A District Court judge has called on legal academia for help, after dealing with yet another appeal of a Magistrates Court decision to make a protection order in the absence of a respondent.
In his decision delivered in Brisbane on 4 November, Judge Bernard Porter KC said a guidebook on civil domestic violence litigation would be welcome, as he upheld the appeal, set aside the protection order, and referred the application back to the Magistrates Court for hearing according to law.
“Yet again an appeal is brought against a protection order made on a mention date, in the absence of the respondent and without providing substantive reasons for decision,” Judge Porter said in his introduction.
“The second respondent (the police) rightly conceded the appeal, consistent with many judgments of this Court, recently collected in DGC v Queensland Police Service [2026] QDC 100.”
A temporary Police Protection Order (PPO) was made against “MCW” on 10 November last year, followed by a Temporary Protection Order (TPO) on 13 November, and the matter was adjourned to 24 November for mention.
On 24 November, the matter was adjourned to 23 February 2026 for a review. On that date, MCW appeared by solicitors, who were directed to file material by 9 February. No material was filed, and at a mention on 23 February, neither MCW nor his legal representatives appeared. The Magistrate made a protection order in the same terms as the TPO for five years.
In his appeal, MCW provided evidence that his solicitor had not kept him informed about the progress of the matter, nor appeared for him as instructed.
MCW attested that he only found out about the review via a text message from his solicitor on 24 February, and about the order on 25 February.
“Although the appellant’s explanation for non-appearance was not before the learned Magistrate, the facts in this case highlight the problem with making final orders in the absence of a party, much less when the matter is before the Court for mention not hearing,” Judge Porter said.
He said Parliament recognised the importance of exercising care in making orders in the absence of a party by enacting section 39 of the Domestic and Family Violence Protection Act 2012 (Qld), which relates to the hearing of an application when a respondent does not appear.
“In this case, no effort was made to inquire as to why the respondent did not appear, despite the fact that the file disclosed that he was represented. No consideration was given to the discretion under s 39(2). That alone comprised an error of law,” he said.
“Further, if some inquiry had been made, it is likely that the explanation given on appeal would have been given to the Court. And this appeal, along with its cost and delay, would have been avoided.
“For completeness I observe that if the Magistrates Court proceeds to hear and determine the application properly in the absence of the respondent, the Court must consider the evidence and give reasons for its decision addressing the issues arising in the application.
“This Court is well aware of the high volume of civil domestic violence matters that are filed in the Magistrates Court. However, the DFVP Act does not authorise default orders as a lawful solution to disposition of these matters at all, much less on a mention date.”
Judge Porter said if a solution was required where a party was not participating (ignoring the option to issue a warrant), then the application could be set down for trial and notice of the trial date given.
“Then, if there is no appearance and inquiries disclose no basis to exercise the discretion to adjourn temporarily under s 39(2)(b) DFVP Act, it will be open to the Magistrates Court to proceed to hear and determine the matter under s 39(2)(a) and give reasons,” he said.
He then went on to explain at length how to conduct such a matter, with guidance on the requirements and responsibilities of the parties.
“It is a feature of civil domestic violence litigation that I have observed over years that some of the legal practitioners practicing in the area are unaware of key statutory provisions and authorities which bind the Magistrates Court in hearing and determining applications under the DFVP Act,” he said.
“The submission made by Legal Aid in this case, for example, was plainly wrong and ought not to have been made. Nor should the lawyer representing the police have let it go past unchallenged.
“Judges and Magistrates are entitled to look to assistance from legal practitioners, and her Honour did not receive proper assistance on the law in this case.”
Judge Porter said failing to conduct litigation according to law undermined the administration of justice.
“It would be a significant public service for one of the scholars in Queensland’s numerous law faculties to produce an annotated DFVP Act and Rules for the assistance of the profession and the judiciary,” he said.
“The National Domestic And Family Violence Bench Book does not provide this service. For example, the section entitled Adjournments and timely decision making refers to no authorities at all, much less decisions of Queensland Courts on the Queensland statute.
“An annotated statute and rules based on Queensland authorities would be of enormous assistance to all parties involved in civil domestic violence litigation in Queensland.”
Read the case here.
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