Peters (a pseudonym) v Banfield (a pseudonym) (Ruling)
[2024] VCC 1190
•23 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| APPEALS AND POST SENTENCE APPLICATIONS LIST |
| Austin Peters (aka CLAUDIA PETERS) (a pseudonym) | Appellant |
| v | |
| ELLIE BANFIELD (a pseudonym) | Respondent |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2024 | |
DATE OF JUDGMENT: | 23 August 2024 | |
CASE MAY BE CITED AS: | Peters (a pseudonym) v Banfield (a pseudonym) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1190 | |
RULING
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Subject:FAMILY VIOLENCE PROTECTION ORDER – APPEAL
Catchwords: Appeal against Family Violence Protection Order made in the Magistrates’ Court of Victoria – Principles applicable to determination of whether legal, factual or discretionary error established - Whether intention to intimate, harass or offend relevant to alleged threat - Self-represented Appellant - All grounds of appeal considered regardless of incorrect characterisation as legal, factual or discretionary error
Legislation Cited: Family Violence Protection Act 2008 (Vic), s1, s2, s4, s5, s7, s8, s9, s11, Part 4, Division 1; Part 4, Division 3; s65, s70, s71, s72, s74, Part 4, Division 5; s79, s80, s81, s97, s99, Part 4, Division 9; s119, s121; Evidence Act 2008, s71 and s161
Cases Cited:AAA (a pseudonym) v County Court of Victoria & Ors [2023] VSC 13; House v The King (1936) 55 CLR 499; Azzopardi v Tasman UEB Industries Ltd (1987) 4 NSWLR 139; Lee v Lee (2019) 266 CLR 129; Director of Public Prosecutions v Cormick (2023) 72 VR 451; Metcalf v Permanent Building Society (in liq) (1994) 13 WAR 349; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; Isbester v Knox City Council (2015) 255 CLR 135
Ruling:Appeal against Final Intervention Order made in the Magistrates’ Court at Latrobe Valley on 27 May 2022 dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The appellant appeared in person Mr J James (for cross-examination only) | Victoria Legal Aid |
| For the Respondent | Ms C Reed | Daniel Taylor Lawyers |
Table of Contents
Introduction
Background
Proceedings in the Court below
The text messages sent by Ms Peters
The appeal
The hearing
Statutory framework and applicable principles
Grounds of appeal and supporting material
Characterisation of the grounds of appeal
Legal errors alleged
Factual errors alleged
Errors alleged in the exercise of discretion
Alleged errors to be considered regardless of characterisation
Errors of the type allowing appellate intervention
Analysis
Alleged legal and factual errors
(a) The conduct alleged against Ms Peters does not fall within the definition of “family violence”;
(b) Ms Banfield failed to establish that Ms Peters intended any of the threats made in the text messages to be carried out; and
(d) Hearsay evidence (the text messages) was wrongly admitted into evidence
Were the text messages admissible?
What findings of fact did the learned Magistrate make about the text messages?
Did the evidence support a finding that as a matter of law Ms Peters had committed family violence?
(c) There was an apprehension of bias on the part of the learned Magistrate requiring the Magistrate to have recused herself
Other alleged factual errors
Alleged discretionary error
Conclusion and Orders
HER HONOUR:
Introduction
1This is an appeal against the decision of the Magistrates’ Court at Latrobe Valley on 27 May 2022, making a Family Violence Intervention Order against Austin Peters.[1]
[1]A pseudonym
Background
2The appellant, Austin Peters, also known as Claudia Peters (“Ms Peters”),[2] and the respondent, Ellie Banfield (“Ms Banfield”),[3] were living together in a domestic relationship between approximately March 2019 and February 2020. Following the breakdown of the relationship, Ms Peters left the home, leaving some of her belongings behind.
[2]The appellant is Austin Peters, also known as Claudia Peters (a pseudonym). Although referred to as Mr Peters in the proceedings in the Court below, Austin Peters has since expressed a desire to be addressed as Claudia Peters, prefers the pronouns “she/her” and prefers to be addressed as Ms Peters rather than Mr Peters.
[3]A pseudonym
3Arrangements were made for Ms Peters to collect her belongings, however, Ms Peters claimed that some of her belongings were never returned. Ms Banfield disputes this assertion, claiming that all of Ms Peters’ belongings were returned or made available for Ms Peters to collect.
4Ms Peters felt aggrieved and believed that Ms Banfield was still in possession of her property. This led to Ms Peters engaging in various forms of conduct designed to retrieve her belongings. In particular, Ms Peters sent a number of text messages to Ms Banfield and to Ms Banfield’s new partner, the substance of which the learned Magistrate found to be threatening, thus constituting “family violence”. The text messages sent to Ms Banfield are contained in “Annexure A” to Ms Banfield’s original material filed in support of her application for an intervention order in the Magistrates’ Court. I shall set out the text of some of these messages later. The text messages sent to Ms Banfield’s new partner are contained in “Annexure B”. I shall also refer to some of these messages below.
5It should be noted that in the Court below, Ms Peters conceded that she had sent the messages.[4]
[4]Transcript of proceedings in the Magistrates’ Court (“MCT”) 24 May 2022, page 19
6In the proceedings at first instance, Ms Banfield also suggested that Ms Peters had loitered around Ms Banfield’s premises. There appears to be discussion of this in the messages exchanged between Ms Peters and Ms Banfield’s partner, as shall later be seen.
7A further exhibit, “Annexure C” in the Court below, was tendered before me. It contains messages apparently sent by Ms Peters in Ms Banfield’s name to the National Disability Insurance Agency. I do not propose to refer to these messages.
8It was the nature of this conduct that formed the basis of Ms Banfield’s application for an intervention order under the Family Violence Protection Act 2008 (Vic) (“the Act”).
9In the present proceedings, all of the material that was available to the learned Magistrate was made available to this Court, as was the transcript of the proceedings in the Court below.[5]
[5]A recording error occurred and an early part of Ms Banfield’s evidence was not recorded or transcribed. The parties did not seek to establish the content of Ms Banfield’s evidence given during the period in which the recording malfunctioned.
Proceedings in the Court below
10In support of her application in the Court below, Ms Banfield (applicant in those proceedings, respondent in these proceedings) stated:
“THE RESPONDENT [Applicant in these proceedings] IS MY EX-PARTNER WHO I HAVE KNOW FOR TWO YEARS. WE HAVE BEEN SEPARATED FOR 1 YEAR. DURING MARCH 2021, THE RESPONDENT HAS BEEN USING THE TRARALGON POLICE, CONSTANTLY RESENDING THEM LETTERS ABOUT HIS MISSING PROPERTY (THAT I AM APPARENTLY IN POSSESSION OF) AND THREATENING THAT THEY’LL TO LOSE THEIR JOBS IF THEY DO NOT CONTACT ME AND ASK ABOUT HIS MISSING PROPERTY. THIS IS THE LATEST WAY THE RESPONDENT HAS ATTEMPTED TO GAIN ACCESS TO MYSELF SINCE I HAVE BLOCKED ALL OTHER FORMS OF COMMUNICATION DUE TO HIM HARASSING ME EVEN AFTER I HAD INFORMED HIM THAT I WISHED TO NO LONGER BE IN COMMUNICATION WITH HIM. THE RESPONDENT ALSO GAINED INFORMATION ABOUT MY FIANCE AND CONTACTED HIM TRYING TO TURN MY HIM ON ME. MY FIANCÉ ALSO ASKED THE RESPONDENT NOT TO CONTACT HIM. THE RESPONDENT CONTINUED UNTIL MY FIANCE BLOCKED HIS MOBILE NUMBER. THE RESPONDENT HAS BEEN CONTACTING MYSELF VIA SOCIAL MEDIA AND TEXT MESSAGE AT REGULAR INTERVALS SINCE FEBRUARY 2020, WHEN I GAVE HIM TWO WEEKS NOTICE TO REMOVE HIMSELF AND HIS THINGS FROM THE PLACE THAT WE WERE BOTH RESIDING IN. AT FIRST IT WAS REASONABLY CIVIL BETWEEN US UNTIL I RE-PARTNERED, AND INSISTED ON WAITING FOR MELBOURNE’S LOCKDOWN TO BE LIFTED FOR HIM TO COLLECT THE REMAINDER OF HIS THINGS. WHEN I RETURNED THE ITEMS, I INSTRUCTED HIM THAT I NO LONGER WANTED HIM TO CONTACT ME AS THE IS NO REASON TO BE IN CONTACT ANY FURTHER (I SAID THIS BECAUSE DESPITE MYSELF BEING RE-PARTNERED HE WAS ATTEMPTING TO CONVINCE ME TO RESTART THE RELATIONSHIP WITH HIM). HE HAS CONTINUED TO INCREASE IN THE CONTACT WITH BLACKMAIL AND EXTORTION THREATS TO MYSELF AND EVERYONE INVOLVED IN MY LIFE. HE HAS ALSO REPEATEDLY GONE TO MY PLACE OF RESIDENCE IN TRARALGON AND HAS BEEN SEEN AROUND BAIRNSDALE WHERE I STAY PART OF THE TIME WITH MY CURRENT PARTNER. HE HAS ALSO ADMITTED VIA TEXT TO MY PARTNER THAT HE HAS BEEN WATCHING MY PLACE OF RESIDENCE IN TRARALGON. HE HAS THREATENED TO RUIN MY FAMILY’S LIVES, MY NEW PARTNER’S LIFE, MY DAUGHTER’S LIFE (WITH ENABLING HER BIOLOGICAL FATHER TO GET FULL CUSTODY OF HER) AND MY LIFE. … HE WOULD THREATEN HIS OWN LIFE IN FRONT OF MY DAUGHTER IF I REFUSED TO DO ANYTHING FOR HIM (INCLUDING SEX, COOKING, CLEANING OR BUYING THINGS FOR HIM). HE SWORE AT MY DAUGHTER ONCE BECAUSE SHE WAS APPARENTLY TO NOISY WHEN HE WAS JUST ANGRY WITH ME. HE HAS THREATENED THAT IF I EVER CAUSED HIM MENTAL OR PHYSICAL HARM HE WILL SEND BOTH SIDES OF LAW (MOTORBIKE GANGS AND POLICE) ONTO MYSELF AND MY FAMILY.
