was effectively appointed by the court ad hoc and in the nature of amicus curiae.  After taking account of court procedures, I estimate that the child had barely 5 minutes with the duty lawyer via the video-link between the courtroom and the youth detention centre.  The appellant child did not have the benefit of a guardian or parent.  The learned magistrate proceeded as if the appellant consented to final orders, despite both parties urging the court to adjourn the hearing pending completion of the probation order.  The duty lawyer’s submissions fell well short of informed consent, and any final orders were premature and ill-founded. 
  8. [10]
    Thirdly, the reasons for the decision below were inadequate.
  9. [11]
    Fourthly, and in any event, there was and is insufficient and inadequate evidence to establish a requisite “couple relationship” between the two children.  At best, the immature relationship between the children could be colloquially described as ‘puppy love’ and falling well short of the characteristic maturity of a ‘couple relationship’ caught by the Act.
  10. [12]
    Fifthly, a domestic violence protection order is neither necessary nor desirable under the Act.  Instead, “necessary or desirable” orders were, and remain, available under the Youth Justice Act 1992, which provides appropriate safeguards and considerations pursuant to the youth justice principles.  The Childrens Court sentence proceedings may be re-opened to amend the conditions of the appellant’s probation order, but that is beyond the remit of this appellate court. 
  11. [13]
    Sixthly, in the absence of any proper and sufficient evidentiary basis for the making of a protection order – neither the temporary nor final order (as amended) should have been made, nor should the application be entertained where the Youth Justice Act 1992 caters for the circumstances.  All orders should be set aside, and the application should be dismissed.
  12. [14]
    For these reasons, the appeal is allowed, the protection order made on 26 April 2022 (as subsequently amended) is set aside, the temporary protection order made on 16 February 2022 is set aside and the application for a domestic violence order is dismissed. 

Mode of Appeal

  1. [15]
    The appeal is brought pursuant to s 164 of the Act.  In accordance with s 168(1), the appeal must be decided on the evidence and proceedings before the Magistrates Court.  That court was not bound by the rules of evidence, or any practices or procedures applying to courts of record and could inform itself in any way it considers appropriate.[1] 
  2. [16]
    Subsection 168(2) reposes discretion in this appellate court to order that the appeal be heard afresh in whole or in part.  It seems to me that this discretion may be invoked if the appellant demonstrates some legal, factual or discretionary error of the trial magistrate. 

  3. [17]
    The appeal is not a new trial to consider, as if presented for the first time, the arguments advanced.  Where a point was not taken in the trial court and evidence could have been adduced to prevent the point from succeeding, or the point requires a further trial, it cannot be taken afterwards.[2]  Otherwise, appellate courts generally tolerate new points. 
The appellant sought, without opposition, and was given leave to rely upon fresh evidence in the cognate Childrens Court sentence proceeding including the presentence psychiatrist report dated 17 September 2021, which was information known to the court below.
  4. [18]
    Section 169 of the Act provides for the powers of this court in deciding an appeal. The court may:
  1. (a)
    confirm the decision appealed against; or 

  2. (b)
    vary the decision appealed against; or 

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

  4. (d)
    set aside the decision appealed against and remit the matter to the court that made the decision. 


Litigation Guardian

  1. [19]
    A preliminary issue arose about whether litigation guardians ought be appointed for each child in this appeal, and the hearing below.
  2. [20]
    The appellant contends that litigation guardians were not required at first instance.  However, it is conceded that a litigation guardian is required in the appeal due to the application of rules 93 to 99 of the Uniform Civil Procedure Rules and leave is sought nunc pro tunc to appoint the appellant’s paternal grandmother, as his litigation guardian and to amend the proceedings accordingly.  As to the aggrieved child, the appellant argues a litigation guardian is not necessary in circumstances where she has notice and is represented and does not wish to be heard in the proceeding.
  3. [21]
    The Commissioner argues that the appellant child had relevant capacity to participate and be represented by the duty lawyer in the proceeding.  As to the appeal proceeding, the Commissioner submitted that a litigation guardian may be appointed nun pro tunc if satisfied that it is in the appellant’s interests to do so.
  4. [22]
    It seems to me that, whether the magistrate ought to have appointed a litigation guardian for the children at first instance, is now moot since I have concluded that the appellant was not afforded procedural fairness in any event.  The appellant child was not given sufficient time or capacity to understand the case against him or to retain, instruct and receive advice by a lawyer of choice.  He was not afforded an opportunity to obtain his own representation or an opportunity to be heard at first instance. 
  5. [23]
    As to this appeal, a person under a legal incapacity may start or defend a proceeding only by the person’s litigation guardian.[3]   Rules 93 to 99 Uniform Civil Procedure Rules 1999 (Qld) apply[4] and provide for litigation guardians for persons under a legal incapacity, which includes “a young person” being an individual who is under eighteen years.  Rule 95 empowers the court to appoint a litigation guardian where the interests of a party who is under a legal incapacity require it.
  6. [24]
    Both parties properly accept that a litigation guardian is in the interests of the appellant and that the court can so appoint the appellant’s grandmother nunc pro tunc pursuant to rr 371(2)(e) and 95(2) of the Rules.[5]  I agree and do so order. 

Did the magistrate have jurisdiction to make a protection order?

