Plaintiff v First Defendant

1 This case tells a story of family violence, some of it quite serious, some of it less so, but all of it disputed. It is also a parable of how the risks inherent in litigation sometimes can materialise in startling ways.

2 If this were an appeal by way of a rehearing on the existing evidence, I would allow it. But it is not. It is an application for judicial review of decisions made on an appeal[1] to the County Court[2] in a family violence matter. The ultimate result is yet another reminder of just how constrained this Court is upon judicial review, despite errors made within jurisdiction or other doubtful decisions in the court below.

3 In the County Court, XY[3] claimed that her husband OP had committed numerous instances of family violence during their relationship. This ranged from physical violence and unwanted sex to psychological manipulation and humiliation. While OP denied these claims, and made his own against XY, he ultimately consented (without admissions) to a family violence intervention order ("FVIO"). On the factual findings made by the judge, OP's behaviour was shameful and destructive. Equally striking, however, was the length of the FVIO fixed by her Honour, for it was increased from a two-year term to one of 18 years' duration. Not surprisingly, that decision is a major reason why OP seeks judicial review. There are others too.

4 The matter commenced in the Magistrates' Court in July 2015. In applications brought respectively by police officers, OP and XY each sought an FVIO against the other. In 2016, after hearing evidence over four sitting days and reserving her decisions, the magistrate (who is of vast experience and expertise in this area of the law) granted both applications by making mutual final FVIOs. Each order was of two years' duration, expiring on 13 July 2018.

5 Dissatisfied, OP appealed to the County Court,[4] whereas XY let it be. History tells, however, that OP also might have left well enough alone, because, as we have seen, he ended up converting a respectable draw into a spectacular loss. That result unfolded in this way.

6 Through no fault of either party, but for reasons I shall explain later, the hearing of the appeal was not commenced until February 2018. On the second day of the hearing, after XY had completed her evidence, and in the midst of cross-examination of OP, which was nearing its completion, XY handed her counsel a statement from OP's first wife EF. The document detailed a catalogue of family violence OP had allegedly perpetrated on EF during their relationship. Incredibly, the statement had been in XY's possession since August 2015 - well before the Magistrates' Court hearing - but she saw fit to reveal it only at this extraordinarily late stage. Despite an objection by counsel for OP, the matter was adjourned for a week so that counsel could consider the statement and take instructions (but confined only to the issues raised by the statement, since OP was under cross-examination) with a view to interposing EF's evidence.

7 Upon the return, over OP's further objection, the judge allowed XY to split her case by calling EF to give viva voce evidence, which she did. Prior to that, XY was also recalled briefly. OP's case then resumed, first by interposing a witness GH, who had come down from Queensland especially. Counsel then recalled OP. Curiously, OP's evidence recommenced by way of cross-examination instead of examination-in-chief in response to EF's evidence (and XY's further evidence). The matter was then adjourned for another month, with OP's cross-examination still incomplete.

8 Whether the next turn of events resulted from a perception that EF's evidence tipped the balance against OP or from his stated concern that he was not getting a fair hearing, I cannot say. Either way, in the interim, OP was moved to give notice of an application to abandon his appeal instead of resuming his own case. The judge, however, refused that application. Among her Honour's reasons for doing so was that XY had signalled from the outset of the appeal that, if successful, she would seek a longer FVIO. Another was said to be "the great waste of time and resources" in allowing abandonment of the appeal, for otherwise XY would have to go back to the Magistrates' Court to seek to extend the FVIO.

9 Soon afterwards, OP's counsel advised the judge that his client would consent to an FVIO (without admissions), which would leave only its duration to be determined. XY's counsel then swooped, and submitted - exceedingly ambitiously, I thought, and in a rather inflammatory manner - that the order should be of indefinite duration, or at least should last until XY's child turned 18, which was about 16 years away. In what appeared to be an afterthought, it was also submitted that the child, who was in utero towards the very end of the couple's relationship and with whom OP had never had any contact, should be added to the order. Reeling at this point, OP did not oppose the proposed addition of the child, although his counsel submitted that the judge may not have the power to do so. Counsel also challenged XY's submissions concerning the duration of the order. His principal submission was that, as OP had had no contact with XY since the end of the relationship (nor any at all with the child, ever), a much shorter order would be appropriate.

10 As I have indicated, the judge increased the length of the FVIO by a staggering 16 years. Her Honour also added XY's child to the order - on the extremely doubtful basis that she had been subjected to family violence in utero.

11 OP now applies to this Court for judicial review of the judge's decisions and related orders.[5] He is unrepresented. While, at one point during the hearing, OP appeared to be complaining only about the length of the FVIO, as the case developed, I understood him to seek (albeit not in so many words) relief in the nature of certiorari quashing the whole of the FVIO. Alternatively, he attacks the judge's decision to refuse to allow him to abandon his appeal. In the further alternative, he seeks orders quashing the decision as to the duration of the FVIO and, despite his lack of opposition below, as to its inclusion of the child. While his originating motion does not say so, the gist of OP's argument suggests that, to the extent that may be necessary, he seeks orders in the nature of mandamus remitting the matter to the County Court to be dealt with according to law.

