Costanza (a pseudonym) v Manfrin (a pseudonym)
[2024] VCC 1926
•3 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
| Jim Costanza (a pseudonym) | Appellant |
| v | |
| Bianca Manfrin (a pseudonym) | Respondent |
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JUDGE: | Her Honour Judge Sanger | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2024 | |
DATE OF JUDGMENT: | 3 December 2024 | |
CASE MAY BE CITED AS: | Costanza (a pseudonym) v Manfrin (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1926 | |
REASONS FOR RULING
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Subject:INTERVENTION ORDER
Catchwords: Appeal against extension of final family violence intervention order
Legal, factual or discretionary error – appellant failed to attend hearing and orders made in his absence – breaches of interim order
Legislation Cited: Family Violence Protection Act 2008 (Vic)
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Xiu (a pseudonym) v Xiu (a pseudonym) [2024] VCC 875; Briginshaw v Briginshaw (1938) 60 CLR 336; NOM v DPP (2012) 38 VR 618; House v The King (1936) 55 CLR 499; Devries v Australian National Railways Commission (1993) 177 CLR 472; Lee v Lee (2009) 266 CLR 129
Judgment: Appeal dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J McGarvie | Stary Norton Halphen |
For the Respondent | In person | |
| For the Respondent (Victoria Police) | Ms J McCartney | Victoria Police |
HER HONOUR:
Introduction
1This is an appeal by Mr Costanza,[1] from a decision of Magistrate Stuthridge at the Magistrates’ Court in Broadmeadows, granting an extension to a final Family Violence Intervention Order (“FVIO”) for the protection of Ms Manfrin[2] and two of their children on 17 June 2024 (“the decision”).
[1]A pseudonym
[2]A pseudonym
2The Magistrate heard evidence from Ms Manfrin on 17 June 2024. Mr Costanza had been served with the extension application, but he and his solicitors failed to attend Court on that date. Thus, Mr Costanza did not make any submissions before Magistrate Stuthridge before she made her orders in his absence.
3In making her orders, the Magistrate relied on the original application of police and Ms Manfrin’s sworn application to satisfy herself that the extension of the final order was necessary,[3] pursuant to section 106(2) of the Family Violence Protection Act 2008 (Vic) (“the Act”). The FVIO was extended to 1 July 2026.
[3]Transcript of proceedings on 17 June 2024 at Broadmeadows Magistrates’ Court (“T”) 3, Lines (“L”) 22-24
4On 15 July 2024, pursuant to section 119(2) of the Act, Mr Costanza filed an appeal against the decision.
5The preliminary hearing of the appeal was heard before me on 29 October 2024.
6Pursuant to the principles in AAA v County Court of Victoria & Ors (“AAA”),[4] Mr Costanza was required to demonstrate a factual, legal or discretionary error in the decision of the Magistrate to enliven the appellate jurisdiction of this Court.
[4][2023] VSC 13 (‘AAA’)
Background
Interim FVIO
7It is useful to give a brief overview of the circumstances behind this proceeding, as it provides context to the hearing before the learned Magistrate on 17 June 2024 and the decision.
8On or about 9 February 2023, an application for a final FVIO and an interim FVIO was made by Constable Katherine Vidler, a police officer, for Ms Manfrin (as the affected family member in the original application) against Mr Costanza (as the respondent in the original application).
9The reasons for the application were set out in the application as follows:
“AFM and RESP are wife and husband respectively. The 20 year marriage produced three children aged 19, 13 and 12. Parties do not reside together and are currently going through divorce proceedings. There are no current FVIO in-place or previous orders between parties. This is the 3rd recorded incidents (sic) between parties. The RESP holds a high up position in the local council and uses that to intimidate and further control the AFM. The RESP has a violent and intimidating persona towards the AFM causing her to fear for her life. The RESP has a long history of violent FV offending toward the AFM which has never been reported to police due to extreme fear. RESP moved out of the family home in December 2022. Since then, things have gone missing from around the house causing the AFM to believe the RESP has let himself in on multiple occasions when she hasn’t been present. Sometime after the RESP moved out, a family member of the RESP asked the AFM to borrow her car as he stated he was interested in purchasing one similar. Since then, the AFM has become increasingly concerned the RESP may be listening to private conversations with others causing the AFM to become increasingly concerned, feeling vulnerable and at increased risk due to their recent separation. AFM not willing to disclose any physical violence or threats due to feeling extremely fearful of not being able to protect herself from the RESP. Police believe a Family Violence Intervention Order is necessary to ensure the safety and welfare of the AFM and her children from the RESP.”[5]
[5] Original police application for an intervention order (summons or warrant) undated
10On 10 February 2023, an interim FVIO was issued by the Broadmeadows Magistrates’ Court, which was served on Mr Costanza on 21 February 2023.