  1. [25]
    There is some conjecture about whether the protection order was made by the magistrate while sitting in the jurisdiction of the Childrens Court or while sitting in the Magistrates Court in Mount Isa on 26 April 2022.
  2. [26]
    That proceeding was commenced by an application made by a police officer for a domestic violence order filed in the Magistrates Court (not in the Childrens Court) on 16 February 2022, subsequent to service of a Police Protection Notice made 14 February 2022.  A temporary protection order was made by the Magistrates Court on 16 February 2022.  Whilst the file is endorsed with a representative for the appellant (as respondent), it is not clear to me if and how the appellant participated in that proceeding, since the endorsement is left blank for “RESPONDENT IN PERSON (   ) YES   (   ) NO".  The file had been managed by mentions in the Magistrates Court but at no time did the court purport to transfer the file to the Childrens Court or make any directions or other orders for hearing or even set a final hearing date in any court. 
  3. [27]
    The matter was before the court on 16 April 2022 pursuant to an order made on 12 April 2022 for further “mention” on 16 April 2022.  That was also the date when the appellant appeared for sentence in the Childrens Court.
  4. [28]
    On a review of the various court transcripts of 16 April 2022, the Magistrate’s interaction with the appellant’s matters and the relevant files reveals the following (with the children’s identity anonymised):
    1. (a)
      On 26 April 2022 from 9:42am the learned magistrate presided in the Childrens Court at Mount Isa.
    2. (b)
      The appellant’s previous sentencing hearing proceeded in the Childrens Court in respect of 31 charges comprised in Childrens Court files numbered CCM-00024237/21(4), CCM-00024045/21(8), CCM-00023220/21(1), CCM-00006114/22(9), CCM-00003245/22(5), CCM-00020758/21(0) and CCM-00002814/22(6).
    3. (c)
      The appellant appeared by way of video-link from the Cleveland Youth Detention Centre and was represented by a solicitor from the Aboriginal and Torres Staite Islander Legal Service.
    4. (d)
      Those charges are described by the appellant’s solicitor as encompassing “four main groups of offending,” including what is described as “the domestic violence offences.”  The Police Prosecutor submitted that the most serious offence was a dangerous operation of motor vehicle charge.  He had been in pre-sentence custody for 98 days.  It is tolerably clear from his Honour’s sentencing reasons delivered that day that the “domestic violence offences” involved an offence of common assault against the aggrieved which occurred on 14 February 2022, which correlates to the description in the Police Protection Notice as grounds for a protection order.
    5. (e)
      He was sentenced to a combination of Restorative Justice, Intensive Supervision and Probation Orders.  It was noted that he had previously been on probation in the past.
    6. (f)
      After completion of the sentence hearing, the learned magistrate beckoned the appellant’s solicitor to return saying “Sorry.  Come back.  Come back.  I’m sorry.  There was – there’s a DV here that I’ve got to look at as well.  I’m sorry.  Just a second.  So do you have instructions on this, Ms Jackson?” The solicitor informed the court that “I don’t have a grant of aid in relation to that. I believe Legal Aid Queensland ‑ ‑ ‑.”  Apparently perturbed by the scope of retainer, the learned magistrate turned his attention to the offer by the duty lawyer to speak with the appellant child and said, “So I’ll adjourn this or I’ll stand the DV matter down for a couple of minutes to let Mr Hannick have a chat with [K]” and his Honour seemingly provided a “spare bundle” of filed material to the duty lawyer.  His Honour explained to the appellant child: So we’ll just do that for a minute.  It’ll just save you coming back, K, if you have a chat with him now.  All right.  All right.”  The appellant’s ATSILS solicitor withdrew.
    7. (g)
      The transcript records that the Childrens Court adjourned for 8 minutes from 10:59 am to 11:07 am.
    8. (h)
      The transcription continues to record a hearing in respect of the domestic violence matter “RESUMED” from 11:07 am when the following exchange occurred between bar table and bench (with the children’s names anonymized):

MR HANNICK:   Would your Honour take the matter of [SK]?

HIS HONOUR:   Yes [SK].

MR HANNICK:  [SK].

HIS HONOUR:   Yes.  I’ve got it here.  Yes. 

MR HANNICK:   Your Honour, I’m just looking for Master [SK] to enter the courtroom.  I can perhaps begin my submissions in the absence of the – your Honour, in circumstances where the young person comes before this court at 12 years of age and where the presentence report highlighted in a sentence that the young person may have some difficulties with both understanding.  I’m in the court’s hands.  So the conditions I would seek would perhaps be a variation to the draft order presented to the court.  And that is that it in my submission would be within range for this court to make an order for this making a protection order ‑ ‑ ‑

HIS HONOUR:   Come in. 

DEFENDANT:   [indistinct]

HIS HONOUR:   It’s okay.  It’s okay.  It’s fine.  Just keep it, that’s fine.

DEFENDANT:   Sorry.

HIS HONOUR:   I thought it was food.  Is it food?  Food’s fine, yeah.

DEFENDANT:   Yeah.

MR HANNICK:   [SK] ‑ ‑ ‑

HIS HONOUR:   You can’t have the phone, that’s all.  We need your attention for a bit.

MR HANNICK:   Okay.  It would be in my submission within range for this court to make the protection order for a period of two years with the mandatory conditions.  The young person has advised me that they have no difficulty complying with the conditions as sought by my friend’s office.  If your Honour was minded to make that order in place. 

HIS HONOUR:   I am – for the reasons you have mentioned and maybe we have to come back another day and I understand you have kind of stepped into this at the last minute.  But the reasons you’ve mentioned about the, perhaps, the lack of capacity, those issues kind of push strongly towards making the order as well and making it as simple as possible.  And my inclination would be to make a very short order, maybe, a nine-month order.

MR HANNICK:   That seems appropriate.

HIS HONOUR:   But I would have the no contact condition in there because I don’t think there’s the emotional maturity ‑ ‑ ‑

MR HANNICK:   No.  I ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ to manage that and the nine months might allow for the programs that have been mentioned in the earlier proceedings to take place and nine months would not be too long for a child.  It might mean he might learn some things in the meantime.  Does that make sense?

MR HANNICK:   That does.

HIS HONOUR:   All right.  Thank you, your Honour.  I understand that’s my concern.

DEFENDANT:   Yeah.

HIS HONOUR:   All right.  And Sergeant, any submission on that?   So, the idea would be this is the victim of the bodily harm, and my proposal is that or what I have discussed with Mr Hannick is a nine month order with no contact with her.  And then he’s got various programs that he’s doing one of which is Men’s Behaviour.  And that nine months is a very long time for a 12 year old and that would be the plan that he either give the – it would give him something to aim towards.

MS COOPER:   Sorry, your Honour.  Sorry, would you be able to unmute Sergeant Longhurst?

HIS HONOUR:   Unmute Sergeant Longhurst, yes.

ASSOCIATE:   He’s not on mute.

HIS HONOUR:   He’s not on mute.

SGT D.L. LONGHURST:   Thank you, your Honour.  Can your Honour hear me?

HIS HONOUR:   I can, yes.

SGT LONGHURST:   Thank you, your Honour.  May it please the court, Sergeant Longhurst, initials D.L. appearing on behalf of police prosecutions in this closed court matter.  Your Honour, the issue is doesn’t it fall on his participation in the program.  I mean, it’s – he’s alleged – well, not alleged to, he pled guilty to inflicting bodily harm on a child and your Honour’s looking at making a nine-month order on the basis of a young person who doesn’t have a great history of complying with orders on the basis that he will comply with this order and actively engage.  I am not against – I am not for 12-year-olds having orders, I think they’re just bound to fail.  But I don’t know whether at this point in time your Honour would be satisfied under the Act that nine months on that premise on a hypothetical that he actually engages fulfils that necessity.  I don’t know whether it’s best off adjourning it for nine months and if he does comply, I will withdraw the order and then there’s no order that’s been on him.  But I just, I don’t know how your Honour gets around in my respectful submission the necessity to protect based on a hypothetical when unfortunately, Master [K] isn’t a high contender or hasn’t shown an ability to complete programs presently.

