Faj v FJH

Case [2024] QDC 23

DISTRICT COURT OF QUEENSLAND

CITATION:

FAJ v FJH [2024] QDC 23

PARTIES:

FAJ
(appellant)

v
FJH
(respondent)

FILE NO:

9/2022

DIVISION:

Criminal

PROCEEDING:

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

ORIGINATING COURT:

Gympie

DELIVERED ON:

19 March 2024

DELIVERED AT:

Gympie

HEARING DATE:

10 November 2023

JUDGE:

Long SC, DCJ

ORDER:

The decision on 19 October 2022 to make a domestic violence order, is set aside and the application filed by the respondent on 20 April 2022, is remitted to the Magistrates Court at Gympie to be determined according to law.

CATCHWORDS:

DOMESTIC VIOLENCE – Appeal – Protection order – Where the appellant seeks to appeal the decision made in the Magistrates Court to impose a protection order pursuant to s 37 Domestic and Family Violence Protection Act 2012 (Qld) – Where the appellant was a self-represented litigant – Whether the appellant was denied procedural fairness in conducting the hearing – Whether the Magistrate erred in finding that a domestic violence order was necessary or desirable to protect the aggrieved from domestic violence – Whether the decision of the Magistrate should be set aside and remitted to the Magistrates Court for rehearing

LEGISLATION:

Domestic and Family Violence Protection Act 1989 (Qld) ss 38, 84

Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 8, 37, 143, 145, 165, 167, 168

CASES:

Allesch v Maunz (2000) 203 CLR 172
Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194
DMO v RPD [2009] QDC 92
Fox v Percy (2003) 214 CLR 118
GKE v EUT [2014] QDC 248
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
House v The King (1936) 55 CLR 499
KAL v DJL [2022] QDC 152
MDE v MLG & Queensland Police Service [2015] QDC 151
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296
SK (A Child) v Commissioner of Queensland Police & Anor [2023] QDC 65
Warren v Coombes (1979) 142 CLR 531

ZTP v BBY [2023] QDC 59
COUNSEL:

I Munsie for the appellant
Respondent (self-represented)
SOLICITORS:

Beavon Lawyers for the appellant

Introduction

  1. On 15 November 2022 the appellant filed a notice of appeal in respect of the order made on 19 October 2022, in the Magistrates Court at Gympie, that there be a final protection order made pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (“DFVPA”), against him and in favour of the respondent, the aggrieved in the proceedings below.

  2. Accordingly, that order must necessarily have been made having regard to the following provisions of s 37 of the DFVPA:

    “37    When court may make protection order

    (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…

Continue reading Faj v FJH

Sign in free to access the full text

Details
AGLC
Faj v FJH [2024] QDC 23
Case
[2024] QDC 23
Decision Date

CaseChat Overview and Summary

The case of Faj v FJH involved an appeal against a decision by a Magistrate to impose a domestic violence protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld). The appellant, self-represented in the matter, contested the decision on the grounds of procedural unfairness and the incorrect application of the legal criteria for issuing a protection order. The legal issues before the court were whether the appellant was denied procedural fairness and whether the Magistrate had correctly determined that a protection order was necessary or desirable to protect the aggrieved party from domestic violence.

The court found that the Magistrate did not deny the appellant procedural fairness. The court emphasised that the decision to issue a protection order under s 37 of the DFVPA may involve evaluative judgment rather than discretionary decision-making. This distinction was crucial as it determined the standard of appellate review, which in this case was the correctness standard. The court highlighted that the Magistrate’s decision must be assessed based on whether it correctly applied the legal criteria, rather than whether it was within a range of reasonable outcomes. The court also noted that the appellant’s argument aligned with this correctness standard, as they challenged the correctness of the Magistrate’s findings.

In its decision, the court set aside the decision of the Magistrate and remitted the application back to the Magistrates Court for reconsideration. The court determined that the appeal succeeded on the ground that the Magistrate erred in finding that a protection order was necessary or desirable to protect the aggrieved party from domestic violence. The court did not find any procedural unfairness in the conduct of the hearing, but it did find that the Magistrate's evaluative judgment was incorrect. The decision was thus remitted to the Magistrates Court for rehearing according to law.

ORDERS:
The decision of 19 October 2022 to make a domestic violence order is set aside, and the application filed by the respondent on 20 April 2022 is remitted to the Magistrates Court at Gympie for determination according to law.

Orders

Orders of the court

The decision on 19 October 2022 to make a domestic violence order, is set aside and the application filed by the respondent on 20 April 2022, is remitted to the Magistrates Court at Gympie to be determined according to law.

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

Despite being referenced in the written submissions for the appellant,[8] it is at least doubtful that a determination pursuant to s 37 of the DFVPA does involve any exercise of discretion to which the principles discussed in House v The King,[9] are applicable. Rather and as recently discussed by way of distinction, in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore,[10] there may ultimately be a requirement of evaluative judgment attracting the "correctness standard" identified in Warren v Coombes,[11] as the applicable standard for appellate review,[12] with that distinction explained as follows:“16 The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a ‘discretion’ is ‘apt to create a legal category of indeterminate reference’, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for ‘value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right’. The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the ‘correctness standard’ applies) was identified as that between questions lending ‘themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions’ in which event ‘it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance’, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.”[13]In any event, the approach of the appellant on the hearing of this matter was in addressing the correctness standard, as is the approach in this decision.[8]Appellant’s written submissions filed 21/04/23 at [28].[9](1936) 55 CLR 499.[10][2023] HCA 32. [11](1979) 142 CLR 531 at 552.[12]Ibid at [1].[13]Ibid at [16], per Kiefel CJ, Gageler and Jagot JJ.The Magistrate’s Decision The Magistrate correctly noted that some context for the respondent’s application was that the parties were engaged in what he described as “property settlement litigation” in the Federal Circuit and Family Court of Australia. At the time of the hearing of this application, those proceedings had not been concluded. Early in his reasons, the Magistrate correctly noted that there was no question that the parties were in a relevant relationship, being a spousal relationship, for the purpose of applying s 37 of the DFVPA and that the disputes in the hearing before him related to each of the remaining requirements; that is, whether the Court was satisfied that:(a)the respondent had committed an act of domestic violence against the aggrieved; and(b)a protection order is necessary or desirable to protect the aggrieved from domestic violence.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.