Be v PR

Case [2024] QDC 70

DISTRICT COURT OF QUEENSLAND

CITATION:

BE v PR  [2024] QDC 70

PARTIES:

BE

(appellant)

v
PR

(respondent)

FILE NO/S:

982/24

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

Date of orders: 13 May 2024

Date of publication of reasons: 15 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2024

JUDGES:

Smith DCJA

ORDER:

1.   The appeal is allowed.

2.   I vary the Magistrate’s order by deleting the order that the ouster clause be in force for five years and in lieu thereof it is ordered the ouster clause is to be in force until the retrial of this matter or earlier order.

3.   I remit the matter to the Magistrates Court at Brisbane for a retrial before a different Magistrate.

4.   The matter is listed for mention at 9am in the Magistrates Court at Brisbane on 16 May 2024 for an urgent listing for hearing.

5. I recommend the Queensland Police Service appear for the aggrieved under section 147 of the Domestic and Family Violence Protection Act 2012 (Qld) or that legal aid be granted.

6.   The appellant is to file and serve his submissions on the question of costs within seven days not exceeding three pages. The aggrieved is to file and serve her submissions on the question of costs not exceeding three pages within 14 days. The Queensland Police service is to file its submissions on costs within 14 days not exceeding three pages.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – PROTECTION ORDERS – application to vary protection order – ouster order made – where the appellant was self-represented – where the appellant attempted to file an affidavit but this was not accepted – where the affidavit filed before this court shows a triable issue – whether a miscarriage of justice if the matter is not reheard on all of the material including the appellant’s material – the relevance of proceedings in the Federal Circuit and Family Court of Australia concerning this matter  – whether full disclosure by the aggrieved - where the order involved the appellant being removed from his business and home – whether the order was necessary or desirable – where the order was not requested by the respondent, police prosecutor and contrary to the wishes of the respondent – whether the Magistrate had the power to make an ouster order where there was no written application for it – whether a retrial should occur in the District Court – where the parties were not ready for a retrial – in the interests of justice to order a retrial in the Magistrates’ Court 

APPEAL AND NEW TRIAL – APPEAL – admission of fresh evidence where miscarriage of justice may result – whether Magistrate erred in amending application from the bench – whether application for adjournment should have been considered – where appropriate to order retrial    

Appeal Costs Fund Act 1973 (Qld)
Domestic Violence…

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AGLC
Be v PR [2024] QDC 70
Case
[2024] QDC 70
Decision Date

CaseChat Overview and Summary

The case of Be v PR involved a dispute over a protection order issued under the Domestic and Family Violence Protection Act 2012 (Qld). The appellant, self-represented, sought to vary the protection order which had ordered him to vacate his home and business. The aggrieved party, who had previously sought similar relief in the Federal Circuit and Family Court of Australia (FCFCA), aimed to occupy the property for a period of time. The legal issues before the court included whether the Magistrates Court had exclusive jurisdiction to entertain the ouster application, whether the Magistrate had erred in making the five-year ouster order, and if procedural fairness was observed in denying an adjournment. The court also considered whether a retrial was warranted due to the potential for a miscarriage of justice and the relevance of proceedings in the FCFCA.

The court found that the Magistrate had jurisdiction to hear the application despite the FCFCA proceedings, but the Magistrate's failure to consider the FCFCA decision constituted an error. The court held that the five-year ouster order was unreasonable given the appellant's occupation of the property for both living and business purposes. Additionally, the court concluded that the Magistrate's refusal to adjourn the hearing was a breach of procedural fairness. Consequently, the appeal was allowed, the five-year ouster order was varied to be in force until the retrial, and the matter was remitted to the Magistrates Court for a retrial before a different Magistrate. The court also recommended that the Queensland Police Service provide support to the aggrieved party or that legal aid be granted.

The final orders of the court included allowing the appeal, varying the ouster order to be in force until the retrial, remitting the matter for a retrial, listing the matter for an urgent hearing, and recommending support or legal aid for the aggrieved party. The court further directed the parties to file submissions on the question of costs within specified timeframes.

Orders

Orders of the court

1. The appeal is allowed.

2. I vary the Magistrate’s order by deleting the order that the ouster clause be in force for five years and in lieu thereof it is ordered the ouster clause is to be in force until the retrial of this matter or earlier order.

3. I remit the matter to the Magistrates Court at Brisbane for a retrial before a different Magistrate.

4. The matter is listed for mention at 9am in the Magistrates Court at Brisbane on 16 May 2024 for an urgent listing for hearing.

5. I recommend the Queensland Police Service appear for the aggrieved under section 147 of the Domestic and Family Violence Protection Act 2012 (Qld) or that legal aid be granted.

