Xaz v Obq

Case [2023] QDC 98

DISTRICT COURT OF QUEENSLAND

CITATION:

XAZ v OBQ [2023] QDC 98

PARTIES:

XAZ

(appellant)

v

OBQ

(respondent)

FILE NO:

BD No 2564 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

13 June 2023

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

18 July 2022

JUDGE:

Sheridan DCJ

ORDER:

1.   Appeal dismissed.

2.   The appellant pay the respondent’s cost of the appeal to be assessed, if not agreed.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) – where pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) the Magistrate made a domestic violence protection order against the appellant for the benefit of the respondent – where the appellant appeals against the decision to grant a protection order – whether Magistrate was in error
LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), s 4, s 8, s 11, s 37, s 142, s 157, s 164, s 165, s 168, s 169
Uniform Civil Procedure Rules 1999 (Qld), r 681, r 687, r 765, r 766, r 783, r 785

CASES:

BAK v Gallagher & Anor (No 2) [2018] QDC 132
Fox v Percy (2003) 214 CLR 118
GKE v EUT [2014] QDC 248
Ladd v Marshall [1954] 3 All ER 745
Mbuzi v Torcetti [2008] QCA 231
McDonald v Queensland Police Service [2018] 2 Qd R 612

Oshlack v Richmond River Council (1998) 193 CLR 178

Pavlovic v Commissioner of Police [2006] QCA 134
Rowe v Kemper [2009] 1 Qd R 247
White v Commissioner of Police [2014] QCA 121
COUNSEL:

Z Brereton for the appellant

J K Kennedy for the respondent
SOLICITORS:

The Law Group for the appellant

Russo Lawyers for the respondent

Introduction

  1. The appellant, XAZ, appeals against a decision of a Magistrate made on 23 August 2021 pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (the DV Act). By the decision, the Magistrate made a domestic violence protection order against XAZ for the benefit of the respondent, OBQ.  The basis of the order centred on the social media activity of XAZ between December 2019 and February 2021.

  2. On the appeal, both XAZ and OBQ had legal representation.  XAZ was represented by counsel.   Initially OBQ was represented by a solicitor with Russo Lawyers but when court resumed in the afternoon, OBQ was represented by counsel.  In the proceedings below, OBQ was self-represented and XAZ was represented by a solicitor with Vidi Legal.

    Nature of appeal

  3. An appeal against a decision made under the DV Act is brought pursuant to s 164 of the DV Act. Section 164 permits an appeal to be brought by a person aggrieved by any of the following decisions of a court:

    “(a)   a decision to make a domestic violence order;

    (b)   a decision to vary, or refuse to vary, a domestic violence order;

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Details
AGLC
Xaz v Obq [2023] QDC 98
Case
[2023] QDC 98
Decision Date

CaseChat Overview and Summary

In the case of Xaz v Obq, the appellant, XAZ, appealed against a domestic violence protection order made against her by a Magistrate pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld). The respondent, OBQ, filed an affidavit alleging that XAZ had engaged in abusive and malicious behaviour towards him following the end of their relationship, including creating fake Facebook profiles and pages to harass him. The Magistrate found that XAZ was responsible for the harassment and made a domestic violence protection order against her. The appellant challenged the decision, arguing that the Magistrate erred in finding that she was responsible for the harassment.

The primary issue before the court was whether the Magistrate was in error in finding that XAZ was responsible for the harassment. The court considered whether the Magistrate's findings were open to her on the evidence before her. The court noted that the Magistrate had considered the evidence and made findings on the balance of probabilities that XAZ was responsible for the harassment. The court found that the Magistrate's decision was open to her and that she was entitled to make the findings she did. The court also noted that the appellant had not provided any evidence to counter the evidence put forward by OBQ.

