Laf v AP

Case [2022] QDC 66

DISTRICT COURT OF QUEENSLAND

CITATION:

LAF v AP [2022] QDC 66

PARTIES:

LAF

(Appellant)

v
AP

(Respondent)

FILE NO/S:

D36/21

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to Domestic and Family Violence Protection Act 2012 (Q)

ORIGINATING COURT:

Magistrates Court at Noosa; Magistrates Court at Toowoomba 

DELIVERED ON:

24 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2022

JUDGES:

Smith DCJA

ORDER:

1.   The appeal is allowed.

2.   The decision made is set aside.

3.   The matter is remitted for a retrial in the Magistrates Court at Toowoomba to be heard before a different Magistrate.

4.   I will hear the parties on the question of costs.

CATCHWORDS:

FAMILY LAW – DOMESTIC AND FAMILY VIOLENCE – WHETHER PROCEDURAL FAIRNESS ACCORDED TO THE APPELLANT – whether Magistrate erred in reopening a transfer order – whether the Magistrate conducted a fair hearing  and whether appearance of bias – whether Domestic Violence Order should have been made- whether another application should have been dismissed- the admission of fresh evidence of Post-Traumatic Stress Disorder – whether insufficient reasons given for decision- whether Magistrate failed to consider the appellant’s affidavit material and submissions

Domestic and Family Violence Protection Act 2012 (Q) ss 4, 37, 41D, 145, 151, 168, 169
Human Rights Act 2019 (Q), s 31

Adacot v Sowle [2020] Fam CAFC 215; 355 FLR 57, followed
Allesch v Maunz [2000] HCA 40; 203 CLR 172, followed
Antoun v R [2006] HCA 21; 224 ALR 51; 80 ALJR 497, followed
Chung v Yang [2021] QDC 68, cited
DJL v Central Authority [2000] HCA 17; 201 CLR 226, followed
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, cited
Escobar v Spindaleri & Anor (1986) 7 NSWLR 51, followed
Galea v Galea (1990) 19 NSWLR 263, cited
GKE v EUT [2014] QDC 248, followed
Hook v Commissioner of Police [2022] QDC 35, cited
Jones v National Coal Board [1957] 2 QB 55, cited
LKL v BSL [2015] QDC 337, followed
MDE v MLG [2015] QDC 276, followed
MKA v WKT [2018] QDC 73, cited
Police v Jacobs, Magistrates Court at Noosa January 2021, cited
R v Wade [2011] QCA 289; [2012] 2 Qd R 31, cited
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29, followed
Tomasevic v Travaglini (2007) 17 VR 100, applied

COUNSEL:

Ms C Ingenito for the appellant
Self-represented respondent

SOLICITORS:

Directly instructed by the appellant
Self-represented respondent.

Introduction

  1. This is an appeal against the decision of the Noosa Magistrates Court to dismiss the appellant’s application for a protection order and to grant the respondent a protection order given on 24 September 2021.

  2. The nature of the appeal is set out in section 168 of the Domestic and Family Violence Protection Act 2012 (Q)(“DVA”). The court’s powers are set out in section 169 of the DVA.

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Details
AGLC
Laf v AP [2022] QDC 66
Case
[2022] QDC 66
Decision Date

CaseChat Overview and Summary

The parties to this appeal were a former husband and wife, who had been married in 2003 and separated in 2012. The wife brought an appeal against a decision of the Magistrate who had made a Domestic Violence Order in her favour. The wife claimed the Magistrate had not properly considered the evidence and had failed to act fairly in the proceedings. The husband opposed the appeal, arguing the Magistrate had acted correctly. The appeal was heard in the District Court of Queensland.

The central legal issue in the appeal was whether the Magistrate had conducted the proceedings fairly and whether the evidence was sufficient to justify the making of the Domestic Violence Order. The wife argued the Magistrate had failed to properly consider her evidence, had reopened a transfer order improperly, and had shown bias. The husband argued the Magistrate had acted correctly and that the evidence supported the Domestic Violence Order.

The Court held that the appeal should be allowed and a rehearing ordered. The Court found the Magistrate had not considered the wife's affidavit material and submissions properly and had failed to act fairly. The Court also found the Magistrate had shown bias and had not provided sufficient reasons for his decision. The Court held that the Domestic Violence Order should be set aside and the matter remitted for a retrial before a different Magistrate. The Court also held that fresh evidence of the wife's Post-Traumatic Stress Disorder should be admitted as it was in the interests of justice to do so.

The Court made orders allowing the appeal, setting aside the Magistrate's decision, and remitting the matter for a retrial in the Magistrates Court at Toowoomba before a different Magistrate. The Court also directed that the parties be heard on the question of costs.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision made is set aside.

