Holt (a pseudonym) v Baldwin (a pseudonym)

[2019] VCC 2079

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Damian Holt (a pseudonym)	Appellant
v
Charisse Baldwin (a pseudonym)	Respondent

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JUDGE:	Judge Pillay
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2019
DATE OF RULING:	27 November 2019
CASE MAY BE CITED AS:	Holt (a pseudonym) v Baldwin (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 2079

REASONS FOR RULING
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Subject:  Intervention Order Appeal

Catchwords:             Family Violence Intervention Order - application for adjournment – lack of evidence for the respondent

Legislation Cited:     Family Violence Protection Act 2008 (Vic)
Ruling:  Appeal allowed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms Golshtein	Schetzer Constantinou Lawyers
For the Respondent	No Appearance

HIS HONOUR:

1       In this application the court is hearing an appeal from the orders of the Magistrates' Court to grant an intervention order on 4 April 2019 in favour of Ms  Baldwin[1] against Mr Holt.[2]  Mr Holt did not appear in the Magistrates' Court proceedings due to an oversight of his lawyers.  He has now appealed those final orders in Ms Baldwin's favour.

[1] A pseudonym.

[2] A pseudonym.

2 This appeal operates as a hearing de novo. This court is able, pursuant to s.119(2)(b) of the Family Violence Protection Act 2008 (Vic) to set aside the relevant decision of the Magistrates' Court made on 4 April 2019.

3       The night before the hearing of the appeal, Ms Baldwin sent an email dated 26 November 2019, tendered as Exhibit R1, and a medical certificate dated 26 November 2019, tendered as Exhibit R2.  Essentially, Ms Baldwin sought an adjournment for family reasons to do with arrangements for her children with NDIS and on medical grounds. Mr Holt, through his counsel, Ms Golshtein, opposed that application.

4       I denied Ms Baldwin's application as I considered she had sufficient notice of this hearing date.

5       Secondly, her medical certificate did not unequivocally state she was unfit to attend this hearing.

6       Thirdly, the appellant has briefed and has served a court book, despite service of orders requiring further and better particulars in May 2019 and a letter from the appellant in September of this year, tendered as A3, seeking the further and better particulars of the reinstatement application – no such material has been forthcoming. It suggests a pattern of behaviour which is dilatory.

7       Fourthly, while she also cited a conflicting NDIS appointment, I consider she is likely to have known of this hearing date for some time, and yet did not make arrangements earlier to adjourn this date.  I am unclear as to why not.

8       On the hearing of the appeal Ms Golshtein tendered numerous materials and called Mr Holt to give vive voce evidence.  He gave sworn evidence confirming he had not engaged in behaviour the subject of the initial IVO application or the reinstatement application.

9       I will grant the appeal and set aside the Magistrates' Court order of 4 April 2019.  I do so for the following reasons:  First, the lack of sworn evidence from the respondent or the provision of any documentary evidence to support her position (or the provision of further particularisation of her claim).  Secondly, the sworn oral evidence of Mr Holt who denied any of the alleged behaviour said to constitute family violence.  He gave his evidence openly and honestly, and I consider him a witness of truth.

10      It might be considered strange that I would make such a comment in an application such as this, particularly one which is not opposed and where Mr Holt was not cross-examined.  However I had the opportunity to ask Mr Holt myself questions as to why he did not appear on 4 April 2019.  It was my opinion that he answered these questions openly and with candour.

11      Thirdly, the tendered material in my view shows that at all times Mr Holt did not commit family violence by the content of his communication, its style or its manner.  In fact it showed the opposite.

12      In summary, on the balance of probabilities, I do not find that the circumstances exist which support the making of the order as was done in the Magistrates' Court on 4 April 2019.  I will hear counsel on further orders.