Abood v State of Queensland [2024] QSC 225

SUPREME COURT OF QUEENSLAND CITATION: Abood v State of Queensland [2024] QSC 225 PARTIES: HAITHAM ABOOD (plaintiff) v STATE OF QUEENSLAND (first defendant) AND COMMONWEALTH OF AUSTRALIA (second defendant) FILE NO: BS 5007/23 DIVISION: Trial PROCEEDING: Application filed on 7 March 2024 (first defendant); Application filed on 8 March 2024 (second defendant) ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 9 October 2024 DELIVERED AT: Brisbane HEARING DATE: 30 September 2024 JUDGE: Freeburn J ORDERS: 1. The statement of claim filed on 2 August 2024 is struck out. 2. I will hear the parties on costs. 3. The proceeding will be reviewed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where a Police Protection Notice was issued subjecting the plaintiff to no-contact conditions with his former partner and infant daughter – where the Police Protection Notice was dismissed in the Magistrates Court – where the plaintiff was suspicious of his former partner leaving the country with their infant daughter, and successfully applied on the fifth attempt to have his former partner and infant daughter placed on the airport watchlist – where 13 days before being placed on the watchlist, the former partner and infant daughter had left the country – where the plaintiff initiated legal proceedings with the causes of action being negligence, malice and ill will on the part of the police officers and the Australian Federal Police – whether the statement of claim should be struck out on the basis that it does not disclose a reasonable cause of action -- 1 of 19 -- 2 Criminal Code 1899 (Qld), s 363A Criminal Code 1995 (Cth), s 268.21, s 271.2 Domestic Violence and Protection Act 2012 (Qld), s 4, s 22A Family Law Act 1975 (Cth), s 65Y, s 65Z Uniform Civil Procedure Rules 1999 (Qld), r 171 Hill v Chief Constable of West Yorkshire [1989] AC 53, cited General Steel Industries v Commissioner of Railways (1964) 112 CLR 125; [1964] HCA 69, cited Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54, cited Groom v State of SA [2017] SASCFC 35, explained Jennings v Police (2019) 133 SASR 520; [2019] SASCFC 93, cited Peat v Lin [2005] 1 Qd R 40; [2004] QSC 219, explained New South Wales v Tyszyk [2008] NSWCA 107, cited Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, cited Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, cited COUNSEL: The plaintiff appeared on his own behalf K Holyoak for the first defendant P Van Grinsven for the second defendant SOLICITORS: The plaintiff appeared on his own behalf Crown Law for the first defendant Turks Legal for the second defendant [1] The defendants, the State of Queensland and the Commonwealth of Australia, apply to strike out Mr Abood’s claim and his latest statement of claim. [2] There is little doubt that the constellation of events have led to a quite sad and unfair outcome for Mr Abood. But, unfortunately, not every unfair outcome means that the claimant has a viable cause of action and a legal remedy. Factual Background (as pleaded) [3] Mr Abood’s explains the factual background in this way. Mr Abood and his former partner, Ms Kauffmann, were separated but were living in the same house. They lived with their infant daughter, Lana. On 31 May 2020 Ms Kauffmann contacted Queensland Police Service (QPS). Mr Abood alleges that Ms Kauffmann made false domestic violence allegations. Four police officers attended the property and detained the plaintiff so that they could investigate the allegations. [4] Mr Abood says that the officers then investigated Ms Kauffmann’s allegations but “found no substantial or sufficient evidence of Ms Kauffmann's allegations”.1 However, it is important to observe that Mr Abood does not dispute that Ms Kauffmann actually made a complaint of domestic violence to police. He agrees that such a complaint was made but he maintains that it was a false complaint. His point, 1 See Mr Abood’s latest statement of claim, [231]. -- 2 of 19 -- 3 though, is that the police could not find any evidence that substantiated or corroborated her complaint.2 [5] Mr Abood says that, despite the absence of that corroborating evidence, the police then proceeded to issue a Police Protection Notice (PPN) with no-contact conditions for both Ms Kauffmann and Lana. A court date was scheduled in the Beenleigh Magistrates Court for 4 June 2020. Ms Kauffmann did not attend court and the matter was adjourned. The court made a Temporary Protection Order. [6] Mr Abood says that while he was detained on 31 May 2020, he became suspicious that Ms Kauffmann was preparing to ‘kidnap’ his daughter. He says that the circumstance of her allegations appeared suspicious, and the officers were assisting Ms Kauffmann with removing her belongings and property from the house, including suitcases and baby furniture and items. He says that Ms Kauffmann and Lana were also both removed from the property, and he became subject to the PPN with no- contact conditions. [7] Because of his suspicions, Mr Abood submitted what he describes as five ‘urgent airport watchlist applications’. Two were submitted on 2 June 2020. Another two were submitted on 3 June 2020. A fifth application was submitted on 24 June 2020. The initial four applications were rejected. Mr Abood says that he had been in contact with the Australian Federal Police (AFP) by telephone on 31 May 2020 and 1 June 2020. He says that, in those telephone calls he was reassured that his daughter would not be exiting the country. [8] Eventually, Mr Abood was able to secure legal representation.3 With the benefit of that legal assistance he submitted the fifth application on 24 June 2020. But it was too late. Ms Kauffmann had left Australia for Brazil on 11 June 2020. Lana was with her. Mr Abood describes this action as the abduction of his daughter. [9] At this point it is necessary to explain the nature of the five applications Mr Abood made. Under sections 65Y or 65Z of the Family Law Act 1975 (Cth) it is a Commonwealth offence for a person to take or send a child from Australia: (a) contrary to an order limiting or preventing the child's overseas travel; (b) where court proceedings for a parenting order are pending; or (c) where an appeal against a parenting order is pending.4 [10] Here, the objective of Mr Abood’s applications was to engage alternative (b) above. That meant that it was necessary for Mr Abood to demonstrate to the AFP that an application that had been filed in the Family Court5 pursuant to which Mr Abood sought a parenting order. On the basis that pending application to the Family Court, Mr Abood was then entitled to apply to the AFP to have Lana’s name placed on the watchlist. 