RCK v MK[2018] QDC 181

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant appeals against the decision and protection order made by the Domestic and Family Violence Court in Cairns on 18 January 2018. The order is expressed to remain in force to, and including 18 January 2023. The appellant is the nephew of the respondent aggrieved.

2. [2]
   The parties have, in accordance with the procedure for appeals, provided detailed outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

Background

3. [3]
   By an application for a protection order filed on 24 October 2017, the respondent aggrieved relies upon two incidents as constituting emotional or psychological abuse, threatening and controlling conduct of her nephew the appellant.

4. [4]
   The first incident relied upon, allegedly, occurred on 1 November 2016, in the context of a violent assault by the appellant’s father on the respondent, the assailant’s sister. The event is described as follows, in the grounds for a protection order:

On 1 November 2016, [the respondent] was with his father … and the respondent – and watched as his father … violently assaulted the aggrieved in front of the aggrieved’ s 80 year old mother and made no attempt to stop him.

5. [5]
   After the violent assault, the appellant respondent pointed his finger at the aggrieved and made a threat to the aggrieved, saying, “You better look out, you better watch yourself”, and then ran off to his vehicle and drove off. The aggrieved asserts that she was “scared and in fear for my life”. The event is said to be witnessed by three friends, her mother, and neighbours.

6. [6]
   The second incident is alleged to have occurred in about June or July 2017, when the aggrieved and her husband were heading west along Mulgrave Road, when the respondent turned right at traffic lights on the corner of Brown Street and Mulgrave Road, Westcourt, and made a gesture, in the form of a pistol, with this left hand and pointed to the aggrieved. This event is also asserted by the aggrieved to have made her “scared and feared for my life”. That event was witnessed by her husband. The aggrieved is the respondent’s aunty and there is no dispute that a relevant family relationship exists between them.

7. [7]
   The proceeding was under active management by the court, having been mentioned on two occasions, being 9 and 16 November 2017, before the orders were made on 18 January 2018.

8. [8]
   On 9 November 2017, the matter was mentioned in conjunction with other related applications, dealing with separate respondents, including the aggrieved’ s brother and respondent’s father, being the assailant for the assault in the events alleged to have occurred on 1 November 2016.

9. [9]
   During the course of that hearing, it can be inferred that the respondent had been served with a copy of the application, by the appearance and indications given by his solicitor. In the later hearing on 16 November 2017, it is further acknowledged, by the solicitor, that further material had been received, including a variation to the application.

10. [10]
    The first hearing of the proceeding on 9 November 2017 involved argument as to whether a temporary protection order would be made against the respondent. The genesis of that implication is unclear, since the aggrieved had indicated that she did not wish to make a temporary order, in terms of the application. Nevertheless, it proceeded to argument, during the course of which the court considered the width of the allegations said to constitute the incidents of domestic violence, and the respondent’s representative properly conceded that the second incident was capable. It proved to constitute an act relevant to findings of domestic violence. The concession was to the effect that the second incident could constitute domestic violence, but the dispute was identified as whether the third limb of the test – that is, whether or not an order is necessary or desirable – would be satisfied.

11. [11]
    In that context, her Honour made the remark that:^[1]

”Yes, so with respect of [the respondent], I’m satisfied on the material there may be an act of domestic violence which is the threat and in the form of a pistol, but I do connote that happened in June or July of 2017. The main antagonist in these appears to be the aggrieved’s brother. I’ve already made orders with respect to him. At this point I don’t consider temporary orders are necessary in the matter of [the respondent]. I’m going to remand the matters to the 16^th of November for mention and [the aggrieved brothers] matter will go to the 16^th of November as well and the temporary order will continue for that matter. Hopefully, we can get some resolution. Is there appeals constituted in these matters?  You said – are they not heard yet?”

12. [12]
    Her Honour later remarked in relation to the unresolved appeal, which, having regard to the tenure of that hearing, was acknowledged by all parties as a relevant consideration in the further management of this proceeding. The appeal spoken of was the appeal surrounding the conduct of the assailant in the assault, being the aggrieved’s brother, mentioned in the first incident.

