BE v PR[2024] QDC 70

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant appeals a decision of the Brisbane Magistrates Court made on 20 March 2024 in which it was decided that the appellant be immediately prohibited from remaining at, entering or attempting to enter, or approaching to within 100 metres of 98 W- Road, B- for a period of five years.
2. [2]
   This appeal must be decided on the evidence in proceedings before the court that made the decision being appealed although an Appellate Court may order the appeal be heard afresh and whole or in part.^[1]
3. [3]
   The parties both consented to the filing of further affidavits in this court and I admitted them into evidence^[2].

Material before the Magistrate

4. [4]
   The respondent “the aggrieved” obtained a protection order by consent in the Magistrates Court on 25 September 2023.
5. [5]
   The original protection order dated 25 September 2023 stated inter alia;

“The appellant must within 28 days allow the aggrieved to enter structures at 98 W- Road, B- in the company of a police officer to recover undisputed personal property and during such presence of the aggrieved the appellant shall not approach or remain within 10 metres of the aggrieved.”

6. [6]
   The aggrieved made an application to vary a domestic family violence order dated 24  October 2023.  In this application, she alleged that the appellant was withholding her equipment such as a crane and excavator.  It was said the Family Court was likely to give them back to her. It was alleged the appellant was going to make it more difficult for her to relocate them.  She lived more than one hour from the appellant’s location and she would “probably” get assaulted by the appellant or his family when she relocated the machines and needed an ouster order.
7. [7]
   The aggrieved filed a further affidavit on 18 November 2023.  This stated she was 34 years of age.  The appellant was 39.  She met the appellant on the Gold Coast and they started dating in about April 2020.  They moved from the Gold Coast to 98 W- Road, B- on or about October 2020.  There was one daughter aged three.  The daughter lived with her and spent supervised time with the appellant.  She alleged there was ongoing domestic violence by the appellant throughout the relationship.  She alleged they separated on 20 June 2022 and the appellant assaulted her.  He also sent her threatening and harassing text messages which were marked as annexure A.  She alleged that the appellant had been withholding her financial resources namely plant and equipment and denied access to them.  She alleged that she had been using “visa matters” to force her to sign a pre-nuptial agreement.  She refused to sign this.  He used properties as a pawn to force her to agree with his proposal in the Family Court.  The equipment is withheld by him.  On 29 November 2022, he threatened to damage her 2013 monitor platform lift.  She needed to get the equipment back to restart her life.  There had been proceedings in the Family Court of Australia.  On 1 November 2023, the appellant agreed to release her equipment unconditionally.  But he still denied access to the matrimonial property.  She owns a 25-tonne truck crane and excavator and a cherry picker.  She is in fear that she will be assaulted when she picks up her equipment.  She was asking for an exclusive occupancy order to allow her to stay on the matrimonial property for 30 days or alternatively an order requiring the appellant to allow her to go into the property to recover various items of property.
8. [8]
   The aggrieved filed a further affidavit on 11 March 2024.  She repeated her allegation of being assaulted on 20 June 2022.  She alleges the appellant threatened to sell her machinery located in the backyard.  She said on 28 February 2023 she had the chance to go to the matrimonial property with the police to collect some of her belongings but the police could not attend and she was only able to get back small personal items.  She alleged that on 14 December 2023 she and her father hired a truck to get one vehicle back but they were not allowed to enter the property.  She also went back on 3 February 2023 but had difficulty removing an excavator.  She alleges the appellant’s mother is harassing her.  She repeated the request for the orders to be made.

