Bailey (a pseudonym) v Bailey (a pseudonym)

Case [2021] QDC 99

DISTRICT COURT OF QUEENSLAND

CITATION:

Bailey (a pseudonym) v Bailey (a pseudonym) [2021] QDC 99

PARTIES:

BAILEY (a pseudonym)

(Appellant)

v

BAILEY (a pseudonym)

(First Respondent)

QUEENSLAND POLICE SERVICE

(Second Respondent)

FILE NO:

2551/2020

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

9 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2021

JUDGE:

Dick SC DCJ

ORDER:

Confirm the decision appealed against.  Appeal dismissed.

CATCHWORDS:

Domestic violence – requirement “must ensure”

LEGISLATION:

Domestic & Family Violence Protection Act 2012

CASES:

R v Smith [2004] QCA 417;

R v Mokbel [2010] VSCA 11;

GKE v EUT [2014] QDC 248;

MDE v MLG [2015] QDC 151
COUNSEL:

S Fisher for the Appellant
The First Respondent appeared on her own behalf
I Fraser for the Second Respondent

SOLICITORS:

Mark Stone Solicitor for the Appellant
The First Respondent appeared on her own behalf
Queensland Police Service Legal Unit for the Second Respondent

Introduction

  1. This appeal is brought pursuant to s 164 of the Domestic & Family Violence Protection Act 2012 (the Act).  The Appellant appeals against the decision of the Magistrates Court made on 11 August 2020 that a domestic violence protection order be issued pursuant to s 51(1) of the Act.

  2. The Commissioner of Police has elected to become a respondent in the proceeding.

    Jurisdiction to amend their Notice of Appeal

  3. The court has power as well as jurisdiction to amend the notice of appeal, under s 224 of the Justices Act 1886.  The Appellant furnished an amended notice of appeal to the court on 5 November 2020.  By an: intervention notice – registrar’s reference (DCA8) dated 13 November 2020, the registrar has referred to the court the amended notice of appeal.  This was an intervention on the initiative of the court.  The new grounds of appeal omitted Ground 3 of the original appeal and the proposed additional appeal ground is as follows:

    “The court erred in law by failing to ensure that the appellant as respondent in the proceedings MAG-0083757-20(5) who was before the Magistrates Court in person on 11 May 2020 failed to understand any of the matters referred to in s 82(2) of the Domestic & Family Violence Protection Act 2012 as required by s 51(7).”

  4. The new ground of appeal is very similar to the original Ground 2.  Accordingly I grant leave for the amended notice of appeal.

    Background

  5. The parties were married and there is no argument there is a relevant relationship within the meaning of the Act.  At the time of the Magistrates Court hearing the parties had separated.

    Legislative framework

  6. Section 51 of the Act sets out the elements that a court must be satisfied of before it may exercise its discretion to make a domestic violence order by consent:

    “(51)A court may make domestic violence order by consent:

    (1)if the parties to a proceeding for a domestic violence order, or a variation of a domestic violence order, consent to the making of the order, or do not…

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Bailey (a pseudonym) v Bailey (a pseudonym) [2021] QDC 99
Case
[2021] QDC 99
Decision Date

CaseChat Overview and Summary

In the case of Bailey (a pseudonym) v Bailey (a pseudonym), the dispute revolved around the interpretation and application of the Domestic Violence Act in the context of a domestic violence order. The matter was heard in the Supreme Court, where the respondent challenged the validity of the order based on alleged procedural deficiencies. The central issue was whether the court's failure to comply with specific statutory obligations under section 84(2) of the Act rendered the domestic violence order invalid. The court had to determine whether the non-compliance with section 84(2) of the Act, which requires the court to ensure that the respondent understands the effect of the proposed order, invalidated the order.

The court examined the statutory framework, particularly section 84(2) of the Act, which mandates that the court must ensure the respondent understands the purpose, terms, and effect of the proposed domestic violence order. The court also considered section 84(5), which stipulates that failure to comply with section 84 does not invalidate a domestic violence order, and section 84(4), which allows for flexibility in the process to ensure compliance with section 84(2). Given these provisions, the court had to balance the statutory requirements with the principle of regularity, which presumes that orders are valid unless proven otherwise.

Upon reviewing the evidence and statutory provisions, the court concluded that the non-compliance with section 84(2) did not invalidate the domestic violence order. The court held that section 84(5) operates as a presumption of regularity, meaning that the order remains valid until it is set aside. The court found that the statutory framework allowed for flexibility in how the court could ensure compliance with section 84(2), and that the respondent had not demonstrated that the non-compliance had prejudiced them. Therefore, the court dismissed the appeal and confirmed the decision of the lower court.

The court's final orders were to dismiss the appeal and confirm the decision of the Magistrates Court, thereby upholding the validity of the domestic violence order.

Orders

Orders of the court

Confirm the decision appealed against. Appeal dismissed.

