TS v DT
[2020] ACTCA 43
•27 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | TS v DT |
Citation: | [2020] ACTCA 43 |
Hearing Date: | 4 August 2020 |
DecisionDate: | 27 August 2020 |
Before: | Elkaim, Mossop and Collier JJ |
Decision: | Appeal dismissed |
Catchwords: | APPEAL – FAMILY VIOLENCE – Appeal of Family Violence Order – Whether primary Judge attempted to cover up Magistrate’s alleged misconduct – whether primary Judge erred in finding no miscarriage of justice – improper application of Browne v Dunn principle – lack of consideration of personal circumstances EVIDENCE – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether Failure to Adduce Due to Mistake or Oversight – Self-represented litigant – relevance |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5606 |
Cases Cited: | Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 |
Texts Cited: | JD Heydon, Cross on Evidence (LexisNexis Butterworths, 12th ed, 2020) |
Parties: | TS (Appellant) DT (Respondent) |
Representation: | Counsel TS (Appellant) B Hamack (Respondent) |
| Solicitors In person (Appellant) Legal Aid ACT (Respondent) | |
File Number: | ACTCA 50 of 2019 |
Decision under appeal: | Court: ACT Supreme Court Before: Crowe AJ Date of Decision: 25 October 2019 Case Title: TS v DT Citation: [2019] ACTSC 295 |
ELKAIM J
I have had the benefit of reading in draft the judgment of Collier J. I have also read the additional comments of Mossop J. I agree with both the reasons and the order proposed by Collier J.
As to the comments made by Mossop J, on my reading of the judgment of Collier J, her Honour’s rejection of the respondent’s submissions in respect of ground 7, should be regarded as obiter dicta for the reason given by her Honour, namely that no Notice of Contention was filed by the respondent.
There is one other point that I would like to make. This is an appeal from an appeal. The appellant had a right to appeal from the decision of Crowe AJ, the primary Judge (s 37E of the Supreme Court Act 1933 (ACT)). He also had a right to appeal from the decision of the Chief Magistrate to the Supreme Court (s 93 of the Family Violence Act 2016 (ACT)). In my view his rights of appeal should have been restricted to the latter appeal, namely from the Magistrates Court to the Supreme Court. Any further appeal should have been subjected, at the least, to a requirement that there be a grant of leave to appeal.
The Court of Appeal is consistently being called upon to deal with appeals of this nature, which in my view are often a waste of time and resources. This is not to say that this, or any other, ‘second’ appeal is necessarily without merit. Rather there should be an initial testing of that merit by an application for leave to appeal.
| I certify that the preceding four [4] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 27 August 2020 |
MOSSOP J
Subject to one issue I agree with the reasons given by Collier J and agree that the appeal should be dismissed.
In relation to ground 7 in the Notice of Appeal the respondent contended that the primary Judge erred in holding that a review or appeal of the 2018 Convictions had been "started" by reason of the Application for leave to appeal out of time. As a consequence she contended that by reason of s 92 of the Evidence Act 2011 (ACT) (the Evidence Act), s 91 did not prevent admission of evidence of the conviction. However no Notice of Contention was filed by the respondent. I prefer not to express any view upon the merits of the respondent's submission that s 92 of the Evidence Act permitted the evidence of convictions to be admitted. It is sufficient to dispose of this ground of appeal to conclude, as the primary Judge did, that even if the evidence was wrongly admitted, there was no miscarriage of justice.
| I certify that the preceding two [2] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 27 August 2020 |
COLLIER J
Before the Court is an Amended Notice of Appeal from the decision of the primary Judge in TS v DT [2019] ACTSC 295. The primary decision upheld the decision of the Chief Magistrate to make a Family Violence Order (FVO) against the appellant under s 34 of the Family Violence Act 2016 (ACT) (the FV Act). The appellant, TS, seeks, in summary, that the FVO made by the Chief Magistrate be quashed and that no further orders be made excluding the appellant from the premises of the family home.
History of the appellant’s claims
The history of the proceedings, at least in respect of the proceeding before the Chief Magistrate, is set out at [12]–[32] of the primary decision.
The appellant and the respondent were married in 1988 in Sri Lanka, and came to Australia in 1995. They have two children, a son born in 1990 and a daughter born in 1992.
In or around 2007/2008 there was an incident involving the appellant, the respondent and their son at their family home. There is some lack of clarity associated with when this incident occurred. Insofar as I understand it:
(a)In his submissions, the appellant refers to “the 2007 incident with my son for which I was convicted for common assault. My son who was born in 1990 was 17 years at that time. So much for ms theodore’s persistent efforst [sic] to paint the picture of an angry man. For 17 years I never got angry with my son and when I did it it was for his own future and welfare where I wanted him to enter a uni without whiling away one year at home doing nothing. What is wrong with a father getting angry for that, especially if the son does not like my decision and keeps scowling at me whenever he looks at my face”;
(b)The only convictions the Chief Magistrate referred to were the 2018 Convictions and the appellant having been convicted, and sentenced to a 12 month Good Behaviour Order, for assaulting his son “in 2007” and “brandishing a knife over [the son’s] refusal to comply with [the appellant’s] wishes regarding his tertiary education arrangements”; and
(c)The respondent submitted that the Chief Magistrate did not err in considering evidence of the appellant’s 2011 convictions, which were set out in a judgment of the Supreme Court decided in 2011 (2011 Judgment). In that judgment the appellant was convicted of four charges of common assault arising from events at his home with his family on 8 July 2008, described by Refshauge J as involving disagreements between the appellant’s son and the appellant regarding university choices, a physical altercation between them, and the appellant taking a knife, and an assault by the appellant on the respondent when she sought to prevent the appellant assaulting their son.
I understand these discussions refer to the same incident. Although the record in the 2011 Judgment indicates the events occurred in 2008, it is convenient to continue to refer to them as the 2007/2008 incident.
The appellant was found guilty of two charges of common assault against the son and two charges of common assault against the respondent, and sentenced to a 12 month Good Behaviour Order.
The appellant and the respondent separated in 2008, although continued living under the same roof at the family home in Wanniassa in the Australian Capital Territory.
On 7 October 2017, there was another altercation between the appellant, the respondent and their son involving alleged assault and the use of a knife to damage a couch in the residence. The appellant was subsequently charged with criminal offences in relation to that altercation (2017 Charges).
On 16 October 2017, the respondent filed an application, seeking an interim FVO, as well as a final FVO with a duration of two years, against the appellant. A special interim FVO within the meaning of s 22 of the FV Act was made on 16 October 2017 and prohibited the appellant from:
(a) being on the premises of [the family home] where the protected person(s) live(s);
(i)except on one occasion in the company of a member of the Australian Federal Police for the purpose of collecting and returning personal belongings;
(b) being within 100 metres of the protected person(s);
(i)except when the respondent is attending at the protected person’s residence specified above in the company of the Australian Federal Police;
(ii) except at a Court of Tribunal proceeding;
(iii)except at a counselling or mediation session or restorative justice conference arranged with the protected person’s consent;
(c) contacting the protected person(s);
(i) except through a legal practitioner;
(ii)except at a counselling or mediation session or restorative justice conference arranged with the protected person’s consent;
(d)engaging in behaviour that constitutes family violence towards the protected person(s);
(e)causing someone else to contact the protected person(s), except as permitted by the order;
(f)causing someone else to do anything that is family violence in relation to the protected person(s).
On 8 November 2017, by a Notice of Adjournment set out in correspondence from the Magistrates Court, the respondent’s FVO application was adjourned until after the 2017 Charges against the appellant were “finalised”.
The 2017 Charges were before the Magistrates Court on multiple occasions during 2018. On 21 September 2018, the appellant was found guilty in the Magistrates Court of three charges of common assault and one charge of damaging property (2018 Convictions) (these convictions were identified in a subsequent judgment of the Supreme Court in 2019).
On or about 9 January 2019, the appellant sought relief by way of an application in the FVO application proceedings, namely an order to let him back into the family home.
On 16 January 2019, Magistrate Morrison ordered the appellant’s application of 9 January 2019 and the FVO application be listed for a return conference on 30 January 2019. Magistrate Morrison also ordered that the appellant’s application of 9 January 2019 be taken as an amendment application under s 82 of the FV Act. It is convenient to refer to this application henceforth as the appellant’s Application to Amend the FVO.
On 21 January 2019, the Magistrates Court sentenced the appellant to a 12 month Good Behaviour Order in relation to the 2018 Convictions.
On 30 January 2019, the parties were unable to resolve the issues between them at the return conference, and the appellant’s Application to Amend the FVO and the FVO application were listed for hearing on 21 February 2019.
On 21 February 2019, the FVO application and the appellant’s Application to Amend the FVO came before the Chief Magistrate.
On 14 March 2019, the Chief Magistrate delivered her decision. Her Honour ordered a final FVO against the appellant for a period of two years on the same terms as the special interim FVO (final FVO).
On 15 March 2019, McWilliam AsJ in the Supreme Court granted the appellant leave to appeal out of time from the 2018 Convictions.
