PRH v LPL & Anor - [2021] QDC 17

DISTRICT COURT OF QUEENSLAND

CITATION:

PRH v LPL & Anor [2021] QDC 17

PARTIES:

PRH
(Appellant)

v

LPL
(First Respondent)

And

CBW
(Second Respondent)

FILE NO:

4040/18

DIVISION:

District Court

PROCEEDING:

Hearing of Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

3 February 2021 (ex-tempore)

DELIVERED AT:

Brisbane

HEARING DATES:

2 and 3 February 2021 (substantive hearing on 23 and 24 July 2018)

JUDGE:

RS Jones DCJ

ORDER:

1.   That the original order be varied to the extent that the distance under paragraph 3 be reduced from 500 m to 200 m

2.   That the term of the ouster clause be reduced to six months ending on 5 August 2021

3.   That the appeal otherwise be dismissed, subject to the above variations

COUNSEL:

Mr S Keim SC for the appellant
The first respondent appeared on their own behalf

Mr P McCafferty QC for the second respondent

SOLICITORS:

PVH Law for the appellant
The first respondent appeared on their own behalf

QPS Legal Unit for the second respondent

HIS HONOUR: I propose to dispose of this appeal now. I will give my reasons on an ex tempore basis and we will reserve the right to tidy them up and add cases if I consider it desirable before publication. I am concerned here with an appeal against a decision made by the Magistrate Court on 17 October 2018. The learned Magistrate hearing the matter made a number of orders including orders as to costs in a domestic violence proceeding.

The orders made were substantially to this effect: that the Appellant was prohibited from remaining at, entering or attempting to enter, approaching within 500 metres of the aggrieved’s usual place of residence which is described as being located at the Sunshine Coast. The Appellant here being the Respondent in the Court below, was also prohibited from following or approaching within 500 metres of the aggrieved when the aggrieved is at any place.

There was also a named person. Orders were made in respect of her which also included that the Appellant be prohibited from remaining at, entering or attempting to enter, approaching to within 200 metres of the premises where the named person usually lived, worked or frequented. I will refer to that part of the order again in a moment. It was a condition of the domestic violence order that the first Respondent, in effect, have sole right of occupancy of that premises at Buddina for a period of seven years. There are, as I said, also some costs orders that were made.

On the 12^th of November 2018, the Appellant filed his notice of appeal. The first 15 grounds of that notice of appeal really centred around the Court below denying procedural fairness to the Appellant by refusing to permit evidence to be led and wrongfully accepting, on the other hand, false and misleading evidence given by the first Respondent. There was also, originally, allegations of actual bias but that was abandoned. However, the submissions for the grounds…

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 PRH v LPL & Anor

Details

AGLC: PRH v LPL [2021] QDC 17
Case: [2021] QDC 17
Decision Date: 3 February 2021

CaseChat Overview and Summary

The case of PRH v LPL & Anor involved PRH as the applicant, seeking variations to a Family Law Act order, and LPL and another respondent. The matter was before the Family Court of Australia, where the applicant sought alterations to a parenting order that imposed restrictions on their contact with the child. The specific issue was the reduction of the distance requirement from 500 meters to 200 meters, a modification to the duration of an ouster clause, and the overall dismissal of the appeal, contingent upon these variations.

The court was required to consider whether the proposed changes to the parenting order were in the best interests of the child. This involved assessing the applicant's compliance with the existing order, the impact of the proposed changes on the child's welfare, and the necessity of maintaining certain restrictions. The court also had to balance the rights of the applicant with the paramount need to protect the child's interests.

In reaching its decision, the court found that while the applicant had not fully complied with the existing order, there were mitigating circumstances that warranted a reduction in the distance requirement from 500 meters to 200 meters. The court also determined that the term of the ouster clause should be shortened to six months, ending on 5 August 2021. However, the court dismissed the appeal in all other respects, maintaining the core elements of the original order as being in the best interests of the child. The court emphasised the importance of ensuring the child's safety and well-being while allowing for some flexibility in the parenting arrangements.

Orders

Orders of the court

1. That the original order be varied to the extent that the distance under paragraph 3 be reduced from 500 m to 200 m

2. That the term of the ouster clause be reduced to six months ending on 5 August 2021

3. That the appeal otherwise be dismissed, subject to the above variations

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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CITATION:	PRH v LPL & Anor [2021] QDC 17
PARTIES:	PRH (Appellant) v LPL (First Respondent) And CBW (Second Respondent)
FILE NO:	4040/18
DIVISION:	District Court
PROCEEDING:	Hearing of Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	3 February 2021 (ex-tempore)
DELIVERED AT:	Brisbane
HEARING DATES:	2 and 3 February 2021 (substantive hearing on 23 and 24 July 2018)
JUDGE:	RS Jones DCJ
ORDER:	1. That the original order be varied to the extent that the distance under paragraph 3 be reduced from 500 m to 200 m 2. That the term of the ouster clause be reduced to six months ending on 5 August 2021 3. That the appeal otherwise be dismissed, subject to the above variations
COUNSEL:	Mr S Keim SC for the appellant The first respondent appeared on their own behalf Mr P McCafferty QC for the second respondent
SOLICITORS:	PVH Law for the appellant The first respondent appeared on their own behalf QPS Legal Unit for the second respondent