JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2022
DATE OF JUDGMENT:	7 October 2022
CASE MAY BE CITED AS:	MNX (a pseudonym) v TNV (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VSC 592

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FAMILY VIOLENCE PROTECTION – Judicial review – Interim family violence intervention order – Application by police officer to withdraw from intervention proceeding– Application to revoke or vary interim order – Legal unreasonableness – Procedural fairness – Whether failure to afford procedural fairness was material – Proposed hearing of revocation and variation applications at the same time as application for final orders – Rights of appeal – Fragmentation of proceedings in the Magistrates’ Court – Family Violence Protection Act 2008 (Vic), preamble, ss 1, 2, 4, 53, 57(1)(d), 59, 60, 65(1), 74(1), 96, 100, 102, 108, 109, 114, 115, 119 170(1) – Magistrates’ Court Act 1989 (Vic) ss 1, 109, 128(1) – Magistrates’ Court (Family Violence Protection) Rules 2018 (Vic) r 4.08.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Holdenson KC with Mr C Wareham	Galbally & O’Bryan
For the First Defendant	Ms S Fitzgerald	Victorian Government Solicitor
For the Second Defendant	Ms G Costello KC with Ms E Poole	Women’s Legal Service Victoria

HIS HONOUR:

Introduction

The plaintiff, MNX (a pseudonym), seeks judicial review of a decision of the Magistrates’ Court of Victoria refusing to grant TNV (a pseudonym), a police officer, leave to withdraw an application for a family violence intervention order against MNX (‘intervention proceeding’), and at the same time granting MNX leave to apply for revocation or variation of an interim family violence intervention order (‘interim order’). The interim order was made on 1 September 2020 on the application of TNV. The affected family members and protected persons were MNX’s former wife, SDW (a pseudonym), and their infant son.[1]
[1]The publication of the names or the identities of parties or witnesses to family violence protection proceedings, or of children the subject of protection orders is prohibited. See s 166(2) of the Family Violence Protection Act 2008 (Vic).

A family violence incident was admitted by MNX. The prosecution and defence agreed statement of facts for a diversion application in the Magistrates’ Court stated that there had been an incident involving MNX and SDW on 29 August 2020 where MNX placed his hands on SDW’s neck for two to three seconds causing her pain. SDW scratched MNX’s neck causing a laceration across his throat.

After the incident, MNX and SDW parted. They have gone their separate ways since and have not attempted to reconcile.

Background

The intervention application was made by way of a police family violence safety notice and accompanying affidavit in support. The notice stated that MNX and SDW had been in a relationship for ten years and married…

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 MNX (a pseudonym) v TNV (a pseudonym)

Details

AGLC: MNX (a pseudonym) v TNV (a pseudonym) [2022] VSC 592
Case: [2022] VSC 592
Decision Date: 7 October 2022

CaseChat Overview and Summary

MNX, a pseudonym, applied for judicial review of a decision of a magistrate not to afford procedural fairness in proceedings to revoke or vary an interim family violence intervention order. TNV, also a pseudonym, was the respondent in the intervention order proceedings. MNX applied for the revocation or variation of an interim family violence intervention order, and the police officer who applied for the interim order applied to withdraw. The magistrate did not give MNX procedural fairness in determining whether to afford the police officer leave to withdraw, and did not give MNX procedural fairness in determining whether to revoke or vary the interim order. MNX sought to have the magistrate’s decision quashed and for the matter to be remitted to the magistrate for redetermination. The court considered whether the magistrate’s failure to afford procedural fairness was legally unreasonable, whether the magistrate should have heard the application to revoke or vary the interim order at the same time as the application for final orders, and whether the magistrate should have afforded MNX rights of appeal.

The court found that the magistrate’s failure to afford MNX procedural fairness was legally unreasonable. The court found that the magistrate should not have heard the application to revoke or vary the interim order at the same time as the application for final orders. The court found that the magistrate should have afforded MNX rights of appeal. The court found that the magistrate’s failure to afford procedural fairness was not material. The court found that the proposed hearing of the revocation and variation applications at the same time as the application for final orders was not materially prejudicial to MNX. The court found that the magistrate’s failure to afford MNX rights of appeal did not result in the fragmentation of proceedings in the Magistrates’ Court.

The court quashed the magistrate’s decision and remitted the matter to the magistrate for redetermination. The court found that the magistrate should have afforded MNX procedural fairness in determining whether to afford the police officer leave to withdraw, and in determining whether to revoke or vary the interim order. The court found that the magistrate should not have heard the application to revoke or vary the interim order at the same time as the application for final orders. The court found that the magistrate should have afforded MNX rights of appeal.

Orders