Ashworth (a pseudonym) v Wright (a pseudonym)
[2025] VCC 774
•17 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Restricted Suitable for Publication |
| APPEALS AND POST SENTENCE APPLICATIONS LIST |
| WILLIAM ASHWORTH (A PSEUDONYM) | Appellant |
| v | |
| KIRA WRIGHT (A PSEUDONYM) | Respondent |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2025 | |
DATE OF RULING: | 17 June 2025 | |
CASE MAY BE CITED AS: | Ashworth (a pseudonym) v Wright (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 774 | |
RULING
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Subject:INTERVENTION ORDER
Catchwords: Appeal against family violence intervention order
Legal, factual or discretionary error – where appellant is self-represented litigant
Legislation Cited: Family Violence Protection Act 2008 (Vic)
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Doughty-Cowell v Kyriazis [2018] VSCA 216; Tomasevic v Travaglini [2007] 17 VR 100; Lee v Lee (2019) 266 CLR 129; Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153; Hunt v Cupples [2023] VCC 2370; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; House v The King (1936) 55 CLR 499; Roberts v Harkness (2018) 57 VR 334; Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94; Souben v Marson(Ruling) [2024] VCC 1638; Whitehead (a pseudonym) v McLaughlin (a pseudonym) [2025] VCC 257; Pettitt v Dunkley [1971] 1 NSWLR 376; Makeham v Sheppard [2020] VSCA 242; YY v ZZ & Anor [2013] VSC 743
Ruling:Appeal against final Family Violence Intervention Order made in the Magistrates’ Court at Sunshine on 2 July 2024 dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The appellant was self-represented | - |
| For the Respondent | The respondent was self-represented | - |
HER HONOUR:
Introduction
1This is an appeal brought by Mr Ashworth[1] (“the appellant”) from a decision of Magistrate Keil at the Magistrates’ Court at Sunshine granting a final Family Violence Intervention Order (“FVIO”) for the protection of the affected family member (“AFM”) (and other protected persons) on 2 July 2024.
[1] A pseudonym.
2In making his orders, Magistrate Keil relied on the application and summons for an intervention order dated 16 August 2023,[2] the application for a variation of the order dated 6 October 2023, submissions about the prior applications for a FVIO made in 2018, 2019 and 2021, and the submissions of Counsel for the AFM to satisfy himself that the order was necessary pursuant to section 74 of the Family Violence Protection Act 2008 (Vic) (“the Act”). Having considered the evidence and submissions, the FVIO was granted, expiring on 1 July 2029.
[2]Transcript (“T”) 4, Line (“L”) 13
3On 31 July 2024, pursuant to section 119(2) of the Act, the appellant filed an appeal against the decision.
4The preliminary hearing of the appeal was heard before me on 12 May 2025.
5Pursuant to the principles in AAA v County Court of Victoria & Ors,[3] the appellant was required to demonstrate a factual, legal or discretionary error in the decision of the Magistrate to enliven the appellate jurisdiction of this Court.
[3][2023] VSC 13 (“AAA”)
Background
Interim FVIO
6In her application and summons for an Intervention Order dated 16 August 2023, the AFM provided the following reasons for why an FVIO was needed:
“THE RESPONDENT IS MY EX-HUSBAND AND I HAVE KNOWN HIM FOR 17 YEARS. WE HAVE BEEN SEPARATED FOR SEVEN YEARS. WE HAVE FOUR CHILDREN TOGETHER WHO ALL LIVE WITH ME, I ALSO HAVE ANOTHER CHILD THAT LIVES WITH ME. THERE ARE NO FAMILY COURT ORDERS IN PLACE. I HAVE HAD THREE PREVIOUS INTERVENTION ORDERS AGAINST THE RESPONDENT, J11395093 (STRUCK OUT 11/12/18), K11182096 (STRUCK OUT 08/09/21), K102275B4 (WITHDRAWN 29/04/19).
ON 6 AUGUST 2023 THE RESPONDENT CAME INTO MY HOUSE WHILE I WAS ASLEEP WITHOUT MY CONSENT. THE CHILDREN LET HIM INTO THE HOUSE AS HE HAD BROUGHT SHOES FOR MY SON’S BIRTHDAY. HE HAD LATER SENT ME TEXT MESSAGES ASKING WHY I DIDN’T SEE HIM. I FELT FRIGHTENED AND UPSET THAT HE WAS IN MY HOME AND THAT HE MIGHT HAVE DONE SOMETHING TO ME WHILE HE WAS THERE.
