CED v HL - [2016] QDC 345

DISTRICT COURT OF QUEENSLAND

CITATION:

CED v HL [2016] QDC 345

PARTIES:

CED
(appellant)
v

HL
(respondent)

FILE NO/S:

30/16

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

22 December 2016

DELIVERED AT:

Southport

HEARING DATE:

14 December 2016

JUDGE:

Kent QC DCJ

ORDERS:

Appeal allowed.1.

Decision made on 20 September 2016 by the Magistrates Court at Southport is set aside.2.

In lieu thereof, the Temporary Protection Order dated 9 August 2016 is varied as follows:3.

That the child of the parties, here referred to as K, be removed as a named person;a.

b.   That Order 5 be removed;

c.   That Order 6 be removed.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where a temporary protection order against the appellant had been varied, so to include the parties’ child as a named person on the order – where the appellant applied to remove the parties’ child as a named person – where the presiding Magistrate refused to remove the parties’ child as a named person – where an appeal was brought, pursuant to s 164(b) of the Domestic Violence and Family Protection Act 2012 (Qld), against the refusal – where there was a relationship between the child and the appellant – where the appellant had not committed any domestic violence against the child – where there was no identifiable risk of violence to the child posed by the appellant – whether it was necessary or desirable for the parties’ child to be listed as a named person on the order

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where a temporary protection order against the appellant had been varied, so to include a condition prohibiting the appellant from permitting, encouraging or facilitating in-person contact between the parties’ child and the respondent's father – where the respondent's father was the child's grandfather – where it was alleged the grandfather threatened to harm the appellant, in the presence of the child – where the child had recently seen his grandfather and desired more contact – where the appellant applied to remove the aforementioned condition – where the presiding Magistrate refused the application – where an appeal was brought, pursuant to s 164(b) of the Domestic Violence and Family Protection Act 2012 (Qld), against the refusal – whether it was necessary or desirable to include the condition that the appellant not permit, encourage or facilitate in-person contact between the parties’ child and the respondent's father

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where an appeal was brought, pursuant to s 164(b) of the Domestic Violence and Family Protection Act 2012 (Qld), against a refusal to vary a temporary protection order – where the reasons given on each issue by the presiding Magistrate were very brief – where the reasons did not expose the finding of facts relevant to the applicable sections or the way in which those matters satisfied the requirements of these sections – whether…

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 CED v HL

Details

AGLC: CED v HL [2016] QDC 345
Case: [2016] QDC 345
Decision Date: 22 December 2016

CaseChat Overview and Summary

The appellant, CED, appealed against a decision of the Magistrates Court at Southport to refuse to vary a Temporary Protection Order against them, pursuant to section 164(b) of the Domestic Violence and Family Protection Act 2012 (Qld). The order had been varied to include the parties' child as a named person and to include a condition prohibiting the appellant from permitting, encouraging or facilitating in-person contact between the parties' child and the respondent's father, who was the child's grandfather. The appellant sought to have the child removed as a named person and to have the condition prohibiting contact with the child's grandfather removed. The presiding Magistrate refused both applications. The court was required to determine whether it was necessary or desirable for the child to be listed as a named person on the order and whether it was necessary or desirable to include the condition that the appellant not permit, encourage or facilitate in-person contact between the parties' child and the respondent's father.

The court found that there was no evidence to suggest that the appellant had committed any domestic violence against the child, nor was there any identifiable risk of violence to the child posed by the appellant. The court found that the Magistrate's reasons were very brief and did not expose the findings of fact relevant to the applicable sections of the Act or the way in which those matters satisfied the requirements of these sections. The court found that these factors amounted to errors of law. The court found that it was not necessary or desirable for the child to be listed as a named person on the order and that it was not necessary or desirable to include the condition that the appellant not permit, encourage or facilitate in-person contact between the parties' child and the respondent's father.

The appeal was allowed, and the decision made on 20 September 2016 by the Magistrates Court at Southport was set aside. In lieu thereof, the Temporary Protection Order dated 9 August 2016 was varied to remove the child as a named person, to remove the condition prohibiting contact with the child's grandfather, and to remove the condition prohibiting the appellant from permitting, encouraging or facilitating in-person contact between the parties' child and the respondent's father.

Orders

Orders of the court

Appeal allowed.1.

Decision made on 20 September 2016 by the Magistrates Court at Southport is set aside.2.

In lieu thereof, the Temporary Protection Order dated 9 August 2016 is varied as follows:3.

That the child of the parties, here referred to as K, be removed as a named person;a.

b. That Order 5 be removed;

c. That Order 6 be removed.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	CED v HL [2016] QDC 345
PARTIES:	CED (appellant) v HL (respondent)
FILE NO/S:	30/16
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	22 December 2016
DELIVERED AT:	Southport
HEARING DATE:	14 December 2016
JUDGE:	Kent QC DCJ
ORDERS:	Appeal allowed.1. Decision made on 20 September 2016 by the Magistrates Court at Southport is set aside.2. In lieu thereof, the Temporary Protection Order dated 9 August 2016 is varied as follows:3. That the child of the parties, here referred to as K, be removed as a named person;a. b. That Order 5 be removed; c. That Order 6 be removed.
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where a temporary protection order against the appellant had been varied, so to include the parties’ child as a named person on the order – where the appellant applied to remove the parties’ child as a named person – where the presiding Magistrate refused to remove the parties’ child as a named person – where an appeal was brought, pursuant to s 164(b) of the Domestic Violence and Family Protection Act 2012 (Qld), against the refusal – where there was a relationship between the child and the appellant – where the appellant had not committed any domestic violence against the child – where there was no identifiable risk of violence to the child posed by the appellant – whether it was necessary or desirable for the parties’ child to be listed as a named person on the order MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where a temporary protection order against the appellant had been varied, so to include a condition prohibiting the appellant from permitting, encouraging or facilitating in-person contact between the parties’ child and the respondent's father – where the respondent's father was the child's grandfather – where it was alleged the grandfather threatened to harm the appellant, in the presence of the child – where the child had recently seen his grandfather and desired more contact – where the appellant applied to remove the aforementioned condition – where the presiding Magistrate refused the application – where an appeal was brought, pursuant to s 164(b) of the Domestic Violence and Family Protection Act 2012 (Qld), against the refusal – whether it was necessary or desirable to include the condition that the appellant not permit, encourage or facilitate in-person contact between the parties’ child and the respondent's father MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where an appeal was brought, pursuant to s 164(b) of the Domestic Violence and Family Protection Act 2012 (Qld), against a refusal to vary a temporary protection order – where the reasons given on each issue by the presiding Magistrate were very brief – where the reasons did not expose the finding of facts relevant to the applicable sections or the way in which those matters satisfied the requirements of these sections – whether…