Freedom Law

The”Our Children” website

Having trouble communicating with the other parent?

Tired of receiving abusive or denigrating telephone calls, emails, Facebook messages or texts from the other parent?

There is now an alternative means thanks to the “our children” website:

https://www.ourchildren.com.au/

It works by parents paying a modest yearly fee to have a “communication wall” on the website. They then do not communicate with one another except by posting words, documents (like school reports) and photos to the wall.

Whatever is posted on the wall cannot be deleted, and can be produced to a court if necessary.

Why positive communication between parents is important

Positive communication between parents is important for children:

  1. So that children receive consistent parenting styles and routines in both households;
  2. So that both parents are kept informed about important events and incidents in the children’s lives;
  3. So that the children are not exposed to adult conflict such as arguments and denigration between parents;
  4. So the children can feel comfortable and secure being in the care of either parent, without feeling like they have to “take sides”, or make one parent happy by supporting their negative view of the other parent.

Need help establishing positive communication?

If you feel like you aren’t getting anywhere with the other parent in changing old patterns of negative communication, often seeking legal advice can help.

Sometimes legal intervention is necessary to stop the old negative communications and to start and retain positive communications.

Your lawyer can communicate with the other parent and suggest different methods and content of communications.

If the other parent is still communicating negatively with you, then it is possible to seek the intervention of a family law court to adjudicate as to how parental communications are to take place.

Separating adult feelings from parental role

It isn’t easy to keep your feelings and attitudes about the other parent as a person separate from their role as a co-parent to your children. It takes time, and sometimes it takes help from a parenting course or sessions with a psychologist.

Freedom Law solves all family law problems – just ask us!

Consequences of breaching a Domestic Violence Order

Queensland Police Service v DLA [2015] QMC 6 (7 May 2015)

Last Updated: 12 May 2015

MAGISTRATES COURTS OF QUEENSLAND

 

CITATION:
QPS v DLA [2015] QMC 6
PARTIES:
QPS
(plaintiff)
v
DLA
(defendant)
(defendant)
FILE NO/S:
00007531/15(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Sentence
ORIGINATING COURT:
Caboolture
DELIVERED ON:
7 May 2015
DELIVERED AT:
Caboolture
HEARING DATE:
10 March 2015
MAGISTRATE:
M Bucknall
ORDER:
Permanent stay – Breach DVO
CATCHWORDS:
CRIMINAL LAW – Operation of and interaction of s138 of Domestic
and Family Violence Protection Act 2012 and s 16 Criminal Code
Whether s 138 contains an express provision for double punishment –
Fundamental Legislative Principles
 Domestic Violence  and Family Protection Act 1989 (Q) s 62
Domestic and Family Violence Protection Act 2012 s 138
Criminal Code (Q) s 16
Criminal Code Act (Cwlth) 1995 s 474.17(1)
Pearce v R [1998] HCA 57
Ashley v Marinov [2007] NTCA 1
Ridgeway v Parravicini [2008] QDC 38
PROSECUTION:
Snr Constable Bonnyman (QPS)
Ms V.R Deanne
(Commonwealth DPP)
DEFENCE:
Ms F. Graham (Solicitor)

[1] This is a matter where the defendant Mr DLA has pleaded guilty to two charges, one being an offence under s 474.17(1) of the Criminal Code Act (Cwlth) 1995, Using a carriage service to menace or harass or cause offence, and the other charge being a breach of a protection order made under the provisions of the Domestic and Family Violence Protection Act 2012.
[2] The facts relating to each of the charges are that Mr DLA posted various Facebook entries in relation to the aggrieved named in the protection order to which he is the respondent, thus in contravention of that order by not being of good behaviour towards the aggrieved, and further that those entries of themselves constituted an offence under the Criminal Code Act (Cwlth) 1995 with which he has been charged.
[3] This matter has come before me in an unusual way in that two separate prosecutors have appeared, that is one prosecutor from the Commonwealth DPP in relation to the Commonwealth offence and another police prosecutor appearing on the contravention of the  Domestic Violence  order.
[4] I raised with both prosecutors as to whether the same act or omissions constituting the offences were the same, and if so how Mr DLA could be punished for both offences given s16 of the Queensland Criminal Code.
[5] Both prosecutors confirmed that the same act, that is the posting of the Facebook entry, was the act relied upon in each of the charges.
[6] Section 16 of the Criminal Code is as follows:
“16 Person not to be twice punished for same offence
A person cannot be twice punished either under the provisions of this code or under the provisions of any other law for the same act or omission, except…”
[7] The High Court considered a similar provision in the decision of Pearce v R [1998] HCA 57; and at paragraph 40 of that decision stated:
“40. To the extent to which two offences of which an offender stands convicted contain common elements it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt the general principle may yield to any contrary legislative intention, (my emphasis) but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts.”
[8] Both prosecutors in this matter rely upon Section 138 of the Domestic and Family Violence Protection Act 2012 and assert that in particular, Section 138(4) allows a defendant to punished more than once for the same act in relation to two or more criminal offences.
[9] Section 138 of the Domestic and Family Violence Protection Act 2012 is as set out below:
“138 Concurrent criminal proceeding
(1) An application under this Act may be made, and a court may deal with the application, even if a person concerned in the application has been charged with an offence arising out of conduct on which the application is based.
(2) However, if a person is charged with an offence arising out of conduct on which an application under this Act is based, a reference to any of the following is admissible in the trial of the person for the offence only with leave of the court-…
(3) To remove any doubt, it is declared that, subject to this section, an application, proceeding or other order under this Act in relation to the conduct of a person does not affect-
(a) any proceeding for an offence against the person arising out of the same conduct; or
(b) any civil liability of the person.
(4) The person may be punished for the offence mentioned in subsection (3)(a) despite any order made against the person under this Act.”
[10] Given that Section 16 gives statutory effect to a long standing right, that is not to be punished more than once for the same act, and where on the face of it there appears to be some ambiguity in interpreting the meaning of s 138, then reference may be made to the Explanatory Notes to assist in the interpretation of s 138 of the Domestic and Family Violence Protection Act 2012.
[11] In considering the Explanatory Notes I am also mindful to take in to consideration any indication that a provision in the Bill may represent a departure from the Fundamental Legislative Principles.
[12] A Queensland Parliament Factsheet 3.23 titled: “Fundamental Legislative Principles sets out that:
“Fundamental legislative principles (FLPS) require that legislation (both Bills and subordinate legislation) should have sufficient regard to the rights and liberties of individuals and to the institution of Parliament”
[13] Effect is given to this in the Legislative Standards Act 1992 and in particular s 4 of that Act.
[14] Given the longstanding right contained in s 16 of the Criminal Code and its predecessors in common law, one would expect to find the displacement of such a fundamental right (such as not being liable to a double punishment in relation to the same act or omission) to be addressed in the Explanatory Notes.
[15] Those notes from page 10 through to page 29 address various provisions in the Bill concerning the Bill’s consistency with fundamental legislative principles.
[16] At page 10 of those Notes the following is contained:

“Consistency with fundamental legislative principles
The Bill is generally consistent with fundamental legislative principles. Potential breaches of fundamental legislative principles are addressed below.”

[17] Nowhere in pages 10 to 29 of those Notes is section 138 mentioned, either when considering any departure from being consistent with any fundamental legislative principle, or at all.
[18] Further at page 4 of the Notes the following is set out:

“The provisions dealing with the objects of the Act, the guiding principles and the preamble will bring the Queensland legislation in line with the domestic and family violence legislation in other jurisdictions. They are also consistent with recommendations made by the Australian Law Reform Commission in its Family Violence – A National Legal Response report…”

[19] The Australian Law Reform Commission in its Report considered s 62 of the previous legislation, being the Domestic and Family Violence Protection Act 1989 and in particular s 62(4) and (5) of that Act:

62 Concurrent and other proceedings

(4) To allay any doubt, it is declared that, subject to this section, an application, proceeding or other order under this Act in relation to the conduct of the person does not affect any proceeding for an offence against the person arising out of the same conduct.
(5) The person may be punished for the offence mentioned in subsection (4) despite any order made against him or her under this Act.

[20] I note s 62(5) is identical to s 138(4) of the current legislation.
[21] The Commission when referring to that particular provision said at paragraph 11.39 of its Report:

“11.39 the Commission’s intention in extending the ambit of the recommendation to civil (my emphasis) liability is to cover, for example, instances where a person using family violence may be sued for torts against the person, namely the torts of battery, assault and false imprisonment.”

[22] The Explanatory Notes themselves at page 78 of those Notes reinforce this notion of extending liability to concurrent civil proceedings where they state that:

Clause 138 refers to situations where there are civil proceedings under the Act which are related to criminal proceedings in that they both arise out of the same conduct.

[23] Reliance has been placed on a recent District Court decision of R v MKW [2014] QDC 300.
[24] It was submitted that this decision is authority for the view that Section 138(4) of the Domestic and Family Violence Protection Act allows for a Defendant to be punished more than once for two or more criminal offences arising from the same conduct.
[25] It was further submitted that convicting, but not further punishing the defendant on one of the charges could be a suitable way to proceed.
[26] In the decision of R v MKW the Judge in that decision referred to the recent Queensland Court of Appeal decision of R v Dibble; ex party Attorney General (Qld) 2014 QCA 8 where His Honour at paragraphs 16 and 17 of his decision said:
“[16] In Dibble, the primary Judge had ruled that, because the indictable offence there charged was based upon the same “basic act” as had constituted the summary offence of which the defendant had previously been convicted, to allow the indictment to proceed would be contrary to s16 of the Code and, as such, constitute an abuse of process. In the present case however, where the Act specifically authorises the continuation of the proceedings, there can be no such abuse of the court’s process. Accordingly, the application to stay the indictment should be dismissed.”
“[17] I should add that, if my tentative view (my emphasis) of Section 138(4) of the legislation is correct and if the applicant were to be convicted of the indictable offence, then the question remains as to whether Section 16 of the Code prohibits him from being further punished for that offence. At the very least, I would consider that ordinary and well-established sentencing principles would require that regard be had to the penalty imposed in the Magistrates Court for the breaching offence.”
[27] I note that His Honour, in paragraph 17 of his decision was simply expressing his “tentative” view in relation to the operation of and the interaction of Section 138 of the Domestic and Family Violence Protection Act with Section 16 of the Criminal Code.
[28] I also note Section 45 of the Acts Interpretation Act 1954.
[29] That section is as follows:
“Offence Punishable Only Once
(1) If an act or omission is an offence under each of two or more laws, the offender may be prosecuted and punished under any of the laws, but the offender may not be punished more than once for the same offence.

(2) Subsection (1) applies to a law, unless an act otherwise expressly (my emphasis) provides.
In this section –law includes the common law.”

