AMF v Commissioner of Police & Anor [2024] QDC 17

DISTRICT COURT OF QUEENSLAND CITATION: AMF v Commissioner of Police & Anor [2024] QDC 17 PARTIES: AMF (appellant) v COMMISIONER OF POLICE (first respondent) and WER (second respondent) FILE NO: BD2681/23 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 8 March 2024 DELIVERED AT: Brisbane HEARING DATE: 1 March 2024 JUDGE: Dearden DCJ ORDER: 1. The period for filing the notice of appeal is extended to 15 September 2023. 2. Appeal allowed. 3. Leave granted for the appellant to adduce further evidence contained in the affidavit of the appellant affirmed 14 September 2023. 4. The final protection order in respect of the second respondent made at the Brisbane Magistrates Court on 13 June 2023 is set aside. 5. The matter is remitted to the Brisbane Magistrates Court to be heard at the same time as the application for a protection order made by the appellant. CATCHWORDS: APPEAL – LEAVE TO APPEAL OUT OF TIME – LEAVE TO ADDUCE FURTHER EVIDENCE – whether there is a good reason for delay – whether it would be in the interests of justice to extend time to file notice of appeal – whether it is appropriate to grant leave to adduce further evidence in the circumstances. -- 1 of 11 -- 2 DOMESTIC VIOLENCE – APPEAL AGAINST FINAL PROTECTION ORDER – where a protection order was made against the appellant – where a cross-application against the second respondent existed – where the two applications for a protection order were heard separately – whether the learned magistrate erred in law by failing to give reasons for hearing the applications separately – whether the matter should be remitted back to the Magistrates Court for rehearing. LEGISLATION: Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 37, 39, 41C, 145, 164, 165, 168, 169 Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld) s 31 CASES: NBE v PRT & Anor [2018] QDC 29 DMO v RPD [2009] QDC 92 House v The King (1936) 55 CLR 499 Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc. (1981) 148 CLR 170 Norbis v Norbis (1986) 161 CLR 513 COUNSEL: A Cousen for the appellant K Morrison for the first respondent Second respondent in person SOLICITORS: TWC Lawyers for the appellant Queensland Police Service Legal Unit for the first respondent Second respondent was self-represented Introduction [1] This is an application for leave to appeal out of time (and if leave is granted, an appeal) pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) in respect of the making of a protection order pursuant to DFVPA s 37 on 13 June 2023 as a result of an application brought by the first respondent, naming the second respondent as the aggrieved together with two named children of the appellant and the second respondent. The order expires on 12 June 2028. [2] The notice of appeal was filed on 15 September 2023 which is outside the 28-day appeal period provided for under DFVPA s 165(4), and the applicant seeks leave to extend the period for filing the notice of appeal pursuant to DFVPA s 165(5). -- 2 of 11 -- 3 Grounds of appeal 1. The magistrate erred in making the order naming the second respondent as the aggrieved in circumstances where there was a current application by the appellant for a protection order before the court naming the second respondent as the respondent. 2. The magistrate failed to give reasons as to the decision to hear and decide the application for a protection order naming the second respondent as the aggrieved contrary to the requirements of s 41C(3) of the DFVPA. 3. The applicant has been denied procedural fairness in circumstances where both applications should have been heard together in order for a magistrate to make a determination pursuant to s 4(2)(e) of the DFVPA as required by s 41C(2) of the DFVPA. [3] The appellant does not press Ground 2. on this appeal.1 Relevant procedural history [4] The appellant has helpfully provided an outline of the relevant procedural history as follows:-2 “6. The appellant and second respondent were in a relationship between 2004 and approximately September 2018. There are two children of the relationship, AEF (aged 10) and WMR (aged 6). Currently there are proceedings before the Federal Circuit Court in relation to parenting arrangements for the children. There is a relevant relationship between the parties. 7. Cross applications for protection orders by the appellant and second respondent have previously been before the court. The applications were heard on 19 July 2022, but were adjourned part heard to 23 August 2022. 8. On 9 August 2022 the parties entered into mutual undertakings to resolve the proceedings before the court. 1 Appeal Transcript of Proceedings (1 March 2024), 1-4, ll18-29 2 Exhibit 1 – outline of argument on behalf of the applicant [6]-[22]. -- 3 of 11 -- 4 9. On 9 November 2022, the appellant made a further application for a protection order (“the appellant’s application for a protection order”), naming the second respondent as the respondent and seeking to include the parties’ children along with his then partner as named persons. 