Amb v TMP - [2019] QDC 100

DISTRICT COURT OF QUEENSLAND

CITATION:

AMB v TMP & Anor [2019] QDC 100

PARTIES:

AMB
(appellant)

v

TMP
(first respondent)

and

QUEENSLAND POLICE SERVICE
(second respondent)

FILE NO/S:

D230/18

DIVISION:

District Court

PROCEEDING:

Appeal against making of order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld)

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

21 June 2019

DELIVERED AT:

Southport

HEARING DATE:

13 June 2019

JUDGE:

Kent QC, DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF THE JUDGE – GENERAL PRINCIPLES – where a domestic violence protection order was made against the appellant following a contested hearing – whether the learned magistrate erred in finding that the appellant committed domestic violence against the aggrieved – whether the learned magistrate erred in finding the protection order was necessary or desirable.

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) s 4, s 8, 37, s 15(2)(B), s 15(3), s 164, s 168, s 169

CASES:

Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, followed

Commissioner of Police v Toomer [2011] QCA 233, cited

Fox v Percy (2003) 214 CLR 118, applied

GKE v EUT [2014] QDC 248, considered

House v R (1936) 55 CLR 499, considered

MDE v MLG & Queensland Police Service [2015] QDC 151, applied

RC v MM [2018] QDC 276, cited

COUNSEL:

S Kissick for the appellant
The first respondent appeared on her own behalf
M O’Brien for the second respondent

SOLICITORS:

ABF Legal for the appellant
The first respondent appeared on her own behalf
Queensland Police Service Legal Unit for the second respondent

Introduction

The appellant challenges a decision made on 26 July 2018 pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (the “DV Act”), granting the aggrieved a protection order for five years. The order was made after a contested hearing where evidence had been given by the aggrieved and the appellant. Pre-requisites for making the order included findings that there had been a relevant relationship between the parties; that there had been domestic violence, and that an order was necessary or desirable.

It is common ground that a relevant relationship had existed between the parties. Although they, according to the evidence, had been no more than friends, nevertheless the appellant is the father of the child of the first respondent, thus coming within the meaning of “spousal relationship” as defined in s 15 of the DV Act, specifically, s 15(2)(b). It is noteworthy that subsection 3 provides that it is irrelevant whether there is or was any relationship between the parents of the child.

The appeal centres on contentions that there was an error by the magistrate both in concluding that an act of domestic violence had occurred and, secondly, a further error in the conclusion, required by the legislation, that it was necessary or desirable to make a protection order.

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 Amb v TMP

Details

AGLC: Amb v TMP [2019] QDC 100
Case: [2019] QDC 100
Decision Date: 21 June 2019

CaseChat Overview and Summary

The case of Amb v TMP arose from a domestic violence protection order issued against the appellant by the Magistrates Court of Victoria. The aggrieved sought the order following a contested hearing, alleging that the appellant had engaged in acts of domestic violence against her. The appellant contested the allegations and subsequently appealed against the decision, arguing that the magistrate had erred in finding that the appellant had committed domestic violence and that the protection order was necessary or desirable.

The primary legal issue before the court was whether the magistrate had erred in making certain findings regarding the appellant's conduct and the necessity of the protection order. The appellant contended that the magistrate had overlooked key evidence and misapplied the law in reaching the findings. The court was required to determine whether the magistrate's findings were open to interference and whether the protection order was justified based on the evidence presented.

The court considered the evidence and submissions made by both parties and concluded that the magistrate's findings were supported by the evidence. The court found that the magistrate had not erred in making the findings or in determining that the protection order was necessary or desirable. The court held that the magistrate's assessment of the evidence was reasonable and that there was no basis for interference with the magistrate's discretion. Accordingly, the appeal was dismissed.

The court's decision was based on a detailed analysis of the evidence and the applicable legal principles. The court found that the magistrate had carefully considered the evidence and had made findings that were supported by the weight of the evidence. The court also noted that the magistrate had exercised their discretion in accordance with the relevant legal framework and had made a decision that was reasonable and justifiable. As a result, the court held that the appeal should be dismissed and that the protection order would remain in place.

Orders

Orders of the court

Appeal 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

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Ratio Decidendi

Legal Principle Established

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CITATION:	AMB v TMP & Anor [2019] QDC 100
PARTIES:	AMB (appellant) v TMP (first respondent) and QUEENSLAND POLICE SERVICE (second respondent)
FILE NO/S:	D230/18
DIVISION:	District Court
PROCEEDING:	Appeal against making of order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld)
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	21 June 2019
DELIVERED AT:	Southport
HEARING DATE:	13 June 2019
JUDGE:	Kent QC, DCJ
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF THE JUDGE – GENERAL PRINCIPLES – where a domestic violence protection order was made against the appellant following a contested hearing – whether the learned magistrate erred in finding that the appellant committed domestic violence against the aggrieved – whether the learned magistrate erred in finding the protection order was necessary or desirable.
LEGISLATION:	Domestic and Family Violence Protection Act 2012 (Qld) s 4, s 8, 37, s 15(2)(B), s 15(3), s 164, s 168, s 169
CASES:	Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, followed Commissioner of Police v Toomer [2011] QCA 233, cited Fox v Percy (2003) 214 CLR 118, applied GKE v EUT [2014] QDC 248, considered House v R (1936) 55 CLR 499, considered MDE v MLG & Queensland Police Service [2015] QDC 151, applied RC v MM [2018] QDC 276, cited
COUNSEL:	S Kissick for the appellant The first respondent appeared on her own behalf M O’Brien for the second respondent
SOLICITORS:	ABF Legal for the appellant The first respondent appeared on her own behalf Queensland Police Service Legal Unit for the second respondent