Breaches of the interim FVIO
11On 26 February 2023, Mr Costanza sent a text message to Ms Manfrin. Mr Costanza says that this was meant for his sister-in-law, who shares the same first name as Ms Manfrin. He withdrew the text message as soon as he realised the error, which he said was quicker than Ms Manfrin could take a screenshot of the text message.[6]
[6]Appellant’s outline of submissions dated 3 October 2024, paragraph [5]
12On 31 March 2023, Mr Costanza published a photograph on Facebook of himself with one of their children, with a caption stating that it had been the child’s birthday recently and he wanted to share the photo. The photograph had been taken in 2019.[7]
[7]Appellant’s outline of submissions dated 3 October 2024, paragraph [6]
13On 15 May 2023, Mr Costanza published another photograph of the same child which had been taken on a holiday prior to the interim FVIO being issued.[8] Ms Manfrin was informed by a third party about these posts, and subsequently reported the matter to police.[9]
[8]Appellant’s outline of submissions dated 3 October 2024, paragraph [7]
[9]Appellant’s outline of submissions dated 3 October 2024, paragraph [8]
14On 27 May 2023, Ms Manfrin made a statement to police regarding the 15 May 2023 Facebook post. On 3 June 2023, she made a further statement regarding the 31 March 2023 Facebook post and the 26 February 2023 text message.
15On 29 June 2023, three charges were subsequently filed against Mr Costanza concerning the above breaches.
16On 24 May 2024, Victoria Police recommended Mr Costanza for diversion on all charges, which was subsequently granted in the Broadmeadows Magistrates’ Court. The matter was adjourned for diversion for six months, with the condition that Mr Costanza make a donation to Banksia Gardens.
Final FVIO
17On 5 May 2023, Mr Costanza consented to the Court making a final FVIO against him at Broadmeadows Magistrates’ Court, which expired on 4 July 2024.
Application for extension of the final FVIO
18On 27 May 2024, Ms Manfrin made an application to Broadmeadows Magistrates’ Court to extend the final FVIO, which was heard on 17 June 2024.
19In the application for extension, Ms Manfrin said:
“I AM FEARFUL FOR MY CHILDREN AND MY SAFETY. DURING THE IVO THE RESPONDENT BREACHED THE ORDER 4 TIMES. THE BREACHES HAVE BEEN REPORTED AND I HAVE COMPLETED A VICTIM IMPACT REPORT. ON 24/5/24 THERE IS A COURT HEARING RELATING TO THESE CHARGES. THE CONSTANT FEAR AND EXNXIETY (sic) THAT I HAVE EXPERIENCED SINCE THESE BREACHES HAVE LEFT ME FEELING UNSAFE AND FEARFUL. IT HAS TAKEN A TOLL ON MY EMOTIONAL WELLBEING, AFFECTING MY ABILITY TO TRUST THAT THROUGH THE COURTS INTERVENTION I COULD FEEL A SENSE OF SAFETY AFTER THE FAMILY VIOLENCE AND ABUSE I ENDURED THROUGHOUT MY MARRIAGE. MY FEAR IS IF THERE IS NO IVO IN PLACE NOTHING WILL STOP THE RESPONDENT FROM ABUSING ME AND THE CHILDREN.”[10]
[10] Application for an Extension (FV) dated 16 July 2024 at page 8 of Mr Costanza’s bundle of appeal
documents from Broadmeadows Magistrates’ Court
20Neither Mr Costanza nor his solicitors appeared at the hearing. Mr Costanza asserts that he made an error regarding the date of the hearing, believing it was listed for 5 July 2024, which was in fact the date the order expired. He informed his solicitors of the incorrect date, who then failed to identify the error upon receiving the relevant paperwork.
21On 17 June 2024, Ms Manfrin appeared via video link at the hearing.