12 In substance, OP argued that he felt he had no choice but to consent to the order because of actual or apprehended bias displayed by the judge when making rulings. His complaints in respect of the judge's refusal to allow him to abandon the appeal include not only bias and apprehended bias, but also failure to consider relevant matters, procedural unfairness, inadequate reasons, Wednesbury unreasonableness and illogicality. As to the duration of the FVIO, he relies on similar grounds, as well as a failure properly to apply the Briginshaw test. He also seeks to rely on fresh evidence, of two different types, to set aside the order or challenge its duration. There is fresh evidence that the judge caused the release of transcript of the appeal to OP's business rival without any warning about restrictions on publication. This behaviour, OP submits, demonstrates actual or apprehended bias. Other items of fresh evidence, OP submits, show perjury (and therefore fraud) by EF in her evidence on the appeal. Finally, OP submits that, despite his lack of opposition in the court below, the judge exceeded her jurisdiction by including the child in the order.

13 Ms Wong, who appears for XY in this Court (but did not appear below), submits that OP's grounds for relief should be rejected. In her submission, those grounds are misconceived, effectively invite merits review or are not established. While Ms Wong concedes that there may be error in the inclusion of the child in the FVIO, she submits that any such error is within jurisdiction. She also submits that the fresh evidence is not admissible or does not establish the fraud required to set aside any of the judge's orders. Accordingly, in her submission, the application must fail.

14 While it will be of no consolation to OP, as indicated earlier, if the application in this Court were in the nature of a rehearing based on the goings-on and evidence given in the court below, I would have allowed the appeal in a heartbeat. This is because, in my opinion, the evidence of EF was produced at such a late stage - well into OP's cross-examination, no less - that it was grossly unfair to allow XY to split her case and, later, to refuse him leave to abandon his appeal. The "warning" by XY's counsel at the outset of the appeal (of the intention to seek a longer order) did not, in my view, justify the splitting of XY's case with the surprise witness EF after OP had gone into evidence to answer that case, particularly in circumstances where XY had been in possession of EF's statement as early as prior to the hearing in the Magistrates' Court. If XY wanted a longer order, she could have brought her own fresh application in the Magistrates' Court to extend the FVIO.[6] Moreover, simply allowing OP time to consider EF's statement (and in a confined way) was insufficient when he had already committed himself to an approach to the case in cross-examination of XY and in his own evidence. Finally, while he did not make the application until he heard EF's evidence (and some other additional evidence also had been given by that time, including more of his own), there was no hint that OP was attempting to abuse the court's process by seeking to abandon his appeal at that point. Had that been his intention, or the effect of his application, I could understand readily why the application might be refused. But the judge made no such finding.

15 Similarly, even if OP's consent to the order (without admissions) had to be maintained, I would have held that an FVIO of a further 16 years' duration was way too long. If allowed to do so, I would have been inclined to defer to the magistrate's judgment and confirm her Honour's order as to duration. OP's evidence was that he wanted nothing to do with XY. Even if XY and EF's accounts of family violence during their relationships with OP were accepted holus-bolus, there still seemed to be no compelling reason to decline to act on OP's evidence, and other evidence, as to his behaviour and intentions thereafter. As will be seen, the only contact between OP and XY since their separation was via two emails generated automatically, and without his knowledge, by LinkedIn. The only reason for potential contact between them in the future would be through family law or child support proceedings. Those matters could be dealt with at arm's length, via solicitors or intermediaries. EF conceded that there had been no contact by OP after their separation from 2015. Even allowing fully for XY's concerns, I can see no need for anything even approaching half the length of the order imposed by the judge.

16 Finally, for similar reasons, I think there was no need to include the child in the order. OP had never even seen the child and did not want to see her. While his stance, in one sense, may be regarded as callous, or even irresponsible, it meant that it was unlikely that he presented any risk to her. Further, any potential contact incidental to family law or paternity proceedings could be avoided by implementing the measures already mentioned.

17 The difficulty for OP, however, is that this application is not an appeal of the kind in which I am entitled or required to substitute my views on the evidence below for those of the County Court judge. Instead, this Court's jurisdiction on an application for judicial review is merely supervisory, not appellate, and is strictly confined in consequence. In exercising this jurisdiction, I am not to assess the merits of the decision, but must consider only whether the court below exceeded its jurisdiction and whether it observed the law in reaching the relevant decisions.[7] Perhaps counter-intuitively, as I have already intimated, even if the judge below erred, but did so within jurisdiction, still there would be no relief by way of judicial review.

18 In my opinion, while aspects of the judge's decision are very close to being afflicted with Wednesbury unreasonableness, illogicality or irrationality, in the end, those high hurdles for relief are not cleared. Nor am I satisfied that OP's claims of actual or apprehended bias are established, whether examined with or without the fresh evidence. Instead, I am persuaded by Ms Wong that the asserted errors (except perhaps one) are not established or are otherwise within jurisdiction. While it is, I think, plain that the judge exceeded her jurisdiction by including the child in the order by reliance on a power that was not available on the evidence, that order is supported by another power which turns upon OP's lack of opposition, and the consent XY implicitly gave, at the hearing. Finally, although the fresh evidence may give rise to concern about EF's credibility, I am not satisfied that it compels the setting aside of any aspect of the FVIO on the basis of fraud or the like.

