DGE v REU (No 2) [2025] QDC 180

DISTRICT COURT OF QUEENSLAND CITATION: DGE v REU (No 2) [2025] QDC 180 PARTIES: DGE (appellant) v REU (respondent) FILE NO/S: BD2631/24 DIVISION: Appellate DELIVERED ON: 21 November 2025 DELIVERED AT: Brisbane HEARING DATE: 24 April 2025 JUDGE: Allen KC, DCJ ORDERS: 1. The appeal is allowed. 2. The decision to dismiss the appellant’s application for a protection order is set aside. 3. The matter is remitted to the Magistrates Court at Beenleigh for hearing and determination of the appellant’s application for a protection order. CATCHWORDS: APPEAL AND NEW TRIAL – appeal against decision of Magistrate to dismiss application for a protection order – whether presiding Magistrate erred in failing to afford the self-represented applicant procedural fairness Domestic and Family Violence Protection Act 2012 (Qld), s 164 DGE v REU [2023] QDC 35 COUNSEL: The appellant was self-represented T Wise for the respondent SOLICITORS: The appellant was self-represented Country to Coast Lawyers for the respondent -- 1 of 8 -- 2 [1] This is an appeal, pursuant to section 164 of the Domestic and Family Violence Protection Act 2012 (Qld), against the decision of an Acting Magistrate in the Magistrates Court at Beenleigh on 29 August 2024 to dismiss an application by the appellant for a protection order. [2] So that the issues in the appeal and its outcome can be understood, it is necessary to set out something of the background of the protracted litigation in the Magistrates Court and this court between the parties pursuant to the Domestic and Family Violence Protection Act 2012 (Qld). That can be conveniently done by quoting from the reasons of Porter KC DCJ in DGE v REU [2023] QDC 35: Introduction [1] On 29 July 2022, in the Magistrates Court at Beenleigh, the learned Magistrate made a protection order directed to DGE, identifying the aggrieved as his wife, REU, and naming the two children of their marriage as named persons. [3] …The learned Magistrate also dismissed DGE’s application for a protection order directed to REU. [4] DGE appealed the whole of that decision. He sought to have the domestic violence order in favour of REU and the named children set aside. He also sought to have the decision dismissing his application set aside. [3] On 10 February 2023, Porter KC DCJ allowed the appellant’s appeal in respect of the decision to grant the respondent a protection order against the appellant. The reasons for his Honour include the following discussion of evidence before the Magistrate regarding the respondent’s contention of domestic violence constituted by the appellant using his power to impose (or cause the respondent to believe he had imposed) a ban of her travel out of Iran while she was visiting that country (footnotes omitted): [16] The alleged travel ban (or threat of such a ban) is said to have arisen out of a text message from DGE to a Mr Kashani (his role is explained below) that was sent on 17 December 2020. At that time, REU had recently taken the children to Iran for a family visit motivated by illness in REU’s household. The message has to be put in context. [17] When REU arrived in Iran, DGE retained a lawyer to initiate divorce proceedings in that country. He gave a power of attorney to the lawyer to initiate any type of claim, to prosecute the claim, to ban his wife from leaving Iran and to pursue steps to divorce her, amongst other matters. That power of attorney gave DGE’s solicitor power to act on DGE’s behalf to do those things. It is not evidence that he was instructed by DGE to actually do any of those things. It is not evidence that any of those things could be done as a matter of law. However, it is evidence that it was within the contemplation of the power of attorney, and therefore, DGE that a travel ban on REU was a possibility. [18] Not long after that, it seems, Mr Kashani became involved as a go-between to try and mediate between DGE and REU. The evidence is that Mr Kashani become involved in the context of ongoing marital strife. [19] For the purposes of the trial in the Magistrates Court, REU contracted a qualified translator to translate part of a text message from DGE to Mr -- 2 of 8 -- 3 Kashani. It was not in dispute at the trial or in the hearing that that message was intended to be communicated to REU because Mr Kashani, as I said, was acting as some sort of mediator or go-between. The words that were given to the translator for translation were translated as: Barred from leaving country is for avoiding hasty and insane actions Dear Amir, when the divorce is performed, barred from leaving country will be cancelled automatically and she will return on date of her ticket if she does not complicate the divorce file. (sic) [20] The text was sent on 17 December 2020. The date of REU’s return ticket was April 2021 at that time. [21] Before his Honour there was evidence that REU retained solicitors to deal with DGE’s apparent effecting of a travel ban until an Iranian divorce was agreed. Solicitors for REU wrote a letter to DGE on 29 January 2021. That letter asserts that DGE had: (a) banned REU from travelling from Iran; (b) requested full custody of the children in Iran; (c) threatened to prevent REU and the children from travelling to Australia if she did not agree to a divorce; and (d) required REU to give up her right to mahr, which as I understand is a form of dowry right in Iran. [22] It