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JKL v DBA (No. 4)[2023] QMC 14

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

JKL v DBA (No. 4) [2023] QMC 14

PARTIES:

JKL

(Applicant)

V

DBA

(Respondent)

FILE NO/S:

MAG-00100108/18(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Application to vary a domestic violence order

ORIGINATING COURT:

Gympie

DELIVERED ON:

13 December 2023 (Delivered ex tempore)

DELIVERED AT:

Gympie

HEARING DATE:

13 December 2023

MAGISTRATE:

Magistrate Hughes

ORDERS:

  1. The Application to Vary filed on 15 June 2023 is dismissed.
  2. The Applicant is to pay the Respondent’s costs fixed at $1,903.00.

CATCHWORDS:

FAMILY LAW – Domestic Violence – where Application to Vary to reduce duration of Order and remove named children – where repeat of arguments already rejected – where matters not relevant – where Application was latest instalment in ongoing pattern of disruption to Aggrieved and named children – where Application contrary to objects of Domestic and Family Violence Protection Act 2012 (Qld) and Domestic and Family Violence Protection Rules 2014 (Qld)  

PROCESS – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – ATTEMPTS TO RELITIGATE – where Respondent to Domestic Violence Order filed Application to Vary – where ninth Application or Notice of Appeal filed against Aggrieved since 2019 – where Courts already determined and made findings on issues or they are not proper basis to vary – where Applicant material taken at its highest – where Court’s resources in high demand – where issue estoppel

CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – PAYABLE FORTHWITH – where Court may award costs – when application dismissed on grounds that it is frivolous, vexatious and abuse of process 

Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 157

Domestic and Family Violence Protection Rules 2014 (Qld), r 5, r 52

Aon Risk Services Pty Ltd v ANU (2009) 239 CLR 175

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125

GKE v EUT [2014] QDC 248

JKL v DBA [2020] QDC 159

JKL v DBA (No. 2) [2022] QDC 142

MDE v MLG & QPS [2015] QDC 151

Port of Melbourne Authority v Anshun Pty Ltd  (1981) 147 CLR 589

SOLICITORS:

Applicant in person

KLM Solicitors for the Respondent

What is this Application about?

  1. [1]
    It is an abuse of process for parties to seek to re-ventilate and re-litigate 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.
  1. [2]
    In this most recent Application by JKL, he asks 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. In his Application and filed material, he sets out what he considers to be grounds for these variations.
  1. [3]
    JKL says the children are older and want him back after being deprived of a father-figure in their development. He also says he cannot get a ‘Blue Card’ or job because of the Order. He refers to the Family Court placing “great importance” on the Protection Order in future parenting proceedings.
  1. [4]
    He refers to matters of policy and procedure when the original Protection Order was made and seeks to revisit findings of fact. He also says it is not in the “public interest” to keep the Order as it only gives the Aggrieved a “tool to report him for any accidental meeting in [a] public place”. Finally, he says he is reformed and has finished a “triple P certificate” and “circle of security” course.

What were the Applicant’s other Applications and their outcomes?

  1. [5]
    On 22 June 2022, the Gympie District Court dismissed JKL’s Appeal to dismiss his Application to Vary filed on 18 December 2020. The Court also ordered JKL pay costs of $3142.49 to Legal Aid Queensland. JKL’s unsuccessful appeal was from a decision that dismissed his application to vary a Protection Order made in the Gympie Magistrates Court on 20 November 2019.

Should this Application be dismissed?

