Soto (a pseudonym) v Lambert (a pseudonym)
[2024] VCC 1175
•24 July 2024 (oral reasons) 8 August 2024 (revised written reasons)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| APPEALS AND POST SENTENCE APPLICATIONS LIST |
| HUBERT SOTO (A PSEUDONYM) | Appellant |
| v | |
| NADIA LAMBERT (A PSEUDONYM) | Respondent |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2024 | |
DATE OF JUDGMENT: | 24 July 2024 (oral reasons) 8 August 2024 (revised written reasons) | |
CASE MAY BE CITED AS: | Soto (a pseudonym) v Lambert (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1175 | |
REASONS FOR JUDGMENT
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Subject:APPEAL AGAINST FAMILY VIOLENCE INTERVENTION ORDER
Catchwords: Legal, factual or discretionary error – where appellant is self-represented litigant – where complaint as to conclusion – bias – apprehension of bias – where no reasons given for decision – error having no material effect
Legislation Cited: Family Violence Protection Act 2008 (Vic)
Cases Cited: AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153; DeVries v Australian National Railways Commission (1993) 177 CLR 472; Lee v Lee (2019) 266 CLR 129; Blunt v Blunt [1943] AC 517; House v The King (1936) 55 CLR 499; Gett v Tabet (2009) 254 ALR 504; WS v Gardin (2015) 48 WAR 494; Jan v Minister for Home Affairs [2019] FCA 1837; De Winter v De Winter (1979) 23 ALR 211; Hobson (a pseudonym) v Secretary to the Department of Justice and Community Services [2022] VSCA 101; Austin v Dwyer [2023] VSCA 227
Judgment: Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The appellant appeared in person | |
| For the Respondent | Mr C Horsfall |
HIS HONOUR:
Introduction
1The appellant, Mr Hubert Soto,[1] brings this appeal against the refusal by the Magistrates’ Court of Victoria of his application for a family violence intervention order (“Mr Soto’s application”) on 1 August 2022.[2]
[1] A pseudonym
[2] The appeal in respect of the Order of Magistrate Bazzani was filed 10 August 2022
Relevant factual background
2Mr Soto and Ms Nadia Lambert[3] were in a relatively brief relationship, having met in Spain; and from this relationship, a daughter, Charmaine,[4] was born in January 2014. Approximately one year and one month later, the parties separated.
[3] A pseudonym
[4] A pseudonym
3On 15 May 2018, a Family Violence Intervention Order was made against Mr Soto in favour of Ms Lambert and Charmaine, providing that he must not commit family violence against Ms Lambert or Charmaine by himself or his agents (“Intervention Order”). The Intervention Order expires at midnight on 15 May 2028.
4On 31 January 2020, a number of charges of breaches of the Intervention Order were found proven against Mr Soto.
5On 6 March 2019, Judge Stewart of the Federal Circuit Court of Australia made various orders including, at paragraph 17, provision for all communications between Mr Soto and Ms Lambert to occur between a co-parenting application (Our Family Wizard (“OFW”)); and, further, that all communication should be respectful and polite towards the other. I note Mr Soto was also directed by the Family Court to attend upon a psychologist at his own expense for not less than three sessions to assist in understanding the Orders made on 6 March 2019 and the reasons behind them.
6In November 2021, Family Court orders reflect breaches of parenting orders on two occasions in August 2020 by Ms Lambert, in that she was not facilitating contact with Mr Soto when Charmaine was with her father on Sundays via electronic communications. The Family Court, at that time, ordered that Charmaine is at liberty to communicate with each of her parents at all reasonable times, and the parent who has the child in his or her care should facilitate her requests for such contact.[5]
[5] Magistrates’ Court Bundle at page 117, evidence tendered
7On 25 April 2022, there was an exchange of emails between the parties in relation to further, unrelated intervention order proceedings involving certain persons named in the Intervention Order as agents of Mr Soto. The tone of those messages, insofar as they were sent by Mr Soto to Ms Lambert, are emotional and derogatory.
8On 1 May 2022, there was an unfortunate email exchange between Mr Soto and Ms Lambert, which followed a series of messages sent to Charmaine by Ms Lambert (care of Mr Soto’s mobile phone) when Charmaine was with her father. The exchange reflects poorly on both parties. Although purportedly in relation to matters relating to Centrelink and other issues that must be navigated by separated parents, the emotion in the exchange is palpable. There is no other evidence of email communications between the parties of this tenor.
