KT v CT

Case [2024] QDC 196

DISTRICT COURT OF QUEENSLAND

CITATION:

KT v CT [2024] QDC 196

PARTIES:

KT

(appellant)

v
CT

(respondent)

FILE NO/S:

DC No 707 of 2024

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Coolangatta

DELIVERED ON:

15 November 2024

DELIVERED AT:

Brisbane

HEARING DATES:

19 August, 7 November 2024

JUDGE:

Rafter SC DCJ

ORDERS:

1.   Appeal dismissed.

2.   Confirm the order made by the Magistrates Court at Coolangatta on 16 February 2024.

3.   The appellant pay the respondent’s costs of the appeal to be assessed on the standard basis.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – POWERS OF COURT – where the appellant brought an application pursuant to section 86 of the Domestic and Family Violence Protection Act 2012 (Qld) to vary the duration of a protection order – where the appellant appeals the decision made by the Magistrate to dismiss the application on a summary basis – where the appellant’s solicitor had acknowledged deficiencies in the appellant’s material – where the application was dismissed at the fourth mention – whether the appellant was denied procedural fairness by the Magistrate not listing the matter for a contested hearing where credibility and reliability of witnesses could be assessed – whether the appellant had been given a reasonable opportunity of presenting her case

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – POWERS OF COURT - where the appellant brought an application pursuant to section 86 of the Domestic and Family Violence Protection Act 2012 (Qld) to vary the duration of a protection order – where the respondent did not consent to the variation – where the appellant had aspirations to become a foster carer – where the protection order had been fully complied with – whether the Magistrate erred by dismissing the appellant’s application to vary the protection order

Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 37(1)(c), s 56(1)(a), s 86, s 91, s 92, s 92(2)(a), s 92(2)(b), s 97(2)(b), s 164(b), s 167, s 168
Human Rights Act 2019 (Qld), s 31

AJC v Gijsberten [2019] QDC 195
Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
OSE v HAN [2020] QDC 309
Roberts v Harkness (2018) 57 VR 334; [2018] VSCA 215
Wylie v AMN [2022] QDC 241

COUNSEL:

J P Wallace for the appellant
J M Evans for the respondent

SOLICITORS:

Taylor Rose for the appellant
Salerno Law for the respondent

Introduction

  1. On 31 March 2021 following a contested hearing in the Magistrates Court at Southport, a protection order was made naming the present appellant as the respondent and the present respondent as the aggrieved.[1]  The Magistrate considered whether the duration of the order should be less than five years, but her Honour was not satisfied that there were reasons for doing so.[2]  Accordingly, the protection order continues in force to and including 30 March 2026.

    [1]The written submissions for the appellant and the respondent refer to a protection order made on 9…

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KT v CT [2024] QDC 196
Case
[2024] QDC 196
Decision Date

CaseChat Overview and Summary

In the matter of KT v CT, the appellant sought to vary a domestic violence protection order made against her by the Magistrates Court at Coolangatta. The respondent, the appellant's daughter, opposed the application for variation. The appeal before the court was from a decision of the Magistrate to summarily dismiss the application on 16 February 2024. The appellant contended that she was denied procedural fairness because the Magistrate did not list the matter for a contested hearing where the credibility and reliability of witnesses could be assessed. The appellant also argued that the Magistrate erred in dismissing her application to vary the protection order.

The court considered the procedural fairness issue in light of the procedural history of the matter. The appellant’s solicitor had acknowledged deficiencies in the material at an earlier mention. A direction was given for any material to be filed by 12 January 2024, which the appellant did. The court found that the appellant had been given a reasonable opportunity to present her case. The court also considered the principles for administering the Act, which include the paramountcy of the safety, protection, and wellbeing of people who fear or experience domestic violence. The court noted that a court has an implied power to summarily dismiss an application for a protection order on the basis of a lack of evidence, but this power is not unrestrained and will be exercised infrequently. The court concluded that the Magistrate was correct to dismiss the application for variation of the protection order. The appeal was dismissed, and the order made by the Magistrates Court was confirmed. The appellant was ordered to pay the respondent's costs of the appeal.

This case underscores the importance of procedural fairness in domestic violence protection order proceedings. The court found that the appellant was not denied procedural fairness as she had been given a reasonable opportunity to present her case. The court also highlighted the principles for administering the Act, which emphasise the paramountcy of the safety, protection, and wellbeing of people who fear or experience domestic violence. The court's decision in this case provides guidance on the exercise of the power to summarily dismiss an application for a protection order.

