RCK v MK - [2018] QDC 181

DISTRICT COURT OF QUEENSLAND

CITATION:

RCK v MK [2018] QDC 181

PARTIES:

RCK
(appellant)

v

MK
(respondent)

FILE NO/S:

24/2018

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED EX TEMPORE ON:

6 August 2018

DELIVERED AT:

Cairns

HEARING DATE:

6 August 2018

JUDGE:

Morzone QC DCJ

ORDER:

Appeal allowed;1.

The protection order made by the Domestic Violence Court on 18 January 2018 is set aside;2.

The proceeding is remitted to the Domestic Violence Court to be heard and determined according to law; and 3.

Each party will bear their own costs in the appeal.4.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – APPEAL AND REVIEW – where the appellant appeals a protection order – where the order was made in the absence of the appellant and his solicitor – whether the learned magistrate should have adjourned the application having regard to the matters known to the court during the management of the proceeding – whether there was sufficient evidence to justify the making of a domestic violence protection order.

Legislation

Civil Proceedings Act 2011 (Qld), s 15
Domestic and Family Violence Protection Act 2012 ss 39, 142, 145, 146, 157, 161, 164, 168, 169
Domestic and Family Violence Protection Rules 2014 (Qld) r 31
Uniform Civil Procedure Rules 1999 (Qld) Ch 19A

Cases

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
ADH and LAH v the Commissioner of Police [2017] QDC 103
Allesch v Maunz [2000] HCA 40
BLJ v QLB & Another [2018] QDC 14
Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
House v The King [1936] 55 CLR 499
National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296
Norbis v Norbis (1986) 161 CLR 513
Taylor v Taylor (1979) 143 CLR 1

COUNSEL:

F Lanza for the respondent

SOLICITORS:

HA Mellick of Mellick Smith & Associates for the appellant

Lanza Legal for the respondent

The appellant appeals against the decision and protection order made by the Domestic and Family Violence Court in Cairns on 18 January 2018. The order is expressed to remain in force to, and including 18 January 2023. The appellant is the nephew of the respondent aggrieved.

The parties have, in accordance with the procedure for appeals, provided detailed outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

Background

By an application for a protection order filed on 24 October 2017, the respondent aggrieved relies upon two incidents as constituting emotional or psychological abuse, threatening and controlling conduct of her nephew the appellant.

The first incident relied upon, allegedly, occurred on 1 November 2016, in the context of a violent assault by the appellant’s father on the respondent, the assailant’s sister. The event is described as follows, in the grounds for a protection order:

On 1 November 2016, [the respondent] was with his father … and the respondent – and watched as his father … violently…

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 RCK v MK

Details

AGLC: RCK v MK [2018] QDC 181
Case: [2018] QDC 181
Decision Date: 6 August 2018

CaseChat Overview and Summary

In the matter of RCK v MK, the appellant challenges the validity of a domestic violence protection order made by the Domestic Violence Court. The appellant, RCK, contends that the order was improperly issued in his absence and that of his solicitor. MK, the respondent, seeks to uphold the order, asserting that it was based on sufficient evidence of domestic violence. The court was tasked with determining whether the magistrate should have adjourned the proceedings and whether the evidence was adequate to support the issuance of the order.

The legal issues before the court involved the procedural fairness of the hearing and the sufficiency of the evidence. Specifically, the court had to consider whether the magistrate erred in not adjourning the application for a domestic violence protection order when it was apparent that RCK and his solicitor would not be available. Additionally, the court examined whether the evidence presented was sufficient to justify the issuance of the protection order. The court's analysis hinged on the principles of natural justice and the standard of proof required for such orders.

The court found that the magistrate did indeed err in proceeding with the application in the absence of RCK and his solicitor, which violated the principles of natural justice. This procedural misstep was considered significant enough to necessitate the setting aside of the protection order. Furthermore, the court determined that the evidence, while substantial, did not meet the required standard of proof for such an order. The court concluded that the magistrate should have adjourned the application to allow for proper representation and a fair hearing.

Consequently, the appeal was allowed, the protection order was set aside, and the matter was remitted to the Domestic Violence Court for rehearing. Each party was ordered to bear their own costs for the appeal.

Orders

Orders of the court

Appeal allowed;1.

The protection order made by the Domestic Violence Court on 18 January 2018 is set aside;2.

The proceeding is remitted to the Domestic Violence Court to be heard and determined according to law; and 3.

Each party will bear their own costs in the appeal.4.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	RCK v MK [2018] QDC 181
PARTIES:	RCK (appellant) v MK (respondent)
FILE NO/S:	24/2018
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED EX TEMPORE ON:	6 August 2018
DELIVERED AT:	Cairns
HEARING DATE:	6 August 2018
JUDGE:	Morzone QC DCJ
ORDER:	Appeal allowed;1. The protection order made by the Domestic Violence Court on 18 January 2018 is set aside;2. The proceeding is remitted to the Domestic Violence Court to be heard and determined according to law; and 3. Each party will bear their own costs in the appeal.4.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – APPEAL AND REVIEW – where the appellant appeals a protection order – where the order was made in the absence of the appellant and his solicitor – whether the learned magistrate should have adjourned the application having regard to the matters known to the court during the management of the proceeding – whether there was sufficient evidence to justify the making of a domestic violence protection order. Legislation Civil Proceedings Act 2011 (Qld), s 15 Domestic and Family Violence Protection Act 2012 ss 39, 142, 145, 146, 157, 161, 164, 168, 169 Domestic and Family Violence Protection Rules 2014 (Qld) r 31 Uniform Civil Procedure Rules 1999 (Qld) Ch 19A Cases Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 ADH and LAH v the Commissioner of Police [2017] QDC 103 Allesch v Maunz [2000] HCA 40 BLJ v QLB & Another [2018] QDC 14 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. House v The King [1936] 55 CLR 499 National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 Norbis v Norbis (1986) 161 CLR 513 Taylor v Taylor (1979) 143 CLR 1
COUNSEL:	F Lanza for the respondent
SOLICITORS:	HA Mellick of Mellick Smith & Associates for the appellant Lanza Legal for the respondent