was then asserted by REU’s solicitors (arguably correctly) that to threaten a travel ban in this way was domestic violence under the Act. The letter states: Please be advised that you have 14 days to lift the travelling ban on our client and the children and send a letter by your lawyer that our client is free to come back to Australia. [23] DGE responded to that letter on 30 January, though the response did not appear to be in the evidence. Whatever the response said, REU’s solicitor’s replied to the 30 January letter arguing DGE had not really grappled with the travel ban issue. As a result DGE sent another response in the form of a letter of 8 February in which he said, inter alia: I am not sure if she is banned from travelling or not. She might be banned because of having active case in Iran’s court. My lawyer heard from department of borders that as we migrate together to Australia, I have lost my right to not giving her consent for travelling. On the other hand, if the divorce takes place, there will be nothing that can stop her from travelling overseas and if she is agreeable to that divorce could have happen in a few days. I have said before, however, I will help her to come to Australia on her scheduled time if she needs my consent regardless of the divorce finalised or not. She needs, anyway, to provide some sort of commitment that she will not take the children to a third country instead of coming to Australia. [underlining added] -- 3 of 8 -- 4 [24] There is no evidence of any further solicitor’s letter after the 8 February letter. There is no evidence that there ever was a travel ban actually in existence. There is no evidence that, as a matter of Iranian law, such a ban could exist. There is some unanswered evidence in DGE’s email that indicates a travel ban would not have arisen, although one would not form a concluded view on Iranian law based on that hearsay statement. [25] More importantly, there is no suggestion in the material that any such ban or any threat of such ban remained after 8 February, nor that any such ban affected anything that happened thereafter. His Honour, considering that evidence, correctly concluded that there was no evidence that there was a ban, but held that at the very least: [DGE] was aware of the state of mind of the aggrieved as to the existence of a ban and he manipulated that belief and he sought to compel her to comply with his divorce application. [26] Until DGE, with some admirable persistence, pointed out the significance of the translation he had tendered in the appeal, I was inclined to agree with his Honour that the apparent travel ban threat in the 17 December 2020 communication could amount to domestic violence. My main concern was how that matter could have informed the conclusion on the legal standard in s 37(1)(c) of the Act that a protection order was necessary or desirable. Once the effect of DGE’s threat was pointed out he immediately abandoned the threat and it, apparently, had no further consequence. It seemed to me that given what happened after that, where no further consequence seems to have flowed despite REU remaining in Iran for another four or five months, that it was difficult to see there was any risk of any further acts of domestic violence of that kind. [27] However, the character of the appeal on that point changed when I read a translation of the whole exchange between DGE and Mr Kashani from which extracts in paragraph [19] above were taken… That full translation puts the two sentences quoted above into quite a different context. Apart from anything else, the balance of the whole communication: (a) Asserts that, in respect of the dowry, Iran’s law is totally in REU’s favour; (b) Make various other complaints; and (c) The context of the text read as a whole removes a bit of the sting of the two parts that are quoted by REU’s translation which are relied upon as showing domestic violence. [28] However, those aspects pale into insignificance when one notes that the last sentence of the third paragraph of the message was omitted in the version provided to his Honour. That sentence in the translation in exhibit 1 states: When they wish to come, they can and if the divorce application is not finalised, I will lift the ban so they can come. [29] Interestingly, DGE had not forgotten he had said that already, because in his 8 February letter, he said: As I said before, I will help her to come to Australia if she needs my consent regardless of the divorce finalised or not. -- 4 of 8 -- 5 [30] In light of this evidence, there was never a basis rationally to conclude that DGE threatened to make use of any law in Iran to stop REU leaving the country. [31] It is a matter of extreme concern to this Court how it came to be that that part of the message was not translated and raised with the trial Judge below. DGE tried to raise this in cross-examination with REU at trial. He tried to raise it in submissions at trial. The limitations of his abilities in English left his arguments on that point obscure to the Court. I do not know if I can reach the same conclusion about REU’s understanding during cross- examination. Looking at the transcript, it might be that REU understood what DGE was trying to say but choose to avoid the question. [32] What I do know is that someone read the whole message in its original Farsi. That person chose to translate only the two harmful parts