19 Accordingly, I would dismiss the application for judicial review.

20 Before turning to my more detailed reasons for that decision, however, given that OP is unrepresented, I think I should mention that he nevertheless potentially does have an alternative remedy. He may apply for revocation or variation of the FVIO.[8] A variation, for example, could include a reduction in the duration of the order. While the fresh evidence that OP put before this Court has not been sufficient to cause his application for judicial review to succeed, it seems plain enough that at least some aspects of that evidence, together with a continued absence of contact with XY or her child (if indeed that is still the state of affairs), would provide more than a sufficient basis to grant leave to make such an application.[9]

21 One more thing. These reasons are very long. Perhaps inordinately so. But I make only a limited apology for that. Apart from my tendency to prolixity and the issues my questions provoked in the running, the length of this judgment is a function mostly of the fact that OP was unrepresented. Judicial review in cases like this can be difficult at the best of times, but the issues and the arguments raised almost invariably blow out considerably when one party is without counsel. In order to do OP's many and varied points justice - however tenuous many of them they may be - plenty of ink had to be spilt. Ms Wong, I should say, sought to group and characterise OP's arguments in very helpful ways. She also addressed them astutely, concisely and fairly. It is just a pity that OP was not represented in this Court as well. Had that occurred, I think it is likely that far more targeted submissions would have been made on his behalf and fewer issues would have required resolution without in any way compromising the effective presentation of his case or the justice of the case.

22 I turn now to the detail of this application, commencing with a brief overview of the background to the two major relationships.

23 OP and EF met over the internet in 1999. Both were aged about 17 years. They were married in July 2000. Both converted to Islam from about 2002. Their relationship produced five daughters. Ultimately, in 2012, the marriage ended. The children remained in the care of OP, with EF having infrequent contact.

24 XY, a Pakistani also of the Muslim faith, did not want an arranged marriage. Instead, she went searching for a partner on a "marriage website", where she met OP in about mid-2012. In 2013, when XY was aged 27 and OP was 31, the couple married in Pakistan. Early in the relationship, OP would travel between Australia and Pakistan to see XY, including, on one occasion, with his five children. At the beginning of 2014, XY came to Australia on a tourist visa. She returned to Pakistan in August that year and then came back to Australia in December on a spousal visa. Their relationship broke down, however, with XY leaving OP for good early in July 2015. A few weeks prior, XY had discovered that she was pregnant. Her daughter was born in late-February 2016.

25 On 4 and 14 July 2015, two police officers each respectively filed with the Magistrates' Court an application for an FVIO pursuant to Division 1 of Part 4 of the Family Violence Protection Act 2008 (Vic) ("the FVPA").[10] The first was an application against XY for the protection of OP. The second was an application against OP for the protection of XY.

26 On 18 August 2015, an interim FVIO was made against OP for the protection of XY. The same day, an interim FVIO was made against XY for the protection of OP and his five daughters.

27 After a number of mentions commencing on 17 July 2015, both matters ultimately were set down for a joint contested hearing for final FVIOs commencing on 14 April 2016.

28 In the written application filed on her behalf, XY alleged that, over the course of the marriage, OP emotionally controlled her, isolated her (from others), and continually abused her - for example, by writing on a whiteboard numerous ways in which she was a bad wife and stepmother. She claimed that OP made her sleep on the floor, limited her food intake and gave her no money. XY said that she felt pressured to have sex and that she could not say no as OP would say that she was a bad wife. She said she made numerous attempts to leave the relationship, but that OP would contact her and manipulate her to return. XY alleged that OP physically assaulted her on several occasions. He also ejected her from the home numerous times, including without shoes. He abused her for being selfish and using money on herself instead of the children.

29 The written application filed on behalf of OP is not before the Court. However, XY's response thereto is. In that response, XY said that, in his application, OP made falsified and exaggerated claims of being assaulted by her. He also claimed that he wanted her to leave and yet continued to contact her, begging her to return.

30 Prior to the contested hearing, both police officers withdrew their involvement. OP and XY thereafter each obtained legal representation for the hearing.

31 The contested hearing, at which both parties and several others gave evidence, was heard on 14 and 15 April, 17 May and 7 June 2016. The evidence given at that hearing is not before this Court, other than in fleeting references back to it in the transcript of the County Court appeal hearing.

32 After reserving her decision for over a month, on 14 July 2016, the magistrate made mutual final FVIOs against OP and XY for two years, expiring on 13 July 2018.[11]

33 On 4 August 2016, OP filed a notice of appeal against the FVIO made against him.[12]

Appeal allowed and FVIO set aside - No appearance by XY

35 After mentions in the County Court on 9 and 20 September and 6 October 2016, at none of which XY appeared, the appeal was set down for hearing on 9 November 2016. On that date, it seems that OP's appeal was allowed by a judge because of the failure by XY to appear and defend the matter. As a result, the FVIO against OP was set aside.[13]

36 Subsequently, when she went to report two alleged (albeit minor) breaches of the FVIO, XY discovered that the order had been set aside.

37 It seems that, while the Registrar of the relevant court served OP's notice of appeal on the police officer who was the original applicant for XY's order, the Registrar did not serve the notice on XY, as was required by s 116(3)(a) of the FVPA.

38 On 22 May 2017, XY's solicitor emailed the judge's chambers seeking a rehearing of the appeal. But a Registry officer advised that the application must be refused because, it was said, the County Court could not review its own decision.

39 Between 25 and 27 October 2017, XY's solicitor filed an "application for rehearing" of the appeal, with a supporting affidavit. The solicitor was told that that was not the appropriate application and that, instead, it would be necessary to file an "application to set aside an order striking out an appeal for a failure to appear", which she duly did.