On 11 April 2019, the appellant filed a Notice of Appeal in the Supreme Court against the final FVO.
On 18 April 2019, the appeal against the 2018 Convictions was heard by McWilliam AsJ.
On 8 May 2019, McWilliam AsJ delivered her decision in the appeal against the 2018 Convictions, allowing the appeal, quashing the 2018 Convictions and remitting the four charges to the Magistrates Court for rehearing and determination. Her Honour rejected the appellant’s claim for acquittal for insufficiency of evidence, however, allowed the appeal on the basis that the learned Magistrate erred in admitting into evidence the prior judgment concerning the 2007/2008 incident.
On 20 June 2019, the respondent was granted leave by the Deputy Registrar of the Supreme Court to file an application seeking a stay of the final FVO appeal. I understand from the reasons of the primary Judge at [5], that the respondent sought a stay “having regard to” the appeal against the 2018 Convictions.
The application for a stay of the final FVO appeal was heard by the primary Judge on 15 July 2019 and 9 August 2019. The primary Judge determined that it was not appropriate in the circumstances to order a stay.
On 30 September 2019, the final FVO appeal was heard by the primary Judge. The primary Judge delivered his decision on 25 October 2019, dismissing the appeal and confirming the final FVO.
The appellant filed a Notice of Appeal on 30 October 2019. He subsequently filed an Amended Notice of Appeal on 5 March 2020.
The primary decision
The grounds of appeal before his Honour were as follows:
(1)2 years from 14.3-19 is unreasonane because trouh an tinterim ordor I was alras not allows to go to my house from OCT 2017. So when this order expires I would be totally 3 ½ years banned from my hose.
(2) At the hearing the respondent admitted that her son has a town house.
(3) The magistrate gave the order without seeing whether I have accommodation or not.
(4)The respondent gave only one incident that happened 10 years ago where a musical instrument was broken to [indiscernible] … wher were the other inciden no pattern of violence previously.
(Errors in original)
After setting out the history of the proceedings, the decision of the Chief Magistrate and the submissions of the parties, the primary Judge gave consideration to the appellant’s grounds of appeal.
The appellant had submitted that the hearing before the Chief Magistrate was only interlocutory, and that that interlocutory hearing was converted “into a surprise final hearing”. The primary Judge rejected these contentions. His Honour found it was apparent that the matter before the Chief Magistrate was not an interlocutory hearing. That could be discerned from the way the case was run, including the comments of the Chief Magistrate where her Honour noted that she was “determining today for the first time, whether I make a final order”, and the nature and extent of the evidence called on both sides.
In relation to the first ground of appeal, the primary Judge concluded that there was no visible error in relation to the duration of the FVO for, in summary, the following reasons:
(a)The default position under s 35 of the FV Act is that a final order will operate for two years from the date it is made;
(b)Section 86(1) of the FV Act provides that the Magistrates Court “must, on application, amend a final order (the original order) by extending it for a stated period unless satisfied that a protection order is no longer necessary to protect the protected person from family violence”;
(c)The operation of the interim FVO (a period of nearly a year and a half) was a relevant factor for the Chief Magistrate to consider when making the final FVO, but had to be weighed against the statutory context of ss 6, 14(1), 34, 36 and 37 of the FV Act; and
(d)There was no evidence of any mending of the relationship, but rather the evidence the Chief Magistrate clearly accepted was that the respondent was in so much fear of the appellant that she could never live with him again.
In relation to the second ground of appeal, the primary Judge found that it must fail, as although the Chief Magistrate did not expressly refer to the possibility of alternative accommodation for the respondent, it was reasonable to conclude from her Honour’s reference to the relevant evidence that her Honour accepted the respondent’s explanation as to why the respondent could not move to her son’s residence.
In relation the third ground of appeal, the primary Judge found that the Chief Magistrate referred expressly to the appellant’s accommodation issues. The primary Judge also found it was implicit in the Chief Magistrate’s reasoning that her Honour accepted that the paramount consideration when determining whether to grant an FVO was that contained in s 36 of the FV Act, namely “the safety and protection of the affected person and any child directly or indirectly affected…”.
In relation to the fourth ground of appeal, the primary Judge concluded that it must fail. His Honour noted:
Again, although the Chief Magistrate did not set out specific findings as to each episode of family violence alleged against the appellant, the substance of her reasons indicates that she accepted the evidence of the respondent, particularly as to the events of 7 October 2017.
The primary Judge found that there was no impediment to the Chief Magistrate determining the matter by reference to evidence about the events of 7 October 2017 in circumstances where:
(a)The parties had requested that the Chief Magistrate determine the FVO application after the appellant raised the fact that he had filed an application for leave to appeal the 2018 Convictions out of time;
(b)The appellant was given an opportunity to obtain legal advice about the advisability of giving evidence before her Honour when, if the appellant was successful in the appeal of the 2018 Convictions, the 2017 Charges could be reheard; and
(c)The appellant decided against obtaining legal advice and gave evidence as to his version of the events of 7 October 2017.
Further, in relation to the Chief Magistrate’s consideration of the appellant’s prior convictions, the primary Judge found:
(a)It was proper for the Chief Magistrate to take into consideration the convictions arising from the 2007/2008 incident, as s 92(2) of the Evidence Act allows the admission into evidence of convictions which have been finally decided;
(b)The appellant’s application for leave to appeal the 2018 Convictions out of time constituted a “review or appeal” which had been instituted by the time of the hearing but not finally decided for the purposes of s 92(2) of the Evidence Act; and
(c)Notwithstanding ss 13A and 65 of the FV Act, it would have been wrong for the Chief Magistrate to rely upon the evidence of the 2018 Convictions.
The primary Judge concluded that the Chief Magistrate fell into error in allowing evidence about the 2018 Convictions to be admitted and taking that evidence into consideration. However, his Honour determined at [89]–[92] that the Chief Magistrate only used the 2018 Convictions as confirmatory support for her Honour’s findings, so that no miscarriage of justice occurred.
The present appeal
During the hearing of the present appeal, the appellant was granted leave to amend ground of appeal 8 to delete the word “convictions” and substitute “incidents”.
The grounds of appeal on which the appellant relies are as follows:
1)The decision of Chief Magistrate Walker to grant a final family violence order was unreasonable and not supported by the evidence before her.
2)The decision of [the primary Judge] to dismiss my appeal was unreasonable and not supported by the evidence before him.
3)Chief Magistrate Walker engaged in judicial misconduct by proceeding to run a final hearing on the family violence order application instead of a final hearing on my application to amend the interim family violence order.
4)Chief Magistrate Walker committed an error of law when she made a family violence order for 2 years from the final hearing date instead of 2 years from the original application date.
5) Chief Magistrate Walker engage [sic] in judicial misconduct in failing to properly apply the Dunn principle and allowing me to be cross-examined on evidence detrimental to my case.
6)[The primary Judge] demonstrated bias when he considered evidence that was not in Chief Magistrate Walker’s decision, and in doing so was trying to cover up Chief Magistrate Walker’s misconduct.
7)[The primary Judge] was wrong when he found that the error of law concerning the admission of my conviction did not amount to a miscarriage of justice.
8)Chief Magistrate Walker committed an error of law when she allowed the admission of my 2007 incidents.
9)Chief Magistrate Walker demonstrated judicial misconduct in answering on behalf of the applicant during the final hearing.
10)[The primary Judge] incorrectly interpreted the facts concerning whether the final hearing was on my application to amend or on the [respodent’s] application for a final family violence order.
11)[The primary Judge] ignored contents of evidence presented on the appeal that was beneficial to my case.
12)[The primary Judge] and Chief Magistrate Walker did not consider my circumstances relating to my lack of accommodation.
Ground of appeal 12 was not included in the filed Amended Notice of Appeal, but was hand-written on the Amended Notice of Appeal included in the Appeal Book provided to this Court by the appellant. The respondent did not object to its inclusion and consideration by the Court.
On the basis of those grounds, the appellant seeks the following orders:
1)Chief Magistrate Walker’s orders be squashed [sic].
2)As the Appellant has already completed more than 3.5 years of not entering his house, no further orders to keep him out is to be made.
In his submissions, the appellant also requested an order be made that he be permitted to have possession of, and keep, his dog, which he was not allowed to take from the family home and which now lives with his son.
On 17 July 2020, the appellant filed an application seeking an order that this Court “hear the additional evidence that was not heard by [the primary Judge] at the appeal hearing” (Further Evidence Application).
The grounds on which the appellant relies for seeking this additional order are as follows:
1.Due to being denied a lawyer by legal aid I missed some Documents due to inexperience
2. Some Document I obtained later.
3.My criminal case was over, after I put in my appeal so some facts are given [indiscernible] to me.
