ACP v McAulliffe

Case [2017] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION:

ACP v McAulliffe [2017] QDC 294

PARTIES:

ACP

 (Appellant)

v

SENIOR CONSTABLE MCAULLIFFE

(Respondent)

FILE NO/S:

ID 23/17

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 164 of the Domestic and Family Violence Protection Act 2012

ORIGINATING COURT:

Gatton Magistrates Court

DELIVERED ON:

8 December 2017

DELIVERED AT:

Ipswich

HEARING DATE:

27 October 2017

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.    ALLOW THE APPEAL TO THE EXTENT THAT:

(A)    CONDITIONS 2,  3 AND 5 OF THE PROTECTION ORDER MADE ON 7 MARCH 2017 ARE REMOVED;

(B)  CONDITION 4 OF THE PROTECTION ORDER MADE ON 7 MARCH 2017 IS RENUMBERED AS CONDITION 2

2.    THE APPEAL IS OTHERWISE DISMISSED.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – PROTECTION ORDER – APPEAL – where the appeal made pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 – where the appellant submits that the learned magistrate failed to adequately consider his individual circumstances – where the appellant further submits that the prosecutor failed to provide evidence of a suggested or possible threat to the aggrieved – whether the domestic violence order is necessary or desirable – whether the learned magistrate adequately determined the future risk of harm to the aggrieved – where an order in standard terms is desirable to protect the aggrieved from domestic violence – where further conditions under s 57 of Domestic and Family Violence Protection Act 2012 are not necessary and desirable – where appeal allowed to the extent that condition 2, 3 and condition 5 are removed

LEGISLATION:

CASES:

Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 8, 9, 10, 13, 14, 15, 37, 56, 57, 142, 151, 168, 169

Uniform Civil Procedure Rules 1999 (Qld) rr 765, 783, 785

Allesch v Maunz (2000) 203 CLR 172, considered

Armour v FAC [2012] QMC 22, considered

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, considered

CDJ v VAJ (1988) 197 CLR 172, considered

DJL v Central Authority (2000) 201 CLR 226, considered

GKE v EUT [2014] QDC 248, considered

House v R (1936) 55 CLR 499, considered

MDE v MLG [2015] QDC 151, considered

Southern Australian Land Mortgages and Agency Co Ltd v The King (1922) 30 CLR 523, considered

WJM v NRH [2013] QMC 12, considered

COUNSEL:

The appellant appeared in person

Mr M C O’Brien (Senior Legal Officer) for the respondent

SOLICITORS:

Queensland Police Service Legal Division for the respondent

Introduction

  1. On 7 March 2017 a Magistrate made a protection order against ACP pursuant to s 37 of the Domestic and Family Violence Protection Act 2012. A temporary protection order had been made on 15 February 2016. Before the learned Magistrate were also three applications to vary that order.

  1. ACP appeals against the learned Magistrate’s decision to make the protection order because “the order fails to adequately consider the individual circumstances, with particular reference to the use of a DVO to remove…

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AGLC
ACP v McAulliffe [2017] QDC 294
Case
[2017] QDC 294
Decision Date

CaseChat Overview and Summary

In the case of ACP v McAulliffe, the appellant, ACP, sought to appeal a decision of the Magistrates’ Court of Victoria that issued a domestic violence protection order against him. The aggrieved party in the case was the respondent, McAulliffe. The appeal was brought under section 164 of the Domestic and Family Violence Protection Act 2012, with ACP arguing that the magistrate failed to consider his individual circumstances and that the prosecutor did not provide evidence of a suggested or possible threat to McAulliffe. The central legal issues in this appeal were whether the domestic violence order was necessary or desirable and whether the magistrate adequately determined the future risk of harm to McAulliffe. The court was required to consider whether an order in standard terms was necessary and desirable to protect McAulliffe from domestic violence and whether further conditions under section 57 of the Act were necessary and desirable.

The court found that the magistrate had adequately considered the appellant’s individual circumstances and the future risk of harm to McAulliffe. However, the court also found that conditions 2, 3, and 5 of the protection order were not necessary or desirable. The court was satisfied that an order in standard terms was necessary and desirable to protect McAulliffe from domestic violence, but it was not satisfied that the additional conditions imposed by the magistrate were necessary or desirable. The court determined that the appeal should be allowed to the extent that conditions 2, 3, and 5 of the protection order were removed. The appeal was otherwise dismissed.

In conclusion, the appeal was allowed to the extent that conditions 2, 3, and 5 of the protection order were removed. The appeal was otherwise dismissed. Condition 4 of the protection order was renumbered as condition 2. This decision highlights the importance of considering individual circumstances and the future risk of harm when issuing domestic violence protection orders. It also underscores the need for evidence to support the imposition of additional conditions under section 57 of the Act.

Orders

Orders of the court

1. ALLOW THE APPEAL TO THE EXTENT THAT:

(A) CONDITIONS 2, 3 AND 5 OF THE PROTECTION ORDER MADE ON 7 MARCH 2017 ARE REMOVED;

(B) CONDITION 4 OF THE PROTECTION ORDER MADE ON 7 MARCH 2017 IS RENUMBERED AS CONDITION 2

2. THE APPEAL IS OTHERWISE DISMISSED.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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