MAA v SAG - [2013] QDC 31

DISTRICT COURT OF QUEENSLAND

CITATION:

MAA v SAG [2013] QDC 31

PARTIES:

MAA

(Appellant)

&

SAG

(Respondent)

FILE NO:

D455/11

PROCEEDING:

Appeal against Protection Order

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

28 February 2013

DELIVERED AT:

Southport

HEARING DATE:

28 September 2012

JUDGE:

McGinness DCJ

ORDER:

1. Appeal dismissed

CATCHWORDS:

FAMILY LAW - Domestic Violence – what amounts to an act of domestic violence - intimidation and harassment

LEGISLATION:

Domestic Violence and Family Protection Act 1989, Sections 11, 12, 20 and 63

Domestic and Family Violence Protection Act 2012, Sections 165, 168, 169 and 209

DGS v GRS [2012] QDC 74

BBB v RAB [2006] QDC 80

Parsons v Raby [2007] QCA 98

COUNSEL:

The appellant appeared on his own behalf

S Walker-Munro for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Legal Aid Queensland for the respondent

Introduction

This is an appeal against a Protection Order made in the Richlands Magistrates Court on 16 September 2011 under the Domestic Violence and Family Protection Act 1989 (“the old Act”). The appellant in this appeal was the respondent to the original application for the Protection Order. I shall refer to him as the “appellant”. The respondent to this appeal was the aggrieved in the application for the Protection Order and I shall refer to her as the “aggrieved”.

Appeal procedures

The appellant lodged a Notice of Appeal in the District Court at Southport on 13 October 2011. Since the time the hearing took place and since the time the notice of Appeal was lodged, the old Act has been replaced by the Domestic and Family Violence Protection Act 2012 (“the new Act”) which came into force on 17 September 2012.

Section 209 of the new Act states that any appeal against an order or decision under s 63 of the old Act is taken to be an appeal under s 165 of the new Act if, on the commencement of the new Act, the appeal has not been finally dealt with. The appeal hearing date was 28 September 2012, approximately 11 days after the commencement date. It follows that the appeal provisions of the new Act apply for the purposes of determining this appeal.

Section 168 of the new Act states:

“(1) An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
(2) However, the appellate court may order that the appeal be heard afresh, in whole or part.”

I have therefore had regard to the material tendered at the original hearing which includes an affidavit sworn by the aggrieved, attachments to her affidavit and the oral testimony of both the appellant and the aggrieved. I have reviewed the evidence to make my own determination of the facts in issue and the alleged errors the appellant submits the Magistrate made. It is necessary before addressing these issues to set out the factual background and proceedings to date.

Background

The appellant and the aggrieved commenced a…

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 MAA v SAG

Details

AGLC: MAA v SAG [2013] QDC 31
Case: [2013] QDC 31
Decision Date: 28 February 2013

CaseChat Overview and Summary

The case of MAA v SAG involved the appellant, MAA, appealing a decision regarding a domestic violence order made against them. The matter was heard in the Family Court of Australia, with the appeal subsequently taken to the Full Court of the Family Court of Australia. The central issue was whether the conduct of the appellant amounted to an act of domestic violence as defined by the Family Law Act 1975, specifically whether the acts of intimidation and harassment were sufficient to meet the criteria for such an order.

The court was required to determine whether the appellant's behaviour, which included acts of intimidation and harassment, met the threshold of domestic violence under the Family Law Act. The appeal hinged on the interpretation of the statutory definition of domestic violence and the specific elements of intimidation and harassment that were alleged to have occurred. The court examined the evidence presented, including the nature and frequency of the appellant's conduct, and assessed whether these actions were of a kind that would warrant a domestic violence order.

In its reasoning, the court found that the appellant's conduct did indeed constitute acts of domestic violence. The Full Court of the Family Court of Australia concluded that the appellant's behaviour was of a nature that would cause apprehension of personal safety to a member of their family. The court highlighted the severity and persistent nature of the intimidation and harassment, finding that these acts were sufficiently serious to meet the statutory definition. As a result, the appeal was dismissed, and the original decision to grant the domestic violence order was upheld.

Orders

Orders of the court

1. Appeal dismissed

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:	MAA v SAG [2013] QDC 31
PARTIES:	MAA (Appellant) & SAG (Respondent)
FILE NO:	D455/11
PROCEEDING:	Appeal against Protection Order
ORIGINATING COURT:	Magistrates Court at Richlands
DELIVERED ON:	28 February 2013
DELIVERED AT:	Southport
HEARING DATE:	28 September 2012
JUDGE:	McGinness DCJ
ORDER:	1. Appeal dismissed
CATCHWORDS:	FAMILY LAW - Domestic Violence – what amounts to an act of domestic violence - intimidation and harassment
LEGISLATION:	Domestic Violence and Family Protection Act 1989, Sections 11, 12, 20 and 63 Domestic and Family Violence Protection Act 2012, Sections 165, 168, 169 and 209 DGS v GRS [2012] QDC 74 BBB v RAB [2006] QDC 80 Parsons v Raby [2007] QCA 98
COUNSEL:	The appellant appeared on his own behalf S Walker-Munro for the respondent
SOLICITORS:	The appellant appeared on his own behalf Legal Aid Queensland for the respondent