CPS v CNJ

[2014] QDC 47

DISTRICT COURT OF QUEENSLAND

CITATION:

CPS v CNJ [2014] QDC 47

PARTIES:

CPS
(appellant)

v

CNJ
(respondent)

FILE NO/S:

Appeal 13/2013

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Beenleigh

DELIVERED ON:

21 March 2014

DELIVERED AT:

Beenleigh

HEARING DATE:

31 January 2014

JUDGE:

Dearden DCJ

ORDER:

1.   Appeal granted.

2.   Order of the magistrate of 16 January 2013 set aside.

3.   Application for a domestic violence order dismissed.

CATCHWORDS:

FAMILY LAW – domestic violence – whether actions of appellant capable of constituting domestic violence – whether protection order necessary or desirable

LEGISLATION:

Domestic and Family Violence Protection Act 2012 ss 8, 18, 37(1).

CASES

SCJ v ELT [2011] QDC 100 – considered.

Parsons v Raby [2007] QCA 98 – applied.

COUNSEL:

T Mossop for the appellant

The respondent appeared in person

SOLICITORS:

Brooke Winter Solicitors for the appellant

The respondent was not represented

Introduction

1. This is an appeal from a protection order made pursuant to the Domestic and Family Violence Protection Act 2012 (DFVPA) in the Beenleigh Magistrates Court on 16 January 2013.   The appeal proceeds pursuant to the provisions of DFVPA Division 5 ss 164-169.

1. The Commissioner of Police elected not to exercise his right of appearance in respect of this appeal. 

Grounds of appeal

1. The grounds of appeal as drafted in the Notice of Appeal filed 4 February 2013 are as follows:-

1.          that the making of the order was unsafe and unsatisfactory;

1. The appeal grounds were more specifically articulated in the appellant’s Outline of Submissions as follows:-

“2.The defendant (sic) feels aggrieved for the reason that the Magistrate erred in:

(a)finding that the respondent had repeatedly asked the appellant to desist and stop contacting her;

(b)finding that that (sic) ‘continuous contact and comments’ made by the appellant were capable of constituting domestic violence in the circumstances by amounting to harassment;

(c)his unlawful finding that by taking up with the respondent’s ex‑partner, that was a clearly provocative step that he has taken after the end of the relationship;

(d)making an order:

(i)due to a conjunction of the findings given at paragraphs 2(b) and (c) above; and

(ii)in being satisfied that a protection order was necessary to protect the respondent from harassment;

(iii)for the stated unlawful reason that had it not been for the steps taken by the appellant to seek out the respondent’s ‘partner’ and to strike up a relationship with him, he would have perhaps not felt it either necessary or desirable to make the order.”

History

1. The respondent filed an application for a protection order on 19 October 2012 and was granted a temporary protection order on 19 November 2012.  The matter then came for trial before the learned magistrate at Beenleigh on 16 January 2013.

1. The learned magistrate had before him a detailed affidavit of the respondent filed 11 December 2012 and an affidavit of the appellant dated 21 December 2012, which in turn annexed a series of affidavits of other witnesses. 

1. The respondent chose not to cross-examine the…