TAF v Ahn

Case [2021] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

TAF v AHN [2021] QDC 204

PARTIES:

TAF

(Appellant)

v

AHN

(Respondent)
FILE NO:

BD3557/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

26 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2020

Written material received on 4 January 2021 and 29 January 2021

JUDGE:

Rinaudo AM DCJ

ORDER:

Appeal Dismissed

CATCHWORDS:

APPEAL – s 222 Justice Act 1886 (Qld) – appeal against domestic violence orders – where appellant alleges bias and misconduct – where magistrate had conversation with respondent’s solicitor while appellant was not present – where conversations were inappropriate – where conversations were not material to decision – where magistrate not bias – where appellant alleges magistrate did not consider all relevant material – where magistrate considered sufficient evidence – where substance of magistrate’s decision cannot be faulted – where appeal dismissed 

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld)

CASES:

GKE v EUT [2014] QDC 248

Mbuzi v Torcetti [2008] QCA 231

Johnson v Queensland Police Service [2014] QCA 195

BJH v CJH [2016] QDC 27

House v The King (1936) 55 CLR 499

Merrin v Commissioner of Police [2012] QCA 181

Teelow v Commissioner of Police [2009] QCA 84

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

DMK v CAG [2016] QDC 106

WJM v NRH [2013] QMC 12

Armour v FAC [2012] QMC 22.

SOLICITORS:

North Law for the Respondent

Introduction

  1. On 1 October 2019, a protection order wase made in the Brisbane Magistrates Court, pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’). The order named the appellant in these proceedings, TAF as the respondent, his former partner, AHN as the aggrieved and their son as a named person.

  2. TAF has appealed the making of that protection order. 

    Background facts

  3. TAF and AHN commenced a relationship in 2010 and have since separated.

  4. TAF is a citizen of the United States of America. He lives and works in Texas. He has one child with AHN (‘the child’), and two children from a previous relationship. 

  5. After separating from TAF, AHN relocated to Brisbane with the child, where she now lives and works.  As well as the child, she has a daughter from a subsequent relationship.

  6. AHN filed an application for a protection order in the Magistrates Court on 21 November 2018, with TAF listed as the respondent.  In addition to seeking protection orders for herself, she also sought protection orders for the child. 

  7. This application was based on various allegations of domestic violence made by AHN against TAF, including threats to shoot her or otherwise harm her, threats to take the child to the US and not return him and that TAF continues to call, harass, threaten, intimidate and denigrate her.   

    The making of protection orders under the DFVPA

  8. A Court may only make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the Court is satisfied, pursuant to the provisions of…

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TAF v AHN [2021] QDC 204
Case
[2021] QDC 204
Decision Date

CaseChat Overview and Summary

In TAF v Ahn, the appellant, TAF, appealed against domestic violence orders made in the Magistrates Court. The respondent, AHN, filed an application for a protection order against TAF, alleging various acts of domestic violence. The appeal was dismissed by the court. TAF alleged bias and misconduct by the magistrate, as well as an inability to cross-examine witnesses and present further evidence. The court found that TAF's claims of bias and misconduct were unfounded, and that his inability to cross-examine witnesses and present further evidence was a result of his own decision to appear self-represented at the trial. The court also found that the magistrate had considered sufficient evidence in making her decision and that the substance of her decision could not be faulted.

The court considered the three matters a Court must be satisfied of under the Domestic and Family Violence Protection Act 2012 (QFVPA) before making a protection order. Firstly, the court found that a relevant relationship existed between the aggrieved and the respondent, as admitted by both parties. Secondly, the court found that TAF had committed domestic violence against AHN, based on the evidence presented. Finally, the court found that the protection order was necessary or desirable to protect AHN from domestic violence. The court concluded that the magistrate's decision was justifiable on the basis of the entirety of the evidence before her. The appeal was dismissed.

