Everett (a pseudonym) v Everett (a pseudonym)
[2025] VCC 1271
•25 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| APPEALS AND POST SENTENCE APPLICATION LIST |
Case No. AP-21-1479
| Between QUENTIN EVERETT (a pseudonym) | Appellant |
| v | |
| ROSALYN EVERETT (a pseudonym) | Respondent |
| Case No. AP-21-1480 | |
| Between | |
| QUENTIN EVERETT (a pseudonym) OLIVER EVERETT (a pseudonym) | Appellant Respondent |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 August 2025 | |
DATE OF JUDGMENT: | 25 September 2025 | |
CASE MAY BE CITED AS: | Everett (a pseudonym) v Everett (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1271 | |
REASONS FOR JUDGMENT
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Subject:Hearing IVO Appeal
Catchwords: Family Violence Intervention Order – Legal, Factual, Discretionary Error
Legislation Cited: Family Violence Protection Act 2008; Evidence Act 2008; County Court Civil Procedure Rules2018
Cases Cited: Roberts v Harkness [2018] VSCA 215; Doughty-Cowell v Kyriazis [2018] VSCA 216; AAA v County Court & Ors [2023] VSC 13; Byrne v The Owners of Ceresa Apartments Strata Plan 55597 [2016] WASC 153; Nathanson v Minister for Home Affairs [2022] HCA 26; International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; Lee v Lee (2019) 266 CLR 129; House v The King (1936) 55 CLR 499; Cuso (a pseudonym) v Hill (a pseudonym) [2025] VCC 876
Judgment: Appeal dismissed
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APPEARANCES: | Counsel | Solicitors |
| The Appellant | In person | |
| For the Respondent | Ms J McCartney |
HER HONOUR:
Introduction
1 This is an appeal brought by Mr Quentin Everett[1] (“the appellant”) against two orders made on 10 November 2021 by his Honour Magistrate Connellan at the Magistrates’ Court at Dandenong (“Magistrates’ Court”) to grant two final Family Violence Intervention Orders (“FVIOs”) under the Family Violence Protection Act 2008 (“the Act”).
[1] A pseudonym
2 The appellant is self-represented.
3 Victoria Police appeared on behalf of the respondents in the two proceedings heard together. The respondents to these proceedings and affected family members (“AFM”), are the appellant’s former domestic partner, Rosalyn Everett[2] (“first respondent”) together with the children, Gina Everett[3] and the late Alex Everett[4] (“Alex”) in one proceeding and their son, Oliver Everett[5] (“second respondent”) in the second proceeding.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
Background
4 On 16 May 2020, Senior Constable (Constable at the time of filing the application) Glen Silcock of Victoria Police made two FVIO Applications against the appellant. The FVIO Application and Warrant against the appellant for the first respondent and her children, Gina Everett and the late Alex Everett was due to holding “concerns for the safety and wellbeing of the AFM and her children” arising from multiple incidences of family violence.[6] The FVIO Application and Warrant against the appellant for the second respondent was due to the respondent’s “violent behaviour and him assaulting the AFM” and was “necessary to prevent any further incidents from occurring or any further escalation.”[7]
[6]Application and Warrant for an Intervention Order completed by Constable Glen Silcock dated 16 May 2020 (Amended Joint Court Book ‘AJCB’ 98)
[7] Ibid 103
5 On 26 May 2020, both FVIO Applications were listed at the Magistrates’ Court, and the appellant did not appear. An interim intervention order was granted in respect of each application, in the appellant’s absence, for the protection of both the first respondent and second respondent, lasting until the final FVIO.[8]
[8] AJCB 108–115
6 On 24 November 2020, the application for the protection of the first respondent and her children was finalised. The appellant did not to appear at the hearing, but his legal representative emailed his consent to the final orders without admissions.[9]
[9] AJCB 117-119
7 The appellant made application for a rehearing of the proceeding on the grounds that he was not given notice of the hearing, and this was granted on 18 December 2020.