On 17 July 2020, the appellant filed an affidavit in support of the Further Evidence Application, which stated:
1. I am Appellant in the Court of appeal case no ACTCA
2.I wish to provide to the Court the following Documents which were not given to [the primary Judge] when the original appeal was heard. These Documents are in Appeal Folder A in the following pages:
1. Order made by Magistrate Morrison – pages – 126
2. AFP Statement of facts – Amended – pages – 127 – 129
3. Family Law matter – Property – pages 130 – 134
Submissions of the parties in the appeal
The appellant’s submissions
The appellant submitted, in summary, as follows:
(a)The final FVO was an unlawful order as the process for a final FVO, set out in the letter from the Magistrates Court dated 8 November 2017, was not followed. The appellant understood that the hearing of 21 February 2019 concerned his application to amend the FVO. He was unprepared for a final FVO hearing.
(b)The Chief Magistrate made an error of law in ordering the final FVO to operate for two years from March 2019, as the interim FVO had already been in place for a year and a half. However, this was not an issue he raised before the Chief Magistrate.
(c)The Chief Magistrate did not properly take into account the circumstances of his alternative accommodation at his sister’s place, where he has to sleep on the couch. The respondent’s son has a residence where the respondent could live, and the respondent earns a higher wage than the appellant does. The Chief Magistrate did not give appropriate weight to his concern regarding suitable accommodation in making the final FVO.
(d)The Chief Magistrate did not take into account his disability – namely depression – and violated his human rights by keeping him out of his house.
(e)The Chief Magistrate should not have made the special interim FVO in his absence. He was not asked to consent to the special interim FVO, which would have made it a final FVO, which would have expired sooner.
(f)The respondent was not fearful of him as she lived with him for nine years between the 2007/2008 incident and the 7 October 2017 incident that resulted in the 2018 Convictions.
(g)From the examination and cross-examination of the respondent at the hearing it was apparent that “it is a tussle over a house that is the issue here, not safety”. The respondent is using the FVO to pressure him into giving up his co‑ownership of the house so she can be the sole owner. This is supported by the family law matter, where the respondent is seeking sole ownership of the house.
(h)The respondent had indicated that she was happy to leave the house, and rent accommodation elsewhere, if he would undertake to pay the mortgage and bills of the family home. He emailed Mr Hamack, the appellant’s representative, on 21 July 2020 and offered to give that undertaking.
(i)Chief Magistrate Walker cut him off at the hearing and also prevented the respondent continuing to be cross-examined on questions she was uncomfortable with, demonstrating the Chief Magistrate’s bias.
(j)He was only cross-examined at the hearing in relation to whether he gets angry. He was not otherwise cross-examined on events, in breach of the principle in Browne v Dunn (1894) 6 R 67 (Browne v Dunn).
(k)The Chief Magistrate focused mainly on the respondent’s version of events.
(l)The Chief Magistrate’s reference to the 2007/2008 incident was irrelevant as the son no longer lived at the family residence.
(m)The respondent’s counsel tried to portray “only one incident of family violence” as being sufficient to make an FVO according to s 54 of the FV Act, which “is a joke”. It is only the starting process for a final FVO that is triggered by the first act of violence.
(n)The primary Judge erred in asserting that the fourth ground of appeal stated the appellant had only given evidence about the incidents of breaking the musical instrument and the comments about the respondent’s leg. Whereas, in fact, the fourth ground of appeal states that the respondent only gave evidence of the musical instrument incident.
(o)The primary Judge erred in not determining that the final FVO commencement date should have been the date of the interim FVO, or, alternatively, that the length of the interim FVO should not be subtracted when determining the duration of the final FVO.
(p)The primary Judge erred in justifying the Chief Magistrate’s failure to expressly weigh the competing concerns in ss 36 and 37 of the FVA by referring to the principle that the substance of the reasons was enough.
(q)He did not consent to the Chief Magistrate taking into account the 2018 Convictions and the primary Judge erred in finding that he did.
(r)The primary Judge erred in finding that the Chief Magistrate only used the 2018 Convictions as confirmatory support.
The respondent’s submissions
The respondent submitted, in summary:
(a)Several of the appellant’s grounds of appeal concern issues which were not raised before the primary Judge.
(b)Section 95 of the Evidence Act allows for inferences of fact to be drawn in an appeal before the Supreme Court. The primary Judge gave appropriate deference to the factual findings of the Chief Magistrate; and the inferences drawn by the primary Judge were reasonable and not contrary to compelling inferences, nor shown to be wrong or glaringly improbable.
(c)At the hearing before the Chief Magistrate, the respondent’s legal representative and the Chief Magistrate addressed the fact that both the appellant’s application to amend the FVO and the FVO application itself were being heard. Having made the final FVO, there was no interim FVO to amend. The Chief Magistrate appeared instead to have treated the appellant’s application to amend the FVO as a notice that the appellant opposed a final FVO with a condition excluding him from the family residence.
(d)The FVO application was not determined until 14 March 2019, at which time the final FVO came into effect. It was appropriate for the duration of the final FVO to be for two years from 14 March 2019.
(e)The rule in Browne v Dunn was satisfied. The respondent gave her evidence in front of the appellant and the appellant was then given the opportunity to respond. It was unnecessary for the respondent’s case to be put to the appellant through cross-examination.
(f)The appellant’s argument that the primary Judge used his Honour’s authority under s 95 of the Evidence Act to cover up the misconduct of the Chief Magistrate is baseless and argumentative in nature.
(g)The Chief Magistrate did not err in considering the 2018 Convictions.
(h)Alternatively, if the Chief Magistrate did err in considering the 2018 Convictions, it did not amount to a miscarriage of justice for the reasons explained by the primary Judge.
(i)The Chief Magistrate did not err in considering the convictions relating to the 2007/2008 incident as s 14 of the FV Act states that “any previous family violence or personal violence by the respondent in relation to the affected person or anyone else” must be considered in making an FVO.
(j)The Chief Magistrate did not answer on behalf of the respondent during cross-examination at the hearing and the ground relating to this appears baseless and argumentative.
(k)There was no error by the primary Judge in canvassing the transcripts of the hearing on 21 February 2019 and the Chief Magistrate’s decision in addition to the evidence presented to the primary Judge by the parties.
Consideration
Application to adduce further evidence
The appellant applied to adduce additional evidence in the appeal in accordance with his Further Evidence Application and his submissions. I presume that this application is pursuant to r 5606 of the Court Procedures Rules 2006 (ACT) and s 37N(3) of the Supreme Court Act 1933 (ACT). The further information he seeks to adduce is:
(a)The order of Magistrate Morrison made on 16 January 2019;
(b)The Amended Australian Federal Police Statement of Facts for the events of 7 October 2017;
(c)A letter to the appellant dated 9 April 2019 from Legal Aid ACT in relation to the family law proceedings concerning the family home;
(d)An email from the appellant to Legal Aid ACT dated 1 July 2020 at 2:51 pm, in relation to ownership of an Accor Vacation Club membership, financial statements of the parties, and ownership of the family dog; and
(e)An email from the appellant to Mr Hamack, the respondent’s legal representative, dated 22 July 2020 at 12:37 pm relating to a proposal for his occupation of the family home.
None of this evidence was before the Chief Magistrate or the primary Judge.
At the hearing, the respondent did not oppose the admission of the order of Magistrate Morrison and the Amended Australian Federal Police Statement of Facts. The Court granted the appellant’s application to adduce that evidence in the appeal.
However, the respondent opposed the letter dated 9 April 2019, the email dated 1 July 2020, and the email dated 22 July 2020, in summary on the basis that:
(a)The material therein was irrelevant to the present appeal; and
(b)The letter from Legal Aid ACT was correspondence and included offers made in the course of settlement proceedings.
At the hearing of the appeal, the Court reserved its decision in respect of the admission of this evidence. My views in respect of the admission of this evidence are as follows.
Principles referable to admission of further evidence on appeal were set out by the Court of Appeal in Jovanovic v R [2015] ACTCA 29, where their Honours observed:
21.Section 37N(3) of the [Supreme Court Act 1933 (ACT)] provides that the Court of Appeal “may receive further evidence” by oral examination, affidavit or other means. There is no statutory restriction on the receipt of further evidence, but the nature of appeals to the Court of Appeal provides some guidance as to the manner in which the Court’s discretion should be exercised.
22.Ordinarily, further evidence will not be admitted on an appeal if it was available, or could reasonably have been obtained at the time of the hearing: Hillier v The Queen [2008] ACTCA 3; (2008) 1 ACTLR 235 at [160]. Different considerations may apply where there is a question about whether an irregularity in the proceedings has prevented a party from putting his or her case effectively: Hillier at [161]. A decision to withhold evidence at trial will weigh heavily against its reception on appeal: Hillier at [164].
23.As noted in Hillier at [160], s 27(1) of the Federal Court of Australia Act 1976 (Cth) similarly provides that when hearing an appeal, the Court may “in its discretion receive further evidence”. In August v Commissioner of Taxation [2013] FCAFC 85 at [116] the Court observed:
The authorities make it clear that in exercising the discretion [to receive further evidence] the Court is not constrained by the factors relevant at common law as enunciated in Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435. That is not to say that the common law factors are not relevant, only that they are not the only relevant factors. In many cases it would be most material to consider whether the evidence could have been called at trial and, if it could have been, the reasons it was not, and the extent to which the further evidence had the ability to affect the result.