9In this context of an unfortunate history of the breakdown of a relationship involving a young child, the Intervention Order and Family Law Court orders in place in relation to parenting arrangements and other matters, on 5 May 2022, Mr Soto sought an intervention order pursuant to the provisions of the Family Violence Protection Act 2008 (“Act”). The basis of Mr Soto’s application was that Ms Lambert “is harassing me almost every weekend when my daughter is with me”.
10In pursuing his application in the Magistrates’ Court, Mr Soto was heavily reliant upon Ms Lambert’s alleged breach of various Family Court orders.
Family Violence Protection Act 2008
11The Act defines “family violence” in s5 as follows:
“(1) …
(a)behaviour by a person towards a family member of that person if that behaviour—
(i)is physically or sexually abusive; or
(ii)is emotionally or psychologically abusive; or
(iii)is economically abusive; or
(iv)is threatening; or
(v)is coercive; or
(vi)in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; …
…
(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.
… .”
12The powers of the Court to make a final order are set out in s74 of the Act:
“(1) The court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.”
13Mr Soto’s application was refused principally on the basis of her Honour Magistrate Bazzani’s interpretation of the term “harass”, which although not defined, is contained within the definition of s7 of the Act of the meaning of the term “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.”
14The transcript of the hearing on 1 August 2022 is available. It contains the learned Magistrate’s brief reasons for her decision (“Reasons”). I have also conducted a real review of the evidence tendered or available to the Magistrate at the hearing on 1 August 2022. The hearing on 1 August 2022 was conducted via Zoom.
Appeal
15I now turn to consider the appeal.
16The appeal comes before this Court pursuant to s114 of the Act.
17Relevantly, s119 of the Act specifies the following:
“(1)The appeal is by way of rehearing by the County Court or the Supreme Court.
(2)On the appeal, the County Court or Supreme Court may—
(a)confirm the relevant decision; or
(b)set aside the relevant decision; or
(c)vary the relevant decision and make any other order the Magistrates’ Court or Children’s Court could have made and exercise any other powers that the Magistrates’ Court or Children’s Court may have exercised; … .”
18The Court set an initial timetable for the hearing of these matters on 14 October 2022.
19Prior to the trial date, the Supreme Court handed down the decision by the Honourable Justice John Dixon in AAA (a pseudonym) v County Court of Victoria & Ors[6] (“AAA”).
[6] [2023] VSC 13
20In that decision, Dixon J considered the terminology associated with s119, and particularly the meaning of the term “rehearing by the County Court” which appears there. In that case, his Honour held that an appeal under s119 is a broad appeal by rehearing. The features of such a broad appeal are the following:
(a) that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[7]
(b) the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual or discretionary error;[8]
(c) the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[9]
(d) the Court is required to assess and evaluate the evidence for itself.[10]
[7] AAA at paragraph [50]
[8] Ibid
[9] Ibid
[10] Ibid
21However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand.[11]
[11] AAA at paragraph [54]
22As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[12] He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal. It is then the appeal court’s function to apply the law at the time when the appeal is heard to consider all of the admitted evidence. He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[13]
[12] AAA at paragraph [63]
[13]AAA at paragraph [51](b) relying on Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624 at 645, paragraph [65]
23Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this Court. Such error may be proved after an examination of the transcript in the Magistrates’ Court, to examine the conduct of the proceeding and any reasons for decision.
24As can be seen from the procedural history set out above, at the time that Mr Soto initiated his appeal, the decision in AAA had not clarified the nature of the appeal in this Court. Mr Soto had proceeded in accordance with court orders on the basis that the hearing in this Court would be an appeal as if the case were heard de novo. This meant he was not obliged to identify the legal, factual or discretionary error in the Magistrates’ Court below, he was not obliged to provide the audio, transcript, or reasons in the Magistrates’ Court proceeding below, and he did not have to identify any new evidence which he sought to adduce in these appeals.
25Various procedural orders were made by this Court to facilitate the parties filing materials in accordance with AAA.
Grounds for appeal
26Mr Soto filed a document in which he set out the grounds of his appeal, being that:[14]
“2.The Magistrate[’s] [C]ourt, in rendering the decision, failed to adequately consider and ignored critical pieces of evidence presented within the Affidavit and further and better particulars. This omission has led to an appeal to the County Court.
