MN v OP

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 00038

MN	Plaintiff
v
OP	First Defendant
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 6 and 7 September 2017
DATE OF JUDGMENT:	4 December 2017
CASE MAY BE CITED AS:	MN v OP
MEDIUM NEUTRAL CITATION:	[2017] VSC 733

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FAMILY VIOLENCE INTERVENTION ORDERS — Ex parte interim orders — Duty of disclosure of material facts — Whether application an abuse of process — Application to revoke or vary interim order — Applicable grounds – Withdrawal of application — No notice to respondent — Cost — Entitlement of respondent to seek costs — Family Law Act 1975 (Cth) ss 68N, 68R, 68T; Family Violence Protection Act 2008 ss 1, 2, 53, 54, 55, 57, 59, 65, 89, 90, 109, 154; Magistrates’ Court (Family Violence Protection) Rules 2008 r 4.08.

JUDICIAL REVIEW — Ex parte interim orders — Duty of disclosure of material facts — Whether application an abuse of process — Application to revoke or vary interim order — Applicable grounds – Withdrawal of application — No notice to respondent — Cost — Entitlement of respondent to seek costs — Family Law Act 1975 (Cth) ss 68N, 68R, 68T; Family Violence Protection Act 2008 ss 1, 2, 53, 54, 55, 57, 59, 65, 89, 90, 109, 154; Magistrates’ Court (Family Violence Protection) Rules 2008 r 4.08.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J R Sutton
For the First Defendant	In person

HIS HONOUR:

Introduction

The plaintiff MN,[1] seeks declarations that an interim intervention order made under the Family Violence Protection Act 2008 (‘the Act’) and related decisions by three Magistrates, were not made according to law.[2] The last of the decisions was the granting of leave to the first defendant OP on 27 February 2017 to withdraw his application for an intervention order.
[1]The Court made a pseudonym order at judgment to protect the anonymity of the parties to the proceeding see s 166 of the Family Violence Protection Act 2008.
[2]The plaintiff also sought orders in the nature of certiorari to quash the interim intervention order.

OP applied for the interim intervention order against MN. They had been in a relationship. The affected family members protected by the order were MN and OP’s two children.

At the outset, it is important to note that MN seeks judicial review and the issue in this proceeding is whether the Magistrates made jurisdictional errors or errors of law on the face of the record. This Court has no authority to decide whether the Magistrates’ decisions were appropriate, but only whether they involved jurisdictional error or error of law on the face of the record.

Summary

MN raised many grounds in support of her application for judicial review of orders made by the Magistrates’ Court when dealing with OP’s application for interim intervention orders. None had any substance. The principal grounds were that after OP obtained an ex parte interim intervention order, MN as respondent was entitled to apply to have it revoked on the grounds that the application had been an abuse of process or because OP had not disclosed all material facts. Although I consider that in appropriate circumstances, the Court would have jurisdiction to entertain such applications, I do not consider that the Magistrate made any judicially reviewable error in refusing to hear those applications at the time at which they were made. Nor did the Magistrate err in deciding that MN had failed to establish that he should vary or revoke the interim order under s 109 of the Act. There is one other matter, MN wishes to apply for orders that OP pay her costs of his application for intervention orders. She is still entitled by s 154 to apply for such orders despite OP’s withdrawal of his application. However, I have stated below in paragraphs [141]-[147] that any such application should not require an extensive hearing of all the issues that would have been relevant had OP’s application proceeded to a final hearing.

As mentioned, OP obtained leave to withdraw his intervention order application. However, I consider that MN is still entitled to challenge the orders in issue and seek declaratory relief concerning their validity because their making and existence may continue to affect her reputation even after the withdrawal of the application.[3]
[3]For instance reputation is an interest that attracts the requirements of procedural fairness: Ainsworth c Criminal Justice Commission (1992)175 CLR 564, 578 (Mason CJ, Dawson, Toohey and Gaudron JJ).

Legislation

The Act includes a preamble of the principles that Parliament stated it recognised in enacting the Act, the first part of the preamble reads:

In enacting this Act, the Parliament recognises the following principles—
(a)that non-violence is a fundamental social value that must be promoted;
(b)that family violence is a fundamental violation of human rights and is unacceptable in any form;
(c)that family violence is not acceptable in any community or culture;
(d)that, in responding to family violence and promoting the safety of persons who have experienced family violence, the justice system should treat the views of victims of family violence with respect.

Section 1 and 2 provide for the purposes of the Act:

1 Purpose
The purpose of this Act is to—
(a)maximise safety for children and adults who have experienced family violence; and
(b)prevent and reduce family violence to the greatest extent possible; and
(c)promote the accountability of perpetrators of family violence for their actions.

2 How purpose is to be achieved
This Act aims to achieve its purpose by—
(a)providing an effective and accessible system of family violence intervention orders and family violence safety notices; and
(b)creating offences for contraventions of family violence intervention orders and family violence safety notices.

The Attorney-General made the following observations on the purpose of interim protection orders in his second reading speech:

Interim intervention orders are designed to provide short-term, speedy protection to victims of family violence until the court can hear all the evidence and make a final determination. An interim intervention order can be made:
to ensure the safety of the affected family member
to preserve the affected family member’s property
to protect a child who has been subjected to family violence committed by the respondent.
Interim intervention orders can be made without the respondent present but are only effective once they are served on the respondent. In appropriate circumstances, police can use their holding powers to assist with serving the respondent.[4]

[4]State of Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2646 (Mr Rob Hulls, Attorney-General).

The power to make an interim order is dealt with in the following sections:

53       Court may make interim order
(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)to protect a child (whether or not the child is an affected family member) who has been subjected to family violence committed by the respondent; or

(b)a person has applied to the court for a family violence intervention order and the parties to the proceeding have consented to, or do not oppose, the making of an interim order for the application; or
(c)a family violence safety notice has been issued for an affected family member and the court is satisfied, on the balance of probabilities, there are no circumstances that would justify discontinuing the protection of the person until a final decision about the application.

(1A)Before making an interim order under subsection (1), the court must consider whether there are any children who have been subjected to family violence committed by the respondent.
(1B)If the court decides to make an order to protect a child under subsection (1)(a)(iii), the court may—
(a)if the child's need for protection is substantially the same as that of the affected family member—include the child as a protected person in making the order under subsection (1); or
(b)otherwise—make a separate interim order under subsection (1) for the child as a protected person.

(1C) The court may make an order under subsection (1)(b)—
(a)without being satisfied as to any matter referred to in subsection (1)(a) or (1)(c); and
(b)whether or not the respondent admits to any or all of the particulars of the application.

(2)In deciding whether to make an interim order the court is not to take into account whether or not the respondent is or has been the subject of a direction, or detained, under Division 1 of Part 3.

(3) The court may make an interim order whether or not—
(a)some or all of the alleged family violence occurred outside Victoria, so long as the affected family member was in Victoria at the time at which that alleged family violence occurred;
(b)the affected family member was outside Victoria at the time at which some or all of the family violence alleged in the application for the family violence intervention order occurred, so long as that alleged family violence occurred in Victoria.

54 Interim order may be made in absence of respondent etc.
An interim order may be made—
(a)whether or not the respondent has been served with a copy of the application for a family violence intervention order; and
(b)whether or not the respondent is present when the interim order is made.

55 Evidentiary requirements for making interim orders
(1)The court must not make an interim order, other than an order referred to in section 53(1)(b), unless—
(a)the application is supported by oral evidence or an affidavit; or
(b)the application is made under section 44 by telephone, fax or other electronic communication and the court waives the requirement under paragraph (a); or
(c)the application is made by the issue of a family violence safety notice that was certified in accordance with section 153(1).

(2)Nothing in subsection (1)(a) or (3) obliges the affected family member to give evidence before the interim order is made.
(3)If the application is made by issue of a family violence safety notice that was certified in accordance with section 153(1), the court, if deciding under section 65(3) whether to refuse to admit or limit the use to be made of the family violence safety notice, must first consider whether it is reasonably practicable to obtain oral evidence or affidavit evidence.

When an interim order is made, a court officer must then comply with s 57 of the Act by providing notice and other relevant information to the respondent and affected family members:

57 Explanation of interim order
(1)If a court makes an interim order, the appropriate registrar of the court must give the respondent and the affected family member a written explanation of the order, in the prescribed form, that explains the following matters—
(a) the purpose, terms and effect of the interim order;
(b)the consequences and penalties that may follow if the respondent fails to comply with the terms of the interim order;
(c)when the interim order expires and the means by which the interim order may be varied;
(d)for the respondent, that the interim order is a civil order of the court and the affected family member cannot give permission to contravene the interim order;

(e) the process for deciding the final order;
(f)how the order interacts with a Family Law Act order or an order under the Children, Youth and Families Act 2005;
(g)if the court has varied, suspended, revoked or revived a Family Law Act order because it is inconsistent with the interim order, the purpose, terms and effect of the variation or suspension;
(h)any relevant family violence services offering legal, emotional or practical support that may be available to the affected family member or respondent.