8 On 10 November 2021, the proceedings were listed for a contested hearing at the Magistrates’ Court. The appellant was represented by Mr Metaxas of counsel. Part way through the respondent’s evidence, the proceedings were stood down to enable the appellant time to receive legal advice regarding the basis of his opposition to the applications. As the evidence unfolded, the Magistrate observed that the appellant had pleaded guilty to criminal charges arising from the initial incident, for which he had been sentenced, as well as for persistent contravention of the interim intervention order. When the hearing resumed, the appellant consented through his legal representative, without admissions, to the making of final orders. No further evidence was given, and the Magistrate made the final FVIOs.[10]
[10] Ibid
9 The final FVIOs, expiring 10 November 2026, were in the following terms:[11]
[11]Family Violence Intervention Order made at Dandenong Magistrates’ Court on 10 November 2021
“THE COURT ORDERS THAT THE RESPONDENT MUST NOT
Commit family violence against the protected person(s).
…
Intentionally damage any property of the protected person(s)
or threaten to do so.Attempt to locate, follow the protected person(s) or keep
him/her /them under surveillance.Publish on the internet, by email or other electronic
communication any material about the protected person(s).Contact or communicate with a protected person by any means.
Approach or remain within 5 metres of a protected person.
Go to or remain within 200 metres of
[address]
or any other place where a protected person lives, works or
an ends school/childcare.Get another person to do anything the respondent must not do under
this order.”
10 On 9 December 2021, the appellant filed a Notice of Appeal in relation to both final FVIOs.
11 Timetabling orders were made in this Court by Judicial Registrar Bales on 11 December 2023 and the proceedings were set down for a preliminary hearing on 22 April 2024.
12 Pursuant to those timetabling orders the appellant filed a statement of grounds of appeal dated 17 January 2024.
13 The respondent filed:
(a)An outline of submissions dated 19 February 2024;[12] and
[12] AJCB 247-251
(b)Affidavit of Senior Constable Glen Silcock affirmed on 19 January 2024.[13]
[13] AJCB 62-246
14 The appellant sought an adjournment of the preliminary hearing on the basis that there was a Coroner’s investigation underway into the death of Alex who passed away on 4 June 2022, and that the outcome of the investigation may be relevant to the Court’s assessment of whether the Magistrate had made an error of fact, law or discretion. The Court granted an adjournment of the preliminary hearing pending the outcome of the coronial investigation.
15 Following the coronial decision, further timetabling orders were made by this Court. Pursuant to those orders the appellant filed material which comprised numerous emails sent between 21 July 2025 and 26 July 2025:[14]
[14] AJCB 254-363
16The appellant attempted to file further submissions by email after 26 July 2025, being the deadline for filing his material. The respondent consented to the late filing of the material:[15]
[15] AJCB 364-385
17 The appellant also sought to rely on the following new evidence to support his appeal:
(a)Recording of a call that he made to Child Protection on 14 November 2021, which is four days after the final orders were granted;
(b)Transcript of the criminal proceedings where the appellant was sentenced for the related criminal matters;
(c)Facebook post by the first respondent dated 4 October 2019;
(d)Messages between parties dated 19 December 2019;
(e)Correspondence with the Coroners Court dated 22 July 2025; and
(f)A neuropsychiatry report of Alex Everett dated 26 July 2019.
18 The respondent filed further material in compliance of the orders as follows:
(a)Submissions in response dated 8 August 2025; and
(b)Amended Joint Court Book received 19 August 2025.
19 At the hearing the parties’ written submissions were supplemented with oral submissions.
20 As the appellant was self-represented, the Court of Appeal has set out principles relevant to the Court’s assistance to self-represented litigants to ensure a fair trial. I sought to apply those principles in the preliminary hearing.[16]
Grounds of Appeal
[16] Roberts v Harkness [2018] VSCA 215; Doughty-Cowell v Kyriazis [2018] VSCA 216
21The appellant’s grounds of appeal were stated as:[17]
“The magistrate didn’t look at all the evidence or give me a chance to challenge the allegations, none of the police evidence was tested or challenged and the magistrate made a 5-year order based on some on (sic) the face of it facts, the magistrate didn’t see the entire evidence which would made (sic) a difference on the orders.”
[17]AJCB 60
The legal framework
22Section 74 of the Act provides:
Power of court to make final order
(1)The court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.
