AKM v CJM

Case [2021] QDC 199

DISTRICT COURT OF QUEENSLAND

CITATION:

AKM v CJM [2021] QDC 199

PARTIES:

AKM

(appellant)

v

CJM

(respondent)

FILE NO:

BD1771/2020

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Wynnum

DELIVERED ON:

26 August 2021

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

18 January 2021

JUDGE:

Sheridan DCJ

ORDER:

1.   Appeal dismissed.

2.   The appellant pay the respondent’s cost of the appeal assessed on the standard basis.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) – where pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) the Magistrate made a domestic violence protection order against the appellant for the benefit of the respondent – where the appellant appeals against the decision to grant a protection order – whether Magistrate was in error
LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), s 2, s 4, s 8, s 11, s 37, s 142, s 157, s 164, s 168, s 169
Uniform Civil Procedure Rules 1999 (Qld), ch 17A, r 681, ch 18

CASES:

BAK v Gallagher & Anor (No 2) [2018] QDC 132, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
GKE v EUT [2014] QDC 248, cited
McDonald v Queensland Police Service [2018] 2 Qd R 612, cited
Mbuzi v Torcetti [2008] QCA 231, cited
COUNSEL:

Self-representation for the appellant

R Glenday for the respondent
SOLICITORS:

Rosen Lawyers for the respondent

Introduction

  1. The appellant appeals against the decision of a Magistrate made on 5 June 2020.

  2. By the decision, pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (the DV Act) the court made a domestic violence protection order against the appellant for the benefit of the respondent.

  3. As in the proceedings below, the appellant is self-represented and the respondent is represented by counsel.

    Nature of Appeal

  4. An appeal against a decision made under the DV Act is brought pursuant to s 164 of the DV Act. Section 164 permits an appeal to be brought by a person aggrieved by any of the following decisions of a court:

    “(a)   a decision to make a domestic violence order;

    (b)   a decision to vary, or refuse to vary, a domestic violence order;

    (c)    a decision to refuse to make a protection order;

    (d)   if the person sought a temporary protection order in a proceeding under this Act – a decision to refuse to make the order.”

  5. In accordance with s 168(1), the appeal must be decided on the evidence and proceedings before the court that made the decision being appealed. However, under s 168(2) of the DV Act the appellate court may order that the appeal be heard afresh, in whole or in part. No such order was sought or made in this case.

  6. Under s 169, in deciding this appeal, I can confirm the decision appealed…

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AGLC
AKM v CJM [2021] QDC 199
Case
[2021] QDC 199
Decision Date

CaseChat Overview and Summary

In the case of AKM v CJM, the appellant, AKM, appealed against a domestic violence protection order made by the Magistrates Court against her, in favour of CJM. The appeal was heard by the District Court, which was required to review the evidence and the Magistrate's reasons for the decision, and make its own determination of the relevant facts. The District Court considered the evidence presented at the original hearing, including affidavits and witness testimonies, and noted that the court was not bound by the rules of evidence in proceedings under the Domestic and Family Violence Protection Act 2012 (Qld).

The key legal issue for the court was whether the Magistrate was in error in making the domestic violence protection order. The District Court found that the appellant was a witness who could not be accepted and whose evidence was rejected as grossly unreliable and at times dishonest. The court concluded that, where there was a conflict, it preferred the evidence of the respondent, which it found accorded with common sense and with the record before the court.