3.The Magistrate failed to adhere to the rules of procedural fairness by imposing a ‘mute’ on the applicant [for] the majority of the hearing, depriving him of the opportunity to address critical issues. Additionally, the Magistrate allowed the respondent to make false statements attributed to a psychologist[’s] advice [ap]pointed by the court that does not exist and as per court orders was withdrawn in 2019, false statements of why federal orders were changed on 05/11/2021,[[15]] and denied the existence of [the] respondent's previous finding of guilt of breach of the orders on 05/11/2021. This prejudicial conduct not only silenced the applicant but also permitted the propagation of unsupported and damaging opinion and judgement, undermining the fairness and integrity of the proceedings.”
[14] Statement of the Grounds of Appeal dated 12 February 2024, Joint Court Book (“JCB”) 76-77
[15] In substance this complaint appears to be one of taking into account irrelevant considerations
27I interpose to make a finding that the issue and reliance upon Mr Soto of the word “guilt” has been a distraction for him, and potentially for the appeal. The Magistrate was plainly correct in finding that the term “guilt” itself is inapposite, but properly considered both the fact of an order having been made reflecting Ms Lambert’s breaches of a Family Court order, and also properly considered the nature of the relevant underlying communications in making her findings.
28The grounds of appeal continue:
“4.The opinions expressed by the Magistrate and the respondent’s solicitor lack rationality, especially evident in their dismissal of the application despite the existence of two court orders from distinct jurisdictions—Federal and Magistrate. This decision-making process appears irrational, particularly in light of the contradictory stance towards the Federal Final court order. Additionally, the dismissal of the application based on an alleged selfish and non-child-focused purpose, despite the applicant faced in 3 occasions charges after reply emails to the respondent outside of the communication channel [ap]pointed by the Final Federal court order 06/03/2019, OFW, further underscores the lack of logical connection between the presented evidence and the decision reached. This irrationality raises serious concerns about the fairness and reasonableness of the decision, warranting a thorough review by the County Court.
…
5.The Magistrate’s exercise of discretionary power displayed unreasonableness, particularly through comments made against the applicant.[[16]] The decision-making process lacked fairness as it failed to provide an equal opportunity for speech and defence, allowing hearsay and unfounded manipulations of the truth to influence the outcome. This manifestation of unreasonableness falls outside the ‘area of decisional freedom’ conferred by the statutory scheme, warranting a thorough review by the County Court.
…
6.The Magistrate failed to address or misinterpreted an important claim, issue, submissions, or item of evidence during the proceedings. Her Honour ignored and misconstrued material crucial to the issues before the court, and this failure to properly consider the material amounts to a constructive failure to exercise jurisdiction. This includes, Affidavit & Summary of evidences, Federal final orders 06/03/2019, Federal order 05/11/202, and crucial Evidences (12, 13, 14, etc.) which was unjustly disregarded during the proceedings.”
[sic]
[16] In substance this complaint appears to be one of bias
29The legal framework was explained to Mr Soto at a pre-trial directions hearing before me on 14 May 2024. The initial hearing on 24 May 2024 scheduled to consider the preliminary matter was adjourned for the purpose of Mr Soto’s appointed legal representative having a reasonable opportunity to:
(a) review the material and provide advice to him; and
(b) enable legal representation for the purpose of any cross-examination of the respondent at the hearing of the appeal (subject to Mr Soto establishing the Court’s jurisdiction in the first instance by demonstrating error on the face of the decision of Magistrate Bazzani).
30For the purposes of the hearing of this matter, the Court compiled both parties’ filed documents into a Joint Court Book. Numerous documents were also tendered.
Errors of law, fact and discretion
31What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[17] With that said, established legal principles operate to guide the courts through an assessment of claimed errors. I turn now to briefly consider those.
[17] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Legal error
32A legal error may arise in the way in which a court “undertakes its fact-finding, or … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning”.[18]
[18]Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at paragraph [23]
33Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[19]
[19] Ibid
Factual error
34A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[20] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[21]
[20] DeVries v Australian National Railways Commission (1993) 177 CLR 472 at 479
[21] Ibid
35The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[22]
“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. … .”
[22] (2019) 266 CLR 129 at paragraph [55]
36Similarly, in Blunt v Blunt[23] it was said:
“… If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. … .”