ON 27 JULY 2023 THE RESPONDENT SENT ME TEXT MESSAGES SAYING THAT I SPENT HIS TAX REFUND LAST YEAR WITH ‘THAT GAY MAN’, HE IS REFERRING TO MY CURRENT BOYFRIEND. HE WAS FINED BY CHILD SUPPORT, AND I WAS GIVEN THE MONEY. HE WAS INSULTING ME AND BLAMING ME FOR THE FINE HE HAD RECEIVED. HE ALSO SAID TO ME THAT I HAVE ‘A BIG BUTT’ AND ?I ?M PERFECT FOR A GAY MAN ? WHICH IS INSULTING TO ME. HE SENT ME MANY OTHER TEXT MESSAGES THAT DAY WITH INSULTS, INCLUDING SAYING THAT I WASN’T A VIRGIN WHEN WE WERE MARRIED.
IN THE PAST HE HAS ABUSED ME ON SOCIAL MEDIA AS WELL AS IN MESSAGES. I HAVE BLOCKED HIM ON SOCIAL MEDIA, BUT MY FRIENDS AND FAMILY TELL ME WHAT HE IS POSTING. HE HAS POSTED PHOTOS OF ME ON FACEBOOK AND WHEN I AM AT SOCIAL OR CULTURAL EVENTS THE RESPONDENT POSTS THAT I AM ‘SHAKING MY ASS’. THIS IS OFFENSIVE TO ME. THE RESPONDENT HAS MARRIED A GIRL FROM A DIFFERENT TRIBE, AND SINCE THEY HAVE BEEN MARRIED I HAVE HAD TROUBLE WITH HER TRIBE. I HAVE BEEN ASSAULTED BY THEM AT MY WORKPLACE.
THE RESPONDENT HAS MY SON’S PASSPORT AND REFUSES TO RETURN IT TO ME. I WISH FOR THE COURT TO MAKE AN ORDER FOR HIM TO RETURN IT TO ME. THE RESPONDENT IS STALKING ME THROUGH MY KIDS’ PHONES, AND I DON’T TRUST HIM.
PEOPLE IN MY COMMUNITY ARE SCARED OF THE RESPONDENT BECAUSE OF HIS CONNECTIONS IN [COUNTRY]. I AM TOO SCARED TO GO TO [COUNTRY] TO VISIT MY FAMILY BECAUSE I DON’T THINK I WILL SAFE [SIC]. HE HAS TOLD ME THAT KILLING ME IS ONE OF THE EASIEST THINGS HE CAN DO. HE IS IN THE ARMY IN [COUNTRY] AND HAS ACCESS TO GUNS WHEN HE IS THERE.
I AM FEARFUL OF THE RESPONDENT AND I SEEK AN INTERVENTION ORDER TO PROTECT ME FROM THE RESPONDENT AND HIS ABUSE.”
Application for variation of FVIO
7On 6 October 2023, the AFM made an application to have the order varied on the following grounds:
“THE RESPONDENT HAS BEEN ABUSING ME ON SOCIAL MEDIA. I AM SEEKING FOR A CONDITION TO BE INCLUDED ON THE INTERVENTION ORDER WHERE THE RESPONDENT IS NOT TO PUBLISH ANYTHING ABOUT ME.”
Final FVIO
8The application for the final FVIO was heard before Magistrate Keil on 13 August 2024.
9When the matter was called, there was no appearance from either the appellant nor his legal representative.
10As the appellant had entered an appearance with Registry earlier in the day, this led to an exchange between the Magistrate and Counsel for the AFM regarding the whereabouts of either or both the appellant or his legal representative.
11It is clear from this exchange that Counsel for the AFM only became aware at the time the matter was called that the appellant’s solicitor was not present in Court.[4]
[4]T1, L15-17
12The Magistrate provided contact details for the solicitor on the record for the appellant, Mr Mayek, to Counsel for the AFM. This led to Mr Mayek being phoned by Counsel for the AFM. Counsel for the AFM advised the Magistrates’ Court that he had spoken Mr Mayek’s receptionist, who had advised him that Mr Mayek would be at the Magistrates’ Court by 12:00pm. Counsel for the AFM advised the Court that it was already past 12:00pm when this conversation took place. Mr Mayek’s receptionist had then sent him an email.[5]
[5]T2, L17
13Magistrate Keil noted that the matter had been booked in for a day’s hearing, and that the appellant’s legal representative had disengaged himself for part of that day when his obligation was to be at Court for the whole day.[6]
[6]T2, L9-10
14At that point, the Magistrate proceeded to hear submissions from Counsel for the AFM regarding the orders being sought and the basis for those orders.