HIS HONOUR:   Yes.  I appreciate that.  The idea is partly predicated on the fact that he’s going to be doing courses.  But the other is if he can comply with the order for nine months as a 12/13-year-old, he’ll be fine.  It’s more that.  And so, a highly protective order for a short period preventing contact and preventing him going within 50 metres.  The alternative is to adjourn it.  I’ll just ask Mr Hannick what his submissions might be on that.

MR HANNICK:   Well, yes, your Honour.  Your Honour, perhaps seeking a different period of time.  And if your Honour is minded to adjourn these matters for a period of six months, the court would be well-aware by that point from Youth Justice what the appellant’s compliance was with his orders and certainly his compliance with programs in relation to domestic violence.  The only reason I don’t submit for an adjournment of nine months is by that point these matters might be lost and certainly it’s the intention of the Youth Justice Act is made clear that matters involving children should be dealt in an expediated matter.

HIS HONOUR:   Yes.

MR HANNICK:   I think my friend’s approach is sensible and I don’t cavil with that.  And perhaps an adjournment until – I’m in the court’s hands.  September would provide ample time, in my submission.

HIS HONOUR:   I’m going to make the order. I’m going to make it for 12 months.  A slightly shorter – longer period.  But I think it just needs to be – I think it’s better if we do it.

MR HANNICK:   Okay.

HIS HONOUR:   And then we can see how it plays out.  But it will be – oh, Sergeant Longhurst, you – I shouldn’t just box on.  We can list it for a trial, I suppose.  That’s – I suppose the ball is in your court to some extent, Sergeant Longhurst.  I’ll be making either a TPO today for in those conditions to come back for a trial or I can make a protection order for 12 months in those terms. 

SGT LONGHURST:   Well, I respectfully disagree with your Honour that it’s in my court.  It’s been consented to, this order.  In any event, my submission was that my submission was that your Honour would find it difficult to satisfy under the Act to make the order in the terms your Honour proposed given it’s a hypothetical of compliance.  However, your Honour may be well against me.  I don’t seek to take it to trial.  There’s no ‑ ‑ ‑

HIS HONOUR:   Okay.

SGT LONGHURST:   ‑ ‑ ‑ there’s no argument in respect of what’s required and I certainly don’t agree that it’s in my court when there’s been consent to the matter and the question was length of period.  I ‑ ‑ ‑

HIS HONOUR:   I think the length ‑ ‑ ‑

SGT LONGHURST:   [indistinct]

HIS HONOUR:   I think the consent goes to the length and period.  So, the consent has to encapsulate the length and period as well.  So, I don’t have consent to a five-year order.  I have consented to at the start a nine-month order.  I am not getting any opposition to the 12th month.  But if you want the longer order, that’s where a trial would need to be listed.  That’s all I mean.

SGT LONGHURST:   Whilst I respectfully disagree, I don’t seek it to be listed for trial and I’m content with a 12-month order.

  1. (i)
    The transcription of the decision in respect of the domestic violence proceeding has been revised as if it immediately followed the beckoning of the ATSIL’s solicitor after the Childrens Court sentencing hearing as follows:

“Oh, sorry, come back. Come back, I’m sorry.  There’s a DV here that I’ve got to look at as well.  All right.  So the order will be a domestic violence order protecting ‘TG’.  It will be a 12-month order.  It will be the current temporary protection order which is good behaviour and no contact as well as a not go within 50 metres of her when she’s at any place.  So that is just, that is just still a no contact order, it’s just making that clear.  So, there’s no phoning and there’s no going within 50 metres and it’ll be just for a year.  And … my understanding is you will be doing courses that will help you with your behaviour.  But it’s not a condition of this, that’s a condition of something else.

And I think, the protection comes from the fact that we’ll either be back with breaches – this is the most appropriate order for now.  The only question is whether it’s long enough.  But I am satisfied it is long enough in circumstances where if he can behave himself for 12 months, we don’t have to reconsider it.  Then we would probably be out of the woods particularly between him and [T].  Thank you both for your assistance.”

  1. (j)
    The learned magistrate duly endorsed the Magistrates Court file numbered MAG-00023173/22(1) to the his Honour made a Protection Order by consent without admissions for 12 months on the condition that the appellant would not go within 50 metres of the aggrieved when she is at any place.
  1. [29]
    Since the making of the protection order on 16 April 2022, the proceeding returned to court on 20 May 2022 when the protection order was apparently varied “by consent” and “without admissions”.  Whilst the file endorsement indicates the appellant (as respondent) appeared with a representative; it is not clear to me how he participated in that proceeding.
  2. [30]
    It seems that the learned magistrates at the conclusion of the Childrens Court sentence on 16 April 2022, the learned magistrate sought to bring on the mention of the Magistrates Court file numbered MAG-00023173/22(1).  That was a separate and distinct proceeding commenced by the police application for a protection order.  The learned magistrate then completed the Childrens Court proceeding and adjourned.  His Honour later returned to deal with the application for a protection order in the Court’s general jurisdiction of the Magistrates Court.  This is consistent with the endorsement of the final orders on the Magistrates Court file numbered MAG-00023173/22(1) in consolidation of the terms of the pre-existing Temporary Protection Order.  This is despite the convenience of adding reasons for decision at the end of the revised Childrens Court sentence remarks transcript.  That is merely a matter of form and convenience.
  3. [31]
    The question arises whether the learned magistrate was seized of jurisdiction to make a protection order.
  4. [32]
    Section 26 of the Act provides for when a court can made a protection order as follows:

“26 When can a court make a protection order

A court can make a protection order if -

  1. (a)
      an application for a protection order is made to the court by any of the persons mentioned in section 25(1); or
  1. (b)
     the court convicts a person of a domestic violence offence; or
  1. (c)
     the court is the Childrens Court hearing a child protection proceeding.”
  1. [33]
    A ‘court’ is defined by section 6 of the Act to include:

