SCJ v ELT

[2011] QDC 100

DISTRICT COURT OF QUEENSLAND

CITATION:

SCJ v ELT [2011] QDC 100

PARTIES:

SCJ
(Appellant)

AND

ELT
(First Respondent)

AND

COMMISSIONER OF POLICE
(Second Respondent)

FILE NO/S:

Appeal 2113/10; MAG 266/10

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Wynnum

DELIVERED ON:

14 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2011

JUDGE:

McGill DCJ

ORDER:

APPEAL ALLOWED; ORDER DATED 24 JUNE 2010 SET ASIDE; ORDER IN LIEU THAT THE APPLICATION BE DISMISSED.

CATCHWORDS:

FAMILY LAW – Domestic Violence – whether act of domestic violence – whether respondent likely to commit an act of domestic violence again

Domestic and Family violence Protection Act 1989 s 20(1); s 65(1).

Antoun v R (2006) 80 ALJR 497 – cited.
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 – cited.
Martin v Rowling [2005] QCA 128 – cited.
MAN v MAM [2003] QDC 398 – cited.
Parsons v Raby [2007] QCA 98 – cited.
Vakauta v Kelly (1989) 167 CLR 568 – cited.
Walker v Davlyn Holmes Pty Ltd [2003] QCA 565 – cited.

COUNSEL:

C. Wilson for the appellant

The first respondent appeared in person

S. Neale, Legal Officer for the second respondent

SOLICITORS:

TLG Lawyers for the appellant

The first respondent was not represented

Queensland Police Service Solicitor for the second respondent

1. This is an appeal from a protection order made under the Domestic and Family Violence Protection Act 1989 (“the Act”) in the Magistrates Court at Wynnum on 24 June 2010. The appeal is brought under s 63 of the Act, and the powers of the court on appeal are those set out in s 66 of the Act. The Commissioner of Police exercised his right under s 64A of the Act to appear and be heard on the hearing of the appeal, as second respondent. In circumstances where the first respondent was not legally represented, it was of assistance to the court to have the benefit of submissions on behalf of the Commissioner. The grounds argued for the appellant were widely cast: that the finding that there had been an act or acts of domestic violence was unjustified, that the magistrate in making such a finding misapplied the onus of proof, that the finding that the appellant was likely to commit further acts of domestic violence was unjustified, and that the magistrate acted on irrelevant considerations in granting the order.

History

1. It is of some relevance to consider the background to the application which was before the magistrate. An application for a temporary order was made by a police officer, as is permitted under the Act, and that application was heard on 24 January 2010 when the order as made, by the same magistrate who made the order under appeal. The appellant was subsequently charged with breaching that order, which charge was heard by the same magistrate on 27 May 2010; he was convicted and placed on a good behaviour bond. In the course of the hearing on that date, the magistrate threatened to make a…