40 On 2 November 2017, a second judge granted XY's application, set aside the first judge's orders of 9 November 2016, reinstated the FVIO pending the outcome of the reinstated appeal, and listed that appeal for hearing on 12 and 13 February 2018.

Appeal hearing from which judicial review is sought

41 OP's (reinstated) appeal was heard by a third judge on 12, 13, 21 and 22 February and 22 March 2018.

42 The judge determined that, as XY was seeking to maintain the order, she should present her case first. Accordingly, XY, who was the only witness to be called in her case, gave evidence-in-chief, was cross-examined and re-examined. Her counsel then announced the close of XY's case.

43 In summary, XY made allegations similar to those she had made in the written application filed by the police officer in the Magistrates' Court, but she also added further matters. Her evidence included the following.

44 In her evidence-in-chief, XY confirmed that she and OP met in about mid-2012 on a marriage website. She was from a very wealthy family. Her father worked as an engineer in Saudi Arabia. XY said that, within three months, she and OP were formally engaged and then married in five or six months. Both were of the Muslim faith. They first met in person when they married. She was aged 27. OP visited XY in Pakistan - first, by himself, and, later, also with his children.

45 XY said that, after they were married, OP would often be moody and fly into fits of rage. When in Pakistan on a visit with his children, OP was so angry that XY took him aside into another room. Once there, in a burst of anger, he threw XY across the room.

46 XY came to Australia on a tourist visa for the period from May to August 2014, and then returned to Pakistan. Despite being treated in the ways detailed below, she returned to Australia in December 2014, on a spousal visa. XY is now a permanent resident.

47 When in Australia, XY said that she was expected, by OP, constantly to do the house work, to the point of exhaustion; to sleep on a yoga mat rather than in a bed; to do OP "excessive sexual favours"; and to endure fits of rage by OP, where he would physically assault her by throwing her around the room. OP repeatedly yelled at her, took her telephones from her and would not allow her to keep a journal. XY said that OP slapped her face and insisted that she have sex with him when she was exhausted and did not want to do so, including when she believed she was pregnant.

48 On occasions, XY left OP (such as from August to December 2014), but he would apologise to her and her parents (who were in the Middle East) and tell her he loved her. He would also donate money to charities in an attempt to show her parents that he was a reformed man. XY alleged that OP said that, if she left him, he would stalk her and rape her to make sure she was pregnant to him, which, in Islam, would prevent her from getting a divorce.

49 XY alleged that OP fantasised about killing his ex-wife EF, and that he tried to convince XY to be his accomplice. He told her he wanted to be a mercenary and that he was able, with stealth, to slit people's throats. He spoke of Arthur Freeman, the man who threw his own child off the West Gate Bridge, and how it was not his fault but that of an evil woman who pushed him too far.

50 As an act of discipline, OP once left XY in the street in Healesville and drove away. On another occasion, he wrote on a whiteboard a list of 63 reasons why she was a failure as a wife. XY wrote down these things in her cookbook and produced the relevant pages thereof at the hearing.

51 When XY was pregnant, OP told her that he was possessed by demons that had been telling him to hurt her and to commit suicide. He asked her to help him engage in ruqya, which is an Islamic form of exorcism.

52 Within a few weeks of discovering that she was pregnant, XY left OP permanently, which was early in July 2015. She went to a women's refuge initially.

53 XY also produced several emails from OP to XY's parents sent in July 2015, in which he explained that he was engaging in ruqya. He also asserted that XY had been slandering him. He invited her parents to Australia, so that together they could arrange things - including a divorce, XY's return to Pakistan, maintenance for the baby, and payment (to her family) of a debt in instalments - and so that they could hear "the truth". OP also sent emails at this time proclaiming his love for XY.

54 XY said that OP breached the existing FVIO by sending a LinkedIn message. She conceded, however, that he received diversion for that breach.

55 XY accepted that OP had never met their child and had never made any attempt to contact her.

56 XY said that, while she and OP were divorced in Islam, they remained legally married in Australia.

57 XY also said that OP had numerous guns and that he would go hunting. On one occasion, he returned from a hunting trip covered in blood from killing a deer. XY became sick at the thought, and shied away from OP, which made him angry. He said she was disrespectful of his attempts to teach his family about survival skills. In the back yard, he showed his children how to slaughter a chicken, which appeared to frighten them. XY alleged that he would try to run over animals when driving his car. She also alleged that he was harsh in his treatment of the family dog.

58 XY said she would not feel safe if the FVIO lapsed now. She said that OP previously told her that he would find her and assault her again.

59 In cross-examination, XY accepted that OP also slept on the floor frequently (as they did not have a bed in the main bedroom). She also said, however, that on occasions he would sleep in one of the children's beds (which meant that the child would have to sleep on the floor).

60 XY accepted that OP bought her a ticket to fly home to Pakistan in 2015.

61 While she claimed that OP did not allow her to get a driving licence, XY accepted that she had an international licence.

62 In re-examination, XY said that, when she spoke to police after she left in July 2015, she did not tell them about sexual assault because she was under the impression that this was not rape. (As we have seen, however, she did complain of feeling pressured to have sex.)

63 XY said that OP spoke to her about the possibility of joining ISIS and fighting overseas.

64 XY also said she had not applied for child support because she was concerned that to do so would reveal her contacts, but that she would make such an application if she felt safe. She also said that she does not want OP's money by way of spousal maintenance or a property settlement.

