Scout (a pseudonym) v Hale (a pseudonym)

[2025] VCC 311

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

APPEALS AND POST SENTENCE APPLICATIONS LIST

DYLAN SCOUT (A PSEUDONYM)	Appellant
v
NATALIE HALE (A PSEUDONYM)	Respondent

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JUDGE:	Her Honour Judge Sanger
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2025
DATE OF JUDGMENT:	26 March 2025
CASE MAY BE CITED AS:	Scout (a pseudonym) v Hale (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 311

RULING
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Subject:FAMILY VIOLENCE INTERVENTION ORDER

Catchwords:              Appeal against family violence intervention order – legal, factual or discretionary error – where appellant is self-represented litigant – final order made in absence of appellant

Legislation Cited:      Family Violence Protection Act 2008 (Vic)

Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Tomasevic v Travaglini (2007) 17 VR 100

Ruling:Appeal against final intervention order made in the Magistrates’ Court at Dandenong on 5 August 2024 dismissed.

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APPEARANCES:	Counsel	Solicitors
For the appellant	The appellant appeared in person
For the respondent	The respondent appeared in person

HER HONOUR:

Introduction

1This is an appeal brought by Mr Dylan Scout[1] (“the appellant”), from a decision of Magistrate Connellan at the Magistrates’ Court at Dandenong, granting a final Family Violence Intervention Order (“FVIO”) on 5 August 2024 for the protection of Ms Natalie Hale[2] (“the respondent”), their child and another child of Ms Natalie Hale (“the decision”).

[1]        A pseudonym.

[2]        A pseudonym.

2On 28 August 2024, pursuant to section 119(2) of Family Violence Protection Act 2008 (Vic) (“the Act”), Mr Scout filed an appeal against the decision.

3Pursuant to the principles in AAA v County Court of Victoria & Ors (“AAA”),[3] the appellant was required to demonstrate a factual, legal or discretionary error in the decision of the Magistrate to enliven the appellate jurisdiction of this Court.

[3][2023] VSC 13

Relevant procedural background and grounds of appeal

4The hearing of the decision at the Magistrates’ Court occurred on 5 August 2024. It had been listed following the appellant’s application to set aside and rehear a previous decision of the Magistrate. However, the appellant did not appear on 5 August 2024, nor did he appear at a prior application he made to set aside and rehear the previous decision of the Magistrate.

5The Magistrate made orders on 5 August 2024 in the appellant’s absence.

6The appellant filed an application to appeal the decision on 28 August 2024.

7His grounds for appeal were “Unfair decision. Find grounds to appeal”.[4]

[4]        Appellant’s Notice of Appeal dated 28 August 2024

8The appellant attended a directions hearing at the County Court in this proceeding on 31 October 2024. He advised the Court that he had a matter listed for hearing in the Ringwood Magistrates’ Court on 6 November 2024, which was relevant to his appeal. On this basis, his proceeding was relisted for a directions hearing on 28 November 2024.

9The appellant attended the directions hearings of the County Court on 28 November 2024. The parties advised this Court that the related proceeding before the Ringwood Magistrates’ Court had resolved, and that there were no outstanding alleged criminal matters. At that directions hearing, orders were made including the following:

(a)   By 27 December 2024, the appellant was to file and serve submissions in relation to:

(i)the legal, factual or discretionary error in the Magistrates' Court decision at the Magistrates’ Court hearing on 5 August 2024; and

(ii)the question of the County Court of Victoria's jurisdiction to hear and determine the appeal.

(b)   If the appellant sought to rely on any new evidence to support his submission, he was to file and serve an outline of the evidence sought to be admitted and the basis on which the Court should allow any proposed new evidence.

(c)   By 28 February 2025, the appellant was to file and serve an individual court book.

10The appellant did not comply with those orders. The appellant did not file any documents in relation to his appeal, nor did he respond to any Court communications.

11The matter was listed for a directions hearing on 5 March 2025 before me.

12The appellant did not appear at the directions hearing. I made orders at that directions hearing adjourning the matter for a further week, to provide the appellant with an opportunity to appear.

