JKL v DBA [No 4][2024] QDC 65

DISTRICT COURT OF QUEENSLAND

Introduction & background

1. [1]
   The appellant appeals the summary dismissal of his application filed on the 15th of June 2023 to vary a protection order, naming him as the respondent.  The decision was handed down in the Magistrates Court at Gympie on the 13th of December last year.
2. [2]
   The history of this matter relevantly is as follows. 

1. on 20 November 2019, a final protection order was made by the Gympie Magistrates Court, which named the appellant as the respondent and the respondent as the aggrieved, and the parties’ children as named persons. 
2. the appellant appealed the making of that final protection order, and his Honour Judge Byrne KC dismissed that appeal in a decision delivered on 22 June 2020, JKL v DBA [2020] QDC 159. 
3. on 18 December 2020, the appellant filed an application to vary in the Gympie Magistrates Court.  The application sought that the final protection order be varied to remove the children as named persons. 
4. the application was heard before the Acting Magistrate in the Gympie Magistrates Court on 29 September 2021.  At that hearing, the appellant, also, sought for the final protection order to be revoked or, in the alternative, he sought for the children to be removed as named persons and for the condition prohibiting him from approaching the aggrieved be removed.  That application was dismissed on the 14th of October 2021. 
5. on 9 November 2021, the appellant filed a notice of appeal with respect to the decision made on 14 October 2021.  That appeal was heard before his Honour Judge Dearden on 13 June 2022, and his Honour dismissed the appeal in a decision dated 22 June 2022, JKL v DBA (No. 2) [2022] QDC 142.
6. on 15 June 2023, the appellant filed another application to vary the final protection order.  In that application, he asked the Court to reduce the duration of the protection order from 19 November 2024 to 1 July 2023 and to remove the five named children from the protection of the order.  On 12 July 2023, the parties were given trial directions, which included the filing of affidavit material.  On 12 September 2023, the appellant filed an affidavit in accordance with the directions.  On 24 October 2023, the respondent filed an affidavit in accordance with the directions.
7. at a mention to review the matter on 8 November 2023, the parties were present at Court, and the respondent made an oral application for the summary dismissal of the application.  The presiding Magistrate adjourned the matter for the determination of the summary dismissal application and to allow the parties to file written submissions.  His Honour handed down a decision in that regard on 13 December 2023 allowing the application for summary dismissal and summarily dismissing that application.  In the course of his judgment, his Honour noted on a number of occasions the following:

It is an abuse of process for parties to seek to reventilate and relitigate issues already determined.

And then later:

However, this does not mean that parties can re-agitate issues previously considered and determined simply because they are not satisfied with the outcome.

And then again later:

An application to vary is not and should not be an attempt to re-argue a party’s case from an earlier hearing.

3. [3]
   His Honour was correct in each of those comments, and those comments were all appropriate, given the history of this matter. 

Law as to Summary Dismissal

4. [4]
   Judges Byrne and Porter KC discussed the principles and considerations relevant to the summary dismissal of an application under the Domestic and Family Violence Protection Act 2012 (Qld).  In the decisions of OSE v HAN [2020] QDC 309 and Wylie v AMN [2022] QDC 241 respectively.  I note that in summarily dismissing the application in this matter, the Magistrate quite correctly and appropriately had regard to the caution required on an application of that nature for grounds relied upon to vary the order and consider the appellant’s material at its highest.

Grounds of Appeal

5. [5]
   The grounds of appeal as best can be discerned are: 

The Law Regarding Appeals 

6. [6]
   Section 169 of the Domestic and Family Violence Protection Act 2012 (Qld) provides for the powers of this Court on appeal.  I note that section 169(2) provides that the decision of this Court is final and conclusive.  Section 168(1) provides that an appeal must be decided on the evidence and proceedings before the Court that made the decision being appealed.  Subsection (2) provides, however, that the appellate Court may order that the appeal be heard afresh in whole or part.  Importantly, the onus is on the appellant to show that there is some error in the decision under appeal and given that the refusal to vary an order involves the exercise of discretion, an error of the kind referred to in House v The King [1936] HCA 40 needs to be demonstrated.  Furthermore, even if such an error is demonstrated, the whole of the evidence must be considered to determine whether the order was, nevertheless, justified.

