Bailey (a pseudonym) v Bailey (a pseudonym) [2021] QDC 99

DISTRICT COURT OF QUEENSLAND CITATION: Bailey (a pseudonym) v Bailey (a pseudonym) [2021] QDC 99 PARTIES: BAILEY (a pseudonym) (Appellant) v BAILEY (a pseudonym) (First Respondent) QUEENSLAND POLICE SERVICE (Second Respondent) FILE NO: 2551/2020 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: 9 June 2021 DELIVERED AT: Brisbane HEARING DATE: 25 May 2021 JUDGE: Dick SC DCJ ORDER: Confirm the decision appealed against. Appeal dismissed. CATCHWORDS: Domestic violence – requirement “must ensure” LEGISLATION: Domestic & Family Violence Protection Act 2012 CASES: R v Smith [2004] QCA 417; R v Mokbel [2010] VSCA 11; GKE v EUT [2014] QDC 248; MDE v MLG [2015] QDC 151 COUNSEL: S Fisher for the Appellant The First Respondent appeared on her own behalf I Fraser for the Second Respondent SOLICITORS: Mark Stone Solicitor for the Appellant The First Respondent appeared on her own behalf Queensland Police Service Legal Unit for the Second Respondent -- 1 of 14 -- 2 Introduction [1] This appeal is brought pursuant to s 164 of the Domestic & Family Violence Protection Act 2012 (the Act). The Appellant appeals against the decision of the Magistrates Court made on 11 August 2020 that a domestic violence protection order be issued pursuant to s 51(1) of the Act. [2] The Commissioner of Police has elected to become a respondent in the proceeding. Jurisdiction to amend their Notice of Appeal [3] The court has power as well as jurisdiction to amend the notice of appeal, under s 224 of the Justices Act 1886. The Appellant furnished an amended notice of appeal to the court on 5 November 2020. By an: intervention notice – registrar’s reference (DCA8) dated 13 November 2020, the registrar has referred to the court the amended notice of appeal. This was an intervention on the initiative of the court. The new grounds of appeal omitted Ground 3 of the original appeal and the proposed additional appeal ground is as follows: “The court erred in law by failing to ensure that the appellant as respondent in the proceedings MAG-0083757-20(5) who was before the Magistrates Court in person on 11 May 2020 failed to understand any of the matters referred to in s 82(2) of the Domestic & Family Violence Protection Act 2012 as required by s 51(7).” [4] The new ground of appeal is very similar to the original Ground 2. Accordingly I grant leave for the amended notice of appeal. Background [5] The parties were married and there is no argument there is a relevant relationship within the meaning of the Act. At the time of the Magistrates Court hearing the parties had separated. Legislative framework [6] Section 51 of the Act sets out the elements that a court must be satisfied of before it may exercise its discretion to make a domestic violence order by consent: “(51) A court may make domestic violence order by consent: -- 2 of 14 -- 2 (1) if the parties to a proceeding for a domestic violence order, or a variation of a domestic violence order, consent to the making of the order, or do not oppose the making of the order, the court may make the order— (a) if the court is satisfied that a relevant relationship exists between the aggrieved and the respondent; and (b) without being satisfied as to any matter mentioned in— (i) for a proceeding for a protection order— section 37(1)(b) or (c); or (ii) for a proceeding for a temporary protection order—section 45(1)(b); and (iii) whether or not the respondent admits to all or any of the particulars of the application. [7] Section 51(5) of the Act provides: “Before making or varying a domestic violence order under this section, the court may conduct a hearing in relation to the particulars of the application if, in the court’s opinion, it is in the interests of justice to do so.” [8] Section 145— Evidence (1) In a proceeding under this act, a court— (a) is not bound by the rules of evidence or any practices or procedures applying to courts of record, and (b) may inform itself in any way it considers appropriate. (2) … (3) If the court is to be satisfied of a matter, the court need only be satisfied to the matter on the balance of probabilities, (4) To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order. [9] Relevantly, for the present purposes, s 84(2) of the Act imposes an obligation upon the Magistrate to ensure that the parties understand the effect of an order: “(2) If a court is about to make a domestic violence order, and the respondent is before the court, the court must ensure the respondent understands— -- 3 of 14 -- 3 (a) the purpose, terms and the effect of the proposed order,… (v) the consequences of a domestic violence order as set out in sub-paragraphs (ii) to (iv) can only be avoided if the respondent successfully appeals the domestic violence order; and (b) the type of behaviour that constitutes domestic violence; and Note—see the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12 which define the terms domestic violence, emotional or physical abuse and economic abuse (c) what may follow