2 One particular piece of evidence that police sought but failed to find was a mobile phone. 3 Mr Abood says that Ms Kauffmann took all of the money from their joint bank account which made it difficult for him to pay for a lawyer. 4 There is also an offence of retaining a child outside Australia where there is a Court order in place or Court proceedings for a parenting order are pending: Family Law Act 1975 (Cth) ss 65YA and 65ZAA. 5 Here I have used the expression ‘Family Court’ as an abbreviation for the Federal Circuit and Family Court of Australia or the Family Court of Western Australia. -- 3 of 19 -- 4 [11] Presumably Lana’s name was placed on the watchlist on 24 June 2020. However, by that date Ms Kauffmann and Lana had already left – some 13 days earlier. The ‘Strike-out’ Principles [12] Whilst there are a variety of complaints about Mr Abood’s pleading, for present purposes it is necessary to focus on the more fundamental of those complaints, namely the complaint that Mr Abood’s pleading does not disclose a reasonable cause of action.6 While the Court will only do so in the clearest of cases, there is no doubt that the power to strike out exists and should be exercised where the facts pleaded are not sufficient to succeed, even when taken at their highest.7 As Barwick CJ pointed out in General Steel Industries v Commissioner of Railways:8 The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. Mr Abood’s Case Against the State [13] In paragraph 234 of his pleading Mr Abood gives this summary of his case: The Plaintiff claims that the QPS officers’ actions on 31 May 2020 were negligent, an abuse and breach of police powers, functions and responsibilities, and discriminatory, resulting in the unlawful abduction of the Plaintiff’s child from his custody and the Commonwealth of Australia. [14] The detail of those claims is set out in paragraphs 238 to 261 of the pleading. Again, the pleading starts with a summary:9 The Plaintiff pleads that the First Defendant engaged in negligence towards the Plaintiff during their investigation of allegations of domestic violence on 31 May 2020. The Plaintiff pleads that the negligence directly resulted in the abduction of the Plaintiff's child from his custody and from the Commonwealth of Australia. The Plaintiff pleads that the First Defendant are liable for the damages against the Plaintiff. [underlining removed] [15] The detail that follows can be summarised in this way: (a) Section 2.3 of the Police Service Administration Act 1990 outlines the functions and duties of the QPS officers, including: (i) the preservation of peace and good order; (ii) the protection of all communities in the State and all members thereof from unlawful disruption of peace and good order that results, or is likely to result, from— (A) actions of criminal offenders; 6 That raises r 171(1)(a) of the Uniform Civil Procedure Rules 1999. Other complaints about the pleading raise different subrules of r 171. 7 This is the first defendant’s submission based on the accepted principles in General Steel Industries v Commissioner of Railways (1964) 112 CLR 125, 128-129. 8 (1964) 112 CLR 125, 128-129. See also Dixon J in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62, 91. 9 Mr Abood’s latest statement of claim, [238]. -- 4 of 19 -- 5 (B) actions or omissions of other persons; (C) from commission of offences against the law generally; (iii) the prevention of crime; (iv) the detection of offenders and bringing of offenders to justice; (v) the upholding of the law generally; (vi) to administer, in a responsible, fair and efficient manner, and subject to due process of law and directions of the Commissioner, the provisions of the Criminal Code and the provisions of all other Acts or laws for the time being.10 (b) the QPS has a duty to Mr Abood to protect him from criminal offences by other persons; (c) here, the QPS officers were aware of Ms Kauffmann's intentions to ‘abduct’ Lana from Mr Abood's custody, and to remove her from Australia without his knowledge; (d) a further duty of care is also established through section 4(2)(e) of the Domestic Violence and Family Protection Act 2012 (Qld) which stipulates that (in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection),11 the person most in need of protection from domestic violence should be identified; (e) section 363A of the Criminal Code Act 1899 (Qld) identifies abduction as a crime and is defined as “someone who unlawfully takes a child under 16 years of age from the custody of the father or mother” and “against the will of the mother or father”; (f) therefore, given that the QPS were aware that Ms Kauffmann was going to abduct Lana without the knowledge of Mr Abood, and against his will, it is reasonably considered that a duty of care was owed to Mr Abood to protect him from the crime and the domestic violence that was occurring. [16] Paragraphs 243, to 245 of the pleading set out some particulars. In summary, those particulars are that Ms Kauffmann expressly told the QPS officers that she was intending to take Lana to Brazil and she told them that Mr Abood did not know of those plans. The particulars also allege that the QPS officers confirmed that there was no evidence to support Ms Kauffmann's allegations of domestic violence against Mr Abood,12 and yet they continued to pursue issuing a PPN against Mr Abood despite their awareness of Ms Kauffmann’s plans for the abduction of Lana and the impending crime. According to Mr Abood:13 10 This is a paraphrased version of the section. 11 This part of section 4(2)(e) in brackets is not included in Mr Abood’s pleading. I have added the section in brackets to give a more complete picture of the subsection. Mr Abood’s pleading also contains some definitions of terms which are unnecessary to include. 12 As discussed above, Mr Abood accepts that Ms Kauffmann made a complaint of domestic violence against him. Here his point seems to be that the police were unable to find any evidence that substantiated or corroborated her complaints. 