DISTRICT COURT OF QUEENSLAND
CITATION:
BN v LMN [2024] QDC 31
PARTIES:
BN
(Appellant)
v
LMN
(Respondent)
FILE NO:
DC No 1734 of 2023
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Caloundra – Unreported, 20 May 2021
DELIVERED ON:
28 March 2024
DELIVERED AT:
Brisbane
HEARING DATE:
10 November 2023
JUDGE:
Moynihan KC DCJ
ORDER:
In relation to the respondent’s Notice of Appeal filed on 16 June 2023:
1. The appeal is dismissed.
2. The decision is confirmed.
CATCHWORDS:
APPEAL – DOMESTIC VIOLENCE – DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 – DISCRETIONARY ERROR – where a protection order was made against the appellant in 2023 pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) – where the appellant applies that the order be set aside.
LEGISLATION:
Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 4(1), s 8, s 8(1), s 11, s 12, s 13, s14, s 15, s 16, s 17, s 18, s 19, s 20, s 32, s 36A, s 37, s 37(1), s 37(1)(a), s 37(1)(b), s 37(1)(c), s 37(2)(a)(i), (ii), (iii), s 37(2)(b), s 37(3), s 145(1), s 145(3), s 164, s 165, s 166, s 168, s 168(1), s 169.
Explanatory Notes, Domestic and Family Violence Protection Bill 2011.
Domestic and Family Violence Protections Act 1989 (Qld), s 20(1)(b)
Family Law Act 1975 (Cth)
Acts Interpretation Act 1954 (Qld), s 14A
CASES:
Allesch v Maunz (2000) 203 CLR 172
Fox v Percy (2003) 214 CLR 118
FY v Department of Child Safety [2009] QCA 67
GKE v EUT [2014] QDC 248
HBY v WBI & Anor [2020] QDC 81
House v The King (1936) 55 CLR 499
Jennifer Glover, Separate Representative v Director, Child
MDE V MLG [2015] QDC 151
Protection Litigation & Ors [2016] QChC 16
R v A2 (2019) 373 ALR 214
Ratten v The Queen (1974) 131 CLR 510
WAJ v CRA [2021] QDC 85COUNSEL: T W Newman for the appellant
M Cullen for the respondent
SOLICITORS: Rhonda Sheehy & Associates for the appellant
Legal Aid Queensland for the respondent
Introduction
BN (the appellant) and LMN (the respondent) met in February 2015 and married on 11 February 2016. They had two children: ILN, who was born on 5 October 2017, and EMN, born 27 September 2018. The appellant and the respondent separated on 5 September 2019.
On 27 September 2019, the respondent applied to a Magistrates Court under s 32 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) for a protection order (the application), citing incidents of domestic violence. A Magistrate made a temporary protection order.
The application was heard on 7 May 2021, and on 20 May 2021, a Magistrate made a protection order. An appeal against that order was allowed on 21 February 2022, the order was set aside, and the application remitted to the Magistrates Court to be heard by a different Magistrate.
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- AGLC
- BN v LMN [2024] QDC 31
- Case
- [2024] QDC 31
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Magistrate had erred in determining that the protection order was necessary or desirable, and whether the hearing had been procedurally fair. Given the nature of proceedings under the Act, the court was not bound by the rules of evidence and could inform itself in any way it considered appropriate. The court was required to be satisfied of the matter on the balance of probabilities, and the rules of procedural fairness had to be observed.
The court found that the appellant had indeed committed acts of domestic violence against the respondent, including threatening her during an argument, violently slamming a machete into a metal drum, and acting abusively towards her during a cow-rounding incident. These acts caused the respondent to fear the appellant. The court concluded that the Magistrate was correct in determining that the protection order was necessary or desirable and that the hearing was procedurally fair. Consequently, the appeal was dismissed, and the decision to grant the protection order was confirmed.
The final orders of the court were that the appeal filed by the respondent on 16 June 2023 be dismissed, and the decision to grant the protection order be confirmed.
Orders
Orders of the court
In relation to the respondent’s Notice of Appeal filed on 16 June 2023:
1. The appeal is dismissed.
2. The decision is confirmed.
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
Sixthly, in a proceeding under the Act, a court is not bound by the rules of evidence, or any practices or procedures applying to courts of record and may inform itself in any way it considers appropriate. If the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities: see s 145(1) and (3) of the Act. The hearing must be procedurally fair, i.e., the rules of procedural fairness apply: see Allesch v Maunz (2000) 203 CLR 172 at [35]. Consideration This appeal concerns only the Magistrate’s decision under s 37(1)(c) of the Act that a protection order is necessary or desirable to protect the respondent from domestic violence, because the appellant concedes that the learned Magistrate was correct to find that there was a relevant relationship between the appellant and respondent, and that the appellant had committed domestic violence against the respondent. The parties agree that the record for the purposes of the appeal includes the respondent’s affidavit filed on 22 June 2022 annexing the transcript of the first hearing before Magistrate Fowler on 7 May 2021, the transcript of the hearing before Magistrate Nolan on 22 November 2022, the transcript and written reasons of Magistrate Nolan on 17 May 2023, and exhibits 1 and 2 tendered at the hearing of the appeal. I am satisfied on the whole of the evidence that Magistrate Nolan was correct to find that prior to the parties’ separation, the appellant did the following acts which constitute acts of domestic violence and caused the respondent to fear the appellant. First, during an argument in May 2019, the appellant initially took hold of the respondent by the shoulder and then moved his hands toward her neck and said “I will fucking kill you. Just shut the fuck up. I’ll fucking kill you” (the May 2019 act). The respondent’s evidence of this act is supported in part by the appellant’s admission that he did take hold of the respondent by the shoulders and a statement he made to the respondent in an email on 28 September 2019 in which he said that:“…Not that I need to be told that once attempting to strangle your missus, chucking stuff around, breaking things, yelling, shouting, generally lashing out, saying horrible things, restraining you etc are wrong. I always knew they were so wrong no doubt about it. I found myself unable to lovingly, rationally and normally dealing with many situations….” Secondly, in the presence of the respondent, the appellant angrily raised a machete above his head and slammed it down into a metal drum, causing an indentation. The respondent’s evidence of this act was supported by the appellant’s statement in an SMS message to the respondent that:“…I had to lift a bag of chook pellets this arvo and felt my heart rate rise chest hurt and anger raise……them I saw the machete mark in that drum. So sorry – that’s not the real me.” Thirdly, that earlier on the day they separated, the appellant and respondent were involved in trying to round up some cows that had escaped from a paddock through an open gate. The appellant had “acted in an abusive manner” when he yelled at the respondent, including calling her “useless” because she did not remember to bring the feed to encourage the cows to return and crashed a vehicle into a boundary fence at low speed with the children in it.