Consideration

7. [7]
   Turning then to the individual grounds of appeal.

Ground 1

8. [8]
   Ground 1, that is, the appellant was not afforded procedural fairness.  There is no merit to this ground.  A similar argument has been advanced by the appellant on two prior occasions before Judge Dearden and Judge Byrne KC.  On both occasions, the argument failed, and their Honours made comments such as:

The appellant was better armed than many self-represented litigants, and he suffered no actual disadvantage –

And:

The appellant’s advocacy skills were such that he was suffering no actual disadvantage in the conduct of the appeal.

9. [9]
   The respondent has submitted that such comments are apposite here.  I agree.  In this matter, the appellant was afforded all opportunity to advance his argument as to why the matter should not have been dismissed summarily, an opportunity which he enthusiastically embraced.  He also demonstrated in oral submissions before the Court that if he has a cognitive impairment, it is very minor, and that he was not someone easily intimidated by the process or the Court or by lawyers.  Also, any alleged memory loss, which is unspecified, would have had no relevance to the Magistrate’s decision in this matter and is of no assistance to the appellant today.  Finally, I must add that the observations of Byrne KC DCJ and Dearden DCJ reflect my own observations of the appellant, and I am of the view that his lack of legal representation did not impact the outcome of the application before the Magistrate.  Legally represented or not, the material is still the material, and it is inadequate for the purposes suggested.  This ground, therefore, fails.

Ground 2

10. [10]
    This ground alleges that the police interview with the appellant was not admissible because the appellant had impaired custody, and he was threatened with incarceration by a police officer.  Unfortunately for the appellant, though, no such evidence was relied upon by the Magistrate when he decided to dismiss the application summarily to vary the order.  Consequently, this ground has no merit and must fail. 

Ground 3

11. [11]
    This ground appears to be that the Magistrate failed to consider what the appellant has called the “Australian Human Rights Act 1986”.
12. [12]
    In that regard, he relies on the cover page from the Australian Human Rights Commission Act 1986 (Cth) and extracts from the International Covenant of Civil and Political Rights.  He claims that these acts, as he refers to them, were breached because he did not have legal assistance, nor an interpreter and was dealt with arbitrarily. This appears to be almost an identical argument as that presented in Ground 1, just formulated in a slightly different way.  For that reason, my assessment of and conclusions in relation to Ground 1 also apply to this ground.  Furthermore, he demonstrably is not someone who needs an interpreter as he seems to have a fine command of the English language, notwithstanding it clearly is his second language. This ground has no merit.

Ground 4

13. [13]
    This ground relates to what the appellant has contended are errors of fact.  The first error contended is that the Magistrate proceeded on the erroneous basis that the subject application to vary was the ninth application to vary.  That is not what the Magistrate said at all.  He, in fact, said at paragraph 1 of his reasons:

It is an abuse of process for parties to seek to reventilate and relitigate issues already determined.  That is what JKL is seeking to do in his application to vary a domestic violence order, filed on 15 June 2023.  This is JKL’s ninth application or notice of appeal against the aggrieved since 2019.

14. [14]
    So, his Honour did not state that this was the appellant’s ninth application to vary, and no error of fact has been demonstrated in that passage.  The second error of fact alleged is that the Magistrate was in error when he said that the Family Court will “act judiciously”.  Not only does that comment not constitute an error of fact, the Magistrate was doing no more than repeating a comment made by Byrne KC DCJ in his decision.  The Magistrate made that quite clear by saying “as the District Court has already noted, the Family Court will act judiciously-” and then footnoting the case citation and paragraph numbers from the District Court’s decision. 
15. [15]
    There was one error of fact made by the Magistrate, though.  At paragraph 6(e), of his decision, the Magistrate incorrectly stated that the appellant had been convicted of contravening the protection order on 28 November 2023.  The correct date was 28 February 2023. 
16. [16]
    The Magistrate said:

The completion of relevant courses relates to whether it is necessary or desirable to make a protection order.  The completion certificate for the PPP Program is dated 20 February 2019 and predates the protection order.  The letter from UnitingCare is dated 1 January 2021 and predates JKL’s previous application to vary and his appeal.  It merely confirms an appointment to be assessed for suitability.

