Collin v Collin

[2004] QDC 82

DISTRICT COURT OF QUEENSLAND

CITATION:

Collin  v. Collin [2004] QDC 082

PARTIES:

 STEVEN ALEXANDER COLLIN (Appellant)

v.

LORRAINE JUDY COLLIN (Respondent)

FILE NO/S:

/2003

DIVISION:

Civil

PROCEEDING:

Appellate

ORIGINATING COURT:

District Court Ipswich

DELIVERED ON:

27 April 2004

DELIVERED AT:

Ipswich

HEARING DATE:

12 December 2003

JUDGE:

Richards DCJ

ORDER:

Appeal allowed to the extent that paragraph 5 of the order is deleted

SOLICITORS:

Mr D McMillan for the appellant

Hooper and Hooper for the respondent

1. On 1 October 2003 a protection order was made in favour of the respondent against the appellant pursuant to the Domestic and Family Violence Protection Act 1989.  There was a full hearing before the Magistrate who made a determination that the respondent was a credible witness, that on the balance of probabilities an act of domestic violence had occurred and that there was a likelihood of domestic violence occurring in the future.

1. The magistrate found that the domestic violence amounted to intimidation and harassment. He imposed the standard conditions on the domestic violence order, together with a special condition that he not approach his children (paragraph 5).

1. The appellant seeks an order pursuant to s.66 of the Domestic and Family Violence Protection Act 1989 that condition 5 be deleted. 

1. The application for a Domestic Violence Order at the time did not include the children, although the magistrate has the power to include the children in the order pursuant to s.21 of the Act. This section provides that the court may include the name of the relative of the aggrieved in a domestic violence order for the benefit of the aggrieved if the court is satisfied that the respondent has committed or is likely to commit any of the following acts against that relative such as wilful damage, wilful damage to the property of the child, intimidation or harassment or a threat to commit an act mentioned in the above.  There was no evidence placed before the court that the appellant had committed any act of domestic violence against children or that there was any likelihood that he would so the Magistrate therefore did not include the children in the order under the heading “People Protected By The Order”.

1. Section 25 of the Act allows the court to impose “other or special conditions” on the domestic violence order.  Despite not naming the children in the order he then proceeded to make special condition 5 which related to areas where his children may attend.  In my view there was no basis for the Magistrate making this order and in any event the special condition of the order was too wide to be allowed under the Act.  I note that the respondent has agreed that the appeal should be allowed to the extent that the order be varied.

1. Accordingly it is ordered that paragraph 5 of the protection order made under the Domestic and Family Violence Protection Act 1989 in the Magistrates Court at Gatton on 1 October 2003 be varied by deleting condition 5 of the said order, that the appeal otherwise be dismissed and that each party bear their own costs.