The District Court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal assessed on the standard basis. The court found that the Magistrate had not erred in making the domestic violence protection order, as the evidence supported the conclusion that the appellant had made numerous serious allegations against the respondent that were without foundation and support, and that these actions amounted to intimidation or harassment and constituted domestic violence.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the respondent’s cost of the appeal assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A re-hearing requires that I conduct a real review of the evidence at first instance and of the Magistrate’s reasons for decision, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[2] In Mbuzi v Torcetti, Keane JA described the task as: “On such an appeal the judge should afford respect to the decision of the Magistrate and bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.”[3][2]McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]; Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3]; White v Commissioner of Police [2014] QCA 121 at [6].[3][2008] QCA 231 at [17]; Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2009] 1 Qd R 247 at [5].Evidence before the Magistrate There was eventually agreement between the appellant and the respondent that the following material was to be considered on the appeal:1.Notice of Appeal filed 22 June 2020;2.Transcript of proceedings, including Decision, before Magistrate Davies dated 5 June 2020;3.Outline of Argument filed by appellant 17 August 2020;4.Outline of Submissions filed by respondent 14 September 2020;5.Application of CJM filed 10 December 2019;6.Affidavits of AKM sworn 9 March and 15 May 2020;7.Affidavit of AKM’s mother sworn 15 May 2020; and8.Amended Notice of Child Abuse filed 15 May 2020. On appeal, the appellant also sought to rely upon a second affidavit of her mother, filed in the Magistrates Court on 10 March 2020. The respondent objected to the affidavit being admitted into evidence on the appeal; it being said that the affidavit was not received into evidence below. While it appeared the affidavit was not made an exhibit in the proceedings below, AKM’s mother was called as a witness and cross examined by the respondent. It would appear that the appellant, who was also self-represented below, intended to rely on both affidavits. Counsel for the respondent accepted that the receipt of the affidavit in the appeal would not raise any real problem for the respondent and accepted that he had an opportunity to cross examine AKM’s mother, in the proceedings below. In the circumstances, I accepted the affidavit into evidence in the appeal proceedings. The appellant also sought to refer to the transcripts of each occasion on which the application was mentioned in the court below being the transcripts of the mentions on 14 January 2020, 10 March 2020 and 2 June 2020. After an initial objection, the respondent agreed to their admittance. In a proceeding under the DV Act, as the Magistrate informed the parties, the court is not bound by the rules of evidence and can inform itself in any way it considers appropriate.[4][4]s 145 of the DV Act.The Magistrate’s Decision The Magistrate summarised the case against the appellant as being that over a period of years and continuing until recently, the appellant made numerous serious allegations against the respondent to the police and child safety which are alleged to be without foundation and support and which amount to intimidation or harassment and constitute domestic violence. The allegations by the appellant are said to have been made on a repeated basis.

Decision

Reasons for decision

In a proceeding under the DV Act, as the Magistrate informed the parties, the court is not bound by the rules of evidence and can inform itself in any way it considers appropriate.[4][4]s 145 of the DV Act.The Magistrate’s Decision The Magistrate summarised the case against the appellant as being that over a period of years and continuing until recently, the appellant made numerous serious allegations against the respondent to the police and child safety which are alleged to be without foundation and support and which amount to intimidation or harassment and constitute domestic violence. The allegations by the appellant are said to have been made on a repeated basis. The Magistrate observed that the onus was on the aggrieved to prove on the balance of probabilities that there was a relevant relationship (which was not in issue) and that there were acts of domestic violence and that it was necessary or desirable for an order to be made. The Magistrate went through each of the alleged incidents as particularised in the application for a domestic violence order filed on 10 December 2019. The Magistrate referred in particular to the evidence of complaints made by the appellant of the respondent having tried to poison or to kill her; of the respondent having sexually assaulted his four year old daughter for a period of four years from when the child was a newborn; of the respondent planting or having someone plant listening devices at the house where the appellant lived and of the respondent having or causing someone to hack her computer and of the respondent having assaulted the appellant in court during the Family Court proceedings. In relation to those incidents, the Magistrate referred to the very serious nature of some of the allegations, the fact that the complaints to police by the appellant were made subsequent to the separation of the respondent and the appellant, the appellant’s assertion that the police have done absolutely nothing, which the Magistrate said contradicted the police notes, and the appellant’s assertion that somehow the respondent had managed to exert influence over the police. The Magistrate declined to make any findings in relation to the alleged incidents in the application of the allegations by the respondent of the appellant stalking him and the allegations by the respondent of the appellant’s numerous reports to Child Safety. The Magistrate heard evidence from the respondent, the appellant and the appellant’s mother. Each witness was subject to cross-examination with the Magistrate also asking questions of the appellant. The Magistrate found the appellant to be a witness who could not be accepted and whose evidence he rejected. He found the appellant to be “grossly unreliable and at times dishonest.” He concluded that where there was a conflict, of which he found there was a great deal, he preferred the evidence of the respondent, which he found “accord[ed] with common sense and with the record that is before the Court.”

Ratio Decidendi

Legal Principle Established

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