(sic)
11An Interim Order was made on 18 March 2021 in the Magistrates’ Court at Latrobe Valley under the Act.
12A request for further and better particulars was made by the solicitors then acting on behalf of Ms Peters. Ms Banfield answered those particulars consistently with the allegations contained in her application. Ms Peters responded to Ms Banfield’s answers by admitting some of the assertions but denying others.
13The final hearing commenced before her Honour Magistrate Ms Collins in the Magistrates’ Court at Latrobe Valley on 24 May 2022 and concluded on 27 May 2022. Both Ms Peters and Ms Banfield were legally represented.
14Both Ms Banfield and Ms Peters gave evidence before her Honour. A number of documents including the ones to which I have referred were tendered in evidence.
15Critical to the application was the content of the text messages sent by Ms Peters to Ms Banfield and later to Ms Banfield’s new partner after Ms Banfield had blocked Ms Peter’s messages. It is necessary to refer to some of the text messages.
The text messages sent by Ms Peters
16I shall first refer to a select number of text messages that Ms Peters admitted sending to Ms Banfield as contained in Annexure A:[6]
[6]MCT 39
(a) 13 December 2020:
10.45am
“I have so much missing still but I guess I’ll just have to go to the police as everything I have is catalog[u]ed with receipts so I’ll just have to say it’s theft due to everything I owned is insured and under a business name.”
11.39am
“… I have so much stuff you haven’t given me back you better give me everything back or I’m putting in a police report and laying charges of therefore and honestly I don’t want to as it won’t help you with your current court case do the right thing and give me my stuff back or I’ll be forced to do the extreme I thought you were going to do the right thing by giving me my stuff and you haven’t done that.
So let me know if you’re going to do the right thing otherwise I filling the report now please do the right thing.”
2.35pm
“I have a huge list of every single thing missing as I have everything catalog[u]ed in a database cause I don’t want to have to go to the police but if I have to I will and anyone involved that’s around you can be charged with being a[n] accessory which will not work well so please I beg you to do the right thing I have everything including receipts diary journals even the messages stating I’ll get all my stuff back and it will show I’ve been trying to get my stuff back so it’s really one siding please let’s organise so I can get the last of my stuff back but if it goes to police I have no other choice but to take the matter to them please give everything I own back.”
(b) 15 December 2020:
4.21pm
“I’ve got the police report and the theft charges and everything ready to go to police as you seem unwillingly to respond or do the right thing about giving my stuff back so I’ll be taking that in soon.
Also just for your information I have been contacted and been asked to write an affidavit for the court for your court case about you and [Sofia][7] and your influence and everything about what goes on behind closed doors, I haven’t responded or decided whether I’ll do it but I thought I’d let you know.
[7]A pseudonym
If you decide to do the right thing message me and we can organise when to collect the last of my stuff.
I don’t have a car I’ll be relying on my dad.”
(c) 18 December 2020
12.32pm
“Tomorrow I’m going to the police with the signed statement and my parents are also going to be wanting to put a statement against you as well do to some of my things that belong to me that you haven’t given back … there’s as well as mine so you really need to wake up and do the right thing because if you get charged your looking up to almost 2 years in jail and/or $40000 in fines and you can lose a lot more then that so please do the right thing.”
5.58pm
“I shall go to cop shop tomorrow put all paperwork in Vic housing have been notified about the stolen property and they don’t have a legal leg to stand on cause they own the house there for it’s a worse situation for you.
All my family and friend in the area are notified.
My parents are planning to go to the police and courts.
And I’ve been notified and if you don’t do anything soon everyone you know even the court case will learn everything because I’m not a liar and never once told a lie to anyone therefore nothing but the truth will be revealed so it comes down to you doing the right thing otherwise everything gets messy cause obviously that’s the way you want things.
And the thing is you holding stolen property everyone you have around you family and friends know about the stuff they can all be held accountable for your actions.
Police solicitors court judges remember there my family you don’t mess with the law you’re lucky I’m going around this the right way and not the other way.”
(d) 21 December 2020
4.05pm
“Are you going to do the right thing as everything will come out and if you don’t give me my stuff back I’ll be forced to take severe action.”
5.30pm
“This is your last and final chance to return and give back all my stuff otherwise you’ll get charged and so will everyone around you which means there accessories to the theft, which means everyone who has a wwcc [scil Working With Children Certificate] will lose it everyone who has a job which means your dad will struggle to ever get another job due to a criminal record you won’t ever get to work in your field due to the work you want to do can’t have a criminal record everyone will be investigated and charged you even at risk of losing all funding such as ndis for [Sofia] and other funding you can even lose your house so tell me what it’s going to be is it worth it losing everything and bringing everyone around you down make the right choice and give all my stuff back and I mean absolutely everything I know what you’s have and are refusing to give back due to everything ... And you can lose a lot more cause if you remember you put yourself down as someone who supports me on my ndis plan, so things will get very rocky and hard and can ruin your family’s life by not returning my stuff is it really worth it destroying lives, you could even lose [Sofia] the way you are going, after all all you and your family did to me was what you did to [Zach][8] and I’ve been asked to put an affidavit in revealing the truth and everything about how you’s were with me and what you’d say and do about [Zach] including you asking me to get him dealt with by the bikies I have everything proving it all but that all depends on if your return everything of mine back to me so smarten up and do the right thing and give me my stuff cause it’s really not worth it that you’re doing what you’re doing remember the more you see and ignore my messages the more guilty you become in the eyes of authority such as police and court so are you going to wake up and give all my stuff back and if you do don’t put it on the street as that is also against the law it’s classified as getting rid of evidence and evidence tampering and makes the charges of theft worse and can ruin everyone’s lives because of your decisions.
[8]A pseudonym, also referred to as Zachary
The list of things of stuff that’s mine that I want back from you that’s mine and you legally don’t have a say over it as my family will know what’s mine also you don’t have a legal leg to stand on so you be reply and smarten up and organise a time that suits us both so I can get my stuff back as soon as possible cause remember if I elevate it any higher you and everyone around you lives will be ruined so don’t be stupid.
…
I have tons of stuff still to add that you haven’t returned and I want my stuff back as well otherwise I will be going to Traralgon next week to go down to the police station and giving them every single detail to everyone involved that knows about my stuff and you’ll all be getting charged and honestly is it worth ruining everyone’s life I hope to get a reply from you cause I’ll see if my dad will bring me down tomorrow to get all my stuff if you do the right thing and it means not outing anything on the natures trip till I get there otherwise charges will still be laid for contempt and remember if I have to go down to the police station to get involved everything will get worse as my parents will rip through you with the charges they want to lay against you all, my dad was a cop and lost of legal reps are in my family so I know what can happen and don’t forget about you asking me to get bikies to deal with [Zach] I have the evidence and I wonder what will happen if I was to let the courts know what you tried to do to avoid court and dealing with him.”
(e) Date and time unknown
“Just think about it carefully cause if I come to Traralgon with this final statement to the police who will act on it immediately to solve it just remember if yous don’t reply or do the right thing I will have a written affidavit statement that once it’s signed I will take to [Zach] revealing the truth about you and your family discussing the court case with others as well speaking lies and causing a lot of crap I was with you for over a year and I know enough that will turn the court case right round and you and your family can be held in contempt as well as many other charges due to the amount of laws broken and acts that been broke because of what’s been done and said as well as everything you told me, remember I’m not someone to be fucked with I know the ins and outs of court and law and my rights and there is a fair bit or jail time and everyone around you losing quite a lot so please do the right thing.
So I hope I get your decision soon because my family won’t let up neither will the government workers and NDIS workers or my support workers for my welfare coordinator who are backing my case, your in a position none of you or your people around you can win it’s a lost cause so please do the right thing I’m begging you cause it’s my workers who have help guide me to this point if you want to lose everything that has made you happy and have nothing to live for then go ahead keep doing what you’re doing cause you will lose everything I even have the housing Victoria on my side once I put the statement in you’ll lose the house and you’ll end up being investigated by dhs your going to lose everything and I don’t want to do it but if you continue like this and I have no other choice I am begging you to do the right thing it’s not worth it that you’re doing this cause you’re destroying yourself and everyone else including there futures, and if I end up doing the last resort doing a statement for you know who everything is going to turn against you because you will be fighting 2 court cases that you will have no chance of winning either.
Cause the way you are going the final hearing in March ain’t gonna go to well for you as you will be destroyed in the eyes of the court you and your family won’t be safe so you’re screwed unless you do the right thing.
Well with no response I’m sending [Zachary] & his lawyer the draft as well and will forward the draft to your lawyers as well as getting the affidavit signed and dropped off to [Zach].
Checkmate hook line and sinker.”
(f) 21 December 2020:
4.26pm [apparently sent from Ms Peter’s mother’s phone]
“[E] [scil Ms Banfield – this is the initial of Ms Banfield’s first name]
Just to let u know we are taking action now with police that [Austin] has stuff missing and stuff your parents have at their place a letter will be given to Traralgon police to take action Plus money that [Austin] earned from your uncle business to take. Which is stealing I do know that u have taken it because [Austin] had to ask for money But you mentioned this to my sister u too money for [Sofia] school stuff so I hope to be getting this sorted or goes to police of theft.”
17As mentioned, Ms Peters also sent a number of text messages to Ms Banfield’s new partner after Ms Banfield had “blocked” Ms Peters from sending messages. A copy of the text messages was marked as “Annexure B” in the Court below. Ms Peters admitted in the Court below that she had sent those messages.[9] Annexure B contains the following messages:
[9]MCT 40
·date and time unknown
“You’ve all fucked how you’ve now destroyed yours and everyone’s lives around you.
Cause the way you are going the final hearing in March ain’t gonna go to well for you as you will be destroyed in the eyes of the court you and your family won’t be safe so you’re screwed unless you do the right thing.”
