GJL v JW - [2023] QDC 36

DISTRICT COURT OF QUEENSLAND

CITATION:

GJL v JW [2023] QDC 36

PARTIES:

GJL

(appellant)

v

JW

(respondent)

FILE NO:
Appeal No 142 of 2022

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

9 March 2023 ex tempore

DELIVERED AT:

Cairns

HEARING DATE:

7 March 2023

JUDGE:

Fantin DCJ

ORDER:

1.   Leave to amend the notice of appeal by removing grounds 2, 3 and 4 is granted.

2.   Appeal allowed.

3.   The order made at the Magistrates Court at Cairns on 26 October 2022 granting the respondent's application be set aside.

4.   The application be remitted to the Magistrates Court at Cairns for rehearing, before a different Magistrate.

5.   No order as to costs of the appeal.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where the Magistrate made a protection order in favour of the respondent – where the appellant submits that the Magistrate failed to give sufficient reasons for the decision to grant the application for a protection order – whether the Magistrate erred in failing to make sufficient findings of fact and in failing to explain how they concluded that the requirements for making a protection order had been established

LEGISLATION:

Appeal Costs Fund Act 1973 (Qld) s 15(2)
Domestic and Family Violence Protection Act 2012 (Qld) s 37(1)(b), s 37(1)(c), s 164

CASES:

FLC v MRT [2021] QDC 264
GKE v EUT [2014] QDC 248

COUNSEL:
M Rawlings for the appellant.

P Haarsma (solicitor) for the respondent.

SOLICITORS:
Fisher Dore Lawyers for the appellant.

E&H Law for the respondent.

On the 26^th of October 2022, following a trial, Magistrate Coates made a protection order in favour of the respondent JW and against the appellant GJL. The order contained the mandatory conditions as well as a number of special conditions. They included: that GJL not approach within 100 metres of where the aggrieved lives; that he not contact or attempt to contact her except in certain limited circumstances relating to having contact with their child; that he not follow or approach within 100 metres of the aggrieved except in certain limited circumstances; and that he surrender certain weapons.
GJL appeals pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (‘the Act’) against the making of the protection order.
The principles with respect to such an appeal are well settled and need not be repeated. The appeal is by way of rehearing on the record and subject to the limitations of an appellate court in that role.
GJL relied upon two grounds of appeal. Although there were other grounds identified in the notice of appeal, they were not ultimately relied upon at the hearing. Those two grounds may be summarised as follows. First, that the Magistrate erred in law by failing to give adequate reasons for her decision to grant the protection order. Second, that the Magistrate erred in applying the test, in failing to make findings of fact or to give an adequate explanation…

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 GJL v JW

Details

AGLC: GJL v JW [2023] QDC 36
Case: [2023] QDC 36
Decision Date: 9 March 2023 ex tempore

CaseChat Overview and Summary

In the matter of GJL v JW, the appellant sought to appeal a protection order made by a Magistrate in the Magistrates Court at Cairns, which was in favour of the respondent. The appellant argued that the Magistrate failed to provide adequate reasons for granting the protection order, specifically questioning whether the Magistrate erred by not making sufficient findings of fact and failing to adequately explain the basis for concluding that the statutory requirements for making a protection order had been met.

The court was required to determine whether the Magistrate's failure to provide comprehensive reasons constituted a ground for appeal. The central legal issue was whether the lack of detailed findings and explanation rendered the decision flawed or whether the appeal grounds were otherwise valid. The court assessed whether the absence of detailed reasons impacted the overall fairness and correctness of the decision made by the Magistrate.

The court found that the appellant's grounds for appeal, particularly concerning the adequacy of the reasons provided by the Magistrate, had merit. The court concluded that the Magistrate's failure to sufficiently articulate the findings of fact and the reasoning process was a significant error. This omission affected the transparency and correctness of the decision-making process. Consequently, the appeal was allowed, and the protection order was set aside. The application was to be remitted to the Magistrates Court at Cairns for rehearing before a different Magistrate, ensuring a fresh and thorough consideration of the matter. The court made no order regarding the costs of the appeal.

Orders

Orders of the court

1. Leave to amend the notice of appeal by removing grounds 2, 3 and 4 is granted.

2. Appeal allowed.

3. The order made at the Magistrates Court at Cairns on 26 October 2022 granting the respondent's application be set aside.

4. The application be remitted to the Magistrates Court at Cairns for rehearing, before a different Magistrate.

5. No order as to costs of the appeal.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	GJL v JW [2023] QDC 36
PARTIES:	GJL (appellant) v JW (respondent)
FILE NO:	Appeal No 142 of 2022
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Cairns
DELIVERED ON:	9 March 2023 ex tempore
DELIVERED AT:	Cairns
HEARING DATE:	7 March 2023
JUDGE:	Fantin DCJ
ORDER:	1. Leave to amend the notice of appeal by removing grounds 2, 3 and 4 is granted. 2. Appeal allowed. 3. The order made at the Magistrates Court at Cairns on 26 October 2022 granting the respondent's application be set aside. 4. The application be remitted to the Magistrates Court at Cairns for rehearing, before a different Magistrate. 5. No order as to costs of the appeal.
CATCHWORDS:	DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where the Magistrate made a protection order in favour of the respondent – where the appellant submits that the Magistrate failed to give sufficient reasons for the decision to grant the application for a protection order – whether the Magistrate erred in failing to make sufficient findings of fact and in failing to explain how they concluded that the requirements for making a protection order had been established
LEGISLATION:	Appeal Costs Fund Act 1973 (Qld) s 15(2) Domestic and Family Violence Protection Act 2012 (Qld) s 37(1)(b), s 37(1)(c), s 164
CASES:	FLC v MRT [2021] QDC 264 GKE v EUT [2014] QDC 248
COUNSEL:	M Rawlings for the appellant. P Haarsma (solicitor) for the respondent.
SOLICITORS:	Fisher Dore Lawyers for the appellant. E&H Law for the respondent.