GSX v NJP
[2025] QDC 122
•1 September 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
GSX v NJP and Anor [2025] QDC 122
PARTIES:
GSX
(Appellant)v
NJP
(First Respondent)and
QUEENSLAND POLICE SERVICE (ACTING SERGEANT BNC)
(Second Respondent)and
QUEENSLAND POLICE SERVICE (SENIOR CONSTABLE PNF)
(Third Respondent)FILE NO:
BD 221160/24
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
1 September 2025
DELIVERED AT:
Brisbane
HEARING DATE:
16 July 2025
JUDGE:
Grigg DCJ
ORDER:
1. The time for the filing of the Notice of Appeal is extended to 14 January 2025.
2. The time for the filing of the Notice of Appeal is extended to 14 January 2025.
3. The decision of His Honour in so far as it dismissed the applicant/appellant’s application for a protection order, be set aside.
4. The matter is remitted to the Magistrates Court to be heard and determined according to law by a different Magistrate.
5. The appeal is otherwise dismissed.
6. Each party bear their own costs.
CATCHWORDS:
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) – where the parties brought cross applications against each other for domestic violence protection orders – where the Magistrate granted the first respondent’s application for a protection order and dismissed the appellant’s application – where the appellant appeals the dismissal of her application on the grounds of errors of law, errors of fact, and apprehended bias – whether leave should be granted to permit the notice of appeal to be filed out of time – whether leave should be granted for the appellant to file and adduce further evidence – whether the Magistrate was in error
LEGISLATION:
Domestic and Family Violence Protection Act2012 (Qld)
Family Law Act 1975 (Cth)
Police Service Administration Act 1990 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)CASES:
Charisteas v Charisteas (2021) 273 CLR 289
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Coghlan v Cumberland (5) (1898) 1 Ch 704
DeVries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Edwards v Noble [1971] HCA 54; 125 CLR 296
Feldman v Nationwide News Pty Ltd [2020] 103 NSWLR 307
Fox v Percy (2003) 214 CLR 118
House v The King [1936] HCA 40; 55 CLR 499
John Fairfax Publications Pty Ltd v Kriss [2007] NSWCA 79
Johnson v Johnson (2000) 201 CLR 488
MDE v MLG & Queensland Police Service [2015] QDC 151
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
NBE v PRT & Anor [2018] QDC 29
Polsen v Harrison [2021] NSWCA 23
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148
Re JRL; Ex p CJL (1986) 161 CLR 342
SGB v STG; WTS v STG [2024] QDC 128
COUNSEL:
M Henry for the first respondent
SOLICITORS:
The appellant is self-represented.
Bickford Lawyers for the first respondent.
Queensland Police Service Legal for the second and third respondent.
Introduction
On 14 January 2025, the appellant filed a notice of appeal against a decision of His Honour delivered on 13 November 2024. In the Magistrates Court proceeding, the appellant and first respondent brought cross applications against each other for domestic and family violence protection orders.[1]
[1] Applications were made pursuant to section 32 and Part 3, Division 1A of the Domestic and Family Violence Protection Act2012 (Qld).
Both applications were brought on the parties’ behalf by the Queensland Police Service and centred around parenting order breaches and an incident which occurred in a public car park. Both parties made competing allegations of domestic violence. The first respondent’s allegations centred on his being struck by a car driven by the appellant and the receipt of harassing text messages. The appellant denied striking the first respondent with her car and alleged the first respondent’s conduct (standing in front of the car and taking photographs) amounted to domestic violence.
His Honour found that the appellant had committed domestic violence on 30 June 2023 by causing a personal injury to the first respondent, and on 29 January 2024 by engaging in behaviour that harassed the first respondent. His Honour was satisfied that, given the nature of the domestic and family violence the first respondent risked being exposed to, an order in the standard terms was all that was necessary and desirable. His Honour was not satisfied that the first respondent had committed domestic violence against the appellant and dismissed her application.
The context of these events is what can only be described as a toxic relationship. There has been an ongoing dispute between the parties regarding parental responsibilities and rights. The relevant events occurred against a backdrop of numerous protection order applications being made over several years.
Matters for Determination
Three issues need to be determined in this matter. The first issue is whether leave should be granted to permit the notice of appeal to be filed out of time. The second issue is whether leave should be granted to the appellant to rely on fresh evidence. The third issue is the consideration of the appellant's grounds of appeal.
The Court was assisted in this matter by Ms Boettcher who appeared on behalf of the second and third respondents.
Relevant Legislation
Applications for domestic violence protection orders concerning adults are made in the Magistrates Court under section 32 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA).[2]
[2] See also ss 6, 23(1)-(2), 136, DFVPA.
Domestic violence orders are intended to protect against further domestic violence.[3]
[3] Section 3, DFVPA.
Pursuant to section 37 of the DFVPA, a Magistrate can only make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied the following three elements exist:
(a)a relevant relationship exists between the aggrieved and a respondent; and
(b)a respondent has committed domestic violence against the aggrieved; 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 psychological abuse and economic abuse.
(c)the protection order is necessary or desirable to protect the aggrieved from domestic violence.
To decide whether a protection order is necessary or desirable to protect the aggrieved from domestic violence the following must be considered under s 37(2)-(4) of the DFVPA:
(2) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence—
(a)the court must consider—
(i)the principles mentioned in section 4; and
(ii)if an intervention order has previously been made against the first respondent and the first respondent has failed to comply with the order—the first respondent’s failure to comply with the order; and
(iii)the respondent’s criminal history and domestic violence history filed in or given to the court under section 36A; and
(b)if an intervention order has previously been made against the first respondent and the first respondent has complied with the order—the court may consider the first respondent’s compliance with the order.
(3) However, the court must not refuse to make a protection order merely because the first respondent has complied with an intervention order or a diversion order previously made against the respondent.
(4) If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the first respondents, as the court considers appropriate.
