TJA v TJF - [2014] QDC 244

DISTRICT COURT OF QUEENSLAND

CITATION:

TJA v TJF [2014] QDC 244

PARTIES:

TJA
(appellant)

v

TJF
(respondent)

FILE NO/S:

709/14

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

31 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2014

JUDGE:

Farr SC DCJ

ORDER:

The decision appealed against is confirmed. 1.

Appeal dismissed.2.

CATCHWORDS:

APPEAL- PROTECTION ORDER- Domestic and Family Violence Protection Act 2012 – where the magistrate accepted the evidence of the respondent – where existence of relevant relationship and past acts of domestic violence not disputed – where the magistrate’s findings were open on the evidence – where protection order is necessary or desirable to protect the aggrieved from domestic violence.

APPLICATION- FRESH EVIDENCE – where fresh evidence should only be received in exceptional circumstances – where application by respondent to adduce fresh evidence dismissed.

COUNSEL:

Mr T Kimmins for the appellant

Ms S Walker-Munro for the respondent

SOLICITORS:

Toogoods Lawyers for the appellant

Legal Aid Office (Qld) for the respondent

This is an appeal from a protection order made under the Domestic and Family Violence Protection Act 2012 (“the Act”) in the Magistrates Court at Brisbane on 3 February 2014. The appeal is brought under the provisions of s 164(a) of the Act. Pursuant to s 168(1) of the Act an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed, although the appellate court may order that the appeal be heard afresh, in whole or part.[1]
[1]Section 168(2).

Relevant legislation

Section 169 of the Act provides that the court may:

(a) confirm the decision appealed against; or

(b) vary the decision appealed against; or

(c) set aside the decision and substitute another decision; or

(d) set aside the decision appealed against and remit the matter to the court that made the decision.

The decision of the appellate court is final and conclusive.[2]
[2]Section 169(2).

Section 37 details the criteria which must be satisfied before a court may make a protection order. It states:

“37 When court may make protection order
(1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—
(a) a relevant relationship exists between the aggrieved and the respondent; and
(b) the respondent has committed domestic violence against the aggrieved; and
(c) the protection order is necessary or desirable to protect the aggrieved from domestic violence.

(2) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court—
(a) must consider the principles mentioned in section 4; and
(b) may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.

(3) If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the…

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 TJA v TJF

Details

AGLC: TJA v TJF [2014] QDC 244
Case: [2014] QDC 244
Decision Date: 31 October 2014

CaseChat Overview and Summary

In TJA v TJF, the appellant contested the validity of a protection order issued under the Domestic and Family Violence Protection Act 2012. The order was made against the appellant in favour of the respondent, TJF, who was the appellant's former partner. The dispute centred around whether the protection order was necessary and desirable to safeguard the respondent from the appellant, given the established history of domestic violence. The matter was initially decided in the Magistrates’ Court and was subsequently appealed to a higher court.

The central legal issues revolved around the interpretation and application of the Domestic and Family Violence Protection Act 2012. Specifically, the court needed to determine whether the magistrate's acceptance of the respondent's evidence, which detailed past acts of domestic violence, was justified and whether the findings were adequately supported by the evidence. Additionally, the court examined the respondent's application to present fresh evidence, which was dismissed due to the stringent criteria required for such applications.

The court found that the magistrate's decision to uphold the protection order was supported by the evidence, as the relationship between the parties and the existence of past domestic violence were not contested. The court held that the magistrate's findings were open to being made based on the evidence presented. Furthermore, the court dismissed the application to adduce fresh evidence, noting that such applications are only entertained in exceptional circumstances. Consequently, the appeal was dismissed, and the original decision was confirmed.

The court's final orders were that the decision appealed against was confirmed, and the appeal was dismissed. This outcome upheld the protection order issued against the appellant, reinforcing the importance of safeguarding victims of domestic violence under the relevant legislation.

Orders

Orders of the court

The decision appealed against is confirmed. 1.

Appeal dismissed.2.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	TJA v TJF [2014] QDC 244
PARTIES:	TJA (appellant) v TJF (respondent)
FILE NO/S:	709/14
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	31 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2014
JUDGE:	Farr SC DCJ
ORDER:	The decision appealed against is confirmed. 1. Appeal dismissed.2.
CATCHWORDS:	APPEAL- PROTECTION ORDER- Domestic and Family Violence Protection Act 2012 – where the magistrate accepted the evidence of the respondent – where existence of relevant relationship and past acts of domestic violence not disputed – where the magistrate’s findings were open on the evidence – where protection order is necessary or desirable to protect the aggrieved from domestic violence. APPLICATION- FRESH EVIDENCE – where fresh evidence should only be received in exceptional circumstances – where application by respondent to adduce fresh evidence dismissed.
COUNSEL:	Mr T Kimmins for the appellant Ms S Walker-Munro for the respondent
SOLICITORS:	Toogoods Lawyers for the appellant Legal Aid Office (Qld) for the respondent