[appears to be a copy of message sent to Ms Banfield]
·date and time unknown
“So I hope I get your decision soon because my family won’t let up neither will the government workers and NDIS workers or my support workers for my welfare coordinator who are backing my case, your in a position none of you or your people around you can win it’s a lost cause so please do the right thing I’m begging you cause it’s my workers who have help guide me to this point if you want to lose everything that has made you happy and have nothing to live for then go ahead keep doing what you’re doing cause you will lose everything I even have the housing Victoria on my side once I put the statement in you’ll lose the house and you’ll end up being investigated by dhs your going to lose everything and I don’t want to do it but if you continue like this and I have no other choice I am begging you to do the right thing it’s not worth it that you’re doing this cause you’re destroying yourself and everyone else including there futures, and if I end up doing the last resort doing a statement for you know who everything is going to turn against you because you will be fighting 2 court cases that you will have no chance of winning either.”
[appears to be a copy of message sent to Ms Banfield]
·date and time unknown
“You [E] her parents [Rachel][10] all her friends she has spoken to everything is being released in court including everyone being investigated Including asking me to get [Zach] murdered.
[10]A pseudonym
You speak to [E] ASAP I want my stuff back …
I’ve been trying for ages being piece full but I have no other choices now and everyone is now an accessory to the fact I have multiple workers backing me up that night you visited [E] for the first time the day before I stayed there I was asleep in the same bed and I was forced out and couldn’t grab all my stuff in time for you to arrive because I was there for work.”
·date and time unknown
“This is your last and final chance to return and give back all my stuff otherwise you’ll get charged and so will everyone around you which means there accessories to the theft, which means everyone who has a wwcc [scil Working With Children Certificate] will lose it everyone who has a job which means your dad will struggle to ever get another job due to a criminal record you won’t ever get to work in your field due to the work you want to do can’t have a criminal record everyone will be investigated and charged you even at risk of losing all funding such as ndis for [Sofia] and other funding you can even lose your house so tell me what it’s going to be is it worth it losing everything and bringing everyone around you down make the right choice and give all my stuff back and I mean absolutely everything I know what you’s have and are refusing to give back due to everything ... And you can lose a lot more cause if you remember you put yourself down as someone who supports me on my ndis plan, so things will get very rocky and hard and can ruin your family’s life by not returning my stuff is it really worth it destroying lives, you could even lose [Sofia] the way you are going, after all all you and your family did to me was what you did to [Zach] and I’ve been asked to put an affidavit in revealing the truth and everything about how you’s were with me and what you’d say and do about [Zach] including you asking me to get him dealt with by the bikies I have everything proving it all but that all depends on if your return everything of mine back to me so smarten up and do the right thing and give me my stuff cause it’s really not worth it that you’re doing what you’re doing remember the more you see and ignore my messages the more guilty you become in the eyes of authority such as police and court so are you going to wake up and give all my stuff back and if you do don’t put it on the street as that is also against the law it’s classified as getting rid of evidence and evidence tampering and makes the charges of theft worse and can ruin everyone’s lives because of your decisions.
The list of things of stuff that’s mine that I want back from you that’s mine and you legally don’t have a say over it as my family will know what’s mine also you don’t have a legal leg to stand on so you be reply and smarten up and organise a time that suits us both so I can get my stuff back as soon as possible cause remember if I elevate it any higher you and everyone around you lives will be ruined so don’t be stupid.
…
I have tons of stuff still to add that you haven’t returned and I want my stuff back as well otherwise I will be going to Traralgon next week to go down to the police station and giving them every single detail to everyone involved that knows about my stuff and you’ll all be getting charged and honestly is it worth ruining everyone’s life I hope to get a reply from you cause I’ll see if my dad will bring me down tomorrow to get all my stuff if you do the right thing and it means not outing anything on the natures trip till I get there otherwise charges will still be laid for contempt and remember if I have to go down to the police station to get involved everything will get worse as my parents will rip through you with the charges they want to lay against you all, my dad was a cop and lost of legal reps are in my family so I know what can happen and don’t forget about you asking me to get bikies to deal with [Zach] I have the evidence and I wonder what will happen if I was to let the courts know what you tried to do to avoid court and dealing with him.”
[appears to be a copy of message sent to Ms Banfield]
·date and time unknown
“She is going to ruin everyone’s lives if she doesn’t smarten up.”
18Ms Banfield’s partner responded to the above message:
“Question is how you have my number?”
19Ms Peters replied:
“Only explanation is she left it on my phone cause she was using it with her SIM card up until before she met you cause I was there every day almost when she broke up with me. … .”
20Ms Banfield’s partner replied:
“Try again. That’s not how you got my phone number. Maybe it’s got something to do with how you got my full name and birthdate to look me up on snapchat and try friending me. Is it a coincidence that you did that the day after [Zach] was informed of the same information through the court documents?”
21Thereafter, a series of text exchanges between Ms Peters and Ms Banfield’s partner ensued. In those messages, Ms Peters indicated that she had been advised to send the messages to both Ms Banfield and her partner. The exchange ended with Ms Peters sending this message:
“If I get all my stuff back all of it will be Called off all references all statements will all be gotten rid of and destroyed and once I have all my stuff every single thing of mine I will be gone out of your lives for good all contact information everything disposed of.”
(sic)
22On 27 May 2022, her Honour Magistrate Collins made a Final Intervention Order against Ms Peters. The Order was expressed to expire at midnight on 27 May 2025 unless extended or varied prior to that time. The Order was made in the following terms:
“The Court orders that the respondent must not:
1.Commit family violence against the protected person(s).
…
2. Intentionally damage any property of the protected person(s) or threaten to do so.
3.Attempt to locate, follow the protected person(s) or keep him/her/them under surveillance.
4.Publish on the internet, by email or other electronic communication any material about the protected person(s).
5.Contact or communicate with a protected person by any means.
6.Approach or remain within 5 metres of a protected person.
7.Go to or remain within 200 metres of [address in Traralgon specified] or any other place where a protected person lives, works or attends school/childcare.
8.Get another person to do anything the respondent must not do under this order.
9.The respondent may:
(c) communicate with a protected person through a lawyer or mediator;
BUT ONLY if the respondent does not commit family violence while doing so.”
23In her ex tempore reasons for making these orders, the learned Magistrate stated that she accepted Ms Banfield’s evidence. Her Honour found that Ms Peters remained of the belief that Ms Banfield was still in possession of Ms Peters’ property and was refusing to return it. She found that Ms Peters’ insistence on having the property returned commenced as soon as she became aware that Ms Banfield was in a new relationship. “So, it is clearly from that point on that Mr Peters decided that he had to take other actions to get his property back.”[11]
[11]MCT 69
24Her Honour did not appear satisfied with Ms Peters’ evidence, noting that when cross-examined about the threatening nature of the messages, Ms Peters “either denies or says he cannot remember sending that message, but yet earlier in the evidence, he was clearly confirming that those messages were actually sent by him”.[12]
[12]MCT 69
25Her Honour rejected Ms Peters’ explanation that she had been advised by police before sending some of the messages, finding: “That does not seem plausible at all.”[13]
[13]MCT 69
26Her Honour stated in her reasons:
“I accept, therefore, and [Ms Banfield] has given evidence, and that was not disputed that getting these messages from, [Mr Peters], caused her much distress.”[14]
[14]MCT 70
27Addressing Ms Peters directly, her Honour continued:
“There is a significant amount of messages that you sent, and then again when she blocked your number, you then resorted to contact her through her new partner. So, it seems to me, [Mr Peters], you are persistent in wanting to keep in contact with [Ms Banfield]. I know you have told me now you do not wish to have any contact with her, but it seems to me you are still concerned about what you perceive to be the property she has in her possession.
So, I am going to grant an intervention order, And I am going to make it for a three-year period to ensure that there is simply no chance of you ever deciding that it is appropriate to again contact [Ms Banfield] in relation to this matter regarding the return of property. I will make it clear in that order that you can have contact with [Ms Banfield] through a lawyer, but it is only through a lawyer. There is to be no other contact with her regarding the return of this property.
So, on the balance of probabilities, I have found that there have [been] instances of family violence particularly in relation to when the end of the relationship occurred. When [Ms Banfield] re-partnered, [Mr Peters] then took it upon himself to send numerous messages to [Ms Banfield] which she clearly gave evidence caused her some distress, they were repetitive in nature, and they were threatening in nature. I doubt that the police would advise to send bikies around, and there is clearly a number of messages there, [Mr Peters], including issues in relation to I do not want anything to happen to [Sofia] [Ms Banfield’s daughter] that a mother would only take on as a threat to the safety of her daughter.
So, I do believe those messages are threatening in nature, or there is an implied threat in relation to those messages. That is the family violence. I think you are convinced she still has the property, and I think you wish to persist in returning that property, so I believe there is a likelihood if I do not put an order in place that the contact will continue. So, you – – – … .”[15]
[15]MCT 70
28At this point, Ms Peters, who was participating via a videolink, interjected:
“You shall be held in contempt because you are as corrupt as dog shit. I’m appealing this right away. Thank you, goodbye.”
29With that, Ms Peters abruptly terminated her videolink to the Court.
The appeal
30By Notice of Appeal dated 20 June 2022, Ms Peters appealed against the decision to make the Final Intervention Order.
31The hearing of the appeal was adjourned on multiple occasions following the determination of the Supreme Court in AAA (a pseudonym) v County Court of Victoria & Ors (“AAA”)[16] so that transcript of the proceedings in the Court below could be obtained. There were also a number of adjournments granted at Ms Peters’ request.
[16][2023] VSC 13
The hearing
32The matter came on for preliminary hearing before me on 28 June 2024. The purpose of the hearing was to determine whether the matter could proceed to final hearing, as I shall explain below.
33Ms Peters represented herself. Mr J James appeared for the limited purpose of cross-examination of Ms Banfield should that become necessary.
34Ms C Reed appeared on behalf of Ms Banfield.
Statutory framework and applicable principles
35The circumstances in which a court may make family violence intervention orders is governed by the Act.
36Under s42 of the Act, an application for an order under the Act must be made at the Magistrates’ Court.[17]
[17]Or where appropriate, in the Children’s Court
37The purpose of the Act is set out in s1:
“The purpose of this Act is to—
(a)maximise safety for children and adults who have experienced family violence; and
(b)prevent and reduce family violence to the greatest extent possible; and
(c)promote the accountability of perpetrators of family violence for their actions.”