13. [13]
    The matter next came before the court, as intended, for mention and further management on 16 November 2017. Again, cognisant of the pending appeal for the related proceeding, the matter was set for further mention on 18 January 2018. Her Honour indicated that she would be assisted by seeing the transcript of those related proceedings. During the course of that hearing Her Honour seemed to narrow the scope of the proceedings as to the relevant incidents of domestic violence when she said:^[2]

This one – there was one single incident capable of being an act of domestic violence and – but I’ve heard – I did not make a temporary order in the circumstances given the nature of the offence. Is [the aggrieved] seeking to continue with that application? 

14. [14]
    The representative of the aggrieved responded this way:^[3]

She is, your Honour. Your Honour – sorry. I have had a brief look at the application. There would be on [the aggrieved’s evidence] two acts that could constitute domestic violence and accepted by the court. One being the threats made on the alleged assault on my client…and then.

15. [15]
    The full explanation attempted to be given by the aggrieved’s representative seemed to have been disrupted by Her Honour’s proper concern as to the state of the criminal proceedings and related incidents arising out of the first incident. Nevertheless it was clear at that stage that although her Honour had reached a preliminary view of some scope, it was a matter that the aggrieved still considered was live and arguable for the purposes of the hearing and final orders in due course.

16. [16]
    That hearing did not involve any detailed consideration of submissions made by the representative of the aggrieved about the substantive issues and merits of the application. The representative on that occasion was different to the representative on the earlier occasion. At the earlier mention before the court, the aggrieved was effectively represented in the usual way by a police prosecutor.

17. [17]
    In the result, Her Honour decided to list the matter for further mention and management on the 18 January,^[4] having made these remarks, at page 6, line 22. After the following exchange between her Honour and the parties, as follows:^[5]

MR MELLICK: I am happy for the matter to be listed. The only other alternative, your Honour, is perhaps adjourn for mention to the same date in mid-January and await the outcome of the – I mean, I appreciate it’s a separate matter, but…

BENCH: They’re intertwined.

MR MELLICK: …they’re intertwined, your Honour, and…

BENCH: Okay. All right. What do you want me to do…

MR MELLICK: …this family’s been at war enough.

BENCH: I’m happy to…

MS HOWARD: I’ll just take some instructions.

BENCH: …not list it now, wait till the appeal, and perhaps that may alleviate some of her concerns if – either way.

MS OZENPIKE: If she wished to continue, that would be appropriate then, your Honour.

BENCH: Yes, and then we can see the outcome of the appeal. So I’ll just remand that without an order to the 18th of January, and obviously, at that point, if the matters are not resolved either way, then I’ll list everything for hearing.

18. [18]
    Accordingly, the matter returned to the court on 18 January 2018. The notice of adjournment addressed to the respondent personally identified the time of the hearing for that date as 9 am. It is not clear whether his solicitor also received notice of that adjournment, having appeared twice before in the preceding two mentions.

19. [19]
    It seems the matter finally came before the court at 12.41 pm on the 18 January 2018. During the course of the hearing, estimated to be about nine minutes, having regard to the transcript, the Magistrate’s clerk indicated to the court that there were no persons present for the respondent, having “stepped outside”, apparently to call for their appearance on at least and maybe three occasions in that period. The aggrieved was represented on this occasion by a third and different representative to the representatives at the earlier court mentions. The aggrieved’s appearance was excused on the basis of an email sent to the court on 16 January 2018 at 10:33 am, a copy of which was on the file and in these terms:

My name is [the aggrieved] and I have two applications being mentioned on Thursday 18 January 2018 in the DVO court.

Due to my work commitments, I will be unable to attend court on this date.

I have given my instructions to the duty lawyer to act on my behalf on the day.

20. [20]
    The email evidences the aggrieved’s understanding, as is obvious from the previous hearings, that the matter would be “mentioned”. And in the circumstances, her excusal from appearance is unremarkable. She was represented on that date. The representative of the aggrieved indicated:^[6]

Your Honour, what I’m seeking today depends on the appearance of the respondents at court.

