OP v XY

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 how constrained this Court is upon judicial review, despite errors made within jurisdiction or other doubtful decisions in the court below.
[1]While the nature of the appeal to the County Court is described, in s 119 of the Family Violence Protection Act 2008 (Vic), as being “by way of a rehearing”, it is in fact a de novo rehearing (YY v XY & Anor [2013] VSC 743 at [45] (per Cavanough J)), albeit the magistrate’s orders below need not be set aside.
[2]The County Court, as the second defendant, has made a submitting appearance in the usual way.

In the County Court, XY[3] claimed that her husband OP had committed numerous instances of family violence during their relationship. This ranged from physical violence and unwanted sex to psychological manipulation and humiliation. While OP denied these claims, and made his own against XY, he ultimately consented (without admissions) to a family violence intervention order (“FVIO”). On the factual findings made by the judge, OP’s behaviour was shameful and destructive. Equally striking, however, was the length of the FVIO fixed by her Honour, for it was increased from a two-year term to one of 18 years’ duration. Not surprisingly, that decision is a major reason why OP seeks judicial review. There are others too.
[3]The names of the parties and witnesses to this proceeding, and to the earlier proceedings in the Magistrates’ Court and the County Court, have been anonymised, pursuant to s 166(2) of the Family Violence Protection Act 2008 (Vic) (see YY v XY & Anor [2013] VSC 743 at [5]-[14] (per Cavanough J)). In order properly to give reasons for my decision, however, it is necessary to refer to some personal particulars of the parties, their children and witnesses (including style of dress, recreational interests and philosophical or religious beliefs) and of their relatives (including occupation). It is also practically impossible to avoid identifying the venue of this Court, but not of the courts below. Accordingly, to the extent required, pursuant to s 169, I allow publication of all information contained in this judgment because I consider it to be in the public interest and just to do so.

The matter commenced in the Magistrates’ Court in July 2015. In applications brought respectively by police officers, OP and XY each sought an FVIO against the other. In 2016, after hearing evidence over four sitting days and reserving her decisions, the magistrate (who is of vast experience and expertise in this area of the law) granted both applications by making mutual final FVIOs. Each order was of two years’ duration, expiring on 13 July 2018.

Dissatisfied, OP appealed to the County Court,[4] whereas XY let it be. History tells, however, that OP also might have left well enough alone, because, as we have seen, he ended up converting a respectable draw into a spectacular loss. That result unfolded in this way.
[4]Pursuant to s 114 of the Family Violence Protection Act 2008 (Vic).

Through no fault of either party, but for reasons I shall explain later, the hearing of the appeal was not commenced until February 2018. On the second day of the hearing, after XY had completed her evidence, and in the midst of cross-examination of OP, which was nearing its completion, XY handed her counsel a statement from OP’s first wife EF. The document detailed a catalogue of family violence OP had allegedly perpetrated on EF during their relationship. Incredibly, the statement had been in XY’s possession since August 2015 — well before the Magistrates’ Court hearing — but she saw fit to reveal it only at this extraordinarily late stage. Despite an objection by counsel for OP, the matter was adjourned for a week so that counsel could consider the statement and take instructions (but confined only to the issues raised by the statement, since OP was under cross-examination) with a view to interposing EF’s evidence.

Upon the return, over OP’s further objection, the judge allowed XY to split her case by calling EF to give viva voce evidence, which she did. Prior to that, XY was also recalled briefly. OP’s case then resumed, first by interposing a witness GH, who had come down from Queensland especially. Counsel then recalled OP. Curiously, OP’s evidence recommenced by way of cross-examination instead of examination-in-chief in response to EF’s evidence (and XY’s further evidence). The matter was then adjourned for another month, with OP’s cross-examination still incomplete.

Whether the next turn of events resulted from a perception that EF’s evidence tipped the balance against OP or from his stated concern that he was not getting a fair hearing, I cannot say. Either way, in the interim, OP was moved to give notice of an application to abandon his appeal instead of resuming his own case. The judge, however, refused that application. Among her Honour’s reasons for doing so was that XY had signalled from the outset of the appeal that, if successful, she would seek a longer FVIO. Another was said to be “the great waste of time and resources” in allowing abandonment of the appeal, for otherwise XY would have to go back to the Magistrates’ Court to seek to extend the FVIO.

Soon afterwards, OP’s counsel advised the judge that his client would consent to an FVIO (without admissions), which would leave only its duration to be determined. XY’s counsel then swooped, and submitted — exceedingly ambitiously, I thought, and in a rather inflammatory manner — that the order should be of indefinite duration, or at least should last until XY’s child turned 18, which was about 16 years away. In what appeared to be an afterthought, it was also submitted that the child, who was in utero towards the very end of the couple’s relationship and with whom OP had never had any contact, should be added to the order. Reeling at this point, OP did not oppose the proposed addition of the child, although his counsel submitted that the judge may not have the power to do so. Counsel also challenged XY’s submissions concerning the duration of the order. His principal submission was that, as OP had had no contact with XY since the end of the relationship (nor any at all with the child, ever), a much shorter order would be appropriate.

As I have indicated, the judge increased the length of the FVIO by a staggering 16 years. Her Honour also added XY’s child to the order — on the extremely doubtful basis that she had been subjected to family violence in utero.

OP now applies to this Court for judicial review of the judge’s decisions and related orders.[5] He is unrepresented. While, at one point during the hearing, OP appeared to be complaining only about the length of the FVIO, as the case developed, I understood him to seek (albeit not in so many words) relief in the nature of certiorari quashing the whole of the FVIO. Alternatively, he attacks the judge’s decision to refuse to allow him to abandon his appeal. In the further alternative, he seeks orders quashing the decision as to the duration of the FVIO and, despite his lack of opposition below, as to its inclusion of the child. While his originating motion does not say so, the gist of OP’s argument suggests that, to the extent that may be necessary, he seeks orders in the nature of mandamus remitting the matter to the County Court to be dealt with according to law.
[5]Pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). While s 120(1) of the Family Violence Protection Act 2008 (Vic) provides that there is no appeal against the decision of the County Court under s 119, s 120(2) provides that nothing in that section prevents an appeal from the County Court on the basis of a jurisdictional error.

In substance, OP argued that he felt he had no choice but to consent to the order because of actual or apprehended bias displayed by the judge when making rulings. His complaints in respect of the judge’s refusal to allow him to abandon the appeal include not only bias and apprehended bias, but also failure to consider relevant matters, procedural unfairness, inadequate reasons, Wednesbury unreasonableness and illogicality. As to the duration of the FVIO, he relies on similar grounds, as well as a failure properly to apply the Briginshaw test. He also seeks to rely on fresh evidence, of two different types, to set aside the order or challenge its duration. There is fresh evidence that the judge caused the release of transcript of the appeal to OP’s business rival without any warning about restrictions on publication. This behaviour, OP submits, demonstrates actual or apprehended bias. Other items of fresh evidence, OP submits, show perjury (and therefore fraud) by EF in her evidence on the appeal. Finally, OP submits that, despite his lack of opposition in the court below, the judge exceeded her jurisdiction by including the child in the order.

Ms Wong, who appears for XY in this Court (but did not appear below), submits that OP’s grounds for relief should be rejected. In her submission, those grounds are misconceived, effectively invite merits review or are not established. While Ms Wong concedes that there may be error in the inclusion of the child in the FVIO, she submits that any such error is within jurisdiction. She also submits that the fresh evidence is not admissible or does not establish the fraud required to set aside any of the judge’s orders. Accordingly, in her submission, the application must fail.

While it will be of no consolation to OP, as indicated earlier, if the application in this Court were in the nature of a rehearing based on the goings-on and evidence given in the court below, I would have allowed the appeal in a heartbeat. This is because, in my opinion, the evidence of EF was produced at such a late stage — well into OP’s cross-examination, no less — that it was grossly unfair to allow XY to split her case and, later, to refuse him leave to abandon his appeal. The “warning” by XY’s counsel at the outset of the appeal (of the intention to seek a longer order) did not, in my view, justify the splitting of XY’s case with the surprise witness EF after OP had gone into evidence to answer that case, particularly in circumstances where XY had been in possession of EF’s statement as early as prior to the hearing in the Magistrates’ Court. If XY wanted a longer order, she could have brought her own fresh application in the Magistrates’ Court to extend the FVIO.[6] Moreover, simply allowing OP time to consider EF’s statement (and in a confined way) was insufficient when he had already committed himself to an approach to the case in cross-examination of XY and in his own evidence. Finally, while he did not make the application until he heard EF’s evidence (and some other additional evidence also had been given by that time, including more of his own), there was no hint that OP was attempting to abuse the court’s process by seeking to abandon his appeal at that point. Had that been his intention, or the effect of his application, I could understand readily why the application might be refused. But the judge made no such finding.
[6]See ss 100 and 106 of the Family Violence Protection Act 2008 (Vic).

Similarly, even if OP’s consent to the order (without admissions) had to be maintained, I would have held that an FVIO of a further 16 years’ duration was way too long. If allowed to do so, I would have been inclined to defer to the magistrate’s judgment and confirm her Honour’s order as to duration. OP’s evidence was that he wanted nothing to do with XY. Even if XY and EF’s accounts of family violence during their relationships with OP were accepted holus-bolus, there still seemed to be no compelling reason to decline to act on OP’s evidence, and other evidence, as to his behaviour and intentions thereafter. As will be seen, the only contact between OP and XY since their separation was via two emails generated automatically, and without his knowledge, by LinkedIn. The only reason for potential contact between them in the future would be through family law or child support proceedings. Those matters could be dealt with at arm’s length, via solicitors or intermediaries. EF conceded that there had been no contact by OP after their separation from 2015. Even allowing fully for XY’s concerns, I can see no need for anything even approaching half the length of the order imposed by the judge.

Finally, for similar reasons, I think there was no need to include the child in the order. OP had never even seen the child and did not want to see her. While his stance, in one sense, may be regarded as callous, or even irresponsible, it meant that it was unlikely that he presented any risk to her. Further, any potential contact incidental to family law or paternity proceedings could be avoided by implementing the measures already mentioned.

