Zinchenko (a pseudonym) v Zavyalov (a pseudonym)
[2025] VCC 229
•17 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
| NAUM ZINCHENKO (a pseudonym) | Appellant |
| V | |
| IRINA ZAVYALOV (a pseudonym) | Respondent |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2025 | |
DATE OF JUDGMENT: | 17 March 2025 | |
CASE MAY BE CITED AS: | Zinchenko (a pseudonym) v Zavyalov (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 229 | |
JUDGMENT
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Subject:Appeal against family violence intervention order
Catchwords: Legal, factual or discretionary error – Where appellant is self-represented litigant
Legislation Cited: Family Violence Protection Act2008
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153; Lee v Lee (2019) 266 CLR 129; Blunt v Blunt [1943] AC 517; House v The King (1936) 55 CLR 499; Gett v Tabet (2009) 254 ALR 504; WS v Gardin BC201502131 (2015) 48 WAR 494; Jan v Minister for Home Affairs [2019] FCA 1837; De Winter v De Winter (1979) 23 ALR 211; Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety [2022] VSCA 101
Judgment:Appeal dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr Zinchenko (a pseudonym), in person | |
| For the Respondent | Mr N Locke | Peninsula Community Legal Centre |
HIS HONOUR:
Introduction
1In this proceeding, Mr Zinchenko[1] appeals against orders made in the Magistrates’ Court on 8 July 2024. Those orders were made pursuant to s74 of the Family Violence Protection Act2008 (“the Act”). Specifically the appeal is brought pursuant to s119 of the Act.
[1] A pseudonym
2The appeal centres around an unfortunate set of family circumstances. It is only necessary to give a very brief overview of those family circumstances, as it gives context to the hearing before the learned magistrate on 8 July 2024 and the subsequent decision.
3Briefly, Mr Zinchenko and Ms Zavyalov[2] began a relationship some time around 2011. They had a daughter born of that relationship in March 2012 named Alfina[3], and another daughter in October 2013, named Nuriya.[4] It appears that by 2014 Ms Zavyalov complained of incidents of family violence. The couple appears to have split up around this time, and thereafter there were some arrangements for Mr Zinchenko to visit the children. There matters stood until November 2022 when Ms Zavyalov made an application for an interim intervention order in the Magistrates’ Court. It was granted on an interim basis.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
4On 20 December 2023 final Family Court orders were made in respect of parenting plans.
5On 1 May 2024 Mr Zinchenko applied for an intervention order, and was granted an interim order thereafter.
6On 8 July 2024, Magistrate Burns, sitting in the Frankston Magistrates’ Court, came to hear both applications. The first was Ms Zavyalov’s application for a final intervention order against Mr Zinchenko, and the second was Mr Zinchenko’s application for a final intervention order against Ms Zavyalov. The magistrate decided to hear both applications at once. After a contested application in which both Ms Zavyalov and Mr Zinchenko filed written statements and further and better particulars, and gave evidence-in-chief and were cross-examined, the magistrate ruled that a final intervention order ought be made in favour of Ms Zavyalov and the two children for a period of two years. Mr Zinchenko’s application was dismissed.
The issues in dispute
7Mr Zinchenko appealed. In his appeal he seeks to set aside Magistrate Burns’ decision on the basis that there has been legal, factual or discretionary error. In accordance with the procedures in this court, a request for transcript of the hearing in front of Magistrate Burns was made. That revealed transcript and audio recordings which were incomplete. The audio recording was incomplete in that portions of Mr Zinchenko’s cross-examination and submissions were not recorded. No party in this court sought to tender affidavit material to cover this gap. Such a step was available to Mr Zinchenko but he did not take it.
Relevant legal principles
8In the decision of the Honourable John Dixon J in AAA v County Court of Victoria & Ors (“AAA”), [5] John 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 way of 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;[6]
(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;[7]
(c) the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[8]
(d) the Court is required to assess and evaluate the evidence for itself.[9]
[5][2023] VSC 13
[6](Ibid) at paragraph [50]
[7]Ibid
[8]Ibid
[9]Ibid
9However, 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.[10]
[10]Ibid at paragraph [54]
10As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[11] 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.[12]
[11]Ibid at paragraph [63]
[12]Ibid at paragraph [51(b)] relying on Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624, 645 at [65]
11Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this Court. Such error may be proved after an examination of the transcript in the Magistrates’ Court, to examine the conduct of the proceeding and any reasons for decision.
