DISTRICT COURT OF QUEENSLAND
CITATION:
LDC v TYL & STP [2017] QDC 197
PARTIES:
LDC
(appellant)
v
TYL
(1st respondent)
AND
STP
(2nd respondent)
FILE NO/S:
D299 of 2016
DIVISION:
Appellate
PROCEEDING:
s 222 Appeal
ORIGINATING COURT:
Toowoomba Magistrates Court
DELIVERED ON:
14 June 2017, delivered ex tempore
DELIVERED AT:
Southport
HEARING DATE:
13 June 2017
JUDGE:
Muir DCJ
ORDER:
1. Appeal is allowed
2. Order of the 20 November 2016 is set aside
3. The application for a protection order dated 19 April 2016 is dismissed
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – APPEAL AND REVIEW – where appellant appeals a two year domestic violence protection order made in the Toowoomba Magistrates Court – where the second respondent submits that if the appeal is dismissed, the matter should be remitted back to the magistrates court for rehearing – whether the learned magistrate erred at law in determining the protection order was ‘necessary or desirable’ – whether the protection order is ‘necessary or desirable’ - whether there is sufficient evidence of a risk of future domestic violence – whether the matter should be remitted back to the Magistrates court for rehearing.
Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 9 - 12, 37, 67, 100(2), 145, 151, 164, 168, 169.
ADH v AHL [2017] QDC 103, followed
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39, cited
Briginshaw v Briginshaw (1938) 60 CLR 366, applied
GKE v EUT [2014] QDC 248, followed
House v the King [1936] HCA 40, cited
Liftronic Pty Limited v Unver (2001) 75 ALJR 867, considered
MDE v MLG [2015] QDC 151, followed
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85, cited
Mbuzi v Torcetti [2008] QCA 231, considered
Norbis v Norbis [1986] HCA 17, cited
R v War Pensions Entitlement Tribunal ex parte Bott (1933) 50 CLR 288, cited
Sudath v Health Care Complaints Commission [2012] NSWCA 171, cited
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 48, considered
COUNSEL:
M Cable (sol) for the second respondent
SOLICITORS:
The appellant appeared unrepresented
The first respondent appeared unrepresented
Ms M Cable for the Queensland Police Service for the second respondent
Relevant background to the hearing
Yesterday, I heard an appeal by LDC against an order made by the learned Magistrate in the Toowoomba Magistrates Court on 29 November 2016 that a domestic violence protection order be issued against her, for a period of two years up until 28 November 2018 under section 37 of the Domestic and Family Violence Protection Act 2012 (Qld).[1] I will refer to that Act as “the Act” during the course of my reasons.
[1]Brought under s 164 of the Domestic and Family Violence Protection Act 2012 (Qld).
The first respondent to the appeal is the appellant’s former husband, TYL. The second named respondent is the Toowoomba Police Service, however, as the…
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- AGLC
- LDC v Tyl and STP [2017] QDC 197
- Case
- [2017] QDC 197
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the learned magistrate erred in determining that the protection order was necessary or desirable. This encompassed the sufficiency of evidence to substantiate a risk of future domestic violence and the overall necessity of the order. Additionally, the court had to consider if the matter should be remitted back to the Magistrates Court for a rehearing.
The Court of Appeal found that the magistrate did err in their determination. The evidence presented did not sufficiently support the conclusion that the protection order was necessary or desirable. The court held that the magistrate had failed to properly consider the risk of future domestic violence and had not adequately assessed the evidence. Consequently, the appeal was allowed, the previous order was set aside, and the application for a protection order was dismissed.
Orders
Orders of the court
1. Appeal is allowed
2. Order of the 20 November 2016 is set aside
3. The application for a protection order dated 19 April 2016 is dismissed
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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