CED v HL [2016] QDC 345

DISTRICT COURT OF QUEENSLAND CITATION: CED v HL [2016] QDC 345 PARTIES: CED (appellant) v HL (respondent) FILE NO/S: 30/16 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Southport DELIVERED ON: 22 December 2016 DELIVERED AT: Southport HEARING DATE: 14 December 2016 JUDGE: Kent QC DCJ ORDERS: 1. Appeal allowed. 2. Decision made on 20 September 2016 by the Magistrates Court at Southport is set aside. 3. In lieu thereof, the Temporary Protection Order dated 9 August 2016 is varied as follows: a. That the child of the parties, here referred to as K, be removed as a named person; b. That Order 5 be removed; c. That Order 6 be removed. CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where a temporary protection order against the appellant had been varied, so to include the parties’ child as a named person on the order – where the appellant applied to remove the parties’ child as a named person – where the presiding Magistrate refused to remove the parties’ child as a named person – where an appeal was brought, pursuant to s 164(b) of the Domestic Violence and Family Protection Act 2012 (Qld), against the refusal – where there was a relationship between the child and the appellant – where the appellant had not committed any domestic violence against the child – where there was no identifiable risk of -- 1 of 10 -- 2 violence to the child posed by the appellant – whether it was necessary or desirable for the parties’ child to be listed as a named person on the order MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where a temporary protection order against the appellant had been varied, so to include a condition prohibiting the appellant from permitting, encouraging or facilitating in-person contact between the parties’ child and the respondent's father – where the respondent's father was the child's grandfather – where it was alleged the grandfather threatened to harm the appellant, in the presence of the child – where the child had recently seen his grandfather and desired more contact – where the appellant applied to remove the aforementioned condition – where the presiding Magistrate refused the application – where an appeal was brought, pursuant to s 164(b) of the Domestic Violence and Family Protection Act 2012 (Qld), against the refusal – whether it was necessary or desirable to include the condition that the appellant not permit, encourage or facilitate in-person contact between the parties’ child and the respondent's father MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where an appeal was brought, pursuant to s 164(b) of the Domestic Violence and Family Protection Act 2012 (Qld), against a refusal to vary a temporary protection order – where the reasons given on each issue by the presiding Magistrate were very brief – where the reasons did not expose the finding of facts relevant to the applicable sections or the way in which those matters satisfied the requirements of these sections – whether these factors amounted to errors of law BBB v RAB [2006] QDC 80, cited RMR v Sinclair [2012] QDC 204, cited Domestic and Family Violence Protection Act 2012 (Qld), s 8, s 10, s 30, s 48, s 49, s 57, s 164, s 168, s 169, s 177 COUNSEL: S R Lynch for the appellant The respondent appeared on her own behalf SOLICITORS: Best Wilson Buckley Family Law for the appellant The respondent appeared on her own behalf Introduction [1] This is an appeal against an order made on 20 September 2016 by the Magistrates Court at Southport. By that order, the appellant’s application to vary a temporary protection order was refused. In disallowing the appellant’s application to vary, the Magistrate determined that it was an issue to be dealt with at a final hearing listed in relation to the order, such hearing to proceed on 10 January 2017. The temporary protection order was previously made pursuant to the Domestic and Family -- 2 of 10 -- 3 Violence Protection Act 2012 (Qld) (the “Act”) and the appeal against the refusal to vary same lies pursuant to s 164(b) thereof. The appellant in this appeal was the applicant in the application to vary, however, he is the respondent bound by the temporary protection order. I shall refer to him as the “appellant”. The respondent to this appeal was the aggrieved in the temporary protection order, however, I shall refer to her as the “respondent”. The child of the parties, who is central to the proceedings, I shall refer to as “K”. The father of the respondent, also a central figure, I shall refer to as “Kevin”. Appeal procedure [2] The appellant lodged a notice of appeal in the District Court at Toowoomba on 13 October 2016. It is not clear why the notice of appeal was filed in that Court, however, the matter was thereafter transferred to the Southport District Court for hearing and is properly before this Court. The prior proceedings were commenced and heard in the Magistrates Court at Southport. [3] Section 168 of the Act provides that an appeal must be decided on the evidence and proceedings before the Court that made the decision being appealed. Subsection (2) provides, however, that the appellate court may order that the appeal be heard afresh in whole or in part. Section 169 sets out the powers of the appellate court. [4] I have had regard to the material tendered at the original hearing and as read by the parties. It was difficult for the respondent to identify