JKL v Dba (No. 4) - [2023] QMC 14

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

JKL v DBA (No. 4) [2023] QMC 14

PARTIES:

JKL

(Applicant)

V

DBA

(Respondent)

FILE NO/S:

MAG-00100108/18(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Application to vary a domestic violence order

ORIGINATING COURT:

Gympie

DELIVERED ON:

13 December 2023 (Delivered ex tempore)

DELIVERED AT:

Gympie

HEARING DATE:

13 December 2023

MAGISTRATE:

Magistrate Hughes

ORDERS:

1.   THE APPLICATION TO VARY FILED ON 15 JUNE 2023 IS DISMISSED.

2.   THE APPLICANT IS TO PAY THE RESPONDENT’S COSTS FIXED AT $1,903.00.

CATCHWORDS:

FAMILY LAW – Domestic Violence – where Application to Vary to reduce duration of Order and remove named children – where repeat of arguments already rejected – where matters not relevant – where Application was latest instalment in ongoing pattern of disruption to Aggrieved and named children – where Application contrary to objects of Domestic and Family Violence Protection Act 2012 (Qld) and Domestic and Family Violence Protection Rules 2014 (Qld)

PROCESS – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – ATTEMPTS TO RELITIGATE – where Respondent to Domestic Violence Order filed Application to Vary – where ninth Application or Notice of Appeal filed against Aggrieved since 2019 – where Courts already determined and made findings on issues or they are not proper basis to vary - where Applicant material taken at its highest – where Court’s resources in high demand – where issue estoppel

CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – INTERLOCUTORY PROCEEDINGS – PAYABLE FORTHWITH – where Court may award costs - when application dismissed on grounds that it is frivolous, vexatious and abuse of process

Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 157

Domestic and Family Violence Protection Rules 2014 (Qld), r 5, r 52

Aon Risk Services Pty Ltd v ANU (2009) 239 CLR 175

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125

GKE v EUT [2014] QDC 248

JKL v DBA [2020] QDC 159

JKL v DBA (No. 2) [2022] QDC 142

MDE v MLG & QPS [2015] QDC 151

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

SOLICITORS:

Applicant in person

KLM Solicitors for the Respondent

What is this Application about?

It is an abuse of process for parties to seek to re-ventilate and re-litigate issues already determined. That is what JKL is seeking to do in his ‘Application to vary a domestic violence order’ filed on 15 June 2023. This is JKL’s ninth Application or Notice of Appeal against the Aggrieved since 2019.

In this most recent Application by JKL, he asks the Court to reduce the duration of the Protection Order from 19 November 2024 to 1 July 2023 and to remove the five named children from the protection of the Order. In his Application and filed material, he sets out what he considers to be grounds for these variations.

JKL says the children are older and want him back…

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 JKL v Dba (No. 4)

Details

AGLC: JKL v Dba (No. 4) [2023] QMC 14
Case: [2023] QMC 14
Decision Date: 13 December 2023 (Delivered ex tempore)

CaseChat Overview and Summary

In the case of JKL v Dba (No. 4), the respondent filed an application to vary a domestic violence order, seeking to reduce the duration and remove the named children. This was the latest in a series of attempts by the respondent to alter the order, which had been repeatedly rejected by the courts. The aggrieved party and the children had already suffered significant disruption due to these ongoing applications, which were contrary to the objectives of the Domestic and Family Violence Protection Act 2012 (Qld) and the Domestic and Family Violence Protection Rules 2014 (Qld).

The primary legal issues before the court were whether the application to vary should be entertained and whether it was frivolous, vexatious, or an abuse of process. The court had to consider whether the application was an attempt to relitigate issues that had already been determined, and if the respondent's actions were consistent with preventing abuse of court process and resources. The court also had to determine if the application was made in bad faith, given the history of similar applications that had been dismissed.

The court found that the application was an abuse of process, as it was the ninth such application or notice of appeal filed by the respondent against the aggrieved party since 2019. The court had already determined the issues in question or found them to be an improper basis for varying the order. The respondent's material was taken at its highest, but the court concluded that the application was contrary to the objects of the relevant legislation. The court noted the high demand on its resources and invoked issue estoppel to prevent the relitigation of matters already decided. Consequently, the court dismissed the application and ordered the respondent to pay the aggrieved party's costs of $1,903.00.

Orders

Orders of the court

1. THE APPLICATION TO VARY FILED ON 15 JUNE 2023 IS DISMISSED.

2. THE APPLICANT IS TO PAY THE RESPONDENT’S COSTS FIXED AT $1,903.00.

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:	JKL v DBA (No. 4) [2023] QMC 14
PARTIES:	JKL (Applicant) V DBA (Respondent)
FILE NO/S:	MAG-00100108/18(6)
DIVISION:	Magistrates Courts
PROCEEDING:	Application to vary a domestic violence order
ORIGINATING COURT:	Gympie
DELIVERED ON:	13 December 2023 (Delivered ex tempore)
DELIVERED AT:	Gympie
HEARING DATE:	13 December 2023
MAGISTRATE:	Magistrate Hughes
ORDERS:	1. THE APPLICATION TO VARY FILED ON 15 JUNE 2023 IS DISMISSED. 2. THE APPLICANT IS TO PAY THE RESPONDENT’S COSTS FIXED AT $1,903.00.
CATCHWORDS:	FAMILY LAW – Domestic Violence – where Application to Vary to reduce duration of Order and remove named children – where repeat of arguments already rejected – where matters not relevant – where Application was latest instalment in ongoing pattern of disruption to Aggrieved and named children – where Application contrary to objects of Domestic and Family Violence Protection Act 2012 (Qld) and Domestic and Family Violence Protection Rules 2014 (Qld) PROCESS – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – ATTEMPTS TO RELITIGATE – where Respondent to Domestic Violence Order filed Application to Vary – where ninth Application or Notice of Appeal filed against Aggrieved since 2019 – where Courts already determined and made findings on issues or they are not proper basis to vary - where Applicant material taken at its highest – where Court’s resources in high demand – where issue estoppel CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – INTERLOCUTORY PROCEEDINGS – PAYABLE FORTHWITH – where Court may award costs - when application dismissed on grounds that it is frivolous, vexatious and abuse of process
Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 157 Domestic and Family Violence Protection Rules 2014 (Qld), r 5, r 52 Aon Risk Services Pty Ltd v ANU (2009) 239 CLR 175 General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 GKE v EUT [2014] QDC 248 JKL v DBA [2020] QDC 159 JKL v DBA (No. 2) [2022] QDC 142 MDE v MLG & QPS [2015] QDC 151 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
SOLICITORS:	Applicant in person KLM Solicitors for the Respondent