OP v XY

In the matter of OP v XY, the applicant sought judicial review of decisions made in proceedings concerning a family violence intervention order (FVIO) made by the Magistrates’ Court. The FVIO was initially made for a period of two years to protect XY from OP. On appeal to the County Court, the applicant sought to abandon the appeal part way through the defence case, a request which was denied by the County Court judge. The applicant later consented to the FVIO without admissions, and the judge extended the duration of the order to 18 years. Additionally, the judge added XY’s unborn child to the FVIO. The applicant argued that the entire proceeding was afflicted with actual or apprehended bias due to the judge’s rulings and findings, and that the judge’s decisions were Wednesbury unreasonable, illogical, procedurally unfair, and failed to properly apply the Briginshaw test, consider relevant matters, or provide adequate reasons.

The court was required to decide whether the refusal to allow the abandonment of the appeal was itself afflicted with bias, Wednesbury unreasonableness, illogicality, procedural unfairness, failure to properly apply the Briginshaw test, or failure to consider relevant matters or inadequate reasons. The court also needed to determine whether the decision to impose the 18-year FVIO was afflicted with similar errors. Additionally, the court had to consider whether the judge’s fresh evidence of authorising the release of the appeal transcript to the applicant’s business rival, without advising of publication restrictions, demonstrated actual or apprehended bias. The court also needed to examine whether the inclusion of the child in the FVIO was supported on another basis, such as the applicant’s consent or lack of opposition at the hearing. Finally, the court had to determine whether fresh evidence going to the credit of a major witness should be admitted on judicial review.

The court found that the application for judicial review was unsuccessful. The applicant’s arguments concerning bias, procedural unfairness, and the judge’s failure to apply the Briginshaw test were not substantiated. The court noted that the applicant’s consent to the FVIO without admissions and the lack of opposition to the inclusion of the child in the FVIO provided sufficient grounds for those decisions. The court also held that the fresh evidence concerning the judge’s actions did not demonstrate actual or apprehended bias. The applicant remained open to seeking leave to revoke or vary the FVIO based on fresh evidence and the lack of contact with XY.

The court dismissed the application for judicial review and made no orders concerning the FVIO. The applicant was, however, still open to seeking leave to revoke or vary the FVIO based on fresh evidence and the lack of contact with XY.