Atj v SLK
[2018] QDC 191
•23 April 2018 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
ATJ v SLK [2018] QDC 191
PARTIES:
ATJ
(appellant)
v
SLK
(respondent)
FILE NO/S:
74/17
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Yeppoon
DELIVERED ON:
23 April 2018 (ex tempore)
DELIVERED AT:
Mackay
HEARING DATE:
23 April 2018
JUDGE:
Farr SC DCJ
ORDER:
1. The appeal is allowed;
2. The decision is set aside;
3. The matter is remitted to the Magistrates Court at Yeppoon.
CATCHWORDS:
APPEAL – domestic violence - appeal against imposition of domestic violence order – where the application for a domestic violence order was served on the appellant two days prior to the hearing and the appellant did not attend the hearing – where the material relied upon by the respondent at the hearing related to conduct relied upon for a previous domestic violence order application and all other contact complained of did not constitute domestic violence
Domestic and Family Violence Protection Act 2012 (Qld) s 165, s 168, s 196
House v The King [1936] 55 CLR 499
COUNSEL:
The applicant appeared on her own behalf
The respondent appeared on her own behalf
SOLICITORS:
The applicant appeared on her own behalf
The respondent appeared on her own behalf
The appellant has appealed against a decision made in the Magistrates Court at Yeppoon on the 29th of June 2016 to make a domestic violence order in which the appellant was named as the respondent. She filed a notice of appeal on the 1st of November 2017, which was therefore well outside the 28 day time period allowed by section 165 subsection (4) of the Domestic and Family Violence Protection Act of 2012. I shall just refer to that as the Act. Leave to extend time within which to appeal has previously been granted by Judge Smith and I do not need to consider that matter further.
Pursuant to section 168(1) of the Act, an appeal must be decided on the evidence and proceedings before the Court that made the decision being appealed against. Pursuant to section 168(2), this court may order that the appeal be heard afresh, in whole or part, and, as I discern the appellant’s rather convoluted submissions, she seeks such an order. However, for reasons which will become apparent during this decision, such an order is unnecessary with a couple of exceptions.
The hearing in the court below was conducted in the absence of the appellant. The learned magistrate, rather remarkably, in my view, decided to proceed to hear the matter, despite being advised that a copy of the application had only been served on the respondent – or the appellant to this proceedings – two days earlier, on the 27th of June, 360 kilometres away in Mackay. She did not appear, of course, two days later.
The only material placed before the court below was the application itself. No oral evidence was given. In that application, the respondent advised that the relationship between the parties ended in October of 2013. In box number 6 on the application, which was entitled ‘Grounds for a Protection Order’, the respondent to this appeal said:
“ATJ and myself were in a relationship from January 2008 and separated in September 2008 and resumed in November 2008 and broke down again in 2010, when four of ATJ’s children were removed from her care. In January 2010, I had a child and got back in a relationship with ATJ. Finally, in 2013, our relationship ended.
During our relationship, ATJ showed very erratic behaviour, attempting suicide on many occasions. The last time was 19/1/15. She removed all belongings from my property and was only there for five weeks, due to her having nowhere to go and was only there as a friend, nothing more. After moving out, she sent me harassing and intimidating messages through Facebook, text and increased with the threats and abuse, saying she will come, take my daughter, K, calling me a slut, a bad parent and more vulgar names. I asked her to stop and she failed to do so. That’s when an order was put in place. She then broke the order by contacting me and now, it’s started again, contacting me with threats.”
Over the page, when asked to state grounds as to why her child should be named in the order, the respondent to this appeal said:
“ATJ has threatened to kidnap K, as she is under some illusion that she can. She has no legal rights to her, or named on birth certificate, and has no biological connection to K.”
And finally, on page 7 of the application, she said, when asked the question, “Do you want to prohibit the respondent from contacting the aggrieved or asking someone else to contact the aggrieved?” she said, “Yes,” and the reason she gave was:
“Due to her new threats, through text and phone calls, intimidating me.”
The reference to “an order was put in place” that I just read a moment ago appears to be a reference to an earlier domestic violence order that was made in 2015 for a period of two years, taken out by the respondent to this appeal with the appellant named as the respondent to the order.
On the basis of the uncontested allegations that were contained in that application, that is, the application, the subject of this matter, the magistrate was satisfied that the requirements of section 37 of the Act had been met and he issued the order. The appellant has sought leave to adduce fresh evidence, that being a copy of the application for a protection order that was filed back on the 27th of January 2015, and which was the basis for the order that was made in that year. I am, of course, aware of the legal considerations that apply when determining whether to allow fresh evidence and I will grant such leave, for reasons which will become very apparent.
In that application, the respondent advised that her relationship with the appellant had ended in October 2013 and that the appellant had moved from where they had been living together to another address in February of 2014. Again, in section 6 of that application, the applicant said as follows:
“We have been together since January 2008 and separated September 2008, got back together November 2008. Relationship broke down November 2010, when four of AB’s children were removed from care. In January 2010, I had a child and October 2013, relationship ended. During relationship, ATJ attempted suicide on numerous occasions, the last being 17 August 2014. Recently, ATJ moved back into my home for five weeks. On 19/1/15, she moved all belongings from my property. She was in my home as a friend, to help her out.
Since then, ATJ has been sending harassing and intimidating texts, Facebook messages to me that are increasing in threat and regularity. I am concerned she will follow through with threats, eg. taking my child, calling me inappropriate names (slut), calling me a bad parent. I feel this behaviour will increase and not stop. I have asked her to stop texting me, which she has failed to do. On numerous texts, she has threatened to kidnap my daughter herself, and using other people.”
