HER v DIS[2024] QMC 16

MAGISTRATES COURTS OF QUEENSLAND

What is this Application about?

1. [1]
   Since the Aggrieved filed her Application for a Protection Order on 24 October 2023, the Respondent has applied three times for summary dismissal. This is the third. It seeks orders to summarily dismiss the Aggrieved’s application, vacate the Temporary Protection Order and to pay the Respondent’s costs.

Should the Court summarily dismiss this Aggrieved’s application for a protection order to protect her and her children from domestic violence?

2. [2]
   As the Court found when dismissing the second application at the Domestic Violence callover on 17 April 2024, summary dismissal is not warranted for triable issues of fact. This third Application filed on 11 June 2024 raises nothing to depart from this. This Application for summary dismissal will also be dismissed.

When should the Courts summarily dismiss an application for an order to protect an aggrieved from domestic violence?

3. [3]
   To prevent applicants being deprived of their right to a hearing, the Courts have traditionally exercised the summary jurisdiction to dismiss claims with caution.^[1]

4. [4]
   That caution is at its most acute in the domestic violence jurisdiction where:

3. (a)
   The legislature has recognised domestic violence is a violation of human rights;^[2] 

3. (b)
   Victims are usually women and children^[3] or otherwise vulnerable and not legally represented;

3. (c)
   The views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made;^[4]

3. (d)
   The Court is not bound by the rules of evidence, practices or procedures for courts of record and may inform itself in any way it considers appropriate;^[5]

3. (e)
   The Court is to decide proceedings in a way that: maximises the safety, protection and wellbeing of people who fear or experience domestic violence; prevents or reduces domestic violence and its exposure to children; facilitates the just and expeditious resolution of relevant issues; and avoids undue delay, expense and technicality;^[6] 

3. (f)
   Parties undertake to the Court to proceed expeditiously;^[7] and

3. (g)
   In deciding whether to make an order or issue a direction, the interests of justice are paramount.^[8]

5. [5]
   Because of this, the threshold to dismiss an application for a protection order without a full and proper hearing is high. Summary relief to end proceedings early should only be granted in clear cases and with exceptional caution.^[9]

Why should the Court not summarily dismiss this Aggrieved’s application for a protection order to protect her and her children from domestic violence?

6. [6]
   This Application for summary dismissal relies upon alleged evidentiary inadequacies.^[10] It avers that the sole relevant evidence is from the aggrieved with no corroborating evidence and raises issue of weight.^[11] None of the authorities it cites in support involved applications for summary dismissal.^[12] All were appeals from contested hearings: the process that the current Application for summary dismissal seeks to prevent. They are distinguishable for that reason.

7. [7]
   Although accepted as correct statements of legal principle, the cited authorities do not advance the current application for summary dismissal. Rather, the relevant authorities ordain that an application for a protection order should not be summarily dismissed where any evidence, taken at its highest, can support a protection order.^[13]

8. [8]
   In his filed material, the Respondent denies most of the allegations and claims the filed evidence supports his version of events.^[14] However, in an application for summary dismissal I should not consider untested affidavit material filed by the Respondent:^[15]

The existence of disputed material issues of fact is the index case where summary determination on the basis that a proceeding is so hopeless as to be an abuse of process requires the exceptional caution.^[16]

9. [9]
   Summarily dismissing the Aggrieved’s application because the Respondent denies the Aggrieved’s allegations would be wholly inconsistent with the legislative scheme for determining applications for protection from domestic violence:

… where the [Domestic and Family Violence Protection] Act creates a right and confers jurisdiction on a court to hear and decide an application to enforce that right, it must necessarily imply that the application be determined by procedurally fair process apposite to a hearing which results in a final order. At the least, that must include a reasonable opportunity to lead evidence, cross-examine and otherwise test another party’s evidence and address the Court on findings of fact that the Court should make on the evidentiary record and the law that applies to those facts.^[17]

10. [10]
    My assessment should therefore only be of the evidence that the respondent submits he is not required to answer.^[18] Because the domestic violence jurisdiction focuses on protecting the human rights of vulnerable persons, that evidence is to be considered in a reasonable, realistic and pragmatic way. When assessing an aggrieved’s evidence as a basis for summary dismissal, I eschew an unnecessarily technical approach in favour of a just and expeditious resolution of the relevant issues with a minimum of expense and delay. 

