HIK v HCA

Case [2024] QDC 155

DISTRICT COURT OF QUEENSLAND

CITATION:

HIK v HCA [2024] QDC 155

PARTIES:

HIK

(Appellant)

v

HCA

(Respondent)

FILE NO/S:

D38 of 2024

DIVISION:

Appellate

PROCEEDING:

Appeal under s 164 of the Domestic and Family Violence Protection Act 2012

ORIGINATING COURT:

Magistrates Court at Maroochydore

DELIVERED ON:

Judgment delivered ex tempore on 9 September 2024 (other than with respect to costs)
Reasons delivered on 17 September 2024

DELIVERED AT:

Maroochydore

HEARING DATE:

9 September 2024

JUDGE:

Kefford DCJ

ORDER:

1.     The appeal is allowed.

2.     The decision of the learned Magistrate in Maroochydore Magistrates Court to grant the protection order made 22 February 2024 is set aside.

3.     The application for a protection order filed 28 July 2022 is dismissed.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where the learned Magistrate made a protection order in favour of the respondent – whether the learned Magistrate’s reasons were inadequate – whether the learned Magistrate erred in finding that the appellant has committed domestic violence against the respondent for s 37(1)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) – whether the learned Magistrate erred in finding that a protection order was necessary or desirable to protect the respondent from domestic violence – whether the learned Magistrate erred in deciding to make a protection order – whether the learned Magistrate erred in deciding to name the children of the appellant and respondent

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 32DA

Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 5, 8, 9, 10, 11, 13, 14, 15, 23, 37, 53, 56, 142, 164, 167, 168, 169, 237

Uniform Civil Procedure Rules 1999 (Qld) rr 765, 783, 785

CASES:

ACP v McAuliffe [2017] QDC 294, approved

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, applied

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, applied

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission & Ors [2000] HCA 47; (2000) 203 CLR 194, applied

Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219, applied

DU v Jackson (DCJ) [2024] QCA 122, considered

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, applied

GKE v EUT [2014] QDC 248, approved

Hamra v The Queen [2017] HCA 38; (2017) 260 CLR 479, applied

HBY v WBI & Anor [2020] QDC 81, approved

House v The King [1936] HCA 40; (1936) 55 CLR 499, applied

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, applied

OMD v Queensland Police Service & Anor [2021] QDC 282, approved

COUNSEL:

K Hillard and L Ferguson for the Appellant

SOLICITORS:

Lumme Rynderman Legal for the Appellant
Respondent self-represented

TABLE OF CONTENTS

Introduction

What is the relevant legislative context governing a decision to grant a protection order?

What is the nature of the appeal?

What was…

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AGLC
HIK v HCA [2024] QDC 155
Case
[2024] QDC 155
Decision Date

CaseChat Overview and Summary

In the case of HIK v HCA, the appellant, HIK, appealed the decision of the learned Magistrate in the Maroochydore Magistrates Court, who granted a protection order to the respondent, HCA, under the Domestic and Family Violence Protection Act 2012 (Qld). The core dispute revolved around whether the learned Magistrate erred in granting the protection order, considering HIK's alleged domestic violence against HCA and the necessity of the protection order for HCA's safety.

The legal issues before the court included whether the learned Magistrate's reasons for granting the protection order were adequate and whether the Magistrate correctly identified that HIK had committed domestic violence against HCA. Additionally, the court had to determine if the Magistrate was correct in finding that a protection order was necessary or desirable to protect HCA from domestic violence, and if the Magistrate erred in deciding to name the children of HIK and HCA in the order.

The court found that the Magistrate had not adequately considered the credibility of HCA's evidence regarding HIK's motivation in requesting drug tests, which was a pivotal aspect of the case. The court held that the Magistrate erred in finding that HIK had committed domestic violence against HCA and in concluding that a protection order was necessary or desirable. Furthermore, the court determined that the Magistrate erred in deciding to name the children in the protection order, as there was insufficient evidence to support such a decision. Consequently, the appeal was allowed, the decision of the Magistrate was set aside, and the application for a protection order was dismissed.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the learned Magistrate in Maroochydore Magistrates Court to grant the protection order made 22 February 2024 is set aside.

