ADI v EGI [2020] QDC 13

DISTRICT COURT OF QUEENSLAND CITATION: ADI v EGI [2020] QDC 13 PARTIES: ADI (appellant) v EGI (respondent) FILE NO/S: 1190/19 DIVISION: Appeal PROCEEDING: Appeal pursuant to Domestic and Family Violence Protection Act 2012 (Qld) ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 21 February 2020 DELIVERED AT: Brisbane HEARING DATE: 5, 7, 14 and 19 February 2020 JUDGE: Smith DCJA ORDER: 1. The application for a stay of the Magistrate’s decision is refused. CATCHWORDS: MAGISTRATES – ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - Appeal - whether stay of Magistrates decision to dismiss application should be ordered pending the appeal Domestic and Family Violence Protection Act 2012 (Qld) ss 3, 4, 37, 44, 46, 47, 78, 91, 92, 145, 166 Human Rights Act 2019 (Qld) ss 17, 26, 31, 48 ADI v EGI [2019] QMC 8 March 2019, cited Aldridge v Keaton [2009] FamCAFC 106, applied Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, cited CPS v CNJ [2014] QDC 47, cited CRD v MMM Family Court decision 12 December 2018, cited SCJ v ELT [2011] QDC 100, cited -- 1 of 9 -- 2 Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, cited COUNSEL: Self-represented appellant No appearance for the respondent SOLICITORS: Self-represented appellant Introduction [1] This is an application by the appellant for a stay of the decision of the Magistrates Court at Brisbane on 8 March 2019 to dismiss an application of the appellant to vary a protection order. [2] This court has the power to stay this decision under section 166 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”). Principles [3] The Act does not set out the principles to be applied in deciding on whether or not to grant a stay in these matters. [4] In the civil jurisdiction an appellant for a stay of the judgment does not need to show there are exceptional circumstances but it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional and that a successful party should be entitled to the fruits of its judgment.1 Relevant considerations include the prospect of the appeal succeeding, whether a refusal to grant a stay would render the appeal nugatory and whether irremediable harm would be suffered if a stay were not granted.2 [5] In the Family Court jurisdiction, the principles involved in granting a stay were discussed in Aldridge v Keaton.3 [6] It was said it was a discretionary decision for the court with consideration to the following factors: • the onus to establish a proper basis for the stay is on the appellant for the stay. However it is not necessary for the appellant to demonstrate any “special” or “exceptional” circumstances; • a person who has obtained a judgment is entitled to the benefit of that judgment; • a person who has obtained a judgment is entitled to presume the judgment is correct; • the mere filing of an appeal is insufficient to grant a stay; • the bona fides of the appellant; 1 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322 at [12]. 2 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322 at [13]-[33]. 3 [2009] FamCAFC 106 at [18]. -- 2 of 9 -- 3 • a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties; • a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay; • some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case; • the desirability of limiting the frequency of any change in a child’s living arrangements; • the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and • the best interests of the child the subject of the proceedings are a significant consideration. [7] Obviously some of these features do not apply in the Domestic Violence jurisdiction, however some do. [8] Obviously I need to have regard to the relevant provisions of the Act and the Human Rights Act. Appeal [9] The notice of appeal alleges: (a) The Magistrate erred in relying on the judgment of Hogan J in the Family Court as it does not prove any fact. (b) The Magistrate failed to have regard to the respondent’s disregard of the protection order since 20 March 2015 contrary to section 91(3)(c) of the Act. (c) The Magistrate erred in failing to consider the provisions of section 92 of the Act. (d) The Magistrate erred in considering the appellant’s affidavit filed 7 November 2017 was not dissimilar from earlier affidavits filed by the appellant. (e) The Magistrate erred in not considering and making findings based on the affidavit filed 7 November 2017. (f) The Magistrate erred in not considering and making findings based on the affidavits filed 11 January 2019 and 5 March 2019 and police subpoenaed material. (g) The Magistrate erred in finding by relying on the Family Court judgment that the appellant used in the Magistrates Court as “a vehicle fuelled and entrenched by zealous subjectiveness”. (h) The Magistrate erred in his