10. The appellant alleged the following as acts of domestic violence, which are alleged to have occurred in breach of the undertaking dated 9 August 2022: a. stalking of him and his current partner by the second respondent and her current partner; b. tracking devices being placed on his and his current partner’s car; c. that the second respondent had followed him and their children to a school event and taken photographs and videos of them. 11. On 19 January 2023, the court made orders for the filing and serving of material and listed the application for review mention on 13 April 2023. 12. The appellant’s application for a protection order was subsequently listed for hearing on 1 August 2023 with a further review mention on 25 July 2023. 13. On 7 June 2023, Senior Constable Daniel Jeffrey Jensen, made the application for a protection order the subject of this appeal (“the respondent’s application for a protection order”). The application was listed for mention on 13 June 2023. 14. The first respondent alleged the following as acts of domestic violence: a. The appellant had been coaching the children about what to say during the parenting proceedings and made comments such as “If you don’t, I will hunt you and your mother down” -- 4 of 11 -- 5 and “I will kill you and your mum” and “this week will be the last time you’ll see me forever”. 15. The appellant participated in an interview with police in relation to the allegations raised in the respondent’s application for a protection order on 7 June 2023. He was served with the respondent’s application for a protection order while he was in custody. 16. On the same day he was charged with attempting to pervert the course of justice in relation to the Federal Circuit Court proceedings, which is still before the court. He intends to contest this charge. His bail was objected to, and he was ultimately granted bail on 8 June 2023. 17. On 13 June 2023 the appellant provided the paperwork from the respondent’s application for a protection order amongst other paperwork to his solicitors. It was realised the following day that the first mention of the application had already passed on 13 June 2023. 18. His solicitors made enquiries regarding the outcome and attended court on 15 June 2023. They were advised that the respondent’s protection order had been made in the appellant’s absence. 19. The second respondent also did not appear on this date and neither party were (sic) represented save for the first respondent. 20. From the notation on the court file as it relates to the mention of the respondent’s application for a protection order, the magistrate was aware that there was a private application listed for review on 25 July 2023 and hearing on 1 August 2023 at the time of making the respondent’s protection order.3 3 Exhibit 3 – Affidavit of Tam Elabassi affirmed 13 September 2023, Exhibit TE03, pp 1-40, ll 12-14. -- 5 of 11 -- 6 21. Further, the magistrate gave no reasons as to why the respondent’s application and the appellant’s application should be heard separately. 22. The appellant’s application commenced on 1 August 2023. On the same date, the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 came into force. The amendment dispenses with the discretion of a magistrate to hear cross-applications for protection orders separately and instead stipulates that if the court is aware of both applications, they must be heard together.4 As a result, the matter remains listed as part heard.” The law Appeals [5] A person aggrieved by a decision to make a protection order can appeal against the decision.5 An appeal pursuant to the DFVPA must be decided on the evidence before the court that made the decision being appealed,6 although the appellate court may order that the appeal be heard afresh, in whole or part.7 [6] The court hearing an application is not bound by the rules of evidence and can inform itself in any way it considers appropriate,8 but there is an obligation to provide procedural fairness to all parties.9 [7] In order to succeed on an appeal, the appellant must demonstrate that there was legal, factual or discretionary error in making the order – a difference of opinion about the way in which the court’s discretion should be exercised is not a sufficient justification for review but rather it must be shown that the discretion has miscarried.10 4 Domestic and Family Violence Protection (Combatting Coercive Control) and Other Legislation Amendment Act 2023 s 31, amending Domestic and Family Violence Protection Act 2012 s 41C. 5 DFVPA s 164(a). 6 DFVPA s 168(1). 7 DFVPA s 168(2). 8 DFVPA s 145(1). 9 DMO v RPD [2009] QDC 92, [9]. 