if the respondent contravenes the proposed order; and (d) that the respondent may apply for a variation of the order.” [10] The requirement in s 84(2) of the Act arises when a court is “about to make a domestic violence order” and therefore, is separate to the requirement in s 85 of the Act which imposes an obligation on the court, once an order has been made, to provide a written explanation of the order and its effect. The obligation in s 84(2) pre-dates the making of the order while that in s 85 post-dates the order. [11] Section 84(5) of the Act relevantly states, “failure to comply with this section does not invalidate or otherwise affect a domestic violence order.” The parties agreed that s 84(5) of the Act is essentially a “presumption of regularity provision” which provides that, notwithstanding non-compliance with s 84, an order will be valid until such time as it is set aside. [12] Finally, s 84(4) of the Act provides: “The process that the court adopts to comply with the section may include using services of, or help from, other people to the extent that the court considers appropriate. Examples of services or help that the court may consider appropriate- (1) the court may arrange for the clerk, or a public service employee at the court, to explain the order to an aggrieved or respondent. (2) a professional interpreter or the telephone interpreter service (but not a relative or friend of the aggrieved or respondent) may be used to explain the order to an aggrieved or respondent -- 4 of 14 -- 4 (3) explanatory notes prepared for aggrieveds or respondents, including non-English speakers may be given to an aggrieved or respondent (4) the court may arrange for the local government indigenous regional council under the Local Government Act 2009, community justice group or group of elders for someone to explain the order to an aggrieved or respondent (5) the court may arrange with a non-government service provider for a disability case worker to explain the order to an aggrieved or respondent who has a disability.” The documents [13] On 28 May 2020, His Honour Magistrate Courtney issued a temporary protection order and issued trial directions. Attached was An Explanation of Domestic Violence Orders. [14] Each party was required to file a statement of facts in contention. [15] The Appellant’s counsel who later represented him in the Magistrate’s Court, submitted a lengthy submission in which he referred to the relevant sections of the Act, the burden of proof, and referred to relevant authorities (GKE v EUT McGill SC DCJ [2014] QDC 248 and MDE v MLG & The Queensland Police Service Morzone QC DCJ [2015] QDC 151). [16] It is very apparent from that submission that the Appellant’s legal representative clearly understood the provisions of the Act, appreciated what constituted domestic violence and referred in depth to relevant case law. The hearing [17] At the hearing the First Respondent was represented by counsel and as I have indicated the Appellant was represented by a barrister, who was acting on a direct brief from the Appellant who is a solicitor. At the outset, counsel for the First Respondent advised the Magistrate: “Your Honour, I am pleased to say this matter is – we’ve had discussion – and it’s resolved. And after careful consideration of the affidavit material and where both these parties currently sit with regard to contact and ongoing proceedings through the courts, it’s been agreed and accepted that a two year protection order on standard terms and condition would be suitable and appropriate in this particular case. -- 5 of 14 -- 5 Mainly, the reason, your Honour, are that there are children the children are old. And there’s no contact at all between the father and the children. The only outstanding proceedings are the property proceedings going through the Federal Circuit Court, and they should be satisfied within two years, one would hope. That being said, also, there’s been an interim order in place and there’s been no breaches or a suggestion that any breach is either by the respondent. So it’s obviously at your Honour’s discretion, but I think, in this particular case, may be a two year order would be appropriate and the only additional condition I’d ask that go onto the order would be that the respondent does not give or distribute personal information, like the dates of birth, home address, email details, to a third party, because that was some of the allegations that was in the material, and that is a concern that the respondent has been distributing information to third parties, which has been causing phone call and contact by third parties and causing distress; that’s a variety of different places. [18] Later at p 3, l 39, the transcript records: BENCH: Sorry. So you are seeking to resolve the matter by way of a consent without admission order in the mandatory conditions or by way of an undertaking? MR GLENDAY: By – by way of an order… BENCH: Order MR GLENDAY: … without admission for two years. BENCH: Yes. MR GLENDAY: On standard conditions. BENCH: Yes. MR GLENDAY: With that first condition on and then then this second condition on as well. BENCH: A no contact condition except in relation to parental and contact issues concerning the children. MR GLENDAY: Yeah. Notwithstanding these orders, the respondent may have contact with the applicant for the purpose of communicating in relation to the children provided such communication is by -- 6 of 14 -- 6 email only to kids contact. I’ve got this – you can – I can hand this up our Honour. BENCH: Can I just show both of you something which is the standard wording in the Court, in my Court I should say, no in every Court. MR GLENDAY: Yes your Honour. BENCH: And I’m not suggesting that these are the no contact conditions that you want inserted, but I’ve marked it – but I have marked the exception, which is, I think, words I’ve looked towards. MR GLENDAY: Yes. BENCH: I don’t have any difficulty with the wording of this exception to the no contact I can live with that. MR LAING: Yes. MR GLENDAY: Yes, it’s very similar in any event your Honour. BENCH: Yes. MR GLENDAY: It’s just more specific with the email address. MR LAING: Limiting this --- MR GLENDAY: Yeah. BENCH: Are there – just jumping around for the no contact and about the term, are there conditions of any bail undertaking in relation to the fraud charges? MR GLENDAY: I will check them. AGGRIEVED: For me, I am only allowed to contact Mr Bailey via his lawyer. MR GLENDAY: Only contact via his lawyer. -- 7 of 14 -- 7 BENCH: Let’s get a copy of that undertaking just to have a look at that for completeness. … BENCH: So if the order was made in these terms, by consent without admissions … MR GLENDAY: Yes Your Honour. BENCH: … and the mandatory – I should use the correct phraseology, standard conditions, plus not to contact, attempt to contact, or ask someone else to contact the aggrieved except (1) through a lawyer (2) except in accordance with an exception deed and I’ve pointed out to both of you --- MR GLENDAY: Yeah. BENCH: --- (3) and no to disclose any personal details of the aggrieved to any third party other than in circumstances by way of lawful requirement or request. MR GLENDAY: I think that covers it your Honour, yes thank you. [19] MR LAING: Thank you, your Honour. Enquiry [20] I enquired of the parties by email as to the nature of the documents handed down. The First Respondent said it was a standard conditions form. The Appellant said he did not remember, and the Second Respondent was not present. I find it highly likely it was a standard order as set out in the final order. Arguments [21] The Appellant objected to certain portions of the First Respondent’s submissions. I have not relied on those passages. The Appellant argues that nothing in the hearing transcripts indicates that the Appellant personally consented to the protection order made on 11 August 2020 and that s 51 of the Act requires the parties to “consent to the making of the order, or do not oppose the making of the order”. -- 8 of 14 -- 8 [22] In the schedule to the Act, consent is defined to mean “consent freely and voluntarily given by a person with capacity to give their consent.” [23] The Appellant referred to AP & Anor v RD & Anor [2011] NSWSC. At [20] Justice Brereton said effectively that the Surrogacy Act required evidence of consent either in person in court or by written instrument of consent, verified by affidavit of an attesting witness. In that particular case, a counsellor’s report had words to the effect that the birth parents are “quite comfortable with their names being removed from the birth certificate” and that they were “quite informed as to the consent they were giving and its consequences”. His Honour found that this did not constitute an acceptable evidence of informed consent, freely and voluntarily given by a capable party (emphasis added). [24] In respect of s 51 of the Act, what is required is the person consent or not object to the proposed order (emphasis added). The transcript indicates that the Appellant was silent for the duration of the proceedings but his barrister did take part in the discussion with the bench about the proposed orders. [25] The First Respondent argues that the Act provides that the Magistrate may inform himself in any way he considers appropriate and further provides that the court only needs to be satisfied of the matter it is deciding based on the balance of probabilities. The First Respondent argues that the Appellant’s affidavit clearly states that he was a practising solicitor and that the Magistrate acted in the knowledge that the Appellant was legally represented by competent counsel and the discussion that took place in the courtroom. The Magistrate had sufficient evidence to establish on the balance of probability that the Appellant either consented to or did not object to the making of the order. [26] In respect of the Second Respondent, the approach it adopts before the court is limited to addressing the procedures and relevant statutory provisions in case law associated with