Domestic Violence Recent Case – JET v JMB [2015] QMC 13 (22 September 2015)
Last Updated: 1 October 2015
MAGISTRATES COURTS OF QUEENSLAND
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CITATION:
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JET v JMB [2015] QMC 13
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PARTIES:
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JET
(Applicant/Respondent)
v
JMB
(Respondent/Aggrieved)
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FILE NO/S:
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MAG-00129073/13(6)
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DIVISION:
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 Domestic Violence  |
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PROCEEDING:
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Application to Vary Protection Order
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ORIGINATING COURT:
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Dalby Magistrates Court
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DELIVERED ON:
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22 September 2015
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DELIVERED AT:
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Dalby
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HEARING DATE:
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21 August 2015
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MAGISTRATE:
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K Ryan
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ORDER:
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Application to Vary Refused
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CATCHWORDS:
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DOMESTIC VIOLENCE – Application to Vary – Factors to consider – meaning of “protection order” and “ domestic violence order” in Section 92 – ejusdem generisrule ISSUE ESTOPPEL – Whether evidence proffered in support of previous consent order can be taken into account
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LEGISLATION –
Domestic and Family Violence Protection Act 2012 Domestic Violence (Family Protection) Act 1989CASES –
W v N, Appeal No. 93 of 1995, 15 November 1995 |
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SOLICITORS:
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Mr David R.L. Laws for the Applicant/Respondent
Self-represented Respondent/Aggrieved
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[1] The Applicant/Respondent JET has filed an application to vary a Varied Protection Order made in this court on 26 May 2014 for an operational period of one year.
[2] History of Protection Order
On 10 July 2013, JMB filed an application for a Protection Order against JET seeking the mandatory condition as well as a number of other conditions, including the naming of the child of the relationship.
[3] A temporary protection order, including a number of conditions, was granted on 15 July 2013, pending service on JET.
[4] Both parties ultimately were legally represented with regard to both this application and family law matters, resulting in JET consenting, without admissions, to an order being made by the court on the day of the hearing.
[5] The Protection Order contained the mandatory term that JET must be of good behaviour towards JMB and must not commit domestic violence against her and that he was prohibited from entering or attempting to enter premises where the aggrieved lives and was to remain in force up to and including 25 November 2015 unless further ordered by the court.
[6] On 22 May 2014 JMB lodged an application to vary this Protection Order to include further conditions that JET not attend JMB’s workplace, as well as to name the child Abby on the order with a further condition that JET was prohibited from following or approaching Abby when she was at any place.
[7] Both parties appeared on the mention of the application to vary, at which time they were both unrepresented. JET consented, without admissions, to the application to vary. The Protection Order was varied in accordance with the application, with an exception attached to the “no-approach” order for Abby, that it did “not apply to the extent that it is necessary for the parties to attend an agreed conference, counselling, mediation session or when having contact with child/ren as set out in writing between the parties or in compliance with an order of a Court.”
The current application
[8] JET lodged an application to vary the Varied Protection Order on 30 April 2015. This application to vary was resisted by JMB and came on for hearing on 21 August 2015. JET was legally represented at the hearing, whilst JMB was self-represented.
[9] JET seeks a variation to either end the current order immediately or to have the “no contact provision” removed.
[10] On a preliminary note, the Varied Protection Order which is currently in force does not prohibit JET from having any contact with Abby, just that he is not to approach her when she is at any place, with the exception relating to contact.
[11] At the hearing, Mr Laws, for JET, argued that his client had consented to the original Protection Order being varied as “a consequence of –
(a) The heavy financial cost to him in retaining lawyers to respond to the Aggrieved’s repeated Applications for Domestic Violence Orders, and
(b) His inability to continue funding lawyers following a then recent industrial accident.”[1]
[12] Mr Laws submitted that as the Varied Protection Order was made by consent, “it was made without any admissions or any hearing on the merits or any formal findings of fact” and that therefore there is “no judicial determination or quelling of the dispute such as to give rise to any res judicata or issue estoppel.”[2]
[13] He further submits that pursuant to Section 92 (2)(d) of the Domestic and Family Violence Protection Act 2012 (the Act) the court can consider all of the material filed by the parties with regard to the original applications for Protection Order and the Varied Protection Order.
Varying a Protection Order
[14] Section 91(2) of the Act sets out the factors which must be considered by the court before it varies a domestic violence order. These are –
(a) “The grounds set out in the application for the protection order; and
(b) The findings of the court that made the domestic violence order; and
(c) Whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.”
Sub-section (c) does not apply to the application before the court.
[15] “Protection order” means an order made under section 37.[3] Section 37 sets out the factors of which a court must be satisfied before making a Protection Order. I note that Section 91(2)(a) requires that a court must consider the grounds (emphasis added) set out in the application for the protection order.
[16] “ Domestic violence order” means –
“(a) a protection order; or
“b) a temporary protection order.”[4]
It is my view that the drafters, in listing “protection order” and “ domestic violence order” in Section 91(2) as two separate factors to be considered, clearly intended that the reference to the “application for the protection order” include the application for a variation of a protection order.
