DISTRICT COURT OF QUEENSLAND
CITATION:
Bailey (a pseudonym) v Bailey (a pseudonym) [2021] QDC 99
PARTIES:
BAILEY (a pseudonym)
(Appellant)
v
BAILEY (a pseudonym)
(First Respondent)
QUEENSLAND POLICE SERVICE
(Second Respondent)
FILE NO: 2551/2020
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court
DELIVERED ON:
9 June 2021
DELIVERED AT:
Brisbane
HEARING DATE:
25 May 2021
JUDGE:
Dick SC DCJ
ORDER:
Confirm the decision appealed against. Appeal dismissed.
CATCHWORDS:
Domestic violence – requirement “must ensure”
LEGISLATION:
Domestic & Family Violence Protection Act 2012
CASES:
COUNSEL: S Fisher for the Appellant
The First Respondent appeared on her own behalf
I Fraser for the Second RespondentSOLICITORS: Mark Stone Solicitor for the Appellant
The First Respondent appeared on her own behalf
Queensland Police Service Legal Unit for the Second RespondentIntroduction
This appeal is brought pursuant to s 164 of the Domestic & Family Violence Protection Act 2012 (the Act). The Appellant appeals against the decision of the Magistrates Court made on 11 August 2020 that a domestic violence protection order be issued pursuant to s 51(1) of the Act.
The Commissioner of Police has elected to become a respondent in the proceeding.
Jurisdiction to amend their Notice of Appeal
The court has power as well as jurisdiction to amend the notice of appeal, under s 224 of the Justices Act 1886. The Appellant furnished an amended notice of appeal to the court on 5 November 2020. By an: intervention notice – registrar’s reference (DCA8) dated 13 November 2020, the registrar has referred to the court the amended notice of appeal. This was an intervention on the initiative of the court. The new grounds of appeal omitted Ground 3 of the original appeal and the proposed additional appeal ground is as follows:
“The court erred in law by failing to ensure that the appellant as respondent in the proceedings MAG-0083757-20(5) who was before the Magistrates Court in person on 11 May 2020 failed to understand any of the matters referred to in s 82(2) of the Domestic & Family Violence Protection Act 2012 as required by s 51(7).”
The new ground of appeal is very similar to the original Ground 2. Accordingly I grant leave for the amended notice of appeal.
Background
The parties were married and there is no argument there is a relevant relationship within the meaning of the Act. At the time of the Magistrates Court hearing the parties had separated.
Legislative framework
Section 51 of the Act sets out the elements that a court must be satisfied of before it may exercise its discretion to make a domestic violence order by consent:
“(51)A court may make domestic violence order by consent:
(1)if the parties to a proceeding for a domestic violence order, or a variation of a domestic violence order, consent to the making of the order, or do not…
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- AGLC
- Bailey (a pseudonym) v Bailey (a pseudonym) [2021] QDC 99
- Case
- [2021] QDC 99
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework, particularly section 84(2) of the Act, which mandates that the court must ensure the respondent understands the purpose, terms, and effect of the proposed domestic violence order. The court also considered section 84(5), which stipulates that failure to comply with section 84 does not invalidate a domestic violence order, and section 84(4), which allows for flexibility in the process to ensure compliance with section 84(2). Given these provisions, the court had to balance the statutory requirements with the principle of regularity, which presumes that orders are valid unless proven otherwise.
Upon reviewing the evidence and statutory provisions, the court concluded that the non-compliance with section 84(2) did not invalidate the domestic violence order. The court held that section 84(5) operates as a presumption of regularity, meaning that the order remains valid until it is set aside. The court found that the statutory framework allowed for flexibility in how the court could ensure compliance with section 84(2), and that the respondent had not demonstrated that the non-compliance had prejudiced them. Therefore, the court dismissed the appeal and confirmed the decision of the lower court.
The court's final orders were to dismiss the appeal and confirm the decision of the Magistrates Court, thereby upholding the validity of the domestic violence order.
Orders
Orders of the court
Confirm the decision appealed against. Appeal dismissed.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.