Da (a Pseudonym) v GA (a Pseudonym) (Ruling)
[2024] VCC 1307
•30 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case No. AP-23-0314
| DA (A PSEUDONYM) | Appellant |
| v | |
| GA (A PSEUDONYM) | Respondent |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2024 | |
DATE OF RULING: | 30 August 2024 | |
CASE MAY BE CITED AS: | DA (A Pseudonym) v GA (A Pseudonym) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1307 | |
RULING
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Subject:FAMILY VIOLENCE INTERVENTION ORDER APPEAL
Catchwords: Refusal by magistrate to make intervention order – order made on special mention listing – appellant sought orders in respect of original notes and personal property – extended history of family and property disputes – magistrate summarily dismissed appellant’s application and respondent’s cross-application on special mention listing – appellant contends legal error – Appellate Court jurisdiction enlivened – legal error made out – original order varied
Legislation Cited: Family Violence Protection Act 2008 (Vic), s4, s5, s6, s7, s11, s53, s61, s65, s74 and s119; Magistrates’ Court (Family Violence Protection) Rules 2018 (Vic), r6.01 and r6.02
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Grassby v R (1989) 168 CLR 1; L v L and anor [2016] VSC 182
Ruling: Error made out. Original decision varied striking out the appellant’s application for an intervention order made on 4 May 2022 pursuant to r6.02 of the Magistrates Court (Family Violence Protection) Rules 2018 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Dober | |
| For the Respondent | Mr T Kovacic | Gigliotti Lawyers |
HER HONOUR:
Introduction
1This is an appeal under Division 9 of the Family Violence Protection Act 2008 (Vic) (“the Act”) from an order made by Magistrate Wallington at Melbourne at a special mention on 20 February 2023, refusing to make an intervention order and effectively dismissing the application.
2The appellant and respondent are sisters. They have a third sister who is not a party to the Intervention Order proceedings. The appellant’s application for an intervention order was made in May 2022, following a series of events and legal proceedings between the appellant and her elderly mother, and later between the appellant and her sister.
3At the time of the events in question, the appellant had been living with her mother in the family home in a suburb in Melbourne.
4The events and proceedings arose from a transfer of land, allegedly made in 2014 by their mother to the appellant as a gift, or without consideration. In March 2020, police applied for, and obtained, an intervention order in the Magistrates Court for the protection of the mother from the appellant.
5In March 2020, on attending to gather clothing for her mother, the respondent came into possession of notes written in the hand of the appellant. These notes contained reference to the appellant’s intentions in respect of the gifted property and the dispute with her sisters. Thereafter, the appellant made various unsuccessful efforts to obtain the original notes, initially from her mother.
6Around the same time, the appellant placed caveats over a number of properties and her mother issued proceedings in the Supreme Court of Victoria seeking orders against the appellant and the Registrar of Titles in respect to the caveats, and other property.
7In November 2020, the Intervention Order for the protection of the mother was varied. The effect of the variation was to require the appellant to leave the family home in a Melbourne suburb where she had been residing. The house was subsequently sold and some of the appellant’s furniture and property had allegedly been destroyed or disposed of in skip bins.
8In May 2022, the appellant issued an application for an intervention order against the respondent. The application sought orders in respect of the original notes and complained that personal property had been disposed of or destroyed by the respondent.
9The respondent issued a cross-application and both were listed for contested hearing in the Magistrates’ Court at Melbourne. Orders were also made that Further and Better Particulars of the applications be furnished by both parties.
10On 20 February 2023, a special mention had been listed at the request of the appellant. The purpose of the mention was for the appellant to raise an issue regarding documents alleged to be missing from the respondent’s Further and Better Particulars.
11At the special mention, the appellant appeared unrepresented. The respondent did not appear. The magistrate disposed of the matter summarily, informing the appellant that her application was being refused, as it did not meet the criteria of family violence. The magistrate also struck out the respondent’s cross-application for non-appearance, but that decision is not before this court.
The appeal and summary of findings
12The appellant complains of legal error. Namely, that the magistrate had no power to dismiss her application at the special mention without hearing any evidence and submits that the magistrate ought to have provided her an opportunity for legal advice, or an opportunity to re-plead her claim.