[30] It is clear from both the Acts Interpretation Act, together with a consideration of s16 of the Criminal Code and when considering the comments made by their Honours in the High Court decision of Pearce, that any provision which allows for an offender to be punished more than once for the same act or omission (so far as it relates to two or more criminal offences) requires an express provision in the legislation to bring about this result.
[31] Section 138 of the Domestic and Family Violence Protection Act 2012 does not expressly provide that an offender can be punished more than once for the same act or omission in relation to two or more criminal offences.
[32] The Northern Territory Court of Appeal in its decision of Ashley v Marinov [2007] NTCA 1, considered a case where the double-jeopardy rule applied in circumstances similar to the one before me.
[33] In that decision the Appellant was charged in the Court of Summary Jurisdiction with two (2) charges, one being a breach of a  Domestic Violence  Order and the other charge being an unlawful assault. The decision makes it clear that the facts alleged in relation to both counts were the same.
[34] In paragraph 13 of that decision, it was said:
“[13] The way the matter proceeded in the Court of Summary Jurisdiction, the breach of the  domestic violence  order that the learned Magistrate found proved was that the appellant assaulted Monita Wilfred. The learned Magistrate found that this allegation had been proven because provocation was not a defence to a regulatory offence and a breach of the  domestic violence  order is a regulatory offence whereas the offence of assault with the circumstances of aggravation alleged in this case is a crime. Consequently, s34(1) of the Criminal Code, which provided that the defence of provocation was open in relation to the crime of assault did not apply to the regulatory offence of breaching the  domestic violence  order. The learned Magistrate did not base his decision on whether or not the Appellant had “caused personal injury to Monita Wilfred.
[14] In our opinion, the offence of breaching the  domestic violence  order was in the circumstances of this case a similar offence to the offence of aggravated assault because the conduct impugned is substantially the same or includes the conduct impugned in the offence of aggravated assault.
[15] The same conclusion was reached in the case of Haywood v Dodd (Thomas J, unreported 24 October 1997). On that occasion, the Court of Summary Jurisdiction reserved a question of law for the Court’s consideration as to whether a conviction for aggravated assault raises a defence pursuant to s 18 of the Criminal Code in respect of a subsequent prosecution for failure to comply with a  domestic violence  order where the same conduct founded both charges and the  domestic violence  order restrained the respondent from “causing or threatening to cause personal injury to the applicant”. In that case the respondent was convicted of the charge of aggravated assault in the Supreme Court, but the learned Magistrate dismissed the complaint relating to the breach of the  domestic violence  order holding that s 18 applied to the circumstances of the case. Thomas J held that because the conduct alleging the breach of  Domestic Violence  Order was the same conduct as constituted the aggravated assault the provisions of Section 18 applied.
[16] The only real point of distinction between the present case and Haywood v Dodd is that in that case the defendant was convicted of the charge of aggravated assault whereas in the present case the appellant was acquitted of that charge. The distinction is of no legal significance because the defence of Section 18 is available to accused persons who have been found guilty or acquitted of a similar offence.
[17] The conclusion we have reached in this case does not necessarily mean that a person dealt with for an assault cannot be convicted also of an offence of breaching the terms of a  domestic violence  order. Much will depend on the precise terms of the order said to be breached, the facts relied upon to constitute the breach and whether or not, even if a defence under s 18 is not open, the court should nevertheless stay the prosecution as an abuse of process: see for example R v Carroll (2002) 213 CLR 635”.
CONCLUSION
[35] I am not satisfied that Section 138 of the Domestic and Family Violence Protection Act 2012 expressly provides that an offender may be punished more than once for two or more criminal offences based on the same act or omission.
[36] The decision of the R v MKW is of no assistance in deciding the matter before me, as only a tentative view as how Section 138(4) operates in relation to s16 of the Criminal Code was reached in that decision.
[37] Further, to simply convict and not further punish the defendant, (as was suggested in this case) does provide for an offender to be punished more than once for the same act.
[38] I note that as a consequence of a conviction being entered in relation to the breach of the protection order, the defendant would be liable for an increased penalty if he committed a subsequent offence of a breach of a protection order.
[39] In the decision of Ridgeway v Parravicini [2008] QDC 38 consideration was given to the issue as to whether a conviction is a punishment.
[40] Her Honour said at paragraph 58:
“[58] Once the conclusion is reached that by pleading guilty to and being punished for the indictable offence the respondent in this case could not be further punished for the summary offence, what then is the appropriate course for the Court to take?
[59] It is the appellant’s contention in this case that the respondent should be convicted without further punishment. The provisions of TORUM would, in that case, render the respondent automatically liable to disqualification of his driver’s licence for six months, (s 86(1)). As noted by Wall DCJ in Grannigan a conviction without further punishment would nevertheless appear on the respondent’s criminal or traffic history and could be used as a basis for a heavy penalty if there was subsequent offending. That disqualification would date from the actual conviction. Accordingly, in this case, if a conviction was recorded the respondent would suffer a real penalty.
[60] In Grannigan Wall DCJ discussed the options available to a court upon reaching a conclusion that it would be an abuse of process to proceed on the summary offence and noted the options of dismissing the complaint or ordering a permanent stay of the proceedings on that charge. In this case the Magistrate made the decision to permanently stay the proceedings and I can see no reason why that was not an appropriate decision in the circumstances. The appeal is accordingly dismissed.”
[41] I find that to convict the defendant of both offences would be contrary to the provisions of Section 16 of the Criminal Code.
[42] I order a permanent stay of the offence of the breach of the  domestic violence  order, on the basis that the offence under the Commonwealth Criminal Code Act 1995 carries a heavier penalty than that provided for under the  domestic violence  legislation and that to convict the defendant of both offences would be contrary to law.

Magistrate Mark Bucknall
8 May 2015

Domestic Violence Application Declared to be an Abuse of Process

SGLB v PAB [2015] QMC 8 (10 June 2015)

Last Updated: 18 June 2015

MAGISTRATES COURTS OF QUEENSLAND

 

CITATION:
SGLB v. PAB [2015] QMC 8
PARTIES:
SGLB
(Applicant/Aggrieved)
v
PAB
(Respondent)
FILE NO/S:
MAG-00077471/15(4)
DIVISION:
Magistrates Court
PROCEEDING:
Application for a  Domestic Violence  Protection Order
ORIGINATING COURT:
Roma Magistrates Court
DELIVERED ON:
10th June 2015
DELIVERED AT:
Roma
HEARING DATE:
20th May 2015
MAGISTRATE:
Hasted PW
ORDER:
The application for a protection by SGLB as Aggrieved against PAB as Respondent filed in the Roma Magistrates Court Registry on 7th April 2015 and allotted filing reference MAG-00077471/15(4) be permanently stayed
CATCHWORDS:
 DOMESTIC VIOLENCE  – PRACTICE AND PROCEDURE – PERMANENT STAY OF PROCEEDING – ABUSE OF PROCESS
Constitution of Queensland 2001 (Qld) section 58
Domestic and Family Violence Protection Act 2012 (Qld) sections 3, 37, 143, 145
Justices Act 1886 (Qld) sections 19, 22, 22A, 147
Magistrates Courts Act 1921 (Qld) section 4
Family Law Act 1975 (Cth) sections 61C, 68T, 69H
Walter v Garner [1993] HCA 77; (1993) 177 CLR 378
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, 85 ALR 1
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Moti v R [2011] HCA 50; (2011) 283 ALR 393
Jeffrey & Katauskas Pty Ltd v. SST Consulting Pty Ltd (2009) 239 CLR 75; 260 ALR 34; [2009] HCA 43
Rogers v. R (1994) 181 CLR 251; 123 ALR 417
Courtenay Investments Ltd v DPP (Cth) [2012] WASCA BC201204240
Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; 227 ALR 425; [2006] HCA 27
Ashby v Commonwealth of Australia (no 4) (2012) 300 ALR 611; [2012] FCA 1411
Packer v Meagher [1984] 3 NSWLR 486
Re Majory [1955] Ch 600
Goldsmith v Speerings Ltd [1977] 2 All ER 566
Toben v Jones (2012) 298 ALR 203; [2012] FCA 1193
Metall& Rohstoff v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391; 3 All ER 14
Trade Practices Commission v TNT Aust Pty Ltd [1994] FCA 957; (1994) ATPR 41-296 (FCA)
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169; 29 ACSR 21
Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd [2014] VSCA 391
Re Bond Corp Holdings Ltd [1990] 1 WAR 465
Re Brunswick NL; Blossomtree Pty Ltd v Brunswick NO (1992) 7 WAR 226; 10 ACLC 658 (WASC)
Re Brunswick NL; Blossomtree Pty Ltd v Brunswick NO (No 2) (1991) 4 WAR 480
Dey v Victorian Railway Cmrs [1949] HCA 1; (1949) 78 CLR 62
Connelly v DPP [1964] AC 1254
Grepe v Laom (1887) 37 Ch D 168
Maple v David Syme & Co Ltd [1975] 1 NSWLR 97
Birkett v James [1978] AC 297
Jefferson Ltd v Bhetcha [1979] 1 WLR 898
JH Billington Ltd v Billington [1907] 2 KB 106
Grassby v R [1989] HCA 45; (1989) 168 CLR 1
Consolidated Press Holdings Ltd v Wheeler (1992) 84 NTR 42
Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139
O’Toole v Scott (1965) 65 SR (NSW) 113
Edgar v Freeman [1915] VicLawRp 2; [1915] VLR 16
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
Howard v Pacholli [1973] VicRp 83; [1973] VR 833
Armour v FAC [2012] QMC 22
FAC v Commissioner of the Queensland Police Service [2014] QDC 46
GKE v EUT [2014] QDC 248
COUNSEL:
M Orchard (Solicitor) for Applicant/Aggrieved
M Zande (Solicitor) for Respondent
SOLICITORS:
Clewett Lawyers for the Applicant/Aggrieved
Zande Law for the Respondent

INTRODUCTION

[1] This is an application by the Respondent, PAB, for an order that the application for a protection order against him filed in the Roma Magistrates Court Registry on 7 April 2015, by the Aggrieved, SGLB, be dismissed or alternatively permanently stayed, because it is “a clear abuse of the Court’s process”[1].

TIMELINE OF THE PROCEEDING

[2] The proceeding was first agitated between the parties when an application for a protection order against the Respondent was filed in the Roma Magistrates Court Registry by the Aggrieved on 12 February 2015 (‘the first application’).
[3] The proceeding duly came before the Court for first mention on the 20 February 2015. On that day, both parties appeared in person. When called upon by the Court to indicate his attitude to the application, the Respondent demurred to it. As a result, the Court gave the customary directions to the parties to prepare the matter for hearing, setting out the timetable for the parties to file with the Court, and serve on the other party, affidavit material containing the evidence in chief of each of the parties and their respective witnesses. The Aggrieved was directed to file and serve her affidavit material on or before 23 March, 2015.
[4] The Aggrieved failed to file and serve her affidavit material on the Respondent or his solicitors by 23 March, 2015. As a result, the matter was listed for further mention in the Roma Magistrates Court on 7 April 2015. On 7 April 2015 when the application was initially mentioned that day, the Respondent appeared in person, but there was no appearance of the Aggrieved. The Respondent’s solicitors delivered written submissions in support of an application for dismissal of the Aggrieved‘s application on the grounds that it represented an abuse of the court’s process.
[5] Because of the absence of the Aggrieved when the matter was mentioned before the Court on the 7 April 2015, the Respondent did not pursue his application for dismissal or a permanent stay on the basis of abuse of process. Rather the Respondent’s solicitor applied to the Court for dismissal of the application pursuant to section 147 of the Justices Act 1886 (Qld)[2]. There being no appearance of the Aggrieved the Court granted the application for dismissal of the application for want of prosecution. No application for costs was made by the Respondent.
[6] Later the same day the Aggrieved appeared in person before the Court and was advised of the dismissal of her application. She immediately attended upon the Court Registry and filed a further application for a protection order in identical terms to the first (‘the second application’).
[7] The second application was duly set for mention before the Roma Magistrates Court on 27 April 2015. On that day the Aggrieved again appeared in person as did the Respondent with his solicitor appearing via telephone link. Again the Respondent made an application for dismissal or a permanent stay of the application on the basis that it was an abuse of process of the court. The Court made directions concerning the filing and serving of a response to the Respondent’s application by the Applicant.
[8] When the proceeding came on for determination by the Court on 20th May 2015, for the first time in the proceeding, the Aggrieved had legal representation in respect of the substantive application as well as application for dismissal or permanent stay by the Respondent. Despite understandable objection by the Respondent’s Solicitor, a further timetable was set for the receipt of written submissions by the legal representatives of the parties in relation to the Respondent’s application.

