Reid (a pseudonym) v Victoria Police (Ruling)
[2024] VCC 1870
•25 November 2024 27 November 2024 (Reasons for Ruling revised in accordance with the principles in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
| LOUISE REID (A PSEUDONYM) | Appellant |
| v | |
| VICTORIA POLICE | Respondent |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 22 November 2024[1] | |
DATE OF RULING: | 25 November 2024 27 November 2024 (Reasons for Ruling revised in accordance with the principles in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257) | |
CASE MAY BE CITED AS: | Reid (a pseudonym) v Victoria Police (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1870 | |
[1] The preliminary hearing was held on 19 November 2024 and the Ruling reserved. On preparation of the Ruling, it became apparent that essential documents were missing. The Court subsequently requested the provision of the relevant documents from the respondent. It had also become apparent that two grounds of appeal had not been argued. The proceeding was therefore relisted and a second hearing was held on 22 November 2024 to address these matters.
REVISED REASONS FOR RULING
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Subject:FAMILY VIOLENCE INTERVENTION ORDER APPEAL
Catchwords: Complex familial history – multiple applications before the Magistrate – appeal relates to extension of intervention order against the appellant – appellant self-represented in both Courts – appellate jurisdiction enlivened – Magistrate applied wrong legal test – insufficient reasons provided
Legislation Cited: Family Violence Protection Act 2008 (Vic), ss5, 7, 65, 70, 71, 72, 106, 119 and 189; Family Law Act 1975 (Cth); Subordinate Legislation Act 1994 (Vic)
Cases Cited:AAA (A Pseudonym) v County Court of Victoria and Ors [2023] VSC 13; Lee v Lee (2019) 266 CLR 129; YY v ZZ & Anor [2013] VSC 743; Makeham v Sheppard [2020] VSCA 242; Pettitt v Dunkley [1971]
1 NSWLR 376; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Craig v State of South Australia (1995) 131 ALR 595House v The King (1936) 55 CLR 499; L v L and Magistrates’ Court of Victoria [2016] VSC 182
Ruling: Appellate Jurisdiction enlivened.
Proceeding is listed for directions hearing on 16 December 2024.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The Appellant appeared in person | |
| For the Respondent | Ms J V Gleeson | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
1This is a preliminary hearing in relation to an appeal by Ms Reid[2] under Part 4, Division 9 of the Family Violence Protection Act 2008 (Vic) (“the Act”) from an Intervention Order (“IVO”) made by Magistrate Stratmann at the Magistrates’ Court in Ballarat on 15 February 2024.[3]
[2] A pseudonym
[3]The appeal was lodged in time on 3 March 2024, see Supplementary Court Book dated 12 November 2024 (“CB” and Exhibit R1) at page 20
2The IVO has one condition only. It requires Ms Reid not to commit family violence against Mr Reid.[4]
[4]See CB 189-190. The Court was informed from the Bar table that there is a typographical error in that the Order is recorded as having been made on 13 September 2023. The correct date is 13 July 2024.
3The IVO was made following an application by Victoria Police on or around 13 July 2023,[5] to extend an existing IVO[6] protecting Mr Reid, which was due to expire at midnight on 13 July 2023.[7]
[5]Exhibit R2 – Application for extension dated 13 July 2023 in case number L12056989
[6]That IVO was made on 14 July 2022 and due to expire on 13 July 2023, see CB 467.
[7]The application is not in evidence. During the preliminary hearing, the Court was informed from the Bar table that it was made following an application by Ms Reid to revoke orders made for the protection of Mr Reid and the couple’s two children. That application is at CB 64.
4On filing the application to extend, the Magistrates’ Court made an interim intervention order.[8] Ms Reid applied to have this order revoked (“the Interim IVO”).
[8]Exhibit R3 – Certified extract of Magistrates’ Court dated 20 November 24 in relation to IVO granted 13 July 23 in L12056989
5Magistrate Stratmann heard evidence over two days on 22 and 23 December 2023. He handed down his decision on 15 February 2024.[9] In making the IVO, the Magistrate refused Ms Reid’s application to have the Interim IVO revoked.
[9] CB 179-188
6Ms Reid was self-represented both in the Magistrates’ Court and in the appeal in this Court. At times she was extremely emotional and frustrated, she frequently spoke over the person speaking and found it difficult to regain her composure.
7My impression of the Magistrate’s conduct of the hearing was that he was patient, he provided appropriate guidance and assistance to Ms Reid as a self-represented litigant and allowed significant leeway to her questions. Where necessary, he complimented Ms Reid on the quality of her questions and encouraged her to present her case as she saw fit.
8Such hearings are often difficult for all parties involved, not the least of which is the Magistrate presiding over them. Magistrate Strattmann is to be commended for his sensitive and fair approach to the challenging hearing before him.
Background
9Ms Reid was married to Mr Jake Reid[10] and they have two children together, Izabelle[11] born in September 2008 and Jackson[12] born in April 2010.
[10] A pseudonym
[11] A pseudonym
[12] A pseudonym
10In August 2019, the martial relationship came to a separation.
11In October 2019, Ms Reid applied for and was ultimately granted an IVO protecting her and the two children from Mr Reid. Allegations of physical violence by Mr Reid against her, formed the basis of her application.[13]
[13]CB 473
12Between November 2019 and the present day, Ms Reid and Mr Reid have participated in a complex and protracted series of applications and proceedings in the Magistrates’ Court, the Children’s Court and the Federal Circuit Court (Family Law Division).
