RC v Mm

[2018] QDC 276

DISTRICT COURT OF QUEENSLAND

CITATION:

RC v MM [2018] QDC 276

PARTIES:

RC

(Appellant)

v

MM

(Respondent)

FILE NO/S:

D286/17

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to Section 164 of the Domestic and Family Violence Protection Act 2012

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

12 December 2018

DELIVERED AT:

Southport

HEARING DATE:

26 November 2018

JUDGE:

Kent QC DCJ

ORDER:

Appeal allowed;1.          

The orders made in the Magistrates Court at Southport on 3 October 2017 are set aside;2.          

The application for a domestic violence order is dismissed.3.          

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – WHEN APPEAL LIES – where the appellant challenges the granting of a two year Protection Order – where it is uncontentious that an intimate relationship existed between the parties – where there was an act of domestic violence – where there was no ongoing relationship between the parties – where neither party sought to continue the relationship – whether the imposition of a Protection Order was necessary or desirable.

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – GROUNDS – where the appellant challenges the granting of a two year Protection Order on the grounds that the Magistrate erred in finding that the making of the order was necessary or desirable – where there was no ongoing relationship between the parties – where the aggrieved conceded that significant aspects of her evidence were inconsistent and untruthful – whether the Magistrate made an error of law in imposing a Protection Order.

COUNSEL:

M McMillan (Solicitor) for the appellant

Mr M C O’Brien (Senior Legal Officer) for the respondent

SOLICITORS:

McMillan Criminal Law for the appellant

Queensland Police Service Legal Division for the respondent

Introduction

1. The appellant challenges a decision on 3 October 2017 pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (the “DV Act”), granting the aggrieved a Protection Order for two years. The orders were made after a contested hearing where evidence had been given by the aggrieved, the appellant and two other witnesses. Prerequisites for making such an order included findings that there had been a relevant relationship between the parties, that there had been domestic violence, and that an order was necessary or desirable.

1. In the evidence there was no contest that a relevant relationship had existed between the parties.  They had an intimate relationship, for a disputed duration.

1. Central to this appeal, however, is the contention by the appellant both that there was an error in concluding that an act of domestic violence had occurred and, in particular, that there was a further error in the conclusion, required by the legislation, that it was necessary or desirable to make a protection order. 

1. The grounds of appeal are as follows:

   (i)          the Magistrate erred in finding the making of the order was necessary or desirable;

   (ii)        the Magistrate was predisposed to making the order even before any evidence had been adduced and so was neither impartial or to…