DL v MD and Queensland Police Service - [2022] QDC 228

DISTRICT COURT OF QUEENSLAND

LOURY KC DCJ

DC No 3/22

DL Appellant

MD Respondent

and

QUEENSLAND POLICE SERVICE Second Respondent

KINGAROY

FRIDAY, 7 OCTOBER 2022

JUDGMENT

LOURY KC DCJ: On 22 February 2022 the appellant’s application for a protection order under the Domestic and Family Violence Protection Act 2012 (Qld) was refused for want of jurisdiction. The learned Magistrate found that the there was no family relationship between the appellant and MD (the respondent to the application). The appellant appeals against that ruling. MD and the Queensland Police Service having been served with the Notice of Appeal have not sought to be heard.
The material before the learned Magistrate included an affidavit sworn by the appellant on 30 November 2021. In that affidavit the appellant sets out his relationship to MD. He swore that his biological sister and MD were in a relationship, lived together and had a child together. MD and the appellant’s sister separated around 2010.
MD also swore an affidavit on 21 February 2022. In that affidavit he swore that he met the appellant in 2001 after becoming friends with his sister. He swore that “In Mid 2002 I commenced a relationship with [the appellant’s sister], in May 2003 our daughter was born and whilst [the appellant’s sister] was pregnant we lived together in a relationship until 2010.”
The learned Magistrate in his reasons found that MD and the appellant’s sister were in a de facto relationship and a child was born of that relationship. He found that there was no evidence that at any time when the appellant’s sister and MD were in a relationship as spouses, that they considered themselves married to each other as per section 19(3) of the Act. In the absence of such evidence he considered that there was no connection by marriage between the appellant and MD. At best they were friends.
Section 37 of the DVPFA provides for when a court may make a protection order. It states:
(1)A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—
(a)a relevant relationship exists between the aggrieved and the respondent; and
(b)the respondent has committed domestic violence against the aggrieved; and
Note—
See the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12, which define the terms domestic violence, emotional or psychological abuse and economic abuse.
(c)the protection order is necessary or desirable to protect the aggrieved from domestic violence.
A relevant relationship is defined in section 13 of the Act. It states:
A relevant relationship is—
(a)an intimate personal relationship; or
(b)a family relationship; or
(c)an informal care relationship.
The appellant contends that he was in “a family relationship” with MD.
The meaning of family relationship and relative is set out in section 19 of the Act:
(1) A family relationship exists between 2 persons if 1 of them is or was the relative of the other.
(2)A relative of a person is someone who is ordinarily understood to be or to have been connected to the person by blood or marriage.
Examples of an individual’s relatives—
an individual’s spouse, child (including a child 18 years or more), stepchild, parent, step-parent, sibling, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in-law
Examples of an individual’s former relatives—
·the person who would be the individual’s mother-in-law if the individual was still in a spousal relationship with the person’s son or daughter
·the person who would be the step-parent of the individual if the spousal relationship between the person and the person’s former spouse, the individual’s parent, had not ended
·the individual’s step-siblings when the parent they do not have in common has died
(3)For deciding if someone is connected by marriage, any 2 persons who are or were spouses of each other are considered to be or to have been married to each other.
(4)A relative of a person (the first person) is also either of the following persons if it is or was reasonable to regard the person as a relative especially considering that for some people the concept of a relative may be wider than is ordinarily understood—
(a)a person whom the first person regards or regarded as a relative;
(b)a person who regards or regarded himself or herself as a relative of the first person
Examples of people who may have a wider concept of a relative—
·Aboriginal people
·Torres Strait Islanders
·members of certain communities with non-English speaking backgrounds
·people with particular religious beliefs
(5)In deciding if a person is a relative of someone else—
(a)a subsection of this section must not be used to limit another subsection of this section; and
(b)each subsection is to have effect even though, as a result, a person may be considered to be a relative who would not ordinarily be understood to be a relative.
In section 15(2) spouse is defined to include a former spouse of the person. Spouse includes a de facto partner.[1]
[1] Acts Interpretation Act 1954 (Qld) schedule 1, s 32DA.
The learned Magistrate, in his findings, considered that there was no evidence that at any time when MD and the appellant’s sister were in a de facto relationship that they considered themselves married to each other. He referenced section 19(3) of the Act. That section does not refer to whether the spouses consider themselves to be married to each other but rather states that if two persons were spouses then they are considered to have been married. If the learned Magistrate’s intended reference was to section 19(4) of the Act which provides for persons who consider themselves to be relatives for example, by virtue of their culture or their religion, then he failed to take into account subsection 5 which provides that a subsection of section 19 must not be used to limit another subsection.
Upon a plain reading of section 19 the appellant and MD were former relatives. They were in a relevant relationship in accordance with the legislation. I am satisfied that the learned Magistrate erred in his determination that there was no family relationship established.
As the learned Magistrate did not consider whether there was evidence that MD had committed acts of domestic violence against DL or whether a protection order was necessary or desirable in order to protect the appellant from domestic violence, it is not appropriate, in the absence of any argument directed to those issues at first instance, for this court to make such a determination.
Accordingly I will allow the appeal, set aside the order of the learned Magistrate, and remit the matter to the Magistrates Court to be determined according to law.
The appellant, although unrepresented, sought costs against MD in an amount of $300. MD did not seek to be heard, and filed no material opposing the order sought. I make no order as to costs.