WHAT IS AN ABUSE OF PROCESS OF THE COURT?

[9] In Walton v. Gardiner[3] Mason CJ Dean and Dawson JJ defined an abuse of process as those category of cases in which the processes of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.
[10] Injustice in the context of abuse of process is not limited to the purpose for which the proceedings were brought but includes a consideration of the consequences of the proceedings for the person invoking the court’s power. The terms “oppressive” and “vexatious”, which are often used to signify the considerations which justify the power to control proceedings to prevent injustice, convey respectively the meaning that the proceedings are “seriously and unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”[4].
[11] The power of a court to control and supervise its process to prevent injustice is supported by two policy considerations. First, the public interest in the administration of justice requires that the courts protect their ability to function as courts ensuring that their processes are used fairly both by state and citizen. Second, that public confidence in the courts will be eroded if the courts do not protect their ability in such manner[5].
[12] The High Court has stated that at least one of three characteristics will be present in many cases of abuse of process, i.e.:

(a) The court’s processes being invoked for an illegitimate or collateral purpose;
(b) The use of the court’s procedures being unjustifiably oppressive to a party; or
(c) The use of the court’s procedure bringing the administration of justice into disrepute[6].

[13] The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed[7]:
[14] A proceeding amounts to an abuse of process when the plaintiff uses the process of the court to effect an object not within the scope of the process, or for a purpose other than that of which the proceeding is properly designed, or to secure some collateral advantage beyond what the law offers[8]. Such improper purpose will render the proceeding an abuse of process if it is the predominant purpose of the moving party; it is not necessary that it should be the sole purpose[9] . Further, the proceeding will be an abuse of process even if the party has a prima face case[10].
[15] If according to ordinary principles legal proceedings would be struck out as an abuse of process, the fact that the proceedings were brought in exercise of a statutory right is not of itself a reason for declining to strike the proceedings out [11]:
[16] But the power must be exercised with great circumspection. The majority of the High Court in Williams v. Spautz[12] said that the power to grant a permanent stay is one to be exercised only in the most exception circumstances. In relation to the care that must be employed before closing the door of the court to a litigant’s apparently legitimate claim, Brooking J remarked in R v Smith [1995] VicRp 2; [1995] 1 VR 10 at 14:

“…Time and again it has been said it is only in exceptional circumstances that a proceeding, civil or criminal, will be stayed on the ground that it constitutes an abuse of process: see, for example, Dey v. Victorian Railways Cmrs [1949] HCA 1; (1948) 78 CLR 62 at 92 per Dixon J; R v. Clarkson [1987] VicRp 80; [1987] VR 962 at 973. It is because the power to grant a permanent stay is in essence a power to refuse to exercise jurisdiction that the power is exercisable only in exceptional cases, or as was said by Mason CJ, Wilson and Dawson JJ in Attorney-General (NSW) v. Watson [1987] Leg Rep SL 1, ‘sparing and with the utmost caution’: Jago v. District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 76 per Gaudron J. In Cox v. Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 at 720 Dixon J said: ‘The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed.’”

DOES A QUEENSLAND MAGISTRATES COURT HAVE THE JURISDICTION TO GRANT THE DISMISSAL OR PERMANENT STAY OF PROCEEDINGS SOUGHT BY THE RESPONDENT?

[17] All of the authorities set out above are principles propounded by, and deal with, the powers of superior courts. Superior courts have inherent powers to control proceedings and prevent abuses of the court’s process[13] . Intuitively and logically all courts which are not classified as superior courts are inferior courts. An inferior court has no inherent power [14] but may have implied powers upon the basis that a grant of power carries with it the power to do everything necessary for its exercise[15].
[18] Sections 22 and 22A of the Justices Act 1886 (Qld), which confirm the continuation of the system Queensland Magistrates Courts as courts of record and invest the courts with jurisdiction, make it clear that the court is an inferior court. By contrast section 58 of the Constitution of Queensland 2001, which invests the Supreme Court of Queensland with jurisdiction, describes that court as a superior court of record. Examples of the limited nature of the jurisdiction of the Queensland Magistrates Court are to be found in section 4 of the Magistrates Court Act 1921 (Qld) (civil claims up to $150,000) and section 19 of the Justices Acts 1886 (quasi criminal jurisdiction to deal with non-indictable offences).
[19] Subject to any statutory provisions, it has been held in relation to the implied powers of inferior courts of other jurisdiction include the power to:

(a) Devise procedures to ensure the proper determination of issues before it [16];
(b) Control the practice, procedures and conduct in court [17] ; and
(c) Deal with proceedings as an abuse of process [18]; and
(d) Remedy a denial of natural justice [19]; and
(e) Give effect to an autrefois defence. [20]

[20] There appears to be a dearth of direct authority bearing on whether a Queensland Magistrates Court has the power to deal with proceedings as an abuse of process. Nevertheless, the judgment of Williams JA in Doonan v. McKay [2002] QCA 514 at paragraph 12 would seem to suggest that it is accepted in Queensland that a Magistrates Court, as a court of inferior jurisdiction, does have such a power:

“[12] Williams v. Spautz (at 518) confirms that Australian Superior Courts have inherent jurisdiction to stay proceedings which are an abuse of process. Nothing was said in argument in this case as to the jurisdiction of a Magistrates Court (or District Court) to stay proceedings in such circumstances and it may be assumed for present purposes that the jurisdiction is the same in all Courts associated with the case. The critical principal established by Williams v. Spautz (at 522) is that proceedings may be stayed where they have been instituted for an improper purpose even where there were reasonable grounds for commencing the proceeding, and even where the moving party has established a prima facie case…”

IS THE APPLICATION FOR A PROTECTION ORDER BY THE AGGRIEVED AN ABUSE OF PROCESS?

[21] The main objects of the Domestic and Family Violence Protection Act 2012 (Qld) (‘the Act’) and the way those objects are to be achieved are set out in section 3(1) & (2) of the Act. Relevantly they provide:

3 Main objects

(1) The main objects of this Act are—

(a) to maximise the safety, protection and wellbeing of people who fear or experience  domestic violence , and to minimise disruption to their lives; and

(b) to prevent or reduce  domestic violence  and the exposure of children to  domestic violence ; and

(c) to ensure that people who commit  domestic violence  are held accountable for their actions.

(2) The objects are to be achieved mainly by—

(a) allowing a court to make a  domestic violence  order to provide protection against further  domestic violence ;

[22] For a Magistrates Court to make a protection order under the Act, it must be satisfied of the following elements on a balance of probabilities [21]:

37 When court may make protection order

(1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—

(a) a relevant relationship exists between the aggrieved and the respondent; and

(b) the respondent has committed  domestic violence  against the aggrieved; and

(c) the protection order is necessary or desirable to protect the aggrieved from  domestic violence .

[23] In her application dated 7 April 2015 the Aggrieved sets out the reasons why a protection order should be granted. Her affidavit sworn on 13 May 2015 sets out the evidence which she says satisfies the provisions of section 37(1) of the Act and why a protection order should be made.
[24] The issue of whether the parties were in a relevant relationship does not appear to be in dispute. What is disputed between the parties is whether an act of  domestic violence  has been committed by the Respondent against the Aggrieved and whether a protection order is necessary or desirable to protect the Aggrieved from  domestic violence .
[25] The Solicitors for the Respondent submit that the Aggrieved’s application appears motivated by the Respondent having retained the children of the relationship in his care[22]. At its highest, argue the Solicitors for the Respondent, the only statements discernible from the application which potentially fit the definition of “ Domestic Violence ” within the Act are:

1. A vague statement of the Respondent having made “verbal abuse” at non-specific times and of non-specific content;
2. A vague reference to some threats made via telephone from Respondent to the Aggrieved saying “you need to watch your backs I will get you or my friends will”; and
3. An alleged physical altercation which is claimed by the Aggrieved to have occurred 8 years ago[23] .

[26] The Solicitors for the Respondent further argue that the Aggrieved and the Respondent have now been separated for nine months and yet the Aggrieved cannot point to any obvious act of  domestic violence  that the Respondent may have directed towards her[24].
[27] By contrast the Solicitors for the Aggrieved argue [25] that the application discloses on its face (in sections 6, 7 and 11 thereof) serious allegations of acts of  domestic violence  perpetrated against the Respondent (Aggrieved) by the Applicant (Respondent) and also sets out the reasons for the Respondent’s (Aggrieved’s) fear that such acts of  domestic violence  will be continued unless arrested by the making of a Protection Order against the Applicant (Respondent). The Solicitors for the Aggrieved nominate the following acts pleaded by the Aggrieved in her application dated 7 April 2015 and argue that they constitute  domestic violence :

(i) Threatening language in the course of telephone calls to wit: “You need to watch your backs. I will get you or my friends will”.
(ii) Verbal abuse on the part of the Applicant which “was out of control”.
(iii) Abusive language on the part of the Applicant when he called the Respondent “vile names”.
(iv) A “full fist” punch which put the Respondent on the ground;
(v) A head butt which rendered the Respondent unconscious and caused a cut to her chin[26].

[28] The Solicitors for the Aggrieved further submit that by her affidavit sworn on 13th May 2015 she sets out the evidence by which it is argued the element of  domestic violence  required by section 37(1)(c) is proven. She specifically deposes to:-

(a) Actual physical violence perpetrated by the Applicant (paragraph 2);
(b) Rude, abusive insulting and intimidating language (paragraph 4);
(c) Ridicule and humiliation of the Respondent (paragraph 5);
(d) Rude, abusive and insulting language (paragraph 6 and 7);
(e) Damage to another’s property (paragraph 8);
(f) Fear of retribution and/or continued acts of  domestic violence  on the part of the Applicant (paragraph 9)[27].

[29] The Solicitors for the Aggrieved argue that there is no need to undertake the forward looking risk assessment exercise that a growing number of cases at different levels of the court hierarchy seem to agree must occur to determine whether it is necessary or desirable to protect the aggrieved from further acts of  domestic violence  by the respondent [28]. Indeed, the forceful submissions of the Solicitors for the Aggrieved are that it is both necessary and/or desirable that an order be made to protect the Aggrieved from  domestic violence  on the part of the Respondent on the ground that the respondent has been assaulted by the Applicant in the past alone, even without the requirement for the court to be satisfied about the likelihood of similar conduct on the part of the Applicant in the future[29].