13 Mr Abood’s latest statement of claim, [244]. -- 5 of 19 -- 6 … This constitutes as the QPS officers being aware of the Plaintiff being most at risk for domestic violence, due to the reasonable consideration that the abduction of one’s child would undoubtedly result in emotional and psychology abuse, and fear of the Child's welfare, as defined by s 8 of the Domestic Violence and Family Protection Act (2012)… [17] In paragraphs 246 to 253 of his pleading Mr Abood pleads the breach of the duty of care by the QPS officers. That breach is alleged to be a failure to exercise reasonable skill and care in: (a) failing to prevent the crime of abduction that they knew was about to occur; (b) failing to protect Mr Abood from domestic violence constituted by the emotional and psychological abuse caused by the abduction of his child from his custody and from Australia; and/or (c) failing to detain or arrest Ms Kauffmann and failing to alert Mr Abood to her intention to abduct the child and failing to prevent her travel from Australia. [18] Causation is pleaded in paragraphs 254 to 261 of the statement of claim. In summary, Mr Abood alleges that the breaches of duty by the QPS officers directly caused him psychiatric injury, including complex PTSD. Mr Abood says that any reasonable person in the position of the QPS officers would have undoubtedly been aware of the psychological harm that was likely by reason of their actions or inaction. Negligence: A Duty of Care? [19] It can be accepted that QPS officers have a statutory duty to uphold the law. That is a statutory duty to the public in general. However, such a duty does not ordinarily give rise to a duty owed to an individual or to the members of a particular class.14 A separate civil duty of care will arise where, on a close examination of the terms, scope and purpose of the relevant statutory regime, that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.15 As Gummow and Hayne JJ explained in Graham Barclay Oysters Pty Ltd v Ryan:16 An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. [20] It is not an easy task to apply that ‘salient features’ test.17 In Hill v Chief Constable of West Yorkshire18 the House of Lords held that the Chief Constable, whilst 14 See Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, [32], recently discussed by Cooper J in LSA v State of Queensland [2024] QSC 102, [282]. 15 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, [146]. 16 Ibid [149]. 17 Jennings v Police (2019) 133 SASR 520, [56], also discussed by Cooper J in LSA v State of Queensland [2024] QSC 102, [284]. 18 [1989] AC 53. -- 6 of 19 -- 7 attempting to identify and apprehend a serial killer for offences already committed, was not under a contemporaneous duty to persons who may yet become victims before the killer is apprehended.19 In that case, the court’s reluctance to impose a contemporaneous duty of care was explained in this way:20 By common law police officers owe to the general public a duty to enforce the criminal law: see Reg v Cmr of Police of the Metropolis, Ex parte Blackburn. That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public. [emphasis added] [21] The court’s reluctance to impose a duty to individuals is also explained by Campbell JA in New South Wales v Tyszyk in this way:21 Partly on the basis of Hill, a wider principle than Hill itself articulated has been accepted both in the House of Lords and in the High Court of Australia. It is that a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties. The High Court also said, in Sullivan v Moody at [60]: … when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of the specified class of persons, the law would not ordinarily subject them to a duty to have regards to the interests of another class of persons where that would impose upon them conflicting claims or obligations. [emphasis added] [22] It is worth interrupting the discussion of the authorities at this point to note that the duty of care that Mr Abood argues for in this case would likely conflict with any duty that the QPS officers may have owed to Ms Kauffmann or to Lana. [23] In Jennings v Police Kourakis CJ helpfully listed the exceptional cases in which police have been found liable, or arguably liable, in negligence. Those exceptional cases are as follows:22 a) to other road users when driving in performance of police duties; b) to suspects, who have been shot in the course of pursuit or arrest; c) with respect to persons in detention; d) failing to assist another officer for whose safety he had a responsibility; 19 See Jennings v Police (2019) 133 SASR 520, [57]. 20 [1989] AC 53, 59. This passage was recently approved in Robinson v Chief Constable of West Yorkshire Police [2018] AC 736 and by Kourakis CJ in Jennings v Police (2019) 133 SASR 520, [60]. 21 [2008] NSWCA 107, [125]; Sullivan v Moody (2001) 207 CLR 562, [60] 22 (2019) 133 SASR 520, [64]. -- 7 of 19 -- 8 e) provoking or acting in disregard of a real and substantial risk of harm to a person or property; f) failing to preserve the confidentiality of information provided by an informant; g) failing to protect a woman who was unaware she was being used by police as ‘bait’ to catch a serial rapist; and h) delaying in responding to calls for assistance while assuring the victim that help was on its way. [24] In the same case His Honour identified some cases where no duty had been found, namely:23 a) where police are investigating a crime and the offender, then known or unknown, harms the plaintiff; b) where police, in the course of an investigation, injure the person under investigation; and c) where police, in the course of investigation, injure the person under investigation and a family member of the person under investigation suffers indirect injury. [25] In Peat v Lin24 Mr Peat alleged that he suffered personal injuries as a result of being stabbed outside a nightclub. He said that three off-duty police officers present at the nightclub negligently failed to prevent that breach of the peace and that the State of Queensland was liable for their negligence. Atkinson J struck out Mr Peat’s statement of claim. One reason for Her Honour’s decision was that the three officers were off- duty, and they were not obliged to act as a constable to prevent a breach of the peace. [26] However, Her Honour explained that there was a more fundamental reason why the State of Queensland could not be held vicariously liable in these circumstances:25 To say that a constable has a duty to the public, however, is not to answer the question of whether he or she has a duty in tort, for which the State will be held vicariously liable, to an individual member of the public to prevent a crime happening to a particular person. The trend of authority is comprehensively against such a proposition. [27] Her Honour then discussed Hill v Chief Constable of West Yorkshire,26 Sullivan v Moody,27 Graham Barclay Oysters Pty Ltd v Ryan28 and Tame v New South Wales29 and summed up the position in this way:30 There is, however, no binding authority that police officers enjoy a blanket immunity from liability in tort in the investigation and prevention of crime although they are “generally exempt” from liability. Ordinarily, remedies by members of the public against the police are found in public law or the torts of false imprisonment or malicious prosecution. A police officer may assume a duty of care to a member of the public in situations where the police have custody of the person or where the police have committed criminal acts against an 23 Ibid [65]. 