(2)A final order may be made for more than one affected family member if –
(a)the court is satisfied of the matters set out in subsection (1) in relation to each of the affected family members; or
(b)consent has been given, or the making of the order has not been opposed, in accordance with section 78 by –
(i)all the parties to the proceeding; and
(ii)if the application for the final order was brought with the consent of an affected family member’s parent or guardian, that parent or guardian.”
23Section 78 of the Act 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; or
(ii) in the case of a proceeding for a variation, revocation or extension of a final order, section 100 or 106; and
(b) whether or not the respondent admits to any or all of the particulars of the application.
24Section 97 of the Act provides:
Court may specify period for which order in force
(1)The court may specify in a final order the period for which the order is in force.
(2)In making that decision as to the period for which the final order is to be in force, the court must take into account –
(a)that the safety of the protected persons is paramount; and
(b)any assessment by the applicant of the level and duration of the risk from the respondent; and
(c)if the applicant is not the protected person, the protected person’s views, including the protected person’s assessment of the level and duration of the risk from the respondent.
(d)The court may also take into account any matters raised by the respondent that are relevant to the duration of the order.”
25In AAA v County Court & Ors (‘AAA’), his Honour Justice Dixon observed that the appellant must be able to demonstrate that the original decision maker made a legal, factual or discretionary error, to enliven the power of the appellate Court.[18]
[18][2023] VSC 13 [50]
26The appeal is not to be conducted by way of rehearing, but rather by establishing that the initial decision was attended with error either of law, fact or discretion.
27Such an error may be proved after an examination of the transcript of the Magistrates’ Court proceedings, to examine the conduct of the proceeding and reasons for the decision being made.
Legal Error
28In Byrne v The Owners of Ceresa Apartments Strata Plan 55597 it was held that:[19]
“If the Tribunal makes a legal error in the way in which it undertakes its fact finding, or a legal error in the way in which it construes that statute which it is applying in a particular case, or some other reasoning, then an appeal lies to correct that legal error.”
[19] [2016] WASC 153 [23]
29It is well established that a failure to afford procedural fairness to a party to a dispute will involve an error of law if that failure could have materially affected a Court’s decision.
30In Nathanson v Minister for Home Affairs,[20] Kiefel CJ, Keane and Gleeson JJ, observed:
“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 to present their case, a party will take advantage of the opportunity and that, by doing so, the party could achieve a favourable outcome.”
[20] [2022] HCA 26
31In International Finance Trust Company Ltd v New South Wales Crime Commission,[21] French CJ said:
“Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.”
[21] [2009] HCA 49
32In Assistant Commissioner Michael James Condon v Pompano Pty Ltd,[22] the plurality said:
“The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making - but in terms which have more general and immediate application, ‘[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.’ To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.”
[22] [2013] HCA 7
Factual Error
33The legal principles with respect to factual errors were summarised by the majority in Lee v Lee:[23]
“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.”
[23] (2019) 266 CLR 129 at [55]
Discretionary Error
34Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
35The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[24]
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion to which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[24] (1936) 55 CLR 499 at [504]-[505]
Appellant’s Submissions
36The appellant’s numerous emails contained his submissions that the Magistrate made factual and legal errors and many of his submissions overlapped and were intertwined. He also elaborated on those submissions at the hearing.
37The appellant’s allegations with respect to the Magistrate’s errors may be summarised as follows:
(a)There was a failure by the Magistrate to consider all the evidence in reaching his decision to order the FVIOs, and the Magistrate did not allow the appellant the opportunity to review and respond to the hearsay allegations.
(b)The Magistrate made an error of law when he permitted the hearsay evidence of Senior Constable Silcock to be admitted into evidence as his evidence was not based on what he saw or heard but rather what he was told. He also alleged that Constable Silcock gave false evidence. The appellant submitted that examples of Constable Silcock’s fabricated evidence were:
(i) The timing of the police call;
(ii) The informant omitted to include relevant matters such as the first respondent hitting him; and
(iii) The photographs tendered into evidence before the Magistrate did not show any bruising to the first respondent’s cheek.
