Cuso (a pseudonym) v Hill (a pseudonym) (Ruling)
[2025] VCC 876
•3 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
| NICK CUSO (A PSEUDONYM) | Appellant |
| v | |
| NANCY HILL (A PSEUDONYM) | Respondent |
---
JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2025 | |
DATE OF JUDGMENT: | 3 July 2025 | |
CASE MAY BE CITED AS: | Cuso (a pseudonym) v Hill (a pseudonym) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 876 | |
RULING
---
Subject:INTERVENTION ORDER
Catchwords: Appeal against family safety 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 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
Judgment: Appeal dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The appellant appeared in person | |
| For the Respondent (Victoria Police) | Ms J McCartney | Solicitor for the Victorian Government |
| For the Respondent (Ms Hill) | The respondent appeared in person |
HER HONOUR:
Introduction
1This is an appeal brought by Mr Cuso,[1] the appellant, from a decision of Magistrate Bolger in the Magistrates’ Court at Moorabbin, granting a final Family Violence Intervention Order (“FVIO”) for the protection of the respondent, Ms Hill,[2] who is the affected family member (“the AFM”) and two children, on 16 July 2024, pursuant to s74 of the Family Violence Protection Act2008 (“the Act”). The following documents were referred to in her decision:
(a) Application for the Family Violence Safety Notice filed on 14 January 2024;
(b) The police statement made by the appellant to Victoria Police dated 14 January 2023;
(c) A report by Michaela Hum, child protection worker, dated 2 February 2023;
(d) Launch Housing report (undated);
(e) Letter of Mr Josh Miles, treating psychologist of appellant, dated 29 April 2024;
(f) Affidavit of the appellant filed in the Federal Circuit and Family Court of Australia sworn 16 February 2024; and
(g) The further and better particulars filed by the appellant, Victoria Police and the AFM in accordance with the Magistrates’ Court orders made on 16 May 2024.
[1]A pseudonym
[2]A pseudonym
2There were other documents that were filed with the Court that were referred to during the contested hearing that were not relevant for the purposes of the preliminary hearing.
3At the outset, Counsel for Victoria Police advised the Court that the report of Mr Miles and the report of Launch Housing had not been filed with the bundle of appeal documents for the preliminary hearing.
4The appellant subsequently filed the reports relied on from Mr Miles and Launch Housing.
5Both the appellant and Counsel for Victoria Police advised the Court that they were content for me to rely on the transcript references to the report of Mr Miles, insofar as they related to the appellant’s grounds for appeal. Given the nature of the grounds of appeal, I am satisfied this is appropriate in the circumstances.
6On 5 August 2024, the appellant lodged an application to appeal the decision to grant the final FVIO.
7The preliminary hearing of the appeal was heard before me on 15 May 2025.
8Pursuant to the principles in AAA v County Court Victoria & Ors (“AAA”),[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
9In or about February 2020, the appellant and the AFM commenced a relationship, and subsequently married in November 2021. In or around January 2023, they separated on a final basis.[4] The appellant had been residing in Australia on a spousal via, and the AFM was his sponsor in relation to his residential status.[5]
[4]Transcript of Magistrates’ Court proceeding dated 17 June 2024 and 16 July 2024 (“T”) 83, Lines (“L”) 19
[5]T83, L20-25
10There is one child born from the relationship in 2022, and another child, who was born from previous relationship of the AFM, and who was cared for by the parties.[6] It was acknowledged during the contested hearing that the AFM does have long-standing mental health issues, although at the hearing, she confirmed that her conditions are appropriately managed, and she has access to appropriate supports and medication.[7]
[6]T83, L25-29
[7]T84, L27-28; T85, L6-8
11As commented on by the Magistrate, this proceeding, and the related proceedings in the Federal Circuit and Family Court of Australia, were impacted upon by the “long and torturous history between [the parties] during the course of their relatively short marriage”.[8]
[8]T84, L21-23