“Domestic violence” is defined in section 8 of the DFVPA (emphasis added):
8 Meaning of domestic violence
(1) Domestic violence means behaviour, or a pattern of behaviour, by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—
(a)is physically or sexually abusive; or
(b)is emotionally or psychologically abusive; or
(c)is economically abusive; or
(d)is threatening; or
(e)is coercive; or
(f)in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.
(2) Behaviour or a pattern of behaviour, mentioned in subsection (1)—
(a)may occur over a period of time; and
(b)may be more than 1 act, or a series of acts, that when considered cumulatively is abusive, threatening, coercive or causes fear in a way mentioned in that subsection; and
(c)is to be considered in the context of the relationship between the first person and the second person as a whole.
(3) Without limiting subsection (1) or (2), domestic violence includes the following behaviour
(a)causing personal injury to a person or threatening to do so;
(b)coercing a person to engage in sexual activity or attempting to do so
(c)damaging a person’s property or threatening to do so;
(d)depriving a person of the person’s liberty or threatening to do so;
(e)threatening a person with the death or injury of the person, a child of the person, or someone else;
(f)threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
(g)causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
(h)unauthorised surveillance of a person;
(i)unlawfully stalking, intimidating, harassing or abusing a person.
(4) A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.
(5) To remove any doubt, it is declared that, for behaviour mentioned in subsection (3) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt.
(6) In this section—
coerce, a person, means compel or force a person to do, or refrain from doing, something.
unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including, for example, by using technology.
Examples of surveillance by using technology—
· reading a person’s SMS messages
· monitoring a person’s email account or internet browser history
· monitoring a person’s account with a social networking internet site
· using a GPS device to track a person’s movements
· checking the recorded history in a person’s GPS device
“Emotional or psychological abuse” is defined in section 11 as follows (emphasis added):
Emotional or psychological abuse means behaviour, or a pattern of behaviour, by a person towards another person that torments, intimidates, harasses or is offensive to the other person.
Examples—
·following a person when the person is out in public, including by vehicle or on foot
·remaining outside a person’s residence or place of work
·repeatedly contacting a person by telephone, SMS message, email or social networking site without the person’s consent
·repeated derogatory taunts, including racial taunts
·threatening to disclose a person’s sexual orientation to the person’s friends or family without the person’s consent
·threatening to withhold a person’s medication
·preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity
Appeal Process
A person who is aggrieved by a decision to refuse to make a protection order may appeal against the decision.[4]
[4] Section 164, DFVPA.
Pursuant to section 165(4)(a) of the DFVPA, a notice of appeal must be filed within 28 days after the day on which the decision is made. The court may extend the period for the filing of a notice of appeal.
Section 168 sets out the hearing procedures on appeal:
168 Hearing procedures
(1) An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
(2) However, the appellate court may order that the appeal be heard afresh, in whole or part.
The powers the Court has on appeal are set out in section 169 as follows:
169 Powers of appellate court
(1) In deciding an appeal, the appellate court may—
(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 appealed against and remit the matter ot the court that made the decision.
(2) The decision of the appellate court upon an appeal shall be final and conclusive.
Application for leave to appeal
The Court’s records indicated the Notice of Appeal (NOA) was filed on 14 January 2025, just over a month after the day on which His Honour’s decision was made. The NOA should have been filed on or before 12 December 2024.[5]
[5] Section 165(4), DFVPA.
At the hearing, the appellant asserted that she had filed her notice of appeal within time, noting the date she prepared the NOA was 11 December 2024. The appellant said she posted the NOA to the Court. The appellant also stated that she had a Court-stamped copy of the NOA showing it had been filed in time. The appellant explained that she had some discussion with registry staff concerning the lateness of the notice of appeal (which indicates that the NOA was received out of time). The outcome of that discussion with the Court registry staff was that a supplementary document entitled “Notice of appeal subject to leave” was filed. There is no evidence to corroborate that the NOA was filed on 11 December 2024, or some other date within the permitted timeframe. Neither the first respondent nor the second and third respondents had received any NOA document other than the NOA dated 14 January 2025.
In these circumstances, I find that the NOA was filed out of time. The question is whether leave should be granted to extend the time.
The first respondent opposed an extension of time for the filing of the NOA and raised in support of his opposition the fact that the outcome of these proceedings is relevant to parenting and property proceedings that are currently on foot in the Federal Circuit and Family Court of Australia (FCFCA) (Family Court Proceedings). The first respondent contends that filing the NOA late disrupts the progress of the Family Court Proceedings, including delaying decisions required to be made by the independent child lawyer engaged to represent the child of the relationship at trial, family report writers, and the FCFCA more generally.
Ms Boettcher, who appeared on behalf of the second and third respondents, did not object to leave being granted and noted not only the relatively short delay in filing the NOA, but also the fact that the appellant was self-represented as factors relevant to my consideration.
In addition to the length of the delay and the appellant’s self-represented status, other factors to be considered in determining whether to exercise the discretion in favour of extending the time by which a NOA can be lodged include:[6]
(a)the length of the delay;
(b)the awareness of appeal rights in any explanation given for the delay; and
(c)any prejudice to the first respondent; and
(d)whether it is in the interests of Justice to grant the extension.
[6] NBE v PRT & Anor [2018] QDC 29, at [6].
While it is readily accepted that the issuance of domestic violence orders is relevant to family court proceedings,[7] there was nothing presented to the Court. There were no copies of any orders made regarding whether steps in the Family Court Proceedings had been paused pending the outcome of this matter.
[7] Section 60CF, Family Law Act 1975 (Cth).
The magnitude of the delay was relatively minor (the filing date of the NOA is only four weeks out of time), and there appears to have been a misunderstanding by the appellant in relation to the lodging of relevant documents and the timeframes for doing so. I accept that the appellant completed the NOA in time, but that there was a delay between the date of its completion and its arrival via post at the court's registry. There is no persuasive evidence before the court that the first respondent has been unduly prejudiced, or prejudiced at all, by that four-week delay. The first respondent was represented by counsel at the hearing and was prepared and ready to address the grounds of appeal. I note also that the delay occurred over the Christmas and New Year holiday period.