22Magistrate Stuthridge had the police application for the FVIO and Ms Manfrin’s sworn application for an extension before her at the time she heard the application.[11]
[11] Transcript of proceedings at Broadmeadows Magistrates’ Court from 17 June 2024 (“T”) 2, Lines (“L”)
12–13
23During the hearing, Ms Manfrin advised the Magistrate that:
(a) All the information contained within her application for extension was true and correct;[12]
(b) There were three to four occasions where the FVIO was breached while it was in place, those being a text message, some Facebook posts and a phone call;[13]
(c) There were no threats made to her or her children in the course of those breaches;[14]
(d) The breaches had resulted in criminal charges, which Ms Manfrin made a victim impact statement about;[15] and
(e) She understood the hearing for the breaches was held on 24 May 2024.[16]
[12] T2, L20-22
[13] T2, L23-30
[14] T2, L31; T3, L102
[15] T3, L 3-7
[16] T3, L14
24Magistrate’s Stuthridge was satisfied as to service and that Mr Costanza had not made an appearance on that day.[17] She said:
“I am satisfied on the original application of the police, together with your sworn application today to grant application for extension.”[18]
[17] T3, L17-22
[18] T3, L 22-24
25The final FVIO was thus extended to 1 July 2026.[19]
[19] T3, L18-19
Applications for revocation and rehearing
26On 24 June 2024, Mr Costanza’s solicitors filed an application to revoke the extension order of 17 June 2024 pursuant to section 109 of the Act.
27On 15 July 2024, this was heard by Magistrate Langton and refused, the reasons for which were not provided to me.
28Mr Costanza then filed an application for a rehearing pursuant to section 122 of the Act. This application was also refused. The reasons for refusal were not raised during this appeal.
29On 15 July 2024, Mr Costanza commenced his appeal to this Court by filing his notice of appeal. There is no dispute that the appeal was filed in time and is a valid appeal.
30The appeal relates only to the Magistrate’s decision to grant the extension of the final FVIO. Mr Costanza has not appealed either the decision to refuse the revocation application or the rehearing application.
Ruling on preliminary issue: objection to evidence sought to be relied upon by Mr Costanza
31Counsel for Mr Costanza sought to rely on the affidavit of Louise Ann Conwell, a solicitor at Stary Norton Halphen, affirmed on 3 October 2024. The affidavit exhibited a copy of the brief of evidence supporting the criminal charges against Mr Costanza for the breaches of the interim FVIO.
32This was filed with the Court on 3 October 2024 and exchanged with Counsel for Victoria Police on behalf of Ms Manfrin on 4 October 2024.
33Counsel for Mr Costanza submitted that while the documents were new, they were not new ‘in substance’ as they provided context to the breaches and the charges relied upon by Ms Manfrin in her application to extend the order. They were distinguishable from other types of new evidence that contradicted her evidence. They were discoverable and within the possession of the Victoria Police prior to the application being heard by the Magistrate to extend the order.
34Counsel for Mr Costanza also submitted that the admission of the affidavit was in the interests of justice, and that the Court would be assisted by having the material before it.
The application to admit the evidence was opposed by Counsel for Victoria Police on behalf of Ms Manfrin on the basis that the evidence:
(a) Was not relevant;
(b) Should have been raised before Magistrate Stuthridge on 17 June 2024 if Mr Costanza wished to rely on it; and
(c) Did not go to the issues to be decided in the preliminary hearing.
Analysis
36Justice John Dixon considered the nature of an appeal under section 119 of the Act and whether new evidence could be admitted in AAA.
37His Honour found that an appeal pursuant to section 119 was a broad appeal by way of rehearing that allowed for new evidence.[20] He said that:
“… this type of appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence. The court is required to assess and evaluate the evidence for itself, maintaining due regard for the advantage of the trial judge in having seen and heard all of the evidence.”[21]
[20] AAA, [51]
[21]AAA, [50]
38He considered the role of the appellate court in an appeal pursuant to section 119 of the Act. He said:
“Considered altogether, s 119 contemplates a rehearing in the sense of a broad appeal where new evidence may be led; the court may determine the case at the time of the appeal, in the light of the record of the first instance court and the additional evidence before the appellate court at the time of appeal, applying the law at the time of the appeal. The jurisdiction is appellate in the sense that it is only engaged where there is factual, legal, or discretionary error in the magistrates’ decision, identifiable in light of all the new evidence before the County Court at the time of appeal. As the High Court made clear in Allesch and Coal, statutory provisions conferring appellate powers, including the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise (and the subject Act does not do so), the power is to be exercised for the correction of error.”[22]
(emphasis added)
[22]AAA, [67] and the authorities cited therein
39Further, he found that sections 65 and 121 of the Act read together permitted new evidence to be led and admitted, with the safeguards afforded by section 65(3).