15Counsel for the AFM went on to advise the Court that the appellant did not appear to be present in the court building. Counsel had become aware that the appellant had made himself known to Registry, however he was no longer present in the court building.[7]
[7]T4, L1-3
16It was after this exchange that the appellant was called for the third and final time.
17His Honour then proceeded to hear submissions from Counsel for the AFM, and ultimately made final orders, in the absence of the appellant or his legal representative.
18The exchange was as follows:
HIS HONOUR: “And what order are you seeking?---
MR JAMES: A full no contact order, Your Honour. Noting duration is respectfully a matter for the court my client’s seeking as long an order as the court’s willing to entertain.
HIS HONOUR: And on what basis for that time frame?---
MR JAMES: I’ll just confirm that. It’s referred to in my client’s application that she’s seeking a five year order. She will – she has fears of ongoing family violence both here and – both here in relation to her and from family members overseas, noting that the court can’t make an order to prevent any family violence overseas. However, she points to that as more or less an all-encompassing pattern of family violence that she’s been subject to at the hands of the respondent. She also notes that she feels that – she instructs anyway, she feels that this process has been continually stalled by the appellant.
HIS HONOUR: Yes.
MR JAMES: And that in itself is another form of family violence or at least - - -
HIS HONOUR: Yes. From her view, yes.
MR JAMES: Yes, Your Honour.
HIS HONOUR: Yes. And how long has this type of activity been going on for?---
MR JAMES: Since 2011. Sorry, I just wanted to confirm.
HIS HONOUR: 2011. And the order also contains the children, is that right?---
MR JAMES: Yes, Your Honour.”[8]
[8]T4, L15 – T5, L1-12
19His Honour then enquired about whether this was the first time there had been a FVIO, to which Counsel for the AFM replied that there appeared to have been previous orders. After reviewing the orders, he advised the Court that there had been applications made in 2018 and 2021 that were AFM led, one in 2019 that was police led, and a variation application that the AFM had made to the application then before the Court regarding social media.
20Following this exchange, the Magistrate made the final FVIO sought for a duration of five years.
21The Magistrate went on to say as follows:
“I expect the other side to turn up at any stage now and that would be a real nuisance but they have an appeal process to do so if they so – but that’s up to yourself, Mr James. If they turn up now we can perhaps deal with the issue or not but they should be here, both sides. That’s the respondent and the respondent’s lawyer. Both are absent unfortunately. So that’s why they’ve been made in their absence. But given what’s been said I’m quite comfortable with the fact that the order is there to protect your client.”[9]
[9]T7, L9-18
Appeal by rehearing
22Pursuant to section 119 of the Act, the appeal is to be conducted by way of rehearing. On rehearing, this Court may confirm, set aside or vary the Magistrate’s decision and exercise any other powers that the Magistrates’ Court may have exercised.[10]
[10]Family Violence Protection Act 2008, s119(2)(a)-(c) (‘the Act’)
23To enliven the jurisdiction of this Court, appellant must first demonstrate that the Magistrate made a factual, legal or discretionary error.
24For reasons explained in this ruling, I find that the appellant has not made out any of his grounds of appeal. Therefore the jurisdiction of this Court has not been enlivened and the appeal is dismissed.
Appeal grounds
25The appellant filed two “Form A: Statement of grounds of appeal” documents.
26The first of these was dated 9 October 2024 and was completed by hand by the appellant.
27The second document was dated 13 December 2024 and was completed by Ajak & Associates Lawyers, who were initially engaged by the appellant for this appeal but ceased acting ahead of the preliminary hearing.
28There were some variations in expression, but not of substance, between the two documents. Reading both documents together, and being mindful of the requirement to ensure that a self-represented litigant is provided with a reasonable opportunity to present their case,[11] I have characterised the grounds of appeal as follows:
(a) Ground 1: Failure to provide procedural fairness by proceeding to make a final FVIO in the appellant’s absence (legal error).
(b) Ground 2: Failure to provide adequate reasons in relation to the making of the order (legal error).
(c) Ground 3: The Magistrate erred in the exercise of his discretion regarding the duration of the order, and the duration of the order was manifestly excessive (discretionary error).
