DCL v CAW; CAW v DCL

[2017] QMC 3

MAGISTRATES COURT OF QUEENSLAND

CITATION:

DCL v CAW; CAW v DCL [2017] QMC 3

PARTIES:

 DCL
(Applicant)

v

CAW
(Respondent)

And

CAW
(Applicant)

V

DCL
(Respondent

FILE NO/S:

MAG-00124817/15(3) & MAG-00122820/15(7)

DIVISION:

Magistrates Court

PROCEEDING:

Application Vary Trial Directions

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

27 April 2017

DELIVERED AT:

Rockhampton

HEARING DATE:

27 April 2017

A/MAGISTRATE:

M Morrow

ORDER:

The application is dismissed

CATCHWORDS:

Domestic Violence Applications – Trial Directions under Domestic and Family Violence Protection Rules 2014 – Application to extend filing times for affidavits – considerations for exercise of discretion

SOLICITORS:

L in person not legally represented

R Benson, Solicitor, Simonidis Steel Lawyers for W

1. There are three applications before the Court under the Domestic and Family Violence Protection Act.

1. The history is that on 17 June 2015 this Court made a Protection Order against D C L as the Respondent and C A W as the Aggrieved.

1. On 5 August 2015 this Court made a Protection Order against C A W as the Respondent and D C L as the Aggrieved.

1. So there are cross orders against each party.

1. On 1 March 2017, L filed two application to vary a domestic violence order in relation to the above Orders.

1. In relation to the order where L is the Respondent, L seeks to have that order revoked.

1. Where W is the Respondent, L seeks to extend and vary the order.

1. On 10 March 2017, W also filed application to vary the domestic violence order where W is the Respondent by having the order revoked.

1. The applications came before the Court on 10 March 2017 and all applications were set for hearing on 29 May 2017 at 9:00am and directions given including filing and serving affidavits.

1. The power to give directions is pursuant to the Domestic and Family Violence Protection Rules 2014 which governs the procedures of a court and how various matters pending before the court are handled and processed.

1. The Court may issue directions including that evidence of a person be given by affidavit, how and when the affidavit is to be filed and served, that further details of things in an affidavit be provided and that scandalous or oppressive material be removed from an affidavit: (rule 22, Domestic and Family Violence Protection Rules 2014).

1. Affidavits are used in court as evidence in chief although it should be noted that an affidavit which has been filed does not become evidence until it is read to the Court: Manson v Ponninghaus [1911] VLR 239. Efficiency, convenience and economy are the three touchstones why affidavits are used. In ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Young J said at 197: “It cannot be emphasised too greatly that one’s obligation in making an affidavit is the same as when one is giving evidence in the witness box.”

1. There are specific rules relation to affidavits –

·    Rule 35 (Domestic and Family Violence Protection Rules 2014) sets out the requirements for affidavits;

·    Rule 36 outlines…