21. [21]
    The learned magistrate, as did the representative of the aggrieved, acknowledged that the respondent’s solicitor, Mr Mellick, represented him in the proceeding. But it seems that no one attempted to contact the respondent’s representative in the circumstances and in the timing that the matter had finally reached court on that date.

22. [22]
    It was also acknowledged by the representative of the aggrieved that the appeal, which had taken some considerable time in earlier mentions, had not yet been decided since the District Court had reserved its decision and had not pronounced any judgment or orders in the result. Notwithstanding the absence of the legal practitioner who had, in the past, appeared and been involved in substantial argument before the court on previous mentions, the aggrieved’s representative asserted that the respondent would be aware of the proceedings and had an opportunity to attend and, in the circumstances, invited the court, “If your Honour is minded, we’d just seek final orders to finalise the matter.”^[7]

23. [23]
    The magistrate seemed, at that point, to be a little confused as to what was being sought and whether or not it was an order in terms of the temporary order made for the other respondent, the assailant in respect of the first incident, and the aggrieved’s representative adopted that course.

24. [24]
    Very little was added in respect of the circumstances of the allegations but some effort was made to distinguish the matters involving the respondent as follows:^[8]

MS MEOLI: Yes, that’s so, your Honour. And it was – as I said, the application of the allegations against …., the brother, are quite extensive and it sort of culminates in this attack of my client for which he was charged and convicted, but he is appealing that, so the application against the nephew relies on different allegations but…the essence of my client’s application is [the respondent] was present when the assault took place and encouraged his father, and then at a later date  just prior to this being filed my client has passed him in traffic. He’s realised it’s her and he’s made a shape of a gun out of his fingers and pointed it at her which she found very disturbing.

25. [25]
    Now, this was the first time that the aggrieved had alleged that the respondent was both present and, “encouraged his father,” in the assault in respect of the first incident on 1 November 2016. In the form submitted, it elevated and changed what was previously, and remained, the pleaded allegation that the respondent, “watched,” and “made no attempt to stop him.”^[9]

26. [26]
    The extra background and facts relied upon in that application, for various considerations of the court, were largely in repetitive and identical terms, casting aspersions upon the respondent by making broad allegations about his family and conduct which was not otherwise particularised. For example:

The respondent has made abusive comments and threats to the aggrieved due to this [the finding of guilt of the aggrieved’s brother] and is seeking to get back at the aggrieved.

Due to the respondent’s immediate family continuing to make threats and intimidate the aggrieved …

The respondent is known for fabricating stories within the family and the aggrieved believes that he will not hesitate in doing so, in retribution against the aggrieved.

3. (3)
   Due to the large and violent nature of the family of the respondent, the aggrieved will be living in constant fear that her safety and life, and that of her 12 year old daughter, will be in danger …

4. (4)
   The respondent’s family have weapons and access to weapons and the aggrieved believes that due to the vicious nature of the family, would not hesitate to use them to either intimidate or threaten the life of the aggrieved and her 12 year old daughter.

27. [27]
    After hearing some short submissions as to the width of the order and the embellished facts relied upon, Her Honour made orders in terms of the protection order, subject of this appeal, with the following short reasons, in support of that course:^[10]

Having regard to the matters that have been outlined by Ms Ozampike, who appears for the aggrieved, and having regard to the terms of the order made in the matter of the aggrieved and [the aggrieved’s brother], I’m going to make an order for a protection order in that – in the file of [the respondent] the – being the respondent, in identical terms to that which is made in the file where [the aggrieved’s brother], is the respondent. It will operate for a period of five years from today.