13For reasons which follow, I find that the magistrate did not have any power under the legislation to dismiss the application in the way she did and therefore the appellant has made out legal error. However, I consider the magistrate’s assessment of the matter was accurate. Given the magistrate’s findings, there was power under the Magistrates’ Court (Family Violence Protection) Rules 2018 (Vic) (“the Rules”) to strike out the proceeding. I have therefore varied the Order of the magistrate. In exercising the powers of the Magistrates’ Court, I have struck out the application pursuant r6.02 of the Rules, as the application was frivolous or an abuse of the process of the Court. My reasons follow.
14As stated above, the Intervention Order application before the magistrate arose from a complex series of unfortunate interactions between the appellant and the respondent. Those interactions were to some extent outlined in the application for the Intervention Order and in more detail by the parties in their respective further and better particulars filed with the Magistrates’ Court.
15In order to understand the reasons behind the magistrate’s findings, it is necessary to set out some of these interactions in a little more detail. The summary which follows does not purport to include all events. Only the most pertinent events outlined in the documents filed in the Magistrates’ Court are set out below.
16On 13 July 2021, a deed of settlement (“the Deed”) was entered into between the appellant and her mother in the Supreme Court proceedings. The Deed provided for the lifting of various caveats[1] and payment of moneys by the appellant to her mother. It transferred the appellant’s extant claim for personal property to the Magistrates’ Court.
[1]Two had been lodged by the appellant in respect of the mother’s properties. One was lodged by the mother in respect of the property allegedly gifted or transferred to the appellant by the mother in 2014; see Appellant’s Court Book (“ACB”) 205
17Clause 6 of the Deed provided that the mother will, within fourteen days, make available for collection, personal documents which had been in her possession or in the possession of her servants and agents, to be collected by the appellant from the office of the mother’s lawyers.[2]
[2]ACB 78-79, appellant’s Further and Better Particulars at paragraph [39]; ACB 208
18On 7 April 2022, the respondent attended the offices of her mother’s lawyers to collect the original documents. Some copy documents were provided to her by the lawyers, however no originals were provided.
The Intervention Order application
19On 4 May 2022, the appellant filed her application for an intervention order against the respondent at the Melbourne Magistrates’ Court.
20The application stated that an intervention order was needed because:
“THE RESPONDENT IS MY SISTER. THE MOST RECENT INCIDENT OCCURRED 7TH APRIL 2022. AS ARRANGED BY MY LAWYER, I WENT TO COLLECT MY PERSONAL DOCUMENTS THAT THE RESPONDENT HAS IN HER POSSESSION, FROM THE RESPONDENT’S LAWYERS. THE LAW FIRM ONLY GAVE ME COPIES OF THESE PERSONAL DOCUMENTS. I AM WANTING TO OBTAIN ALL ORIGINAL DOCUMENTS TO WHICH I BELIEVE IS IN THE RESPONDENTS (sic) POSSESSION STILL. THE RESPONDENT TOOK THESE DOCUMENTS FROM MY HOME WITHOUT MY PERMISSION AND FAILED TO RETURN THESE TO ME AS PER POLICE INSTRUCTIONS. I HAVE BEEN TRYING TO OBTAIN THESE DOCUMENTS FOR 2 YEARS. I FEAR SHE MAY DESTROY THE DOCUMENTS OR THAT SHE MAY USE THEM TO CAUSE ME HARM OR IMPERSONATE ME. WITHIN THE PAST 2 YEARS, THE RESPONDENT HAS DESTROYED MY PROPERTY, TAKEN MY BELONGINGS FROM MY HOME WITHOUT MY PERMISSION, ISOLATED ME FROM MY MOTHER AND EXTENDED FAMILY MEMBERS, SLANDERED ME AND REDIRECTED MY MAIL FROM MY HOME ADDRESS TO HER ADDRESS. IN 2020 THE RESPONDENT FALSELY ACCUSED ME OF COMMITTING FAMILY VIOLENCE AGAINST MY MOTHER. THE RESPONDENT WENT TO THE POLICE AND TOOK OUT AN INTERVENTION ORDER WHERE I WAS THE RESPONDENT AND MY MOTHER WAS THE PROTECTED PERSON. THE RESPONDENT HAS SUCCEEDED INFLUENCING MY MOTHER, CONVINCING HER TO REMOVE ME FROM THE FAMILY HOME AND NOT HAVE A RELATIONSHIP OR CONTACT WITH ME. I HAVE NOT SEEN MY MOTHER FOR OVER 2 YEARS. I AM SEEKING AN INTERIM INTERVENTION ORDER SO THE RESPONDENT DOES NOT HAVE THE OPPORTUNITY TO DESTROY MY DOCUMENTS OR PERSONAL GOODS SHE HAS TAKEN”.[3]
[3]ACB 4
21On 9 May 2022, the Court refused to make an interim order and fixed the matter for hearing.
