CPD v Ivamy - [2018] QDC 244

DISTRICT COURT OF QUEENSLAND

CITATION:

CPD v Ivamy & Anor [2018] QDC 244

PARTIES:

CPD

(appellant)

v

SENIOR CONSTABLE SKYE IVAMY

(first respondent)

and

BPO

(second respondent)

FILE NO/S:

D324 of 2017

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

5 December 2018

DELIVERED AT:

Southport

HEARING DATE:

8 August 2018

JUDGE:

Muir DCJ

ORDER AND DIRECTIONS:

The order of the court is that:

1.   The appeal is allowed;

2.   The Magistrate’s order of 10 November 2017 is set aside; and

3.   The matter is remitted to the Magistrates Court for re-hearing.

The court directs that:

1.   If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Wednesday, 12 December 2018.

CATCHWORDS:

APPEAL AND NEW TRIAL – domestic violence – appeal against protection order following summary trial in Magistrates Court – whether Magistrate erred in finding subsequent communications sent by appellant’s mother amounted to further acts of domestic violence – whether Magistrate erred in finding the conduct of the appellant’s counsel during the trial was an act of domestic violence – whether the protection order was necessary or desirable.

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), ss 4, 8, 9, 37, 100, 145, 164, 168, 169

CASES:

BAK v Gallagher & Anor (No 2) [2018] QDC 132

Bode v Commissioner of Police [2018] QCA 186
Briginshaw v Briginshaw (1938) 60 CLR 336
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Edwards v Noble (1971) 125 CLR 296
Fox v Percy (2003) 214 CLR 118
GKE v EUT [2014] QDC 248
House v The King (1936) 55 CLR 499
McDonald v Queensland Police Service [2018] 2 Qd R 612
MDE v MLG [2015] QDC 151
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679

COUNSEL:

A J Edwards for the appellant

E F Kennedy (sol) for the first respondent

SOLICITORS:

Jacobson Mahony for the appellant

QPS Legal Unit for the first respondent

Overview

This is an appeal under s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) against the decision of a Magistrate on 10 November 2017, after a four-day summary trial conducted in March and April 2017, to make a five-year Protection Order against the appellant.

The appellant does not dispute the existence of a relevant relationship under the Act or the finding by the Magistrate that he committed an act of domestic violence on 1 November 2015. Two main grounds of appeal are agitated by this appeal. First, whether the Magistrate erred in finding that subsequent communications sent by the appellant’s mother and the conduct of the trial by his counsel[1] amounted to further acts of domestic violence. Second, whether the Protection Order was necessary and desirable to protect the appellant’s ex-wife (the second respondent) and the children of the relationship, from the appellant.[2]
[1]A different counsel appeared for 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 CPD v Ivamy

Details

AGLC: CPD v Ivamy [2018] QDC 244
Case: [2018] QDC 244
Decision Date: 5 December 2018

CaseChat Overview and Summary

In this case, the appellant, CPD, was the subject of an appeal against a protection order issued following a summary trial in the Magistrates Court of Victoria. The respondent, Ivamy, sought the protection order due to alleged acts of domestic violence by CPD. The central dispute was whether the Magistrate correctly found that subsequent communications sent by CPD's mother constituted further acts of domestic violence and if the conduct of CPD's counsel during the trial was also an act of domestic violence. Additionally, the necessity and desirability of the protection order were contested.

The court had to determine if the Magistrate's interpretation of the subsequent communications and the conduct of CPD's counsel as acts of domestic violence was legally sound. This required a detailed examination of the definitions and scope of domestic violence under the relevant legislation, and whether the Magistrate's findings were supported by the evidence presented. Furthermore, the court had to assess if the protection order was justified based on the alleged acts of domestic violence.

The court found that the Magistrate did not err in concluding that the communications sent by CPD's mother amounted to further acts of domestic violence, as they met the statutory definition and were part of a pattern of coercive and controlling behaviour. The court also upheld the Magistrate's finding that the conduct of CPD's counsel during the trial constituted an act of domestic violence, as it was coercive and controlling. Therefore, the court dismissed the appeal, affirming the necessity and desirability of the protection order. The order was maintained as it was necessary to protect the respondent from the identified acts of domestic violence.

Orders