DBZ v CBZ - [2023] QDC 201

DISTRICT COURT OF QUEENSLAND

CITATION:

DBZ v CBZ [2023] QDC 201

PARTIES:

DBZ

(Appellant)

v

CBZ

(Respondent)

FILE NO/S:

D305/22

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 164 Domestic and family Violence Protection Act 2012 (Qld)

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

10 November 2023 (ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

10 November 2023

JUDGE:

Holliday KC DCJ

ORDER:

1.   THE APPEAL IN RESPECT OF THE DECISION TO GRANT THE RESPONDENT A PROTECTION ORDER AGAINST THE APPELLANT IS DISMISSED.

2.   THE APPEAL IN RESPECT OF THE DECISION TO DISMISS THE APPELLANT’S APPLICATION FOR A PROTECTION ORDER IS ALLOWED.

3.   THE DECISION OF THE MAGISTRATE TO DISMISS THE APPELLANT’S APPLICATION FOR A PROTECTION ORDER IS SET-ASIDE.

4.   THE APPELLANT’S APPLICATION FOR A PROTECTION ORDER IS REMITTED TO THE SOUTHPORT MAGISTRATES COURT TO BE RE-HEARD BEFORE A DIFFERENT MAGISTRATE.

5.   THERE BE NO ORDER AS TO THE COSTS OF THE APPEALS.

CATCHWORDS:

FAMILY LAW – DOMESTIC VIOLENCE – APPLICATION FOR A PROTECTION ORDER UNDER THE DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT – APPEAL – where a protection order was made against the appellant – where the appellant’s application for a protection order was dismissed- whether the Magistrate erred in finding that the appellant had committed domestic violence- whether the Magistrate erred in law or fact in finding that it was necessary or desirable to make a protection order against the appellant – whether the Magistrate erred in finding that domestic violence had not been committed against the appellant

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), s 4, 37 and 164

CASES:

HBY v WBI & Anor [2020] QDC 81

COUNSEL:

The appellant appeared on his own behalf
The respondent appeared on her own behalf

SOLICITORS:

The appellant appeared on his own behalf
The respondent appeared on her own behalf

Introduction

This is an appeal pursuant to section 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (Act). The appellant appeals against the order of the Magistrate of 19 October 2022 making a protection order against him and dismissing his application for a protection order (cross-application).

The appellant and respondent were married but this relationship ended by about the end of 2019 or beginning of 2020. On 3 March 2020 the respondent applied for a domestic violence order and on 4 March 2020 a temporary protection order was made against the appellant. It included an outster condition and the appellant moved out of the family home.

On 8 October 2020 the appellant provided a signed undertaking to be of good behaviour towards the respondent and the temporary protection order was not extended. On 16 January 2021, the appellant returned to the family home gaining access with the assistance of a locksmith and recommenced living in the family home.

On 19 January 2021 the respondent lodged an application for a domestic violence order and the court made a temporary protection order with an ouster condition. The appellant lodged a cross-application on 21 January 2021 and…

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 DBZ v CBZ

Details

AGLC: DBZ v CBZ [2023] QDC 201
Case: [2023] QDC 201
Decision Date: 10 November 2023 (ex tempore)

CaseChat Overview and Summary

In the case of DBZ v CBZ, the appellant, DBZ, sought a protection order against the respondent, CBZ, under the Domestic and Family Violence Protection Act. The respondent had already been granted a protection order against the appellant by a Magistrate. The appellant's application for a protection order against the respondent was dismissed. The appellant appealed both the decision to grant the respondent a protection order and the dismissal of the appellant's application for a protection order. The appeal was heard by the Queensland Court of Appeal.

The central legal issues for the court to determine were whether the Magistrate erred in finding that the appellant had committed domestic violence, whether the Magistrate erred in law or fact in finding that it was necessary or desirable to make a protection order against the appellant, and whether the Magistrate erred in finding that domestic violence had not been committed against the appellant. The appellant argued that the Magistrate had made errors in finding that there was no domestic violence against them and in dismissing their application for a protection order.

