Peck (a pseudonym) v Weber (a pseudonym) (Ruling)

[2024] VCC 2001

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

APPEALS AND POST SENTENCE APPLICATIONS LIST

ABEL PECK (A PSEUDONYM)	Appellant
v
ANGELINE WEBER (A PSEUDONYM)	Respondent

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JUDGE:	HIS HONOUR JUDGE FRAATZ
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	12 December 2024
CASE MAY BE CITED AS:	Peck (a pseudonym) v Weber (a pseudonym) (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 2001

RULING
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Subject:APPEAL AGAINST FAMILY VIOLENCE INTERVENTION ORDER

Catchwords:              Legal, factual or discretionary error – breach natural justice – counsel unavailable to cross-examine applicant for intervention order – remitted to Magistrates’ Court

Legislation Cited:      Family Violence Protection Act 2008 (Vic)

Cases Cited:AAA v County Court Victoria & Ors [2023] VSC 13; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153; House v The King (1936) 55 CLR 499; Disorganized Developments Pty Ltd v South Australia (2023) 410 ALR 508; Gett v Tabet (2009) 254 ALR 504; WS v Gardin [2015] WASC 97; Jan v Minister for Home Affairs [2019] FCA 1837; de Winter v de Winter (1979) 23 ALR 211; Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety [2022] VSCA 101

Ruling:  Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	The appellant appeared in person	Slink & Keating
For the Respondent	The respondent appeared in person

HIS HONOUR:

1The appellant, Mr Abel Peck,[1] and respondent, Ms Angeline Weber,[2] were formerly in a relationship and have a child together, Ernest,[3] now seven years of age.  They separated in August 2018.  The respondent also has two children to previous relationships, Deanne[4] (sixteen years) and Renato[5] (ten years).

[1]        A pseudonym

[2]        A pseudonym

[3]        A pseudonym

[4]        A pseudonym

[5]        A pseudonym

2On 21 May 2024, pursuant to the Family Violence Protection Act2008 (“Act”), Magistrate Bolger made a final family violence intervention order, until further order, protecting the respondent and each of the children (“Order”).

3An appeal was lodged on 14 June 2024.

4In order to prosecute his appeal, the appellant must first satisfy the Court that the magistrate made a legal, factual or discretionary error in making the Order.

5Pursuant to orders made in this court, the respondent filed a statement of grounds of appeal dated 11 August 2024 in the following terms:

(a)   Ground 1a - the presiding magistrate erred in depriving the appellant of procedural fairness and not allowing the appellant to be represented to challenge the matters relied on;

His undated notice of appeal and written submissions also incorporated a complaint that:

“… the learned Magistrate erred in not allowing legal representative to join the AVL link to explain to the Court as to why counsel was not available and to formally request an adjournment despite numerous emails from the Respondent's Solicitors (allocated by VLA)”[6]

(Ground 1b);

[6]Notice of Appeal, undated, Joint Court Book (“JCB”) 5

(b)   Ground 2 - the presiding magistrate erred in not allowing the appellant to introduce evidence he wished to rely on;  and

(c)   Ground 3 - the presiding magistrate erred in deciding the application proceed without allowing the appellant to be legally represented to allow the opportunity to cross-examine the affected family member.

6This hearing was determined on the basis of written submissions filed by the parties.

Background

7A previous intervention order against the appellant in favour of the respondent and each of her children expired on 2 May 2022. 

8The appellant concedes he has a criminal record in relation to family violence against two ex-girlfriends on separate occasions.[7] 

[7]        Magistrates’ Court Transcript (“T”) 13 at JCB 107

9On 14 September 2023, the respondent made an application for an intervention order, outlining allegations of family violence.

10In March 2024, the appellant obtained a grant of legal aid for the purpose of cross-examining the respondent.[8]  For reasons which are not entirely clear, his counsel was not available at the final hearing.  The appellant stated his barrister was sick.[9]  The magistrate stood the matter down for a period of time, but refused to adjourn the final hearing and it proceeded in the absence of the appellant’s counsel. 

[8]        JCB 9

[9]        T2, Line (“L”) 10 at JCB 96

11At the hearing on 21 May 2024, the respondent adopted the allegations in her application as part of her evidence-in-chief.  Her application stated as follows:

“[[Mr Peck] is my former boyfriend and i have known [him] for 8 years, we have been separated for 5 years. I have 3 children: [Deanne] (16), [Renato] (10) and [Ernest] (7), all children live with me. [Deanne] and [Renato] are my children from previous relationships and [Ernest] is [Mr Peck]’s son. There are no family law orders in place. I have had previous intervention orders against the [Mr Peck] (G12695041) which expired on 2/5/2022, which have been breached on multiple occasions. [Mr Peck] has a problem with drugs and/or alcohol. Incidents of family violence have increased.

