LDC v TYL and STP

[2017] QDC 197

DISTRICT COURT OF QUEENSLAND

CITATION:

LDC v TYL & STP [2017] QDC 197

PARTIES:

LDC

(appellant)

v

TYL

(1^st respondent)

AND

STP

(2^nd 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

1. 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).

1. 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…