In these circumstances, I have decided that it is appropriate to extend the time for filing the notice of appeal to 14 January 2025.
Application for leave to introduce fresh evidence
Before the hearing, the appellant indicated in her NOA that she would be seeking to rely on fresh evidence at the appeal hearing. The fresh evidence sought to be relied upon was an affidavit which had been filed on 26 November 2024 in the FCFCA. At the hearing, the appellant informed the Court that she no longer sought to rely on that fresh evidence.
Grounds of appeal
Background
On 4 September 2023, Senior Constable PNF (SC PNF) made an application against the first respondent for a protection order under section 25 of the DFVPA in respect of the appellant.
At the hearing below, the appellant relied upon her own evidence and the evidence of SC PNF.
The first respondent relied on his evidence and evidence given by Acting Sergeant BNC (AS BNC), ZML and AYC. AS BNC brought the application for the DV protection order in favour of the first respondent.
ZML was an independent witness of certain relevant events. AYC is a friend of the first respondent and a witness to certain relevant events.
His Honour gave an ex tempore decision with reasons, and refused to make the protection order sought by the appellant.
The appellant was represented at the Magistrates Court proceedings, but was unrepresented at the hearing of this appeal. The grounds of appeal are articulated in a document filed by the appellant on 12 February 2025 entitled “Notice of appeal subject to leave”.
There are approximately 13 grounds of appeal which can be appropriately grouped (and paraphrased) as follows: -
(a)Errors of law - Grounds 1 to 7, 9 to 11 and 13 concerned purported errors of law that His Honour did not consider certain conduct described by the appellant in her outline of argument as constituting domestic violence.
(b)Error of Fact - Ground 8 was that His Honour made an error of fact in determining whether the first respondent came into contact with the appellant’s vehicle as she was exiting a car park.
(c)Apprehended Bias - Ground 12 concerns a submission that the His Honour was acting under bias, apprehended bias, and personal motivation in making his decision.
Consideration
Errors of Law
On appeal, the onus is on the appellant to demonstrate that there has been some legal, factual, or discretionary error made by the court below.[8]
[8] Fox v Percy (2003) 214 CLR 118; SGB v STG; WTS v STG [2024] QDC 128, at [8]
In determining whether His Honour erred, it is important to keep in mind the words of the High Court, in relation to discretionary decisions, in House v The King [1936] HCA 40; 55 CLR 499, at (505) that:
It is not enough that the judges composing the appellate Court consider that, if they have been the position of the primary judge, they would take a different course.
It must be shown that there has been some error either in acting upon irrelevant matters or failing to take into account a material consideration.
On a rehearing such as this where findings of fact based on the trial judge's observation of the witnesses are challenged, the appeal court can be at a disadvantage, but it is still required to weigh the conflicting evidence and draw its own inferences and conclusions.[9]
[9] DeVries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472, at [2]
Where the decision to be made is based on which witness is to be believed based on their manner and demeanour, their Lordships in Coghlan v Cumberland (5) (1898) 1 Ch 704, at pp 704-705,[10] provide the following guidance:
when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses
[10] Approved by many cases including by the High Court in DeVries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472, at [2].
Here, it is apparent that His Honour traversed all of the evidence and spent time considering whether, on the balance of probabilities, the complained-of conduct occurred, and whether, if it did, that conduct amounted to domestic violence.
The appeal must be determined based on the evidence and proceedings presented before the Magistrates Court.[11] It is important to keep the following applicable principles in mind in an appeal hearing, as explained by the High Court in Edwards v Noble [1971] HCA 54; 125 CLR 296, at 304 (at [17]):
(a)an appellant is not successful on appeal simply because an appeal judge may have found differently;
(b)the appeal is one on fact as well as on law;
(c)a rehearing is not a retrial of the issues:
“The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so”.
(d)An appellant court ought not reverse a finding of fact unless convinced it is wrong;
(e)“If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differing views do not establish that either view is wrong”.
[11] Section 168(1), DFVPA.
The burden of proving the first respondent committed acts of domestic violence is assessed on the civil standard, on the balance of probabilities.
With these principles in mind, I turn to consider the grounds of appeal.
The appellant submits that certain facts, as found by His Honour, should have given rise to findings of domestic violence.
Ground 1:
This ground of appeal is as follows:
His Honour found that at about 2:00pm on 23 June 2023 I received an email from [the first respondent] advising that he would be collecting [our daughter] from school and having her for the first week of the holidays, advising that she was enrolled in the Flipside Circus, and inviting you to a performance on the Friday at Hamilton.
His Honour found that in taking [our daughter] from school, without proper negotiation with me, [the first respondent] was not complying with the parenting order.
This appeal is on the grounds that: Even though His Honour found the father was not complying with the parenting orders, he failed to see that was domestic violence in itself, as controlling behaviour.
On the last day of the school term, the first respondent informed the appellant by email that he intended to take the child for the first week of the school holidays. When the first respondent received no reply to that message, he interpreted the silence as acceptance, and collected the child from school. The first respondent’s evidence was that he assumed from the appellant’s silence he was “entitled to proceed”. His Honour acknowledged this conduct was “telling about his attitude generally towards” the appellant.
The appellant’s evidence is that she was not aware he had done this until she attended at the school to collect her daughter. The appellant said, having discovered what had happened, she resigned herself to the fact that she would have her child in her care for the second week of the holidays instead. According to a parenting agreement, there was to be a changeover to occur on Saturday, 1 July 2023. The appellant’s evidence was that she did not take any court action in relation to the breach due to the cost and the desire to avoid conflict.
It is not in dispute that the first respondent failed to comply with a parenting order by unilaterally changing the week the child would be in his care, and at unreasonably short notice. His Honour observed that the first respondent did the wrong thing by collecting the child from school without positive confirmation that the appellant consented to that change.
The appellant contends that this conduct amounts to conduct falling within the definition of domestic violence on the grounds it was controlling.