[11]Doughty-Cowell v Kyriazis [2018] VSCA 216 at paragraph [63]; Tomasevic v Travaglini (2007) 17 VR 100 at paragraph [136]
29During oral submissions, the appellant relied on an additional ground as follows:
(a) Ground 4: The Magistrate erred in relying on submissions made by Counsel that orders had been made in prior applications pursuant to the Act when they had not (factual error).
30While the AFM did not have an opportunity to respond to the additional ground of appeal, I have concluded that was not material for the reasons set out below. Additionally, the AFM consented to not providing a response at the preliminary hearing of this matter.
Appellant’s submissions
31In support of his grounds of appeal, the appellant submitted that:
(a) Ground 1: He had entered an appearance at the IVO Registry counter at the Sunshine Magistrates’ Court at 9:00am, and had been present in Court until midday when he left to print his response to the AFM’s further and better particulars at his lawyer’s instruction. The Magistrate could have stood the matter down until 2:00pm to allow the appellant or the appellant’s representative to make an appearance.
(b) Ground 2: The Magistrate proceeded to make the final FVIO based on what had been said at the hearing and that he was quite comfortable with the fact that the order was there to protect the AFM. The Magistrate ought to have considered other evidence before making the order.
(c) Ground 3: The Magistrate did not provide reasons about why the final FVIO had been made for a five-year duration.
(d) Ground 4: There had not been any FVIOs made pursuant to the Act arising from the prior applications, as the three applications referred to had been struck out or dismissed.
Respondent’s submissions
32The AFM confirmed that the matter had proceeded on the day of the hearing after the appellant had been called to the Court.
33She otherwise disputed the grounds of appeal and the submissions made by the appellant.
Factual error
34The relevant legal principle applicable to factual error is found in the High Court case of Lee v Lee.[12] In that case, the majority of the Court said:
“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”. … .”[13]
(Footnotes omitted.)
[12](2019) 266 CLR 129
[13]Ibid at paragraph [55]
Legal error
35A legal error may result from the way in which a court –
“… undertakes its fact-finding, or … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning.”[14]
[14]Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at paragraph [23]
36A failure to afford a party procedural fairness will involve legal error if that failure could have materially affected the decision of the court.[15]
[15]Hunt v Cupples [2023] VCC 2370 at paragraph [39]
37As explained by Kiefel CJ, Keane and Gleeson JJ in Nathanson v Minister for Home Affairs:[16]
“There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration…a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case…[the Court] does not require demonstration of how that party might have taken advantage of that lost opportunity…To the contrary…[the Court] proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.”[17]
[16](2022) 276 CLR 80
[17]Ibid at paragraph [33]
Discretionary error
38Where the evidence identifies an error made by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
39The relevant legal principle application for discretionary error is found in the High Court case of House v The King.[18] In that case, the majority of the Court stated:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate Court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground the substantial wrong has in fact occurred.”[19]
[18](1936) 55 CLR 499
[19]Ibid at 504-505
Unrepresented litigants and the right to a fair hearing
40Procedural fairness, and the correlative right to a fair hearing,[20] requires that all parties are given a reasonable opportunity to:
(a) present their case and advance submissions in support; and
(b) know the case to be advanced by the opposing party and make submissions in opposition to that case. [21]
[20]Roberts v Harkness (2018) 57 VR 334 at paragraph [46]
[21]Doughty-Cowell v Kyriazis (supra) at paragraph [63], cited in Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94 at paragraph [67]; see also Roberts v Harkness (supra) at paragraphs [46]-[57] and Souben v Marson(Ruling) [2024] VCC 1638 at paragraphs [55]-[56]
41In determining whether a party was afforded procedural fairness, the question to be asked is “whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case”.[22]
[22]Doughty-Cowell v Kyriazis (supra) at paragraph [63]
42For this purpose, what is considered “reasonable” will depend on the circumstances of the case.[23] Matters to be taken into account in determining what fairness requires in a case include:
(a) the nature of the decision to be made;
(b) the nature and complexity of the issues in dispute;
(c) the nature and complexity of the submissions each party wishes to advance;
(d) the significance to the party of the decision; and
(e) the competing demands on the time and resources of the court or tribunal.[24]
[23]Roberts v Harkness (supra) at paragraph [49]
[24]Ibid; Doughty-Cowell v Kyriazis (supra) at paragraph [63]
43The key difference where a party is unrepresented is that the court must first assess the capability of the unrepresented person to formulate and communicate the case they wish to present.[25] Where a party is unrepresented, the question to be asked is “what is (or was) required to give the unrepresented person a reasonable opportunity to advance his/her own case and to be informed of and respond to the opposing case?”[26]
[25]Roberts v Harkness (supra) at paragraph [54]
[26]Roberts v Harkness (supra) at paragraph [53]
44In Tomasevic v Travaglini,[27] Bell J summarised a judge’s obligation to provide a fair hearing to unrepresented litigants as follows:
“Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. … .”[28]
[27][2007] 17 VR 100
[28]Ibid at paragraphs [140]-[141]
Relevant provisions
45The provisions of the Act relevant to the appeal are set out below.