3. The application for a protection order filed 28 July 2022 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There was also little controversy about the actions of HCA and HIK with respect to the care of the children and about where the children were residing from time to time. The real controversy relates to HIK’s motivation in requesting drug tests and the credibility of HCA’s evidence on that issue.What was the uncontentious evidence?Was there a relevant relationship? It was an incontrovertible fact that HCA and HIK were former de facto partners and were in a relevant relationship for the purposes of ss 13, 14 and 15 of the Domestic and Family Violence Protection Act 2012. See also s 32DA and sch 1 of the Acts Interpretation Act 1954 (Qld).What were the initial arrangements for the care of the children? HIK and HCA have two biological children together. They were born in 2014 and 2017. From the time each was born, HCA was the primary carer for the children. This changed around November or December 2017. In November 2017, HCA and HIK attended a mediation at which HCA and HIK agreed that the children would be predominantly in the care of HCA and would stay with HIK three nights per week. HIK gave evidence that the agreement was subject to stringent conditions about drug testing. This was not challenged by HCA.How did the legal arrangements for the care of children change? In 2018, HIK commenced legal proceedings for parenting orders. Under the Family Law Act 1975, before making a parenting order, the Federal Circuit and Family Court of Australia must be satisfied that a proposed parenting order is appropriate. In deciding whether to make a particular parenting order in relation to a child, the Federal Circuit and Family Court of Australia must regard the best interests of the child as the paramount consideration. On 1 December 2020, the Federal Circuit and Family Court of Australia made the 2020 Parenting Order. Paragraphs 20 and 21 and notation A of the 2020 Parenting Order state:“20.That the mother shall submit to random hair follicle tests for the presence of illicit drugs on the following terms:-a)Within 24 hours of a written request from the father, the mother shall attend upon a general practitioner and obtain a referral to a reputable pathologist in their local area to undertake supervised hair follicle testing, to determine the presence of illicit drugs. b)That the father shall be responsible for the costs of the testing at first instance, and the mother shall reimburse the father in the event that the test results indicate the presence of illicit drugs.c)That no more than 2 tests per year will be requested by the father and the requirement for the mother to undertake such testing will be for no more than three years after the date of these orders.21.In the event of a positive test or any breach of this order by the mother, the mother’s unsupervised time with the children under this order is suspended until she supplies the father with a clear hair follicle test result, and the parents will arrange supervised time to occur at Harmony House in the intervening period with the parents to equally share in the costs associated with same.…NotationsA.The mother will engage in at least monthly drug counselling and education and supply the father with a monthly report from the counsellor on her progress in addressing her drug use for a period of 12 months should the need arise.”

Decision

Reasons for decision

I indicated that I would publish my reasons for judgment shortly. I reserved my decision about the costs of the appeal and provided each of the parties an opportunity to provide written submissions on that issue. These are my reasons for the substantive issues in the appeal and the orders I made on 9 September 2024. What is the relevant legislative context governing a decision to grant a protection order? Section 37 of the Domestic and Family Violence Protection Act 2012 prescribes when a court may make a protection order. Relevantly, it states:(1)A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—(a)a relevant relationship exists between the aggrieved and the respondent; and(b)the respondent has committed domestic violence against the aggrieved; andNote—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.(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…” Section 4 of the Domestic and Family Violence Protection Act 2012 outlines the principles for administering the Act. It states:“Principles for administering Act(1)This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.(2)Subject to subsection (1), this Act is also to be administered under the following principles—(a)people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;(b)to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;(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;Examples of people who may be particularly vulnerable to domestic violence—• women• children• Aboriginal peoples and Torres Strait Islander peoples• people from a culturally or linguistically diverse background• people with disability• people who are lesbian, gay, bisexual, transgender or intersex• elderly people(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; (f)a civil response under this Act should operate in conjunction with, not instead of, the criminal law.”

Ratio Decidendi

Legal Principle Established

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