24 [2005] 1 Qd R 40. This case is also discussed by Cooper J in LSA v State of Queensland [2024] QSC 102, [290]. 25 Peat v Lin [2005] 1 Qd R 40, [11]. 26 [1989] AC 53. 27 (2001) 207 CLR 562. 28 (2002) 211 CLR 540. 29 (2002) 211 CLR 317. 30 Peat v Lin [2005] 1 Qd R 40, [24]. -- 8 of 19 -- 9 accused person by fabricating evidence or conspiring to give false evidence. This is not such a case. [28] Counsel for the State also referred to Groom v State of SA,31 a case where the facts have some similarity to the present. As counsel explained, in that case the Full Court of the Supreme Court of South Australia considered an appeal against summary judgment having been granted against the appellant. The appellant had alleged negligence by police in failing to “properly investigate a number of allegations” made by him against his former partner, involving alleged abuse of his child. As is the case here, the allegations arose in the context of a domestic violence restraining order having been made against the appellant for allegedly assaulting his former partner. Consistent with the authority in Hill (and citing decisions which have followed it), Nicholson J said that:32 On the present state of the authorities, and as a general rule, neither SAPOL [the police] nor the OPP [the prosecution authority] owe a citizen a duty of care in respect of prosecutorial or investigative functions. The appellant has not pleaded any facts which would serve to distinguish, in any material way, his situation from this general position. [29] As a result of that issue and other deficiencies in the appellant's pleading, the Court concluded that the Master had been “correct to enter summary judgment”. The Problems with finding a Duty of Care here [30] And so, the first problem for Mr Abood’s claim is that, even recognising that the common law is an evolving organism, the law has not ventured so far as to impose a duty of care on a police officer to prevent a crime happening to a particular person. For the court to find such a duty Mr Abood will be required to overcome ‘the general rule … that one man is under no duty of controlling another man to prevent his doing damage to a third’.33 That will generally require a special relationship or a high degree of foreseeability and predictability.34 [31] Mr Abood’s second problem is that, even if there was a duty of care that did extend that far, there was no crime for the officers to prevent. Mr Abood says his daughter was ‘abducted’ contrary to section 363A(1) of the Criminal Code. That section is as follows: Any person who unlawfully takes an unmarried child under the age of 16 years out of the custody or protection of the child’s father or mother, or other person having the lawful care or charge of the child, and against the will of the father, mother or other person, is guilty of a crime, and is liable to imprisonment for 7 years. [32] Counsel for the State emphasised the word “unlawfully” in the first line of the section. But, even without that word, the offence occurs only if the child is removed from the custody of the child’s mother or father or another lawful carer of the child. Section 363A(1) is not engaged because Ms Kauffmann did not take Lana out of the custody 31 [2017] SASCFC 35. State submissions, [21]-[23]. 32 Groom v State of SA [2017] SASCFC 35, [36]. 33 Smith v Luers (1945) 70 CLR 256. That principle was confirmed in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. See the discussion of this topic in Mandy Shircore, ‘Police Liability for Negligent Investigations: When Will a Duty of Care Arise’ (2006) 11(1) Deakin Law Review 33, 50 (‘Shircore’) (a helpful article referred to by Mr Abood). 34 Shircore, 50. -- 9 of 19 -- 10 or protection of the child’s mother or father or other lawful carer. In short, section 363A(1) has no application as between parents because, in the absence of a parenting order of the Family Court, both parents have the right and responsibilities of custody and protection of the child. [33] No facts are pleaded by Mr Abood that demonstrate that Ms Kauffmann’s custody of Lana was contrary to any law. And no facts are pleaded by Mr Abood that demonstrate that Ms Kauffmann’s conduct on 11 June 2020, in removing Lana from Australia, was contrary to any law. Parents are free to travel overseas with their children unless doing so would be contrary to an order limiting or preventing the child’s overseas travel, or where court proceedings for a parenting order are pending, or where an appeal against a parenting order is pending.35 [34] Novel cases may arise where, in the particular circumstances of the case, the court will impose a duty of care on police officers to take positive action to prevent a crime. But this is not such a case because there was no crime for the officers to prevent. [35] The third problem for Mr Abood is his reliance on section 4(2)(e) of the Domestic Violence and Family Protection Act 2012. Section 4 of the Act sets out the principles for administering the Act: 4 Principles for administering Act (1) This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount. (2) Subject to subsection (1), this Act is also to be administered under the following principles— (a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised; (b) to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act; (c) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change; (d) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics; Examples of people who may be particularly vulnerable to domestic violence— • women • children • Aboriginal peoples and Torres Strait Islander peoples • people from a culturally or linguistically diverse background 35 See the discussion above. -- 10 of 19 -- 11 • people with disability • people who are lesbian, gay, bisexual, transgender or intersex • elderly people (e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection— (i) the person who is most in need of protection in the relationship should be identified; and (ii) only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other; (f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law. [36] Those are, of course, the principles that are to apply to the administration of the Act. Subsequent sections of the Act specify how the Act is to apply. Section 22A defines who is the person most in need of protection in a relevant relationship: 22A Who is the person most in need of protection in a relevant relationship (1) A person (the first person), who is in a relevant relationship with another person (the second person), is the person most in need of protection in the relationship if, when the behaviour of each of the persons is considered in the context of their relationship as a whole— (a) the behaviour of the second person towards the first person is, more likely than not— (i) abusive, threatening or coercive; or (ii) controlling or dominating of the first person and causing the first person to fear for the safety or wellbeing of the first person, a child of the first person, another person or an animal (including a pet); or (b) the first person’s behaviour towards the second person is, more likely than not— (i) for the first person’s self-protection or the protection of a child of the first person, another person or an animal (including a pet); or (ii) in retaliation to the second person’s behaviour towards the first person, a child of the first person, another person or an animal (including a pet); or (iii) attributable to the cumulative effect of the second person’s domestic violence towards the first person. (2) In deciding which person in a relevant relationship is the person most in need of protection, a court must consider— (a) the history of the relevant relationship, and of domestic violence, between the persons; and -- 11 of 19 -- 12 (b) the nature and severity of the harm caused to each person by the behaviour of the other person; and (c) the level of fear experienced by each person because of the behaviour of the other person; and (d) which person has the capacity— (i) to seriously harm the other person; or (ii) to control or dominate the other person and cause the other person to fear for the safety or wellbeing of the first person, a child of the first person, another person or an animal (including a pet); and (e) whether the persons have characteristics that may make them particularly vulnerable to domestic violence. Examples of people who may be particularly vulnerable to domestic violence— • women • children • Aboriginal peoples and Torres Strait Islander peoples • people from a culturally or linguistically diverse background • people with disability • people who are lesbian, gay, bisexual, transgender or intersex • elderly people [37] The Act therefore recognises that, in the context of conflicting allegations of domestic violence, or where there are indications that both persons in a relationship are committing acts of violence, difficult judgments may need to be made concerning which person in a relationship is most in need of protection. Nevertheless, the Act recognises the fact that women are particularly vulnerable to domestic violence. There are obvious reasons for that statutory recognition. [38] As I understand it, Mr Abood’s complaint is that the QPS officers wrongly determined that it was Ms Kauffmann who was in need of protection. Mr Abood maintains that the QPS officers ought to have determined that it was he who was in need of protection.36 Even assuming that Mr Abood is right that Ms Kauffmann’s complaint of domestic violence was false, and that he was being subjected to controlling or abusive behaviour by Ms Kauffmann, that does not establish that the QPS officers owed him a duty of care. The law would not ordinarily subject the officers to a duty to have regard to the interests of either party in a ‘relevant relationship’ under the Act. Such a duty would a impose on the officers conflicting obligations in operational circumstances where they need to make difficult assessments about the party most at risk. And such a duty would run counter to, or at 36 Mr Abood’s submissions contend that he was more at risk than Ms Kauffmann and therefore ought to have been the person protected from domestic violence in this instance: Mr Abood’s (first) written submissions, [17]. -- 12 of 19 -- 13 least would not acknowledge the Act’s recognition that women are particularly vulnerable to domestic violence. [39] It is difficult to conceive of any development of the common law embracing such a duty to one or other of the parties to what the Act describes as a ‘relevant relationship’. The Negligence Case Against the State – A Breach of the Duty of Care? [40] Even assuming a duty was owed, there is no basis for the claim that the duty was breached. [41] Mr Abood alleges that the QPS officers failed to identify himself as the correct person in need of protection, despite Ms Kauffmann’s ‘verbal confession’ that she had plans to abduct Lana from Australia without his knowledge, and where there was no evidence of her allegations of domestic violence.37 There are three problems with that case. [42] The first is that Mr Abood’s case assumes that it is a breach of duty for the QPS officers to conclude that Ms Kauffmann was the person in need of protection. It was not a breach of a duty for the officers to arrive at the incorrect conclusion in a contested domestic scene like this. A breach of duty could only be established by proof that, in the circumstances, no reasonable police officer would have arrived at the conclusion these officers arrived at. Mr Abood alleges no material facts which establish a standard of care, or which would lead to a finding of a breach of those standards. [43] Mr Abood is self-represented and so it may be that he is not familiar with how the elements of negligence are assessed by the court. But, even appreciating Mr Abood’s disadvantage as a self-represented litigant, the cause of action he pleads suffers from the problem that the cause of action assumes that it is negligent to arrive at the ‘wrong’ result. In fact, it would be necessary for Mr Abood to plead the material facts that establish a particular standard of reasonable conduct required of the officers, and to demonstrate that the conduct of the officers fell below that reasonable standard. [44] The second problem is that, again, Mr Abood assumes that Ms Kauffmann’s stated intention to leave the country with Lana without Mr Abood’s knowledge had the status that Ms Kauffmann was confessing to the QPS officers her intention to commit a crime. It may well have been that Ms Kauffmann’s conduct was quite unfair. The officers’ conduct in failing to disclose that intention may be similarly characterised. But none of that makes Ms Kauffmann’s flight from Australia to Brazil a crime. In the absence of a court order, or pending Family Court proceedings for a parenting order, Ms Kauffmann was entitled to travel with her child. Queensland police officers had no power to physically prevent Ms Kauffman leaving Australia.38 [45] The third problem is the statement that there was no evidence of Ms Kauffmann’s allegations of domestic violence. Mr Abood’s submissions accept that Ms Kauffmann did in fact make an allegation of domestic violence against him. He says it was a false 37 Mr Abood’s (first) written submissions, [18]. 