At [119] the Court further explained:
...it should be noted that it is well-established by the authorities that the power in s 27 of the Federal Court of Australia Act 1976 (Cth) and equivalent sections in other Acts is a remedial power and that an important consideration in terms of the exercise of the power is whether the further evidence would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result.
(Citations omitted)
It follows that the key questions in determining whether to permit a party to adduce further evidence on appeal are:
(a)Whether the evidence was reasonably available to be led at the time of the primary hearing;
(b)Whether the failure to put the material into evidence was due to mistake or oversight (Nouri v Australian Capital Territory [2020] ACTCA 1 at [86]);
(c)Whether there was any irregularity attendant on the primary proceedings which may have prevented a party from putting his or her case effectively; and
(d)Whether the further evidence would have made a difference in terms of the primary decision (Head v Evans [2020] ACTCA 26 at [34]).
In relation to the letter of 9 April 2019:
(a)The letter predated the hearing before the primary Judge, and to that extent was potentially available to be led at the time of that hearing.
(b)The appellant submitted that he was not legally represented at the hearing before the primary Judge, and so did not realise that he could seek to tender the letter. In my view this is a reasonable, if not compelling, explanation for the failure to seek admission of the letter in the primary proceedings.
(c)However, I consider it likely that the respondent could have properly objected to the tender of the letter or parts thereof, on the basis that the letter was correspondence in the course of settlement discussions under the Family Law Act 1975 (Cth) and therefore privileged.
(d)Further, I am not persuaded that this letter would have made a difference in terms of the primary decision, because the letter concerned the disposition of property in the context of family law proceedings between the appellant and the respondent. This issue was irrelevant to the factual findings of the Chief Magistrate that the appellant had committed acts of violence against the respondent and her son, and that the respondent had reason to fear for her safety and that of her property from the appellant. These factual findings underpinned her Honour’s orders under the FV Act. In upholding those orders, the primary Judge found at [63] that there was no evidence to suggest that the risk of further family violence from the appellant to the respondent had abated.
(e)Finally, at [65] the primary Judge found that it was reasonable to conclude that the Chief Magistrate accepted the respondent’s explanation for why she could not, inter alia, move from the family home to other premises.
In my view the appellant’s application to admit the letter of 9 April 2019 in the appeal ought be refused.
In relation to the email dated 1 July 2020, although the email post-dated the primary Judge’s decision and accordingly was not available at the time of the hearing before his Honour, to the extent that it constituted correspondence from the appellant concerning disposition of matrimonial property it was self-serving and irrelevant to the issues presently before this Court. Further, the appellant has not substantiated the relevance of his informal application for an order to have access to the family dog to the present appeal.
In my view the appellant’s application to admit the email dated 1 July 2020 in the appeal ought be refused.
In relation to the email dated 22 July 2020, relating to a proposal for his occupation of the family home, again the email post-dated the primary Judge’s decision. However, this correspondence from the appellant to the respondent’s representatives referable to family law proceedings between them was again self-serving and irrelevant to the issues presently before this Court.
In my view the appellant’s application to admit the email dated 22 July 2020 in the appeal ought be refused.
Grounds of appeal
I now turn to the grounds of appeal before the Court.
Ground 1 – The decision of Chief Magistrate Walker to grant a final family violence order was unreasonable and not supported by the evidence before her
At [58] of the primary decision, his Honour referred to s 34 of the FV Act and the basis on which the Magistrates Court is empowered to make a FVO, namely if the court is satisfied that:
(a)the affected person has reasonable grounds to fear family violence by the respondent; or
(b) the respondent has used family violence against the affected person.
His Honour then examined ss 6, 14, 36 and 37 of the FV Act, and considered comments of Refshauge J in CM v TM [2011] ACTSC 53 at [37]-[38]. The primary Judge relevantly continued:
62.The difficulty for the appellant here is that there was no evidence of any mending of the relationship between the parties which would have discharged the evidential burden his Honour refers to. On the contrary, the evidence of the respondent was that she was in so much fear of the appellant that she could never live with him again (T 15-16, 21 February 2019). The Chief Magistrate clearly accepted that evidence (see her Honour’s reasons extracted in [32] above).
63.It is implicit in her Honour’s decision that she did not see an order which allowed the appellant to live at the residence while the respondent was living there as workable. In that sense, after considering the competing considerations in ss 36 and 37 of the FVA, her Honour could only determine the issue one way – that is, that the order should exclude the appellant from the residence. In the absence of any evidence to suggest that the risk of further family violence had abated, the ongoing need for the safety and protection of the respondent outweighed the difficult accommodation circumstances suffered by the appellant.
In his submissions in the appeal, the appellant provides no explanation of merit as to why the decision of the Chief Magistrate was “unreasonable”. Albeit in a different context, I note – and respectfully adopt – the following observation of French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [30]:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.”
The fact that the appellant disagreed with the decision of the Chief Magistrate does not mean that her Honour’s decision was unreasonable. In my view the decision of the Chief Magistrate was not unreasonable.
The appellant claimed that there was no evidence before the Chief Magistrate supporting the final FVO her Honour made. However, her Honour set out in detail the evidence advanced by both the appellant and the respondent. After considering that evidence, her Honour observed:
…The [respondent in the present appeal] presented as plausible and persuasive and significantly as genuinely afraid of harm from the [appellant]. Her allegations of specific instances of violence directed toward her and her son are supported by the respondent’s criminal convictions. The [appellant] accepted some elements of the allegations she made, such as that he in anger broke her musical instrument, an instance of personal property violence. And more recently, that he threw food at her.
The [appellant’s] evidence tended toward the rambling, was largely self-referential and smacked of an exaggerated sense of grievance. He attributed no significance, even to the acts of violence he accepted having engaged in, evidencing a lack of insight as to the effect of his conduct. His explanation for the [respondent’s] complaints was that she was overly attached to her children and that she had got all she wanted from him and now, wished to discard him. Neither complaint, even if true, provide any explanation as to why the [respondent] would go to such lengths to exclude him from her life. Fear of her safety is a more plausible explanation.
…
…I am satisfied that there have been instances of violence directed toward the [respondent] and her son and that she has reason to fear for her safety and that of her property, if within proximity of the [appellant]. The [appellant] appears to comply with court orders when they are in place. There is good reason to be optimistic that an order will protect her.
I am satisfied on the balance of probabilities that an order should be made…
It is clear that there was evidence before the Chief Magistrate supporting the making of the final FVO.
The first ground of appeal has no merit.
Ground 2 – The decision of [the primary Judge] to dismiss my appeal was unreasonable and not supported by the evidence before him
There appears to be overlap in the contentions of the appellant concerning this ground of appeal, and other grounds. Indeed, in the absence of particularisation of this ground, it is unclear to me exactly why the appellant claims that the primary Judge’s decision was unreasonable.
Three contentions emerging from the appellant’s submissions which appear referable to his claim of unreasonableness on the part of the primary Judge concerned the following findings of the primary Judge:
(a)That the appellant’s arguments in relation to the duration of the final FVO should be rejected (see comments of the primary Judge at [64]);
(b)That the substance of the reasons of the Chief Magistrate implicitly addressed the competing concerns of the parties in ss 36 and 37 of the FV Act (see comments of the primary Judge at [63]–[66]); and
(c)That the reliance by the Chief Magistrate on the 2018 Convictions was in the nature of confirmatory support for her Honour’s conclusion that there had been instances of violence on the part of the appellant toward the respondent and her son, and that the respondent had reason to fear for her safety (see comments of the primary Judge at [90]).
In relation to these issues, I find as follows.
First, in relation to the duration the final FVO ordered by the Chief Magistrate, s 35 of the FV Act provides:
35Final orders—length
(1)A final order remains in force for—
(a) 2 years, regardless of whether it is stated in the order; or
(b)if a shorter period is stated in the order—the period stated; or
(c)if the court is satisfied that there are special or exceptional circumstances that justify a longer period—the stated longer period.
NoteThe Magistrates Court must, on application, extend a final order unless satisfied the order is no longer necessary to protect the protected person from family violence by the respondent (see s 86).
(2)However, a final order made as a consent order must not be longer than 2 years.
The language of s 35 indicates that a period of two years is the default position for the duration of a final FVO. Unless satisfied that a different period (either longer or shorter) was warranted, the Chief Magistrate was entitled to so construe the legislation in ordering the final FVO in this case. To that extent, in concluding at [64] that there was no error on the part of the Chief Magistrate in relation to the duration of the FVO, I can identify no flaw in the reasoning of the primary Judge.
The appellant of course also raises the question whether the duration of the final FVO was appropriate in circumstances where a special interim FVO had been in place against him and he had been excluded from the family home for that period of time. However, this issue is more relevant to ground of appeal 4, to which I will turn shortly.
Second, in relation to whether the Chief Magistrate implicitly addressed the competing concerns of the parties in ss 36 and 37 of the FV Act, the relevant legislative provisions state:
36Safety of affected person and children paramount
In deciding the conditions to be included in a family violence order, a court must give paramount consideration to the safety and protection of the affected person and any child directly or indirectly affected by the respondent’s alleged conduct.
