TKG v NKQ - [2015] QDC 258

DISTRICT COURT OF QUEENSLAND

CITATION:

TKG v NKQ [2015] QDC 258

PARTIES:

TKG

(Appellant)

v

NKQ

(Respondent)

FILE NO/S:

D63/15

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court of Queensland, Proserpine (8 May 2015)

DELIVERED ON:

16 October 2015

DELIVERED AT:

Mackay

HEARING DATE:

13 October 2015

JUDGE:

Searles DCJ

ORDER:

The appeal is dismissed with no order as to costs.

CATCHWORDS:

APPEAL – DOMESTIC VIOLENCE - VARIATION OF ORDER – Appellant obtained domestic violence order in her favour against Respondent in October 2013 – Appellant then applied for variation of that order in May 2015 – Variation sought would extend period of the order and would add the names of the parties’ children – Magistrate at first instance dismissed variation application – Whether learned Magistrate erred in giving proper consideration to, and the application of, relevant provisions of the Domestic Violence Family Protection Act 2012 – Whether learned Magistrate erred in misconstruing the nature of the domestic violence order – Whether learned Magistrate erred in several findings of fact – Whether learned Magistrate erred in other respects.

COUNSEL:

Stephen Byrne for the Appellant.

Phillip Moore for the Respondent.

SOLICITORS:

Adams Wilson Lawyers for the Appellant.

Pohlman Law for the Respondent.

Appeal

This is an appeal pursuant to s 164 of the Domestic and Family Violence Act 2012 (Qld) (DVFA) against the decision of the Magistrates Court at Proserpine, Queensland, delivered on 8 May 2015 and dismissing the Appellant’s Application to vary a Domestic Violence Order made in her favour on 18 October 2013 (2013 Order). This appeal was heard on Monday, 12 October 2015. The Protection Order will expire on Saturday 17 October 2015, unless extended.

Orders Sought on Appeal

The Appellant seeks orders setting aside the first instance decision of 8 May 2015 and a variation of the 2013 Order in the following respects:-

(a) that the names of her son, born 10/5/2007 (8 years) and daughter, born 26/3/2006 (9 years), be included in that order; and

(b) the Protection Order be extended for a further period of two years from 17 October 2015.

The 2013 Order was made by consent.[1] In the application for that order, the Appellant said she did not want the children named in the order.[2] As will be seen later, she now says that she adopted that course on the advice of the Police officer who prepared the application, Senior Constable Massey, and had asked S/C Massey to have the children named in the order.
[1]Appellant’s affidavit 16 April 2015, Exhibit SJF1 p 13.
[2]Ibid p 4, paragraph 7.

Nature of This Appeal

The nature of appeals under the DVFA was recently considered by McGill SC DCJ in GKE v EUT,[3] in which His Honour held that the appeal is by way of rehearing. That involves this Court affording respect to the decision of the Magistrate, bearing in mind the advantage the Magistrate had in seeing and hearing the witnesses give evidence; but reviewing the evidence, weighing the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QDC 258
Decision Date: 16 October 2015

CaseChat Overview and Summary

In the case of TKG v NKQ, the appellant, TKG, sought a variation of a domestic violence order originally obtained against the respondent, NKQ, in October 2013. The appellant sought to extend the duration of the order and include the names of their children. The magistrate dismissed the application for variation, and the appellant now appeals against that decision. The appeal raises issues regarding the proper consideration and application of the relevant statutory provisions, the interpretation of the nature of the domestic violence order, and the magistrate's findings of fact.

The court examined the grounds of appeal, which included the magistrate's handling of the evidence, particularly the text messages exchanged between the parties. The appellant argued that the magistrate erred in finding that the text messages were purely speculative, given that there was undisputed evidence that the children were in the respondent's care at the time. The court found this ground to be of no consequence as it was a simple error in referring to the incorrect date. The court also considered whether the magistrate misconstrued the nature of the domestic violence order and whether the magistrate erred in rejecting the appellant's evidence and accepting the respondent's evidence. The court concluded that the magistrate did not err in these respects, and the findings of fact were not clearly wrong.