38 See the State’s submissions, [31]. As the State submissions remark, any attempt to prevent Ms Kauffmann from leaving may itself have exposed the QPS to a claim of false imprisonment. -- 13 of 19 -- 14 complaint. For the purposes of this strike-out application it can be assumed Mr Abood is right about that. But there was a complaint. What happened was that the QPS officers searched for corroboration of Ms Kauffmann’s allegations of domestic violence.39 They did not find that corroboration. But they were still confronted with a situation where Ms Kauffmann alleged domestic violence and Mr Abood denied it.40 The QPS officers were entitled to make a judgment about that situation and to take the actions they did. [46] As explained, it is not a breach of duty to be mistaken. Mr Abood’s Negligence Case Against the State – Causation [47] There is another difficulty with Mr Abood’s negligence case against the QPS officers. The tragic consequences for him are that he and his daughter are on different continents. But that consequence, the ‘damage’ to him, has come about because of Ms Kauffmann’s determination to leave Australia with Lana and her execution of that plan.41 The material fact that might support a claim that the QPS officers have caused that damage is an allegation that the QPS officers had an obligation or a duty to prevent Ms Kauffmann and Lana from leaving Australia. [48] Mr Abood’s only basis for causation relies on the proposition that the QPS officers were obliged to prevent Ms Kauffmann from committing the crime of abduction. For the reasons explained, that is an unsound foundation. The Negligence Case Against the Commonwealth: A Duty? [49] Mr Abood’s case against the Commonwealth, by reason of the conduct of the AFP, is summarised in this way:42 The Plaintiff pleads that the Second Defendant engaged in negligence towards the Plaintiff by failing to prevent the abduction and unlawful removing of his Child from the Commonwealth of Australia, despite their knowledge of the Plaintiff's concerns and the immediate urgency of ensuring his Child was placed on the Airport Family Law watchlist. The Plaintiff pleads that the negligence directly resulted in the abduction of the Plaintiff's child from the Commonwealth of Australia. The Plaintiff pleads that the Second Defendant are liable for the damages against the Plaintiff. [underlining from original removed] [50] To his credit, Mr Abood has, again, descended into detail regarding the elements of the cause of action in negligence. [51] As to the duty of care, Mr Abood alleges that: (a) the AFP officers have an obligation to perform their role with due care and diligence; (b) the AFP has a significant role in the prevention of international child abduction; 39 It is likely that if they had found corroboration, perhaps on the mobile phone, they were likely to have arrested and charged Mr Abood. 40 Ms Kauffmann accompanied the police to the police station and the officers prepared a written statement alleging domestic violence. Oddly, the witness statement was never signed and Ms Kauffmann signed a withdrawal of the complaint on the basis that she was leaving the country. 41 As the State submits, Mr Abood’s pleading must allege that some action or inaction of the State was a necessary condition of the occurrence of the harm: State’s submissions, [35]-[38]. 42 Mr Abood’s latest statement of claim, [262]. -- 14 of 19 -- 15 (c) the AFP had a duty to Mr Abood, as an Australian citizen, to protect him from criminal offences, as defined by the Criminal Code 1995 (Cth); (d) in particular, the AFP had a duty to protect Mr Abood from the commission of offences under section 268.21 (arrest, detention abduction) and section 271.2 (trafficking in persons);43 (e) the AFP officers were aware of Ms Kauffmann's intentions to abduct the child from Australia without Mr Abood’s knowledge. [52] Similar problems arise as are present in Mr Abood’s case against the State. There is no proper basis on which it can be said that the AFP officers owed a duty to prevent Ms Kauffmann from leaving the country with Lana. [53] Incidentally, Mr Abood relies on the AFP having a duty to prevent the commission of offences under sections 268.21 and 271.2 of the Criminal Code 1995 (Cth). But neither of those offences are relevant or appropriate to the circumstances of this case. It is unnecessary to go into the detail, but section 268.21 involves arrest, detention or abduction of persons and section 271.2 involves trafficking persons by means of coercion, threat or deception or exploitation. The sections have no relevance where one parent has lawful custody of their child. The Negligence Case Against the Commonwealth: A Breach? [54] As to the breach of duty, Mr Abood alleges that:44 On 31 May 2020, following the investigation of allegations of domestic violence with the QPS, and on 1 June 2020, the Plaintiff contacted the AFP and spoke with them about his concerns for the abduction of his child. The AFP directed the Plaintiff to apply for a Family Law Watchlist application, and reassured him that the Child would not be allowed to depart from the country. The AFP advised the Plaintiff to open an initiating application in the Federal Circuit and Family Court of Australia, and that he would just need to reference the case number. [55] Mr Abood’s pleading continues:45 On 2 June 2020, the Plaintiff urgently submitted two (2) watchlist applications, and again submitted two (2) watchlist applications on 3 June 2020, with the applications on 3 June 2020 referencing the Federal Circuit and Family Court of Australia case number