ACJ v AD

Case [2023] QDC 176

DISTRICT COURT OF QUEENSLAND

CITATION:

ACJ v AD [2023] QDC 176

PARTIES:

ACJ
(appellant)

v

AD
(respondent)

FILE NO:

6/23

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court
Maroochydore
DELIVERED ON: 3 October 2023

DELIVERED AT:

Maroochydore

HEARING DATE:

10 August 2023

HEARD AT:

Maroochydore

JUDGE:

Cash DCJ

ORDER:

1.          The appeal is allowed; and

2.          The decision of the Magistrate is set aside; and

3.          The matter is remitted to the Magistrates Court for rehearing.

CATCHWORDS

FAMILY LAW – DOMESTIC VIOLENCE – APPLICATION FOR A PROTECTION ORDER UNDER THE DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT – APPEAL – where appellant was the respondent to an application for a protection order – where the allegations were contested – where the respondent and appellant filed affidavit material – where the matter was listed for hearing but unable to proceed – where the parties agreed to the application being decided ‘on the papers’ without oral evidence – whether the Magistrate’s findings are supported by evidence – limitation on making findings as to credit and determining contested facts on written material only

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), s 8, 11, 12, 37, 159, 164, 165, 166, 168, 169

CASES:

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, [175]
HBY v WBI & Anor [2020] QDC 81, [16]-[18]
Mechanical and General Inventions Co Ltd v Austin [1935] AC 346, 349

OTHER MATERIAL

Supreme and District Courts Criminal Directions Benchbook, Supreme Court Library (Qld), direction 68

J. D. Henry, ‘Wanted: Oral Advocacy, Apply at First Instance’ (Speech, QLS Modern Advocacy Series, Cairns, 20 June 2019)
Susan Keifel, ‘Oral Advocacy – The Last Gasp?’ (Speech, Supreme and Federal Court Judges’ Conference, Canberra, 27 January 2010)

APPEARANCES:

B Taylor instructed by Karsas Lawyers for the appellant
B McKenzie instructed by KLM Solicitors for the respondent

Introduction

  1. The appellant and respondent were once in a relationship. It ended in April 2022. On 12 April 2022 the respondent filed an application for a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA), describing a pattern of behaviour by the appellant which, if proved, might amount to ‘domestic violence’.[1]

    [1]DFVPA, section 8. I note that after the decision of the Magistrate there have been amendments to the definition of ‘domestic violence’ – see the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld). The amendments are not relevant to the determination of this appeal.

  2. The application was opposed by the appellant. It was listed for hearing in November 2022. That day the parties appeared before a Magistrate at Maroochydore. Unfortunately, the Magistrate scheduled to hear the matter had been taken ill. The pressure of other matters already listed meant that no other Magistrate was available to hear evidence in the application that day. A Magistrate mentioned the application and informed the parties of this development. Various options were discussed. To his credit, the Magistrate was concerned…

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Details
AGLC
ACJ v AD [2023] QDC 176
Case
[2023] QDC 176
Decision Date

CaseChat Overview and Summary

In the matter of ACJ v AD, the appellant contested an application for a protection order filed by the respondent, under the Domestic and Family Violence Protection Act. The appeal centred on the Magistrate's decision to grant a protection order based on the respondent's allegations of domestic violence without oral evidence, solely on written material. The Court was required to determine whether the Magistrate's findings were supported by the evidence and whether the limitations of deciding such cases on written material only were appropriately considered.

The primary legal issue was whether the Magistrate's conclusions about the appellant's credibility and contested facts were adequately supported by the written material. The Court noted that the Magistrate's reasoning seemed to accept the respondent's allegations at face value without providing a clear basis for discounting the appellant's denials. The Court highlighted the importance of evaluating the credibility of the parties' statements and the necessity for a more rigorous analysis when deciding such cases based solely on written submissions. The Court further observed that the Magistrate's reliance on the appellant's admissions and the respondent's corroborative evidence was not sufficiently justified on the written material alone.

The Court concluded that the Magistrate's findings were not adequately supported by the evidence provided in the written submissions. The decision was criticised for not sufficiently addressing the appellant's denials and explanations, which were crucial for determining the truth of the respondent's allegations. The Court found that the Magistrate had not properly exercised his discretion in making findings of fact on the basis of the written material alone, leading to an unfair outcome. Consequently, the appeal was allowed, the decision of the Magistrate was set aside, and the matter was remitted to the Magistrates Court for a rehearing.

