AAA v BBB

[2023] VCC 1686

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

APPEALS AND POST SENTENCE APPLICATION LIST

Case No.  AP-20-1534

AAA	Appellant
v
BBB	Respondent

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JUDGE:	HER HONOUR JUDGE TSIKARIS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2023
DATE OF JUDGMENT:	20 September 2023
CASE MAY BE CITED AS:	AAA v BBB
MEDIUM NEUTRAL CITATION:	[2023] VCC 1686

REASONS FOR JUDGMENT
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Subject:Interlocutory 

Catchwords:              Practice and Procedure – Family Violence Intervention Order (FVIO) proceedings – Family Violence Protection Act 2008 (Vic) (‘FVP Act’) – Protective purposes of the legislation – Magistrates’ Court (Family Violence Protection) Rules 2018 (Vic) (‘FVP Rules’) – FVP Rules, rr 15.03 and 15.04 – Rules provide a statutory basis for substitution of applicant  

Legislation Cited:      Family Violence Protection Act 2008 (Vic), Magistrates’ Court (Family Violence Protection) Rules 2018 (Vic), County Court Civil Procedure Rules 2018

Cases Cited:             AAA (a pseudonym) v County Court of Victoria & Ors [2023] VSC 13; NBT (a pseudonym) v Magistrates’ Court of Victoria & Ors [2023] VSC 461; OP v XY [2020] VSC 754

Judgment:                  Application refused

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Cenacchi	Michael Benjamin & Associates
For the Respondent	Ms S Dodds (Solicitor Advocate)	Victoria Police

HER HONOUR:

Introduction

1This is an application brought by the respondent Victoria Police to withdraw from the proceeding or be excused from further participation in the Appeal against the granting of an extension to a Family Violence Intervention Order (“FVIO”) against the Appellant in Case Number F11731231.

Background

2The FVIO was originally applied for by Victoria Police on behalf of the Affected Family Member (“AFM”) and on 4 December 2020 the Magistrates’ Court extended a FVIO against the applicant in respect of the AFM and the AFM’s daughter for an indefinite period.

3The appellant appealed the orders to the County Court pursuant to s199(2) of the Family Violence Protection Act 2008 (Vic) (“the Act”).

4A Judge of this Court granted the appeal on 26 August 2021 in respect of the FVIO applicable to the daughter and varied the Magistrate’s order by changing the duration of the FVIO from an indefinite period to the expiration of when the daughter reaches the age of majority.

5The appellant sought judicial review of the Judge’s order.

6Victoria Police originally applied for the FIVO on behalf of the AFM but did not participate in the AFM’s application for an extension in the Magistrates’ Court. The police participated in the County Court appeal proceeding, filing an affidavit and submitted that a FVIO for a period of 12 months would be appropriate. In the Supreme Court Judicial review proceeding, Victoria Police acted as contradictor, advancing submissions supporting the relief sought by the AFM, who was self-represented.[1]

[1]        AAA v County Court Victoria & Ors [2023] VSC 13, para 11

7The appellant was successful in the judicial review and on 31 January 2023, Dixon J made the following orders:[2]

a)An order in the nature of certiorari that the order of the County Court of Victoria made 26 August 2021 is quashed.

b)An order in the nature of mandamus remitting the appeal to the County Court for reconsideration in accordance with the law as set out in these reasons.

[2]        Ibid, at para [77]

8After the appeal was remitted to this Court, it was the subject of directions hearings on 10 May 2023, 14 June 2023 and 5 July 2023. At the directions hearing on 9 August 2023, Victoria Police made an oral application to withdraw from the proceeding/be excused from further participation and filed an affidavit of Detective Leading Senior Constable Newgreen affirmed on 3 August 2023. The direction hearing was adjourned to 13 September 2023 to enable Victoria Police to file further affidavit material in support of the application. An affidavit affirmed by Detective Acting Sergeant Newgreen on 12 September 2023 was filed.

