Whitehead (a pseudonym) v McLaughlin (a pseudonym)
[2025] VCC 257
•28 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| APPEALS AND POST SENTENCE APPLICATIONS LIST |
| ROMEO WHITEHEAD (A PSEUDONYM) | Appellant |
| v | |
| ANNIKA MCLAUGHLIN (A PSEDONYM) | Respondent |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2025 | |
DATE OF JUDGMENT: | 28 March 2025 | |
CASE MAY BE CITED AS: | Whitehead (a pseudonym) v McLaughlin (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 257 | |
REASONS FOR JUDGMENT
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Subject:APPEAL AGAINST EXTENSION OF FAMILY VIOLENCE INTERVENTION ORDER
Catchwords: Legal, factual or discretionary error – extension of family violence intervention order – adequacy of reasons given for decision – whether duration of extension reasonable
Legislation Cited: Family Violence Protection Act 2008 (Vic)
Cases Cited: AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Wainohu v New South Wales (2011) 243 CLR 181; Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; YY v ZZ& Anor [2013] VSC 743;OP v XY [2020] VSC 754; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Read v Victoria Police [2024] VCC 1870; Pettitt v Dunkley [1971] 1 NSWLR 376; Makeham v Sheppard [2020] VSCA 242; House v The King (1936) 55 CLR 499; Hunter v Transport Accident Commission [2005] VSCA 1
Judgment: Appeal dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Anderson | Emma Turnbull Lawyers |
| For the Respondent | Mr J Moutsias | -- |
HIS HONOUR:
Introduction
1On 18 March 2016, Victoria Police made application under the Family Violence Protection Act 2008 (“the Act”) for an intervention order against Romeo Whitehead[1] on behalf of his former wife, Annika McLaughlin[2] and their daughter, Rosalind[3] (born 2011), and son, Finnian[4] (born 2013). A final order was made by the Heidelberg Magistrates’ Court later that year (“Intervention Order”), and has been extended on three previous occasions.
[1] A pseudonym
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
2On 3 November 2021, Ms McLaughlin sought a further extension of the Intervention Order under s106 of the Act on the basis that if it were not extended, Mr Whitehead was likely to commit family violence against her and the children.
3On 17 August 2022, Magistrate Lamble extended the Intervention Order for seven years. The Magistrate’s written reasons (“Reasons”) record her findings.
4Mr Whitehead appealed the decision of Magistrate Lamble that same day.
5In order to prosecute his appeal, Mr Whitehead must first satisfy the court that Magistrate Lamble made a legal, factual or discretionary error in extending the Intervention Order.
6Mr Whitehead’s Statement of the Grounds of Appeal dated 6 November 2024 set out the alleged error, being:
“Discretionary – the duration of extension was unreasonable and/or plainly unjust.”
7By consent, the grounds of appeal were amended at the hearing to include a failure to provide adequate reasons, both in relation to the extension of the final order, and its duration.
Background
8Ms McLaughlin and Mr Whitehead were married in or about 2012 and have two children, Rosalind, aged 13 and Finnian, aged 11. They are now separated and, on 24 June 2020, final orders were made in the Family Court of Australia.[5]
[5] Court Book (“CB”) 172
9The circumstances of the Intervention Order are recorded in the initial application made in 2016:
“AFM is a 30 y.o. female and the resp is a 29 y.o. male. AFM and resp have known each other for 5 and a half years and got married when the AFM fell pregnant to the resp. Have now been married for 3 and a half years and have 2 children together. Tonight 17/3/2016 there has been an argument at the family home regarding money. During this argument the AFM brought up past issues which was affecting their relationship. The argument has become heated and the resp has removed a family photo from the wall and smashed it on the lounge room floor, causing the glass to break. Their 2 children were in their beds when this argument has taken place, hearing the argument and have become upset. The AFM has collected the children and taken them to her parents’ house.
According to both AFM and resp the relationship is continuing to fail. Police have concerns that if nothing is done then the future risk of family violence is high and will continue and may escalate.”
