A District Court judge has issued a clear message to magistrates about the limits of their power in relation to domestic violence orders.
In a 22-page decision delivered last month, Judge Bernard Porter KC warned that the Magistrates Court had no power to make final orders on a protection or variation application in default of appearance without considering the merits of the application.
Judge Porter was responding to dealing with an appeal from a matter decided in Caboolture Magistrates Court last year, when a variation application had been listed for mention.
On 18 September 2025, the Magistrate had varied a protection order made on 18 July 2019 which named AHN as the aggrieved and DGC as the respondent.
He had added the couple’s daughter as a named person to several named children, and added strict orders relating to contact, approaching AHN or trying to find her.
The orders were made against DGC in his absence, without consideration of the merits and without reasons.
“This Court has made clear on several occasions that making a protection order or variation order when an application has been listed for mention only will be a substantial breach of procedural fairness,” Judge Porter said.
“It has also made clear on numerous occasions that there is no power to make a ‘default’ protection order or variation order.
“The Magistrate must consider the evidence and give proper reasons if such an order is to be made.
“The hearing in this case miscarried on both grounds.”
Judge Porter allowed the appeal, ordering the variation decision made on 18 September 2025 be set aside, and the variation application dated 10 March 2023 be dismissed.
The matter’s procedural history showed that the parties were required to appear in person in Caboolture Magistrates Court on 18 September. DGC attended on 19 September to discover his matter had been determined the day before.
The same day he asserted in writing that he had been given the wrong date for the hearing and asked to have the matter listed as a matter of urgency for reopening.
He was then mistakenly advised the matter had been relisted for 3 October, when it had been relisted for 2 October, and again was absent.
The police prosecutor was uncertain whether a notice of adjournment had been served on DGC, but the magistrate found it had been sent.
DGC’s Notice of Appeal raised one ground: lack of procedural fairness.
Judge Porter said the Commissioner’s submissions conceded the appeal for three principal reasons: the court proceeded in DGC’s absence in circumstances where he had been given wrong information, twice, about when his matter was listed; a variation order was made without the requisite consideration; and final orders were made at a mention.
He said the proceedings were affected by legal error in each of the ways identified by the Commissioner.
“I will explain in detail as follows, in the hope and expectation that the principles articulated are applied both by Magistrates and by parties, particularly the Commissioner’s legal representatives whose involvement is central to the civil domestic violence process operating efficiently and according to law,” he said.
“His Honour’s comments and reasons demonstrate that he acted on the basis that he could make a variation order in relation to an extant protection order in default of appearance, without considering the statutory criteria for the making of a variation order, without considering the evidence to support the making of the order and without giving reasons for the decision,” he said.
“This Court has made clear on numerous occasions that that is wrong. There is no power under the DFVPA to make a ‘default’ protection order.”
Judge Porter pointed to a selection of published cases, from at least 2009, which stated the same principle, adding that there were “probably many more”.
“This judgment was reported in the Queensland District Court Reports,” he said of one of his own decisions from 2023.
“It was undoubtedly chosen for reporting because it addressed an important point of principle.
“It was not the first judgment of this Court to state that principle, nor the last, nor the only reported decision on the point.”
He highlighted that the suggested cases did not always refer to other judgments reaching the same conclusion, but the same conclusion had “nonetheless been reached”.
Judge Porter explained why and how the duty of the court to hear and determine an application to vary a protection order was the same as that to hear and determine an application for a protection order.
He went on to explain how it was a “substantial breach of procedural fairness to proceed to a final hearing when a proceeding is listed for mention”.
In concluding, Judge Porter addressed other aspects of the proceedings which he said were unsatisfactory.
This included that there was no proper inquiry about whether DCG had appeared before and what, if any, communications he had had with the Commissioner’s lawyers or the registry.
“Self-represented parties are frequently limited in their ability to organise themselves and keep track of Court dates,” he said.
“That is not to excuse failure to appear when notice has properly been given. But it is a matter which all Courts must keep in mind when proceeding in the absence of a self-represented party.”
Judge Porter said it was also important to consider reasons given by an appellate court when a matter was remitted.
“It was wrong for the Court to proceed without doing so,” he said.
“If it had done so, it would have seen that the problem … was that DGC had appeared at the trial and not had a fair trial for the reasons his Honour gave.
“His Honour’s reasons would have given the Court reason to hesitate about simply making the same orders as made in the previous hearing which was overturned on appeal.”
Judge Porter made no order as to costs.
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