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McLennan v McLennan

McLennan v McLennan

Case [2003] QDC 398 30 October 2003

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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.

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

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.

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.

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

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 McLennan v McLennan

Details

AGLC: McLennan v McLennan [2003] QDC 398
Case: [2003] QDC 398
Decision Date: 30 October 2003

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

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.

Citations

AGLC Citation

McLennan v McLennan [2003] QDC 398

Most Recent Citation

D v G [2004] QDC 477

Cases citing this decision · 14 of 14 shown

Pyatt v Cheah
[2019] QMC 18 Para 1

…In relation to section 20 of the repealed Act, in MAN v MAM [2003] QDC 398 at [20] McGill DCJ held that:…
Officer JXR v Deputy Commissioner Gollschewski
[2018] QCATA 55 Para 7

…ubstantiated). Further, he submits that a DVO was, in any event unnecessary, as no further incidents subsequently occurred. [38][2010] QDC 187. [39][2003] QDC 398, at [19-20].…
WJ v At
[2016] QDC 211 Para 1

…e cases though where finding about statements made or conduct engaged in by a respondent through a third party would be sufficient. [70]See MAM v MAM [2003] QDC 398 at [9].…
LJO v Commissioner of Police
[2013] QDC 193

…1989 (Qld), s 11, s 20, s 34A, s 63 Domestic and Family Violence Protection Act 2012 (Qld), s 165, s 167, s 168, s 169, s 209 MAN v MAM [2003] QDC 398 SCJ v ELT [2011] QDC 100 COUNSEL: JP Todman for the appellant P Rasleigh for the respondent SOLICITORS: Carswell and Co for the appellant Commissioner of Police fo…
Armour v FAC
[2012] QMC 22 Para 6

…In relation to section 20 of the repealed Act, in MAN v MAM [2003] QDC 398 at [20] McGill DCJ held that: “‘Likely’ in my view does not in the statute mean more probable than not, but it must at least involve a real, not remote likelihood, something more probable than a mere chance or risk”. His honour went on to…
DGS v GRS
[2012] QDC 74 Para 1

…I have on some previous occasions said something about what amounts to harassment or intimidation. In MAN v MAM [2003] QDC 398 I said that nothing could amount to harassment or intimidation unless the supposed victim of that activity was aware that the activity is occurring: [9]. I also said that I did not think…
SCJ v ELT
[2011] QDC 100 Para 1

…, see: Martin v Rowling [2005] QCA 128 at [3] and [80]. [6]See e.g. Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 at 87; MAN v MAM [2003] QDC 398.…
HMG v BRC
[2010] QDC 485 Para 1

…In his Reasons, the learned Magistrate specifically referred to relevant authority (namely, MAN v MAM [2003] QDC 398 at [19]) and then concluded that the test was “clearly met” having regard to the level of animosity between the parties and having regard to the ongoing level of conflict which he held would exist…
S v D
[2010] QDC 187 Para 1

…re by the respondent. The Magistrate was, in my view, correct in his decision not to make a protection order on this evidence. [48] See MAN v MAM [2003] QDC 398 at [19] per McGill SC DCJ and cases cited therein.…
Harley v Field
[2007] QDC 364 Para 1

…otection order. Prior to proceeding with the evidence, the Magistrate provided the appellant with copies of District Court Appeal cases MAN v MAM [2003] QDC 398; Keys v Keys-Tollhurst, Southport District Court, D 237 of 2006; and Bottoms v Rogers [2006] QDC 80, and apparently gave him some time to read over them.…
BBB v RAB
[2006] QDC 80 Para 1

…mestic violence in the form of a threat that was within paragraph (e). For reasons I have previously given that was not established. [9]See MAN v MAM [2003] QDC 398 at [19].…
Kris v Tramacchi
[2006] QDC 35

…2002] QCA 9. Darney v Fisher DC 8 June 2005 Fox v Sawdy ex.p. Fox [1980] Qd R 378 Green v Ashton [2006] QDC 008 MAN v MAM [2003] QDC 398 at 6-7 COUNSEL: Mr Simon Burgess for the appellant Mr Scott Collins for the respondent SOLICITORS: Aboriginal and Torres Strait Islander Legal Services for the appellant/defenda…
Butterworth v Geddes
[2005] QDC 333

…Power (2004) HCA 39. Darney v Fisher DC 8 June 2005 Del Vecchio v Crouchy [2002] QCA 9 . Fox v Sawdy ex.p.Fox [1980] Qd R 378. MAN v MAM [2003] QDC 398. COUNSEL: Ms R Kirk for the Appellant Mr J Godbolt for the Respondent SOLICITORS: Legal Aid Queensland Director of Public Prosecutions…
D v G
[2004] QDC 477 Para 1

…ce if the particular spouse was not in fact intimidated by it, perhaps because of a particularly stoic or phlegmatic nature. [19] McLennan v McLennan [2003] QDC 398 at [9]; and compare R v Davies [2004] QDC 279, concerning stalking. [20] McLennan v McLennan (supra) at p.16. The relevant activity was driving with…

View all 14 citing cases →

Cases cited in this decision · 0 of 0 shown

No cases cited.

Legislation cited in this decision · 2

Domestic Violence Family Protection Act 1989 (Qld)
1 mention (from Para 1)
Domestic Violence Legislation Amendment Act 2002 (Qld)
1 mention (from Para 1)

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.