KKW v Queensland Police Service
[2024] QDC 43
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- Unreported Judgment
- KKW v Queensland Police Service[2024] QDC 43
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KKW v Queensland Police Service[2024] QDC 43
KKW v Queensland Police Service[2024] QDC 43
DISTRICT COURT OF QUEENSLAND
CITATION: | KKW v Queensland Police Service [2024] QDC 43 |
PARTIES: | KKW (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 303/23 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 4 March 2024 |
DELIVERED AT: | Southport District Court (ex tempore) |
HEARING DATE: | 4 March 2024 |
JUDGES: | Judge Porter KC |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – Appeal – general principles – Where the appellant mother appeals the whole of those orders made by the learned magistrate at trial – Where the notice of appeal does not properly articulate any ground for error in the learned magistrate’s decision – Where the material relied on did not reveal an error in the learned magistrate’s judgment, nor unfairness in the conduct of the trial. APPEAL AND NEW TRIAL – Procedure – Queensland – Where the appeal is vexatious and had no prospects of success – Where the appeal was repetitive and involved exaggeration of scurrilous allegations – Where the appeal was an abuse of process. |
SOLICITORS: | Appellant appeared in person. K Morrison of QPS Legal Services on behalf of the Respondent. |
Background
- [1]From about 2010 to about 2015, the cross-applicants were in a relationship. There were two children of that relationship. Following the end of the relationship, the parties had difficulties in their shared parental duties. Family Court proceedings commenced in about 2018. They resolved by final orders in September 2022. Those orders gave custody to the father and limited contact rights to the mother. A recovery order was made by a Family Court Registrar in December 2022 against the mother, because of which the final orders were varied in February 2023.
- [2]Those varied orders which ended contact between the children and the mother, sadly. The appeal of the February varied orders was dismissed in July 2023. As I said, the effect of the September 2022 orders was, in broad terms, to give parental responsibilities to the father with limited access rights for the mother. The effect of the varied orders in December 2022, made after the recovery order, was as I said, to cut off contact with the mother.
- [3]The father’s application for a protection order was filed on 8 September 2021. It was commenced by the Commissioner as applicant. That application was stayed pending resolution of the Family Court proceedings. Following the September 2022 orders, the Commissioner and the father sought to progress the protection order application of the father. At about that time, the mother filed her own domestic violence application against the father. The children and the father’s current wife are also named persons in the father’s application.
The trial
- [4]On 5 and 17 October 2023, the learned Magistrate heard the cross-applications for protection orders. The allegations of domestic violence which were made each against the other were summarised in her Honour’s reasons. In short, the father alleged conduct of the mother amounting to domestic violence that was emotionally or psychologically abusive conduct. In broad terms, it involved making false allegations by the mother that the father was going to prison, was abusing the children, was engaged in misconduct in the identification and treatment of health problems with the children and was involved in various frauds. It is unnecessary to recite the details further.
- [5]The mother’s application alleged, in effect, that the many heinous acts she alleged against the father were true and amounted to domestic violence. She also alleged that the father was harassing her with vexatious, repetitive litigation. She also added various allegations going to the father’s character, and the conduct of him and of his wife, which did not amount to allegations of domestic violence, but were simply attacks on their character.
- [6]The trial was heard on the 5th of October 2023. Both parties read affidavit evidence. At the trial, the mother had the opportunity to cross-examine the father, the investigating officer, and the father’s wife. There was no cross-examination of the mother on her cross application.
- [7]The mother’s cross-examination of the investigating officer focused on impugning the competence and impartiality of the investigation of the countervailing complaints of domestic violence. The cross-examination was singularly ineffective in doing so. The mother was permitted by the Magistrate to cross-examine with considerable freedom, despite few of the questions being proper questions. Many speeches and suggestions of highly improbable or plainly false events (such as the children’s advocates in Family Court proceedings being arrested) occurred. However, cross-examination continued until the mother said she was finished.
- [8]There was no challenge in the mother’s cross-examination to any of the factual allegations relied upon to make good the allegations of domestic violence by the father, nor to the documents relied upon by the officer in making her decision to issue the police protection notice and to press the father’s application for a protection order. The father was also cross-examined by the mother. The cross-examination of the father continued in a similar style to that adopted with the investigating officer, with the mother struggling to put various improbable allegations to the father. One included that Judge Cassidy made certain orders in the Family Court, while at the same time telling the parties they did not need to comply with those orders.
