Kal v DJL

Case [2022] QDC 152

DISTRICT COURT OF QUEENSLAND

CITATION:

KAL v DJL [2022] QDC 152

PARTIES:

KAL

(appellant)

v

DJL

(respondent)
FILE NO:

D402/21

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED ON:

24 June 2022 (ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

24 June 2022

JUDGE:

Dann DCJ

ORDER:

1.   Appeal allowed.

2.   The application for a protection order is dismissed.

CATCHWORDS:

FAMILY LAW – DOMESTIC VIOLENCE – APPLICATION FOR A PROTECTION ORDER UNDER THE DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT – APPEAL – where protection order was granted based on a single act of domestic violence – where the applicant contended the order was not necessary – whether Magistrate erred in making a protection order

LEGISLATION

Domestic and Family Violence Protection Act 2012 s 4, 8, 11, 12, 13, 14, 15, 37, 57, 63, 64, 145, 168, 169

CASES

AHD v AHL [2017] QDC 103

Allesch v Maunz (2000) 203 CLR 172

CDJ v VAJ (1998) 197 CLR 172

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

GKE v EUT [2014] QDC 248

House v The King (1936) 55 CLR 499

JAW v Reed [2018] QDC 178

McDonald v Queensland Police Service [2018], 2 Qd R 612

MDE v MLG and Queensland Police Service [2015] QDC 151

MNT v MEE [2020] QDC 126

R v War Pensions Entitlement Tribunal: ex-parte Bott (1933) 50 CLR 228 at 249-250

Sudath v Healthcare Complaints Commission [2012] NSWCA 171

COUNSEL:

SOLICITORS:

Laing NJ for the respondent

Mark Savic Legal for the applicant

Evans Brandon Family Law for the respondent

Introduction

  1. On 20 October 2021 a Magistrate of the Southport Magistrates Court made an order under s 37 of the Domestic and Family Violence Protection Act 2012 (DFVPA). The learned Magistrate granted a protection order in favour of the respondent in this appeal against the appellant for a period of two years. 

  2. The appellant appeals against the protection order which was made against him.

  3. The protection order made on 20 October 2021 provided:

    (a)The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved;

    (b)The respondent is prohibited from remaining at or entering or attempting to enter the aggrieved usual place of residence

    UNLESS OTHERWISE ORDERED THIS ORDER CONTINUES IN FORCE TO AND INCLUDING 19 OCTOBER 2023

    Background

  4. I will refer throughout these reasons to the appellant to this appeal as the appellant and to the respondent to this appeal as the respondent.

  5. A temporary protection order was made on 25 March 2021 in favour of the respondent against the appellant.  The appellant cross applied with a private application filed on 1 April 2021.  The Magistrates Court determined that no temporary protection order was to be made at that point.

  6. At the final hearing before the Magistrate, each party was represented by counsel and solicitors.  At the start of that hearing, the appellant advised he was not going to press his application and it was withdrawn.[1]

    [1]Transcript 1-6 ll…

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Details
AGLC
Kal v DJL [2022] QDC 152
Case
[2022] QDC 152
Decision Date

CaseChat Overview and Summary

In the appeal of Kal v DJL, the appellant contested a final protection order made by the Magistrates Court, arguing that the protection order was not necessary. The order required the respondent to avoid committing domestic violence against the aggrieved and prohibited the respondent from entering or remaining at the aggrieved’s usual place of residence unless otherwise ordered. The respondent had initially applied for a temporary protection order on 25 March 2021, which was not granted. At the final hearing, the appellant withdrew his application for a protection order but did not press his application. The appeal was limited to three grounds: whether the Magistrate erred in considering an email as an act of domestic violence, whether the Magistrate failed to anchor her decision to the evidence, and whether the respondent's fear of the appellant was adequately considered.

The court examined the grounds of appeal, focusing on whether the Magistrate correctly identified an act of domestic violence and whether she adequately considered the evidence and the respondent’s fear. The court found that the Magistrate’s decision to base the protection order on the email was erroneous, as the email did not constitute an act of domestic violence. Additionally, the court noted that the Magistrate did not adequately anchor her decision in the evidence of the case, instead basing it more generally on the conduct of the parties during family law proceedings. The court also concluded that the respondent’s fear was not sufficiently substantiated, particularly in terms of the appellant's potential actions if a protection order was not in place.

The appeal was allowed, and the application for a protection order was dismissed. This outcome highlights the necessity for Magistrates to thoroughly examine the specific evidence and clearly articulate the basis for their decisions when granting protection orders in domestic violence cases.

Orders

Orders of the court

1. Appeal allowed.

2. The application for a protection order is dismissed.

Background

Background to the litigation

The protection order made on 20 October 2021 provided:(a)The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved;(b)The respondent is prohibited from remaining at or entering or attempting to enter the aggrieved usual place of residenceUNLESS OTHERWISE ORDERED THIS ORDER CONTINUES IN FORCE TO AND INCLUDING 19 OCTOBER 2023Background I will refer throughout these reasons to the appellant to this appeal as the appellant and to the respondent to this appeal as the respondent. A temporary protection order was made on 25 March 2021 in favour of the respondent against the appellant. The appellant cross applied with a private application filed on 1 April 2021. The Magistrates Court determined that no temporary protection order was to be made at that point. At the final hearing before the Magistrate, each party was represented by counsel and solicitors. At the start of that hearing, the appellant advised he was not going to press his application and it was withdrawn.[1][1]Transcript 1-6 ll 29 – 31. In terms of this appeal, whilst the appellant’s notice of appeal stated he sought a hearing de novo of the proceedings the subject of the appeal, that was abandoned at the start of the hearing. The notice of appeal as originally filed sets out eight grounds of appeal. However, once the appellant had legal representation the Court was informed by email dated 22 June 2022 and copied to the respondent’s representatives that the appellant would not proceed with grounds 1, 2, 6, 7 or 8 of the appeal and would only proceed with grounds 3, 4 and 5 of the appeal. I formally dismiss grounds 1, 2, 6, 7 and 8 of the notice of appeal. The three grounds of appeal thus articulated are:(a)what was ground 3: The Magistrate in finding a suitable act of domestic violence, used a piece of correspondence sent by an unrepresented litigant (the appellant) to the respondent’s lawyer as having enough cause to grant a protection order, the appellant does not believe that this in any way constitutes an act of domestic violence. (b)what was ground 4: The Magistrate in her decision again makes mention of the benefit of having a protection order in place while settlement proceedings are in place, this again leads the appellant to believe that the facts of the case were largely moot. (c)what was ground 5: The Magistrate as far as the appellant can determine did not refer to matters for consideration under the Act, submitted by the appellant. At the hearing of the appeal in oral submissions with the appellant’s solicitor I clarified and understood the grounds of appeal to be articulated as follows:(a)that the Magistrate erred in finding that the email of 23 March 2022 constituted an act of domestic violence;(b)that the Magistrate erred in not anchoring her decision about the need for a protection order in the evidence of this case, rather, determining the issue based more generally on the conduct of parties when facing family law proceedings; and(c)that, closely linked with the first ground, that if the respondent was in prospective fear of the appellant in respect of the email of 23 March 2021, it was not put to the appellant during cross examination that, in the absence of a protection order, he would seek to return to the matrimonial residence and cause damage to the appellant’s belongings or damage the property. The nature of the appeal

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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