WJ v At - [2016] QDC 211

DISTRICT COURT OF QUEENSLAND

CITATION:

WJ v AT [2016] QDC 211

PARTIES:

WJ

(appellant)

v

AT

(first respondent)

And

THE COMMISSIONER OF THE POLICE SERVICE

(second respondent)

FILE NO/S:

181/2016

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Cleveland

DELIVERED ON:

19 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2016

JUDGE:

Smith DCJA

ORDER:

1. The appeal is dismissed.

2. The order made in the Magistrates Court in this matter is confirmed.

FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – whether an order for domestic violence should have been- whether any errors by the Judicial Registrar hearing the matter – whether domestic violence occurred – whether desirable or necessary to make the order – whether children should have been named in the order

Criminal Code 1899 (Q) ss 23, 275

Domestic and Family Violence Protection Act 2012 (Q) ss 4, 8, 10, 11, 13, 14, 34, 37, 53, 54, 145, 168

AJS v KLB [2016] QDC 103

Ashley v Marinov [2007] NTCA 1

BBB v RAB [2006] QDC 80

Briginshaw v Briginshaw (1938) 60 CLR 336

CPS v CNJ [2014] QDC 47

DGS v GRS [2012] QDC 74

DMK v CAG [2016] QDC 106

Fox v Percy (2003) 214 CLR 118

GKE v EUT [2014] QDC 248

M v Gray [2010] QDC 14

MAN v MAM [2003] QDC 398

MDE v MLG [2015] QDC 151

Monis v R (2013) 249 CLR 92

Parsons v Raby [2007] QCA 98

Rounsefell v Rounsefell Judge Forno No 72 of 1993

SCJ v ELT [2011] QDC 100

Stevenson v Yasso [2006] 2 Qd R

COUNSEL:

Mr P Jeffrey for the appellant

Ms S Christie for the first respondent

Mr Broadbent for the second respondent

SOLICITORS:

Paul Clough & Co. for the applicant

Sarah Cleeland Family Lawyers for the first respondent

Legal Unit of the Queensland Police Service for the second respondent

Introduction

This is an appeal against the decision of the Magistrates Court at Cleveland on 18 December 2015, whereby the Magistrates Court made a domestic violence protection order against the appellant in favour of the first respondent and three named children. The appellant also appeals the decision of the Court to dismiss his application for an order against the first respondent.

Appeal provisions

Section 168 of the Domestic and Family Violence Protection Act 2012 (Q) (“DFVP 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.

In conducting this appeal it is appropriate to conduct a real review of the material and reasons below paying due regard to the views of the magistrate.[1]
[1]See Stevenson v Yasso [2006] 2 Qd R 150 at [36]; Parsons v Raby [2007] QCA 98 at [24] applied in SCJ v ELT [2011] QDC 100 at [24] and CPS v CNJ [2014] QDC 47 at [24].

It is noteworthy that s 145 of the DFVP…

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 WJ v At

Details

AGLC: WJ v At [2016] QDC 211
Case: [2016] QDC 211
Decision Date: 19 August 2016

CaseChat Overview and Summary

In the Family Court of Australia, the matter of WJ v At involved a dispute over a domestic violence order. WJ, the applicant, sought a domestic violence order against At, the respondent, citing incidents of domestic violence. The dispute was heard by a Judicial Registrar and subsequently appealed to the Family Court. The appeal contested the decision to grant the domestic violence order, questioning whether the Registrar had erred in his assessment of the evidence and the appropriateness of the order.

The court was required to determine if there was sufficient evidence to substantiate the applicant’s claims of domestic violence, whether the Judicial Registrar had erred in any way, and if the order was desirable or necessary for the protection of the parties and their children. The court also needed to decide whether the children should be named in the domestic violence order.

The court found that there was credible evidence to support the applicant's claims of domestic violence. The court was satisfied that the Judicial Registrar had correctly evaluated the evidence and had not made any errors in his findings. The court concluded that the making of the domestic violence order was both desirable and necessary for the protection of the applicant and the children. The court further determined that it was appropriate for the children to be named in the order due to their direct involvement and exposure to the incidents of violence.

The appeal was dismissed, and the order made by the Magistrates Court was confirmed. The decision emphasised the importance of protecting both the applicant and the children from further harm and the necessity of recognising the impact of domestic violence on family members.

Orders

Orders of the court

1. The appeal is dismissed.

2. The order made in the Magistrates Court in this matter is confirmed.

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:	WJ v AT [2016] QDC 211
PARTIES:	WJ (appellant) v AT (first respondent) And THE COMMISSIONER OF THE POLICE SERVICE (second respondent)
FILE NO/S:	181/2016
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Cleveland
DELIVERED ON:	19 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2016
JUDGE:	Smith DCJA
ORDER:	1. The appeal is dismissed. 2. The order made in the Magistrates Court in this matter is confirmed.
FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – whether an order for domestic violence should have been- whether any errors by the Judicial Registrar hearing the matter – whether domestic violence occurred – whether desirable or necessary to make the order – whether children should have been named in the order Criminal Code 1899 (Q) ss 23, 275 Domestic and Family Violence Protection Act 2012 (Q) ss 4, 8, 10, 11, 13, 14, 34, 37, 53, 54, 145, 168 AJS v KLB [2016] QDC 103 Ashley v Marinov [2007] NTCA 1 BBB v RAB [2006] QDC 80 Briginshaw v Briginshaw (1938) 60 CLR 336 CPS v CNJ [2014] QDC 47 DGS v GRS [2012] QDC 74 DMK v CAG [2016] QDC 106 Fox v Percy (2003) 214 CLR 118 GKE v EUT [2014] QDC 248 M v Gray [2010] QDC 14 MAN v MAM [2003] QDC 398 MDE v MLG [2015] QDC 151 Monis v R (2013) 249 CLR 92 Parsons v Raby [2007] QCA 98 Rounsefell v Rounsefell Judge Forno No 72 of 1993 SCJ v ELT [2011] QDC 100 Stevenson v Yasso [2006] 2 Qd R
COUNSEL:	Mr P Jeffrey for the appellant Ms S Christie for the first respondent Mr Broadbent for the second respondent
SOLICITORS:	Paul Clough & Co. for the applicant Sarah Cleeland Family Lawyers for the first respondent Legal Unit of the Queensland Police Service for the second respondent