LSI v NYO
[2023] QDC 170
•27 September 2023
DISTRICT COURT OF QUEENSLAND
CITATION: LSI v NYO [2023] QDC 170 PARTIES: LSI
(appellant)
v
NYO
(respondent)FILENO/S: BD 1592/22 DIVISION: Civil PROCEEDING: Appellate ORIGINATING COURT: Brisbane Magistrates Court DELIVEREDON: 27 September 2023 DELIVEREDAT: Brisbane HEARINGDATE: 27 February 2023 JUDGE: Richards DCJ ORDER: The appeal is dismissed. CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW –
QUEENSLAND – APPEAL – where the appeal was made pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) – where the learned Magistrate refused the appellant’s application for a protection order against the respondent on the basis there was no relevant relationship – where the respondent is the step-brother of the appellant’s partner – whether there is a relevant relationship between parties – whether there was domestic and family violence perpetrated against the appellant by the respondent – whether it is necessary or desirable to protect the appellant
from domestic violence
LEGISLATION: Domestic Violence and Family Protection Act 2012 (Qld) s 13, s 19, s 37(1)(a), s 169.
Domestic and Family Violence Act 2007 (NT) s 10.
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 6.
Acts Interpretation Act 1954 (Qld) s 14D.
Mental Health Act 2016 (Qld) s 51, s 56.
CASES: TDO v Constable D. Sperling [2009] QDC 280 COUNSEL: The appellant is self-represented The respondent is self-represented SOLICITORS: The appellant is self-represented
The respondent is self-represented
Introduction
On 7 June 2022 an order was made dismissing a domestic violence application against the respondent on the basis that he did not fit within the relevant relationship categories established pursuant to s 37(1)(a) of the Domestic Violence and Family Protection Act 2012 (‘Act’).
The appellant has appealed this decision on a number of grounds:
1. that the Magistrate erred in refusing the application on the grounds that there was no relevant relationship pursuant to the Act;
2. that the Magistrate erred in failing to comply with the rules and conduct of the proceedings consistent with principles of administering the act under s 4 of the Act;
3. that the Magistrate erred in not issuing an interim order in light of the respondent committing domestic violence to the aggrieved on two separate occasions whilst the matter was on foot;
4. the Magistrate erred in refusing to disqualify himself for actual bias or, in the alternative, apprehended bias;
5. the applicant was denied procedural fairness;
6. the Magistrate caused a miscarriage of justice by failing to accept the applicant’s sibling’s statement under oath that the respondent’s family was family;
7. the Magistrate caused a miscarriage of justice by failing to notify the appellant of the letter dated 14 October 2020 from Police Prosecutor Kathy Clark on behalf of the respondent to have the application dismissed which gave rise to actual bias or, in the alternative, apprehended bias;
8. the Magistrate erred in not issuing a protection order on 7 June 2022 when the respondent consented to the protection order; and
9. that there were irregularities in the conduct of the hearing that occasioned a substantial miscarriage of justice.
The applicant sought to tender fresh evidence on the appeal by way of a further affidavit which I have seen and considered. That affidavit does not raise any new issues to be considered in the appeal.
The respondent maintains that there is no relevant relationship between the parties but in any event has indicated that given the age of the matter he wishes the matter to be decided finally one way or the other. The original application for a protection order was filed 25 August 2020. The applicant has agreed to this course as well.
Given the desire of both parties to have this matter decided finally, I have decided to consider the matter on its merits and to allow the appellant’s case to be considered without contest to the facts.
History
The appellant married TZ on 9 June 2012. TZ is the daughter of Frances [redacted]. Frances is married to Gary CL.1 NYO is Gary CL’s son. The appellant and TZ have three children together, a girl born in 2013, a boy in 2014 and another girl in 2017. They lived at the house of Gary CL from 2013 to 2017.
On 8 and 9 June 2019, the appellant, TZ and the children were driving in New South Wales initially with the intention of going to Yamba on 8 June and then onto Orange on 9 June. It is not entirely clear what happened on the car journey but in any event, they ended up in Katoomba at the hospital and by this stage, the appellant believed that his children had been sexually abused by Gary CL and perhaps by one or other or both of CL’s sons.