The difficulty for OP, however, is that this application is not an appeal of the kind in which I am entitled or required to substitute my views on the evidence below for those of the County Court judge. Instead, this Court’s jurisdiction on an application for judicial review is merely supervisory, not appellate, and is strictly confined in consequence. In exercising this jurisdiction, I am not to assess the merits of the decision, but must consider only whether the court below exceeded its jurisdiction and whether it observed the law in reaching the relevant decisions.[7] Perhaps counter-intuitively, as I have already intimated, even if the judge below erred, but did so within jurisdiction, still there would be no relief by way of judicial review.
[7]Austin v Dobbs [2019] VSCA 296 at [88] (per Whelan and Kyrou JJA).

In my opinion, while aspects of the judge’s decision are very close to being afflicted with Wednesbury unreasonableness, illogicality or irrationality, in the end, those high hurdles for relief are not cleared. Nor am I satisfied that OP’s claims of actual or apprehended bias are established, whether examined with or without the fresh evidence. Instead, I am persuaded by Ms Wong that the asserted errors (except perhaps one) are not established or are otherwise within jurisdiction. While it is, I think, plain that the judge exceeded her jurisdiction by including the child in the order by reliance on a power that was not available on the evidence, that order is supported by another power which turns upon OP’s lack of opposition, and the consent XY implicitly gave, at the hearing. Finally, although the fresh evidence may give rise to concern about EF’s credibility, I am not satisfied that it compels the setting aside of any aspect of the FVIO on the basis of fraud or the like.

Accordingly, I would dismiss the application for judicial review.

Before turning to my more detailed reasons for that decision, however, given that OP is unrepresented, I think I should mention that he nevertheless potentially does have an alternative remedy. He may apply for revocation or variation of the FVIO.[8] A variation, for example, could include a reduction in the duration of the order. While the fresh evidence that OP put before this Court has not been sufficient to cause his application for judicial review to succeed, it seems plain enough that at least some aspects of that evidence, together with a continued absence of contact with XY or her child (if indeed that is still the state of affairs), would provide more than a sufficient basis to grant leave to make such an application.[9]
[8]See ss 100, 108 and 109 of the Family Violence Protection Act 2008 (Vic).
[9]See ss 109(2)(a) and (b) of the Family Violence Protection Act 2008 (Vic).

One more thing. These reasons are very long. Perhaps inordinately so. But I make only a limited apology for that. Apart from my tendency to prolixity and the issues my questions provoked in the running, the length of this judgment is a function mostly of the fact that OP was unrepresented. Judicial review in cases like this can be difficult at the best of times, but the issues and the arguments raised almost invariably blow out considerably when one party is without counsel. In order to do OP’s many and varied points justice — however tenuous many of them they may be — plenty of ink had to be spilt. Ms Wong, I should say, sought to group and characterise OP’s arguments in very helpful ways. She also addressed them astutely, concisely and fairly. It is just a pity that OP was not represented in this Court as well. Had that occurred, I think it is likely that far more targeted submissions would have been made on his behalf and fewer issues would have required resolution without in any way compromising the effective presentation of his case or the justice of the case.

Background

I turn now to the detail of this application, commencing with a brief overview of the background to the two major relationships.

OP and EF met over the internet in 1999. Both were aged about 17 years. They were married in July 2000. Both converted to Islam from about 2002. Their relationship produced five daughters. Ultimately, in 2012, the marriage ended. The children remained in the care of OP, with EF having infrequent contact.

XY, a Pakistani also of the Muslim faith, did not want an arranged marriage. Instead, she went searching for a partner on a “marriage website”, where she met OP in about mid-2012. In 2013, when XY was aged 27 and OP was 31, the couple married in Pakistan. Early in the relationship, OP would travel between Australia and Pakistan to see XY, including, on one occasion, with his five children. At the beginning of 2014, XY came to Australia on a tourist visa. She returned to Pakistan in August that year and then came back to Australia in December on a spousal visa. Their relationship broke down, however, with XY leaving OP for good early in July 2015. A few weeks prior, XY had discovered that she was pregnant. Her daughter was born in late-February 2016.

Applications in the Magistrates’ Court

On 4 and 14 July 2015, two police officers each respectively filed with the Magistrates’ Court an application for an FVIO pursuant to Division 1 of Part 4 of the Family Violence Protection Act 2008 (Vic) (“the FVPA”).[10] The first was an application against XY for the protection of OP. The second was an application against OP for the protection of XY.
[10]See, in particular, ss 42-45 of the Family Violence Protection Act 2008 (Vic).

On 18 August 2015, an interim FVIO was made against OP for the protection of XY. The same day, an interim FVIO was made against XY for the protection of OP and his five daughters.

After a number of mentions commencing on 17 July 2015, both matters ultimately were set down for a joint contested hearing for final FVIOs commencing on 14 April 2016.

In the written application filed on her behalf, XY alleged that, over the course of the marriage, OP emotionally controlled her, isolated her (from others), and continually abused her — for example, by writing on a whiteboard numerous ways in which she was a bad wife and stepmother. She claimed that OP made her sleep on the floor, limited her food intake and gave her no money. XY said that she felt pressured to have sex and that she could not say no as OP would say that she was a bad wife. She said she made numerous attempts to leave the relationship, but that OP would contact her and manipulate her to return. XY alleged that OP physically assaulted her on several occasions. He also ejected her from the home numerous times, including without shoes. He abused her for being selfish and using money on herself instead of the children.

The written application filed on behalf of OP is not before the Court. However, XY’s response thereto is. In that response, XY said that, in his application, OP made falsified and exaggerated claims of being assaulted by her. He also claimed that he wanted her to leave and yet continued to contact her, begging her to return.

Prior to the contested hearing, both police officers withdrew their involvement. OP and XY thereafter each obtained legal representation for the hearing.

The contested hearing, at which both parties and several others gave evidence, was heard on 14 and 15 April, 17 May and 7 June 2016. The evidence given at that hearing is not before this Court, other than in fleeting references back to it in the transcript of the County Court appeal hearing.

After reserving her decision for over a month, on 14 July 2016, the magistrate made mutual final FVIOs against OP and XY for two years, expiring on 13 July 2018.[11]

Original appeal to the County Court

[11]Pursuant to ss 74 and 97 of the Family Violence Protection Act 2008 (Vic).

Notice of appeal filed

On 4 August 2016, OP filed a notice of appeal against the FVIO made against him.[12]
[12]Pursuant to Division 9 of Part 4 of the Family Violence Protection Act 2008 (Vic).

XY did not appeal the order made against her.

Appeal allowed and FVIO set aside — No appearance by XY

After mentions in the County Court on 9 and 20 September and 6 October 2016, at none of which XY appeared, the appeal was set down for hearing on 9 November 2016. On that date, it seems that OP’s appeal was allowed by a judge because of the failure by XY to appear and defend the matter. As a result, the FVIO against OP was set aside.[13]

Appeal reinstated

[13]Curiously, while the “Result of Appeal” records that “[t]he orders imposed at the Magistrates’ Court of Victoria on 13/07/2016 are set aside, and in their stead the following orders are made”, below that, an order is also recorded in these terms: “that this Appeal be STRUCK OUT for want of prosecution by the Respondent [XY]”; and the words “NO FURTHER ORDER” were set out a further line below. Surely the appeal was not struck out but instead was allowed for want of opposition or appearance by XY and the order of the Magistrates’ Court was therefore set aside.

Subsequently, when she went to report two alleged (albeit minor) breaches of the FVIO, XY discovered that the order had been set aside.

It seems that, while the Registrar of the relevant court served OP’s notice of appeal on the police officer who was the original applicant for XY’s order, the Registrar did not serve the notice on XY, as was required by s 116(3)(a) of the FVPA.

On 22 May 2017, XY’s solicitor emailed the judge’s chambers seeking a rehearing of the appeal. But a Registry officer advised that the application must be refused because, it was said, the County Court could not review its own decision.

Between 25 and 27 October 2017, XY’s solicitor filed an “application for rehearing” of the appeal, with a supporting affidavit. The solicitor was told that that was not the appropriate application and that, instead, it would be necessary to file an “application to set aside an order striking out an appeal for a failure to appear”, which she duly did.

On 2 November 2017, a second judge granted XY’s application, set aside the first judge’s orders of 9 November 2016, reinstated the FVIO pending the outcome of the reinstated appeal, and listed that appeal for hearing on 12 and 13 February 2018.

Appeal hearing from which judicial review is sought

Introduction

OP’s (reinstated) appeal was heard by a third judge on 12, 13, 21 and 22 February and 22 March 2018.

XY’s evidence

Introduction

The judge determined that, as XY was seeking to maintain the order, she should present her case first. Accordingly, XY, who was the only witness to be called in her case, gave evidence-in-chief, was cross-examined and re-examined. Her counsel then announced the close of XY’s case.

In summary, XY made allegations similar to those she had made in the written application filed by the police officer in the Magistrates’ Court, but she also added further matters. Her evidence included the following.

Evidence-in-chief of XY

In her evidence-in-chief, XY confirmed that she and OP met in about mid-2012 on a marriage website. She was from a very wealthy family. Her father worked as an engineer in Saudi Arabia. XY said that, within three months, she and OP were formally engaged and then married in five or six months. Both were of the Muslim faith. They first met in person when they married. She was aged 27. OP visited XY in Pakistan — first, by himself, and, later, also with his children.

XY said that, after they were married, OP would often be moody and fly into fits of rage. When in Pakistan on a visit with his children, OP was so angry that XY took him aside into another room. Once there, in a burst of anger, he threw XY across the room.

XY came to Australia on a tourist visa for the period from May to August 2014, and then returned to Pakistan. Despite being treated in the ways detailed below, she returned to Australia in December 2014, on a spousal visa. XY is now a permanent resident.

When in Australia, XY said that she was expected, by OP, constantly to do the house work, to the point of exhaustion; to sleep on a yoga mat rather than in a bed; to do OP “excessive sexual favours”; and to endure fits of rage by OP, where he would physically assault her by throwing her around the room. OP repeatedly yelled at her, took her telephones from her and would not allow her to keep a journal. XY said that OP slapped her face and insisted that she have sex with him when she was exhausted and did not want to do so, including when she believed she was pregnant.

