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Towns (a pseudonym) v Towns (a pseudonym)

Towns (a pseudonym) v Towns (a pseudonym)

Case [2025] VSCA 32 13 March 2025

Civil Litigation & Procedure

Family Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0134

ANDREW TOWNS (A PSEUDONYM)	Applicant
v
NATHAN TOWNS (A PSEUDONYM)[1]	Respondent

[1]In light of the restriction on publication imposed by s 166(2) of the Family Violence Protection Act 2008, pseudonyms have been used in place of the names of the applicant and respondent.

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JUDGES:	PRIEST, KENNEDY and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2025
DATE OF JUDGMENT:	13 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 32
JUDGMENT APPEALED FROM:	[2023] VCC 1878 (Judge Robertson)

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STATUTORY INTERPRETATION – Filing of document – Where party sought to appeal Family Violence Intervention Order (‘FVIO’) in County Court – Notice of appeal provided to registry within time but not accepted for filing by registry within time – Appeal struck out on basis that notice of appeal filed out of time – When a notice of appeal is ‘filed’ within the meaning of s 116(1) of Family Violence Protection Act 2008 – Notice of appeal filed when provided in proper form to registry – Application for leave to appeal granted – Appeal allowed.

PRACTICE AND PROCEDURE – Whether proposed appeal lacks utility because FVIO has expired – Appeal has utility because FVIO gives rise to ongoing legal consequences – Appeal has utility because it has vindicatory and reputational effects.

Family Violence Protection Act 2008, s 116; Magistrates’ Court (Family Violence Protection) Rules 2018, rr 1.10, 3.02, 3.03, 14.01; Interpretation of Legislation Act 1984, s 53.

Ryan v Muir & Co [1912] VLR 411; R v His Honour Judge Fricke [1993] 1 VR 369; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Carroll (a pseudonym) v Browne (a pseudonym) [2018] VSC 25, referred to.

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Counsel
Applicant:		In person
Respondent:		Mr B Petrie
Amicus Curiae:		Dr J McComish with Dr L Hilly
Solicitors
Applicant:	n/a
Respondent:	Muir Legal

PRIEST JA
KENNEDY JA
WALKER JA:

The applicant and the respondent in this matter are brothers. On 16 November 2018, the Moorabbin Magistrates’ Court made a final family violence intervention order (‘FVIO’) against the applicant and in favour of the respondent.[2] The order was to remain in force for a period of five years. The applicant wished to appeal that order. Pursuant to s 116 of the Family Violence Protection Act 2008 (the ‘FVP Act’), any appeal was required to be filed within 30 days after the day the FVIO was made. In the applicant’s case, that required that he file any appeal on or before 17 December 2018.[3] On the present state of the authorities, the time limit prescribed by s 116 cannot be extended.[4]
[2]We note that the proceeding in the Magistrates’ Court was in federal jurisdiction because the applicant was a resident of Western Australia at the time and the respondent was a resident of Victoria, thus engaging s 75(iv) of the Constitution. Ultimately, however, nothing turns on this.
[3]The 30-day period specified in s 116 expired on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Towns (a pseudonym) v Towns (a pseudonym)

Details

AGLC: Towns (a pseudonym) v Towns (a pseudonym) [2025] VSCA 32
Case: [2025] VSCA 32
Decision Date: 13 March 2025

CaseChat Overview and Summary

The case of Towns v Towns, an appeal from the County Court, revolves around the interpretation of the Family Violence Protection Act 2008 and the Magistrates’ Court (Family Violence Protection) Rules 2018. The appellant sought to appeal a Family Violence Intervention Order (FVIO) issued by the County Court. The notice of appeal was provided to the registry within the statutory time limit, but the registry did not accept it for filing within that time. Consequently, the appeal was struck out on the basis that the notice of appeal was filed out of time. The appellant then sought leave to appeal to the Supreme Court, arguing that the appeal had utility and that the notice of appeal was effectively filed when provided to the registry within the time limit.

The legal issues before the court were whether the notice of appeal was 'filed' within the meaning of s 116(1) of the Family Violence Protection Act 2008, and whether the appeal had utility despite the FVIO having expired. The court considered the meaning of 'filing' under s 116(1) and whether the notice of appeal was effectively filed when provided to the registry within the time limit. Additionally, the court examined whether the proposed appeal lacked utility because the FVIO had expired, considering the ongoing legal consequences and the vindicatory and reputational effects of the appeal.

The court held that the notice of appeal was effectively filed when it was provided to the registry within the time limit, as required by the provisions of the Act and Rules. The court found that the notice of appeal was filed when it was provided in proper form to the registry, and not when it was accepted for filing by the registry. The court also determined that the appeal had utility, despite the FVIO having expired, due to the ongoing legal consequences and the vindicatory and reputational effects. Consequently, the application for leave to appeal was granted, and the appeal was allowed.

The final orders of the court were that the appeal was allowed, and the decision of the County Court was quashed. The matter was remitted to the County Court to determine the appeal on its merits.

Orders