  1. [6]
    The difficulty for JKL is that the Courts have already determined and made findings on these issues or they are not a proper basis to vary the Order, even if I take his material at its highest:[1]
  1. The impact on the children and on parenting proceedings have already been determined both in this Court and the District Court. The Protection Order was expressly made in recognition of the existence of the Family Court Orders and its duration took into account the children’s ages.[2] As the District Court has already noted, the Family Court will act judiciously;[3]
  1. His inability to obtain a Blue Card or job is irrelevant;
  1. Matters of procedural fairness could only be a basis for appeal and are  not a proper basis to vary the Order. In any event, those matters have already been determined both in this Court and the District Court, including an explicit finding that JKL “is better armed than many self-represented litigants”;[4]
  1. The impact on JKL’s freedom to move in a public place has already been determined both in this Court and the District Court; and
  1. The completion of relevant courses relates to whether it is “necessary or desirable” to make a Protection Order. The completion certificate for the Triple P Program is dated 20 February 2019 and predates the Protection Order. The letter from Uniting Care 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 on 15 November 2022 and 28 November 2023 for contravening the Protection Order. The short effluxion of time since those convictions does not make it less necessary or desirable to maintain the Protection without the variations sought. Rather, those convictions support that is necessary or desirable to continue the order based on future risk and the future need of protection.[5] 
  1. [7]
    The courts have traditionally exercised the summary jurisdiction to dismiss claims with caution.[6] However, this does not mean parties can reagitate issues previously considered and determined simply because they are not satisfied with the outcome. The likelihood of conflicting judgments declaring inconsistent rights from the same evidence is an important factor in determining whether to summarily dismiss the Application.[7] Moreover, the Court’s resources for the resolution of disputes - particularly in the high-volume and highly sensitive domestic violence jurisdiction - are in high demand and serve the public as a whole, not merely the parties to the proceedings.[8]
  1. [8]
    Simply because the Domestic and Family Violence Protection Act 2012 (Qld) contemplates applications to vary orders does not abrogate common law principles of issue estoppel.[9] The legislation does not give parties free reign to relitigate and reventilate matters already determined. An Application to vary is not, and should not be, an attempt to reargue a party’s case from an earlier hearing.
  1. [9]
    Filing applications to vary that seek to do so is an abuse of process and an unnecessary incursion upon the limited resources of the aggrieved and the Court. JKL’s Application to Vary is one such application. It repeats arguments already rejected. It raises matters that are not relevant. It is the latest instalment in an ongoing pattern of disruption to the aggrieved and her children. It inhibits the ability of the Court to determine more meritorious applications by other applicants who are frequently distressed and disadvantaged. It is contrary to the objects of the Act to minimise disruption to people who fear or experience domestic violence including children.[10] It is contrary to the objects of the Domestic and Family Violence Protection Rules 2014 that require the Court to decide proceedings with a minimum of expense and to facilitate the just and expeditious resolution of the relevant issues.[11] And it is contrary to the parties’ undertaking to proceed in an expeditious way.[12]
  1. [10]
    Attempts to conduct a retrial on the merits of the case must be strongly discouraged. Allowing applications of this nature to proceed to a full hearing risks the domestic violence list collapsing in on itself or at the very least, unnecessarily delays more worthy applications.
  1. [11]
    The Application to Vary filed on 15 June 2023 is dismissed on the grounds it is frivolous, vexatious and an abuse of process.
  1. [12]
    Because of this, JKL must pay the costs of the Aggrieved fixed at $1,903.00[13] as noted in the Schedule of costs attached to the Aggrieved’s submissions. Those costs reflect the costs paid by Legal Aid Queensland to her solicitors and are reasonable.  

Footnotes

[1]  See for example JKL v DBA [2020] QDC 159; JKL v DBA (No. 2) [2022] QDC 142.

[2] JKL v DBA [2020] QDC 159, [85] (Byrne QC DCJ); JKL v DBA (No. 2) [2022] QDC 142, [11], [12] (Dearden DCJ).

[3] JKL v DBA [2020] QDC 159, [79], [82] (Byrne QC DCJ).

[4] JKL v DBA [2020] QDC 159, [55], (Byrne QC DCJ).

[5] GKE v EUT [2014] QDC 248; MDE v MLG & QPS [2015] QDC 151.

[6] General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125, [10] (Barwick CJ).

[7] Port of Melbourne Authority v Anshun Pty Ltd  (1981) 147 CLR 589, [40] (Gibbs CJ, Mason and Aickin JJ).

[8] Aon Risk Services Pty Ltd v ANU (2009) 239 CLR 175, 217.

[9] Port of Melbourne Authority v Anshun Pty Ltd  (1981) 147 CLR 589.

[10] Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4.

[11] Domestic and Family Violence Protection Rules 2014 (Qld), r 5.

[12] Domestic and Family Violence Protection Rules 2014 (Qld), r 5.

[13] Domestic and Family Violence Protection Act 2012 (Qld), s 157; Domestic and Family Violence Protection Rules 2014 (Qld), r 52(1);

Close

Editorial Notes

  • Published Case Name:

    JKL v DBA (No. 4)

  • Shortened Case Name:

    JKL v DBA (No. 4)

  • MNC:

    [2023] QMC 14

  • Court:

    QMC

  • Judge(s):

    Magistrate Hughes

  • Date:

    13 Dec 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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