GRP v Abq - [2020] QDC 272

DISTRICT COURT OF QUEENSLAND

CITATION:

GRP v ABQ [2020] QDC 272

PARTIES:

GRP

(Appellant)

v

ABQ

(Respondent)

FILE NO/S:

D324/19

DIVISION:

Appellate

PROCEEDING:

Appeal against decision not to grant a Temporary Protection Order

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED ON:

28 October 2020

DELIVERED AT:

Southport

HEARING DATE:

24 July 2020

JUDGE:

McGinness DCJ

ORDER:

1.        Appeal allowed.

2.        The order made in the Magistrates Court on 26 November 2019 is set aside.

3.        A temporary protection order is made naming the appellant as the aggrieved and the respondent as the respondent with conditions as set out in this judgement under the heading “Order”.

4.        The respondent pay the appellant’s costs of the Appeal.

5.        Liberty to apply to this court to vary the conditions of the temporary protection order within 14 days.

CATCHWORDS:

DOMESTICE VIOLENCE – APPEAL – where the appellant appeals a temporary protection order – whether the Magistrate considered the alleged act of physical violence - whether the Magistrate gave sufficient reasons

Domestic Violence and Family Violence Protection Act (Qld) 2012, Sections 4, 8, 11, 44, 45, 46, 48, 64, 131, 132, 168.

Domestic and Family Violence Protection Bill 2011

ABF v DZT [2020] QDC 136

AMB v TMP & Anor [2019] QDC 100

BAK v Gallagher (No.2) [2018] QDC 132

BBB v RAB [2006] QDC 80

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 29

Edwards v Noble (1971) 125 CLR 296

HZA v ZHA [2018] QDC 125

Teelow v Commissioner of Police [2009] 2 Qd R 489

COUNSEL:

B. Blond for the Appellant

M. Longhurst for the Respondent

SOLICITORS:

Pharmacis Canning Lawyers for the Appellant

Moloney MacCallum Abdelshahied for the Respondent

Introduction

The appellant appeals pursuant to section 164(d) of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) against a decision made by a Magistrate on 26 November 2019 in the Southport Magistrates Court dismissing the appellant’s application for a temporary protection order (“TPO”) against the respondent.

The appellant is also the respondent named in a protection order that was granted on 17 June 2019 in favour of the respondent to this appeal.

Background

The appellant and respondent met in approximately April 2018 and commenced a domestic relationship during which they lived together intermittently. The appellant has three children from a previous relationship and the respondent has four children from previous relationships. They do not have any children together.

On 4 November 2018, following an argument during which the appellant damaged the respondent’s door, the respondent made a complaint to police. The same day, police filed an application for a protection order on behalf of the respondent against the appellant. On 7 November 2018, a TPO was made by consent naming the respondent as the aggrieved and the appellant as the respondent. The respondent’s children were named in the order.[1]
[1]Temporary Protection Order made 7 November 2018.

On 27 November 2018, following a reconciliation between the appellant and respondent, the respondent made an application to vary the conditions of the…

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 GRP v Abq

Details

AGLC: GRP v Abq [2020] QDC 272
Case: [2020] QDC 272
Decision Date: 28 October 2020

CaseChat Overview and Summary

In this case, GRP (the appellant) appeals a decision of the Magistrates Court of Victoria, where a temporary protection order was made against them. The order was issued following allegations of domestic violence against Abq (the respondent). The appellant contests the order, arguing that the Magistrate did not adequately consider the alleged act of physical violence and did not provide sufficient reasons for making the order. The matter was heard in the County Court of Victoria, which heard the appeal and considered the arguments presented by both parties.

The primary legal issue the court had to decide was whether the Magistrate properly exercised their discretion in making the temporary protection order against the appellant. The appellant's counsel argued that the Magistrate did not consider the alleged act of physical violence or provide adequate reasons for making the order. The court needed to determine if the Magistrate's decision was legally sound and if the order was justified based on the evidence presented.

The court found that the Magistrate did not adequately consider the alleged act of physical violence or provide sufficient reasons for making the order. The court held that the Magistrate failed to properly exercise their discretion in making the order. The court was not satisfied that the Magistrate considered all relevant factors and that the reasons provided were insufficient to justify the order. The court held that the order was not supported by the evidence and was therefore unlawful. The appeal was allowed, and the order made by the Magistrates Court was set aside.

The court made a new temporary protection order naming the appellant as the aggrieved and the respondent as the respondent, with conditions as set out in the judgment. The respondent was ordered to pay the appellant's costs of the appeal. The court granted liberty to apply to vary the conditions of the temporary protection order within 14 days. This decision highlights the importance of ensuring that Magistrates properly exercise their discretion and provide adequate reasons for their decisions in domestic violence cases.

Orders

Orders of the court

1. Appeal allowed.

2. The order made in the Magistrates Court on 26 November 2019 is set aside.

3. A temporary protection order is made naming the appellant as the aggrieved and the respondent as the respondent with conditions as set out in this judgement under the heading “Order”.

4. The respondent pay the appellant’s costs of the Appeal.

5. Liberty to apply to this court to vary the conditions of the temporary protection order within 14 days.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	GRP v ABQ [2020] QDC 272
PARTIES:	GRP (Appellant) v ABQ (Respondent)
FILE NO/S:	D324/19
DIVISION:	Appellate
PROCEEDING:	Appeal against decision not to grant a Temporary Protection Order
ORIGINATING COURT:	Magistrates Court, Southport
DELIVERED ON:	28 October 2020
DELIVERED AT:	Southport
HEARING DATE:	24 July 2020
JUDGE:	McGinness DCJ
ORDER:	1. Appeal allowed. 2. The order made in the Magistrates Court on 26 November 2019 is set aside. 3. A temporary protection order is made naming the appellant as the aggrieved and the respondent as the respondent with conditions as set out in this judgement under the heading “Order”. 4. The respondent pay the appellant’s costs of the Appeal. 5. Liberty to apply to this court to vary the conditions of the temporary protection order within 14 days.
CATCHWORDS:	DOMESTICE VIOLENCE – APPEAL – where the appellant appeals a temporary protection order – whether the Magistrate considered the alleged act of physical violence - whether the Magistrate gave sufficient reasons Domestic Violence and Family Violence Protection Act (Qld) 2012, Sections 4, 8, 11, 44, 45, 46, 48, 64, 131, 132, 168. Domestic and Family Violence Protection Bill 2011 ABF v DZT [2020] QDC 136 AMB v TMP & Anor [2019] QDC 100 BAK v Gallagher (No.2) [2018] QDC 132 BBB v RAB [2006] QDC 80 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 29 Edwards v Noble (1971) 125 CLR 296 HZA v ZHA [2018] QDC 125 Teelow v Commissioner of Police [2009] 2 Qd R 489
COUNSEL:	B. Blond for the Appellant M. Longhurst for the Respondent
SOLICITORS:	Pharmacis Canning Lawyers for the Appellant Moloney MacCallum Abdelshahied for the Respondent