The hearing

9. [9]
   The matter came on for hearing before the Magistrate’s Court on 20 March 2024.  The  appellant told the Magistrate that he had tried to file an affidavit in the proceedings.  The Magistrate told him it was inappropriate that he was trying to file the affidavit so late.  The appellant told the Magistrate that the affidavit was in his phone and downstairs with the registry.  He told the Magistrate that he had been emailing the registry for a week.  The appellant tried to seek leave to file the affidavit but the police prosecutor objected to this.  The Magistrate then told the appellant that the matter was going to proceed without any evidence from him.
10. [10]
    The Magistrate refused to adjourn the hearing and refused leave to adduce oral evidence.  Also, because he was not legally represented he was not able to put questions to the aggrieved but her affidavit was taken into evidence and he was not allowed to put a contrary version of events.  The appellant tried to make submissions about his affidavit but the Magistrate said “you don’t have an affidavit.” 
11. [11]
    The appellant told the Magistrate that there were Family Court orders in place and they were on his phone. The orders were not put before the court.
12. [12]
    The appellant told the Magistrate that the aggrieved had gone to the Family Court with the same application to try to have him removed from the property but this was rejected. 
13. [13]
    The Magistrate then invited the appellant to make submissions why the order should not direct him to vacate the premises so the aggrieved and the child could live in the home.  The appellant submitted the house was always his house and he paid all the bills and the mortgage and ran his business from home so if he were removed he could not work anymore and could not keep up the repayments on the house.  He informed the Magistrate that there was a hearing date concerning parenting and property in the Family Court on 26 August 2024.  The appellant said to the Magistrate it was pointless of him making further submissions.  He tried to explain again that for well over a week he had been emailing the registry.  The appellant pointed out that when he appeared on 26 February 2024 with his solicitor he was not advised of the directions, they were given to the lawyer not him.
14. [14]
    The police prosecutor informed the Magistrate that the aggrieved was seeking to stay for 30 days to retrieve her property but the Magistrate said “but I’m trying to explain that I’m not going to stipulate an end date”.  And further “if I’m making an ouster order for the aggrieved and her child to return to the property it’s a matter for her to elect how long she stays there.” 

Decision

15. [15]
    In the reasons for decision, the Magistrate marked the various affidavits, orders and  applications exhibits.
16. [16]
    The Magistrate then referred to the allegations of domestic violence made by the aggrieved and quoted extensively from the aggrieved’s affidavit. 
17. [17]
    The Magistrate was satisfied that acts of domestic violence had occurred.  She accepted the evidence of the aggrieved that the appellant was being difficult and using control of the machines at the matrimonial property to commit further acts of domestic violence.  She was then satisfied that an ouster order which entitled the aggrieved and the child to resume occupancy of the property at Burpengary was necessary.  The Magistrate rejected submissions that the Family Court had jurisdiction concerning this matter.  The order was made.

Notice of appeal

18. [18]
    The appellant appeals the decision of the Magistrate on a number of grounds namely:

2. 1.The Magistrate erred in law in proceeding to hear the application when the Federal Circuit and Family Court of Australia (“FCFCA”) had already determined the application.
3. 2.The Magistrate erred in law in finding that the Magistrates Court had exclusive jurisdiction to entertain an ouster application.
4. 3.The Magistrate’s discretion miscarried when making a five-year ouster order because it involved the appellant being removed from his home and business whilst the aggrieved was living and working elsewhere.  It was not necessary or desirable for this to occur and was contrary to the wishes of the aggrieved and not requested by the police prosecutor.
5. 4.The Magistrate failed to accord procedural fairness in refusing to adjourn the hearing.

19. [19]
    It is submitted that the hearing should be heard afresh and on the hearing of the appeal the appellant would seek to adduce fresh evidence.

Appellant’s outline of argument

20. [20]
    The appellant submits that the Magistrate erred in determining the same application as the FCFCA.  It is submitted that the FCFCA is seized of jurisdiction in this case.  The Magistrate was told of these proceedings and the appellant correctly indicated that the aggrieved had tried to make the same application in the FCFCA.  The Magistrate failed to have any regard to the order of Judge Coates.  It is submitted there has been forum shopping in the present case by the aggrieved.
21. [21]
    It is further submitted the Magistrate erred in finding that the Magistrate’s Court was the only Court with jurisdiction to make this order.  This is contrary to s 114(2A) of the Family Law Act. This infected the decision of the Magistrate to make the order.
22. [22]
    It is further submitted the discretion to make the five-year order was so unreasonable it can be inferred that error occurred; particularly considering the appellant lives and works at the property.  Indeed, the QPS indicated to the Magistrate that the aggrieved was not seeking to take over the property.  Section 64(1) of the DFVP Act provides that the Court must consider the wishes expressed by the aggrieved.
23. [23]
    The Magistrate failed to have regard to the significant financial impacts of the order.
24. [24]
    It was also submitted that the Magistrate erred in finding that the appellant had refused leave to the aggrieved to retrieve the machinery.