65 Counsel then announced that that was the case for XY.

66 At that point, there was not the slightest hint that XY might seek to split her case and call EF at a later stage.

67 OP then gave his evidence-in-chief and was cross-examined (in part). In short, he denied XY's allegations of family violence and of any intention to have contact with her or her child in the future.

68 OP has five daughters, aged 17 down to seven years. Their mother EF moved to Queensland. Early in 2015 was the last time she attempted any contact with them.

69 OP studied migration law at the Australian National University in order to assist XY in the immigration process. XY first obtained a tourist visa to come to Australia. Next, she obtained a spousal (or partner) visa. That required proof that they were in a relationship, which included his trips to Pakistan.

70 OP conceded that there were bedwetting issues with the children, but only when XY was there. The problem resolved when she left.

71 As for XY's allegations about ISIS, OP said he was interviewed by counter-terrorism police, but never told XY that he was heading overseas to fight for ISIS. He thinks ISIS do a lot of terrible things. After the interview, police told him they had closed the investigation. He has not heard anything from them since.

72 OP said he sleeps on a rubber mat on the floor, instead of a bed, of which XY was aware when she met him.

73 OP said he has no interest in having a relationship or contact with XY or the child, as that arrangement would be in the best interests of both that child and his own children. He did not want the child (whom he doubted was his) to be exposed to any issues that he and XY had between them.

74 He explained that he had worked in various occupations, including as an investigator for the Department of Health, with the Australian Federal Police ("AFP"), as a psychiatric nurse, as a migration agent and, more recently, in his own business.

75 When he and XY were together, they shared the household duties.

76 He consulted a doctor over stress he suffered during his relationship with XY.

77 OP said that XY was not deprived of money. Being from a wealthy family, XY had her own cash when she came to Australia. She also had a credit card and a phone.

78 OP denied either perpetrating physical violence against XY or throwing her around the room.

79 On the contrary, OP alleged that there were times when he had to flee the home with his children because of XY's assaults on him and her acts of property damage. On an occasion in January 2015, the police were called. OP did not press charges. Eventually, XY was involved in a round-table mediation in which she apologised for exposing the children to violence. The couple, however, continued to have issues between them, and XY moved out in May but returned in June 2015.

80 Also, on 3 July 2015, OP left the home with the children because XY was being violent and exposing the children to such violence. OP went to the police the next day. (Hence the application for an FVIO made by a police officer on his behalf.) He and the children returned to the home seven or eight days later.

81 OP denied pressuring XY to have sex. All sex was mutually consensual.

82 XY had either a Pakistani driving licence or an international one. Either way, she could drive here, because he took her to VicRoads to check, and they said she was permitted to drive on that licence.

83 While he does not have any now, OP did have firearms when he was with XY, but they were all registered. He learned about guns when with the AFP and developed an interest in them. While he went hunting, he denied coming home with blood on him.

84 He denied ever saying to XY that, if she left him, he would stalk her and rape her or make sure she was pregnant.

85 He denied XY's allegations about him fantasising about the use of guns, such as taking a pot-shot at a neighbour, or about him talking of walking up to people and slitting their throats, all of which were completely new allegations. The Arthur Freeman allegations, he said, were also new and he denied them.

86 OP explained that he had been in a new relationship with a woman for six months. He identified his new partner in court. She has her own three children, is Australian and has no religion. They are currently talking about moving in together.

87 He denied writing the things XY alleged he wrote on the whiteboard. The whiteboard was used mainly as a "to do" list for the children.

88 OP accepted that he sharpened knives in the kitchen, but not for any sinister purpose.

89 OP alleged that he was assaulted by members of the Pakistani Muslim community (at the behest of XY, he believes). At around that time, and after the separation, he used ruqya to help calm himself down. He denied, however, that XY would be asked to rub potions on him as part of the process of ruqya.

90 As for the breach of the FVIO, he explained that he started a new business after XY left, in respect of which he created a host of new social media accounts, including with LinkedIn. He believes that, when he uploaded photos and the like, LinkedIn automatically sent an email to XY as well. Police recommended diversion, which was quick and easy, so he accepted it. He later learned that LinkedIn has a history of being sued for sending emails automatically to anyone a user may have emailed previously.

91 He otherwise has no prior appearances in court or charges by police.

92 Since 14 July 2015, OP has sought to block XY from his Skype accounts, stopped sending her emails and blocked her number on his phone.

93 If XY wants a divorce, he is happy to oblige. He has a lawyer friend who will accept service so that there is no need for any contact with XY.

95 He bought XY tickets for flights home to Pakistan in January and March or May 2015, but she did not go.

96 After the FVIO against him was set aside on 9 November 2016, OP carried on his life as usual. His original guns were not returned but he bought some others. Then, when the appeal and the FVIO were reinstated on 2 November 2017, he sold the guns he had bought.

97 OP reiterated that he had no contact with XY and has no interest in her whatsoever. He has moved on with his life, which includes his new relationship, looking after his five children and pursuing his business.

98 The ramifications against him of having an FVIO are his inability to have guns and thereby the elimination of his ability to go hunting; the potential adverse impact on his business and personal reputation; and his inability to work in security, which he does part-time, which in turn affects him financially. He is not sure whether it might also impact on his "Working with Children" check, which in turn could affect his business, which includes working with children.