(2) A written explanation under subsection (1) must be—
(a)if the protected person or respondent is before the court, given to the protected person or respondent and accompanied by a clear oral explanation of the matters contained in it; and
(b)if the protected person or respondent is not before the court, served on the protected person or respondent and accompanied by any additional information the court considers necessary to explain the interim order.

(2A)Despite subsection (2)(a), the appropriate registrar is not required to give the protected person or respondent an oral explanation if the registrar is satisfied that, on making the order, the magistrate gave the protected person or respondent a clear oral explanation of the matters set out in subsection (1).
(3)A failure by the appropriate registrar to explain an interim order in accordance with this section does not affect the validity of the interim order.

The Attorney-General in his second reading speech remarked on why in family violence applications, some Court procedures are counter-productive to protecting applicants, for example, rules of evidence:

The VLRC report[5] found that giving evidence about family violence in court can be one of the most difficult and traumatic aspects for victims accessing the existing intervention order system.
To ameliorate this impact, the bill includes various changes to how evidence is given and considered in court. For example, the bill provides that alternative ways of giving evidence will be available, such as the use of closed circuit television and permitting support persons to be beside the witness.
The VLRC also found that the operation of the usual rules of evidence, especially hearsay, can put unnecessary barriers in the way of a court hearing and determining a matter. Consequently, the bill provides that a court can hear any reliable and probative evidence that it sees fit, but not admit evidence it considers unfairly prejudicial. The court will still be bound to apply the protective rules of evidence such as those relating to unfair or harassing questioning and ensuring the competency of all witnesses.[6]

[5]Victorian Law Reform Commission, Review of Family Violence Laws Report (1 March 2006) (citation added).

[6]State of Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2646 (Mr Rob Hulls, Attorney-General).

The considerations stated by the Minister in the above passage are reflected in s 65 of the current Act:

65 Evidence
(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.

Note
This section does not apply to a proceeding for an offence under this Act.

The Court is required to make inquiries about whether there are any Family Law Act or child protection orders in place that would be affected by the operation of an intervention order:

89 Court to enquire as to whether any other relevant orders for child
If the court decides to make a family violence intervention order and the protected person or respondent is the parent of a child, the court must enquire as to whether there are any of the following orders in force in relation to the child—
(a) a Family Law Act order;
(b) a child protection order.

90 Variation of relevant Family Law Act order
(1) This section applies if—
(a)after making enquiries under section 89, the court is satisfied there is a Family Law Act order in force in relation to the child; and
(b)the family violence intervention order and the Family Law Act order will be inconsistent.

(2)The court must, to the extent of its powers under section 68R of the Family Law Act, revive, vary, discharge or suspend the Family Law Act order to the extent that it is inconsistent with the family violence intervention order.

109 Application made by respondent for variation or revocation of family violence intervention order
(1) For the purposes of section 108(1)(a), the respondent for a family violence intervention order may apply for the variation or revocation of the order only if the court has given leave for the respondent to make the application.
(2) The court may grant leave under subsection (1) only if the court is satisfied that—
(a)there has been a change in circumstances since the family violence intervention order was made; and
(b)the change may justify a variation or revocation of the order.

Family Law Act 1975 (Cth)

Part VII Division 11 of the Family Law Act 1975 (Cth) deals with inconsistencies between Family Violence Intervention Orders and orders under the Family Law Act: s 68N. Section 68R grants powers to state courts to revive, vary, discharge or suspend Family Law Act orders. Section 68T provides that if an interim order is granted suspending Family Law Act orders under 68R, the suspension ceases to have effect at the time the interim order stops being in force or 21 days from when the order was made, whichever is earlier.

Background to the proceeding

MN and OP were in a relationship that ended in 2006. They have two children who were aged 9 and 11 at the time the interim order was granted. At times the children have lived with MN and at other times with OP. At times MN and OP have shared custody, but following Family Court orders, OP is currently the primary carer of the children.

Existing Family Court orders

The Family Court made orders on 22 May 2015 in proceedings between MN and OP (‘the Family Court order’). They contained a ‘parenting order’ that:

The father have sole parental responsibility for the long term care, welfare and development of the children…

The making of the interim intervention order on 26 October 2016

OP attended at the Magistrates’ Court and completed a form entitled ‘application and summons for an intervention order’ under the Act. He said that he completed the application and that a court official then reworded it to make it easier for the Magistrate to read. OP then signed it.[7] Under the heading contained on the document: ‘State briefly why an Intervention Order is needed. Give a brief outline of each incident including the date and place where it happened’ – the following appears:

The Respondent to this application is my ex partner. We have been separated for 9 years. We have two children together, […] (10) and […] (8). I am applying on behalf of the children. I have custody of the children and they see their mother every second weekend as per the family law orders. The Resp has been attending the girls school when she isn’t meant to and harassing the girls and telling them to run away to the grandparent’s house. The Resp is barred from entering the school grounds so will stand at the gate and try to speak to the girls. When the girls don’t want to speak to the Resp she asks their school friends to speak to them to get them to talk to her. She also gets the girls grandmother to attend the school and pass on messages to them. The Resp tells the girls to steal personal documents from me and give them to the grandmother who waits at school. The Resp also tells the girls I stole them, that their grandmothers heart attack was caused by me, tells the girls to tell teachers and police that I have sexually abused them. The Resp has also reported to […] police station that I was keeping the girls at my house by threatening them with knives. The Respondents behaviour has been ongoing since our eldest daughter was 7 months old and has escalated in the past few months. Our eldest daughter is now scared to go to school as she is worried her mother or grandmother might be there. The girls are good students who enjoy school and I am worried the respondents behaviour will impact their education. I am worried the Resp may kidnap the girls when they have contact next as she keeps telling them to run away and I don’t know if that means just from school or if they are going to run away together.[8]

[7]Transcript of Proceedings, MN v OP (Supreme Court of Victoria, S CI 2017 00038, Ginnane J, 4, 6-7 September 2017) 175 (‘T’).

[8]The original text was typed in all-capitalised letters.

In response to questions on the application form: Have you applied for or received a Court order under the Family Law Act or ‘Family Violence Protection Act’ the answer ’Yes’ was typed with respect to the Family Law Act 1975 (Cth) and the answer ‘No’ was typed with respect to the Family Violence Protection Act 2008.

Later that day, the Magistrate heard OP’s application. OP told her Honour that the information contained in his application was true and correct. The Magistrate questioned him briefly. Her Honour asked him for the dates of the Family Court order and he replied ‘Not old at all. April in 2015.’ He told the Magistrate that MN’s contact with the children was every second weekend and alternative Wednesdays, but that she had ‘chosen not to take on that Wednesday time’. The Magistrate asked him if the Family Court orders contained any provision about MN being able to go the children’s school and whether he had the orders with him. He replied that he did not as he had been to Court before and told that he did not need to bring them. He said that the orders permitted MN to attend school ‘for functions, stuff like that’ but that one of his daughters had told him that ‘the mother is barred from school’. The Magistrate queried that answer by asking:

Her Honour: So a lot of this – and your daughters are telling you this, is that right. Because a lot of this is what the daughters must be telling you?
OP:Yeah, okay. So, it came to my attention about [MN] being barred from the school from [daughter’s name]. So, then I had an issue with the girls, I needed to notify the principal what I’d been told, that [daughter’s name] was being told to run away.[9]
[9]Transcript of Proceedings, OP v MN (Magistrates’ Court of Victoria, G12943380, Ms J O’Donnell M, 26 October 2016) 1-2 (‘T, 26 October 2016’).

OP stated that his daughter had given him that information ‘two weeks ago’ and that:

OP:It was confirmed to me by the principal that, in fact, MN was barred from the school.
…
So, I believe that was due to an incident where…

Her Honour: And with no disrespect, Mr OP, but is Ms MN unable to have the children herself because there were mental health issues here or… ?
OP:No, no, she’s given contact rights under her own…

Her Honour:   Yes, but you’re the primary carer of the girls?
OP:                Yes, that’s right, yep.
Her Honour:   And I’m asking you is there a reason for that? Did she not want to be the primary carer or?

OP: No, no, they were removed from her, um---
Her Honour: And why was that?
OP:Okay. So, there’s been numerous allegations of sexual abuse by me.

Her Honour:   I’ve read that.
OP:                Yeah. And ---
Her Honour:   And clearly, the Family Court have made orders in your favour?
OP:Of course, yes. So, look, I’ve been investigated – it’s a serious matter, what she accused me of. But failing that---

Her Honour:   Was it a hearing, sir, or an agreement in the end?
OP:                No, hearing, it was a trial.
Her Honour:   It was a trial?
OP:                Trial.
Her Honour:   And after a trial, you were awarded…?
OP:                Yes.
Her Honour:   … primary carer. All right. I am going to make orders today, now, these are always quite tricky matters?