37Least restrictive principle
A court must ensure the conditions included in a family violence order are the least restrictive of the personal rights and liberties of the respondent as possible that still achieve the objects of this Act and give effect to section 36.
The primary Judge observed:
63. It is implicit in her Honour’s decision that she did not see an order which allowed the appellant to live at the residence while the respondent was living there as workable. In that sense, after considering the competing considerations in ss 36 and 37 of the FVA, her Honour could only determine the issue one way – that is, that the order should exclude the appellant from the residence. In the absence of any evidence to suggest that the risk of further family violence had abated, the ongoing need for the safety and protection of the respondent outweighed the difficult accommodation circumstances suffered by the appellant.
64. Her Honour considered that those circumstances should be addressed by a settlement, or if that was not possible, a judgment in Family Court proceedings. In my view, that conclusion was open to her Honour and I see no error in relation to the duration of the FVO.
Ground 2
65.The Chief Magistrate did not expressly refer to the issue of alternative accommodation for the respondent in her brief reasons for decision. However, I agree with Mr Hamack’s submissions on this point. Her Honour did refer to the relevant evidence and it is reasonable to conclude that she accepted as reasonable the respondent’s explanation for why she felt she could not impose upon her son, or for that matter, move to other premises. This ground of appeal must therefore fail.
Ground 3
66. Her Honour did expressly refer to the appellant’s accommodation problems in the third paragraph of her reasons extracted at [32] above. She clearly had that issue in mind when considering whether an order should be made under s 34 of the FVA and the conditions to be included under s 38. Her Honour did not spell out in detail why she concluded that the evaluation of the competing concerns under ss 36 and 37 led to her conclusion that the exclusion condition should form part of the FVO. However, I take note of what Mossop J said in Greenwood v Barlee [2018] ACTSC 46 at [4]:
The reasons given by the magistrate need to be understood having regard to the realities of the work of that court and the pressures under which magistrates operate. Regard must be had to the substance of the reasons: Acuthan v Coates (1986) 6 NSWLR 472 at 479; DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15].
67. I have set out what I see to be the substance of her Honour’s conclusion on the condition excluding the appellant from the residence in paragraphs [62] to [64] above. It is implicit in her reasoning that her Honour had accepted, notwithstanding the very real accommodation difficulties suffered by the appellant, that the paramount consideration when weighing up whether to grant the final order is that contained in s 36 of the FVA. On that basis, ground three must also fail.
This is an accurate summary of the reasoning of the Chief Magistrate. Further, I note the following observations of the Chief Magistrate where her Honour clearly weighed the interests of both parties:
The [appellant’s] primary concern appears to be the financial one associated with his access to adequate accommodation. This is a valid consideration. It is one which could and ideally should have been addressed by both parties, long before now. However, it is one to be resolved in a jurisdiction other than this. I have taken into account the fact that the [appellant] would not have access to live in a home which he has a financial interest, if an order were made. However, I note that he is in receipt of regular income in the form of compensation payments.
I am not satisfied that the [appellant] is particularly vulnerable as a result of the neurological and psychological issues, which he has brought to the court’s attention. I am satisfied that there have been instances of violence directed towards the [respondent] and toward her son and that she has reason to fear for her safety and that of her property, if within proximity of the [appellant]….
Further, and in any event, it is inappropriate to strictly construe the reasons of the Chief Magistrate. As this Court observed in Heyward v Bishop [2015] ACTCA 58:
26. Kirby P has also recognised that the obligation to give reasons in “a busy magistrate’s Court” is different in impact from that obligation in higher courts. In Acuthan v Coates (1986) 6 NSWLR 472 at 479, Kirby P said that it would be an error for an appeal court to examine:
...this unedited and unpunctuated record of ex tempore remarks in a busy magistrate’s court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.
Third, in relation to whether the Chief Magistrate had used the 2018 Convictions as confirmatory support for the final FVO, at [89]–[90] the primary Judge stated:
89. The crucial question is therefore whether the Chief Magistrate made her findings based on: her acceptance of the evidence of the respondent, and her rejection of the evidence of the appellant, with the evidence of the convictions providing only confirmatory support; or, whether the conviction evidence was relied-upon as an essential part of the evidence when making her findings. If the former is the correct characterisation of her Honour’s reasoning, then there was no miscarriage of justice and the appeal should be dismissed. If the latter is correct, the appeal should be allowed and the matter remitted to the Magistrates Court for further hearing.
90. I have read the transcript of her Honour’s reasons for decision several times. I have come to the firm view that her Honour did use the evidence of the 2018 convictions by way of confirmatory support for her findings. Her Honour clearly accepted the respondent as a reliable witness. The reference to her as “plausible and persuasive” and as being “genuinely afraid of him” leads me to this conclusion. By way of contrast, it seems to me that her Honour did not accept the claims of the appellant. Her Honour’s reference to the evidence as “rambling”, “self-referential” and suffering from “an exaggerated sense of grievance” strongly suggests that her Honour was unpersuaded by him. That is reinforced by the Chief Magistrate’s reference to the appellant’s lack of insight and what she saw as the implausibility of his explanation for why the applicant was seeking the FVOs against him.
In my view his Honour’s statement of principle at [89] is correct. Was his Honour correct at [90] in forming the view that the Chief Magistrate used the evidence of the 2018 Convictions “by way of confirmatory support for her findings”? In determining whether his Honour’s interpretation of the Chief Magistrate’s decision was reasonable, it is appropriate to examine the following reasoning of the Chief Magistrate:
Consideration. The [appellant] was concerned that an interim order had been made in his absence and that matters stated in the original application had been changed. I have placed no weight on the existence of the interim order but have considered afresh the evidence before me in these proceedings. The [respondent] presented as plausible and persuasive and significantly as genuinely afraid of harm from the [appellant]. Her allegations of specific instances of violence directed toward her and her son are supported by the [appellant’s] criminal convictions. The [appellant] accepted some elements of the allegations she made, such as that he in anger broke her musical instrument, an instance of personal property violence. And more recently, that he threw food at her.
(Emphasis added)
From this passage it is clear to me that:
(a)The Chief Magistrate primarily relied on evidence given at the hearing before her Honour of acts of violence perpetrated by the appellant against the respondent in finding that a final FVO was warranted; and
(b)The Chief Magistrate referred to the “criminal convictions” of the appellant, which must also include the convictions relating to the 2007/2008 incident, as supporting the respondent’s allegations of violence.
In my view the findings of the primary Judge upholding this reasoning on the part of the Chief Magistrate were open to his Honour.
In my view ground of appeal 2 has no merit.
Ground 3 – Chief Magistrate Walker engaged in judicial misconduct by proceeding to run a final hearing on the family violence order application instead of a final hearing on the appellant’s application to amend the interim family violence order
In finding that the Chief Magistrate was empowered to make a final FVO, his Honour relevantly observed:
83.In relation to the appellant’s complaints about the nature of the hearing before the Chief Magistrate, I must say that I have some difficulty in understanding his apparent confusion. On my reading of Exhibit “1” and the transcript of the hearing, it appears reasonably clear that the hearing concerned the questions of whether an FVO should be made and, if so, whether the appellant should be excluded from the residence by that order. This is emphasized by the debate had at the hearing about s 31 (which can only be relevant in a final FVO hearing) and indeed by her Honour’s explanation in the course of submissions by the appellant, where she said:
Her Honour: But I am not looking to extend an order. I am determining today for the first time, whether I make a final order. So, I am making that decision fresh from the evidence that I hear.
[Emphasis added.]
84. Having regard to the way the case was run and the nature and extent of the evidence called by both sides, I do not accept that there was any conversion of an interlocutory hearing on a limited issue into a surprise final hearing. Insofar as the appellant relies on this as a ground of appeal, I reject it.
I understand that “Exhibit ‘1’” to which his Honour referred was the respondent’s FVO application.
As I noted earlier, a special interim FVO against the appellant was made on 16 October 2017, when the FVO application was filed and heard pursuant to s 22 of the FV Act before Deputy Registrar Edwards in the Magistrates Court. On 16 January 2019, Magistrate Morrison ordered that both the appellant’s application, and the FVO application, return for conference on 30 January 2019. It is not in dispute that, at that conference on 30 January 2019, the parties were unable to resolve the applications.
Section 22 of the FV Act provides that, on an application for a final FVO, the Magistrates Court may make a special interim FVO if there is a related charge outstanding in relation to a respondent, or, in any other case, a general interim order.
Section 30 of the FV Act provides that a special interim FVO ends, inter alia, when a final order is made (ss 30(c) and 30(d)).
It is uncontroversial that the appellant filed an application on 9 January 2019, seeking the following order:
Order to let me back into my house.
Turning to the transcript of the hearing before the Chief Magistrate, the following issues are clear.
