W v. D

[2008] QDC 110

DISTRICT COURT OF QUEENSLAND

CITATION:

W v D [2008] QDC 110

PARTIES:

W

Appellant

v

D

Respondent

FILE NO:

265 of 2007

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Maroochydore

DELIVERED ON:

16 May 2008

DELIVERED AT:

Maroochydore

HEARING DATE:

23 April 2008

JUDGE:

K S Dodds, DCJ

ORDER:

The appeal is allowed.  The protection order is discharged.

CATCHWORDS:

APPEAL – Domestic and Family Violence Protection Act 1989 – whether intimidation – whether harassment – whether domestic violence like to occur again

Domestic and Family Violence Protection Act 1989 (Qld) s 65

COUNSEL:

A Sinclair for the appellant

The respondent appeared on her own behalf

SOLICITORS:

Peter J Sheehy Solicitors for the appellant

The respondent appeared on her own behalf

1. This is an appeal against the making of a protection order pursuant to the Domestic and Family Violence Protection Act1989 (Qld) (the Act). The appeal is by way of rehearing on the record.[1] 

   [1]Domestic and Family Violence Protection Act1989 (Qld) section 65.

1. On 17 May 2007 the respondent signed an application for a domestic violence order.  A temporary protection order was made on 6 June 2007.  On that date the appellant left the family home.  The temporary protection order was enlarged on a couple of occasions until the hearing commenced before a Magistrate on 27 August 2007.  The Magistrate’s decision was handed down on 18 October 2007. 

1. The application was based upon alleged domestic violence constituted by intimidation or harassment of the respondent and by indecent behaviour to her without her consent.  Pursuant to section 11 of the Act domestic violence may be:

(c) Intimidation or harassment of the other person;

(d) Indecent behaviour to the other person without consent.

The Magistrate was not prepared to find on the evidence that domestic violence by           indecent behaviour without consent was proven.  That may be put to one side.

1. The standard of proof mandated by the Act is on the balance of probabilities.[2]

   [2]Domestic and Family Violence Protection Act1989 (Qld) section 9.

1. The appellant and respondent were married in 1994.  They had a daughter in 1997, J and a son in 2001, P.  In December 2002 the respondent was diagnosed with breast cancer.  She had surgery.  From April 2003 through to probably early 2004 they undertook some marriage counselling, the arrangements being made by the respondent.   The relationship continued to deteriorate.  In 2004 sexual contact ceased.  In early 2006 the respondent moved into a spare room in the house.  By this stage the relationship can only be described as in a terminal stage.  The evidence demonstrated that no semblance of a caring relationship any longer existed between the appellant and the respondent.  They were living separately under one roof.  Both were conscious property would need to be divided as a number of the exchanges between them made clear.  Arguments and accusations about property were a frequent occurrence, involving bad language by both and in front of their children.  On any view of it, their behaviour towards…