OP: I know.[10]

[10]T, 26 October 2016, 2-3.

The Magistrate then explained that unless there was a risk of immediate harm, she would allow the family law orders to continue, but make a family violence prevention order. If OP wanted to apply to vary the family law orders, he could. The following exchange occurred in respect of the Family Court order:

Her Honour:   Because I can suspend those orders for 21 days, but you have to be at the Family Court tomorrow making application?
OP:Yeah and…
Her Honour:   It doesn’t seem to be a case of immediate (indistinct)?
OP:With the kid’s schooling, at the moment, I haven’t got the support of my parents, they’re overseas at the moment.
Her Honour:   So, you want to allow these orders to continue but prevent her from committing family violence?
OP:Yes.

Her Honour: All right?
OP:I just – at the moment, I just want them to be able to go to school, without the fear of…

Her Honour: No, no, I accept that.
OP: Yep.[11]

[11]T, 26 October 2016, 3.

Then the following exchange occurred:

Her Honour: And you believe that’s fine and the girls aren’t at risk from her in that respect? That’s she’s still seeing them every second weekend?

OP: Okay, so as of last---
Her Honour: Just (indistinct)?
OP:No. I didn’t allow the girls to go to their mother’s last week – their last visit.

Her Honour: Yes?
OP:Now, I’m at the present time, there is an investigation by child protection going on which I’m talking with and, at this stage…

Her Honour:   Well, that’s why I’m asking you, so…?
OP:                So, I…
Her Honour:   This order will allow those family law orders to just simply continue, or I suspend them for 21 days based on the fact you think there’s a harm, a risk…
OP:Yeah, I’m worried that the information that’s in these – in my application can only come from my daughters.

Her Honour: Yes. I see?---
OP:And the behaviour that’s gunna – or what’s gunna happen when the girls go back into their care. So…
Her Honour: Let me ask you this. Do you think that the girls are at risk in the care of their mother at the moment?...

OP: Yeah, I do
Her Honour: All right. Well?
OP:So, there is, like – yeah, there’s a reason I didn’t allow them to go to the mother’s last time.
Her Honour: So, I am going to make an order under s 68R stating that, at the time of making this interim order, the court has ordered under s 68R of the Family Law Act that the parenting orders are suspended?

OP: Okay.[12]

[12]T, 26 October 2016, 5.

After asking OP for the date of the Family Court orders, and being given the incorrect year – 2014, the Magistrate stated:

Her Honour: So, the orders made by the Family Court – on the parenting order made on 22 May 2014 is suspended. This order will end when the interim order ends or 21 days from the date when the interim order was made, whichever is the earlier. So, effectively, it means that I’m suspending the orders for 21 days…

OP:                Yes.
Her Honour:   And you need to take immediate action in the Family Court.
OP:                Okay. Thank you.[13]

[13]T, 26 October 2016, 5.

After further discussion about OP applying to the Family Court to vary its orders, the Magistrate stated:

Her Honour: Well, you need to get some legal assistance given the allegations you’re making today and the fact I’m suspending your orders. As I say, you’ve got a 21 day window, but I would strongly suggest that legal aid contact the independent children’s lawyer, because this is about your daughters and it’s not really about you?

OP:                No, no, it’s…
Her Honour:   So, someone should be doing an independent investigation…
OP:                Okay.[14]

[14]T, 26 October 2016, 6.

The Magistrate was evidently persuaded that the evidence justified making an interim intervention order. The order named the two children as affected family members and, among various conditions, prevented MN from committing family violence and communicating with, approaching or contacting her children. The order provided that the Family Court orders be suspended for 21 days or until varied by the Family Court.

MN was served with the interim order in the evening of 9 November 2016.

Evidence before this Court

Both parties made affidavits in this proceeding and were cross-examined. MN was represented by counsel and OP was unrepresented. Although it not usual to receive extensive additional evidence in a judicial review proceeding, in this case as MN sought to rely on conduct amounting to an abuse of process and the failure to disclose material facts, I considered that it was or might be relevant.

Under cross-examination, OP agreed that some of the information in his application was incorrect as an intervention order had previously been made against him and he had previously applied for an intervention order.[15] He said that his statement that MN was barred from their daughters’ school was based on information that his daughter had given him and his understanding of his conversation with the school principal.[16]
[15]T 177.
[16]T 184-5.

MN’s submissions concerning the hearing on 26 October 2016

MN submitted that it was unclear under what section of the Act the interim intervention order had been made and that the Magistrate could not have been satisfied on the balance of probabilities that it was necessary to make the order to ensure the safety of the affected family members. OP had relied on mere assertions to obtain an interim order which had suspended the Family Court orders. Those orders had been made after a five day trial at which expert psychological evidence had been tendered. Because the Family Court orders had been suspended, MN could not see her children or pick them up from school. OP had unilaterally decided to withhold them from her.

MN submitted that a number of the allegations in OP’s application for the interim intervention order were inaccurate. For instance, he did not disclose that he was subject to Department of Human Services supervision, nor his previous intervention order applications or the orders made against him. He gave the incorrect date of the Family Court order and because the interim order referred to the Family Court order by that incorrect date, it may not have operated to suspend it for 21 days as the Magistrate had intended. He falsely stated that MN was banned from the children’s school.

MN gave evidence stating that she had never been banned from attending the children’s school. She exhibited a letter from the Acting Education Area Executive Director dated 26 October 2016 which stated that:

I am advised by [the principal], and have read in her email to you on 30 August 2016, that you are not banned from the school in its entirety. The email clearly states that ‘you are no longer permitted to enter your daughter’s classrooms or speak to their teachers’. The email also outlines a communication process that will enable you to discuss any concerns or issues you have relating to the girl’s education. There is no ban on you being on the school premises to drop off or collect your daughters and you are not prevented from attending school functions or events.

MN submitted that OP had failed to provide to the Magistrate, as he was obliged to, all material available or reasonably obtainable of relevance to the children’s best interests. He should have provided the Magistrate with the Family Court judgment and all the material upon which the Family Court orders were based. He was obliged to provide the Magistrate with the previous family violence orders and applications. By reason of s 68R(3)(b) of the Family Law Act 1975, the Magistrates’ Court could only suspend a parenting order made under that Act if it had before it material that was not before the court that made that order.

MN referred to matters that she alleged that OP had not disclosed at the hearing on 26 October 2016 including that her parents regularly attended the children’s primary school to collect them. She pointed out that despite his assurance to the Magistrates’ Court, OP did not apply to the Family Court to revoke or vary the parenting order, nor had he made the children available for her to collect as the Family Court orders required.

MN submitted that often interim intervention orders were sought for tactical reasons that amounted to an abuse of process. And further, that before an interim order could be made where a child was the affected person, the Court must find on the balance of probabilities, that the child had been subjected to family violence by the respondent to the interim order.

The disclosure requirements that applied to an application for an ex parte interim injunction applied to the making of interim intervention orders. Procedural fairness requirements were also imported. MN referred to authorities including Owners of the SS Kalibia v Wilson[17] which established that when a judicial order has been obtained ex parte, the party affected by it may apply for its discharge.
[17](1910) 11 CLR 689 at 694 (Griffith CJ).

OP’s submissions concerning the hearing on 26 October 2016

OP referred to the Family Court judgment of 22 May 2015 and to its description of MN’s behaviour. He described his application for the interim intervention order as a last resort and as something that he had never wanted to make. In his affidavit filed in this proceeding, he stated that when he applied for the interim intervention order he believed that family violence was being committed against his children. He said that they would return from their court ordered time with their mother distressed, confused and upset. He reiterated that he had made the application because he was scared for their safety.[18]
[18]T 210.

OP told the Court when he applied for the interim intervention order that he had withheld the children from their mother because of safety concerns. The Family Court orders of 2015 gave him sole parental responsibility for them. He had made some mistakes about dates of orders,[19] but had believed that he was providing accurate information and had not acted in bad faith. He now realised that MN had not been banned from school, but from the classroom. But his belief had been based on information his daughter provided him and his discussions with the principal, who had said that steps had been taken to protect staff.
[19]T 211.

He had not made an application to the Family Court to amend the parenting order despite his statements to the Magistrates’ Court on 26 October. But he did not want to go through another court case, as he was out of his depth.

MN’s grounds for seeking judicial review of the orders of 26 October 2016

MN relied on five grounds in order to challenge the interim family violence protection order made on 26 October 2016.

Jurisdictional Error (Grounds 2.1.3-2.1.10)

In Grounds 2.1.3 – 2.1.6 and 2.1.9, MN contended that the valid exercise of the power to make the ex parte interim intervention order or to suspend or vary the Family Court order depended on the Magistrate having before her the material facts that MN would have advanced in opposition to the application if she had been present.