the appeal process, should any such issue arise. The Second Respondent points out that it is the Appellant’s position that the evidence before the Magistrate was insufficient for him to conclude that the Appellant had given free and informed consent to the making of the order because the Magistrate did not personally engage with the Appellant as required by s 84(2) of the Act. -- 9 of 14 -- 9 [27] The Second Respondent points out that as the obligations in s 84 arise prior to the making of the order, compliance with the section is clearly relevant to the question of whether the court may be satisfied of the requirement under s 51(1) that the Respondent consents to or does not oppose the making of the order. [28] The Second Respondent says that for the purpose of the present appeal, the following issues arise: (1) Whether s 84(2) of the Act imposes an obligation that a Magistrate engage with the respondent personally to ensure that he or she understands what they are consenting to or not opposing. (2) If so, whether the failure to comply with s 84(2) invalidates any order purportedly made under s 51. [29] The Second Respondent says that in relation to the first issue, s 84(2) of the Act does not go so far as to say the court must engage with the respondent personally. The obligation cast by the section is for the Magistrate to take steps to ensure that the respondent understands the terms of the order to which they are proposing to consent. Where a respondent is self-represented, a Magistrate would almost certainly be required to personally question the respondent to ascertain their understanding of the proposed order. [30] The Second Respondent argues, however, that the Appellant was represented by counsel and therefore the critical question would be whether the Magistrate could rely on the representation of the Appellant’s legal representatives as to the Appellant’s consent and understanding. The Second Respondent says that ultimately the question for the court is whether by engaging with both counsel in the presence of the Appellant, the learned Magistrate discharged his obligation under s 84(2) of the Act to ensure that the Appellant understood what he was consenting to or not objecting to. [31] The Second Respondent argues that the Magistrate was entitled to rely on submissions by the then legal representatives as being informed by the Appellant’s instructions and further the learned Magistrate was entitled by the presence of the -- 10 of 14 -- 10 Appellant in court to assume that the Appellant was aware of what was happening and what was being said. [32] The Second Respondent notes that the submissions of the Appellant do not allege that his then barrister acted contrary to instructions, or that the Appellant had not understood what was happening. Finding [33] I am satisfied that the Magistrate did ensure that the Appellant consented to or did not object to the order. I am so satisfied because of the discussion that took place between the bench and the legal representatives while he was present in court and although the Appellant has said he does not remember seeing the document that was handed down, I do not believe that the barrister would not have taken instructions on the document which was clearly the standard form used by the Magistrate. [34] However, the matter does not stop there. Under s 84(2) of the Act, if the court is to make a domestic violence order and the respondent is before the court, the court must ensure that the respondent understands: (a) the purpose and effect of the proposed order; (b) the type of behaviour that constitutes domestic violence; and (c) what may follow if the respondent contravenes the proposed order; and (d) that the respondent may apply for a variation of the order. [35] It is generally accepted that there has been no prior judgment precisely on this point. [36] I have been referred to a case of JC v KP [2017] QDC 175 in which His Honour Judge Long was dealing with the provisions of s 51 of the Act and in respect of an application and order which was made when the Appellant was not legally represented (emphasis added). In that case, His Honour found that the consequences of such an order were not explained sufficiently to an unrepresented respondent. His Honour said: “…it is clear that his expressed consent to making of the order, proceeded upon his false understanding that there would be no such consequence and therefore an incorrect understanding that should have been apparent to the Magistrate.” (emphasis added) -- 11 of 14 -- 11 [37] Because there is no decided case on the precise point, I have looked to other statutes where there is an admonitory or imperative requirement on a judicial officer. [38] Section 16F(2) of the Crimes Act 1914: “Where a court imposes a federal sentence on a person and makes a recognisance release order in respect of sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequence of making the recognisance release order, including, in particular, an explanation: (a) that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any