JKL has not filed any evidence on whether any of the courses referred to are approved intervention programs.  Even if they are approved and were not considered at the earlier hearing, they do not outweigh his more recent convictions of 15 November 2022 and 28 November 2023 for contravening the protection order.  The short effluxion of time since those convictions do not make it less necessary or desirable to maintain the protection without the variation sought.  Rather, those convictions support that it is necessary or desirable to continue the order, based on future risk and the future need for protection.

17. [17]
    Now, given the history and timeline of this matter, as I have already detailed, it is almost inevitable that the Magistrate’s error was typographical in nature.  That is so, given that the appellant’s history, which contained the correct date of conviction, was before the Magistrate and had been correctly referred to in the respondent’s written submissions at the time.  But even assuming it was not a typographical error, its relevance in minimal.  When assessing the weight to be attached to the completion of courses by the appellant, the Magistrate understandably and reasonably gave consideration to the fact that the appellant had twice been convicted of contravening the order since the completion of at least one course, perhaps two, and such a consideration was directly relevant to an assessment of future risk and need for protection and as to whether it was necessary or appropriate to vary the order as sought by the appellant.
18. [18]
    It is true to say, as highlighted by the appellant, that the Magistrate failed to refer to the fact that the appellant had presented evidence showing that he had recently completed a course known as Circle of Trust, for which a certificate dated 29 November 2023 is and was before the Court.  That is a course about the rights and responsibilities of being a “good enough” caregiver.  I note that there was no evidence before the Court as to whether that course was an approved interventional program, but little turns on that point.
19. [19]
    The completion of that course, particularly when one takes into account its nature and focus, is of little relevance to the determination of this appeal.  The simple fact that the appellant has twice previously been convicted of contravening the protection order at times after having completed the earlier course or courses mentioned demonstrates that the completion of another course does not necessarily result in the reduction of risk that is contended for by the appellant.  It is commendable that the appellant has completed that third course, but that is not determinative of the issue in this appeal.  For these reasons, that ground has no merit.

Ground 5

20. [20]
    Ground 5 has many sub-grounds, some of which merely repeat earlier grounds.  Dealing with them one-by-one:

1. the fact that the appellant has started a new life and family was not relevant to the issue before the Magistrate.  The order in question relates to his previous family.  I do note as well that the order which is currently in place is to remain in place until 19 November 2024.  That is a period of just under seven months from now.
2. the Magistrate demonstrably considered the application to dismiss the application to vary by taking the appellant’s material at its highest.  That material included his affidavit, filed for the purpose of an ultimate hearing, the application to vary, including the information and grounds therein and the appellant’s submissions.  No error has been demonstrated in not considering the appellant’s purported witness, who was, as I understand it, expected to give character evidence only, nor has any error been demonstrated by not explicitly stating in his decision any of the appellant’s written submissions.  His Honour clearly considered all of the appellant’s submissions and arrived at his conclusion after taking the appellant’s case at its highest. 
3. I have already dealt with the ground that the appellant was not legally represented. 
4. insofar as the appellant’s allegation is concerned that the Magistrate did not take into account the appellant’s completion of the course entitled Circle of Security.  I have already addressed that issue and;
5. contrary to the appellant’s assertion of error, the Magistrate was required, pursuant to section 91 of the Domestic and Family Violence Protection Act, to have regard to the previous applications, hearings and findings.  Even if that legislative provision did not exist, the history of the matters between these parties is highly relevant and ought be taken into account. 

21. [21]
    In conclusion, it follows that the appellant has failed in this appeal. 

Orders

2. 1.The appeal is dismissed.