46Section 1 provides:
“Purpose
The purpose of this Act is to—
(a)maximise safety for children and adults who have experienced family violence; and
(b)prevent and reduce family violence to the greatest extent possible; and
(c)promote the accountability of perpetrators of family violence for their actions.”
47Section 5 reads as follows:
“Meaning of family violence
(1) For the purposes of this Act, family violenceis—
(a)behaviour by a person towards a family member of that person if that behaviour—
(i) is physically or sexually abusive; or
(ii) is emotionally or psychologically abusive; or
(iii) is economically abusive; or
(iv) is threatening; or
(v) is coercive; or
(vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
(b)behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).
…
(2)Without limiting subsection (1), "family violence" includes the following behaviour—
(a)assaulting or causing personal injury to a family member or threatening to do so;
(b)sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;
(ba)choking, strangling or suffocating (within the meaning of section 34AB(1) of the Crimes Act 1958) a family member or threatening to do so;
(c)intentionally damaging a family member’s property, or threatening to do so;
(d)unlawfully depriving a family member of the family member’s liberty, or threatening to do so;
(e)causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.
(3)To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.”
48Section 74 provides:
“Power of court to make final order
(1)The court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.
(2)A final order may be made for more than one affected family member if—
(a)the court is satisfied of the matters set out in subsection (1) in relation to each of the affected family members; or
(b)consent has been given, or the making of the order has not been opposed, in accordance with section 78 by—
(i) all the parties to the proceeding; and
(ii)if the application for the final order was brought with the consent of an affected family member’s parent or guardian, that parent or guardian.
(3)The court may make a final order whether or not—
(a)some or all of the family violence constituting grounds for making the order occurred outside Victoria, so long as the affected family member was in Victoria at the time at which the family violence occurred;
(b)the affected family member was outside Victoria at the time at which some or all of the family violence constituting grounds for making the order occurred, so long as that family violence occurred in Victoria.”
49Section 97 provides:
“Court may specify period for which order in force
(1)The court may specify in a final order the period for which the order is in force.
(2)In making a decision as to the period for which the final order is to be in force, the court must take into account—
(a)that the safety of the protected person is paramount; and
(b)any assessment by the applicant of the level and duration of the risk from the respondent; and
(c)if the applicant is not the protected person, the protected person’s views, including the protected person’s assessment of the level and duration of the risk from the respondent.
(3)The court may also take into account any matters raised by the respondent that are relevant to the duration of the order.”
50Finally, regulation 10.03(1) of the Magistrates’ Court (Family Violence Protection) Rules 2018 provides:
“Absence of party
(1)If, when the hearing of a proceeding is called on, any party is absent, the Court may—
(a)proceed with the hearing; or
(b) strike out or dismiss the application; or
(c)adjourn the hearing; or
(d)make any other order which the Court considers appropriate.”
Analysis
Ground 1: Did the Magistrate fail to provide procedural fairness to the appellant?
51At the preliminary hearing, the appellant submitted that the Magistrate failed to accord procedural fairness as he ought to have known that he was temporarily absent from the Court because he told the Registrar of the Magistrates’ Court at Sunshine that he was going to quickly go and print documents at the library for his hearing at around 12:00pm. He said that the Registrar advised him that if his matter was called he needed to present to the Court. The appellant left the Magistrates’ Court as his lawyer advised him to print out his response to the AFM’s further and better particulars and provide them to the Magistrate in his lawyer’s absence. In the circumstances, the appellant submitted that the Magistrate ought to have stood his matter down until he returned to allow him to be present and make submissions opposing the AFM’s application for a final order.
52As outlined above, the appellant’s matter was called three times prior to the Magistrate proceeding with hearing from Counsel for the AFM and making his final orders.
