Hamilton (a pseudonym) v Lancaster

Court File Numbers: FVO 947 of 2020 FVO 420 of 2023 BAKER J: Overview

1. Malinda Hamilton (a pseudonym) (the applicant) and Bruce Lancaster (a pseudonym) (the respondent) were married for over 26 years. Their marriage deteriorated over its course, and they were divorced on 10 February 2021. Their separation has not been amicable.

2. A family violence order (FVO) was issued against the respondent with respect to the applicant on 6 May 2021. On 2 March 2023, the applicant applied to the Magistrates Court to have that order extended. On 1 May 2023, the respondent made an application to the Magistrates Court for a FVO against the applicant. On 29 June 2023, Chief Magistrate Walker (the Chief Magistrate) granted the respondent’s application, and refused the applicant’s application.

3. On 16 May 2025, the applicant filed an application seeking leave to appeal out of time against the Chief Magistrate’s decision. Neither the applicant nor the respondent were legally represented in these proceedings, nor in the proceedings before the Chief Magistrate.

4. For the reasons outlined below, I have concluded that the application for leave to appeal out of time should be refused.

The Chief Magistrate’s decision

5. The Chief Magistrate heard the two applications the subject of the present proceeding on 29 June 2023. Following the conclusion of oral submissions from each party, her Honour stood the matter down for a short period and then delivered ex tempore reasons.

6. In her ex tempore reasons, the Chief Magistrate began by referring to the provisions of the Family Violence Act 2016 (ACT) which allow for the making of FVOs. Her Honour observed that “family violence” under s 8 of that Act, includes: … physical violence or abuse; sexual violence or abuse; emotional or psychological abuse; economic abuse; threatening behaviour; coercion or any other behaviour that controls or dominates the family member; and causes the family member to feel fear for the safety and wellbeing of the family member or another person. Her Honour noted that a “family member” includes a former spouse: s 9 of the Family Violence Act.

7. The Chief Magistrate first considered the respondent’s application. Her Honour noted that the respondent’s complaint against the applicant was comprised of two distinct components. The first was that the continued litigation initiated against him by the applicant had been “weaponised” against him. The second was a series of abusive emails that had been sent by applicant to the respondent, which had caused him stress. Her Honour placed “little weight” on the first matter, noting that a finding of the court process being weaponised is “a very difficult finding to arrive at”, and one that was not necessary to determine on the facts of the case.

8. The second aspect of the respondent’s complaint was supported by a series of over 200 emails that the applicant had sent to the respondent, which were in evidence. Many of these emails were directed towards legal representatives. Her Honour put “little reliance” on emails of that nature. However, the series of emails also contained “a large number of emails which were directed specifically and personally” to the respondent.

9. The Chief Magistrate considered that the emails demonstrated three matters. First, the emails indicated that the applicant had sought to restore the relationship after the granting of the FVO in May 2021. Second, the emails showed that the applicant had been threatening to have the respondent charged with various criminal offences for more than two years, though no charges had been brought. Third, the communication between the applicant and the respondent had become “extremely abusive”, especially in the period of time proximate to the hearing. In the emails, the applicant referred to the respondent “as a coward, a narcissist, lacking morality, having a disgusting upbringing, a loser, a criminal, a filthy cunt and [a] son of filthy cunts”.

10. The Chief Magistrate noted that the respondent had given evidence that the emails that had been sent by the applicant had caused him stress, and that he has sought medical assistance to cope with that stress. Her Honour was satisfied on the balance of probabilities that the applicant’s conduct in sending the emails amounted to “family violence in the form of emotional or psychological abuse” and that this amounted to family violence. Accordingly, her Honour made a family violence order against the applicant and in favour of the respondent.

11. The Chief Magistrate then turned to consider the applicant’s application. Her Honour found that if she was satisfied of applicant’s historic complaints of family violence, she would be compelled to extend the FVO, even in the absence of ongoing conduct. Her Honour noted that the applicant complained of “physical assaults, sexual assaults, including multiple rapes, psychological harm, financial control and coercion” during the course of their marriage and the period that has followed.

12. The Chief Magistrate found that much of the evidence adduced by the applicant was assertion. For example, her Honour found that while photographs of bruising on the applicant’s body were tendered by the applicant, the applicant was unable to indicate with certainty when or how those bruises were inflicted other than that they were inflicted by the respondent in around 2018. Her Honour noted that the evidence was that the applicant had reported past assaults to police, but had refused to make a complaint to police.

13. The Chief Magistrate also reached a similar conclusion with respect to the applicant’s complaint that the respondent had damaged her property. In support of this complaint, the applicant tendered photographs of damage to a wall, which the applicant alleged had been caused by the respondent. However, the applicant did not adduce any evidence as to how, or when, this damage was occasioned.