38How the purpose of the Act is to be achieved is set out in s2:
“This Act aims to achieve its purpose by—
(a)providing an effective and accessible system of family violence intervention orders and family violence safety notices; and
(ab)providing for the sharing of information that is relevant to assessing and managing a risk of family violence; and
(b)creating offences for contraventions of family violence intervention orders and family violence safety notices; and
(c)providing a framework for achieving consistency in family violence risk assessment and family violence risk management.”
39A number of terms are defined in s4. Relevantly, the interpretation section provides:
“affected family member means the following persons—
(a)a person the subject of an application for a family violence intervention order to protect the person or the person’s property;
…
contested application means an application the subject of a contested hearing;
contested hearing, in relation to an application under this Act, means a hearing by a court in which a party to the proceeding is contesting the final determination of the application;
…
court means—
(a) the Magistrates’ Court; or
(b) if the application is being dealt with in the Children’s Court, that court;
…
domestic partner has the meaning set out in section 9;
…
economic abuse has the meaning set out in section 6;
emotional or psychological abuse has the meaning set out in section 7;
exclusion condition has the meaning given by section 82;
…
family member has the meaning set out in section 8;
family violence has the meaning set out in section 5;
family violence intervention order has the meaning set out in section 11;
…
final order has the meaning set out in section 11;
…
interim order has the meaning set out in section 11;
…
party, to a proceeding under this Act, includes—
(a) the affected family member or protected person for the proceeding, whether or not the person is the applicant for the proceeding; and
(b) if the affected family member or protected person is not the applicant for the proceeding, the applicant; and
(c) the respondent for the proceeding or the respondent who is the subject of an order made in the proceeding;
…
property, in relation to a family member, includes—
(a) property of the family member; and
(b) property that is situated in premises in which the family member lives or works whether or not it is the family member's property; and
(c) property that is being used by the family member whether or not it is the family member's property;
protected person means a person who is protected by a family violence intervention order or a family violence safety notice or a recognised DVO;
…
respondent means the following persons—
(a) a person against whom—
(i)an application for a family violence intervention order has been made; or
(ii) a family violence intervention order has been made;
…
safety means safety from family violence.”
40“Family violence” is defined in s5:
(1) For the purposes of this Act, family violence is—
(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; or
(b)behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).
…
(2)Without limiting subsection (1), family violence includes the following behaviour—
(a)assaulting or causing personal injury to a family member or threatening to do so;
(b)sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;
(c)intentionally damaging a family member's property, or threatening to do so;
(d)unlawfully depriving a family member of the family member's liberty, or threatening to do so;
(e)causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.
(3)To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.”
41Section 7 of the Act defines the terms emotional or psychological abuse:
“For the purposes of this Act, emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.
42Section 8 relevantly defines the meaning of “family member”:
“(1)For the purposes of this Act, a family member, in relation to a person (a relevant person), means—
(a)a person who is, or has been, the relevant person’s spouse or domestic partner; or
(b)a person who has, or has had, an intimate personal relationship with the relevant person; or
(c)a person who is, or has been, a relative of the relevant person; or
(d)a child who normally or regularly resides with the relevant person or has previously resided with the relevant person on a normal or regular basis; or
(e)a child of a person who has, or has had, an intimate personal relationship with the relevant person.”
43“Domestic partner” is defined in s9(1)(b) to include:
“an adult to whom the person is not married but with whom the person is in a relationship as a couple where one or each of the persons provides personal or financial commitment and support of a domestic nature for the support of the other person.”
44Section 11 defines the meaning of “family violence intervention order”, “final order” and “interim order”:
“(1)For the purposes of this Act, a family violence intervention order means—
(a)a final order referred to in subsection (2); or
(b)an interim order referred to in subsection (3).
(2)For the purposes of this Act, a final order is an order made under section 74, 76, 77, 77A or 77B and includes—
(a)an order made under section 74, 76, 77, 77A or 77B as varied under section 100, 119(2)(c) or 173(2); and
(b)an order made under section 74, 76, 77, 77A or 77B as extended under section 106 or 107; and
(c)an order made under section 74, 76, 77, 77A or 77B and confirmed on appeal to the County Court or Supreme Court.
(3)For the purposes of this Act, an interim order is an order—
(a)made under section 53, 53AA or 53AB, including an order made under section 53, 53AA or 53AB as varied under section 100; and
(ab)made under section 60B or 60C, including an order made under section 60B or 60C as varied under section 100; and
(b)made under section 101 that varies a family violence intervention order.”
45Division 1 of Part 4 of the Act sets how an application for an order is to be made and who may apply for such an order. There is no dispute that Ms Banfield was entitled to make application for orders under the Act as an “affected family member” as defined.
46Division 3 of Part 4 sets out the procedure applicable to family violence protection order hearings.
47Section 65 of the Act provides:
“(1)Subject to this Act, in a proceeding for a family violence intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.
Note
This section does not apply to a proceeding for an offence under this Act.
(2)The following provisions apply to a proceeding for a family violence intervention order—
(a)sections 13, 30, 31 and 41 and Part 3.10 of the Evidence Act 2008;
(b)Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958.
Note
Section 13 of the Evidence Act 2008 provides for circumstances in which a person lacks capacity to give evidence. Section 30 of the Evidence Act 2008 provides for a witness to give evidence through an interpreter. Section 31 of the Evidence Act 2008 provides for the giving of evidence by a witness who is deaf or mute. Section 41 of the Evidence Act 2008 provides for the court's powers to disallow improper questions. Part 3.10 of the Evidence Act 2008 provides for the application of privileges. Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958 provides for confidential communications in relation to proceedings with respect to sexual offences.
(3)The court may refuse to admit, or may limit the use to be made of, evidence if the court is satisfied—
(a) it is just and equitable to do so; or
(b)the probative value of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party or misleading or confusing.”
48Section 66 permits evidence to be given by affidavit or sworn or affirmed statement. Section 69 allows for the making of alternative arrangements to be made for hearings, such as from a remote facility.
49Sections 70 to 72 create special rules in relation to the cross-examination of protected witnesses. In the Court below, both parties were legally represented.
50Division 4 of Part 4 deals with the Court’s power to make final orders:
“74 Power of court to make final order
(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.”
51Division 5 of Part 4 sets out the conditions that may be included in an order under the Act.
“79 Definition
In this Division—
residence, in relation to a protected person, means a place of residence that is shared, has been shared or is proposed to be shared by the person and the respondent for the application for a family violence intervention order.
80Safety of affected person and children paramount in deciding conditions
In deciding the conditions to be included in a family violence intervention order, the court must give paramount consideration to the safety of—
(a)the affected family member for the application for the family violence intervention order; and
(b)any children who have been subjected to the family violence to which the application relates.
81 Conditions to be included in family violence intervention order
(1)The court may include in a family violence intervention order any conditions that appear to the court necessary or desirable in the circumstances.
(2)Without limiting subsection (1), a family violence intervention order may include conditions—
(a)prohibiting the respondent from committing family violence against the protected person; and
(b)excluding the respondent from the protected person's residence in accordance with section 82 or 83; and
(c)relating to the use of personal property in accordance with section 86; and
(d)prohibiting the respondent from approaching, telephoning or otherwise contacting the protected person, unless in the company of a police officer or a specified person; and
Examples
1 Emailing the protected person.
2 Sending text messages to the protected person.
(e)prohibiting the respondent from being anywhere within a specified distance of the protected person or a specified place, including the place where the protected person lives; and
(f)prohibiting the respondent from causing another person to engage in conduct prohibited by the order; and
(g)revoking or suspending a weapons approval held by the respondent or a weapons exemption applying to the respondent as provided by section 95; and
(h)cancelling or suspending the respondent's firearms authority as provided by section 95.”
52Division 7 of Part 4 provides for the duration of orders:
“97 Court may specify period for which order in force
(1)The court may specify in a final order the period for which the order is in force.
(2)In making a decision as to the period for which the final order is to be in force, the court must take into account—
(a)that the safety of the protected person is paramount; and
(b)any assessment by the applicant of the level and duration of the risk from the respondent; and
(c)if the applicant is not the protected person, the protected person's views, including the protected person's assessment of the level and duration of the risk from the respondent.
(3)The court may also take into account any matters raised by the respondent that are relevant to the duration of the order.
…
99 Duration of order
A final order remains in force—
(a)if a period is specified in the order, for the specified period unless it is sooner revoked by the court or set aside on appeal; or
(b)if no period is specified in the order, until it is revoked by the court or set aside on appeal.”
53An aggrieved party may appeal to the County Court of Victoria against the making of a family violence intervention order under Division 9, Subdivision 1 of Part 4 of the Act. The Act relevantly provides:
“119 Conduct of appeal
(1)The appeal is by way of a rehearing by the County Court or the Supreme Court.
…
(2) On the appeal, the County 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 … could have made and exercise any other powers that the Magistrates’ Court … may have exercised; or
(d)make a determination under section 136(2) of the Personal Safety Intervention Orders Act 2010 and make any order the Magistrates’ Court … could have made and exercise any other powers that the Magistrates’ Court … may have exercised under Division 2 of Part 8 of that Act.
…
121 Application of certain Acts to appeals
The provisions of this Act, the Magistrates’ Court Act 1989 … so far as applicable and with any modifications and adaptations as are necessary extend and apply to appeals under this Division.”
54In AAA,[18] his Honour John Dixon J found that appeals under the Act are to be conducted as a “broad appeal”. His Honour explained how such an appeal under s119 of the Act is to be conducted:
[18]Supra
“50.[In a broad appeal, usually described as a rehearing] the appellate court’s jurisdiction is neither purely appellate nor purely original. This is not a re-trial of the matter. The appellate court applies the law as it exists at the time of appeal to the facts as it finds them. The jurisdiction is exercisable only where the appellant can demonstrate the original decision-maker made some factual, legal or discretionary error. Absent some contrary legislative intention, appeal powers are to be exercised for the correction of error in the original decision. The process is not unfettered merits review. However, on rehearing, powers are not restricted to the decision that ought to have been made by the court of first instance. Subject to my further observations, this type of appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence. The court is required to assess and evaluate the evidence for itself, maintaining due regard for the advantage of the trial judge in having seen and heard all of the evidence. The jurisdiction of an appellate court on rehearing is confined to the jurisdiction exercised by the court of first instance, unless the contrary is indicated.