The mere matter of a breach of a parenting order does not in and of itself constitute “domestic violence”. Whether the conduct surrounding such a breach falls within the definition of “domestic violence” will depend on the nature of the breach and the context of the matter. Sending a message to the appellant only one hour before the end of the school day of his intention and not waiting for a response before unilaterally taking the child in breach of the order, is indicative of behaviour that is controlling and coercive and undermining in nature.
The first respondent unilaterally took control of the school holiday period and kept the child from spending the time ordered to be spent with the appellant. I note this was also done in the context of Family Court Proceedings, where the parties are in an ongoing co-parenting relationship and there is an ongoing dispute about the parenting arrangements. The first respondent was prepared to disregard and breach orders made by the Federal Circuit Court in order to suit his own needs.
In my respectful opinion, His Honour erred in not finding this conduct to be intimidating and controlling, and therefore meeting the definition of “domestic violence”.
As referred to above, pursuant to section 37 of the DFVPA, a protection order can only be made against a person (the first respondent) for the benefit of another person (the aggrieved) if the court is satisfied of the three elements.
In my view, elements 1 and 2 of section 37 are satisfied in relation to this ground of appeal. The question is whether the protection order is necessary or desirable to protect the aggrieved from domestic violence.
In MDE v MLG & Queensland Police Service [2015] QDC 151, Morzone KC DCJ stated that this element required a three-stage process as follows (at [55]):
1. Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order.
There must be evidence to make factual findings or draw inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders (s 37(2)(b)), and changes of circumstances.
Unlike its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence.
2. Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order.
Relevant considerations may include evidence of the parties’ future personal and family relationships, their places of residence or work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children.
3. Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from domestic violence.
In that regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1) that:
(A)The safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount;
(B)People who fear or experience domestic violence, including children, should be treated with respect, and disruption to their lives minimised;
(C)Perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
(D)If people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;
(E)In circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is in most need of protection should be identified;
(F)A civil response under this act should operate in conjunction with, not instead of, the criminal law.
Whether an order is necessary and desirable needs to be considered in the context of identifying who is in most need of protection. This is because s 37(2) of the Act required the principles set out in section 4 to be adhered to in the determination of whether to make a protection order. Relevantly here, is principle 2(e) which provides:
(e)in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection—
(i) the person who is most in need of protection in the relationship should be identified; and
(ii) only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other;
I have not received any submissions about how to proceed in the circumstances where both parties have committed acts of violence, and in particular, who is in most need of protection or whether there is evidence that both parties need to be protected from the other.
I am persuaded that ground 1 has been made out and the appeal should be upheld.
In these circumstances, it is appropriate that His Honour’s decision be set aside, and the matter be remitted for redetermination.
Ground 2
This ground of appeal is as follows:
In relation to the incident that then occurred in the carpark at Hamilton, His Honour found that:
1. I took [our daughter] to my vehicle; and
2. [The first respondent] was following [our daughter] and I speaking firmly, yelling at us, telling me to stop.
This Appeal is on the grounds that: The father was stalking us to the car park, following us, His Honour failed to see that was domestic violence in itself, as controlling stalking behaviour in an isolated car park.
The first respondent informed the appellant that the child had enrolled in a holiday program and that a performance would be held on 30 June 2023. The appellant was invited to attend the performance. After the performance finished, the appellant informed the first respondent that she was taking the child back to the Sunshine Coast rather than waiting until the following day for the parenting agreement handover. His Honour noted that the appellant accepted that she had not previously informed the first respondent or her child of her intention to return to the Sunshine Coast that day.
The appellant and the child left the performance centre and made their way to the car park.
Contrary to what was asserted by the appellant, His Honour did not find that the first respondent yelled at the appellant and his child. Instead, His Honour found on the evidence that the first respondent spoke “firmly”. FRD, an independent witness to the events, gave evidence that the first respondent was not yelling, but was talking to convey content.
It was accepted that the first respondent followed the appellant and the child to the car park saying words to the effect of “you can’t take her” and telling the child to “stop walking” and to “sit down”. It was open on the evidence before the His Honour to prefer the evidence of the independent witness that the first respondent was not yelling or screaming and shouting as the appellant asserted during the Magistrates hearing. In the face of conflicting evidence from the parties, His Honour, having seen and heard the witnesses, was entitled to find the evidence of the first respondent’s witnesses more reliable. There is no apparent error to justify disturbing His Honour’s findings.
The appellant submitted the father was stalking her to the car park and that His Honour failed to find that was domestic violence.
The first respondent’s conduct in following the appellant to the car occurred in circumstances where the appellant had, without warning or consent, taken the child in breach of her obligations under the parenting order. The first respondent, understandably, followed the appellant to discuss what she was doing. The conduct of the first respondent in following the appellant and his child to the car to understand what was happening is not “stalking”. “Stalking” involves repetitive conduct of following or surveilling someone. Not a one-off pursuit to a car park as occurred here.
There is no apparent error in His Honour’s findings in relation to this ground.
Incidents Surrounding the Car - Grounds 3, 4, 5, 6, 7, 10
This ground of appeal is as follows:
[Our daughter] was confused and distressed.
I placed [our daughter] into the vehicle through the driver’s side and got in after her.
[The first respondent] was right at the door of the car when I pulled my foot into the vehicle.
[The first respondent] placed himself in front of my car and was taking photographs of both [our daughter] and myself in the vehicle. (That is intimidating behaviour)
This Appeal on is on the grounds that: Even though the father could see that both [our daughter] and I were clearly distressed, His Honour failed to see that was domestic violence in itself, as distressing the child, terrifying her and myself, trying to control her and myself, intimidating us and of threatening nature.
His Honour found [The first respondent] stood in front of the appellant’s vehicle to stop me from leaving. (That is controlling behaviour)
This Appeal is on the grounds that: Even though the father placed himself in front of my car, asserting his authority that I was not going to be able to leave this situation, His Honour failed to see that was domestic violence in itself, as distressing the child, terrifying her and myself, trying to control her and myself, intimidating us and of threatening nature controlling behaviour on the father’s part, trying to prevent me from leaving the car park.