I do not accept that submission. The Magistrate had no obligation ‘of her own motion [to] have placed before her all material facts and relevant matters’ (Ground 2.1.9). The Magistrates’ Court deals with many thousands of interim family violence applications each year and MN’s contention, if accepted, would impose an impossible burden on it. However, the Magistrate was obliged to enquire whether Family Court orders or child protection orders were in force and she did that.[20]
[20]Family Violence Protection Act 2008, s 89(b).

For similar reasons Ground 2.1.7 which challenged the Magistrate’s suspension of the Family Court Order of 22 May 2015 made under s 90 of the Act was not established. It contended that that order could not be made unless OP acted with utmost good faith and supplied in the place of MN all facts material to the exercise of such a power and all relevant materials or the court of its own motion made its own enquiries and had placed before it all such facts and materials. The Act permits interim orders to be made ex parte and therefore on incomplete material because of the purpose it seeks to achieve.[21] The plaintiff’s contention would frustrate the purposes of the Act.
[21]Family Violence Protection Act 2008, s 65.

Ground 2.1.8 alleges that OP did not act with good faith and did not provide all the material facts and relevant materials to the Magistrate.

I do not consider that MN proved that allegation. OP at times gave evidence that did not necessarily assist his case. OP maintained that he applied for the intervention order because of his concern about the children’s safety. He told the Magistrate of the Family Court orders as well as his recent withholding of the children from their mother. He wrongly stated that there were no previous orders, but he readily told the Magistrate of the Family Court order, although he misstated the year in which it was made. He explained that he applied for the interim order because he feared for his children’s safety. He said that he had been investigated following sexual abuse allegations made by MN. He denied that he had been given parenting rights because MN had mental health issues. He said that she had been banned from the school, but that was inaccurate, but I do not consider that he intentionally exaggerated the restriction imposed on MN. I see no evidence to suggest that that was not an innocent mistake. But, even if it was, it would not have invalidated the ex parte order made. That order remained in force until varied, revoked, withdrawn or replaced by a final order whether following a contested hearing or by consent.

Ground 2.1.10 alleges that the Magistrate erred in law by failing to discharge her obligations under s 90(2) of the Act. Section 90 requires that when the court is satisfied that there is a Family Law Act order in force in relation to the child and the family violence intervention order and the Family Law Act order will be inconsistent, the court must to the extent of its powers under s 68R of the Family Law Act, revive, vary, discharge or suspend the Family Law Act order to the extent that it is inconsistent with the family violence intervention order.

There is no substance in ground 2.1.10 as her Honour sought to suspend the Family Court order, although because of the incorrect date OP gave her, her order may not have achieved that purpose.

Breaches of procedural fairness (Grounds 2.1.11-2.1.15)

These grounds allege that the Magistrate breached the requirements of procedural fairness by taking into account irrelevant considerations. These grounds appear to join two distinct grounds of judicial review – procedural fairness and irrelevant considerations. The grounds include that the Magistrate did not accord MN procedural fairness by not requiring OP to place before her all material facts that MN would have advanced in her defence to the application had she been present.

The irrelevant considerations listed in Ground 2.1.11 were six assertions that MN alleged played a part in the making of the interim order and which were untrue. They were that MN was barred from the children’s school, that she was unable to have the children herself because of mental health issues, that OP was the primary carer of the children, whether the Family Court order provided for the children to be removed from the mother because of the sexual abuse allegations against OP, whether OP had become primary carer of the children as a consequence of agreement or trial and the opinion of OP that the children were at risk in the care of their mother for an undisclosed reason.

These grounds came close to questioning the weight that the Magistrate gave to issues she raised when OP gave evidence. The Magistrate raised those issues in circumstances where was unrepresented and Her Honour needed to ensure that he had given all the evidence relevant to his application for an interim order. To take one example from the matters raised by these grounds, the question about MN’s mental health, OP appears to have truthfully answered the question and did not saying anything adverse about MN on that issue. There is no evidence that the Magistrate took into account anything adverse to MN in respect of that issue. Rather, it seems clear that the Magistrate made the interim intervention order because she considered that there was some evidence that the children were at risk in the care of their mother. The Magistrate was not obliged to take into account all the relevant materials which were before the Family Court when it made the 2015 orders. She could not possibly have fulfilled that obligation when determining an ex parte interim intervention order application made by an unrepresented applicant. The Magistrate enquired about existing Family Court orders, but not family violence intervention orders.

It is important to note the procedures established by the Act, especially in respect of interim intervention orders, depart from usual rules of civil procedure. In a case where a respondent to a police ‘safety notice’ interim order application argued that the he had been denied procedural fairness by the Magistrate, Harper J acknowledged that the Act that abrogated at times procedural fairness in order to achieve its stated purposes and concluded:

It is not for the court to prescribe, as conditions necessary if procedural fairness is to be accorded, conditions which are inconsistent with those prescribed by parliament. It seems to me that, were I to accede to the plaintiff’s application for certiorari, I would fall into that trap.[22]

[22]Zion-Shalom v Magistrates’ Court of Victoria (No 2) [2009] VSC 477 [15].

I also note that even if the Magistrate had, contrary to my conclusion, taken into account irrelevant considerations it does not necessarily follow that there has been a denial of procedural unfairness.[23]
[23]See as to relevant and irrelevant considerations Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

A further ground 2.1.12 related to the Magistrate not taking into account the relevant consideration being that OP had recorded on the application form that he had not previously being involved with family violence intervention order proceedings when in fact he had.

Ground 2.1.14 is a related ground which alleges that the Magistrate erred at law in failing to take into account a relevant consideration, namely the actual terms of the applications for Intervention Order made by MN and the Intervention Orders made by the Magistrates’ Court in 2013.

The previous applications and orders concerning OP were as follows. In January 2013, MN obtained an interim intervention order against OP and the Court suspended the parenting orders of 30 April 2008 for 21 days so MN could apply to have them varied. On 12 March 2013, the Federal Magistrates’ Court suspended OP’s time with the children. On 4 July 2013, the Magistrates’ Court of Victoria made a final intervention order against OP for two years naming the children as the affected persons. On 22 May 2015, the Family Court of Australia made the final orders that are referred to elsewhere in this judgment, which gave OP parenting rights. OP told the Magistrate of the Family Court orders, but not the other orders.

OP applied for an interim intervention order against MN on 27 October 2015 against MN naming the children as the affected persons. That application was withdrawn by order of a Magistrate on the day that it was filed.

I do not consider that MN has established grounds 2.1.12 or 2.1.14. The Magistrate did not make a jurisdictional error or a material error of law by failing to have regard to the previous intervention order made against OP or his previous application for an intervention order. It was open to the Magistrate in determining the degree of risk of family violence to the children to have regard to the Family Court order made after trial as it was the operative order when OP applied ex parte for an interim intervention order on 26 October.

Ground 2.1.13 was that the Magistrate erred at law in failing to take into account relevant considerations, namely, the actual terms of the Family Law Act orders and all other relevant materials which were before the Family Court of Australia at the time of making the Family Law orders and the relevant considerations referred to in s 68R of the Family Law Act.

Ground 2.1.15 alleges that the Magistrate erred in law in failing to afford MN procedural fairness by not requiring OP at the ex parte hearing to act with the utmost good faith and to place before the Magistrate all material facts that MN would have brought forward in response to the application had she been present.

Ground 2.1.15 has no substance. It alleges that the Magistrate erred at law in failing to afford the plaintiff procedural fairness by requiring at the ex parte hearing that OP act with the utmost good faith and place before her all material facts that MN would have brought forward in her defence in response to the application had she been present. While a court when determining an ex parte application should consider whether the applicant has informed it of all relevant matters that the respondent would have raised, it cannot ensure that that has occurred. This is particularly the case with interim intervention orders, where the parties’ perception of the materiality of facts may be quite different.

Material misstatement to the Court (Ground 2.1.16)

This ground alleges that the Magistrate erred in law in appearing to act on material misstatements from OP concerning MN being barred from the children’s school and that he had not received orders made under the Family Law Act and under the Family Violence Protection Act and as to the date of the Family Court orders.

This ground has no merit as the Court had to act on evidence before it which it finds persuasive. The interim intervention order is not invalidated because it later appears that the material provided to the Court that made the order contained misstatements.

Error of law on the face of the record (Ground 2.1.17)

This ground argued was that the wrong date was given of the Family Court order and that the Court purported to suspend the wrong parenting order because based on OP’s statement it gave the date of the Family Court order as 22 May 2014 rather than the correct date of 22 May 2015.

This ground is one of many that lacked any substance. This is no error of law, but rather an error of fact that might have been corrected under the slip rule. In order to obtain judicial review remedies, the errors of law must be material to the Court’s decision to make the order.[24] The Magistrate performed the function required by s 89 by enquiring whether there was a Family Court order in existence.
[24]Wilson v County Court of Victoria (2006) 14 VR 461 at 471[43] (Cavanough J) citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 (Mason CJ).

