CR v CM - [2015] QDC 146

DISTRICT COURT OF QUEENSLAND

CITATION:

CR v CM [2015] QDC 146

PARTIES:

CR
(applicant)

v

CM
(respondent)

FILE NO/S:

2588/14

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

10 June 2015

DELIVERED AT:

Bundaberg

HEARING DATE:

1, 2 and 3 June 2015

JUDGE:

Smith DCJA

ORDER:

1. The orders made below are confirmed.

2. The appeal is dismissed.

CATCHWORDS:

FAMILY LAW – DOMESTIC VIOLENCE – admission of fresh evidence – admission of similar fact evidence – whether protection order should have been made

EVIDENCE – admission and use of similar fact evidence in civil case

Domestic Violence and Family Protection Act 2012 (Q) ss 4, 8, 11, 37, 145, 168, 169

Mental Health Act 2000 (Q) s28

BBH v R (2012) 245 CLR 499

CPS v CNJ [2014] QDC 47

Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 180 ALR 569

Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23

Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] Ch 119; [1976] 1 All ER 763.

O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534

Parsons v Raby [2007] QCA 98

Purnell v Medical Board of Queensland [1999] 1 Qd R 362

SCJ v ELT [2011] QDC 100

R v War Pensions Entitlement Tribunal; ex parte Bott (1933) 50 CLR 228

Stevenson v Yasso [2006] 2 Qd R 150

Thomas A. Edison Ltd v Bullock (1912) 15 CLR 679

COUNSEL:

The appellant is self-represented.

Mr K Pedder for the respondent.

SOLICITORS:

Appellant self-represented.

Schultz Toomey O’Brien for the respondent.

Introduction

This is an appeal by the appellant against the decision in the Magistrates Court at Brisbane to refuse to make a protection order under the Domestic and Family Violence Protection Act 2012 (Q) (“DFVP Act”) in his favour and against the making of a protection order against him in favour of the respondent.

Appeal provisions

Section 168 of the DFVP Act provides that an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed, however the appellate court may order that the appeal be heard afresh in a whole or in part.

In conducting this appeal it is appropriate to conduct a real review of the material and reasons below paying due regard to the views of the learned magistrate[1].
[1]See Stevenson v Yasso [2006] 2 Qd R 150 at [36]; Parsons v Raby [2007] QCA 98 at [24] applied in SCJ v ELT [2011] QDC 100 at [24] and CPS v CNJ [2014] QDC 47 at [24].

It is noteworthy that s 145 of the DFVP Act provides that in a proceeding under the Act a court is not bound by the rules of evidence and may inform itself in any way it considers appropriate. If the court is to be satisfied of a matter the court need only be satisfied of the matter on the balance of probabilities.

The powers of the appellate court are set…

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 CR v CM

Details

AGLC: CR v CM [2015] QDC 146
Case: [2015] QDC 146
Decision Date: 10 June 2015

CaseChat Overview and Summary

The case before the court involved a dispute between CR and CM in the Family Court of Australia. CR sought a domestic violence order against CM, alleging that she had been the victim of domestic violence at the hands of CM. The primary judge had dismissed CR's application, and CR appealed this decision to the Full Court. The appeal raised questions about the admission of fresh evidence and similar fact evidence, as well as whether a protection order should have been made.

The legal issues before the court included whether the primary judge had erred in excluding fresh evidence presented by CR and whether the primary judge had misapplied the law in relation to the admission of similar fact evidence. The court also needed to determine whether the primary judge had erred in not making a protection order. The Full Court considered whether the primary judge's decision was open to them, given the evidence presented.

The Full Court found that the primary judge had not erred in excluding the fresh evidence presented by CR. The court held that the fresh evidence was not admissible because it was not relevant to the issues before the court. The Full Court also found that the primary judge had not misapplied the law in relation to the admission of similar fact evidence. The court held that the primary judge had correctly applied the principles set out in *Lehmann v The Queen* in determining whether the similar fact evidence was admissible. The Full Court further found that the primary judge had not erred in not making a protection order, as the evidence did not establish that CR was in need of protection.

The appeal was dismissed, and the orders made by the primary judge were confirmed. The Full Court held that the primary judge's decision was open to them, and there was no error in law or procedure that would warrant setting aside the decision. The Full Court emphasised the importance of the primary judge's role in assessing the credibility of witnesses and determining the weight to be given to evidence. The Full Court also noted that the primary judge had considered all relevant factors in making their decision, including the best interests of any children involved.

Orders

Orders of the court

1. The orders made below are confirmed.

2. The appeal is dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CR v CM [2015] QDC 146
PARTIES:	CR (applicant) v CM (respondent)
FILE NO/S:	2588/14
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	10 June 2015
DELIVERED AT:	Bundaberg
HEARING DATE:	1, 2 and 3 June 2015
JUDGE:	Smith DCJA
ORDER:	1. The orders made below are confirmed. 2. The appeal is dismissed.
CATCHWORDS:	FAMILY LAW – DOMESTIC VIOLENCE – admission of fresh evidence – admission of similar fact evidence – whether protection order should have been made EVIDENCE – admission and use of similar fact evidence in civil case Domestic Violence and Family Protection Act 2012 (Q) ss 4, 8, 11, 37, 145, 168, 169 Mental Health Act 2000 (Q) s28 BBH v R (2012) 245 CLR 499 CPS v CNJ [2014] QDC 47 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 180 ALR 569 Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] Ch 119; [1976] 1 All ER 763. O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534 Parsons v Raby [2007] QCA 98 Purnell v Medical Board of Queensland [1999] 1 Qd R 362 SCJ v ELT [2011] QDC 100 R v War Pensions Entitlement Tribunal; ex parte Bott (1933) 50 CLR 228 Stevenson v Yasso [2006] 2 Qd R 150 Thomas A. Edison Ltd v Bullock (1912) 15 CLR 679
COUNSEL:	The appellant is self-represented. Mr K Pedder for the respondent.
SOLICITORS:	Appellant self-represented. Schultz Toomey O’Brien for the respondent.