At the Katoomba Hospital, TZ was admitted and the appellant was examined. Notes from the hospital indicate that he was experiencing an acute stress reaction with possible diagnosis of a delusional disorder and a psychotic episode. It was noted, “may have paranoid … ideas – over-valued bordering on delusional”.
The children were taken into the custody of their maternal aunt and the appellant did not know their whereabouts. His understanding was that the aunt was taking the children to a hospital for examination in relation to the allegations of sexual abuse but that did not happen. He became concerned for their safety. When he enquired as to
1 Last name anonymised.
where they were and whether he could see them, he was told he could only see them after getting a mental health assessment.
On 14 June 2019 the appellant went to TZ’s uncle’s residence (George [redacted]) to ask about the children and ended up being charged on that date with either assault or causing grievous bodily harm. At the time the Byron Bay police who spoke to him noted that he was displaying extreme mental health issues. He was placed into custody and, on 15 June 2019, bail was refused. He was finally granted bail on 5 August 2019.
On 24 August 2019 an examination authority was issued by the Mental Health Review Tribunal for the appellant. That examination authority was brought to the attention of a Magistrate on 21 September 2019 when the appellant was in court, and he was ordered to go to the Gold Coast University Hospital for assessment. He was placed on a treatment authority on 22 August 2019 and admitted for treatment until 22 October 2019. He then became an outpatient under the treatment authority. The treatment authority was revoked on 3 January 2020 after a review by Dr Pant who indicated that he was without lingering psychotic symptoms.
On 5 January 2020, the charge in New South Wales in relation to George [redacted] was dismissed on the basis that he was suffering from a stress induced psychosis at the time of the offence. That diagnosis was made by Dr Pant from Logan Central Adult Community Mental Health, Dr Curtis, his private psychiatrist, and a Dr Mark Taylor.
Matters relied on to show domestic violence
The appellant has at times applied for domestic and family violence orders against other members of the CL family.
At the hearing of this appeal, the appellant was asked what matters he relied on to prove domestic and family violence perpetrated against him by this respondent.
The following matters were relied on:
· on 13 June 2019 the respondent went to Logan Central Adult Community Mental Health in relation to the appellant. The respondent continued to allege
that the appellant was a diagnosed schizophrenic, although the appellant claims has never been diagnosed with schizophrenia.2 On that day the respondent said that he needed a copy of the mental health records for the appellant, because he was actively searching for his three children who he had a right to access to unless it could be proven that he was not of sound mind. He said there was recent paranoid driven violence.3
· the respondent further alleged that the appellant had stolen a motor vehicle from his mother. At that stage the family was seeking to complete an examination authority sighting a gradual increase in paranoid speech and behaviour which was markedly worsening since the weekend of 9 June 2019.4 His mother in fact reported the car stolen to the police but eventually admitted that this was not true. The appellant informed the court that his mother reported the motor vehicle stolen and that she had also said that he accused his brother of poisoning his own children and sexually abusing them. She admitted that these allegations were incorrect in 2021.
· on 21 August 2019 there was a discussion at the Gold Coast University Hospital with this respondent, the appellant’s mother and brother and hospital staff where they attempted to have the appellant put under an examination order. The notes indicate that NYO said that the appellant had a previous condition and admission in 2001 for psychosis and spent 4 months in hospital and there was a bad investment decision made and that that was being dragged through the courts.5 They said that the appellant felt that people were hacking his computers and people were against him including his family. It was suggested that he had made reports to the police that his children were killed, his stepfather had molested the children, and his children had been drugged. They also stated there were allegations that he had drugged his wife and that was the thing that caused her admission to the hospital, that he was incarcerated for assaulting a family member and his mother said that he was being aggressive and checking her phone and emails. All of this was said to be false and therefore amounted to domestic violence.
