JKL v DBA (No. 2)

Case [2022] QDC 142

DISTRICT COURT OF QUEENSLAND

CITATION:

JKL v DBA (No. 2) [2022] QDC 142

PARTIES:

JKL

(appellant)

v

DBA

(respondent)

FILE NO:

17 of 2021

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Gympie Magistrates Court

DELIVERED ON:

22 June 2022

DELIVERED AT:

Gympie

HEARING DATE:

13 June 2022

JUDGE:

Dearden DCJ

ORDER:

1.   Appeal dismissed

2.   I will hear the parties on costs

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appellant appeals the decision to dismiss the application to vary the domestic violence order – where the order contains six conditions directed at the appellant’s dealings with the respondent and their five children – whether there was improper admissions of documents – whether the appellant’s evidence was not taken into account – whether there was improper cross-examination – whether there were errors of fact – whether there was procedural unfairness

LEGISLATION:

Domestic and Family Violence Protection Act 2012 ss 23, 146 164(a), 168

CASES:

Allesch v Maunz (2000) 203 CLR 172

Armour v FAC [2012] QMC 22

Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194

Fox v Percy (2003) 214 CLR 118

House v The King (1936) 55 CLR 499

JKL v DBA [2020] QDC 159

McDonald v Queensland Police Service [2018] 2 Qd R 612

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679

COUNSEL:

JKL (self-represented)

LA Ygoa-McKeown
SOLICITORS:

Appellant in person

KLM Solicitors for the respondent

Introduction

  1. The appellant, JKL, appeals the decision of the learned acting magistrate at the Gympie Magistrates Court on 14 October 2021, dismissing the appellant’s application for a variation of the domestic violence order originally made in the Gympie Magistrates Court on 20 November 2019 and upheld on appeal before Byrne QC DCJ in a decision delivered on 22 June 2020.[1]

    Original order

  2. The terms of the original order are set out in JKL v DBA [2020] QDC 159, [2] as follows:-

    “[2] The order was made for a period of five years and contained a total of six conditions, directed towards the appellant’s dealings with the respondent and each of their five children, as named persons. It was in the following terms:

    (1)That the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

    (2)That the respondent be of good behaviour towards the named person and not commit associated domestic violence against the person and not expose any named child to domestic violence.

    (3)The respondent is prohibited from entering, attempting to enter or approaching to within 100 meters of where the aggrieved or named child/ren live, work or attend for the purposes of education or child care.

    -Except for the purpose of having contact with children but only as set out in writing between the parties or in compliance with an order of a court

    -Except with the written consent of the aggrieved including a text message or email

    (4)The respondent is prohibited from locating, attempting to…

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Details
AGLC
JKL v DBA (No. 2) [2022] QDC 142
Case
[2022] QDC 142
Decision Date

CaseChat Overview and Summary

In the case of JKL v DBA (No. 2), the appellant, JKL, appeals against the decision of the Gympie Magistrates Court which dismissed his application to vary the domestic violence order. The order in question imposes six conditions on JKL's interactions with the respondent, DBA, and their five children. JKL contends that the magistrate's decision was flawed on several grounds, including improper admission of documents, failure to consider his evidence, improper cross-examination, errors of fact, and procedural unfairness due to his lack of legal representation. JKL seeks a de novo hearing and the removal of the children's names from the domestic violence order.

The legal issues for the court to decide include whether the magistrate made any errors in admitting evidence, whether JKL's evidence was properly considered, whether there was improper cross-examination, whether there were any factual errors, and whether the lack of legal representation led to procedural unfairness. The court needed to review the evidence and proceedings from the original hearing to determine if the magistrate's decision contained any errors warranting an appeal.

The court examined each ground of appeal in detail. Regarding the improper admission of documents, the court found no error as the magistrate correctly accepted evidence from the Federal Circuit Court. The court also found no error in the magistrate's consideration of JKL's evidence or the cross-examination process. Regarding the alleged errors of fact and procedural unfairness, the court held that these did not demonstrate any error on the part of the magistrate. The court concluded that JKL had not shown any error in the magistrate's decision and dismissed the appeal.