Unreasonableness (Grounds 2.1.18-2.1.19)

These grounds contended that the statutory power or discretion to grant an interim intervention order must be exercised reasonably and that it was unreasonable for the Magistrate to make the ex parte interim intervention order in all the circumstances, including particularly that the order would have drastic consequences on MN’s rights of access to her children and was made on limited and incomplete evidence.

In Minister for Immigration and Citizenship v Li,[25] three members of the High Court stated that the legal standard of unreasonableness is not limited to a decision so unreasonable that no reasonable person could have arrived at it. It also applies when the statutory power, on its true construction, has been abused. Unreasonableness is a conclusion that may be applied to decision which lacks an evident and intelligible justification.[26]
[25](2013) 249 CLR 332 and Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223.
[26]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 364 [67], 367 [76].

I consider that Grounds 2.1.18 and 2.1.19 lack any substance. The Magistrate formed the view that the children might be at risk and therefore made the interim intervention order. The Magistrate did not act unreasonably in reaching that conclusion or in making the interim order.

The 22 November 2016 hearing

On 22 November 2016, the application was mentioned before His Honour Magistrate Connellan. MN was legally represented and OP appeared in person. The purpose of the mention was to ascertain if the application was proceeding, and if so, to give directions for the final hearing. By then, the 21 day suspension of the Family Court parenting order contained in the 26 October order had expired.

MN applied to the Court for the revocation or variation of the interim intervention order on three grounds. First, that it had involved an abuse of the Court’s processes. Secondly, in the exercise of the Court’s implied powers to set aside orders obtained ex parte if the applicant failed to make full disclosure. Thirdly, pursuant to an application for leave to apply to revoke the interim intervention order under s 109 of the Act. The Magistrate rejected the first two applications and refused leave on the third.

The Magistrate stated that his power to vary or revoke the interim order was contained in s 109 of the Act, and could only be exercised once leave had been granted.[27] There had been no application for leave to revoke or vary the interim order.
[27]Transcript of Proceedings, OP v MN (Magistrates’ Court of Victoria, G12943380, Mr G Connellan M, 22 November 2016), 16.14-16.24; 23.12-23.29; 26.18 (‘T, 22 November 2016’)

The Magistrate obviously had a busy list and the case was listed for a mention only. He told counsel for MN to make an application under s 109 and that if he wanted to return at 3:00 pm he would stand the matter down until then. OP asked the Magistrate to explain to him in lay terms ‘What’s just been going on?’.[28] The Magistrate stated, ‘I’m going to ask you to go and speak to lawyers outside. I’m not wasting anymore time trying to deal with this in the middle of a busy list. Mr Sutton [counsel for MN] can speak to the lawyers that you speak to outside. Thank you.’[29]
[28]T, 22 November 2016, 19.8.
[29]T, 22 November 2016, 19.9-12.

The matter was again mentioned at 3.10 pm. Counsel for MN again submitted that the Magistrate had power to deal with a proceeding as an abuse of process pursuant to the Court’s implicit or inherent powers. The Magistrate queried whether such powers could overcome the provisions of the Act.

The discussion between the Magistrate, MN’s counsel and OP was wide ranging and did not follow a particular structure. That is understandable as his Honour was hearing a mention of the proceeding. But, it did mean that some issues were discussed more than once. As a consequence, in the following summary I will only mention once the significant issues that were discussed.

The Magistrate rejected the submission that because of the form of the order and its reference to the wrong date of the Family Court order, that the interim intervention order was not a valid order. The Magistrate stated that if the wrong date of the Family Court orders had been recorded in the order of 26 October, then that part of the order was probably null and void. The Magistrate pointed out to OP that the Family Court order suspended by the interim order was incorrectly dated and had the wrong year. OP said that was his mistake made because he did not have the Family Court order at the hearing on 26 October. The Magistrate said that it appeared that the interim order in that respect was not an effective order, but in any event had now expired. But the Magistrate pointed out that the order stated ’Note, Victoria Police do not enforce the contravention of a Family Law Act order’.[30]
[30]T, 22 November 2016, 22.16.

The Magistrate accepted that the Court when making an ex parte injunctive order was required to consider the interests and rights of the party who was not present. He said that he would presume that the Magistrate who made the interim order had taken account of the respondent’s interests and had been provided with information which justified her order.[31] The Magistrate stated that the court could separate ‘the wheat from the chaff’[32] and was aware that family violence protection applications were sometimes made ‘to get an upper hand in the Family Court’.[33] But the Magistrate stated that he could not assume that the application had been an abuse of process in the absence of evidence.
[31]T, 22 November 2016, 25.2-8.
[32]T, 22 November 2016, 28.3.
[33]T, 22 November 2016, 28.12.

Counsel for MN informed the Magistrate that he had filed her application for revocation or variation of the interim order and that he had the disc of the recording of the hearing of 26 October and a copy of the Family Court orders. He wanted to call evidence from MN.

The Magistrate described the test in s 109(2)(a) of the Act as whether there had been a change in circumstances since the interim order was made which justified a revocation or variation of the order. The Court had to be satisfied of the existence of those statutory criteria in order to give leave for an application to vary or revoke the interim order. The Magistrate stated that unlike the usual case, OP who had applied for the original interim order was present and was entitled to participate in the hearing, although he would probably not allow him to question MN if she gave evidence. Rather, he would hear the evidence and then ask OP what he wanted to say about it. He foreshadowed that, as the time had reached 3.50 pm, if he granted MN leave to apply to revoke or vary the order, he would not hear the application that day, but probably adjourn it because OP had the right to be heard and might want legal representation. OP said that he would at least want some time to prepare.

The Magistrate asked OP if he was prepared to consent to a variation of the interim intervention order to insert an exception enabling MN do anything permitted by the Family Court order. OP stated that although he understood that the Family Court order allowed MN to attend the school, but that the school had not allowed her to do so. But he alleged that MN constantly attended the school and stood behind the fence and if her children were unwilling to speak to her, she would ask their friends to request them to go the fence where she would ask them to do things that they did not want to do.

The Magistrate said that that he understood that OP was not consenting to the variation of the interim order. However, OP could address his concerns about the Family Court order by applying to the Family Court.

MN’s gave evidence to the following effect. That she had received the disc containing the audio of the hearing of 26 October at about 2.10 pm that day, but she had not had a chance to listen to it. The disc and the Family Court order were tendered as evidence. She confirmed that OP had not brought any Family Law application since 22 May 2015. She said that her parents, who lived 500 metres away from the school, always collected the children. She said that prior to the making of the interim intervention order she was not aware of any problems that either child had in having contact with her. She had been attended the school to speak to their teacher. The children were concerned that because their father had ceased his contact with them previously, that he might do so again. She said, ‘Well if they were worried he was going to come and get them on a Friday after school they could run home to their grandmother’s house.’ She denied that she had been barred from entering the school grounds. She explained how she learned of the ex parte interim order and said that she was contesting the basis on which it had been made. OP had not complied with the Family Court orders.

In the weeks prior to 26 October 2016, OP himself was subject to a supervision order made by the Department of Human Services which required him to be supervised by his mother in his contact with the children.[34]
[34]T 192.

MN denied a number of OP’s allegations about her care for the children. She agreed that she was subject to restrictions on visiting the classroom.[35] She swore that OP had never raised any concerns with her about her care of the children. In further evidence. She said that her weekend access to the children had ceased on 24 September 2016 and she had not seen the children for two months. She said that she had incurred significant legal costs in connection with the interim intervention order obtained by OP. The Court should take into account that OP had unilaterally withheld the children from her and that the interim intervention order had had a substantial effect on her, including suspending the parenting order. OP had not complied with the Family Court orders.
[35]T 152.

OP denied that he had sought the interim order to protect his own position, and said that he had done so to protect his children. He was asked about a report that the police attended his home in October 2015 following a report that was made by the children that he had the girls ‘holed up with knives’.[36] He said that he would not let the police in and told them to contact child protection who were investigating the children at that time. OP was asked by MN’s counsel about complaints made by the children against him and investigations by the Department about care of the children.[37]
[36]T 201.
[37]T 192.

Submissions on 22 November 2016

The Magistrate stated that it appeared that MN was attempting to have a hearing of contested issues of fact before the final hearing. He asked what circumstances had changed since the making of the interim order and the requirements of s 109(2) of the Act. Counsel replied that MN had been denied access to the children and the recording of the 26 October hearing was available. He suggested that the Magistrate listen to it and said that it established that a condition of the interim order was that OP immediately take action in the Family Court in respect of parenting rights. The Magistrate disagreed and said that the order contained no such condition. MN’s counsel then submitted that the interim order, in effect, contained three additional requirements. These were that OP contact the children’s lawyers, that he seek family law advice and that someone should be investigating the matter further. The Magistrate described the submission as ‘making a nothing of a point of nothing’.[38] He said that the only relevant point was that OP had not made an application the Family Court.
[38]T, 22 November 2016, 63.9.