13In or around 2020, the children were placed in Mr Reid’s care. During the preliminary hearing, Ms Reid told the Court that there had been a conspiracy between Mr Reid, police and child protection authorities to take the children away from her.
14Since that time, Ms Reid has sought the assistance of police to investigate allegations that Mr Reid had physically abused the children but feels she has not been provided with any such assistance.
15
The current Orders made under the Family Law Act 1975 (Cth) provide for
Mr Reid to have sole parental responsibility, the children to live with him and to spend supervised time at a contact service with Ms Reid. The Orders also provide that Ms Reid is at liberty to send letters and gifts to the children through Mr Reid’s solicitor.[14]
[14]The Orders were made on 8 November 2024 at Melbourne, see CB 554-560
The appeal and summary of findings
16Ms Reid has made out two of her grounds of appeal, grounds 7 and 8. I find the Magistrate applied the wrong test for family violence and failed to give adequate reasons for his decision. This left Ms Reid confused about the reasons the IVO was made.
17That enlivens the jurisdiction of this Court to hear the substantive appeal.
The applications before the Magistrate
18On 22 December 2023, there were four applications before the Magistrate:
(a) The first application[15] was made by Victoria Police (Constable Courtney Stevenson) on 13 July 2023, to extend the IVO where Mr Reid is the protected person and Ms Reid is the respondent (L12056989). That IVO was made on 14 July 2022 and expired on 13 July 2023. The application to extend provided:
“THE AFM AND THE RESP WERE IN A RELATIONSHIP FOR 20 YEARS BUT HAVE BEEN SEPARATED FOR APPROXIMATELY THREE YEARS. THE AFM HAS FULL CUSTODY OF BOTH CHILDREN WHO RESIDE WITH THE AFM. THERE IS A CURRENT FAMILY VIOLENCE INTERVENTION ORDER IN PLACE WILL WITH FULL NO CONTACT CONDITIONS. THE CURRENT INTERVENTION ORDER IS SET TO EXPIRE ON 13 JULY 2023, WHICH WILL LEAVE THE AFM WITH NO PROTECTION AGAINST THE RESP. THE LAST 12 MONTHS THE RESP HAS BEEN CHARGED WITH 20 COUNTS OF CONTRAVENE FAMILY VIOLENCE INTERVENTION ORDER. THE MOST RECENT CONTRAVENTION OF THE CURRENT IVO BY THE RESP WAS ON 1 MARCH 2023 WHEN THE RESP HAS WAITED FOR THE AFM IN CLOSE PROXIMITY TO THE AFM’S VEHICLE AT LAKE WENDOUREE AND THEN HAS VIDEO RECORDED THE AFM RETURNING TO THEIR OWN VEHICLE AND HAS THEN ATTEMPTED TO REPORT THIS INCIDENT TO THE POLICE AS A BREACH COMMITTED BY THE AFM. THE POLICE ATTENDED AND OBTAINED AN INDEPENDENT WITNESS STATEMENT CONFIRMING THE AFM’S VERSION OF EVENTS. THIS HAS RAISED CONCERNS FOR THE AFM IN REGARDS TO THEIR EMOTIONAL AND PHYSICAL WELL-BEING. POLICE BELIEVE THAT AN EXTENSION TO THE CURRENT INTERVENTION ORDER IS NECESSARY TO PROTECT THE AFM, CHILDREN AND THEIR PROPERTY”.[16]
(b) The second application was made on 13 September 2023, by Ms Reid seeking revocation of the Interim IVO (for the protection of Mr Reid) (L12056989) and provided the following reasons for the revocation;
“I HAVE NOT DONE ANYTHING WRONG. THE INTERVENTION ORDER IS ON THE WRONG PERSON. HE HAS COMMITTED SEVEN DANGEROUS ASSAULTS, THREE ASSAULTS ON ME, ONE ON OUR SON AND ONE ON A MAN IN THE PUBLIC. HE TAKES FOUR COCKTAIL DRUGS INCLUDING ICE, PRESCRIBED DUROMINE, STEROIDS AND CLENBUTEROL THAT IS NOT FOR HUMANS. I AM FINANCIALLY, EMOTIONALLY AND PHYSICALLY DESTROYED FROM 30+ COURT APPEARANCES. HAVING 200 M EXCLUSION ON THE ORDER ALSO PREVENTS ME FROM ATTENDING ALL ENTRIES TO BALLARAT AND HAS COMPLETELY ALIENATED ME FROM MY CHILDREN”.[17]
[15]This application was not in evidence on 22 November 2024 and I was informed by Counsel for Victoria Police that it was not available. After the hearing on 19 November 2024, a certified extract of the application was requested by the Court and provided by the VGSO – this is Exhibit R2.
[16]Ibid
[17]CB 67
(c) The third application was by Mr Reid[18] to have the IVO against him, (where Ms Reid is the protected person), revoked.
(d) The fourth application was by Victoria Police for the protection of the children under case number L12056989.[19] The orders from these applications were not before me on appeal and it appears from the Magistrate’s decision that he made separate orders in relation to the children.
[18]This application nominated Mr Reid and the children however it seems when the Magistrate made the orders, he made separate orders for the children on separate case numbers.
