TJB v CRC

Case [2022] QDC 67

DISTRICT COURT OF QUEENSLAND

CITATION:

TJB v CRC [2022] QDC 67

PARTIES:

TJB

(Appellant)

v
CRC

(Respondent)

FILE NO/S:

D27/21

DIVISION:

Appeal

PROCEEDING:

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

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

24 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2022

JUDGES:

Smith DCJA

ORDER:

1.   Appeal dismissed.

2.   The order of the Magistrates Court in this matter is confirmed.

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

CATCHWORDS:

FAMILY LAW- DOMESTIC VIOLENCE AND FAMILY PROTECTION- Whether Magistrate erred in making a Protection Order- Whether acts of domestic violence occurred- whether necessary and desirable to make the order- where appellant threatened to kill himself with a loaded firearm in the presence of the respondent- where he installed a surveillance camera at her property and continued to monitor it after a temporary protection order- where the appellant drove near the respondent’s parents’ house after the temporary protection order- where concerning texts were sent in February 2021 to the respondent      

Domestic and Family Violence Protection Act 2012 (Q) ss 3, 4, 8, 11, 37, 168, 169

Allesch v Maunz [2000] HCA 40; 203 CLR 172, applied
GKE v EUT [2014] QDC 248, applied
MDE v MLG [2015] QDC 151, applied
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679, 331 ALR 550, applied

COUNSEL:

Mr D Jones for the Appellant
Mr C Eberhardt QC for the Respondent

SOLICITORS:

Wilsons The Family Lawyers for the appellant
Best Wilson Buckley for the respondent

Introduction

  1. The appellant appeals the decision of the Toowoomba Magistrates Court made on 25 August 2021 to make a domestic violence order (“DVO”) against him in favour of the respondent.

  2. Section 168(2) of the Domestic and Family Violence Protection Act 2012 (Q) (“DVA”) allows this court to hear the matter de novo, but this is not sought by the appellant.

  3. The appellant seeks a rehearing alleging the Magistrate made a number of errors in this case. However, it is further submitted the DVO should be removed or alternatively the matter should be remitted for rehearing.

  4. In a rehearing the appeal court is to conduct a real review of the evidence and of the Judge’s reasons for judgment to determine whether the Judge erred in fact or law. If the Court of Appeal concludes the Judge erred in fact it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But an appeal court should not interfere with findings of fact unless they are clearly demonstrated to be wrong.[1]     

  5. An appellate court on a rehearing can substitute its own decision based on the facts and the law as they then stand.[2] Indeed section 169 of the DVA contemplates this.

    Evidence before the Magistrate

    Respondent’s case

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TJB v CRC [2022] QDC 67
Case
[2022] QDC 67
Decision Date

CaseChat Overview and Summary

In the case of TJB v CRC, the parties were former partners who had separated. The respondent applied for a domestic violence protection order against the appellant, which was subsequently made by the Ipswich Magistrates Court. The appellant appealed against the making of the protection order, arguing that the Magistrate had erred in his decision. The court was required to decide whether the Magistrate had erred in making the Protection Order and whether the acts of domestic violence alleged by the respondent had occurred. The court also had to consider whether it was necessary and desirable to make the order. The Magistrate found that the appellant had committed domestic violence and had breached the temporary protection order by continuing to use a surveillance camera at the respondent’s property. The court rejected the appellant’s claims that he had installed the camera for security purposes and that he had been advised to do so by his solicitor. The court found that the appellant had no insight or remorse and had not undertaken any rehabilitation or counselling. The court concluded that it was desirable to make a protection order for five years. The appeal was dismissed, and the order of the Magistrates Court was confirmed. The court will hear the parties on the question of costs.