(c)The Magistrate found that the appellant entered pleas of guilty for related criminal charges involving breaches of the Interim IVOs against him in circumstances where he denied pleading guilty and a guilty plea was not reflected on the court extract. The appellant did not dispute that he consented to the final order without admissions, but he did so on the advice of his legal representative, who advised him that the Magistrate was going to grant the order even if he did not consent without admissions.
(d)The Magistrate was not impartial or fair and this constituted a breach of natural justice. The appellant was not given a fair hearing or afforded procedural fairness as there was a failure by the Magistrate to consider all the evidence in reaching his decision to order the FVIOs, and the Magistrate did not allow him the opportunity to review and respond to the hearsay allegations.
(e)The Magistrate made a five-year order based on personal observations. The Magistrate made a personal attack when he said the appellant had a lot of work to do to rebuild his life.
38The appellant submitted that the fresh evidence that he sought to adduce was relevant to identify the errors in the Magistrate’s decision making. The documents supported his submission that he did not plead guilty to the related criminal charges. In addition, they were relevant to establish error in respect of the Magistrate’s comments regarding the appellant and the fact that the Magistrate considered that he needed to do a lot of work on himself. They were also relevant because his actions on 16 May 2020 were motivated by his desire to protect Alex from the first respondent. He submitted that it was in fact the first respondent who had committed family violence and had put Alex at risk. The documents gave context to the family dynamics that existed, and what gave rise to the circumstances that occurred on 16 May 2020.
Respondent’s Submissions
39The respondent submitted that the evidence presented to the Magistrate at the contested hearing had no relevance or impact when granting the FVIOs, and therefore there was no factual error for the following reasons:
(a)The Magistrate’s power to grant a FVIO is set out in section 74 of the Act. In circumstances where the parties consented to the making of the final order, the Magistrate was not required to be satisfied of the matters in section 74 of the Act in light of section 78(1). As the appellant in this case consented without admissions to the final order, the evidence which the appellant submits was fabricated and relied upon by the Magistrate in coming to his decision was not relevant when exercising his power to grant the FVIOs by consent pursuant to s78 of the Act.
(b)Pursuant to s65 of the Act, the rules of evidence do not apply to family violence proceedings, and therefore the respondent submitted that the hearsay evidence of Senior Constable Silcock is admissible to determine the making of the FVIO. In any event, as the parties consented to the making of the final order, the hearsay evidence heard by the Magistrate had no relevance or impact when he exercised his power to grant the FVIOs by consent and thus no legal error was made by the Magistrate.
(c)In making the final orders, the Magistrate was aware that the evidence from the appellant would be that he did not plead guilty to the related criminal offences. The Magistrate obtained a copy of the court extract and on analysis he established that there had been a finding of guilt against the appellant in respect of the criminal damage and assault on 9 June 2020 and subsequent findings of guilt for persistent contravention of the FVIO on 29 September 2020. The Magistrate noted that no plea was taken, as recorded in the extract, however stated that:[25]
‘It may, from my experience, simply mean that on the system where the computer provides for the plea to be formally recorded on the computer, no record was entered…However, it records that the sentencing order was that Mr Everett was convicted and placed on a community corrections order for a period of 18 months. That cannot be done without Mr Everett’s consent. So what the document tells is that although the document formally records no plea taken, it tells me that the court was satisfied first of all that Mr Everett was consenting to the court’s jurisdiction; secondly, that he was pleading guilty to the charges that were not withdrawn, whatever they were; and third, at the end of the sentencing exercise, he consented to being placed on a community corrections order for a period of 18 months.’
The Magistrate determined that the appellant had to have entered into a plea of guilty for the related criminal matters. Nevertheless, this finding of fact had no relevance to the Magistrate’s decision to grant the FVIOs by consent.
(d)The respondent submitted that the Magistrate did not form a final view that the FVIOs were necessary before the contested hearing had finished. Rather, the Magistrate after reviewing the certified extracts, asked on what basis the appellant was resisting the FVIOs given the strength of the prosecution’s case. The Magistrate stated that the police could seemingly prove through the Court’s record that: [26]
“[T]here have been events that come within the definition of family violence that have occurred and they can provide that Mr Everett has admitted them in the criminal jurisdiction, and secondly they can prove or go a substantial way towards proving the second arm of the test required for an intervention order-that is, the risk or likelihood if you like of further family violence taking place-and on the evidence before me they would be able to prove that by relying on the charge of persistent breach of a family violence intervention order which on the face of it Mr Everett has already admitted and been sentenced for.’