[19]Exhibit R2
The Magistrate’s decision
19On 15 February 2024, the Magistrate delivered his decision in all four applications in open court.[20] The Magistrate also provided the parties with a written decision.[21]
[20]CB 449, being Transcript (“T”) 248 the hearing at the Ballarat Magistrates’ Court on 22 and 23 December 2023, and 15 February 2024.
[21]CB 179-188
20The Magistrate found that Ms Reid had committed family violence in the form of emotional abuse against Mr Reid “and engaged in attempts to undermine the parent/child relationship between [him] and the children”[22], and had engaged in stalking. He found there was a “concerning, erratic history of professional involvement aimed at applying emotional and statutory pressure upon Mr Reid to actively undermine his role as a parent”.[23] He considered the conduct was likely to continue.
[22]CB 185 at paragraph [29]
[23]Ibid
21Despite Ms Reid’s intent and understanding that she was lodging an appeal in respect of all four decisions in all four applications, it is clear she only lodged an appeal in relation to two of them.[24]
[24]Being for case number L12056989 as seen at CB 189
22Ms Reid’s appeal relates only to L12056989 (the IVO in which she is respondent and Mr Reid is the protected person).
23Implicit in the Magistrate’s decision to grant the extension is the decision to refuse Ms Reid’s application to revoke the interim order in which Mr Reid is the protected person.
24These reasons therefore deal only with the decision to grant the extension sought by Victoria Police.
Appeal grounds and submissions of the parties
Ms Reid’s grounds of appeal
25The Reid relied on eight grounds of appeal as follows:[25]
1.Before the hearing commenced, Magistrate Stratmann dismissed my key witness Miss Monika Bayles[26] from giving evidence despite my very strong objections Ms Bayles was a subpoenaed witness;
2.The Magistrate did not allow me to call a subpoenaed witness Miss Rebecca Proust[27] who was my family violence worker;
3.The Magistrate did not call the applicant of the IVO against me, officer Courtney Stevenson thereby denying me an opportunity to cross-examine her;
4.The Magistrate asked me (the AFM) to cross examine the respondent when he was in the witness box;
5.The witness for child protection, Ms Rebecca Ginnane and the police, Mr Jayden Hicks were allowed to sit in court and listen to evidence given by other witnesses before giving their own evidence;
6.When giving evidence in the witness box, the respondent repeatedly admitted to breaching his exclusion IVO and intentionally coming outside my house;
7.Magistrate Stratmann had incorrectly used the MARAM presented to him in the hearing (there is no MARAM against me identifying me as perpetrator); and
8.The Magistrate did not apply the rules of evidence correctly and did not demonstrate any understanding nor provided any explanation to justify his decision.
[25]CB 75
[26] A pseudonym.
[27] A pseudonym.
The position of Victoria Police
26The Submissions for the preliminary hearing dated 26 September 2024[28] outline the response of Victoria Police to Mr Reid’s grounds. In summary they provide as follows:
(i)Grounds 1, 2, 4 and 5 relate to the various of the other three matters which the Magistrate decided on that day and are not directed to the appeal currently before the court;
(ii)Further in respect of ground 2, the Magistrate did not refuse to allow Ms Reid to call the witness, Ms Reid had not properly served a subpoena on the witness;
(iii)In respect of ground 3, Victoria Police submits that Courtney Stevenson was no longer in the police force (at the time of the hearing) and a nominal informant was called as a witness (SC Jack Clarke) to give relevant evidence;
(iv)In respect of ground 4, the Magistrate found that the criteria in s70 of the Act was satisfied as Mr Reid consented to being cross-examined by Ms Reid; and
(v)In respect of ground 8, Victoria Police submitted that s65 of the Act provides that the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary. Oral submissions were made that the Magistrate’s reasons were sufficient and adequate.
[28]CB 83-88
Relevant legal principles
27Pursuant to s119 of the Act, this appeal is to be conducted by way of a rehearing. It is not a re-trial of the case. Ms Reid must first establish that the Magistrate made some factual, legal or discretionary error. If she is unable to do that, the Court has no power to hear the matter any further.[29]
[29]AAA v County Court of Victoria and Ors [2023] VSC 13 at paragraph [50]
Factual error
28The relevant legal principle applicable to factual error is found in the High Court case of Lee v Lee.[30] In that case, the majority of the Court said:
“A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”.[31]
Legal Error
[30](2019) 266 CLR 129
[31]Ibid at paragraph [55]
Sufficiency of reasons
29In YY v ZZ & Anor,[32] Cavanough J considered whether there was an obligation under the Act for a Magistrate to give reasons for his or her decision and said:
“The Act does not impose any express obligation on the court to state its reasons for the overall decision it makes on an application for a family violence protection order, much less to state its reasons for any particular part of the decision, whereas s 96 of the Act does require that the purpose, terms and effect of a final order be explained to the protected person and to the respondent. This is to be done both orally and in writing.
Although there may nevertheless be an implied obligation to state reasons for the overall decision, and also for some particular part or parts of it, still, under this Act, any breach of any such obligation may not affect the validity of the decision or of the part, given that s 96(4) of the Act provides that a failure by the court to comply with the express requirements of s 96 does not affect the validity of the order”.[33]
(Footnotes omitted and emphasis added)
[32][2013] VSC 743
[33]Ibid at paragraphs [107] to [108]
30In Makeham v Sheppard,[34] Priest JA, Kyrou and Weinberg JJA (agreeing) said:
“Plainly, the extent of the duty to set out the findings made from the evidence will depend upon the circumstances of the individual case. Indeed, having regard to the nature of the case and the issues to be determined, a magistrate’s reasons may not need to be elaborate. Quite obviously, the content of the obligation will not be the same for every decision, but will vary according to the circumstances of the particular case.