Orders

Orders of the court

1. Appeal dismissed.

2. Confirm the order made by the Magistrates Court at Coolangatta on 16 February 2024.

3. The appellant pay the respondent’s costs of the appeal to be assessed on the standard basis.

Background

Background to the litigation

Having regard to the appellant’s argument that the summary dismissal of her application involved a denial of procedural fairness, it became apparent that it would be necessary to consider the procedural history of the matter, particularly in relation to an appearance on 19 January 2024. The matter was adjourned for further hearing on 7 November 2024 to enable a transcript of that appearance to be obtained. Factual background The appellant is the respondent’s mother. The respondent has three children. At the hearing in 2021, the Magistrate was satisfied that a protection order was desirable to protect the respondent from domestic violence.[4][4]Domestic and Family Violence Protection Act 2012 (Qld), s 37(1)(c); Reasons 31 March 2021 p26 l10. The Magistrate noted that the appellant had not contravened the protection order, but nevertheless concluded that in the absence of an order there was “a sufficiently significant risk of future domestic family violence by way of at least emotional or psychological abuse.”[5][5]Reasons 31 March 2021 p25 ll5-15. The order contained the mandatory condition that the appellant be of good behaviour towards the respondent and not commit domestic violence against her.[6] The order also contained a restriction on contact between the appellant and the respondent. [6]Domestic and Family Violence Protection Act 2012 (Qld), s 56(1)(a).Procedural history The application for variation of the protection order first came before the Magistrates Court at Coolangatta on 17 November 2023. The matter was adjourned to 8 December 2023 to enable the respondent to obtain legal advice. On 8 December 2023, the appellant was represented by a solicitor. The respondent appeared on her own behalf. According to the notes on the Magistrates Court file, the appellant’s solicitor indicated that she had only just been retained and acknowledged that there was a “deficit” in the material. The appellant’s solicitor apparently pressed in strong terms for a “hearing and directions”. Further, the notes on the Magistrates Court file indicate that the respondent was “retraumatised” by the proceedings and did not consent to any variation of the protection order. The matter was adjourned to 19 January 2024. On 12 January 2024, the appellant filed an affidavit in support of her application. The appellant said that she was making the application as she believed that the protection order was “no longer necessary and desirable to protect the aggrieved.”[7] She said that there had been no breaches of the protection order which had been fully complied with.[8] The appellant said that she had no contact with the respondent whatsoever.[9] She said that she had closed all forms of social media and blocked the respondent from them.[10] The appellant said she had sought counselling to assist her in making sense of the breakdown of the relationship with the respondent and understanding what constituted domestic violence and the effects of it.[11] The appellant had also completed a program with a strong domestic violence focus.[12][7]Affidavit of the appellant filed 12 January 2024 at para 5.[8]Affidavit of the appellant filed 12 January 2024 at para 6.[9]Affidavit of the appellant filed 12 January 2024 at para 7.[10]Affidavit of the appellant filed 12 January 2024 at para 8.[11]Affidavit of the appellant filed 12 January 2024 at para 12.[12]Affidavit of the appellant filed 12 January 2024 at para 13.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent submitted that the appellant was afforded procedural fairness.Consideration The appellant’s right of appeal is conferred by s 164(b) of the Act. The Police Commissioner has a right to appear and be heard on the hearing of an appeal.[21] The Police Commissioner advised the Court and the parties by email dated 21 May 2024 that he did not wish to be heard.[21]Domestic and Family Violence Protection Act 2012 (Qld), s 167. The appeal is to be decided on the evidence and proceedings before the Magistrates Court unless the appellate court orders that it be heard afresh.[22][22]Domestic and Family Violence Protection Act 2012 (Qld), s 168. For the reasons that follow, the appellant was not denied procedural fairness and the Magistrate was correct to dismiss the application for variation of the protection order. In the circumstances the appeal must be dismissed. On 8 December 2023, the appellant’s solicitor acknowledged that there was a “deficit” in the material and a direction was given that any material relied upon in support of the application be filed by 12 January 2024. In accordance with the direction to file material, the appellant filed her affidavit setting out the grounds upon which she relied. The grounds upon which the appellant sought to have the protection order varied were essentially that she had complied with the order made on 31 March 2021, had participated in courses and had a desire to become a foster carer. The matter was to be determined in accordance with the main objects of the Act set out in s 3 and the principles for administering the Act in s 4. One of the main objects of the Act in s 3(1) is to maximise the wellbeing of people who fear domestic violence and minimise disruption to their lives. Section 3(1)(a) provides:“3 Main Objects(1) The main objects of this Act are - (a)to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives;” The principles for administering the Act include: “4 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;…” In OSE v HAN[23] Byrne QC, DCJ accepted that a court hearing an application for a protection order has an implied power to summarily dismiss the proceeding on the basis of a lack of evidence capable of supporting the order sought. However his Honour added that:“The power is however not unrestrained, and the occasion to exercise it will be relatively infrequent.”[24][23][2020] QDC 309 at [46].[24][2020] QDC 309 at [47].