Background

Background to the litigation

The new ground of appeal is very similar to the original Ground 2. Accordingly I grant leave for the amended notice of appeal.Background The parties were married and there is no argument there is a relevant relationship within the meaning of the Act. At the time of the Magistrates Court hearing the parties had separated.Legislative framework Section 51 of the Act sets out the elements that a court must be satisfied of before it may exercise its discretion to make a domestic violence order by consent:“(51)A court may make domestic violence order by consent:(1)if the parties to a proceeding for a domestic violence order, or a variation of a domestic violence order, consent to the making of the order, or do not oppose the making of the order, the court may make the order—(a) if the court is satisfied that a relevant relationship exists between the aggrieved and the respondent; and(b) without being satisfied as to any matter mentioned in—(i)for a proceeding for a protection order— section 37(1)(b) or (c); or(ii)for a proceeding for a temporary protection order—section 45(1)(b); and(iii)whether or not the respondent admits to all or any of the particulars of the application. Section 51(5) of the Act provides:“Before making or varying a domestic violence order under this section, the court may conduct a hearing in relation to the particulars of the application if, in the court’s opinion, it is in the interests of justice to do so.” Section 145—Evidence(1)In a proceeding under this act, a court—(a)is not bound by the rules of evidence or any practices or procedures applying to courts of record, and(b)may inform itself in any way it considers appropriate.(2)…(3) If the court is to be satisfied of a matter, the court need only be satisfied to the matter on the balance of probabilities,(4)To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order. Relevantly, for the present purposes, s 84(2) of the Act imposes an obligation upon the Magistrate to ensure that the parties understand the effect of an order: “(2)If a court is about to make a domestic violence order, and the respondent is before the court, the court must ensure the respondent understands—(a)the purpose, terms and the effect of the proposed order,…(v) the consequences of a domestic violence order as set out in sub-paragraphs (ii) to (iv) can only be avoided if the respondent successfully appeals the domestic violence order; and(b)the type of behaviour that constitutes domestic violence; and Note—see the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12 which define the terms domestic violence, emotional or physical abuse and economic abuse (c)what may follow if the respondent contravenes the proposed order; and (d)that the respondent may apply for a variation of the order.” The requirement in s 84(2) of the Act arises when a court is “about to make a domestic violence order” and therefore, is separate to the requirement in s 85 of the Act which imposes an obligation on the court, once an order has been made, to provide a written explanation of the order and its effect. The obligation in s 84(2) pre-dates the making of the order while that in s 85 post-dates the order.

Evidence

Evidence Before The Court

Section 145—Evidence(1)In a proceeding under this act, a court—(a)is not bound by the rules of evidence or any practices or procedures applying to courts of record, and(b)may inform itself in any way it considers appropriate.(2)…(3) If the court is to be satisfied of a matter, the court need only be satisfied to the matter on the balance of probabilities,(4)To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order. Relevantly, for the present purposes, s 84(2) of the Act imposes an obligation upon the Magistrate to ensure that the parties understand the effect of an order: “(2)If a court is about to make a domestic violence order, and the respondent is before the court, the court must ensure the respondent understands—(a)the purpose, terms and the effect of the proposed order,…(v) the consequences of a domestic violence order as set out in sub-paragraphs (ii) to (iv) can only be avoided if the respondent successfully appeals the domestic violence order; and(b)the type of behaviour that constitutes domestic violence; and Note—see the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12 which define the terms domestic violence, emotional or physical abuse and economic abuse (c)what may follow if the respondent contravenes the proposed order; and (d)that the respondent may apply for a variation of the order.” The requirement in s 84(2) of the Act arises when a court is “about to make a domestic violence order” and therefore, is separate to the requirement in s 85 of the Act which imposes an obligation on the court, once an order has been made, to provide a written explanation of the order and its effect. The obligation in s 84(2) pre-dates the making of the order while that in s 85 post-dates the order. Section 84(5) of the Act relevantly states, “failure to comply with this section does not invalidate or otherwise affect a domestic violence order.” The parties agreed that s 84(5) of the Act is essentially a “presumption of regularity provision” which provides that, notwithstanding non-compliance with s 84, an order will be valid until such time as it is set aside. Finally, s 84(4) of the Act provides:“The process that the court adopts to comply with the section may include using services of, or help from, other people to the extent that the court considers appropriate. Examples of services or help that the court may consider appropriate-(1)the court may arrange for the clerk, or a public service employee at the court, to explain the order to an aggrieved or respondent.(2)a professional interpreter or the telephone interpreter service (but not a relative or friend of the aggrieved or respondent) may be used to explain the order to an aggrieved or respondent(3)explanatory notes prepared for aggrieveds or respondents, including non-English speakers may be given to an aggrieved or respondent(4)the court may arrange for the local government indigenous regional council under the Local Government Act2009, community justice group or group of elders for someone to explain the order to an aggrieved or respondent(5)the court may arrange with a non-government service provider for a disability case worker to explain the order to an aggrieved or respondent who has a disability.”The documents

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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