2 From ll 7-12, p 13 of the Transcript of Proceedings 27 February 2023.
3 From ll 27-45, p 14 of the Transcript of Proceedings 27 February 2023.
4 From p 15 of the Transcript of Proceedings 27 February 2023.
5 From ll 35-45, p 8 of the Transcript of Proceedings 27 February 2023.
· on 9 March 2021 whilst at court for a hearing of this application the respondent was aggressive towards him and stood over him.
· on 29 March 2021 while he was collecting property from his former residence which he had shared with his mother, there was a confrontation between himself and this respondent.
The dates of the statements by the respondent to the hospital and others are important. The conversation with the Adult Community Health Centre occurred the day before the appellant was arrested for violence against George [redacted], whereupon it was found that he was very unwell mentally and resulted in the dismissal of charges on the basis of a stress induced psychosis. Similarly, the notes of 21 August 2019 occurred at a time not long after he had been released from custody and the day before he was admitted for treatment under a treatment authority which was not discharged until 3 January 2020. The concerns about his mental health were obviously valid at that period of time.
The appellant felt his treatment at the Gold Coast University Hospital was unnecessary and was solely because of lies told to the hospital or to the Logan Central Adult Community Mental Health. However, he accepts he was placed under a treatment authority from 22 August 2019. Treatment authorities are subject to the Mental Health Act 2016 (Qld). He was initially treated as an inpatient for two months. Section 51(3) of the Mental Health Act provides that:
“… the authorised doctor may decide the category of the authority is inpatient only if the authorised doctor considers, after having regard to the relevant circumstances of the person, that 1 or more of the following cannot reasonably be met if the category of the authority is community—
(a)the person’s treatment and care needs;
(b)the safety and welfare of the person;
(c)the safety of others.”
If a treatment authority is not made by an authorised doctor who is not a psychiatrist, then s 56 provides that a psychiatrist must examine the patient within seven days of the treatment authority being made. Clearly there must have been real concerns for his mental health at that stage as a result of being assessed by a psychiatrist.
The appellant submitted that the respondent was gaslighting him by appointing a solicitor to assist him in the criminal proceedings in New South Wales. He indicated that the solicitors were acting on the respondent’s instructions and not in his interests. I do not accept that solicitors, even if they were being paid by the respondent, would not act on the appellant’s instructions.
The appellant complains about a conversation between the respondent and a Senior Constable Clark which prompted a letter dated 14 October 2020 being sent to the learned Magistrate by the police officer. The police officer had gone to confirm address details to be able to serve outstanding domestic violence documents on the respondent. The respondent took the opportunity to speak to the police officer, and the police officer, no doubt fulfilling her duty, took notes. I do not accept that this amounts to domestic violence as the respondent was approached by the police and not the other way around.
The right of appeal
The court’s role on appeal is found in Part 5, Division 5 of the Domestic Violence and Family Protection Act 2012. It provides that the appellate court may confirm a decision, vary the decision, set aside the decision, substitute another decision or set aside the decision appealed against and remit the matter to the court that made the decision. The decision of the appellate court upon an appeal is final.6
At the hearing of this appeal, the respondent agreed to my deciding the matter finally one way or the other, on the basis that he would not challenge the facts as presented by the appellant and I will proceed to decide the matter on that basis.
Grounds of appeal
The initial complaint of the appellant was that the Magistrate should have disqualified himself on the basis of bias. This was because of a comment he had made at an earlier hearing about the likely success of this matter. I have considered that submission but the comment made did not express any decided view on the matter and I find there was no basis for the Magistrate to have disqualified himself.
6 Domestic Violence and Family Protection Act 2012 (Qld) s 169.
The Magistrate ruled that there was no relevant relationship between the parties pursuant to s 37(1) (a) of the Act. He did not give full reasons for that finding. As a result of that finding he dismissed the application.
Division 3 of the Domestic and Family Violence Protection Act 2012 defines relevant relationship in s 13 of the Act:
“13 Meaning of relevant relationship
A relevant relationship is—
(a)an intimate personal relationship; or
(b)a family relationship; or
(c) an informal care relationship.” Section 19 defines as:
“19 Meaning of family relationship and relative
(1)A family relationship exists between 2 persons if 1 of them is or was the relative of the other.