51.Broad appeals may be further categorised into rehearings on existing evidence and rehearings allowing for new evidence:
(a)Limited to evidence on the record: The appellate court considers for itself the issues the trial judge had to determine and the effect of the evidence appearing on the record but applying the law as it is when the appeal is heard, not when the trial is heard. This has been described as an appeal where the court ‘makes its own decision on the evidence before the court below’.
(b)New evidence: The powers of the appellate court are exercisable where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. The appellate court is not confined to the record of evidence led at the original hearing and may hear new evidence and applies the law as it applies when the appeal is heard. The appellate court can substitute its own decision based on the facts and the law as they then stand. Its powers are not restricted to making the decision that should have been made at first instance. However, a rehearing is not a retrial and the court’s power to receive further or fresh evidence is limited to that provided by the statute creating the right of appeal. This has been described as ‘an appeal by way of rehearing based upon the evidence given in the court of first instance supplemented by further evidence’.
…
67.Considered altogether, s 119 contemplates a rehearing in the sense of a broad appeal where new evidence may be led; the court may determine the case at the time of the appeal, in the light of the record of the first instance court and the additional evidence before the appellate court at the time of appeal, applying the law at the time of the appeal. The jurisdiction is appellate in the sense that it is only engaged where there is factual, legal, or discretionary error in the magistrates’ decision, identifiable in light of all the new evidence before the County Court at the time of appeal. As the High Court made clear in Allesch and Coal, statutory provisions conferring appellate powers, including the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise (and the subject Act does not do so), the power is to be exercised for the correction of error.”[19]
[19]AAA at paragraphs [50], [51] and [67] (footnotes omitted)
Grounds of appeal and supporting material
55In accordance with this Court’s practice, following the decision in AAA,[20] the parties were notified that the appeal would be conducted by way of broad rehearing and that the matter would be listed for a preliminary hearing to determine whether the Court’s appellate jurisdiction is enlivened.[21] The parties were ordered to file a number of documents[22] in accordance with this Court’s Practice Note.[23]
[20]Supra
[21]Order of Judicial Registrar Bales dated 15 December 2023
[22]Order of Judicial Registrar Bales dated 15 December 2023
[23]PNCLD FV 2-2024
56Initially, Ms Peters filed four grounds of appeal dated 19 May 2024 in the following form:
Ground no. Typer of error Description of error Transcript reference
(if applicable)
Ground 1 discretionary Her Honour, has inferred from the timing of events that the insistence on having property returned was resultant on learning that [Ms Banfield] had entered a new relationship.
Transcript from
FRIDAY, 27 MAY 2022Page 68 lines 26 to 30
Ground 2 discretionary Her Honour has inferred that the purpose of the messaging was due to a desire to remain in contact with [Ms Banfield].
Transcript from
FRIDAY, 27 MAY 2022Page 70 lines 19 to 24
Ground 3 discretionary Her Honour has interpreted that the messages are threatening in nature which is not evident when reading the messages in context.
Transcript from
FRIDAY, 27 MAY 2022Page 71 lines 15 to 17
Ground 4 discretionary Her honour has insinuated that the behaviour of members of Victoria Police in following up complaints as having been coerced rather than the actual case of persistent requests for action.
Transcript from
FRIDAY, 27 MAY 2022
Page 69 line 16 to page 70 line 357Ms Peters filed written submissions dated 19 May 2024 addressing each of the above grounds:
“1.Her Honour, has inferred from the timing of events that the insistence on having property returned was resultant on learning that [Ms Banfield] had entered a new relationship.
This was neither stated nor inferred by evidence and [Ms Banfield’s] submissions support the timing for the partial return of property to be due to covid restrictions and lockdown. The text messaging to retrieve remaining property commenced following the collection of property left at the residence and identifying the missing items.
2.Her Honour has inferred that the purpose of the messaging was due to a desire to remain in contact with [Ms Banfield].
No evidence nor testimony supports this inference. This was not supported in submissions and when this inference was raised by [Ms Banfield] representation it was refuted in testimony.
The messages all have a common theme of attempting to retrieve missing property. The obsessive nature of the messages is consistent with the appellant’s diagnosis of Asperger’s Syndrome seeking the return of possessions and do not contain any specific threats beyond showing frustration with the lack of progress.
3.Her Honour has interpreted that the messages are threatening in nature which is not evident when reading the messages in context.
When the messages are read in context of behaviour from a diagnosis of Asperger’s Syndrome, they demonstrate an obsessive need to retain ownership of possessions. At no time in the messages is there any overt threat of violence, and the actions of approaching the police to achieve resolution demonstrates a desire to remain within the requirements of the law.
4.Her honour has insinuated that the behaviour of members of Victoria Police in following up complaints as having been coerced rather than the actual case of persistent requests for action.
This assertion indicates that Her Honour believed that the behaviour of police members was due to external powers of coercion which did not exist and had no evidence to support that existence. Their response was due to persistent follow up with Victoria Police as this was the only legal means available.
58Ms Peters filed an affidavit in support of submissions dated 19 May 2024. In it, Ms Peters deposed:
“1.I met and entered into a relationship with [Ms Banfield] in January 2019 and we started living together in March 2019 at the insistence of [Ms Banfield] and co leased a rental property from April 2019. The lease on this rental was reduced to 6 months by the landlord and we them (sic) moved to live with [Ms Banfield] parents for a brief time.
2.We were able to leverage my disability to obtain priority access to public housing and obtained the house at [redacted] in January 2020 on a joint tenancy agreement with rent automatically deducted from my Centrelink payments. (Exhibits 1 and 2)
3.In February 2020 [Ms Banfield] ended our relationship and I returned to my parents' home in Werribee.
4.When I arranged to collect my possessions, boxes were pre-packed and [Ms Banfield] and her parents supervised the removal and loading of property, ensuring access was limited to specific rooms where furniture and boxes were already stacked.
5.Removal of the additional property from the storage locker was made dependent on a cash payment to [Ms Banfield] parents for the storage locker rental. The disputed boxed set of DVDs, along with the equipment in the storage locker, was being held by [Ms Banfield] mother as surety for that payment and those disks are yet to be returned.
6.I was still working on a casual basis in Morwell following the break up and maintained contact with [Ms Banfield], staying by the house on a number of occasions.
7.Eventually, once I had unpacked my possessions, I identified the missing items and started requesting their return as well as the return of some items that were left intentionally at the request of [Ms Banfield].
8.During the period between October and December 2020 when the claims of stalking the property were alleged to have occurred, the blue utility vehicle described was not driveable, having a faulty fuel pump. The vehicle is still unregistered and unroadworthy and not in use. The registration number identified (ZTE) is not and never has been applicable to that vehicle. (Exhibit 3) During this time, I was driving a 2003 model Mercedes C200 until November when my license was suspended and then using public transport to travel to the Latrobe Valley for work. (Exhibit 4)
9.In December 2020, I was permitted to collect some items, which were left on the grass at the front of the house. This was done using my father's car, with him driving.
10.Following this collection, I was able to identify a number of items which still had not been returned and I sought to have those items also returned. This is the property referred to in the messages.
11.In December 2020, I ceased work in Morwell and [Ms Banfield] withdrew my final pay from my bank account. This was the when the complaint was taken to the police, and the reason for the text from my mother informing [Ms Banfield] that we were taking that approach. This allegation could not be pursued as [Ms Banfield] was still a signatory to my account at the time.
12.I was able to obtain the phone number for [Ms Banfield] new partner, as it was saved in a mobile phone that I had lent [Ms Banfield] while we were together. The texts to him were an attempt to get him to talk to [Ms Banfield] and return the property in question, due to her refusal to respond to any messages.”
59Ms Peters attached to her affidavit the four exhibits referred to.
60The matter came on for mention and directions hearing before me on 23 May 2024. I granted leave to Ms Peters to file additional grounds of appeal, limited to those identified that day, namely:
(i) a ground alleging apprehended bias on the part of the learned Magistrate; and
(ii) that the learned Magistrate ought to have recused herself in all the circumstances.
61I ordered:
“1.… The additional grounds of appeal must be provided in writing, in accordance with the Practice Note.
2.On or before Friday 14 June 2024 the Appellant is to file and serve evidence supporting the additional grounds of appeal, including any transcript or recording of the Magistrate’s Court hearings.
3.On or before Friday 14 June 2024 the Appellant is to file and serve updated legal submissions in support of the grounds of appeal.
4.On or before Thursday 27 June 2024 the Respondent shall file and serve any further material in response to the two fresh grounds of appeal, further evidence, and submissions filed on behalf of the Appellant.”
62Ms Peters filed fresh grounds of appeal, together with supporting documents, which I note did not include the foreshadowed additional grounds alleging apprehended bias on the part of the Magistrate or a ground that the Magistrate ought to have recused herself. At the preliminary hearing, the appellant did not press either of these foreshadowed grounds.
63The fresh grounds of appeal were in the following form:
Ground no. Typer of error Description of error Transcript reference
(if applicable)
Ground 1 legal Admission and acceptance of hearsay and unsupported evidence in [Ms Banfield’s] submission
Ground 2 legal Testimony of [Ms Banfield’s] has not established existence of family violence under the definition of the Family Violence Protection Act 2008
Ground 3 discretionary Her Honour, has inferred from the timing of events that the insistence on having property returned was resultant on learning that [Ms Banfield] had entered a new relationship.
Transcript from
FRIDAY, 27 MAY 2022Page 68, lines 26 to 30
Ground 4 discretionary Her Honour has inferred that the purpose of the messaging was due to a desire to remain in contact with [Ms Banfield].
Transcript from
FRIDAY, 27 MAY 2022
Page 70, lines 19 to 24Ground 5 discretionary Her Honour has interpreted that the messages are threatening in nature which is not evident when reading the messages in context.
Transcript from
FRIDAY, 27 MAY 2022
Page 71, lines 15 to 17Ground 6 discretionary Her Honour has insinuated that the behaviour of members of Victoria Police in following up complaints as having been coerced rather than the actual case of persistent requests for action.