[23] [1943] AC 517 at 526
Discretionary error
37Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
38The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[24]
“… 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. … .”
[24] (1936) 55 CLR 499 at 504-505
Complaints as to conclusion
39Notwithstanding the statutory obligations placed upon appellate courts to scrutinise the evidence, inferences and conclusions before them, the general “tenor” of appellate court decisions on these issues is of a broad respect for the conclusions reached by trial judges.
40To establish that a conclusion of a trial judge was incorrect, it is necessary for an appellant to satisfy the appellate court that the trial judge reached the wrong conclusion by reason of an error of law, fact or discretion, supported by evidence.[25]
[25] Gett v Tabet (2009) 254 ALR 504 at paragraph [22]
41In Gett v Tabet,[26] Allsop P, Beazley and Basten JJA explained:
“… Where no error can be identified and the conclusion of his Honour is not itself implausible, this Court should properly give weight to the view formed by the trial judge, because to do so is to acknowledge the fact that in various respects, his Honour enjoyed a beneficial position in resolving conflicting evidence, drawing inferences and making the ultimate evaluative judgment.”
[26] Ibid
42In circumstances where an error is identified, to succeed on appeal it must be established that the identified error puts the validity of the conclusion in doubt. If the error in question is inconsequential, the fact of the error is not of itself enough for an appeal to succeed.[27]
[27]WS v Gardin (2015) 48 WAR 494 at paragraphs [138]-[139]; see also Jan v Minister for Home Affairs [2019] FCA 1837 at paragraph [48]
43The High Court in De Winter v De Winter[28]clarified the circumstances in which such an error would affect the ultimate decision on appeal:
“There are many other authorities, from Young v Thomas [1892] 2 Ch 134 at 137 to Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themsleves [sic] have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations.”
(emphasis added).
[28] (1979) 23 ALR 211 at 217-218
44Finally, where an appeal is brought on the basis that a trial judge ought to have attributed greater weight to certain evidence, or reached an alternative conclusion based on the evidence, it is necessary for the appellant to establish that the conclusion of the primary judge was not open on the material before them.[29]
[29]Hobson (a pseudonym) v Secretary to the Department of Justice and Community Services[2022] VSCA 101 at paragraphs [20]-[21]
Findings
45The actual messages sent to Charmaine by Ms Lambert the subject of complaint at the Magistrates’ Court hearing are located in “Evidence 13”, contained within a bundle of documents which I reviewed, and form part of the materials considered by Magistrate Bazzani in the hearing of Mr Soto’s application.
46The messages to Charmaine are in and of themselves innocuous, depicting photographs for the benefit of Charmaine of various animals, including her dog and cat, and supportive, loving messages to a daughter, on the following dates:
(a) 4 and 20 January 2022;
(b) 5, 6 and 17 February 2022;
(c) 4 March 2022, including the respondent’s statement that the messages are for Charmaine and a request to show her the messages, and that there is no need for the applicant to contact or respond to Ms Lambert;
(d) 20 March 2022;
(e) 2 and 23 April 2022;
(f) 1, 14, 15, 28 and 29 May 2022;
(g) 11, 12 and 29 June 2022; and
(h) 2 July 2022.
47Self-evidently, many of these messages post-date the service of Mr Soto’s application (filed 5 May 2022). For this reason, I find that the messages sent by Ms Lambert were for the purpose, at least in part, of upsetting and annoying Mr Soto. I feel it appropriate, as did Magistrate Bazzani, to suggest Ms Lambert consider desisting from engaging in contact with Charmaine, which might interrupt the access of a father to a daughter, and find a manner of complying with the Family Court orders that does not annoy Mr Soto.
48Notwithstanding this finding, I am not satisfied that this conduct is “family violence” within the meaning of the Act.
49There are a number of examples of “family violence” set forth in the legislation. The messages of the tenor sent to Charmaine by her mother do not expose either Mr Soto, or for that matter, Charmaine to any issue of safety or danger and do not constitute emotional or psychological abuse within the terms of the definition in s7 of the Act.
50Acknowledging Mr Soto’s heavy focus upon Ms Lambert being in breach of Family Court orders by sending inoffensive messages to Charmaine care of Mr Soto’s mobile phone; and his allegation Ms Lambert harassed him during his weekend contact with Charmaine, the meaning of emotional or psychological abuse is “behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person”. The term “harass” is not defined.