On the 11/9/2023 [Mr Peck] called [Deanne], I picked up the phone, he then began abusing and threatening me by saying things like 'it’s all coming to an end you slut, the truth will come out, I’m bringing you down, take me on you slut and you old, pathetic excuse of a mother’. We are in fear of him and feel unsafe.

…

[Mr Peck] stalks us and tries to locate us. We have been forced to leave at least 10 different properties after he has located us. He contacts us every couple of months after stalking my social media (I have blocked him on everything) and also and uses a tracer when contacting us to find where we are. He tells me constantly that he knows where we are, which causes a great amount of fear. When [Deanne] has been on the train she has seen him staring at her, when he has no reason to be there.

He also insinuates things to me that he would not know about if he was not stalking us, such as making comments about my podcast etc.

In December 2022, we were going on holiday to Bali. [Mr Peck] contacted me and said ‘goodluck getting out of the country’. This was after Safe Steps contacted the department of foreign affairs and advised that contacting [Mr Peck] regarding consent for passports etc. Would put us at serious risk and would aggrivate [Mr Peck] and would likely cause further violence.

[Mr Peck] has almost killed me on multiple occasions, bashed me, kicked me, tried to strangle me, tried to hurt me with a metal button, sexually assaulted me, broken my elbow and fingers, cracked my head open, thrown me, dragged me, punched and kicked me, ejaculated on my face without consent and forced me to have sex with him. Since 2015, [Mr Peck] has continually instilled fear in the children and I, we feel like the [Mr Peck] is constantly stalking us and we are we all still live in fear and are suffering PTSD. [Deanne] has serious anxiety and PTSD and is on medication due to the [Mr Peck]’s behaviour. Both myself and [Deanne] have been threatened with systematic abuse. [The applicant] has continued to threaten me on numerous occasions that he is dating DHS workers and he will have my children taken away from me. He has also threatened [Deanne] and said that he will kill me, so she would have to go to an orphanage and would not be able to see her brothers anymore (this was when she was 10 years old). He also threatens court action and taking [Ernest] away from me. [Mr Peck] has previously forced me to give him access to all of my money inclusive of my daughters father’s death benefit, in which he ended up gambling $200,000 and leaving myself and 3 children financially devastated and on the street. This was after being forced to leave at least 10 different properties when he would stalk and locate us. [Mr Peck] currently lies about his income and pays one dollar and thirty four cents a day for his son in child support, although it is obvious that he lives way beyond those means. He has threatened my life on multiple occasions, suggesting that i I talk to much about what he has done and by helping other women escaping violence he suggested that I stop and be quiet, because I was like Princess Diana and he said we all know what happened to her. [Mr Peck] has threatened to kill himself. Whilst we were together and we had all the children in the car, he began threatening to kill us all and started swerving the car. He said that he did not care if he killed himself. I am seeking an interim order for immediate protection.”[10]

(sic)

[10]Application and Summons for an Intervention Order dated 21 May 2024 at JCB 10-11

12At the hearing before Magistrate Bolger, the appellant did not give evidence, instead elected to make a broad statement from the Bar table that, “it was all made up”.[11] 

[11]T10, L17 at JCB 104

13The magistrate permitted the appellant to tender various screenshots of text and other messages upon which he relied to demonstrate that the allegations were untrue. 

14The appellant:

(a)   agreed the Department of Human and Health Services have been involved with the children;

(b)   admitted a history of family violence against two other ex-girlfriends on separate occasions;[12] and

(c)   has had no contact with the children since separation in August 2018, save once with his son, Ernest, on 7 November 2022; and

(d)   conceded his history of committing family violence was a relevant consideration for the Court.[13]

[12]See T13, L16-24 at JCB 107

[13]        T15, L7 at JCB 109

The appeal

15The appeal comes before this court pursuant to s114 of the Act.

16Relevantly, s119 of the Act specifies the following:

“(1)The appeal is by way of a rehearing by the County Court or the Supreme Court.

(2)On the appeal, the County Court or Supreme Court may—

(a)confirm the relevant decision; or

(b)set aside the relevant decision; or

(c)vary the relevant decision and make any other order the Magistrates’ Court or Children’s Court could have made and exercise any other powers that the Magistrates’ Court or Children’s Court may have exercised; … .”