10On 3 November 2021, Ms McLaughlin made her most recent application for extension of the Intervention Order “for as long as possible” on the following bases:
(a) Ms McLaughlin still felt unsafe;
(b) Mr Whitehead mentioned, during a designated phone call with Rosalind and Finnian, that he knows where they live;
(c) Mr Whitehead is still very volatile when Ms McLaughlin emails him regarding the children; and
(d) Ms McLaughlin has sole parental responsibility, but she still feels she needs an extra layer of protection.
11The application for extension was heard in the Magistrates’ Court of Victoria on 14 July 2022. Both parties gave evidence, were cross-examined and made submissions. The transcript of the evidence on 14 July 2022 is missing and the recording has been destroyed. Transcript of Mr Whitehead’s brief submissions as to duration made on 14 July 2022 was available. These were to the effect that there were different circumstances to be considered since the original Intervention Order was made, and that “all of” the separation, parenting and property issues between him and Ms McLaughlin had “been resolved”.
12In addition, the Reasons together with a transcript of delivery of the ruling comprise the record of the court.
Statutory framework
13The Act defines “family violence” in s5 as follows:
“(1) …
(a)behaviour by a person towards a family member of that person if that behaviour—
(i)is physically or sexually abusive; or
(ii)is emotionally or psychologically abusive; or
(iii)is economically abusive; or
(iv)is threatening; or
(v)is coercive; or
(vi)in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; …
…
(2) Without limiting subsection (1), family violence includes the following behaviour—
(a)assaulting or causing personal injury to a family member or threatening to do so;
(b)sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;
(c)intentionally damaging a family member’s property, or threatening to do so;
(d)unlawfully depriving a family member of the family member’s liberty, or threatening to do so;
(e)causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.
… .”
14The definition of “family violence” in the Act includes “emotional or psychological abuse”,[6] which:
“… for the purposes of the Act … means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.”[7]
[6] Section 5 of the Act
[7] Section 7 of the Act
15The court may make a final family violence intervention order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.[8]
[8] s74(1) of the Act
16The powers of the Court to extend a final order are set out in s106 of the Act:
“(2) The court may order the extension of a final order if the court is satisfied, on the balance of probabilities, that if the order is not extended the respondent is likely to commit family violence against the protected person.
(3) Subsection (2) applies whether or not the respondent has—
(a) committed family violence against the protected person while the final order was in force; or
(b) complied with the order while it has been in force.”
17Division 8 of Part 4 of the Act empowers the Magistrates’ Court, on application, to order the variation, revocation or extension of a family violence intervention order.
18Where an application for revocation or variation is made, the court must have regard to all the circumstances of the case, including the applicant’s reasons for seeking the variation or revocation, the safety of the protected person and whether there has been any change in the need to protect another person protected by the order from being subjected to family violence by the respondent: see especially ss100 and 102 of the Act.
19This appeal comes before the court pursuant to s114 of the Act.
20Relevantly, s119 of the Act specifies the following:
“(1)The appeal is by way of rehearing by the County Court or the Supreme Court.
(2)On the appeal, the County Court or Supreme Court may—
(a)confirm the relevant decision; or
(b)set aside the relevant decision; or
(c)vary the relevant decision and make any other order the Magistrates’ Court or Children’s Court could have made and exercise any other powers that the Magistrates’ Court or Children’s Court may have exercised; … .”
21Although the applicant filed written submissions,[9] ultimately Mr Whitehead relied upon his counsel, Mr Anderson’s oral submissions. While not abandoned, the ground in relation to discretionary error was not significantly pressed.
[9] CB 98
22In substance, Mr Whitehead’s grounds of appeal are as follows:
(a) Ground 1 – the Reasons do not disclose an adequate path of reasoning in relation to:
(i)the extension of the Intervention Order; and
(ii)the duration of the extension.
(b) Ground 2 – the magistrate made a discretionary error in extending the Intervention Order for a period of seven years, which was unreasonable and/or unjust.
23Based on these grounds, the following questions arise for determination:
(a) Were the Reasons adequate?
(b) Did the Magistrate make an error in the exercise of her discretion to specify a period for which the Intervention Order was in force?
24In order to consider those grounds, it is necessary to refer to the Reasons in sufficient detail.