40I rule that the evidence is admissible because:
(a) It is relevant to the determination of whether the there was error in the Magistrate’s decision, as:
(i)Ms Manfrin referred to the charges when providing oral evidence before the Magistrate; and
(ii)The evidence provides context to the charges brought against Mr Costanza for the breaches of the interim FVIO;
(b) It did not contradict Ms Manfrin’s evidence; and
(c) It was discoverable and in the possession of Victoria Police at the time that the application for the extension of the FVIO was sought.
Appeal by rehearing
41Pursuant 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.[23]
[23]The Act s119(2)(a)-(c)
42To enliven the jurisdiction of this Court, Mr Costanza must first demonstrate that the Magistrate made a factual, legal or discretionary error.
43For reasons explained in this ruling, I find that Mr Costanza has not made out any of his grounds of appeal and the jurisdiction of this Court has therefore not been enlivened.
Appeal grounds
44Mr Costanza relies on two grounds of appeal, relying on factual error and discretionary error:
(a) The Magistrate made a factual error, as there was no evidence capable of supporting a finding that the breaches of the interim FVIO constituted family violence within the meaning of section 5 of the Act.
(b) The Magistrate made a discretionary error, as it was not open on the evidence to find that Mr Costanza was likely to commit family violence were the order not extended. This submission was founded in part on the submission regarding the error of fact, as outlined in the previous paragraph.
Appellant’s submissions
45In support of the submissions, Counsel for Mr Costanza said:
(a) The only evidence before the Magistrate were three breaches of the interim FVIO, the resulting charges, and the Magistrate’s enquiry into the non-threatening nature of the breaches.[24]
(b) The standard of satisfaction must be responsive to the gravity of the allegations and the ultimate consequences of the restrictions, in accordance with the Briginshaw standard.[25] He relied upon the following passage from NOM v DPP in support of this submission:
“Mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.”[26]
[24]The Magistrate also had the original application of the police before her.
[25]Briginshaw v Briginshaw (1938) 60 CLR 336
[26]NOM v DPP (2012) 38 VR 618 at [124]
Respondent’s submissions
46Counsel for Victoria Police on behalf of Ms Manfrin submitted that:
(a) There was no evidence to establish, on the balance of probabilities, that the Magistrate’s decision was “unreasonable or plainly unjust”,[27] or that a substantial wrong had occurred, and thus there was no discretionary error.
(b) There was no evidence or material before the Court to demonstrate that the Magistrate’s findings were “glaringly improbable” or “inconsistent with the facts incontrovertibly established by the evidence”.[28] The facts before the Magistrate were correct and thus there was no factual error.
(c) The evidence before the Magistrate was sufficient to satisfy her, on the balance of probabilities, that if the FVIO was not extended Mr Costanza was likely to commit family violence against Ms Manfrin.
Relevant legal principles
[27]House v The King (1936) 55 CLR 499 at 505
[28] Lee v Lee (2009) 266 CLR 129 at [55]
Factual error
47A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[29] Such an error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[30]
[29]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479
[30]Ibid
48The relevant legal principle applicable to factual error is found in the High Court case of Lee v Lee.[31] 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”. … .”[32]
(Footnotes omitted.)
[31](2019) 266 CLR 129
[32]Ibid at paragraph [55]
Discretionary error
49Where 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.
50The relevant legal principle application for discretionary error is found in the High Court case of House v The King.[33] 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”.[34]
[33](1936) 55 CLR 499
[34]Ibid 504-505
Relevant provisions
51The provisions of the Act relevant to the appeal are set out below.
52Section 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.”
53Section 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.”
54Section 7 specifies:
“Meaning of emotional or psychological abuse
For the purposes of this Act, emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.”55Section 74(1) 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.”
56However, section 78 provides:
“Consent Orders
(1) If the parties to a proceeding for a final order, or the variation, extension or revocation of a final order, consent to the making of the order or do not oppose the making of the order, the court may make the order—
(a)without being satisfied as to any matter referred to in—
(i) section 74 or 76...”
57Section 106 relevantly states as follows:
“Power of the court to extend final order
…
(2) The court may order the extension of a final order if the court is satisfied, on the balance of probabilities, that if the order is not extended the respondent is likely to commit family violence against the protected person.
(3) Subsection (2) applies whether or not the respondent has—
(a)committed family violence against the protected person while the final order was in force; or
(b)complied with the order while it has been in force.”
(emphasis added)
58Finally, section 119 provides:
“Conduct of appeal
(1) The appeal is by way of a rehearing by the County Court or the Supreme Court.