His Honour found I reversed out of my carpark space as there was a concrete bollard in front of the vehicle which prevented me from moving forward. Although there was dispute about where the car was parked, His Honour found that the precise location was of no consequence.
His Honour found that once I backed out of my car park space, [The first respondent] again moved himself and positioned himself in front of my vehicle for a second time preventing me from moving. (That is controlling behaviour)
This Appeal is on the grounds that: Even though the father placed himself in front of my car, asserting his authority yet again, that I was not going to be able to leave this situation, His Honour failed to see that was domestic violence in itself, as distressing the child, terrifying her and myself, trying to control her and myself, intimidating us and of threatening nature controlling behaviour on the father’s part, trying to prevent me from leaving the car park.
The appellant’s submissions were that His Honour had erred in failing to find all of the above facts, and in addition, that he erred in failing to find the first respondent’s conduct was controlling, stalking, and constituted domestic violence.
His Honour found that the appellant had the child enter the car via the driver's side and that she then got into the driver’s seat. FRD, an independent witness to the events, gave evidence that the child entered the vehicle through the driver’s door. AYC also confirmed the child entered the vehicle through the driver’s door.
There was no finding that the first respondent was at the car door when the appellant pulled her foot into the vehicle. There was no evidence about the appellant’s foot given by the first respondent. It was not put to the first respondent that he was close to her foot. However, the first respondent accepted he got “right up to the car”.
The first respondent’s evidence was that he had not intended to intimidate the appellant, but took photographs to record his child’s distress at having been taken away in the way she was. His Honour noted there was no evidence of any attempt to open the door, strike the car or verbally threaten the appellant. There was no evidence that the appellant was stopped or prevented from getting into the vehicle.
This all occurred during the day in the presence of others.
His Honour found that the appellant’s stated fear was unreasonable.
In relation to the photographs, FRD, an independent witness to the events, gave evidence that the child looked distressed. A photograph taken by the first respondent of the child in the car also shows that the child was upset.
In relation to the child’s distress, His Honour accepted the child would have been confused and distressed by both parents' conduct. He also found that neither party turned their mind to how the child, being unexpectedly moved from one parent to the other, would be affected. Both parties had competing versions of the events of 30 June 2023. His Honour found that neither party had clean hands, and that both parties were to some degree responsible for their daughter being upset. Although the appellant asserts it is the first respondent’s conduct that caused the distress, no finding on this point was made. It is equally apparent from the evidence that the cause of the child’s distress was the appellant’s conduct in taking the child without warning or without the child’s permission. This would have been very distressing for the child. Quite frankly, the behaviour of both parties is questionable.
The appellant states that she and her child were distressed, and His Honour failed in not finding that was domestic violence in itself. The appellant submitted that the distress caused was controlling, intimidating, and threatening conduct.
His Honour found the first respondent stood in front of the car and that he took photographs of the appellant and child. The first respondent admitted to taking photographs of the appellant and his child when they got into the vehicle. The photographs exhibited to the first respondent’s affidavit demonstrate he was very close to the driver's window. There was a dispute as to whether he was adjacent to the vehicle or 1-2 meters away.[12] Either way, he was close to the vehicle. ZML’s evidence was that he was standing “within a close distance of the front of the car”.[13] One photograph was taken from the front of the vehicle, looking through the windscreen, and pictured his visibly distressed daughter. His Honour was satisfied the photograph of the child showed she was upset. The first respondent also admitted standing in front of the appellant’s car “for about 5 (five) seconds”.[14] The first respondent’s evidence was that the appellant could have backed her car out of the car park or sounded the horn, but instead deliberately hit him without warning.[15]
[12] Transcript of proceedings on 5 September 2024, Page 54 Points 26 – 28.
[13] Transcript of proceedings on 5 September 2024, Page 89 Points 26 – 27.
[14] Affidavit of the First Respondent affirmed 15 July 2024, Paragraph 26.
[15] Affidavit of the First Respondent affirmed 15 July 2024, Paragraph 27.
FRD, an independent witness to the events, gave evidence that the first respondent was standing in front of the vehicle with his knees against the bonnet[16] but was not acting aggressively or threateningly. Clearly, this was not an expert opinion and only FRD’s perception. The first respondent was purposely blocking the car in the context of a distressing dispute. It is for the court to decide whether this amounted to aggressive conduct in the circumstances.
[16] Transcript of proceedings on 5 September 2024, Page 89 Point 43 to Page 90 Point 12.
AYC confirmed the first respondent was standing in front of the vehicle.
His Honour was satisfied on balance, that the first respondent stood in front of the car to stop the appellant from leaving with the child.
His Honour found that the taking of photographs may have caused the appellant to feel intimidated, but he held that the first respondent had not acted in a threatening or aggressive way. This was not explained. It is unclear if this finding was based on the evidence of FRD or for some other reason.
With respect, I find that His Honour’s conclusion demonstrates an error. His Honour appeared to have reached his conclusion that the first respondent’s conduct did not constitute domestic violence because it occurred in circumstances where the appellant was acting in breach of the parenting order and because the appellant was able to leave the car park. His Honour did not take into account the fact that the first respondent’s behaviour in the car park was also occurring in the context of the first respondent having breached the parenting agreement by taking the child from school without proper consultation with the appellant. The events are a continuation of that initial step taken by the first respondent.
It does not follow that because the appellant had acted in breach of the parenting order that the first respondent’s conduct, other conduct of a domestically violent nature, could be excused. Her breach does not provide the first respondent with some sort of “defence”. In my view, this demonstrates an error. The evidence was that her direct natural pathway out of the car park was blocked by the first respondent.