The Reasons
25The Reasons correctly set out the legislative framework, including that the Court may specify the period of a final order is to remain in force.[10] In other words, the Magistrate acknowledged that there was a discretion to be exercised as to whether the order was to be made other than on the basis of an indefinite period.
[10] Reasons, [2]
26After setting out the background to the application and the proceedings before her, the Magistrate recorded in her reasons a summary of the evidence. That evidence included the further and better particulars filed by each party, family law orders made by consent in the Federal Circuit Court of Australia on 24 June 2020 and the oral evidence.
27In summarising the evidence of each party, the Magistrate recorded the extent to which evidence was disputed. For example, during the sale of the family home some years ago, the respondent alleged that the appellant had vandalised the “for sale” sign; and attempted to compromise access to the property on the day of the auction. The Reasons make it clear that this evidence was disputed, and it was not relied upon in support of the final order.[11]
[11] Reasons, page 3
28The Reasons also record specific agreement as to factual matters, such as the appellant being charged with contravention of the Intervention Order; and receiving a fine without conviction in 2018 in relation to this breach.
29The content of hostile emails sent by the appellant to the children's school, the Federal Court, the respondent’s lawyer and the independent children's lawyer and others and tendered in the hearing below was not in dispute.
30The Reasons state, the “hearing did not permit me to resolve all matters in dispute between the parties”, but nevertheless record the Magistrate’s findings[12] that:
(a) despite attending counselling and completing a men's behaviour change program in 2019, the behaviour of the appellant has not changed since the Intervention Order was made;
(b) on the totality of the appellant’s evidence, he did not wish to reconcile with the respondent and has not come to terms with his separation from her and the children;
(c) he remains angry with the respondent because of the separation and the events that have transpired since, and is resentful of his inability to spend more time with his children;
(d) despite agreeing to Family Court orders made by consent in June 2020, Mr Whitehead demonstrated a very strong sense of entitlement that he should be able to spend time with his children once a fortnight and to communicate with them more regularly than the weekly Zoom meetings allowed by the Family Court orders;
(e) Mr Whitehead had not exercised supervised contact with his children for the previous year;
(f) Mr Whitehead refused to accept responsibility for his behaviour, and instead deflected responsibility to the respondent. Specific examples of this included his refusal to accept any responsibility for:
(i)his role in the separation or difficulties in arrangements for him to spend time with his children before the final Family Court orders; and
(ii)his non-compliance with the arrangements for supervised time with the children set out in the Family Court orders;
[12] Reasons, page 5
(g) Mr Whitehead did not acknowledge the arrangements contained in the Family Court orders for a review by a family consultant if he demonstrated compliance with treatment and progress in the contact centre arrangements;
(h) Mr Whitehead has not benefited from a men's behaviour change program or other initiatives to influence his behaviour or improve his understanding of the impacts of his behaviour on his former wife and children;
(i) it is the Intervention Order which influences Mr Whitehead’s behaviour, by making him accountable for his behaviour;
(j) without the Intervention Order, further family violence would likely occur in the context of ongoing contact arrangements having to be negotiated while the children are at school;
(k) his behaviour had not changed and the situation was unlikely to improve over time;
(l) there is a lengthy previous history of family violence;
(m) there has been a considerable litigation history between the parties both in the Magistrates' Court and the Federal Circuit and Family Court of Australia; and
(n) ongoing litigation is likely to take a toll on the protected persons and it is important that the Court does not allow its processes to be used as a means of abusing the respondent.
31The Magistrate rejected the appellant's evidence that the Intervention Order interferes with his relationship with his children. After reciting the substance of the final Family Court orders, she found the appellant’s evidence that, “the intervention order supports [Ms McLaughlin’s] unwillingness to use mediation to negotiate more flexible arrangements” in relation to access to his children is part of a pattern of refusing to accept responsibility for his own behaviour.
32I infer the Magistrate accepted family violence had occurred in the past because:
(a) she recites the history of the original application made by Victoria Police, extended on three previous occasions, without exception;
(b) she refers to family violence “flaring up” in the future, plainly a reference to previous instances; and
(c) her reference to a “lengthy history of family violence” in her consideration of the risk of further family violence and its likely effect on a protected person.
