ECW v ECW [2018] QDC 166

DISTRICT COURT OF QUEENSLAND CITATION: ECW v ECW [2018] QDC 166 PARTIES: ECW (Mr) (applicant) v ECW (Ms) (respondent ) FILE NO/S: BD787/18 DIVISION: Civil PROCEEDING: DV Appeal DELIVERED: 3 August 2018, Ex tempore HEARING DATE: 03 August 2018 DELIVERED AT: Brisbane JUDGE: Horneman-Wren SC DCJ ORDER: 1. Appeal allowed. 2. Matter to be remitted to the Magistrates Court to be heard and determined according to law. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – APPEAL – whether the acting magistrate heard and determined the application to vary the protection order according to law. APPEARANCES: Mr ECW (self-rep) for the application Ms ECW (self-rep) for the respondent [1] On 11 October 2016, Ms ECW made application for a protection order under the Domestic and Family Violence Protection Act 2012. The respondent named in the application was Mr ECW. [2] At section 6 of the application in the standard form, the applicant was required to state the grounds as to why a protection order is necessary or desirable to protect her as the aggrieved. In answer to that section of the form, Ms ECW wrote ‘Please see attachment’. [3] Attached to the application was a three-page, typewritten attachment which identified, in response to section 6 of the application, allegations of verbal abuse and sexual abuse and controlling behaviour as the grounds as to why a protection order was necessary or desirable. -- 1 of 7 -- 2 [4] The following day, 12 October 2016, a temporary protection order was made by a Magistrate in Brisbane. That temporary protection order named Ms ECW as the aggrieved and Mr ECW as the respondent. Named persons protected by the order included three children of the ECWs. [5] After a hearing and, as I understand it, by consent, the Magistrate who made the original temporary protection order, varied that order on 3 November 2016. The varied temporary protection order removed an associate of the aggrieved who had been included as a named person protected by the original order, but otherwise named the three children as named persons. [6] On the 4th of May 2017 and, as I’m informed by the parties, also by consent, a domestic violence order by way of a protection order was made. That protection order, again, named the three children as persons protected by the order. Amongst other things, that protection order required by order number 7: The respondent be of good behaviour towards the named persons and not commit associated domestic violence against the named persons and not to expose the children to domestic violence. [7] By order 8 it also prohibited the respondent from: …contacting or attempting to contact, or asking someone else to contact, the named persons. [8] There was a provisio to that condition. It did not apply: … when having contact with a child or children as set out in writing between the parties or in compliance with an order of a Court, or when having contact authorised by a representative of the Department of Communities, Child Safety, with the child or children. [9] By order 9, the respondent was: …prohibited from following or approaching to within 100 metres of named persons when the named persons were at any place. [10] There was a proviso to that order as well that it: …did not apply when having contact with a child or children as set out in writing between the parties or in compliance with an order of a Court, or when having contact authorised by a representative of the Department of Communities, Child Safety, with the child or the children. [11] There was a similar condition, by order 10, prohibiting the respondent from attending or going within 100 metres of the school or other premises where a child of the aggrieved attends for the purpose of education or childcare and named two schools in that regard. It was also subject to a similar proviso to that which applied to each of orders 8 and 9. [12] By application filed on 15 January 2018, Mr ECW sought a variation of the domestic violence order. In it, at section 5 of the standard form, he indicated that he wanted a variation to the conditions of the order and referred to an attachment which responded to the details required to be provided for such variation. He also indicated that he -- 2 of 7 -- 3 wanted a variation to the persons named in the order, nominating two of the children who were named persons under the protection order. [13] In the section of the standard form requiring reasons to be given in support of the application to vary the persons named in the order, Mr ECW said: These are my two sons who were not involved in the incident that occurred on 7 October 2016 between my daughter and myself. The police interviewed these children and concluded that their allegations were convoluted and rehearsed. They concluded that the allegations were unfounded and probably did not happen. They have scribed that the children were sent time and time again by their mother to tell “what they had been told before”. The children recounted events in the first person even though they were not at the incident. See attached transcript of the report number XXX. Under operation name Diligent 16 see attachment C, Reasons to Remove Child. [14] Amongst the variations to the orders sought, Mr ECW sought variations to orders 3 and 8. Order 3 related to contact between Mr ECW and the aggrieved. Order 3 prohibited him from contacting, or attempting to contact, or asking someone else to contact, the aggrieved with certain exceptions. It seems that the reasons for seeking a variation to order 3 were the applicant had previously requested that all correspondence be directed to her lawyers and that that was no longer possible as Ms ECW