99 He made a promise to the court that he does not want to communicate with, or have anything to do with, either XY or her child.

100 In cross-examination, he repeated that he doubted the child was his. When asked why, he said it is because XY lived away from him from mid-May until late-June 2015 and they had last had sexual intercourse in early-May. (The child was born in late-February 2016.) Further, when XY returned, she had an ultrasound, but they were unable to see the foetus which, they were told, means it is less than four or five weeks old. (In other words, his understanding of the timeline suggests that he could not be - or at least might not be - the father.)

101 Equally, however, he said that, if it turns out that the child is his, he will pay child support. He added that he could do so without any contact with either the child or XY, neither of whom he wants to contact in any event. The child could contact him when she was older, if she wanted a relationship with him. In the meantime, he had his five daughters (with EF) to care for and his new partner's three daughters as well.

EF's statement disclosed at the eleventh hour

102 It was during that cross-examination, immediately after lunch on the second day of the hearing (i.e. on 13 February 2018), that XY first disclosed the statement of EF to her counsel. It was conceded that she had had the statement in her possession since August 2015, which was well before the hearing in the Magistrates' Court.[14]

103 The judge said that the unfairness to OP occasioned by this turn of events could be "assuaged" by granting an adjournment to allow time for his counsel to consider the statement and to have leave to take instructions from OP on the issues raised therein, despite his being under cross-examination.

104 Counsel for OP opposed that course, as well as the notion that XY might be able to split her case.

105 But the judge adjourned the matter for about a week, to 21 February 2018, to allow the steps she had outlined to be taken.

106 Upon the return of the matter, counsel maintained his objection to XY's being allowed to split her case by calling EF at this late stage. The judge nevertheless allowed XY to take that course. Her Honour's reasons for ruling in that way were as follows:[15]

[1] In my view, the probative value of this evidence [i.e. the statement of EF] outweighs its prejudicial value. Whilst I accept not all of the statement is necessarily relevant in terms of the allegations of [XY] in so far as the character and behaviour of [OP] is concerned, it does have significant probative value in my view. And much of what the Court must inform itself of in relation to an intervention order is, as you said [counsel for OP], the character or personality of persons involved in the [FVPA] proceedings.

[2] [XY] has described ongoing behaviour of a particular type, specifically denied by [OP]. This material, in my view, contains descriptions which bear a particular similarity in so far as that relationship was concerned. And I take the point that [counsel for XY] has made that [XY] seeks continuation of the imposition of the intervention order, in order that she herself can carry out proceedings in relation to the child she has with the accused man.[16]

[3] So these are all matters of relevance for the Court and, in my view, the evidence is admissible.

107 The judge then considered the suggestion by counsel for XY that EF's statement could suffice as her evidence-in-chief. Counsel for OP submitted that EF should give that evidence viva voce. The judge agreed. Her Honour also said that, when making her decision a moment earlier, she failed to address the submission by counsel for OP about procedural fairness. She then said this:

[4] With respect to [counsel for OP], I do not accept the submission in that respect either. Had matters proceeded on an ordinary footing, he would not necessarily have been entitled to receive the statement of [EF].

[5] In my view, he has been given a week to consider the material. He has been given leave to conference with his client, albeit that his client is mid cross-examination and I do not regard the limitation I put on that as being instructions to be sought in so far as [EF's] potential evidence is concerned as being unduly restrictive, and I do not find that the way this matter is to proceed provides a procedural unfairness towards [OP].

108 XY was then recalled so that she may be cross-examined about further matters, including the circumstances in which she came to have the statement of EF and some other matters counsel had omitted to raise previously.

109 In that further cross-examination, XY said that she received EF's statement "very soon after" (i.e. "one or two months probably after") her (XY's) separation from OP, after July 2015. She found EF's telephone number on one of OP's documents, copies of which she took with her when she left him.

110 XY agreed that EF had mentioned Arthur Freeman in her statement but that she (XY) might not have mentioned that topic in the Magistrates' Court.

111 XY was not sure whether she had mentioned, or she admitted that she had not mentioned, the following things in the Magistrates' Court: being forced to wear a niqab; ISIS (but then said she had); and "scoping" (but then she said she did mention stalking).

112 XY denied that she had recently re-read EF's statement.

113 XY conceded that, in an extract of her journal dated 20 January 2015, she recorded a description of "pleasurable sex" (with OP, the context implied), but added that she wrote such things in order that he would be happy with her.

114 In further re-examination, XY said that she received EF's statement after she had made her statement to police.

115 XY denied that her evidence included allegations EF had made against OP.

116 In yet further cross-examination, XY admitted that she had read EF's statement recently, despite having denied this in cross-examination only minutes earlier.

117 EF was the next witness. In summary, she said the following in her evidence-in-chief.

118 She met OP over the internet in 1998 or 1999, when she was 17. (OP was born in 1982 and was therefore about the same age as EF.) They married in July 2000 and had five children (in 2000, 2003, 2005, 2007 and 2011).

119 The violence in their relationship started when EF was pregnant with their first child. OP was verbally abusive and would throw things.

120 When their first child was a baby, OP became jealous that a friend had been playing "footsies" under the table with EF, which caused him to yell, slam doors and punch a hole in the wall.