17In the decision of AAA v County Court Victoria & Ors,[14] Dixon J considered the terminology associated with s119, and particularly the meaning of the term “rehearing by the County Court” which appears there. In that case, his Honour held that an appeal under s119 is a broad appeal by rehearing. The features of such a broad appeal are the following:

(a)   that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[15]

(b)   the powers of the appeal court are exercisable only where the appellant can demonstrate the original decisionmaker made some legal, factual or discretionary error;[16]

(c)   the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[17]

(d)   the Court is required to assess and evaluate the evidence for itself.[18]

[14] [2023] VSC 13 (“AAA”)

[15]        AAA at paragraph [50]

[16]        Ibid

[17]        Ibid

[18]        Ibid

18Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this court.  Such error may be proved after an examination of the transcript in the Magistrates’ Court to examine the conduct of the proceeding and any reasons for decision.

19For the purposes of the hearing of this matter, the parties prepared a Joint Court Book. 

Errors of law, fact and discretion

20What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[19]  With that said, established legal principles operate to guide the courts through an assessment of claimed errors.  I turn now to briefly consider those.

[19]        Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

Legal error

21A legal error may arise in the way in which a court:

“… undertakes its fact-finding, or … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning … .”[20]

[20]Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at paragraph [23]

22Appeals operate as a safeguard against these errors to ensure that courts and tribunals operate within their jurisdiction.[21]

[21]        Ibid

Discretionary error

23Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.

24The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[22]

“… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.  … .”

[22] (1936) 55 CLR 499 at 504-5

25As to procedural fairness, the High Court, in Disorganized Developments Pty Ltd and Others v South Australia,[23] recently affirmed:

“… the law has evolved to include an established and ‘strong’ common law presumption, generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness. Consistent with the historical scope of the duty of procedural fairness, the core operation of the presumption requires the provision of procedural fairness where the relevant power directly affects the rights or interests of a particular individual. In such a case, the presumption operates ‘unless clearly displaced by the particular statutory scheme’.”

(Footnotes omitted.)

[23] (2023) 410 ALR 508 at 517, paragraph [33] (per Kiefel CJ, Gageler, Gleeson and Jagot JJ)

Complaints as to conclusion

26Notwithstanding the statutory obligations placed upon appellate courts to scrutinise the evidence, inferences and conclusions before them, the general “tenor” of appellate court decisions on these issues is of a broad respect for the conclusions reached by trial judges.

27To establish that a conclusion of a trial judge was incorrect, it is necessary for an appellant to satisfy the appellate court that the trial judge reached the wrong conclusion by reason of an error of law, fact or discretion, supported by evidence.[24]

[24]        Gett v Tabet (2009) 254 ALR 504 at 511, paragraph [22]

28In Gett v Tabet,[25] Allsop P, Beazley and Basten JJA explained:

“… Where no error can be identified and the conclusion of his Honour is not itself implausible, this court should properly give weight to the view formed by the trial judge, because to do so is to acknowledge the fact that in various respects, his Honour enjoyed a beneficial position in resolving conflicting evidence, drawing inferences and making the ultimate evaluative judgment.”

[25]        Ibid

29In circumstances where an error is identified, to succeed on appeal, it must be established that the identified error puts the validity of the conclusion in doubt.  If the error in question is inconsequential, the fact of the error is not of itself enough for an appeal to succeed.[26]

[26]WS v Gardin [2015] WASC 97 at paragraphs [138]-[139]; see also Jan v Minister for Home Affairs [2019] FCA 1837 at paragraph [48]

30The High Court in de Winter v de Winter[27] clarified the circumstances in which such an error would affect the ultimate decision on appeal:

“… There are many other authorities, from Young v Thomas [1892] 2 Ch 134 at 137 to Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.

It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters.  A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion.  But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it.  The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations.”

[27] (1979) 23 ALR 211 at 217-18

31Finally, where an appeal is brought on the basis that a trial judge ought to have attributed greater weight to certain evidence, or reached an alternative conclusion based on the evidence, it is necessary for the appellant to establish that the conclusion of the primary judge was not open on the material before them.[28]

[28]Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety [2022] VSCA 101 at paragraphs [20]-[21]

Family Violence Protection Act 2008

32The Act defines “family violence” in s5 as follows:

“(1) …

(a)behaviour by a person towards a family member of that person if that behaviour—

(i)is physically or sexually abusive; or

(ii)is emotionally or psychologically abusive; or

(iii)is economically abusive; or

(iv)is threatening; or

(v)is coercive; or

(vi)in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; …”

33The powers of the Court to make a final order are set out in s74 of the Act:

“(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.”

Analysis

34The appellant makes no criticism of the reasoning of the magistrate, which correctly sets out the statutory framework and the definition of family violence.  On the basis of the evidence before her, the magistrate was satisfied that family violence had occurred and, based on the admitted history of family violence and other criminal violence, that it was likely to occur again.