On occasions, XY left OP (such as from August to December 2014), but he would apologise to her and her parents (who were in the Middle East) and tell her he loved her. He would also donate money to charities in an attempt to show her parents that he was a reformed man. XY alleged that OP said that, if she left him, he would stalk her and rape her to make sure she was pregnant to him, which, in Islam, would prevent her from getting a divorce.

XY alleged that OP fantasised about killing his ex-wife EF, and that he tried to convince XY to be his accomplice. He told her he wanted to be a mercenary and that he was able, with stealth, to slit people’s throats. He spoke of Arthur Freeman, the man who threw his own child off the West Gate Bridge, and how it was not his fault but that of an evil woman who pushed him too far.

As an act of discipline, OP once left XY in the street in Healesville and drove away. On another occasion, he wrote on a whiteboard a list of 63 reasons why she was a failure as a wife. XY wrote down these things in her cookbook and produced the relevant pages thereof at the hearing.

When XY was pregnant, OP told her that he was possessed by demons that had been telling him to hurt her and to commit suicide. He asked her to help him engage in ruqya, which is an Islamic form of exorcism.

Within a few weeks of discovering that she was pregnant, XY left OP permanently, which was early in July 2015. She went to a women’s refuge initially.

XY also produced several emails from OP to XY’s parents sent in July 2015, in which he explained that he was engaging in ruqya. He also asserted that XY had been slandering him. He invited her parents to Australia, so that together they could arrange things — including a divorce, XY’s return to Pakistan, maintenance for the baby, and payment (to her family) of a debt in instalments — and so that they could hear “the truth”. OP also sent emails at this time proclaiming his love for XY.

XY said that OP breached the existing FVIO by sending a LinkedIn message. She conceded, however, that he received diversion for that breach.

XY accepted that OP had never met their child and had never made any attempt to contact her.

XY said that, while she and OP were divorced in Islam, they remained legally married in Australia.

XY also said that OP had numerous guns and that he would go hunting. On one occasion, he returned from a hunting trip covered in blood from killing a deer. XY became sick at the thought, and shied away from OP, which made him angry. He said she was disrespectful of his attempts to teach his family about survival skills. In the back yard, he showed his children how to slaughter a chicken, which appeared to frighten them. XY alleged that he would try to run over animals when driving his car. She also alleged that he was harsh in his treatment of the family dog.

XY said she would not feel safe if the FVIO lapsed now. She said that OP previously told her that he would find her and assault her again.

Cross-examination of XY

In cross-examination, XY accepted that OP also slept on the floor frequently (as they did not have a bed in the main bedroom). She also said, however, that on occasions he would sleep in one of the children’s beds (which meant that the child would have to sleep on the floor).

XY accepted that OP bought her a ticket to fly home to Pakistan in 2015.

While she claimed that OP did not allow her to get a driving licence, XY accepted that she had an international licence.

Re-examination of XY

In re-examination, XY said that, when she spoke to police after she left in July 2015, she did not tell them about sexual assault because she was under the impression that this was not rape. (As we have seen, however, she did complain of feeling pressured to have sex.)

XY said that OP spoke to her about the possibility of joining ISIS and fighting overseas.

XY also said she had not applied for child support because she was concerned that to do so would reveal her contacts, but that she would make such an application if she felt safe. She also said that she does not want OP’s money by way of spousal maintenance or a property settlement.

Close of XY’s case

Counsel then announced that that was the case for XY.

At that point, there was not the slightest hint that XY might seek to split her case and call EF at a later stage.

OP’s evidence

Introduction

OP then gave his evidence-in-chief and was cross-examined (in part). In short, he denied XY’s allegations of family violence and of any intention to have contact with her or her child in the future.

Evidence-in-chief of OP

OP has five daughters, aged 17 down to seven years. Their mother EF moved to Queensland. Early in 2015 was the last time she attempted any contact with them.

OP studied migration law at the Australian National University in order to assist XY in the immigration process. XY first obtained a tourist visa to come to Australia. Next, she obtained a spousal (or partner) visa. That required proof that they were in a relationship, which included his trips to Pakistan.

OP conceded that there were bedwetting issues with the children, but only when XY was there. The problem resolved when she left.

As for XY’s allegations about ISIS, OP said he was interviewed by counter-terrorism police, but never told XY that he was heading overseas to fight for ISIS. He thinks ISIS do a lot of terrible things. After the interview, police told him they had closed the investigation. He has not heard anything from them since.

OP said he sleeps on a rubber mat on the floor, instead of a bed, of which XY was aware when she met him.

OP said he has no interest in having a relationship or contact with XY or the child, as that arrangement would be in the best interests of both that child and his own children. He did not want the child (whom he doubted was his) to be exposed to any issues that he and XY had between them.

He explained that he had worked in various occupations, including as an investigator for the Department of Health, with the Australian Federal Police (“AFP”), as a psychiatric nurse, as a migration agent and, more recently, in his own business.

When he and XY were together, they shared the household duties.

He consulted a doctor over stress he suffered during his relationship with XY.

OP said that XY was not deprived of money. Being from a wealthy family, XY had her own cash when she came to Australia. She also had a credit card and a phone.

OP denied either perpetrating physical violence against XY or throwing her around the room.

On the contrary, OP alleged that there were times when he had to flee the home with his children because of XY’s assaults on him and her acts of property damage. On an occasion in January 2015, the police were called. OP did not press charges. Eventually, XY was involved in a round-table mediation in which she apologised for exposing the children to violence. The couple, however, continued to have issues between them, and XY moved out in May but returned in June 2015.

Also, on 3 July 2015, OP left the home with the children because XY was being violent and exposing the children to such violence. OP went to the police the next day. (Hence the application for an FVIO made by a police officer on his behalf.) He and the children returned to the home seven or eight days later.

OP denied pressuring XY to have sex. All sex was mutually consensual.

XY had either a Pakistani driving licence or an international one. Either way, she could drive here, because he took her to VicRoads to check, and they said she was permitted to drive on that licence.

While he does not have any now, OP did have firearms when he was with XY, but they were all registered. He learned about guns when with the AFP and developed an interest in them. While he went hunting, he denied coming home with blood on him.

He denied ever saying to XY that, if she left him, he would stalk her and rape her or make sure she was pregnant.

He denied XY’s allegations about him fantasising about the use of guns, such as taking a pot-shot at a neighbour, or about him talking of walking up to people and slitting their throats, all of which were completely new allegations. The Arthur Freeman allegations, he said, were also new and he denied them.

OP explained that he had been in a new relationship with a woman for six months. He identified his new partner in court. She has her own three children, is Australian and has no religion. They are currently talking about moving in together.

He denied writing the things XY alleged he wrote on the whiteboard. The whiteboard was used mainly as a “to do” list for the children.

OP accepted that he sharpened knives in the kitchen, but not for any sinister purpose.

OP alleged that he was assaulted by members of the Pakistani Muslim community (at the behest of XY, he believes). At around that time, and after the separation, he used ruqya to help calm himself down. He denied, however, that XY would be asked to rub potions on him as part of the process of ruqya.

As for the breach of the FVIO, he explained that he started a new business after XY left, in respect of which he created a host of new social media accounts, including with LinkedIn. He believes that, when he uploaded photos and the like, LinkedIn automatically sent an email to XY as well. Police recommended diversion, which was quick and easy, so he accepted it. He later learned that LinkedIn has a history of being sued for sending emails automatically to anyone a user may have emailed previously.

He otherwise has no prior appearances in court or charges by police.

Since 14 July 2015, OP has sought to block XY from his Skype accounts, stopped sending her emails and blocked her number on his phone.

If XY wants a divorce, he is happy to oblige. He has a lawyer friend who will accept service so that there is no need for any contact with XY.

OP denied the so-called “chicken incident”.

He bought XY tickets for flights home to Pakistan in January and March or May 2015, but she did not go.

After the FVIO against him was set aside on 9 November 2016, OP carried on his life as usual. His original guns were not returned but he bought some others. Then, when the appeal and the FVIO were reinstated on 2 November 2017, he sold the guns he had bought.

OP reiterated that he had no contact with XY and has no interest in her whatsoever. He has moved on with his life, which includes his new relationship, looking after his five children and pursuing his business.

The ramifications against him of having an FVIO are his inability to have guns and thereby the elimination of his ability to go hunting; the potential adverse impact on his business and personal reputation; and his inability to work in security, which he does part-time, which in turn affects him financially. He is not sure whether it might also impact on his “Working with Children” check, which in turn could affect his business, which includes working with children.

He made a promise to the court that he does not want to communicate with, or have anything to do with, either XY or her child.

Cross-examination of OP

In cross-examination, he repeated that he doubted the child was his. When asked why, he said it is because XY lived away from him from mid-May until late-June 2015 and they had last had sexual intercourse in early-May. (The child was born in late-February 2016.) Further, when XY returned, she had an ultrasound, but they were unable to see the foetus which, they were told, means it is less than four or five weeks old. (In other words, his understanding of the timeline suggests that he could not be — or at least might not be — the father.)

Equally, however, he said that, if it turns out that the child is his, he will pay child support. He added that he could do so without any contact with either the child or XY, neither of whom he wants to contact in any event. The child could contact him when she was older, if she wanted a relationship with him. In the meantime, he had his five daughters (with EF) to care for and his new partner’s three daughters as well.

EF’s statement disclosed at the eleventh hour

It was during that cross-examination, immediately after lunch on the second day of the hearing (i.e. on 13 February 2018), that XY first disclosed the statement of EF to her counsel. It was conceded that she had had the statement in her possession since August 2015, which was well before the hearing in the Magistrates’ Court.[14]
[14]It seems that there was also an unresolved suggestion that XY believed that her solicitors had had the statement from an early stage too (Court Book #1 at 311).

The judge said that the unfairness to OP occasioned by this turn of events could be “assuaged” by granting an adjournment to allow time for his counsel to consider the statement and to have leave to take instructions from OP on the issues raised therein, despite his being under cross-examination.

Counsel for OP opposed that course, as well as the notion that XY might be able to split her case.