- [9]It was notable that despite the improbability of the suggestions in cross-examination, the learned Magistrate went to some lengths investigating assertions from the bar table by the mother that there was evidence of a NDIS investigation into a particular doctor. Ultimately, the mother conceded, at least before her Honour, that she had no evidence of that allegation.
- [10]Her Honour intervened frequently in the mother’s cross-examination. However, those interventions were in the context of her Honour’s wish to limit the cross-examination to relevant matters. A review of the cross-examination transcript reveals that, on the occasional moment when proper questions were asked, her Honour did not intervene. On those occasions, the mother had the opportunity to put questions going to credit as well as to the issues.
- [11]The gravamen of suggestions and speeches in the cross-examination by the mother was that the father was responsible for misconduct, abusive and unlawful conduct, and criminal conduct of one kind or another. No evidence to sustain those allegations beyond the bare assertion was produced. There was considerable evidence to the contrary.
Her Honour’s Reasons
- [12]Her Honour gave comprehensive oral reasons on 17 December 2023 after hearing from both parties. Her Honour outlined the allegations of harassment made by the father, and the allegations of domestic violence alleged by the mother. Her Honour referred to the Family Court proceedings and observed correctly, in my respectful view, that most of the allegations made by the mother against the father in the trial of the domestic violence application before her Honour - including that of criminal conduct, abuse of the children of various kinds, including physical and mental abuse, were considered in detail by the learned Judge in the substantive Family Court proceedings and rejected. Her Honour noted the orders made in the Family Court. She rightly observed they were relevant to the determination of the applications. She also considered the reasons for both judgments, particularly the extensive reasons given for the September 2022 orders.
- [13]Her Honour found that the mother’s conduct towards the father amounted to harassment. She rejected the allegations made against the father as unsubstantiated. Her Honour also found, correctly in my view, that the way the mother conducted the trial constituted further harassment of the father. Her Honour concluded as follows:[1]
HER HONOUR: Stop interrupting – and no – and despite no other agency delivering findings against [the father]. I am satisfied on the balance of probabilities that [the mother] has committed ongoing acts of domestic violence against Ms – [the father] by way of harassment. I do not need to consider which of the parties is the person most in need of protection because it is clear on the evidence that [the father] is the only person against whom, in my view, domestic violence has been committed. I now turn to whether it is necessary or desirable for a protection order to be made to protect [the father] and his family – sorry, [the father] and whether his family should be protected.
I’ve considered, as I have said, the factors set out in section 4. Necessary or desirable is a very wide and general power that the high courts have held should be construed in a similarly liberal manner. I have had regard to the guidance provided in the three-stage process to this issue in MDE v MLG & Queensland Police Service [2015] QDC 151, starting from paragraph 51. I am required to access the risk of future domestic violence between the parties in the absence of an order. Taking into account the harassing allegations in this court which have already been the subject of consideration and decision in the Federal Circuit and Family Court and despite the findings of Judge Cassidy, the aggrieved has persisted with many of the same allegations in this court.
She’s continued to prosecute her allegations at the hearing earlier this month. She has foreshadowed and, indeed, already commenced her next round of litigation in the Federal Circuit and Family Court. [The mother] has not, in my view, at any stage demonstrated an understanding of the impact of her conduct on [the father] and his family. There is no evidence of remorse or of [the mother] undergoing medical treatment or psychological counselling to reduce the risk of similar future domestic violence. There are, in my view, no other relevant circumstances.
I’m satisfied, on the balance of probabilities, that there is a risk and significant risk of future harassment of the same type in future. I need to assess the need to protect [the father] from domestic violence by harassment in the absence of an order and that the need for that protection must be a real one. [The father] and his family now live at a location not known to [the mother], has already stated she considers – as a result, she considers her children to be missing persons despite the current Federal Circuit and Family Court order upheld on appeal that the children spend no time with the mother and have no contact whatsoever with the mother.