the relevant material because she was a self-represented litigant but, by agreement with the appellant’s counsel, this was extracted from the court file during the hearing. I have had regard to the applications made with their attachments, the affidavits filed for the purposes of the relevant rulings and the transcripts of the argument before the Magistrate, which includes her Honour’s rulings. Although reference was made during the hearing to further, more recent material, I have not taken into account the material filed since the relevant hearings (for the purposes of the final hearings listed in the Magistrates Court on 10 January 2017). In my view, this accords with s 168 of the Act, the issue being the correctness of the decision of the 20 September hearing at that time on the then existing evidence.1 There was no submission to the contrary. Background [5] The appellant and the aggrieved commenced a relationship in 1999 and were married in 2009. They have one child, K, who is 11 years of age. They separated on 21 December 2014. [6] On 31 May 2016, the police filed an application for a protection order against the appellant in the Magistrates Court at Southport (the “Police Application”). This was mentioned before the Court on that day, and the appellant consented to a final protection order on a “without admission” basis including the mandatory condition he be of good behaviour towards the aggrieved and not commit domestic violence against her. There is no contest about this order and its continuance. [7] The respondent filed an applicant to vary that domestic violence order in the Magistrates Court at Southport later that same day, 31 May 2016 (the “Respondent’s First Application to Vary”). Orders were sought to vary the filed 1 See e.g. BBB v RAB [2006] QDC 80 at [2], [3]. -- 3 of 10 -- 4 protection order to allow the aggrieved to collect property and, further, to prohibit the appellant from: a) Contacting the aggrieved; and b) Approaching the aggrieved or her residence or workplace. [8] On 14 June 2016, the Court made a temporary protection order varying the conditions in accordance with the terms requested by the Respondent’s First Application to Vary set out above. The appellant was not present on that occasion. Again, these conditions are not in contest. [9] On 12 July 2016, the police made an oral submission that the temporary protection order should be varied to include K, as a named person, at least with the mandatory condition that the appellant be of good behaviour and not commit domestic violence against K or expose K to domestic violence (the ‘Police Oral Submission Hearing’). This variation was made (I will return to the circumstances of this event). [10] The respondent filed a further application to vary the order on 29 July 2016 (the “Respondent’s Second Application to Vary”). The orders sought were: a) To prohibit the appellant from attending the child’s school or childcare; b) The return of school uniforms and iPad; and c) To prohibit the appellant from permitting, encouraging or facilitating in- person contact between the child and the maternal grandfather, Kevin (the respondent’s father). [11] On 9 August 2016, the Court made the requested temporary protection order varying the conditions as outlined in (c) above, until further order. [12] This prompted the appellant to file his own application to vary the order, which he did on 12 September 2016 (the “Appellant’s Application to Vary”). The orders sought were: to remove K as a named person, including from the mandatory condition at Order 5; and to remove Order 6, which prohibits the appellant from permitting, encouraging or facilitating in-person contact between K and his maternal grandfather, Kevin. [13] This application was heard on 20 September 2016. The learned Magistrate dismissed the application on the basis it should be dealt with at the final hearing, which was listed for 10 January 2017. Cross-application [14] On 26 May 2016, the appellant originally filed his own application for a protection order in the Magistrates Court at Southport. This was later withdrawn. He subsequently filed another application on 1 July 2016 (the “Appellant’s Second Cross-Application”). This seeks to include K and the appellant’s present partner as named persons, but no temporary protection order was sought in relation to that application. It will also be considered at the hearing on 10 January 2017. -- 4 of 10 -- 5 [15] The respondent’s applications to vary, the appellant’s applications to vary and the Appellant’s Second Cross-Application are all to be heard in the Magistrates Court at Southport on 10 January 2017. [16] The crux of the appellant’s argument on this appeal is that: (a) K should not be listed as a named person on the temporary protection order dated 9 August 2016, in that such is not necessary or desirable pursuant to the test in s 48(2) of the Act; and (b) it is similarly contended that it is neither necessary nor desirable to include the condition that the appellant not permit, encourage or facilitate in-person contact between K and his maternal grandfather. Thus, should the appeal or either aspect of it be successful, this will potentially impact and narrow the issues on the hearing on 10 January 2017. Thus, it has been necessary to resolve this appeal promptly. [17] The issue is whether the challenged decisions to dismiss the appellant’s