The final orders of the court were that the appeal was dismissed, and the court would hear the parties on the matter of costs.

Orders

Orders of the court

1. Appeal dismissed

2. I will hear the parties on costs

Background

Background to the litigation

The Notice of Appeal sets out the following grounds:-1. Improper admission of documents used in another court;2. Appellant evidence was not taken into account;3. Improper cross-examination of witness; 4. Error of facts; and5. Procedural unfairness where appellant had no solicitor represent him and cud [sic] not convey his site [sic] of argument to the magistrate where the respondent had such representation.The appellant seeks a hearing de novo of the proceedings which were the subject of the appeal.On the hearing of the appeal the appellant will seek to adduce fresh evidence to the following effect, Uniting Church attendance evidence, Gympie Hospital Medical Records.The appellant seeks the following orders from the District Court:1. Appeal allowed.2. Decision of Application dismissed dated 14 October 2021 be set aside/varied.3. The children’s names are taken out of the domestic violence order as named persons.[2] [2]Notice of Appeal – District Court filed 9 November 2021.Background The background to this matter has been helpfully summarised in the respondent’s summary of argument as follows:-[3]“[3]On 20 November 2019, a final protection order was made by the Gympie Magistrates Court which named the appellant as the respondent, the respondent as the aggrieved, and the parties’ children as named persons (‘the final protection order’).[4]On 18 December 2020, the appellant filed an application to vary (‘the application’) in the Gympie Magistrates Court. The application sought that the final protection order be varied to remove the children as named persons.[5]The application contained a number of annexures, including one labelled ‘Affidavit of JKL’, however the document was not correctly executed as an affidavit. In that document, the appellant appeared to seek that the final protection order be revoked.[6]It was subsequently confirmed with the appellant at the commencement of the hearing that he sought for the final protection order to be revoked, but if that was not accepted, in the alternative he sought for the children to be removed as named persons, and for the condition prohibiting him from approaching the aggrieved be removed.[7]The hearing was heard before [the learned acting magistrate] in the Gympie Magistrates Court and occurred on 29 September 2021.[8]On 14 October 2021, the presiding magistrate gave an ex-tempore judgment essentially dismissing the appellant’s application to vary the protection order and ordering costs in the amount of $500.[9]On 9 November 2021, the appellant filed his Notice of Appeal with respect to the decision made on 14 October 2021.”[3]Appeal Exhibit 3 [3]-[9]. Respectfully, and with appropriate adaptation to reflect the fact that the appeal before me is from a decision of a magistrate refusing to vary the conditions of a domestic violence order, the observations of Byrne QC DCJ in the substantive appeal in this matter are also applicable to the appeal before me. I respectfully adopt and apply his Honour’s summary of the applicable laws, as follows:“[5] A person who is aggrieved by a decision to make a domestic violence order may appeal against the decision.[4] The making of a domestic violence order includes the making of a Protection Order.[5][6] The appeal is to be decided on the evidence and proceedings before the court below, unless the appellate court makes an order to the contrary.[6] There was no application in this appeal for an order to the contrary, and no such order was made.f[7] Therefore, this appeal is in the nature of an appeal by re-hearing on the record. In an appeal of that nature it is necessary for me to consider all the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts.[7] I must give recognition to the fact that the magistrate had the advantage of seeing and hearing the witnesses in the evaluation of credit and in assessing the “feeling” of the case.[8] The onus is on the appellant to show that there is some error in the decision under appeal.[9][8] As the making of the Protection Order involves the exercise of a discretion, error of the kind explained in House v The King[10] needs to be demonstrated before the appeal can succeed. The test has sometimes been expressed as requiring satisfaction that no reasonable decision maker could have made the decision under appeal.[9] In the event that error is demonstrated, I must consider the whole of the evidence to determine whether the orders made are nonetheless justified.[10] The powers of this court in an appeal under the DFVP Act are found in section 169 of the DFVP Act. Under section 169(2), the decision of this court is final and conclusive.”Grounds of appeal – discussion[4]Domestic and Family Violence Protection Act 2012 s 164(a).[5]Ibid s 23(2).[6]Ibid s 168.[7]Fox v Percy (2003) 214 CLR 118 [22]-[25]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 [43], [57]; McDonald v Queensland Police Service [2018] 2 Qd R 612 [47].[8]Fox v Percy (2003) 214 CLR 118 [22]; McDonald v Queensland Police Service [2018] 2 Qd R 612 [47].[9]Allesch v Maunz (2000) 203 CLR 172 [23]; Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [14]; McDonald v Queensland Police Service [2018] 2 Qd R 612 [47].[10](1936) 55 CLR 499, 505.Ground 1 – Improper admission of documents used in another court