121 EF said that OP was violent (either verbally or physically) almost every day. She then qualified that by saying that she was dealing with verbal things at least daily but "physical things were a bit less often ... anywhere from ... twice a week to a few times a year". The physical acts were pushing, elbowing, holding her wrists or neck, pushing her down. She was bruised and sore.

122 EF did not report any of this to police. Her family were police officers and she did not want them to know.

123 At one point, EF left OP with her eldest child. OP told EF that he would like to take the child away from her one day so that she knew what it felt like to miss a child.

124 OP converted to Islam in 2002. From that point, OP did not allow EF to see her family; they could have only halal food; and he did not allow music, photographs or teddy bears. OP also required that EF dress in a way that covered all but her eyes. EF was consulted about this but did not really like it. EF complied because OP thought that it was the correct thing to do. She never disobeyed him as she was too scared to do so.

125 OP told EF that he thought she may be unhappy because she was possessed by evil spirits. They engaged in ruqyah (by reading from the Koran) as a remedy.

126 Things improved in 2004, when they moved away from the Islamic community and OP "loosened up" on compliance with rules. For example, EF wore more "normal" clothes and she had contact with her family again. But he was still angry and violent in the same ways, including pushing, restraining and yelling, but there was no bruising.

127 In 2012, OP bought EF a flight ticket to see her cousin in Queensland in order that she might be happier and a better wife. But he only bought her a return ticket when she admitted that she had been disobedient and that she would be happier.

128 EF said that OP threatened her that, if she ever left him, he would kill her and make it look like an accident.

129 After she returned from Queensland, EF went to stay with her sister. OP did not allow her to take the children.

130 EF claimed that, throughout their marriage, she had sex with OP without consent. She admitted that this was the first time she had told anyone about this.

131 In their last year together, the physical abuse was more frequent. For example, he would bump into her as he walked past, push her into the wall, and push her onto the bed and not let her up. Once, he grabbed her by the throat against the wall. He was also verbally abusive.

132 EF did not tell anyone about this behaviour. She thought no one would believe her, so she just did not bother.

133 EF said that OP thinks western women lack morals and values and that they try to oppress men. He also told the children that among those who were going to Hell were Christians and those who drank alcohol.

134 As for the man who threw his child off the West Gate Bridge, OP said that it was clearly the mother's fault for pushing the father so far.

135 If EF cried following an argument, OP would laugh at her and have the children do the same. If he said she was being a cow, he would get the children to "moo" at her as they walked past.

136 OP did not want the children to spend any time with EF's family, but they did, at times. He would punish them if they chose to spend time with OP's mother.

137 EF finally left the family home in June 2012. She had intended to have the children with her eventually, but she barely saw them. OP let her see them only a few times. She had anxiety and depression and was very upset.

138 EF and OP discussed a parenting plan, which he drew up, for the purposes of their divorce. EF signed it without reading it. She understood that the arrangement could be changed at any time.

139 Thereafter, she saw the children in September and December that year but not as often as she wished. They were unavailable (because they had things on), or OP just would not allow it. In the September visit, she noticed that some of the children were wearing head scarves, whereas they had not done so previously. In 2014, the eldest started wearing a niqab. EF had previously told OP that she did not want their hair or faces covered while they were children. Conversation with her children was more difficult, with just yes or no answers at times, without any further explanation.

140 The parenting plan arrangements were reflected in consent orders at a later time, although EF claims that that occurred without her knowledge, even though she had legal representation. Further, OP became the full-time carer of the children, he had full parental responsibility and EF would see them on a casual basis. Mediation occurred at one point, but OP would not budge on any conditions.

141 OP took out intervention orders against EF in 2013 and 2014. She was advised to consent to the first order. There may have been contact with the children after it was made, but OP then took out the second order, claiming she had threatened to slit his throat. EF admitted that she got angry and swore and yelled at one of the children in a phone call. Incongruously, EF said that she contested the second order and later said she consented to it in the face of evidence that she could not counter. She said her lawyer told her that her children did not want to see her and that she should just move away to Queensland (where her family were) and start a new life.

142 EF is now remarried and has three children (under five) with her new husband.

143 EF asked OP to see the children again in August 2017, but he did not respond to her email.

144 EF met XY in 2015. They had phone conversations thereafter. She thought she sent her statement to XY in 2014. In any event, it was written before she met XY.

145 In cross-examination, EF agreed that her intelligence was rated at Mensa level. Her mother and her aunt were both police officers.

146 After leaving for Queensland in 2015, her email of August 2017 was the first EF had sent since she left Victoria.

147 EF accepted that she could have fought the intervention orders but consented to them. While she acted on the advice of a lawyer, she accepted that the decisions were her responsibility, as was her decision to go to Queensland.

148 EF accepted that she was able to put her views to OP regarding the children's wearing of head scarves.

149 EF admitted signing numerous documents regarding the divorce, the parenting plan, care of the children, assets and consent orders which bore several dates, but she remembered signing them all only at the one time. Either way, she maintained that she did not read these documents.

150 EF conceded that numerous text messages and emails she was shown indicated OP acceding to her requests to talk to the children.

151 Despite EF's assertion that she was not drinking heavily after her separation from OP, there were Facebook posts by her during that period that suggested that she was doing just that.

152 EF agreed that she dates their separation from 3 March 2012.

153 EF denied that it was she who asked for a holiday to Queensland but OP who insisted that she go.

154 EF denied that the family law and other documents she signed reflected the choices she made. On the contrary, said EF, she wished to keep her children.