Mode of appeal

28. [28]
    This appeal is brought, pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (‘the Act’).^[11]In accordance with s 161 (1),^[12]the appeal must be decided on the evidence and proceedings before the court below. That court was not bound by the rules of evidence, or any practices or procedures applying to courts of record, and could inform itself in any form it considers appropriate.^[13]

29. [29]
    Discretion is reposed in this appellate court to order that the appeal be heard afresh in whole or in part.^[14]It seems to me that this discretion may be invoked if the appellant demonstrates legal, factual or discretionary error of the learned magistrate below. In that way, the appeal would not be considered as a trial anew, to consider, as if presented for the first time, the arguments advanced, and this court would not interfere with the protection order made in the exercise of discretion, unless it is officiated by an error of principle – there has been a failure to appreciate a salient feature, or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the court’s discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.^[15]

30. [30]
    Section 169 of the Act provides for the powers of this court,^[16]in deciding an appeal, in that the court may:

1. confirm the decision appealed against; or

2. vary the decision appealed against; or

3. set aside the decision and substitute another decision; or

4. set aside the decision appealed against and remit the matter to the court that made the decision.

Grounds of Appeal

31. [31]
    The appellant’s grounds of appeal, drawn from the notice of appeal, can be set out as follows.

1. The learned magistrate erred on 18 January 2018 in making a final order against the defendant pursuant to section 39 (2) (a) of the Act.^[17]

2. The learned magistrate erred in not adjourning the application pursuant to section 39 (2) (b) of the Act;^[18] and

3. On the evidence available, the learned magistrate in finding that;

1. (a)
   there was sufficient evidence to justify that domestic violence had been committed by the defendant to the complainant; or

2. (b)
   that a domestic violence order was either necessary or desirable.

Whether Final Orders Ought To Have Been Made or an Adjournment Ordered

32. [32]
    Having established by the clerk’s call for the respondent that there was no appearance on behalf of the respondent Her Honour proceeded to hear the application in the absence of the respondent, apparently, pursuant to section 39 of the Act which provides as follows:^[19]

“39 Hearing of application – non-appearance of respondent.

1. This section applies if a respondent fails to appear before the court. That is, to hear and decide and application for a protection order and the court is satisfied that the respondent has been served with a copy of the application.

2. The court may –

1. (a)
   hear and decide the application in the absence of the respondent; or

2. (b)
   adjourn the application, whether or not it makes a temporary protection order under division 2; or

3. (c)
   subject to section 156 (1), order the issue of a warrant for the respondent to be taken into custody by a police officer and brought before the court.”

33. [33]
    Although not expressly indicated the learned magistrate was inferentially satisfied that the respondent had been served with a copy of the application by her reference to earlier appearances by the respondent’s solicitor. On those occasions the solicitor had acknowledged receipt of applications, including variations (perhaps related to other respondents) but nevertheless indicative of notice of the hearing. Indeed, the solicitor was present when the further mention date was set in the way that it was described above.

34. [34]
    The Domestic and Family Violence Protection Rules 2014 (Qld) provide no express guidance as to the relevant considerations in deciding whether to hear and decide the application or adjourn the application or issue a warrant in these circumstances. Rule 31 deals with the particular circumstances where the court is aware the respondent is a person with, “impaired capacity.”^[20]That does not apply here.

35. [35]
    In circumstances where a hearing does proceed it is permissible for a party to a proceeding to appear represented by a lawyer (or in person) by virtue of s 146 and pursuant to s 145 (3):^[21]

“…it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order.”

36. [36]
    Therefore, the absence of the aggrieved was not a matter which would have or could have prevented the learned magistrate from proceeding to hearing. The question, though, is whether the respondent, in the circumstances of this case, was denied the opportunity to be heard by the application proceeding in circumstances where it had been previously set for mention only.

37. [37]
    In BLJ v QLB & Another,^[22]Her Honour Judge Rosengren considered circumstances where the matter proceeded to hearing in the absence of one respondent, who was unrepresented and did not appear. Her Honour referred to the relevant authorities in that context to decide whether the appellant was denied procedural fairness where she states:^[23]

[31]  As to the nature of a fair trial, in National Companies and Securities Commission v The News Corporation Limited^[24], Gibbs CJ explained that:

“The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.”

32. [32]
    In Allesch v Maunz,^[25]Gaudron, McHugh, Gummow and Hayne JJ, referring to the earlier decision of the High Court in Taylor v Taylor,^[26]said:

“A Court will ordinarily be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. Such an injustice will often be capable of remedy by the imposition of terms as to costs.”