But the judge adjourned the matter for about a week, to 21 February 2018, to allow the steps she had outlined to be taken.

XY is permitted to split her case

Upon the return of the matter, counsel maintained his objection to XY’s being allowed to split her case by calling EF at this late stage. The judge nevertheless allowed XY to take that course. Her Honour’s reasons for ruling in that way were as follows:[15]

[1] In my view, the probative value of this evidence [i.e. the statement of EF] outweighs its prejudicial value. Whilst I accept not all of the statement is necessarily relevant in terms of the allegations of [XY] in so far as the character and behaviour of [OP] is concerned, it does have significant probative value in my view. And much of what the Court must inform itself of in relation to an intervention order is, as you said [counsel for OP], the character or personality of persons involved in the [FVPA] proceedings.
[2] [XY] has described ongoing behaviour of a particular type, specifically denied by [OP]. This material, in my view, contains descriptions which bear a particular similarity in so far as that relationship was concerned. And I take the point that [counsel for XY] has made that [XY] seeks continuation of the imposition of the intervention order, in order that she herself can carry out proceedings in relation to the child she has with the accused man.[16]
[3] So these are all matters of relevance for the Court and, in my view, the evidence is admissible.

[15]For convenience, I have given each paragraph a number.

[16]To speak of “the accused man” is, I think, an unfortunate turn of phrase to use in reasons in a non-criminal context, as here. Of course, OP was accused of all sorts of things by both XY and EF, some of which may have amounted to crimes if alleged in a criminal proceeding and proved beyond reasonable doubt. And yet, in such a context, OP would be entitled to the greater safeguards that come with criminal proceedings and would be far less likely to have had the necessary adverse findings made against him. The judge is of vast experience and expertise in criminal matters and is no doubt used to using such language, and properly so, in such contexts. That said, while it was only a slip of the tongue and while OP made no complaint about it, to describe him as “the accused man” was at least apt to convey the wrong impression and should not have occurred.

The judge then considered the suggestion by counsel for XY that EF’s statement could suffice as her evidence-in-chief. Counsel for OP submitted that EF should give that evidence viva voce. The judge agreed. Her Honour also said that, when making her decision a moment earlier, she failed to address the submission by counsel for OP about procedural fairness. She then said this:

[4] With respect to [counsel for OP], I do not accept the submission in that respect either. Had matters proceeded on an ordinary footing, he would not necessarily have been entitled to receive the statement of [EF].
[5] In my view, he has been given a week to consider the material. He has been given leave to conference with his client, albeit that his client is mid cross-examination and I do not regard the limitation I put on that as being instructions to be sought in so far as [EF’s] potential evidence is concerned as being unduly restrictive, and I do not find that the way this matter is to proceed provides a procedural unfairness towards [OP].

XY’s further evidence

Further cross-examination of XY

XY was then recalled so that she may be cross-examined about further matters, including the circumstances in which she came to have the statement of EF and some other matters counsel had omitted to raise previously.

In that further cross-examination, XY said that she received EF’s statement “very soon after” (i.e. “one or two months probably after”) her (XY’s) separation from OP, after July 2015. She found EF’s telephone number on one of OP’s documents, copies of which she took with her when she left him.

XY agreed that EF had mentioned Arthur Freeman in her statement but that she (XY) might not have mentioned that topic in the Magistrates’ Court.

XY was not sure whether she had mentioned, or she admitted that she had not mentioned, the following things in the Magistrates’ Court: being forced to wear a niqab; ISIS (but then said she had); and “scoping” (but then she said she did mention stalking).

XY denied that she had recently re-read EF’s statement.

XY conceded that, in an extract of her journal dated 20 January 2015, she recorded a description of “pleasurable sex” (with OP, the context implied), but added that she wrote such things in order that he would be happy with her.

Further re-examination of XY

In further re-examination, XY said that she received EF’s statement after she had made her statement to police.

XY denied that her evidence included allegations EF had made against OP.

Further cross-examination of XY

In yet further cross-examination, XY admitted that she had read EF’s statement recently, despite having denied this in cross-examination only minutes earlier.

EF’s evidence

Evidence-in-chief of EF

EF was the next witness. In summary, she said the following in her evidence-in-chief.

She met OP over the internet in 1998 or 1999, when she was 17. (OP was born in 1982 and was therefore about the same age as EF.) They married in July 2000 and had five children (in 2000, 2003, 2005, 2007 and 2011).

The violence in their relationship started when EF was pregnant with their first child. OP was verbally abusive and would throw things.

When their first child was a baby, OP became jealous that a friend had been playing “footsies” under the table with EF, which caused him to yell, slam doors and punch a hole in the wall.

EF said that OP was violent (either verbally or physically) almost every day. She then qualified that by saying that she was dealing with verbal things at least daily but “physical things were a bit less often … anywhere from … twice a week to a few times a year”. The physical acts were pushing, elbowing, holding her wrists or neck, pushing her down. She was bruised and sore.

EF did not report any of this to police. Her family were police officers and she did not want them to know.

At one point, EF left OP with her eldest child. OP told EF that he would like to take the child away from her one day so that she knew what it felt like to miss a child.

OP converted to Islam in 2002. From that point, OP did not allow EF to see her family; they could have only halal food; and he did not allow music, photographs or teddy bears. OP also required that EF dress in a way that covered all but her eyes. EF was consulted about this but did not really like it. EF complied because OP thought that it was the correct thing to do. She never disobeyed him as she was too scared to do so.

OP told EF that he thought she may be unhappy because she was possessed by evil spirits. They engaged in ruqyah (by reading from the Koran) as a remedy.

Things improved in 2004, when they moved away from the Islamic community and OP “loosened up” on compliance with rules. For example, EF wore more “normal” clothes and she had contact with her family again. But he was still angry and violent in the same ways, including pushing, restraining and yelling, but there was no bruising.

In 2012, OP bought EF a flight ticket to see her cousin in Queensland in order that she might be happier and a better wife. But he only bought her a return ticket when she admitted that she had been disobedient and that she would be happier.

EF said that OP threatened her that, if she ever left him, he would kill her and make it look like an accident.

After she returned from Queensland, EF went to stay with her sister. OP did not allow her to take the children.

EF claimed that, throughout their marriage, she had sex with OP without consent. She admitted that this was the first time she had told anyone about this.

In their last year together, the physical abuse was more frequent. For example, he would bump into her as he walked past, push her into the wall, and push her onto the bed and not let her up. Once, he grabbed her by the throat against the wall. He was also verbally abusive.

EF did not tell anyone about this behaviour. She thought no one would believe her, so she just did not bother.

EF said that OP thinks western women lack morals and values and that they try to oppress men. He also told the children that among those who were going to Hell were Christians and those who drank alcohol.

As for the man who threw his child off the West Gate Bridge, OP said that it was clearly the mother’s fault for pushing the father so far.

If EF cried following an argument, OP would laugh at her and have the children do the same. If he said she was being a cow, he would get the children to “moo” at her as they walked past.

OP did not want the children to spend any time with EF’s family, but they did, at times. He would punish them if they chose to spend time with OP’s mother.

EF finally left the family home in June 2012. She had intended to have the children with her eventually, but she barely saw them. OP let her see them only a few times. She had anxiety and depression and was very upset.

EF and OP discussed a parenting plan, which he drew up, for the purposes of their divorce. EF signed it without reading it. She understood that the arrangement could be changed at any time.

Thereafter, she saw the children in September and December that year but not as often as she wished. They were unavailable (because they had things on), or OP just would not allow it. In the September visit, she noticed that some of the children were wearing head scarves, whereas they had not done so previously. In 2014, the eldest started wearing a niqab. EF had previously told OP that she did not want their hair or faces covered while they were children. Conversation with her children was more difficult, with just yes or no answers at times, without any further explanation.

The parenting plan arrangements were reflected in consent orders at a later time, although EF claims that that occurred without her knowledge, even though she had legal representation. Further, OP became the full-time carer of the children, he had full parental responsibility and EF would see them on a casual basis. Mediation occurred at one point, but OP would not budge on any conditions.

OP took out intervention orders against EF in 2013 and 2014. She was advised to consent to the first order. There may have been contact with the children after it was made, but OP then took out the second order, claiming she had threatened to slit his throat. EF admitted that she got angry and swore and yelled at one of the children in a phone call. Incongruously, EF said that she contested the second order and later said she consented to it in the face of evidence that she could not counter. She said her lawyer told her that her children did not want to see her and that she should just move away to Queensland (where her family were) and start a new life.

EF is now remarried and has three children (under five) with her new husband.

EF asked OP to see the children again in August 2017, but he did not respond to her email.

EF met XY in 2015. They had phone conversations thereafter. She thought she sent her statement to XY in 2014. In any event, it was written before she met XY.

Cross-examination of EF

In cross-examination, EF agreed that her intelligence was rated at Mensa level. Her mother and her aunt were both police officers.

After leaving for Queensland in 2015, her email of August 2017 was the first EF had sent since she left Victoria.

EF accepted that she could have fought the intervention orders but consented to them. While she acted on the advice of a lawyer, she accepted that the decisions were her responsibility, as was her decision to go to Queensland.

EF accepted that she was able to put her views to OP regarding the children’s wearing of head scarves.

EF admitted signing numerous documents regarding the divorce, the parenting plan, care of the children, assets and consent orders which bore several dates, but she remembered signing them all only at the one time. Either way, she maintained that she did not read these documents.

EF conceded that numerous text messages and emails she was shown indicated OP acceding to her requests to talk to the children.

Despite EF’s assertion that she was not drinking heavily after her separation from OP, there were Facebook posts by her during that period that suggested that she was doing just that.

EF agreed that she dates their separation from 3 March 2012.

EF denied that it was she who asked for a holiday to Queensland but OP who insisted that she go.

EF denied that the family law and other documents she signed reflected the choices she made. On the contrary, said EF, she wished to keep her children.

EF accepted several other things in cross-examination, including the following:

(a) She supported OP’s conversion to Islam.

