MN v OP

Case [2017] VSC 733 4 December 2017

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading MN v OP

Details

AGLC: MN v OP [2017] VSC 733
Case: [2017] VSC 733
Decision Date: 4 December 2017

CaseChat Overview and Summary

The case of MN v OP involved an application to revoke an interim family violence intervention order. The matter was heard in the Magistrates Court of Victoria. The applicant, MN, sought to revoke or vary an interim family violence intervention order that had been made ex parte against them. The respondent, OP, did not receive notice of the application to revoke the order.

The legal issues before the court included whether the application to revoke the interim order constituted an abuse of process, the applicable grounds for revocation or variation of the order, and whether the respondent was entitled to seek costs from the applicant. The court also considered whether the applicant's failure to provide notice to the respondent of the application to revoke the order impacted the proceedings.

In deciding the matter, the court found that the applicant's failure to disclose material facts in their application did not constitute an abuse of process. The court also held that the applicant had not demonstrated any of the grounds necessary for revocation or variation of the order. The court further found that the respondent was entitled to seek costs from the applicant due to the applicant's failure to provide notice of the application to revoke the order to the respondent. The court ordered the applicant to pay the respondent's costs of the proceedings.

Orders