22On 22 June 2022, the respondent made a cross-application for an intervention order against the appellant.
23In July 2022, orders were made in both matters for the filing and service of Further and Better Particulars of each application for an intervention order.
24In September 2022, both parties filed their respective further and better particulars.
25Of significance to the application before the magistrate, and to this appeal, are the following assertions contained in the appellant’s Further and Better Particulars:
(a) the respondent will not return the original documents to the appellant unless an intervention order is granted that the appellant’s original documents are returned to her and all copies in her possession are destroyed, and any copies in digital form must be deleted;[4]
(b) the appellant also seeks an intervention order that the respondent be prohibited from publishing or using the appellant’s documents in the future as a result of the conduct of the respondent since 2018 until now, where she has continually made reports to police with various unsubstantiated complaints about the appellant;[5]
(c) unless an intervention order is granted to prevent the respondent from disposing and/or destroying the appellant’s personal property,[6] the respondent will not hesitate to dispose and/or destroy those items;[7]
(d) the respondent has taken photos of the inside of the family property and sent copies to various relatives of the appellant, ridiculing the appellant and slandering her. Unless an intervention order is granted preventing this behaviour, it will continue. The respondent will continue to repeat this behaviour and cause emotional and psychological harm to the appellant.[8]
[4]ACB 82, appellant’s Further and Better Particulars at paragraph [44]
[5]ACB 82, appellant’s Further and Better Particulars at paragraph [45]
[6]Which had not been disposed of in the skip bins, but taken in November 2020 and in respect of which there was a Magistrates’ Court proceeding transferred under the deed.
[7]ACB 83-84, appellant’s Further and Better Particulars at paragraph [52]
[8]ACB 85, appellant’s Further and Better Particulars at paragraphs [42]-[57]
26The respondent’s Further and Better Particulars contained a number of relevant assertions (which have been paraphrased and summarised below):[9]
(a) the situation in the family home was such that it was not safe for her mother to continue living there with the appellant, as a large amount of junk had been hoarded and stored at the home;
(b) the respondent and her sister were granted a power of attorney to look after the mother’s affairs and redirected her mail;
(c) police took out an intervention order for the protection of the mother from the appellant, which ultimately required the appellant to vacate the Brunswick property;
(d) in March 2020, following the making of the Intervention Order, the respondent attended the mother’s home with police to retrieve her mother’s belongings and was handed a folder of “notes” by Victoria Police;
(e) the “notes” contained (among other things) a plan by the appellant to “deactivate her sisters” and “[k]ill the cancer before it grows” and asked “God” to give the appellant her mother’s house;
(f) in October 2021, the Intervention Order proceedings in relation to the protection of the mother from the appellant were settled by way of an undertaking;
(g) various attempts had been made for family mediation and the Supreme Court proceeding was continuing in the Magistrates’ Court.
[9]ACB 41-49, respondent’s Further and Better Particulars
27The appellant formed the view that pages were missing from the Further and Better Particulars filed by the respondent.
28On 14 October 2022, an order was made by the Magistrates’ Court listing both applications for a contested hearing on 20 March 2023.[10] The appellant submitted,[11] and I accept, that on this day the magistrate notified her that she could request a “special mention” if she had not received the missing pages from the respondent’s Further and Better Particulars.
[10] ACB 215
[11]Appellant’s submissions dated 7 June 2024 at paragraph [8]; these submissions were requested by the Court via email dated 24 May 2024 upon further consideration of the proceeding in chambers after the conclusion of oral argument on 16 May 2024.