(2) On the appeal, the County Court or Supreme Court may—
(a) confirm the relevant decision; or
(b) set aside the relevant decision; or
(c)vary the relevant decision and make any other order the Magistrates' Court or Children's Court could have made and exercise any other powers that the Magistrates' Court or Children's Court may have exercised; or
(d)make a determination under section 136(2) of the Personal Safety Intervention Orders Act 2010 and make any order the Magistrates' Court or Children's Court could have made and exercise any other powers that the Magistrates' Court or Children's Court may have exercised under Division 2 of Part 8 of that Act.”
Analysis
Ground 1 – did the nature of the breaches fall within the definition of ‘family violence’ as defined in the Act?
59Counsel for Mr Costanza asserted in his written submissions that the only conduct which Ms Manfrin relied on in her extension application was the breaches of the interim FVIO.[35] At the hearing, he submitted that the only evidence before the Magistrate to satisfy her that Mr Costanza was likely to commit family violence was the breaches, and Ms Manfrin’s oral evidence regarding the non-threatening nature of the breaches.
[35]Appellant’s outline of submissions dated 3 October 2024, paragraph [26]
60It was common ground between the parties that the breaches occurred.
61Counsel for Mr Costanza conceded that the Magistrate had not made a finding that the breaches constituted family violence. Rather, he submitted that as a matter of logic, her Honour could not have exercised her discretion to extend the FVIO pursuant to section 106 of the Act without:
(a) Finding that the historical breaches met the definition of family violence (the alleged factual error); and
(b) Satisfying herself that those breaches, which in his submission were the only relevant conduct relied upon by Ms Manfrin, established that Mr Costanza was likely to commit family violence against the protected people in the future if the FVIO were not extended.
62I will address (a) of the above paragraph under Ground 1 of this appeal, limited to the alleged factual error. I will consider (b) of the above paragraph under Ground 2 of this appeal, noting my below finding that the breaches were not the only relevant evidence before the Magistrate.
63Counsel for Mr Constanza submitted that the breaches did not constitute family violence as defined by section 5 of the Act, and therefore there was no evidence capable of supporting a finding of family violence within the meaning of the Act.
64In his written submissions, Counsel for Mr Costanza asserted that the 26 February 2023 text message was best described as “an accident”.[36] He further submitted that the 31 March 2023 and 3 June 2023 Facebook posts, while not accidental, bore none of the characteristics of family violence as defined by the Act and were a result of Mr Costanza’s honest but unreasonable mistake about the conditions of the order.[37]
[36]Appellant’s outline of submissions dated 3 October 2024, paragraph [28]
[37]Appellant’s outline of submissions dated 3 October 2024, paragraph [28]
65While I accept the rationale behind Counsel’s submission as outlined in paragraph 61 above, I reject the conclusion of his submission that the breaches could not constitute family violence.
66The breaches needed to be considered in the context of all the evidence before her Honour. That evidence included allegations of a 20-year history of family violence, which was unchallenged and uncontradicted.
67I will discuss this further below.
68Seen in that context, it was open to her Honour to conclude that the breaches were emotionally or psychologically abusive, were threatening, or conceivably controlled or dominated that family member and caused that family member to feel fear for the safety or wellbeing of that family member or another person, and therefore constituted family violence as defined in section 5 of the Act.
69I therefore find that there was no error of fact in her Honour’s decision.
Ground 2 – was it reasonably open to the Magistrate to find that Mr Costanza was likely to commit family violence if the order were not extended?
70The evidence before the Magistrate which was capable of supporting this finding included the following:
(a) The application for the FVIO made by the police;
(b) Ms Manfrin’s application for an extension; and
(c) The oral evidence of Ms Manfrin.
71For the reasons outlined below, I am satisfied that it was reasonably open to the Magistrate to make this determination.
The application for the FVIO made by the police
72The application for the FVIO made by the police[38] referred to:
(a) Mr Costanza using his position to intimidate and control Ms Manfrin;
(b) Mr Costanza having a violent and intimidating persona towards Ms Manfrin causing her to fear for her life; and
(c) A long history of violence towards Ms Manfrin which had never been reported to police due to her extreme fear.
[38] Original police application for an intervention order (summons or warrant), undated
73The application also referred to:
(a) Ms Manfrin believing that Mr Costanza had let himself in to her home on multiple occasions when she had not been present, because things had gone missing from around the house after he moved out of the family home.
(b) Ms Manfrin becoming increasingly concerned that Mr Costanza might be listening to private conversations with others, causing her to feel vulnerable and at increased risk due to their recent separation.
