CCE v Cje - [2023] QDC 125

DISTRICT COURT OF QUEENSLAND

CITATION:

CCE v CJE & Anor [2023] QDC 125

PARTIES:

CCE

(appellant)

v
CJA

(first respondent)

SENIOR CONSTABLE J A GERRARD
(second respondent)

FILE NO:

D27/2023

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to Domestic and Family Violence Protection Act 2012

ORIGINATING COURT:

Magistrates Court at Maroochydore

DELIVERED ON:

6 July 2023 (Orders)

13 July 2023 (Written Reasons)

DELIVERED AT:

Maroochydore

HEARING DATE:

6 July 2023

JUDGE:

Long SC DCJ

ORDER:

The order made in the Magistrates Court at Maroochydore on 17 January 2023 is set aside and instead it is ordered that the application made by the second respondent, by police protection notice dated 11 January 2023, be dismissed.

CATCHWORDS:

APPEAL – DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT – appeal pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 for the order of the Magistrates Court at Maroochydore to be set aside – whether there is a denial of procedural fairness – where the appellant has a hearing impediment resulting in an unidentified person speaking on her behalf in the initial hearing – whether the appellant did consent to a domestic violence order being made – where the aggrieved was not asked whether she consented to the domestic violence order being made – where essential conditions to the making of a domestic violence order under s 51 were not met – where the appropriate exercise of power was to dismiss rather than remit the application because of absence of utility, in the circumstances, including the first respondent’s stated position of not desiring that any protection order be made and in any sufficient prospect of a finding that is necessary or desirable to protect the aggrieved from domestic violence.

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) ss 21, 37, 45, 51, 84, 85, 112, 145, 146, 164, 169, 185

CASES:

Fox v Percy (2003) 214 CLR 118

HBY v WBI & Anor [2020] QDC 81

PR v KJ [2022] QDC 29
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550

COUNSEL:

M O’Brien for the Second Respondent

SOLICITORS:

The Appellant appeared on her own behalf

The First Respondent appeared on her own behalf

Queensland Police Service Legal Services Unit for the Second Respondent

By notice of appeal filed 14 February 2023, the self-represented appellant appeals against the order made in the Magistrates Court at Maroochydore on 17 January 2023, that the appellant be of good behaviour towards the first respondent and not commit domestic violence against her. Accordingly, this is an appeal brought pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (“DFVPA”).
At the hearing of this appeal on 6 July 2023, the Court made an order, pursuant to s 169(1)(c) of the DFVPA, to set aside the order made in the Magistrates Court at Maroochydore on 17 January 2023 and instead ordered that the application made by the second respondent, by police protection notice dated 11 January 2023, be dismissed. What follows are…

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 CCE v Cje

Details

AGLC: CCE v Cje [2023] QDC 125
Case: [2023] QDC 125
Decision Date: 6 July 2023 (Orders) 13 July 2023 (Written Reasons)

CaseChat Overview and Summary

In the case of CCE v Cje, the appellant sought an appeal under section 164 of the Domestic and Family Violence Protection Act 2012 against a decision made by the Magistrates Court at Maroochydore. The appellant contended that the order made in the Magistrates Court should be set aside. The dispute centred around the making of a domestic violence order and the alleged procedural unfairness due to the appellant's hearing impediment, which resulted in an unidentified person speaking on her behalf during the initial hearing. Additionally, the appellant claimed that she did not consent to the domestic violence order being made, as the aggrieved party was not asked about her consent, and that essential conditions for making such an order under section 51 were not met.

The legal issues before the court involved whether there was a denial of procedural fairness due to the appellant's hearing impediment and whether the appellant had consented to the domestic violence order being made. Furthermore, the court had to determine whether the essential conditions for the making of a domestic violence order under section 51 were met and whether the appropriate exercise of power was to dismiss rather than remit the application, considering the absence of utility and the first respondent’s stated position of not desiring that any protection order be made.

The court found that the appellant’s hearing impediment led to a denial of procedural fairness as an unidentified person spoke on her behalf during the initial hearing. Additionally, it was determined that the aggrieved party was not asked about her consent to the domestic violence order, and essential conditions under section 51 were not met. The court concluded that the appropriate exercise of power was to dismiss rather than remit the application because of the absence of utility, considering the first respondent’s position and the lack of a sufficient prospect of a finding that is necessary or desirable to protect the aggrieved from domestic violence.

The court set aside the order made in the Magistrates Court at Maroochydore on 17 January 2023 and ordered that the application made by the second respondent, by police protection notice dated 11 January 2023, be dismissed.

Orders

Orders of the court

The order made in the Magistrates Court at Maroochydore on 17 January 2023 is set aside and instead it is ordered that the application made by the second respondent, by police protection notice dated 11 January 2023, be dismissed.

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:	*CCE v* CJE & Anor [2023] QDC 125
PARTIES:	CCE (appellant) v CJA (first respondent) SENIOR CONSTABLE J A GERRARD (second respondent)
FILE NO:	D27/2023
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to Domestic and Family Violence Protection Act 2012
ORIGINATING COURT:	Magistrates Court at Maroochydore
DELIVERED ON:	6 July 2023 (Orders) 13 July 2023 (Written Reasons)
DELIVERED AT:	Maroochydore
HEARING DATE:	6 July 2023
JUDGE:	Long SC DCJ
ORDER:	The order made in the Magistrates Court at Maroochydore on 17 January 2023 is set aside and instead it is ordered that the application made by the second respondent, by police protection notice dated 11 January 2023, be dismissed.
CATCHWORDS:	APPEAL – DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT – appeal pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 for the order of the Magistrates Court at Maroochydore to be set aside – whether there is a denial of procedural fairness – where the appellant has a hearing impediment resulting in an unidentified person speaking on her behalf in the initial hearing – whether the appellant did consent to a domestic violence order being made – where the aggrieved was not asked whether she consented to the domestic violence order being made – where essential conditions to the making of a domestic violence order under s 51 were not met – where the appropriate exercise of power was to dismiss rather than remit the application because of absence of utility, in the circumstances, including the first respondent’s stated position of not desiring that any protection order be made and in any sufficient prospect of a finding that is necessary or desirable to protect the aggrieved from domestic violence.
LEGISLATION:	Domestic and Family Violence Protection Act 2012 (Qld) ss 21, 37, 45, 51, 84, 85, 112, 145, 146, 164, 169, 185
CASES:	Fox v Percy (2003) 214 CLR 118 HBY v WBI & Anor [2020] QDC 81 PR v KJ [2022] QDC 29 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550
COUNSEL:	M O’Brien for the Second Respondent
SOLICITORS:	The Appellant appeared on her own behalf The First Respondent appeared on her own behalf Queensland Police Service Legal Services Unit for the Second Respondent