Ground 1a

35This ground is not made out.  The appellant received the benefit of legal representation from March 2024.  Counsel was not briefed to make submissions, lead evidence or take any other part in the hearing, so their absence did not affect the appellant’s defence of the application.  The appellant made submissions on his own behalf, which would not have been different had counsel been available.

36The issue of counsel not being present for the purpose of cross-examination is considered under ‘Grounds 1b and 3’ below.

Ground 2

37This ground of appeal relates to the magistrate refusing to receive evidence in the nature of an historical voice message the respondent had left the appellant.  The relevance of the voice message was never established.  After an exchange between the appellant and the magistrate, Mr Peck concurred with the ruling, “I don’t need to hear that”.[29]  On this basis, Ground 2 also fails.

[29]T12, L6 at JCB 106

Grounds 1b and 3

38In substance, this ground relates to the deprivation of the appellant’s right to test the respondent’s evidence, which provided the basis of the Court’s findings in the first instance. 

39The magistrate exercised her discretion to continue with the hearing in the circumstances of it having been listed for a period of two months, and her not being satisfied with the written explanation provided to her by the appellant’s solicitors.[30] 

[30]        T3 at JCB 97

40It is regrettable Magistrate Bolger did not afford the solicitors on the record to provide the court with an oral explanation via the audio visual link as to counsel’s unavailability and make submissions as to the appropriate course in the circumstances.  Had she done so, it may have avoided error.

41Subject to certain exceptions which are not relevant, a protected witness such as Ms Weber “must not be personally cross-examined by the respondent” in an application for a family violence intervention order.[31]  The Act mandates that a person such as Mr Peck be afforded a reasonable opportunity to obtain legal representation for the purpose of cross-examination, or for Victoria Legal Aid to offer representation for that purpose, as occurred here. 

[31] See s71(3) of the Act

42Section 70(4) of the Act specifically provides that a court must grant an adjournment, if requested, where there has not been a reasonable opportunity to obtain legal representation.

43Here, despite a request, Magistrate Bolger failed to adjourn the final hearing for a short period to allow legal representation by counsel, and even denied the Victoria Legal Aid appointed solicitors an opportunity to be heard as to whether the application ought proceed to final hearing on 21 May 2024.  The material discloses that counsel’s unavailability, due to ill health or scheduling issues, was not caused by the appellant.

44This circumstance deprived the appellant of the opportunity to cross-examine the respondent, which is a patent breach of procedural fairness. The relevant power under the Act to make a final order against Mr Peck directly affects his rights or interests. As the Act specifically provides for an unrepresented person to obtain legal representation for the purpose of cross-examination of the applicant for a family violence intervention order,[32] the statutory scheme has not displaced the right to procedural fairness in this respect. 

[32] See s70 and s71 of the Act

45The question becomes: could this breach of procedural fairness have affected the final result; or was its effect negligible?  Further, in any case, was the conclusion reached correct, notwithstanding the error?

46The practical effect of the hearing continuing needs to be analysed in the following context:

(a)   the respondent gave sworn evidence as to the family violence;

(b)   despite being given the opportunity to do so, the appellant did not give any sworn evidence at the final hearing;[33]

(c)   the appellant admitted previous incidents of family violence, including breaches of previous orders in respect of multiple other partners;

(d)   the appellant admitted he had a history of violence and had only recently been released from prison on a community correction order; and

(e)   the appellant made a statement of general denial of the allegations without any specifics, did not articulate on what basis he might cross-examine and called no other evidence which might have contradicted the allegations. 

[33]        T11, L9 at JCB 105

47The respondent bore the burden of proof in the court below to establish that family violence has occurred. 

48While it is most unfortunate, and may not have altered the outcome, such a fundamental breach of the appellant’s right to test the evidence against him cannot be overlooked.  This court would itself fall into error to engage in speculation as to what course the cross-examination might have taken, however it cannot be said that a careful cross-examination would not have altered the outcome.

