Buckley (a pseudonym) v Anderson (a pseudonym)
[2025] VCC 47
•13 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| APPEALS AND POST SENTENCE APPLICATION LIST |
| CAROLINE BUCKLEY (A PSEUDONYM) | Appellant |
| v | |
| ISABELLE ANDERSON (A PSEUDONYM) | Respondent |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2025 | |
DATE OF JUDGMENT: | 13 June 2025 | |
CASE MAY BE CITED AS: | Buckley (a pseudonym) v Anderson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 47 | |
REASONS FOR JUDGMENT
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Subject:Hearing IVO Appeal
Catchwords: Family Violence Intervention Order – Legal, Factual, Discretionary Error
Legislation Cited: Family Violence Protection Act 2008
Cases Cited: AAA v County Court & Ors [2023] VSC 13; Byrne v The Owners of Ceresa Apartments Strata Plan 55597 [2016] WASC 153; Lee v Lee (2019) 266 CLR 129; House v The King (1936) 55 CLR 499
Judgment: Family Violence Intervention Order confirmed.
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APPEARANCES: | Counsel | Solicitors |
| The Appellant | In person | |
| For the Respondent | Ms J McCartney |
HER HONOUR:
Introduction
1 This is an appeal brought by Ms Caroline Buckley[1] (“the appellant”) against an order made on 18 June 2024 at the Magistrates’ Court at Ringwood (“Magistrates’ Court”) to grant a final Family Violence Intervention Order (“FVIO”) under the Family Violence Protection Act 2008 (“the Act”).
[1] A pseudonym
2 The appellant is self-represented.
3 Victoria Police appeared on behalf of the respondent. The respondent to this proceeding and affected family member (“AFM”), is the appellant’s daughter.
Background
4 On 8 September 2022, Senior Constable Christopher Pinkey of Victoria Police made a FVIO Application and Summons against the appellant for the protection of the respondent and five of her children, Sally Nash, Joseph Anderson, Bailey Anderson, Leslie Nash and Cameron Nash[2] (“the affected family members”) due to the respondent’s “random and repeated attendance at the address (of the AFM) and refusal to leave. Police believe that the erratic nature of the respondent is escalating and that it is placing a(n) emotional and psychological stress on the AFM.”[3]
[2] Pseudonyms
[3]Application and Summons for an Intervention Order completed by Constable Christopher Pinkey dated 8 September 2022
5 On 2 December 2022, the FVIO Application was listed at the Magistrates’ Court and the appellant did not appear. A final FVIO with limited conditions expiring on 1 December 2023 was made in her absence.
6 The appellant’s application for a rehearing of the proceeding was granted on 10 January 2023 and the final FVIO made on 2 December 2022 was set aside. An interim FVIO with four conditions was made.
7 On 18 June 2024, the proceeding was listed for a contested hearing at the Magistrate Court. Both the appellant and respondent gave evidence, and the Magistrate made a final FVIO. The appellant was represented by Counsel under s71(1) of the Act for the purposes of cross-examination.
8 The final FVIO, expiring on 18 June 2026, was in the following terms:[4]
[4]Family Violence Intervention Order made at Ringwood Magistrates’ Court on 18 June 2024
“THE COURT ORDERS THAT THE RESPONDENT MUST NOT
Commit family violence against the protected person(s). Note: The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person.
Family violence includes behaviour that causes a child to hear or witness or otherwise be exposed to the effects of these behaviours.
Intentionally damage any property of the protected person(s) or threaten to do so.
Attempt to locate, follow the protected person(s) or keep them under surveillance.
Publish on the internet, by email or other electronic communication any other material about the protected person(s).”
9 On 18 July 2024, the appellant filed a Notice of Appeal in relation to the final FVIO.
10 Pursuant to orders made in this Court by His Honour Judge Purcell on 12 September 2024, the appellant filed:
(a)A statement of grounds of appeal dated 28 October 2024, identifying the legal, factual or discretionary error in the Magistrates’ Court decision on 18 June 2024;
(b)Affidavit of the appellant affirmed 28 October 2024;
(c)Outline of submissions dated 28 October 2024;
(d)Outline of submissions dated 14 November 2024;
(e)Outline of submissions dated 19 December 2024; and
(f)A list of exhibits dated 28 October 2024.