51The learned Magistrate’s Reasons for her decision include the purpose of the Act being to maximise safety for children and adults who have experienced family violence; to prevent and reduce family violence, and to provide accountability for perpetrators. In her Honour’s view, having regard to the context of the legislation, one of the foremost purposes of the Act is to maximise safety for children.
52As her Honour found, although “harass” is not defined in the Act, there are examples or instances of abuse, which included “preventing a person from making or keeping connections with the person’s family”. The Oxford Language Dictionary of Australia defines “harassment” as aggressive pressure or intimidation. Similar words, according to the Oxford Language Dictionary, include persecution, harrying, pestering, badgering and intimidation.
53It is perhaps unfortunate the Magistrate did not set out more detailed reasoning in relation to the scheme of the Act; however, her ultimate findings in relation to the communications said to comprise harassment were clear, reasoned, and overcome any perceived error in this regard. The factual finding that the messages did not constitute harassment, which was entirely open to her, was sufficient to refuse Mr Soto’s application.
54I acknowledge the difficult and emotional circumstances the parties find themselves in. I find, however, that the messages to Charmaine in and of themselves do not constitute “family violence” within the meaning of the Act.
55I have considered the grounds set out at paragraphs [26] and [28] above and make the following findings.
56Mr Soto submitted, in terms of material error, that the Magistrate failed to take into account or consider the following relevant evidence:
(a) the various Family Court orders.
(b) that the messages to Charmaine were sent to his mobile phone; and
(c) email correspondence between the parties.
57It is plain from the Reasons and the conduct of the application before Magistrate Bazzani that the Family Court orders were front and centre in her Honour’s mind. She acknowledged in terms that she had read and understood them. I reject this ground. Although Ms Lambert may have been in breach of Family Court orders, in that the messages to Charmaine and Mr Soto were not sent via the OFW platform or for an emergency or health purpose, I reject the submission that the Magistrate failed to take the Family Court orders into account in refusing Mr Soto’s application.
58I have reviewed the evidence available to the Magistrates Court, in particular, documents referred to as “Evidence 12, 13 and 14”, and comprising the various communications between Mr Soto and Ms Lambert.
59I reject the submission that the Magistrate failed to take into account the messages to Charmaine, and the fact they were sent to Mr Soto. It is plain Magistrate Bazzani made findings that these messages were intended for Charmaine and do not constitute family violence, and her reasoning on this issue is not in error.
60The Reasons fail to mention historical email communications in 2018, however these communications do not seem apposite in the context of the task of the Court under s74(1) of the Act to enquire into and to make findings as to whether the respondent has committed family violence against the affected family member and is likely to continue to do so, or do so again. Understood as a whole, by the exchange between Mr Soto and the Magistrates’ Court, it is apparent that her Honour considered those emails too remote to the conduct complained of in 2022, being four years previous, and her consideration of whether family violence had occurred, and was likely to occur again. No error is demonstrated in this regard.
61Her Honour did not refer to the email communications on 25 April 2022, however, I find these emails to have been initiated by Mr Soto and not capable of supporting an order under s74 of the Act. Any response by Ms Lambert to communication from Mr Soto could hardly constitute harassment. I find the exchange between the parties on 25 April 2022 was in that category. It does not constitute “family violence” within the meaning of the Act. Any failure to refer to this exchange was of no moment in her Honour’s refusal of Mr Soto’s application.
62The Reasons also do not refer to the email exchange on 1 May 2022 between Mr Soto and Ms Lambert in relation to ongoing Centrelink and other issues referred to above at paragraph 8.
63Again, while the emails on 1 May 2022 may have been in breach of Family Court orders, this exchange does not constitute family violence. To the extent Mr Soto suggested that this failure to make a specific finding in relation to the 1 May 2022 emails infected Magistrate Bazzani’s overall conclusion, I find this error would not have affected the outcome of Magistrate Bazzani’s decision. This is so because the emails could not on any view support a finding of family violence or an order under s74 of the Act.
64Mr Soto made an implicit complaint in his grounds dated 12 February 2024 as to inadequate reasons in these terms:
“The Magistrate failed to address or misinterpreted an important claim, issue, submissions, or item of evidence during the proceedings. Her Honour ignored and misconstrued material crucial to the issues before the court, and this failure to properly consider the material amounts to a constructive failure to exercise jurisdiction. … .”