53While the Magistrate was aware that the appellant had been present in the Court that day, and was not responding to being paged, he had no way of knowing whether the appellant was going to present to the Court at a later time.
54While I accept that the appellant was acting on the advice of his legal representative, he was also advised not to leave the Court by the Registrar as he needed to be present if his matter was called.
55While it is a matter for the appellant, at that point he should have sought clarification from his legal practitioner about the advice he was receiving from the Court, given that it was different to the advice he received from his legal representative.
56However, it is the responsibility of parties to present to Court when their matters are called. The duty to provide procedural fairness to both parties does not extend to standing matters down for the convenience of one of the parties in the absence of an explanation about their failure to present to Court. This is particularly so given the pressures on the courts to deal with matters efficiently and expediently.
57In this case, the clerk called the appellant to the Court three times. The Magistrate provided contact details for the appellant’s legal representative to Counsel for the AFM to allow a phone call to be made to ascertain the whereabouts of the appellant and his legal representative. These efforts did not result in the appellant presenting to the Court before final orders were made.
58The efforts the Magistrate made to ascertain the whereabouts of the appellant were more than sufficient to satisfy the duty to accord procedural fairness to the appellant before he proceeded to make final orders.
59Consequently, I find that the Magistrate accorded procedural fairness to the appellant, and dismiss this ground of appeal.
Ground 2: Did the Magistrate provide adequate reasons regarding the making of the FVIO?
60The appellant submitted that the Magistrate did not provide adequate reasons for the making of the order, and made the order based on what was said at the hearing without considering other evidence.
61A Magistrate has a duty to provide adequate reasons.[29]
[29]Whitehead (a pseudonym) v McLaughlin (a pseudonym) [2025] VCC 257 at paragraph [48], citing Pettitt v Dunkley [1971] 1 NSWLR 376 at 387
62In Makeham v Sheppard,[30] the Victorian Court of Appeal stated at paragraph [36]:
“Of necessity, the content and extent of a magistrate’s reasons will be dictated by the nature of the matter under consideration, and the evidence and the issues raised. In a case such as the present, a magistrate must consider all of the relevant evidence; although, depending upon its importance to the ultimate resolution of the case, it may not be necessary for the magistrate to refer to every piece of it, or to indicate whether it is accepted or rejected. But a magistrate should refer to any evidence that is important or critical to the proper determination of the matter. And where there is conflicting evidence of a significant nature, each set of evidence should be referred to.”
[30][2020] VSCA 242
63The adequacy of reasons in the context of the Act was considered by Cavanough J in YY v ZZ & Anor,[31] at paragraphs [107] and [108]:
“The Act does not impose any express obligation on the court to state its reasons for the overall decision it makes on an application for a family violence protection order, much less to state its reasons for any particular part of the decision, whereas s 96 of the Act does require that the purpose, terms and effect of a final order be explained to the protected person and to the respondent. This is to be done both orally and in writing.
Although there may nevertheless be an implied obligation to state reasons for the overall decision, and also for some particular part or parts of it, still, under this Act, any breach of any such obligation may not affect the validity of the decision or of the part, given that s 96(4) of the Act provides that a failure by the court to comply with the express requirements of s 96 does not affect the validity of the order.”
(Citations omitted. Original emphasis.)
[31][2013] VSC 743
64While there is only an implied obligation to state reasons for the overall decision, I accept that it is desirable for the Magistrate to provide sufficient reasons so that the parties, particularly the affected party, can understand why the FVIO was made.
65In doing so, I am conscious that a lack of reasons may not invalidate an order.[32] I am also mindful that the fact that the Magistrates’ Court is a very busy court informs the adequacy of the reasons.
[32] The Act, s96(4); YY v ZZ & Anor [2013] VSC 743 at paragraph [108]
66In this case, the basis on which the Magistrate made the final FVIO was clear from reviewing the transcript. The Magistrate said he was comfortable that the order was required to protect the AFM based on what had been said, which included:
(a) acknowledgement of the sworn statement from the AFM regarding the recent history of family violence alleged to have been caused by the appellant to the AFM and their children;
(b) acknowledgement of the sworn statement contained in the application to vary the order regarding the abuse via social media;
(c) the submissions made by Counsel for the AFM regarding the history of family violence and previous applications for FVIOs made; and
(d) the submissions made by Counsel that the delays in the process caused by the appellant were, from the perspective of the AFM, another form of family violence against the AFM.