33. [33]
    As to the principle to afford a hearing, Kirby J said at [35]:

“It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.” [footnotes omitted]

34. [34]
    Kirby J went on to address the criteria for setting aside a judicial order made in default of appearance of a party in the following way:

“…Thirdly, it is desirable, as it seems to me, to treat the considerations applicable to such decisions conceptually and to classify them as impinging upon the two criteria that have for a very long time been viewed as critical to an affirmative decision to set aside a judicial order made in default of the appearance of a party. These are:

3. (1)
   that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and

3. (2)
   that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order.” [footnotes omitted]

38. [38]
    In this case, there is no positive explanation for the absence of the respondent or his solicitor, although the notice by the court identifying the date and time was addressed to the respondent personally. His solicitor was well aware of the date and time for hearing by virtue of attending at the last hearing. The only rational inference is that the nonappearance of the respondent’s solicitor was a mere oversight.

39. [39]
    However, there are features of this case which ought to have, in my respectful view, been taken into account by the learned magistrate in deciding whether to proceed to hearing or adjourn the matter to a further date for hearing with notice to the respondent (and/or his solicitor).

40. [40]
    In particular:

1. The proceeding was subject to active management by the court, along with other related proceedings brought in a similar vein by the aggrieved, including particularly the matter involving her brother in the circumstances of the first incident relied upon.

2. The first incident was the subject of criminal proceedings and a subsequent appeal, which by the time of 18 January 2018 had been heard but not yet determined by the appellate Judge.

3. It was common ground at the earlier mentions of the matter and a matter of concern to the learned magistrate that those cognate proceedings be finalised before the final hearing being set in this proceeding involving the respondent; and it was acknowledged by the aggrieved’ s representative that that prerequisite had not been met as at 18 January 2018.

4. Notwithstanding the time that had elapsed from the time set for hearing at 9 am until the commencement of the hearing of the mention before the learned Magistrate at 12.41 pm or, indeed, up until the time of decision nine minutes later at 12.50 pm, there seems to have been no courteous attempt by the representative of the aggrieved to contact the solicitor for the respondent. This is all the more significant given that that representative sought to change the course of the prospective hearing from one of a mention to seeking final orders.

5. All of the parties, including their representatives, well knew that the proceeding was only set for mention and was unlikely to be finally determined until the resolution of the cognate proceedings.

6. The state of the evidence supporting the grounds for protection and related matters were the subject of express dispute, as identified in the previous hearings in the management of the matter and remained in the form contained in the application for protection order.

41. [41]
    In those circumstances, it seems to me that the learned magistrate did not take into account material considerations in exercising the discretion as to whether to proceed to hearing or grant an adjournment. And, therefore, misdirected herself in proceeding to hearing and making the final orders, which result, in my respectful view, as being unreasonable and unjust and the result of a failure to properly exercise the discretion.

42. [42]
    Consequently, in my respectful view, the appeal ought be allowed. The orders of the of the Domestic Violence Court made on 18 January 2018 ought be set aside and the matter returned to be heard according to law.

Protection of the aggrieved

43. [43]
    Having reached the conclusion that I have, it is unnecessary to consider the third ground of appeal as to the sufficiency of the evidence to justify the making of the protection order, including evidence supporting a finding of whether the making of the order was either necessary or desirable.

44. [44]
    However, I think it appropriate that I make some observations in the circumstances. Section 145 of the Act provides as follows:^[27]

“145  Evidence

1. In a proceeding under this Act, a court –

1. (a)
   Is not bound by the rules of the evidence, or any practices or procedures applying to Courts of record;

2. (b)
   May inform itself in any way if it considers appropriate.

2. If the court is to be satisfied of the matter the court need only be satisfied of the matter on the balance of probabilities.

