Mitchell (a pseudonym) v Hudson (a pseudonym)
[2025] VCC 1486
•15 October 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
| BENJAMIN MITCHELL (A PSEUDONYM) | Appellant |
| v | |
| SALLY HUDSON (A PSEUDONYM) | Respondent |
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JUDGE: | His Honour Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 July 2025 (on the papers) | |
DATE OF JUDGMENT: | 15 October 2025 | |
CASE MAY BE CITED AS: | Mitchell (a pseudonym) v Hudson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1486 | |
REASONS FOR JUDGMENT
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Subject:Appeal against family violence intervention order
Catchwords: Family violence intervention order appeal – review of decision of Magistrate – appellant and respondents are self-represented litigants – legal, factual or discretionary error
Legislation Cited: Family Violence Protection Act2008; Health Practitioner Regulation National Law (Victoria) Act2009; Health Practitioner Regulation National Law (Queensland) 2009
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Byrne v Owners of Ceresa River Apartments Strata Plan55597 [2016] WASC 153; Devries v Australian National Railways Commission (1993) 177 CLR 472; Lee v Lee (2019) 266 CLR 129; Blunt v Blunt [1943] AC 517; House v The King (1936) 55 CLR 499; R v Storey (1978) 140 CLR 364
Judgment: Appeal dismissed
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APPEARANCES: | |
| For the Appellant | In person |
| For the Respondent | In person |
HIS HONOUR:
Introduction
1In this proceeding, the appellant, Mr Benjamin Mitchell,[1] appeals a final Family Violence Intervention Order (“FVIVO”) made against him in the Magistrates’ Court on 4 October 2022. The FVIO was made pursuant to s74 of the Family Violence Protection Act2008 (“the Act”). Specifically, the appeal is brought pursuant to s119 of the Act.
[1] A pseudonym.
Relevant background
2The factual matters relevant to the context of the appeal can be briefly stated. Mr Mitchell and the respondent Ms Sally Hudson[2] met in 2015 and separated 18 months after that. They have one child who lives with Ms Hudson. Mr Mitchell made an application for an intervention order against Ms Hudson. He was also the respondent in relation to an intervention order brought against him by Ms Hudson which he was defending. Both applications were listed to be heard together.
[2] A pseudonym.
Proceedings in the Magistrates’ Court
3The matter was listed for a final hearing on 3 and 4 October 2022 at Frankston Magistrates’ Court before her Honour Magistrate Windisch. Mr Smurthwaite appeared on behalf of Mr Mitchell and Mr Lawson appeared on behalf of Ms Hudson.[3]
[3] Family Violence Protection Act 2008 s71
4Ms Hudson was called and was cross-examined by counsel. Mr Mitchell gave evidence and was cross-examined. Detective Sergeant Douglas also gave evidence.
5At the conclusion of that, the Magistrate provided brief reasons for making a final FVIVO in favour of Ms Hudson, including their son, as an affected family member in the order with a s92[4] exception noting the Family Court orders made on 15 July 2019. This final FVIVO order is due to expire on 4 October 2027.
[4] Family Violence Protection Act 2008
6Mr Mitchell has appealed from that order to this Court.
Relevant legal principles
7In the decision of the Honourable John Dixon J in AAA v County Court of Victoria & Ors (“AAA”)[5], John Dixon J considered the terminology associated with s 119 and particularly the meaning of the term “rehearing by the County Court” which appears there. In that case, his Honour held that an appeal under s 119 is a broad appeal by way of rehearing. The features of such a broad appeal are the following:
a.that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[6]
b.the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual, or discretionary error;[7]
c.the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[8]
d.the Court is required to assess and evaluate the evidence for itself.[9]
[5] [2023] VSC 13
[6] Ibid at paragraph [50]
[7] Ibid
[8] Ibid
[9] Ibid
8However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand. [10]
[10] Ibid at paragraph [54]
9As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[11] He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal. It is then the appeal court’s function to apply the law at the time when the appeal is heard to consider all of the admitted evidence. He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[12]
[11] Ibid at paragraph at [63]
[12] Ibid at paragraph [51(b)] relying on Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624,
645 at [65]
10Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this Court. Such error may be proved after an examination of the transcript in the Magistrates’ Court, to examine the conduct of the proceeding and any reasons for decision.