She also sought in that application to have her child, K, named in the order and the reason for that, which was given in support, was:
“She has threatened to kidnap the child which is not biologically hers or named as a parent on her birth certificate.”
And, as I say, she also requested that the order prohibit the appellant from contacting her “due to the increasing phone messages and texts, harassing and intimidating me”.
Now, the similarity between those two applications is immediately apparent. In this appeal, the respondent has filed an outline of submissions and, relevantly, in that document, she said in paragraph 3, the following:
“Due to the text messages and phone call, text messages 8 June: I would like to arrange a time to visit K, please. Just let me know what suits for K and I will be there. Cheers, ATJ (Mumu).
9 June: You will never stop me from loving our daughter, even if I don’t see her, she will always be in my heart.
15 June: I would like to arrange a time to visit K, please. Just let me know what suits for K and I will be there. Cheers, ATJ (mumu).” On 16 June, I replied with, “Stop calling and messaging this number.” I then received a call 16 June, and this was the voice message left, “As earlier requested that SLK return my call, I have sought legal action and legal advice – sorry, legal advice at this present moment, and I’ve also sought police advice that the matter is urgent and that SLK reply to this phone call. Thank you very much.”
Now, the respondent has confirmed in oral submissions before me today that those messages were the only contact that she has received from the appellant since the previous order expired, and that the only other contact during the currency of that prior order was some contact in the very early months, perhaps May, June, July, thereabouts, of 2015, and then once via text message in early 2017 to advise the location of a dog that was at a veterinary practice at the time.
Now, I note that the respondent has not given evidence in this court of these contacts, nor has she been asked to do so. Nevertheless, I note that a court may inform itself in any way deemed appropriate in a domestic violence application hearing, and it would seem appropriate that I act on the information which is before the court by way of the written submissions, and that which was submitted to me from the bar table today. I note also that the appellant, in her material, has identified the same contacts as the respondent, so there is in fact no factual dispute between them regarding the contacts, so leave to place this additional information of the particulars of the contacts themselves before this court is therefore given. Of course, that all meant that no particulars of the actual contacts were before the magistrate when he made his decision.
The effect of this information is that the only new contact actually, as I understand it, complained of by the respondent are those three text messages and the one voice message. Whilst the respondent says that she found those messages intimidating, it must be said that, to the objective observer, there is nothing that was said in any of those messages that is likely to fall within the very wide definition of domestic violence under the Act, but the problem is that that is not consistent, that is, that the texts being alleged to be intimidating, harassing or threatening, is not consistent, given their content, with the information placed before the magistrate below. As I have already said, in her application, the respondent alleged continuing threats of harm, verbal abuse and threats to kidnap the child. In other words, she has alleged in her application that the appellant has continued to harass and intimidate her in those ways. The evidence before this court does not support any such allegation.
The respondent did not advise the learned magistrate that the alleged domestic violence upon which she relied, at least in relation to that which has occurred since the previous order ended, occurred at that stage. The magistrate could only have presumed that behaviour similar to that which was particularised was continuing to the present time, nor did the magistrate receive any details as to the actual contact that was made or the words that were used in the contacts that were made since the cessation of the previous order. The magistrate, in my view, was positively misled when he turned his mind to whether the relevant test had been met. It follows that the learned magistrate acted upon a false factual basis, that is, there can be no doubt he would have been misled by the material that was before the court.
As this is an appeal against the exercise of the magistrate’s discretion, an error in the sense of House v The King [1936] 55 CLR 499 at 504 to 505 sense needs to be demonstrated. I will not detail those passages from that judgment. They are well understood by all lawyers, and I do not need to go through that with the parties present here today. It suffices to say that I am well satisfied that a significant factual error has occurred, as I have already detailed. The question then is what is the appropriate order. Under section 169 of the Act, the court has power to:
“(a) confirm the decision appealed against, or (b) vary the decision appealed against, or (c) set aside the decision and substitute another decision, or (d) set aside the decision and remit the matter to the court that made the decision.”
On the facts before me, the respondent has sought a domestic violence order based on all of the alleged behaviours of the appellant, as I understand it, dating back a number of years and including a time prior to which a previous order was made. It seems to me unlikely that her application based upon that prior conduct would ultimately be successful, based only on that conduct in all of the circumstances, particularly given the lengthy passage of time that has passed and the nature of the recent contacts, but nevertheless it is a matter that needs to be assessed in an appropriate way, after all relevant evidence and submissions have been made, that is, she is entitled, if she intends to continue with this application, to place evidence before the court of all of the alleged events in a clear and comprehensible way such that the magistrate is properly informed of the true position.
As I say, whilst it seems to me unlikely that the behaviour that has occurred since the cessation of the previous order could justify and satisfy the test of domestic violence, even if that were the case, the magistrate would still need to turn his mind to that prior behaviour to determine whether that might constitute domestic violence of a continuing nature, such that it is appropriate to make a second order based upon the same evidence. Of course, whilst it is a matter for the magistrate, it seems, I must say, unlikely, but nevertheless that is a matter for that court. It is a question for that court to determine after hearing all of the appropriate evidence and submissions, and this court is not in that position at the moment. Accordingly, it is appropriate to allow this appeal, set aside the decision and remit the matter to the Magistrates Court at Yeppoon, and I so order.
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