HM (a pseudonym) v MN

The grounds of appeal

4. Mr M’s primary complaint about the hearing before the magistrate is that he was unable to tell his whole story. He is also unhappy about the calibre of representation he received from the legal aid lawyer appointed to appear on his behalf. Mr M says the lawyer hardly said a word. He allowed the other lawyer to ask Mr M too many questions regarding, for example, child support arrangements and his prior convictions. He feels the conduct of the hearing was rushed.

5. In the course of the hearing before me it became quickly apparent the appeal is significantly motivated by Mr M’s frustration regarding arrangements for access to his children. He says as a consequence of the earlier family violence order made in favour of Ms N the children are in her full-time custody. There are presently no Family Court orders in place that allow Mr M to have access to his children. Mr M is frustrated he is unable to make any progress towards better access arrangements in the Family Court.

6. Mr M asserts, in essence, a lack of procedural fairness afforded to him in the hearing before the magistrate, or alternatively a miscarriage of justice. Is the magistrate’s decision appealable?

7. The Family Violence Act 2016 (ACT), (the FV Act), relevantly describes appeals from a magistrate’s decision as follows: 92 Appealable decisions The following decisions by the Magistrates Court under this Act are appealable: (a) the making, amending or revoking of a final order; (b) a refusal to make, amend or revoke a final order; (c) a decision mentioned in section 91 made on the review of a consent order. 93 Appeals to Supreme Court (1) A person may appeal to the Supreme Court against an appealable decision if the person was a party to the proceeding in which the decision was made. (2) The person must file a notice of appeal with the Supreme Court not later than 28 days after— (a) if the appealable decision was the making or amending of a final order and the respondent was not present when the final order was made or amended—the day the final order or amendment is served on the respondent; or (b) in any other case—the date of the order. (3) However, the Supreme Court may allow a person to file a notice of appeal after the period mentioned in subsection (2) if satisfied that it is appropriate to do so. 95 Evidence on appeal In an appeal, the Supreme Court must consider the evidence given in the proceeding from which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence. 96 Powers of Supreme Court on appeal On an appeal, the Supreme Court may— (a) confirm, reverse or amend the decision or order appealed from; or (b) make the decision or order that, in all the circumstances, it considers appropriate, or refuse to make an order; or (c) set aside the decision or order appealed from, completely or partly, and remit the proceedings to the Magistrates Court for further hearing, subject to the directions the Supreme Court considers appropriate.

8. The appeal therefore proceeds as of right. For the purposes of the appeal Mr M elected to place no additional material before the court.

What are the criteria for the making of a family violence order?

9. The criteria for the making of a family violence order are: 34 Final orders—grounds for making (1) A court may, on application, make a final order if 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. Note 1 The court must consider the matters mentioned in s 14 in deciding whether to make the final order. Note 2 An affected person includes any child who hears, witnesses or is otherwise exposed to family violence committed against another person (see s 8 (1), def family violence, par (b) and dict). Note 3 This section does not apply to consent orders (see s 33 (2) (b)). (2) For this section— (a) if some or all of the respondent’s alleged behaviour in relation to which the application is made appears to be minor or trivial when viewed in isolation, or appears unlikely to recur, the court must still consider whether the behaviour forms part of a pattern of behaviour by the respondent from which the affected person needs protection; and (b) it is sufficient to establish that the affected person has reasonable grounds to fear family violence by the respondent, or that family violence has been used by the respondent in relation to the affected person, if the respondent has— (i) engaged in behaviour mentioned in section 8 (1), definition of family violence, paragraph (a) in relation to the affected person; and (ii) the behaviour constitutes an offence. (3) However, it is not necessary to prove that any particular behaviour constitutes an offence to establish that family violence occurred.

10. The making of an order pursuant to s 34 is an exercise of discretion.

Why did the magistrate dismiss the application?

10. The magistrate took into account Mr M’s statement filed 25 June 2024, including the following allegations relevant to the determination of the application: (a) He was previously the victim of family violence at the hands of Ms N, as were the children. (b) The assaults resulted in injury to at least one of the children. (c) Ms N attempted to have sexual intercourse with him without his consent, on 12 March 2022. (d) On one occasion Ms N attended his house when the children were with him and became abusive. The children began to cry and became very scared. (e) In or around March 2024 one of his children was left at home alone and witnessed verbal and or physical disputes between Ms N and other family members. (f) In the context of the ongoing disputes in the Family Court Mr M is fearful that Ms N will abuse and assault him. (g) Ms N is physically violent to other people in front of the children.

11. The magistrate acknowledged the significant issues of family violence that existed in the relationship, and Mr M’s prior convictions for offences which involved Ms N including assaults inflicting actual bodily harm, using a carriage service to menace or harass and destroy property.

12. The magistrate accepted Mr M was himself a victim of abuse. Notwithstanding the timing of Mr M’s initial application, the magistrate rejected the suggestion it was filed only to influence the outcome of the similar application filed by Ms N. He rejected the proposition that Mr M sought the family violence order to undermine or exercise control over Ms N. His Honour accepted on balance that in December of 2022, Ms N verbally abused Mr M, banged on his doors and windows and said words to the effect of “you dog, you asshole, and then I’m calling the police and I’m going to get you locked up” as not challenged but also occurring 18 months prior. The magistrate therefore accepted an episode of violence by Ms N against Mr M in 2018 and a discrete episode in December 2022. The subsequent complaints levelled against Ms N, although they may have substance, did not involve family violence of the kind described in s 8 of the FV Act. His Honour said the evidence that Ms N had more recently been to Mr M’s house was thin, and it effectively amounted to “he thought he saw a car that looked like hers, but he couldn’t be sure”.