9At the directions hearing on 13 September 2023, Ms Dodds on behalf of Victoria Police sought to amend the application which was brought pursuant to Rule 9.06 of the County Court Civil Procedure Rules 2018 on the basis that it was incorrectly made pursuant to that rule. The application ought to have been made pursuant to the regulations of the Magistrates Court (Family Violence Protection) Rules 2018 (“FVP Rules”).

10I have the power to permit the amendment sought by Ms Dodds under r 15.03 of the FVP Rules.

11Ms Dodds referred the Court to the decision of OP v XY[3] in which the FVP Rules were considered by Crowcher J. He observed that the object of the FVP Rules is to make rules of procedure for proceedings in the Magistrates’ Court under the Act and r 1.07(2) provides that the FVP Rules apply, so far as applicable and with any necessary modification, to every appeal commenced under Division 9 of Part 4 of the Act on or after the commencement date.

[3] [2020] VSC 754

12In the circumstances and with no opposition from the appellant, I permitted Victoria Police to amend the oral application.

13Turning now to the question as to whether Victoria Police had ceased to be a party on 21 August 2019, I note that Exhibit MN-2 to the affidavit of Detective Acting Sergeant Newgreen affirmed on 12 September 2023, is a file note from the police file dated 2 August 2019 and corresponding email dated 5 August 2019 from the senior police lawyer Rebecca Johnston Ryan. The note refers to the outcome of the mention at the Melbourne Magistrates’ Court on 5 August 2019. The email reads as follows “Ms Hawkins would not permit Victoria Police to withdraw from the matter, stating that Victoria Police withdrawing from the matter would cause the AFM’s application to extend to also be withdrawn. Ms Hawkins stated that Victoria Police may need to “take a backseat role” in the upcoming contest which is now booked for 21- 22 August 2019”.

14Exhibit MN-1 is a copy of the file note authored by prosecutor Paul Brooks on 21 August 2019 from the police file. His handwritten note refers to a conversation with the AFM at court wherein he indicated to her that police would be withdrawing their involvement in the extension application based of the informant’s risk assessments. The note states further that “Court was advised VicPol withdrawing involvement 21/8”.

15Detective Acting Sergeant Newgreen stated in his affidavit that based on the materials he perused from the police brief, Victoria Police ceased involvement in the Magistrates Court proceeding on 21 August 2019, no longer being a party to the proceeding from that date. He further said that should the court not accept that Victoria Police ceased involvement on 21 August 2019, he maintained the application to be removed as a party.

16There was no transcript of the extension application, there were no recordings of the proceedings, no Court order nor any notes on the Magistrates’ Court file.

17I was also referred to the transcript of the judicial review application before Dixon J in which counsel for Victoria Police stated to the Court that whilst the police were the original applicants for the original FVIO, the extension application was not made by the police and the police would continue as contradictor in the judicial review application.[4]

[4]        Transcript of AAA (a pseudonym) v County Court of Victoria, 18 November 2022, page 44-45

18Based on the handwritten notes exhibited to the affidavit of Detective Acting Sergeant Newgreen I ruled that I was not satisfied that Victoria Police did in fact withdraw their involvement on 21 August 2019. The diary note of 21 August 2019 is ambiguous in that the reference to Victoria Police withdrawing is contained within the diary note summarising the conversation with the AFM. Moreover, there is no mention who the presiding Magistrate was, and the note does not contain any detail as to what transpired at Court. There was no entry on the court file nor any court order to that effect. In addition, if Victoria Police had withdrawn their involvement, that was not consistent with Victoria Police subsequently participating in the County Court appeal heard on 26 August 2021 and filing an affidavit in that proceeding.

Application to withdraw/be excused

19The Victoria Police application is supported by the appellant.

20Victoria Police submitted that they had had very limited contact with the parties for a number of years. There had been some ongoing sporadic contact with the AFM but because of perhaps “her disillusionment with the criminal justice system”, she had been reluctant to report breaches to Victoria police. Therefore, Victoria Police were in a position that they have no evidence to put before the Court to assist the Court in determining the application looking forward where the Court has to be satisfied that the AFM continues to need the protection of the FVIO.[5] Whilst the AFM had expressed in broad terms that she maintains that she wants the order to  remain in place, no particulars in that respect were available and Victoria Police were left in the position that they had no evidence that could be put before the Court to assist the Court in its determination of the application and it was unable to arrive at a position in respect of any risk to the AFM that may be ongoing.