The aggrieved’s outline

25. [25]
    The aggrieved in her outline does not really deal with the issues of procedural fairness raised by the appellant. 
26. [26]
    The respondent submits that she has been subjected to domestic violence ongoing before and after the relationship.  She submits that the appellant failed to comply with orders made by the court.  It is submitted that the appellant has unlawfully published documents from the Family Court.  It is submitted that the Magistrate was correct in making the ouster order.
27. [27]
    It is further submitted that the Magistrate was correct in making the five-year order.
28. [28]
    The appeal should be dismissed.

Further evidence

29. [29]
    As I indicated above further evidence has been filed.
30. [30]
    The appellant in his affidavit filed 29 April 2024 swears that he has been the registered proprietor of 98 W- Road, B- since March 2020.  He says he first met the aggrieved in April 2020 when she was here on a temporary visa from China.  She fell pregnant shortly thereafter.
31. [31]
    He alleges the aggrieved did not contribute money to the relationship.  She earnt money by regularly acquiring, repairing and on selling industrial machines which she kept for herself or transferred to her family in China.  By June 2020 there were arguments.  He alleges the aggrieved became angry and smashed a large glass plate full of food on the floor next to the child.  The argument escalated into pushing, pulling and yelling by both of them.  He denies the strangulation and punching.^[3]  He consented to a protection order in the Magistrates Court without admissions.
32. [32]
    He denies that the aggrieved is scared of him.  She has come to the home multiple times without his consent and has been caught on security cameras doing this.  He had a recording of a conversation in September 2023. 
33. [33]
    In her affidavit filed 11 March 2024, she attempted to apply for an ouster order in the FCFCA.  Exhibit D was the aggrieved’s application in that court in which indeed she applied that the appellant vacate the property at Burpengary and be restrained by injunction from using it. 
34. [34]
    The matter came before Judge Coates on 23 January 2024.  There is a transcript of this proceeding attached as Exhibit E to the affidavit.  The aggrieved told the Judge that she wanted to use the house and land for stable accommodation.  She wanted to occupy the land until the daughter was 18 years of age.  It was noted that the husband had brought the land and house to the relationship and it was a short relationship.  The aggrieved said that regarding the property she wanted to get all of her equipment back.  The aggrieved did not want to own the property.  The Magistrate doubted the Court could make an order that she sought regarding occupation.  The Judge ultimately set the matter for trial noting that the application to use the house for 15 years was a trial issue if the Court had power.  He needed to make orders for valuation concerning the machinery.  The aggrieved said there was an excavator, cherry picker and two trucks and she wanted these back into her possession.  It was agreed by Mr Wilson, barrister for the appellant, that that property was the aggrieved’s.  The Judge indicated he could make an order for that specific property to be given back to her.  The Judge made directions concerning the trial.
35. [35]
    With respect to the directions made to file material, the appellant left this to his lawyer who then withdrew.  About two to three weeks before the hearing, the appellant began emailing the registry at the Brisbane Magistrates Court to try and get advice as to the process.  On 14 March 2024, he was sent two emails by the registry that no directions were ordered for the filing of material other than on 6 November 2023.  He attaches these emails.  On the day of the hearing he had prepared an affidavit on his phone which he wished to file.  He went to the registry to print, execute and file it but the registry had a problem with their computer and it could not be done.  He was told to go upstairs and the registry would let the Court know about the problem.
36. [36]
    The appellant says he is not being difficult in allowing the aggrieved to remove her machinery.  He attaches correspondence in that regard.  He says presently there is only one excavator and crane left to move.  They cannot be driven on the road by themselves. 
37. [37]
    He has a verbal quote from Harvey’s Towing of $880 to move the crane and $550 to move the excavator.  The aggrieved has enough money to move these.
38. [38]
    Since the DVO was varied on 20 March 2024, he has been forced to live with his parents and has been unable to work at all because his workplace was his home and he has not been able to pay the mortgage.
39. [39]
    The respondent has prepared an affidavit filed 9 May 2024.  She says that she lodged her application to vary the domestic violence order on 24 October 2023.  She alleges the appellant has denied her access to the matrimonial property.
40. [40]
    She says the appellant commenced FCFCA proceedings seven days after she went into a refuge in July 2022 and alleges the appellant has withheld and damaged her equipment.  She had to start the case of property settlement in the FCFCA in September 2023.  The appellant used to be a licenced car dealer and made a lot of money from the sale of cars.  He also traded in luxury boats.  After they separated he refinanced the property.  It is alleged that after separation he has been liquidating businesses and hiding large amounts of cash and transferring assets.  She said it was an abusive relationship between them and she fled this.  She says that it was impossible to get a rental property in the market.  She says her parents lent their life savings to her start a business.  She says her business is suspended because of the domestic violence and separation.  She says that the equipment was damaged when she moved back to the property.  She says the appellant can live on a boat.  She alleges the appellant is only paying $4 per day child support.  She disputes that any property was tenanted.  She submits that the ouster condition was necessary and desirable.  The matter will proceed to trial in August of this year in the FCFCA Court.