12During the course of an argument between the appellant and the AFM on 13 January 2023, the AFM attempted to take the appellant’s mobile phone from him, and then struck him on the elbow. Following this, the appellant received medical attention and imaging of his elbow. The appellant returned home on 14 January 2023, the AFM and the appellant had a further argument, where the AFM took a knife from the kitchen and threatened to either kill herself or engage in some other form of self-harm.[9]
[9]T86, L8-13
13On 14 January 2023, the appellant provided a statement to police about the events.[10]
[10]Joint Court Book (“JCB”) 72-76
14Victoria Police applied for a Family Violence Safety Notice on 14 January 2023 for the protection of the appellant against the AFM following this event. The following statement of reasons for why the order was sought was provided:
“The AFM and RESP are a married couple and have been together for the past 3 years. They have one child together (5 months old) and the RESP has a son (3 years old) from a previous partner. At approximately 02:00pm 13/01/2023 the AFM tried to have a conversation with the RESP about how child protection has been getting involved with there (sic) relationship as the RESP suffers from mental health conditions and there has been some allegations made. The RESP has then stormed into the bedroom, grabbed the AFM’s phone out of his hand and smashed it into the AFM’s right elbow, causing swelling and bruising. The AFM has then gone to see a doctor at [Suburb A] Medical at approximately 03:00pm that same day and was sent to [Hospital B] for X-rays. While at hospital the AFM spoke to a support worker and about how the RESP caused the injury and the support worker has contacted Child protection. The X-ray came back clear with no broken bone. The AFM got home at approximately 01:40am and the RESP began another verbal argument the AFM because she had received a call from Child protection after the AFM’s visit to hospital. The RESP then began yelling saying she was going to kill herself. The RESP then went to the kitchen and pulled a knife out of the draw (sic) and continued to say she was going to kill herself. The RESP then put the knife down and has then grabbed the AFM by the forearms digging her nails causing scratches to the AFMs arms telling the AFM “I want you to hug me. I want you to kiss me” The RESP then grabbed the AFM around the back of the neck scratching the AFM further. The AFM called 000. ADM stated to police he was fearful of the RESP and needs an IVO. Police believe an IVO is necessary for AFM’s safety.”[11]
[11]JCB 325
15Despite this application, no FVIO was made for the protection of the appellant. Instead, an interim FVIO was made by Moorabbin Magistrates Court on 24 January 2023 against the AFM for the protection of the two children.[12]
[12]JCB 320
16The final FVIO was made by Moorabbin Magistrates’ Court on 16 March 2023. The final FVIO was consented to by the AFM without admission of the allegations contained within the application.[13] It was made on the same basis as the interim FVIO and expired on 16 March 2024.
[13]JCB 78; JCB 216
Interim FVIO
17In the application and summons for an Intervention Order dated 7 December 2023, Victoria Police on behalf of the AFM provided the following reasons for why an FVIO was needed:
“THE AFM AND RESP ARE EX-PARTNERS. THEIR RELATIONSHIP WAS ON AND OFF FOR APPROXIMATELY 3 YEARS. THERE IS A CURRENT FULL CONDITION FINAL FVIVO IN PLACE BETWEEN THE CHILDREN AND THE CURRENT AFM PROTECTING THE CHILDREN. THERE IS ALSO A CURRENT FAMILY LAW COURT ORDER IN PLACE BETWEEN THE AFM AND RESP IN RELATION TO CUSTODY ARRANGEMENTS.
INCIDENT: IN AUGUST 2021 THE AFM WAS HOME WITH ONE CHILD AND THE RESP. THE CHILD WAS IN BED AND THE AFM AND RESP WERE IN THEIR BEDROOM. A VERBAL ARGUMENT STARTED BETWEEN THE PAIR, WITH IT ESCALATING QUICKLY. THE RESP PUSHED THE AFM ONTO THEIR BED, GOT ON TOP OF HER, PLACING HIS ENTIRE WEIGHT ON HER AND USED HIS FOREARM TO PRESS AGAINST HER NECK CAUSING HER NOT TO BE ABLE TO BREATH.
THE AFM ASKED THE RESP TO STOP ON MULTIPLE OCCASIONS, BUT THE RESP STATED "YOU PUSH ME AND I WILL KILL YOU". HE CONTINUED TO APPLY THIS PRESSURE UNTIL THE AFM MANAGED TO BREAK FREE AND GO TO THE BATHROOM TO ESCAPE THE RESP. THE AFM STATED SHE WAS TO [sic] FRIGHTENED TO TELL ANYONE ABOUT THE INCIDENT A [sic] SHE WAS FRIGHTENED OF THE RESP REACTION AND WHAT HE MAY DO TO HER AS A RESULT OF TELLING PEOPLE. SHE EVENTUALLY REPORTED THIS TO HER CASE WORKER, BUT INFORMED HER SHE DIDN’T WANT ANY POLICE INVOLVEMENT.