(b) OP did not stop her and the children going to dinner with her family every Wednesday night. OP, having met EF’s sister by chance on a bus, gave EF her sister’s phone number to enable her to make contact. From 2003 to 2004, EF would commonly walk to her family’s home, which was nearby their home at the time.

(c) From January to June 2006, OP was in Geelong, whereas EF was in Coburg with one or two of the children.

(d) From September 2010 to January 2011, OP was in Canberra and EF remained in Melbourne with the children, supported by her cousin.

(e) From December 2011 to June 2012, OP was working in Shepparton, during which time he would return to Melbourne to visit the children and she would take them to Shepparton to visit him.

EF agreed that she and OP argued over whether they should have a TV, but that she bought a new TV shortly before the separation. EF said that the children told her that the TV broke after she left, so they had none then.

EF agreed that she had heard of psychosis, but disagreed that OP had said, when discussing Arthur Freeman, that one of the psychiatrists had said that he was psychotic at the time of the incident. EF did accept, however, that, at the end of the conversation, he said, “Well, let’s agree to disagree.”

EF agreed that, at the start of their relationship, she was taking an antipsychotic medication (Olanzapine) but that it was not taken for that purpose. EF also agreed she ceased taking the medication at the time of her first pregnancy.

EF agreed that she has had very little contact with OP since April 2015; that he has not initiated any such contact; and instead it has been up to her to initiate it. OP has left her completely alone.

Re-examination of EF

In re-examination, EF said that OP was polite and professional in emails but very abrupt, bossy and controlling when communicating in person.

EF said that, as for heading to Queensland pursuant to his request, she felt that, if she did everything that he wanted her to do, and if she could show him that she did not want to take his children away from him, they would be able to work things out peacefully and mutually. She was afraid that, if she took the children away, he would come after her and she did not want him to harm the children.

EF said that OP had all the power in their relationship. She required OP’s permission for most things she did.

GH’s evidence

Evidence-in-chief of GH

Next, OP’s counsel interposed GH as a witness in his case, as he had come down from Queensland especially for that purpose.

In evidence-in-chief, GH said he had known OP since 2012. He had had contact with XY online. In their first conversation, they exchanged pleasantries. In their second, they spoke about GH’s ex-wife, who left him quite suddenly. XY asked questions about whether his ex-wife got her visa and whether she became a permanent resident. When he spoke to OP, he was very subdued.

In May 2015, OP called him and asked him to listen. For the next ten to fifteen minutes, he could hear XY screaming, insulting OP and his children, calling him names, saying she did not love his children, that she hated him and that he was no good. All OP did was to plead with her not to say these things in front of the children. XY said that, if he did not tell the immigration authorities that she had left, she would not make any further allegations against him.

GH received photographs of scratches on OP’s body, but he did not have them with him.

Cross-examination of GH

In cross-examination, GH admitted that he had a prior conviction for possession of two videos of child pornography (involving underage girls). His wife made a statement saying she downloaded them accidentally, but he was found guilty. He was fined $3,000. He also admitted a prior conviction for breaching an intervention order. It was alleged that he used “words” to his ex-wife at an access changeover.

GH came down from Queensland to give evidence because he saw what had happened to OP and he believed that he was a kind, gentle person.

GH said that he had recordings of the telephone call (in which XY was screaming and so on) but that, in the years that have passed since, he had lost them. OP gave them to him for his own protection.

Re-examination of GH

In re-examination, GH said he brought the recordings to the hearing at the Magistrates’ Court but was told that they were not needed.

OP’s evidence resumed and completed

I turn now to OP’s evidence upon his being recalled. As I indicated earlier, it struck me as curious that, at this point, he was not first examined in-chief to respond to EF’s evidence. Instead, OP’s cross-examination resumed immediately upon his being recalled, during which he denied the substance of EF’s allegations and other aspects of XY’s allegations too.

In particular, he denied perpetrating domestic violence on EF. He reiterated that EF was willing to sign over the children to him. He denied controlling her, putting her down or being physically abusive.

It was put to him (unhelpfully, I thought) that, because XY had gone to police on 8 August 2015 and an email showed that EF had not sent her statement to XY until 11 August 2015, there could be no concoction between them. OP responded that he had understood the evidence to be that XY and EF had spoken to each other soon after his relationship with XY broke down. (This was correct. Counsel for OP was also correct in pointing out that EF’s email of 11 August 2015 referred to her having sent a document to XY earlier.)

In denying that he was regularly and constantly abusive towards EF throughout their relationship, OP said he was instead very kind and caring to her, particularly since she had been diagnosed with schizophrenia from a young age. He explained how, when they were 17, EF used to become paranoid and think people were talking about her, and that he went with her to the Children’s Hospital when she was diagnosed by a psychiatrist. He believed the treatment continued until 2002, when EF did not wish to continue it and they moved. He denied that he was mistaken or lying about these things. OP said that one of the reasons he became a mental health nurse was to assist EF in understanding her symptoms and her condition.

OP denied restricting EF’s access to her family. Instead, after 2002, after they both converted to Islam, EF had a dispute with her family and she even called the police on her mother and aunt.

OP denied taking EF’s children from her or coercing her to sign documents giving up her parental rights. He said there was provision for access, which she often did not take up, but which he facilitated when she requested it.

OP denied turning EF’s children against her by having them read the Koran in a circle, talking of the evil their mother was.

OP denied smashing EF’s laptop computer. It was broken accidentally when she dropped it. He had it repaired within days.

There was some further quite misguided and inappropriate cross-examination about OP’s “admitting guilt … in order [to] receive … diversion” for breaching the FVIO in favour of XY on the basis that LinkedIn messages were sent to XY, which was said to be inconsistent with his assertion that they were sent inadvertently. It was even suggested directly to OP that he had “pleaded guilty” and yet said he “had a defence”. While “acknowledge[ing] to the Magistrates’ Court responsibility for the offence” is precondition to participation in a diversion programme, there is no plea taken in a diversion matter.[17] Nor is there any finding of guilt.[18] In any event, it is commonplace for accused persons to accept diversion in minor or trivial matters even if they have a good defence to the charge. Experience tells that considerations such as pragmatism and a lack of the resources to fight the matter are often among the reasons why diversion is taken despite the availability of a good defence.
[17]See s 59 of the Criminal Procedure Act 2009 (Vic).
[18]Indeed, if a person completes a diversion programme satisfactorily, no plea to the charge is to be taken, the Magistrates’ Court must discharge the accused without any finding of guilt, the fact of participation in a diversion programme is not to be treated as a finding of guilt (except for certain specified purposes, none of which apply in the present case) and the fact of participation in a diversion programme and the discharge of the accused is a defence to a later charge for the same offence or a similar offence arising out of the same circumstances (s 59(4) of the Criminal Procedure Act 2009 (Vic)).

OP said that he sought an FVIO against XY because she was violent to him in front of the children and to the children.

OP also said that XY threatened that, if he notified the immigration authorities of the breakdown of their relationship, she would cause significant distress for him and his children.

When shown emails written around that time — in which OP was suggesting to XY that they see a sheikh, engage in ruqyah and get back together — he said the following things. The police advised him that, if he took his children back to the home while XY was present, he was at risk of losing them because he would be exposing them to violence. He was therefore in effect homeless with his five children at that point. He had been attacked by members of the Muslim community in the street and had to defend his children. In those circumstances, he wanted to resolve their differences.

Matter adjourned part-way through OP’s cross-examination

OP’s evidence was not completed on that day. Instead, the matter was then adjourned for further hearing on 22 March 2018.

Application to abandon appeal

In the interim, on 16 March 2018, OP’s counsel filed and served a notice of abandonment of appeal. On 19 March 2018, XY’s solicitor advised that her client opposed that application. The same day, the judge’s associate wrote to the parties advising that the judge was not willing to grant leave to OP to withdraw his appeal without submissions from both parties.

On 22 March 2018, the judge refused OP’s application to abandon the appeal. Her Honour gave the following reasons:[19]

[1] In my view, this matter has proceeded a long way down the track. It has been clear from the outset that [XY] is seeking a longer order [— the] submission would be made for a longer order. The application to abandon at this late stage, I do not regard as appropriate in the circumstances, all the evidence having been — the amount of evidence having been led. Both parties, having given evidence and called witnesses to date and it being clear that [XY] was also in the course of seeking to have the — having the intervention order maintained via the appeal process, was also seeking a longer order.
[2] In my view, it would be a great waste of time and resources. I am not necessarily going to call it an “abuse of process”, but it would be a great waste of time and resources if the matter were not to resume and the application to abandon is denied. Thank you.

OP calls upon subpoenaed documents

[19]Again, for convenience, I have given each paragraph a number.

Counsel for OP then called upon subpoenas issued concerning some police records and those of the Department of Health and Human Services (“the DHHS”). The judge said she would consider those materials (before deciding whether to release them).

Objection to calling OP’s daughter as a witness

Counsel for OP indicated that, after his client completed his evidence, he wished to call his eldest daughter to give evidence of the conduct that she witnessed between OP and XY. (OP’s daughter was aged 17, turning 18 that year, having been born in 2000.)

Counsel for XY then made an ill-considered objection, relying on s 150 of the FVPA. Counsel submitted that the child must not be present during the proceeding and that, in so far as an order may be made allowing her presence (pursuant to ss 150(2)(b) and (3)), such an order should not be made.

I shall not repeat the arguments put in support of the objection because the judge, sensibly, did not act upon counsel’s objection and instead indicated that she would allow OP’s daughter to give evidence.

The subpoenas, again

The judge then indicated that she had read the material in answer to the subpoena to the police.

Her Honour said that she could not see the relevance of the material, which concerned an allegation that OP was assaulted by a group of men. (As will be remembered, OP had given evidence that he was assaulted by a group of men from the Pakistani Muslim community, which he believed was done at the behest of XY.)

The judge then indicated that she would stand down to read the material produced under the subpoena to the DHHS.

Consent to FVIO without admissions and inclusion of child not opposed

Upon the judge’s return, counsel indicated that OP would consent, without admissions, to an FVIO. That, counsel said, would then leave the duration of the order to her Honour.

Inclusion of child in FVIO requested by XY

At that point, counsel for XY said that she needed to take instructions.