Transcript from
FRIDAY, 27 MAY 2022
Page 69, line 16 to page 70, line 364The appellant filed written submissions addressing each of the above grounds:
“I make the following submissions
1.Admission and acceptance of hearsay and unsupported evidence in [Ms Banfield] submission
Claims in [Ms Banfield’s] affidavit of [Mr Peters] being seen in Traralgon and Bairnsdale attest he was seen by persons other than the claimant, and no testimony nor affidavit in support was presented to the court.
None of the accusations levelled at [Mr Peters] included dates or times for any of these events and were all unsubstantiated. [Ms Banfield’s] testimony also changed during testimony when she claimed to have seen him in Bairnsdale ‘from a distance’ while her affidavit claimed otherwise
2.Testimony and afidavits from [Ms Banfield] has not established existence of Family Violence under the definition of the Family Violence Protection Act 2008 Part 2 Section 5
Text messages submitted as evidence do not contain or constitute threats of violence or intimidation.
Attendance of police following up a claims of appropriation of personal property is not included in the definition. All other claims made by [Ms Banfield] are hearsay or unsubstantiated.
3.Her Honour, has inferred from the timing of events that the insistence on having property returned was resultant on learning that [Ms Banfield] had entered a new relationship.
This was neither stated nor inferred by evidence and [Ms Banfield’s] submissions support the timing for the partial return of property to be due to covid restrictions and lockdown. The text messaging to retrieve remaining property commenced following the collection of property left at the residence and identifying the missing items.
4.Her Honour has inferred that the purpose of the messaging was due to a desire to remain in contact with [Ms Banfield].
No evidence nor testimony supports this inference. This was not supported in submissions and when this inference was raised by [Ms Banfield] representation it was refuted in testimony.
The messages all have a common theme of attempting to retrieve missing property. The obsessive nature of the messages is consistent with the appellant’s diagnosis of Asperger’s Syndrome seeking the return of possessions and do not contain any specific threats beyond showing frustration with the lack of progress.
5.Her Honour has interpreted that the messages are threatening in nature which is not evident when reading the messages in context.
When the messages are read in context of behaviour consistent with a diagnosis of Asperger’s Syndrome, they demonstrate an obsessive need to retain ownership of possessions. At no time in the messages is there any overt threat of violence, and the action of approaching the police to achieve resolution demonstrates a desire to remain within the requirements of the law.
6.Her honour has insinuated that the behaviour of members of Victoria Police in following up complaints as having been coerced rather than the actual case of persistent requests for action.
This assertion indicates that Her Honour believed that the behaviour of police members was due to external powers of coercion which did not exist and had no evidence to support that existence. Their response was due to persistent follow up with Victoria Police as this was the only legal means available.”
(sic)
65Ms Peters filed a further affidavit, dated 25 June 2024. In that affidavit, Ms Peters deposed:
“1.This is my final statement before I start the finalisation of my defence and vindication, This Provides Further Information with what is provided to provide a more detailed explanation to help defend myself as the recordings are clearly first half has been cut off I have requested the courts to provide complete uncut audio to me but I have found even better information to defend myself and my rights
2.I was never given a fair hearing never were my witnesses given the chance to be heard nor were my concerns ever met or heard, it was never equal from word go I was treated like a criminal from the justices of the system and lawyers from both sides it was unfair and dashed any hopes that my life could be Vindicated. I have been forced to live a unjust and inhumane life due to circumstance of the legal system turning their backs on me and falling for lies and false defamatory claims that are completely vexatious and has done this numerous times leaving behind a wake of victims behind her despite federal court orders stating to [E] told her to stop doing this and I intend to provide those documents from [Zachary Holmes] If I have to continue with another further appeal or criminal court actions against [E] such as False Ivo Claim and defamation etc., but I am hoping it doesn't have to come to that but I will if I need to as it will show that what she has done is on a consistent level.
3.There a miscarriage of justice in a system we as citizens are meant to trust to do right by us to defend and protect our rights but to protect our quality of life I was never given a chance to defend myself nor the chance and the case was based on hearsay provided by [Ellie] and no evidence at all that is being used out of context and incomplete and none of the messages show what she has said, for example before she deleted and tampered with said the evidence on Facebook and text which I will be getting for next appeal and criminal charges against [E] if needed is that she promised to return my belongings (exchange of goods) after COVID lockdowns were over my messages were simply obligating her to return said items and later the items she refused to return, these messages represent her legal contract as per the law text messages can be used so I will use these texts as evidence against [E] for failure of commitment of contract, see below.
3A.Offer and Acceptance: There must be a clear offer from one party and an unequivocal acceptance of that offer by the other. This agreement can be demonstrated in text messages where one party makes an offer, and the other party responds positively.
3B.Consideration: Consideration refers to something of value exchanged between the parties, such as goods, services, or money. In the context of text messages, consideration could be outlined in the exchange where the parties agree on a price or a service to be provided.
3C.Intention to Create Legal Relations: Both parties must intend to form a legal agreement. This intention could be inferred from the language used in the text messages, the relationship between the parties, the seriousness of the transaction, and other circumstantial evidence.
3D.Certainty and Completeness of Terms: The agreement’s terms must be clear and complete enough for the court to enforce. If essential terms like price, quantity, or delivery date are left vague or undecided in the text messages, the ‘contract’ may be deemed uncertain or incomplete.
3E.When these elements are present in a text message exchange, it could form a legally binding contract enforceable by law. And before she destroyed said evidence there was committed but I will be getting the texts and Facebook messages recovered by investigators because nothing can truly be deleted.
3F.The principles of contract law apply whether the contract is formed in person, over a phone call, through an exchange of emails, or, indeed, through a series of text messages. As long as the essential contractual elements mentioned above are present, a contract can be binding and enforceable regardless of its format. Are texts legal documents? Just like traditional contracts, contracts formed via text messaging are enforceable if they meet the requirements of a valid contract. Australian courts have increasingly recognised text messages as evidence to prove a contractual agreement's existence. However, as with all arrangements, disputes may arise regarding interpreting the text message, Therefore in Australian Law certain conditions must be met.
3G.Here are the general conditions:
• Relevance: The text message content must be directly related to the issue before the court. Irrelevant evidence is typically not admissible.
• Authenticity: Text messages must be legitimate. You must demonstrate that the parties in question sent and received the messages. This can be more challenging when using a photograph of a text message as opposed to a digital record.
• Legal Acquisition: The text messages must have been legally obtained. They may not be admissible if they were obtained without the parties' consent or by means that violate privacy laws or other laws.
• Hearsay: Text messages may not be admissible as evidence if the hearsay rule applies. Unless a specific exception applies, the hearsay rule generally prohibits the admission of statements made outside of court as proof of their integrity. The complexity of determining whether the hearsay rule applies to a given situation necessitates the advice of a lawyer.
• Privacy and Consent: Privacy and consent may also affect whether the court permits the messages to be used as evidence, particularly in family law cases. According to Section 137 of the Evidence Act 1995, the court must refuse to acknowledge the evidence if the risk of unjust prejudice to the defendant outweighs its value.
• Best evidence rule: Where possible, actual evidence should be provided. So, it’s better to offer real digital text messages rather than a photograph of the screen. Subpoena is the general way forward
4.Using Text messages out of context saying they are other then what they are is hearsay and without my consent is a breach of privacy as my number as it was a business number etc. and not just an individual which is also a breach and is false evidence considering not all the evidence was there it’s also evidence tampering which is criminal. The government have authority to obtain the texts, the texts must be authentic, and the texts must be relevant to the charges filed for example the messages are not authentic unless subpoena so it can show proof of context so they cannot be misinterpreted and can remove some ambiguity, for a fair use in court. Text messages are similar to social media posts in that they are digital communications. Digital communications are fairly easy to trace, law enforcement has the authority to search for them - a very important question in criminal and civil cases. Unlike verbal conversations, texts can be retrieved word for word and exclamation point by exclamation point. Generally, once a text message is introduced into evidence, the evidence can be used to prove the charges against you, a motive, your state of mind, and your intent. They can also be used to prove your innocence. It all depends on what the texts say and their context. Just demonstrating intent can be the difference between a conviction and an acquittal. Time states that with the recent ruling overturning Roe v. Wade, text messages may even be used to show a woman sought to end her pregnancy
4A.Some provisions of the Commonwealth Evidence Act also apply in State and Territory legal proceedings in relation to some documents. Commonwealth legislation (for example, the Archives Act 1983, Freedom of information Act 1982, Privacy Act l988 and Crimes Act 1914, has provisions about documents that may relate to their use in evidence. State or Territory legislation, policies and standards may also apply but reading below it is known
The laws of evidence prescribe standards to which a fact must be proved:
• in civil proceedings, facts must be proved on the balance of probabilities; and
• in criminal proceedings, facts must be proved beyond reasonable doubt.
4B.The rules of evidence govern what information is able to be placed before a court for determination of an issue. These rules influence how a party goes about proving its case.
Parties seek to persuade the court of a fact by producing evidence. In doing so, a party should consider three issues:
• how to adduce (that is, put to the court) evidence of the fact;
• whether the evidence is admissible (that is, whether the court will permit it to be given); and
• the weight of the evidence (that is, how much importance the court will give to it in reaching its decision).
The rules of evidence are mainly concerned with the first two issues:
• how information, in the form of 'evidence', is given or presented to a court;
and
• whether that information can be admitted to the proceeding.
4C. The admissibility of evidence in any proceeding is subject to compliance with the rules of admissibility and the interpretation placed upon them by the presiding judge. Assessment of the quality of evidence, and therefore of the weight to be given to it, is also matter for the presiding judge in each case.