33The Magistrate also took into account the existence of the initial family violence intervention order in the evidence before her, which is recorded in the Reasons.
34Ultimately she concluded:
“Based on the evidence before me I find on the balance of probabilities that if the intervention order is not extended, Mr Whitehead is likely to commit family violence against Ms McLaughlin.
The character of that family violence is ongoing harassment and behaviour that controls or dominates Ms McLaughlin, causing her to feel fear for her safety and wellbeing and that of her children.
Because of the ongoing contact arrangements, his children are likely to hear or witness family violence against their mother and be exposed to the effects of that behaviour.”[13]
[13] Reasons, page 5
Principles
35In March 2023, the Supreme Court handed down the decision of Justice John Dixon in AAA (a pseudonym) v County Court of Victoria & Ors[14] (“AAA”).
[14] [2023] VSC 13
36In that decision, Dixon J considered the terminology associated with s119, and particularly the meaning of the term “rehearing by the County Court” which appears there. In that case, his Honour held that an appeal under s119 is a broad appeal by rehearing. The features of such a broad appeal are the following:
(a) that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;
(b) the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual or discretionary error;
(c) the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence; and
(d) the court is required to assess and evaluate the evidence for itself.[15]
[15] AAA at paragraph [50]
37However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand.[16]
[16] AAA at paragraph [54]
38As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[17] He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal. It is then the appeal court’s function to apply the law at the time when the appeal is heard to consider all of the admitted evidence. He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[18]
[17] AAA at paragraph [63]
[18]AAA at paragraph [51](b) relying on Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624 at paragraph [65]
39Broadly, the ratio of AAA is that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this Court. Such error may be proved after an examination of the transcript in the Magistrates’ Court, to examine the conduct of the proceeding and any reasons for decision.
Procedural history of the appeal
40At the time that Mr Whithead initiated his appeal in August 2022, the decision in AAA had not clarified the nature of the appeal in this Court.
41A de novo appeal was initially heard in the County Court in February 2023 before Judge Clark, who reserved his decision. Mr Whitehead was not required to establish a legal, factual or discretionary error made by Magistrate Lamble; he was not obliged to provide the transcript or reasons from the Magistrates’ Court proceeding below; and he did not have to identify any new evidence which he sought to adduce in this appeal. Prior to Judge Clark delivering judgment, AAA was handed down, and the appeal was remitted for re-hearing on a broad appeal basis.
42Various procedural orders were made by this Court to facilitate the parties filing materials in accordance with AAA, and a new timetable set down.
43For the purposes of the hearing of this matter, the court was referred to the Reasons. By consent, no other material was relied upon.
Errors of law, fact and discretion
44What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[19]
[19] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Inadequate reasons
45In Wainohu v New South Wales,[20] French CJ and Kiefel J stated that the duty of judges to give reasons for a decision has been linked to the availability of rights of appeal and is an expression of the open court principle.
[20] (2011) 243 CLR 181 at paragraph [55] and [58]
46In any case in which reasons are required, the necessary content will depend upon the circumstances of the particular matter.[21] As the High Court has put it, “the standard of reasons required of courts making judicial decisions can vary markedly with the context.”[22]
[21] Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1 at paragraph [101].
[22] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at paragraph [45]
47The provisions of reasons are central to the function of the court, depending upon the subject matter and context, and jurisdiction.[23] Further:
“The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.”[24]
[23] Wainohu v New South Wales (2011) 243 CLR 181, at paragraphs [54]-[57]
[24] (Ibid), paragraph [58]; see also see also Read v Victoria Police [2024] VCC 1870, [29-33]
48As a matter of judicial duty, and as an ordinary incident of the judicial process, magistrates have an obligation to provide adequate reasons.[25]
[25] Pettitt v Dunkley [1971] 1 NSWLR 376
49In Makeham v Sheppard,[26] the Victorian Court of Appeal stated:
“Of necessity, the content and extent of a magistrate’s reasons will be dictated by the nature of the matter under consideration, and the evidence and the issues raised. In a case such as the present, a magistrate must consider all of the relevant evidence; although, depending upon its importance to the ultimate resolution of the case, it may not be necessary for the magistrate to refer to every piece of it, or to indicate whether it is accepted or rejected. But a magistrate should refer to any evidence that is important or critical to the proper determination of the matter. And where there is conflicting evidence of a significant nature, each set of evidence should be referred to.
