MHH v Lan - [2016] QMC 1

MAGISTRATES COURT OF QUEENSLAND
CITATION:MHH v LAN [2016] QMC 1
PARTIES:AMA (applicant in both applications)

MHH (aggrieved)
AND

LAN (respondent)
LAH (aggrieved)
AND

NAH (respondent)

FILE NOS:  TOOW-MAG 9767/15 & 9768/15
ORIGINATING COURT:     Magistrates Court held at Toowoomba
HEARING:  16 December 2015 with subsequent written submissions to be filed 4 & 29 January 2016

DELIVERED ON:               4 February 2016
DELIVERED AT:                Toowoomba
MAGISTRATE:                   G. Lee
ORDER:  The applicant in both applications pay the respondents’ costs in the amount of $763.
CATCHWORDS:                Domestic Violence – applicant names child as aggrieved – child precluded from being an aggrieved by virtue of section 22

Domestic Violence – costs- exception to the “no costs” rule - whether application frivolous or vexatious – if so, should costs be awarded – if so, should costs be reduced from that in the scale
Domestic and Family Violence Protection Act 2012, ss 142, 143(a), 157
Domestic and Family Violence Protection Rules 2014, Part 7
Justices Act 1886, ss157, 158, 158A, 158B
Magistrates Courts Act 1921, s 57C
Uniform Civil Procedure Rules 1999, Chapter 17A, rr 702, 703, 743S
The following cases were referred to:
Attorney General v Michael (1999) WASCA 181
Attorney General v Wentworth (1988) 14 NSWLR 481
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
GKE v EUT [2014] QDC 248
HMG v BRC [2010] QDC 485
LKF v MRR [2012] QDC 355
Lohe v Bird [2004] QSC 23
Mudie v Gainriver Pty Ltd (No 2) [2002] QCA 546
Re Cameron [1996] Qd R 218

APPEARANCES: Mr D Lewis (Solicitor) for the Applicant (as duty lawyer on 16 December 2015 only)
Mr A. B. Balzamo of Counsel instructed by Murdoch Lawyers for both respondents

[1] On 7 December 2015 the applicant filed two applications for protection orders under the Domestic and Family Violence Protection Act 2012 (the Act) on behalf of her two daughters aged nearly 12 and 8 respectively who are named as the aggrieved in each application.

[2] The respondent in the application for the 12 year old is the current partner of the father. The crux of the allegations are constant harassment and manipulation by text and skype messaging.

[3] The respondent in the application for the 8 year old is the paternal grandmother. It is alleged that, in breach of family law orders, the respondent approached the child in class at school and attempted to coax her away on 30 November 2015.

[4] It is not necessary to say any more about the allegations suffice to say that there has been, and continues to be, significant family law litigation regarding parenting orders in relation to the two daughters named as the aggrieved in the applications. I am told there is also a current domestic violence order protecting the father as the aggrieved and both respondents in this case as named persons against the current applicant as respondent. The respondents’ submissions also assert that the applicant has been fined for previous breaches and is under police investigation for…

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 MHH v Lan

Details

AGLC: MHH v Lan [2016] QMC 1
Case: [2016] QMC 1
Decision Date: 4 February 2016

CaseChat Overview and Summary

The case of MHH v Lan involved an application for domestic violence intervention orders. The applicant, MHH, sought orders for the protection of the child, who was also named as an aggrieved party. The respondent, Lan, opposed the application on the basis that the child was precluded from being an aggrieved under section 22 of the relevant legislation. The matter was heard and determined in the Magistrates Court of Victoria.

The primary legal issue before the court was whether the child could be named as an aggrieved party in the domestic violence application. The respondent argued that the child was precluded from being an aggrieved by virtue of section 22, which excludes certain parties from being able to apply for domestic violence intervention orders. The applicant contended that the child was directly affected by the respondent’s conduct and therefore qualified as an aggrieved party.

The court found that the child was indeed precluded from being an aggrieved party under section 22 of the relevant legislation. The court held that the child could not be named as an aggrieved party in the application for domestic violence intervention orders. The court also found that the application was frivolous and vexatious, and awarded costs to the respondent. The court considered the appropriate amount of costs to be awarded, taking into account the nature of the application and the conduct of the parties. The court ordered that the applicant pay the respondent’s costs in the amount of $763.

Orders

Orders of the court

The applicant in both applications pay the respondents’ costs in the amount of $763.

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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