4D.So without the text messages with me proving they are not evidence and if they were evidence its evidence supporting my case of failure of a legal contractual obligation she has failed to comply with, and leaves [Ellie] with no evidence just hearsay, not just there isn't dates to support anything she states and there is no way to defend it because hear or around then doesn't stack up because there would be something to call upon to provide a date and then I could provide evidence for that date she says in fact I can I 00% confidently state that I could provide evidence from the day I was born to any current day in my life because technology and my life being well documented each day, but for relevance is that I have provided hard legit evidence that proves everything she has claimed is hearsay untrue and complete malice and vexatious. There is also Federal Circuit Statements and affidavits that [Ellie] has sworn on oath stating that I was never a partner but a friend and if so then it doesn't constitute family violence requirements so she is lying under oath so where is she lying. So there is several conditions for a FVIO are not met and according to the Family Violence Protection Act 2008 there is no family violence and this shouldn't be up to myself it should be up to [Ellie] to prove she needs a IVO and prove she has evidence otherwise there is no such case, and that when COVID lockdowns ended and I organised to collect my belongings as per agreement and wasn't fully returned as promised and I spoke to police for advice to get my belongings they told me to keep trying to contact her (see text messages) and then finally made a theft report to the SNR SGT of Morwell and then in response [Ellie] made the FVIO Application as retaliation and revenge out of spite etc., completely out of malice and vexation and completely defamatory which is illegal and r will be filing a False IVO Criminal Charges to Police to start an Investigation ifI need to as this case is the perfect evidence and statement required for this to happen in fact I have suffered family violence from [Ellie] all throughout said relationship and that I feel like I need one against her and to move away and start a new life just to feel safe from the pain and suffering she has put me through as I fear for retaliation from her
5.Now due to unjust reasoning and no evidence to support what she has to say then I have been forced to endure is my life being turned upside down including my life being ruined due to unfair justice?
This FVIO has caused severe impact on my life
• Defamation that damaged my reputation, Friendships and Family Members
• Working With Children’s Check Revoked
• Salvation Army Work Ceased
• Loss Of Employment
• Mental Health & Quality of Life Diminished
• Early Childhood Education Teaching Course Kicked Out Due To FVIO and WWCC Revoked
6.Thus can what I have gone through be considered justice or worthy for the hardship of a miscarriage of justice played out through [Ellie] who acted in retaliation of me following the laws of this country, it is undoubtedly unfair and people need to be accountable for their actions and that I will not be paying no costs to [Ellie] For I am A Victim and I Will e Chasing Damages and Compensation From [Ellie] For What She Has Caused To Me And Criminal Charges lf Necessary.”
(sic)
Characterisation of the grounds of appeal
66With respect to her, Ms Peters’ grounds of appeal, affidavit material and submissions in support of the grounds of appeal were somewhat convoluted. As best I understand it, Ms Peters alleges that the Court below fell into legal, factual and discretionary error. For the purposes of this Ruling, and because Ms Peters represented herself in these proceedings, I shall assume that Ms Peters intended to press every ground raised in all her stated grounds as filed or foreshadowed. Despite the characterisation applied by Ms Peters to the alleged errors, I shall identify the grounds in terms and categories as I understand them to be.
Legal errors alleged
67As I understand it, Ms Peters contends that the learned Magistrate erred in law because:
(a) The conduct alleged against Ms Peters does not fall within the definition of “family violence”;
(b) Ms Banfield failed to establish that Ms Peters intended any of the threats made in the text messages to be carried out;
(c) There was an apprehension of bias on the part of the learned Magistrate, requiring the Magistrate to have recused herself; and
(d) Hearsay evidence (the text messages) was wrongly admitted into evidence
Factual errors alleged
68As I understand it, Ms Peters contends that the following factual errors were made:
(a) The text messages were wrongly construed as threatening in nature. Instead, they should be interpreted as nothing more than the response of a person suffering from Asperger’s Syndrome;
(b) That Ms Peters’ insistence on the return of her property was causally linked to her discovery that Ms Banfield had entered a new relationship;
(c) That Ms Peters’ purpose in sending the text messages was to remain in contact with Ms Banfield; and
(d) Ms Peters coerced police involvement in the recovery of her possessions.
Errors alleged in the exercise of discretion
69Although Ms Peters contends that a number of the grounds referred to above are “discretionary errors”, I consider they are best characterised as described above. The only potential discretionary error, as I see it, albeit not pleaded as a ground, is that on the basis of the totality of the evidence presented in the Court below, the exercise of discretion to grant the Final Intervention Order miscarried.
Alleged errors to be considered regardless of characterisation
70It is important to note that I shall consider all grounds of appeal regardless of the characterisation ascribed to them by Ms Peters.
Errors of the type allowing appellate intervention
71A classic statement of the applicable principles engaged in appellate review when it is alleged that the exercise of discretion miscarried were enunciated by the High Court in House v The King:[24]
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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.”[25]
[24](1936) 55 CLR 499
[25]Ibid at 504-505 per Dixon, Evatt and McTiernan JJ
72Simply stated, an error of law occurs when there has been a misinterpretation or misapplication of a legal principle. Sometimes there may be an overlap between error of fact and error of law. No distinction needs to be made in the present case between error of fact and error of law, since if either is established, this Court’s appellate jurisdiction is engaged.
73An error of fact may simply be defined as an error made by a decision-maker about the existence of a particular fact. Generally, a simple error of fact is not a ground for judicial review.[26]
[26]Azzopardi v Tasman UEB Industries Ltd (1987) 4 NSWLR 139; Lee v Lee (2019) 266 CLR 129 at paragraph [55]
Analysis
Alleged legal and factual errors
(a) The conduct alleged against Ms Peters does not fall within the definition of “family violence”;
(b) Ms Banfield failed to establish that Ms Peters intended any of the threats made in the text messages to be carried out; and
(d) Hearsay evidence (the text messages) was wrongly admitted into evidence
74It is convenient to consider these grounds together.
75I have earlier referred to the definition of “family violence”. If the conduct alleged against Ms Peters did not fall within that definition, it would constitute an error of law. If the text messages were inadmissible, there would be no, or no sufficient, evidence of family violence. There are combined questions of fact and law –
· Were the text messages admissible?
· What findings of fact did the learned Magistrate make about the conduct alleged against Ms Peters?
· Was it open on the evidence to do so?
· And, on those facts, was there “family violence” as defined by the Act?
Were the text messages admissible?
76Clearly, the messages were critical to Ms Banfield’s case.
77Ms Peters admitted in the Court below that she sent the text messages. The electronic communications in their printed form may be said to contain the prior representations made directly by Ms Peters to both Ms Banfield and to her new partner.[27] They were not representations made by Ms Peters to third parties who have then repeated them.
[27]Evidence Act 2008, s71 and s161
78I consider that the text messages constituted the evidence of alleged misconduct against Ms Peters, and as such they were prima facie admissible to prove she had committed family violence against Ms Banfield.
79Moreover, as noted earlier, s65(1) of the Act enables the Court to “inform itself in any way it thinks fit, despite any rules of evidence to the contrary”. Despite the discretion to exclude evidence under s65(3), no objection was taken by Ms Peters’ counsel in the Court below to the admission of the text messages.
What findings of fact did the learned Magistrate make about the text messages?
80As mentioned earlier, the learned Magistrate found that:
(a) Ms Peters had sent the text messages; and
(b) The text messages were threatening in nature.
81Her Honour’s finding that Ms Peters had sent the text messages was clearly open on the evidence, as Ms Banfield’s evidence was that Ms Peters sent the messages and Ms Peters admitted she had sent them.[28]
[28]MCT 39 and 40
82The learned Magistrate found the text messages to be threatening. In summary, she found:
“… [Mr Peters] then took it upon himself to send numerous messages to [Ms Banfield] which she clearly gave evidence caused her some distress, they were repetitive in nature, and they were threatening in nature. I doubt that the police would advise to send bikies around, and there is clearly a number of messages there, [Mr Peters], including issues in relation to I do not want anything to happen to [Sofia] that a mother would only take on as a threat to the safety of her daughter.
So, I do believe those messages are threatening in nature, or there is an implied threat in relation to those messages. That is the family violence.”[29]
[29]MCT 71
83On the evidence before the learned Magistrate, it was open to find that the messages were threatening in nature. I have set out the content of many of the messages. The following facts can be found in the evidence:
(i) Ms Peters was of the view that Ms Banfield still had possession of some items of property belonging to Ms Peters;
(ii) Ms Peters was determined to recover the property;
(iii) In an effort to enforce her demands for the return of her property:
·Ms Peters threatened to make a statement to police alleging theft against Ms Banfield;
·Ms Peters threatened to incriminate not only Ms Banfield, but also members of her family;
·Ms Peters threatened that if she did not comply, both she and members of her family were at risk of being jailed and fined;
·Ms Peters stated that unless her demands were met she would provide an affidavit to assist Ms Banfield’s former partner, Zachary, in their court proceedings about the custody of their daughter Sofia;
·Ms Peters threatened to say that Ms Banfield sought Ms Peter’s assistance to engage bikies to harm Ms Banfield’s former partner;
·Ms Peters alleged that unless Ms Banfield complied with her demands she would lose her home and her capacity for employment;
·Ms Peters had family, contacts in the police force and in the law, and that Ms Banfield should not “mess with the law”;
·Ms Peters claimed that members of her family were also going to police to make reports against Ms Banfield;
·Ms Peters threatened that she would be “forced to take severe action” if her demands were not met; and
·Ms Banfield was given a “last chance” to avoid the threats being carried out if she complied with Ms Peters’ demands.
84I am satisfied that not only was it open on the evidence to find that the text messages sent by Ms Peters were threatening in nature, but that was the overwhelming conclusion to be drawn.
85Ms Peters contended that Ms Banfield was required to establish that Ms Peters intended that the threats be taken seriously by Ms Banfield. She submitted that the texts were no more that the utterances of a person suffering from autism or Asperger’s Syndrome:
“When the messages are read in context of behaviour from a diagnosis of Asperger’s Syndrome, they demonstrate an obsessive need to retain ownership of possessions. At no time in the messages is there any overt threat of violence, and the actions of approaching the police to achieve resolution demonstrates a desire to remain within the requirements of the law.”[30]
[30]Ms Peters’ written submissions dated 19 May 2024, referred to earlier in this Ruling
86In Director of Public Prosecutions (on behalf of Callan Bruce Sexton) v Adam Cormick,[31] the Court of Appeal held that an applicant for an intervention order need not prove that threats made to the applicant were intended to intimidate, harass or offend. The real question is whether the conduct has that effect regardless of the intent:
“70We accept the Director’s submission that the language of ss 5 and 7 of the Act separates the act towards a family member from its consequences, which are felt by the family member. Thus, s 5 says, in terms, that behaviour will constitute family violence where it is behaviour towards a family member that is emotionally or psychologically abusive. Section 5 does not use terms such as ‘abusive behaviour’ or ‘threatening behaviour’ (which might be described as ‘composite’ terms), but refers to behaviour that ‘is’ abusive, that is, behaviour that is received or perceived as such by the person to whom it is directed. The separation of the act from its consequences is reflected in s 7, which provides that emotional or psychological abuse is behaviour towards another person that torments, intimidates, harasses or is offensive ‘to’ the other person. The behaviour is abusive because of its effect on another person rather than because it is intended to be so.”