“6.  Meaning of court

Court means—

  1. (a)
     if an application is made to a Magistrates Court - the Magistrates Court; or
  1. (b)
     if an application is made to a magistrate - the magistrate; or
  1. (c)
     if a court convicts a person of a domestic violence offence - the court that convicts the person; or
  1. (d)
     if the Childrens Court is hearing a child protection proceeding - the Childrens Court.”
  1. [34]
    The Commissioner contends that the application was made to the learned magistrate constituting the Childrens Court, and that his Honour was empowered to make an order pursuant to s 6(b).  I disagree, no such application was made to the magistrate instanta as contemplated by s 6(b); instead, the application was filed in, and therefore made to, the Magistrates Court.  An issue also arose about whether jurisdiction is conferred upon a Childrens Court that convicts a person of a domestic violence offence being ‘a court’ within the meaning of s 6(c).  It seems to me that the express conferral in s 6(d) of jurisdiction upon the Childrens Court for a child protection hearing militates against a broader construction of s 6(c) to include the Childrens Court.  However, given my conclusion in this case, it is unnecessary to decide that point. 
  2. [35]
    In this case, the proceeding was commenced by the filing of an application for a protection order by the investigating police officer pursuant to ss 25(1)(c) and 32(1)(c) after investigating and forming the requisite belief under s 100(2)(a) of the Act.  The application was made to the Magistrates Court; therefore, it was the Magistrates Court (constituted by the learned magistrates) that was the relevant “court” within the meaning of s 6(a) of the Act.  That court was empowered to make a protection order pursuant to s 26(a) after completion of the requisite steps and upon being satisfied of the matters in s 37 of the Act.
  3. [36]
    However, in my respectful opinion, although the Magistrates Court seized jurisdiction to determine an application for a protection order, the application in this case was doomed.

Was the appellant afforded procedural fairness in terms of representation and an opportunity to be heard?

  1. [37]
    The appellant argues he was denied procedural fairness because he was, not legally represented (beyond duty lawyer assistance) and/or was effectively left unrepresented at the hearing.  The commissioner argues that the appellant was properly represented and heard through the duty lawyer.
  2. [38]
    Section 149 of the Act promotes procedural fairness, relevantly here, to a child who is named in an application for a protection order as the respondent; and appears before a court and is not represented by a lawyer.  Sub-section 149(2) provides:

“(2)  The court may adjourn the hearing of the application if the court considers that the child has not had a reasonable opportunity to obtain representation by a lawyer.”

  1. [39]
    Further, s 31 of the Human Rights Act 2019 also requires that a party to a court proceeding has the right to a fair hearing.  Section 32(3) notes that a child charged with a criminal offence has the right to a procedure that takes account of their age.  Section 33 applies to children in the criminal process and subsection (3) requires that a child convicted of an offence must be treated in an age-appropriate way. 
  2. [40]
    The common law recognises a fundamental duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations.[6]  A reasonable opportunity to be heard “requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached”.[7]
  3. [41]
    In Kioa v West,[8] Mason J said:

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”

  1. [42]
    In my view, the learned magistrate did not seek to adjourn the hearing to a “reasonable opportunity to obtain representation by a lawyer”, in an age-appropriate way.  Instead, his Honour accepted the offer by the duty lawyer to speak with the appellant child, saying “So I’ll adjourn this, or I’ll stand the DV matter down for a couple of minutes to let Mr Hannick have a chat with [K]”.  The court then adjourned for an 8-minute recess from 10:59 am to 11:07. 
  2. [43]
    When the hearing resumed at 11:07 am, the duty lawyer started his submissions in the absence of the appellant saying, “In circumstances where the young person comes before this court at 12 years of age and where the presentence report highlighted in a sentence that the young person may have some difficulties with both understanding” and surrendered himself saying “I’m in the court’s hands.”  After the appellant returned to the hearing, the duty lawyer submitted that “It would be in my submission within range for this court to make the protection order for a period of two years with the mandatory conditions.  The young person has advised me that they have no difficulty complying with the conditions as sought by my friend’s office.  If your Honour was minded to make that order in place.” The duty lawyer then sought to placate the learned magistrate as to the term of the order. 
  3. [44]
    Whilst the duty lawyer intimated that the appellant could comply with the orders sought, his submissions emphasized the child’s cognitive capacity and his submissions fell well short of conveying the child’s consent to the order.  The police prosecutor expressed reservation about the appellant’s cognitive capacity and prospect of non-compliance pending completion of the programs within the probation order imposed in the Childrens Court sentence.  In the end, both advocates urged the court to adjourn the proceeding until completion of the probation order.
  4. [45]
    Having regard to the momentum and exchanges between all concerned, it seems lost that the proceeding was only before the court by way of “mention”.  Neither the court nor the representatives seemed to turn their minds to the prerequisite s 37 factors for the making of a protection order. 
  5. [46]
    In any event, I do not accept that the appellant was afforded a reasonable opportunity to obtain representation by a lawyer or provide informed consent to any orders.  I do not accept that the child can be said to have retained the duty lawyer, instead the representation was effectively appointed by the court ad hoc and in the nature of amicus curiae.   After accounting for the time for other parties to clear the court and return, the child had about 5 minutes with the duty lawyer.  Even so, the time was grossly insufficient for the duty lawyer to properly read the material, adequately understand the case, take appropriate instructions and give competent advice.  This was even more so, since the consultation by the duty lawyer was constrained by the need to communicate via video-link with an unfamiliar child client with a cognitive impairment and absent any support of a guardian or parental.  The appellant was a 12-year-old aboriginal child with a dysfunctional family, residing between Mount Isa and the Northern Territory.  When he was only eight months of age, his biological parents relinquished his care to his grandmother who became his cultural parent.  But he was later placed in residential care in the Mount Isa community in October 2021.  His engagement with child safety apparently ceased in February 2022; but it is intimated that he was subject of an interim child protection order at the time of the sentence.  He stopped his schooling at Grade 3, and from eight years of age he started using cannabis, alcohol and chroming.  He is supported under the National Disability Insurance Scheme.
  6. [47]
    In the psychological report (for fitness for trial) that was tendered during the sentence proceedings, Dr Yolanda Van Der Kurk opined that the appellant’s developmental age is significantly lower than his chronological age and that he had a reduced capacity for emotional regulation and had difficulties with communication and thinking.  His overall intellectual ability fell in the Extremely Low range; meaning that his overall level of cognitive ability is greater than 0.2% of children his age, and he may experience substantial difficulty in many different areas of functioning.  Likewise, his verbal comprehension skills, fluid reasoning skills and processing speed skills were each assessed as Extremely Low compared to his peers.  His visual special skills were assessed as being Low Average compared to his peers.  His working memory skills were assessed as being Very Low compared to his peers. 
  7. [48]
    In my respectful view, the proceeding to final orders was pre-mature, the short adjournment did not afford the appellant child a reasonable opportunity to obtain representation by a lawyer, and he was not afforded a reasonable opportunity to be heard.