(c) Ms Manfrin not being willing to disclose any physical violence or threats due to feeling extremely fearful of not being able to protect herself from Mr Costanza.
74The interim and final FVIO were made based on these allegations. The final FVIO was made by consent and without admission, and thus without findings of fact. The application for that FVIO was relevant and necessary evidence that the Magistrate was entitled to rely upon in arriving at her decision to grant the extension of the order.
75The original application, and the allegations contained within it, provide context to the reasons Ms Manfrin gave for needing an extension of the order. The documents needed be read together to understand the basis of her application for an extension.
Ms Manfrin’s application for an extension and her oral evidence
76In her application for an extension of the order, Ms Manfrin said that:
(a) She remained fearful for her children and their safety.
(b) The breaches of the interim FVIO left her feeling unsafe and fearful.
(c) The breaches had taken a toll on her emotional wellbeing and affected her ability to feel safe after enduring family violence and abuse through her marriage.
(d) Her fear was that without a FVIO in place, nothing would stop Mr Costanza from abusing her and their children.
77She confirmed this in her sworn answers to questions from her Honour at the hearing on 17 June 2024.
78As outlined above, the application for the extension, the application for the FVIO made by the police and Ms Manfrin’s sworn oral evidence needed to be considered together to understand the context of the breaches of the FVIO and their relevance to the extension application.
79On this basis, I found that it was open to her Honour to conclude that the breaches of the FVIO constituted family violence.
80That leaves consideration of whether it was open to Her Honour to find, on the basis of the evidence before her, that Mr Costanza was likely to commit family violence against protected people in the future if the order were not extended as outlined at paragraph 61(b) above.
81Counsel for Mr Costanza’s submission was essentially that if the Magistrate had properly assessed the evidence regarding the nature and content of the breaches, and the appropriate weight had been given to them, that her Honour could not have made that finding, and thus could not have granted the order for the extension.
82He referred me to Sheridan (a pseudonym) v Thompson (a pseudonym) (“Sheridan”) in support of this submission.[39]
[39] [2022] VCC 261 (‘Sheridan’)
83He submitted that in this case, his Honour Judge Pillay determined the likelihood of the appellant committing family violence in the future by assessing the history of alleged family violence, including a “technical breach”[40] of an FVIO.
[40] Sheridan at [37]
84This decision pre-dates the AAA decision, and thus the appeal was conducted on a de novo basis. Counsel for Mr Costanza was aware of this and did not rely on the decision as authority for how I should decide the matters relevant to this preliminary hearing.
85Rather, he submitted that Sheridan provided guidance on an intuitive and logical way for a Judge to reasonably exercise their discretion in determining whether an FVIO should be extended, by looking at the history of family violence and the nature of any breaches of an FVIO.
86It was submitted that Mr Costanza’s case, as in Sheridan, the breaches were ‘technical’ breaches, rather than breaches that constituted family violence within the meaning of the legislation. As outlined at paragraph 64, the breaches were submitted to be accidental or mistaken. He further submitted that during the hearing, Ms Manfrin gave sworn evidence that the nature of the breaches were non-threatening. Consequently, he submitted that the Magistrate erred in her exercise of discretion as there was no rational basis on the evidence before her to be persuaded that Mr Costanza was likely to commit family violence if the order were not extended.
87I reject that submission.
88While Mr Costanza may have wished to challenge the evidence of Ms Manfrin or make submissions about the gravity of the breaches or the weight that ought to be accorded to them, he was not present at the hearing to do so. While I accept that his absence was due to an oversight, that does not change the fact that Ms Manfrin’s evidence was uncontradicted before the Magistrate.
89While the new evidence that I have admitted provides context about the nature of the breaches and the charges laid against Mr Costanza, it also confirms that the evidence provided by Ms Manfrin before the Magistrate about the nature of the breaches was reliable.
90It was reasonable for the Magistrate to place weight on the breaches of the interim FVIO, in the context of the allegations contained within the original application of the police, in arriving at her decision.
91Thus, I find that it was open to her Honour to conclude that in the context of that history, and on the balance of probabilities, that Mr Costanza was likely to commit family violence against Ms Manfrin and their children if the FVIO was not extended.
92This was not unreasonable or unjust considering the evidence before her Honour.
93I therefore find that her Honour did not make an error of discretion in exercising the power to extend the FVIO.
Conclusion
94Mr Costanza has not made out any of his grounds and his appeal is therefore dismissed.
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