SM v AA

[2015] QDC 172

[2015] QDC 172

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE REID

No 4433 of 2014

SM  Appellant

and

AA  Respondent

BRISBANE

11.01 AM, FRIDAY, 29 MAY 2015

JUDGMENT

HIS HONOUR:   I have before me an application by the respondent to an order made by a Magistrates Court under the Domestic and Family Violence Protection Act 2012 (Qld), for an extension of time in which to file the appeal and the notice of appeal. The proceedings before the Magistrate on the 15^th of October 2014 were characterised by the appellant’s failure to appear on that date.  Perusal of the transcript clearly indicates that the Magistrate relied on an affidavit of service of the application to vary the order, and he noted the failure of the appellant to appear.

Pursuant to the provisions of section 94, which is part of 10 of the Act, dealing with such variations of domestic violence orders, in circumstances where a respondent fails to appear and the Court is satisfied that he has been served with an application, pursuant to subsection (2):

The court may: 

(a)hear and decide the application in the absence of the respondent; or

(b)adjourn the application; or

(c)subject to other sections of the Act order the issue of a warrant for the respondent to be taken into custody;  or

(d)(d) if the applicant is the respondent, dismiss the application without deciding it.

It is said that the Court proceeded to “hear and decide the application” in the absence of the respondent. 

In that circumstance, I’ve looked at the transcript of the proceedings before the Magistrate.  They were very short, taking only a matter of minutes.

The first page of the transcript indicates that the Magistrate turned his mind to the question of service and was satisfied in the way that I have described.  She then discussed whether or not the order should be extended for 18 months or two years, as appeared in an application for variation of the earlier order which had been made.  That application was relied on by counsel who appeared for the respondent in the appeal before me as constituting the evidence upon which the Magistrate relied, and thus to constitute the hearing of the matter.

The application, pursuant to the provisions of the Act, was signed by way of a statutory declaration, by the applicant.  The form requires her to give reasons for her application to extend the domestic violence order.  The form states, allowing for grammatical and spelling errors:

Continued violence and threats towards me.  Verbal abuse towards me in person and through texts.  A lot of very bad swearing towards me.  He is harassing my friends and family.  He has broken the original order many, many times.  We’re getting a divorce, which makes him worse.

On a hearing where one party fails to appear, it would in my view be incumbent upon the Magistrate to have at least specifically turned his mind to that evidence and, in that way, made a determination on the material before him.  Perusal of the transcript, in my view, leaves me with the very uncomfortable feeling that the Magistrate dealt

with this merely as a rubber stamp exercise.  That is, immediately upon the applicant not appearing, the Magistrate made the order and the only discussion was as to whether or not the order should be extended for a period of 18 months or two years.

In my view, there is no suggestion from the transcript that the Magistrate specifically read the material to ascertain whether, in fact, there had been such breaches.  I note, among other things, that there is no particularity of the allegations, no allegation as to when or where the alleged breaches occurred.  The very brief order makes no reference to the material on which the applicant relied in her written application. 

In my view, it’s incumbent upon judicial officers hearing applications where parties do not attend to, nevertheless, “hear and decide” the matter.  While this might be upon very brief and even entirely upon affidavit material, in my view, perusal of the transcript in this case shows that the Magistrate could not be said to have turned her mind to that question at all.  In the circumstances, I think the appeal should be allowed.

I order the time for the filing of the notice of appeal be extended to the 15^th of December 2014, and the appeal is allowed. 

Now, SM, the consequence of that is that there’s no current order.  I might say to you that the form of the restraint upon you was very mild.  It was to be of good behaviour and not commit domestic violence against the aggrieved.  It seems to me that that’s something that any person ought do to their wife anyway.

I’m going to give you a warning, because this appeal’s been allowed, not on the merits of your application, but because of that procedural irregularity that I think requires me to set the order aside.  It is vital that you behave appropriately and it’s clear, on my reading of it, that your wife doesn’t want you contacting her in the way that you’ve done.  So I’d be extremely reluctant, if I was you, to make such contact.  You told me you’ve got solicitors acting for you.  You know your wife does, through Legal Aid.  If you want to make contact, make contact through them. I anticipate that it’s highly likely that an application’s going to be made in the near future for a domestic violence order. 

SM:   Thank you, your Honour.

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