DISCUSSION

[30] The Respondent’s primary assertion is that that the application for a protection order is brought by the Aggrieved because the Respondent has retained the children of the marriage in his care against her wishes and she desires the situation to be reversed. If the Respondent’s primary assertion fails, it is the alternative contention that the allegations against him are so vague that the Court could not find that an act of  domestic violence  has been committed by him against the Aggrieved. Even if the Court were to find that an act of  domestic violence  had been committed by the Respondent against the Aggrieved, having regard to the passage of time without further complaint by the Aggrieved, the Respondent argues that the making of a protection order is neither necessary or desirable to protect the Aggrieved from further acts of  domestic violence  by the Respondent.
[31] Understandably, if challenged on the basis propounded by the Respondent any litigant would protest the legitimacy of their claim. Indeed, the Aggrieved submits at paragraph 5 of her written submissions dated 13th May 2015 that “this is a legitimate  Domestic Violence  Protection Order Application and that I am genuine (sic) in fear for my safety and for the safety of my property.” An objective examination of all the circumstances surrounding the commencement of the proceeding is therefore called for. The purpose of the examination is to ascertain if the Aggrieved‘s application is genuinely brought for the purposes contemplated by the Act, or if, whilst nominally seeking protection under the Act it is substantially seeking to effect an outcome which would actually change the parent with whom the children of the marriage live with, and therefore be an abuse of the court’s process.
[32] The Aggrieved in her applications dated 12 February 2015 and 7 April 2015 and her affidavit evidence sworn on 13 May 2015 complains of actions by the Respondent towards her that she says constitute acts of  domestic violence  extending over a period of at least 8 years.
[33] Whilst the details of the first event are sketchy, the aggrieved initially complains of a serious assault involving a punch to her face and a head butt by the Respondent about 8 years ago. Again characterised by scant detail as to when the acts might have actually occurred and how often, at paragraph four, five and six of her affidavit sworn on 13 May 2015, the Aggrieved complains of behaviour that may amount to emotional and psychological abuse by being spoken to by the Respondent in a derogatory manner, as well as disparaged and demeaned in front of guests.
[34] With somewhat more particularity the Aggrieved states that early in 2014 the Respondent would yell and verbally abuse and seriously insult her in front of her children and a nephew that was staying with the family at the time. When she decided to move to a different property, she said that because one of the children remained with the Respondent this started several months of bitterness and anger between the parties and that on many occasions the Respondent would verbally abuse her and call her names. Again the details of when the verbal abuse started, what it consisted of, how often it occurred and when it ceased are absent.
[35] The final act relied upon by the Aggrieved as constituting an act of  domestic violence  is a threat to the Aggrieved, presumably directly from the Respondent, to “watch (her) back”. It is assumed that the threat has occurred sometime between early February 2015 and the date of swearing the affidavit in May 2015.
[36] A careful examination of the timeline of when the acts said to constitute  domestic violence  by the Respondent against the Aggrieved occurred does not seem to reveal any particular act of  domestic violence  coinciding with the Aggrieved‘s application to the court for a protection order. Despite having separated from the Respondent in June 2014, after suffering what she said was constant yelling and verbal abuse as well as being subject to further taunts and insults for around 4 weeks before moving to another property, the Aggrieved did not approach the court for protection to prevent further acts of what she says was  domestic violence .
[37] Rather, the event that does seem to have caused the Aggrieved to approach the court to apply for a protection order is the taking of her children from school by the Respondent and not returning them to her care.
[38] Both in her application, and in her affidavit material the Aggrieved constantly returns to the theme of the welfare of her children. For example, at part six of the application titled ‘Grounds for a protection order’ the aggrieved states “Last week he took our kids from school and hasn’t returned them”. Later in the same section the Aggrieved states “I fear for my safety and for my home if he does not get to keep the kids”. At item 7 the Aggrieved seeks to have the children of the marriage W and B included as named persons on any protection order made by the Court. When asked to detail the grounds as to why the children should be included on the order her response is not directed to protecting the children from acts of  domestic violence , or being exposed to  domestic violence  committed by the Respondent. Rather, the Aggrieved‘s reasons for wanting to include the children in a protection order are “If he goes into a rage who knows what he will do. My kids come first to me.”
[39] At item C of section 11 titled ‘Conditions sought in the order’ in answer to the question ‘Do you want to prohibit the respondent approaching the aggrieved?’ The Aggrieved states that if she retains the children, the Respondent is likely to become violent. In answer to item D of section 11 again there is a return to the topic of custody and access of the children when the Aggrieved remarks “He does not need to know where I am if it is his time with the kids.” This answer seems to suggest some type of voluntary or court ordered access arrangement in place whereby the Respondent would spend some time with the children whilst the children would ordinarily live with the Aggrieved.
[40] In her affidavit sworn on 13 May 2015 the Aggrieved states at the second sentence of paragraph 7 “He kept W refusing to let him come with me, which started several months of bitterness and anger.” At paragraph 10 of her affidavit she again comments on the subject of custody and access to the children when she states “Since early February when he took my kids off me altogether, he has laid low so that I do not take the kids back… He is trying to get custody of the kids full time, and I fear that if he doesn’t achieve this, then he will harm either myself, my property or my animals”.

CONCLUSION

[41] Should the Aggrieved‘s application proceed to hearing, the issue of whether or not the parties are in a relevant relationship is not in dispute. Depending upon how the Court assessed the evidence of the Aggrieved and her witnesses as well as the Respondent and his witnesses, there may or may not be parts of the Aggrieved‘s evidence that a Court might find was or were an act or acts of  domestic violence  committed by the Respondent against the Aggrieved. The final element of section 37(1) of the Act requiring proof, namely whether a protection order is necessary or desirable to protect the Agrieved from further  domestic violence  will depend upon the Court’s assessment of the risk of an act of  domestic violence  being committed by the Respondent against the Aggrieved in the future having regard to the evidence adduced at the hearing of the application and the factors set out in section 37(2) of the Act.
[42] Whilst the Aggrieved’s application and affidavit material enumerates some evidence that the Court might find are acts of  domestic violence , in the Courts view, the concern that seems to have brought the Aggrieved to court is the fact that the children of the relationship have been retained by the Respondent. Both in her application and her affidavit material whilst the Aggrieved complains of acts that might constitute  domestic violence , in the Court’s opinion the more dominant theme of her application, and the one to which she returns constantly to is what affect the children residing with the Respondent has had on her, whom the children will reside with in the future, whom the children should spend time with, and what retaliation the Aggrieved might suffer from the Respondent if she withholds the children from the Respondent in the future.
[43] Of course the Family Law Act 1975 (Cth) provides that each of the parents of a child who has not turned 18 years has parental responsibility for a child[30]. Where there are disputes between the parents concerning parental responsibility in relation to children then those disputes should be resolved under Part VII Division 6 of the Family Law Act 1975 (Cth) by courts of competent jurisdiction [31]. Except in very limited circumstances, a Queensland Magistrates Court exercising jurisdiction under the Domestic and Family Violence Protection Act 2012 (Qld) with respect to an applications for a protection order has no power to make orders that affects parental responsibilities of the parents of a child who are in dispute[32].
[44] Having regard to all the facts and circumstances surrounding the Aggrieved‘s application for a protection order including her affidavit evidence, the Court finds that the predominant purpose of the application is to effect a change in the current living arrangements of the children of the marriage, with the subsidiary purpose being to obtain protection from any retaliatory acts by the Respondent that may amount to  domestic violence  should the Aggrieved be successful in the primary purpose of the application. The Court therefore finds that the Aggrieved‘s application for a protection order to be an abuse of process of the court and should be permanently stayed.

ORDER

[45] It is the order of the Court that the application for a protection order by SGLB as Aggrieved against PAB as Respondent filed in the Roma Magistrates Court Registry on 7 April 2015 and allotted filing reference MAG-00077471/15(4) be permanently stayed.

 


[1] Paragraph 31 of the written submissions of the Solicitors for the Respondent dated 24 April 2015.
[2] By virtue of section 143(a) Domestic and Family Violence Protection Act 2012 (Qld) the provisions of the Justices Act 1886 (Qld) apply to a proceeding under the first Act unless inconsistent the later Act.
[3] [1993] HCA 77; (1993) 177 CLR 378 at 395.
[4] See Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 502[1989] HCA 21; , 85 ALR 1 at 11 per Deane and Gaudron JJ
[5] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 520; [1992] HCA 34; 107 ALR 635; 66 ALJR 585 BC9202694 cited in Moti v R (2011) 283 ALR 393; 86 ALJR 117; [2011] HCA 50; BC201109425 at [57]; Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; 260 ALR 34; [2009] HCA 43; BC200909275 at [27] – [28].
[6] See per McHugh J in Rogers v. R (1994) 181 CLR 251 at 286; 123 ALR 417; 68 ALJR 688; BC9404645 referred to in Moti v R (2011) 283 ALR 393; 86 ALJR 117; [2011] HCA 50; BC201109425 at [10], and Courtenay Investments Ltd v DPP (Cth) [2012] WASCA BC201204240 at [95].
[7] Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275 at 279; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256; 227 ALR 425; {2006] HCA 27; BC200604226 at [9] – [15]; Courtney Investments Ltd v DPP (Cth) [2012] WASCA 121; BC201204240 at [94]; Ashby v Commonwealth of Australia (no 4) (2012) 300 ALR 611; [2012] FCA 1411; BC201209686.
[8] Packer v Meagher [1984] 3 NSWLR 486, referring to Re Majory [1955] Ch 600; Goldsmith v Speerings Ltd [1977] 2 All ER 566; Toben v. Jones (2012) 298 ALR 203; [2012] FCA 1193; BC201208322.
[9] Goldsmith v Sperrings Ltd, above; Metall & Rohstoff v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391; 3 All ER 14; Williams v Spautz, above; Trade Practices Commission v TNT Aust Pty Ltd [1994] FCA 957; (1994) ATPR 41-296 (FCA); White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169 at 239; [1998] FCA 806; 29 ACSR 21; BC9803173; Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd [2014] VSCA 391; BC201410949.
[10] Williams v Spautz, above; Re Bond Corp Holdings Ltd [1990] 1 WAR 465 at 476 – 7; (1990) 8 ACLC 153 at 163; Re Brunswick NL; Blossomtree Pty Ltd v Brunswick NO (1992) 7 WAR 226; 10 ACLC 658 (WASC).
[11] Re Brunswick NL; Blossomtree Pty Ltd v Brunswick NO (No 2) (1991) 4 WAR 480.
[12] (1992) 714 CLR 509 per Mason CJ, Dawson J, Toohey J and McHugh J at paragraph 42.
[13] Dey v Victorian Railway Cmrs [1949] HCA 1; (1949) 78 CLR 62 at 91; Connelly v DPP [1964] AC 1254 at 1301, Grepe v Laom (1887) 37 Ch D 168; Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 Birkett v. James [1978] AC 297; Jefferson Ltd v Bhetcha [1979] 1 WLR 898 at 904; JH Billington Ltd v Billington [1907] 2 KB 106.
[14] Grassby v R [1989] HCA 45; (1989) 168 CLR 1.
[15] Consolidated Press Holdings Ltd v Wheeler (1992) 84 NTR 42.
[16] Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139.
[17] O’Toole v Scott (1965) 65 SR (NSW) 113.
[18] Edgar v Freeman [1915] VicLawRp 2; [1915] VLR 16.
[19] Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1.
[20] Howard v Pacholli [1973] VicRp 83; [1973] VR 833.
[21] As required by section 145(2) of the Act.
[22] Paragraph 28(a) of written submissions of the Solicitors for the Respondent dated 27 April 2015.
[23] Paragraph 28(b) of written submissions of the Solicitors for the Respondent dated 27 April 2015.
[24] Paragraph 30 of the written submissions of the Solicitors for the Respondent dated 27 April 2015.
[25] Paragraph 11 of the written submissions of the Solicitors for the Aggrieved dated 27 May 2015.
[26] Paragraph 13 of the written submissions of the Solicitors for the Aggrieved dated 27 May 2015.
[27] Paragraph 14 pf the written submissions of the Solicitors for the Aggrieved dated 27 May 2015.
[28] See for example Armour v FAC [2012] QMC 22 at [18] per Costanzo M; FAC v Commissioner of the Queensland Police Service [2014] QDC 46 at [36] per Kingham DCJ; GKE v. EUT [2014] QDC 248 at [33] per McGill SC, DCJ.
[29] Paragraph 16 of the written submissions of the Solicitors for the Aggrieved dated 27 May 2015.
[30] S 61C(1) of the Family Law Act 1975 (Cth).
[31] In Queensland these courts are the Family Court and the Federal Circuit Court of Australia (S 69H Family Law Act 1975 (Cth)).
[32] S 68T of the Family Law Act 1975 (Cth) allows a Magistrates Court in making or varying a temporary protection order under the Domestic and Family Violence Protection Act 2012 (Qld) to revive, vary or suspend a parenting order, recovery order, injunction, undertaking, parenting plan or recognisance dealing with a person spending time with a child for a maximum of 21 days.