11 The respondent filed:
(a)An outline of submissions dated 5 December 2024;
(b)Affidavit of Senior Constable Christopher Pinkey affirmed on 6 December 2024; and
(c)A list of exhibits dated 5 December 2024.
12 At the hearing the parties’ written submissions were supplemented with oral submissions.
Grounds of Appeal
13 In her statement of grounds, the appellant alleged that the Magistrate made a discretionary error as she was not afforded the opportunity to present her case properly.
14 In written submissions the appellant submitted that:
(a)That there had not been incidents of family violence between her and the respondent;
(b)There was a failure by the Magistrate to consider relevant facts in reaching his decision to order an FVIO;
(c)The respondent allegedly committed perjury at the contested hearing on 18 June 2024.
15 Further, the appellant contended that if error was demonstrated, then this Court should strike out the orders.
Appellant’s Submissions
16The appellant submitted she was not aware that the AFM did not want her to attend her home, and she was not aware that the AFM was hiding from her at times when she had attempted to visit, or that the AFM was not answering her phone calls or blocking her. She submitted that the Magistrate was not aware that she had been told by police that she had ‘implied consent’ to attend the AFM’s property. The appellant attended the AFM’s property on 8 September 2022 as she was attempting to resolve a misunderstanding with the AFM. As soon as she was aware that when the AFM called the police her consent to be there had been revoked, she left the premises. She therefore submitted that she had not committed any instances of family violence.
17The appellant maintained that the Magistrate was not aware that the appellant was a victim of crime. Because of her history, the court proceedings were a cause of stress for her and affected her ability to engage with the process effectively.
18The Magistrate failed to take into account the AFM’s previous inappropriate behaviour towards the appellant.
19The appellant claimed that her legal representation was inadequate. Her representative did not understand the entirety of the circumstances and history between the appellant and the AFM and therefore was unable to convey the appellant’s case appropriately to the Magistrate.
20The appellant alleged that the AFM was misleading and committed perjury at the contested hearing on 18 June 2024 and the Magistrate erroneously gave weight to untrue statements in making his decision to order the FVIO.
21The appellant submitted that the Magistrate proceeded to make the final FVIO against the appellant without hearing relevant evidence and giving sufficient weight to her submissions.
22In the circumstances, it was submitted that the Magistrate did not have power to make a final FVIO, and therefore him purporting to make one amounted to an error of law.
Respondent’s Submissions
23The respondent submitted that the Magistrate heard evidence from the AFM about several incidents of family violence as well as evidence in respect of two occasions when the appellant attended the AFM’s premises, on 28 August 2022 and 8 September 2022, which resulted in police being contacted. The visit on 8 September 2022 led to Victoria Police filing the FVIO application. As such, the Magistrate had evidence before him upon which it was open for him to reach his decision.
24The appellant did not raise with the Magistrate, nor mention in any submissions prior to this appeal, that on 8 September 2022 the police told the appellant she had ‘implied consent’ to attend the AFM’s property which was revoked. This therefore is not a relevant consideration, and no error of fact, law or discretion resulted.
25Although the appellant may have been a victim of crime, it is not relevant to the intervention order proceedings to establish whether protection is required for the AFM pursuant to s74 of the Act.
26The AFM’s prior behaviour towards the appellant and allegations against the AFM are not relevant to this appeal. Rather, the FVIO proceedings are in relation to the appellant’s behaviour towards the AFM which caused the AFM anxiety.
27Counsel who appeared at the Magistrates’ Court hearing did so pursuant to s71(1) of the Act and was limited to cross-examination. This was noted by the Magistrate when counsel completed his involvement following the conclusion of his cross-examination of the AFM.[5] The appellant was assisted by the Magistrate when giving her evidence.
[5] Transcript (‘T’) 37 Line (‘L’) 28-31
28The Magistrate heard evidence from both the affected AFM and the appellant. At the hearing the appellant was provided with ample opportunity to express her views which the Magistrate considered when making his ruling. The Magistrate heard sworn evidence from the AFM about several instances of family violence by the appellant. The Magistrate heard how these instances of family violence were impacting the respondent and causing her great anxiety.[6] He then provided reasons that he considered the family violence would continue because of the appellant’s prior conduct and her wanting to see her grandchildren. The appellant failed to establish that the Magistrate’s decision was not open on the material before him or that it was ‘glaringly improbable’.
