KT v CT[2024] QDC 196

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 31 March 2021 following a contested hearing in the Magistrates Court at Southport, a protection order was made naming the present appellant as the respondent and the present respondent as the aggrieved.^[1]  The Magistrate considered whether the duration of the order should be less than five years, but her Honour was not satisfied that there were reasons for doing so.^[2]  Accordingly, the protection order continues in force to and including 30 March 2026.
2. [2]
   On 31 October 2023, the appellant filed an application in the Magistrates Court at Coolangatta seeking a variation of the protection order.^[3]  The appellant sought the following variation:

“I would like to have the full protection order cancelled/void-removed in full.”

3. [3]
   The appellant indicated that she wished to vary the duration of the protection order so that it ended on 11 November 2023.
4. [4]
   The application for variation of the protection order was dismissed on 16 February 2024.

Grounds of appeal

5. [5]
   By notice of appeal filed on 15 March 2024, the appellant appeals against the dismissal of the application for variation of the protection order on the following grounds:

1. The Magistrate erred in failing to give the appellant a reasonable opportunity to consider and respond to the summary dismissal raised by the Court of its own motion.

2. The Magistrate erred in finding that, taking the appellant’s material at its highest, it did not enliven the Court’s jurisdiction to vary the order made after a hearing on the merits.

6. [6]
   At the hearing of the appeal on 19 August 2024, the appellant filed an amended notice of appeal correcting a typographical error in her surname and deleting a proposed order that the respondent pay the costs of the appeal.
7. [7]
   Having regard to the appellant’s argument that the summary dismissal of her application involved a denial of procedural fairness, it became apparent that it would be necessary to consider the procedural history of the matter, particularly in relation to an appearance on 19 January 2024.  The matter was adjourned for further hearing on 7 November 2024 to enable a transcript of that appearance to be obtained. 

Factual background

8. [8]
   The appellant is the respondent’s mother.  The respondent has three children. 
9. [9]
   At the hearing in 2021, the Magistrate was satisfied that a protection order was desirable to protect the respondent from domestic violence.^[4]
10. [10]
    The Magistrate noted that the appellant had not contravened the protection order, but nevertheless concluded that in the absence of an order there was “a sufficiently significant risk of future domestic family violence by way of at least emotional or psychological abuse.”^[5]
11. [11]
    The order contained the mandatory condition that the appellant be of good behaviour towards the respondent and not commit domestic violence against her.^[6]  The order also contained a restriction on contact between the appellant and the respondent.

Procedural history

12. [12]
    The application for variation of the protection order first came before the Magistrates Court at Coolangatta on 17 November 2023.  The matter was adjourned to 8 December 2023 to enable the respondent to obtain legal advice. 
13. [13]
    On 8 December 2023, the appellant was represented by a solicitor.  The respondent appeared on her own behalf.  According to the notes on the Magistrates Court file, the appellant’s solicitor indicated that she had only just been retained and acknowledged that there was a “deficit” in the material.  The appellant’s solicitor apparently pressed in strong terms for a “hearing and directions”.  Further, the notes on the Magistrates Court file indicate that the respondent was “retraumatised” by the proceedings and did not consent to any variation of the protection order.  The matter was adjourned to 19 January 2024.
14. [14]
    On 12 January 2024, the appellant filed an affidavit in support of her application.  The appellant said that she was making the application as she believed that the protection order was “no longer necessary and desirable to protect the aggrieved.”^[7] She said that there had been no breaches of the protection order which had been fully complied with.^[8]  The appellant said that she had no contact with the respondent whatsoever.^[9]  She said that she had closed all forms of social media and blocked the respondent from them.^[10]  The appellant said she had sought counselling to assist her in making sense of the breakdown of the relationship with the respondent and understanding what constituted domestic violence and the effects of it.^[11]  The appellant had also completed a program with a strong domestic violence focus.^[12]
15. [15]
    The appellant said:

1. “14.
   I am seeking to have the order ended earlier than the five (5) year period as I am desirous of being a foster carer. To be approved, I must undergo rigorous screening and assessment process, including a criminal background check, reference checks and interviews. Even though I do not have a criminal record, I am concerned that having a domestic violence order against me would hamper my success as a Foster Carer.”

16. [16]
    On 19 January 2024, the Magistrate said that she had received the appellant’s material. Her Honour said that she had ordered the transcript of proceedings on 31 March 2021 because it was important to understand the basis of the decision. The matter was adjourned to 16 February 2024.

Dismissal of the application on 16 February 2024

17. [17]
    The matter was listed for mention on 16 February 2024.  The parties were represented by solicitors.
18. [18]
    The Magistrate referred to the transcript of the decision made on 31 March 2021 and expressed the view that having considered the appellant’s affidavit, she was not satisfied that there was a reason for varying the order.^[13]
19. [19]
    The Magistrate pointed out that it was less than three years into the five year period that the Magistrate, having considered all of the evidence, regarded as appropriate.^[14]  The Magistrate then observed:

“The fact that there are no breaches of the order does not undermine the reasons for the making of the order.  The applicant for variations says there’s been no contact in the interim, that she’s closed all social media accounts and blocked her from some and deleted all contact material and continues to live in New South Wales.  She sought counselling.”