Counsel also indicated that XY wished to have her daughter named on the order. She submitted that, while the child was not born or was very young at the time the matter was in the Magistrates’ Court,[20] the judge had wide powers on appeal under s 119 of the FVPA and could vary the order in any way the Magistrates’ Court could have done.

Judge’s conclusion on subpoenas

[20]The child was not born at the time of the application made on behalf of XY, but was born a couple of months before the hearing commenced in the Magistrates’ Court.

The judge then opined that the material returned on the DHHS subpoena did not have any relevance to the proceedings. That material spoke of complaints made in relation to OP’s children and a conclusion by the DHHS that there were no significant concerns.

Counsel for OP submitted that his client considered the material to be relevant because the notifier of the unsubstantiated allegations was XY. OP had been told that XY was the notifier. (In fact, XY had given evidence that she had made such a notification.) The judge said that she considered that this point was not a matter for her.

In any event, said her Honour, the material raised by both subpoenas went to peripheral issues and did not have the necessary relevance, such that she declined to release those materials.

No opposition by XY to OP’s proposed course

After the matter was stood down briefly again, counsel for XY indicated that her client had no objection to the proposed course of OP’s consenting to an order, without admissions.

Submissions on addition of child to order

Counsel for XY

Counsel for XY submitted that, pursuant to s 77 of the FVPA, the court could, “of its own initiative”, add the child to the order.

Counsel for OP

Counsel for OP indicated that, while his client did not oppose the child being added to the order, he was unsure as to whether the judge had the power to do so. He submitted that, because the child was born after the separation and OP had had no contact with her, the child could not have been subjected to any family violence.

Equally, counsel submitted that OP saw it as in the best interests of the child that he not have any relationship with her because of the poisonous relationship between XY and him. Thus, explained counsel, OP could see no future in his playing a role in the life of the child.

Submissions on duration of order by OP

The parties then made submissions about the duration of the order. I shall commence with the principal submissions of counsel for OP, as he was required by the judge to go first in time.

Counsel for OP

While counsel acknowledged that, pursuant to s 97(2)(a) and (b) of the FVPA, in making a decision as to the period for which a final order is to be in force, the court must take into account that “the safety of the protected person is paramount” and “any assessment by the applicant of the level and duration of the risk from the respondent”, he also emphasised the highlighted part of s 74(1):

The court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.

Counsel pointed to OP’s sworn evidence that he wants nothing to do with XY or her child; that he had no contact with XY from the time the FVIO was imposed in July 2016 until the present day (being 22 March 2018); and that that period included a period of nearly 12 months during which the order had been set aside (from 9 November 2016 to 2 November 2017).

The only qualification to that submission was the “contact” via LinkedIn, which was inadvertent and instead resulted from emails generated automatically by LinkedIn itself, not by OP. Further, while those LinkedIn requests were generated on 28 October and 2 November 2016, XY did not make a statement about the matter until March 2017 (by which I took counsel to submit that they were of no moment to her).

Counsel submitted that, in so far as it was suggested that there would need to be contact between XY and OP regarding child support or obtaining a formal divorce, these things could be done via lawyers, so that there would be no contact between the parties.

Counsel pointed to the impact of a longer order on OP. First, he would be unable to maintain his interest in having firearms, unless he made a successful application for an exemption. Second, OP was concerned that the order may impact adversely on his business, which in part involved children, as he may consequently fail a Working with Children check.

Counsel submitted that such orders must not be any longer than is necessary to protect a person’s safety. In his submission, the foregoing matters (as well as the fact that the level of family violence alleged was not at the higher end) all pointed to a much shorter order than any longer one.

Counsel for XY

Counsel for XY emphasised what she submitted was OP’s lack of credit; his long-term pattern of abusive behaviour (physical, sexual, psychological and economic) throughout his relationships with XY and EF; his taking of two of EF’s children out of the country in breach of family law orders (which, unfortunately, was raised for the first time in submissions, not in evidence); XY’s fear that OP would exact retribution on her; his “punishment” of EF by taking her children from her; his fantasies about killing EF, which behaviour was repeated with XY; his justifications for Arthur Freeman’s actions; his attempts to turn XY’s parents against her; his “traversing of [his] plea [to the breaches of the order based on the LinkedIn contacts]” (which, I have explained, represented a fundamental misunderstanding of diversion); and doubts about whether OP’s business is still going.

Counsel for XY submitted that, despite OP’s assertion that he wanted nothing to do with the child, he may well initiate family law proceedings at the expiry of the FVIO. And, even if he did not, XY would apply, at some stage, when she felt safe, for financial support. Either way, this would result in contact between them. XY had not applied for child support to date because her address would be disclosed to OP. There would also be paternity testing of the child and investigations into OP’s income, none of which would go down well with OP, she submitted.

In so far as there was no contact when the order was lifted for 12 months when the first appeal was allowed, counsel submitted that OP’s behaviour was not tested with any applications for child support, divorce or the like.

Counsel for XY submitted that, if the judge accepted the evidence of XY and EF, there would be “no way …, without an order, that he will not continue to commit family violence in its various forms against [XY], particularly as they have a child together”.

Counsel said that XY had difficulty sleeping, had had weekly ongoing counselling for three years, had not had a relationship since her separation from OP out of fear of his reaction, and feared that he would track her down and seek retribution because she no longer wore a niqab. Counsel emphasised that, in OP’s last letter to XY (in July 2015), he said that she would always be his wife, that she would always love him and that he would never move on.

Counsel submitted that, given XY’s views, and the fact that they must be considered, an indefinite order was required or, alternatively, that an order until XY’s child turned 18 was necessary, which was a further 16 years.

Counsel for OP in reply

In reply, counsel for OP pointed out that it was OP’s mother who took two of the children overseas on a holiday to her home country, which was allowed under the family law orders. The only breach was that EF was not informed beforehand. But none of this had anything to with the present application.

Counsel for OP also pointed out that there was nothing in the suggestion that OP’s business was not operating. He offered to show his client’s business profile on the internet, which offer the judge did not take up.

In so far as it was suggested that OP was “calculating”, counsel pointed to the fact that he had no prior convictions at the age of 35. At most, he completed a diversion over the LinkedIn matters. Further, he was a single father raising five daughters.

Counsel also reminded her Honour that OP was now in a new relationship.

XY’s further submission on adding child to order

Finally, counsel for XY returned to the question of adding XY’s child to the FVIO. Counsel submitted that, while she understood it was not opposed, nevertheless, if the judge considered she needed to find that family violence had occurred to the child, she “could find it based on the evidence of family violence during the pregnancy”. (As will be seen, yet again, that was another unhelpful submission by counsel for XY, which led the judge into error, albeit an error within jurisdiction, according to Ms Wong.)

Reasons for eighteen-year order and inclusion of child in the order

After standing the case down while she dealt with another matter, the judge then turned to her reasons for extending the FVIO to one of 18 years’ duration and the inclusion of the child in the order:[21]
[21]Again, for convenience, I have given each paragraph a number.

[1] The intervention order having been consented to by [OP] on a no admission basis, the question therefore remains for me as to its duration.
[2] In this case, I have been presented with two starkly contrasting bodies of evidence. On the one hand, [OP], and on the other hand, [XY] and [EF]. All witness[es] gave extensive evidence and were cross-examined and I had ample opportunity to assess them as witnesses.
[3] I found [XY] and [EF] to be compelling and believable witnesses. There was much similarity in their descriptions of [OP’s] treatment of them when they lived with him as a wife. The similarity in their [accounts] was of such a kind that I did not conclude that it was the result of concoction. The details of their evidence which was similar in that regard related to physical abuse, sexual abuse, financial control, verbal abuse, the attitude of [OP] to [ruqyah], the comments about the Arthur Freeman incident. There were also other similarities, both women having met [OP] on an internet site, [XY] meeting him very soon after [OP’s] marriage to [EF].
[4] Both of them described a situation where they were forced to undertake domestic drudgery doing all the cooking and cleaning and washing while he worked or napped. Both women describe incidents where they were threatened with death and [OP] would make it look like an accident and to both women he expressed an intense interest in guns and weapons.
[5] I accept their evidence [over] that of [OP]. Their accounts revealed a disturbing history of a determination by [OP], in my view, to assert what he saw as his overriding rights as a husband by all the means described by both witnesses and to make them subject to him. I regard his actions as serious examples of family violence. I do not accept the proposition advanced on [OP’s] behalf that [XY] was seeking use her relationship with him to come to and remain in Australia as was said to be evidenced by her refusal to take the offer of a paid ticket home to Pakistan.
[6] I accept that once her marriage failed, [XY’s] position in Pakistan either as a single, separated woman or a single, separated woman with a child would have been sufficiently invidious for her to be reluctant to take that course.
[7] I regard [OP’s] actions in relation to his first wife and the arrangements for their children following the separation initiated by her to be demonstrative of a continued determination to dominate and control. I regard the emails generated by [OP] following his separation with [XY] to be indicative of a continued attempt by him to assert control over her.
[8] [OP’s] failure to make contact with [XY] thereafter may as easily be attributed to [XY’s] capacity to keep her whereabouts unknown as a demonstration by him, as was urged upon me, of his bona fides towards her. I accept [XY’s] evidence that she has taken no legal steps in relation to the support her daughter is entitled to from [OP] due to a fear of consequence in dealing with him.
[9] In my view, and in light of the evidence that I state that I have accepted, she does require the protection of an intervention order to pursue those legal avenues. Though this will involve contact of some kind until the child is 18 … I do not accept that the nature of the legal contact will necessarily be of an arm’s length obviating any concerns of danger to her.

Ms Wong also submitted that, even if there were to be an affirmative finding that EF had committed perjury in relation to her alcohol use, it could not be reasonably expected to be decisive at a rehearing or compel a finding in OP’s favour if left unanswered. OP’s case on the appeal was that he restricted EF’s access to the children after their separation not because he was controlling but because she drank heavily, and that her alcohol use undermined the credibility of her account of events post-separation. But, submitted Ms Wong, as the judge below observed, the issue of drinking cuts both ways. The loss of her children could have driven EF to drink excessively, or she did not have access to her children because of the drinking. In those circumstances, submitted Ms Wong, the evidence could not be said to be reasonably decisive at a rehearing.