29Two special mentions were listed at the request of the appellant, one on 29 November 2022 and the other on 20 February 2023.
30The appellant submits both special mentions related only to the respondent’s cross-application and did not relate to her application for an intervention order, which was listed for mention on 6 March 2023.[12] I do not accept this submission. The cross-applications were related and listed together. So much is clear from the Orders made on 20 February 2023, which related to both applications.[13]
[12]Ibid at paragraphs [15]-[20]
[13]ACB 228 and 229
The magistrate’s decision
31On 20 February 2023, at the special mention, the appellant appeared unrepresented. The respondent did not appear.
32The transcript from the hearing[14] shows that the magistrate refused to make the Intervention Order sought by the appellant on four grounds. That:
(a) the application did not disclose that the appellant’s safety was in issue;
(b) the application related to a property dispute and was “the wrong avenue”[15] for such a dispute, the proper avenue was the existing (separate) litigation in the Magistrates’ Court;
(c) the dispute did not fit the criteria for family violence under the Act; and
(d) the application did not disclose that the respondent has committed family violence or that she is likely to do so in future.
[14]Transcript of Magistrates’ Court Melbourne Special Mention in February 2023 (“MCV Transcript”), also found at ACB 12-16
[15]MCV Transcript at Transcript (“T”) 2, Line (“L”) 17
33In each proceeding, two certified extracts dated 20 February 2023, were issued by the court.[16] As stated above, only the refusal in the appellant’s application is before the Court on this appeal. The appellant filed her appeal to this court in time.[17]
[16]ACB 228-229
[17]ACB 2
34Pursuant to s119 of the Act, the appeal is by way of rehearing.
35In AAA v County Court of Victoria & Ors,[18] John Dixon J outlined the procedure to be followed in appeals of this type. His Honour said:
[18][2023] VSC 13 (“AAA”)
“… The jurisdiction is exercisable only where the appellant can demonstrate the original decision-maker made some factual, legal or discretionary error. … appeal powers are to be exercised for the correction of error in the original decision … .
…
… 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 …. .
… Subject to the court identifying how its jurisdiction was enlivened . The judge [can allow] further evidence … .”[19]
(Footnotes omitted.)
[19](Ibid) at paragraphs [50] and [66]-[68]
Appeal grounds and submissions of the parties
36There were a number of grounds of appeal stated in the appellant’s submissions dated 8 March 2024[20] in respect of the magistrate’s Order on 20 February 2023:
(a) the listing was a special mention to seek orders requiring the respondent to file missing documents omitted from her further and better particulars. The magistrate had no right to deal with the application and make a final decision on that day;
(b) the magistrate did not provide the appellant an opportunity to seek legal advice or representation before she made her decision;
(c) the magistrate did not provide procedural fairness to the appellant and did not receive any evidence prior to making her decision;
(d) prior to the special mention, there was no notice given to the appellant that her application would be refused if she was unable to persuade the magistrate or provide further material to substantiate the basis of her application;
(e) the magistrate did not provide an opportunity to the appellant to re-plead her case or inform her of the consequences of not being able to re-plead her case; and
(f) the appellant did not have her application decided by a competent, independent and impartial court, as required by s24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic);
[20]ACB 28-32
37On the hearing of the appeal, counsel for the appellant further submitted that:
(a) the basis for the application is emotional or psychological abuse under s5(1)(a)(ii) of the Act, due to:
(i)intentional destruction of property, being disposal of items from the property in question into the skip bin, pursuant to s5(2)(c) of the Act;
(ii)failure to comply with the Deed to return original documents;
(iii)controlling behaviour in cancelling the relevant bank account, pursuant to the economic abuse provisions enshrined in s6 of the Act;
(iv)redirecting mail; and
(v)the respondent’s “filing of the documents” in multiple proceedings was causing the appellant emotional distress, pursuant to s7 of the Act;
(b) there will be continual interaction between the appellant and respondent as they are sisters. This, counsel submitted, satisfied the requirements of s74 of the Act, in that the family violence against the family member would b likely to continue or would occur again, as both are beneficiaries under their (now) late mother’s will.[21] They will continue to interact until the estate is distributed.