The Magistrate provided an opportunity to the appellant to respond and present evidence as to why the FVIOs were not required. The appellant chose to consent without admissions to the FVIOs on the basis of legal advice through his legal representative. It was further submitted that the appellant was not forced to agree, and he confirmed to the Magistrate that he understood the FVIOs.
(e)At the contested hearing, the Magistrate had made several observations as to why he was of the view that the duration of the FVIOs should be made longer than normal. The appellant had submitted through his legal representative that a duration between two and five years would be within range, and that if the Magistrate was minded to remain within that range he would not seek to be heard further. Victoria Police agreed. Although the appellant submitted that the Magistrate had granted the duration of the FVIOs based on personal observations, therefore establishing a discretionary error, it was submitted by the respondent that the Magistrate’s decision to grant the FVIOs for a duration of five years was ultimately made with the consent of both parties.
[25]AJCB 43 (Transcript ‘T’ 39 Line ‘L’ 16-25)
[26]AJCB 46 (T42 L20-31)
40In relation to the appellant’s attempt to admit new evidence, which was not before the Magistrate, the respondent submitted that it does not go to the question of whether there was a legal, factual or discretionary error and therefore is inadmissible. The respondent referred to the case AAA where the Honourable Justice John Dixon stated that:[27]
‘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.’
(Emphasis added.)
[27]AAA [67]
41In support of that submission, I was referred to the case of Cuso (a pseudonym) v Hill (a pseudonym) (‘Cuso’) where her Honour Judge Sanger addressed the admissibility of new evidence in family violence appeals and stated:[28]
“After 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.”
[28][2025] VCC 876 [39]
Conduct following the Preliminary Hearing
42Following the preliminary hearing heard on 25 August 2025, the appellant emailed the Court on 27 August 2025 seeking leave to amend the grounds of appeal pursuant to rule 58.01(g) of the County Court Civil Procedure Rules 2018 and make further submissions. The Court listed the appeal for directions hearing via Zoom on 1 September 2025 at 10:00am in order to hear submissions in relation to the appellant’s application. Both the appellant and respondent were notified of the listing via email on 27 August 2025.
43The appellant did not appear at the directions hearing therefore, the Court did not entertain the appellant’s application and made orders that the application be adjourned to a date to be fixed for judgment.
Findings
44I have read the transcript of the Magistrates’ Court hearing which took place on 10 November 2021.
45The Magistrate confirmed that the appellant was legally represented at the commencement of the hearing. The Magistrate enquired as to the witnesses that would be called in each of the applications and whether the parties had had an opportunity to discuss the matters beforehand. He went through a chronology of the proceedings, the background to the two matters and established if there were any agreed facts.
46Senior Constable Silcock was then sworn into evidence and commenced giving evidence regarding his attendance at the respondent’s home in response to a call that had been in respect of family violence. He gave evidence of his observations of the AFMs, that he and his partner conducted a search of the premises and what he had been told by the AFMs. He also gave evidence of his observations of the premises and gave evidence in relation to photographs taken of the premises on the day. He described the content of the photos, which were tendered into evidence. He gave evidence of taking a statement from Oliver Everett, which was also tendered into evidence without objection by Mr Metaxas. Evidence was further given of three photographs depicting damage to the respondent’s property which were included in the further and better particulars in respect of the FVIO hearing and the criminal brief. These photographs were also tendered without objection by Mr Metaxas.