Domestic Violence Court Proceedings – Part 2

After the First Hearing

Before the next hearing date, the court may give a timetable with steps for filing documents and other evidence. You should make sure you follow what you need to do in the time table.

As part of this you are likely to be required to file an affidavit by yourself and any other witnesses. An affidavit is a formal statement which needs to be sworn or affirmed in front of a Justice of the Peace, Solicitor or Commissioner for Declarations (Form DV5).

Subpoenas

A subpoena is a direction by the court making a person (this may be someone like a doctor or hospital manager) give evidence and/or bring along documents, medical records etc. To get a subpoena issued, take a DV22A Request for Subpoena together with the subpoena you want issued (use a DV22 Subpoena form) to the court registry. You may need a court date to have the subpoena issued. Once issued, you will then need to serve the subpoena on the person you want to give evidence or bring along documents or records etc to court. The court may direct you as to how to serve the subpoena, for example sending it by post. The person “subpoenaed” will then provide the documents or records listed in the subpoena to the court registry. If it is very expensive for this person to provide these documents etc, the court may order you to pay their expenses.

You will then need to make an application (if you wish to apply in writing you can use an Application to Inspect and Copy Subpoenaed Document) for an order to inspect and copy the subpoenaed documents. If an order is made, you may only inspect or copy the documents in the registry. You may need to make an appointment to inspect and copy and you should contact the registry to arrange this.

Evidence

The Rules explain how a court may receive evidence, including that you may rely on evidence or an affidavit used in an earlier proceeding (including an earlier criminal proceeding or child protection proceeding), if this is relevant to the proceeding and the court gives its permission.

If you are filing evidence in the form of a plan, photograph, video or audio recording or model (this is called a media exhibit), you must give notice, at least 7 days before the hearing, to all other parties that the exhibit has been filed; unless there is an order that the exhibit be placed in a sealed container (e.g. an envelope). You may use the form DV30 Notice of Filing of Media Exhibit. When filing a media exhibit you must ensure it is in a format capable of being played or viewed in the court. If you are the other party, you may then see the media exhibit at the registry before the hearing. You should contact the registry to make an appointment time for inspection of the media exhibit.

What happens at the next hearing?

Courts hearing applications are closed—no members of the public will be allowed into the courtroom. You can bring someone else with you for support but it will be up to the magistrate if this person is allowed in the courtroom.

If the magistrate makes a DVO, both you and the respondent will be given a copy.

 

Is the magistrate’s decision final?

Either you or the respondent can appeal the magistrate’s decision if either of you disagree with it. You must lodge your appeal within 28 days of the magistrate’s decision.

You should get legal advice if you want to appeal. Appeals must be lodged at the District Court.

Is a DVO a criminal offence?

No. Taking out a DVO does not give the respondent a criminal record.

However, it is a criminal offence to disobey a DVO.

What should I do if the respondent disobeys the order?

Tell the police. You should report any breach, so always keep the order with you in case you need to show it to the police.

 

Can the conditions be changed if the situation changes?

Yes. If circumstances change, you can apply to have the order varied.

An Application to Vary a Domestic Violence Order (Form DV4) must be filed at a Magistrates Court registry.

How do I obtain a copy of a document from the court file?

Make a written request – you may use the DV34 Request to Inspect and/or Copy Document form.

Withdrawing an application

If you applied for a domestic violence order or a variation of a domestic violence order, you may withdraw the application. You can do this by telling the magistrate in court, or in writing to the clerk of the court. (You may use the DV27 Application to Withdraw form.) The court may decide an application to withdraw without the parties appearing, unless the court orders otherwise. If the clerk of the court receives an application to withdraw, the clerk must send a copy to the nearby police officer for service on the other parties in the proceeding.

 

Domestic Violence Court Proceedings – Part 1

What is domestic violence?

Domestic violence is:

(a) physical or sexual abuse

(b) emotional or psychological abuse

(c) economic abuse

(d) threatening behaviour

(e) coercive behaviour or

(f) behaviour that in any way controls or dominates or causes a person to fear for their personal safety or wellbeing

by one person towards another person with whom they are in a relationship.

This behaviour can be a criminal offence (for example an assault, sexual offence or stalking), which you can report to police for the person to be charged. It can also lead to an application being made for a domestic violence order which is a civil (non-criminal) type of order.

A Domestic Violence Order

A Domestic Violence Order (DVO) is a different legal option to someone being charged with a criminal offence as it is a civil order.

A DVO tells the person who has been violent towards you what they must not do in the future. You can apply for a DVO to help protect you, your children and other people named on the DVO from someone who has been violent towards you.

A DVO can also be made or varied by a court if a person is sentenced for a criminal offence involving domestic violence.

A DVO can either be a temporary protection order or a protection order.

DVOs are governed by the Domestic and Family Violence Protection Act 2012 (the Act) and the Domestic and Family Violence Protection Rules 2014 (the Rules).

Application for a protection order

A Guide to completing the Application for a Protection Order and the Application Form (Form DV1) are available on the Queensland Courts website.

You can apply for a protection order yourself or get a police officer, solicitor or authorised person (friend, relative, or community/welfare worker) to apply for you.

How does the respondent find out about the application?

The Rules explain about how service happens. Service is how a person is given a court document. Personal service is carried out by police in domestic violence applications. For example, a copy of an application for a protection order and a domestic violence order or varied domestic violence order, must be personally served by a police officer. Personal service means giving the document to the person to be served and telling the person what the document is. If the person does not accept the document, the person serving it may serve it by putting it down in the person’s presence and telling the person what it is.

If the respondent is unable to be personally served, there are other options available to police for notifying them about application and orders.

The rules also explain how other types of service can happen.

I have filed my application at the court, what happens next?

When filing your application, you will be given a date to go to court. You must go to court on this date.

You can:

(a) appear by yourself, or

(b) appear with a police prosecutor or your lawyer

If you want the police prosecutor or lawyer to appear with you, make sure you arrange this in advance with them.

If you wish, you can bring someone else with you for support but it will be up to the magistrate if this person is allowed in the courtroom at the time of the hearing.

Steps to hearing

After the respondent has been served, at the next court date the respondent can agree to a protection order being made. If the respondent disagrees with the application, another court date, called a trial or hearing will be given when the person seeking protection presents the case as to why a protection order should be made.

 

 

Conflict of Interest

Conflict of Interest – Case Update

Osferatu & Osferatu [2015] FamCAFC 177 (15 September 2015)

Last Updated: 21 September 2015

FAMILY COURT OF AUSTRALIA

OSFERATU & OSFERATU
[2015] FamCAFC 177
FAMILY LAW – APPEAL – LEGAL PRACTITIONERS – Where the trial judge made orders restraining the husband’s solicitors from continuing to act for him – Where a solicitor of the firm representing the husband previously worked for the firm representing the wife – Where the solicitor in question had no dealings with the wife during his previous employment – Where the solicitors of the husband provided an undertaking to establish and maintain effective information barriers – Whether the wife waived her objection to the husband’s solicitors continuing to act for him – Whether the wife had disclosed confidential information to the solicitor in question during his previous employment – Whether there was a real risk of disclosure of any confidential information – Where the trial judge failed to identify any confidential information conveyed by the wife to her solicitors and failed to consider whether any asserted belief as to the misuse of that information was “reasonable” – Where the trial judge failed to take into account the wife’s previous waiver of her objection and the existing information barriers in the husband’s firm – Appeal allowed.

FAMILY LAW – APPEAL – Leave to – Whether leave to appeal is required from an order restraining a solicitor from acting in proceedings – Where an order restraining a solicitor from acting is a final order – Leave not required.