applications for variations were properly made or, alternatively, whether, as the appellant contends, a proper application of the relevant statutory test should have produced the opposite result. [18] It is important to note in this context that, on this kind of matter, s 49 of the Act provides that a temporary protection order need only be supported by the evidence that the Court considers sufficient and appropriate having regard to the temporary nature of the order. This suggests a relatively low standard. Nevertheless, in my view, there must be a proper evidentiary basis, satisfying the statutory requirements outlined above for the making of the challenged conditions. Hearings in the Magistrates Court [19] As outlined above, the first variation, which is now challenged, was the addition of K as a named person on the police application on 12 July 2016. There was no opposition to this at the time, in circumstances that are now the subject of complaint by the appellant. Those circumstances were that he says he was placed under pressure to consent by inappropriate observations by the Magistrate, such as “One of the ways of dealing with it is to make an order that the father have no contact with the child”. An adjournment and consent followed. The appellant now argues he was pressured and that the consent was made with reluctance. It is not necessary for me to examine the merits of that submission; the addition of K to the order is one aspect of the challenged dismissal of the application to vary heard on 20 September 2016, the subject of this appeal. Addition of K [20] In relation to the naming of K in the order, this variation was based on the premise that K was present at the incident on 26 May 2016 at the car park at Harbour Town. The brief description of that event, as alleged, was that K was attending a certain school at the time. He became anxious and informed his father that the respondent would try to take him from the school and requested that his father come and get him if that happened. On 26 May, the respondent indeed did exactly that and drove with K to the Harbour Town shopping centre. The appellant observed this and also drove into the car park. The appellant called K’s name and K ran with his schoolbag to the appellant’s car and sat in the back seat. Argument and abuse between the parties ensued. The respondent positioned herself at the appellant’s driver side door, apparently preventing him from entering the car. The appellant allegedly pushed the respondent in the chest. The respondent had recently had -- 5 of 10 -- 6 surgery in this area which made this (otherwise moderate) contact very painful, however it is unclear that the appellant was aware of that sensitivity at the time. [21] The appellant, his partner and K left. It seems that both parties reported the incident to police immediately. The result was the respondent’s order then taken out by police. Condition re: Kevin [22] The Respondent’s Second Application to Vary was heard on 9 August 2016. The substance of the application, so far as it concerned the issue of facilitating contact with the grandfather, was that, in the respondent’s attachment to her application, she had written a letter that alleged, inter alia, that on several occasions since the separation (but before the respondent severed contact with her father – therefore a period of perhaps one month),2 her father threatened to harm the appellant, apparently consequent upon the separation, and he made this threat in the presence of K. This, therefore, could conceivably be embraced by the concept set out in s 10 of the Act where a child is exposed to domestic violence, where they see or hear the domestic violence or otherwise experience its effects. As the domestic violence definition includes “threatening”,3 then the concept in s 10 could theoretically include those types of interactions. There certainly appears to be no suggestion K was present for any actual violence by Kevin towards the appellant, nor has there in fact been any such violence. [23] It is difficult to see how any further repetition of such comments in K’s presence would be likely, such as to make a temporary protection order “necessary or desirable” to protect K on that basis, pursuant to s 48(2), where: the respondent’s version is that she severed contact with her father in January 2015; there has been no actual threat by Kevin to the appellant; and they (the appellant and Kevin) are apparently on cordial terms. [24] However, what is said by the respondent from the bar table is that during the currency of these events, the appellant did facilitate contact with the grandfather more recently which prompted the respondent to make the application for the variation. The fact of this contact is common ground. The respondent is generally concerned about her father having contact with K, because of her past experiences with him. [25] There is no suggestion that at the time when Kevin made the original threat which is mentioned in the application, the appellant was present. The appellant’s position is that he has never been threatened by the grandfather in any way, including during the most recent contact, of which the respondent complains; thus it is hard to see how the historical verbal threats are significant. [26] At the hearing on 9 August 2016, it was submitted on behalf of the appellant that: he was not present for the alleged threats by Kevin; he had never been threatened by him; and such an allegation should properly be made in an application separately against Kevin. It was submitted that K had seen Kevin twice recently and desired contact with his grandfather. The brief ruling was to simply make the order having 2 During submissions, the respondent said Kevin visited her twice in that month; T1-41 l21. 