In any disputed case, a magistrate should set out material findings of fact, together with any ultimate conclusions or findings reached. He or she should provide reasons for arriving at the relevant findings of fact and the conclusions based on those findings, and should give reasons applying the law to the facts as so found. That is not to say that a magistrate necessarily must make explicit findings on each disputed piece of evidence, or make findings on every argument or submission made — particularly where they are numerous and of varying significance — but those that are important to the ultimate decision must be set out”.[35]
(Emphasis added)
[34][2020] VSCA 242
[35]Ibid at paragraphs [37] to [38]
31In their analysis of the duty to give adequate reasons, their Honours cited relevant authority, being Pettitt v Dunkley [1971] 1 NSWLR 376, in which it was said:
“…The views of Jordan CJ quoted recognise that the duty of the judge or court is not limited to hearing the case and entering a verdict. Not only has he a judicial duty to determine and enforce the rights of parties at a trial judicially conducted at first instance, but he also has a judicial duty which, within some limits, is directed to preserving and facilitating any rights of appeal from his decision which a party may have”.[36]
[36]Ibid at paragraph [39]
32The significance of adequate reasons to the litigant was made apparent in the following reference by their Honours to the News South Wales case of Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430:
“In Beale, Meagher JA made plain that a failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made. He said that ‘[a]side from the sense of injustice which can be caused, there is a broader interest in maintaining public acceptance of judicial decisions and the judicial system’. And he added:
The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability”.[37]
[37]Ibid at paragraph [40]
(Emphasis added)
33Their Honours also considered that reasons to be provided by a Magistrate need not be as detailed as those to be provided by judges in higher courts:
“Clearly, the content of the duty to give reasons will vary from court to court and case to case. The obligation that rests upon a busy magistrate, hearing dozens of summary matters in a day, will obviously be less onerous than that which rests upon a judge of a higher court, who will not be burdened with the same daily caseload. As Roberts-Smith J observed in Hardcastle, the realities of pressure of work in the Magistrates’ Court must be acknowledged. Thus, it might be expected that in many summary criminal hearings, it will be practical for a magistrate only to give relatively brief reasons.”[38]
(Emphasis added)
[38]Ibid at [41]
Applying the wrong test
34Applying the wrong test is an error of law. In Craig v State of South Australia[39] the High Court said:
“… [T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. …”[40]
[39](1995) 131 ALR 595
[40]Ibid at paragraph [15]
Discretionary error
35The relevant legal principle for discretionary error is found in the High Court case of House v The King.[41] In that case, the majority of the Court said:
“… 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 to properly 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 the substantial wrong has in fact occurred”.[42]
[41](1936) 55 CLR 499
[42]Ibid at 504-505
Statutory provisions relevant to the application to extend the IVO
36The Magistrate was required to decide whether to extend an existing IVO for the protection of Mr Reid. The provisions relevant to that task (and to the issues raised on appeal) are reproduced below.
37Section 106 of the Act provides:
“Power of court to extend final order
(1) The court may order the extension of a final order on—
(a) an application under this Division; or
(b) its own initiative if the order was made by a court on its own initiative.
(2) The court may order the extension of a final order if the court is satisfied, on the balance of probabilities, that if the order is not extended the respondent is likely to commit family violence against the protected person.
(3) Subsection (2) applies whether or not the respondent has—
(a) committed family violence against the protected person while the final order was in force; or
(b) complied with the order while it has been in force.”
(Emphasis added)
38Section 5 (relevantly) of the Act provides the meaning of family violence as follows:
“Meaning of family violence
(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—
…
(ii) emotionally or psychologically abusive
…
(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).
Examples
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(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;
…
(3) To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.”
39Section 7 of the Act provides the meaning of emotional or psychological abuse:
“Meaning of 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.”
40Section 70 of the Act (relevantly) provides special rules for cross-examination of protected witnesses as follows:
“Special rules for cross-examination of protected witnesses
(1) The following persons are protected witnesses for the purposes of a proceeding under this Act or a litigation restraint order proceeding—
(a) the affected family member or the protected person;
…
(c) any family member of a party to the proceeding;
(d) any person declared under subsection (2) to be a protected witness for the proceeding.
(2) The court may at any time declare a person to be a protected witness if the court is satisfied the person—
(a) has a cognitive impairment; or
(b) otherwise needs the protection of the court.
(3) A protected witness must not be personally cross-examined by the respondent unless—
(a) the protected witness is an adult; and
(b) the protected witness consents to being cross-examined by the respondent or, if the protected witness has a guardian, the protected witness' guardian has consented to the cross-examination; and
(c) if the protected witness has a cognitive impairment, the court is satisfied the protected witness understands the nature and consequences of giving consent and would be competent to give evidence; and
(d) the court decides that it would not have a harmful impact on the protected witness for the protected witness to be cross-examined by the respondent.