She’s previously threatened to involve police when she was unable to contact her children and, in my view, may do so again, alleging that they are missing persons. She’s persisted, as I’ve said, with this application in circumstances where, in my view, it has only been entirely – her application has not only been entirely without merit, but has provided evidence of harassment, of the harassment alleged against her. I’m satisfied on the balance of probabilities that a protection order is necessary to protect [the father] and also his wife, who has been the subject of serious unsubstantiated allegations in these proceedings, even if she does not have contact with [the mother]. I make a final protection order.
- [14]Her Honour made a protection order in favour of the father, including a non-contact order, subject only to contact in accordance with Family Court orders. She dismissed the cross-application of the mother. The mother appeals the whole of those orders.
The Appeal
- [15]The mother relies on her notice of appeal and Court Documents 2 and 3. To a degree, the affidavits and the outlines articulate arguments in favour of her appeal. They also include numerous extravagant and ridiculous allegations of paedophile rings, criminal conduct and the like directed at professional people who have been involved in her legal and personal dealings with the father, including Judges of the Federal Circuit and Family Court. The Commissioner relies on her outline of submissions. Before me was also the transcript of the trial, Her Honour’s reasons, and the exhibits that were put before her.
- [16]I turn to the mother’s notice of appeal. The document does not properly articulate any ground for error in her Honour’s decision. The Commissioner’s representative made an admirable attempt to put the grounds into some intelligible order. Her effort was as good as any. To the extent the appeal seeks to raise the points which were attempted to be distilled by the QPS submissions, I agree in the submissions made. Quite apart from their submissions on the notice of appeal, I have read the whole of the material and transcript of the hearing. I have identified no error in her Honour’s judgment nor unfairness in the conduct of the trial, rather, the contrary. I have also independently formed the view, for what it is worth, that on that material, her Honour’s judgment was correct, and the orders were properly made. I dismiss the appeal.
Manner in which appeal was conducted
- [17]I add these comments. The mother’s allegations against everyone involved in this matter are, at least in respect of many of the people, a fantasy. I note one example of how the mother can take one irrelevant fact and turn it into grist for the mill of extravagant allegations. She seems to have heard of proceedings involving a Judge of the Federal Circuit and Family Court who had some involvement in her own Family Court proceedings. She managed, in a misconceived and fanciful way, to turn this into a belief that the relevant Judge was being removed from the Family Court, or protecting paedophiles, or some other silly suggestion. That is an example of the gulf between reality and the assertions being made in this appeal.
- [18]Whether the mother is responsible for her own actions and behaviour in these proceedings might be open to doubt. However, at present, there is no sufficient evidence before me to conclude that she does not bear responsibility for her actions or that she does not have capacity to initiated and conduct proceedings.
- [19]Those actions have reached the stage of the most egregious abuse of Court processes. One aspect of this abuse of Court process calls for specific mention. These domestic violence proceedings involved, in many respects, re-litigation of allegations against the father by the mother which were heard and determined by Judge Cassidy’s considered judgment in the September 2022 judgment. Those allegations were subject to a full hearing before her Honour. It might be debated whether her Honour’s judgment gives rise to issue estoppels in the formal sense in respect of those matters (that is, the allegations against the father), given the capacity for final orders involving children to be reopened in Family Court proceedings, as occurred just a few months later.
- [20]However, it seems to me that even if formal judgment estoppels do not arise as a matter of law, it was, at the least, arguably an abuse of process to seek to re-litigate those factual matters after a full hearing resulted in their rejection. In my view, any further litigation of those same matters by the mother will likely be an abuse of process of whatever Court it occurs.
- [21]This appeal is vexatious. It had no prospects of success. It involved repetition and exaggeration of scurrilous allegations. It is also an abuse of process. I have explained to the mother that this appeal is the end of her rights of appeal in relation to the domestic violence order. There is no appeal from this Court in respect of its decision on the correctness of her Honour’s judgment and orders. Whatever the mother might think about that outcome, she must now obey the orders made by the learned Magistrate. Failure to do so is likely to result in criminal proceedings for breaching the orders, which can lead to conviction and, in an appropriate case, a jail sentence. I say that to bring home to the mother the seriousness of the situation.
Footnotes
[1]TS1-14.7 to .6.