as per the advice of the APP appointees. On 3 June 2020, the Plaintiff's applications were rejected on the basis that he did not submit Orders made by the Court requesting the Child be placed on the Airport Family Law watchlist. However, the Plaintiff was not advised that such Orders were required. rather. he was just advised that an application were to be initiated. Further on 3 June 2020, the Plaintiff responded to the email with his urgent, immediate, and desperate concerns of his Child's unlawful removal of the Commonwealth of Australia, and pleaded that steps be taken to prevent the abduction of his child. However. the AFP refused without Court orders. On 24 June 2020. the Plaintiff submitted an urgent watchlist application after needing a few weeks to financially be able to engage legal representation to assist with creating the Orders. On 24 June 2020, the Plaintiff's watchlist was accepted and his Child was placed on the 43 See the discussion of these offences below. 44 Mr Abood’s latest statement of claim, [269]. 45 Ibid [270]-[272]. -- 15 of 19 -- 16 Airport Family Law watchlist. However, in July 2020, the Plaintiff was made aware that his daughter had already been removed from the Commonwealth of Australia by the Mother around mid-June… [56] It is plain that Mr Abood knew that to prevent Ms Kauffmann from leaving the country with Lana he needed to succeed in his application to have Lana’s name placed on the Airport Family Law watchlist. To get her name on that watchlist he needed to file court proceedings for a parenting order. That seems to have been clear to him because he expressed, as he says, “urgent, immediate, and desperate concerns” about Lana’s unlawful removal from Australia. His application was eventually accepted on 24 June 2020. [57] None of that discloses a breach of any duty owed by the AFP. The AFP’s conduct was constrained by the law. They had no power to intervene unless and until Mr Abood filed court proceedings for a parenting order. He did not do that until 24 June 2020, by which time it was too late. [58] Mr Abood suggested during the course of argument that he was reassured by what the AFP told him. That ‘reassurance’ is also reflected in his statement of claim where he says that he was reassured that his child would not be removed from the country.46 [59] But Mr Abood does not descend into detail as to precisely what he was told, or by who and when. And, whatever he was told, at all times he seems to have accepted that to have Lana’s name placed on the watchlist he needed to comply with the requirements of the law and to satisfy AFP’s requirement that he demonstrate that there were pending court proceedings for a parenting order. That was, no doubt, why he had “urgent, immediate, and desperate concerns”. [60] In any event, Mr Abood’s case is pleaded as a negligence case and not as a case based on any misleading conduct by the AFP. [61] There is another aspect of the allegation of a breach of duty raised by Mr Abood. He criticises the AFP for instructing him to initiate an application in court and yet rejecting his applications.47 As explained at the outset, four of his applications were rejected. Only the fifth, prepared with the assistance of lawyers, was accepted. [62] The problem is that Mr Abood’s pleading does not descend into detail as to why the AFP rejected his first four applications and why they were, apparently, duty bound to accept his first four applications, or one or more of them. Mr Abood’s case seems to assume that all he was required to do was to make an application for Lana’s name to be placed on the watchlist or to alert the AFP to Ms Kauffmann’s proposed travel. However, there is no middle ground here. The AFP were entitled to and obliged to enforce the law. They were entitled, and obliged, to permit parents to travel with their parents unless and until there was, in this case at least, pending court proceedings for a parenting order. Nothing in Mr Abood’s pleading suggests that there were pending court proceedings for a parenting order, and a proper application for Lana’s name to be placed on the watchlist, before 24 June 2020. [63] Mr Abood’s breach of duty case is also pleaded in this way:48 46 Ibid [275](a). 47 Mr Abood’s latest statement of claim, [275](b). 48 Ibid [274]. -- 16 of 19 -- 17 The Plaintiff pleads that the Second Defendant's negligence directly resulted in the abduction of his Child, as the APP appointees were aware of the Plaintiffs imminent concerns for the abduction of his Child and of his desperate attempts to place his Child on the Airport Family Law Watchlist, yet they failed to take any reasonable steps to prevent the abduction from occurring without Court orders. Reasonable steps should have included flagging the Mother and the Child's passport in the interim while the Plaintiff sought out Court orders to prevent the travel of the Child from the Commonwealth of Australia, thoroughly investigating the Mother and the Child before their departure, and/or alerting the Plaintiff that the Child was about to depart from the country. [64] First, it does not seem to be correct that the AFP refused to act without court orders. As other parts of Mr Abood’s pleading acknowledge, the AFP required one of three possible bases for refusing travel beyond Australia, namely: an order limiting or preventing the child's overseas travel; pending court proceedings for a parenting order; or a pending appeal against a parenting order.49 [65] Second, as explained, there is no middle ground here. There was no proper basis on which the AFP could have detained Ms Kauffmann or prevented her from travelling. Unless one of the three possible bases for refusing travel were present, Ms Kauffmann was perfectly entitled to travel, and there was no legal basis for preventing her from doing so. Mr Abood’s pleading assumes that the AFP were entitled to ‘flag’ Ms Kauffmann and Lana as ‘subjects of interest’, and detain them at the airport whilst thorough investigations were carried out and to enable Mr Abood to be alerted. And Mr Abood assumes that the AFP were entitled to prevent Ms Kauffmann and Lana from boarding any overseas-bound aircraft. The problems with such a case are obvious. The AFP had no legal power to do those things. And, even if there was a power or discretion to do so, there is no basis for imposing a civil duty to do so. [66] Mr Abood’s causation case is similar to his case against the State. There are the same problems. Malice and ill-will [67] Mr Abood pleads another claim. The claim