Did the learned magistrate provide adequate reasons for the decision?

  1. [49]
    The appellant contends, and the Commissioner concedes, that the learned magistrate did not provide adequate reasons for making the protection order.
  2. [50]
    The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision"[9] 
  3. [51]
    In the absence of an express statutory provision, in a summary trial a judge is obliged to give sufficient reasons to identify the principles of law applied and the main factual findings relied upon by the judge.[10]  This serves to properly inform the parties to understand the basis for the decision including whether to exercise any rights to appeal, and correspondingly, reasons to facilitate the role of an appellate court to discharge its statutory duty on an appeal from the decision.[11]
  4. [52]
    In DL v The Queen,[12] Keane J said:

“Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict.  At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues.  Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion”.  At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion.  In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.” (references omitted)

  1. [53]
    To particularise the point, His Honour quoted with approval from AK v Western Australia,[13] where the High Court said:

“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”

  1. [54]
    The decision in respect of the domestic violence proceeding seems to follow on from the beckoning of the ATSIL’s solicitor at end of the sentencing hearing as extracted above.  Instead, the magistrate barely explains the effect of the orders to the appellant child. 
  2. [55]
    The learned magistrate did not expose sufficient reasoning to enable the parties to understand the basis for the order.   Before exercising the discretion to make a protection order, a court must be satisfied of the requisite elements prescribed under s 37 of the Act, which relevantly provides:

“(1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—

  1. (a)
     a relevant relationship exists between the aggrieved and the respondent; and 

  1. (b)
     the respondent has committed domestic violence against the aggrieved; and 

  1. (c)
     the protection order is necessary or desirable to protect the aggrieved from domestic violence. 


(2) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court—

  1. (a)
     must consider the principles mentioned in section 4; and 

  1. (b)
     may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.”

  1. [56]
    It is not clear how the learned magistrate was satisfied of the relevant facts and law about a relevant relationship, the nature and extent of domestic violence and whether the order was necessary or desirable. 
  2. [57]
    In my respectful view, the learned magistrate did not provide adequate reasons for making the protection order.

Are the children in a “relevant relationship” being a “couple relationship” within the meaning of the Act?

  1. [58]
    The application proceeded on the basis that the children were in a “couple relationship” being a relevant relationship, that is to satisfy the first element of s 37(1).
  2. [59]
    The court need only be satisfied of a matter on the balance of probabilities,[14] and the onus is on the applicant to prove that the requirements have been made out.[15]  To remove any doubt, the court can make a protection order even if the offending behaviour is not proved beyond a reasonable doubt where it may also constitute a criminal offence.[16]
  3. [60]
    Section 18 of the Act defines “couple relationship” as follows:

“18  Meaning of couple relationship

  1. (1)
    A couple relationship exists between 2 persons if the persons have or had a relationship as a couple.
  2. (2)
    In deciding whether a couple relationship exists, a court may have regard to the following -
    1. the circumstances of the relationship between the persons, including, for example –
      1. the degree of trust between the persons; and
      2. the level of each person's dependence on, and commitment to, the other person;
    2. the length of time for which the relationship has existed or did exist;
    3. the frequency of contact between the persons;
    4. the degree of intimacy between the persons.
  3. (3)
    Without limiting subsection (2), the court may consider the following factors in deciding whether a couple relationship exists-
    1. whether the trust, dependence or commitment is or was of the same level;
    2. whether 1 of the persons is or was financially dependent on the other;
    3. whether the persons jointly own or owned any property;
    4. whether the persons have or had joint bank accounts;
    5. whether the relationship involves or involved a relationship of a sexual nature;
    6. whether the relationship is or was exclusive.
  4. (4)
    A couple relationship may exist even if the court makes a negative finding in relation to any or all of the factors mentioned in subsection (3).
  5. (5)
    A couple relationship may exist between 2 persons whether the persons are of the same or a different gender.
  6. (6)
    A couple relationship does not exist merely because 2 persons date or dated each other on a number of occasions.”
  1. [61]
    It is an objective test, and the court ought not rely upon subjective perceptions of how the parties themselves view, define or describe the relationship.
  2. [62]
    The only material before the court probative of the nature and extent of the relationship between the appellant and the aggrieved is in the application for the protection order.  The application was premised on the children being in an intimate personal relationship as a couple and in reliance on the grounds set in the appendix information and belief of the officer.
  3. [63]
    As to the circumstances of the relationship between the persons, the following is stated:

“The [appellant] and aggrieved have been in an intimate personal relationship since 2020, however the month is unknown, according to the aggrieved.  The aggrieved disclosed to Police that they do not have intercourse, but they are “loved up”.  When asked, the aggrieved stated that loved up means hugging and kissing.  The aggrieved stated she calls the [appellant] her boyfriend, and the [appellant] refers to her as his girlfriend.

This information has been confirmed by Mount Isa Police on numerous occasions, when their mutual associates have advised the aggrieved and respondent ‘go together’ which means they are in a relationship, and ‘see each other’.

On the 22nd June 2021, the [appellant] disclosed to Detective Senior Constable Dean HANRAHAN that he considers himself and the aggrieved to be ‘boyfriend and girlfriend’ and that [GT] refers to him as her boyfriend. The [appellant] further disclosed they have been together for a few months and met at a mutual friend, [redacted] house at [redacted] crescent, Mount Isa.

The [appellant] stated himself and the aggrieved have kissed before and he often gives her piggy backs.  [SK] told the detective that he uses violence against her because she is a sniffer, but knows this behaviour is wrong and knows what a Domestic Violence Order is.

On the 14th February 2022, the aggrieved’s mother [redacted] told Plain Clothes Senior Constable FIELDS-MILES that she became aware of her daughter (the aggrieved) and respondent being in a relationship around Christmas 2021 when other juveniles made her aware. GEORGE stated she initially thought they were just friend’s, however caught the [appellant] sleeping beside the aggrieved one morning at their house, and subsequently kicked the [appellant] out of the residence.