14. The applicant also complained that the respondent disposed of multiple items from the family home, and that this amounted to property damage. In this respect, the Chief Magistrate referred to the oral evidence of the respondent describing the applicant as “a hoarder”. While her Honour was cautious not to make a finding with respect to any psychological condition associated with “hoarding”, her Honour also noted that photographs from within the family home disclosed “a significant amount of property” stacked up within it. Her Honour noted that the respondent conceded that he “sorted through that property and disposed of some of it”. Her Honour was not satisfied that this conduct constituted family violence.

15. The Chief Magistrate then considered the applicant’s “generalised complaint” of financial control. The evidence before the Court in this regard included the evidence that the applicant had attended a retail store and spent approximately $6,500 on a credit card over which the respondent had no control. This spending arose in the context of the applicant being dissatisfied with the respondent removing items from the family home. Further, the applicant also had access to joint bank accounts which she shared with the respondent. The applicant withdrew $40,000 from one of these accounts as the relationship was ending. Her Honour found that this evidence was not consistent with a finding that the applicant had been subject to the financial control of the respondent.

16. The Chief Magistrate considered the applicant’s complaint that the respondent threatened to kill her. The applicant gave evidence that she reported these threats to police. However, her Honour found that no evidence of these reports were adduced and that no action by police was taken. Likewise, her Honour found there to be “no evidence” supporting the applicant’s claim that the respondent had broken into her home and stolen her jewellery. Her Honour also considered the applicant’s claim that the respondent’s infidelity had caused her to contract a urinary tract infection to be “speculative”.

17. The applicant also made two complaints of coercive control. The first complaint concerned the respondent serving legal process onto the applicant’s mother in Algeria. The Chief Magistrate noted that the evidence before her indicated that service was affected by bailiffs of the Algerian court and that such service was a requirement of Algerian law. The second complaint concerned the applicant’s adult children advising the applicant to settle an outstanding property claim in accordance with the respondent’s proposal. On the available evidence, her Honour was not satisfied that either of these complaints amounted to coercive control.

18. In concluding, the Chief Magistrate found that although the applicant was “genuine in respect to her perception of certain matters”, the applicant was an unreliable witness, whose claims were “exaggerated if not histrionic” and “filled with assertion and speculation”. Her Honour was not satisfied of either historic or, importantly, of any ongoing family violence. Accordingly, her Honour was satisfied that a FVO was no longer necessary to protect the applicant. Accordingly, the existing FVO lapsed.

The application

19. The applicant seeks leave to appeal the decision of the Chief Magistrate out of time. In an application dated 16 May 2025, the applicant stated that she seeks leave to: 1. Present my case in writing. 2. Adduce evidence that was not available at the hearing of 29 June 2023. c. The Ambulance report and police report related to [the respondent’s] assault against me and [our son]. d. Evidence related to [the respondent] coercing me through our sons, threatening me to take me to Court to force me to settle as he wanted, causing me hardship and putting me in debt and dragging me in court, and accusing me. [The respondent] committed perjury including at the hearing of 29 June 2023. (As per the original.)

