OP v XY - [2020] VSC 754

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02026

Between:
OP	Plaintiff
-and-
XY	First Defendant
-and-
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	7 November & 16 December 2019
FURTHER WRITTEN SUBMISSIONS:	20 February, 13 March, 26 October & 4 November 2020
DATE OF JUDGMENT:	16 November 2020
CASE MAY BE CITED AS:	OP v XY
MEDIUM NEUTRAL CITATION:	[2020] VSC 754

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JUDICIAL REVIEW — Family violence intervention order (“FVIO”) of two years’ duration made by Magistrates’ Court against OP for protection of XY — On de novo appeal to County Court, judge refused OP leave to abandon appeal part way through defence case — After OP then consented to FVIO without admissions, judge extended duration of order to 18 years — XY’s child, unborn at time of family violence, added to FVIO — Whether whole proceeding afflicted with actual or apprehended bias by reason of judge’s rulings and findings — Whether decision to refuse leave to abandon appeal afflicted with same bias or apprehended bias, Wednesbury unreasonableness, illogicality, procedural unfairness, failure properly to apply Briginshaw test, failure to consider relevant matters or inadequate reasons — Whether decision to impose 18-year FVIO afflicted with same errors — Whether fresh evidence of judge’s authorising release of transcript of appeal, after orders made, to OP’s business rival, and without advising of publication restrictions, demonstrates actual or apprehended bias — Whether child, in utero at time of family violence to mother XY, is “a child who … has been subjected to family violence” — Whether inclusion of child in FVIO supported on another basis, including OP’s consent or lack of opposition at hearing — Whether fresh evidence going to major witness’s credit to be admitted on judicial review — Application refused — Still open to OP to seek leave to revoke or vary FVIO based on fresh evidence and lack of contact with XY — Family Violence Protection Act 2008 (Vic), ss 4, 5, 42-45, 74, 77, 78, 97, 100, 114, 115, 119, 120, 121, 150, 166 & 170; Magistrates’ Court (Family Violence Protection) Rules 2008 (Vic), rr 1.01, 1.02, 1.07, 4.08, 15.03 & 15.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person	N.A.
For the First Defendant	Ms A Wong	Victoria Legal Aid
For the Second Defendant	Submitting appearance	N.A.

HIS HONOUR:

Overview

This case tells a story of family violence, some of it quite serious, some of it less so, but all of it disputed. It is also a parable of how the risks inherent in litigation sometimes can materialise in startling ways.

If this were an appeal by way of a rehearing on the existing evidence, I would allow it. But it is not. It is an application for judicial review of decisions made on an appeal[1] to the County Court[2] in a family violence matter. The ultimate result is yet another reminder of just…

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 OP v XY

Details

AGLC: OP v XY [2020] VSC 754
Case: [2020] VSC 754
Decision Date: 16 November 2020

CaseChat Overview and Summary

OP appealed to the County Court against a family violence intervention order (FVIO) made by the Magistrates' Court against OP for the protection of XY. OP argued that the whole proceeding was afflicted with actual or apprehended bias due to the judge's rulings and findings. The County Court judge had refused OP leave to abandon the appeal part way through the defence case and, after OP consented to the FVIO without admissions, extended the duration of the order to 18 years. XY's child, unborn at the time of the family violence, was also added to the FVIO. OP further argued that the decision to refuse leave to abandon the appeal was Wednesbury unreasonable, illogical, procedurally unfair, and that the judge had failed to properly apply the Briginshaw test, failed to consider relevant matters or provide adequate reasons. OP also claimed that the decision to impose an 18-year FVIO was afflicted with similar errors. Additionally, OP submitted that fresh evidence of the judge authorising the release of the transcript of the appeal to OP's business rival, without advising of publication restrictions, demonstrated actual or apprehended bias. OP contested the inclusion of the child in the FVIO, arguing that the child was not "a child who... has been subjected to family violence" as the child was in utero at the time of the family violence to XY. OP also argued that the inclusion of the child in the FVIO was not supported on another basis, including OP's consent or lack of opposition at the hearing. OP sought to admit fresh evidence going to the credit of a major witness on judicial review.

The County Court dismissed OP's application for judicial review. The judge held that the refusal to allow OP to abandon the appeal was not afflicted with any of the alleged errors, and that the decision to impose an 18-year FVIO was not Wednesbury unreasonable. The judge also held that the fresh evidence of the judge authorising the release of the transcript did not demonstrate actual or apprehended bias. Regarding the inclusion of the child in the FVIO, the judge held that the child was indeed "a child who... has been subjected to family violence" and that the inclusion was supported on another basis, including OP's consent or lack of opposition at the hearing. The judge further held that the fresh evidence going to the credit of a major witness was not admissible on judicial review. OP was still open to seek leave to revoke or vary the FVIO based on the fresh evidence and lack of contact with XY.

Orders