EW v RW - [2024] QDC 151

DISTRICT COURT OF QUEENSLAND

CITATION:

EW v RW [2024] QDC 151

PARTIES:

EW

(appellant)

v
RW

(respondent)

FILE NO/S:

BD1106/24

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld)

ORIGINATING COURT:

Magistrates Court at Caboolture

DELIVERED ON:

18 September 2024.

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2024

JUDGES:

Smith AM DCJA

ORDER:

1.   I grant the appellant an extension of time to file his appeal.

2.   The appeal is allowed.

3.   The decision of the Magistrate is set aside.

4.   The matter is remitted to the Magistrates Court at Caboolture for hearing before a different Magistrate.

5.   I make no order as to costs.

CATCHWORDS:

FAMILY LAW – DOMESTIC AND FAMILY VIOLENCE – where the matter was listed for a directions hearing only – where the directions hearing date changed – where notification of the new directions hearing date was sent to an address from which the appellant had been evicted – where the appellant did not receive notice of the new directions hearing date – where a final order was made in the absence of the appellant – where the Magistrate failed to consider whether the appellant had been notified of the new date or as to the matters set out in the Act – whether sufficient explanation for delay

COUNSEL:
SOLICITORS:

Domestic Violence and Family Violence Protection Act 2012 (Qld) ss 37, 39, 41B, 45, 157A, 164, 165

International Finance v Crime Commissioner [2009] HCA 49; (2009) 240 CLR 319, applied

R v Tait [1998] QCA 304; [1999] 2 Qd R 667, applied

Self-represented appellant
Solicitors for the respondent

Self-represented appellant
Towns-Wilson Lawyers for the respondent

Introduction

This is an application for leave to appeal pursuant to section 165(5) of the Domestic and Family Violence Protection Act 2012 (“DFVP Act”).
The ground of the appeal is that the Magistrates Court erred in making a final protection order in favour of the respondent against the appellant when he was not present and further that the court failed to consider the requirements of the section when making the order.
Background
On 3 April 2023 the respondent applied for a protection order pursuant to the DFVP Act. The respondent is the sister of the appellant.
The matter came before the Court on 3 April 2023 and a temporary protection order was made in favour of the respondent. The matter was adjourned until 19 April 2023.
On 19 April 2023 the respondent was represented by solicitors and the appellant represented by solicitors. The matter was adjourned for further mention on 10 May 2023. A further temporary protection order was made.
On 10 May 2023 the matter was mentioned once again with solicitors present. The matter was adjourned for further mention on 31 May 2023.
On 31 May 2023 the matter was mentioned again with solicitors present. The matter was adjourned for further mention on 12 July 2023. The temporary protection order continued.
On 12 July 2023…

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 EW v RW

Details

AGLC: EW v RW [2024] QDC 151
Case: [2024] QDC 151
Decision Date: 18 September 2024.

CaseChat Overview and Summary

EW appeals against a final protection order made in favour of RW, his sister, under the Domestic and Family Violence Protection Act 2012 (Qld). The appeal was heard in the District Court and allowed, with the decision of the Magistrate being set aside and the matter remitted for hearing before a different Magistrate. The appellant contends that the Magistrates Court erred in making the final protection order in his absence and that the Magistrate failed to consider the statutory requirements in making the order. The appellant's eviction from his residence resulted in him not receiving notice of the new directions hearing date. Consequently, he was absent when the final order was made. The Magistrate did not consider whether the appellant had been notified of the new hearing date or address his absence when making the final order.

The central legal issues in the appeal were whether the Magistrates Court had jurisdiction to make a final order in the absence of the appellant and whether the Magistrate failed to consider the statutory requirements when making the order. Under the Domestic and Family Violence Protection Act 2012 (Qld), a final protection order can only be made if the respondent is given an opportunity to be heard. In this case, the appellant was not present and had not been given an opportunity to be heard. Additionally, the Magistrate failed to consider the statutory requirements when making the order, as required by the Act. The court must consider the need for the order, the nature and extent of the violence, and any other relevant factors. In this case, the Magistrate made no findings or reasons for the decision. The appeal was allowed on the basis that the Magistrates Court erred in making the final order in the absence of the appellant and failed to consider the statutory requirements. The decision of the Magistrate was set aside and the matter was remitted to the Magistrates Court for hearing before a different Magistrate. The appellant was granted an extension of time to file his appeal, and no order was made as to costs.