3. The matter is remitted for a retrial in the Magistrates Court at Toowoomba to be heard before a different Magistrate.

4. I will hear the parties on the question of costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant submitted insufficient reasons were given for granting the DVO in favour of the respondent. The respondent says it was justified and there was material attached to his submissions it was more than just one act but he did not put this into evidence as the appellant had filed her material late. In my view the respondent should have the chance to file an affidavit in response at any retrial of the matter. Decision as to fresh evidence As to the fresh evidence, when pressed the respondent did not oppose the admission of the affidavit. He did not dispute the appellant may suffer PTSD, but disputes it was he who caused this. I have decided it is in the interests of justice to admit the fresh evidence. The evidence of the appellant explains how her condition was exacerbated as a result of the Magistrate’s conduct on 24 September 2021. In my opinion without this evidence a miscarriage of justice may well result.[2] [2]See by way of example R v Wade [2011] QCA 289; [2012] 2 Qd R 31 where evidence of a psychologist was admitted on appeal to prevent a miscarriage of justice. Conduct of the proceedings In order to examine those grounds of appeal, it is necessary to look at the history of the matter. The parties were married in 2003 and separated in 2012 and were divorced. There are three children now aged 18, 16 and 13. The children lived with the appellant and attended high school in Toowoomba. The respondent lived on the Sunshine Coast. After their separation, the appellant brought a claim in the District Court of New South Wales as plaintiff against the respondent as defendant. The plaintiff claimed damages for trespass including aggravated and exemplary damages. In the statement of claim, it was alleged the respondent intentionally physically and emotionally intimidated, bullied and abused the plaintiff causing her to experience fear, intimidation and emotional trauma on a frequent and continuing basis resulting in loss and damage. Particulars of the abuse were given which include:1. In June 2004, he left a suicide note.2. In November 2004, he spoke to the appellant in an intimidatory and abusive manner causing her to be in fear and punching a hole in the bedroom wall causing fear to the appellant and her child.3. Commencing in December 2004 periodically waking the appellant and falsely alleging there was an intruder in the homestead.4. In August 2005, punching a hole in the bedroom wall.5. In October 2006, driving the plaintiff and their oldest son in a furious and intimidating manner.6. In January 2007, becoming enraged and physically intimidating the appellant and their children with the police attending and removing the respondent and his firearms.7. In March 2007, the respondent became emotionally abusive and stopped her from leaving a property trapping her on property.8. The plaintiff fled the homestead and tried to head to the neighbour’s home on foot cowering in fear in a paddock. The respondent was laughing.9. In October 2007 following an argument at dinner, the respondent threw the contents of a bottle of beer over the appellant and their child.10. Over Christmas/New Year 2007/2008 the respondent grabbed a butcher’s knife, severely lacerating his hand and blaming the appellant for this.11. At Christmas 2007 throwing a book at the appellant.12. In August 2008, grabbing the appellant and throwing her violently against the driver’s side of a door.13. In September 2008, pursuing the appellant in a street and trying to remove the keys from her vehicle after they had temporarily separated.14. In May 2009, choking her.15. In June 2009, the respondent kicked the arm off a sofa.16. In May 2011, verbally abusing and yelling at the appellant.17. In July 2011 in New Zealand, damaging a rental vehicle and verbally abusing the appellant.18. In 2011 at Orange, engaging in an argument and physical fight with his brother in the presence of the family.19. On 11 September 2011, driving in a furious manner during an argument with the appellant and slamming on the brakes.20. On 17 October 2011, telling the appellant she was mentally ill in an aggressive fashion.21. In February 2012, becoming emotionally and verbally abusive and physically aggressive to the appellant.22. In March 2012, being in a rage and terrifying the children.23. On 13 May 2012, called her a whore.24. On 12 August 2012, threatening to crash a vehicle into the tree.25. On 19 August 2012, receiving an abusive phone call from the respondent.26. On 13 November 2012 at Orange after their separation, breaking into the appellant’s home and refusing to leave it.27. On 21 December 2012, verbally abusing the appellant in public and kicking the driver’s side door of the car.28. In March to August 2013, repeatedly and maliciously reporting the appellant to the police for imaginary offences.29. In April/May 2013, falsely accusing the appellant of stealing takings from their company.30. On 30 May 2012, being physically abused by the respondent as a result of which the police were called. 31. In June 2013, the respondent falsely alleged theft to the police.32. On 4 March 2014, the respondent failed to return their child from contact in accordance with the arrangements and then spoke to the appellant in a menacing and intimidating manner.33. In August/November 2013, in breach of the Family Law Act the respondent posted false and misleading information concerning the Family Court proceedings on Facebook.

Decision

Reasons for decision

The appeal must be allowed and a rehearing ordered.Conclusion In all of the circumstances, on my review of the evidence I consider that the following orders should be made:1. The appeal is allowed.2. The orders made by the Magistrate are set aside.3. The matter is remitted for rehearing in the Toowoomba Magistrates Court before a different Magistrate.4. I will hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

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