13The matter was listed for a directions hearing on 12 March 2025 before me at 10:00am. The appellant did not appear. My Associate telephoned the appellant to ascertain where he was and whether he intended to appear. He advised her that he would arrive at the Court by 11:30am. I adjourned the matter until 12:00pm that day to provide the appellant with the opportunity to appear.

14At the directions hearing, I advised the appellant that his failure to comply with the orders of the Court meant that neither the Court nor the respondent knew what  the basis of his appeal was.

15I also reminded him about the nature of these proceedings, that is, that the next listed hearing in his matter was for the purpose of determining whether there had been a legal, factual or discretionary error on the part of the Magistrate. Only if I were satisfied that the Magistrate made an error would his substantive appeal be heard before the Court. If I were not, he would not be entitled to proceed with his appeal, and that would be the end of his matter.

16I also asked the appellant whether he had obtained legal advice or intended to obtain legal advice.

17In response, the appellant advised me of the following:

(a)   He had not obtained legal advice and did not wish the matter to be adjourned to enable him to obtain legal advice;

(b)   He was unable to comply with the previous Court orders as he was dyslexic; and

(c)   He would prefer to make oral submissions rather than written submissions.

18After hearing from the appellant and considering my duty to provide due assistance to self-represented litigants,[5] I granted him leave to make oral submissions before me at the directions hearing.

[5]        Tomasevic v Travaglini (2007) 17 VR 100, [136]

19He submitted that the Magistrate had relied on hearsay evidence in arriving at his decision to grant a FVIO. That ‘hearsay’ evidence related to charges that had been laid against him for an alleged assault against another woman (not the respondent to this appeal). The appellant advised me that those charges had been ‘dropped’ following the hearing of the decision.

20He submitted that the FVIO should not remain in place given that the Magistrate had made the FVIO based on those assault charges, which had since been dropped.

21Noting the grounds of appeal on his Notice of Appeal, and again noting my duty to provide due assistance to self-represented litigants, I have characterised his grounds of appeal as being:

(a)   That the Magistrate ought not have relied on the assault charges in his reason for decision because the charges were based on ‘hearsay’, confirmed by the fact that that the charges had since been dropped (factual error);

(b)   That the Magistrate accorded too much weight to the assault charges in his reasons for decision (legal error); and

(c)   That the Magistrate took an irrelevant consideration into account in his decision, that being the assault charges (legal error).

22I also note that having set out his case, he referred to new evidence, being evidence that the assault charges had been dropped. The application for new evidence was made out of time and was not given in the proper form. Nonetheless, I accept that that was the evidence that he wished to rely on.

23I afforded the respondent with an opportunity to make oral submissions in reply to the appellant’s submission. She submitted that:

(a)   She had a “limited” FVIO against the respondent at the time of the alleged assault referred to by the appellant;

(b)   She made application for a full, no-contact FVIO after the incident referred to by the appellant;

(c)   It was incorrect for the appellant to submit that the Magistrate made the order because of the incident;

(d)   Their son was present at the time of the incident; and

(e)   There were other reasons that the full FVIO was sought (and, I have inferred, that the Magistrate made the orders).

24I asked the parties whether the Court had all the material before it required to make a determination in this matter. The parties agreed, and consented to a ruling being made on the materials provided and the submissions made at the directions hearing, without proceeding to the next listed hearing. As the parties indicated that they did not wish to make any further submissions, I reserved my decision.

Analysis

25Despite the irregularities in the appellant’s evidence and submissions, he put his best case forward.

26Taking his case at its highest, I find that his case must fail.

27Having reviewed the transcript of the hearing, I have formed the view that the Magistrate did not rely on the assault charges in arriving at his decision. Considering that, I am satisfied that there was no factual or legal error on the part of the Magistrate.

28However, if there was any doubt, I would also have found that the appellant’s case failed because he failed to appear at the hearing on 5 August 2024 to give evidence and make submissions about the basis of the charges against him. It is the responsibility of parties to present to Court when their matter is listed. The fact the appellant did not do so means that he abandoned his opportunity to give evidence and make submissions about the circumstances that led to the charges being laid against him and their relevance, or lack of relevance, to the FVIO hearing. Thus, on that basis, I would also have found that his appeal had failed.

29I therefore find that the appellant has not made out his grounds of appeal and the appeal is dismissed.

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