First, it was evident from the outset of that hearing that the two live issues before the Chief Magistrate were whether a final FVO ought be made by her Honour, and the proper disposition of the appellant’s application to amend the FVO. Indeed, early in the hearing the following exchange took place between the legal representative of the respondent and the Chief Magistrate:
MS THEODORE: Your Honour, it is our submission that a final family violence order should be made and I would direct your Honour’s attention to section 34 of the Family Violence Act. In that section it states:
A court may make a final family violence order if satisfied that the affected person has reasonable grounds to fear family violence, or the respondent has used family violence towards the affected person.
Your Honour, it’s our submission that both A and B of that section will be proven through direct evidence, provided by the [respondent] and supported by further evidence from ACT Police.
HER HONOUR: I see.
MS THEODORE: In relation to the [appellant’s] application to amend, I note that it relates to his – to the house, to the matrimonial house and with regards to that, we would submit that that is a matter for family law proceedings and should not be subject to orders made here today.
Second, the appellant’s application to amend the FVO did not specifically seek to amend the special interim FVO then in place, however, the Chief Magistrate treated it as such.
Third, the Chief Magistrate heard the appellant’s submissions concerning his proposed amendment to the special interim FVO, but also took that application to extend to any final FVO order made. This is clear from the following exchange between the appellant and the Chief Magistrate:
HER HONOUR: Let me just understand, because there’s two aspect to this. Do you say that I shouldn’t make a final family violence order, in favour of [DT] at all?
TS: Yes. Yes.
HER HONOUR: Okay.
TS: Because it’s – I don’t feel – I feel that it’s not fair under section 37 to do that because already I’ve been out for ---
HER HONOUR: Leaving aside the issue of whether you should be excluded from that home.
TS: Yes.
HER HONOUR: Are you saying that there is not a proper basis for me to make a family violence order which protects [DT], or are you saying just that some of the conditions should be different?
TS: It’s just that I don’t think that there was any reason, in the first place, for that order to be brought in ….
…
HER HONOUR: So you’re saying there shouldn’t be a family violence order at all?
TS: Yes, there shouldn’t be.
HER HONOUR: But if there is one, you shouldn’t be excluded from the house?
TS: Yes.
HER HONOUR: Do I understand that correctly?
TS: Yes. Yes.
HER HONOUR: All right. Good. Okay. Well, we’ll now start the process of receiving evidence…
From this exchange it is apparent that either:
(a)The appellant understood that the Chief Magistrate was considering whether a final FVO was warranted (with or without a condition excluding him from access to the family house) and that it was open to her Honour to make such an order; or
(b)If the appellant did not understand this, he did not communicate this lack of understanding to the Chief Magistrate.
The primary Judge at [83] observed that his Honour had “some difficulty in understanding [the appellant’s] apparent confusion”. I agree. Further, it is clear that the Chief Magistrate permitted the appellant to make submissions in respect of his application to amend the FVO. However, her Honour ultimately concluded that the conditions sought by the appellant in that application should not be accepted, and rather a final FVO should be ordered excluding him from access to the family home.
100. No error is apparent in this aspect of her Honour’s conduct of the case.
101. Ground of appeal 3 has no merit.
Ground 4 – Chief Magistrate Walker committed an error of law when she made a family violence order for 2 years from the final hearing date instead of 2 years from the original application date
102. As I have already noted, the application for a final FVO order was filed on 16 October 2017, a special interim FVO was made on the same date, and the hearing of the application was held on 21 February 2019.
103. Section 30 of the FV Act provides:
30 Special interim orders—ending
A special interim order ends only when the first of the following happens:
(a)the special interim order is revoked;
(b)the application for a final order on which the special interim order was made is discontinued or dismissed;
(c)a final order is made and the respondent is present when it is made;
(d)if a final order is made but the respondent is not present when it is made—the final order is served on the respondent.
104. In the present case, the special interim FVO was not revoked, nor was the FVO application discontinued or dismissed. The appellant was present when a final FVO order was made on 14 March 2019.
105. Section 35 of the FV Act addresses the “length” of a final FVO, and provides that it remains in force for two years, or a shorter period as stated in the order. There is nothing in s 35 which suggests that the existence and duration of a special interim FVO should be taken into account in calculating the length of the final FVO.
106. I have already noted s 37 of the FV Act which requires a court to ensure conditions included in a FVO are the least restrictive of the personal rights and liberties of a person whilst still achieving the objects of the statute. Further, the hardship caused to a person by making a FVO against them is a factor which must be taken into account by the Court pursuant to s 14(1)(e) of the FV Act. Before the Chief Magistrate, the appellant submitted:
TS: Yes, your Honour. Under section 37, the least restrictive principle that says that both must ensure that the – that the conditions include the least restrictive of the personal rights and liberties of the respondent as possible. So, I am co-owner of that house, that’s one of my ownership rights and I’ve been put out for 17 months now, out of there.
So my rights and liberties that I have been sort of – it’s not the least restrictive, it falls under – it doesn’t fall under the least restrictive principles because being a co-owner and for 17 months out of the house, the rights and my liberties have been thoroughly curtailed. I’ve been outside shifting around all over the place and at 61 years, it’s rather – it has been rather difficult and very difficult for me. And – also I have depression also and that does also affect that – me, much more by being like that.
And the fact is that there seems to be some – after going through this – this depression I had earlier, but after going through this being diagnosed with the possible brain damage also. After going through this proceeding. So, it’s like – it’s difficult for me to be ---
107. The Chief Magistrate clearly had regard to the hardship claimed by the appellant. However, her Honour weighed the interests of the appellant against those of the respondent, and was satisfied on the balance of probabilities that a final FVO should be made for two years. Her Honour also considered that the terms of the final FVO should be the same as the special interim FVO made on 16 October 2017.
108. The primary Judge at [13] noted that the respondent’s FVO application made it plain that the respondent was seeking a final FVO with a duration of two years as well as an interim FVO. Later his Honour said:
34. In relation to ground one, the appellant argued that as a consequence of the interim order he had already been excluded from the residence for two years and that the effect of the final order would be a total exclusion of three-and-a-half years, or even four years.
…
38. In relation to ground one, Mr Hamack referred the court to s 35 of the FVA, which provides for a default period of two years for FVOs. There is provision allowing the court to order a shorter period, however, as the respondent had sought an order for two years, the appellant carried the burden of calling evidence and making a case as to why a shorter period would be appropriate.
109. The primary Judge noted at [56] that the default position under s 35 of the FV Act is that a final order will operate for 2 years from the date it is made. His Honour continued:
57. It is unfortunate that the course of the concurrent criminal proceedings against him meant that it took much longer for the hearing of the respondent’s application for a final order than would usually be the case. As the appellant submitted, this meant that by the time of the hearing he was excluded from the residence for nearly one-and-a-half years under the special interim order.
58. While the duration of such an exclusion is certainly a relevant factor, it must be weighed having regard to the statutory context…
110. Relevantly, his Honour examined the Chief Magistrate’s decision, including her Honour’s conclusion that the competing interests of the parties could only be resolved by an order excluding the appellant from the residence. After referring to the difficult accommodation circumstances experienced by the appellant, at [64] his Honour concluded:
Her Honour considered that those circumstances should be addressed by a settlement, or if that was not possible, a judgment in Family Court proceedings. In my view, that conclusion was open to her Honour and I see no error in relation to the duration of the FVO.
111. I agree with the reasoning of the primary Judge.
112. Ground of appeal 4 is not substantiated.
Ground 5 – Chief Magistrate Walker engage in judicial misconduct in failing to properly apply the Dunn principle and allowing me to be cross-examined on evidence detrimental to my case
113. In this ground of appeal the appellant relies on the rule in Browne v Dunn. In essence, this rule provides that unless notice has already clearly been given of a cross-examiner’s intention to rely on such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence (Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 at 16).
114. In his submissions the appellant contended, in summary, that:
(a)He was only cross-examined about “whether I get angry for this or that”; and
(b)He was never cross-examined on “these so-called incidents of violence”.
115. The primary Judge noted at [37] that ground 4 before the Court in the primary proceedings:
…related to the allegation that the respondent had only given evidence of incidents in which the appellant had broken a musical instrument belonging to the respondent, and having commented about the respondent’s leg. It was these incidents which the Chief Magistrate had relied upon in circumstances where he had not been cross-examined about them….
116. In considering this ground of appeal, I note first that the appellant misapprehends the statutory obligations of the Chief Magistrate in claiming that she could have “engaged in judicial misconduct” by allegedly “failing to apply” the rule in Browne v Dunn. At best, her Honour could have erred in failing to apply this rule in determining the application before the Court.
117. Second, as the primary Judge pointed out at [72], the appellant was cross-examined during the hearing before her Honour in respect of incidents of violence in which he allegedly engaged. As his Honour observed:
72. He was cross-examined by the respondent’s representative. It was put to him that he had kicked the appellant. He denied that. He said that he “pushed her with (his) leg”. In response to the assertion that he had thrown a plate of food at her, he said that he had thrown food at the wall near her. Some of that might have fallen on to her, but he denied that he threw the plate at her. As to the allegation that he stabbed the couch, he said that he was eating a mango and he slipped a bit causing the knife make a small cut in the couch.