3. To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order.”

45. [45]
    I examined the relevant standard of proof in these cases in the matter of ADH and LAH v the Commissioner of Police^[28][2017] QDC 103. In that decision I maintained the view that the court ought have all pertinent information to fulfil the purpose of the proceeding reflected in the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.^[29] Although not bound by the rules of evidence, it is well settled that the court’s decision must arrive from relevant, reliable and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue. It is not enough to suspect or speculate that something might have occurred. Further, the seriousness of the allegations and the gravity of the consequences of the proceedings in a protection order being imposed also warrants the considerations drawn from Briginshaw v Briginshaw.^[30]That is, the seriousness of the allegations in the case and the gravity of their consequences warrant that a higher degree of certainty be satisfied on the balance of probabilities.

46. [46]
    In this case, the allegations and evidential basis of the orders sought are set out in the application for protection order filed on 24 October 2017. Those matters tend to indicate some conduct capable of amounting to domestic violence in terms of the incidents described on 1 November 2016 and June, July 2017. But the surrounding circumstances and any other relevant considerations are at least vague and uncertain or, for the most part, absent from that material.

47. [47]
    Heavy reliance seems to be made on the association of the respondent’s conduct and that of his father (the aggrieved’s brother) on 1 November 2016, as well as other assertions made about his family. It seems to me that those matters are in the category of suspicion or speculation in the absence of further evidence forming a proper basis for the assertions, although doubt remains as to their probative relevance, in any event.

48. [48]
    As was identified by the parties at the earlier mentions of the proceeding, the matters the subject of dispute between the parties ought be subject of a hearing and such a hearing ought be proceeded with the usual directions as to the evidence to be adduced at the hearing in the usual way.

49. [49]
    Having proceeded in reliance upon the submissions made by the aggrieved’s advocate (although mistakenly identified as the advocate of an earlier occasion), it seems to me that the evidence falls well short of what would be sufficient evidence to justify the making of a protection order. Further, the conflation of the circumstances involving the respondent with those of the proceedings and orders involving the aggrieved and her brother (the respondent’s father), as encouraged by the representative of the aggrieved improper elevating the seriousness of those matters, seems to have resulted in considerations of irrelevant matters which have guided or affected the learned magistrate with the result, in my respectful view, Her Honour leading to error in the exercise of the sentencing discretion.

50. [50]
    However, these matters ought be the subject of a full and managed hearing and decided in due course by the court at first instance.

Costs

51. [51]
    Section 157 of the Act provides that each party to a proceeding where an application under this Act is heard must bear their own cost.^[31]However, subsection (2) empowers the court to award costs against a party who makes an application that was dismissed on grounds that it was malicious, deliberately false, frivolous or vexatious.

52. [52]
    In my view, the provision is limited to the primary proceeding and not the appeal proceeding. The appeal provisions in the Act are silent about costs and therefore the cost provisions in chapter 17A of the Uniform Civil Procedure Rules 1999 (Qld) are made applicable by section 142 of the Act.^[32]Further, s 15 of the Civil Proceedings Act 2011 (Qld) empowers a court to award costs in all proceedings unless otherwise provided.

53. [53]
    The appellant was ultimately successful in the appeal. The reasons that I have set out above expose, in my view, how it is the matter came to a contested appeal. Although the merits of the appeal turned upon matters of procedure, their genesis was the absence of an appearance on behalf of the respondent coupled with the aggrieved’s representative urging the court to take the course that it did. It seems to me that each party is responsible for the evolvement of the proceedings and it is difficult to identify which aspect of their conduct was particularly causative of the matters leading to the appeal so as to warrant a compensatory cost order in favour of one party or the other. In the circumstances here it seems to me that it would be inequitable for the respondent aggrieved to bear the financial burden of the appellant’s successful recourse to this court. For the reasons which I have otherwise set out above. The parties have conducted themselves appropriately in the appeal. The matters the subject of dispute were open for argument and involved matters of consideration both of fact and law.

54. [54]
    In the circumstances I will order that each party ought bear their own costs in the appeal.

Order

55. [55]
    For these reasons, I make the following orders:

1. Appeal allowed;

2. The protection order made by the Domestic Violence Court on 18 January 2018 is set aside;

3. The proceeding is remitted to the Domestic Violence Court to be heard and determined according to law; and

4. Each party will bear their own costs in the appeal.

Judge DP Morzone QC