The Court of Appeal found that the Magistrate had indeed erred in their findings regarding the appellant's application for a protection order. The Court held that the Magistrate had failed to properly consider all the evidence and had made errors in the application of the law. The Court noted that the Magistrate had not provided reasons for dismissing the appellant's application for a protection order, which was a significant error. The Court of Appeal set aside the decision of the Magistrate to dismiss the appellant's application for a protection order and remitted the matter to the Magistrates Court for re-hearing before a different Magistrate. The Court dismissed the appeal in respect of the decision to grant the respondent a protection order against the appellant.

In conclusion, the Court of Appeal dismissed the appeal in respect of the decision to grant the respondent a protection order against the appellant but allowed the appeal in respect of the decision to dismiss the appellant's application for a protection order. The decision of the Magistrate to dismiss the appellant's application was set aside, and the application was remitted to the Magistrates Court for re-hearing before a different Magistrate. There was no order as to the costs of the appeals.

Orders

Orders of the court

1. THE APPEAL IN RESPECT OF THE DECISION TO GRANT THE RESPONDENT A PROTECTION ORDER AGAINST THE APPELLANT IS DISMISSED.

2. THE APPEAL IN RESPECT OF THE DECISION TO DISMISS THE APPELLANT’S APPLICATION FOR A PROTECTION ORDER IS ALLOWED.

3. THE DECISION OF THE MAGISTRATE TO DISMISS THE APPELLANT’S APPLICATION FOR A PROTECTION ORDER IS SET-ASIDE.

4. THE APPELLANT’S APPLICATION FOR A PROTECTION ORDER IS REMITTED TO THE SOUTHPORT MAGISTRATES COURT TO BE RE-HEARD BEFORE A DIFFERENT MAGISTRATE.

5. THERE BE NO ORDER AS TO THE COSTS OF THE APPEALS.

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:	DBZ v CBZ [2023] QDC 201
PARTIES:	DBZ (Appellant) v CBZ (Respondent)
FILE NO/S:	D305/22
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to s 164 Domestic and family Violence Protection Act 2012 (Qld)
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	10 November 2023 (ex tempore)
DELIVERED AT:	Southport
HEARING DATE:	10 November 2023
JUDGE:	Holliday KC DCJ
ORDER:	1. THE APPEAL IN RESPECT OF THE DECISION TO GRANT THE RESPONDENT A PROTECTION ORDER AGAINST THE APPELLANT IS DISMISSED. 2. THE APPEAL IN RESPECT OF THE DECISION TO DISMISS THE APPELLANT’S APPLICATION FOR A PROTECTION ORDER IS ALLOWED. 3. THE DECISION OF THE MAGISTRATE TO DISMISS THE APPELLANT’S APPLICATION FOR A PROTECTION ORDER IS SET-ASIDE. 4. THE APPELLANT’S APPLICATION FOR A PROTECTION ORDER IS REMITTED TO THE SOUTHPORT MAGISTRATES COURT TO BE RE-HEARD BEFORE A DIFFERENT MAGISTRATE. 5. THERE BE NO ORDER AS TO THE COSTS OF THE APPEALS.
CATCHWORDS:	FAMILY LAW – DOMESTIC VIOLENCE – APPLICATION FOR A PROTECTION ORDER UNDER THE DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT – APPEAL – where a protection order was made against the appellant – where the appellant’s application for a protection order was dismissed- whether the Magistrate erred in finding that the appellant had committed domestic violence- whether the Magistrate erred in law or fact in finding that it was necessary or desirable to make a protection order against the appellant – whether the Magistrate erred in finding that domestic violence had not been committed against the appellant
LEGISLATION:	Domestic and Family Violence Protection Act 2012 (Qld), s 4, 37 and 164
CASES:	HBY v WBI & Anor [2020] QDC 81
COUNSEL:	The appellant appeared on his own behalf The respondent appeared on her own behalf
SOLICITORS:	The appellant appeared on his own behalf The respondent appeared on her own behalf