Asia Pacific Telecommunications Ltd v Optus Networks Pty Limited [2007] NSWSC 350
Billington & Billington (No 2) [2008] FamCA 409
Carr and Anor v Finance Corporation of Australia Limited [1981] HCA 20; (1981) 147 CLR 246
Drover & Glasson and Anor [2014] FamCA 714
Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423
Kallinicos v Hunt [2005] NSWSC 1181
Licul v Corney [1976] HCA 6; (1976) 180 CLR 213
Mancini v Mancini [1999] NSWSC 800
McMillan and McMillan [2000] FamCA 1046; (2000) FLC 93-048
PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905
Prince Jeffri Bolkiah v KPMG (A Firm) [1998] UKHL 52; [1999] 2 AC 222
Stewart & Stewart (unreported, Family Court of Australia, Lindenmayer J, 17 April 1997)
Thevenaz v Thevenaz (1986) FLC 91-748
Volker and Anor& Dunwell and Anor (2013) FLC 93-558
APPELLANT:
Mr Osferatu
RESPONDENT:
Ms Osferatu
FILE NUMBER:
SYC
2318
of
2011
APPEAL NUMBER:
EA
96
of
2015
DATE DELIVERED:
15 September 2015
PLACE DELIVERED:
Sydney
PLACE HEARD:
Sydney
JUDGMENT OF:
Finn, Ainslie-Wallace & Aldridge JJ
HEARING DATE:
27 July 2015
LOWER COURT JURISDICTION:
Family Court of Australia
LOWER COURT JUDGMENT DATE:
12 June 2015
LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:
Mr Kearney SC
SOLICITOR FOR THE APPELLANT:
York Law
COUNSEL FOR THE RESPONDENT:
Mr Gould
SOLICITOR FOR THE RESPONDENT:
Watts McCray


ORDERS

(1) The appeal is allowed.
(2) Paragraph 1 of the Orders made by the Honourable Justice Foster on 12 June 2015 is discharged.
(3) The Court notes the undertakings given to the Court by Mr F on 12 May 2014, Ms V given on 27 May 2015, Mr W given on 27 May 2015 and Ms Q given on 26 May 2015 and, on that basis, paragraphs 3 and 4 of the Application in a Case filed 12 May 2015 are dismissed.
(4) The Respondent is to pay the Appellant’s costs of this appeal as agreed or in default of agreement as assessed. The costs are to be paid within 28 days of agreement or assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Osferatu & Osferatu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 96 of 2015
File Number: SYC 2318 of 2011

Mr Osferatu

Appellant

And

Ms Osferatu

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

  1. Mr Osferatu, who we will refer to as the husband, appeals against an order made by Foster J on 12 June 2015 restraining his solicitors from continuing to act in proceedings between him and Ms Osferatu (“the wife”). The basis for the making of the order was that Mr F, who had been a partner in the firm of the solicitors instructed by the wife, left that firm in February 2012 and started working in the firm of solicitors instructed by the husband on 5 May 2014. He has since become a partner of that firm. It was common ground that Mr F did not have any direct dealings with the wife whilst he was a member of the firm instructed by her.
  2. Before turning to the grounds of appeal it is necessary to set out some brief facts of the matter and to discuss the applicable principles.

BACKGROUND

  1. On 24 June 2011 the wife instructed her present solicitors, Watts McCray. The parties then engaged in substantial litigation concerning their property and children. Final parenting orders were made by consent on 21 November 2013 and final property orders were made by consent on 29 January 2014. The husband was represented in the litigation that led to both sets of consent orders by Barkus Doolan Family Lawyers (“Barkus Doolan”).
  2. On 7 May 2014 Watts McCray wrote to Barkus Doolan referring to the fact that Mr F (who had previously worked at Watts McCray) was now working at Barkus Doolan and saying that, subject to Mr F giving an undertaking as to certain matters, no objection would, at that stage, be taken to Barkus Doolan continuing to act for the husband but, also, reserving the right to object if there were further proceedings.
  3. On 12 May 2014 Mr F signed and provided to the wife the following undertaking:

I … undertake to the Family Court of Australia and to Watts McCray and their client, [the wife], that I will not disclose any information that I may be aware of concerning either [the wife] or the proceedings before the Family Court of Australia between [the wife] and [the husband] to any other person. In that regard, I undertake not to:

  1. Speak with [the husband] or any person at Barkus Doolan concerning any information I may have concerning [the wife] or her proceedings;
  2. Disclose directly or indirectly any information that I may have in my possession or control concerning [the wife] and her proceedings;
  3. Have any involvement with the proceedings;
  4. View any correspondence files, tax invoices, briefs or emails either sent to Barkus Doolan or received by them, nor be involved in the matter in any manner whatsoever in the future;
  5. Convey to any person any information about the affairs of [the wife] which I may have as a result of my employment with Watts McCray.
  6. On 13 May 2014 Watts McCray wrote to Barkus Doolan saying:

Our client confirms her position (recorded in our letter of 7 May 2014) that such an Undertaking would only be accepted by her on the basis that – should there be further proceedings as between our clients (howsoever described, and beyond the implementation of the Terms of Settlement as between our respective clients) – our client would then formally object to your firm continuing to act on behalf of [the husband]…

  1. Barkus Doolan made no response.
  2. Watts McCray reiterated their position in a letter of 4 August 2014 and sought a confirmation that the husband would retain other legal representation in the event that further proceedings in the Family Court would be instituted. Barkus Doolan again made no response to this letter.
  3. On 7 October 2014 Barkus Doolan advised Watts McCray that they had ceased to act for the husband.
  4. On 3 February 2015 the husband on his own behalf filed an Application in a Case seeking the following orders:
    1. This matter be relisted before his Honour Justice Le Poer Trench forthwith
    2. That [Mr U] immediately replace [Ms GG] as the Court appointed family therapist to the [Osferatu] family
    3. That [the child E] immediately resume contact with the Applicant and [the child B] on the following staged basis,
      • Immediately for one hour twice a week, for four weeks.
      • Thereafter in accordance with the existing Courts [sic] Orders.
    4. That the Respondent deliver [S] and [E] to the home of their [grandmother] at [Property Y] or to her ‘Respite Centre’ for a minimum of 30 minutes at least once per month commencing immediately.
    5. That the Respondent unblock the Applicants [sic] mobile telephone number on [E’s] mobile telephone and leave it unblocked.
    6. That the Respondent deliver [E’s] mobile phone to the Court.
    7. That the Respondent pay the Applicant’s costs of this application.
  5. On 19 February 2015, in the context of the husband’s application filed on 3 February 2015, the wife wrote to the husband by email saying:

I do not wish for you to be prejudiced with your legal representation and appreciate how rusty you are in an unfamiliar environment so I have no issue in your previous law firm … representing you going forward.

  1. Notwithstanding that communication the husband continued to act for himself.
  2. On 9 March 2015 Watts McCray wrote to the husband, repeating the wife’s objection to Barkus Doolan acting for the husband.
  3. On 27 March 2015 the husband filed an Initiating Application seeking only Order 2 from his Application in a Case filed on 3 February 2015 (that the family therapist be changed) and costs.
  4. On 20 April 2015 the wife filed a response to the Initiating Application in which she sought that the husband’s Initiating Application be dismissed as well as variations to the existing parenting and child support orders.
  5. On 1 May 2015 Barkus Doolan filed and served a Notice of Address for Service and started to act for the husband again.
  6. On 4 May 2015 an Amended Application in a Case was filed by Barkus Doolan on behalf of the husband, which again sought a change of family therapist and certain parenting and child support orders were also sought.
  7. On 12 May 2015 the wife filed an Application in a Case seeking orders restraining the husband from retaining Barkus Doolan and restraining that firm from acting on behalf of the husband.
  8. On 12 June 2015 Foster J granted the restraint against the husband and from that restraint the husband now appeals.

APPLICABLE LAW

  1. There are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. They are: breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a court over its officers and to control its process. Each category has its own principles which guide its operation. The third category may be involved in conjunction with either of the first two so there is clearly an overlap; nonetheless, the basis for the exercise of the jurisdiction in each is different (Kallinicos v Hunt [2005] NSWSC 1181).
  2. The case before the trial judge was only concerned with the first category: the risk of the misuse of confidential information and we thus confine ourselves to it.
  3. The manner in which a client’s confidential information is to be protected in family law proceedings was clearly explained by the Full Court in McMillan and McMillan [2000] FamCA 1046; (2000) FLC 93-048 where the Full Court extensively reviewed existing authorities in the Family Court and in many other courts. The following statement of Frederico J in Thevenaz v Thevenaz (1986) FLC 91-748 at 75,447 was expressly adopted by the court:

Thus “a practitioner who wishes to cease acting for one party and to continue to act for the other party will be restrained from doing so by the court if there is any evidence that confidential communications have been made to him by the party for whom he is ceasing to act. In such a case the court will not weigh conflicting evidence as to confidence. It will act upon the evidence of the client who swears that he has made the confidential communication”. (Reference omitted).

  1. The following passage from Thevenaz was also expressly adopted by the Full Court in McMillan:

It is my view that in this case [the lawyer] should not continue to act on behalf of [the wife]. It may well be that the risks were he to do so are more theoretical than practical. However, it is asserted and not contradicted that material in the files does relate to confidences exchanged in the course of the former firm previously acting on behalf of both parties and would embarrass the husband. It is of the utmost importance that justice should not only be done but should appear to be done. In the circumstances of the present case, there is a risk which may well be merely theoretical but still exists, that justice might not appear to be done.

  1. In an unreported decision of Stewart & Stewart (unreported, Family Court of Australia, Lindenmayer J, 17 April 1997) Lindenmayer J said:

… All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her, or at least to her disadvantage, in these current proceedings…

  1. Of that passage the Full Court in McMillan said at [87]:

In other words, the client need only give evidence that he has provided confidential information to the solicitor (or in this case, the law clerk/secretary). The client does not have to divulge the content of that information. (See Mills and also Lindenmayer J in Stewart.) In the present case, we consider it sufficient, as we said earlier, that the husband has sworn that he had given instructions to Mr Pitts as to how he wished his “matter to be conducted and the position to be put to the wife”. It is obvious that such matters would come within the description of “confidential information”.

  1. It is, however, important to recognise that McMillan, as were Thevanez and Stewart, was a case where the applicant was seeking to restrain a solicitor or a clerk to whom they had recently, and directly, given instructions from acting, or the firm to which they had moved, from acting, in those proceedings. Because the applicants in those cases had given instructions to the solicitor about the very matter in issue, it follows easily that there would be a finding that the solicitor who had moved was in possession of confidential information which is or may be relevant to that matter. It is for that very reason that the passage of Lindenmayer J in Stewart commenced with the words “All that is necessary is that …”. His Honour was simply saying that, in such circumstances, the burden borne by the applicant was discharged by such evidence. Nothing that appears in Stewart, Thevanez or McMillan obviates the need for an applicant seeking such relief from discharging his/her burden of proof by adducing cogent and persuasive evidence. This is particularly so where, as here, the circumstances differ from McMillan. In this case Mr F had never taken instructions from the wife.
  2. In Mancini v Mancini [1999] NSWSC 800 Bryson J said at [7]:

It is of importance to observe that information generally is not protected; the protection available relates to confidential information, and is available to the person entitled to the confidence. No circumstances were put forward in which Mrs Mancini herself is entitled to the protection of the law against the use of any particular information by Mr Mancini or by the lawyers whom he has chosen to retain. It is not possible to address in any clear way and to come to a decision on protection of any alleged confidential information without identifying what the confidential information is in a sufficiently specific way to enable it to be identified. Without doing that it is not possible to come to a conclusion on whether the information truly is confidential, to consider and appraise the circumstances in which it came into existence and was communicated, to come to any conclusion about whether protection is appropriate, or to make any enforceable order. A case about confidential information cannot be nebulous. Confidential information which once existed may no longer be confidential; it may no longer be available although it was communicated in the past; it may not be material to any use which might now be proposed to be made of information. Without specificity a claim to protection cannot be defended or decided on any fair procedural basis, and a general allegation of the kind put forward here to the effect that from the nature of the past legal business confidential information must have been communicated should not in my opinion be upheld.
(Emphasis added)

  1. The need for this proof is obvious. In Billington & Billington (No 2) [2008] FamCA 409 Coleman J said at [43]:

As the authorities make clear, the jurisdiction to grant relief of this kind “is to be exercised with caution”. The court understands caution to be exercisable in relation to the totality of the evidence, and the matters relevant to the exercise of the jurisdiction, and not to be referrable only to the interests of the party seeking the relief. Relevant in that context is the need to give appropriate weight to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. Also relevant in this context is the cost and inconvenience of requiring the wife to retain new lawyers. Quite apart from the work required to be undertaken by solicitors familiar with the case to adequately represent the wife’s interests before the Full Court, realistically, were new solicitors now to be instructed, a far greater level of reading and preparation would be required, and at greatly increased expense to the wife.