47As the evidence unfolded, the Magistrate made the observation that it was his view that there was no dispute that Mr Everett was charged with offences of assault and criminal damage and pleaded guilty to those offences. Mr Metaxas informed the Court that it would be Mr Everett’s evidence that he did not plead guilty despite the police LEAP showing he had been convicted. The proceeding was stood down briefly during which time the clerk was able to retrieve the certified court extract. Copies of those extracts were provided to Mr Metaxas who stated that “[t]he documents address those issues, but my client’s position is that he never pleaded guilty to any of those charges.”[29] The transcript then records as follows:[30]
[29]AJCB 41 (T37 L7-9)
[30]AJCB 41-45 (T37 L10–T41 L30)
“His Honour: Well that's all very useful, but the certified extract of the court speaks for itself, and if he is disputing the outcome of the court, then it's open to him, including getting a copy of the recording of the event.
Mr Metaxas: I agree, Your Honour. There's nothing more that I can say. Those are my instructions.
His Honour: Well they may be. It seems to me though that that's a document first of all that is in the possession of the court automatically. It's the court record, and the court is entitled to examine its own record. Is there any objection you have to it doing so?
Mr Metaxas: No, Your Honour. Would it assist the court if I have a short discussion with my client regarding to this situation?
His Honour: I think it would. Unless you would rather have that discussion before I examine the documents, I'm intending to examine the documents and then give you that opportunity.
Mr Metaxas: Yes, Your Honour.
His Honour: Are you happy with that way of doing it or you'd rather have your discussion first?
Mr Metaxas: I'd say it would be appropriate just to tender the document now and I'll have a discussion with my client in regards to the consequences of those documents.
His Honour: All right. (Recording malfunction) the documents for that, Mr Metaxas. It may mean that when I look at the documents there's specific things I want to raise with you, but I'll see once I look at the documents. Chantelle, could you have them sent through to me?
Clerk:Yes, Your Honour. That's been sent to you now. You should get it in two minutes or so.
His Honour: Thank you. So what I have in front of me, Mr Metaxas, and for that matter Senior Constable Sorenson, are three different documents. They have - just bear with me. All right, as I understand them, those three documents represent three different occasions where sentencing orders were made in relation to Quentin Everett. Two of those sentencing orders were made on the same date, 29 September 20. The third is the orders made first in time, and I'll start with those.
That's orders made on 9 June 2020. It's recorded as first of all a consolidated case, and it's given a consolidation case number, which ends in 6304. It doesn't detail on its face all of the charges that were necessarily dealt with on that occasion as part of the consolidation, but it records Charge 1 for the consolidation, and it appears to record that as the charge of intentionally damage property on 16 May 2020, which is the day of these events that are before me. That document records that the magistrate dealing with the matter was Ms O'Donnell, my colleague, that Mr Everett was represented by a Ms Lu, and it records that no plea was taken. There's a continuation of that document. I haven't gone through to that, but it's I think just recording further orders made as part of the consolidation, I'm not sure. But we don't need to go there for current purposes.
What it records first of all is that it would appear that the consolidation involved at least one indictable charge, and so the matter could not have proceeded before the could without the court being advised that Mr Everett was consenting to the court's jurisdiction. That's the first thing.
Secondly, it records that no plea was taken, which may or may not indicate a number of things. It may indicate that the matter proceeded as a contested hearing. It seems unlikely given the alleged events are said to have occurred on 16 May. It may, from my experience, simply mean that on the (indistinct) system where the computer provides for the plea to be formally recorded on the computer, no record was entered. How does that happen? Normally (recording malfunction) entry is made not by the magistrate but by the clerk opposite each charge - that is, the clerk records whether it's proceeding as a plea of not guilty, a plea of guilty, or just no plea at all at this stage, it's a mention. So it records no plea was taken.
However, it records that the sentencing order was that Mr Everett was convicted and placed on a community corrections order for a period of 18 months. That cannot be done without Mr Everett’s consent. So what the document tells is that although the document formally records no plea was taken, it tells me that the court was satisfied first of all that Mr Everett was consenting to the court's jurisdiction; secondly, that he was pleading guilty to the charges that were not withdrawn by the prosecution, whatever they were; and third, at the end of the sentencing exercise, he consented to being placed on a community corrections order for a period of 18 months. No doubt if we go further and look into the court records we'll find a copy of a community corrections order signed by him.