The Magistrate then asked OP whether he wanted to raise any matters. OP referred to his email communications with MN and whether MN thought he posed any risk to the children. He wanted to know why MN had not made a complaint if she was concerned about not being granted access to the children. OP submitted that MN’s explanation of giving up access to the children on Wednesdays was directly contradicted by her solicitor’s letter informing him of her intentions.

The Magistrate reiterated that the Family Court order overrode the State order about MN’s power to attend the school. Therefore, while MN was prevented from committing family violence she could do did anything consistent with the Family Court orders.

Decision to refuse leave to apply to revoke or amend interim order made 22 November 2016

The Magistrate then gave his decision concluding that he was not satisfied that MN had established the requirements of s 109 of the Act. He refused the application for leave under s 109 and adjourned the application to 20 December. He said that the only change in circumstances since 26 October was that OP had not made an application to the Family Court. MN was entitled to do whatever the Family Court order authorised. He described the dispute between them as ‘a fight’ that belonged in the Family Court jurisdiction and that the Magistrate on 26 October had no option but to make the interim intervention order when the requirements for making it were established, but that did not mean that a final order would be made. His Honour stated:

Everything I have heard so far, tells me this is a dispute between the parents about the children. About the contact and the nature of the relationship between the parents and the children, much more than it is about family violence. But (the first Magistrate) was satisfied that the requirements for an order were made out and she made an order; and I am not here as a person sitting in on an appeal of her decisions, I have no such right. The only powers I have are those given to me under the Family Violence Protection Act and I have exercised those. I am satisfied that I should not grant leave.[39]

[39]T, 22 November 2016, 69.14.

MN’s counsel then asked his Honour to rule on her abuse of process argument and his Honour stated:

That in my view, whatever implied powers, and I would need to be convinced and persuaded as to the exact reach, extent, dimension of those implied powers, to protect the court’s processes, and how they are implied. But whatever they are, they have been overtaken in this particular circumstance by the Family Violence Protection Act because it has made a very specific provision to enable leave to be sought, for the court to turn its mind to particular things.[40]

[40]T, 22 November 2016, 70.9.

By that point, the Court’s normal adjournment time must have well passed. But counsel asked the Magistrate to look at the decision in Thomas A Edison Ltd vBullock[41] and handed him a copy of it. Bullock’s Case establishes that it is the duty of a party asking for an interlocutory injunction ex parte to bring before the Court all facts material to the determination of his right to that injunction and an omission to bring any material facts before the Court is a ground for dissolving an injunction so obtained. Isaacs J stated:

Dalglish v Jarvie, a case of high authority, establishes that it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fail.[42]

[41]Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 (‘Bullock’s Case’).

[42]Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, 681-2.

The Magistrate said, ‘You can come back on another day. I am finishing for today.’[43] Counsel then asked the Magistrate to listen to the disc of the hearing on 26 October. The Magistrate said that a copy could be made of it, but that the exhibit should remain in the court file. When counsel then asked if he might prepare further submissions on the abuse of process issue, the Magistrate stated:

I have declined to entertain your application on the basis of an abuse of process and have considered an application under the Family Violence Protection Act, under ss 108 and 109…
If I am in error, then you should take me to a superior court, who have a greater degree of wisdom than I have, and they can sort me out.[44]

[43]T, 22 November 2016, 70.

[44]T, 22 November 2016, 71.

The Magistrate then adjourned the case for further mention to 20 December 2016.

MN’s judicial review grounds concerning the order of 22 November 2016

MN’s grounds for judicial review that concern the hearing on 22 November 2016 were as follows.

Jurisdictional error (Grounds 2.2.3-2.2.5)

These grounds were that the Magistrate misdirected himself at law in deciding that he had no power to entertain MN’s first two applications which relied on abuse of process and non-disclosure arguments and in his characterisation of the test under s 109(2)(b). He also misdirected himself in law in deciding that the Family Court orders overrode the interim intervention order when the two orders were inconsistent.

Abuse of process

MN submitted that OP’s application for the interim intervention order had been an abuse of process and that as such the Magistrates’ Court had an implied power to set it aside. The order could not have been validly made in the absence of full disclosure by OP and without OP exercising the utmost of good faith. The Court had implicit or inherent power to set aside an order made as a result of an application which was an abuse of process. The Magistrate rejected that application stating:

I have no power to go behind Ms O’Donnell’s decision, made ex parte of course because it’s the way the legislation works, unless the requirements of the legislation was satisfied in terms of applications to vary or revoke. I just don’t have power.[45]

[45]T, 22 November 2016, 16.

The Magistrate stated that the Court was exercising statutory jurisdiction and there was no power implied in the Family Violence Protection Act or the Magistrates’ Court Act [46] to enable it to set aside the order as an abuse of process. A party seek to revoke or vary an interim intervention order had to apply for leave under s 109. Normally, if leave was granted the application to vary or revoke would be adjourned to enable the application and supporting documents to be served on the respondent, being the party who had obtained the interim order. He expressed a similar view in respect of the application to set aside the interim order on the ground of non-disclosure.[47]
[46]T, 22 November 2016, 20.
[47]T, 22 November 2016, 37.

Conclusion on abuse of process ground

In my opinion, the Magistrates’ Court has power to dismiss or stay any proceeding as an abuse of process. Courts, including those created by statute, possess inherent power to restrain proceedings which are an abuse of process. In Jago v The District Court (NSW),[48] the High Court decided that the New South Wales District Court, a court created by statute, had inherent power to stay proceedings that were an abuse of process. Mason CJ stated:

It is convenient to commence by considering the inherent power of courts to prevent abuses of their process. It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process: Clyne v N.S.W. Bar Association; Barton v The Queen. Subject to statutory provision to the contrary, a court also possesses the power to control and supervise proceedings brought in its jurisdiction, and that power includes power to take appropriate action to prevent injustice: see Hamilton v Oades. But it may be that ‘injustice’ in this context has a limited meaning, although the power is not to be confined to closed categories: Jackson v Sterling Industries Ltd; Hamilton v Oades. In particular, the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context. However, for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is in the nature of the proceedings, not their formal classification, that is important: Jack Brabham Pty Ltd v Minister for Industry, Technology and Commerce.[49]

[48](1989) 168 CLR 23.

[49](1989) 168 CLR 23, 25-6.

Redlich J in Neill v The County Court of Victoria[50] discussed in detail the Court’s implied powers to dismiss proceedings which were an abuse of the Court’s process. The Magistrates’ Court has powers to dismiss both civil and criminal proceedings, which were an abuse of process. With respect, the Magistrate was incorrect in deciding that the Court lacked that power.
[50][2003] VSC 328.

However, that conclusion does not mean that the Magistrate was obliged to hear any abuse of process application made by MN at the mention hearing conducted on 22 November 2016 or that any basis for an abuse of process finding was presented to him.

The Magistrate was conducting a mention in a proceeding where there were contests of facts and issues of risks to the children. OP was self-represented and was entitled to a reasonable opportunity to respond to any application made by MN. It would have been well open to the Magistrate to decide that it was appropriate to postpone the determination of any abuse of process application until the final hearing as it involved contested questions of fact. Such findings would be more appropriately dealt with at the final hearing.

The Magistrates’ Court hears thousands of interim intervention order applications every year, many of which commence as ex parte applications. They often result in disputes about the motives of the applicant or the parties. The Act requires Magistrates who hear such applications to consider the risk of family violence to the affected family members. Such applications are often heard in busy Courts and Magistrates have limited time to consider them. When an interim order is granted ex parte an aggrieved respondent may apply for its variation or revocation under s 109 or seek an early final hearing. If the court makes an interim order, it is obliged to list the hearing for final orders as soon as practicable.[51] In many instances, it may frustrate the purpose of the Act if the Court attempts to determine contested claims and motives in an abuse of process application before the final hearing. That is not to say that courts should not guard against interim intervention orders being used as tactical weapons in family law dispute.[52]
[51]Family Violence Protection Act 2008, s 59.
[52]State of Victoria, Royal Commission into Family Violence: Report and Recommendations (2016), Vol III: Court-based responses to family violence in Victoria’, 175.

Magistrates, like other judicial officers, have an ample discretion as to how a case should be managed, including determining the stage of the proceeding when it is appropriate to hear particular applications. The overarching goals of the Civil Procedure Act2010 provide guidance as to appropriate case management. In my opinion, the Magistrate in this case, in conducting a mention hearing and having heard from both parties, was entitled to decide that any application to vary or revoke the interim order should follow the procedures contained in s 109 of the Act. Applications based on the exceptional abuse of process power could be deferred to the final hearing.

In addition, I do not consider that any error the Magistrate made in stating that he lacked power to consider an abuse of process application would justify the grant of judicial review remedies. Those remedies are discretionary and it is critical to keep in mind that the Magistrate was conducting a mention of the application. He clearly lacked court time to hear any further application that day and OP was entitled to procedural fairness. As a matter of practicality and as a matter of the basic legal requirement of fairness, the abuse of process application or the non-disclosure application could not have been heard on 22 November.