3 S 8(1)(d) of the Domestic and Family Violence Protection Act 2012 (Qld). -- 6 of 10 -- 7 “regard to the history of the matter”. There was no express reference to s 48 or s 57 of the Act. [27] At the subsequent hearing on 20 September, the application to vary was dismissed without explicit analysis of the statutory template pursuant to ss 48 and 57 of the Act, namely that the making of a varied temporary protection order, and its conditions, depend on those matters being necessary in the circumstances and desirable in the interests of the aggrieved, a named person or the respondent. The first point, concerning the naming of K, was dealt with as follows: “The child was present during an incident which involved the police. That’s why he’s included”.4 As outlined above, the police were not present or called to the scene. Both parties independently reported the matter to the police shortly thereafter. Neither were charged with an offence nor were there any injuries. The incident did result in the order to which the appellant consented without admission. [28] If the analysis of the statutory template by her Honour was implicit, it is difficult, with respect, to follow how the conclusion was reached in circumstances where: (a) It is common ground that the appellant had never perpetrated any domestic violence upon K and conversely the respondent had struck him and assaulted him by choking or grabbing him around the neck previously;5 (b) The incident on 26 May 2016 was initiated by the respondent’s apparently inappropriate collection of K from school against K’s wishes; (c) At the car park, the child voluntarily went to the appellant’s car; and (d) The respondent pursued the appellant to the point where the contact, whatever its exact nature, occurred. It is difficult to see how this scenario, which was the sole incident relied upon, results in a conclusion that the appellant had committed domestic violence upon K, or wilfully exposed him to same, or, in the circumstances, the challenged conditions were necessary or desirable, even by the standard referred to in s 49. [29] As to the second point, concerning the facilitating of contact with Kevin, if there were any reasons given for the refusal to vary, so far as they can be detected, they were that the issue was “a matter for hearing”.6 [30] Thus, the reasons given on each issue were extremely brief and do not seem to have exposed either the finding of facts relevant to the matters in ss 48 and 57 or the way in which those matters satisfied the requirements of the sections. As was said by McGill SC DCJ in BBB v RAB [2006] QDC 080 at [9]: 4 20 September, T1-4 ll17-18. 5 Annexure “A” and the report of Ms Pittaway, attached to the appellant’s application of the 12th September; also a copy of an affidavit of John Oxley, social worker, filed in proceedings by the appellant in the Federal Circuit Court pursuant to the Family Law Act on 6th September 2016 and relied on at the hearing. 6 T1-7, ll13 – 16. -- 7 of 10 -- 8 “A failure to give proper reasons can amount to an error of law. The question of what is sufficient to amount to proper reasons depends on the nature of the matter, and the extent of the controversy. When a matter turns on a single issue, it may even been possible to give adequate reasons simply by finding for one party or the other. But commonly that will not be the case, and in a matter such as this in my opinion it is important to identify what particular facts were relied on as founding the jurisdiction to make the order. That is necessary in order to enable the unsuccessful party to give proper consideration to an appeal, and for this Court properly to decide any appeal. That has not been done in the present case. Accordingly there was an error of law and the appeal must be allowed.” (citations omitted) The evidence [31] The evidence before the Magistrate included the various applications, including that of the appellant with a statement setting out his version of the events. This includes the relationship between K and Kevin, which is said to be close and loving, and Kevin had cared for K in two blocks of four days in December 2014 with the respondent’s agreement. These matters were strongly placed in issue by the respondent in submissions. More recent contact was said by the appellant to be also satisfactory, in evidence which is not contradicted. He expresses the position that K is in no danger from Kevin. [32] The appellant’s representatives arranged a report from a social worker, John Oxley. The affidavit of Mr Oxley attaches his report after interviewing the appellant, K and Kevin. K did not mention the Harbour Town incident to Mr Oxley, but did mention several episodes of violence by his mother. The relevance of this is that the Harbour Town incident would not seem, on the evidence, to have had a large impact upon him. The Magistrate was very dismissive of the report, apparently on the basis that it was not ordered by the Court and had “very little value, very little weight”. It