Discussion

41. [41]
    In reaching my decision I have taken into account all of the evidence and submissions made. I have also specifically had regard to the objects of the DFVP Act and section 4 of the DFVP Act.
42. [42]
    In light of the fresh evidence put before the court by the appellant, I am satisfied that a miscarriage of justice could result if this matter is not fully determined on all of the evidence both from the appellant and the respondent. As section 31 of the Human Rights Act 2019 (Qld) notes- there is a right to a fair hearing.
43. [43]
    Whilst it is true that the appellant did not comply with directions made by the court he has provided an explanation for this to this court. He also did try and file an affidavit in the Magistrates Court. It would have been more appropriate for the Magistrate  to consider an application for an adjournment prior to finally determining the matter. It would have been a matter to determine the extent of prejudice to either party on the hearing of such an application^[4]. In light of time that had elapsed since the order was made it is hard to see that a short delay^[5] to enable the aggrieved to respond to the material would have caused much prejudice.
44. [44]
    Another aspect is the amendment of the application from the bench from a temporary order to remove property to a 5-year ouster order. In the circumstances of this case it would have been appropriate to allow the appellant to file material on this question as this was a significant change from what was sought by the aggrieved and involved the appellant being forced to leave a property which he purchased and from where he earned his livelihood. In this regard I note that section 86 of the DFVP Act requires the application to state the nature of the variation sought. There was no written application for an ouster order for five years.
45. [45]
    One further matter deserves mentioning. It is best practice for the exhibits to be marked during a hearing rather than during a judgment. Such a practice enables a party to place any objections they may have to the material. It is too late to do this during the judgment.
46. [46]
    I now turn to the merits of the matter.
47. [47]
    There are a number of relevant provisions to be considered.
48. [48]
    First the application was made under section 86 of the DFVP Act. Section 91 of the DFVP sets out when a court can vary such an order. The power to make a variation is from the application under section 86 of the DFVP Act or under sections 42 or 43.
49. [49]
    Section 42 relates to a situation where a person is convicted of an offence. That does not apply here. Section 43 relates to child protection proceedings- that does not apply here.
50. [50]
    Section 57 of the DFVP Act however provides that an ouster condition must be considered on a variation application where the aggrieved’s place of residence is concerned. The aggrieved was not resident at the property at the time of the hearing.
51. [51]
    It seems to me that there is a real argument the Magistrate had no power to make the variation in the absence of a written application by the aggrieved for the ouster condition.   
52. [52]
    It could be argued that the power in section 63 of the DFVP Act gave power to the Magistrate to make the order. On the other hand it could be that this power only arises when the protection order is being made to start with. This is because section 63 is not concerned with the express power to make a variation and is contained in the Part dealing the making of the Protection Order to start with. I note in this regard that section 28 of the DFVP Act specifically refers to Part 3 Division 5 which contains section 63.
53. [53]
    However I would not rule on this matter. The parties were not given the opportunity of arguing this matter before me. It would be unfair for me to reach a concluded view on this.
54. [54]
    If section 63 of the DFVP Act applies, it  provides a discretion in the court to consider an ouster order as they had previously lived together at the property.
55. [55]
    But again there are real issues as to whether the residence was the aggrieved’s “usual” place of residence within the meaning of that term in section 64 of the DFVP Act.
56. [56]
    Section 64 DFVP Act provides for the matters to be considered:

57. [57]
    In this case relevant considerations would no doubt include the aggrieved’s original wishes and also the fact the appellant operates his business from the premises and earns his livelihood from there. Any effect on child support payments may need to be considered as well.   
58. [58]
    Another important factor to be considered will be the FCFCA proceedings.
59. [59]
    Section 78 of the DFVP Act provides:

60. [60]
    In this case it seems to me relevant that Judge Coates did not make a residency order in favour of the aggrieved and indeed His Honour considered it is unlikely to be made in light of the fact the appellant brought the property into the relationship and it was a short-lived relationship. The Magistrate did not have regard to this fact in any meaningful way.^[6]
61. [61]
    However, contrary to the Appellant’s submissions  I do not consider however that the aggrieved was prevented from making a section 59 DFVP Act application in the Magistrates Court because of the terms of section 78(2) of the DFVP Act. 
62. [62]
    I note that section 114AB of the Family Law Act 1975 (Cth) contemplates a concurrent application of both laws. I also note that section 114AB(2) seems to prevent a party from making a section 114 application where such application has been made in the State Courts.
63. [63]
    But there could be a case where multiple similar applications might be regarded as an abuse of process.
64. [64]
    The aggrieved may not have made full disclosure of the FCFCA proceedings as required under section 77 of the DFVP Act. It is clear that she sought an interlocutory order for sole residency of the property and the Judge did not make the order sought and expressed doubts it would be made. Having said this she prepared the affidavits when self-represented and having seen her in court I draw the inference she most likely was not aware of the full extent of the provision.   
65. [65]
    Having considered all of the matters in this case, it is my opinion that bearing in mind the concurrent FCFCA proceedings, the fact the appellant lived and worked from these premises, the aggrieved was living elsewhere with the child, there was a domestic violence order with no contact conditions in place, and the aggrieved was only seeking an order allowing her to recover the property, there were strong arguments on the part of the appellant that it is not necessary or desirable for an ouster order to be made in this case. Perhaps this is why the aggrieved did not apply for such an order in the first place.
66. [66]
    As it now three months since the original order and bearing in mind the issues involved, this is a case where an urgent hearing is necessary.
67. [67]
    However it is inappropriate for me to determine the issue finally. Before me neither party was ready for a full trial on the issue. The QPS did not appear for the aggrieved in this court. More witnesses may be needed. Also no consideration had been given to the mandatory requirements of section 150 of the DFVP Act for the aggrieved’s evidence.
68. [68]
    It is in the interests of justice that the matter be remitted for retrial.
69. [69]
    I cannot ignore the fact that the aggrieved and the child are now residing in the property potentially under an unlawful order. Bearing in mind the objects of the DFVP Act and section 4,  I consider it appropriate to extend the order until the further trial in this matter, when the matter can be considered afresh. I make it clear this is a temporary order only.^[7]    
70. [70]
    On the issue of costs it seems to me there is an argument that the QPS should pay them. When the Magistrate changed the application the officer appearing did not dissent from what was happening despite what was in the application. It may be that the Appeal Costs Fund Act 1973 (Qld) has some application. I will allow all parties the opportunity of being heard on the costs issue.   

Orders

71. [71]
    For the reasons given I made the following orders:

2. 1.The appeal is allowed.
3. 2.I vary the Magistrate’s order by deleting the order that the ouster clause be in force for five years and in lieu thereof it is ordered the ouster clause is to be in force until the retrial of this matter or earlier order.
4. 3.I remit the matter to the Magistrates Court at Brisbane for a retrial before a different Magistrate.
5. 4.The matter is listed for mention at 9am on 16 May 2024 for an urgent listing for hearing.
6. 5.I recommend the Queensland Police Service appear for the aggrieved under section 147 of the Domestic and Family Violence Protection Act 2012 (Qld) or that legal aid be considered.
7. 6.The appellant is to file and serve his submissions on the question of costs within seven days not exceeding three pages. The aggrieved is to file and serve her submissions on the question of costs within 14 days not exceeding three pages. The Queensland Police Service is to be file its submissions on costs within 14 days not exceeding three pages.