Errors of law, fact and discretion
11What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[13] With that said, established legal principles operate to guide the courts through an assessment of claimed errors. I turn now to briefly consider those.
[13] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Legal error
12A legal error may arise in the way in which a court:
“undertakes its fact-finding, or … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning”. [14]
[14] Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at paragraph [23]
13Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[15]
[15] Ibid
Factual error
14A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[16] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[17]
[16] Devries v Australian National Railways Commission (1993) 177 CLR 472 at paragraph [479]
[17] Ibid
15The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[18]
“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’.”
[18] (2019) 266 CLR 129 at paragraph [55]
16Similarly, in Blunt v Blunt it was said:
“If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.” [19]
[19] [1943] AC 517 at paragraph [526]
Discretionary error
17Where 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.
18The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King: [20]
“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.”
[20] (1936) 55 CLR 499 at paragraphs [504-505]
19Having set out those principles, I now turn to the grounds of appeal pressed by Mr Mitchell.
The grounds of appeal
20Mr Mitchell’s appeal to this Court seeks to demonstrate that there was legal, factual and discretionary error by the Magistrate.
21Mr Mitchell filed submissions on his grounds of appeal on 28 July 2025 outlining 5 grounds of appeal.
Ground 1: “Health Practitioner Regulation National Law - Section 237
The Magistrate erred by failing to apply statutory protection under s.237 of the Health Practitioner Regulation National Law, which provides immunity from civil, criminal or administrative liability for persons making notifications to AHPRA. The conduct at the core of the Respondent's application—the Appellant's contact with AHPRA—was protected and lawful under this provision. The intervention order made on this basis was legally untenable. [Transcript reference: Day 2: Page [137-138]”[21]
[21] Appellants written submissions dated 28 July 2025
22Section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 states that the Health Practitioner Regulation National Law (Queensland) is given force in Victoria. Mr Mitchell submits that the Magistrate erred in failing to apply the statutory protection under s237 of the Health Practitioner Regulation National Law (Queensland) afforded to people who make notifications to AHPRA.
23There is no evidence that Mr Mitchell is currently being held liable for making notifications to AHPRA. The Magistrate took the fact of Mr Mitchell’s complaints into account, that is, that complaints were made and that they constituted a pattern of behaviour. That much is allowed under the National Law and there is no contravention of that law by the use of the fact of the complaint. It led, in part, to the Magistrates’ finding that there was a pattern of behaviour that was intended to control and harass Ms Hudson. Furthermore, it formed part of her reasons that family violence was likely to continue. These are factual findings that she was entitled to make with all the other evidence before her in this case. It is not clear in what way Mr Mitchell suggests he is being held “liable” for the complaints that he made in contravention of this section. There is no merit in this ground.
24I dismiss this ground of appeal.
Ground 2: “RES JUDICATA (LEGAL ERROR)
Whether the Appellant's AHPRA notifications constituted family violence was previously adjudicated in a contested criminal hearing before Magistrate R. Pithouse on 2 May 2022. Having read the two notifications in full, his Honour found the Appellant had reasonable beliefs and acted lawfully—no family violence occurred, even on the balance of probabilities, (required means to establish ‘good faith’), adopting the applicable legislation (Health Practitioner Regulation National Law - Section 237). The Respondent has received this court transcript. The Respondent and the learned Magistrate never read the notifications to AHPRA but alleged they were vexatious and/or without merit. The only document tendered to was an outcome letter. These finalised issues could not be re-litigated in the IVO proceedings. The subsequent decision disregarded Res Judicata principles and constituted legal error. [Transcript reference: Day 1- Page [16]”[22]
[22] Ibid
25Broadly the doctrine of res judicata means that if a dispute is judged by a court of competent jurisdiction, the judgment of the Court is final and conclusive as to the rights and duties of the parties involved. Res judicata constitutes an absolute bar to a subsequent suit for the same cause of action.[23]
[23] R v Storey (1978) 140 CLR 364
26Magistrate Windisch was not bound by the earlier decision of Magistrate Pithouse as is submitted. This is because Magistrate Windisch was concerned with the applications at the time she considered them in November 2022. She was bound to consider the evidence that bore on the patterns of behaviour in the past and whether they formed the basis for a finding that family violence might continue into the future. Because of that context, any finding by Magistrate Pithouse could not bind the Magistrate in this case when she came to make her findings. The doctrine of res judicata did not bind her to conclude the AHPRA notifications were made in good faith as she was considering them in a different factual matrix than Magistrate Pithouse. As the Courts have made clear it is the ultimate conclusion that constitutes the res judicata, this does not “…extend to any fact supposedly found or denied in arriving at that verdict”.[24] There is no error of the kind alleged.