[21]The Court was informed by counsel for the respondent that the mother of the appellant and respondent passed away in October 2023.
38The respondent provided written submissions,[22] which were supplemented with oral submissions, as follows:
(a)the Court is not confined to the rules of evidence and may inform itself in any way that it sees fit;
(b)the magistrate had power to dismiss the application;
(c)no family violence was complained of (in the application), nor in the Further and Better Particulars, and the magistrate determined that the appellant’s safety was not in issue. In particular, the incident alleged on 7 April 2022 is not family violence, it is an interaction with solicitors. Exercising legal rights and obligations is not family violence;
(d)the refusal to make a final order was not affected by legal error;
(e)a court has power to govern its own procedures and prevent its processes from being abused;
(f)the application and Further and Better Particulars demonstrate that the powers of the court under the Act were being invoked for an improper purpose, namely, to seek access to original documents and to prevent the use of those documents in legal proceedings; and
(g)for the magistrate to have allowed the matter to proceed to final hearing would have been a waste of the court’s time.
[22]Respondent’s submissions dated 19 June 2024; these submissions were requested by the Court via email dated 24 May 2024 upon further consideration of the proceeding in chambers after the conclusion of oral argument on 16 May 2024.
Relevant provisions of the Act
39The appellant relied on family violence constituted by “emotional or psychological abuse” and “economic abuse”, as contained in s7 and s6 of the Act, respectively.
40Section 4 of the Act provides that “family violence has the meaning set out in section 5”.
41Section 5 of the Act (relevantly) provides:
“(1) For the purposes of this Act, family violence is—
(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) ….
(2) Without limiting subsection (1), family violence includes the following behaviour—
(a) ….
(b) ….
(c) intentionally damaging a family member's property, or threatening to do so;
(d) …
(e) ….
(3) To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.”
42Section 6 of the Act (relevantly) provides:
“For the purposes of this Act, economic abuse is behaviour by a person (the first person) that is coercive, deceptive or unreasonably controls another person (the second person), without the second person's consent—
(a) in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or
(b) by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or the second person's child, if the second person is entirely or predominantly dependent on the first person for financial support to meet those living expenses.
(Emphasis added.)
43Relevant examples of “economic abuse” under s6 include:
“• removing or keeping a family member's property without permission, or threatening to do so; and
•disposing of property owned by a person, or owned jointly with a person, against the person's wishes and without lawful excuse;”
44Section 7 of the Act provides:
“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.”
45A possibly relevant example of emotional or psychological abuse under s7 is:
“•preventing a person from making or keeping connections with the person's family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person's cultural identity;”
46Section 53 of the Act (relevantly) provides that:
“(1) The court may make an interim order if—
(a) a person has applied to the court for a family violence intervention order and the court is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application—
(i) to ensure the safety of the affected family member; or
(ii) to preserve any property of the affected family member; or
(iii) ….
(b)…
(c)… .”
47Section 65 of the Act provides:
“(1) Subject to this Act, in a proceeding for a family violence intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.
(2) …
(3) The court may refuse to admit, or may limit the use to be made of, evidence if the court is satisfied—
(a) it is just and equitable to do so; or
(b) the probative value of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party or misleading or confusing.”
48Section 61 of the Act provides that:
“(1) The court must not proceed to hear a contested application for a final order on a mention date unless the court is satisfied that—
(a) all the parties to the proceeding have had an opportunity to seek legal advice and legal representation; and
(b) all the parties to the proceeding consent to the hearing of the contested application on the mention date; and
(c) it is fair and just to all the parties to hear the application on the mention date.
(2) Subsection (1) does not prevent the court making a final order on a mention date if—
(a) all the parties to the proceeding have consented to, or are not opposed to the making of, the order in accordance with section 78; or
(b) the court is satisfied the respondent has been served with a copy of the application for a family violence intervention order and has not attended court on the mention date.”
(Emphasis added.)
49Section 4 of the Act defines “mention date”, in relation to an application or appeal under this Act, as:
“(a) the first mention date; or
(b) another date on which the proceeding is listed before the court other than for a contested hearing …;”
50Section 74 of the Act (relevantly) provides:
“(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.