Orders

Orders of the court

1. The appeal is allowed; and

2. The decision of the Magistrate is set aside; and

3. The matter is remitted to the Magistrates Court for rehearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The contest before the Magistrate concerned whether the appellant had committed any acts of domestic violence and, if he had, whether it was ‘necessary or desirable’ to make a protection order.The evidence before the Magistrate The evidence before the Magistrate consisted of the following:· The application for a protection order filed 12 April 2022· An application to vary the protection order filed 24 May 2022· Affidavits of the respondent filed on 21 June 2022 and 5 August 2022· Material from a family counselling service returned under subpoena· Written submissions for the respondent· Affidavits of the appellant filed on 18 July 2022 and 2 August 2022· Affidavits of PF and LB,[3] the appellant parents, filed by the appellant’s solicitors on 15 August 2022· A case plan setting out the appellant’s contentions· Written submissions of the appellant[3]It is appropriate to adopt a pseudonym for these witnesses – see section 159(1)(b)(ii) of the DFVPA. Each side had some objections to the evidence relied upon by the other. These objections were identified before the Magistrate who made instanter rulings. These rulings are not challenged in the appeal. The material before the Magistrate may be summarised as follows.The respondent’s written submissions in favour of a protection order It is convenient to commence with the respondent’s submissions to the Magistrate in favour of the making of protection. These submissions identified the acts of domestic violence the respondent alleged had occurred and which, it was submitted, provided the foundation for a conclusion that a protection order was necessary or desirable. Eleven acts were identified. The first alleged act was said to have occurred in December 2019 in Slovenia while the appellant and respondent were visiting the respondent’s family. It was alleged the appellant tried to isolate the respondent from her family by coercing her to return to Australia earlier than planned, threw passports across a room, tried to prevent the respondent seeing an old male friend, and harassed her when he discovered she met with her friend. The second alleged act was said to have occurred between December 2019 and late 2021. It consisted of the appellant tormenting and harassing the appellant by constantly accusing her of extra-marital affairs, controlling and intimidating her by repeatedly demanding details of her whereabouts, and invading her privacy by reading her personal messages and emails without her knowledge and consent. The third alleged act was said to have occurred in November or December 2021. It was alleged that the appellant coerced the respondent to stay in the relationship by threatening to ‘take full custody’ of the children and sell the family home if she left, tormented the respondent by telling her she was ‘not functioning well and unemployed’, and denigrated her by telling her she had ‘mental health issues’. The fourth alleged act was said to have occurred in or around December 2021. This concerned allegations that the appellant disparaged the respondent in front of the children for her being financially dependent on the appellant, imposed an unreasonable budget for groceries then screamed abuse at her in front of the children for not being able to afford more groceries, and threatened to tell the children it was the fault of the respondent if their relationship ended.

Decision

Reasons for decision

It is apparent from the summary of the evidence above that none of the alleged acts of domestic violence could be established unless the Magistrate was satisfied the allegations of the respondent were probably true. Given the denials and explanations of the appellant, it was also the case the respondent’s allegations could not be accepted unless the appellant’s denials were probably untrue. Reaching such a state of satisfaction required a consideration of the evidence to decide if there was a proper basis for concluding that what the appellant said was probably untrue, and what the respondent said was probably true.The decision of the Magistrate On 22 December 2022 the Magistrate published reasons. These reasons may be summarised as follows. After setting out the procedural history of the application, the Magistrate correctly identified the relevant legislation and legal principles. He then set out the respondent’s contentions as to acts of domestic violence by repeating parts of the respondent’s written submissions. The Magistrate said of the appellant’s affidavits that he merely denied each alleged act of domestic violence. Then the Magistrate stated, without further explanation, ‘In some respects, it is extremely difficult to accept all the denials of the [appellant]’. There followed several pages reciting the respondent’s allegations in a manner that implied, but did not explain why, the Magistrate accepted what she alleged was probably true. Some statements of fact were followed by the words, ‘I ACCEPT THIS’ in bold capitals. No further explanation was provided. What seems to be a critical part of the Magistrate’s reasoning appears in a footnote. The footnote recorded the Magistrate’s finding that the appellant had read more of the respondent’s private messages than he was willing to admit. This finding was seemingly based on the knowledge of the content of the respondent’s communications which the appellant provided in his own affidavit material. This finding was said by the Magistrate to affect the confidence he had in the appellant’s explanations and evidence. The Magistrate went on to find that the respondent’s allegations of domestic violence were ‘independently corroborated’ by a letter written by a support worker and annexed to the respondent’s first affidavit, as well as by the contents of records maintained by a counselling service the respondent used after leaving the appellant. A further conclusion recorded by the Magistrate was that the appellant ‘made admissions to committing various acts of domestic violence’. The difficulty with these findings on the material before the Magistrate is discussed below. As for the appellant’s ‘bare denials or counter-allegations’, the Magistrate recorded they ‘lack any corroborative evidence (despite the [appellant] calling (sic) several witnesses in this proceeding), which may lead the Court to drawing adverse inferences against the [appellant]’. A footnote referred to the decision of the High Court in Jones v Dunkel.[4] That decision is authority for the principle that the failure to call a material witness without explanation may give rise to a direction that the trier of fact can more readily accept the uncontradicted evidence of the opposing party. It is difficult to see what application it could have in the context of this contested application which was, by agreement, to be decided ‘on the papers’.[4](1959) 101 CLR 298.

Ratio Decidendi

Legal Principle Established

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