Intimidating conduct is conduct that frightens or threatens another person. Blocking a person’s way is threatening and aggressive. The behaviour need not be overly aggressive. It would be expected that a person faced with this situation would feel anxious and/or frightened. The first respondent’s conduct was a non-verbal demonstration of power and control. This conduct was domestic violence conduct under the definition.
The photographs were taken in the context of the appellant attempting to drive away from the first respondent in circumstances where His Honour acknowledged and agreed with the Appellant that she and her child were distressed. The photos were not taken with consent. It is understandable that the appellant would have felt intimidated and vulnerable in this situation. This conduct amounted to emotional or psychological abuse within the definition of domestic violence.
The conduct of standing in front of the appellant’s vehicle temporarily prohibiting her from driving away also amounted to emotional or psychological abuse within the definition of domestic violence. The effect of the first respondent’s actions was to attempt to stop the appellant from exiting the car park and leaving with his daughter. This conduct was intimidating towards the appellant in front of their child, who was sitting in the front seat of the car.
In my view, the first respondent’s behaviour in taking photographs of the appellant and child in the vehicle and standing in front of the car blocking the Appellant from exiting the car park was intimidating and controlling conduct for the purposes of the definition of “domestic violence”. His Honour indeed accepted that the child would have been distressed.
As referred to earlier, pursuant to section 37 of the DFVPA, a protection order can only be made against a person (the first respondent) for the benefit of another person (the aggrieved) if the court is satisfied of the three elements.
In my view, elements 1 and 2 of section 37 are satisfied in relation to these grounds of appeal. The question is whether the protection order is necessary or desirable to protect the aggrieved from domestic violence.
I have not received any submissions about how to proceed in the circumstances where both parties have committed acts of violence, and in particular, who is in most need of protection or whether there is evidence that both parties need to be protected from the other.
I am persuaded that grounds 3, 4, 5, 6, 7, and 10 have been made out and the appeal should be upheld.
In these circumstances, it is appropriate that His Honour’s decision be set aside, and the matter be remitted for redetermination.
History of domestic violence allegations - Grounds 9 and 12
This ground of appeal is as follows (the allegations of bias are dealt with separately):
His Honour found he was not satisfied that the fears that I expressed to the police which was in their DV application about [the first respondent] assaulting or trying to kill me in the past were reasonable because there was no evidence that [the first respondent] struck the vehicle or was threatening, and there was insufficient particularisation of the historical allegations of domestic violence to allow him to conclude that I had suffered significant domestic violence in the past.
The previous DV magistrate (a woman) referred to the father as nothing less than something from a B grade Horror movie. She removed him from the house in 2017. There was over 7 years of documentation of his abuse and I believe Police Officer [PNF] did a thorough job in putting that in his evidence. While some of it referred to a while ago, still he did put in the application current acts of domestic violence, I feel the magistrate was very bias and clicky with [the first respondent’s] barrister and he simply glossed over the material.
This Appeal is on the grounds that: Even though there was over 7 years of documentation of his abuse and I believe Police Officer [PNF] did a thorough job inputting that in his evidence. While some of it referred to a while ago, still he did put in the application current acts of domestic violence, His Honour failed and was very clicky with [the first respondent’s] barrister laughing and joking and he simply glossed over all of the material presented my the QPS. The Barrister threated QPS [PNF] on the stand and His Honour failed to even blink an eye at that direct threat towards [PNF], didn’t stop his line of abuse or question anything the barrister had to say in relation to the threats.
The appellant contends that His Honour did not consider the past or historical abuse she had suffered.
The appellant submitted that SC PNF prepared a full in detailed brief of the respondent’s domestic violence towards her and the child, which was not considered.
Mr Bennett, the appellant’s representative at the hearing at first instance, specifically acknowledged that there were insufficient details to make any findings on those other alleged historical acts of domestic violence. The exchange was as follows[17]:
[17] Transcript of proceedings on 5 November 2024, Page 61 Point 35 to Page 61 Point 24.
HIS HONOUR: Yes, Can I start with the acts of domestic violence you say [the first respondent] committed…
MR BENNETT: Yes, you Honour.
HIS HONOUR: I have been assaulted by him on many occasions. He tried to kill me in front of the child on one occasion….Now, I just don’t have the detail on that, do I?
MR BENNETT: Sadly, you’re correct, your Honour. There’s nothing been put before this Court ---
HIS HONOUR: No.
MR BENNETT: ---to substantiate such serious…
HIS HONOUR: Yes.
MR BENNETT: ---accusations…
HIS HONOUR: So what do I do with all of that?
MR BENNETT: …I wouldn’t be putting much weight on it at all…
…
MR BENNETT: …I think what weight can be put on that without any evidence before this court…
The matters the appellant reported to the police were not substantiated by evidence or able to be considered or responded to by the respondent.
His Honour found that trying to assess the reasonableness of the appellant’s stated fear was difficult in circumstances where there was no particularisation of those allegations, and it cannot be known when certain events are said to have occurred, what exactly occurred, how and where. In those circumstances, it was reasonable for His Honour not to have made any findings regarding the issue.
There is no basis for disturbing the His Honour’s findings in relation to this ground.
Ground 11
This ground of appeal is as follows (the allegations of bias are dealt with separately):
His Honour ignored the fears that I expressed about this behaviour during the trial while I was on the stand.
His Honour did at one point ask my lawyer to console me as I was clearly distressed.
This Appeal is on the grounds that: Even though the Police prosecutor representing me during the trial said you can clearly see the mother is suffering extreme trauma, both from the last years and present dv inflicted by the father, the triggers are clear that she is traumatised and is not able to cope with the significant trauma of this whole event at the car park, and he said he would be happy to suggest cross orders, the father placed himself in front of her car, asserting his authority that she was not going to be able to leave this situation, to defuse the situation, de-escalate the situation, His Honour failed to see that was domestic violence in itself, as distressing the child, terrifying her and the mother, trying to control her and intimidating both of them and of threatening nature controlling behaviour on the father’s part, trying to prevent the mother from leaving the car park.