20. The applicant also identified 17 grounds of appeal. They are: a. Her Honour erred in considering me saying I talked to my doctor as contradicted myself when I talked about different doctors at different times ( I had various doctors over time). b. Her Honour erred in ignoring the abuse [the respondent] subjected me to related to finalising the divorce in Algeria when he did not serve me but attempted to serve my mother, then my brother, then published the documents on the council walls breaching my privacy and the Algerian law which is similar to Australia when it comes to serving people Court documents. c. Her Honour erred in ignoring my concerns about [the respondent] accusing my m other of not eating to open the door to accept him serving me there when my mother was not even there and she was on a death bed, and she died a few months later. d. Her Honour erred in related to the bruises [the respondent] caused me as I could not provide explanation. e. Her Honour erred in not asking [the respondent] to provide the details of the people he was with mid June 2022 when he caused me to be located when my FVO against him was current. f. Her Honour erred in not cross checking [the respondent’s] response to my question about him being at Lake Burley Griffin mid June 2022 which was a cross examination question, yet he told HH that he was at the Franklin pond/lake (the Franklin pond is not 100 m from my address and so he breached the FVO against him if he was there). But he was at Lake burley Griffin in mid June 2022 with about 6 other people. [The respondent] then mentioned 22 June 2022. I said mid June 2022 not 22 June 2022. g. Her Honour erred in saying that there was no police reports and so violence did not happen? I gave particulars of the domestic violence I suffered, I provided support services reports, and doctors and hospital reports. h. Her Honour erred is not considering the fact that me finding out that [the respondent] cheated on me checked me and added more trauma onto me, and as a way of standing up to myself according to my culture, I called him names which is to me calling him b y what he is. i. Her Honour erred in determining that I only tried to restore the relationship. j. Her Honour erred in not considering that [the respondent] also tried to reconcile the relationship.. k. Her Honour erred when she made a determination that I tried to reconcile the relationship and so I did not fear for my safety. l. Her Honour erred in not determining that I tried to reconcile the relationship after I realised that my children were suffering (they are still suffering), that their world came crushing and they did not have the help they needed (and still), and I was clear that [the respondent] will have to change his behaviour towards me and never treat me like before. m. Her Honour erred in not determining that I did not want to cancel the FVO despite [the respondent] coercing me. n. Her Honour erred in not determining that the fear I had and still have for my safety was real, that when [the respondent] did not accept my terms for reconciliation, I decided it was finished and did not want [the respondent] near me and I was clear. o. Her Honour erred in not determining that I advocate against domestic violence and me speaking up is courage and determination to stop [the respondent] abusing me and help others rather than I did not fear for my safety. p. Her Honour erred in determining that me as a victim of domestic violence who said enough to violence (a big step in my culture to have the Husband removed from the matrimonial home), needed support and protection to speak up without reprisal. q. Her Honour erred in determining that me being silenced and quiet is the answer to the fear for my safety and I felt and still feel. r. Her Honour erred in not determining that I needed protection to be able to speak up, and as long as I had protection, I will not stop speaking up. s. Her Honour erred in not determining that I am the vitriol of domestic violence, not [the respondent]. t. Her Honour erred in determining that 26 years of violence that I suffered before the separation in October 2020, and since then up to the day of her determination (29 June 2023). u. Her Honour erred in determining that [the respondent] did not commit violence against me, and as a result [the respondent] continued to commit violence against me and plays the victim. v. Her Honour erred in determining that I threatened [the respondent] with imprisonment without him committing criminal acts against me. x. Her Honour erred in determining that because [the respondent] had not been charged for his criminal conduct such as property damage and physical assaults and sexual assaults, I somehow lied about him rather than I had been (and still) dealing with his continuous abuse and be dragged in court and so I could not deal with everything at the same time. It is still the case. y. Her Honour erred in not considering the fact that raised to [the respondent] the concerns I had about our sons, the distress he was causing them and hence our sons have been victim of [the respondent’s] abuse, too, and [the respondent] has been protected and as such encouraged to continue his violence and abuse. z. Her Honour erred in accepting/ignoring [the respondent’s] affirmation that he did not cheat on me when I provided the text messages I found related to his cheating. aa. Her Honour erred in not considering the shock and trauma that [the respondent’s] cheating caused me and it was a reaction to that that I called him the names her Honour mentioned in her judgement. bb. Her Honour erred in determining that my behaviour escalated and sent many emails to [the respondent] without determining what email was related to what as I had communicated with [the respondent] related to the court proceedings related to the financial settlement when I was self representing, and also both [the respondent] and I did not have representation related to the FVO issues and so I had to communicate with him. (As per the original.)

21. The applicant sought orders reinstating the FVO against the respondent, cancelling the FVO against herself, and “clear[ing] [her] name”.

22. The applicant’s application for an extension of time was supported by an affidavit filed on 16 May 2025. In that affidavit, the applicant alleged that the respondent had frequently committed acts of physical violence, including sexual violence, against her during their marriage. She explained that since the separation, the respondent has not committed acts of physical violence against her, because she did not allow him to be near her, but that the respondent has engaged in coercive control, threats, disparaging and derogatory taunts, abuse of court process, and causing “extreme financial hardship”.

23. The applicant said that the consequences of the Chief Magistrate’s decision have been “monumental” for her. She said that she has been “left without protection,” and has been “treated as the abuser instead of [the respondent]”. She said she feels that the decision is “wrong, and it needs to be made right”.

24. The applicant also alleged that the respondent had committed perjury at the Family Court hearing and at the hearing before the Chief Magistrate. These allegations were unspecified beyond a general assertion that the respondent had provided “misleading” and “false” statements and information to the Court.

25. The applicant said that there had been ‘communication issues’ in the hearing in June 2023. She explained that evidence was missing, because she “did not know [she] could get it”. That evidence was said to have included an ambulance report and a police report. She also said that she has evidence that the respondent has “breach[ed] the Algerian law” by attempting to serve her at her mother’s house, and that the respondent “accused [her] mother when she was not even at the house because she was at my brother’s, on a death bed and she died a few months later”. The applicant also explained that she had not appealed earlier, including because she was unwell, and was exhausted following the death of her mother.

