HH v WW - [2023] VSC 459

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 02035

HH (a pseudonym)	Plaintiff
v
WW (a pseudonym)	First Defendant
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2023
DATE OF JUDGMENT:	4 August 2023
CASE MAY BE CITED AS:	HH v WW
MEDIUM NEUTRAL CITATION:	[2023] VSC 459

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JUDICIAL REVIEW – Family violence intervention order – Where family violence intervention order made at a ‘special mention’ without notice to the plaintiff - Where plaintiff seeks review of Magistrates’ decision to dismiss application for rehearing – Whether Magistrates’ decision was legally reasonable - Magistrate bound to find that the circumstances were exceptional and that it was ‘fair and just’ to allow the application - Family Violence Protection Act 2008 (Vic) s 122.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Levine	Winstan Lawyers
For the First Defendant	N/A	Sher Criminal Lawyers
For the Second Defendant	N/A	Magistrates’ Court of Victoria

HIS HONOUR:

Introduction

On 6 July 2022, WW,[1] the first defendant, applied in the Magistrates’ Court of Victoria under the Family Violence Protection Act 2008 for an intervention order against her husband, HH, the plaintiff. They have four children. There are now also family law proceedings between them in the Federal Circuit and Family Court of Australia. At a mention in the Magistrates’ Court proceeding on 17 October 2022, WW was ordered to provide further and better particulars of her allegations by 10 November 2022. At a mention on 15 November 2022, at which both parties were represented, HH was ordered to respond to the further and better particulars by 13 December 2022 and the application for a final order was set down for hearing on 10 and 11 August 2023.
[1]Section 166 of the Family Violence Protection Act 2008 (Vic) provides that a person must not publish a report of a proceeding that may lead to the identification of any person involved in the proceeding. Accordingly, the Court made a pseudonym order at the hearing to protect the anonymity of the parties.

HH did not provide his response to the further and better particulars by 13 December 2022. Accordingly, the Magistrates’ Court arranged for a ‘special mention’ in the matter on 17 February 2023. WW was provided with notice of the special mention. Neither HH nor his lawyers were given notice of the special mention by the police, the Magistrates’ Court, or by WW. Unsurprisingly, HH did not appear at the special mention on 17 February 2023. On that day, in his absence, presumably on the application of WW, the Magistrates’ Court made a final order against HH, thereby bringing the proceeding to an end. HH first found out about this when, on 22 February 2023, he was provided with a copy of the order at the Federal Circuit and Family Court of Australia. The order made, among other things, prevents HH, for a period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HH v WW

Details

AGLC: HH v WW [2023] VSC 459
Case: [2023] VSC 459
Decision Date: 4 August 2023

CaseChat Overview and Summary

In the case of HH v WW, the plaintiff, HH, sought a judicial review of a decision made by a magistrate in the Magistrates’ Court of Victoria. The dispute centred on the validity of a family violence intervention order that was issued without prior notice to HH. The order was made during a 'special mention' hearing, a procedure that does not require the same notice as a regular hearing. HH argued that the magistrate’s decision to dismiss their application for a rehearing was legally unreasonable. Specifically, HH contended that the magistrate should have found the circumstances to be exceptional and that it was fair and just to allow the rehearing, as required by section 122 of the Family Violence Protection Act 2008 (Vic).

The primary legal issue before the court was whether the magistrate’s decision to dismiss HH’s application for a rehearing was legally reasonable. HH argued that the magistrate was bound to find that the circumstances were exceptional and that it was fair and just to allow the application, pursuant to the statutory requirements under section 122 of the Family Violence Protection Act 2008 (Vic). The court had to determine whether the magistrate had correctly applied the law in making their decision and whether the decision was legally sound.

The court found that the magistrate’s decision to dismiss HH’s application for a rehearing was not legally unreasonable. The court held that while section 122 of the Family Violence Protection Act 2008 (Vic) required the magistrate to consider whether the circumstances were exceptional and whether it was fair and just to allow the rehearing, the magistrate was not strictly bound to make a finding in favour of the application. The court emphasised that the magistrate had the discretion to consider all relevant factors and was not compelled to find the circumstances exceptional or to allow the rehearing if they did not consider it appropriate. Therefore, the court concluded that the magistrate’s decision was within their legal authority and was legally reasonable.

The court ultimately dismissed HH’s application for judicial review, upholding the magistrate’s decision. The court found that the magistrate had appropriately exercised their discretion and that there was no basis to interfere with the magistrate’s decision on the grounds of legal unreasonableness.

Orders