was no longer legally represented. [15] Having been served with the application to vary the protection order, Ms ECW, on 7 February 2018, filed an affidavit. At section 2 of that affidavit, over six pages, Ms ECW stated her grounds for objection to the variations sought by the respondent. In it she addressed a number of issues including, at paragraph 93, reference to a family report which had been provided in proceedings in the Federal Circuit Court of Australia, as I understand it, concerning children’s matters. That report, prepared by the Family Consultant, Laura Dodds, dated the 18th of January 2018, was exhibited in whole as annexure D to Ms ECW’s affidavit. [16] The report itself runs for some 32 pages. Without descending into its detail to any great extent, it includes at paragraph 124 the following: Allegations of sexual abuse are also made in this matter. The children’s accounts indicate that Mr ECW has behaved in ways that have exploited them in their pubescent development and that he has also exposed them to sexual material that has been inappropriate for their age. Whilst the burden of proof was not available to meet criminal standards, this does not mitigate the existence of harm in the first instance. Indeed, the children’s accounts, each particularise inappropriate sexual conduct of their father and have suggested they’re experiencing emotional harm as a consequence of these experiences. [17] I pause to observe that in Ms ECW’s original application for a domestic violence order, in the section that alleged as a ground for the making of the order ‘sexual abuse’, it included an allegation that the defendant watched pornography in the home on an almost daily basis when the children were around. Quite evidently, the family report at paragraph 124, at least, is relevant to a ground raised by Ms ECW in her application for a protection order. -- 3 of 7 -- 4 [18] Ms ECW also exhibited an affidavit recently sworn by Mr ECW on 18 January 2018 in respect of a divorce application in the Federal Circuit Court of Australia, and a further affidavit sworn by him in proceedings in the Federal Circuit Court of Australia on that day also. [19] On 14 February 2018, Mr ECW filed an affidavit in the proceedings for an application to vary the protection order in the Magistrates Court. Mr ECW’s affidavit ran to some four pages and 14 paragraphs. It included references to the investigation, and findings of that investigation, to which he had referred in his application for a variation to the orders. He also addressed matters raised in Ms Dodds’ family report, together with other matters. [20] The application for a variation to the protection order came on before an Acting Magistrate on 15 February 2018. The transcript of those proceedings states the hearing commenced at 2:44 in the afternoon. It is apparent from the opening remark of the Acting Magistrate that no material had been read prior to the hearing. That is evident by Her Honour stating at the outset of the hearing: Okay. So whose application is this? [21] That statement demonstrates that the Magistrate was unaware that it was an application by Mr ECW. She would have known that to be the case if the application had been read. That of itself is not a criticism of the Magistrate discharging her duties in that very busy Court. It does, however, make it clear that the grounds for the application raised and the material filed by each party in support had not been read by the Magistrate prior to the hearing. [22] It is evident from reading the transcript, which runs for some 14 and a-half pages, that her Honour did not at any stage read either the application or the affidavit material filed by the parties. Her Honour simply embarked upon a process of hearing from, first, Mr ECW, in relation to the application and the orders that were sought. In respect of the orders seeking removal of two of the children as named persons, her Honour appears simply to have dismissed that out-of-hand on the basis that they were matters for the Family Court and not for her Honour. In the course of the hearing, her Honour made observations in respect of the variations to orders 3 and 8 and indicated that they would be varied. [23] I should observe that the transcript is somewhat difficult to follow in parts because, at differing times, Mr ECW and Ms ECW appear to be referred to as the aggrieved in identifying the parties. As an example, on page 1-2 of the transcript at line 4, in response to her Honour’s question as to whose application it was, Mr ECW is identified as the aggrieved as saying: It’s mine, your Honour. [Mr ECW]. [24] It appears that he is then referred to as the aggrieved thereafter. However, at page 1- 13 of the transcript at line 37, after the party speaking is identified as aggrieved, the following appears: Your Honour, Mr ECW has been communicating with me all the time without any repercussions. I do not want to change that to give him the opportunity - to give him the liberty to, you know, harass me, to intimidate me, and continue abusing me. I would leave the order as it is. He has so far, -- 4 of 7 -- 5 whatever legal communications he had to send, he has sent it to me and I have had no problems with that. [25] Quite apparently, the “aggrieved” there is Ms ECW. As I say, that makes a reading of the transcript somewhat difficult. [26] As an example as to how Mr ECW’s issues were dealt with, the following exchange appears between page 1-12, line 34, and 1-13, line 15: Respondent: Your Honour, these children have lived with me for 15 years. Now, they’re scared that there might be consequences of the action but I’m - I’m not that type of man. The police have interviewed