(4) If a respondent who is prohibited from cross-examining a protected witness under subsection (3) is not legally represented, the court must—
(a) inform the respondent that the respondent is not permitted personally to cross-examine a protected witness; and
(b) ask the respondent whether the respondent has sought to obtain legal representation for the cross-examination of a protected witness; and
(c) if satisfied the respondent has not had a reasonable opportunity to obtain legal representation, grant an adjournment on its own initiative or if requested by the respondent.”
(Emphasis added)
41Section 71 of the Act provides a mechanism by which the court may order Victoria Legal Aid to provide funding for the cross examination of a protected witness.
42Section 72 of the Act provides.
“Representation of applicant
(1) This section applies if—
(a) a respondent is prohibited from cross-examining a protected witness under section 70; and
(b) the respondent is legally represented; and
(c) the protected witness—
(i) is the applicant; and
(ii) is not a police officer; and
(iii) is not legally represented.
(2) The court must order Victoria Legal Aid to provide legal representation for the protected witness for purpose of cross-examination by the respondent's legal representative unless the protected witness objects to the provision of the legal representation.
(3) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with subsection (2).
(4) However, Victoria Legal Aid may apply all or any of the conditions under section 27 of the Legal Aid Act 1978 to the representation of the protected witness as if the protected witness had been granted legal assistance under that Act.”
(Emphasis added)
Analysis
Ground 1[43]
[43]This ground asserts a failure to provide procedural fairness
43By this ground, Ms Reid asserts that the Magistrate denied her an opportunity to call a relevant witness, Ms Monika Bayles, who had been served a subpoena issued by Ms Reid. It was asserted this prevented Ms Reid from advancing her case.
44The transcript reveals that Ms Bayles was employed as a nurse by Grampians Health. On receipt of the subpoena, Ms Bayles objected to answering it. She was represented on the objection by Ms Raczkowski.
45Ms Reid informed the court of her grounds for seeking to call Ms Bayles. She did so in writing and orally.[44] In essence they assert that:
(a) Ms Bayles evidence will inform of the basis on which Ms Reid was repeatedly identified as a perpetrator of family violence and charged by police with breaching IVOs;
(b) At various times between 2020 and 2022, Ms Reid was admitted as an involuntary patient and Ms Bayles was her case manager and kept her as an involuntary patient; and
(c) Ms Reid needed to question Ms Bayles about why she assessed her as a perpetrator of violence, what risk assessments for family violence were conducted and what evidence was relied on for that conclusion.
[44]The written submission is at CB 40-47, the oral submissions are at CB 218 (being T21)
46The Magistrate heard from Ms Raczkowski that the subpoena was being objected to on the following grounds:
(a) Ms Bayles was a registered nurse who was part of the treatment team at Grampians Mental Health which is headed by a treating psychiatrist. Ms Bayles has no decision making authority;[45]
(b) the subpoena was vexatious as Ms Bayles has been the subject of numerous complaints to APHRA and the like by Ms Reid; and
(c) The Grampians Mental Health service were more than happy to assist the court through the treating psychiatrist who was the appropriate person to answer questions of current diagnosis, assessment treatment or other matters regarding Ms Reid.[46]
[45]CB 218
[46]CB 220, T23
47The Magistrate set aside the subpoena on the basis that there was no legitimate forensic purpose and it was fishing.[47]
[47]CB 229, T32
48In oral submissions during the preliminary hearing, Ms Reid expanded on her reasons why Ms Bayles was a witness who was crucial to her case. They included the following:
(a) Ms Bayles was in possession of relevant documents and information received from others and she could tell the court about those matters; and
(b) Ms Reid wanted to ask Ms Bayles about how and why Ms Bayles put her in the psychiatric hospital and had her “sectioned”.
49
Ground 1 is without merit. The Magistrate considered the submissions of
Ms Reid and those made on behalf of Ms Bayles and found that Ms Bayles was not a relevant witness. He was entitled to do that because he can be taken to have:
(a) accepted the submissions that Ms Bayles was a nurse with no decision making power and so would not be able to explain why Ms Reid had been admitted as an involuntary patient which is what Ms Reid was interested in asking her about;
(b) accepted the submissions on behalf of Ms Bayles that any evidence she could give would be hearsay;[48] and
(c) found that Ms Reid had not established in her oral and written submissions that Ms Bayles’ evidence would be relevant to any issues before him.
[48]CB 219, T22
50I have been unable to understand how Ms Bayles’ evidence could be relevant to the question whether Mr Reid needed protection from Ms Reid. She was not being called as a witness and Ms Bayles’ assessments of Ms Reid as an alleged perpetrator of violence were therefore not before the court. Calling her to give that evidence may well have put those assessments before the court and that would not have assisted Ms Reid.
51Ms Bayles’ evidence was therefore not relevant and the Magistrate made no error when he set the subpoena aside.
Ground 2[49]
[49]This ground asserts a failure to provide procedural fairness
52By this ground, Ms Reid asserts that the Magistrate did not allow her to call a witness, Ms Rebecca Proust, who was her family violence worker and in respect of whom a subpoena had been issued.
53This ground is also without merit.
54Ms Reid told the Magistrate that she had provided the subpoena to a professional process server who “served the police and they were serving [Ms Proust]”.[50]
[50]CB 342. T342
55On the appeal, Ms Reid referred the Court to a photograph of a policeman reading a document which looks like a subpoena addressed to Ms Proust [51]. Ms Reid explained that the process server provided the subpoena to the police to serve on Ms Proust and took the photograph as evidence of that. Ms Reid was unable to provide any affidavit of service in support of her submission.