65Taken as a whole, it is clear that during the hearing on 1 August 2022, the Magistrate received evidence about all of Mr Soto’s complaints of harassment and made findings accordingly.
66Mr Soto has not satisfied me that her Honour failed to consider the evidence. Her Honour’s Reasons, although brief, focused on the task before the court. That another Court may have come to the same view, expressed in a different way, does not disclose any factual, legal or discretionary error in this appeal. Her Honour’s findings that the relevant messages to Charmaine did not constitute family violence may not be impugned. Any failure to refer to other evidence would not have altered the outcome of the hearing for the reasons set out above.
67In terms of the grounds of breach of procedural fairness, in that the Magistrate put Mr Soto on “mute”, a review of the transcript reveals that this only occurred during initial discussions between the parties, which were conducted prior to the hearing; and then again whilst delivering her ruling. There was no error on the basis of a failure to afford procedural or natural justice to Mr Soto. Her Honour was entitled to mute Mr Soto in the context of his behaviour which she perceived to be inconsistent with orderly conduct of her court, and she otherwise afforded Mr Soto every opportunity to present his case.
68The further ground of “irrational opinions” contained in the Reasons which were “contrary to Family Court Orders”, I reiterate that those orders had only marginal relevance to Mr Soto’s application. Her Honour displayed knowledge and an understanding of the terms of the Family Court orders, but critically was exercising powers under the Act and made findings on the evidence before her. This ground is also dismissed.
69The finding at page 58 of the Reasons that the messages sent to Mr Soto’s phone were meant for Charmaine is plainly grounded in her Honour’s review of the messages and photographs referred to above, and correct. I accept Mr Soto’s submission that while other emails in evidence were not for Charmaine, having regard to my findings above, this alleged error – to the extent that it exists on the face of the record – could not have influenced the outcome of the application.
70In terms of the allegation of bias, in substance this complaint is intertwined with Mr Soto’s complaint as to a lack of procedural fairness. There is no basis for this appeal ground.
71The test for bias is clearly set out in Austin v Dwyer:[30]
“In an application for disqualification on the basis of bias, two different types of bias may be alleged: actual or apprehended. Actual bias necessitates proof that a decision-maker as a matter of fact approached the issues with a closed mind or had prejudged so that they were ‘so committed to a particular outcome that he or she will not alter that outcome, regardless of what evidence or arguments are presented’.
Apprehended bias requires consideration of whether, in all the circumstances, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question.
There is no evidence of actual bias. It is tolerably clear that Ms Austin’s application must be based on an allegation of apprehended bias.
The test for what is required to establish an apprehension of bias was set out by Kiefel CJ and Gageler J in CNY17 v Minister for Immigration and Border Protection as follows:
‘Establishment of an apprehension of bias on the part of the Authority then requires the taking of two essential steps: first, identification of the factor which it is postulated might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits; and, second, articulation of how that factor might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits. Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred. In taking that third step, ‘it is the court’s view of the public’s view, not the court’s own view, which is determinative.’”
[30] [2023] VSCA 227 at paragraphs [33]-[36]
72There is no indication in the transcript of the hearing that Magistrate Bazzani determined the application otherwise than on an independent and impartial evaluation of the merits. No fair-minded lay observer with knowledge of the objective facts might reasonably apprehend that by conducting preliminary discussions with both parties with a view to encouraging settlement, or muting Mr Soto in light of his conduct before the hearing had actually commenced, any departure from this standard might have occurred.
73I reject the ground that the Magistrate took into account the irrelevant considerations of Ms Lambert’s comments in relation to the background history of the relationship. The comments were made before the hearing commenced, at a time when the Magistrate was exploring the possibility of the parties resolving the matter privately without the need to proceed to a formal hearing. Mr Soto was given every opportunity to present his case at the subsequent hearing, gave oral evidence, was cross-examined, tendered documents and made submissions. The respondent gave no evidence at the hearing on 1 August 2022. There is no reference in the Reasons, direct or inferred, to any comments made by Ms Lambert prior to the hearing.
Conclusion
74As a result of the above findings, I dismiss the appeal and confirm the Orders of the learned Magistrate.
75The parties will be given liberty for a period of 14 days to make application for any consequential orders.
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