… .”
(Emphasis added.)
Analysis
51It is settled law in Victoria that the Magistrates’ Court does not have inherent jurisdiction. It is a creature of statute and the language of the statute imposes constraints upon its exercise of power.
52In Grassby v R,[23] the High Court considered whether the Magistrates’ Court had power to stay criminal proceedings which it considered would result in an abuse of process, in the event an accused was indicted following its committal of him.
[23](1989) 168 CLR 1 (“Grassby”)
53Dawson J (with whom Mason CJ, Brennan and Toohey JJ) agreed, said:
“(i) The fact that a magistrate sits as a court and is under a duty to act fairly does not, carry with it any inherent power. … .
…
There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. ... .”[24]
[24]Grassby at 15 and 18
54In L v L and anor,[25] Lansdowne AsJ considered an application for judicial review of a decision of a magistrate to vary an intervention order for the protection of an adult, on the court’s own initiative.
[25][2016] VSC 182 (“L and anor”)
55Her Honour said:
“The Magistrates’ Court is a creature of statute. It has no inherent jurisdiction. Accordingly, the starting point for consideration of jurisdictional error is the nature and extent of jurisdiction of the Magistrates’ Court in relation to family violence intervention orders as conferred on it by statutory instruments.
…
Jurisdiction to hear applications for family violence intervention orders is conferred on the Magistrates’ Court by the Family Violence Protection Act 2008 (Vic) (‘the Protection Act’ or ‘the Act’). ... .
Accordingly, powers in relation to interim family violence intervention orders or the required or permitted procedure generally of the Magistrates’ Court in a civil proceeding under the Protection Act must be found in the Protection Act, or in rules made under it. The relevant rules are the Magistrates’ Court (Family Violence Protection) Rules 2008 (Vic) . … .”[26]
[26]L and anor at paragraphs [44] and [46]-[47]
Did the magistrate have power to deal with the application as she did at the special mention?
56The transcript shows that the magistrate referred to the listing as a “special mention”.
57The magistrate referred to the appellant’s application (for an intervention order) and said:
“… reading your application, it’s just not a matter where your safety is in issue…
…
… your dispute doesn’t fit the criteria of the Family Violence Intervention Order Act.
…
… It doesn’t seem to me there’s any indication that the applicant (sic) has committed family violence or that she is likely to do so in future. I understand you have ongoing litigation in the Magistrates’ Court. I think that’s where you’re going to need to find your remedy.
…
… The orders that you’re seeking are not for your protection. They’re in relation to a dispute, not in relation to family violence. Your application is refused.”[27]
(Emphasis added.)
[27]MCV Transcript, T3,L7 ꟷ T3, L24; ACB 14-15
58The appellant submitted that there was no provision in the Act which enabled the magistrate to refuse or dismiss an application at a mention date.[28]
[28]Appellant’s submissions dated 7 June 2024 at paragraph [21]
59The respondent submitted that either the magistrate had inherent powers or s61 of the Act gave the magistrate power to dismiss the application on the mention date, even in the absence of specific “language” in s61.[29]
[29]Respondent’s submissions dated 19 June 2024 at paragraph [14]
60The first of the respondent’s contentions can be readily disposed of by reference to Grassby and L and anor. Both cases make it clear that the Magistrates’ Court has no inherent powers.
61The second of the respondent’s contentions can also be disposed of by reference to those authorities. Firstly, s61 of the Act is couched in “mandatory” terms, that is, “[t]he court must not” hear a contested application on a mention date, unless certain criteria are met.[30]
[30]Pursuant to ss(1)(a)-(c), all the parties must have had an opportunity to seek legal advice and must consent to the hearing of the application on the mention date and it must be fair and just to the parties to hear the application on the mention date.
62That was not the case on 20 February 2023 at the special mention. The magistrate did not proceed to hear the application, none of the criteria had been met and the order made by the magistrate refusing the application was not a “final order” within the meaning of the Act.
63A final order is defined in s4 of the Act as an order made under s11(2) of the Act.