THE AFM STATS (sic) THAT SINCE THEIR SEPARATION IN JANUARY 2023, SHE HAS SEEN THE RESP’S VEHICLE ON MULTIPL [sic] OCCASIONS GO PASSED HER CURRENT ADDRESS AND IS FEARFUL OF THIS CONTINUING TO OCCUR. POLICE BELIEVE THAT AN IVO IS REQUIRED TO PROTECT AND ENSURE SAFETY FOR THE AFM. POLICE HOLD CONCERNS THAT IF AN IVO IS NOT GRANTED, FURTHER FV MAY OCCUR.”
18An interim FVIO was granted on an ex parte basis on 7 December 2023.[14] This application was sought by Victoria Police on behalf of the AFM. The interim FVIO was made in full with no contact conditions and was served on the appellant on 8 December 2023.[15]
[14]T82, L25-26
[15]JCB 319 at paragraph [6]
19The matter was subsequently adjourned to a mention on 12 March 2024 and on that occasion, the appellant indicated to the Court that he intended to contest the making of an FVIO.[16]
[16]T82, L26-30
20At this hearing, the Court ordered that Victoria Police file the following documents:
(a) A brief summary of the allegations relied upon including time, date and place in the order in which they have alleged to have occurred;
(b) A copy of any material relied on; and
(c) A list of witnesses and a brief outline of their evidence.
21The Court also made orders that the appellant may file with the Court:
(a) A brief response to the allegations in the application made and the interim order (or orders sought) (including any conditions which are agreed);
(b) A copy of any material to be relied upon; and
(c) A list of witnesses and a brief outline of their evidence.
22On 16 May 2024, the matter was listed for a directions hearing, and the interim order previously made was continued on the same terms and conditions.[17] At this hearing, leave was not granted to Victoria Police to withdraw from the proceedings, and orders were made for all parties to file further and better particulars. The Court also made orders for Victoria Legal Aid to offer the appellant legal representation for the purposes of cross-examination of the protected witnesses, pursuant to s71(1) of the Act.[18]
[17]T82, L30-31; T83, L1-2
[18]JCB 312
23On 27 May 2024, the further and better particulars filed by Victoria Police noted that the AFM had one prior conviction for unlawful assault, where the appellant was the victim. This resulted from the events on 13 and 14 January 2023, and the charge against the AFM was proven and dismissed by the Magistrates’ Court at Moorabbin on 4 July 2023.[19]
[19]JCB 320
24The matter was subsequently listed for contested hearing on 17 June 2024.[20]
[20]T83, L3-10; I note that these documents were not before me at the preliminary hearing on 15 May 2025
Final FVIO
25The contested hearing was heard on 17 June 2024, and Magistrate Bolger handed down her decision on 16 July 2024. At the contested hearing, the appellant and the AFM gave evidence, as well as three witnesses of the appellant, who were counsellors or support persons of the appellant.[21]
[21]T72, L1-3
26At this time, there were also family law proceedings on foot, which were listed for final hearing in or around November 2024.