[6] T 59 L 8-11
29The respondent conceded that the Magistrate erred in his decision in relation to the duration of the final FVIO as he failed to provide adequate reasons. He was required to consider the factors set out in s97 of the Act and he failed to refer to these factors or provide any reasons for the duration of the FVIO that he imposed. The respondent submitted that the Court is open to find that there was no proper consideration of the evidence, only in so far as the duration of the order.
The legal framework
30 Section 74 of the Act 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.”
31 Section 97 of the Act 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 that 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 persons 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.
(d)The court may also take into account any matters raised by the respondent that are relevant to the duration of the order.”
32In AAA v County Court & Ors, His Honour Justice Dixon observed that the appellant must be able to demonstrate that the original decision maker made a legal, factual or discretionary error, to enliven the power of the appellate Court.[7]
[7][2023] VSC 13 [50]
33The appeal is not to be conducted by way of rehearing, but rather by establishing that the initial decision was attended with error either of law, jurisdiction or fact.
34Such an error may be proved after an examination of the transcript of the Magistrates’ Court proceedings, to examine the conduct of the proceeding and reasons for the decision being made.
Legal Error
35In Byrne v The Owners of Ceresa Apartments Strata Plan 55597 it was held that:[8]
“If the Tribunal makes a legal error in the way in which it undertakes its fact finding, or a legal error in the way in which it construes that statute which it is applying in a particular case, or some other reasoning, then an appeal lies to correct that legal error.”
[8] [2016] WASC 153 [23]
Factual Error
36The legal principles with respect to factual errors were summarised by the majority in Lee v Lee:[9]
“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.”
[9] (2019) 266 CLR 129 at [55]
Discretionary Error
37Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
38The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[10]
“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 properly to exercise the discretion to 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 that a substantial wrong has in fact occurred.”
[10] (1936) 55 CLR 499 at [504]-[505]
Findings
39I have read the transcript of the Magistrates’ Court hearing which took place on 18 June 2024. Both the affected AFM and the appellant gave evidence. The appellant had the assistance of counsel through the operation of s71(1) of the Act that ensured she had access to legal representation for the cross-examination of the AFM.
40Having heard the evidence, the Magistrate accepted that following allegations of an incident on 8 September 2022, Victoria Police applied for the FVIO and that those allegations were ventilated in evidence before him. He identified correctly that the task that confronted him, was to consider s74 of the Act and noted that the Court could make a final order if satisfied on the balance of probabilities that the appellant committed family violence against the AFM and was likely to continue to do so or do so again. He observed that the family violence had a broad definition.
41The appellant submitted that she did not commit family violence or that her conduct did not constitute family violence. If it is the appellant’s contention that the Magistrate erred because the appellant’s conduct did not fall within the definition of family violence, and this is made out, it would constitute an error of law.
42I do not accept that such legal error was made out as the Magistrate’s finding that there was family violence perpetrated by the appellant was clearly open on the evidence. He accepted the AFM’s evidence, namely that the appellant’s attendances on her home were frequent and random and there were lots of text messages, calls, and attendances upon her home which were likely to have caused her great anxiety. I find that on the evidence before him, it was open for the Magistrate to find the appellant’s behaviour constituted family violence within the broad definition.
43Although the appellant asserted in the grounds of appeal that there was discretionary error, the transcript does not disclose that the Magistrate operated under any wrong principle, that he allowed himself to consider or be swayed by irrelevant or extraneous matters, or that he failed to take into account any material consideration. I find that there has been no discretionary error demonstrated.
44I would characterise the balance of the appellant’s grounds as allegations of errors of fact, although her submissions both written and oral focused in large part on the issues giving rise to her conflict with the AFM that was the subject of the FVIO, and she sought to traverse the matters giving rise to the FVIO.
45The appellant had the opportunity to give evidence and present her version of events. The Magistrate ensured that the appellant was not disadvantaged as a self-represented litigant and took steps to ensure she comprehended the proceedings. When the appellant was giving evidence, he encouraged her to remain focused on the AFM’s evidence and respond to the evidence given by the AFM in respect of the issues between her and the AFM that were the subject of the FVIO. He asked the appellant questions to enable her to give relevant evidence in response to the AFM’s allegations.[11] The AFM gave evidence regarding the appellant’s apparent deteriorating mental health and the appellant was able to provide medical evidence to the Court about the state of her mental health.[12]
[11] T 38 L 27; T 40 L 14
[12] T 43 L 29
46The AFM provided sworn evidence about multiple incidents of family violence by the appellant, which were causing her significant anxiety such as the numerous text messages,[13] the unwanted visits to her home[14] and allegations of abuse of the AFM’s children that were reported to police.[15]
[13] T 7 L 30-31; T 8 L1-5
[14] T 5 L 6-17
[15] T 6 L 1-3
47The AFM gave evidence in respect of two specific occasions when the appellant attended her home and refused to leave. On 28 August 2022, the AFM described the appellant becoming “agitated and aggressive”[16] in response to her wanting her to leave.