PLO George LEON took up with the [appellant]’s grandmother, who confirmed they are in a relationship together, and that the [appellant] often sneaks out to be with the aggrieved.”

  1. [64]
    The length of the relationship is uncertain.  According to the aggrieved, the relationship has subsisted “since 2020, however the month is unknown”.  In contrast, her mother told police that “she became aware of her daughter (the aggrieved) and respondent being in a relationship around Christmas 2021 when other juveniles made her aware.” In further contrast, on 22 June 2021 the appellant “further disclosed they have been together for a few months and met at a mutual friend”. 
  2. [65]
    The relationship does not involve sexual intercourse or sexual acts.  The appellant’s grandmother “confirmed they are in a relationship”.  The nature and degree of intimacy between the persons is described in child-like terms, including that the ‘aggrieved disclosed … they are ““loved up”; “the aggrieved stated that loved up means hugging and kissing”; “she calls the [appellant] her boyfriend, and the [appellant] refers to her as his girlfriend”; “mutual associates have advised the aggrieved and respondent ‘go together’ which means they are in a relationship, and ‘see each other’”; “The [appellant] stated himself and the aggrieved have kissed before and he often gives her piggy backs”. 
  3. [66]
    The frequency and quality of their time together is unclear.  They have never lived together.  The appellant’s grandmother also “confirmed … that the [appellant] often sneaks out to be with the aggrieved.”  The aggrieved’s mother said that “she initially thought they were just friend’s, however caught the [appellant] sleeping beside the aggrieved one morning at their house, and subsequently kicked the [appellant] out of the residence.”  She also told police that “The aggrieved stated to Police that she had been staying at the [appellant’s] house for the last couple nights”.  The aggrieved told police that leading up to 14 February 2022 that “she had been staying at the [appellant]’s house for the last couple nights …”.  She also described that the appellant “bashes her extremely often, up to every second day.”  And when the aggrieved tried to leave the appellant’s house, he protested and was reported as saying to her “you better stay here or I’ll flog you with a stick”.
  4. [67]
    The evidence regarding the relationship at its highest falls well short of a mature, stable and enduring “couple relationship” within the meaning of s 18 of the Act.  Those legislative hallmarks reflect a relationship that is well-established beyond mere dating; it entails mutual respect, trust, communication, shared experiences, a deep understanding of one another, spending time together, mutual support and commitment, emotional intimacy and mature physical intimacy, mature emotional intimacy and commitment to a future together.  The information before the court is insufficient and inadequate evidence to establish the requisite degree of maturity in the relationship between the two children.  There is a dearth of evidence of the degree and level of trust between the children, or the level of their interdependence and commitment to each other, or frequency of contact, or exclusivity.  It can be assumed that there is no financial interdependence, or shared property ownership or bank accounts.
  5. [68]
    At best, the relationship between the children could be described as “puppy love” between two 12-year-old children characterised by childlike enchantment and naivety, with occasional, fleeting, and shallow emotional connection based on limited shared experiences, domination and immaturity.

Was a domestic violence protection order necessary or desirable?

  1. [69]
    Assuming there is the requisite relationship and domestic violence, the question is whether the protection order is necessary or desirable to protect the aggrieved from domestic violence.
  2. [70]
    The focus of this element is the paramount need for the protection of an aggrieved from domestic violence, and whether imposing a protection order is necessary or desirable to meet that need.  The use of the phrase “necessary or desirable” invokes a very wide and general power and should be construed in a similarly liberal manner to enable a court to properly respond, and, if appropriate, tailor an order to protect a person from domestic violence.  The phrase is also found, relevantly here, in the Youth Justice Act 1992.
  3. [71]
    In MDE v MLG & Queensland Police Service,[17] I set out a process to consider whether the protection order is necessary or desirable in the particular circumstances of each case to protect the aggrieved from domestic violence pursuant to s 145 of the Act.

Risk of future domestic violence between the parties in the absence of any order

  1. [72]
    Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order.  The application narrated the following matters from which the court is asked to make factual findings or draw inferences from the nature and prospect that domestic violence may occur in the future. 
    1. (a)
      During the day of 13 June 2021, the appellant grabbed the aggrieved around her neck and put her in a ‘choke hold’ multiple times.  The appellant then kneed the aggrieved to her lower body, pushed her to the ground and pinned her on the floor. This incident was in public at a church in view of community service employees.
    2. (b)
      Four days later on 17 June 2021, the appellant used a scooter to hit the aggrieved on her back, her elbow and slapped her face.  The appellant then kicked her whilst she was on the ground in public.  She was crying and was later taken to hospital.  The incident was charged as an assault occasioning bodily harm whilst armed.
    3. (c)
      Three days after on 20 June 2021, the appellant approached the aggrieved and her friend in public, and struck the aggrieved with broom handle three times to her cheek, knee and elbow. This was charged as a common assault.
    4. (d)
      Six days after that on 26 June 2021, the appellant and the aggrieved were being driven by youth workers in a bus, when the appellant assaulted and choked the aggrieved and then dragged her from the van to the footpath.  This was preceded by a prior reported incident that the appellant choked the aggrieved with a jumper at a shopping centre.  This resulted in two charges of common assault.
    5. (e)
      Then for the incident that sparked the domestic violence application, on 14 February 2022, the appellant dragged and struck the aggrieved’s head with a broom handle (described in the application as a “baseball bat”).  She needed hospital treatment and stiches.  He also threatened the aggrieved with physical violence when he was being arrested by police.  In the sentencing submissions, the appellant’s solicitor, said that the appellant “explains the aggrieved was supposed to go with him.  He accepts he got angry as he accepts he got angry (sic) as he wanted to spend time with her...”.
    6. (f)
      More generally, the aggrieved told police that the appellant holds her down so she cannot contact police and threatens to hurt her should she involve police.  She further expressed fear of the appellant when he is angry because he bashes her and takes his anger out on her but she is not fearful of him when he is happy.
  2. [73]
    Whilst the appellant expressed remorse for his actions, there is a telling history of aggression and emotional dysregulation and a tendency to resort to violent and controlling behaviour towards the aggrieved to express anger.
  3. [74]
    It is not clear how the appellant participated and complied with rehabilitative programs in the previous sentences and supervised orders for the charged domestic violent offending.  He was placed on sentence orders, including an intensive supervision order and a probation order, which could have addressed the underlying problems leading to the offences and violent offending in the first place. The appellants compliance on probation had previously been positive.  There was no specific information before the court about what, if any, domestic violence, anger management or associate programs in which he had engaged.  It is also not clear whether past engagement with Youth Justice contributed to the reduction of charged violent conduct for seven months between 26 June 2021 and 14 February 2022.
  4. [75]
    The prosecutor did caution that the appellant “isn’t a high contender or hasn’t shown an ability to complete programs presently”.  But both the duty lawyer and the prosecutor anticipated some personal deterrence and self-regulation as a result of the 9-month probation order made by the learned magistrate on the same day.  That change in circumstances, warranted consideration of his prospects of rehabilitation, medical treatment, physiological counseling under those orders .  No serious concerns were raised about the appellant’s compliance with the temporary protection order.  Although, I note that he has breached aspects of the orders subject of this appeal.
  5. [76]
    It seems to me that the nature, extent and frequency of the reported past domestic violence, which has escalated to choking offences, is strong indicia of a high risk of future domestic violence between the parties in the absence of any enforced restraint and rehabilitation.  However, by the time that the court turned to the domestic violence application, the court was appraised of the appellant’s impaired cognitive functioning and his changed circumstances consequent on the Childrens Court sentence and orders under the Youth Justice Act 1992. 