[31](2023) 72 VR 451
87Regardless of any psychiatric and/or psychological conditions that may have limited Ms Peters’ capacity to control the language used in her texts (and there was no expert evidence that any such condition had that effect), it was open to infer that Ms Peters intended Ms Banfield to take her threats seriously. So much can be concluded from Ms Peters’ sense of grievance that she had been denied her property, her desire to recover her property from Ms Banfield, and the ever increasing intensity of the threats she made in her text messages in an effort to achieve her goal. Not only was it open to draw such a conclusion, in my judgment, the evidence compelled such an inference.
Did the evidence support a finding that as a matter of law Ms Peters had committed family violence?
88I have earlier referred to the definition of “family violence”. Section 5 defines family violence to include behaviour that is threatening.[32] Accordingly, the learned Magistrate was not in error when she found that Ms Peters’ behaviour fell within the definition of “family violence”.
(c) There was an apprehension of bias on the part of the learned Magistrate requiring the Magistrate to have recused herself
[32]Section 5(1)(iv) of the Act
89Although this ground was not pressed, in her supporting material, Ms Peters alleged that she had been denied a fair trial and that she was not given the opportunity to be heard. In these circumstances, as I understood it, Ms Peters alleged apprehended bias on the part of the Magistrate which ought to have resulted in the Magistrate recusing herself.
90I shall consider this ground to ensure that every possible ground of appeal has been resolved.
91A member of the judiciary should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it.[33]
[33] Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294
92This statement reflects the fundamental principle that justice must not only be done, but it must be seen to be done. Adherence to this principle is directed at maintaining confidence in the administration of justice. That said, it is equally important that a member of the judiciary discharges his or her duty to sit and hear cases and not recuse himself or herself too easily. As was said in Metcalf v Permanent Building Society (In Liquidation):[34]
“… [I]t is an abdication of the judicial function and an encouragement for procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he has been requested by one party to do so, on the grounds of a possible appearance of bias. The test, in every case, is whether there is a reasonable apprehension of bias. It is sometimes very easy for persons to assert an apprehension of bias in circumstances where no reasonable person would apprehend it. It seems to me that this case is coming very close to that.”[35]
[34] (1994) 13 WAR 349
[35] Ibid at 361, per Malcolm CJ
93In Ebner v Official Trustee in Bankruptcy,[36] Gleeson CJ, McHugh, Gummow and Hayne JJ stated:
“... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
[36] (2000) 205 CLR 337 at 344
94The test to be applied is an objective one.
95The expression of what may be a tentative view does not necessarily indicate prejudgment. As was said by the High Court in Johnson v Johnson:[37]
“13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.’ Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”[38]
[37] (2000) 201 CLR 488, citations omitted
[38] Ibid at 493
96In Isbester v Knox City Council,[39] in their joint judgment, Kiefel, Bell, Keane and Nettle JJ explained:
“How the governing principle is to be applied
20.The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.
21.The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an “interest” in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.
…
23.How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.”
[39] (2015) 255 CLR 135
97In the same case, Gageler J, as his Honour then was, observed:
“59. Whether or not it might be useful to state the test in that alternative form, the test for the appearance of disqualifying bias in an administrative context is to be understood to mirror the test for apprehended bias in the curial context in two important respects. The first is that it is an “objective test of possibility, as distinct from probability”. The second is that its application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.”
98In the present case, no application was made for the learned Magistrate to recuse herself. It was never put to her or suggested that she had prejudged the case, that she had a particular bias for or prejudice against any party or issue involved in the proceedings.
99I can find nothing in the transcript of the proceedings in the Court below that gives rise to an apprehension of bias on the part of the Magistrate. She gave both parties the opportunity to call evidence and tender documents. She barely intervened in the examination of witnesses.
100I noted earlier that Ms Peters made an offensive remark to her Honour when she said:
“You shall be held in contempt because you are as corrupt as dog shit. I’m appealing this right away. Thank you, goodbye.”[40]
[40]MCT 72
101This utterance could not possibly have had any effect on her Honour’s decision as she had announced her reasons and decision before Ms Peters interjected.
102I find no basis to uphold any ground to the effect that Ms Peters was denied a fair trial or that there was an apprehension that the learned Magistrate was biased.
Other alleged factual errors
103Ms Peters alleged that the learned Magistrate erred in finding:
(i) that Ms Peters’ insistence on the return of her property was causally linked to her discovery that Ms Banfield had entered a new relationship;
(ii) that Ms Peters’ purpose in sending the text messages was to remain in contact with Ms Banfield; and
(iii) Ms Peters coerced police involvement in the recovery of her possessions.
104Turning to the first of these alleged errors, Ms Banfield relies on a select passage of the transcript of the learned Magistrate’s decision, page 68, lines 26 to 30:
“It is clear that [Mr Peters] still believes that [Ms Banfield] has some of his property, and it is also clear that the insistence on having this property returned to him commenced as soon as [Mr Peters] became aware that [Ms Banfield] was in a new relationship.”
105I note, however, that the transcript immediately following this passage records:
“Now, that is clear on the evidence that [Ms Banfield] gave to the court, and it was, has been disputed, I guess, by [Mr Peters], but it is clear on [Mr Peters’] evidence as well because in his evidence-in-chief he said, ‘When she re-partnered, I wasn’t allowed to grab the stuff that was there’. So, it is clearly from that point on that [Mr Peters] decided that he had to take other actions to get his property back.
We have got Annexure A and Annexure B which clearly on the first occasion [Mr Peters] indicated that he accepted that those were text messages he sent. In cross-examination today, it is quite clear that whenever anything is put to him in terms of being somewhat threatening, he either denies or says he cannot remember sending that message, but earlier in the evidence, he was clearly confirming that those messages were actually sent by him.”[41]
[41]MCT 68-69
106I note that the learned Magistrate accurately cited the evidence of Ms Peters where she said in her evidence-in-chief:
“And then when she re-partnered I wasn’t allowed to grab all my – the stuff that was there and so I had to go home without it, which is why I was trying to get it back.”[42]
[42]MCT 33
107It was open on the facts to draw such an inference. The learned Magistrate drew the inference from the facts she found proved.
108Even if the inference ought not to have been drawn, it was of little moment. The simple fact is that for whatever reason, Ms Peters engaged in the threatening behaviour in an effort to recover possession of her belongings.
109Addressing the second of these allegations, Ms Peters relies on transcript of the learned Magistrate’s decision, page 70, lines 19 to 24:
“So, it seems to me, [Mr Peters], you are persistent in wanting to keep in contact with [Ms Banfield]. I know you have told me now you do not wish to have any contact with her, but it seems to me you are still concerned about what you perceive to be the property she has in her possession.”
110The inference was open to be drawn from the repetitive nature and frequency of the text messages, and the fact that Ms Peters seemed determined to continue her communications until such time as Ms Banfield complied with Ms Peters’ demands. The inference is strengthened because after Ms Banfield blocked Ms Peters’ phone, Ms Peters sent text messages to Ms Banfield’s new partner, intending that these messages be communicated to Ms Banfield.
111Finally, with regard to the third allegation, Ms Peters relies on transcript page 69, line 16 to page 70, line 3:
“In terms of the messages that he [Ms Peters] were only sent on the advice of police, I find it difficult to believe, although I understand that [Mr Peters] does have police members in the family or ex-police members, so whether he was talking about them, but it seems very unlikely that he would have contacted the police on four occasions on 13 December after each text message to get their advice before sending another message. That does not seem plausible at all.
I might also make note that this is the first occasion I have ever had a family violence situation where the police have attempted and attended at the property on four occasions to ask [Ms Banfield] for the property, and then required her to attend at the Trafalgar police station and write a statutory declaration that she did not have any property at her residence. That is very proactive police action on their behalf in relation to what normally the police will describe as a civil dispute.”
112Ms Peters testified:
“I sent messages to [Ellie] to ask what – where the – where these items that are missing are in which she wasn’t responding. And so, that’s when I went to the police station, asked for their advice, which is where they told me to keep contacting her until I hear something and …
… So, [Ellie] wasn’t answering me, so I went to the police station to ask for advice and what they would do and they told me to just keep – just message her and there were no messages received so I went back there and they said just keep trying, keep trying. And then it got to a point that it wasn’t working so that’s when I put the report into the police station to ask them to go in and see what they can do and I made the police report that was supplied.”[43]
[43]MCT 34-35
113I find nothing in her Honour’s reasons that suggests that she found, as a matter of fact, that Ms Peters “coerced” police to take any action.
Alleged discretionary error
114As noted earlier, although not specifically pleaded, I shall consider whether the learned Magistrate’s discretion miscarried when she determined to make a final order under the Act.
115As set out above, s74(1) of the Act provides:
“ 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.”
116Section 74(1) does not compel a magistrate to make an intervention order; it permits the court to make such an order if satisfied that the statutory prerequisites are met.
117On the facts before the learned Magistrate, all statutory prerequisites were satisfied:
(a) Ms Peters had committed “family violence” as defined;
(b) Ms Banfield was an “affected family member” as defined;
(c) It was open to find that Ms Peters was likely to continue to commit family violence again.
118In these circumstances, it was open to the learned Magistrate to make the Order. Applying the principles enunciated in House v The King,[44] it does not appear that any error has been made in exercising the discretion.
[44]Supra
119In all the circumstances, I consider that the facts established that such an order was indeed warranted.
Conclusion and Orders
120Ms Peters has failed to establish that there are any grounds that enliven this Court’s jurisdiction to disturb the Orders made in the Court below.
121Accordingly, the appeal against the Final Intervention Order made in the Magistrates’ Court at Latrobe Valley on 27 May 2022 must be dismissed.
122I so rule.
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