13. In summary the magistrate was not satisfied there were any current threats against Mr M, nor real threats against him in the future. The magistrate therefore declined to exercise his discretion to make a family violence order.

Was there a failure to afford Mr M procedural fairness or a miscarriage of justice?

14. A denial of procedural fairness provides a basis for appellate review of a discretionary decision. The particular actions required to afford procedural fairness will vary from case to case. What is required in a particular case will be influenced by what is said and done during the proceedings and the matters ultimately in issue. However, “the ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [34]. The court in Lam expressly rejected the proposition that the doctrine of legitimate expectation can give rise to substantive rights rather than procedural ones.

15. This was affirmed in the Minister for Immigration and Border Protection v WZARH & Anor [2015] HCA 40; 256 CLR 326, where Gageler and Gordon JJ highlight at [61] that the “true inquiry” of the Court must be into the opportunity given to a party and whether or not there has been actual unfairness and not rather “by focussing on the opportunity expected, or legitimately to have been expected”. The High Court has clearly said that “legitimate expectation” as a concept does not “provide a basis for determining whether procedural fairness should be accorded [to the relevant party] or for determining the content of such procedural fairness.”; Minister for Immigration and Border Protection v WZARH & Anor [2015] HCA 40; 256 CLR 326, at [30] per Kiefel, Bell and Keane JJ.

16. In this case the complaints of Mr M relevant to procedural fairness were: (a) the magistrate did not listen to him; (b) he was not afforded a proper opportunity to tell his story; and (c) his lawyer didn’t provide him with very good representation.

17. Dealing with the first of those propositions it is quite clear on a fair reading of the transcript and on the face of the magistrate’s decision that he did listen to Mr M. However, he didn’t accept all of the issues Mr M considered to be relevant to his application for a family violence order were in fact relevant matters. In that regard there is no suggestion on the appeal, nor any proper foundation for the proposition, that the magistrate erred either in the matters to which he had regard in assessing the application or in rejecting the matters which he considered to be irrelevant.

18. Mr M has not established any want of procedural fairness in the approach taken by the magistrate to the assessment of the evidence.

19. As to the second point it is true that a review of the transcript demonstrates times at which the magistrate discouraged Mr M from speaking; see Transcript 03 July 2024, at 27.1 - 8: His Honour: All right. [Mr M], that concludes your evidence. You can take a seat back next to Mr Chaudhry? - - - [Mr M]: Can I give more evidence? - - - His Honour: No. - - - [Mr M]: you’re not allowing me to give - - - His Honour: No. - - - [Mr M]: of course not - - - His Honour: You’re represented, [Mr M]

20. That was for the simple reason that he was legally represented on the application. There can be no criticism of the magistrate in those circumstances seeking to conduct the proceedings so that the person appointed to represent Mr M’s interests did so without interjection from Mr M himself.

21. No want of procedural fairness is established in this regard.

22. The third issue is the adequacy of Mr M’s legal representation. This is not a matter in which Mr M has, with the benefit of hindsight, determined he was not effectively legally represented. The transcript makes clear he complained about the quality of legal representation he was receiving on the day of the hearing. Incompetent legal representation may be a ground for appeal if it results in a substantial miscarriage of justice.

23. In R v Birks (1990) 19 NSWLR 677 at 686, Gleeson CJ summarised the relevant principles on incompetence and resulting miscarriage as: (a) What amounts to the alleged miscarriage has to be considered against the way in which the system of criminal justice operates; (b) As a general rule, it is not a ground for incompetence that decisions made by counsel were made without or contrary to instructions and an accused person is bound by the way in which counsel conducts a trial. (c) Although undesirable to define with precision, there may be cases where a miscarriage of justice will arise as a result of flagrant incompetence

24. The fact of an unwise decision or a mistake by an advocate will not usually, without more, justify interference with a view to avoiding a miscarriage of justice, particularly in civil proceedings: Bajramovic v Calubaquib [2015] NSWCA 139, per Emmett JA at [38].

25. In TKWJ v The Queen [2002] HCA 46; 212 CLR 124, per Gaudron J, at [33], after analysing the law concerning the interaction between the competence of counsel in marshalling evidence and a miscarriage of justice observed (quoting with approval from Mickelberg v The Queen (1989) 167 CLR 259): … where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that “when viewed in combination with the evidence given at trial ... the jury would have been likely to entertain a reasonable doubt about the guilt of the accused.”

26. In Nudd v R [2006] HCA 9; 225 ALR 161, Gleeson CJ said at [9]:

…It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light…

27. A review of the transcript suggests, with a hindsight view, there were questions directed to Mr M in cross examination, and he was required to answer without objection, that were not particularly relevant to the matters in issue before the court on an application for a family violence order. Namely, the evidence regarding compliance with child support payment directions and the detailed evidence concerning his prior criminal convictions. However, the evidence concerning Mr M’s compliance with orders for payment of child support and his prior criminal offences was not relied upon by the magistrate in the exercise of his discretion that led to the dismissal of the application. The application was dismissed because the magistrate was not satisfied there was presently, any evidentiary basis for Mr M to have a fear of harm that warranted the making of a family violence order. Mr M elected to place no further evidence before the court on the hearing of the appeal. As a consequence, there was no evidence placed before me that could be viewed in combination with the evidence given at trial, to support the proposition that a different outcome was likely had the evidence been available to the magistrate.

28. In the circumstances, Mr M has not established, any failings on the part of his legal advisers in the conduct of the hearing which resulted in an unfairness constituting a miscarriage of justice.

29. For the reasons given above the appeal must fail.

Orders:

30. The orders of the Court are: (1) The appeal is dismissed.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: M.G. Malouf Date: 08/04/2026