In any event, the grounds advanced did not establish a basis for an abuse of process application. True it is that OP had not applied to the Family Court to vary its orders and OP had made admitted errors in dates and the extent of the restrictions placed on MN’s attendance at the children’s school. But these matters did not necessarily establish matters establishing that the application was an abuse of process.[53]
[53]See as to the elements of abuse of process: Batistatos v Road and Traffic Authority of New South Wales (2006) 226 CLR 256, 265 [9].

Failure to disclose material facts

MN submitted that OP had failed to comply with his obligation to disclose material fats when he applied ex parte on 26 October 2016 for an interim intervention order. She argued that he bore the same obligations as an applicant seeking ex parte an interim or interlocutory injunction and that he was obliged to act with the utmost good faith. OP was obliged to provide the Magistrate with all material reasonably available of relevance to the children’s best interests, including the Family Court order and the materials that had been placed before the Family Court. OP should also have disclosed his previous applications for family violence orders and the orders to which he had been previously subject.[54]
[54]In addition to Bullock’s case, MN referred to authorities that included Brink’s Mat Ltd v Elcombe [1988] 3 All ER 188 and Victorian Teachers Credit Union Ltd v KPMG (2000) 1 VR 654.

OP denied that he had been under an obligation to represent MN’s interests when he applied ex parte for the interim intervention order. He said that he made the application because of his concerns for his children’s safety while they were in her unsupervised care.[55]
[55]T 227-8.

Conclusion on failure to disclose material facts ground

I assume for present purposes that there may be a case where an interim intervention order is set aside because of material non-disclosure. However, it is important to keep in mind that Parliament has provided a means for revoking or varying interim orders by enacting s 109 of the Act. Cases where reliance is placed on non-disclosure arguments independently of s 109 will be the exception. I do not consider that the Magistrate erred in failing to consider such an application on 22 November 2016. Again I consider that the mention hearing on 22 November was not the occasion for determination of a non-disclosure application.

The Magistrate was entitled to determine how the non-disclosure application was to be dealt with as a matter of case management. The extent of the dispute about any alleged non-disclosure would be significant to such a decision. Family violence intervention order applications will often be particularly unsuitable for a court to conduct a preliminary hearing before the final hearing to determine whether there has been material non-disclosure.

In any event, non-disclosure does not per se invalidate an interim order whether made ex parte or on notice. Should the facts not disclosed be not material, the court has a discretion whether to set the order aside.[56] Sometimes in heated family disputes, the facts relevant to the making of an intervention order will only be established at a final hearing and their materiality may only be apparent at that time. The determination of allegations of non-disclosure may often require detailed evidence and consideration of the basis on which the application was made. Where concerns are raised about the safety of the affected children, the court, in most instances, may well decide it is appropriate case management to postpone consideration of non-disclosure allegations until the final hearing.
[56]Savcor Pty Ltd v Catholic Protection International Pty Ltd (2005) 12 VR 639 [25]-[33].

Returning to the specifics of this case, I am not satisfied that the Magistrate was obliged to find that any of MN’s allegations constituted material non-disclosure by OP. It was open to the Magistrate to conclude that OP held a genuine concern for his children’s safety when they were in MN’s care.

Misstatement of law regarding s 109(2)(b)(Ground 2.2.4)

Ground 2.2.4 relating to the hearing on 22 November was that the Magistrate had misstated the test in s 109(2)(b) for revoking or varying the interim order. But in my opinion, the Magistrate did not mischaracterise the test and this ground is not established. In his decision, his Honour stated:

I am not satisfied that the requirements of s 109 of the Act have been made out. I am not satisfied that there has been a change in circumstances since the family violence intervention order was made…[57]

His Honour then proceeded to consider the changes that MN alleged had occurred.

Misstatement of law regarding Family Law Act orders (Ground 2.2.5)

[57]T, 22 November 2016, 68.

Ground 2.2.5 alleges that the Magistrate may have misdirected himself at law in deciding that the Family Law Act orders overrode the terms of the interim intervention order where the two orders were inconsistent.

The Magistrate did state that MN could see the children consistently with the Family Court order so long as she does not commit any family violence. I do not consider that he misstated the effect of the two orders. Nor do I consider that the Magistrate’s characterisation of the effect of the orders had any bearing on his decision not to consider an application to set aside the order on the ground of material non-disclosure.

Breaches of procedural fairness (Ground 2.2.6)

This ground alleged that the Magistrate erred in law in failing to take into account relevant considerations, namely, failing to listen to the recording of the proceedings on 26 October 2016 which was tendered in MN’s application and failing to read the Family Law Act order before deciding whether to revoke or vary the interim order.

The proceeding was listed before the Magistrate for a mention and he was not obliged to listen to the recording of the earlier hearing. It up to him to decide. He was not obliged to read the Family Court order, but only to enquire as to its contents. It is not clear that the Magistrate did not read the order.

Unreasonableness (Grounds 2.2.7-2.2.8)

This ground asserted that the statutory power and or discretion conferred on the Magistrate under the Act had to be exercised reasonably and it was unreasonable for the Magistrate to refuse MN’s first and second applications.

As I have previously concluded, the Magistrate was not obliged to hear the applications on 22 November 2016. He was entitled in the exercise of his case management authority to refuse to consider the application at that time. He had to consider OP’s entitlement to procedural fairness. His decision was not unreasonable within the legal meaning of that term.

The hearing on 20 December 2016

The proceeding was again listed for mention before Magistrate Connellan on 20 December 2016 when MN and OP were both legally represented. Counsel for MN stated that his client wished to proceed with a further application to revoke the interim intervention order.

The Magistrate mentioned a separate intervention order application involving OP’s mother which he had heard the previous day and which he considered was related to MN’s matter.

The discussion at this second mention involved considerable repetition of matters raised at the hearing on 22 November. Again the Magistrate stated that the Act contained mechanisms for revoking or varying an intervention order. He noted that the final hearing of the intervention order application was already set down for a contested hearing. His Honour then stood the proceeding down so that the parties could discuss details of directions necessary for the final hearing. When it was mentioned again later that day, necessary directions and the likely length of the final hearing were discussed. The matter was fixed for hearing on 6 April 2017 and OP was to provide a summary of his allegations against MN by 31 January 2017.

The Magistrate then returned to MN’s application to revoke or vary the interim order and her entitlement to access to the children. The Magistrate sought to summarise OP’s case as being that MN, directly or by involving her parents, was trying to kidnap the children and have them make allegations against him. The Magistrate said that he understood that the Family Court orders did not prevent MN from attending the school. He also said that the Court had twice made it abundantly clear to OP that he needed to apply to the Federal Circuit Court or the Family Court if he had issues with the Family Court orders as they prevailed to the extent of any inconsistency with the interim intervention order. He asked why he should not vary the interim intervention order because OP had not sought a variation of the Family Court order to prevent MN enjoying her parental rights. He stated that the Magistrates’ Court would not be used to get around the Family Law Act.

OP’s counsel submitted that compelling reasons existed to continue the interim intervention order. These included that the children were ‘extremely upset’ after attempts had been made to take them out of school. OP had had to deal with the Department of Human Services and the police. He had a ‘genuine concern’ about their safety, but he did not ‘have money for solicitors’ to make any application. OP’s counsel argued that the Magistrate had to be satisfied that the revocation of the order was in the children’s interest and that it would create a risk of them being harmed.

The Magistrate noted that he had not heard all the evidence as that would occur at the final hearing in April 2017. However, he said that it was difficult not to gain the impression that OP and his family were using the interim intervention order process to circumvent the Family Court orders. He said:

We’re talking about grandmother on the father’s side getting to the school two hours early to get the children out of there. The mother and the grandparents on the mother’s side get into the school two hours early to try and prevent the children being removed so that they have access. Nobody’s showing much glory here.[58]

[58]Transcript of Proceedings, OP v MN (Magistrates’ Court of Victoria, G12943380, Mr G Connellan M, 20 December 2016) 141-2 (‘T, 20 December 2016’).

But, his Honour said that MN’s application for the revocation or variation of the order would change nothing and that MN’s problem was not with the interim intervention order, but OP’s failure to comply with the Family Court orders. He stated:

And all that’s happening in this jurisdiction is the antipathy, the hatred, the anger, the unmerciful harm being done to these children is escalating.[59]

and:

It’s not going to change the essential issue that’s at stake here which is compliance with Family Law Act orders.[60]

[59]T, 20 December 2016, 143.

[60]T, 20 December 2016, 144.

The Magistrate accepted that one change in circumstances which might come within s 109 was OP’s failure to apply to the Family Court within the 21 days allowed to suspend the orders. He told OP that the suspension of the Family Court order made on 26 October 2016 did not justify him in failing to comply with it in other respects.