[24]Ibid Barwick CJ at paragraph [373]
27I dismiss this ground of appeal.
Ground 3: “ERROR OF FACT – ADDRESS LOCATION ALLEGATIONS
Ti Tree Crescent Address
The Magistrate erred in accepting the Respondent's chronologically impossible claims that the Appellant had "recently located" her Ti Tree Crescent, Seaford address. The evidence demonstrates a pattern of fabricated allegations spanning three years, with the Respondent claiming the same "recent discovery" repeatedly.”[25]
[25] Appellants written submissions dated 28 July 2025
28I interpret this to be an allegation that Mr Mitchell is alleging a factual error by Magistrate Windisch in accepting Ms Hudson’s evidence in relation to residential addresses at Seaford and Carrum.[26] The Magistrate accepted the evidence of Ms Hudson which is contrary to what Mr Mitchell now submits. The Magistrate was entitled to do so.
[26]Transcript (“T”) 104 and T105
29In addition, there is no evidence on how this could rationally effect the ultimate decision. This is because that was a matter of history dating to 2019. Even if the Magistrate were wrong about that finding, she found that as of 2022 Mr Mitchell made efforts to find Ms Hudson’s address in 2022. She used that to find that there was evidence of both family violence in the past and that there was a likelihood that such would continue for the foreseeable future.[27] That was in part the basis for her decision. She was entitled to come to that finding having heard and considered all of the evidence. There is no error of a material kind.
[27]T143, Line (“L”) 6-15
30I dismiss this ground of appeal.
GROUND 4: “ERROR OF FACT - UNEQUAL TREATMENT OF CONDUCT
Critical disparity in treatment: Appellant made 2 protected AHPRA reports—wrongly treated as family violence. Respondent made 20+ complaints to Victoria Police (false, malicious, unfounded)—not treated as family violence, despite detailed 340 paragraph false statement on 02/09/2022. Respondent's Evasive Evidence versus Detailed Police Statement Under cross-examination on 2nd – 3rd of Ocotber [sic] 2022, the Respondent turned her back to the court, was evasive, didn't answer questions fully, and implied memory loss. However, she signed a detailed 340-paragraph police statement on the 2nd September 2022. This contradiction suggests dishonesty and manipulation, particularly given the statement's timing shortly before her cross examination. (Depicted in Rulins)[sic].”[28]
[28] Appellants written submissions dated 28 July 2025
31This submission does not engage with the Magistrates’ ruling and seeks to reagitate matters before the Magistrate on which she made findings. The Magistrate was entitled to make findings as to what constituted family violence and factually to decide whether such family violence was likely to continue to be perpetrated by Mr Mitchell. She particularly found that Mr Mitchell was likely to commit such family violence into the future. She set out why she made such findings about Mr Mitchell’s behaviour in 2022.[29] This was as to his likelihood to continue to commit such family violence into the future. She was entitled to make such a finding and proceed from there to make her ultimate determination that an intervention order ought be made against him. His submission simply argues that she ought to have made different factual findings and it does not demonstrate why the alleged factual error, in respect of events in 2019, undermined the findings she made as to his behaviour in 2022. In that way, even if he were correct and a factual error was made, it is not material.
[29]T143, Line (“L”) 6-15
32I dismiss this ground of appeal.
GROUND 5: “PROCEDURAL ERROR - IMPROPER INCLUSION OF CHILD
The Magistrate included Alex Mitchell[30] as a protected person without providing notice or opportunity for submissions from the Appellant. When delivering oral judgment, the Magistrate did not mention Alex Mitchell's inclusion—this only became apparent upon service of the written order. This denied the Appellant opportunity to challenge the necessity of including the child or seek variations affecting existing Family Court arrangements. No true and correct evidence of family violence toward the child was presented by the Respondent, representing a breach of procedural fairness. (Depicted in Rulins [sic] + Discussion).”[31]
[30] A pseudonym.