64Section 11(2) of the Act provides that a final order is an order made under ss74, 76, 77, 77A or 77B and includes an order varied under ss100 119(2)(c) and 173(2) and extended under ss106 and 107. None of those provisions relate to a refusal to make an order or a dismissal of the application on the merits. All of the provisions relate to an actual intervention order of some kind being made.
65The respondent also submitted that, in the alternative, s65(1) was a source of the magistrate’s power, as it provides that the court is not bound by the rules of evidence, and may inform itself in any way it sees fit.
66I reject that submission. Section 65(1) is specifically expressed to be “[s]ubject to this Act”, which includes s61, prohibiting the court from proceeding to hear a contested application for a final order on a mention date unless certain conditions are met. Further, the provision relates to the taking of evidence, which did not occur on 20 February 2023 at the special mention.
Abuse of process
67Using a court procedure for an improper purpose or to obtain some collateral advantage can be an abuse of process where it can be clearly seen the case would be doomed to fail[31].
[31]Walton v Gardiner [1993] 177 CLR 378
68Issuing an application which lacks merit or does not fulfil the criteria of the Act can be frivolous or vexatious[32].
[32]Hoh and ors v Frosthollow Pty Ltd and ors [2014] VSC 77
69The respondent submitted that the application and the appellant’s Further and Better Particulars demonstrate that the powers of the court were being invoked for an improper purpose, namely, to seek access to documents and prevent them from being used in legal proceedings, not for the genuine reason of protection from family violence.
70The appellant submitted family violence and economic abuse had occurred and was likely to occur again in any interactions in respect of the distribution of the estate of the mother.
71The MCV transcript reveals that the Magistrate considered that the Intervention Order process was the “wrong avenue” for resolution of the issues which related to a property dispute.
“… The orders you’re seeking are not for your protection. They’re in relation to a dispute, not in relation to family violence. Your application is refused. … .
…
You can continue whatever litigation that you have. You can go through lawyers if you think there’s documents. But I’m afraid that in terms of the meaning of family violence, I’m not persuaded that she’s been emotionally, psychologically or economically abusive, let alone threatening. It’s not my reading of these documents at all. It just falls outside the scheme for family violence intervention orders, I’m afraid.”[33]
[33]MVC Transcript T3, L21 ꟷ T4, L2
72The magistrate formed the view that the Act was being invoked inappropriately. In that circumstance, the Rules authorise summary disposal of the application in the manner intended by the magistrate.
73Rule 6.01 of the Rules provides:
“Stay of proceeding
If a proceeding is scandalous, frivolous or vexatious or is otherwise an abuse of the process of the Court, the Court may, on the application of a respondent, stay the proceeding.” (Emphasis added.)
74Rule 6.02 of the Rules (relevantly) provides that:
“Striking out proceeding
The Court may order that the whole or part of the application be struck out or amended if a proceeding—
(a) is scandalous, frivolous or vexatious, or
(b) …
(c) is otherwise an abuse of the process of the Court.”
75Unlike r6.01, r6.02 does not require an application to be made before the court can strike out the whole or part of the proceeding.
76The procedure under r6.02 was available to the magistrate if she formed the view that the application was unlikely to succeed or was an abuse of process. Although the magistrate did not use those words, it is clear she considered the appellant had applied under the wrong legislation for resolution of a dispute which was more appropriately litigated in the existing property proceedings.
77The Magistrates’ Court is a busy court. It has a specialist family violence division which, according to the Crime Statistics Agency, hears thousands of applications each year. In 2022-2023, the Court heard 22,916 original family violence intervention order applications.[34]
[34]Crime Statistic Agency, (statistics from the 2022-2023 Victorian Family Violence database), “Media Release: Number of Family Violence Intervention Order matters heard in specialist family violence courts 2.7 times higher than last year”, is to be expected that a magistrate sitting in such a specialist division will have a sound understanding of what constitutes family violence. The magistrate in this case clearly applied her experience to make the determination she did. It is unfortunate that the magistrate did not apply the correct provision, but for the reasons stated below, her assessment of the case was correct.
Disposition following a finding that error has been made out
79The fact that the magistrate acted without statutory power means that the appellant has established a legal error. This engages the jurisdiction of this court. It is therefore unnecessary to consider the remainder of the grounds of appeal.
