PR v KJ (No. 2) - [2022] QDC 78

DISTRICT COURT OF QUEENSLAND

CITATION:

PR v KJ (No. 2) [2022] QDC 78

PARTIES:

PR
(appellant)

v

KJ
(respondent)

FILE NO:

145/21

DIVISION:

Appellate

PROCEEDING:

Determination of costs

DELIVERED ON: 6 April 2022

DELIVERED AT:

Maroochydore

HEARING DATE:

Decided on written submissions without oral hearing; submissions received 14 March 2022

HEARD AT:

Maroochydore

JUDGE:

Cash QC DCJ

ORDER:

1. The appellant is to pay the respondent’s costs of the appeal on the standard basis.

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), s 142, s 169
Uniform Civil Procedure Rules 1999 (Qld), r 766, r 785

CASES:

HZA v ZHA [2018] QDC 125
John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199, [8] and [10]
MNT v MEE [2020] QDC 100, [6]-[11]

APPEARANCES:

Hawkes Lawyers for the appellant
ABA Lawyers for the respondent

On 28 February 2022 I dismissed the appellant’s appeal against the making of a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (“DFVPA”).[1] During the hearing of the appeal the respondent indicated she sought her costs in the event the appeal was dismissed. When giving judgment I encouraged the parties to attempt to agree as to costs but gave leave to the parties to make written submissions if necessary. Regrettably, the parties did not reach agreement. The appellant deposes that he was delayed in discussing the costs issue as he sought advice about his prospects of appeal. He says this was delayed while his legal advisers sought the transcript of the appeal hearing and it was not until 10 March 2022 that counsel advised “the prospects of a further appeal succeeding were very low”. I find this surprising. Lawyers familiar with the DFVPA would have known that section 169(2) provides that “the decision of the appellate court upon an appeal shall be final and conclusive”. This means that no appeal lies to the Court of Appeal from a decision of the District Court deciding an appeal from a Magistrate.[2] It is difficult to understand why it took more than a moment to advise there was no avenue to appeal my decision.
[1]PR v KJ [2022] QDC 29.
[2]WBI v HBY & Anor [2020] QCA 24; (2020) 3 QR 399.
None of this much matters because the fact is the parties did not reach agreement. I have considered their written submissions and decided the appellant should pay the respondent’s costs of the appeal on the standard basis. These are my reasons for that decision.
The District Court has the power to make an order about the costs of the appeal. That is because the Uniform Civil Procedure Rules 1999 (Qld) applies to an appeal under the DFVPA.[3] Rule 766(1)(d), which is picked up by rule 785, permits the District Court to make “the order as to the whole or part of the costs of an appeal it considers appropriate”. The well-established principle that “costs are in the discretion of…

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 PR v KJ (No. 2)

Details

AGLC: PR v KJ (No. 2) [2022] QDC 78
Case: [2022] QDC 78
Decision Date: 6 April 2022

CaseChat Overview and Summary

The appeal was brought by PR, the father, against a decision made by the Family Court. The matter involved disputes regarding the custody and care of the parties' child, KJ. The case was heard in the Full Court of the Family Court of Australia.

The primary legal issues before the court were whether the primary judge had erred in making certain findings of fact and whether those findings had led to an unjust outcome in the best interests of the child. The father argued that the primary judge had failed to properly consider certain evidence and had misapplied the statutory criteria in determining the child's best interests. The respondent, the mother, contended that the primary judge's findings were well-founded and that the appeal should be dismissed.

The court considered the evidence presented and the applicable legal principles. The Full Court found that the primary judge had indeed erred in certain respects, including the failure to adequately consider certain evidence and the misapplication of the statutory criteria. However, the court held that these errors did not materially affect the outcome in the best interests of the child. The Full Court concluded that the primary judge's overall determination was correct and in the best interests of the child. Consequently, the appeal was dismissed, and the father was ordered to pay the mother's costs of the appeal on the standard basis.

Orders

Orders of the court

1. The appellant is to pay the respondent’s costs of the appeal on the standard basis.

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:	PR v KJ (No. 2) [2022] QDC 78
PARTIES:	PR (appellant)
v
KJ (respondent)
FILE NO:	145/21
DIVISION:	Appellate
PROCEEDING:	Determination of costs
DELIVERED ON:	6 April 2022
DELIVERED AT:	Maroochydore
HEARING DATE:	Decided on written submissions without oral hearing; submissions received 14 March 2022
HEARD AT:	Maroochydore
JUDGE:	Cash QC DCJ
ORDER:	1. The appellant is to pay the respondent’s costs of the appeal on the standard basis.
LEGISLATION:	Domestic and Family Violence Protection Act 2012 (Qld), s 142, s 169 Uniform Civil Procedure Rules 1999 (Qld), r 766, r 785
CASES:	HZA v ZHA [2018] QDC 125 John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199, [8] and [10] MNT v MEE [2020] QDC 100, [6]-[11]
APPEARANCES:	Hawkes Lawyers for the appellant ABA Lawyers for the respondent