(2)A relative of a person is someone who is ordinarily understood to be or to have been connected to the person by blood or marriage.
Examples of an individual’s relatives—
an individual’s spouse, child (including a child 18 years or more), stepchild, parent, step-parent, sibling, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in- law
Examples of an individual’s former relatives—
• the person who would be the individual’s mother-in- law if the individual was still in a spousal relationship with the person’s son or daughter
• the person who would be the step-parent of the individual if the spousal relationship between the person and the person’s former spouse, the individual’s parent, had not ended
• the individual’s step-siblings when the parent they do not have in common has died
(3)For deciding if someone is connected by marriage, any 2 persons who are or were spouses of each other are considered to be or to have been married to each other.
(4)A relative of a person (the first person) is also either of the following persons if it is or was reasonable to regard the person as a relative especially considering that for
some people the concept of a relative may be wider than is ordinarily understood—
(a)a person whom the first person regards or regarded as a relative;
(b)a person who regards or regarded himself or herself as a relative of the first person.
Examples of people who may have a wider concept of a relative—
• Aboriginal people
• Torres Strait Islanders
• members of certain communities with non-English speaking backgrounds
• people with particular religious beliefs
(5)In deciding if a person is a relative of someone else—
(a)a subsection of this section must not be used to limit another subsection of this section; and
(b)each subsection is to have effect even though, as a result, a person may be considered to be a relative who would not ordinarily be understood to be a relative.”
In this situation the aggrieved is married to TZ. TZ is the daughter of Frances [redacted]. Frances [redacted] is married to Gary CL. This respondent is the son of Gary CL. TZ is therefore a step-sibling of the respondent. The appellant is married to TZ although they are no longer together.
Family relationships and family members are defined in differently in different Acts throughout the country. In the Northern Territory, examples of relatives include step- child, step-parent, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt in law or someone who according to Aboriginal tradition or contemporary social practices is a relative of the person.7 Whereas in New South Wales, the Crimes (Domestic and Personal Violence) Act 2007 (NSW) specifically includes the stepbrother of the person’s partner in its definition of ‘relative’.8 All of the Australian states have slightly differing definitions of relative.
Section 14D of the Acts Interpretation Act 1954 (Qld) provides: “14D Examples
7 Domestic and Family Violence Act 2007 (NT) s 10.
8 Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 6.
If an Act includes an example of the operation of a provision—
(a)the example is not exhaustive; and
(b)the example does not limit, but may extend, the meaning of the provision; and
(c)the example and the provision are to be read in the context of each other and the other provisions of the Act, but, if the example and the provision so read are inconsistent, the provision prevails.”
In TDO v Constable D. Sperling9, Irwin DCJ [as he then was] noted that:
“a family relationship exists between two persons if one of them is the relative of the other, in the sense of someone who is ordinarily understood to be or to have been connected to the person by blood or marriage.”
In this case, the evidence is that the respondent was the step-brother of the appellant’s wife. When one looks at the examples in s 19(2) of the Act, step-parent and step- child are included, as is half-brother. Examples of an individual’s former relatives include step-siblings when the parent they do not have in common has died. The extended definition of relative includes someone who it is reasonable to regard as a relative. Section 19(5) operates to ensure that the extended definition of relative is not narrowly interpreted even though the effect is “a person may be considered to be a relative who would not ordinarily be understood to be a relative”. The note to that section indicates that this depends not only on the state of mind of the person who regards or regard the person as a relative but also the Court being satisfied that it is or was reasonable to regard the person as a relative.
The learned Magistrate did not give reasons for deciding that the respondent was not a relative. However, given his involvement in the management of the appellant when he was unwell mentally, his behaviour at the hospital in assisting the hospital staff to understand what he and others saw as the issues at the time, the fact that he tried to get legal assistance for the appellant, and his relationship to the appellants wife, that the respondent does fit within the extended definition of relative. I find that the respondent is sufficiently connected by marriage to the appellant to be considered to be a relative within s 19 of the Act and therefore a relevant relationship exists. The Magistrate erred in finding there was no relevant relationship.
