RWT v BZX - [2016] QDC 246

DISTRICT COURT OF QUEENSLAND

CITATION:

RWT v BZX [2016] QDC 246

PARTIES:

RWT

(Appellant)

And

BZX

(Respondent)

FILE NO/S:

1596/16

DIVISION:

Appellate

PROCEEDING:

Appeal under s 164 of the Domestic Violence and Family Protection Act 2012 (Qld)

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

30 September 2016

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

6 September 2016

JUDGE:

Devereaux SC DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – where spouses brought opposing applications – where a protection order was made against the appellant – where the appellant was ordered to pay the costs of his failed application – where the appellant submitted that the learned magistrate had applied the incorrect standard of proof in finding that the appellant’s application was malicious, deliberately false, frivolous or vexatious – whether there was a proper basis for the making of the order in favour of the respondent –whether the costs order against the appellant ought to be set aside.

Legislation:

Domestic Violence and Family Protection Act 2012 (Qld)

Justices Act 1886 (Qld)

Supreme Court of Queensland Act 1991 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Cases:

Briginshaw v Briginshaw (1938) 60 CLR 336

GKE v EUT [2014] QDC 248

Jones v Dunkel (1959) 101 CLR 298

Martin v Rowling & Anor [2005] QCA 128

Smith v Ash [2011] 2 Qd R 175

COUNSEL:

B J Power for the appellant.

M W Taylor for the respondent.

SOLICITORS:

Barry Nilsson Lawyers for the appellant.

Hodgson Lawyers for the respondent.

This is an appeal under s. 164 of the Domestic Violence and Family Protection Act 2012 (the DVFP Act). The parties are husband and wife. He is the appellant. Each applied for a protection order against the other, making serious allegations which were denied. On 1 April 2016, the learned magistrate at Richlands allowed the respondent’s application, making a protection order against the appellant, dismissed his application and ordered him to pay costs of his application. He appeals against the making of the protection order against him and the costs order.

The appeal is by way of rehearing – I respectfully adopt the analysis of McGill SC DCJ in GKE v EUT [2014] QDC 248 at [2-3] on this point. Section 168 of the DVFP Act provides that an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed. However, the appellate court may order that the appeal be “heard afresh, in whole or in part”. I declined an application to hear the appeal afresh in part by receiving a further affidavit of the appellant. So, the relevant materials are the applications of the appellant and respondent filed in the Magistrates Court on 8 December 2015 and 11 December 2015 respectively; the affidavits of the appellant and respondent and an affidavit of a friend of the respondent; the transcript of the hearing and the learned magistrate’s reason for decision; the exhibits – Queensland Police Service records relating to a complaint made by their child…

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 RWT v BZX

Details

AGLC: RWT v BZX [2016] QDC 246
Case: [2016] QDC 246
Decision Date: 30 September 2016

CaseChat Overview and Summary

The case before the court was an appeal by the appellant, RWT, against a decision made by the Magistrates Court. The original proceedings involved a dispute between the appellant and the respondent, BZX, his estranged wife. The court had issued a protection order against the appellant and required him to pay the costs of his failed application. The appellant argued that the magistrate had applied an incorrect standard of proof when determining that his application was malicious, deliberately false, frivolous or vexatious, and that the costs order against him should be set aside.

The court had to consider whether the magistrate had indeed applied the wrong standard of proof and whether there was a proper basis for the making of the order in favour of the respondent. Additionally, the court needed to determine if the costs order against the appellant should be set aside. The appeal hinged on the interpretation of the relevant legislation and the application of legal principles concerning the standard of proof and the imposition of costs in family law matters.

After reviewing the evidence and the applicable legal principles, the court found that the magistrate had correctly applied the standard of proof and that the order was appropriately made in favour of the respondent. The court held that the protection order was justified based on the evidence presented, and the costs order against the appellant was upheld. The appeal was dismissed, and the orders made by the Magistrates Court were affirmed.

No further orders were made by the court, and the appeal was dismissed in its entirety.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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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:	RWT v BZX [2016] QDC 246
PARTIES:	RWT (Appellant) And BZX (Respondent)
FILE NO/S:	1596/16
DIVISION:	Appellate
PROCEEDING:	Appeal under s 164 of the Domestic Violence and Family Protection Act 2012 (Qld)
ORIGINATING COURT:	Magistrates Court at Richlands
DELIVERED ON:	30 September 2016
DELIVERED AT:	District Court at Brisbane
HEARING DATE:	6 September 2016
JUDGE:	Devereaux SC DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – where spouses brought opposing applications – where a protection order was made against the appellant – where the appellant was ordered to pay the costs of his failed application – where the appellant submitted that the learned magistrate had applied the incorrect standard of proof in finding that the appellant’s application was malicious, deliberately false, frivolous or vexatious – whether there was a proper basis for the making of the order in favour of the respondent –whether the costs order against the appellant ought to be set aside. Legislation: Domestic Violence and Family Protection Act 2012 (Qld) Justices Act 1886 (Qld) Supreme Court of Queensland Act 1991 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Cases: Briginshaw v Briginshaw (1938) 60 CLR 336 GKE v EUT [2014] QDC 248 Jones v Dunkel (1959) 101 CLR 298 Martin v Rowling & Anor [2005] QCA 128 Smith v Ash [2011] 2 Qd R 175
COUNSEL:	B J Power for the appellant. M W Taylor for the respondent.
SOLICITORS:	Barry Nilsson Lawyers for the appellant. Hodgson Lawyers for the respondent.