27The Magistrate noted that during evidence, the AFM alleged that the appellant had engaged in coercive control throughout the relationship, although the appellant gave evidence that his actions were to “exercise some measure of control over what was otherwise a chaotic family arrangement”.[22] The AFM gave evidence that the behaviours exhibited by the appellant went well beyond this, and that the behaviour was in fact “oppressive” and further worsened her mental health conditions by the stress these actions caused.[23]
[22]T94, L8-15
[23]T94, L22-23
28However, the Magistrate noted that the report commissioned by the Department of Family Fairness and Housing referenced concerns regarding physical confrontations where the appellant was characterised as the aggressor.[24]
[24]T94, L30-31; T95, L1-2
29In her decision, Magistrate Bolger was critical of the appellant’s evidence of the events of 13 and 14 January 2023, as she noted that it had “changed somewhat in terms of its fundamentals with each retelling of it”.[25] She remarked that the appellant’s version of events had become “embellished and enlarged over time” in a manner that was not corroborated by the contemporaneous material.[26]
[25]T86, L31; T87, L1
[26]T90, L4-6
30One example of the discrepancies in the appellant’s evidence was the material filed by the appellant which noted that there was “no lasting injury” following the events, but in subsequent retellings of the events, the injuries sustained included a dislocated or broken arm.[27] She also commented on the police statement dated 14 January 2023, where the appellant reported that the AFM had placed the knife down and grabbed the appellant by the neck. However, the appellant’s subsequent recounting was where the appellant was “threatened and slashed with a knife…that this knife was wielded by the affected family member with criminal intent towards the [appellant]”.[28] The appellant was afforded an opportunity during cross-examination to account for the apparent discrepancies, but could only state that these were matters that were not raised with the police at the time.[29] The Magistrate subsequently concluded that the appellant was a poor witness as a result of these discrepancies.
[27]T88, L22-23; T90, L1-3; JCB 299
[28]T89, L28-31; JCB 299
[29]T90, L26-29
31The Magistrate noted the timing of the contested hearing as occurring in the middle of protracted and highly contested proceedings in the Federal Circuit and Family Court of Australia, and that both parties had competing interests for that particular proceeding.[30]
[30]T93, L27-30
32The Magistrate outlined that she was satisfied, having regard to the requirements detailed in the Act, that family violence had occurred and that the appellant had sought to locate the AFM and the children, despite her reluctance for him to know their location.[31] The Magistrate also said that she was satisfied that there was a likelihood of this behaviour reoccurring on the basis of the protracted family court proceedings, the positions adopted by the parties, and what she viewed as the appellant’s “willingness to frame matters in a way that casts the AFM in the worst possible light” to secure an advantageous position for himself.[32]
[31]T95, L5-9
[32]T95, L16-30
33The Magistrate subsequently made the final FVIO in the form of a safe contact order protecting the AFM and the two children, with a duration of two years from the date of the decision being made.
Appellant’s application to admit new evidence
34Justice John Dixon considered the nature of an appeal under s119 of the Act and whether new evidence could be admitted in AAA.
35His Honour found that an appeal pursuant to s119 was a broad appeal by way of rehearing that allowed for new evidence.[33] 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.”[34]
(Footnotes omitted.)
[33] AAA at paragraph [51]
[34]AAA at paragraph [50]
36He considered the role of the appellate court in an appeal pursuant to s119 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.”[35]
(Emphasis added.)
[35]AAA at paragraph [67] and the authorities cited therein.
37Further, he found that s65 and s121 of the Act, read together, permitted new evidence to be led and admitted, with the safeguards afforded by s65(3).
38The appellant sought to rely on the following new evidence:
(a) the AFM’s Working with Children Check Report dated 6 October 2023;
(b) an interim FVIO to which the AFM was the respondent made on 3 April 2024 (to which the appellant was not a party);
(c) an undated NDIS support report prepared by Support Chain regarding the AFM’s child, and previously the appellant’s step-child, who was named as an AFM under the final FVIO;
(d) Hospital B records relating to the events dated 13 and 14 January 2023; and
(e) final parenting orders by consent of the Federal Circuit and Family Court of Australia dated 19 November 2024.
39After hearing from the parties, I ruled that this evidence was inadmissible on the basis that it was not before the Magistrate, nor had it been sought to be tendered at the time she made her decision and thus did not go to the question of whether there was legal, factual or discretionary error on the part of the Magistrate.
Appeal by rehearing
40Pursuant to s119 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.[36]
[36]The Act s119(2)(a)-(c)
41To enliven the jurisdiction of this court, the appellant must first demonstrate that the Magistrate made a factual, legal or discretionary error.
42For reasons explained in this ruling, I find that the appellant has not made out his grounds of appeal and the jurisdiction of this Court has therefore not been enlivened.
Appeal grounds
43The appellant outlined his appeal grounds in his notice of appeal dated 24 October 2024 and his statement of grounds of appeal dated 19 December 2024. As there were some slight variations between those documents, I took him to the characterisation of his grounds of appeal, as outlined by the Victoria Police, and asked whether they properly characterised his grounds of appeal. After careful consideration he agreed that they did.