specified in the order) the period of service in the community equal to the balance of the sentence; and (b) of the conditions to which this order is subject; and (c) the consequences that may follow if a person fails without reasonable excuse, to fulfil those conditions; and (d) any reconnaissance given in accordance with the order may be discharged or varied under s 20AA.” [39] The question of this requirement was dealt with in a matter of R v Smith [2004] QCA 417. At para [9], then President McMurdo said: “It is unnecessary to determine in this case whether s 20A(5)(c)(i) could then be invoked. The sentence imposed complied with s 20(1) of the Act. The judge should have explained the sentence as required by s 16F(2) but Mr Smith is competently legally represented and there can be no question that he now well understands the effect of the sentence imposed.” [40] In a different factual scenario in R v Mokbel [2010] VSCA 11, the court was dealing with a sentence that the appellant argued was null and void because the Judge at first instance had not complied with s 16F(1) of the Crimes Act 1914 (Cth). In fact, at the time of the sentence, neither the appellant nor his defence counsel appeared. As his Honour recorded in his reasons, defence counsel “did not accept the invitation to attend the plea hearing and accordingly did not advance any submissions”. The submission for the applicant, by reason of s 16F(1) of the Crimes Act, the Judge when fixing a non-parole period was obliged to: “Explain or cause to be explained to the applicant in language likely to be readily understood by him the purpose and consequences of fixing that non-parole period. -- 12 of 14 -- 12 The language of s 16F(1) is imperative: The court ‘must explain or cause to be explained’ the argument for the applicant was that the giving of the necessary explanation was therefore ‘an essential step in the process’ of imposing sentence, such that the judge’s failure to comply rendered the sentence null and void. In our view, this submission must be rejected. As the High Court made clear in Project Blue Sky Inc v Australian Broadcasting Authority, the resolution of the question such as this depends upon ‘whether it was a purpose of the legislation that an act done in breach of the provision should be invalid’. Part 1B of the Crimes Act deals with the sentencing, imprisonment and release of federal offenders. Section 16F falls in Division 3 of Part 1B, headed ‘Sentences of Imprisonment’. There is nothing, in our view, in the section itself or otherwise in Part 1B to suggest that it was a ‘purpose of the legislation’ that a failure ‘in circumstances such as these’ to explain the non-parole period to the sentenced person should render the sentence imposed null and void.” As Weinberg JA pointed out in the course of argument, s 16F is a beneficial provision, enacted to ensure that the person being sentenced properly understands the ‘purpose and consequences’ of the fixing of a non-parole period. In the present case, the applicant had voluntarily absented himself and hence had denied himself the opportunity to receive the explanation for which Parliament had made provision. There was, accordingly, no occasion for the explanation to be given. The applicant’s own action had made compliance impossible.” [41] In this case the following points must be recognised. • The Act does not require that the Magistrate engage personally with the respondent. • Sub-section 84(4) of the Act provides that a court can use services or help from other persons to assist the court in discharging its obligations under s 84. Some examples are provided and for the most part, if not all, the person giving the explanation is not a legally qualified person. • The Appellant is a qualified solicitor. • The Appellant was represented in court by competent counsel. • The Appellant was in court at the time the order was made. • There was a discussion between the bench and the two barristers concerning the order. -- 13 of 14 -- 13 • The order was made by consent or without objection. • Section 85 of the Act provides the court must include with a copy of the orders served on the respondent, a written explanation containing the relevant material that is referred to in s 85. [42] I therefore have come to the view that the Appellant was, as said in Smith, “competently legally represented and there can be no question that he now well understands the effect of the [order] imposed”. [43] Section 169 of the Act sets out the powers of an appellate court: “(1) In deciding an appeal, the appellate court may- (a) confirm the decision appealed against; or (b) vary the decision appealed against; or (c) set aside the decision and substitute another decision; or (d) set aside the decision appealed against and remit the matter to the court that made the decision. (2) The decision of the appellate court upon appeal shall be final and conclusive.” [44] In this case I confirm the decision appealed against and dismiss the appeal. -- 14 of 14 --