AZ v BY [2017] QDC 67

DISTRICT COURT OF QUEENSLAND CITATION: AZ v BY [2017] QDC 67 PARTIES: AZ (applicant/appellant) v BY (respondent) FILE NO/S: D18 of 2017 DIVISION: Civil PROCEEDING: Appeal, s 165 of the Domestic and Family Violence Protection Act 2012 ORIGINATING COURT: Magistrates Court at Maroochydore DELIVERED ON: 24 March 2017 DELIVERED AT: Brisbane HEARING DATE: 10 March 2017 and 17 March 2017 (at Maroochydore) JUDGE: Long SC DCJ ORDER: The application for stay of the operation of the Magistrate’s decision of 14 February 2017, is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – s 165 of the Domestic and Family Violence Protection Act 2012 – Where the appellant appeals against the refusal of her application for a protection order – Where the appellant filed an application pursuant to s 166(2) of the Domestic and Family Violence Protection Act 2012 for an order to stay the operation of the Magistrate’s decision to refuse her application for a protection order – Where the appellant was granted a temporary protection order upon the filing of her application for a protection order – Where the appellant seeks to maintain the effect of the temporary protection order – Whether it is an appropriate case for a stay LEGISLATION: Domestic and Family Violence Protection Act 2012; ss 3(1); 3(2)(a); 4; 37(1); 37(1)(a); 37(1)(b); 37(2); 45; 56; 98(c); 142; 165; 166(2); s 169(2) Uniform Civil Procedure Rules 1999 r 761 CASES: Attorney-General for the State of Queensland v Fardon [2011] QCA 111 -- 1 of 11 -- 2 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 Fox v Percy (2003) 214 CLR 118 Menso v Commonwealth Bank of Australia [2016] QCA 188 COUNSEL: C van der Weegen for the applicant/appellant A Hawkes (sol) for the respondent SOLICITORS: Freedom Law for the applicant/appellant Hawkes Lawyers for the respondent Introduction [1] On 14 February 2017 and after a trial in the Magistrates Court at Maroochydore, the appellant’s application for a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (“DFVPA”) was refused. On the same day and, it would appear, by a document that had been prepared in anticipation of that decision, the appellant filed a notice of appeal against that decision, pursuant to s 165 of the DFVPA. Subsequently and on 17 February 2017 an amended notice of appeal was filed and it is upon the grounds set out in that amended notice that the appellant intends to proceed. [2] This matter concerns the appellant’s application, filed on 8 March 2017 and pursuant to s 166(2) of the DFVPA, for an order to stay the operation of the decision to refuse her application for a protection order. Whilst and at first blush that might seem an unusual application, the utility of it is disclosed by understanding that upon the filing of her application for the protection order, the appellant was granted a temporary protection order, which was subsequently amended on 6 September 2016, upon application by the respondent to allow him to attend at the place of employment where they both worked, being a correctional centre where they are both employed as correctional officers. That resulted in measures being adopted by their employer to ensure that the parties worked separately and without contact. However and once the -- 2 of 11 -- 3 Magistrate made the decision refusing the application for the protection order and pursuant to s 98(c) of the DFVPA, that brought to an end the effect of the temporary protection order. Accordingly and by the application filed in the appeal proceeding on 8 March 2017, the appellant seeks a stay of the operation of the decision which is the subject of the appeal, with the consequence that the temporary protection order will continue in effect. [3] By way of further context, it is noted that the appellant, as she was entitled pursuant to s 166(2), initially applied immediately to the Magistrate, on 14 February 2017, for the stay which she now seeks in this Court. The presiding Magistrate declined to hear that application, by reference to her findings being based on opinions she had formed of the appellant and her witnesses during the trial. Ultimately, that application was heard and refused by an acting Magistrate. However and whilst that context may be noted, this is not an appeal from the decision of the acting Magistrate and the application to this Court is to be decided upon the materials placed before the Court and the appropriate principles to be applied on such an application. Relevant Principles [4] It may be noted that pursuant to s 142 of the DFVPA, the Uniform Civil Procedure Rules 1999 (“UCPR”) are made applicable to appeals brought under the Act and that a similar and more general provision providing a power to stay the enforcement of decisions under appeal appears in UCPR r 761, as follows: “761 Stay of decision under appeal (1) The starting of an appeal does not stay the enforcement