[51]CB 48-49
56The transcript shows that Ms Proust had likely not been properly served with the subpoena and that the Magistrate observed that there might be any number of reasons for that, including change of jobs by Ms Proust or being overseas.[52]
[52]CB 354, T157
57The Magistrate made no order or direction prohibiting Ms Reid from calling Ms Proust. Ms Reid had been able to subpoena other witnesses[53] and get them to court.
[53]Being Ms Rebecca Genaine, see CB 319 (T122) and SC Jayden Hicks, see CB 358, T161
58Ms Proust’s absence was not due to any orders made by the Magistrate, it was due to the subpoena not having been served on Ms Proust. This ground fails.
Ground 3[54]
[54]This ground asserts a failure to provide procedural fairness
59
By this ground, Ms Reid asserts “the Magistrate “did not call” the applicant
Ms Courtney Stevenson”, denying her the opportunity to cross examine Ms Stevenson.
60This ground is also without merit.
61The Magistrate had no duty to call any witnesses. If Ms Reid wished to have Ms Stevenson called as a witness, she could have subpoenaed her as she did with SC Jayden Hicks.
62Victoria Police provided a “nominal” applicant – SC J R Clarke who was standing in the shoes of the original applicant Ms Stevenson, as she had since left the police force.
63Contrary to Ms Reid’s submission under this ground, she had ample opportunity to test the evidence against her, when she cross examined SC Clarke.[55]
[55]CB 296-314, T99–117
Ground 4
64By this ground, Ms Reid asserts that the Magistrate asked her (the affected family member) to cross-examine Mr Reid (the respondent) when he was in the witness box, which “was a clear violation of the Act” and caused her to be apprehensive and terrified of Mr Reid, despite the fact “my lawyer” was sitting at the Bar table.[56]
[56]CB 77
65This ground is without merit.
66When the matter was called on before the Magistrate, Mr Cochrane announced his appearance on behalf of Mr Reid in respect of the application for an IVO where Ms Reid was the applicant and Mr Reid the Respondent.[57] In that application, Ms Reid was self-represented and Mr Cochrane was briefed to conduct any cross-examination of Ms Reid on behalf of Mr Reid[58] The terms of his retainer were pursuant to a grant of legal aid for funding for cross-examination of a protected witness.[59]
[57]Being proceeding/application number 12912727, see CB 199 (T2)
[58]CB 212-213, T15–16
[59]See s70(3) and s72(2) of the Act which enables the court to order Victoria Legal Aid to provide representation for the protected witness for the purpose of cross examination by the respondent’s legal representative
67Mr Hall announced his appearance on behalf of Ms Reid for the purpose of cross-examination. He explained to the Magistrate that he was briefed only to assist Ms Reid “during her cross examination” and that he was not briefed to assist her with the police application (for extension of the order) which is the subject of this appeal.[60]
[60]CB 204, T7
68The grant of aid is in evidence. It is contained in a letter dated 16 January 2024 addressed to Ms Reid from Victoria Legal Aid. It provides:
“Your family violence intervention order matter is going to a contested hearing, where witnesses give evidence. The Magistrates Court has ordered that we provide you with a lawyer so that you are represented when cross examined by the respondent’s lawyer. We will provide legal assistance during your cross examination. We will not pay for other court hearings or legal costs in this matter”.[61]
(Emphasis added)
[61]CB 53
69After Mr Hill and Mr Cochrane announced their appearance (for the limited purposes described above), The Magistrate took some time to speak to all parties and explain to them that it was desirable for them to attempt resolution of the matter prior to it commencing. The Magistrate then left the bench to enable discussions. Before leaving he said
“So, given what I’ve just said, I’m trying to set a bit of context for you, [Louise], and for [Jake], the lawyers will know all this. Perhaps if I allow you a short time, perhaps for the lawyers to have a discussion, then for you to have a discussion with the lawyers that you are utilising even for limited purposes today, and see whether or not there is some prospect of structuring this in another way. All right? Good”.[62]
[62]CB 210, T13
70When the matter was called on again, the Magistrate was informed that resolution was not possible.[63]
[63]CB211, T14
71The evidence shows that Ms Reid was provided information by Victoria Legal Aid about the terms of the grant of aid and was provided with an opportunity to speak with Mr Hall prior to the matter commencing.
72Ms Reid did not give evidence. Therefore, Mr Hall was not funded to represent her in the proceedings generally, he was only funded in the event Ms Reid chose to give evidence.
73
It was unfortunate that Mr Hall was not funded to assist Ms Reid in cross- examining Mr Reid. Given the cross applications and cross IVO’s, each
Mr Reid and Ms Reid were AFM and Respondent and therefore each were protected witnesses within the meaning of the Act.
74The Act provides that a protected witness must not be personally cross examined by the Respondent unless the protected witness consents.
75In this case, only Mr Reid gave evidence and was subject to cross-examination. Therefore, pursuant to s70(3)(b) of the Act he could and did, consent to being cross examined by Ms Reid, who was respondent to his application.
76The provisions prohibit cross-examination of protected witnesses (unless certain criteria are met) but they do not prohibit cross examination by protected witnesses.
77Insofar as this ground asserts the Magistrate acted in violation of those provisions in the Act, it fails.