However, ultimately, his Honour stated that he was not satisfied that s 109(2)(b) applied. It required that the Court be satisfied that the change in circumstances might justify the variation or revocation of the interim order. He was not satisfied that granting leave to MN to apply to revoke or vary the interim intervention order would change the matters about which MN complained. The Magistrate refused MN leave under s 109 to apply to revoke or vary the interim order.

MN’s grounds for judicial review in respect of the Magistrates’ order of 20 December 2016 were as follows.

Jurisdictional error (Grounds 2.3.3-2.3.4)

Ground 2.3.3 MN alleged that the Magistrate misdirected himself at law in his characterisation of the test under s 109(2)(b) of the Act.

I am not satisfied that the Magistrate did incorrectly describe the test contained in s 109(2)(b). The Magistrate correctly referred to its requirements describing it as ‘there have been a change in circumstances since the family violence intervention order was made’[61]. He considered that the first requirement was satisfied. But he did not consider that the second requirement was satisfied. That was that the court was satisfied that the change may justify a variation or revocation of the order. The Magistrate stated the tests correctly.
[61]T, 20 December 2016, 148.

Ground 2.3.4 alleged that the Magistrate may have misdirected himself at law in deciding that the Family Law Act orders overrode the terms of the interim intervention order where the two orders were inconsistent and that revoking or varying the interim intervention order would change nothing.

MN has not established that the Magistrate made such an error. The Magistrate did consider that the variation or revocation of the interim intervention order would not make a difference in the parties’ compliance with the Family Court orders. He was entitled to consider that matter when deciding whether to grant MN leave under s 109. It is clear enough that after the 21 day suspension of the Family Court orders ended, MN was entitled to do anything permitted by the Family Court orders. The Family Law Act and the Family Violence Protection Act are intended to operate compatibly to ensure the best interests of children and protecting people from family violence.[62] The Magistrate did not state that apparent basis for the grant of the interim order on 26 October, namely the concern for the safety of the children, no longer existed or had altered. It was open to the Magistrate to consider that that concern remained the primary issue in deciding whether to grant MN leave under s 109.
[62]AA v BB (2013) 296 ALR 353 [99]-[106] (Bell J).

I do not consider that the Magistrate was obliged to hear the abuse of process application on the 20 December 2016, he was entitled to defer consideration of that issue until the final hearing. It was a matter for his discretion in case management. I have explained why that was the case when considering the orders of 22 November 2016.

The hearing on 27 February 2017

On 27 February 2017, OP attended at the Magistrates’ Court and applied to withdraw his intervention application. His application was in writing having been typed by or before a clerk of the court. MN was not notified of the application. The application was made under r 4.08 of the Magistrates’ Court (Family Violence Protection) Rules 2008 which states:

4.08 Withdrawal of applications
(1)An application under the Act may be withdrawn only with the leave of the Court.

(2) A party seeking to withdraw an application must –
(a)file a written notice of withdrawal, to be served on the respondent by the registrar; or
(b)if the person attends court, make an oral application to the Court.

When the matter was mentioned before Magistrate MacCallum, OP informed her that he wished to withdraw his application. He told her that MN had commenced this Supreme Court proceeding and that he had no money to enable him to participate in it. He had been informed that there was a high chance that he would lose the Supreme Court proceedings as he was self-represented and that as a result he would have to pay MN’s legal costs. In addition, he anticipated that he would have to pay legal costs associated with forthcoming family law proceedings.

He explained to the Magistrate why he had applied for the interim intervention order and mentioned the Family Court orders and that the children had not seen their mother since about early September 2016. He mentioned the involvement of child protection authorities and said that he had told them that he was withdrawing his interim protection orders, but that they expected that he would continue to stop MN’s contact with the children until decisions were made by the Family Court. He said that his family law application would be to vary the present orders to ensure that contact with the children would be supervised.

The Magistrate described his statement as a detailed explanation and ordered that his application be withdrawn. Her Honour said that the Court was available if he was concerned about the safety of the children for the purposes of seeking protection from family violence. She added that it appeared that the family law proceedings and the Department supervision were providing coverage for his ‘protective concerns’.

Grounds of judicial review application concerning the order of 27 February 2017 (Grounds 2.4.3-2.4.4)

MN’s ground seeking judicial review of the orders made on 27 February 2017 is that the Magistrate did not power to order that the Application was withdrawn in the circumstances (Ground 2.4.3). Secondly, MN alleged that the Magistrate breached the requirements of procedural fairness and erred at law in failing to follow the procedures set down in the Magistrates Court (Family Violence Protection) Rules 2008 and in failing to ensure that MN heard the application and was heard on the application (Ground 2.4.4).

OP said that he withdrew the application because he was at risk of costs in connection with OP’s Supreme Court proceedings. He said that he did not think to notify MN and that she had been unresponsive to his communications previously. He said that went in to the Court, spoke to the clerk, said I want to withdraw my application and ‘that was that’.

MN said that she learnt the day after OP’s application that he had made an oral application to withdraw the interim intervention order. She submitted that the withdrawal rules were subject to her entitlement to procedural fairness. Her counsel said that during the Supreme Court hearing when the issue was raised, she had contacted the Magistrate’s Court and been informed that it would not list an application for her costs of the interim order application to be paid by OP because the application had been withdrawn and the proceeding finalised.[63]
[63]T 307.

MN seeks a declaration that she was entitled to make an application for her costs of the proceeding.

Conclusions on Grounds 2.4.3 and 2.4.4 regarding 27 February 2017 hearing

These grounds depend on the interpretation of regulation 4.08. Regulation 4.08(2)(b) enables a person attending court, as OP did, to make an oral application to the court to withdraw the application. Unlike regulation 4.08(2)(a), it does not require any notice of the withdrawal to be given to be given to the respondent. The explanation for that may lie in the public interest in disputes arising from allegations concerning family violence to be ended speedily when applicants do not wish to pursue family violence orders.

Accordingly, the Magistrate did not err in allowing OP to withdraw the application and MN was not denied procedural fairness by the Magistrate so acting.

Grounds 2.4.3 and 2.4.4 are not established.

MN’s rights with respect to applying for costs in the Magistrates’ Court

MN sought a declaration that she was entitled to apply to the Magistrates’ Court for her costs of OP’s intervention order application to be paid by OP.

MN has not sought her costs of the Magistrates’ Court proceedings. Her counsel said that the Court had told her that because the proceeding had been withdrawn, the proceeding was finalised and she could not apply for costs.[64]
[64]T 307.

The question of costs of intervention orders is dealt with by s 154 of the Act which states:

154 Costs
(1) Each party to a proceeding for a family violence intervention order under this Act must bear the party's own costs of the proceeding.
(2) In a litigation restraint order proceeding—
(a) if a person is made subject to an extended litigation restraint order or an acting in concert order, that person must bear the costs of the proceeding, other than the Attorney-General's costs if the Attorney-General is a party to the proceeding; and
(b) if a person is not made subject to an extended litigation restraint order or an acting in concert order, each party must bear the party's own costs.

(3) Despite subsections (1) and (2)—
(a) the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case; or
(b) if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.

(4) For the purposes of subsection (3), the mere fact that an application is made and then withdrawn is not exceptional and does not amount in itself to a vexatious or frivolous application or an application made in bad faith.
(5) If the court decides there are grounds to award costs against a person but the person is not present in court, the court may—
(a) adjourn the proceeding; and
(b) give the parties to the proceeding notice that an order for costs will be made on the next mention date unless the party against whom the costs will be awarded contests the making of the order on the mention date.

Under s 154, the general rule subject to exceptions is that each party bears their own costs of the proceeding. Secondly, the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise. Thirdly, if the court is satisfied that the making of any application under the Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant. Fourthly, the mere fact that an application is made and then withdrawn is not exceptional and does not amount in itself to a vexatious or frivolous application or an application made in bad faith.

It is important to state that, because I am hearing a judicial review proceeding, I can only make orders associated with those orders that are the subject of the judicial review application. I have no power to remove MN’s right to apply under s 154 for costs. There is no need for me to make a declaration to make a declaration about those rights. Her right to apply for costs is not lost because OP withdrew his application for an intervention orders.

However, I am concerned that any such application does not extend into a trial of what would have been the substantive hearing if OP had not withdrawn his application. I do not consider that the Magistrate is obliged to hear the entire issues that would have been raised by that application, but would need to be persuaded by MN that there are exceptional circumstances or that the making of the application was vexatious, frivolous or in bad faith. OP must be given notice of any such application.

MN’s argument was that the application was an abuse of process and lacked good faith. Because of those grounds I allowed extensive evidence to be led in connection with them, but have found that MN did not prove them. There were no separate grounds suggesting that the allegation was otherwise vexatious or frivolous. However, it for MN to attempt to persuade a Magistrate that an order for costs should be made. The Magistrate does not have to hear extensive evidence on that issue, but he or she is entitled, if they so decide, to place weight on the primary principle of the Act that each party should bear their own costs.

Conclusion

The proceeding be dismissed.

[2017] VSC 733

4 December 2017