49While he admitted certain historical matters, the appellant’s general denial encompassed all of the allegations against him of family violence against the respondent.  His submissions to the Magistrates’ Court were to the effect that the respondent was “the abuser” in the relationship, not him.  At the hearing, Mr Peck indicated he opposed the making of the Order on the basis that “[i]t’s all made up”.[34] 

[34]T10, L17 at JCB 104

50The appellant made a statement as follows:

“… There is no statement to be made, pretty much. [Angeline] has made this all up. There is no evidence. If anything, I have evidence on her. She has an agenda. I have seen her once in five years. [Ernest], the last time I've seen him was 7 November 2020. I've had no contact with her. I've got documents here: she's the one that calls me, even off her daughter's phone. I've got it all here.”[35]

[35]T11, L9-16 at JCB 105

51Examination of the transcript reveals a factual dispute as to whether the appellant called Deanne, or whether Deanne called him, in September 2023.  The respondent gave evidence about this disputed version of events, saying:

“HER HONOUR:

Q:  …

A:Ah, [Mr Peck], ah, had contacted my daughter's phone at approximately 5 am, um, on the - I'm not sure of the exact date in September. Um, we hadn't heard from [Mr Peck] or had any contact from him for, you know, ah, a certain period of months. Um, I was with my daughter when - when the phone rang and he's saying - - -

Q:  When was this?---

A:   This was in September.

[MR PECK]:

I have this document here, Your Honour. [Angeline] called me?---

[MS WEBER:]

A:This was in September, and so I answered my daughter's phone when I saw his name. She's only 16.

Q:  (Indistinct)?---

A:I, um, asked him why he was contacting my daughter. [Mr Peck] tried to say that my daughter contacted him, um, which was highly unlikely, ah, due to the fact that she has severe PTSD because of him and his actions. Um, I was with here (sic) the whole day, so there was no contacting him at all. Um, he then - I then proceeded to, ah, message him and tell him not to contact my daughter on my phone. He then came back at me with, ah, an array of threats and abuse.”[36]

[36]T8, L7-26 at JCB 102

52The magistrate did not challenge the respondent’s evidence about the phone call in September 2023, the other matters in her complaint, or the additional oral evidence[37] upon which the magistrate based her finding that family violence had occurred.[38]  The respondent was denied the opportunity to do so.

[37]        T8 ꟷ T9 at JCB 102-103

[38]        See Reasons at T17 ꟷ T18 at JCB 111-112

53The magistrate had available to her documents relied upon by Mr Peck, including various text or other message exchanges from his mobile phone and a document in relation to the respondent’s allegation as to the appellant gambling away $200,000 of her money.  The magistrate provided the appellant with an opportunity to explain these documents under oath and expose himself to cross-examination,[39] but he declined to do so.

[39]        T10 and T11

54A phone record appeared to show that a missed call had been made from Deanne’s phone to the appellant in September 2023; but also, as alleged by the respondent, that the appellant had then called the number and someone had answered it.  While this tended to support, at least in part, the respondent’s evidence, it is clear the appellant wished to cross-examine the respondent about this and other issues.

55The magistrate, upon confirming the appellant’s basis for opposing the intervention order was “it was all made up”, said as follows:

“HER HONOUR:

Q:All right. But see, I suppose, the disconnect - although I am not in favour of that term - the disconnect between the two positions is I have got the complaint, I have got [Ms Weber] giving evidence as to the complaint, and on the face of it that provides a proper basis for the making of an order.

What I have got from you is not giving evidence, but handing up a series of what are disconnected, it would seem to me, and uncontextualised printouts of exchanges on a phone saying that provides conclusive proof that what has been said in the complaint is not true.

A:   Yes.

And it simply doesn't.”[40]

[40]T14, L4-16 at JCB 108

56As Magistrate Bolger found, without the appellant’s evidence, the messages (which I have reviewed) had no context and certainly did not prove the complaint was untrue.[41]  But the appellant was deprived of the right to put these documents to the respondent.

[41]        T14

57The magistrate did have the benefit of several admissions made by the appellant, including as to family violence being committed against others in the past.  While this may have provided a basis for finding that it might occur again in the future, a final order requires a finding that family violence had occurred against the respondent.

58I am satisfied that Magistrate Bolger made an error in making final orders without providing the appellant a reasonable opportunity to cross-examine the respondent and test her evidence on this issue.  The error cannot be considered immaterial or inconsequential because of the fundamental and universal duty to afford procedural fairness in a final hearing, which affects the rights of a person.  It is not for this court to speculate as to what may have unfolded in cross-examination; the point is the appellant had a right to test the evidence against him, and he was denied that right.  It has put the validity of the conclusion in doubt. 

59The final order ought not be allowed to stand due to the unsoundness of its foundation, based on untested evidence that family violence had occurred.

Conclusion

60As a result of the above findings, I allow the appeal. 

61The parties will be given liberty for a period of fourteen days to make application for any consequential orders.

ORDERS:

1. Appeal upheld.

2.      The Order made at the Magistrates' Court on 21 May 2024 (P11967777) is revoked.

3.     The proceeding is remitted to the Magistrates’ Court for re-hearing.

4.      The interim order made 18 September 2023 is re-instated.

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