finding that the Family Court orders provided sufficient protection for the appellant and the children. (i) The Magistrate erred in failing to afford the appellant due process and procedural fairness. Background -- 3 of 9 -- 4 [10] On 29 March 2015, a protection order pursuant to the Act was made in the Magistrates Court at Ipswich for two years. This order, inter alia, prohibited the respondent from contacting or approaching the appellant except to attend her place for contact with their children as agreed to in writing between the parties or in compliance with a court order or in any agreed conference, counselling session or mediation session or for contact authorised by the Department of Child Safety. [11] The order was in force until 19 March 2017. [12] On 1 March 2017, the appellant filed an application to vary the order to prohibit any contact by the respondent with the appellant and for the order to be extended until 20 March 2022. The effect of any order would be to prevent contact with the appellant entirely and potentially the children. [13] The material reveals that the application was held in abeyance until after a decision of Hogan J in the Family Court of Australia. [14] On 12 December 2018, Hogan J gave reasons for judgment. Her Honour ordered that the children MD and LD live with the appellant. The appellant and respondent had equal shared parental responsibility for the major long-term issues of the children. [15] The appellant and the respondent were to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility. Each parent had responsibility for daily decisions about day to day care, welfare and development of the children. The parties would spend time with the respondent as might be agreed by the parties in writing, but failing an agreement, each alternative weekend and for half of the school holidays. Orders were made as to how the appellant was to collect the children. Orders were made as to the communication with the children. And further, orders were made as to the property of the parties. [16] Hogan J in her reasons for judgment,4 noted that the matter first proceeded to trial before Judge Howard in the Federal Circuit Court between 8 and 11 December 2014. The parties had agreed for final parenting orders by consent which were made on 12 December 2014. Despite this, the appellant commenced an appeal against the parenting orders on 9 January 2015. This appeal was dismissed by the Full Court of the Family Court on 4 February 2016. However, the implementation of the December 2014 orders broke down. Further orders were made by Judge Howard in 2016 but despite this, the parties were unable to resolve the matters between them. [17] At paragraph 236 to 239 of the judgment, Hogan J said: “[236] I do not accept the mother’s contention that the consequence of the previous operative parenting orders has been to remove the little protection afforded to her and the children by operative protection orders. The previous parenting orders have always provided for changeovers to occur in public where possible as many of the same have been ordered to occur at school. [237] I am not persuaded on the evidence before me that the father continues to commit domestic violence against the mother. I’m not persuaded that, in attempting to have the mother 4 CRD v MMM decision 12 December 2018. -- 4 of 9 -- 5 comply with the terms of the operative parenting orders at times that the father has committed domestic violence. I do not accept that he has continued to try to isolate the children or the mother from their friends: that previously she friends who may have chosen to act to in a certain way is not necessarily the fault or responsibility of the father. [238] Given that I accept that the father does not know the mother and children’s current residential address (noting the mother has not been required to disclose this in these proceedings since her unilateral relocation of the children to live in Stafford towards the end of 2016). It seems to me that any conditions that he not approach within a specified distance of the mothers residence is problematic in that he might inadvertently breach the same without even knowing that he had. [239] Whilst I accept that, during the history of these long running parenting proceedings, it may well have been that the father has threatened the mother with a return to court and/or that he will seek that the children live primarily with him, such comments need to be assessed in the context of the mothers actions in simply refusing, on occasions, to comply with operative parenting orders; similarly, the father’s threats to seek to involve the independent children’s lawyer at various times needs also to be seen in this light. I am not persuaded in the circumstances of this case