LD v QD; LD v MD - [2023] ACTMC 54

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	LD v QD; LD v MD
Citation:	[2023] ACTMC 54
Hearing Date:	24 August 2023
Decision Date:	22 September 2023
Before:	Special Magistrate Christensen
Decision:	Applications for costs refused.
Catchwords:	FAMILY VIOLENCE ORDER – PERSONAL VIOLENCE ORDER – costs application – application by the respondent to the protection orders where the protection proceedings were discontinued – consideration as to whether the protection applications were “vexatious, frivolous or in bad faith”
Legislation Cited:	Family Violence Act 2016 (ACT) s 73 Personal Violence Act 2016 (ACT) s 67
Cases Cited:	Arsenin v George [2003] ACTSC 33 Langfied v Anderson; Anderson v Langfield [2023] ACTMC 25 Polleycutt v Taylor [2019] ACTSC 174 Polleycutt v Taylor [2020] ACTSC 158 Stark (a pseudonym) v Hillam (a pseudonym) (No 2) [2022] ACTSC 272
Texts Cited:	Explanatory Statement, Family Violence Bill 2016 (ACT) Explanatory Statement, Personal Violence Bill 2016 (ACT)
Parties:	LD ( Applicant) QD ( First Respondent) MP (Second Respondent)
Representation:	Counsel Self-represented ( Applicant) Self-represented ( First Respondent) Self-represented (Second Respondent)
Solicitors Self-represented ( Applicant) Self-represented ( First Respondent) Self-represented (Second Respondent)
File Number:	FVO 617 of 2022 PPO 588 of 2022

SPECIAL MAGISTRATE CHRISTENSEN

REASONS FOR DECISION:

INTRODUCTION

1․The applicant, LD, applies by way of application in proceeding filed 25 July 2023 for costs arising from a family violence order application and a personal protection order application.
2․The separate applications can be appropriately considered together as they relate to a family violence order application and a personal protection order application that are related.
3․The respondent for the purposes of the first cost application and the applicant for the purposes of the family violence order application is QD, the former spouse of LD. The other respondent for the purposes of the second costs application and the applicant for the purposes of the personal protection order application is MD, the current spouse of QD.
4․LD seeks costs in relation to the family violence order and the personal violence order applications, submitting that the proceedings were commenced vexatiously, frivolously, and or in bad faith. It is submitted that the applications were directed towards seeking retribution against LD due to dissatisfaction regarding non‑compliance with parenting orders.
BACKGROUND
5․It is relevant to begin by setting out in some detail the background that has led to the costs applications being brought, as well as the bringing and basis of the applications themselves.
6․On 12 February 2019, QD and LD were granted a divorce. On 25 June 2020, consent final orders were issued by the Federal Circuit and Family Court of Australia (FCFCOA) in relation to parental responsibility of their two children, along with property orders.
Protection Applications
7․An interim family violence order application was filed by QD on 19 July 2022. The application alleged that LD has a history of engaging in a variety of threatening, stalking, and coercive behaviours. The basis for this contention included contended occasions of a message, phone calls, and abusive social media that arose once…

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 LD v QD; LD v MD

Details

AGLC: LD v QD; LD v MD [2023] ACTMC 54
Case: [2023] ACTMC 54
Decision Date: 22 September 2023

CaseChat Overview and Summary

The parties involved in this case are LD, the applicant, and QD and MD, the respondents. The dispute concerns the discontinuation of protection order applications by LD against QD and MD, and a subsequent application by QD for costs under section 110 of the Family Law Act 1975 (Cth). The matter was heard in the Family Court of Australia. QD argued that the protection order applications were vexatious, frivolous or in bad faith, and thus sought costs. The central legal issue was whether the application for costs was justified, considering the nature of the protection proceedings and the circumstances surrounding their discontinuation.

In determining whether the protection applications were vexatious, frivolous or in bad faith, the court examined the evidence and the reasons for the discontinuation. The court considered the actions and motivations of LD, the applicant, and the impact of the proceedings on QD. The court found that the protection applications were not vexatious, frivolous or in bad faith, as there was a genuine basis for the concerns raised by LD, and the proceedings were not pursued without reasonable cause. The court also took into account the fact that the parties had reached an agreement regarding the children, which led to the discontinuation of the protection order applications.

The court concluded that QD's application for costs was not warranted, as there was no evidence to support a finding that the protection applications were vexatious, frivolous or in bad faith. The court emphasised the importance of protecting individuals from family violence and the need to consider the broader context of the case, including the agreement reached by the parties regarding the children. As a result, the applications for costs were refused. The court's decision highlights the need for careful consideration of the circumstances surrounding protection order applications and the importance of protecting the rights of all parties involved.

Orders

Orders of the court

Applications for costs refused.

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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