80Pursuant to s119(2)(b) of the Act, I now turn to consider whether to set aside the decision, effectively returning the matter to the Magistrates’ Court, or to vary the decision pursuant to s119(2)(c) of the Act and make orders which the Magistrates’ Court could have made.
81In accordance with AAA, this appeal is by way of rehearing, and allows for new evidence, but it is not a retrial.
“… the court’s power to receive further or fresh evidence is limited to that provided by the statute creating the right of appeal. This has been described as ‘an appeal by way of rehearing based upon the evidence given in the court of first instance supplemented by further evidence’.
… The appellate court can only give the decision which should have been given at first instance. Its powers are limited to setting aside the decision under appeal and, if appropriate, substituting the decision that should have been made at first instance.”[35]
(Footnotes omitted.)
[35]AAA at paragraphs [51]-[52]
82On 8 March 2024, the appellant who was represented on the appeal, made an affidavit and filed it on the appeal (“the affidavit”). I grant leave for the appellant to rely on this affidavit as fresh evidence.
83Under the heading “[f]urther evidence relied upon”, the appellant set out, in the affidavit, that she is the joint owner with the respondent (and their third sister) of an apartment in a foreign country, and that the three sisters are beneficiaries under their late mother’s will, which will necessitate continual interaction between them, as probate of the will had not yet been granted.
84It will be recalled that the Deed was entered into between the appellant and her mother. One of the incidents of family violence alleged in the application, was the failure in April 2022 by the mother’s lawyers, to return the original documents.
85After the death of the mother in October 2023, the respondent became executor of the mother’s will and may well have had obligations to carry out the terms of the Deed. However, an intervention order was not the appropriate mechanism by which to enforce those obligations.
86As the magistrate said, the availability of intervention orders under the Act is to ensure the safety of the affected family member.
87An intervention order proceeding is not the appropriate mechanism by which to prevent documents from being used in proceedings, or to obtain compensation for lost or destroyed property. There was already a separate proceeding on foot in the Magistrates’ Court where these matters could be ventilated. Further, there are separate provisions, for instance under the Evidence Act 2008 (Vic), which apply to improperly-obtained documents intended to be used as evidence.
88Although intentional destruction of property is capable of meeting the definition of family violence, not every intentional destruction of property is family violence. The context in which the destruction is said to have occurred, together with the likelihood of other family violence occurring again, is necessary to attract the operation of the Act.
89While isolating a person from their mother could be family violence, in this case, it was clear that the appellant had in fact been prevented from seeing her mother by virtue of the Intervention Order taken out by police.
90Although keeping a family member’s property without their permission and preventing a person from having access to joint financial assets is capable of meeting the definition of economic abuse, not every act of that kind is family violence. In this case, the bank card belonged to the mother and the appellant might have been affected by its cancellation, as she was a card holder, however there was no suggestion that this was a joint financial asset with the respondent, or that she was denied the financial autonomy she would have had, but for the cancellation. The issue of the appellant’s property was being litigated elsewhere and there was no suggestion that, during the course of that litigation, family violence of any kind had been committed by the respondent.
91While the appellant may have been distressed by the respondent sending photographs of the house to family, it is difficult to see how sending photographs of a house can fit within the definition of family violence.
92I accept the submission made on behalf of the respondent that the documents filed by the appellant in the Magistrates’ Court did not disclose family violence. I find that the application sought to obtain original “notes” (documents) from the respondent. I am fortified in this conclusion by two factors. First, the timing of the application was close in time to the failure by the mother’s lawyers to provide the original notes. Second, counsel for the appellant on the appeal submitted that the respondent had engaged in emotional or psychological abuse of the appellant by failing to comply with the Deed to return the original documents.
93For all of these reasons, the magistrate ought to have struck out the appellant’s application pursuant to r6.02(a) or r6.02(c) of the Rules, on the basis either that it was frivolous or vexatious, or an abuse of process of the court, or both.
94In exercising the powers which the magistrate ought to have exercised and having set aside the magistrate’s decision, I now strike out the whole of the appellant’s application for an intervention order pursuant to r6.02.
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