The court dismissed the appeal and ordered that the appellant pay the respondent's costs of the appeal. The court found that the Magistrate's decision was reasonable and that the appellant had not demonstrated any error on the part of the Magistrate. The court concluded that the domestic violence protection order should remain in place to protect OBQ from further acts of domestic violence.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the respondent’s cost of the appeal to be assessed, if not agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It was not otherwise suggested, either in written submissions or at the hearing, that XAZ wished for the whole of the evidence to be heard afresh.Evidence before the Magistrate In support of the original application for the making of a domestic violence order, OBQ filed an affidavit of himself sworn 31 May 2021 and an affidavit of LSH sworn 28 May 2021. XAZ filed no material in response to the original application. On the morning of the original hearing, like initially in this appeal, XAZ sought for the proceedings to be adjourned on medical grounds. No prior notice had been given to OBQ of the intended application. In discussions before the Magistrate, it became apparent that the attitude of XAZ, or those representing XAZ, was that the material of OBQ was inadequate to establish that it was XAZ who had been harassing OBQ. The application for an adjournment was refused and the Magistrate indicated an intention to proceed on the basis that XAZ could cross-examine OBQ and LSH, with the Magistrate indicating that she was happy to receive written submissions as to the insufficiency of the material to form a basis for the making of the order. The matter was stood down until 2:30 pm to enable XAZ’s lawyer to obtain instructions as to how they wished to proceed. The matter proceeded with the solicitor for XAZ cross-examining OBQ and LSH, and XAZ being called to give oral evidence and being cross-examined by the Magistrate.[4] [4]OBQ was self-represented and the Magistrate said that he would not be permitted to speak to XAZ or ask her any questions. In support of the application for the making of a domestic violence order, OBQ relied upon online posts alleged to have been created by XAZ, or by someone at XAZ’s direction, under the Facebook profiles with the names, [redacted] and [redacted], and the Facebook page entitled, [redacted]. OBQ gave evidence that he and XAZ commenced a relationship in January 2016. He stated that they lived together from June 2016 until he moved out on 27 April 2018. OBQ stated that he had become unhappy in the relationship and on 26 April 2018 told XAZ that he wanted to move out. OBQ’s evidence was that his intention to end the relationship was not well received by XAZ and that XAZ’s parents became involved. OBQ said that once he had moved out XAZ commenced sending him numerous text messages which included photos and poetry. OBQ’s evidence was that in mid-June 2018 he changed his phone number and deactivated his Facebook account in an attempt to stop the messaging. OBQ said he remained off social media for nine months. In late December 2018, OBQ said he was contacted by his brother who lived in New Zealand who told him that XAZ had contacted him, and also his children, on Facebook enquiring about OBQ. In April 2019, OBQ said that he returned to social media and that he received a large volume of messages from XAZ which had been sent over the last nine months. He realised at that time he had not blocked XAZ from his Facebook Messenger account.

Decision

Reasons for decision

XAZ denied she asked someone else to publish the material about him.The Magistrate’s decision In giving her decision, the Magistrate briefly summarised the evidence of OBQ and XAZ. The Magistrate referred to the unwanted continuing contact by XAZ of OBQ. In particular, the Magistrate referred to the email received by OBQ from XAZ in July 2020 declaring her “undying love” and informing OBQ her father had died. The Magistrate referred to a malicious page, [redacted], which was created on Facebook in October 2020 using a photo of OBQ on a cartoon body. The Magistrate described the hate page as “abusive and malicious”. She said:“It mocked and denigrated the artistic endeavours of [OBQ]. It mocked and insulted and degraded [OBQ]. A person calling themselves [redacted] on Facebook sent messages to close friends of [OBQ] inviting them to like the hate page. This constituted abusive and stalking behaviour.” The Magistrate noted that in February 2021 malicious comments were made on two photos of OBQ by [redacted]. The Magistrate referred to OBQ having filed his application for a protection order and that after XAZ was served with the application the profiles of TSK and [redacted] and the hate page [redacted] were deleted from Facebook. The Magistrate referred to the denials by XAZ of any involvement with the Facebook profiles, TSK or [redacted], or any involvement with [redacted]. She referred to XAZ’s denials of any involvement with the malicious comments made by [redacted] on the photos of OBQ. The Magistrate observed, “[XAZ] clearly has unresolved issues and emotions about [OBQ] and the break-up of their relationship.” The Magistrate commented that her first piece of evidence to the court was “to condemn [OBQ] and describe him as abusive and a narcissist.” The Magistrate noted that it was submitted on behalf of XAZ that there was no evidence at all to connect XAZ with the stalking on Facebook and the posts which it was said might have been made by any person. The Magistrate confirmed that she was satisfied the evidence established a relevant relationship between the parties and stated that she did not accept the argument of XAZ. She stated that she was satisfied on the balance of probabilities that XAZ either posted the material herself or asked someone else to post it. The Magistrate referred to the nature of the comments, the timing of the comments, the clear intention to find information about OBQ, and the abuse of OBQ when viewed in light of XAZ’s prior conduct. The Magistrate concluded that XAZ created these profiles herself or asked someone else to do so. The Magistrate stated that she was satisfied that each of the matters referred to constituted acts of domestic violence. The Magistrate found that she was satisfied it was necessary for the court to make a protection order to protect OBQ from further acts of domestic violence and that a permanent order in the same terms as the temporary order should be in place for a period of five years.Grounds of appeal

Ratio Decidendi

Legal Principle Established

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