OMD v Queensland Police Service - [2021] QDC 282

DISTRICT COURT OF QUEENSLAND

CITATION:

OMD v Queensland Police Service & Anor [2021] QDC 282

PARTIES:

OMD
(Appellant)

v

QUEENSLAND POLICE SERVICE
(First Respondent)

AND

DMB

(Second Respondent)

FILE NO:

312/21

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

2 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2021

JUDGE:

Porter QC DCJ

ORDER:

1.    Order (3) of the Protection Orders made by the Magistrates Court at Brisbane on 13/1/21 be varied so that it provides:

The respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives.

The respondent may without contravening this order reside at her premises, move about any part of her property or leave her home to enter and exit her property by a route that does not require driving past the aggrieved’s home.

2.    The appeal is otherwise dismissed.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where the appellant seeks to appeal the decision made in the Magistrates Court to impose a protection order purusuant to s. 37 Domestic and Family Violence Protection Act 2012 (Qld) – whether the learned Magistrate erred in deciding a matter with investigative failure and procedural unfairness – whether the learned Magistrate erred in fact and law in relation to existing protection order – whether the learned Magistrate erred in fact and law in relation to existing family law orders – whether the learned Magistrate erred in finding domestic violence was committed and in finding it necessary or desirable to make a protection order against the existing aggrieved – whether the learned Magistrate erred in fact and law in relation to the now adult children – whether the learned Magistrate erred in making conditional protection order that was wrong, unfair and unjust

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), ss. 4, 7-12, 37, 56-67, 97, 100, 145, 168

Domestic and Family Violence Protection Rules 2014 (Qld), r. 5

Coroners Act 2003 (Qld), s. 91A

Criminal Code 1899 (Qld), s. 359B

CASES:

Baker v Smith (No. 1) [2019] QDC 76

GKE v EUT [2014] QDC 248

House v The King (1936) 55 CLR 499

Norbis v Norbis (1986) 161 CLR 513

R v Ernst [2020] QCA 150

APPEARANCES:

OMD in person

N. Thirumoorthi (QPS Legal Unit) for the first respondent

DMB in person

Contents

SUMMARY
THE PROCEEDINGS BELOW
NATURE OF THE APPEAL
THE NOTICE OF APPEAL
ISSUE 1: PROCEDURAL FAIRNESS GROUNDS

Appeal Ground 1: Investigative failure

OMD’s submissions
The Commissioner’s submissions
Analysis

Appeal Ground 2: Procedural unfairness

Significant delay
Documentation
Hearing
Temporary cross-order

ISSUE 2: DOMESTIC VIOLENCE BY DMB?

Intimate Partner Homocide lethality factors issue

ISSUE 3: RELEVANCE OF THE PARENTING ORDERS
ISSUE 4: ALLEGED FAILURE TO CONSIDER EVIDENCE ON DAY 1
ISSUE 5: ALLEGED ERROR IN FINDING ACTS OF DOMESTIC VIOLENCE AGAINST DMB

The media exhibits and attendance at DMB’s house
The finding of photographic surveillance

ISSUE 6: WAS AN ORDER NECESSARY OR DESIRABLE?

The Family Law issue
The “fearfulness”…

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.

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Details

Case: [2021] QDC 282
Decision Date: 2 December 2021

CaseChat Overview and Summary

In the case of OMD v Queensland Police Service, the appellant sought to appeal a decision made by a Magistrate in the Magistrates Court of Queensland to impose a protection order under the Domestic and Family Violence Protection Act 2012. The appellant contended that the Magistrate erred in making the decision due to investigative failure and procedural unfairness. The appeal also questioned the Magistrate's interpretation of existing protection orders, family law orders, and the application of the law regarding domestic violence. Furthermore, the appellant argued that the Magistrate erred in finding domestic violence had been committed and that a protection order against the aggrieved party was necessary or desirable. The appeal also challenged the Magistrate's consideration of the now adult children and the conditional nature of the protection order, which the appellant deemed to be wrong, unfair, and unjust.

The court was required to determine whether the Magistrate made any errors in fact or law that would warrant the appeal being upheld. This involved scrutinising the Magistrate's handling of the case, including the investigation process, the application of relevant statutes, and the assessment of evidence. The court had to consider the procedural fairness of the Magistrate's decision-making process and the accuracy of the findings made in relation to the existing protection orders, family law orders, and the determination of domestic violence. Additionally, the court examined whether the Magistrate appropriately considered the interests of the now adult children and whether the conditional protection order was justified.

After carefully reviewing the evidence and legal arguments presented, the court found that the Magistrate did not err in making the protection order. The court held that the investigation and procedural fairness were adequate, and the Magistrate correctly applied the relevant legal principles. The court affirmed the findings regarding domestic violence, the necessity of the protection order, and the consideration of the aggrieved party's and the children's interests. However, the court did find that one aspect of the protection order needed to be varied to better protect the aggrieved party's residence and property.

The court varied Order (3) of the Protection Orders to provide clearer restrictions on the respondent's proximity to the aggrieved party's home while allowing the respondent to reside at the aggrieved party's premises and move about the property without contravening the order. The court dismissed the appeal in all other respects, confirming the original protection order as imposed by the Magistrate.

Orders

Orders of the court

1. Order (3) of the Protection Orders made by the Magistrates Court at Brisbane on 13/1/21 be varied so that it provides:

The respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives.

The respondent may without contravening this order reside at her premises, move about any part of her property or leave her home to enter and exit her property by a route that does not require driving past the aggrieved’s home.

2. The appeal is otherwise 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:	OMD v Queensland Police Service & Anor [2021] QDC 282
PARTIES:	OMD (Appellant) v QUEENSLAND POLICE SERVICE (First Respondent) AND DMB (Second Respondent)
FILE NO:	312/21
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	2 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2021
JUDGE:	Porter QC DCJ
ORDER:	1. Order (3) of the Protection Orders made by the Magistrates Court at Brisbane on 13/1/21 be varied so that it provides: The respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives. The respondent may without contravening this order reside at her premises, move about any part of her property or leave her home to enter and exit her property by a route that does not require driving past the aggrieved’s home. 2. The appeal is otherwise dismissed.
CATCHWORDS:	DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where the appellant seeks to appeal the decision made in the Magistrates Court to impose a protection order purusuant to s. 37 Domestic and Family Violence Protection Act 2012 (Qld) – whether the learned Magistrate erred in deciding a matter with investigative failure and procedural unfairness – whether the learned Magistrate erred in fact and law in relation to existing protection order – whether the learned Magistrate erred in fact and law in relation to existing family law orders – whether the learned Magistrate erred in finding domestic violence was committed and in finding it necessary or desirable to make a protection order against the existing aggrieved – whether the learned Magistrate erred in fact and law in relation to the now adult children – whether the learned Magistrate erred in making conditional protection order that was wrong, unfair and unjust
LEGISLATION:	Domestic and Family Violence Protection Act 2012 (Qld), ss. 4, 7-12, 37, 56-67, 97, 100, 145, 168 Domestic and Family Violence Protection Rules 2014 (Qld), r. 5 Coroners Act 2003 (Qld), s. 91A Criminal Code 1899 (Qld), s. 359B
CASES:	Baker v Smith (No. 1) [2019] QDC 76 GKE v EUT [2014] QDC 248 House v The King (1936) 55 CLR 499 Norbis v Norbis (1986) 161 CLR 513 R v Ernst [2020] QCA 150
APPEARANCES:	OMD in person N. Thirumoorthi (QPS Legal Unit) for the first respondent DMB in person