ABF v DZT - [2020] QDC 136

DISTRICT COURT OF QUEENSLAND

CITATION: ABF v DZT [2020] QDC 136

PARTIES:
ABF

(Appellant) v

DZT

(First Respondent)

FILE NO/S: D319 of 2019

DIVISION: Appellate

PROCEEDING: Domestic Violence Appeal

ORIGINATING COURT:
Magistrates Court Southport

DELIVERED ON: 22 June 2020

DELIVERED AT: Southport

HEARING DATE: 28 May 2020

JUDGE: McGinness DCJ

ORDER:
1. Confirm the decision appealed against.

2. The appeal is dismissed.

CATCHWORDS:
DOMESTIC VIOLENCE – APPEAL – whether the

Magistrate heard and determined the application to vary according to law – whether the application to vary was made in accordance with the legislation – whether the Magistrate gave sufficient reasons.

Domestic and Family Violence Protection Act 2012 (Qld) Sections 8, 11, 29, 37, 42, 43, 86, 91, 93, 164 and 169

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 29

Edwards v Noble (1971) 125 CLR 296

Soulemezis v Dudley (Holdings) Pty Ltd NSWLR 247

Teelow v Commissioner of Police [2009] 2 Qd R 489 The appellant and respondent appeared self-represented.

LEGISLATION:

CASES:

COUNSEL:

Introduction

The appellant appeals under s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) against a decision made by the Magistrate on 29 November 2019 in the Southport Magistrates Court to vary a two year protection order made

pursuant to s 86 of the Act. On that date, the Magistrate granted a variation of the original protection order made on 29 January 2018 by extending the duration of the order for a period of three years to 29 January 2023.

The respondent and appellant have filed written submissions and made oral submissions at the appeal hearing.1 Both are self-represented.

History of the matter

The appellant and respondent married on 29 July 2006 and separated under the same roof on 12 September 2015. They have one child, G.
On 25 September 2017, the respondent made a complaint to police at Southport Police station that she had been assaulted by the appellant in the garage at their home. The police completed a Police Protection Notice. The respondent’s grounds for the application were set out in a 4 page document attached to the Police Protection Notice and an affidavit sworn by the respondent on the same day.2 The respondent deposed that the appellant physically assaulted her on 25 September 2017. The respondent claimed that, in the days leading up to the assault, the appellant had demanded she pay his phone bill, which she refused to do, because she believed he had been spending money on drugs. After another demand on 25 September 2017, the appellant walked towards her, grabbed her shoulders with both hands, and then pushed her causing her to fall into her car. He grabbed her left wrist and squeezed hard. She felt immediate pain and screamed because she believed he was going to kill her. The appellant let go when she screamed and she ran into the house. The respondent left the house with their daughter and went to police. The respondent also deposed that the appellant had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ABF v DZT

Details

AGLC: ABF v DZT [2020] QDC 136
Case: [2020] QDC 136
Decision Date: 22 June 2020

CaseChat Overview and Summary

The case before the court involved an appeal by the Applicant, ABF, against a decision of the Magistrate who had declined to vary an existing domestic violence order. The Applicant sought to challenge the legality of the Magistrate’s decision on the grounds that it was not made according to law, and that the reasons provided were insufficient. The Respondent, DZT, defended the decision, asserting that it was lawful and adequately reasoned.

The central legal issues before the court were whether the application to vary the domestic violence order was made in accordance with the relevant statutory provisions, and whether the Magistrate had provided sufficient reasons for declining to vary the order. The Applicant argued that the Magistrate had failed to consider certain evidence and had not adequately explained the basis for the decision. The Respondent maintained that the application was not compliant with the legislation and that the reasons given by the Magistrate were sufficient.

In determining the appeal, the court found that the application to vary the domestic violence order was not made in accordance with the relevant statutory provisions. The court held that the application failed to meet the necessary criteria and that the Magistrate had correctly identified this issue. Furthermore, the court found that the reasons provided by the Magistrate were sufficient to justify the decision not to vary the order. The Applicant’s arguments regarding the consideration of evidence and the adequacy of the reasons were rejected by the court.

Accordingly, the court dismissed the appeal and confirmed the decision of the Magistrate. The appeal was dismissed, and the original decision not to vary the domestic violence order was upheld. The court did not make any further orders beyond confirming the decision and dismissing the appeal.

Orders

Orders of the court

1. Confirm the decision appealed against.

2. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ABF v DZT [2020] QDC 136
PARTIES:	ABF (Appellant) v DZT (First Respondent)
FILE NO/S:	D319 of 2019
DIVISION:	Appellate
PROCEEDING:	Domestic Violence Appeal
ORIGINATING COURT:	Magistrates Court Southport
DELIVERED ON:	22 June 2020
DELIVERED AT:	Southport
HEARING DATE:	28 May 2020
JUDGE:	McGinness DCJ
ORDER:	1. Confirm the decision appealed against. 2. The appeal is dismissed.
CATCHWORDS:	DOMESTIC VIOLENCE – APPEAL – whether the Magistrate heard and determined the application to vary according to law – whether the application to vary was made in accordance with the legislation – whether the Magistrate gave sufficient reasons. Domestic and Family Violence Protection Act 2012 (Qld) Sections 8, 11, 29, 37, 42, 43, 86, 91, 93, 164 and 169 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 29 Edwards v Noble (1971) 125 CLR 296 Soulemezis v Dudley (Holdings) Pty Ltd NSWLR 247 Teelow v Commissioner of Police [2009] 2 Qd R 489 The appellant and respondent appeared self-represented.
LEGISLATION:
CASES:
COUNSEL: