BJR v BF

[2025] QDC 131

DISTRICT COURT OF QUEENSLAND

LOURY KC DCJ

DC No 4 of 2024

BJR  Appellant

v

BF  Respondent  

GYMPIE

18 SEPTEMBER 2025

JUDGMENT

LOURY KC DCJ:

1.   On 21 August 2024 cross-applications for Domestic Violence Orders were heard in respect of both the appellant and respondent in the Gympie Magistrates Court. The application by the respondent was withdrawn as no act of domestic violence was alleged. The respondent was advised to seek legal advice as he may be entitled to lodge a new application.

2.   On the same date a temporary protection order was made naming the appellant as the aggrieved. The three children of the appellant and respondent were named in the order.

3.   On 29 August 2024 a second application for a protection order was filed by the respondent in the Toowoomba Magistrates Court.

4.   On 18 September 2024 a final protection order was made in the Gympie Magistrates Court for the protection of the appellant naming the three children. That order was made by consent on a without admissions, basis. The respondent was present in court when the order was made.

5.   On 25 September 2024 the application filed by the respondent in the Toowoomba Magistrates Court was withdrawn. The respondent was present in court.

6.   On 30 September 2024 a third application for a protection order was filed by the respondent in the Atherton Magistrates Court.

7.   On 9 October 2024 a temporary protection order was made for the protection of the respondent with the children named in the order. On 9 October 2024 the application was adjourned for mention on 12 November 2024. The court file endorsed by the learned Magistrate indicates that the matter was adjourned for mention and not hearing or trial.

8.   On 9 October 2024 a paralegal from the appellant’s solicitor’s firm wrote to the learned Magistrate indicating that an application for a grant of legal aid had been made on her behalf and a request was made to appear by telephone. It seems no appearance was made.

9.   A notice of adjournment was served on the appellant. That notice indicated that the hearing of the application had been adjourned for “application” on 12 November 2024. The notice was not consistent with the order made by the learned Magistrate that the matter be listed for mention. It is unknown to me what “application” was intended to convey in the notice of adjournment.

10.  On 9 October 2024 the appellant’s grant of legal aid was approved.

11.  On 12 November 2024 the learned Magistrate proceeded to hear the application in the absence of the appellant. No appearance was made by the appellant’s solicitors. The learned Magistrate was told by the respondent that the appellant had applied for legal aid but the outcome of that application was unknown.

12.  On 30 July 2025 the respondent sent an email to the appellant’s solicitors and to the District Court registry in which he indicated that he wanted the protection order made in the Atherton Magistrates Court removed so that the children were able to see their mother. The respondent has appeared by telephone today. He has confirmed that he wants the appellant to be able to see the children and that he wants the matter remitted to the Magistrates Court at Atherton to be reheard and decided according to law.

13. Section 41F(5) of the Domestic and Family Violence Protection Act 2012 required each party to the application filed in the Atherton Magistrates Court to inform the court of the existence of the protection order made on 18 September 2024.

14.  In the application filed by the respondent he indicated in answer to a question relating to the details of any other orders that there was a “Queensland Domestic Violence Order”. The application required him to provide a copy of that order which he did not.

15.  The appellant or her solicitors did not inform the court in Atherton of the existence of the protection order made on the 18 September 2024.

16.  Section 41F of the Domestic Violence Family Protection Act 2012 required the learned Magistrate to take into account the court records relating to the making of the protection order in Gympie on 18 September 2024. No reasons were given by the learned Magistrate in Atherton when he made the protection order for the protection of the respondent. There is no indication as to whether he took into account, as required, the court records relating to the making of the protection order in Gympie. That amounts to a legal error.

17.  Further rule 23(2)(b) of the Domestic and Family Violence Protection Rules 2014 requires that if a matter is not listed for a final hearing, a respondent is entitled to act on the basis that no final orders will be made. Whilst a party to an application ought to appear on all mentions of a matter that does not mean that if they do not the court can unilaterally change the nature of the listing.[1]

[1] SNW v TRD [2023] QDC 149.

18.  The notice of adjournment did not accord with the orders made by the learned Magistrate that the application was listed for mention only on 12 November 2024. It was not therefore in accordance with the rules that the final order be made on 12 November 2024. The making of the protection order was unfair in those circumstances and denied the appellant procedural fairness.

19.  As indicated in the decision of Judge Porter KC in SNW v TRD[2] where there is a default in appearance that does not give the learned Magistrate power to make the protection order without any substantive consideration of the merits of the matter and without any reasons being given. Protection orders must be made on the merits and must be accompanied by adequate reasons.[3]

[2] [2023] QDC 149.

[3] FLC v MRT [2021] QDC 264.

20.  The appeal must therefore be allowed.

21.  The following orders are made:

a.   The appeal is allowed.

b.   The protection order made in the Atherton Magistrates Court on 12 November 2024 is set aside.

c.   The application for the protection order is remitted to the Atherton Magistrates Court for rehearing before a different Magistrate.

d.   The temporary protection order made on 9 October 2024 is reinstated in identical terms to the order made on that date.

e.   There be no order for costs.