is headed: “Malice and ill will; Abuse and breach of power, functions, and responsibilities - First Defendant”. Essentially, Mr Abood alleges that the QPS had various powers, functions and responsibilities under various legislation50 and, because of the breach and abuse of those powers, functions and responsibilities by the QPS officers, the direct result was the successful abduction of Mr Abood's child from his custody and from Australia. [68] The first problem is that there is no cause of action known as ‘malice and ill-will’. When this problem was raised by the defendants, Mr Abood responded in this way:51 …it is firstly noted that ‘Malice and ill will’ is required by Rule 150(i) of the UCPR 1999 to be specifically pleaded, therefore indicating that there is cause of action for malice and ill will. Otherwise, why else would this be required to be specifically pleaded if no cause of action can be described for it, particularly when the Rules of the UCPR 1999 require cause of action to be pleaded and when this is a primary argument of the First Defendant's that cause of action is not pleaded. 49 See the three requirements set out in paragraph 9 above. 50 Police Service Administration Act 1990 (Qld), the Police Powers and Responsibilities Act 2000 (Qld), and the Domestic Violence and Administration Act 2012 (Qld). 51 Mr Abood’s further written submissions, [27]. -- 17 of 19 -- 18 [69] Of course, the point of rule 150(1)(i) is to require malice or ill-will to be specifically pleaded where that state of mind is an element of the cause of action or a material fact that needs to be pleaded. Malice or ill-will is not a separate cause of action that stands on its own. [70] That is a fundamental problem with the claim. [71] A second fundamental problem with this claim is similar to the problem with the negligence claim. Just because a police officer has a statutory responsibility to perform the obligations specified by the legislation, that does not mean that a private citizen has the right to pursue the officers or their employer for breach of those statutory duties. No basis is stated in the pleading for such a claim. [72] There is a third problem. Mr Abood alleges that the QPS officers breached their duties in issuing a PPN. It may be difficult for Mr Abood to prove that the officers were wrong to issue the PPN given that the officers were operating in a contested environment. But, for present purposes, it can be assumed that Mr Abood is right and that there was no reasonable basis for the issue of the PPN. That gave him the right to apply to the court for the discharge of the PPN. That is what eventually happened. Magistrate Kelly dismissed the PPN on 25 March 2022. However, the more substantive problem is that there is no basis for thinking that Mr Abood possessed a private civil right to sue the QPS officers for a breach of their duties. [73] Incidentally, in his pleading Mr Abood points out that when she dismissed the PPN Magistrate Kelly “reviewed all the evidence and found none of the three (3) criteria for issuing a protection order, including no evidence of domestic violence” [emphasis in the original].52 Mr Abood relies on that finding as evidence of the QPS officers’ abuse of and breach of their powers and functions. But what happened before Magistrate Kelly two years later is very different from the contested situation the officers found themselves in on 31 May 2020. Before the Magistrate the QPS were burdened by a lack of any admissible evidence from Ms Kauffmann. What ultimately happened is not relevant to the operational decisions of the QPS officers on 31 May 2020. [74] A fourth problem is that Mr Abood’s pleading makes much of the fact that Ms Kauffmann was permitted to remove all of her belongings and all of Lana’s belongings. Mr Abood points out that according to the QPS Operations Procedures Manual Issue 71 regarding Chapter 9 - Domestic Violence (section 9.7) officers should ensure domestic violence before retrieving property, and that they are not to become involved in the actual removal of property, and that they should only ensure a person is allowed to retrieve items which are not subject to disputed ownership or are removed with consent.53 That operational manual contains recommendations or guidelines. On no basis can it be said that those recommendations or guidelines provide a proper basis for Mr Abood to bring a private civil claim. And, of course, the only relevant damage could be the market value of the unidentified property. [75] A fifth problem is that Mr Abood pleads that he was discriminated against contrary to the Anti-Discrimination Act 1991 (Qld). However, there is no pleading that this 52 Mr Abood’s latest statement of claim, [295]. 53 Ibid, [302]-[308]. -- 18 of 19 -- 19 was a work or work related area (see section 13),54 or in education (section 38), or in the supply of goods or services (section 46), or in superannuation (section 53) or in insurance (section 67) or disposition of land or supply of accommodation, or one of the other areas specified in the Act. And the complaint process under the Act has not been engaged. [76] A sixth problem is that Mr Abood complains that the QPS officers abused his rights under section 15 of the Human Rights Act 2019 (Qld) (HRA). However: (a) under section 59 of the HRA a person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58 (the section that applies to the conduct of public entities such as QPS; and (b) section 58(6) of the HRA expressly provides that an act is not invalid merely by reason of a breach of the Act; (c) relief under the HRA can only be obtained by ‘piggybacking’ onto another cause of action (subject to the court’s jurisdiction to order an injunction).55 Conclusions [77] There are other problems with the statement of claim. For example, Mr Abood seeks “disciplinary or appropriate action against the QPS officers and the AFP” when there is no legal basis for such a claim in this forum. It is sufficient, however, to identify the problems with the pleading discussed above. [78] The pleading should be struck out. I will hear the parties on costs and on further directions. The defendants have foreshadowed orders that strike out the proceedings in their entirety and that Mr Abood not be permitted to re-plead without leave. Mr Abood is entitled to be heard on those proposed orders. 54 It appears to be a work or work related area for the QPS officers but not for Mr Abood. 55 See Johnston v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2. -- 19 of 19 --