20. [20]
    The Magistrate referred to the appellant’s desire to be a foster carer but expressed the view that there was no reason to go behind the Magistrate’s considered reasons.
21. [21]
    The appellant’s solicitor enquired whether the Magistrate was intending to determine the matter on the papers rather than listing it for hearing.  The Magistrate indicated that she was not proposing to list the matter for hearing and said that taking the appellant’s case at its highest, her Honour did not think the appellant could succeed in obtaining a variation.^[15]
22. [22]
    The Magistrate went on to say:

“It was a decision made after careful consideration of the evidence and the reasons are made clear in the transcript.  There is nothing in your client’s material that undermines the reasons for the making of those orders.  So yes, I’m inclined to dismiss the application on the basis that taking your client’s evidence at its highest it is not sufficient to enliven the Court’s jurisdiction to vary an order made after a hearing on the merits and given the findings made by the presiding Magistrate.  And I’m also concerned that the aggrieved has indicated to this Court in her communications to the Court and through her legal representative that she is finding this – the – to have to revisit the issue, which was litigated over a very long time, traumatic in and of itself.  And I think it’s important that this Court not act in a way that will potentially further traumatise the aggrieved in light of the findings made by the Court.”^[16]

23. [23]
    The appellant’s solicitor stated that it appeared that the Magistrate had already determined the matter and that the application would be dismissed.  The Magistrate responded that she had indicated what she thought she needed to do, but was not depriving the appellant’s solicitor of the opportunity to be heard.^[17]
24. [24]
    The appellant’s solicitor then submitted that it would be appropriate for the respondent to file material in reply and that the matter be litigated at a hearing where evidence could be given.  It was submitted that the Magistrate would then have the opportunity to assess the credibility and reliability of the witnesses.^[18]
25. [25]
    The Magistrate then formally dismissed the application stating that she was concerned that further litigation would further traumatise the aggrieved.  The Magistrate expressed the view that she was satisfied there was an ongoing risk of domestic violence and that “it would be inappropriate to essentially act to repeal an order made after consideration of the merits …”^[19]

Appellant’s submissions

26. [26]
    The appellant submitted that there is no express provision in the Domestic and Family Violence Protection Act 2012 (the Act) authorising a court to summarily dismiss an application.  The appellant relied on the observation of Porter KC, DCJ in Wylie v AMN^[20] that whilst a court may decide that a proceeding is an abuse of process without either party raising the issue, a court should proceed with “particular circumspection” before doing so.
27. [27]
    The appellant submitted that neither party was given the opportunity to file additional material or make “fulsome submissions” on the points raised by the Magistrate.  It was submitted that the appearance of the parties by an unreliable phone connection only added to the difficulties.  It was therefore submitted that the appellant was denied procedural fairness in not having the matter considered fully on its merits.
28. [28]
    It was submitted that the appellant’s right to a fair hearing under s 31 Human Rights Act 2019 (HRA) was breached.

Respondent’s submissions

29. [29]
    The respondent submitted that the Magistrate heard and decided the matter by considering the following material:

• The appellant’s application for variation of the protection order filed 31 October 2023;
• The appellant’s affidavit filed on 12 January 2024; and
• The transcript of proceedings on 31 March 2021.

30. [30]
    The respondent submitted that the Magistrate invited the appellant to make submissions as to why the application should not be dismissed and the appellant’s legal representative took that opportunity.  The Magistrate also considered the respondent’s expressed wishes, which the Court was required to take into account under s 92(2)(a) of the Act.
31. [31]
    The respondent submitted that the appellant was afforded procedural fairness.

Consideration

32. [32]
    The appellant’s right of appeal is conferred by s 164(b) of the Act.  The Police Commissioner has a right to appear and be heard on the hearing of an appeal.^[21]  The Police Commissioner advised the Court and the parties by email dated 21 May 2024 that he did not wish to be heard.
33. [33]
    The appeal is to be decided on the evidence and proceedings before the Magistrates Court unless the appellate court orders that it be heard afresh.^[22]
34. [34]
    For the reasons that follow, the appellant was not denied procedural fairness and the Magistrate was correct to dismiss the application for variation of the protection order.  In the circumstances the appeal must be dismissed.
35. [35]
    On 8 December 2023, the appellant’s solicitor acknowledged that there was a “deficit” in the material and a direction was given that any material relied upon in support of the application be filed by 12 January 2024.
36. [36]
    In accordance with the direction to file material, the appellant filed her affidavit setting out the grounds upon which she relied.  The grounds upon which the appellant sought to have the protection order varied were essentially that she had complied with the order made on 31 March 2021, had participated in courses and had a desire to become a foster carer.
37. [37]
    The matter was to be determined in accordance with the main objects of the Act set out in s 3 and the principles for administering the Act in s 4.  One of the main objects of the Act in s 3(1) is to maximise the wellbeing of people who fear domestic violence and minimise disruption to their lives. Section 3(1)(a) provides:

