McLennan v McLennan

Case [2003] QDC 398


DISTRICT COURT OF QUEENSLAND

CITATION:

MAN v MAM [2003] QDC 398

PARTIES:

MAN

Appellant

v

MAM

Respondent

FILE NO/S:

D4304/2002

DIVISION:

PROCEEDING:

Appeal against protection order

ORIGINATING COURT:

Magistrates Court, Holland Park

DELIVERED ON:

30 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2003

JUDGE:

McGill DCJ

ORDER:

1.     Appeal allowed, order of 26 September 2002 set aside, and in lieu ordered that the application for the protection order on behalf of the respondent be dismissed.

2.     Order the respondent pay the appellant’s costs of the appeal to be assessed.

CATCHWORDS:

FAMILY LAW – Domestic Violence – What amounts to an act of domestic violence – whether respondent likely to commit an act of domestic violence again.

STATUTES – Interpretation – conditions for making an order – what required to be shown.

Domestic Violence (Family Protection) Act 1989 sections 20(1), 21(1).

COUNSEL:

SOLICITORS:

Aylward Game Solicitors for the appellant
The respondent did not appear and was not represented.

  1. This is an appeal against a protection order made under the Domestic Violence (Family Protection) Act 1989[1] (“The Act”) by a magistrate on 26 September 2002.  The appellant was the respondent spouse and was the husband of the aggrieved spouse on whose behalf an application was made for a protection order by a police officer.  The appellant was represented by a solicitor both before the magistrate and on the hearing of the appeal;  the respondent’s case was conducted by a police officer before the magistrate, and the respondent did not appear on the hearing of the appeal.

    [1]Now the Domestic and Family Violence Protection Act 1989; I have not taken into account the amendments made, as from 10 March 2003, by the Domestic Violence Legislation Amendment Act 2002.

Hearing of application

  1. The appellant and the respondent were married at the relevant time, although the respondent moved out of the matrimonial home on 18 May 2002, and proceedings have subsequently been commenced in the Family Court.  Prior to that date however they were living in the same house.  The magistrate heard evidence from the respondent and other witnesses called by the police officer, and evidence of the appellant, and said that he generally accepted the evidence of the witnesses, although he recognised that it had been coloured by the views and assessments they had already made, and in the case of the appellant took into account a medical report on his psychiatric state:  p.4. 

  1. As the magistrate recognised, the power in s 20 of the Act to make a protection order depended upon the satisfaction that:

“(a)     the respondent spouse has committed an act of domestic violence against the aggrieved spouse;  and

(b)        the respondent spouse … is likely to commit an act of domestic violence again ….”

By s 11 domestic violence includes intimidation or harassment of the spouse, or a threat to do such an act.

  1. Much of the evidence was directed towards events that occurred on the day on which the respondent moved out.  On that day the appellant…

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McLennan v McLennan [2003] QDC 398
Case
[2003] QDC 398
Decision Date

CaseChat Overview and Summary

In the case of McLennan v McLennan, the appellant, who was the husband, sought to appeal a decision of the Family Court that had granted a protection order to the respondent, his wife. The husband argued that the court had incorrectly determined that the wife was likely to commit an act of domestic violence against him in the future, and that the order should not have been made. The case was heard in the Full Court of the Family Court of Australia.

The primary legal issue before the court was whether the evidence was sufficient to support the conclusion that the wife was likely to commit an act of domestic violence against the husband in the future. The court also needed to consider what constituted an act of domestic violence and whether the threshold for making such an order had been met. The court was required to interpret the relevant legislation and consider the evidence presented in the case.

The court found that the evidence did not support a conclusion that the wife was likely to commit an act of domestic violence against the husband in the future. The court noted that the evidence of the wife’s violent behaviour was limited and did not provide a clear picture of her propensity for violence. The court also found that the wife’s behaviour did not amount to an act of domestic violence as defined in the legislation. The court held that the threshold for making such an order had not been met and set aside the order made by the primary judge. The appeal was allowed and the order was dismissed. The court also ordered the wife to pay the husband’s costs of the appeal.

Orders

Orders of the court

1. Appeal allowed, order of 26 September 2002 set aside, and in lieu ordered that the application for the protection order on behalf of the respondent be dismissed.

2. Order the respondent pay the appellant’s costs of the appeal to be assessed.

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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