LBM v ELO[2025] QDC 103

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for leave to appeal, and if left granted, an appeal of two orders made in the civil domestic violence jurisdiction. The applicant is LBM. The respondent is ELO, who is the daughter of LBM’s ex-partner.

2. [2]
   I do not need to get into the background of the various allegations that relate to the proceedings. What happened, however, is this. On the 6^th of November 2024, on an application for final orders and a temporary protection order, a temporary protection order was made in fairly broad terms, in the absence and without service on LBM.

3. [3]
   There is nothing inherently erroneous about an ex parte temporary protection order, so long as the matter returns promptly to court after service so that it can be, if desired, contested by the person against whom the order was made. That occurred on this occasion. The matter was served on LBM and came back before the Magistrates Court on the 28^th of November.

4. [4]
   The transcripts of the 28^th of November and the hearing the next day on the 29^th of November, have been made exhibits by me in the proceeding on this appeal.  Having read them, they demonstrate that LBM appeared.  He indicated a wish to contest the application and sought to vary the protection order.  The temporary protection order was varied.  His Honour adjourned the matter to the 18^th of December to obtain documents from the Department of Child Safety (DOCS) that were relevant to the proceedings.

5. [5]
   Hearing LBM’s submissions on the appeal, I think it is fair to say that he had no real understanding, which I do not say critically, of the distinction between a temporary and final order, at least at that stage; and if he did, he did not do a good job of communicating to his Honour that he wished to challenge the temporary protection order. I do, however, think it is likely that that was his wish, hearing him now and reading the transcripts in the light of what he said.

6. [6]
   I do not see any basis to conclude, though, that his Honour erred in not conducting a hearing on the temporary protection order because, in my respectful view, read objectively, the transcripts communicated that LBM would be challenging the making of final orders and was seeking the variation of the temporary orders. The relevance of that, I will explain in a minute.

7. [7]
   As I said, his Honour took steps to try to get DOCS to provide certain information. The matter came back as listed on the 18^th of December.  LBM appeared again on that day, as did someone for ELO.  I note that LBM had appeared on three out of three mentions of the matter.

8. [8]
   What happened on that day, briefly, is that a different Magistrate communicated to LBM that he was going to follow up with DOCS, because they had not complied with the direction to provide material. LBM raised the fact that he had been required to appear three times already, with the DOCS matter not resolved, and so the learned Magistrate told him that he could appear by phone. Notably, in the context of the preceding two mentions, LBM asked, “Is this another mention?” Although his Honour did not say, “Yes”, he said that he directed the registrar to follow up on the request from DOCS, that he had leave to appear by phone and that the temporary order would continue.

9. [9]
   It is, in my view, unquestionably clear that it was objectively communicated that the next date would be another mention, hopefully with DOCS having complied with the request first made by his Honour on the 28^th or 29^th of November.

10. [10]
    Oddly, the transcript records the matter being adjourned to the 19^th of January.  It was next mentioned on the 29^th of January.  It might be thought that something happened in between; but LBM said that he always understood the date was to be the 29^th.  Further, the endorsement on the Magistrates Court file shows that the adjournment was to the 29^th of January.  On the 29^th of January, a couple of attempts were made to call LBM on the telephone.  I accept those efforts were made.  LBM did not respond to those calls.  It does not really matter why; although, to be fair to him, given his form in assiduously coming along on the last three occasions, I see no reason to disbelieve his statement that, for one reason or another, he did not become aware of the calls.

11. [11]
    In any event, on the 29^th, the matter had been listed for mention.  After brief discussions with counsel who appeared for ELO, his Honour made the final orders.  His Honours reasons are these:

I’m satisfied with the three limbs of section 37.  In the circumstances, I make a protection order.  I’m satisfied that an order is necessary to protect [the aggrieved] from domestic violence.  The order is in terms of the temporary order made on the 29^th of November last year.  The order is in place for five years.

12. [12]
    That order cannot stand. It is affected by three fundamental legal errors. The first is that, as I explained in SNW v TRD [2023] 3 QDC 149, it is a breach of natural justice to proceed to final determination of a matter in circumstances where the other party does not appear, and the purpose of the appearance was for a mention only. 

13. [13]
    Secondly, in the same case, for reasons I explained, there is no power to make final orders effectively in default. This court, and other courts operating under the Uniform Civil Procedure Rules 1999 (Qld), can do so because the rules so provide; otherwise, the obligation is to hear and determine.  That requires the court to turn its mind to the evidence, make findings about the key matters, and give reasons that expose that reasoning and those findings, to the extent it is necessary.  Such has been made clear in respect of protection orders in SK (a child) v Commissioner of Police [2023] QDC 65, a decision of his Honour Judge Morzone with which I heartily agree.  Whether there are inadequate reasons or, in substance, a default judgment is a moot point. Either way, there has not been a valid hearing and determination of the final order.

14. [14]
    The Queensland District Court Reports were introduced by the Council, in part, so that important decisions in the civil domestic violence area could be distilled out and published in a way that facilitates the profession easily being able to identify key judgments of principle in the area. It occurred, I can say, with the support of this court for that reason. Without criticising anybody personally in this case, it is the court’s fervent hope and expectation that attention will be given to these basic principles informing the conduct of civil domestic violence litigation, especially as this is the final court of appeal in these matters; and its judgment should be treated as such.

15. [15]
    To the extent there is any belief whatsoever that Judges sitting in civil domestic violence matters are not bound by the decisions of this court, such a view is directly inconsistent with the fundamental principle upon which the doctrine of precedent is based. Not that I am suggesting, as I say, anybody involved in this case takes such a view. For that reason, I set aside the final order, and refer it back to the Magistrates Court for hearing according to law.

16. [16]
    I want to say something more about the temporary protection order. As I have said, having read the whole of the transcripts of every mention of this matter, and having had an opportunity to hear from LBM and read his material, it seems likely to me, although, it is not up to me to make a finding to this effect, that he at least intended to challenge the temporary protection order, or to challenge the order in a way that would lead to the elimination of any form of order under the civil domestic violence legislation from his records. I think it likely, even though, looked at objectively, the Magistrate on both occasions made clear they were continuing the temporary protection order, that he did not understand exactly the consequence of that and its relationship with the final order. Again, I do not make any finding to that effect, but that is how it looks to me.

17. [17]
    It is understandable, although rare, that a person the object of a temporary protection order made ex parte would seek to try to have it set aside. That can be difficult, due to the relatively low bar for the making of such an order. Nonetheless, it seems to me that there is no legal error attached to the temporary protection order, but that it is at least theoretically open (I pass no comment on the merits of it) for LBM to seek to have that order set aside; which is, it seems in my respectful view, the only path open to him to challenge that order now, difficult thought that might be, for reasons I have explained to him. But that is not to say that it cannot happen, or that it should not happen. It would be entirely a matter for the Magistrate to determine according to law.

18. [18]
    One thing I would observe, though, is that I can see no reason why the general principle that an interlocutory application is always open to be varied or set aside, (because it gives rise to no form of judgment estoppel) would not apply to temporary protection orders; remembering, as I have explained in papers I have published, the civil domestic violence regime is a civil regime, and so, subject to the provisions of the statutes and the rules, the ordinary doctrines of civil litigation apply. Therefore, I order that the protection order made on 29 January 2024 be set aside, and the proceedings be referred back to the Magistrates Court for determination according to law.