DGE v REU - [2023] QDC 35

DISTRICT COURT OF QUEENSLAND

CITATION:

DGE v REU [2023] QDC 35

PARTIES:

DGE

(Appellant)

v
REU

(Respondent)

FILE NO:

BD No 1958 of 2022

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 February 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2023

JUDGE:

Porter KC DCJ

ORDER:

1.       The appeal in respect of the decision to grant the respondent a protection order against the appellant is allowed;

2.       The protection order dated 29 July 2022 made against the appellant in favour of the respondent is set aside;

3.       The respondent’s application for a protection order is dismissed;

4.       The appeal in respect of the decision to dismiss the appellant’s cross-application is allowed;

5.       The cross application is remitted to the Magistrates Court for further consideration to occur after the publication of the reasons given in this appeal;

6.       Any orders as to costs made by the Magistrates Court on the application are set aside; and

7.       There be no order as to the costs of the appeals.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – WHEN APPEAL LIES – where the respondent brought an application in the Magistrates Court for a protection order against the appellant – where the appellant brought a cross-application for an order against the respondent – where the learned Magistrate upheld the application and dismissed the cross-application – where language barriers prevented the Magistrate from fully discerning the appellant’s case – whether the learned Magistrate erred in upholding the application and dismissing the cross-application – whether the learned Magistrate erred in finding that a protection order was necessary and desirable to protect the respondent

Legislation

Domestic and Family Violence Protection Act 2012 (Qld) s 12 and 37

Cases

GKE v EUT [2014] QDC 248

OMD v Queensland Police Service [2021] QDC 282

COUNSEL:

The Appellant appeared in person

S Jones for the Respondent

SOLICITORS:

AGP Lawyers for the Respondent

Introduction

On 29 July 2022, in the Magistrates Court at Beenleigh, the learned Magistrate made a protection order directed to DGE, identifying the aggrieved as his wife, REU, and naming the two children of their marriage as named persons.
The protection order had the usual mandatory provision in paragraph 1. It included the usual, general form provision covering named children in paragraph 2. Paragraphs 3 and 4 contained discretionary provisions that in effect prohibited DGE from approaching to within 100 metres and 50 metres, respectively, of REU except in certain circumstances.
Paragraph 5 of the order prohibited DGE from contacting or attempting to contact REU except for certain specific exceptions. The specific exceptions mostly related to appearing in Court or otherwise having dealings with each other arising out of Court proceedings. Contact was permitted in respect of the Family Court proceedings and Family Court orders relating to the care of their joint children. The order was made to continue until July 2027. The learned Magistrate also dismissed DGE’s application for a protection order directed to…

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 DGE v REU

Details

AGLC: DGE v REU [2023] QDC 35
Case: [2023] QDC 35
Decision Date: 10 February 2023 (ex tempore)

CaseChat Overview and Summary

In the matter of DGE v REU, the appeal arose from a decision made in the Magistrates Court of Queensland. The respondent sought a protection order against the appellant, which the appellant opposed and filed a cross-application for a protection order against the respondent. The learned Magistrate upheld the application and dismissed the cross-application, leading to the appeal by the appellant.

The appeal raised two primary legal issues. First, whether the learned Magistrate erred in upholding the application and dismissing the cross-application due to the language barrier that affected the appellant's ability to present their case effectively. Second, whether the Magistrate erred in finding that a protection order was necessary and desirable to protect the respondent.

The Court found that the language barrier did indeed impede the appellant's ability to adequately present their case, thus affecting the fairness of the proceedings. Consequently, the decision to uphold the application and dismiss the cross-application was erroneous. Additionally, the Court determined that the Magistrate did not provide sufficient reasons to justify the necessity and desirability of a protection order for the respondent. As such, the appeal was successful in both respects.

The Court ordered the appeal in respect of the decision to grant the respondent a protection order against the appellant be allowed, and the protection order dated 29 July 2022 be set aside. Furthermore, the respondent's application for a protection order was dismissed, and the appeal in respect of the decision to dismiss the appellant’s cross-application was allowed. The cross-application was remitted to the Magistrates Court for further consideration after the publication of the appeal reasons. Any costs orders made by the Magistrates Court on the application were set aside, and no order was made 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 allowed;

2. The protection order dated 29 July 2022 made against the appellant in favour of the respondent is set aside;

3. The respondent’s application for a protection order is dismissed;

4. The appeal in respect of the decision to dismiss the appellant’s cross-application is allowed;

5. The cross application is remitted to the Magistrates Court for further consideration to occur after the publication of the reasons given in this appeal;

6. Any orders as to costs made by the Magistrates Court on the application are set aside; and

7. There be no order as to the costs of the appeals.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	DGE v REU [2023] QDC 35
PARTIES:	DGE (Appellant) v REU (Respondent)
FILE NO:	BD No 1958 of 2022
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 February 2023 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2023
JUDGE:	Porter KC DCJ
ORDER:	1. The appeal in respect of the decision to grant the respondent a protection order against the appellant is allowed; 2. The protection order dated 29 July 2022 made against the appellant in favour of the respondent is set aside; 3. The respondent’s application for a protection order is dismissed; 4. The appeal in respect of the decision to dismiss the appellant’s cross-application is allowed; 5. The cross application is remitted to the Magistrates Court for further consideration to occur after the publication of the reasons given in this appeal; 6. Any orders as to costs made by the Magistrates Court on the application are set aside; and 7. There be no order as to the costs of the appeals.
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – WHEN APPEAL LIES – where the respondent brought an application in the Magistrates Court for a protection order against the appellant – where the appellant brought a cross-application for an order against the respondent – where the learned Magistrate upheld the application and dismissed the cross-application – where language barriers prevented the Magistrate from fully discerning the appellant’s case – whether the learned Magistrate erred in upholding the application and dismissing the cross-application – whether the learned Magistrate erred in finding that a protection order was necessary and desirable to protect the respondent Legislation Domestic and Family Violence Protection Act 2012 (Qld) s 12 and 37 Cases GKE v EUT [2014] QDC 248 OMD v Queensland Police Service [2021] QDC 282
COUNSEL:	The Appellant appeared in person S Jones for the Respondent
SOLICITORS:	AGP Lawyers for the Respondent