Errors of law, fact and discretion
12What 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.[13] With that said, established legal principles operate to guide the courts through an assessment of claimed errors. I turn now to briefly consider those.
[13]Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Legal error
13A legal error may arise in the way in which a court:
“undertakes its fact-finding, or … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning”.[14]
[14]Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at [23]
14Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[15]
[15]Ibid
Factual error
15A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[16] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[17]
[16]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479
[17]Ibid
16The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[18]
“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.”
[18](2019) 266 CLR 129 at [55]
17Similarly, in Blunt v Blunt it was said:
“If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.”[19]
[19]Blunt v Blunt [1943] AC 517 at 526
Discretionary error
18Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
19The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[20]
“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 to 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.”
[20](1936) 55 CLR 499 at 504-505
Complaints as to Conclusion
20Notwithstanding the statutory obligations placed upon appellate courts to scrutinise the evidence, inferences and conclusions before them, the general “tenor” of appellate court decisions on these issues is of a broad respect for the conclusions reached by trial judges.
21To establish that a conclusion of a trial judge was incorrect, it is necessary for an appellant to satisfy the appellate court that the trial judge reached the wrong conclusion by reason of an error of law, fact or discretion, supported by evidence.[21]
[21]Gett v Tabet (2009) 254 ALR 504 at [22]
22In Gett v Tabet, Allsop P, Beazley and Basten JJA explained:
“Where no error can be identified and the conclusion of his Honour is not itself implausible, this court should properly give weight to the view formed by the trial judge, because to do so is to acknowledge the fact that in various respects, his Honour enjoyed a beneficial position in resolving conflicting evidence, drawing inferences and making the ultimate evaluative judgment.”[22]
[22]Ibid
23In circumstances where an error is identified, to succeed on appeal it must be established that the identified error puts the validity of the conclusion in doubt. If the error in question is inconsequential, the fact of the error is not of itself enough for an appeal to succeed.[23]
[23]WS v Gardin BC201502131 (2015) 48 WAR 494 at [138-139]; see also Jan v Minister for Home Affairs [2019] FCA 1837 at [48]
24The High Court in De Winter v De Winter clarified the circumstances in which such an error would affect the ultimate decision on appeal:
“There are many other authorities, from Young v Thomas [1892] 2 Ch 134 at 137 to Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themsleves [sic] have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations.”[24]
(emphasis added).
[24]De Winter v De Winter (1979) 23 ALR 211 at 217-218
25Finally, where an appeal is brought on the basis that a trial judge ought to have attributed greater weight to certain evidence, or reached an alternative conclusion based on the evidence, it is necessary for the appellant to establish that the conclusion of the primary judge was not open on the material before them.[25]
[25]Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety [2022] VSCA 101 at [20-21]
26Having set out those principles, I now turn to the appeals pressed by Mr Zinchenko.
Consideration
Ground 1
“Judgment was based on interactions happening for a period of only three months in 2012.”[26]
[26]Court Book (“CB”) 119, written submissions of Mr Zinchenko
27This appears to be an allegation that the magistrate incorrectly concluded that there was a risk of continuation of family violence. This was said to be because the parents were separated for over 10 years without any complaints of violence “during which father paid maintenance and visited children regularly”.
28This ground cannot be made out. First, the magistrate referred to matters, other than those occurring in 2012, on page 5 of the transcript. Additionally, the magistrate made specific reference and relied on the further and better particulars filed 11 June 2024 by Ms Zavyalov which detailed ongoing examples of what she described as family violence after 2012. This provided the basis for the satisfaction of s74 of the Act, which requires evidence of family violence and that such family violence is “likely to continue to do so or do so again”.
Ground 2
“The Court hasn’t taken into consideration that mother has applied for IVO protection against father immediately after the father made allegations of sexual abuse of the child Alfina as well as making allegations of abuse of both children engaged by mother’s partner.”
29This ground cannot succeed. This matter was not put to the presiding magistrate. Further, it is unclear in what way that failure could have affected the magistrate’s consideration of s74.