Orders

Orders of the court

1. Appeal dismissed.

2. The order of the Magistrates Court in this matter is confirmed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

An appellate court on a rehearing can substitute its own decision based on the facts and the law as they then stand.[2] Indeed section 169 of the DVA contemplates this.Evidence before the MagistrateRespondent’s case[2]Allesch v Maunz [2000] HCA 40 ; 203 CLR 172 at [23].CRC CRC, the respondent swore an affidavit in which she said she was 31 years of age. Her former partner was TJB, the appellant. They commenced living together around February 2017 and resided at his property in Toowoomba. They separated finally on 1 January 2021. On 12 February 2021, she filed an application for a protection order in the Ipswich Magistrates Court. A temporary protection order was made on 15 February 2021. In this order, the appellant was prohibited from or remaining or attempting to enter or approach within 100 metres of where her parents lived or where she lived. He was also prohibited from attempting to locate or asking someone to locate her or her parents. The appellant and she owned a property located at Torrens Creek. This property was purchased by her and her former husband PR in December 2014. She retained the Torres Creek property as part of the property settlement. TJB became an owner of Torrens Creek on or about 21 April 2020. The Torrens Creek property is a farming property predominantly used for running cattle. She was intimately involved in running the Torrens Creek property and frequently visited to check on the livestock, but this became increasingly difficult as TJB demanded to know exactly and precisely what business she was carrying out when she was there. He would also demand that he attend the property with her on all occasions. He frequently spoke negatively about the Torrens Creek property. Torrens Creek was her principal place of residence. Her work though was based in Mackay which is about seven hours drive from Torrens Creek. She always travelled up to the Torrens Creek property for weekends, holidays and when she was not working. On 2 January 2021, TJB and she were having a discussion about their separation and the removal of his property from the Torrens Creek property. He became increasingly aggressive and irate and his conduct spiralled out of control. He picked up her Remington 308 gun and said he was going to shoot himself. He said that she would get the blame and go to jail and never live it down. The respondent called the police and whilst on the phone he waved the gun around and then threw it out onto the verandah. He then punched one of several screen windows causing it to come away from the frame. He also threw her belongings around her bedroom, emptied the draws, threw her clothes and belongings on the floor and pushed the furniture around onto its side. The respondent was scared that she would be hurt or TJB would cause significant damage. Police finally arrived and suggested a protection order be imposed. TJB was glaring at her, she felt intimidated by this and declined the police offer. Police spoke to TJB and recommended he leave and he said he would leave the next morning. Once the police left, he started berating her about what she told the police.

Decision

Reasons for decision

On 1 April 2021 the respondent’s lawyers wrote to Mr Wilson wanting to know how it was the appellant knew of the respondent’s whereabouts. A further similar letter was sent on 11 May 2021. Mr Wilson did not respond to these questions. Decision The Magistrate adjourned the matter and received written submissions. He provided his decision on 25 August 2021. In his decision he referred to the history of the application and he took into account the material filed, the exhibits and the oral evidence. His Honour then referred to the relevant legislative provisions and relevant case authority. He referred to the history of the relationship and then referred to the events on 2 January 2021. He noted the allegations of ongoing domestic violence in the past.[111] He then summarised what occurred on 2 January 2021.[112] The appellant’s counsel relied on subpoenaed evidence from the police concerning the incident on 2 January 2021. The respondent’s counsel submitted the subpoenaed material had not been placed into evidence. The Magistrate stated that as they had not been expressly been put into the record, he had not read the records although the appellant’s affidavit incorporated some of them, so that was in evidence. He accepted the respondent’s submissions that little weight should be placed on the police records.[113] The Magistrate accepted that on 2 January 2021 the appellant upended the bed, messed up a room and other furniture, punched a screen damaging it and verbally abused the respondent. On the appellant’s evidence alone, he found he committed domestic violence that day.[114] He then examined the two different versions as to the journey after 2 January 2021 but did not appear to place much weight on what occurred then.[111]Reasons p 8.35.[112]Reasons p 9.25.[113]Reasons p 10.17.[114]Reasons p 10.27. As to the camera, it was installed on 3 February 2021 and he referred to the evidence concerning the camera. He then referred to the incidents of 16 and 17 May 2021 and summarised the evidence concerning that. The Magistrate accepted the respondent’s submissions that the parents’ and brother’s evidence was reasonably consistent. The Magistrate found that even though the appellant installed the camera before the DV proceedings, this did not excuse him from continuing to do so after the temporary order had been made of which he became aware on 26 February 2021. He rejected the appellant’s claim that installed the surveillance camera on the advice of his solicitor because this was contrary to Mr Wilsons’s evidence.[115] He found this was a breach of the temporary protection order. He found that domestic violence had been committed as a result of the incident of 2 January 2021 and the continuous use of the surveillance camera.[116][115]Reasons p 13.42.[116]Reasons p 14.12. As to the necessity or desirability to make the protection order, he assessed the future risk of domestic violence in the absence of such an order. He had regard to the incidents of past violence alleged in the respondent’s affidavit and the parents’ affidavit. He found the appellant had no insight and no remorse. There was no evidence of rehabilitation or counselling. The Magistrate took into account he continued to use the surveillance camera after being aware of the temporary protection order. He rejected the explanation the camera was used for the sole purpose of security. He found it desirable to make an order for five years.[117][117]Reasons p 15.20.Appellant’s submissions

Ratio Decidendi

Legal Principle Established

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