Need to protect the aggrieved from that domestic violence in the absence of any order.

  1. [77]
    Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order.
  2. [78]
    It seems to me that at the time of the hearing there was a clear and present need to protect the aggrieved from future violence, subject to the effectiveness of the Childrens Court sentence and orders under the Youth Justice Act 1992.   Relevant considerations included the parties’ future personal and familial relationships, their places of residence, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication. 
  3. [79]
    At least, it can be inferred that the current probationary orders and programs have not protected the aggrieved because the appellant has contravened the protection order the subject of this appeal. 

Whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence.

  1. [80]
    Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence, having regard to the principles in s 4(1) of the Act. 
  2. [81]
    Whilst protection of the aggrieved from domestic violence is both necessary and desirable, this is an unusual case where the imposition of a protection order under Domestic and Family Violence Protection Act 2012 is neither necessary nor desirable.  It is not necessary under the Act because orders were, and remain, available under the Youth Justice Act 1992, which provides appropriate safeguards and considerations pursuant to the youth justice principles.  It is not desirable under the Act because the scope of retraining orders, efficacy of enforcement and prospect of criminal sanction for non-compliance are all inconsistent with the youth justice principles.  Further, it is not desirable that the appellant be the subject of orders beyond his comprehension and capacity to control his emotions and reactions.
  3. [82]
    Immediately, before hearing the application for a protection order, the learned magistrate sentenced the appellant, with his consent, to a probation order for nine months.  Pursuant to s 193(1)(b) of the Youth Justice Act 1992 the appellant is obliged during the probation to:
    1. (i)
      abstain from violation of the law; and
    2. (ii)
      satisfactorily attend programs as directed by the chief executive; and
    3. (iii)
      must comply with every reasonable direction of the chief executive; and
    4. (iv)
      the child must report and receive visits as directed by the chief executive; and
    5. (v)
      notify the chief executive within two business days of any change of address, employment or school; and
    6. (vi)
      the child must not leave, or stay out of, Queensland during the probation period, without the prior approval of the chief executive.
  4. [83]
    Pursuant to s 193(2), a probation order may contain conditions that the court considers “necessary or desirable” for preventing (a) a repetition by the child of the offence in relation to which the order was made; or (b) the commission by the child of other offences.  In my view, this could include requirements to participate in relevant programs directed to regulating the appellant’s violent behaviour, cognitive and emotional development, and condition good behaviour and respectful contact with the aggrieved.
  5. [84]
    In contrast to a criminal sanction for a contravention of a domestic violence order, in the event of breach of a probation order, the Childrens Court has power to extend the period of the probation order.[18]  Otherwise, where circumstances have arisen since the order and in the interests of justice, the court may vary a requirement of the order, discharge the order, and resentence the child for the underlying offending.[19]  If warranted, the Childrens Court sentence proceeding may be re-opened if the court made a finding or order contrary to law, or failed to make a finding or order that legally should have been made, or the decision is founded on a clear factual error of substance.[20]
  6. [85]
    In my view, a well framed probation order imposed under the Youth Justice Act 1992 would satisfy both the youth justice principles regarding the appellant child under that Act and would serve to protect the aggrieved consistently with the principles in s 4(1) of the Act.  As to the safety, protection, and wellbeing of the aggrieved, who fears and has experienced domestic violence, remains paramount.  She will be treated with respect with minimal disruption to her young life.  The perpetrator appellant will be held accountable for his use of violence and its impact on the aggrieved and, he is provided with an opportunity to change.  A probation order will take account of the aggrieved’s vulnerability and characteristic as a child.  The youth justice system provides for a balanced response to the parties’ respective interaction and child status.
  7. [86]
    However, since I am not satisfied of the other pre-conditions of a relevant relationship there is no jurisdiction to make an order in any event.  And even if the requisite relationship was made out, making of a protection order under the Act was neither necessary nor desirable because “necessary or desirable” orders were, and remain, available under the Youth Justice Act 1992, which provides appropriate safeguards and considerations pursuant to the youth justice principles.

Disposition

  1. [87]
    This court ought not interfere with a protection order made in the exercise of discretion unless it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.  A mere difference of opinion about the way in which court’s discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[21]
  2. [88]
    The High Court held in House v. The King[22] that:

“It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance.”

  1. [89]
    However, for these reasons in my respectful view, the learned magistrate erred:
    1. (a)
      by proceeding to final orders without affording the appellant procedural fairness in terms of representation and an opportunity to be heard;
    2. (b)
      by not giving adequate reasons for that decision with due consideration of the factors in s 37 of the Act;
    3. (c)
      by mistaking the facts as to whether the children were in a “relevant relationship” being a “couple relationship” under the Act;
    4. (d)
      by failing to take into account some material considerations of the available orders in the Youth Justice Act, such that a domestic violence protection order was neither necessary nor desirable.
  2. [90]
    Consequently, I am bound to conclude that the protection order made on 26 April 2022 (as subsequently amended) should be set aside.
  3. [91]
    The temporary protection order made on 16 February 2022 is also dependent upon satisfaction of a requisite relevant relationship. Although the form of the evidence may be appropriate having regard to the temporary nature of the order – it is insufficient to show a ‘couple relationship’ and, therefore, must also be set aside.  For the same reasons, the application for the protection order is dismissed.