Ground 5
78
By this ground, Ms Reid asserts that two witnesses, Ms Rebecca Genaine and SC Hicks were allowed (by the Magistrate) to sit in court during the evidence of other witnesses. The Magistrate is said to have been aware that they were in court at the commencement of the proceeding and she could never be sure if
Ms Genaine, when giving her evidence, was impacted by the testimonies of other witnesses.
79This ground is without merit. The transcript reveals that prior to the commencement of evidence, all witnesses were ordered out of court.[64]
[64]CB 231, T34
80
During oral argument, Ms Reid told the court that the witnesses
Ms Genaine and SC Hicks had been present during the argument about the proposed witness Ms Bayles and the Magistrate’s ruling and their evidence might have been affected by hearing that argument.
81I do not accept this submission. Ms Bayles was never called as a witness, therefore anything heard by the witnesses about what she might have said if she was called was not relevant to their evidence.
Ground 6
82By this ground, Ms Reid asserts that Mr Reid, when giving evidence in the witness box, repeatedly admitted to breaching his exclusion IVO and intentionally coming outside [her] house. In her submissions, Ms Reid submitted that the Magistrate had some obligation to act when Mr Reid made a “confession” to having breached the order.
83This ground is without merit.
84
Taking into account the evidence, the alleged “admission” and the IVOs made by the Magistrate, I consider he in fact took into account the possibility that each
Mr Reid and Ms Reid could breach each other’s IVOs because they live in such close proximity to one another, in a country town. That is no doubt the reason the Magistrate did not impose any conditions other than the condition not to commit family violence.
Ground 7[65]
[65]This ground asserts that the Magistrate applied the wrong test
85By this ground, Ms Reid asserts that Magistrate Stratmann had incorrectly used the Multi-Agency Risk Assessment and Management (“MARAM”)[66] Framework presented to him in the hearing. That is, Ms Reid submitted that “there is no MARAM against me identifying me as perpetrator”.
[66]CB 183-184
86I take Ms Reid to be saying that the Magistrate applied the wrong test.
87The Magistrate referred extensively to the MARAM as outlining the types of behaviours which have been considered to fall within the definition of “family violence” but no reference to that definition and to which aspect of that definition his findings related.
88During his ruling, the Magistrate said:
“…The court is also required to comply (sic) consideration to the risks which is set out in the multiagency risk assessment framework referred to as a MARAM. The matters set out there are very extensive but not limited to that setting out. Some of the matters that are referred to our reference to controlling behaviours, evidence of harming or threatening to harm the affected family member or family members, stalking behaviour, any obsessive or jealous behaviour towards the affected family members, the history of mental illness or depression, commission of emotional abuse
…
In my view, Ms Reid’s behaviour is properly characterised as family violence pursuant to the MARAM assessment process. It is the court’s view, on the basis of the material before it and the documentation specifically filed with this court, that there have been stalking behaviour is directed towards the affected family members, commission of emotional abuse in respect of particularly Mr [Reid] and [Izabelle], and there have been attempts to undermine the child and parent relationship between the children and their father.
There has also been a concerning and erratic history of professional involvement, perpetuated by the respondent aimed at applying emotional and statutory pressure upon the Mr [Reid] to actively undermine his role as parent. In my view this conduct is likely to continue. …”[67]
(Emphasis added)
[67]CB 440-453, T243–255
89In order to grant the extension sought by Victoria Police, the Magistrate had to apply s106 of the Act. That section requires the court to be satisfied on the balance of probabilities that if the order is not granted, the respondent was likely to commit family violence against the protected person. Family violence is defined in s5 of the Act.
90In his written decision, the Magistrate extracted relevant portions of the legislation including s106 of the Act. It is noteworthy that he did not include the definition of family violence is s5 of the Act.
91The Magistrate relevantly said:
“22. The Court is also to apply consideration to the risks which are set out in the Multi Agency Risk Assessment Framework. These matters include, but are not limited to, a consideration of the respondent’s conduct or behaviours and characteristics towards and impacting on the AFM evidenced as follows –
a. Controlling behaviours;
b. Evidence of harming or threatening to harm the AFM or family members;
c. Stalking of the AFM;
d. Any obsessive or jealous behaviour towards the AFM;
e. Mental illness / Depression;
f. Commission of Emotional abuse;
….
h. Undermining the child/parent relationship;
j. History of professional involvement and/or statutory intervention.”
(Emphasis added)
92Paragraph 29 of the written reasons provides as follows:
“in considering the evidence adduced and that matters (sic) I have described above, in my view, Ms [Reid’s] behaviour is properly characterised as family violence pursuant to the Maram risk assessment process. In the Court’s view, the evidence adduced, and documentation tendered and filed with the Court has demonstrated stalking behaviour is directed towards the AFM commission of emotional abuse (in respect of Mr [Reid] and [Izabelle]) and attempts to undermine the child/parent relationship between the children and their father. There has also been a concerning, erratic history of professional involvement perpetuated by the Respondent aimed at applying emotional and statutory pressure upon Mr [Reid] to actively undermine his role as a parent”.
(Emphasis added)
93Counsel for the respondent referred to these two paragraphs as evidence of the Magistrate having applied the correct test under the legislation.
94I reject that submission.
95Those two paragraphs make it clear that the Magistrate applied the MARAM, not the legislation. The references to emotional abuse and attempts to undermine the relationship between Mr Reid clearly derive from the MARAM, which the Magistrate referenced in the previous paragraph.