  1. These are serious and weighty considerations which must, of course, be balanced against the competing interests of the client which were described by Lord Millett in Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52; [1999] 2 AC 222 at 236 as follows:

…It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.

  1. We see no conflict between what was said by the court in McMillan and in Volker and Anor & Dunwell and Anor (2013) FLC 93-558 as it was suggested that there might be in Drover & Glasson and Anor [2014] FamCA 714 (which was a decision referred to by the trial judge). Accordingly, we reject any such suggestion. It is to be recalled that McMillan and Volker were cases dealing with very different circumstances. Merely because a principle is expressed in different words by different courts, often to highlight the exigencies of that particular case, does not mean that the principle itself has been altered.
  2. This conveniently leads to the next point. Once the client has discharged the onus of proving that the solicitor is in possession of confidential information which is, or may be relevant to the new matter, that is not the end of the case.
  3. The next step involves a consideration of the risk that the relevant confidential information will be disclosed. The risk of disclosure “must be a real one, and not merely fanciful or theoretical. But it need not be substantial”: Prince Jefri at 237.
  4. How is this to be determined? It is by the consideration of the risk and of any protective measures taken or proposed by the solicitor or his or her new firm. The evidentiary burden on this issue falls squarely on the lawyer or the firm to which he or she has moved. As Lord Millett said in Prince Jefri at 237-238:

Once the former client has established that the defendant firm is in possession of information which was imparted in confidence and that the firm is proposing to act for another party with an interest adverse to his in a matter to which the information is or may be relevant, the evidential burden shifts to the defendant firm to show that even so there is no risk that the information will come into the possession of those now acting for the other party. There is no rule of law that Chinese walls or other arrangements of a similar kind are insufficient to eliminate the risk. But the starting point must be that, unless special measures are taken, information moves within a firm. In MacDonald Estate v. Martin, 77 D.L.R. (4th) 249, 269 Sopinka J. said that the court should restrain the firm from acting for the second client “unless satisfied on the basis of clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur.” With the substitution of the word “effective” for the words “all reasonable” I would respectfully adopt that formulation.

  1. We agree with Goldberg J in PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905 where he said at [50] and [51]:
    1. It is apparent from Lord Millett’s judgment that there are three stages which need to be considered:
      • whether the firm is in possession of information which is confidential to the former client;
      • whether that information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;
      • whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.
    2. The burden of establishing the first two propositions is upon the former client but the burden of establishing the third proposition moves to the firm proposing to act once the first two propositions are satisfied…
  2. A balancing of the nature of the information against a consideration of the person to whom the information was given, when the information was given, the relevance of that information to the current proceedings, the risk of disclosure and any proposed protective measures is required before any determination can be made as to whether any relief is required and, if so, what is the appropriate relief.
  3. As an example of the application of such considerations we refer to Asia Pacific Telecommunications Ltd v Optus Networks Pty Limited [2007] NSWSC 350.
  4. None of this conflicts with what was said in McMillan. At [93] their Honours said:

…We accept that the mere fact of access to confidential information is not the test. Rather the issue is whether the former client actually imparted confidential information to a solicitor (or clerk) who is now employed by the solicitors acting on the other side of the litigation.

  1. The risk, and management of the risk, were not issues in McMillan, although the authorities quoted there deal with that aspect of the law in the manner we have described.
  2. Before leaving this discussion we wish to refer to the statement in McMillan that even “a theoretical risk of the misuse of the confidential information” is sufficient to found relief. The phase “a theoretical risk” was echoed in Prince Jeffri in the passage quoted earlier. For our part, we find the word “theoretical” unhelpful. There is indeed a continuum of risk from obvious to remote. In Asia Pacific, Bergin J described the risk of disclosure or misuse as “probably real and not fanciful” (at [41]). In Billington Coleman J referred to “any real risk” (at [37]). That phrase was also used by Goldberg J in PhotoCure (at [78]). This is a more meaningful phrase. The consideration should be whether there is a real risk of misuse as opposed to one which is merely fanciful. To the extent that what we have said may be seen to represent a departure from McMillan (which we do not necessarily accept), it is to accord with more recent authority and provides a clearer test.
  3. We return finally to Lord Millett in Prince Jefri:

Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred; the latter will often be obvious. I do not think that it is necessary to introduce any presumptions, rebuttable or otherwise, in relation to these two matters. But given the basis on which the jurisdiction is exercised, there is no cause to impute or attribute the knowledge of one partner to his fellow partners. Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case…
(Emphasis added)

  1. It follows from the above discussion that the law requires that an applicant seeking to restrain a solicitor from acting must adduce evidence that establishes the confidential information and the risk of the misuse of that information in the circumstances. The weight and persuasiveness of any evidence adduced depends, of course, on the precision of the evidence called, the nature of the confidential information and the nature of the risk of disclosure.

APPROACH OF THE TRIAL JUDGE

  1. After undertaking a consideration of the law the trial judge adopted the approach set out in McMillan. He concluded:
    1. In the circumstances of the solicitor’s role as “Work Director” when a partner in Watts McCray, and his engagement in detailed discussions as to the wife’s case and the wife’s evidence of her concerns that the nature of her instructions to Watts McCray and the advices given to her by that firm may be communicated to the husband’s solicitors through the solicitor, it is readily apparent that the proper administration of justice is clearly indicative of the relief sought by the wife.
  2. In doing so he relied on the following evidence of the wife:
    1. I say that by virtue of the employment of [Mr F], formerly of Watts McCray Lawyers, by Barkus Doolan Family Lawyers, [the husband’s] solicitors (and by extension [the husband] himself) have been privy to, and are aware of:

(a) My instructions I have provided to Watts McCray Lawyers from time to time;
(b) The nature of advices received by me from Watts McCray Lawyers from time to time.

THE APPEAL

  1. Although the Notice of Appeal contains eight grounds of challenge to his Honour’s orders, the appeal was argued on three broad bases. The first was that the wife had not established that Mr F had received confidential information. The second was that his Honour erred in finding that the wife had not “waived” any objection to Mr F continuing to act for the husband and had failed to give reasons for that finding. Finally, it was argued, that, on the evidence, there was no real risk of disclosure. We shall approach the appeal in the same way.

1. Confidential information being received by Mr F

  1. It is immediately apparent from our discussion of the facts in this matter that this case differs significantly from McMillan because the wife gave evidence that she had never spoken to or provided instructions to Mr F. It therefore requires a careful consideration as to whether the wife has discharged the burden of proving that Mr F had received confidential information which is, or may be, relevant to the present proceedings.
  2. Other than the evidence of the wife to which we have earlier referred, the only evidence relied on by the wife, if it indeed could be called that, was the following which appears in a letter written by Watts McCray to Barkus Doolan on 7 May 2014 which was annexed to the wife’s affidavit sworn on 12 May 2015:

To our knowledge, [Mr F] did not have any direct dealings with our client, [the wife], during the course of his employment with our firm. However, [Mr F] held responsibilities (including that of “Work Director”, and the responsibilities peculiar to that role in our offices) such that he was in a position to have active knowledge of all files including this matter. Further, [Mr F] was part of regular discussions at meetings involving our professional staff at which our client’s matter was discussed in detail. [Mr F] would, therefore, have been privy to, and aware of:

  • Who our client is;
  • Matters relating to the parties’ respective positions;
  • Our client’s instructions to our firm from time to time; and
  • The nature of advices provided to our client.

Further, our client is aware that [Mr F] has (whilst employed by our firm) always had access to our client’s electronic and physical file by virtue of his employment with our firm…

  1. Pausing there, we do not see that that evidence is capable of supporting the trial judge’s findings that Mr F engaged “in detailed discussions as to the wife’s case” [51]. This considerably overstates the evidence, even if the letter could be read as asserting that Mr F was, in fact, privy to the client’s instructions and so on.
  2. Mr F left Watts McCray in February 2012 (the reference to 2013 in the trial judgment was agreed by the parties to be an error). It is clear that the wife need not, for obvious reasons, divulge in her evidence the confidential information she asserts is held by the solicitor she is trying to restrain. However, for evidence to be persuasive and cogent she should have identified the nature of the information received or likely to have been received by Mr F between 24 June 2011 and February 2012 that was now, or could now be, relevant to the current proceedings. She did not do so. It is not sufficient to say that, as family law proceedings cover a range of matters, any information at all received by Mr F could have been relevant. This was especially so given that three years had passed since he could have received any information and both sets of substantive proceedings (parenting and property) had resolved.
  3. We are of the opinion that the trial judge erred in not taking these matters into account. The first challenge to his Honour’s orders is made out.

2. Waiver and reasons

  1. The second ground of appeal concerned the trial judge’s treatment of the “waiver” said to be constituted by the wife consenting to the husband’s solicitor acting on the earlier occasions. The trial judge said:
    1. The husband asserts a “waiver” by the wife occasioned by her personal email to the husband. The course of the matter leading to the present application is set out above. The wife’s asserted “waiver” was made in the context of the husband’s first application in a case as to “enforcement”. It was quickly asserted by her solicitors that she continued to maintain her qualified consent to the circumstances where the husband may retain his former solicitors.
    2. Whilst such injunctive relief is to be regarded as exceptional and is to be exercised with caution, the circumstances of this matter are clearly indicative of the relief sought by the wife being granted. The wife has established her entitlement to the relief sought.
  2. There were, in fact, two occasions on which the wife consented to the husband’s solicitors acting. The first was when, in May 2014, consequent upon the undertaking being given by Mr F, the wife did not oppose Barkus Doolan continuing to act for the husband. The second is found in the wife’s letter to the husband of 19 February 2015 (albeit her concession to the husband that she would not oppose his solicitors continuing to act for him was countermanded some three weeks later by her solicitors). The evidence, and the trial judge’s reasons, do not disclose what was different about the proceedings then extant in May 2014, as opposed to May 2015, that indicated that the risk of disclosure of any confidential information was mitigated by the undertaking given in 2014 but not by the similar undertaking proffered in May 2015. Absent that evidence, the acceptance of the earlier undertaking is a powerful indication as to an appropriate way to deal with the wife’s concerns.
  3. There was no explanation offered by the wife as to why she sent the husband the emailed letter in February 2015. In the context of the lengthy litigation between the parties and the express and detailed correspondence about Mr F acting, we consider the letter to be an indication that any risk of disclosure actually apprehended by the wife was either non-existent or minimal.
  4. The wife’s letter in its terms was not referred to by the trial judge. The wife’s solicitors had been at pains to point out that the objection to Barkus Doolan was not theirs, but that of the wife. This adds weight to the importance of the letter. His Honour gave no reasons as to why the email of February 2015 did not carry significant weight. It follows therefore that we are of the opinion that the challenges under this heading, as to his Honour failing to find “waiver” and in failing to give reasons are established.

