HDI v HJQ

Case [2020] QDC 83


DISTRICT COURT OF QUEENSLAND

CITATION:

HDI v HJQ [2020] QDC 83

PARTIES:

HDI

(Appellant Respondent)

v

HJQ
(Respondent Aggrieved)

FILE NO/S:

D226 of 2019

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

14 May 2020

DELIVERED AT:

District Court at Southport

HEARING DATES:

11 and 20 February 2020.

JUDGE:

Muir DCJ

ORDER:

1.   The appeal is allowed;

2.   The permanent stay imposed by the Acting Magistrate on 14 August 2019 is set aside as a nullity;

3.   The Protection Order – Varied Order made on 9 February 2018 is confirmed subject to the following variations to be made:

a.   The words “this order does not refer to” at condition (9) are amended to “this condition does not apply to”; and

b.   A Family Law Exception as follows is to be inserted at conditions (4), (5), (7) and (9):

“This condition does not apply to the extent that it is necessary for the parties to attend an agreed conference, counselling, mediation session, or when having contact with a child as set out in writing between the parties or in compliance with an order of a Court.”

4.   The applicant’s Application to Vary a Protection Order filed on 27 March 2019 is otherwise dismissed.

5.   There will be no orders as to costs, subject to allowing the parties until 4:00pm Thursday 21 May 2020 to provide short written submissions (no longer than 2 pages) as to why another order is appropriate.

CATCHWORDS:

DOMESTIC VIOLENCE – APPEAL – Appeal against Magistrate’s refusal to Vary a Protection Order – where respondent submitted the application was made for improper purpose – where the application was alleged to be made in furtherance of parenting issues – where final parenting orders had been made in the Family Court of Australia – where Magistrate granted permanent stay of application – whether Magistrate has power to stay – whether refusal to vary was reasonable – whether Magistrate ought to have dismissed application.

DOMESTIC VIOLENCE – APPEAL – Appeal against Magistrate’s refusal to Vary a Protection Order – where order was confusing on its face – where District Court has broad powers on appeal – whether the confusion ought to be rectified.

MAGISTRATES – GENERALLY – POWERS AND DUTIES – IMPLIED POWERS – ABUSE OF PROCESS – PERMANENT STAY – SUMMARY DISMISSAL – DOMESTIC VIOLENCE PROCEEDINGS – where Magistrate granted a permanent stay of an application made under the Domestic and Family Violence Protection Act 2012 on the grounds of abuse of process – whether Magistrate has express power to grant a stay of or summarily dismiss an application on the grounds of abuse of process – whether Magistrate has implied power to grant a stay of or summarily dismiss applications under the Domestic and Family Violence Protection Act 2012

LEGISLATION:

Civil Proceedings Act 2011 (Qld), s 7

District Court of Queensland Act 1967 (Qld), s 69

Domestic and Family Violence Protection Act 2012 (Qld), ss 3, 4, 21, 38, 93, 94, 157, 164, 168, 169

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Details
AGLC
Hdi v HJQ [2020] QDC 83
Case
[2020] QDC 83
Decision Date

CaseChat Overview and Summary

The matter between HDI and HJQ arose from an appeal against the Magistrate's refusal to vary a Protection Order. The appeal was centred on the Magistrate's decision to permanently stay the application on the basis of alleged abuse of process, a decision that the District Court was asked to review. The respondent argued that the application was made for an improper purpose, specifically to further parenting issues that had already been addressed in the Family Court of Australia. The District Court was tasked with determining whether the Magistrate had the power to grant a permanent stay, whether the refusal to vary the order was reasonable, and whether the Magistrate should have dismissed the application outright.

The legal issues before the court included whether the Magistrate had the express or implied power to grant a stay of or summarily dismiss an application on the grounds of abuse of process under the Domestic and Family Violence Protection Act 2012. Additionally, the court had to consider whether the Protection Order itself, which was confusing on its face, should be rectified through the appeal process. The court also needed to address the broader issue of whether the Magistrate's decision to impose a permanent stay was justified and whether the refusal to vary the Protection Order was reasonable.

The District Court found that the Magistrate did not have the express power to grant a permanent stay of an application on the grounds of abuse of process under the relevant Act. The court determined that the Magistrate's decision to grant such a stay was, therefore, outside the scope of their statutory powers. The District Court also held that the refusal to vary the Protection Order was not reasonable given the confusion inherent in the order's wording. The court concluded that the appeal should be allowed, and the permanent stay was set aside as a nullity. The court confirmed the original Protection Order with specific variations to clarify the conditions and include a Family Law Exception. The appeal was dismissed in all other respects, with no orders as to costs pending further submissions from the parties.

Orders

Orders of the court

1. The appeal is allowed;

2. The permanent stay imposed by the Acting Magistrate on 14 August 2019 is set aside as a nullity;

3. The Protection Order – Varied Order made on 9 February 2018 is confirmed subject to the following variations to be made:

a. The words “this order does not refer to” at condition (9) are amended to “this condition does not apply to”; and

b. A Family Law Exception as follows is to be inserted at conditions (4), (5), (7) and (9):

“This condition does not apply to the extent that it is necessary for the parties to attend an agreed conference, counselling, mediation session, or when having contact with a child as set out in writing between the parties or in compliance with an order of a Court.”

4. The applicant’s Application to Vary a Protection Order filed on 27 March 2019 is otherwise dismissed.

5. There will be no orders as to costs, subject to allowing the parties until 4:00pm Thursday 21 May 2020 to provide short written submissions (no longer than 2 pages) as to why another order is appropriate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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