Psychologist’s report

In Ms Wong’s submission, none of the following pieces of information taken from the psychologist’s report, when set against EF’s evidence on the appeal, is capable of proving that she perjured herself:

(a) failing fully to disclose her history with her current partner, including that it was a violent relationship;

(b) failing to disclose her personality disorder; and

(c) failing to disclose that she had been treated for personality disorder and for issues other than depression and “some anxiety”.

In the County Court, EF was not asked any questions and did not give any evidence about being in a violent relationship with JK, or about suffering from and being treated for a personality disorder. Thus, submitted Ms Wong, EF did not make any false statements about these matters.

As for OP’s submission that the psychologist’s report proves that EF gave a different version of events regarding the allegations of abuse by him, Ms Wong submits that he is simply wrong: there is no such inconsistency.

Ms Wong conceded, however, that, when set against her outright denial, in evidence, of the psychotic aspects of her depression and mental illness, EF’s account to the psychologist appears to be inconsistent and arguably has a tendency to prove that she committed perjury.

That said, submitted Ms Wong, it is not clear, from the report, whether the psychologist is recounting what EF said about psychosis and the like or whether he is offering an opinion based upon her description of the symptoms that she recounted. Further, the inconsistency at most points to potential perjury; it does not prove the perjury. There is no evidence before this Court that proves that EF’s evidence in the County Court was false (for example, medical records of her diagnosis and treatment), other than the account recorded in the psychologist’s report (if it be EF’s account). Further, a conversation with EF during an assessment in January 2019 appears to be the only source of information for the statements in the psychologist’s report that EF described “some potential issues with paranoia” and that “[h]er account was that she had a psychotic depressive episode”. Neither the psychologist nor EF has been made available for cross-examination in this Court regarding that conversation. Accordingly, only limited weight can be given in these proceedings to those statements in the psychologist’s report.

In Ms Wong’s submission, even if this Court made an affirmative finding that EF had committed perjury in her evidence, this would not be sufficient to vitiate the County Court’s judgment. The primary factual issues to be determined on the appeal concerned the family violence perpetrated by OP towards his former partners, both during the relationship and after separation. Evidence regarding EF’s mental health issues when she was 16 or 17 years old was not directly material to those issues when she was about 30, which was her age at the time of the breakup of her relationship with OP.

Finally, in Ms Wong’s submission, the psychologist’s report does not undermine EF’s credibility in relation to the primary factual issues to a degree that it would be decisive at a rehearing; nor does it compel a finding in OP’s favour if left unanswered.

Facebook posts — Mental health

In Ms Wong’s submission, for several reasons, the Facebook posts in October 2019 suggesting that EF had been admitted to, and then released from, a psychiatric hospital are inadmissible for the purposes of establishing fraud.

In the County Court, EF was cross-examined about her mental health. Her evidence was to the effect that she began having problems with anxiety after she separated from OP in 2012. She also said she had depression throughout their marriage, but that it did not have paranoid features. At the start of the relationship (when she was 17 years old), she was taking antidepressants and an antipsychotic called Olanzapine, but it was not for the purpose of an antipsychotic. She stopped taking Olanzapine at the time of her first pregnancy.

In Ms Wong’s submission, the relevance of EF’s mental health history was not expressly identified in the County Court. Nor was it referred to in final submissions by counsel for OP. At its highest, it was a collateral issue going to EF’s credibility or reliability as a witness. EF’s evidence that she suffered from depression at the start of her relationship (when she was 17 years old) appears inconsistent with OP’s evidence that she was diagnosed with schizophrenia at the age of 17.

In any event, submitted Ms Wong, these Facebook posts are incapable of proving that EF’s evidence about her mental health is tainted by perjury. The mere fact that she was an inpatient at a psychiatric unit in October 2019 does not to prove that she lied in evidence in February 2018 about her mental health, particularly about her mental health during her relationship with OP between 1999 and 2012. This Facebook post is therefore irrelevant and inadmissible for the purpose of establishing the ground of fraud.

Ms Wong submitted that, even if fraud were established in relation to EF’s evidence about her mental health, it would not have the materiality required to vitiate the judgment. The primary factual issues to be determined on the appeal concerned the family violence perpetrated by OP towards his ex-wives, both during the relationship and after separation. Evidence regarding EF’s mental health was not directly material to those issues. At most, the difference between EF and OP’s evidence about her mental health is a collateral issue that goes to her credit only.

Facebook posts – Alcohol use

As Ms Wong conceded, it can be assumed that some of the Facebook posts by EF from 2019 indicate that, at the times of the posts, EF was at various licensed venues and that the references to drinking alcohol, hangovers and getting drunk indicate that she had been drinking on those occasions.

In Ms Wong’s submission, however, Facebook posts alluding to EF’s alcohol use in 2019 are simply incapable of proving that she lied in the County Court about her alcohol use in 2012. EF has not given any evidence about whether the 2019 Facebook posts accurately depict the extent of her alcohol use. Even if EF abused alcohol in 2019, this could have only indirect relevance to whether she abused alcohol in 2012. The 2019 Facebook posts alluding to alcohol use are therefore irrelevant and inadmissible for the purpose of establishing the ground of fraud.

In so far as some indirect use may be made of the 2019 Facebook posts about alcohol, Ms Wong submitted that it was important to understand the following things. First, in the County Court, EF was cross-examined about her alcohol use in the period following her separation from OP in 2012. She was questioned about a number of her Facebook posts from September and October 2012 relating to alcohol use. As we have seen, EF maintained that the Facebook posts were a joke to her friends, that she was not drinking as much as the Facebook posts might suggest, and that she never saw the children after drinking.

Secondly, EF alleged that OP had prevented her from seeing the children. Her alcohol use became relevant because OP argued that he restricted EF’s access to the children after their separation not because he was controlling but because she drank heavily, and that her alcohol use undermined the credibility of her account of events post-separation.

Thirdly, in her reasons, the judge said, “I regard [OP’s] actions in relation to his first wife and the arrangements for their children following the separation initiated by her to be demonstrative of a continued determination to dominate and control.” There was no specific finding regarding EF’s level of alcohol consumption in 2012. However, as Ms Wong pointed out when addressing the family consultant’s report, in the course of discussions with counsel, the judge observed that the issue of drinking can “cut both ways, that the loss of her access to her children could have driven her to that situation or she does not have access to the children because she’s drinking. It can be either.” OP’s counsel agreed with that observation.

In those circumstances, the more recent posts regarding alcohol use are of no moment.

Correspondence in family law proceedings

As for the correspondence in family law proceedings, Ms Wong made the following points.

In the County Court, EF gave evidence of the circumstances around the consent orders in 2012 that gave OP sole parental responsibility for their children. In cross-examination, EF said that she signed all the documents relating to the children on one occasion at a McDonald’s restaurant but did not know the exact date. She was not seeing the children at the time. OP allowed her to see the children if she signed the documents. On that occasion, EF was allowed to see the children, but then she had to sign the documents. She did not have the opportunity to read each document before she signed them. OP explained to her what the documents were about. He told her that they were just an outline of their circumstances at the time, with the children living with him in one place and her living in another, and that she could see the children whenever she wanted. EF believed that this was a temporary arrangement. Her mental state was not so great at the time. EF had become a bit anxious and upset about not being able to see the children.

It is apparent, from the judge’s reasons, submitted Ms Wong, that her Honour regarded EF’s evidence concerning the circumstances of the 2012 consent orders as relevant to establish a pattern of controlling behaviour by OP towards his former partners following separation.

In Ms Wong’s submission, the fact that EF consented to orders in 2019 does not demonstrate that she lied in the County Court about the circumstances surrounding the 2012 consent orders. There are many reasons why EF may have consented to orders giving OP sole parental responsibility in November 2019. There is no evidence that EF’s reasons for consenting to the orders in 2019 are connected in any way to the circumstances or reasons behind the 2012 orders. Thus, in Ms Wong’s submission, the 2019 correspondence regarding consent orders is irrelevant and therefore inadmissible for the purpose of establishing the ground of fraud.

Ms Wong also addressed OP’s assertion that the 2019 consent orders prove that EF made false allegations about family violence during their relationship between 1999 and 2012. In Ms Wong’s submission, those orders are irrelevant and inadmissible for this purpose as well. The 2019 consent orders cannot be construed as an admission by EF that family violence did not occur between 1999 and 2012.

Ms Wong then turned to OP’s submissions concerning EF’s behaviour in signing an annexure to the 2019 consent orders stating that the children were not at risk of family violence from him. It will be remembered that OP submitted that, if the allegations of family violence made by EF were true, then she would not sign a document stating that the children were not at risk of family violence from him.

But Ms Wong submits that this inference is not open, for two reasons. First, whether or not OP committed family violence towards his and EF’s children had limited relevance to the County Court’s decision about the duration of the order to protect XY and her child. OP’s alleged family violence towards the children of EF was not referred to in submissions by either party before that court; nor did the judge make any reference to that issue in her reasons. Secondly, Ms Wong submitted that, in any event, a statement from EF that the children were not at risk of family violence in 2019 is not an admission that the children were not previously subjected to family violence prior to their separation in 2012, or that there is no future risk to the children.

Leave to file further material should be refused

In his submissions dated 19 February 2020, OP said that, if Ms Wong challenged his claim about EF’s mental health arising from the Facebook post from October 2019, he would be seeking leave to apply for a subpoena for the mental health records at the relevant psychiatric unit as to the cause for the admission and that he would intend to use that as evidence.

Ms Wong opposed any leave being granted to OP to file any further submissions or materials in this proceeding, for three reasons. First, as already argued, EF’s mental health condition in 2019 is irrelevant to these proceedings. Secondly, OP had been given ample opportunity to present his case already. Thirdly, there must be finality in respect of this application.

I agree. Enough is enough. While I cannot know what a subpoena to the psychiatric unit may produce, such material is likely to have no (or very little) relevance to this application; OP has been given ample opportunity to file material previously; and there must be finality in this matter. The case will be determined on the materials that have been filed thus far.