Orders

Orders of the court

Appeal Dismissed

Background

Background to the litigation

TAF has appealed the making of that protection order. Background facts TAF and AHN commenced a relationship in 2010 and have since separated. TAF is a citizen of the United States of America. He lives and works in Texas. He has one child with AHN (‘the child’), and two children from a previous relationship. After separating from TAF, AHN relocated to Brisbane with the child, where she now lives and works. As well as the child, she has a daughter from a subsequent relationship. AHN filed an application for a protection order in the Magistrates Court on 21 November 2018, with TAF listed as the respondent. In addition to seeking protection orders for herself, she also sought protection orders for the child. This application was based on various allegations of domestic violence made by AHN against TAF, including threats to shoot her or otherwise harm her, threats to take the child to the US and not return him and that TAF continues to call, harass, threaten, intimidate and denigrate her. The making of protection orders under the DFVPA A Court may only make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the Court is satisfied, pursuant to the provisions of s 37 of the DFVPA that:“(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.” The expression “Domestic Violence” is defined in s 8 of the DFVPA 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. (2) Without limiting subsection (1), domestic violence includes the following behaviour— (a) causing personal injury to a person or threatening to do so; (b)coercing a person to engage in sexual activity or attempting to do so; (c) damaging a person’s property or threatening to do so; (d) depriving a person of the person’s liberty or threatening to do so; (e) threatening a person with the death or injury of the person, a child of the person, or someone else; (f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed; (g) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person; (h) unauthorised surveillance of a person; (i) unlawfully stalking a person. (3) A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence. (4) To remove any doubt, it is declared that, for behaviour mentioned in subsection (2) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt. (5) In this section—coerce, a person, means compel or force a person to do, or refrain from doing, something. unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including, for example, by using technology. Examples of surveillance by using technology— i.reading a person’s SMS messagesii.monitoring a person’s email account or internet browser historyiii.monitoring a person’s account with a social networking internet siteiv.using a GPS device to track a person’s movementsv.checking the recorded history in a person’s GPS deviceunlawful stalking see the Criminal Code, section 359B.”

Evidence

Evidence Before The Court

I have had the opportunity to read the affidavit of AB which TAF wanted to place in evidence. That affidavit was largely inadmissible as it was mostly irrelevant, self-serving, denigrating and was largely based on hearsay. It added nothing that may have impacted on her Honour’s decision.Conclusion on lack of cross-examination and further evidence I reject this ground of appeal also. TAF’s inability to cross-examine witnesses was a result of his own decision to appear self-represented at the trial. During the trial, TAF was given the opportunity to add to his evidence, which he declined. The magistrate’s decision not to consider the affidavit of AB was completely justified and, in any event, I am satisfied the affidavit would not have impacted on her honour’s decision. Ground 3 - Lack of representation In his Notice of Appeal, TAF states: “More importantly, I was refused the right to an attorney by the Judge, as she denied to other party’s attorney’s request for withdrawal, and order her to represent her client at no cost, which placed me at a significant disadvantage.” The respondent submits that TAF has raised the lack of legal representation as a matter of convenience as his “modus operandi” was to be self-represented at all times. This is not an argument for allowing the appeal.[16][16]Respondent’s Outline of Appeal Submissions, paragraph s 33.-35. TAF’s allegation that he was refused legal representation is simply incorrect and not sustainable on the evidence. As I have said this was a matter which was entirely in TAF’s own hands having been offered the opportunity to see the duty lawyer and having not taken any steps to engage lawyers during the long period leading up to the hearing. As such, I reject this ground of appeal. Ground 4 - Failure to take into account relevant considerations TAF seems to make allegations that the magistrate did not rely on the entirety of the evidence, but rather, only certain parts of the material before her. TAF states in his Notice of Appeal that: “[The Magistrate] makes reference to comments made on the affidavit by the applicant which are clearly contradicted by the … the court appointed family consultant. She read the Affidavits only in part and based her decision solely on parts of the affidavit.” It is therefore necessary to consider whether the magistrate’s substantive decision was justifiable on the basis of the entirety of the evidence before her. This involves a consideration of each of the three matters a Court must be satisfied of under the DFVPA, before making a protection order. S 37(1)(a) - relevant relationship The first requirement is that a relevant relationship exists between the aggrieved and the respondent. This was admitted by both parties in their affidavit material. The relationship was an intimate personal relationship, described by AHN as a de facto relationship over two periods from late 2010 to approximately August 2011 and between August 2012 and September 2013.[17] [17]See Affidavit of AHN sworn 14 March 2019, paragraph 5.