…
In any disputed case, a magistrate should set out material findings of fact, together with any ultimate conclusions or findings reached. He or she should provide reasons for arriving at the relevant findings of fact and the conclusions based on those findings, and should give reasons applying the law to the facts as so found. That is not to say that a magistrate necessarily must make explicit findings on each disputed piece of evidence, or make findings on every argument or submission made — particularly where they are numerous and of varying significance — but those that are important to the ultimate decision must be set out.
…
[26] [2020] VSCA 242
Self-evidently, the adequacy of a judge’s reasons will depend on the importance of the point involved and its likely effect on the outcome of the case. The reasons should deal with the substantial points raised by the parties and they should, of course, include findings on material questions of fact. They should refer to the key evidence, or other material upon which those findings were based. They should provide an intelligible explanation of the process that has led the judicial officer from the evidence to the findings, and from the findings to the ultimate conclusion.”[27]
[27] Ibid, at [36], [38] and {90]
50Cavanough J considered the adequacy of reasons in the context of the Act in YY v ZZ & Anor.[28] His Honour stated:
“The Act does not impose any express obligation on the court to state its reasons for the overall decision it makes on an application for a family violence protection order, much less to state its reasons for any particular part of the decision, whereas s 96 of the Act does require that the purpose, terms and effect of a final order be explained to the protected person and to the respondent. This is to be done both orally and in writing.
Although there may nevertheless be an implied obligation to state reasons for the overall decision, and also for some particular part or parts of it, still, under this Act, any breach of any such obligation may not affect the validity of the decision or of the part, given that s 96(4) of the Act provides that a failure by the court to comply with the express requirements of s 96 does not affect the validity of the order.”
[28] [2013] VSC 743
51Despite only an implied obligation to state reasons for the overall decision in proceedings under the Act, nevertheless, I accept that a Magistrate is required to give sufficient reasons in support of findings that an intervention order ought be extended under s106 of the Act, at least for the reason that a person whose rights are affected should understand the basis of the decision. In other words, it is another expression of the principle of natural justice being afforded a litigant.
52I accept counsel for the respondent, Mr Moutsias’s submission that the allegation of breach of a duty to provide reasons in this instance must be assessed in the light of the jurisdiction and context. I have applied the considerations identified by Cavanough J to this extent: the nature of the jurisdiction – in which a lack of reasons may not invalidate an order - and the context of a very busy court both inform the analysis of the adequacy and content of reasons supporting the final orders made under the Act on 17 August 2022.
Discretionary error
53Where the evidence identifies an error by the trial judge in the exercise of a discretion, the appellate court may then exercise its own discretion on that point.
54The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[29]
“… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. … .”
[29] (1936) 55 CLR 499 at 504-505
Findings
Adequacy of Reasons
55I reject the appellant’s submission that the Reasons are “about as good as useless”[30] because they merely recite the evidence of Ms McLaughlin and then Mr Whitehead, followed by a statement of findings, without any explanation as to how or why the evidence supported the findings.
[30]see Nettle JA (as he then was) in Hunter v Transport Accident Commission [2005] VSCA 1, at [28] (Nettle JA; Batt JA agreeing at [1]; Vincent JA agreeing at [4])
56In particular, Mr Whitehead submitted that:
(a) the Reasons suffered from the vice of making no findings as to the contested evidence in support of a risk that the appellant was likely to commit family violence if the order was not extended;
(b) the ultimate findings are based solely on Mr Whitehead’s credibility as a witness without resolving any of the conflicts in the evidence;
(c) the Magistrate failed to identify the family violence in the past which supported her finding of the risk of future family violence, and without doing so had not discharged her obligation to provide adequate reasons; and
(d) without resolving contested factual matters, he could not appreciate or understand why the decision was made.