His Honour noted the appellant’s evidence that she was afraid the first respondent would smash the car windows and that he might kill her and the child. His Honour found that “trying to assess the reasonableness of [the appellant’s] fear is difficult”. Given that absence of any direct threat of violence and the evidence of the other witnesses, His Honour was not satisfied her stated fear was reasonable.
In the face of conflicting evidence from the parties, His Honour, having seen and heard the witnesses, was entitled to find the evidence of the first respondent’s witnesses more reliable. There is no apparent error to justify disturbing His Honour’s findings in these circumstances where no evidence to substantiate those stated fears was present.
Error of Fact
Ground 8
The appellant submitted:
His Honour found that as I slowly drove away from [the first respondent] he was beside the car towards the back and somehow stumbled backwards, perhaps in shock that I had driven away from him.
The appellant submitted that she did not make contact with the first respondent. This ground of appeal is not available. The appellant confirmed at the commencement of the hearing that she was not appealing the decision made against her in relation to this conduct.
Even if this ground of appeal was pressed, the independent witness’s evidence provides contradictory evidence to the appellant on this point. His Honour, having seen and heard the witnesses, was entitled to find the evidence of the first respondent’s witnesses more reliable.
Whilst one witness was a person known to the first respondent, the other witness is entirely independent. Both of those witnesses gave evidence that the appellant made contact with the first respondent. It was reasonable in the circumstances where the parties maintain differing explanations and evidence for His Honour to have relied on the evidence of persons independent of the proceedings as providing the best evidence of what occurred. No reason was articulated by the appellant to why the acceptance of that evidence constituted error.
Apparent Bias
Ground 13
The Appellant contends that His Honour demonstrated bias during the hearing in the following ways:
(a)by appearing “clicky with [the first respondent’s] barrister laughing and joking”:
(b)by failing to take into account the evidence of historical abuse;
(c)by failing to react to a “direct threat” made by the first respondent’s barrister to the SC [PNF] while he was giving evidence and
At the appeal hearing, the appellant referred to a “boys club” culture during the hearing at first instance.
The Appellant referred to the following passages in the transcript of the hearing:
(a)Page 10 of the transcript labelled PRF 0239517-20241105 MF-DJA from point 30 - Page 11 point 23 (Passage 1); and
(b)Page 49 of the transcript labelled PRF 0239517-20241105 MF-DJA from point 5 - Page 50 point 7 (Passage 2).
In relation to Passage 1 the appellant submitted:
The barrister …is clearly threatening [SC PNF] with a personal costs order and refers to his “frivolous application against [the first respondent]). The transcript has dotted out the conversation which would clearly be heard on an audio transcript of both the Magistrate, Mr Blake and [SC PNF].
In relation to Passage 2 the Appellant again asserted that: “The transcript has dotted out the conversation which would clearly be heard on an audio transcript of both the His Honour and Barrister Mr Blake laughing”. The Appellant says she “found it appalling them joking about a hypothetical scenario which was such a serious matter to me while I sat in the courtroom crying”.
Respondent’s Submissions on Bias
The first respondent submitted that:
(a)it can only be assumed that the Appellant’s allegation is that there was an appearance or apprehension of bias rather than actual bias;
(b)the allegation is serious, but meritless, and incapable of being substantiated;
(c)there is no evidence that the Trial Counsel (Mr Lake) and his Honour Deputy Chief Magistrate Courtney had ever met prior to the trial of this matter, either in a courtroom or outside of Court;
(d)there is no evidence that the first respondent and his Honour Deputy Chief Magistrate Courtney had ever met prior to the trial of this matter;
(e)no conflicts of interest were declared.
(f)the appellant’ submission is misconceived;
(g)there was no evidence to support the appellant’s contentions.
Consideration re Bias
The test for deciding whether a judicial officer is disqualified by reason of the appearance of bias was stated by Gleeson CJ, Gaudron, McHugh, Gummow and Callinan JJ in Johnson v Johnson (2000) 201 CLR 488, 492:
“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
See also Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 362–3.
Actual bias need not be found. The issue is whether there is an appearance of bias. This “principle exists to not only … protect litigants from actual bias and injustice, but to maintain public confidence in the courts by ensuring that justice appears to be done”.[18]
[18] John Fairfax Publications Pty Ltd v Kriss [2007] NSWCA 79, at [12].
How this may be demonstrated will vary. But it may be that apparent bias may be demonstrated by the language or tone used, or other non-verbal gestures.
Here, the Appellant depends on a combination of words and actions. The action in failing to intervene in the cross-examination of SC PNF, and there is also the assertion of His Honour having laughed inappropriately at the evidence or sarcastic statement of Counsel.
The authorities[19] establish that the question of bias should not be assessed with the benefit of hindsight, but at the time of the event or events said to give rise to that possibility in the first place.
[19] Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000)A finding of apprehended bias should not be found lightly.
I have read and considered the passages from the transcript identified and relied upon by the Appellant.
Passage 1
The Appellant asserted:
(a)that Passage 1 shows the first respondent’s barrister threatening [SC PNF] with a personal costs order and refers to his "frivolous application” against the first respondent; and
(b)that a “conversation which would clearly be heard on an audio transcript of both the His Honour, Mr Lake [sic] and [SC PNF]” has been “dotted out”. Whatever was said was clearly unintelligible to the transcriber.
I have considered the transcript and find nothing inappropriate or untoward in the cross-examination. Counsel for the first respondent put to SC PNF that the first respondent considered the application to be frivolous and that he would be seeking costs.
The costs issue questioning was not threatening and, in any event, had no bearing on His Honour’s determination. There was nothing inappropriate about this, and nothing that required His Honour to interject.
Sometimes it may not be apparent to those not familiar with the law or adversarial practice that propositions need to be put to witnesses, sometimes firmly. This practice allows a witness to agree or disagree with the proposition and enables the testing of that witness's evidence. There is nothing apparent from the transcripts that supports the allegation of any threat having been made. There is certainly nothing that warranted interjection from His Honour in that passage. I do note that the Second and Third Respondents have correctly identified that the proposition put to Senior Constable PNF by Counsel for the first respondent was erroneous because police acting in the course of their duties are not personally liable for costs and are indemnified under section 10.5 of the Police Service Administration Act 1990 (Qld). No objection to the questioning was made by Mr Bennett.
