WJM v NRH

Case [2013] QMC 12

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

WJM v NRH [2013] QMC 12

PARTIES:

WJM

(applicant)

v

NRH

(respondent )

FILE NO/S:

MAG160618/12(4)

PROCEEDING:

Application for a protection order under the Domestic and Family Violence Protection Act 2012.

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

3 May 2013

DELIVERED AT:

Southport

HEARING DATE:

8 January 2013

MAGISTRATE:

Costanzo JJ

ORDER:

Application granted.

CATCHWORDS:

FAMILY LAW - Domestic Violence ― Meaning of ‘desirable’ ― Paramount principles to be applied ― Other relevant considerations ― Holding perpetrators of domestic violence accountable ― Severity of physical violence ― Risk of further domestic violence ― Need for protection

Domestic and Family Violence Protection Act 2012 (Qld), ss 3, 4, 37, 57, 197, 198 considered

AB v Magistrates' Court at Heidelberg [2011] VSC 61

Armour v FAC [2012] QMC 22

Australian Securities and Investments Commission (ASIC) v Carey (No 3) (2006) 232 ALR 577; (2006) 57 ACSR 307; (2006) 24 ACLC 581; [2006] FCA 433

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334

Conway v Jerram, Magistrate and NSW State Coroner (2010) 78 NSWLR 371; [2010] NSWSC 371

Corporate Affairs Commission v Lone Star Exploration NL (No 2) (1988) 50 SASR 24; (1988) 14 ACLR 499; (1988) 6 ACLC 1108

Corporate Affairs Commission (NSW) v Walker (1987) 11 ACLR 884; (1987) 5 ACLC 991

Rejfek v McElroy (1965) 112 CLR 517; [1966] ALR 270

COUNSEL:

Foort (sergeant) for applicant

Sochacki (solicitor)for respondent

SOLICITORS:

Police for applicant

The Application

  1. This is a police application under the Domestic and Family Violence Protection Act 2012, seeking a protection order against NRH (the respondent) for the protection of CY (the aggrieved) from domestic violence.

    The Legislation

  1. The Domestic and Family Violence Protection Act 2012 (the Act), ss 1–2, commenced on the date of assent. The remaining provisions commenced on 17 September 2012.   The application was filed before that on 2 September 2012.  The hearing before me was on 8 January 2013.

  1. The transitional provisions in Part 10 of the Act provide:

    197 Application for protection order
    (1) This section applies to an application for a protection order under the repealed Act if, on the commencement, the application had not been finally dealt with.
    (2) The application is taken to have been made under section 32 of this Act.

198 Domestic violence committed before commencement
A court may make an order under a provision of this Act in relation to domestic violence committed before the commencement of the provision.

  1. Under s 195 ‘repealed Act’ means the Domestic and Family Violence Protection Act 1989.

  1. Therefore, as the parties were aware, this application, having been made before the commencement of the Act, while the repealed Act was still in force, must now be determined under the Act.

  1. The application is therefore deemed to be an application under sections 32(1)(c) and  to be an application ‘by a police officer under section 100(2)(a)’ which empowers a police officer to apply…

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Details
AGLC
WJM v NRH [2013] QMC 12
Case
[2013] QMC 12
Decision Date

CaseChat Overview and Summary

In the case of WJM v NRH, the Family Court of Australia was tasked with deciding whether a Domestic Violence Order should be made in favour of the applicant, WJM, against the respondent, NRH. WJM alleged that NRH had physically assaulted her, an incident that occurred in September 2012. The court was required to determine the meaning of ‘desirable’ in the context of issuing a protection order, particularly under the Domestic and Family Violence Protection Act 2012 (Qld). The paramount principles outlined in the Act, such as the safety and wellbeing of the aggrieved and the need to hold perpetrators of domestic violence accountable, were central to this decision.

The legal issues before the court included whether the evidence demonstrated that it was desirable to make a protection order and whether NRH had indeed committed acts of domestic violence against WJM. The court considered the severity of the physical violence, the risk of further domestic violence, and other relevant considerations such as the credibility of the parties and the need for protection. The evidence included affidavits from police officers, field recordings of the conversations between the police and the parties, and photographs of WJM’s injuries. WJM testified that NRH had punched her twice, causing significant injuries, while NRH claimed that WJM had assaulted him after grabbing him while he was sleeping.

The court carefully evaluated the evidence, noting the immediate impact of the incident on WJM and the potential for ongoing harm. The severity of the injuries and WJM’s immediate need for safety were pivotal in the court’s reasoning. The court found that it was desirable to make a protection order to safeguard WJM and her son from further harm. Consequently, the application for a Domestic Violence Order was granted, highlighting the court’s commitment to upholding the paramount principles of safety and accountability in cases of domestic violence.

Orders

Orders of the court

Application granted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Act is protective legislation but it is not intended to be punitive for the respondent unless, of course, he breaches a protection order after it is made. Indeed the Act, in aiming to hold the perpetrators of domestic violence accountable also aims to ensure the person is given an opportunity to change their behaviour.The evidence in this case The facts are not in dispute (see the formal admissions listed at paragraph 8 above). The applicant relied upon the affidavits by four police officers, the field recording (discussed below) and the three photos of the injuries sustained by the aggrieved. The aggrieved and respondent each gave oral evidence at the hearing. The applicant’s case arose from a complaint by the aggrieved on 2 September 2012. Police attended the home of the Aggrieved and Respondent. As evidenced in the photographs (exhibits 1, 2, and 3) the police noted blood on the bridge of the aggrieved’s nose and an abrasion and bump on the right side of her head. I have listened to the field recordings taken by Constable WJM of the conversations which then followed individually with the aggrieved and then with the respondent. While clearly very distressed, the aggrieved told police that her husband had an affair with a woman at work (his Pharmacy in Murwillumbah, NSW) and that she was the last one to know about it after a call from the woman’s husband. She described their argument and that he punched her twice, with a fist, to her head. She described it as a heavy strong punch. She said this was the first time he had assaulted her. She said the second punch was 10 times stronger and that it was so strong her head was shaking and lost her vision for a few seconds and that she hit the floor. The aggrieved said they were both highly educated and she could not believe he did this. The aggrieved told police “How can I trust him. I have No-one here (in Australia)”. When speaking about whether she felt too unsafe at the house she said anything can be possible because the respondent had not seemed like the sort of person who would have an affair while she looked after his baby. She said she needed to protect herself and her son. She questioned the police if they could get an order that he was not to come near her. Some of her fear was more immediate, having expressed a need “to make sure I am safe tomorrow”, and her fear was clearly and understandably influenced by the shock of it all and because this was the first time in the eight years of their relationship that he had become violent. The police spoke with the respondent inside the house. He said his wife found out he had an affair. They had spent the day “reconciling” and then while he was sleeping, the aggrieved came in, grabbed at him, and punched him six times. He said he responded by pushing her and that she tripped and hit her head. He was specifically asked if he punched her. He replied “No”. He said he pushed her into the wall and that is what caused the damage. He said there was no excuse for what had happened that night but that he was asleep. He said he lost his glasses too when she punched him.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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