3. The risk of disclosure of confidential information

  1. Finally, to the extent that it is necessary to do so, we find merit in the third challenge asserted by the appellant, that is that the trial judge did not consider whether or not there was a real risk of disclosure of any information by Mr F. This was particularly important given the length of time that Mr F had been absent from Watts McCray before the commencement of any proceedings by the husband. Further, the trial judge did not consider in any way the further proposed undertaking by Mr F in the form previously given. There was consequently no consideration as to whether there was, in the light of the proposed undertaking, a real risk of disclosure or misuse.
  2. Further, the trial judge did not refer to evidence given by Ms V, a partner of Barkus Doolan, that Mr F had not disclosed to her directly or indirectly any information that he may have had as a consequence of his membership of Watts McCray. She went on to give undertakings that she would maintain arrangements within the firm which would quarantine Mr F and his staff, including his secretary and administrative assistant, from the proceedings. Arrangements had been made within the firm so as to prevent Mr F advertently, or inadvertently, from gaining access to either the electronic or physical file in relation to the parties.
  3. Whilst measures such as this proposed information barrier may not in other cases be a sufficient guard against the risk identified by the appellant’s evidence, they were, in the circumstances of this case, very powerful considerations to be taken into account and his Honour erred in not considering them. The challenge under this heading is made out.
  4. It follows that the appeal should be allowed.

LEAVE TO APPEAL

  1. The husband, to the extent that it is necessary, seeks leave to appeal. Section 94AA of the Family Law Act 1975 (Cth) (“the Act”) sets out the circumstances in which leave to appeal is required. By the application of reg 15A of the Family Law Regulations 1984 (Cth) leave is required in respect of an interlocutory decree other than a decree in relation to a child welfare matter. The question therefore is whether an application to restrain a solicitor from acting is an interlocutory decree.
  2. As to whether an order is interlocutory or final, is often said that a final judgment is one that finally disposes of the rights of the parties. In Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 Taylor J said at 440-441 (Owen J concurring):

…The order in the present case was made in proceedings preliminary to the bringing of an action and although it deprived the appellant of the benefit of the order of the learned judge of first instance, it did not operate to prevent him from making a further application for an extension of time. No doubt its practical effect was that any further application would have been fruitless unless supported by additional relevant facts but the order made by the Full Court did not of its own force conclude his right to bring an action.

  1. In Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 Barwick CJ posed the test at 219 as:

…To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties…

  1. Gibbs J said at 225:

…The other view which, since Hall v Nominal Defendant …, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?…

  1. In Carr and Anor v Finance Corporation of Australia Limited [1981] HCA 20; (1981) 147 CLR 246 both Gibbs CJ at 248 and Mason J at 256-7 rejected the proposition that one looks to the practical effect of the order as opposed to its legal effect.
  2. In McMillan the court considered that the better view was that an order restraining a solicitor from acting was a final order.
  3. The order prevents Barkus Doolan from acting at any time in the future. It is not expressed to be subject to further order. It finally disposes of the right of the husband to engage Barkus Doolan as his lawyers. It is a final order and leave is not required.

THE DISPOSITION OF THE APPEAL

  1. As the appeal has been allowed the issue arises as to whether the matter should be remitted to a trial judge for reconsideration or re-determined by us. Both parties sought that this court re-exercise the trial judge’s discretion based on the evidence presently before the court. Neither party sought to adduce any further evidence. We will, therefore re-determine the matter.
  2. We find the following matters to be persuasive:
    • The failure of the wife to point to any particular type of information disclosed to Watts McCray between 24 June 2011 and February 2012 that would engender a not unreasonable belief that that information may be used against her or to her disadvantage in the current proceedings before the court;
    • That, in previous proceedings not relevantly distinguishable from the present proceedings, the wife agreed to Barkus Doolan acting provided the appropriate undertaking was given by Mr F;
    • The wife agreed in February 2015 to Barkus Doolan continuing to act for the husband;
    • Strong and appropriate measures to quarantine Mr F from having any advertent or inadvertent contact with the proceedings within Barkus Doolan including undertakings to the court from the partners of that firm to maintain those measures were proposed; and
    • Mr F proffered of a similar undertaking to the one given and accepted in 2014.
  3. All these matters lead us to the conclusion that the application by the wife (filed 12 May 2015) for a restraint against the husband’s instructing solicitors should be dismissed. As noted above, in re-determining the matter, we have taken into account the undertakings proffered by Mr F and the partners of Barkus Doolan. It is appropriate, therefore, for the court to accept those undertakings which were in writing and in evidence before the trial judge.

COSTS

  1. As is usual, we sought the parties’ submissions on the costs of the appeal. Counsel for the respondent accepted that if the appeal succeeded he could not resist an order for costs. That was a sensible concession and we will make that order.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Ainslie-Wallace and Aldridge JJ) delivered on 15 September 2015.

Associate:
Date: 15 September 2015

Family Tax Benefit Part A

What sorts of things affect my Family Tax Benefit Part A?

You can only receive Family Tax Benefit Part A if you care for the children at least 35% of the time. You will usually have to satisfy Centrelink that you have applied for a child support assessment from the other parent to receive Family Tax Benefit Part A. You may not have to if special circumstances apply. Speak to your Centrelink social worker about this.

Parents who receive Family Tax benefit Part A (at more than the base rate) are required by Centrelink to apply for a child support assessment.

Child care levels and Family Tax Benefit Part A

Centrelink will calculate how much time you spend with the children. They will calculate your Family Tax Benefit Part A based on this. Centrelink takes into account the amount of time you spend with the children, including daytimes as well as nights.

Income levels and Family Tax Benefit Part A

Family Tax Benefit Part A is affected by your yearly household income (including your new partners’ income) and your child support payments for each child.

Collection arrangements and Family Tax Benefit Part A – formula assessments

If you have a child support formula assessment and your child support payments are paid:

  • on time, and
  • in full

your Family Tax Benefit Part A will usually be based on the same amount of child support each fortnight.

If the Child Support Agency collects your payments and:

  • your child support payments are not regular, or
  • are less than they should be

You can ask to have your Family Tax Benefit Part A calculated according to the actual child support payments that you receive. Your Family Tax Benefit Part A payments will go up and down depending on how much child support you receive. If you later receive a lump sum of child support owed to you, you may have to pay some of the Family Tax Benefit Part A back. Talk to Centrelink about which method may be best for you.

If you transfer your child support privately, Centrelink will pay your Family Tax Benefit Part A as if you are receiving the amount you would receive under the assessment. If you agree to accept less child support than the amount you are entitled to in the assessment, your Family Tax Benefit Part A will not change.

Family Tax Benefit Part A – child support agreements

  • Child support agreements registered before 1 July 2008
    Your Family Tax Benefit Part A will be worked out using the amount of child support in your agreement.
  • Child support agreements registered after 1 July 2008
    Your Family Tax Benefit Part A will be based on the amount of child support that would have been payable under a formula assessment.

Your other family and Family Tax Benefit

Family Tax Benefit Part A is calculated separately for each child, taking into account household income and any child support received for each child. This means that you may be paid Family Tax Benefit Part A at a different rate for individual children in your care. This area is complicated. Talk to Centrelink for more information.

More information

  • Child Support Agency
    Tel: 131 272
  • Centrelink
    Tel: 136 150, from 8.00 am to 8.00 pm, Mon – Fri
    133 677 (Relay: deaf and hearing impaired)
  • Family Assistance Office
    Tel: 136 150
  • Family Relationship Advice Line
    Tel: 1800 050 321
  • Freedom Law 1300 365 108

 

Billable Hours – Australian Lawyers’ Appeal

Billable Hours – Australian Lawyers’ Appeal

The Australian Lawyers’ Billable Hours Appeal has been commenced in response to the terrible plight of refugees.

Belle Lane and Alison Burt have started a page for Australian lawyers to donate 1 billable hour to Medecins Sans Frontieres to help with the current refugee crisis. MSF are on the frontline providing desperately needed medical care. Our colleagues in the UK are raising money for Save the Children Fund with great success.

Below is the link to the good work being done for people in need:

https://give.everydayhero.com/au/australian-lawyers-billable-hour-appeal

Australian Lawyers' Billable Hour Appeal

With thanks from the Family Law Practitioners Association Qld (FLPA)

 

The Independent Children’s Lawyer

What is an independent children’s lawyer?

An independent children’s lawyer represents your child’s best interests and makes sure that is the focus of any decisions about parenting arrangements.

How is an independent children’s lawyer appointed?

The Family Law Courts will ask Legal Aid Queensland to appoint an independent children’s lawyer in cases where they consider it is important for your child’s welfare and wellbeing. An independent children’s lawyer will only be appointed in parenting cases.

You can also ask for an independent children’s lawyer. You will need to let the court know why an independent children’s lawyer is important in your case. You may have to contribute towards the costs of the independent children’s lawyer.

How will the independent children’s lawyer recognise my child’s best interests?

An independent children’s lawyer will collect information about your child. They can do this by:

  • asking for a family report — a family report is prepared by a social worker, psychologist or psychiatrist to help the court understand your family situation and your child’s views and best interests
  • asking for reports from teachers, guidance officers or other professionals who have regular contact with your child
  • speaking with your child.

The independent children’s lawyer may also arrange a conference with you, your ex-partner or your lawyers to talk about issues affecting your child. In some cases this conference can solve a family law dispute.

Can I contact my child’s independent children’s lawyer?

You will have contact with the independent children’s lawyer in one of two ways:

  1. If you have your own lawyer, the independent children’s lawyer will discuss your child’s case with them. Please do not contact the independent children’s lawyer directly.
  2. If you do not have your own lawyer, the independent children’s lawyer will contact you directly in person, by phone or in writing.

What happens to the independent children’s lawyer after a final court order is made?

The independent children’s lawyer’s role will end from when the court makes a final order. They will continue in their role if you or your ex-partner appeals the court’s decision.

What if I don’t think the independent children’s lawyer is doing their job?

You should get legal advice about what your options are in these circumstances.

More information

Contact our friendly staff at Freedom Law for an in person or online consultation.

Domestic and Family Violence

Domestic and Family Violence – Roundtables

Last month the Premier and Shannon Fentiman MP announced the Government’s commitment to leading a program of reform to realise the vision of the Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland Report.

Also released was a long-term Domestic and Family Violence Prevention Strategy and an announcement of their intention to develop a separate but complementary plan specifically dedicated to the prevention of violence against women.

Over the next three months they will collaborate extensively across Queensland with Queenslanders on specific components of the Strategy. This will be achieved through on-line feedback, a series of forums throughout the State and one-on-one meetings with technical sector experts.

Getting involved

You can be involved by going online at www.qld.gov.au/enddomesticandfamilyviolence and having your say.

You can provide feedback until 16 November 2015.

You can also view the Queensland Government’s Response to the Taskforce’s 140 recommendations which underpin the draft Strategy. The 121 recommendations directed at government have been accepted and the remaining 19 non-government recommendations are supported. They need the input and insights of all Queenslanders if they are to genuinely collaborate and create a roadmap for positive change in our society.

With thanks from the Family Law Practitioners Association (Qld)

Domestic violence support

dvconnect womensline
Tel: 1800 811 811

dvconnect mensline
Tel: 1800 600 636