that in seeking to have the mother comply with parenting orders, the father has acted in a way which constitutes family violence.” [18] After the decision of Hogan J, the matter came back onto hearing before the Magistrate. [19] The Magistrate dismissed the appellant’s application to vary the domestic violence order. [20] His Honour had regard to s 91 of the Act which provides as follows: “When court can vary domestic violence order (1) A court may vary a domestic violence order— (a) on an application to vary it; or (b) on its own initiative under section 42 or 43. (2) Before it varies a domestic violence order, the court must consider— (a) the grounds set out in the application for the protection order; and (b) the findings of the court that made the domestic violence order. (3) Also, before the court varies a domestic violence order— (a) if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the court must consider the respondent’s failure to comply with the order; or -- 5 of 9 -- 6 (b) if an intervention order has previously been made against the respondent and the respondent has complied with the order—the court may consider the respondent’s compliance with the order. (4) However, the court must not decide to vary a domestic violence order merely because the respondent has complied with an intervention order previously made against the respondent. (5) If the court varies a domestic violence order, the court must make a copy of the domestic violence order that states— (a) the details of the domestic violence order after the variation; and (b) the conditions of the domestic violence order after the variation. (6) The copy of the domestic violence order prepared by the court under subsection (5) is called the varied order.” [21] His Honour had regard to the protection order and the grounds with respect to that dated 20 March 2015. [22] His Honour had regard to the decision of Magistrate Cosgrove.5 His Honour noted that the affidavit relied on 24 February 2015 was not dissimilar in context to the affidavit relied on by the appellant dated 6 November 2017. His Honour noted that the application to vary a domestic violence order is a discretionary one. His Honour had regard to the judgment of Hogan J and noted “it appears to me that this court has been used as a vehicle fuelled and entrenched by zealous subjectiveness”. He exercised his discretion to not vary the order. [23] The matter was mentioned on 5 February 2020 at a registrar’s reference. The appellant does not yet have a copy of all of the relevant transcripts. I advised her to apply for these pursuant to Recording of Evidence Regulation 2018 (Qld). [24] Also, the appeal had not been personally served on the respondent. This has now been done.6 [25] The matter has been listed for hearing on 29 May 2020 and an order has been made for the appellant to file an outline of submissions. Appellant’s material [26] The appellant has relied on an affidavit to justify her contention that a domestic violence order should be made. [27] I have carefully read the affidavit,7 and the earlier affidavits relied on.8 [28] In the affidavits, the appellant alleges that there have been numerous acts of domestic violence against her and the children. I have regard to those allegations. I note that in the most recent affidavit she alleges domestic violence has occurred since the 5 ADI v EGI [2019] QMC 8 March 2019. 6 Exhibit 2. 7 Sworn 6 February 2020. 8 Affidavits sworn 7 November 2017; 11 January 2019 (I note the Magistrates Court has stamped it 11 January 2018 but this is incorrect) and 5 March 2019. As to the last affidavit, this was not on the court file but the appellant has provided a copy of this to the court. -- 6 of 9 -- 7 dismissal of her application in March 2019. She alleges this has occurred on at least 24 April 2019,9 24-26 May 2019,10 6 May 2019,11 14 August 2019,12 4 September 2019 to 2 October 2019,13 and 25 December 2019.14 [29] She also relies on the provisions of the Human Rights Act 2019 (Qld).15 [30] On oral submissions before me on 7 February 2020, the appellant submitted: (a) The affidavit material proves there has been domestic violence. (b) Gave details to me about the alleged harassment. (c) The respondent was charged with breaching the protection order but this was dismissed. (d) He deliberately tried to ruin Christmas day. (e) He allowed the children to be sunburnt. (f) One of the children was in tears after talking to the respondent in October 2019. (g) The Magistrate had refused to allow her to cross-examine the respondent. (h) The magistrate found there had been a breach of the protection order which was admitted by the respondent. (i) As to an email dated 2 October 2019, the respondent was aware the appellant was not back in Australia. (j) One