11. [11]
    The Aggrieved has filed evidence of strangulation by the Respondent and the Respondent allegedly assaulting her and their children at different times, the Respondent using degrading and derogatory language towards her and their children and sending her demeaning texts.^[19] Indeed, since filing her original application the Aggrieved has filed more evidence of domestic violence.^[20] These include an email ostensibly from the Respondent using intemperate language^[21] and a letter from the Australian Government indicating the Respondent is in arrears with child support payments.^[22]

12. [12]
    The Respondent denied these further allegations. He said he is now up to date with his child support payments. He also said he had a recording from 16 April 2019 of the Aggrieved verbally abusing him. Whether or not this recording was admissible or relevant, it was not in a format able to be filed with the Court. In any event, I make no findings about the veracity of the aggrieved’s allegations.^[23] This can only be tested at a full hearing of the evidence and submissions.

13. [13]
    However, as a matter of law and taken at its highest,^[24] the Aggrieved’s evidence is capable of supporting^[25] relevant elements required for a protection order.^[26] Material allegations of fact can be gleaned from a holistic reading of the Aggrieved’s allegations and material.^[27] The Aggrieved provides details of what, where, when, how and by whom. She attaches exhibits.

14. [14]
    ‘Domestic violence’ is broadly defined to include physical abuse, psychological abuse, emotional abuse and derogatory taunts. It may occur over a period.^[28] If the Aggrieved’s evidence is accepted, it is capable of supporting findings of ‘domestic violence’. Whether it is ‘necessary or desirable’ to make an order requires the application of legal principles^[29] to the evidence. Whether or not the Aggrieved’s evidence is “minimal” - as the Respondent submits - does not lead to an inevitable conclusion that an order is not ‘necessary or desirable’.

15. [15]
    It may be that the Aggrieved is ultimately unable to prove her allegations, but procedural fairness require that she be given an opportunity to do it at a full hearing. Summary dismissal should not be granted simply because the Respondent contends that the Aggrieved is unlikely to succeed on a question of fact.^[30] This will need to be properly explored at a full hearing, rather than dealt with summarily.

16. [16]
    In a jurisdiction where the Aggrieved is identified as a vulnerable person requiring her views to be sought, she should be given an opportunity to present her case at a full hearing and not have it dealt with summarily. Questions of fact, including whether the evidence makes it ‘necessary or desirable’ for a protection order, are properly considered at a full hearing and not dealt with summarily.^[31] It will be for the Court at a full hearing to determine if the facts as established constitute ‘domestic violence’ and meet the test of whether it is ‘necessary or desirable’ to make a protection order.

17. [17]
    Summarily dismissing the Aggrieved’s application for alleged inadequacies in her evidence would effectively impose an onerous technical requirement on a vulnerable and unrepresented person seeking an order protecting her and her children from domestic violence. That would be contrary to the paramount interests of justice.

18. [18]
    The application for summary dismissal and ancillary orders must therefore be dismissed.

Should there be an Order for costs?

19. [19]
    Because the Aggrieved did not claim any costs in responding to this application, there will be no order as to costs. However, it is noted that this is the Respondent’s third Application for Summary Dismissal since the Aggrieved filed her Application for a Protection Order. He filed it two months after a similar application was refused during the domestic violence callover on 17 April 2024. Like that application, it is devoid of merit.

20. [20]
    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, not merely the parties to the proceedings.^[32]

21. [21]
    Ongoing attempts at summary dismissal on essentially the same grounds must be strongly discouraged. Filing applications that reventilate the same issues curtails the expeditious resolution of the Aggrieved’s substantive application and other more worthy applications. It is an unnecessary incursion upon the Court’s limited resources.

22. [22]
    The Respondent is on notice that should the Aggrieved incur legal costs in responding to Applications seeking to re-ventilate the same issues, then he is at risk of adverse costs orders being made against him.