me thoroughly. They’ve written a statement here, your Honour. So she’s got no proof. Bench: Whose? Where’s the Family Court order? Is it in yours, Mr [ECW]? Respondent: In my name - in my variation - Request for Variation, your Honour. Page 11. I’ll give it to you, your Honour. Sorry. I can give you another copy. I’ve got copies here. Bench: No, no. It’s all right. I’ve got it. Where does it say you can’t - you can attend the school? Respondent: It says that the school - I think it’s a - it’s one of the - it says that the school is at liberty - - - Bench: It says the school is able to provide reasonable information requested by you. Respondent: Yeah. Bench: Yes. Respondent: Your Honour - - - Bench: That’s it. The judge says what she wanted. The - wanted to say. I’m not changing that. [27] Following that exchange, Mr ECW says: Okay. Your Honour - your Honour, can I just make - can I make just one statement, please. Because all the others - all the other orders remain intact. I just ask for 3 and 8 to be removed. All other - they are one - protected 100 per cent. [28] Her Honour says no. Mr ECW continues: I’m saying they remain intact. I’m not fiddling with those orders, your Honour, I’m just asking for three and eight, that’s the only thing. [29] Her Honour says: I heard you. I’ve changed eight. [30] And then goes on to deal with order 3. -- 5 of 7 -- 6 [31] On one view of that exchange, it might be seen as Mr ECW conceding that he was no longer pursuing the orders concerning the removal of the children. However, given what had preceded that passage, it appears that Mr ECW, simply, accepted from her Honour the earlier indication that there would be no variation, in that regard. The transcript continues, with the variation being made to order 3. [32] That Mr ECW had not abandoned his desire for the two children to be removed, as named persons, becomes apparent at page 1-15, line 22 of the transcript, where the following exchange takes place: Respondent: Your Honour, one last point. The Federal Circuit Court order dated 19.09.17 says: ‘That no parent will physically discipline the children, and ensure that no other person does so’. Bench; Yes. Yes. Respondent: So the children are automatically protected. I don’t see why two persons should be undernamed person. Bench: Matter for the Family Court. Respondent: Your Honour, my sons are in grave danger, my daughter is in grave danger. Bench: Matter for the Family Court. Okay. Yes. Thank you. You’re excused. [33] With respect, that passage demonstrates that her Honour did not deal with the matter which was before her. It was, with respect, not a matter for the Family Court: it was a matter before her Honour, as an application to vary an order of the Magistrates Court. Section 91(1) of the Domestic & Family Violence Protection Act 2012 provides that a Court may vary a domestic violence order, on an application to vary it. By s 91(2) it is provided that: Before a Court 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. [34] Her Honour published no separate decision in respect of the matter, or any reasons other than those which are articulated in the course of the hearing. A reading of that transcript demonstrates, to me, that the requirement mandated by section 91(2)(a) of the Domestic & Family Violence Protection Act 2012, that the Court consider the grounds set out in the application for the protection order before it varies the domestic violence order, was, simply, not observed by her Honour. [35] The circumstances of this case demonstrate why such a statutory requirement, prescribed in mandatory terms, is to be observed. The sexual abuse of the children was raised as a ground set out in the application for the protection order. Those matters were addressed by each party in the material filed in support of their positions, in respect of the application for variation. One could understand why the Act requires a consideration of those grounds, originally raised for the protection order to be made, in circumstances where a Court is considering varying the protection order. -- 6 of 7 -- 7 [36] It is unfortunate, but in this case it appears that there has been a clear failure on the part of the Acting Magistrate to hear and determine Mr ECW’s application according to law. [37] Section 168(1) of the Domestic & Family Violence Protection Act 2012 provides that the appeal must be decided on the evidence and proceedings before the Court that made the decision being appealed. Sub-section 2 provides: However, the Appellate Court may order that the appeal be heard afresh, in whole or in part. [38] I have considered whether conducting this appeal as a fresh hearing is appropriate in the circumstances. I have determined that it is not appropriate, given the failure of the Court below to hear the variation application according to law. Section 169(2) contains a privative clause. That is: That the decision of the Appellate Court upon an appeal shall be final and conclusive. [39] In my view, Mr ECW is entitled to have his application heard and determined in the Magistrates Court, and to have appeal rights, if necessary, which might flow from such a decision. To determine the appeal by way of a hearing afresh in this Court would mean that he would not have any such appeal rights. [40] Each of the parties before me, concede and agree, that the variations which were made by Her Honour, to each of orders 3 and 8, ought to remain in the interim. [41] And for those reasons, I will not set aside the orders varying each of those orders, but I will otherwise allow the appeal and remit the matter to the Magistrates Court, to be heard and determined, according to law. -- 7 of 7 --