57I reject these submissions. It is not in dispute that the Magistrate was not required to resolve all disputed matters, just those necessary to support her decision. A fair reading of the Reasons includes the following bases for the extension of the Intervention Order:
(a) the findings set out at paragraph [30] above;
(b) findings of family violence that had occurred in the past [see [32] and [33] above];
(c) the respondent’s apparently unchallenged evidence as to the following instances of historical family violence:
“on 17 March 2016, Mr Whitehead smashed four very large family photographs one by one. The children were in a nearby room when this happened. Ms McLaughlin took the children and left the family home to live with her parents”
“In early 2017, Ms McLaughlin took the children to visit their father in the family home. There was a noose hanging on the outdoor deck. Rosalind asked what it was for, and Ms McLaughlin told her it was to hold up the roof, but Mr Whitehead interjected and told his daughter that he was really sad. Ms McLaughlin told him not say that to a child, but he responded that she had to learn.”[31]
(d) her findings otherwise infer she accepted the respondent’s evidence of the history of family violence;
(e) she accepted the respondent’s evidence Mr Whitehead’s behaviour had not really changed, and that she “believes she and the children are still at risk of family violence”;[32]
(f) Mr Whitehead remained angry after separation;[33]
(g) Mr Whitehead admitted he had breached the Intervention Order in the past;
(h) the findings about Mr Whitehead’s failure to comply with existing arrangements referred to above;
(i) since the Intervention Order in 2018, Mr Whitehead had not benefited from a behaviour modification program, nor was there any likelihood of his behaviour improving. As the Magistrate accepted family violence had occurred in the past, this is a relevant consideration in assessing the risk to the safety of the protected persons;
(j) her finding there had been no attempt to improve his behaviour, is important. The Magistrate had little faith that the situation would improve over time. This finding also goes to the question of the reasonableness of the duration;
(k) the appellant had a pattern of refusing to accept responsibility for his behaviour despite attending a men’s behaviour change program and other initiatives to influence his behaviour or improve his understanding of the impacts of his behaviour on his former wife and children; and
(l) the Intervention Order influences his behaviour.
[31] Reasons, 2 - 4
[32] Reasons, 3
[33] Reasons, 5
58I accept the Magistrate’s findings as to past family violence involved, at least inferentially, findings as to the credit of Mr Whitehead to the extent she preferred Ms McLaughlin’s evidence. The Reasons record that during his evidence in the Magistrates’ Court, Mr Whitehead disputed the content of a recorded Zoom meeting between him and his children on 1 December 2021, which was played to the Magistrates’ Court.[34] I infer the Magistrate considered this did not reflect well on the credibility of Mr Whitehead’s evidence generally.
[34] Reasons, 2, 4
59The evidence and findings in relation to previous instances of family violence which supported the original order, a further admitted instance of family violence and a specific finding there had been no change in Mr Whitehead’s behaviour, are all set out adequately in the Reasons and support the Magistrate’s decision. As the Magistrate correctly identified, s106(3) of the Act provides that the court may extend an intervention order whether or not family violence has occurred while the original order was in force.
60The identified risks to the protected persons involved the appellant’s mental state, including anger and frustration; that the Intervention Order influenced his behaviour by controlling it; that there had been no change in his behaviour; and the likelihood the situation would not improve, were all set out sufficiently to disclose the Magistrate’s line of reasoning in support of the ultimate finding as to the likelihood of Mr Whitehead committing family violence if the order was not extended.
61Mr Whitehead further submitted there was a lack of reasons in relation to the duration of the extension. The Reasons, however, set out clear findings:[35]
(a) it is six and a half years since the Intervention Order was made;
(b) in that period, Mr Whitehead has not benefited from a men's behaviour change program or other initiatives to influence his behaviour or improve his understanding of the impacts of his behaviour on his former wife and children;
(c) the Magistrate had little faith that this situation will improve over time;
(d) there has been a considerable litigation history between the parties both in the Magistrates' Court and the Federal Circuit Court;
(e) ongoing litigation is likely to take a toll on the protected persons;
(f) it is important that the court does not allow its processes to be used as a means of abusing the applicant; and
(g) the seven year period allows Rosalind an opportunity to consider if she wishes to retain the protection of an intervention order once she reaches adulthood.