Decision

Reasons for decision

As to TAF’s allegations of general bias, dishonesty and disreputable conduct, I can see nothing from the material before me that suggests any of those claims have merit. In regard to TAF’s allegation that her honour made decisions based on her own bias, without any evidence to support her decision, there was significant affidavit evidence considered by her honour. I will come to this later, when I consider the merits of her honour’s substantive decision. Suffice to say at this stage, contrary to TAF’s allegations, her honour was not making her decision without any evidence to base it on. This ground of appeal is simply not made out on the evidence.Conclusion on ground 1 In the circumstances I reject the grounds of appeal advanced by TAF based on the misconduct and bias of the magistrate. I consider the learned magistrate to have acted appropriately throughout.Ground 2 - Lack of cross examination and further evidence TAF takes issue with the fact that he was not allowed to cross-examine witnesses and argues that the magistrate refused to allow him to bring further evidence. He articulates this in his Concise Statement as follows: “(1)The Judge did not allow for any form of cross-examination or evidence to be introduced by the defendant when said evidence was available.” Cross-examination Pursuant to s 150 of the DFVPA, AHN and the child are “protected witnesses”. Section 151 of the DFVPA provides that: “151 Restrictions on cross-examination in person(1) This section applies if – (a) a protected witness gives evidence in a proceeding under this Act; and (b)a respondent in the proceeding wishes to cross-examine the protected witness; and (c)the respondent is not represented by a lawyer. (2) The court, on its own initiative or on the application of a party to the proceeding, may order that the respondent may not cross-examine the protected witness in person if the court is satisfied that the cross-examination is likely to cause the protected witness to—(a) suffer emotional harm or distress; or(b) be so intimidated as to be disadvantaged as a witness.” In these proceedings, TAF was not represented. On 1 October 2019 the learned magistrate asked TAF to speak to AHN’s solicitor outside the Court to see whether a consent order could be agreed. The solicitor told her honour that TAF would not agree and that she had told TAF to speak to the duty lawyer. There is no indication that he did, but he was aware that he could. As there was no intervention by a duty lawyer it is fair to assume, he did not. Having had the opportunity to consult the duty lawyer and ample time to seek independent legal advice before the hearing date, the fact that he appeared self-represented and his consequent inability to cross examine AHN because of the DFVPA protections was a matter entirely in his own hands.Further evidence not allowed TAF alleges that there was further evidence available that the Magistrate did not allow him to introduce. AHN submitted that the learned magistrate complied with s 145 of the DFVPA. She argues that, after filing her application for a protection order on 21 November 2018, TAF had between 14 March 2019 and the date of the hearing, to respond to the matters raised in her affidavit. Further, it was highlighted that TAF filed a 404-page affidavit on 22 April 2019 nearly 6 months prior to the hearing.[14] [14]Respondent’s Outline of Appeal Submissions, paragraphs 14.-17.

Ratio Decidendi

Legal Principle Established

TAF’s allegation that he was refused legal representation is simply incorrect and not sustainable on the evidence. As I have said this was a matter which was entirely in TAF’s own hands having been offered the opportunity to see the duty lawyer and having not taken any steps to engage lawyers during the long period leading up to the hearing. As such, I reject this ground of appeal. Ground 4 - Failure to take into account relevant considerations TAF seems to make allegations that the magistrate did not rely on the entirety of the evidence, but rather, only certain parts of the material before her. TAF states in his Notice of Appeal that: “[The Magistrate] makes reference to comments made on the affidavit by the applicant which are clearly contradicted by the … the court appointed family consultant. She read the Affidavits only in part and based her decision solely on parts of the affidavit.” It is therefore necessary to consider whether the magistrate’s substantive decision was justifiable on the basis of the entirety of the evidence before her. This involves a consideration of each of the three matters a Court must be satisfied of under the DFVPA, before making a protection order. S 37(1)(a) - relevant relationship The first requirement is that a relevant relationship exists between the aggrieved and the respondent. This was admitted by both parties in their affidavit material. The relationship was an intimate personal relationship, described by AHN as a de facto relationship over two periods from late 2010 to approximately August 2011 and between August 2012 and September 2013.[17] [17]See Affidavit of AHN sworn 14 March 2019, paragraph 5. This was therefore completely uncontentious and the magistrate made the finding based on the evidence before her accordingly.S 37(1)(b) - domestic violence The second requirement that the Court must be satisfied of before an order can be made is that the respondent has committed domestic violence against the aggrieved. The learned magistrate found that TAF had committed domestic violence against AHN. From the transcript of the learned magistrate’s reasons, it appears that there were a number of events which lead the magistrate to be satisfied that domestic violence had been committed against AHN. These included;(a)that he was demeaning of her in his description of her. He states that “she is a liar and a thief”, that “she cannot be trusted” and “from the first day we met until now she’s never held a job for me(sic) than …” and “she seems to attach to men for her subsistence”. Her honour described this as “not useful at all, and says more about his demeanour and attitude than anything else.”;[18](b)the magistrate also accepted on the material that between May 2016 and May 2018 TAF withheld the child in the USA and that AHN did not have contact with the child except when TAF allowed it and that TAF hid the child’s passport. Orders were made by consent on 24 May 2018 that the child would return to Australia to live with AHN and that TAF would have contact at various times;[19](c)the magistrate noted from para 69 of AHN’s affidavit that TAF “showed up unannounced at the child’s school, asked to be allowed to see him, which was apparently in breach of the America orders”;[20] (d)the magistrate accepted the evidence of AHN in paragraph 8 of her affidavit that an incident had occurred when “the father was screaming repeatedly at [the child] at the airport, finally [the child] came out and [TAF] hit him hard on the arm, back and shoulder multiple times with an open hand, pinched [the child] hard, twisted his hand”. The magistrate noted that when TAF gets frustrated, he acts out in what must be described as a violent way.[21][18]Transcript of Magistrates Court proceedings on 1 October 2019, pg 4. [19]Transcript of Magistrates Court proceedings on 1 October 2019, pg 4-5.[20]Transcript of Magistrates Court proceedings on 1 October 2019, pg 5.[21]Transcript of Magistrates Court proceedings on 1 October 2019, pg 5.