118. These findings on the part of the primary Judge are borne out by reference to the transcript of cross-examination of the appellant by the respondent’s legal representative before the Chief Magistrate, in particular the following:
Do you agree that in 2008 you received a good behaviour order as a result of a conviction of criminal assault --- ?--- Yes, but that wasn’t ---
--- towards your son? Yes or no? --- Yes, yes, yes.
Yes?--- But not one year. She said, got six months or so.
Sorry, how long was it? --- Six to eight months, yes.
Six to eight months. Okay. Do you agree that on the night of the incident that led to your charge in 2008, that the applicant was present in the house? --- Present in the house? Yes, yes he was at the time, yes.
And in your evidence just before you said that on 7 October 2017 the applicant was making a racket. Do you recall saying that? --- Yes, yes.
And do you consider kicking her – her evidence is that you kicked her. Is that correct? --- I didn’t kick her. I only – she was first bumping into me, walking up and down, and to stop it only I pushed her with my leg, that’s all. If that is a kick then she would be having some – some sort of a bruise or some sort of a pain or whatever when – when the police came. She had nothing, and they had – they verified that I told – one moment they said that she kicked – I kicked her. I said, ‘Please check ay [sic] bruises because I know very well that she won’t have any bruises or any swellings or anything, so please check it out.’
I put it to you on 7 October 2017 you were angry with the applicant? --- Yes, because for two pieces of beef that I ate, she was shouting at me, you know.
So you were angry with the applicant, yes or no? --- Yes, yes, I was angry.
And you admitted that you threw food at the applicant? --- Yes, yes. Yes. Threw the food but not the plate, the empty plate.
And I put it to you that you ---? --- Not at the applicant. I threw it at the wall on top of her head but not fall on side – not on her, but some if [sic] it fell, I know that. I admit that some of it fell, like slowly falling on her head.
I put it to you that you threw a plate and a bowl at the applicant because you were angry. Do you agree? --- I did not throw a plate at the applicant. I don’t have the – I only threw the food right at the top of the thing because I got angry with her. As a human being I get – I would get angry and I used to – treat me something like a beggar or something why I would eat two pieces of meat, it’s like treating a beggar, treating you like a beggar or something, you know?
And I put it to you that you stabbed the couch in the lounge room of your property? --- Not at all. If there was a stab that couch would have been completely damaged and in fact the pictures have been shown of the couch with a small tear about this size, and when I was emphasising to her that he should not come and I was eating a mango at that time, and I was emphasising to her like that, it slipped a bit. It slipped out of my hand and a small cut was made and that was also made into a mountain out of a mole hill that I’ve gone and stabbed the couch. And the couch, I mean, that couch can be easily used even now. There’s only a small tear this size.
Do you agree that you have been convicted on 21 September 2018 for property damage? --- Yes, yes.
119. I note that there was further cross-examination of the appellant in relation to his proposal that he return to live in the house and whether he remained angry with the respondent.
120. It is clear that the appellant was cross-examined about evidence “detrimental to his case”, namely acts of violence alleged against him, including the 2007/2008 incident and the appellant throwing food and/or a plate at the respondent, and the appellant’s possession and/or use of a knife in October 2017.
121. Third, the rule in Browne v Dunn does not apply where the witness is on notice that the witness’ version is in contest, including where that notice comes from evidence of the other side (see cases cited in JD Heydon, Cross on Evidence (LexisNexis Butterworths, 12th ed, 2020) at [17445]). As the transcript of the hearing before the Chief Magistrate demonstrates, the appellant was present during the respondent’s examination in chief, cross-examination and re-examination where the respondent gave evidence about such allegations as the 2007/2008 incident and the incident of October 2017, which included the appellant throwing food and/or a plate at the respondent, and the appellant’s possession and/or use of a knife.
122. In my view ground of appeal 5 is not substantiated.
Ground 6 – [The primary Judge] demonstrated bias when he considered evidence that was not in Chief Magistrate Walker’s decision, and in doing so was trying to cover up Chief Magistrate Walker’s misconduct
123. In this ground of appeal the appellant claimed that the primary Judge “considered evidence” that was not in the Chief Magistrate’s decision. The nature of this alleged evidence is unclear to me. The appellant did not elaborate in respect of this claim at the hearing before this Court.
124. An allegation of bias is a very serious matter, involving personal fault on the part of the decision maker. It must be clearly articulated and proved by admissible evidence (see for example SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 261; 194 ALR 749 at [43]). Error on the part of a judge does not equate to bias against an unsuccessful litigant. Nor does the fact that the unsuccessful litigant disagrees with the judge’s decision because the judge finds against the litigant.
125. In my view this ground of appeal is not substantiated.
Ground 7 – [The primary Judge] was wrong when he found that the error of law concerning the admission of my conviction did not amount to a miscarriage of justice
At the appeal hearing, the appellant clarified that the miscarriage of justice he alleged in ground of appeal 7 related to Chief Magistrate’s regard to the 2018 Convictions.
In this regard, I note the following findings of the primary Judge:
75. I do not consider there to be an issue with respect to the Magistrate’s consideration of the conviction in relation to the 2007 assault. Sub-section 92(2) of the Evidence Act makes this clear. The question for this Court is whether, in saying that the respondent’s allegations of specific instances of violence against the respondent and her son were “supported by” the 2018 conviction, the Chief Magistrate fell into error? It is only if answered in the affirmative that the consequences of such an error need be considered.
76. I should say at the outset that I am not persuaded by the respondent’s argument that, as a matter of strict technicality, the respondent’s appeal had not “started”, and therefore the exclusion under sub-s 92(2)(a) did not operate. It is apparent that the purpose of sub-s 92(2)(a) is to restrict the use of convictions in civil cases to those situations where the relevant criminal proceeding has been finalised. The proposal on which the section was based was discussed in the following terms in Australian Law Reform Commission, Evidence (Interim) (ALRC Report 26), Report No 26 (1985) vol 1 at [776]:
.. It may be advisable, although perhaps not strictly necessary, to define a conviction for the purposes of the proposal as not including a conviction that has been set aside, quashed subject to appeal or in respect of which the person convicted has been pardoned. Where a conviction has been appealed against but the outcome is yet unknown, the civil court should adjourn the proceeding or not take the conviction into account...
[Emphasis added.]
77. Having regard to the purpose of sub-s 92(2)(a), I consider that the words “a review or appeal (however described) has been instituted” should not be read narrowly. There is little doubt that they fail to comprehend a situation where there is a theoretical right to apply to extend time for an appeal many years after a conviction. Apart from anything else, there is nothing “instituted” in such a situation. However, the situation here was that the appellant informed the court that he had made an application for leave to appeal out of time. It was apparent that her Honour’s initial reaction was that such an application could well engage s 31 of the FVA, in the sense that the charges were not “finalised” (see T27-30, 21 February 2019). Unfortunately neither party drew her Honour’s attention to ss 91 and 92 of the Evidence Act.
78. I consider that the application for leave out of time was a “review or appeal (however described)” which had been instituted by the time of the hearing before her Honour. Until the application for leave was dealt with there was a prospect that the appeal might be permitted and, if so, that it might be successful, leading to a quashing of the conviction. In that sense, the criminal charge which led to the conviction was not finalised. It was unsafe and potentially unfair for the Court to rely on the conviction while such uncertainty remained. It follows that, unless ss 13A and 65 of the FVA applied to permit the evidence to be admitted, the evidence of the 2018 convictions should not have been taken into account by the Chief Magistrate.
128. His Honour considered whether, having concluded that the Chief Magistrate fell into error in admitting into evidence, and taking account of, the 2018 Convictions, the appellant’s appeal against the decision of the Chief Magistrate should be set aside. As I have already observed, at [90]–[91] his Honour found that the Chief Magistrate used the evidence of the 2018 Convictions by way of confirmatory support only for her findings that there were instances of violence directed toward the respondent and her son, and that the respondent had reason to fear for the safety of herself and her property if within proximity of the appellant.
129. In my view this conclusion was open to his Honour. I do not consider that his Honour erred in this view.
130. To the extent that the respondent submitted that the primary Judge erred in this conclusion, I reject her arguments to this effect. I also note that the respondent did not file a Notice of Contention in respect of this issue, which would have been appropriate in the circumstances of the case.
131. Ground of appeal 7 is not substantiated.
Ground 8 – Chief Magistrate Walker committed an error of law when she allowed the admission of my 2007 incidents
132. The appellant submitted that the Chief Magistrate erred in admitting evidence of the 2007 incidents because, in summary:
(a)The incidents involved the appellant’s son, who was not living at the family home in 2017 when the special interim FVO was made, and the FVO was for the protection of the respondent; and
(b)The 2007/2008 incident had taken place more than 10 years before the final FVO was made.
133. At [26] the primary Judge noted the submissions of the appellant in respect of the alleged irrelevance of the 2007/2008 incident.