[35] Reasons, 5
62The duration of the final order was supported by the respondent’s evidence to the effect she felt unsafe as recorded in the Reasons.[36] She also set out the evidence of the appellant which the court may also take into account.[37] The safety of the protected person is paramount.
[36] See s97(2)(c) of the Act
[37] See s97(3) of the Act
63The Magistrate identified “part of the purpose of extending the order for this period” as being to allow Rosalind an opportunity to consider if she wishes to retain the protection of an intervention order once she reaches adulthood. In the context of the exercise of the discretion, this is an obvious change in circumstances that might warrant reconsideration of the duration of the Intervention Order, particularly having regard to the Magistrate’s findings as to the connection between parenting issues and the risk of family violence.
64It was not suggested the age of the protected persons was an irrelevant consideration. I reject the submission that the final paragraph of the Reasons forms the only record of the reasons provided by the magistrate for the duration of the extension, which are set out at [61] above.
65Appeal ground 1 fails.
Appeal ground 2 - Duration of order
66The magistrate found that in the circumstances of this case, the Intervention Order should be extended for a period of seven years.
67Section 97 of the Act states that the court may specify in a final order the period for which it is in force, and sets out factors the court must take into account in making any such decision. It provides:
“Court may specify period for which order in force
(1)The court may specify in a final order the period for which the order is in force.
(2)In making a decision as to the period for which the final order is to be in force, the court must take into account—that the safety of the protected person is paramount; and
(a)any assessment by the applicant of the level and duration of the risk from the respondent; and
(b)if the applicant is not the protected person, the protected person's views, including the protected person's assessment of the level and duration of the risk from the respondent.
(3)The court may also take into account any matters raised by the respondent that are relevant to the duration of the order.”
68Section 99 of the Act provides:
“Duration of order
A final order remains in force—
(a)if a period is specified in the order, for the specified period unless it is sooner revoked by the court or set aside on appeal; or
(b)if no period is specified in the order, until it is revoked by the court or set aside on appeal.”
69The power to specify a fixed period is discretionary. In YY v ZZ,[38] Cavanough J stated:
“… it is clear that the default position under ss 97 and 99 and Division 8 of Part 4 is that, unless a particular period is specified in the final order, a final order will be indefinite in duration, leaving it to the respondent to seek revocation or variation in the future if so advised. The structure and language of s 97 are very important for present purposes. Under sub-s (1), the power to specify a fixed period is discretionary. Under sub-s (2), the court must take into account three matters, the general tenor of which, in each case, is against setting a fixed period, namely, first, that the safety of the protected person is “paramount”; second, any assessment by the applicant of the level and duration of the risk from the respondent; and, third, the views of the protected person. By contrast, s 97(3) provides that the court may also take into account any matters raised by the respondent that are relevant to the duration of the order.[39]
[38] YY v ZZ& Anor [2013] VSC 743
[39] Ibid at [109], affirmed in OP v XY [2020] VSC 754 at paragraph [342]
70Having regard to the Magistrate’s findings, a duration of seven years is without error in the House v King sense: it is within the “range”, and not unreasonable or plainly unjust. No complaint is made about acting on a wrong principle, extraneous or irrelevant matters or mistake as to the facts.
71The County Court is not the venue to address any concerns Mr Whitehead holds about the existing contact arrangements between him and his children. The principal concern under the Act is the safety of the protected persons.
72The duration is a matter of discretion under s97 of the Act, in the absence of which under s99 the extension would be indefinite. Mr Whitehead may apply for leave to apply to vary an intervention order, or revoke it, with a change of circumstances in the intervening period.[40]
[40] See s109 of the Act
73I consider the finding there is a considerable litigation history and a need to prevent further abuse being perpetuated through further proceedings under the Act supports the duration. It correctly put the onus on Mr Whitehead to demonstrate a change of circumstance – which he was unsuccessful in doing in the hearing below – to support a variation of the duration of the extension of the Intervention Order.
74The duration reflects the Magistrate’s findings and the respondent’s assessment of the risk to her and the children.
75Appeal ground 2 fails.
Conclusion
76As a result of the above findings, I dismiss the appeal and confirm the Orders of the learned Magistrate.
77The parties will be given liberty for a period of fourteen (14) days to make application for any consequential orders.
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