came about at the instance of the appellant and the respondent was invited to attend but did not; she is not to be criticised for that. Nevertheless I do not share her Honour’s view of this evidence; the report reads as a thorough investigation in an apparently objective manner. The author does not attempt to take sides and presents material fairly. He suggests the participation of the respondent in a family report process. He does not in my view display any partisan favouritism. [33] Mr Oxley expresses the view that there may be some benefit to K in separating future decisions made in the two jurisdictions, i.e. the Magistrates Court and the Family Court or Federal Circuit Court. This is because of the desirability of the Magistrates Court dealing with the adult issues and the Federal jurisdiction dealing with K’s future parenting arrangements.7 This seems, with respect, a sensible observation, and I note in this context the present position is that the Federal Circuit Court has ordered that K live with the appellant and spend three days per fortnight with the respondent.8 [34] The evidence by the respondent was in her applications, including the letter referred to above referring to the threats by Kevin. Many other statements critical of Kevin 7 Report paragraph 99. 8 Transcript 1-8 ll5-7. -- 8 of 10 -- 9 were made from the bar table. As for the evidence justifying the inclusion of K as a named person, it relied solely on K’s presence at the incident on 26 May 2016. Submissions on appeal [35] The submissions by the appellant are that it is neither necessary nor desirable for K to be listed as a named person on the order pursuant to s 48(2) of the Act, where the appellant has ensured his safety and wellbeing. He has not committed any domestic violence upon him. There is no identifiable risk thereof and the circumstances of the incident on 26 May 2016, while somewhat contentious, do not give rise to such a risk. In relation to Kevin, the appellant submits: there is a relationship between the two; he himself has not been threatened by Kevin; Kevin has not assaulted K and there is no risk thereof on the evidence. Thus, it is neither necessary nor desirable to have the challenged condition on the order. [36] The respondent submits the orders should remain in present form until the hearing on 10 January 2017, relying on the basis on which the orders were made. She also made a number of statements from the bar table critical of Kevin and the appellant; however she has not, as far as I am aware, asserted that the appellant has been violent to K and any suggestion along those lines concerning Kevin dates back some four years or more. She does say, on the basis of statements from the bar table, that Kevin could be, if not physically violent, then emotionally or psychologically abusive towards K; however, I do not find there to be any evidential basis for that assertion. Discussion [37] An order, or a condition of an order, under the Act has serious consequences under s 30 and s 177; a breach carries a penalty of up to 5 years imprisonment. Thus: “The making of an order is a serious matter. Orders should not be made lightly. Breaches involve, as the learned magistrate said, community as well as personal concerns.” 9 [38] In this case, there were insufficient reasons given for the orders made refusing the variations. This amounts to an error of law and on that basis the decision should be set aside. Further, there was in any case an insufficient evidentiary basis for the findings that either or both of the contested conditions were necessary or desirable in terms of ss 48 and 57 of the Act. Firstly, K’s presence in the vicinity of the incident on 26 May 2016 was in my view incidental. It was upsetting, but no more so than many of the other separate actions of the respondent. It was not prolonged or dangerous and not wilfully brought about, or persisted with, by the appellant. On the second issue, Kevin’s alleged behaviour was out of the appellant’s presence and not initiated by the appellant. It is not likely to be repeated and did not involve any violence to K. This is all too tenuous to substantiate the challenged conditions. Conclusion [39] In conclusion, I am of the view that the appeal should be allowed and the orders refusing the variations sought by the appellant set aside. The orders are: 9 RMR v Sinclair [2012] QDC 204 at [13] -- 9 of 10 -- 10 1. Appeal allowed; 2. Decision made on 20 September 2016 by the Magistrates Court at Southport is set aside; 3. In lieu thereof, the Temporary Protection Order dated 9 August 2016 is varied as follows: (a) That the child of the parties, here referred to as K, be removed as a named person; (b) That Order 5 be removed; (c) That Order 6 be removed. [40] This does not bind the hands of the Magistrate for the final hearing on 10 January 2017 should the evidence be significantly different or more extensive from that outlined above. However, given that there is no contest as to the order against the appellant otherwise remaining in place, it may be that the scope of the argument is narrowed to the issue of the application by the appellant for an order binding the respondent. It may be hoped that, given the present interim orders of the Federal Circuit Court as to the arrangements concerning K, the parties can resolve their differences in the interests of all concerned. -- 10 of 10 --