Atd v Tbc

Case [2020] QDC 236

DISTRICT COURT OF QUEENSLAND

CITATION:

ATD v TBC [2020] QDC 236

PARTIES:

ATD

(appellant)

v

TBC

(respondent)

FILE NO:

Appeal No. D363/19

DIVISION:

Criminal

PROCEEDING:

Domestic Violence Order Appeal

ORIGINATING COURT:

Southport Registry

DELIVERED ON:

17 September 2020

DELIVERED AT:

Southport

HEARING DATE:

22 June 2020

JUDGE:

McGinness DCJ

ORDER:

Appeal dismissed
CATCHWORDS:

FAMILY LAW – DOMESTIC VIOLENCE – PROTECTION ORDERS – QUEENSLAND – whether Magistrate erred in making order naming respondent as the aggrieved – whether an act of domestic violence occurred – whether an order necessary or desirable

FAMILY LAW – DOMESTIC VIOLENCE – PROTECTION ORDERS – QUEENSLAND – whether Magistrate erred in refusing to make order naming appellant as the aggrieved – whether an act of domestic violence occurred – whether an order necessary or desirable

FAMILY LAW – DOMESTIC VIOLENCE – PROTECTION ORDERS – QUEENSLAND – whether Magistrate showed apprehended bias – whether conduct of counsel resulted in miscarriage of justice

Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 8, 37, 164, 168

Mental Health Act 2016 (Qld)

DGS v GRS [2012] QDC 74
Edwards v Noble (1971) 125 CLR 296
GKT v EUT [2014] QDC 248
Teelow v Commissioner of Police [2009] 2 Qd R 489
TKWJ v The Queen (2002) 212 CLR 124
COUNSEL:

The appellant is self-represented

S. Richardson solicitor for the respondent
SOLICITORS: Damien Greer Lawyers for the respondent

Introduction

  1. The appellant and respondent began an intimate relationship in 2003 and were married in 2008.  They have 3 daughters aged 9, 7 and 5 years. They separated briefly in 2013 but reconciled shortly after. However, the relationship deteriorated to a point where the parties separated permanently on 29 January 2018 under the same roof.  The respondent moved out of the matrimonial home on 5 February 2018.[1] 

    [1]Appellant’s Affidavit filed 12 February 2019, p 13.

  2. This is an appeal from a protection order made under the Domestic and Family Violence Protection Act 2012 (the Act) in the Magistrates Court at Southport on 5 December 2019 naming the respondent as the aggrieved and the appellant as the respondent. The appellant also appeals the order dismissing her application for a protection order. On that date, the Magistrate granted the respondent a protection order for five years and dismissed the appellant’s application for a protection order.

    Background

  3. On 29 January 2018, the appellant made a complaint to police at the Broadbeach Police Station that she had been verbally assaulted by the respondent that morning in their home.  The appellant also informed police of an incident that occurred six weeks prior where the respondent allegedly placed his hand around the appellant’s neck following an argument.[2]  Police completed a Police Protection Notice (“PPN”).  The appellant’s grounds for the application were set out in the PPN and an affidavit sworn by the appellant on the same day.  The appellant deposed that 6 weeks prior, following an argument, the respondent placed his hands around the base of the appellant’s neck and pushed her up against a cupboard door.…

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Details
AGLC
Atd v Tbc [2020] QDC 236
Case
[2020] QDC 236
Decision Date

CaseChat Overview and Summary

In the appeal Atd v Tbc, the appellant challenges the decision of the Magistrates Court at Southport, which granted a protection order to the respondent and dismissed the appellant's application for a protection order. The primary issue before the court was whether the Magistrate erred in making an order naming the respondent as the aggrieved party and the appellant as the respondent, particularly in light of the appellant's inconsistent accounts of domestic violence incidents. The court was also required to determine whether an act of domestic violence had indeed occurred and whether a protection order was necessary or desirable.

The court examined the evidence presented by the appellant, including her various accounts of the incidents in question, which were inconsistent and varied significantly over time. The Magistrate found that the appellant's accounts were not reliable due to their inconsistencies and the lack of corroborating evidence. The court concluded that the Magistrate's decision to name the respondent as the aggrieved party and the appellant as the respondent was justified, as the evidence did not substantiate the appellant's claims of domestic violence. Furthermore, the court upheld the Magistrate's finding that the evidence did not support the appellant's assertion that an act of domestic violence had occurred, and that the protection order was necessary and desirable to protect the respondent.