and not the exculpatory sentence. [33] Intentionally or not (if it was intentional, there may be an offence committed here) his Honour was misled about the content of the message and the whole context of the so-called travel ban threat. In the context of the text message as a whole, there is no reasonable suggestion of a threat to prevent REU from leaving Iran until she had agreed to a divorce. Therefore, his Honour erred in concluding that that there was an act of domestic violence arising out of the 17 December message. [34] One further point has emerged during the preparation of these reasons which was not noted in my oral reasons. During the hearing of the appeal, REU sought to explain why only part of the 17 December message was before his Honour. She, through her counsel, explained that the translation service was expensive, and to avoid the cost she had extracted only those parts that she considered relevant. She gave similar evidence when cross examined by DGE about selective translation at the trial. [35] In preparing these reasons for publication it was noticed that the 17 December message was not the only document that REU had paid to have translated. In fact, exhibited to the affidavit of REU, which was before his Honour, there is about two and a half full pages of translated documents. REU had these documents translated by the same person that translated the 17 December message. These documents contain large sections which are of, at best, marginal relevance to the issues between the parties. [36] Considering this evidence, it seems doubtful that the reason given by REU, through her counsel, for the misleading way in which the 17 December message was selectively translated and tendered to the Court below was accurate. [4] His Honour then went on to consider the appellant’s cross-appeal against the Magistrate’s decision to dismiss his cross-application for a protection order against the respondent. It is necessary to set out his Honour’s reasons in this regard in some detail (footnotes omitted): Cross-Application [63] I now turn to DGE’s cross-application. It might have been thought that once success on his appeal of the protection order was assured, DGE may not have wished to continue to pursue his cross-application. However, he said that he did. I asked him what acts of domestic violence he alleged in -- 5 of 8 -- 6 respect of REU. It was only at that point which the significance of exhibit 1 emerged. [64] His submission, and it was not one lacking credibility, was that to misuse Court proceedings to intimidate or manipulate can comprise domestic violence. So much was the basis of his Honour’s finding, in effect, in respect of the travel ban. His submission was that REU put only part of the 17 December 2020 text message before the Court and omitted his statement that if the family wished to return to Australia, they could, even if the application for divorce was not finalised. He said that the omission of that part of the message, I should infer, was deliberate and was done so as to use the proceedings to get an order against him. [65] The difficulty I have with accepting DGE’s argument is that depending on how the relevant sections came to be omitted, the omission may or may not be a very serious act. DGE did try to raise this issue before his Honour and as I explained, his own limits in English made it difficult for him to properly articulate the point and I do not think his Honour ever really understood it. However, it is a matter which might amount to domestic violence. Depending on the circumstances, it might be a serious consideration. For that reason alone, it seems to me, his cross-application has not been considered according to law. [66] Mr Jones made the point that DGE did not effectively raise the point before his Honour, and I think he is right. But importantly, DGE did try to raise it. I think that is clear once one understands the point he was trying to make. It would not be just to a litigant in person trying to do their best to somehow hold him to his inability to raise a point of such importance. For that reason alone, I do not think the dismissal of his cross-application can stand. It is quite clear from his Honour’s reasons that he did not understand that point at all, although as I say, I do not blame his Honour for that. [67] DGE indicated in open Court that one of the reasons he might seek to pursue his cross-application was to assist him in legal proceedings in Iran that impact on his obligations to pay a dowry. Mr Jones made the submission that I should not remit the matter for further hearing because it would be futile, that purpose being an abuse of the process of the Court. That is an arguable proposition, but it is not one which I am sufficiently persuaded of, in the absence of evidence about that, to refuse leave. It might be an improper purpose or, depending on its context, it might not. [68] I say that bearing in the mind the definition of economic abuse, which is ‘behaviour by a person that is coercive, deceptive, or unreasonably controls another person without the second person’s consent in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour.’ If the conduct in respect of the 17 December message can amount to domestic violence, it may be able to be linked to the circumstances in Iran so as to make out an act of domestic violence. I am not suggesting that I have formed a view that DGE’s cross- application is meritorious, but it seems to me that in the unique circumstances of this case where an important and fundamental matter said to be an act of domestic violence was not understood and dealt with by the Court, that matter needs to go back before the Court. [69] Accordingly, I set aside the Magistrate’s dismissal of DGE’s cross- application and I remit the matter to the Magistrates Court for further consideration, which consideration should occur having first read these -- 6 of 8 -- 7 reasons which I will put in a proper form and publish and provide to the parties as soon as my overworked Associate can get it done. [5] The appellant’s remitted application for a protection order was heard by an Acting Magistrate in the Magistrates Court at Beenleigh on 26 April 2024 and 25 June 2024 with the application being dismissed after delivery of reasons on 29 August 2024. [6] The appellant was self-represented during the hearing but assisted by an interpreter. The respondent was legally represented and also had the assistance of an interpreter, including during her evidence. [7] It should have been obvious to the Acting Magistrate, after reading the reasons of Porter KC DCJ quoted above, that the appeal had been allowed and the appellant’s application had been remitted for hearing because of the failure of the original presiding Magistrate to properly consider the appellant’s contention that the respondent’s partial translation of the 17 December 2020 text message was deliberate and for the purpose of obtaining a protection order against the appellant and constituted domestic violence. Notwithstanding that, the appellant was again denied a proper hearing and determination of his application for a protection order and, in particular and again, denied a proper consideration of his contention that the respondent’s partial translation of the 17 December 2020 text message was deliberate and for the purpose of obtaining a protection order against the appellant and constituted domestic violence. [8] On 26 April 2024, the Acting Magistrate prohibited the appellant from cross- examining the respondent about the 17 December 2020 text message, stating: The material you want to ask her questions about, about the translation, has been determined by a higher court than this. You need to move on. … But you can’t ask questions about something that’s already been determined. … Judge Porter’s made a ruling on that. … I’m not going to make another one. … Why on earth do you think I would make another one? … He’s made specific rulings in his decision about that translation. … So I’m not going to make another version of a decision on that same translation, because he’s already expressed a view. I’m not going to express another view. … -- 7 of 8 -- 8 So anything about that translation, I don’t want to hear about. If your sole purpose of cross examining this witness is about that translation, forget it. It’s already been heard. [9] Judge Porter KC had not made findings as to whether or not the respondent’s partial translation of the 17 December 2020 text message was deliberate and for the purpose of obtaining a protection order against the appellant or as to whether or not, if proved, such conduct constituted domestic violence. The matter was remitted to the Magistrates Court for that court to consider whether such findings should be made. The Acting Magistrate erred in law and denied the appellant procedural fairness in preventing him cross-examining the complainant about such matters. [10] It appears that the Acting Magistrate, by the time of giving his reasons for dismissing the appellant’s application for a protection order on 29 August 2024, must have realised that Judge Porter KC had not in fact ruled on such matters and that the Acting Magistrate would be required to do so. [11] The Acting Magistrate went on to do so, concluding as follows: While there are comments made by his Honour Judge Porter KC in his decision – in his reasons, sorry, I am not persuaded, after considering the evidence in this matter, that while the actions of the respondent regarding the translated message – while certainly questionable, were – were – that they were, in fact, intentional – and – intentional. So I am – I am not persuaded they were, in fact, intentional. … I remain unconvinced, having read the affidavit evidence, heard the respondent give evidence during cross-examination and considering his Honour’s – Judge Porter KCs reasons, that the – that the respondent deliberately intended to mislead the Court to gain an advantage over, influence or control or coerce the applicant into any conduct. The allegations regarding the non-supplying of all of the transcribed material referred to in the evidence was not intentional, in my view; contrary to the belief of the applicant. [12] That the Acting Magistrate went on to rule on such matters, adversely to the appellant, having previously denied the appellant the opportunity to cross-examine the respondent about such matters, compounded the denial of procedural fairness to the appellant. [13] The appellant was denied the proper hearing and determination of his application that had been ordered by Judge Porter KC. The Acting Magistrate’s findings and orders cannot stand. The orders must be set aside and the matter again be remitted for proper hearing and determination by a differently constituted Magistrates Court. -- 8 of 8 --