44Being mindful of the requirement to ensure that a self-represented litigant is provided with a reasonable opportunity to present their case,[37] I have characterised the appellant’s grounds of appeal as follows:
(a) Ground 1: the Magistrate did not take into account the Working with Children Check report or the appellant’s police statement made on 14 January 2023 identifying the appellant as the victim (legal error);
(b) Ground 2: the Magistrate failed to put sufficient weight on evidence where the appellant was the victim of family violence, which resulted in a mischaracterisation of the appellant as the aggressor (legal error);
(c) Ground 3: the Magistrate failed to consider evidence supporting the appellant’s proactive role as a parent, which resulted in a misinterpretation of the appellant’s conduct and parenting role (legal error);
(d) Ground 4: the final FVIO conflicts with the final Family Court parenting orders which were made on 19 November 2024 (legal error); and
(e) Ground 5: the Magistrate erred in finding that the appellant was likely to continue to commit family violence or continue to do so again (mixed factual and legal error).
[37]Doughty-Cowell v Kyriazis [2018] VSCA 216 at paragraph [63]; Tomasevic v Travaglini (2007) 17 VR 100 at paragraph [136]
45Following my ruling on the admissibility of new evidence, the appellant abandoned Ground 4, and abandoned Ground 1 insofar as it related to the Working with Children Check report.
Appellant’s submissions
46In support of the submissions, the appellant submitted that:
(a) Ground 1: the Magistrate failed to consider the police statement identifying him as a victim.
(b) Ground 2: the Magistrate failed to put sufficient weight on the evidence that Victoria Police made an application to withdraw from the proceedings at the hearing on 16 May 2024.[38] The Magistrate also failed to adequately weigh the evidence, which demonstrated that the appellant was a victim of family violence. This evidence included the final police FVIO against the AFM made on 16 March 2023, and the medical evidence from his general practitioner for the referral to Hospital B Emergency, and the Hospital B discharge letter.[39]
(c) Ground 3: the Magistrate did not properly consider supporting evidence, such as the letters form his general practitioner and the Hospital B Medical Centre Discharge Letter, which he argued confirmed his injuries were consistent with being the victim of family violence following the incident.[40] He argued that the Magistrate downplayed the significance of the elbow injury he sustained. The appellant submitted that there was evidence that recollection of a traumatic event could distort memory, but that ought not to have discounted what had happened. He argued that the Magistrate erred in interpreting his actions as aggressive, rather than protective, and failed to consider evidence supporting his proactive role as a parent.
(d) Ground 4 (previously Ground 5): The appellant submitted that there was no evidence of current or future contact with the AFM and therefore the second limb of s74(1) had not been made out. That is, there was no evidence that the appellant was likely to continue to commit family violence or do so again.
[38]JCB 312
[39]JCB 33, 36-38
[40]JCB 14
Respondent’s submissions
47Counsel for the Victoria Police on behalf of the respondent submitted that:
(a) Ground 1: the Magistrate took the police statement into account, identifying the appellant as a victim, referring to it in the transcript of the 16 July 2024 hearing as follows:
“… the point is that the police statement made at the time describes an incident that is essentially in keeping with the material detailed in the intervention order application that was filed for and on behalf of the respondent in this proceeding.
What’s notable in my view is that in subsequent recountings of the incident, it’s become one where the respondent was subjected to a greater level of violence and in the retelling, the respondent becomes a person who’s being threatened and slashed with a knife, that this knife was wielded by the affected family member with criminal intent directed towards the respondent.”[41]
Accordingly, the Magistrate did take this into account and therefore this ground fails.
(b) Ground 2: the Magistrate was aware that the appellant had previously been the victim of family violence. The Magistrate made detailed reference to the incident on 13 January 2023, where the appellant was the victim of family violence. The Magistrate referred to an intervention order being made for the protection of the appellant following the events,[42] which had since expired and there was no order in place at the time of the Magistrates’ decision in relation to the respondent seeking protection from the AFM.[43] The Magistrate also referred to the proven yet dismissed charge of unlawful assault against the AFM. The fact the appellant was a victim of family violence does not negate him also being a perpetrator of family violence. Counsel submitted that the Magistrate considered all of the evidence and gave detailed reasons as to how she was satisfied, on the balance of probabilities, that the appellant committed family violence against the AFM. Therefore, Ground 2 must fail.