[17] Applying these definitions to the consideration set out in Section 91(2), I find –
(a) that when considering a variation to a protection order I am required to consider the grounds (emphasis added) of the application for the protection order and the application for the variation of that order only; and
(b) the court’s findings when making those orders.
[18] Further, when considering whether to make the variation, I must have regard to –
“(a) any expressed wishes of the aggrieved or named person; and
(b) any current contact between the aggrieved or named person and the respondent; and
(c) whether any pressure has been applied, or threat has been made, to the aggrieved or named person by the respondent or someone else for the respondent; and
(d) any other relevant matter.”
[19] As noted above, Mr Laws has argued that the court must have regard to “any other relevant matter” when deciding his client’s application to vary[5]. He argues that this includes a testing of the evidence which was filed in support of JMB’s application to vary the original order.
[20] I disagree. I consider the ejusdem generis rule[6] applies and that consideration of “any other relevant matter” is confined to a consideration of the safety, protection or wellbeing of JMB (the aggrieved) and Abby (the named person).
Issue Estoppel
[21] Osborne’s Legal Dictionary states –
Estoppel is a rule of evidence or doctrine of law which precludes a person from denying the truth of some statement formerly made by him, or the existence of facts which he has by words or conduct led others to believe in. If a person by a representation induces another to change his position on the faith of it, he cannot afterwards deny the truth of his representation. In particular:
1. Estoppel by record: a person is not permitted to dispute the facts upon which a judgement against him is based.
2. Estoppel by deed: a person cannot dispute his own deed; he cannot deny the truth of recitals contained in it.
3. Estoppel in pais or equitable estoppel: estoppel by conduct eg. A tenant, having accepted a lease, cannot dispute his lessor’s title.
4. Equitable estoppel: a person who stands by and remains silent when he observes another person acting under a misapprehension or mistake, which by speaking he could have prevented by showing he true state of affairs, can be estopped from later alleging the true state of affairs.
Estoppel provides a shield and not a sword: it cannot create a cause of action.
[22] His Honour Judge Wylie Q.C., DCJ considered issue estoppel in the unreported decision of W v N, Appeal No. 93 of 1995, in which he heard an appeal against a protection order made by a magistrate pursuant to the then current Domestic Violence (Family Protection) Act 1989.
[23] In considering the appeal His Honour stated at paragraph [14] –
It is now too late for the appellant to complain of the absence of any evidentiary basis for the orders…. Firstly, this is because, the orders not having been set aside on appeal therefrom, they must now be regarded as conclusive determinations of the issues raised by those applications. This would be so even if the appellant had not, in any respect, consented to the whole or any part of those orders. (emphasis added) He is bound by the state of affairs established by those earlier orders (estoppel by res judicata) and he is bound by the findings as to the grounds on which those orders were based (issue estoppel). If he were not, the matters involved could be relitigated by himself and the present respondent time and time again.
[24] His Honour approached the appeal on the basis that “the earlier orders represented a judicial determination of the issues of fact and law and disposed of those issues once and for all and that the appellant cannot raise for redetermination the very same issues.”[7]
[25] Even though the legislation has been amended extensively since the decision in W v N, I am in accord with Wylie, Q.C., DCJ’s comments[8] that –
“I can find nothing which demonstrates that an application for variation of any condition of a protection order should be the occasion for a fresh hearing as to the necessity for such condition as if the original hearing had not taken place.”
[26] For an Act of Parliament to abrogate ordinary rules of common law, clear words must appear in the statute. I am unable to find such clear words after a careful perusal of the Domestic and Family Violence Protection Act 2012.
[27] I agree with the findings of Wylie Q.C., DCJ and find that JET (the Applicant/Respondent) is estopped from relitigating the sworn material provided by JMB (the Respondent/Aggrieved) in support of her application for variation of the original Protection Order.
[28] It is not therefore necessary for me to address issues of credit purportedly raised by Mr Laws on behalf of JET. Many of the issues raised during the hearing are more properly matters which should be before the Family Court.
Conclusion
[29] In those circumstances, the Act requires that, when considering the application for variation before the court on this occasion, I must consider –
• The grounds set out in the application for the protection order; and
• The findings of the court that made the domestic violence order
[30] Any variation to remove conditions from a Protection Order (whether varied or not) which is contested by the aggrieved who is fearful of domestic violence occurring, enlivens Section 92 of the Act.
[31] This means that when considering whether to make the variation, I must have regard to (in this instance where relevant) –
• Any expressed wishes of the aggrieved or named person; and
• Any current contact between the aggrieved or named person and the respondent; and
• Any other relevant matter.
[32] I am aware that I may only vary the order if I consider the safety, protection or wellbeing of the aggrieved or the named person would not be adversely affected by the variation.
[33] I have considered the grounds set out in the application for the protection order and the application for the variation of that order[9] together with the findings to which the Applicant/Respondent is bound pursuant to issue estoppel. I have also noted the expressed wishes of the JBM, current contact between the parties and what is obviously some ongoing family law issues with regard to Abby.
Order
[34] On the balance of probabilities, I am satisfied that were the court to vary the order, the safety, protection or wellbeing of JMB and Abby would be adversely affected by the variation.
[35] The application to vary is therefore refused.