of her children has autism, PTSD and an anxiety disorder. (k) The respondent has stalked her and tried to locate her. [31] In further submissions made before me on 14 February 2020, the appellant has pointed out that if she wins the appeal and the matter is remitted to the Magistrates Court for rehearing then she may have to wait about seven months before a trial may be heard. Prospects of success [32] Without reaching a concluded view on the material I cannot conclude the appellant will win the appeal. Indeed she could lose it. [33] It appears to me the Magistrate had regard to the material filed by the appellant and the submissions made. Also the Magistrate placed great weight on the decision of the Family Court. That was a relevant consideration under section 78 of the Act. [34] As the evidential points raised in the notice of appeal, the fact is section 145 of the Act provides the court is not bound by the rules of evidence and the court may inform itself in anyway it considers appropriate.16 9 Para 70 of affidavit sworn 6 February 2020. 10 Para 74 of affidavit sworn 6 February 2020. 11 Para 75 of affidavit sworn 6 February 2020. 12 Para 76 of affidavit sworn 6 February 2020. 13 Paras 80-88 of affidavit sworn 6 February 2020. 14 Para 89 of affidavit sworn 6 February 2020. 15 Sections 17, 26 and 31. 16 The Magistrate referred to this section in his reasons, see [26]. -- 7 of 9 -- 8 [35] In respect of the allegation the Magistrate failed to have regard to the failure to comply with the protection order, the fact is the Magistrate had regard to the appellant’s affidavit material.17 [36] It is true that the Magistrate did not refer to section 92 of the Act but that section was not to the point - the variation was not sought by the respondent such that it might adversely affect the appellant or any named person. [37] As to the allegation that the affidavit was similar, that was not an irrelevant consideration. The power to make the variations was a discretionary one and section 91(2)(b) of the Act required the court to consider the findings made by the original court. This entailed an examination of the affidavit previously made. The fact it was similar was very relevant. [38] The Magistrate did have regard to the affidavits filed in 2019.18 As to the subpoenaed material, the Magistrate said he had regard to the material which does not exclude that material. [39] As to the Magistrate’s findings of the Appellant’s use of the Magistrates’ court, such a finding may have been open on the evidence. [40] Finally as to the Family court orders, again the Magistrate was entitled to have regard to those under section 78 of the Act. [41] As I have said though I have not reached any concluded view and have not yet had the benefit of the appellant’s written outline of argument. Other considerations [42] In reaching my decision I have regard to the provisions of the Act in particular ss 3, 4, 37, 44, 46 and 47. [43] I also have regard to s 48 of the Human Rights Act 2019 (Qld). [44] The history of the matter leans against the granting of a stay for the following reasons: (a) It is now almost 12 months since the decision of the Magistrate. There has not been adequate explanation for the delay in making this application. (b) I consider it is inappropriate for this court to make the orders on an unchallenged affidavit material in appeal proceedings. The appellant has her rights to apply to the Magistrates Court for a fresh order on fresh material, where the merits or otherwise of the application can be examined. That is the most appropriate forum for this matter. The fact is the District Court is concerned with whether the Magistrate erred here.19 (c) A stay might well lead to an interference with orders made by the Family Court. The court is to have specific regard to any family court orders under section 78 of the Act. 17 Reasons at [14], [15], [19], [23] and [28]. 18 Reasons at [28]. 19 This appeal is to be conducted as a rehearing - see SCJ v ELT [2011] QDC 100 at [24] and CPS v CNJ [2014] QDC 47 at [24]. To succeed, the appellant needs to show legal, factual or discretionary error - see Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4]; [2009] QCA 84. -- 8 of 9 -- 9 [45] I further note with respect to the allegations since the Magistrates’ court decision, no application has been made to adduce this further evidence on the final appeal. [46] As I have said in my view it is far more appropriate for these issues of fact to be decided in the Magistrates’ court. As I indicated to the appellant during argument, it would be appropriate for a different Magistrate to hear the fresh application. Conclusion [47] In all of the circumstances in the exercise of my discretion I refuse the application for a stay. -- 9 of 9 --