[31] Appellants written submissions dated 28 July 2025
33Mr Mitchell is alleging a legal error in that the Magistrate erred in including the child in the order. This was an issue that his Counsel raised after it became apparent from the Magistrates’ pronouncement of the orders. In particular Mr Mitchell’s Counsel stated that if he had known that the child was to be included he would have made submissions about the issue.[32]
[32]T148, L13
34It is clear that their child was included in Ms Hudson’s application. I am unclear if the child was listed on Mr Mitchell’s application.
35Evidence was also led which involved the child. However it is clear that Magistrate Windisch proceeded on the basis that Ms Hudson and the child had the same interests. In part this maybe because the child was listed on Ms Hudson’s application and also because the Magistrate was aware of the Family Court orders which dealt with custody issues and awarded primary care to Ms Hudson. In that way the Magistrate may have taken the view that for clarity Ms Hudson’s application needed to be dealt with in a way which ensured harmony with the Family Court parenting orders (to which the IVO orders defer).
36Prior to dealing with the orders she was going to pronounce the Magistrate did not indicate that the order was going to be made in respect of the child as well. After she pronounced orders Counsel realised that the child was included and objected to the course the Magistrate took. The Magistrate then invited Counsel to make application to vary the order or to appeal.[33] Arguably this course has meant that Mr Mitchell has been denied the opportunity to fairly put his case as to why the child should be excluded from the order.[34]
[33]T148, L15-17
[34]T148, L20-24
37Even accepting that however, I would not consider that this ought to result in any remitter of this appeal or variation in the orders made below. This is for the following reasons. First, the child was nominated on Ms Hudson’s application. She clearly intended him to be included in the order. Second, opportunity was given during her cross-examination and Mr Mitchell’s to ask about divergent interests between Ms Hudson and the child. Nothing appears to have indicated they had such divergent interests. Third, the presence of the Family Court orders was known and it set the arrangement for contact with the child and had done since 2019. Fourth, the age of the child was 6 at the date of the Magistrates’ order. This suggests that he was highly dependent on his primary carer, Ms Hudson. His interests were almost synonymous with hers, and to the extent they were not the Family Court orders decided that issue. For all those reasons, I do not consider the error was material.
38I dismiss this ground of appeal.
GROUND 6: “ADDITIONAL PROCEDURAL IRREGULARITIES
The Respondent made three failed applications for interims IVO’s, then engaged Police Informant Davey to apply for a fourth (mirrored) IVO despite a contested hearing already being scheduled. On the original contested hearing day (28 July 2022), Magistrate Bryant stated the Respondent application appeared without merit and would not allow historical matters or the AHPRA allegation to be retried. The Respondent then claimed concussion from an incident 2-weeks prior and produced a medical certificate from Dr Gail Reid, admitting she hadn't sought immediate treatment and had travelled interstate amongst other factors of her operating motor vehicles, only later seeking a medical certificate when advised that AHPRA and other historical matters would not be re-entertained. The medical certificate wasn’t produced till the morning of the original contested hearing. No notice was given prior to the day of the hearing and depicts “Magistrate Shopping”.
Following the adjournment, Victoria Police member Elise Douglas submitted a confidential affidavit in the civil proceeding without being a party, without subpoena/summons, and without serving a copy on the Appellant. The Appellant was denied the ability to test or respond to this evidence, contradicting the court's direction not to rely on historical material. If given the opportunity, the Appellant could have been able to present contradicting evidence, as above. Denying procedul [sic] fairness. The material DOUGLAS presented was in relation to driving past the Respondents address and claims that the Appellant called WAYSS in 2021, to seek an address he had since 2018. [Transcript reference: Day 2: Page [126-130, 133-135].”[35]
[35] Appellants written submissions dated 28 July 2025
39This submission does not engage with the Magistrates’ ruling and seeks to reagitate matters before the Magistrate on which she made findings. The Magistrate was entitled to make findings as to what constituted family violence and factually to decide whether such family violence was likely to continue to be perpetrated by Mr Mitchell. She particularly found that he was likely to commit such family violence into the future. She set out why she made such findings. His submission simply argues that she ought to have made different factual findings. This is not identification of a factual material error.
40I dismiss this ground of appeal.
Conclusion
41For the reasons above, I will dismiss Mr Mitchell’s appeal.
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