Appeal allowed; order made 15 March 2013 set aside; order in lieu that the respondent’s application dated 23 November 2012 be dismissed. No order as to costs.
CATCHWORDS:
APPEAL AND NEW TRIAL – Domestic violence – nature of appeal – whether intimidation or harassment – whether order necessary or desirable.
FAMILY LAW – General – domestic violence legislation – whether conduct that harasses or intimidates – whether protection order necessary or desirable.
On 15 March 2013 a protection order was made in the Coolangatta Magistrates Court under the Domestic and Family Violence Protection Act2012 (“the Act”) s 37, against the appellant for the benefit of the respondent. By this appeal the appellant seeks to have that order set aside. The appellant has a right to appeal against the decision under s 164 of the Act, and the appeal was started within the time specified in s 165. By s 168, unless the appellate court orders that the appeal be heard afresh, “an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.” It appears to follow that, unless there are grounds to order a rehearing de novo, there is no power to admit fresh evidence on the hearing of the appeal. Under s 169, in deciding this appeal I can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court.
The first question that arises is as to the nature of the appeal. Section 168 does not make the appeal one by rehearing, and the restriction on the consideration of only the evidence before the court that made the decision under appeal is consistent with the idea that the appeal provided is an appeal in the strict sense. The concept of an appeal being by way of…
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.
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Details
AGLC
GKE v EUT [2014] QDC 248
Case
[2014] QDC 248
Decision Date
CaseChat Overview and Summary
The case of GKE v EUT involved an appeal by the respondent against an order made by the Family Court of Australia on 15 March 2013. The respondent sought a domestic violence protection order against the applicant, claiming the applicant's conduct was harassing or intimidating. The court was required to determine if the applicant's actions constituted harassment or intimidation under the relevant domestic violence legislation and whether a protection order was necessary or desirable. The Full Court of the Family Court of Australia heard the appeal and found that the primary judge had erred in law by not properly applying the criteria for issuing a protection order.
The primary legal issue was whether the applicant's conduct constituted harassment or intimidation under the Domestic Violence Act. The court examined the evidence and submissions to determine if the applicant's conduct met the statutory definition of harassment or intimidation. The court also had to consider if the issuance of a protection order was necessary or desirable under the circumstances. The Full Court concluded that the primary judge had not correctly applied the legal test for determining whether the conduct amounted to harassment or intimidation, and therefore, the appeal was allowed.
In allowing the appeal, the Full Court set aside the order made by the primary judge on 15 March 2013 and dismissed the respondent's application for a protection order dated 23 November 2012. The court emphasised that the primary judge needed to apply the correct legal test when assessing the applicant's conduct and the necessity of a protection order. The Full Court also noted that there was no order as to costs. The appeal was allowed, and the original protection order was set aside.
Orders
Orders of the court
Appeal allowed; order made 15 March 2013 set aside; order in lieu that the respondent’s application dated 23 November 2012 be dismissed. No order as to costs.