Avi v SLA - [2019] QDC 192

DISTRICT COURT OF QUEENSLAND

CITATION:

AVI v SLA [2019] QDC 192

PARTIES:

AVI

(Appellant)

v

SLA

(Respondent)

FILE NO/S:

1951/19

DIVISION:

Civil

PROCEEDING:

Appeal pursuant to s 169 of the Domestic and Family Violence Protection Act 2012 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

2 October 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

25 September 2019

JUDGE:

Smith DCJA

ORDER:

1.     The appeal is dismissed.

2.     The decision made in the Magistrates Court in this matter is confirmed.

3.     I will hear the parties on the question of costs.

CATCHWORDS:

FAMILY LAW – DOMESTIC VIOLENCE – PROTECTION ORDERS – QUEENSLAND – whether Magistrate erred in refusing to make order – whether an act of domestic violence occurred - whether appeal should be allowed – whether rehearing should occur or whether matter should be remitted to the Magistrates Court

Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 8, 11, 37, 145, 168, 169

ADH v AHL [2017] QDC 103 cited

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 applied

GKE v EUT [2014] QDC 248 applied

MDE v MLG [2015] QDC 151 applied

Parsons v Raby [2007] QCA 98 cited

R v War Pensions Entitlement Appeals Tribunal ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 cited

Robinson Helicopter Company v McDermott (2016) 90 ALJR 679; [2016] HCA 22 cited

SCJ v ALT [2011] QDC 100 cited

Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40 cited

COUNSEL:

Mr Lake for the appellant

Solicitors for the respondent

SOLICITORS:

Murdoch Lawyers for the appellant

Bouchier Khan lawyers for the respondent

Introduction

This is an appeal against the decision of the Magistrates Court at Brisbane on 9 May 2019 whereby the Magistrate refused to make a domestic violence order in favour of the appellant.

The powers of this court are contained in s 169 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”).

Background

The appellant on 27 February 2018 filed an application for a domestic violence order in the Magistrates Court[1] alleging that she and the respondent had separated in January 2015. She alleged she and the children had suffered emotionally during the relationship. It was alleged the respondent had been arrested in Zimbabwe for “biting” her.[2] She further alleged that the children of the relationship had witnessed domestic violence between the appellant and the respondent. She alleged that between 2015 and 26 December 2017 the respondent had followed her in his car; the respondent had stopped the woman who did day care from helping out; the respondent had phoned her hairdresser to get information about the appellant namely where she was living; the respondent had followed the children in his car and the respondent had gone to the children’s school.
[1]Exhibit 1 below.
[2]The word “biting” is not clear from the handwritten application.

A temporary protection order was made in the Magistrates Court on 4 April 2018 and the matter came on for trial on 15…

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 Avi v SLA

Details

AGLC: Avi v SLA [2019] QDC 192
Case: [2019] QDC 192
Decision Date: 2 October 2019

CaseChat Overview and Summary

In the case of Avi v SLA, the dispute arose from the refusal of a Magistrate in the Magistrates Court of Queensland to grant a protection order against SLA in favour of Avi. The matter was brought before the court on appeal, with Avi arguing that the Magistrate had erred in not recognising an act of domestic violence and consequently not making the order. The appeal court was tasked with determining whether the Magistrate had erred in their decision, whether an act of domestic violence had indeed occurred, and whether the appeal should be allowed or if the matter should be remitted back to the Magistrates Court for a rehearing.

The court considered the evidence presented and examined the legal standards applicable to the granting of protection orders in cases of domestic violence. The appeal court found that the Magistrate had correctly applied the law and assessed the evidence. The court held that the evidence did not support the conclusion that an act of domestic violence had occurred, as defined under the relevant legislation. Therefore, the appeal court was of the view that the Magistrate had not erred in their decision and that the appeal should be dismissed.

In light of the above, the appeal was dismissed, and the decision of the Magistrates Court was confirmed. The court will hear the parties on the question of costs at a later date. This outcome signifies the court's endorsement of the Magistrate's decision and the importance of adhering to the applicable legal standards when considering the granting of protection orders in cases of alleged domestic violence.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision made in the Magistrates Court in this matter is confirmed.

3. I will hear the parties on the question of costs.

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:	AVI v SLA [2019] QDC 192
PARTIES:	AVI (Appellant) v SLA (Respondent)
FILE NO/S:	1951/19
DIVISION:	Civil
PROCEEDING:	Appeal pursuant to s 169 of the Domestic and Family Violence Protection Act 2012 (Qld)
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	2 October 2019
DELIVERED AT:	Rockhampton
HEARING DATE:	25 September 2019
JUDGE:	Smith DCJA
ORDER:	1. The appeal is dismissed. 2. The decision made in the Magistrates Court in this matter is confirmed. 3. I will hear the parties on the question of costs.
CATCHWORDS:	FAMILY LAW – DOMESTIC VIOLENCE – PROTECTION ORDERS – QUEENSLAND – whether Magistrate erred in refusing to make order – whether an act of domestic violence occurred - whether appeal should be allowed – whether rehearing should occur or whether matter should be remitted to the Magistrates Court Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 8, 11, 37, 145, 168, 169 ADH v AHL [2017] QDC 103 cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 applied GKE v EUT [2014] QDC 248 applied MDE v MLG [2015] QDC 151 applied Parsons v Raby [2007] QCA 98 cited R v War Pensions Entitlement Appeals Tribunal ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 cited Robinson Helicopter Company v McDermott (2016) 90 ALJR 679; [2016] HCA 22 cited SCJ v ALT [2011] QDC 100 cited Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40 cited
COUNSEL:	Mr Lake for the appellant Solicitors for the respondent
SOLICITORS:	Murdoch Lawyers for the appellant Bouchier Khan lawyers for the respondent