of the decision under appeal. (2) However, the Court of Appeal, a judge of appeal or the court that made the order appealed from may order a stay of the enforcement of all or part of a decision subject to an appeal.” However, the more specific provision under which this application is necessarily made, may be seen to be expressed in terms more appropriate to the nature of orders which may be sought to be stayed. In particular, the language focuses upon staying the operation rather than enforcement of the decision. Section 166 of the DFVPA provides as follows: “166 Effect of appeal on decision (1) The start of an appeal against a decision of the court does not affect the operation of the decision or prevent the taking of action to implement the decision. -- 3 of 11 -- 4 (2) However, the court or the appellate court may make an order staying the operation of the decision being appealed against until the appeal is finally decided. (3) The court or the appellate court may act under subsection (2) on the application of the appellant or on its own initiative.” [5] Accordingly and as was noted by Chesterman JA in Attorney-General for the State of Queensland v Fardon,1 whilst guidance may be taken from cases decided in respect of the operation of UCPR r 761, necessarily such statements have to be applied in the context of considerations arising in respect of the subject matter of the decision, the operation of which is sought to be stayed. [6] As to the general statements from which guidance might be obtained, it may be accepted that, broadly stated, the test to be applied is whether the appellant has demonstrated that it is an appropriate case for a stay and not necessary for an appellant to show special or exceptional circumstances.2 As was observed by Morrison JA in Menso v Commonwealth Bank of Australia:3 “[7] As simply as it is expressed, the test reflects the wide discretion reposed in the Court. However, authority establishes the traditional factors to be taken into account on such an application,4 namely whether: (a) there is a good arguable case; (b) the applicant will be disadvantaged if a stay is not granted; and (c) there is some competing disadvantage to the respondent if the stay is granted, which outweighs the disadvantage suffered by the applicant.” [7] Also the following observations, from Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd,5 were, in part, specifically noted:6 “[12] The decision of this Court in Berry v Green suggests that it is not necessary for an applicant for a stay pending appeal to show "special or exceptional circumstances" which warrant the grant of the stay. Nevertheless, 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 in litigation is entitled to the fruits of its judgment. Generally speaking, courts should not be disposed to delay the enforcement of court orders. The 1 [2011] QCA 111 at [12]. 2 Croney v Nand [1999] 2 Qd R 342 at [33]; Berry v Green [1999] QCA 213 and Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at [12]. 3 [2016] QCA 188 at [7]. 4 Reference is made to: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685; Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; Raschilla v Westpac Banking Corporation [2010] QCA 255. 5 [2008] 2 Qd R 453 at [12]-[13]. 6 See: Menso v Commonwealth Bank of Australia [2016] QCA 188 at [8]-[10]. -- 4 of 11 -- 5 fundamental justification for staying judicial orders pending appeal is to ensure that the orders which might ultimately be made by the courts are fully effective: the power to grant a stay should not be exercised merely because immediate compliance with orders of the court is inconvenient for the party which has been unsuccessful in the litigation. Prospects of success [13] In cases where this Court is able to come to a preliminary assessment of the strength of the appellant's case, the prospects of success on appeal may weigh significantly in the balance of relevant considerations. The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor. That is because, if there is obviously little prospect of ultimate reversal of existing orders, the concern to ensure that the existing orders can be overturned without residual injustice will have less claim on the discretion than might otherwise be the case. [14] The extent to which a preliminary assessment of prospects of success, which suggests that the prospects of success are good, should dispose the Court towards granting a stay may be somewhat less clear. It was, however, accepted by Stork that Cook's appeal is arguable, and Cook did not seek to argue that its prospects of success on the appeal are so strong as to overwhelm the importance of the consideration that the courts should impede the enforcement of their orders only so far as is necessary to ensure that the orders which might ultimately be made by the court can be given effect without leaving a residue of