96Section 5 of the Act provides a definition of family violence. Section 106 of the Act required the Magistrate to find family violence, in accordance with that definition, not in accordance with the MARAM. While the MARAM may have provided further or additional information to the Magistrate about family violence, all decisions made under the Act must be based upon the provisions of the Act.[68]
[68] L v L and Magistrates Court of Victoria [2016] VSC 182
97The decision contained no express findings that any of the matters under s5 of the Act had been made out. Only the MARAM was referenced in the decision and the Magistrate used language such as “the court is to apply the MARAM”.
98Counsel for the respondent submitted that the Magistrate could take the MARAM into account as the Act makes provision for that.
99Counsel referred to section 189 of the Act which provides that the Minister can approve a Family Violence Risk Assessment and Risk Management Framework.[69] Such a framework approved under s189 of the Act is a legislative instrument within the meaning of the Subordinate Legislation Act 1994 (Vic).[70]
[69]See s189(1) of the Act
[70]See s189(4) of the Act
100There is no evidence that the MARAM referred to by the Magistrate was approved under section 189.
101Even if I accept that it was, there is nothing in the provision which authorises the use of the MARAM in place of the requirements of section 5.
102In the circumstances, I consider the Magistrate made a legal error by applying the wrong test.
103This ground is made out.
Ground 8
104By this ground, Ms Reid is challenging the Magistrate’s application of the rules of evidence and under the submissions to this ground, the adequacy of the Magistrate’s reasons.
105There is no substance in the ground that the Magistrate did not apply the rules of evidence correctly. Section 65 of the Act provides that the rules of evidence do not apply (save for certain provisions of the Evidence Act which are not relevant here).
106Ms Reid provided no specific reference to anything the Magistrate said or did which supported her submission.
Adequacy of reasons
107I consider there is merit in Ms Reid’s submission that the Magistrate’s reasons were inadequate.
108Ms Reid’s application to revoke the interim order very clearly stated that she considered she had not done anything wrong and that the IVO was on the wrong person (“who had committed dangerous assaults”).[71]
[71]CB 64
109During the proceeding, Ms Reid told the Magistrate that she considered herself to be the victim of family violence, not the perpetrator. Ms Reid repeated that mantra in her closing submissions.
110After hearing the evidence and submissions from all parties, the Magistrate reserved his decision.
111Three weeks later, on 15 February 2024, the Magistrate handed down a written decision and provided a ruling in court.
112In his ruling, the Magistrate referred to the legislation, the submissions of the parties and the purpose of the Act. In particular, the Magistrate said:
“[Ms Reid] referred the court to the wide definition of family violence as set out in this Act. She asserted that she is the definition itself family violence and that she has in multiple cases been misidentified as the perpetrator of family violence. She stated that she was shocked and, I believe, astonished, genuinely astonished, that Mr [Reid] has not been charged and dealt with in relation to, what she says, are extensive family violence incidents that she has experienced at his hands. Ms [Reid] stated she did not feel safe and there is no one to protect her. In considering all of the above matters in the matters particularly that I’ve just noted, in my view Ms [Reid’s] behaviour is properly characterised as family violence pursuant to the Mariam assessment process”.[72]
(Emphasis added)
[72]CB 453, T255
113There was no reference in the ruling or the written decision to the evidence the Magistrate accepted and what part of that evidence he considered applied to his findings that Ms Reid had committed family violence.
114While there is no provision of the Act which requires reasons to be provided, the Magistrate adjourned the matter to consider the evidence, before deciding. He provided a written decision. In those circumstances, it was important for the decision to clearly and precisely set out the basis on which findings had been made.
115The requirements set out in Makeham v Sheppard are apposite here:
“In any disputed case, a magistrate should set out material findings of fact, together with any ultimate conclusions or findings reached. He or she should provide reasons for arriving at the relevant findings of fact and the conclusions based on those findings, and should give reasons applying the law to the facts as so found. …”[73]
[73]Makeham v Sheppard [2020] VSCA 242 at paragraph [38]
116While that decision related to the Magistrate’s task in summary criminal matters, in my view, it is equally applicable in the family violence jurisdiction.
117Ms Reid was a self-represented litigant who was highly emotional during the hearing and made it clear she could not understand why IVOs had been made against her in the past and why she was currently the subject of such an application.
118
The decision contained an outline of the relevant applications and the legislative provisions. There were no reasons stated for the Magistrate’s findings that
Ms Reid engaged in “emotional abuse”, “stalking behaviours”, or had “professional involvement aimed at applying emotional and statutory pressure”. These terms were not explained in the reasons and no reference was made to the evidence which the Magistrate accepted and which was said to support those conclusions.
119Put simply, the Magistrate did not explain to Ms Reid why he found she had committed “family violence”. This was significant in the circumstances, as Ms Reid had made it clear that she perceived herself to be the victim not the perpetrator of family violence.
120Regrettably, the Magistrate’s decision fell short of the requirement to provide adequate reasons and the jurisdiction of the Court to hear the appeal is therefore enlivened.
121The matter will be listed for the hearing of the appeal at a time convenient to the parties and the Court. In the interim, the matter has been listed for a directions hearing on 16 December 2024, before me.
122Pursuant to section 117(1) of the Act, the IVO requiring Ms Reid not to commit family violence against Mr Reid will remain in force until the appeal is heard and a decision is made by this Court.
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