Ground 3
“During the first 3 years that the IVO was in place the mother did not permit the father to see the children.”
30I am completely uncertain as to what legal, factual or discretionary error this ground is said to be addressed to. I put it to one side.
Ground 4
“The appellant is alleging a lack of procedural fairness.”
31It appears that Mr Zinchenko is complaining that the magistrate required him to go into the witness box and give evidence and be the subject of cross-examination.
32When regard is had to the transcript, it can be seen that Mr Zinchenko – who was representing himself but who had counsel for the purposes of conducting cross-examination of Ms Zavyalov only – did attempt to give evidence from the bar table. In that circumstance the magistrate required him to give his evidence from the witness box and therefore be subject to cross-examination. It is to be recalled that the magistrate is not bound by the rules of evidence. This case presented particularly trying circumstances involving a family law dispute. Ms Zavyalov was called to give evidence and was cross-examined. In that circumstance the evidence of Mr Zinchenko should have been taken either by a tendered statement but also could have been taken by having him enter the witness box to give that evidence. In some ways there was a “balancing of the field”, in that the magistrate had the opportunity to see and hear Mr Zinchenko’s evidence being tested. In that circumstance there is no denial of procedural fairness to Mr Zinchenko because he was treated in exactly the same manner as was Ms Zavyalov. This is particularly the case as both applications were heard at once, and he was the applicant for his own final intervention order.
Ground 5
“The court recordings malfunctioned and a significant portion of the hearing was not recorded.”
33This much cannot be doubted. However, no effort was made by Mr Zinchenko to provide affidavit evidence to cure this defect in this court. Further, it is not said how a failure of the court transcription service affected the magistrate’s decision below. To the extent this visited some prejudice upon Mr Zinchenko in the conduct of his appeal, he could have remedied that by providing affidavit evidence as to what he said in evidence, cross-examination, and wished to say in submissions, that was not recorded and transcribed. He has chosen not to take this path. That was his forensic decision. There is no merit in this ground.
Ground 7
“The Magistrate, Mr Burns, appeared to be biased against the father.”
34I note that no application was made before the magistrate that he disqualify himself. In this court, it is not said in what way Magistrate Burns was biased. The submissions indicate that Magistrate Burns used improper facial expressions, and that may be the basis for an apprehension of bias. Treating the ground of appeal in those terms, I find no basis to suggest that in the conduct of the hearing or in the decision-making there has been bias, apprehended or actual, demonstrated.
35For the above reasons there is no legal, factual or discretionary error demonstrated by Mr Zinchenko in his appeal. I will dismiss it for these reasons.
36There is one further matter which I must deal with, and that is as to the adequacy of the reasons that the magistrate provided.
37The reasons were expressed in extremely brief terms. It was in the following terms:[27]
“Okay. So dealing firstly with the application made first in time, Ms Zavyalov’s application against Mr Zinchenko. An interim order with full conditions was made on 22 November 2022. Full conditions 1 through 8 and exceptions A, C and D. I am satisfied via Exhibits 1, 2 and 3 in this case, and by the evidence and cross-examination of Ms Zavyalov that family violence has occurred, that is that Mr Zinchenko has committed family violence in the past, and I am satisfied that without an order in place he will continue to commit it in the future.”
[27]CB 101, transcript 45, lines 19-29
38At CB 103, transcript 47, lines 5-15, the magistrate stated:
“With respect to your application against her, I am satisfied – that is, I am not satisfied that family violence occurred by her against you in the past. It is clear from the evidence and from the documents that you have tendered that most of the complaints you make are either responses to her allegations or are parenting issues.
I do not accept that she raped you or that she apologised for doing so. In all of the circumstances, your application for a final intervention order is refused and I revoke the interim order.”
39While the reasons are brief, I consider them adequate. The magistrate clearly referred to those pieces of evidence which he relied on, which primarily were the statement and further and better particulars of Ms Zavyalov and her evidence. The only other evidence of note was that given by Mr Zinchenko, and it was rejected, first by preferencing Ms Zavyalov’s evidence, and secondly by the specific rejection of his central allegations that she had raped him and committed family violence against him in the past. This was sufficient to demonstrate to Mr Zinchenko why he had not been successful. In those circumstances, I consider the reasons brief but adequate.
40The appeal will be dismissed.
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