10 House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc. (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519. -- 6 of 11 -- 7 Extension of time to file an appeal [8] In NBE v PRT & Anor [2018] QDC 29, Long KC, DCJ noted:- “It is well established that the general principles applicable to such an application [for an extension of a time to file a Notice of Appeal] require consideration of two matters in particular: (a) whether there is good reason for the delay; and (b) whether it would be in the interests of justice to grant the extension [R v Tait [1999] 2 Qd R 667, 668; R v McLeod [2017] QCA 152]. Generally those principles recognise that there is need to make, where feasible, at least some provisional assessment as to whether the prospective appeal is a viable one and to take into account that assessment of the apparent strength or viability of the appeal in deciding whether the case is a fit one for granting the extension. That approach also allows for consideration of the proffered reasons for and length of delay and whether such delay has occasioned any relevant prejudice to the respondent.”11 [9] If leave is granted for the appeal to proceeding, this court may set the decision aside and remit the matter to the court that made the decision.12 Making a protection order [10] Where a court is satisfied that a respondent has been served with an application for a protection order but fails to appear, the court may hear and decide the application, adjourn the matter or issue a warrant for the respondent to be brought before the court.13 The legislation does not provide guidance as to the relevant considerations in deciding whether to hear or adjourn an application in those circumstances. [11] In deciding an application, the court must be satisfied that there is a relevant relationship between the parties;14 that the respondent has committed domestic violence against the aggrieved;15 and that a protection order is necessary or desirable to protect the aggrieved from domestic violence.16 11 NBE v PRT & Anor [2018] QDC 29, [6]. 12 DFVPA s 169(1)(d). 13 DFVPA s 39. 14 DFVPA s 37(1)(a). 15 DFVPA s 37(1)(b). 16 DFVPA s 37(1)(c). -- 7 of 11 -- 8 Cross applications for a protection order [12] At the time that the learned magistrate made the protection order in favour of the respondent the subject of this appeal, DFVPA s 41C required that the magistrate, once aware that the appellant’s application for a protection order was before the court, to hear both applications together, unless it was considered necessary to hear the applications separately for the safety, protection or wellbeing of the person named as the aggrieved in the original application, the original protection order or the cross-application.17 If the court decided to hear the applications separately, the court was required to give reasons for that decision.18 [13] The effect of the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 s 31, was to repeal s 41C(3) effective 1 August 2023, which effectively removed the court’s discretion for cross- applications to be heard separately where a court was aware of both applications. The amended s 41C(2) now provides that:- “The court must – (a) Hear the applications together.” Discussion Leave to appeal out of time [14] At the time that the learned magistrate made the protection order on 13 June 2023, neither the second respondent nor the appellant were present in court (although the appellant had been served with a copy of the application and had received notice of the hearing date). The appellant’s first knowledge of the magistrate’s failure to comply with the mandatory requirements of DFVPA s 41C came when the issue was raised by the (different) magistrate presiding at the hearing of the appellant’s application on 1 August 2023. [15] The hearing on 1 August 2023 was adjourned by the magistrate then presiding, who (entirely appropriately) identified that the appellant’s application was a cross-application, the mandatory provisions of DFVPA s 41C(3) had not been complied with, and therefore the application could not proceed at that point. 17 DFVPA s 41C(2) – current as at 31 October 2022. 18 DFVPA s 41C(3) – current as at 31 October 2022, provided “If the court decides to hear the applications separately, the court must give reasons for the decision.” -- 8 of 11 -- 9 [16] The learned magistrate on 1 August 2023 concluded that the protection order in favour of the respondent had been made by the previous magistrate on 13 June 2023 with knowledge of the cross-application; there had been no compliance with the then mandated provisions of s 41C(3); there was no power to reopen; and in the circumstances, given the lack of reasons provided by the magistrate on 13 June 2023, proceeded to adjourn the appellant’s application.19 [17] The appellant’s affidavit explains that he was detained and charged by police on 7 June 2023; released on bail on 8 June 2023 and was “provided numerous documents” on his release; and he delivered all those documents to his solicitors (TWC Lawyers) on 13 June 2023 around lunchtime; then was advised by his solicitor that the protection application had been dealt with on 13 June 2023 and a final order made in his absence. The appellant then “made the decision to continue with [his] application on 1 August 2023 with every intention to apply to vary the [respondent’s protection order] after findings of 1 August 2023 hearing.”20 [18] It should be noted that the appellant does not otherwise explain the further delay between 1 August 2023 and the filing of an appeal on 15 September 2023. In those circumstances, the overall explanation for delay is, with respect, underwhelming. [19] However, the second aspect of the issue in respect of leave to appeal out of time is whether it is in the interests of justice to hear