Mka v WKT

[2018] QDC 73

DISTRICT COURT OF QUEENSLAND

CITATION:

MKA v WKT [2018] QDC 73

PARTIES:

MKA
(applicant)

v

WKT 
(respondent)

FILE NO/S:

Appeal NO: 5/2018

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED EX TEMPORE ON:

28 March 2018

DELIVERED AT:

Cairns

HEARING DATE:

28 March 2018

JUDGE:

Morzone QC DCJ

ORDERS:

1.   The respondent’s application is allowed.

2.    It is ordered that the appeal be transferred to the District Court at Southport for mention at a date and time to be fixed by the Registrar of that Court

CATCHWORDS:

APPEAL – APPLICATION FOR CHANGE OF VENUE – whether appeal can be more conveniently or fairly heard in originating venue – whether the principles and objects of the Domestic and Family Violence Act 2012 (Qld) apply to the exercise of the discretion to change venue – whether the respondent had the capacity to conduct her case in the current venue in circumstances where she has no legal representation – where the respondent does not live in the current venue – where the appellant does not live in the current venue but convenient to his legal representation.  

Legislation

Domestic and Family Violence Act 2012 (Qld) ss 3, 4 142 164, 168, 169.
Uniform Civil Procedure Rules 1999 (Qld) r39.

COUNSEL:

S Williams for the respondent.

SOLICITORS:

Lisa Stansfield Lawyers for the respondent.

The applicant appeared without legal representation.

1. The respondent, in an appeal from the Magistrates Court in Coolangatta in respect of a domestic violence order, applies to change the venue and transfer the appeal from the District Court in Cairns to the District Court at Southport. 

Background

1. The appellant appeals against the whole or the part of the decision of the Magistrates Court made on the 15^th of December 2017 on the grounds that the Magistrate erred in finding that the making of the protection order was necessary and desirable. 

1. That ground is further particularised in the submissions made on behalf of the appellant in the appeal as follows:

1.          The Magistrate misapplied the approach of the leading authority when assessing whether there was more than a mere possibility or speculation of the prospect of further domestic violence; 

2.          The Magistrate placed undue weight on the passage of time between the last act of domestic violence and the date of the hearing in determining whether the making of the order was necessary or desirable;

3.          The Magistrate placed undue weight on the “small chance of contact” between the parties in the future in determining the order was necessary or desirable; 

4.           The determination that an order was necessary or desirable was unreasonable based on the evidence and factual findings of the learned Magistrate

Mode of Appeal

1. Appeals of this type are brought pursuant to s 164 of the Domestic and Family Violence Act 2012 (Qld).  In accordance with s 168(1), “An appeal must be decided on the evidence and proceedings before the Court that made the decision being appealed.” That Court was not bound by the rules of evidence or…