The appeal was dismissed, and the orders made by the Magistrate were affirmed. The court found no basis to conclude that the Magistrate had erred or had shown apprehended bias, nor did it find that the conduct of counsel resulted in a miscarriage of justice. The appeal was accordingly dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

This is an appeal from a protection order made under the Domestic and Family Violence Protection Act 2012 (the Act) in the Magistrates Court at Southport on 5 December 2019 naming the respondent as the aggrieved and the appellant as the respondent. The appellant also appeals the order dismissing her application for a protection order. On that date, the Magistrate granted the respondent a protection order for five years and dismissed the appellant’s application for a protection order. Background On 29 January 2018, the appellant made a complaint to police at the Broadbeach Police Station that she had been verbally assaulted by the respondent that morning in their home. The appellant also informed police of an incident that occurred six weeks prior where the respondent allegedly placed his hand around the appellant’s neck following an argument.[2] Police completed a Police Protection Notice (“PPN”). The appellant’s grounds for the application were set out in the PPN and an affidavit sworn by the appellant on the same day. The appellant deposed that 6 weeks prior, following an argument, the respondent placed his hands around the base of the appellant’s neck and pushed her up against a cupboard door. The appellant pushed the respondent’s chest which caused him to release her.[2]Police Protection Notice filed 29 January 2018; Annexure “KN-7” to the Appellant’s Affidavit filed 19 July 2019. In relation to the incident that occurred on 29 January 2018, the appellant deposed that she was getting the children ready while the respondent was dropping off their bags at school and submitting a form. The appellant and respondent argued via text messages about a number of issues regarding the parenting of their children. The respondent arrived home and began yelling at the appellant. He said words to the effect of “You can’t even get the kids ready for school. You can’t even get some fucking socks on them. You are a waste of existence.” The respondent then attempted to push the appellant. The appellant grabbed his arm and dug her fingernails in. She then pushed the respondent and said to her daughter “you saw that?” The appellant subsequently left the house but returned shortly after to retrieve her phone. The respondent stood in front of her. The appellant pushed past the respondent and retrieved her phone. She then drove straight to the police station.[3] The police report of the incident does not mention any other form of physical violence by the respondent against the appellant on that day.[4] [3]Appellant’s Affidavit sworn 29 January 2018 annexed to the Police Protection Notice of 29 January 2018; Annexure “KN-7” of the Appellant’s Affidavit filed 19 July 2019.[4]Annexure “KN-7” of the Appellant’s Affidavit filed 19 July 2019; Annexure “B” of the Respondent’s affidavit filed 29 July 2019. The respondent also gave a statement to police. He acknowledged that a verbal altercation occurred between the two and was witnessed by their children; however, he denied any actual or attempted physical violence.[5] That same day, police served the respondent with a PPN naming the appellant as the aggrieved and the respondent as the respondent.[6] Their three children were also named on the order. A temporary protection order (“TPO”) was made by consent on 6 February 2018.[7][5]Respondent’s Affidavit filed 29 July 2017, p 13.[6]Annexure “N” to the affidavit of Appellant filed 12 February 2019; Respondent’s affidavit filed 27 July 2019, p 2. [7]Respondent’s affidavit filed 27 July 2019, p 2.

Evidence

Evidence Before The Court

This list is only a snapshot of the numerous complaints the appellant made against the respondent and others in her voluminous affidavit material. I have read through all of the appellant’s affidavits and accompanying attachments. Evidence at the hearingAppellant’s evidence The appellant gave four accounts of the events of 19 November 2017 and 29 January 2018. The accounts are contained in the police statement and affidavit sworn 29 January 2018, and subsequent affidavits filed on 12 February 2019 and 19 July 2019. The affidavit filed 19 July 2019 appears to be a direct copy of the affidavit filed 12 February 2019, with some minor additions. There is also an affidavit sworn 17 May 2019 which was before the Magistrate and to which I have had regard.First alleged act of domestic violence by the respondent upon the appellant on 19 November 2017 In her affidavit sworn 28 January 2018, the appellant stated that on 19 November 2017, following an argument, the respondent pushed the appellant up against a cupboard door by placing his hands around the base of her neck and pushing her backwards. When he did this she pushed him in the chest causing him to let go. In her next affidavit filed 12 February 2019, the appellant said the respondent pushed her up against a cupboard door, put both of his hands around her throat, and choked her until she almost couldn’t breathe. The appellant was able to get her right arm up under his left arm, grab his collarbone and stick her long nails into his skin. Under cross-examination, it was put to her that in her original statement of 29 January 2018, the appellant had said “he placed his hands around the back of my neck and pushed me backwards” and that she made no mention of the respondent squeezing her neck. The appellant claimed the police officer had written her statement because she was in a state of trauma and she signed the statement under duress.[37] The appellant maintained the police statement was not accurate when it recorded “I pushed him back”.[38] Under cross-examination, the appellant denied she had told her doctor, Koshi George, that “both of them tried to strangulate each other”.[39][37]T1-61, ll. 30-45.[38]T1-63.[39]T1-65, Cf Dr Koshi George’s Report. Second alleged act of domestic violence by the respondent upon the appellant on 29 January 2018 In her statement to police sworn 29 January 2018, the appellant described the incident as a verbal argument between the appellant and respondent. She said the respondent moved close to her and was yelling at her to leave the house. He went to push her so she grabbed his right arm, dug her fingernails into his arm and pushed him, before leaving the house. She returned to get her phone. The respondent told her to get out. She pushed past him and left. The appellant made no mention of actual or attempted physical violence by the respondent. The appellant’s second account, in an affidavit sworn on 29 January 18, corresponds with the police statement. The appellant deposed that, after they were arguing in the bathroom, she followed the respondent out of the bathroom. The respondent attempted to push her so she grabbed his right arm and dug her fingernails in. She then pushed the respondent and said to her daughter “you saw that?”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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