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.