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Failed DFV court appeal comes at a cost

A judge has ordered a father of five to pay his estranged partner’s legal costs after mounting a second failed bid to vary conditions contained in a court-imposed domestic and family violence (DFV) protection order.

Brisbane District Court Judge Ian Dearden on Friday dismissed an appeal by the father, identifiable only as JKL, to overturn a Gympie magistrate’s decision on 14 October 2021 to refuse to vary conditions made in a DFV protection order made almost two years earlier.

The father, a self-represented litigant, argued the order was “destroying” him and causing his children to grow up without a father.

JKL also submitted he was being discriminated against because his former partner, known only as DBA, received publicly-funded legal assistance to obtain the DFV protection order, while he had been denied the same benefit of legal aid.

Judge Dearden, in a five-page written decision, said DBA was granted a final protection order for herself and the couple’s five children in the Gympie Magistrates Court on 20 November 2019.

“On 18 December 2020. (JKL) filed an application to vary the protection order (in the same court),” Judge Dearden said.

“The matter was heard in … the Gympie Magistrates Court on 29 September 2021 … (and) on 14 October the presiding magistrate … dismissed the application and ordered (JKL) pay (DBA’s) costs in the amount of $500.”

On 9 November 2021, JKL lodged an appeal against the magistrate’s decision in the District Court.

Judge Dearden said JKL, in his written appeal submissions, had “substantially re-agitated” the arguments presented at various previous hearings and appeals pertaining to the protection order.

“In essence, (JKL) submits that he feared for his safety and wellbeing; that the application was not frivolous; that the learned acting magistrate failed to realise that the protection order was destroying (him) and causing his children to grow up without their father; that Legal Aid was discriminating against him by funding the respondent and not him,” he said.

“(JKL also asserted) that (DBA) was using the instruments of the State to gain an advantage … (and) that (he) had funded (DBA) to come to Australia and had funded her support … and that (his) rights as a father had been violated ‘based on lies’.”

On 13 June 2022, Judge Dearden dismissed JKL’s appeal after a hearing in the Gympie District Court, and adjourned the matter for consideration of awarding costs.

In awarding DBA costs, Judge Dearden on Friday said: “With respect, none of the matters identified in (JKL’s) written submissions would justify this court, on this appeal, departing from the general rule that the successful party was entitled to its costs.

“As (DBA) submits, there is no public interest aspect to this appeal, nor were there any novel issues of law, and (JKL) was wholly unsuccessful.

“Further, (JKL) submits, and I accept, that it is not relevant that (DBA) cannot, as he asserts in his written submissions, pay (her) costs. It follows that the appellant should pay the respondent’s costs of the appeal.”

Read the decision.

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