(c) Ground 3: these proceedings were not to determine the parenting suitability of either party. The parenting efforts made by the appellant are an irrelevant consideration to determining if he perpetrated family violence against the respondent and the ongoing risk.[44] The Magistrate concluded that the appellant’s credibility was poor due to the unexplained discrepancies in the evidence, not because of her failure to consider evidence about his parenting efforts. The appellant had failed to substantiate that the Magistrate did not consider or put sufficient weight on the evidence. Therefore, Ground 3 must fail.
(d) Ground 4: it was open to the Magistrate to find that family violence had occurred, and that there was a real prospect of continuing family violence. Therefore, Ground 4 must fail.
[41] JCB 89-90
[42]T86, L15-18
[43]T86, L19-21
[44]JCB 299
Relevant legal principles
Factual error
48The relevant legal principle applicable to factual error is found in the High Court case of Lee v Lee.[45] 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”. … .”[46]
(Footnotes omitted.)
[45](2019) 266 CLR 129
[46]Ibid at paragraph [55]
Legal error
49A 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.”[47]
[47]Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at paragraph [23]
50A failure to afford a party procedural fairness will involve legal error if that failure could have materially affected the decision of the court.[48]
[48]Hunt v Cupples [2023] VCC 2370 at paragraph [39]
51As explained by Kiefel CJ, Keane and Gleeson JJ in Nathanson v Minister for Home Affairs:[49]
“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.”[50]
[49](2022) 276 CLR 80
[50]Ibid at paragraph [33]
Discretionary error
52Where 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.
53The relevant legal principle application for discretionary error is found in the High Court case of House v The King.[51] 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.”[52]
[51](1936) 55 CLR 499
[52]Ibid at 504-505
Unrepresented litigants and the right to a fair hearing
54Procedural fairness, and the correlative right to a fair hearing,[53] 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. [54]
[53]Roberts v Harkness (2018) 57 VR 334 at paragraph [46]
[54]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]
55In 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”.[55]
[55]Doughty-Cowell v Kyriazis (supra) at paragraph [63]
56For this purpose, what is considered “reasonable” will depend on the circumstances of the case.[56] 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.[57]
[56]Roberts v Harkness (supra) at paragraph [49]
[57]Ibid; Doughty-Cowell v Kyriazis (supra) at paragraph [63]
57The 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.[58] 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?”[59]
[58]Roberts v Harkness (supra) at paragraph [54]
[59]Roberts v Harkness (supra) at paragraph [53]
58In Tomasevic v Travaglini,[60] 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. … .”[61]
[60][2007] 17 VR 100
[61]Ibid at paragraphs [140]-[141]
Relevant provisions
59The provisions of the Act relevant to the appeal are set out below.
60Section 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.”
61Section 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.”
62Section 7 specifies:
“Meaning of emotional or psychological abuse
For the purposes of this Act, emotional or psychological abusemeans behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.”
63Section 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.”
Analysis
Ground 1: Did the Magistrate fail to take into account the police statement of 14 January 2023 referring to the appellant as a victim?
64Having reviewed the transcript as outlined above, I am satisfied that the Magistrate took the police statement into account before making findings of fact, including findings with respect to the appellant’s credibility.
65I am satisfied that she placed appropriate weight on this before making final orders pursuant to s74(1).
66The proceedings before the Magistrate were to determine whether the appellant perpetrated family violence against the AFM and any other protected persons, and whether he was likely to continue to do so or do so again.
67Therefore, Ground 1 of the appellant’s appeal has not been made out and I dismiss Ground 1 of the appeal.
Ground 2: Did the Magistrate fail to put sufficient weight on the evidence which resulted in a mischaracterisation of the appellant as the aggressor?
68The Magistrate made it clear she had considered the evidence regarding the appellant having previously been a victim of family violence. She specifically referred to the Family Violence Safety Notice made for the appellant and the proven yet dismissed charge of unlawful assault against the AFM.
69However, she appropriately also made various findings in relation to the appellant’s credibility, which went to discrepancies in the appellant’s evidence.
70While this historical context was important and was appropriately taken into account by the Magistrate, her task was to determine whether the requirements of s74(1) of the Act had been made out.