the appeal out of time. In that respect, there is clearly a relevant relationship between the parties; each has raised allegations of domestic violence by the other; there are significant factual disputes; the provisions of DFVPA s 41C(2) and (3) as it applied on 13 June 2023 were mandatory, and the learned magistrate who dealt with the police application on 13 June 2023 had knowledge of the cross-application, but, without explanation, completely failed to comply with the mandatory provisions of DFVPA s 41C. [20] There are clearly important public policy reasons that the legislature has provided (effectively now in all cases) that cross applications should be dealt with before the same court; and prior to 1 August 2023, mandated a test for the court to consider if the applications were to be dealt with separately rather than the default position of being dealt with together, and required the court to give reasons. 19 Exhibit 3 – affidavit of Tam Elabbasi affirmed 13 September 2023, Exhibit TEO4; 1-42; 1-48. 20 Affidavit of AMF affirmed 14 September 2023 [3]-[6], [8]. -- 9 of 11 -- 10 [21] In the circumstances, there is, in my view, an overwhelming argument for the appellant to be granted leave to appeal out of time in order to correct the egregious error on the part of the learned magistrate who dealt with the application on 13 June 2023. There is a fundamental obligation on judicial officers to act judicially, and compliance with mandatory legislation is a key aspect of acting judicially. [22] In respect of the issue of adducing further evidence, it is clear that this court required the further evidence provided in the appellant’s affidavit21 in order to consider the explanations for the failure to appear on 13 June 2023 and the delay in filing this appeal. Accordingly, it is appropriate to grant leave to appeal out of time and to adduce that further evidence from the appellant. Grounds of Appeal 1 & 2 [23] The learned magistrate on 13 June 2023, as identified above, was obliged, pursuant to the then provisions of DFVPA s 41C, to “hear the applications together unless the court considers it is necessary to hear the application separately for the safety, protection or wellbeing of the person named as the aggrieved in the original application”.22 [24] The learned magistrate on 13 June 2023 relevantly stated:- “I am satisfied on review of the available material that it is necessary to make a final order for the protection of the aggrieved which names her children, WMR and AEF as protected persons … and due to the absence of the respondent, that a final order should be made.”23 [25] The learned magistrate concluded that there was “evidence of commission of acts of domestic violence”, but curiously does not appear (at least on the record) to have concluded that “a relevant relationship” existed between the aggrieved and the respondent,24 although it is not disputed that a relevant relationship in fact existed between the appellant and the second respondent. [26] At no stage in the learned magistrate’s decision25 is there any consideration whatsoever, explicitly or implicitly, in respect of the legislative obligation to consider 21 Affidavit of AMF affirmed 14 September 2023. 22 DFVPA s 41C(2)(a). 23 Affidavit of Katherine Morrison sworn 5 October 2023, Exhibit KMM2, 1-2, ll 23-26. 24 DFVPA s 37(1)(a). 25 Affidavit of Katherine Morrison sworn 5 October 2023, Exhibit KMM2, 1-2. -- 10 of 11 -- 11 whether it was “necessary to hear the applications separately for the safety, protection or wellbeing of the person named as the aggrieved in the original application”. [27] It is clear that the learned magistrate was aware at the time of making the order on 13 June 2023 that the appellant’s protection order was before the court and was listed for hearing.26 [28] It follows that there has been a demonstrable error of law, namely a failure to comply with the mandatory provisions of DFVPA s.41C(2)), and the remedy is clear – the appeal should be granted, the final order set aside (a temporary protection order can be made, if required, to continue the relevant provisions of the final order pending further hearing) and the matter remitted to the Brisbane Magistrates Court for rehearing, which of course should proceed as a single hearing of both the original application and the cross-application. Ground 3 [29] Given the reasons set out above, it is unnecessary to consider Ground 3. [30] Orders 1. The period for filing the notice of appeal is extended to 15 September 2023. 2. Appeal allowed. 3. Leave granted for the appellant to adduce further evidence contained in the affidavit of the appellant affirmed 14 September 2023. 4. The final protection order in respect of the second respondent made at the Brisbane Magistrates Court on 13 June 2023 is set aside. 5. The matter is remitted to the Brisbane Magistrates Court to be heard at the same time as the application for a protection order made by the appellant. [31] I will hear the parties on costs and the making of a temporary protection order in favour of the second respondent. 26 Affidavit of Tam Elabassi affirmed 13 September 2023, Exhibit TEO4, 1-40, ll 12-14. -- 11 of 11 --