Evidence

Evidence Before The Court

The respondent submits, correctly in my view, that this ground of appeal must fail, as the learned acting magistrate has not made any error of fact or law in accepting the uncontroversial evidence contained in the Federal Circuit Court judgment. I accept that submission and this ground of appeal fails. Ground 2 – appellant evidence was not taken into account The appellant in his submissions states:-[16]“The magistrate did not believed [sic] the card presented to her was true United Care Counselling. That [sic] why I attached affidavit marked Affidavit A [Annex 2].”[16]Appeal Exhibit 1, p 2 [4]. As the respondent submits, it is open to a magistrate to determine what weight they place on evidence that is before them at a final hearing in deciding whether it is “necessary or desirable” to make an order, or for that matter, to vary an order.[17][17]Armour v FAC [2012] QMC 22 [47]. The affidavit filed by the appellant in support of his application on 27 May 2021 did not annex any documentation in respect of the Uniting Care counselling, but a subpoena issued by the respondent on Uniting Care resulted in documents being produced which were available at the time of the hearing before the learned acting magistrate. Both parties were invited to compile a tender bundle of documents. The appellant declined to do so but the respondent did.[18] During the course of the learned acting magistrate’s reasons, she noted that the appellant had attended Uniting Care and undertaken two face to face appointments with a third scheduled.[19] Clearly the learned acting magistrate did have regard to the evidence of the appellant’s attendance on Uniting Care for counselling, but the weight given to that evidence was a matter for the learned acting magistrate to determine and no error of fact, law or discretion has been demonstrated. Accordingly, this ground fails.[18]Trial Exhibit 9.[19]Decision p 6, ll 15-21.Ground 3 – improper cross examination of witness The appellant in his submission of arguments on this ground states:-[20]“Father questions [sic] were dismissed in cross-examination of the mother. At the point father could not formulate, cross-examine [sic] questions magistrate should have halted the hearing and order [sic] duty lawyer represent the father who can cross-examine the mother in the interest of fair hearing’”.[20]Appeal Exhibit 1 – Submission of Arguments by appellant, p 2 [3]. The respondent submits that there has been a long history of litigation between the appellant and the respondent, including the appellant self-representing in two hearings of the respondent’s application for a protection order, two appeals of the final protection order and many mentions in proceedings.[21][21]Appeal Exhibit 3 – Summary of Argument by the respondent [25]. In the appeal before Byrne QC DCJ, the issue of the appellant’s capacity to conduct proceedings as a self-represented litigant was canvassed at some length, but as Byrne QC DCJ noted:-[22]“It is fully understandable that the appellant might feel that he is disadvantaged in the conduct of his case, but the courts are increasingly alive to the issues faced by self-represented litigants and regularly take account of any actual disadvantage. Here, for the reasons outlined above, the appellant is better armed than many self-represented litigants and in my view suffered no actual disadvantage.”[22]JKL v DBA [2020] QDC 159 [55].

Decision

Reasons for decision

It is not clear whether this particular submission relates to any of the grounds of appeal identified in the Notice of Appeal, but in any event, issues in respect of access by the children to the appellant are within the jurisdiction of the Federal Circuit Court and not the Magistrates Court. The protection order in the Magistrates Court appropriately contemplates the concurrent operation of a family law order. Again, this is not a matter that raises any error of fact, law or discretion by the learned acting magistrate, and to the extent that it could be considered a ground of appeal, it must fail.Conclusion It follows that the appellant has failed to make out any of his grounds of appeal. I order:-1. Appeal dismissed.2. I will hear the parties on costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.