injustice.” (Citations omitted). Discussion [8] As to the relative disadvantages to which Morrison JA refers, the appellant particularly points to the loss of the temporary protection order, as a necessary consequence of the decision which she seeks to appeal. Whilst reference is made to a condition in that order preventing the respondent from continuing to reside in their former shared home, the appellant deposes that as the Magistrate found, the respondent no longer lives there and that she is not residing there, albeit due to her expressed fear that the respondent might now seek to attend there. [9] Considerable emphasis is placed on the fact of the cessation of the workplace restrictions that were effected in consequence of the temporary protection order. Each of the parties is employed as a correctional officer at a correctional facility. In the appellant’s material, much emphasis is placed on her contentions as to her fear of the respondent and a recurrent theme for the appellant is the submission that: “[F]ear is a subjective factor that must be given due consideration under the principles in s 4 of the DFVPA.” -- 5 of 11 -- 6 [10] For the respondent, there is no evidence as to any substantial disadvantage to him, if the stay were to be granted. And on the contrary, he points to steps he has taken, essentially, he says, motivated to avoid any further allegations against him, to be rostered so as to avoid contact with the appellant in their common workplace. Further and for him and irrespective of whether or not those voluntary arrangements entirely mirror the restrictions put in place by or in consequence of the temporary protection order, it is with some apparent force contended for him, that: (a) as found by the Magistrate, the parties no longer reside together and apart from potential work related contact, the only remaining issue to be resolved between them is their property settlement; and (b) any remaining risk of contact in the workplace must be understood to be in that context and subject to the supervision and management of their employer and unlikely to be in the absence of other staff, if not managers. Further, any such contact would necessarily be in circumstances where the appellant is employed and no doubt trained in the expectation of dealing with confrontation with prisoners. [11] Assessment as to whether the appellant has a good arguable case on her appeal is not a straightforward matter. It is convenient to first note the grounds of appeal, as set out in the amended Notice of Appeal: “1. The learned magistrate erred in making findings of fact that domestic violence did not occur that could not be supported having regard to the evidence in that: (a) she did not address or give any weight to the unchallenged admission made by the respondent to Ms … that he ‘grabbed and pushed [the appellant] to the floor’; (b) she did not give any weight to the evidence of Mr … that he observed the appellant visibly distressed, felt an egg-like lump to the back of the appellant’s skull, and observed red and purple bruising to her elbow the day after the event on 3 July 2016; (c) she did not give any weight to the evidence of the respondent in conceding that the injury in (b) above were not self-inflicted; (d) she gave unreasonable weight to the absence of any lump to the head in hospital records, which were taken eight days after the incident on the 10 July 2016 in holding, without expert evidence, that it did not support the evidence of Mr … in (b) above; and (e) she gave little if any weight to other acts of domestic violence. -- 6 of 11 -- 7 2. It follows from ground 1 that the learned magistrate, in assessing the credit and reliability of the witnesses has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. 3. The learned magistrate erred in the exercise of her discretion as to whether the making of a protection order was necessary and desirable by not directing her mind in her reasons for her decision to the mandatory considerations in section 4 of the Act, in particular: (a) she failed to consider the paramount safety, protection, and well-being of the appellant; (b) she failed to treat the appellant with any respect whatsoever through her complete dismissal of her fears and experience with domestic violence in holding that the appellant didn’t display a fear of the respondent; (c) it follows from (b) above that she did not take into account the vulnerable characteristics of the appellant as a woman responding irrationally to domestic violence through her own acts of domestic violence; (d) it follows from (c) above that in accepting that there were acts of domestic violence by the appellant, the learned magistrate erred in the exercise of her discretion by not applying the principle as set out in section 4(2)(e) of the Act in not identifying the appellant as the person who is most in need of protection by according appropriate weight to: (i) the appellant’s evidence of acts of domestic violence against her and her ongoing fear; and (ii) the respondent’s total denial of any act of domestic violence on his part; and (iii) it follows from 3 above that the learned magistrate failed to consider the impact upon the risk of future domestic violence through the lack of any remorse by the respondent; and (e) the learned magistrate placed an unsafe reliance on existing workplace protection measures for the protection of the appellant by assuming that these measure would continue in the absence of a protection order. 