What that tells me is if one looks at the document, it may be correct, as Mr Everett apparently instructs Mr Metaxas, that no plea was entered. But in reality the document tells me that a plea was entered because the court would not have been able to proceed on 9 June 2020 in that way. The subsequent two sentencing orders made on the same date, 29 September 2020, involve a similar process in that the matters are before Ms O'Donnell on that occasion. The documents record that Mr Everett was represented by Ms Lagos. They again record that no plea was entered.
However, again, the first of those two documents involves a charge which is recorded as Charge 2 on a fresh consolidation ending in the case number 9369 that Mr Everett was being sentenced for an indictable offence, persistent breach of a family violence intervention order, so again the court must have been satisfied he was consenting to the court's jurisdiction and had been advised as such. And further it records that he was convicted and sentenced to an imprisonment of 64 days as part of an aggregated sentence, and it was recorded that 64 days were reckoned as a period of imprisonment already served.
All of that tells me that not only did Mr Everett consent to the court's jurisdiction, it's highly likely he was in custody at the time, and entirely likely - in fact I'll accept it on the record - that although it says no plea was taken, he entered pleas of guilty to those charges, otherwise the court could not have imposed imprisonment on him.
And in relation to the final sentencing order, that is an allegation in the same case number that was dealt with on 9 June 2020. It's an allegation of breaching the community corrections order that had been imposed on him on 9 June, and again, as I noted before, it's before Ms O'Donnell. Again Ms Lagos appears on behalf of Mr Everett, and again there's a sentencing order made by the court.
Now a breach of a community corrections order in itself is a summary offence. It doesn't require the consent of the accused in that sense. It's a summary offence. However, again, it is clear from the record that at least part of the allegation of breach being made against Mr Everett was the commission of indictable offences which were dealt with in the consolidation case number ending in 9369, persistent of a family violence intervention order, and so I have no doubt at all based on that document, although it records no plea was taken, a plea was taken, that Mr Everett entered pleas of guilty to that charge, enlivening the court's ability to then make the order it did, which was to confirm the original community corrections order.”
48The Magistrate specifically noted that:[31]
“It may be that Mr Everett has a different view of their meaning, but it will take some significant evidence to persuade the court that the record’s wrong on three different occasions of sentencing in that regard, particularly when it involves a requirement of consent to the court’s jurisdiction and it involves the court having to be satisfied not only that he consented to the court’s jurisdiction but that he pleaded guilty to each of those charges and the court was satisfied based on that plea and the summaries that each of those charges were proven because unless that occurs the court has no power to impose sentence. So it seems to be the record is very clear.”
[31]AJCB 46 (T42 L1-14)
49The hearing was then stood down at approximately 12:45pm.[32] At the resumption of Court at 2:00pm, Mr Metaxas informed the Court that he had instructions from the appellant to make orders without admissions by consent.[33]
[32]AJCB 47 (T43 L10)
[33]Ibid (T43 L14-16)
50The Magistrate had the power to make final orders under s74. Section 78 gave him the power to make the order without the requirement that he be satisfied that the appellant had committed family violence. Although the Magistrate observed that on the face of the court extract the police could prove family violence had occurred and that there was a likelihood or risk of further family violence, he was not required to make any finding of fact having regard to s78 of the Act. The Magistrate had not predetermined the issue. During hearing of the evidence, he engaged the appellant’s counsel in discussion as to the effect of the orders and court extract. Ultimately, the appellant consented to the orders without the Magistrate being required to make any findings of fact. I therefore find that there was no error of fact made by the Magistrate.
51The Magistrate heard the evidence of Senior Constable Silcock. Although part of the evidence was hearsay, the evidence is admissible pursuant to s65 of the Act. This section gives the Court broad powers to inform itself in any way it thinks fit and to refuse or limit the use of evidence in proceedings for an FVIO if it is just and equitable to do so. It allows the Court to consider evidence regardless of formal rules and to ensure a fair hearing. Moreover, Mr Metaxas consented to the tendering of Oliver Everett’s statement. Whether Senior Constable Silcock gave hearsay evidence and whether that evidence was admitted is not relevant as the Magistrate made no findings of fact when making the consent orders. Again, he was not required to make any findings of fact because of the operation of s78 of the Act. It is clear from the transcript that the appellant consented to the orders before the conclusion of all the evidence. I found no error of fact or law in the Magistrate’s decision.