67While the appellant may have wished to make submissions in response to the AFM’s application and the submissions made by her Counsel, and for those to be considered by the Magistrate before the orders were made, he was not present in Court to do so. In those circumstances, the Magistrate could not consider the appellant’s evidence before arriving at his decision and making his final orders
68Therefore, I find that the Magistrate provided adequate reasons for the making of the FVIO and dismiss this ground.
Ground 4: Did the Magistrate make a factual error regarding whether there had been prior orders made against the appellant pursuant to the Act?
69I have considered Ground 4 before Ground 3, as my findings in relation to Ground 3 are in part dependent on my findings in Ground 4.
70The appellant submitted that the Magistrate erred in accepting that there had been orders made pursuant to the Act in the prior applications brought by either the AFM or the police.
71The appellant submitted that those applications had either been struck out or withdrawn.
72On review of the transcript, Counsel for the AFM advised the Magistrate that there had been three orders in the past. He then said that there had been a Victoria Police led application in 2019 and AFM led applications in 2018 and 2021.
73It was not clear from the transcript and evidence tendered in the preliminary hearing whether Counsel was referring to interim or final FVIOs arising from those applications.
74It was clear that these applications were ultimately withdrawn or struck out, and that this evidence was before the Magistrate, as the AFM deposed to this in her sworn statement dated 16 August 2023.
75While the Magistrate did not make findings of fact about prior orders before arriving at his decision, I accept that he was comfortable to make the FVIO based on the submissions he heard from the Counsel for the AFM, which included that applications and orders had been made against the appellant in the past. It was unclear from the transcript whether the submissions were based on the prior orders being interim or final orders. It was clear that submissions were made that there had been delays in those applications being heard and determined, which were themselves another form of family violence.[33] The Magistrate indicated that he understood that submission from the perspective of the AFM.[34]
[33] T4, L30 – T5, L4
[34] T5, L5
76As these were uncontradicted submissions, it was open to the Magistrate to rely on the content of the submissions in arriving at his decision.
77However if they were ‘findings’ on which the Magistrate in part based his decision, I find that they were not glaringly improbable or contrary to compelling inferences given the history between the AFM and the appellant, including the litigation history.
78Considering all the evidence relied on by the Magistrate and the fact that formal findings were not made about the existence of prior FVIOs, I dismiss this ground of appeal.
Ground 3: Did the Magistrate err in the exercise of his discretion regarding the duration of the order? Was the duration of the order manifestly excessive?
79At the preliminary hearing, the appellant submitted that the duration of the order was excessive, and that the Magistrate did not provide reasons regarding why the order was for a period of five years.
80The appellant also submitted that the Magistrate erred in basing his decision regarding the duration in part on his finding that there had been orders made in the prior applications made pursuant to the Act. I have addressed that issue above in response to Ground 4 of his appeal.
81As set out above, section 97 of the Act allows the court to specify a period for which an order is in force.
82This issue was considered by Cavanough J in the case of YY v ZZ & Anor. In that case he said:
“… it is clear that the default position under ss 97 and 99 and Division 8 of Part 4 is that, unless a particular period is specified in the final order, a final order will be indefinite in duration, leaving it to the respondent to seek revocation or variation in the future if so advised. The structure and language of s 97 are very important for present purposes. Under sub-s (1), the power to specify a fixed period is discretionary. Under sub-s (2), the court must take into account three matters, the general tenor of which, in each case, is against setting a fixed period, namely, first, that the safety of the protected person is “paramount”; second, any assessment by the applicant of the level and duration of the risk from the respondent; and, third, the views of the protected person. By contrast, s 97(3) provides that the court may also take into account any matters raised by the respondent that are relevant to the duration of the order.”[35]
(Original emphasis.)
[35]YY v ZZ & Anor [2013] VSC 743 at paragraph [109]
83This makes it clear that the power to fix a period is discretionary. That is, there is no requirement for a Magistrate to fix a period for an FVIO.
84Having regard to the matters the Magistrate was required to consider, and the evidence relied upon before the Magistrate arrived at his decision and made final orders, a period of five years is not unreasonable or unjust.
85I therefore find that the reasons regarding the duration of the final FVIO were adequate and dismiss this ground of appeal.
Conclusion
86As the appellant has failed to make out any of his grounds of appeal, the jurisdiction of the County Court has not been enlivened and his appeal is dismissed.
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