4. The appeal be heard afresh, in part, to allow the admission of new evidence of the hither to workplace protection measures which have since been lifted as it: (a) could not be obtained with reasonable diligence for use at the trial hearing; (b) has an important influence on the result of the case insofar as to whether a protection order is necessary and desirable; and (c) is credible and incontrovertible.” [12] To the extent that the grounds of appeal are directed at the Magistrate’s finding that there was no relevant act of domestic violence proven on the appellant’s case, that was a negative finding as to one of the requisites for making an order, pursuant to s 37(1) of the DFVPA. Accordingly, that would need to be demonstrated as an -- 7 of 11 -- 8 erroneous finding, for the appeal to succeed. Notwithstanding that looked at separately, there may appear to be arguable points of contention as to how parts of the evidence relied upon by the appellant have been dealt with or not dealt with by the Magistrate, as is correctly pointed out for the respondent and is implicit in the second ground of appeal set out above, the appellant faces the substantial hurdle that the Magistrate’s findings make clear that her negative finding as to this requisite, was based upon her being unimpressed by the credibility of the appellant and her witnesses. [13] Accordingly, the appellant confronts the general principle that such factual findings, based on the credibility of witnesses, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the conclusions are erroneous or where the decision is found to be glaringly improbable or contrary to compelling inferences in the case.7 [14] To the extent that it is suggested that there were other allegations of acts of domestic violence made by the appellant, it is clear that these were largely of a general nature and the litigation below was conducted with particular reference to the events of 2 July 2016. In any event, it may be difficult to see how those allegations would not also be affected by the Magistrate’s assessment of the appellant’s credibility and therefore treated any differently. In this regard, it may be noted that the Magistrate found as follows: “So on that basis, I cannot be satisfied on the balance of probabilities that an act of domestic violence did occur on 2 July. That has been the only really specific act that has been complained of, other than the relationship behaviours that the aggrieved complained of and again, I consider those to be quite exaggerated and in conflict with her own behaviour, which was at least reflecting what she was complaining about to some extent.”8 [15] Moreover, there is also the need to note the following alternative finding made by the Magistrate: “Even if I am wrong in that assessment, which is basically very much based on credit, an assessment of the individual witnesses, I cannot be satisfied on the balance of probabilities that it is necessary or desirable to protect the aggrieved to put an order in place. 7 Fox v Percy (2003) 214 CLR 118. 8 D7.1-6. -- 8 of 11 -- 9 The workplace seems to be able to take some actions to manage the parties not being together at work, which would seem sensible, domestic violence order or not, given the relationship conflict. I do not consider it is necessary or desirable just for the purpose of maintaining the workplace issues to make an order. The parties are not living together anymore. The property settlement is proceeding. That seems to be the only issue between the parties that needs to be resolved and I do not consider that the aggrieved’s safety is compromised by not making an order. She does not appear, apart from that one incident and the older non-specific incidents, to have ever been in any physical peril. She does not display a fear of the respondent in any aspect, not that that is the primary requirement, and she did effectively concede domestic violence by way of controlling behaviour on her part as well. The physical confrontations, she says, were as a result of excessive drink. The respondent does not accept that, although he did accept in his evidence that on that particular night about the loud music that he should have just walked away. It is always easier to know that in hindsight.”9 [16] As is apparent from the third ground of appeal set out above,10 the contention is as to failure to consider the principles mentioned in s 4 of the DFVPA, as is required by s 37(2) of that Act. Whilst it may be noted that there is no express reference to these principles in the Magistrate’s reasons, it can also be noted that: (a) As far as the power of Courts to make a domestic violence or protection order is concerned, one of the main ways in which the objects of the DFVPA, as stated in s 3(1), are to be achieved is stated in s 3(2)(a) to be by: “allowing a court to make a domestic violence order to provide protection against further domestic violence.”; (b) The approach of the Magistrate appears generally consistent with the views expressed consistently in prior decisions of this Court11 and as to the focus in relation to the issue as to whether “a protection order is necessary or desirable to protect the aggrieved from domestic violence”,12 being upon the “extent to which on the evidence there is prospect of such a thing in the future, and of what nature, and whether it can be properly be said in the light of that evidence that it is 9 D7.6-25. 10 See para 11 above. 11 Noting that pursuant to s 169(2) of the DFVPA, such decisions are given the status as being “final and conclusive.” 12 s 37(1)(c) DFVPA. -- 9 of 11 -- 10 necessary or desirable to make an order in order to protect the aggrieved from that.” And therefore upon an objective assessment of the risk of such future recurrence, as disclosed in the evidence: “…there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future.”;13 and (c) To the extent to which an exercise of discretion may be involved, it may be seen to be in respect of the determination of the necessity or desirability of making a protection order, which is a determination of an evaluative kind, rather than the preconditions which must be established as matters of fact pursuant to s 37(1)(a) and (b). And such a determination also demands regard to the conditions which would be included in such an order pursuant to s 56 and which may be included pursuant to the succeeding provisions of Division 5 of Part 3 of the DFVPA and therefore, it may be noted that the requirement in s 37(2)(a) to have regard to the principles set out in s 4, may also be particularly relevant to that wider context of consideration of appropriate conditions. [17] In the circumstances, it should not be concluded that the appellant’s prospects are necessarily poor, as the respondent sought to contend. However, it is also not established that those prospects are properly and on the limited assessment appropriate at this stage, to be viewed as good or substantial: (a) to the extent that grounds 3(e) and 4 seek to establish the consequential facts as to the cessation of the workplace arrangements, it is far from clear that the Magistrate assumed such arrangements would necessarily continue, as opposed to noting the ability of the employer to respond, by way of protection of employees in the management of the workplace and as circumstances required; and 13 See GKE v EUT [2014] QDC 248 at [32]-[33] and cf: MDE v MLG & Queensland Police Service (2015) QDC 151 at [50] – [55], BJH v CJH (2016) QDC 27 at [48], DMK v CAG [2016] QDC 106 at [70], AJS v KLB & Anor [2016] QDC 103 at [70], WJ v AT [2016] QDC 211 at [134] – [135] and ZXA v Commissioner of Police [2016] QDC 248 at [23]. -- 10 of 11 -- 11 (b) moreover and even if the Magistrate erred in respect of her credibility based finding as to the absence of relevant domestic violence, her alternative finding that no order was necessary nor desirable appears to have involved her consideration of the clearly relevant circumstances of the parties and that the potentiality of their ongoing personal contact, was particularly identified as being in and related to their workplace commitments. Conclusion [18] In these circumstances, the appellant has not demonstrated a sufficient basis to outweigh the consideration that the Magistrate’s decision is not to be treated as merely provisional and the due respect that should be shown to the outcome of the trial in the Court below. Rather what she seeks to do, subject to the determination of her appeal, is to maintain the effect of the temporary protection order, which was necessarily made without any consideration of a requirement as to the necessity or desirability of the making of that order,14 upon a less exacting standard of proof15 and it may be expected and as a matter of practicality, without any detailed hearing or consideration of the matter except to the extent that the allegations and supporting material adequately satisfied the requirements of s 45 of the DFVPA,. [19] Accordingly the application for stay of the operation of the Magistrate’s decision of 14 February 2017, is dismissed. 14 s 46 DFVPA. 15 s 45(1) DFVPA. -- 11 of 11 --