9 [2009] QDC 280 at 174.
The appellant has raised other grounds of appeal based on procedural fairness. Because the respondent has agreed not to contest the facts as outlined by the appellant and agreed that the matter should be dealt with finally by this court, the further grounds of appeal are not relevant.
Was there domestic violence?
Section 8 of the Act defines domestic violence as follows: “8 Meaning of domestic violence
(1)Domestic violence means 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.”
In seeking to establish domestic violence the appellant relies on the matters outlined in paragraph 15-17 of this decision.
The appellant submits that the discussions with the various medical staff amounted to efforts to have him falsely committed to a mental health facility. Accepting that the respondent made all the comments outlined to hospital staff, there is much in those discussions that were factually accurate at the time. The appellant was unwell at the time – he was suffering from a stress induced psychosis on 14 June 2019 and was under an involuntary treatment order for in excess of four months from 22 August 2019.
On 13 June 2019 the respondent alleged that the appellant had stolen a motor vehicle. That was an allegation that the appellant’s mother made which she later retracted in 2021. However, there is no suggestion that the respondent knew in 2019 that this allegation was not true. It was suggested that his paranoid speech and behaviour was worsening since the weekend of 9 June 2019 with mistrust in family and accusations
of family business associates conspiring to kill him.10 The appellant does say that he was desperately trying to find the children and felt they were being kept from him. He was worried for their safety. He denies ever being worried that his business associates were trying to kill him. The respondent did tell authorities that the appellant suffered from schizophrenia and that is incorrect, however, it is unclear if that was simply information he was relaying from others. Similar observations can be made about the information given about the length of time he spent in hospital in 2001.
The appellant also complains that the respondent lied to Constable Clarke who then wrote a letter to the Magistrate which had a detrimental effect on court proceedings. The respondent did not seek the officer out but simply spoke to her when she went to his premises.
The respondent did arrange for security guards to watch the front of the house after the appellant was released on bail on 5 August 2019. At that stage the criminal proceedings in New South Wales were still on foot, he was living with his mother and in those circumstances that measure cannot be said to be unwarranted.
I do not accept that the efforts to have the appellant treated by a psychiatrist in 2019 amounted to domestic violence. They were no more than attempts to get help for the appellant.
The 2021 incidents occurring at the Court and when the appellant went to pick up his property and there was a dispute over what property should be picked up may amount to domestic and family violence. However, isolated incidents of domestic violence alone are insufficient to ground an order. The Court must also be satisfied that an order is either necessary or desirable.
Is an order necessary or desirable?
Section 37 of the Act provides as follows:
“37 When court may make protection order
(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—
10 From ll 40-45, 1-2, pp 16-17 from the Transcript of Proceedings 27 February 2023.
(a)a relevant relationship exists between the aggrieved and the respondent; and
(b)the respondent has committed domestic violence against the aggrieved; and
(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
(ii) if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order — the respondent’s failure to comply with the order; and
(b)if an intervention order has previously been made against the respondent and the respondent has complied respondent’s compliance with the order.”
In this case there has been no order previously. The only contact between the aggrieved and the respondent since 2019 has been in relation to court proceedings. The respondent has indicated that he has no desire to see the appellant and I accept that to be the case. There is no apparent reason why the appellant should be concerned about the behaviour of the respondent. The incidents that may amount to domestic violence are isolated in nature and took place during a very unsettled time in the interactions between the parties. There is no continuing relationship between the parties and there is no reason for further interaction. In my view it is neither necessary nor desirable for an order to be made.
The Magistrate erred in finding that there was no relevant relationship existed between the parties, however, he was correct in dismissing the application. In my view there is no basis to make a domestic violence order in this case and accordingly the appeal should be dismissed.
ORDER
The appeal is dismissed.
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