Discussion

As for the substance of the arguments based on the fresh evidence that has been filed by OP, in short, I am not satisfied that any of that evidence establishes perjury by EF. Alternatively, even if I am wrong in that assessment, and that the evidence does establish perjury, or at least tends to do so, I am not satisfied that it is of sufficient materiality to warrant setting aside the judge’s orders on an application for judicial review.

Perhaps the clearest inconsistency is between EF’s denial (in the County Court) that the antipsychotic medication she was prescribed at 17 was not for antipsychotic purposes and her apparent concession (to the psychologist in 2019) that she “had a psychotic depressive episode”. While that inconsistency, when coupled with what appears (from her Facebook post in October 2019) to be an admission to a psychiatric unit, may undermine her credibility, and in turn enhance OP’s credibility (at least to the extent that he gave evidence that he believed she was suffering psychotic symptoms in 2017), it is difficult to see how that might have materially altered the judge’s findings on the principal issues, including whether and, if so, to what extent OP perpetrated family violence against XY and the risk of his doing so in the future.

The same is true of the evidence concerning EF’s alcohol consumption. Let it be assumed that the remarks in the family consultant’s report of August 2018 and EF’s Facebook posts in 2019 combined to portray a person who was drinking excessively both in 2019 and back at the time of her separation from OP. Let it also be assumed that, in her evidence in the County Court, EF lied about her level of drinking or at least sought to minimise it in a misleading way. Again, while that may have undermined EF’s credibility, and in turn have enhanced OP’s credibility, I still find it difficult to see how that might have materially altered the judge’s findings on the principal issues in dispute.

Finally, there is the correspondence in the family law proceedings subsequent to the County Court appeal. In short, I do not think that it should be concluded that, just because EF may have accepted in 2019 that her children were not at risk of family violence from OP at that time, or just because she consented to orders giving him sole care of the children in 2019, does not mean that her evidence in the County Court about his acts of family violence during their relationship from 2000 to 2012 or his manipulation of her into signing consent orders following the breakdown of that relationship is not true or is necessarily to be doubted.

For these reasons, I am not satisfied that the fresh evidence is of sufficient weight or materiality to the issues upon which the judge’s conclusions turned to warrant setting aside her orders on the basis of perjury or fraud.

I should add, however, that none of the foregoing denies the fact that this fresh evidence might provide fertile ground for cross-examination of EF upon any application for revocation or variation of the order. If OP were to make any such application, it would be a matter for the court hearing that application as to whether such evidence might be permitted to be led or used in cross-examination of EF, were she to be a witness again.

Conclusions and orders

Extension of time

Before turning to my ultimate conclusion on this application, I should address a preliminary question.

Given that OP’s originating motion was filed about five months out of time, he requires an extension of time to bring this application for judicial review. OP sought to explain the delay in an affidavit and in his submissions. It is unnecessary to go into the detail of those explanations here. Suffice it say that, collectively, they seem to me to be plausible reasons for the delay.

Initially, XY opposed the application to extend the time for bringing this application. On the second day of the hearing, however, Ms Wong advised that she no longer pressed that issue.

I will grant the application for an extension of time. I am satisfied that a combination of matters establishes the necessary special circumstances[104] for doing so. Those matters include OP’s explanations for the delay, XY’s lack of opposition to the application and the fact that some of OP’s complaints were at least reasonably arguable.
[104]See r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

No grounds have succeeded

However, since, in the end, none of the grounds for relief has been established (albeit partly for discretionary reasons in one case), I must dismiss OP’s application for judicial review.

Orders

The orders of the Court will be that:

(1) the application for extension of time be granted; and

(2) the application for judicial review be dismissed.

Costs

While I shall hear the parties on costs if they so desire, my preliminary view is that, despite XY’s success in defending this application, there should be no order for costs. There are several reasons that, in combination, incline me to that view.

First, usually, costs are not awarded in family violence matters, at least when heard at first instance in the Magistrates’ Court or on appeal to the County Court. Section 154(1) of the FVPA provides that “[e]ach party to a proceeding for [an FVIO] under [the FVPA] must bear the party’s own costs of the proceeding”. While this is an application for judicial review and may not be regarded as “a proceeding for [an FVIO] under [the FVPA]”, I think the general rule that applies in the lower courts should have some relevance to the discretionary decision as to costs even on an application for judicial review.

Secondly, s 154(3)(a) relevantly provides that, despite subsection (1), “the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case”. I am not aware of any exceptional circumstances that would warrant a departure from the general rule in favour of XY.

Thirdly, however, it was XY’s eleventh-hour production of EF’s statement — in the midst of OP’s cross-examination — immediately after lunch on the second day of the appeal that added substantially to the hearing time in the County Court. The afternoon of that second day was lost, as the matter was adjourned off to allow OP’s counsel time to take instructions. Then, on the third day, the morning was taken up with submissions and rulings as to the admissibility of EF’s evidence and the splitting of XY’s case. EF’s evidence took up most of the balance of the third day and a good part of the fourth day. The evidence of GH and XY’s further evidence took up the balance of the fourth day. The fifth day was taken up with the application to abandon the appeal, the submissions as to the duration of the order and inclusion of the child in the order, and the judge’s decisions and orders. While it is difficult to be certain about this, I think that it is likely that, absent EF’s evidence, this case would have concluded in two to three days. A conservative estimate is that the late introduction of EF into the case added about two days’ worth of hearing time and, I would expect, another day of preparation in the interim.

I do not understand that any application for costs was made by either party in the County Court. Whether or not OP might have had an argument for a finding of exceptional circumstances that justified a partial costs order in his favour need not be determined now. However, the foregoing estimates do show that as much as two hearing days and another day of preparation were likely to have been added to the appeal by reason of XY’s production of EF’s statement at the eleventh hour. It will be remembered that this was a statement that XY had had in her possession since prior to the hearing in the Magistrates’ Court and yet — incredibly, in my view — had seen fit to wait until the last minute to disclose it. Had the statement been disclosed in a sensible and timely manner, there may have been a good chance that the appeal would not have proceeded at all.

Fifthly, while I understand that quite a bit of work has gone into this case by XY’s lawyers, not all of that should be sheeted home to OP. True it is that, as well as appearing on two separate hearing days, Ms Wong has provided at least five sets of very helpful written submissions. No doubt, a substantial amount of time and effort has also gone into the preparation of this matter out of court. There are, of course, the pre-hearing steps as well. But some portion of the two hearing days and the additional submissions was prompted by questions from me as part of my role in ensuring that OP’s case was adequately presented. The fifth set of submissions was required, in part, as a result of Ms Wong’s reliance on the wrong version of the FVPA. It would not be fair to apportion all of that work to OP’s application.

Finally, it could not be said that OP’s application was wholly without merit. On the contrary, as I have said, while OP failed to clear the very high hurdle of judicial review, I think the judge’s refusal of the application to abandon his appeal was surprising. An even closer-run thing was whether legal unreasonableness was established in respect of the duration of the order. Also, I have held that the basis on which the judge purported to include the child in the order was beyond jurisdiction. That part of the order was saved only by other factors. One can also see how OP might have been troubled that the judge allowed the release of the transcript of the hearing to his business rival ZZ and that, when queried about whether there was a suppression order in place, her Honour failed to mention s 166 of the FVPA.

Thus, I think it is clear that, when the foregoing matters are all weighed in the balance, there is a strong argument for declining to order costs against OP and in XY’s favour, despite her ultimate success in this Court. Instead, as I say, my present thoughts are that each party should bear his or her own costs.

That said, if, after considering these reasons, either party wishes to argue to the contrary, then I shall receive that argument in writing, at least in the first instance.

Alternative remedy

Finally, despite the dismissal of this application, all is not necessarily lost for OP. As I mentioned in the overview to these reasons, OP potentially does have an alternative remedy available to him. He may apply for revocation or variation of the FVIO.[105] By way of example, a variation could include a reduction in the duration of the order.
[105]See ss 100, 108 and 109 of the Family Violence Protection Act 2008 (Vic).

While the fresh evidence that OP put before this Court has not been sufficient to cause his application for judicial review to succeed, it seems plain enough that at least some of that evidence would provide more than a sufficient basis to grant leave to make such an application.[106] Of course, as I mentioned a little earlier, whether any such fresh evidence might be admissible, and its importance, would be matters for the court hearing the application.
[106]See ss 109(2)(a) and (b) of the Family Violence Protection Act 2008 (Vic).

I think there is an even more important basis for such an application. It is now more than five years since the original application by XY for an FVIO was made. Barring a period of about twelve months when the final FVIO was set aside and reinstated, OP has been subject to either an interim FVIO or a final FVIO in favour of XY since soon after his separation from her. The only evidence of a suggested breach of any such order in the period up to the hearing of the appeal was the inadvertent sending of an email or two via LinkedIn. If it turns out that there has been no other contact in the interim, I dare say that OP would have a powerful case for the revocation of the FVIO.

I hasten to add that, in offering the foregoing, I am still conscious of (what I presume still to be) the position of XY. Indeed, I am reminded of the famous remarks of Rose Fitzgerald Kennedy:

It is sometimes said that “time heals all wounds”. I do not agree. The wounds remain. In time, the mind, protecting its sanity, covers them with scar tissue and the pain lessens. But it is never gone.

That said, while she must have had enormous pride and many great joys in her long and privileged life,[107] sadly, Mrs Kennedy’s wounds were so deep — resulting, as they did, from such grave and profound tragedies — that her pain simply had to be everlasting.
[107]Mrs Kennedy lived to be 104 (22 July 1890 to 22 January 1995). She had an extraordinary life.

None of this is to say that XY would not be entitled to maintain her belief, even over five years on, about the need for an FVIO against OP. On the factual findings made by the judge, the more extreme aspects of OP’s behaviour are likely to be seared into XY’s memory for as long as she lives. But, if it be true that there has been no meaningful contact over these past years, then, even if XY’s thoughts remain the same, it would seem unnecessary and unfair to maintain an FVIO against OP. Thus, while time may not have healed XY’s wounds, its further passage may well have proved the very case that OP ultimately sought to make in the court below.

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[2020] VSC 754

16 November 2020