The court addressed the appellant's argument that the terms "inappropriate" and "harassing" should be equated, asserting that the respondent's acceptance of the inappropriateness of the text messages should equate to harassment. The court rejected this proposition, stating that the words have disparate meanings and that harassment always involves inappropriate conduct, but not all inappropriate conduct constitutes harassment. The court also found that the respondent did not concede that the text messages would have caused upset and distress to the child.

Finally, the court dismissed the appeal with no order as to costs. The appeal did not succeed in demonstrating any error on the part of the magistrate that warranted a variation of the domestic violence order.

Orders

Orders of the court

The appeal is dismissed with no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Magistrate erred in finding that the text messages sent on 18 January were purely speculation as there was undisputed evidence the children were in the Respondent’s care at the time. This is a repetition of the previous ground in substance, except that it asserts that the learned Magistrate referred to the wrong date,[38] namely 15 April 2015, when referring to the text messages of 18 January 2015 already dealt with. That seems to be a simple error and easily explained and understood. It was on 15 April 2015 that the Appellant first discovered the text messages of 18 January 2015 on her daughter’s phone.[39] His Honour has innocently referred to the incorrect date, which is of no consequence in this appeal. Nothing raised by the Appellant in this ground changes my view of the 18 January 2015 text messages set out above. [38]Decision p 3 at paragraph 8. [39]Appellant affidavit paragraphs 17 and 19. In this ground, the Appellant revisits the events of 3 January 2015, the subject of appeal ground (d) above. It is clear to me that His Honour, in not rejecting the evidence of the Respondent, who disputed the assertion by the Appellant, clearly did not accept the Appellant’s evidence because both pieces of evidence cannot stand together. As to any demeanour of the Respondent as self-representative on the hearing of the variation application I was not present at the hearing, but having read the transcript, I do not agree that it is clear from the transcript that the Respondent was fiery, argumentative and aggressive. This ground is not made out. The Appellant says that the Act does not provide a distinction between the terms “inappropriate” and “harassing”, the latter being within the meaning of emotional or psychological abuse in s 11, the section the Appellant relies upon. Given that the Respondent accepted in cross-examination that the sending of the text was inappropriate,[40] it is apparent that the Appellant seeks to equate “inappropriate” with “harassment” within the definition of emotional or psychological abuse. I reject that proposition. The words have quite disparate meanings. Harass has been defined to mean: “to disturb persistently; torment, as with troubles or cares; bother continually; pester, persecute”.[41] Inappropriate means: “not appropriate; not proper or suitable”.[42] While harassment will always be inappropriate, inappropriate conduct will not always constitute harassment.[40]T1.45.15. [41] [42]Ibid. The Appellant also asserts that the Respondent, under cross-examination, fully accepted that his actions in sending the text message would have caused some upset and distress for the child.[43] I can see no such concession in the Respondent’s cross-examination. As I have said, he accepted that the sending of the text message was inappropriate and expressed regret. [43]Appellant’s outline paragraph 33. Next the Appellant points to the Respondent’s evidence that he attended counselling. Reference is made to his affidavit which, relevantly, is in these terms:-

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	TKG v NKQ [2015] QDC 258
PARTIES:	TKG (Appellant) v NKQ (Respondent)
FILE NO/S:	D63/15
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court of Queensland, Proserpine (8 May 2015)
DELIVERED ON:	16 October 2015
DELIVERED AT:	Mackay
HEARING DATE:	13 October 2015
JUDGE:	Searles DCJ
ORDER:	The appeal is dismissed with no order as to costs.
CATCHWORDS:	APPEAL – DOMESTIC VIOLENCE - VARIATION OF ORDER – Appellant obtained domestic violence order in her favour against Respondent in October 2013 – Appellant then applied for variation of that order in May 2015 – Variation sought would extend period of the order and would add the names of the parties’ children – Magistrate at first instance dismissed variation application – Whether learned Magistrate erred in giving proper consideration to, and the application of, relevant provisions of the Domestic Violence Family Protection Act 2012 – Whether learned Magistrate erred in misconstruing the nature of the domestic violence order – Whether learned Magistrate erred in several findings of fact – Whether learned Magistrate erred in other respects.
COUNSEL:	Stephen Byrne for the Appellant. Phillip Moore for the Respondent.
SOLICITORS:	Adams Wilson Lawyers for the Appellant. Pohlman Law for the Respondent.