6. The appellant is to file and serve his submissions on the question of costs within seven days not exceeding three pages. The aggrieved is to file and serve her submissions on the question of costs not exceeding three pages within 14 days. The Queensland Police service is to file its submissions on costs within 14 days not exceeding three pages.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appeal should be dismissed.Further evidence As I indicated above further evidence has been filed. The appellant in his affidavit filed 29 April 2024 swears that he has been the registered proprietor of 98 W- Road, B- since March 2020. He says he first met the aggrieved in April 2020 when she was here on a temporary visa from China. She fell pregnant shortly thereafter. He alleges the aggrieved did not contribute money to the relationship. She earnt money by regularly acquiring, repairing and on selling industrial machines which she kept for herself or transferred to her family in China. By June 2020 there were arguments. He alleges the aggrieved became angry and smashed a large glass plate full of food on the floor next to the child. The argument escalated into pushing, pulling and yelling by both of them. He denies the strangulation and punching.[3] He consented to a protection order in the Magistrates Court without admissions.[3]Indeed this is consistent with the Police Protection Notice Exhibit 4 where the police noted that the injuries to the appellant (which seem to be consistent with his version) and police did not see injuries on the aggrieved corroborating her version. He denies that the aggrieved is scared of him. She has come to the home multiple times without his consent and has been caught on security cameras doing this. He had a recording of a conversation in September 2023. In her affidavit filed 11 March 2024, she attempted to apply for an ouster order in the FCFCA. Exhibit D was the aggrieved’s application in that court in which indeed she applied that the appellant vacate the property at Burpengary and be restrained by injunction from using it. The matter came before Judge Coates on 23 January 2024. There is a transcript of this proceeding attached as Exhibit E to the affidavit. The aggrieved told the Judge that she wanted to use the house and land for stable accommodation. She wanted to occupy the land until the daughter was 18 years of age. It was noted that the husband had brought the land and house to the relationship and it was a short relationship. The aggrieved said that regarding the property she wanted to get all of her equipment back. The aggrieved did not want to own the property. The Magistrate doubted the Court could make an order that she sought regarding occupation. The Judge ultimately set the matter for trial noting that the application to use the house for 15 years was a trial issue if the Court had power. He needed to make orders for valuation concerning the machinery. The aggrieved said there was an excavator, cherry picker and two trucks and she wanted these back into her possession. It was agreed by Mr Wilson, barrister for the appellant, that that property was the aggrieved’s. The Judge indicated he could make an order for that specific property to be given back to her. The Judge made directions concerning the trial. With respect to the directions made to file material, the appellant left this to his lawyer who then withdrew. About two to three weeks before the hearing, the appellant began emailing the registry at the Brisbane Magistrates Court to try and get advice as to the process. On 14 March 2024, he was sent two emails by the registry that no directions were ordered for the filing of material other than on 6 November 2023. He attaches these emails. On the day of the hearing he had prepared an affidavit on his phone which he wished to file. He went to the registry to print, execute and file it but the registry had a problem with their computer and it could not be done. He was told to go upstairs and the registry would let the Court know about the problem.

Decision

Reasons for decision

The police prosecutor informed the Magistrate that the aggrieved was seeking to stay for 30 days to retrieve her property but the Magistrate said “but I’m trying to explain that I’m not going to stipulate an end date”. And further “if I’m making an ouster order for the aggrieved and her child to return to the property it’s a matter for her to elect how long she stays there.” Decision In the reasons for decision, the Magistrate marked the various affidavits, orders and applications exhibits. The Magistrate then referred to the allegations of domestic violence made by the aggrieved and quoted extensively from the aggrieved’s affidavit. The Magistrate was satisfied that acts of domestic violence had occurred. She accepted the evidence of the aggrieved that the appellant was being difficult and using control of the machines at the matrimonial property to commit further acts of domestic violence. She was then satisfied that an ouster order which entitled the aggrieved and the child to resume occupancy of the property at Burpengary was necessary. The Magistrate rejected submissions that the Family Court had jurisdiction concerning this matter. The order was made.Notice of appeal The appellant appeals the decision of the Magistrate on a number of grounds namely:1. The Magistrate erred in law in proceeding to hear the application when the Federal Circuit and Family Court of Australia (“FCFCA”) had already determined the application.2. The Magistrate erred in law in finding that the Magistrates Court had exclusive jurisdiction to entertain an ouster application.3. The Magistrate’s discretion miscarried when making a five-year ouster order because it involved the appellant being removed from his home and business whilst the aggrieved was living and working elsewhere. It was not necessary or desirable for this to occur and was contrary to the wishes of the aggrieved and not requested by the police prosecutor.4. The Magistrate failed to accord procedural fairness in refusing to adjourn the hearing. It is submitted that the hearing should be heard afresh and on the hearing of the appeal the appellant would seek to adduce fresh evidence.Appellant’s outline of argument The appellant submits that the Magistrate erred in determining the same application as the FCFCA. It is submitted that the FCFCA is seized of jurisdiction in this case. The Magistrate was told of these proceedings and the appellant correctly indicated that the aggrieved had tried to make the same application in the FCFCA. The Magistrate failed to have any regard to the order of Judge Coates. It is submitted there has been forum shopping in the present case by the aggrieved. It is further submitted the Magistrate erred in finding that the Magistrate’s Court was the only Court with jurisdiction to make this order. This is contrary to s 114(2A) of the Family Law Act. This infected the decision of the Magistrate to make the order. It is further submitted the discretion to make the five-year order was so unreasonable it can be inferred that error occurred; particularly considering the appellant lives and works at the property. Indeed, the QPS indicated to the Magistrate that the aggrieved was not seeking to take over the property. Section 64(1) of the DFVP Act provides that the Court must consider the wishes expressed by the aggrieved.

Ratio Decidendi

Legal Principle Established

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