134. Section 14(1) of the FV Act relevantly provides:
14 Matters to be considered—family violence orders
(1)In deciding whether to make a family violence order, a court must consider the following:
…
(f) any previous family violence or personal violence by the respondent in relation to the affected person or anyone else
…
135. The primary Judge relevantly observed:
72. I do not consider there to be an issue with respect to the Magistrate’s consideration of the conviction in relation to the 2007 assault. Sub-section 92(2) of the Evidence Act makes this clear…
136. Clearly, the convictions of the appellant for the 2007/2008 incident were necessarily taken into account by the Chief Magistrate pursuant to s 14(1)(f) of the FV Act. His Honour was correct in observing that there was no issue in respect of the Chief Magistrate’s consideration of those convictions in determining whether an FVO was warranted. The issues of non-finality referable to the 2018 Convictions did not arise in respect of the convictions for common assault that occurred in 2007/2008. I note that an appeal brought by the appellant against those convictions was dismissed by the Court of Appeal in 2012.
137. Ground of appeal 8 is not substantiated.
Ground 9 – Chief Magistrate Walker demonstrated judicial misconduct in answering on behalf of the applicant during the final hearing
138. The appellant claimed that the Chief Magistrate improperly interfered in the hearing by preventing cross-examination of the respondent with questions with which the respondent was “not comfortable”.
139. As the Court of Appeal of Victoria observed in Piccolotto v The Queen [2015] VSCA 143:
41. The power and duty of a trial judge to control and regulate the proceeding before him or her, by requiring worthless methods of examination to be abandoned or by restraining unnecessary prolonged cross-examination, are undoubted. Trial judges on busy courts are expected to ensure that trials are conducted as efficiently as possible. A trial judge who does not intervene to prevent undue delay or to ensure that the parties focus upon the critical issues may otherwise be the subject of criticism by an appellate court. That said, it is to be expected that such objections to improper or irrelevant cross examination, at least in the first instance, should be raised by the prosecutor…
(Footnotes omitted.)
140. As the transcript of the hearing before the Chief Magistrate demonstrates:
(a)Although the appellant was not permitted to directly cross-examine the respondent, questions he had prepared by way of cross-examination were put to the respondent by a Registrar of the Court at the hearing;
(b)The Chief Magistrate on three occasions disallowed questions as a result of objections being made by the legal representative of the respondent;
(c)On one occasion, the Chief Magistrate disallowed a question on her Honour’s own initiative, on the basis that the question (which concerned whether the respondent was “happy”) was irrelevant; and
(d)On one occasion, the Chief Magistrate clarified a question put to the respondent by the Registrar on the appellant’s behalf (in respect of the number of mortgages on the house), as the Registrar was not able to change the questions.
In my view the conduct of the hearing by the Chief Magistrate was unremarkable. This ground of appeal is not substantiated.
Ground 10 – [The primary Judge] incorrectly interpreted the facts concerning whether the final hearing was on my application to amend or on the applicant’s application for a final family violence order
142. I have already considered the issue raised by the appellant concerning the applications before the Chief Magistrate.
143. In my view this ground of appeal has no merit.
Ground 11 – [The primary Judge] ignored contents of evidence presented on the appeal that was beneficial to my case
144. Insofar as I understand, the “evidence presented on the appeal that was beneficial to [the appellant’s] case”, but allegedly ignored by the primary Judge, was:
(a)A Notice of Adjournment dated 8 November 2017 from the Magistrates Court to the appellant; and
(b)Evidence described by the appellant as the “property law thing” – which I understand related to family law proceedings and disposition of property.
145. At [49] the primary Judge referred to the Notice of Adjournment dated 8 November 2017, and said:
The appellant, in his written submissions, returned to the allegation that it was only his Application in Proceeding to vary the interim orders that was before the Chief Magistrate on 21 February 2019. In support of this argument he attached to his submissions a letter from the Magistrates Court to him, dated 8 November 2017. It is not appropriate for a party, including one who is self-represented, to provide the Court with evidence in this way. The leave granted to the appellant was leave to file and serve written submissions. This did not extend to evidence. I do not know whether or not the respondent objects to the letter going into evidence. I have therefore not admitted it. I should add that in any event I do not see the letter as supporting the assertion made by the appellant that in some way the Chief Magistrate and respondent’s representative wrongly converted the hearing of his Application in Proceeding into a hearing for a final FVO.
146. I endorse the comments of the primary Judge that it was inappropriate for the appellant to attach the Notice of Adjournment dated 8 November 2017 to his submissions by way of tender of evidence. However, the Notice of Adjournment was included in the appeal materials before this Court and no objection was taken to this inclusion by the respondent.
147. In respect of this Notice of Adjournment, the appellant submitted that it supported his assertion that the hearing was “converted” into a final order hearing.
148. Ultimately, I am not persuaded that the Notice of Adjournment dated 8 November 2017 assists the appellant’s case. Relevantly, it provided:
NOTICE OF ADJOURNMENT PENDING FINALISATION OF RELATED CHARGES
The application for a final Family Violence Order in this proceeding has been adjourned until after related criminal charges against [TS] have been finalised.
The interim order made on 16 October 2017 remains in force during that time.
Once the charges have been finalised, the Court will re-list the application for a final Family Violence Order and advise you of that date.
…
149. Plainly, the Notice of Adjournment provides that the next hearing of the FVO application would involve consideration of a final FVO. I see no ambiguity in respect of the use of the term “finalised” – at the time the Notice of Adjournment was sent the charges against the appellant had not been heard and determined, and it is clear the purpose of the adjournment was to await that hearing and determination. As I noted earlier, the appellant was found guilty of the 2018 Convictions on 21 September 2018 and sentenced on 21 January 2019.
150. I do not consider that the Notice of Adjournment meant that when the FVO application returned to the Court on 21 February 2019, the hearing would be confined to the special interim FVO.
151. In relation to property law issues between the appellant and the respondent, for the reasons I noted earlier, the resolution of ownership of, inter alia, the family home and the family dog is properly a matter for family law proceedings. The Chief Magistrate heard the FVO application under the FV Act, the objects of which include:
6Objects of Act
…
(a) to prevent and reduce family violence; and
(b) to ensure the safety and protection of people, including children, who fear, experience or witness family violence; and
(c) to encourage perpetrators of family violence to be accountable for their conduct.
Section 36 of the FV Act also provides that, in deciding the conditions to be included in a FVO, a court must give paramount consideration to the safety and protection of the affected person and any child directly or indirectly affected by the respondent's alleged conduct.
The primary Judge observed at [63], after considering the competing considerations in ss 36 and 37 of the FV Act, that her Honour could only determine the issue one way – that is, that the order should exclude the appellant from the residence. The appellant contends that the respondent had an additional purpose in seeking as a condition of the final FVO that the appellant be excluded from the family house – namely, an objective on the respondent’s part to obtain sole ownership of the family home. As I noted earlier, irrespective whether this was the case, there was clear evidence before the Chief Magistrate that the respondent would have difficulty relocating her place of residence and, further, that there was a history of violent conduct on the part of the appellant towards the respondent which supported the final FVO being made.
Further, and notwithstanding the submissions of the appellant to the contrary, the ultimate proper disposition of assets is a matter for the family law proceedings. That the respondent may seek sole ownership of the matrimonial home in those proceedings does not mean that her claims under the FV Act had no basis.
To the extent that the primary Judge did not refer to evidence on which the appellant sought to rely concerning “property law issues”, I consider it was open to his Honour to do so.
Ground of appeal 11 is not substantiated.
Ground 12 – [The primary Judge] and Chief Magistrate Walker did not consider my circumstances relating to my lack of accommodation
157. In summary, in respect of this ground of appeal the appellant submitted:
(a)The Chief Magistrate found that he had elsewhere to live, presumably the residence of his sister;
(b)His sister’s residence was a two-bedroom unit, where his sister resided with her husband and children;
(c)When staying with his sister, the appellant was required to sleep on the couch in the living room;
(d)As a result, the appellant allegedly suffered “a back and spinal ache”;
(e)He had already suffered over a year of exclusion from his house;
(f)He was diagnosed with depression in 2008;
(g)He was suffering living in shared accommodation, including sharing bathroom facilities; and
(h)Since 2008 he had received $1,600 per fortnight from Comcare as a workers’ compensation payment for mental health issues.
158. Contrary to the submissions of the appellant, it is plain from the decision of the Chief Magistrate that her Honour considered the accommodation needs of the appellant, and his neurological and psychological conditions. Her Honour noted that although the appellant did not have access to a home in which he had a financial interest, nonetheless he was in receipt of regular income in the form of compensation payments. It is reasonable to infer from these findings that her Honour considered that, with his regular income, the appellant could reasonably find alternative accommodation. Further, her Honour was not persuaded that the appellant was particularly vulnerable as a result of his medical conditions – a finding open to her Honour on the material.
159. The primary Judge noted relevant findings of her Honour referable to the appellant’s need for accommodation, in particular at [30]–[32], and further considered this issue at [63]–[67].
160. I do not accept the appellant’s claim that the Chief Magistrate and the primary Judge did not consider his circumstances relating to his accommodation.
161. Ground of appeal 12 is not substantiated.
Conclusion
162. The appeal should be dismissed.
| I certify that the preceding one hundred and fifty-six [156] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Collier. Associate: Date: 27 August 2020 |
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