71That is, just because the appellant had previously been a victim of family violence, it does not mean that he could not be a perpetrator of family violence against the AFM.
72Having reviewed the transcript, I am satisfied the Magistrate did not fail to put sufficient weight on the evidence in arriving at her decision.
73Therefore Ground 2 is dismissed.
Ground 3: Did the Magistrate fail to consider evidence supporting the appellant’s proactive role as a parent, resulting in a misinterpretation of the appellant’s conduct and parenting role?
74As outlined in relation to my findings on Ground 2, it is clear from a review of the transcript that the Magistrate considered all of the evidence, including the historical evidence, and made various findings regarding the credibility of the appellant. Those findings were based on the discrepancies in the appellant’s evidence, rather than any failure to consider evidence regarding his role as a parent.
75The appellant made submissions at the preliminary hearing regarding his recollection of events having been affected by trauma. While this may or may not be the case, on review of the transcript, I find it was open to the Magistrate to make the findings that she did with respect to the credibility of the appellant.
76Therefore, Ground 3 fails.
Ground 4: Was it reasonably open to the Magistrate to find that the appellant had committed family violence against the AFM and was likely to continue to do so, or do so again?
77As outlined in paragraph 63, s74(1) provides the court with the power to make a final order if it is satisfied, on the balance of probabilities, that a respondent (the appellant in this matter) has committed family violence against the AFM and is likely to continue to do so, or do so again.
78As also outlined above, s5 of the Act defines “family violence” in a much broader way than “contact”.
79Having reviewed the transcript, I am satisfied that it was open to the Magistrate to find that the appellant would continue to commit family violence or do so again. This is because the Magistrate made her findings based on the following evidence:
(a) The AFM’s evidence in the application and summons for the FVIO, where the AFM reported physical violence by the appellant against the AFM and the AFM reporting that she seen the appellant’s vehicle go past her current address on multiple occasions following their separation and was fearful of this behaviour continuing to occur; [62]
(b) The AFM’s oral evidence during the contested hearing concerning the appellant’s controlling behaviour[63] and that the arguments between the parties had turned into physical confrontations;[64] and
(c) The DFFH report, which made references to their concerns regarding instances where the appellant was described as the aggressor.[65]
[62]T14, L24-28; T15, L1-3, 28-29; JCB 305-306
[63]T16, L28-31; T17, L1-6, L9-31
[64]T15, L3-6; T94, L6-10, 20-27
[65]T94, L30-31; T95, L1-2
80On review of the transcript, it is evident that the Magistrate took into account both the appellant and the AFM’s evidence. The Magistrate weighed and considered the evidence of the AFM against that of the appellant’s.
81For example, the Magistrate made findings about the appellant’s credibility on the basis of his inconsistent oral evidence regarding the circumstances of the events, and the nature of his injuries following the events. The Magistrate weighed this evidence against the AFM’s oral evidence, the contemporaneous records written at the time of the events, and the fact that the AFM had been charged with unlawful assault, which was later dismissed. Ultimately, the Magistrate ruled in favour of the AFM in granting the final FVIO and provided her reasons as to why she was satisfied that the requirements of s74(1) had been met.
82Therefore, it was open to the Magistrate to make findings about the appellant’s credibility on the basis of his inconsistent oral evidence regarding the circumstances of the events, and the nature of his injures.
83It was also open to the Magistrate to accept the evidence of the AFM that she had seen the appellant’s vehicle go past her current address on multiple occasions following their separation and was fearful of this behaviour continuing to occur.
84I find that it was therefore open to the Magistrate to find that there was a “real prospect” of continuing coercive control and misstatement of events by the appellant to secure a particular advantage.[66]
[66]T95, L23-30
85This was sufficient for the Magistrate to be satisfied that the appellant was likely to continue to commit family violence against the AFM, or do so again.
86I therefore find that the appellant has not established that the Magistrate’s decision was not open to her on the material before her, or that the findings of fact were “glaringly improbable.”[67]
[67]Lee v Lee (2019) 266 CLR 129, [55]
87I also find that the Magistrate did not fall into legal error in her application of her findings to the law.
88Therefore, Ground 4 fails.
Conclusion
89As the appellant has not made out any of his grounds, his appeal is therefore dismissed.
---
11
0