26. The applicant expanded upon some of these reasons in her written and oral submissions in support of the appeal. In particular, she said that she was not able to appeal earlier because she has been unwell (including suffering from post-traumatic stress disorder), that one of her sons became unwell, that her mother passed away (which required her going overseas), and that she has been pre-occupied with the Family Court proceedings. The applicant said that she had not provided the police reports and ambulance records referred to by the Chief Magistrate because she did not know she was able to obtain those documents.

27. In support of her application, the applicant tendered a bundle of documents, which included a report from her treating psychiatrist, dated 15 October 2025, a Centrelink Medical Certificate, signed by the applicant’s treating psychiatrist and also dated 15 October 2025, a support letter from the applicant’s clinical counsellor dated 23 July 2025, an ABN document, and a photo of the applicant’s now deceased mother, which was taken when her mother was unwell.

The respondent’s submissions

28. The respondent opposed the application for leave to appeal. The respondent submitted that the grounds are not supported by the evidence, “immaterial and devoid of probative value”.

29. At the hearing of the application in this Court, the respondent submitted that the Chief Magistrate was correct in finding that the applicant’s emails did constitute emotional and psychological abuse, particularly for directing insults at his deceased mother. He also submitted that the grounds of appeal as drafted by the applicant are not directly related to the conduct of the proceedings below, but rather are “just a series of allegations and also abuse”.

Determination

30. The Chief Magistrate delivered her decision on 29 June 2023. The applicant filed the application for leave to appeal out of time almost two years later, on 16 May 2025. An appeal against a Family Violence Order must be lodged within 28 days of the decision: s 93 of the Family Violence Act 2016 (ACT).

31. The principles to be applied when determining whether an application for leave to appeal out of time were summarised in the judgment of Refshauge J in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 303 FLR 49 at [21] as follows: 1. Time limits are important and must, prima facie, be obeyed. 2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion. 3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so. 4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant. 5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension. 6. The mere absence of prejudice is not enough to justify the extension of time. 7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted. 8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case. 9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula. 10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.

32. The above principles were recently applied by Kelly AJ in an application for leave to appeal a decision granting a family violence order in Tomlinson (a pseudonym) v Roberts (a pseudonym) [2025] ACTSC 429 at [5].

33. I accept the applicant’s explanation for her delay in lodging the appeal. However, as Kelly AJ noted in Tomlinson at [7], an application of this nature must not be granted unless the Court is “satisfied that having regard to the important value of finality and litigation and the need for time limits to be respected, that it is proper to grant an extension of time”.

34. I am not satisfied that it is proper to grant an extension of time.

35. I am not satisfied that there is any error in either of the Chief Magistrate’s decisions. Simply put, the respondent’s application was supported by objective evidence, in the form of the emails that had been sent by the applicant, whereas the applicant’s application was not supported by objective evidence. The Chief Magistrate’s decisions to make an FVO in favour of the respondent, but to decline to extend the FVO sought by the applicant were entirely open.

36. I have not overlooked the applicant’s contention that, because of communication difficulties and difficulties understanding court procedure, she was not able to adduce evidence to support her claims. Despite filing additional evidence (such as psychological reports, and a photo of her now deceased mother, whilst she was unwell), the applicant did not file any of the evidence, such as police or ambulance reports, that she says could support her claims. Recognising, however, the difficulties which an unrepresented litigant may face, particularly in obtaining and adducing documents of this nature, I have carefully considered whether the applicant should be afforded an opportunity to adduce this evidence on her application for leave to appeal.

37. I have concluded that this should not occur. More than two years have elapsed since the FVO was made. The FVO which is the subject of an appeal has now expired. The relationship between the applicant and the respondent is at an end, and subject to any ongoing Family Court appeals, there is no need for the parties to have any ongoing contact. In these circumstances, the need for finality is particularly high and is not outweighed by any countervailing matters.

38. The applicant’s real complaint appears to be that “in the records, [the applicant] is the offender, and [the respondent] is innocent”. However, whilst one of the objects of the Family Violence Act is “to encourage perpetrators of family violence to be accountable for their conduct” (s 6(c) of the Family Violence Act, emphasis added), the purpose of FVO proceedings is not to make findings as to “guilt” or “innocence”, but rather to prevent and reduce family violence and ensure the safety and protection of people who fear, experience or witness family violence: ss 6(a) and (b) of the Family Violence Act. The findings made by the Chief Magistrate are not findings of “guilt” or “innocence” of either party.

39. The applicant has not established that it is in the interests of justice to grant her an extension of time to appeal against the Chief Magistrate’s decision. The application will be dismissed.

Orders

40. The orders of the Court are: (1) The application for leave to appeal out of time is refused.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker.

Associate: Date: 6 February 2026