[5]        NBT (a pseudonym) v Magistrates’ Court of Victoria [2023] VSC 461 at para [81]

21The FVIO had been discussed with the AFM, and whilst not disclosing the details of the risk assessment, Ms Dodds informed the Court that the AFM understood the limitations of the evidence that Victoria Police can rely on, and she accepted that perhaps they should not be a party as the best evidence may come from her.  

22Victoria Police also sought a direction to be excused from further appearances relying on r 15.04 of FVP Rules given the limitations of the evidence that Victoria Police can put before the court.

23Rule 15.04 provides that at any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.

24The Court has the power to permit Victoria Police to be substituted with the AFM in the proceeding and this power is grounded in r 15.03.[6]

[6]        NBT (a pseudonym) v Magistrates’ Court of Victoria & Ors [2023] VSC 461 at para [94]

25R 15.03 requires a grant of leave and explicitly requires an exercise of discretion and r 15.04 does not call for a grant of leave but does require an exercise of discretion.[7] In exercising that leave, I must give consideration to the protective purposes of the legislation and particularly the safety of the AFM. A purpose of the Act is to maximise the safety of children and adults who have experienced family violence.[8] This aim is to be achieved by among other things, providing an effective and accessible system of family violence intervention orders and family violence safety notices.[9]

[7]        Ibid, at para [72]

[8] s1 of the Act

[9] s2 of the Act

26The family violence jurisdiction is a creature of statute and has some jurisdiction specific features which have their genesis in the policy response to the societal scourge of family violence. The policy behind empowering Victoria Police to bring an application is to place a recognised independent authority between the parties where there is very often a power imbalance and in circumstances where there may be a lack of emotional strength to bring an application or have concerns for the court process. “It is the protective nature of the legislation which underpins and informs the role of a police officer as applicant”[10].

[10]        NBT (a pseudonym) v Magistrates’ Court of Victoria & Ors [2023] VSC 461 at para [26]

27Although from a practical point of view, Victoria Police may not presently have the information or evidence in its possession to be confident that a final order will be successful and the AFM may be the most direct source of the evidence, I am of the view that to permit Victoria Police to withdraw as a party would not be consistent with the purpose of the Act.

28The AFM is a party to the proceeding and has the same rights and responsibilities under the FVP Act as any other party. The AFM can have an active role in the proceeding whilst Victoria Police remain as a party.

29Victoria Police initiated the intervention order and given that the AFM has expressed a need for the ongoing protection of an FVIO, it is not in my view consistent with the aims and purposes of the Act to permit them to withdraw as a party.

30I note from Detective Acting Sergeant Newgreen’s affidavit affirmed on 12. September 2023, that although the AFM has not disclosed any recent contraventions of the FVIO and has not provided any further reports, she wishes the intervention order to remain in place. I also note from his earlier affidavit affirmed 3 August 2023 that there were two reports to police by the AFM and there was a further report made to police on 5 May 2023 by a third party which the AFM did not want investigated. The AFM, in Ms Dodds words, is disillusioned with the process and has been reluctant to report breaches and permit investigations by Victoria Police. However, she maintains she needs the protection that can be afforded by a FVIO. In my view, it is precisely in this type of case that Victoria Police should remain as a party, especially as the AFM remains unrepresented in contrast to the appellant. Whether Victoria Police take an active role or a “backseat” in the approach and conduct of the appeal does not detract from the need for Victoria Police to remain as a party.[11]

[11]        NBT (a pseudonym) v Magistrates’ Court of Victoria & Ors [2023] VSC 461 at para [79]

31In circumstances where Victoria Police have a role as an independent party and given the protective nature of the legislation, the purposes of the Act will not be advanced by allowing Victoria Police to withdraw as a party. Nor would they be advanced if they are excused from further attendance.

Conclusion

32I refuse to give leave to Victoria Police to withdraw as a party under Rule 15.03.

33I refuse a direction under Rule 15.04 that Victoria Police be excused from further attendances.