1. “3
   Main Objects

1. (1)
   The main objects of this Act are -

1. to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives;”

38. [38]
    The principles for administering the Act include: 

1. “4
   Principles for administering Act

1. This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

2. Subject to subsection (1), this Act is also to be administered under the following principles –

1. people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;

2. to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;

…”

39. [39]
    In OSE v HAN^[23] Byrne QC, DCJ accepted that a court hearing an application for a protection order has an implied power to summarily dismiss the proceeding on the basis of a lack of evidence capable of supporting the order sought.  However his Honour added that:

“The power is however not unrestrained, and the occasion to exercise it will be relatively infrequent.”^[24]

40. [40]
    Whether a proceeding under the Act should be determined without witnesses being called and cross-examined will depend on all of the circumstances of the case.^[25]
41. [41]
    In Condon v Pompano Pty Ltd^[26] the plurality (Hayne, Crennan, Kiefel and Bell JJ) said:

1. “156
   The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed [Re Minister for Immigration and Multi-Cultural and Indigenous Affairs; Ex parte Lam^[27]] in the context of administrative decision-making but in terms which have more general and immediate application, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.”

42. [42]
    In Roberts v Harkness^[28] the Victorian Court of Appeal (Maxwell P, Beach and Niall JJA) said:

1. “48
   It is an essential requirement of a fair hearing that each party be given a ‘reasonable opportunity’ of presenting its case, whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.

1. 49
   Axiomatically, what is ‘reasonable’ for this purpose will depend on the circumstances of the case.  Matters to be taken into account in determining the practical content of fairness in the particular case will include:

• the nature of the decision to be made;

• the nature and complexity of the issues in dispute;

• the nature and complexity of the submissions which the party wishes to advance;

• the significance to that party of an adverse decision (what is at stake); and

• the competing demands on the time and resources of the court or tribunal.”

43. [43]
    The Court has power to vary a domestic violence order under s 91 of the Act which provides:

1. “91
   When court can vary domestic violence order

1. A court may vary a domestic violence order—

1. on an application to vary it; or

2. on its own initiative under section 42 or 43.

2. Before it varies a domestic violence order, the court must consider—

1. the grounds set out in the application for the protection order; and

2. the findings of the court that made the domestic violence order.

…”

44. [44]
    Where the Court considers that a variation to a domestic violence order may adversely affect the safety, protection or wellbeing of the aggrieved, the Court is required to have regard to the matters set out in s 92 of the Act which provides:

1. “92
   Considerations of court when variation may adversely affect aggrieved or named person

1. This section applies if the court considers that a variation proposed to be made to a domestic violence order may adversely affect the safety, protection or wellbeing of the aggrieved or any named person.

Examples of variations that may adversely affect the safety, protection or wellbeing of a person—

• a variation to reduce the duration of an order

• a variation to remove a condition of an order

• a variation to remove a named person from an order

2. In considering whether to make the variation, the court must have regard to—

1. any expressed wishes of the aggrieved or named person; and

2. any current contact between the aggrieved or named person and the respondent; and

3. whether any pressure has been applied, or threat has been made, to the aggrieved or named person by the respondent or someone else for the respondent; and

4. the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount; and

5. any other relevant matter.

3. The court may vary the order only if the court considers—

1. the safety, protection or wellbeing of the aggrieved or the named person would not be adversely affected by the variation; and

2. if the variation is to reduce the duration of the order – there are reasons for doing so.”

45. [45]
    An example of a variation that may adversely affect the safety, protection or wellbeing of a person which is set out in s 92(1) is a variation to reduce the duration of an order.
46. [46]
    The factors that were particularly relevant were the respondent’s indication that she did not consent to a variation of the protection order^[29] and the principle that the safety protection and wellbeing of people who fear domestic violence is paramount.^[30]
47. [47]
    The Magistrate considered the application by taking the appellant’s evidence “at its highest”. Contrary to the submission made by the appellant’s solicitor to the Magistrate, it was not necessary for the respondent to file material or for any assessment of credibility or reliability of witnesses.
48. [48]
    The Magistrate correctly recognised that compliance with a protection order does not undermine the reasons that the order was made in the first place.
49. [49]
    It was by no means clear that termination of the protection order would in any way increase the appellant’s prospects of becoming a foster carer.
50. [50]
    The appellant was afforded the opportunity of addressing the issues on the application.  Accordingly the appellant was afforded procedural fairness and the appeal should be dismissed.

Orders

51. [51]
    I therefore make the following orders:

1. Appeal dismissed.
2. Confirm the order made by the Magistrates Court at Coolangatta on 16 February 2024.
3. The appellant pay the respondent’s costs of the appeal to be assessed on the standard basis.