[16] T 14 L 15-21
48Again, on 8 September 2022, the AFM’s evidence was that the appellant became “agitated and, um, started kind of getting verbally aggressive” before the police were called.[17]
[17] T 15 L 14-21; T 15 L 14-20
49The Magistrate took into account both the appellant and the AFM’s evidence. The AFM was cross-examined and her evidence tested. The Magistrate was able to weigh up her evidence against the appellant’s evidence. The Magistrate made it clear in his ruling why he granted the FVIO.[18] He provided reasons as to why he was satisfied in relation to the second limb of s74, namely family violence was likely to continue or be done again.[19] He explained the effect of the order on the appellant.[20]
[18] T 59 L 8-15
[19] T 59 L 15; L 60 L 19
[20] T 61-64
50In respect of the appellant’s submission that the Magistrate was unaware that the appellant was a victim of crime, and this impacted her from properly presenting her case, I agree with the respondent’s submission that this is not a relevant consideration in respect of the Magistrate’s decision to make the FVIO. Moreover, I note that from my reading of the transcript, the Magistrate conducted the proceeding in a manner that enabled the appellant to give her evidence responding to the AFM’s allegations.
51The appellant’s submission that the Magistrate failed to take into account the negative impact of the AFM’s allegations on her and this constituted error, is not maintainable. The application was made on behalf of the AFM, for her protection, and the Magistrate was required to determine whether on the evidence before him he was satisfied that an order under s74 of the Act should be made.
52The appellant did not give evidence in the Magistrates’ Court that she had implied consent to visit the AFM’s home, or that she was informed by the police that she had implied consent which was revoked by the AFM when they were called. Therefore, this was not a relevant consideration for the Court to consider whether the Magistrate fell into error. I note that the FVIO does not prevent contact between the appellant and the AFM or the affected family members. It prohibits the appellant from committing family violence against the protected persons.
53I do not find any evidence that the Magistrate arrived at any error of fact. I find that the appellant has not established that the Magistrate’s decision was not open on the material before him or that it was ‘glaringly improbable’.
54I find there is no merit in the appellant’s allegation that her legal representation fell short. A review of the transcript discloses that her representative discharged his obligations within the scope of his appointment.
55The respondent conceded that the Magistrate erred in his decision in relation to the duration of the FVIO as he failed to provide adequate reasons. He was required to consider the factors set out in s97 of the Act and he failed to refer to these factors or provide any reasons for the duration of the FVIO that he imposed. The respondent submitted that it is open to the Court to find that there was no proper consideration of the evidence, in so far as the duration of the order.
56I consider that there is merit in this submission and legal error is made out in so far as the Magistrate failed to address the requirements of s97 and provide reasons with respect to the duration of the FVIO. It was incumbent on the Magistrate to explain, based on the evidence that was presented to him, the basis of his decision.
57As error has been established, the jurisdiction of this Court is enlivened. The appellant argued that the FVIO should be withdrawn. The respondent submitted that based on the evidence before the Magistrate it is open for the Court to make an order for 2 years’ duration. Victoria Police submitted that 2 years was appropriate to protect the affected family members.
58This Court has a broad power on appeal and may exercise the discretion that was invested in the Magistrate in determining the duration of the FVIO.
59I do not propose to vary the order made by the Magistrate. Given the long history of conflict between the appellant and the AFM, the impact of the family violence on the AFM and the risk that the appellant may resume the behaviour that was occurring before the FVIO, and that such behaviour ceased with the FVIO, I consider that the 2-year duration of the FVIO is appropriate. I also note that since the FVIO was imposed there have been no further incidents of family violence.
Conclusion
60I confirm the order which is due to expire on 18 June 2026, that the appellant must not commit prohibited behaviour towards the protected persons.
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