Order

  1. [92]
    For these reasons, I make the following orders:
  1. Appeal allowed.
  1. The protection order made in the Magistrates Court on 26 April 2022 (and subsequently amended) is set aside.
  2. The temporary protection order made in the Magistrates Court on 16 February 2022 is set aside.
  3. The application for a domestic violence order is dismissed.

Judge Dean P Morzone KC

Footnotes

[1]  Domestic and Family Violence Protection Act 2012, s 145(1)

[2] Suttor v Gundowda Pty Limited (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1 at 8-9 and Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [51].

[3] Uniform Civil Procedure Rules, r 93(1).

[4] Domestic and Family Violence Protection Act 2012, s 142(2).

[5] Donne v Lewis (1805) 11 VES JUN 601 at 601 [ 32 ER 1221 at 1222]. (Original footnote), as cited by Horneman-Wren SC DCJ in Faulkner-Mounsey v Baird & Anor (No. 2) [2020] QDC 75 at [37]; Emanuele v Australian Securities Commission (1997) 188 CLR 114.

[6] Kioa v West (1985) 159 CLR 550, 582.

[7]  SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, [35] per Flick J cited in SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456, [3] per Allsop CJ.

[8] Kioa v West (1985) 159 CLR 550, 582.

[9] Wainohu v New South Wales (2011) 243 CLR 181 at 215 [56]

[10]  Cf. Douglass v The Queen (2012) 290 ALR 699 at 702, [8]

[11] Justices Act 1886 (Qld), ss 222 & 223.  Cf. Douglass v The Queen (2012) 290 ALR 699 at 702, [14]

[12] DL v The Queen [2018] HCA 26 at [33].

[13] AK v Western Australia (2008) 232 CLR 438 at 468 [85] (omitting references).

[14]  Domestic and Family Violence Protection Act 2012, s 145(2)

[15]    Cf. SCJ v ELT [2011] QDC 100 at [12]

[16]  Domestic and Family Violence Protection Act 2012, s 8(4)

[17] MDE v MLG & Queensland Police Service [2015] QDC 151 at [55].

[18] Youth Justice Act 1992, 245(1)(a).

[19] Youth Justice Act 1992 (Qld), s. 247(a) & (b).

[20] Youth Justice Act 1992 (Qld), s. 128.

[21] House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519

[22] House v The King (1936) 55 CLR 499 at 504 - 505

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Editorial Notes

  • Published Case Name:

    SK (A Child) v Commissioner of Queensland Police & Anor

  • Shortened Case Name:

    SK (a child) v Commissioner of Police

  • Reported Citation:

    (2023) 3 QDCR 92

  • MNC:

    [2023] QDC 65

  • Court:

    QDC

  • Judge(s):

    Morzone KC DCJ

  • Date:

    17 Apr 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (1981) 148 C.L.R 170
2 citations
Jump To
Cite 1 - (1981) 148 C.L.R 170
Cite 2 - (1981) 148 C.L.R 170
AK v Western Australia (2008) 232 CLR 438
2 citations
Jump To
Cite 1 - (2008) 232 CLR 438
Cite 2 - (2008) 232 CLR 438
Coulton v Holcombe (1986) 162 CLR 1
2 citations
Jump To
Cite 1 - (1986) 162 CLR 1
Cite 2 - (1986) 162 CLR 1
DL v The Queen [2018] HCA 26
2 citations
Jump To
Cite 1 - [2018] HCA 26
Cite 2 - [2018] HCA 26
Donne v Lewis. [1805] 32 ER 1221
1 citation
Jump To
Cite 1 - [1805] 32 ER 1221
Douglass v The Queen (2012) 290 ALR 699
3 citations
Jump To
Cite 1 - (2012) 290 ALR 699
Cite 2 - (2012) 290 ALR 699
Cite 3 - (2012) 290 ALR 699
Emanuele v Australian Securities Commission (1997) 188 CLR 114
2 citations
Jump To
Cite 1 - (1997) 188 CLR 114
Cite 2 - (1997) 188 CLR 114
Faulkner-Mounsey v Baird (No 2) [2020] QDC 75
2 citations
Jump To
Cite 1 - [2020] QDC 75
Cite 2 - [2020] QDC 75
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
3 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Cite 3 - (1936) 55 CLR 499
Kioa v West (1985) 159 C.L.R 550
3 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Cite 3 - (1985) 159 C.L.R 550
Lawrence v Richmond (1805) 11 Ves Jun 601
2 citations
Jump To
Cite 1 - (1805) 11 Ves Jun 601
Cite 2 - (1805) 11 Ves Jun 601
MDE v MLG [2015] QDC 151
2 citations
Jump To
Cite 1 - [2015] QDC 151
Cite 2 - [2015] QDC 151
Norbis v Norbis (1986) 161 C.L.R., 513
2 citations
Jump To
Cite 1 - (1986) 161 C.L.R., 513
Cite 2 - (1986) 161 C.L.R., 513
Schache v GP No 1 Pty Ltd [2012] QCA 233
1 citation
Jump To
Cite 1 - [2012] QCA 233
SCJ v ELT [2011] QDC 100
2 citations
Jump To
Cite 1 - [2011] QDC 100
Cite 2 - [2011] QDC 100
Suttor v Gundowda Pty Ltd (1950) 81 C.L.R., 418
2 citations
Jump To
Cite 1 - (1950) 81 C.L.R., 418
Cite 2 - (1950) 81 C.L.R., 418
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
2 citations
Jump To
Cite 1 - [2013] FCAFC 80
Cite 2 - [2013] FCAFC 80
SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456
2 citations
Jump To
Cite 1 - (2015) 150 ALD 456
Cite 2 - (2015) 150 ALD 456
Wainohu v New South Wales (2011) 243 CLR 181
2 citations
Jump To
Cite 1 - (2011) 243 CLR 181
Cite 2 - (2011) 243 CLR 181
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
2 citations
Jump To
Cite 1 - (2003) 200 ALR 447
Cite 2 - (2003) 200 ALR 447

Cases Citing

Case NameFull CitationFrequency
Director of Child Protection Litigation v SGA [2023] QCHC 62 citations
FAJ v FJH [2024] QDC 232 citations
LBM v ELO [2025] QDC 1031 citation
SNW v TRD(2023) 3 QDCR 187; [2023] QDC 1493 citations
1

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