BJH v CJH - [2016] QDC 27

DISTRICT COURT OF QUEENSLAND

CITATION:

BJH v CJH [2016] QDC 27

PARTIES:

BJH

(appellant)

v

CJH

(respondent)

FILE NO/S:

D68/2015

DIVISION:

Appeal

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

26 February 2016

DELIVERED AT:

Southport

HEARING DATE:

24 August 2015

JUDGE:

Rackemann DCJ

ORDER:

The appeal is allowed

CATCHWORDS:

APPEAL – protection order – made under the Domestic and Family Violence Protection Act 2012 – where evidence justified a finding of domestic violence on a single evening, but the learned magistrate erred in findings about the extent of domestic violence established on the evidence – where the making of a protection order was not, in the circumstances, necessary or desirable

COUNSEL:

G Barr for the appellant

E Gullo (solicitor) for the respondent

SOLICITORS:

Butler McDermott Lawyers for the appellant

Public Safety Business Agency for the respondent

The appeal

This appeal is against a decision, made in the Magistrates Court at Southport on 2 February 2015, to make a Protection Order against the appellant, pursuant to the Domestic and Family Violence Protection Act 2012 (“the Act”). That order required the appellant to be of good behaviour towards the aggrieved and her son. The basis for the order related to alleged domestic violence perpetrated by the appellant against the aggrieved on 14 September 2014.

This appeal is brought pursuant to s 164 of the Act. Under s 169, in deciding this appeal, the court can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court. The effect of s 168, is that the appeal proceeds by way of rehearing.[1] It is appropriate that this court observe the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. This court should interfere with the order made below only where it is the result of some identified legal, factual or discretionary error.[2] In so far as discretionary considerations are concerned, the appropriate approach is as stated in House v The King[3].

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

[1]GKE v EUT [2014] QDC 248.

[2]See Merrin v Commissioner of Police [2012] QCA 181 at para 10, citing the earlier observations made in Teelow v Commissioner of Police [2009] QCA 84 at paras 2-4.

[3](1936) 55 CLR 499 at 505.

The protection order was made pursuant to s 37(1) of the Act which provides as follows:

“(1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that-
(a) a relevant relationship exists between the…

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 BJH v CJH

Details

AGLC: BJH v CJH [2016] QDC 27
Case: [2016] QDC 27
Decision Date: 26 February 2016

CaseChat Overview and Summary

In this appeal, the respondent, BJH, sought to overturn a protection order made against the appellant, CJH, under the Domestic and Family Violence Protection Act 2012. The magistrate had issued the protection order based on evidence that CJH had been violent towards BJH on a single evening. BJH argued that the evidence did not justify the extent of the order and that the magistrate had erred in making the order.

The legal issues for the court to decide were whether the evidence supported the magistrate's findings of domestic violence and whether the making of the protection order was necessary and desirable in the circumstances. The court had to consider the evidence presented and the extent to which it supported the magistrate's findings. The court also had to consider the principles and objectives of the Act, including the need to protect the safety and well-being of the victim and to ensure that protection orders are not made unless they are necessary and desirable.

The court found that the evidence did not support the extent of the domestic violence established by the magistrate. The court also found that the making of the protection order was not necessary or desirable in the circumstances. The court noted that the evidence related to a single incident of violence and that there was no evidence of ongoing or repeated violence. The court also noted that the parties had been living separately for some time and that there was no risk of further violence. The court held that the magistrate had erred in making the protection order and allowed the appeal.

Orders

Orders of the court

The appeal is allowed

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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CITATION:	BJH v CJH [2016] QDC 27
PARTIES:	BJH (appellant) v CJH (respondent)
FILE NO/S:	D68/2015
DIVISION:	Appeal
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	26 February 2016
DELIVERED AT:	Southport
HEARING DATE:	24 August 2015
JUDGE:	Rackemann DCJ
ORDER:	The appeal is allowed
CATCHWORDS:	APPEAL – protection order – made under the Domestic and Family Violence Protection Act 2012 – where evidence justified a finding of domestic violence on a single evening, but the learned magistrate erred in findings about the extent of domestic violence established on the evidence – where the making of a protection order was not, in the circumstances, necessary or desirable
COUNSEL:	G Barr for the appellant E Gullo (solicitor) for the respondent
SOLICITORS:	Butler McDermott Lawyers for the appellant Public Safety Business Agency for the respondent