Orders

Orders of the court

1. I grant the appellant an extension of time to file his appeal.

2. The appeal is allowed.

3. The decision of the Magistrate is set aside.

4. The matter is remitted to the Magistrates Court at Caboolture for hearing before a different Magistrate.

5. I make no order as to costs.

Background

Background to the litigation

The ground of the appeal is that the Magistrates Court erred in making a final protection order in favour of the respondent against the appellant when he was not present and further that the court failed to consider the requirements of the section when making the order.Background On 3 April 2023 the respondent applied for a protection order pursuant to the DFVP Act. The respondent is the sister of the appellant. The matter came before the Court on 3 April 2023 and a temporary protection order was made in favour of the respondent. The matter was adjourned until 19 April 2023. On 19 April 2023 the respondent was represented by solicitors and the appellant represented by solicitors. The matter was adjourned for further mention on 10 May 2023. A further temporary protection order was made. On 10 May 2023 the matter was mentioned once again with solicitors present. The matter was adjourned for further mention on 31 May 2023. On 31 May 2023 the matter was mentioned again with solicitors present. The matter was adjourned for further mention on 12 July 2023. The temporary protection order continued. On 12 July 2023 the matter was mentioned again with solicitors present. The matter was adjourned for mention on 20 September 2023. Directions were given that the respondent had to file and serve all affidavits by 25 August 2023 and the appellant by 15 September 2023. Both parties were issued with a notice of adjournment advising that the mention date was 20 September 2023. The appellant received that notice. On 7 August 2023 the respondent wrote to the Caboolture Court House requesting an extension for the filing of her affidavits and advising the Court of the email address of the appellant’s lawyers. On 17 August 2023 the matter was mentioned without either party being present in chambers and the mention date was changed from the September date to 23 August 2023 at 9.00 am for the purpose of determining whether the parties should be allowed more time to complete their affidavits. On 18 August 2023 the Court wrote to the respondent advising her that the matter had been listed on 23 August 2023. Notices were issued to both the appellant and respondent noting that the mention on 23 August 2023 was to decide whether the parties should be given more time to complete affidavits. It seems on the evidence though the appellant had been evicted from his address and this notice was not returned to sender or forwarded to him so he was never aware of the change of date from 20 September 2023 to 23 August 2023. The matter came before the Magistrate on 23 August 2023. Despite the matter only being listed for a mention the Magistrate made a final order against the appellant. Having read the transcript no effort was made to determine whether or not the appellant had been served with notice of the changed dates. No reasons were given for the decision. The appellant attended the Court on 20 September 2023 as he had been advised and updated his address and phone number.

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:	EW v RW [2024] QDC 151
PARTIES:	EW (appellant) v RW (respondent)
FILE NO/S:	BD1106/24
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld)
ORIGINATING COURT:	Magistrates Court at Caboolture
DELIVERED ON:	18 September 2024.
DELIVERED AT:	Brisbane
HEARING DATE:	13 September 2024
JUDGES:	Smith AM DCJA
ORDER:	1. I grant the appellant an extension of time to file his appeal. 2. The appeal is allowed. 3. The decision of the Magistrate is set aside. 4. The matter is remitted to the Magistrates Court at Caboolture for hearing before a different Magistrate. 5. I make no order as to costs.
CATCHWORDS:	FAMILY LAW – DOMESTIC AND FAMILY VIOLENCE – where the matter was listed for a directions hearing only – where the directions hearing date changed – where notification of the new directions hearing date was sent to an address from which the appellant had been evicted – where the appellant did not receive notice of the new directions hearing date – where a final order was made in the absence of the appellant – where the Magistrate failed to consider whether the appellant had been notified of the new date or as to the matters set out in the Act – whether sufficient explanation for delay
COUNSEL: SOLICITORS:	Domestic Violence and Family Violence Protection Act 2012 (Qld) ss 37, 39, 41B, 45, 157A, 164, 165 International Finance v Crime Commissioner [2009] HCA 49; (2009) 240 CLR 319, applied R v Tait [1998] QCA 304; [1999] 2 Qd R 667, applied Self-represented appellant Solicitors for the respondent Self-represented appellant Towns-Wilson Lawyers for the respondent