There is nothing in the transcripts that identifies any apparent bias. Bias should be distinguished from a judicial officer’s preference for the evidence of one individual over another’s.
There is no evidence that His Honour had pre-judged the applications. His Honour listened and considered the witnesses' evidence and explained his findings.
I am not satisfied that there is any merit to this ground of appeal.
Passage 2
Passage 2 was as follows:
MR LAKE: And that – if your Honour so finds – and that’s our case, that it was a willed action. And again, it doesn’t – you know, there were questions about, “Did the tyres screech as she left the car park?” It doesn’t have to be high speed.
HIS HONOUR: No, no, no, no.
MR LAKE: Obviously ---
HIS HONOUR: No-one---
MR LAKE: ---if it---
HIS HONOUR: No-one’s---
MR LAKE: ---were at---
HIS HONOUR: ---saying it was.
MR LAKE: --high speed – yeah. We’d very likely have ambulance reports and hospital reports, but it wasn’t. It was low speed. There’s---
HIS HONOUR: No.
MR LAKE: ---no question about it.
Whatever was said in the “dotted out” portions of the transcript, it was clearly unintelligible to the transcriber. There is nothing in what has been transcribed in either Passage 1 or Passage 2 to indicate anyone was laughing or otherwise mocking the appellant. In fact, the outcome of the discourse between Counsel and His Honour in Passage 2 was an acknowledgement that no one gave evidence that the appellant’s car was travelling at high speed and an acknowledgement the car was travelling at low speed. His Honour also stated that it was open to him on the evidence to find that the first respondent was accidently touched by the appellant’s car. None of this discourse leads to a conclusion of bias, apparent or actual.
I also note that there was at least one occasion when His Honour noticed the appellant was crying during the evidence of the first respondent and checked on her welfare.[20] Hardly the action of an apparently biased judicial officer.
[20] Transcript of proceedings on 5 September 2024, Page 53 Point 1 – 15.
There is nothing to substantiate that a “boys club” culture existed which somehow resulted in some prejudice or bias against the appellant because of her gender. It is apparent from a reading of the transcript that the appellant was treated with respect, and that His Honour’s conduct was neutral and professional throughout the course of the hearing. The mere fact that Counsel and His Honour were males does not give rise to such a finding. Counsel for the first respondent also pointed out that it is wrong to assume that all males are members of such clubs.
This ground of appeal fails. There is no evidence to substantiate this claim.
Conclusion
Grounds 1, 3, 4, 5, 6, 7, and 10 concerning purported errors of law are upheld.
Ground 2, 9, 11, and 12 fails.
The 8th ground of appeal concerning the purported error of fact fails.
The 13th ground of appeal concerning actual or apparent bias fails.
Costs
Orders for costs are governed by section 157 of the DFVPA and the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
Section 157 provides:
(1) Each party to a proceeding for an application under this Act must bear the party’s own costs for the proceeding
(2) However, the court may award costs against the party who made the application if the court hears the application and decides—
(a)to dismiss the application and, in doing so, also decides that the party, in making the application, intentionally engaged in behaviour, or continued a pattern of behaviour, towards the first respondent to the application that is domestic violence; or
Note—
This type of behaviour is known as systems abuse or legal abuse. It is behaviour in which a person intentionally misuses the legal system, including, for example, by starting court proceedings based on false allegations against another person, as a way to intentionally exert control or dominance over the other person or to torment, intimidate or harass the other person.
(b)to dismiss the application on the grounds that it is malicious, deliberately false, frivolous or vexatious.
The UCPR also applies to an appeal under the DFVPA.[21]
[21] Section 142, DFVPA
The starting point is that costs usually follow the event and are ordered to be paid on a standard basis.[22] However, costs may be ordered to be paid on an indemnity basis.[23]
[22] Rule 702, UCPR.
[23] Rule 703, UCPR.
The first respondent submits the appellant’s conduct was improper in that:
(a)Her application at first instance contained false, unsupported, and misleading allegations;
(b)She persisted in the litigation despite being placed on notice of the deficiencies in her case;
(c)Her conduct amounts to an abuse of legal process as the application and appeal was brought for the purpose of harassment, reputational harm, or otherwise without bona fides e.g. to gain a collateral advantage in family law proceedings.
This is not a case where the appellant has failed on all grounds of her appeal. Her allegations were serious, and some have been upheld.
In the circumstances, there is no basis to award costs other than in accordance with section 157(1).
Each party should bear their own costs.
Orders
I have concluded that His Honour has erred in relation to some of the grounds of appeal. The parties did not address me on the question of whether it would be necessary or desirable to make a protection order. That is understandable given the appellant was self-represented on appeal and the first respondent could not have known which grounds of appeal, if any, would be upheld.
In those circumstances, it is appropriate that the matter be remitted to be heard and determined according to law.
The following orders are made:
(a)the time for the filing of the Notice of Appeal is extended to 14 January 2025;
(b)the decision of the His Honour insofar as it dismissed the applicant/appellant’s application for a protection order be set aside;
(c)the matter is remitted to the Magistrates Court to be heard and determined according to law by a different Magistrate;
(d)The appeal is otherwise dismissed.
(e)Each party bear their own costs.
205 CLR 337; applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Charisteas v
Charisteas (2021) 273 CLR 289 and QYFM v Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs (2023) 279 CLR 148 at [50], [175], [292].
3 Feldman v Nationwide News Pty Ltd [2020] 103 NSWLR 307 at [41]–[43] (citing Ebner at [7]–[9], [33]).
4 Polsen v Harrison [2021] NSWCA 23 at [46], citing Re JRL; Ex p CJL (1986) 161 CLR 342 at 371; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [56].
0
9
0