52The issue of the related criminal charges was raised during the hearing and whilst the Magistrate discussed them with the appellant’s counsel, as reproduced above, the Magistrate did not rely on them when making the consent orders. He was not required to make any findings of fact having regard to the consent of the appellant to the orders. In his discussion with counsel, it was apparent the Magistrate did not have a concluded view, nor had he predetermined the issue as evidenced by the following:
(a)The transcript records that the Magistrate observed the certified court extract spoke for itself, but if the appellant was disputing the outcome of the Court, the option of obtaining a copy of the recording of the proceeding was open to him.[34]
(b)The Magistrate outlined his interpretation of the court extracts and said that it was open for the appellant to have a different view of their meaning, but he would need significant evidence to persuade him that the court’s extract was wrong on three different occasions.[35] The Magistrate did not shut the door on the issue but observed that there was a significant evidentiary hurdle for the appellant to overcome.
[34]AJCB 41 (T37)
[35]AJCB 46 (T42 L1-14)
I find no error in the Magistrate’s approach.
53I reject the appellant’s submission that he was denied procedural fairness or natural justice. The Magistrate afforded him the opportunity to be heard, and he was represented throughout the proceeding. It is clear from the transcript that the Magistrate had not predetermined the applications. Moreover, he made it clear notwithstanding the court extract, that it was open to the appellant to adduce evidence to the contrary, as discussed in the paragraph above. The appellant had the benefit of legal advice when he gave instructions to consent to the making of the orders. I find there was no error of law.
54I find that the appellant has not established that the Magistrate’s decision was attended with any error of fact or law. The FVIOs were made by consent and not as a consequence by any findings of fact or judicial determination.
55I consider that there is no merit in the submission that the Magistrate erred in his decision in making the duration of the FVIOs for 5 years. Legal error is not made out as the Magistrate addressed the requirements of s97 and provided reasons with respect to the duration of the FVIOs. The Magistrate considered there were a number of factors in this particular case which suggested to him the duration ought to be longer than normal. Namely, the prior involvement with the family of Child Protection and the Department of Fairness and Family and Housing, and the proposed FVIOs contained a Family Law Act exception. Therefore, the appellant would likely need to issue proceedings in the Federal Circuit and Family Court of Australia to have contact with the children under 18 years old. It was not unusual for such proceedings “to drag on for a lengthy period of time” and this justified a lengthy duration for the FVIOs. He also took into account the persistent breach of the FVIOs and made observations in relation to the appellant’s approach to life as a separated parent and the need for him to undertake “a fair bit of rebuilding” because this led to conflict. These comments were in the context of the volatility in the appellant’s family life and issues that were not being addressed. When the Magistrate raised these factors, the appellant’s counsel indicated that in his experience the appropriate duration for the FVIOs was between two and five years and if the Magistrate stayed within that range, he would make no further submissions. The Magistrate then made the order. Again, I find there was no error attended with the Magistrate’s decision.
56In relation to discretionary error, the transcript does not disclose that the Magistrate operated under any wrong principle, that he allowed himself to consider or be swayed by irrelevant or extraneous matters, or that he failed to take into account any material consideration.
57I find that there has been no discretionary error demonstrated.
58In relation to the further evidence the appellant purported to rely on, whilst I have read and considered it, I am of the view that it does not assist in determining whether the Magistrate’s decision was attended with error. of fact, law or discretion. The material the appellant seeks to rely on was not before the Magistrate at the time of his decision and does not go to the questions I am required to address. The recording with child protection and the correspondence with the Coroners Court came into existence after the FVIOs hearing and do not go to the Magistrate’s decision.
59Justice Dixon made it clear in AAA that this rehearing is not a retrial of the original applications and the material the appellant seeks to rely upon would be relevant evidence if the applications were heard de novo. As this is a preliminary hearing to enliven the power of the Court, I do not consider them relevant.
Conclusion
60The appellant has failed to demonstrate that the decision of the Magistrate was attended with any legal, factual or discretionary error. I therefore dismiss the applications.
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