155 EF accepted several other things in cross-examination, including the following:

(b) OP did not stop her and the children going to dinner with her family every Wednesday night. OP, having met EF's sister by chance on a bus, gave EF her sister's phone number to enable her to make contact. From 2003 to 2004, EF would commonly walk to her family's home, which was nearby their home at the time.

(c) From January to June 2006, OP was in Geelong, whereas EF was in Coburg with one or two of the children.

(d) From September 2010 to January 2011, OP was in Canberra and EF remained in Melbourne with the children, supported by her cousin.

(e) From December 2011 to June 2012, OP was working in Shepparton, during which time he would return to Melbourne to visit the children and she would take them to Shepparton to visit him.

156 EF agreed that she and OP argued over whether they should have a TV, but that she bought a new TV shortly before the separation. EF said that the children told her that the TV broke after she left, so they had none then.

157 EF agreed that she had heard of psychosis, but disagreed that OP had said, when discussing Arthur Freeman, that one of the psychiatrists had said that he was psychotic at the time of the incident. EF did accept, however, that, at the end of the conversation, he said, "Well, let's agree to disagree."

158 EF agreed that, at the start of their relationship, she was taking an antipsychotic medication (Olanzapine) but that it was not taken for that purpose. EF also agreed she ceased taking the medication at the time of her first pregnancy.

159 EF agreed that she has had very little contact with OP since April 2015; that he has not initiated any such contact; and instead it has been up to her to initiate it. OP has left her completely alone.

160 In re-examination, EF said that OP was polite and professional in emails but very abrupt, bossy and controlling when communicating in person.

161 EF said that, as for heading to Queensland pursuant to his request, she felt that, if she did everything that he wanted her to do, and if she could show him that she did not want to take his children away from him, they would be able to work things out peacefully and mutually. She was afraid that, if she took the children away, he would come after her and she did not want him to harm the children.

162 EF said that OP had all the power in their relationship. She required OP's permission for most things she did.

163 Next, OP's counsel interposed GH as a witness in his case, as he had come down from Queensland especially for that purpose.

164 In evidence-in-chief, GH said he had known OP since 2012. He had had contact with XY online. In their first conversation, they exchanged pleasantries. In their second, they spoke about GH's ex-wife, who left him quite suddenly. XY asked questions about whether his ex-wife got her visa and whether she became a permanent resident. When he spoke to OP, he was very subdued.

165 In May 2015, OP called him and asked him to listen. For the next ten to fifteen minutes, he could hear XY screaming, insulting OP and his children, calling him names, saying she did not love his children, that she hated him and that he was no good. All OP did was to plead with her not to say these things in front of the children. XY said that, if he did not tell the immigration authorities that she had left, she would not make any further allegations against him.

166 GH received photographs of scratches on OP's body, but he did not have them with him.

167 In cross-examination, GH admitted that he had a prior conviction for possession of two videos of child pornography (involving underage girls). His wife made a statement saying she downloaded them accidentally, but he was found guilty. He was fined $3,000. He also admitted a prior conviction for breaching an intervention order. It was alleged that he used "words" to his ex-wife at an access changeover.

168 GH came down from Queensland to give evidence because he saw what had happened to OP and he believed that he was a kind, gentle person.

169 GH said that he had recordings of the telephone call (in which XY was screaming and so on) but that, in the years that have passed since, he had lost them. OP gave them to him for his own protection.

170 In re-examination, GH said he brought the recordings to the hearing at the Magistrates' Court but was told that they were not needed.

171 I turn now to OP's evidence upon his being recalled. As I indicated earlier, it struck me as curious that, at this point, he was not first examined in-chief to respond to EF's evidence. Instead, OP's cross-examination resumed immediately upon his being recalled, during which he denied the substance of EF's allegations and other aspects of XY's allegations too.

172 In particular, he denied perpetrating domestic violence on EF. He reiterated that EF was willing to sign over the children to him. He denied controlling her, putting her down or being physically abusive.

173 It was put to him (unhelpfully, I thought) that, because XY had gone to police on 8 August 2015 and an email showed that EF had not sent her statement to XY until 11 August 2015, there could be no concoction between them. OP responded that he had understood the evidence to be that XY and EF had spoken to each other soon after his relationship with XY broke down. (This was correct. Counsel for OP was also correct in pointing out that EF's email of 11 August 2015 referred to her having sent a document to XY earlier.)

174 In denying that he was regularly and constantly abusive towards EF throughout their relationship, OP said he was instead very kind and caring to her, particularly since she had been diagnosed with schizophrenia from a young age. He explained how, when they were 17, EF used to become paranoid and think people were talking about her, and that he went with her to the Children's Hospital when she was diagnosed by a psychiatrist. He believed the treatment continued until 2002, when EF did not wish to continue it and they moved. He denied that he was mistaken or lying about these things. OP said that one of the reasons he became a mental health nurse was to assist EF in understanding her symptoms and her condition.

175 OP denied restricting EF's access to her family. Instead, after 2002, after they both converted to Islam, EF had a dispute with her family and she even called the police on her mother and aunt.

176 OP denied taking EF's children from her or coercing her to sign documents giving up her parental rights. He said there was provision for access, which she often did not take up, but which he facilitated when she requested it.

177 OP denied turning EF's children against her by having them read the Koran in a circle, talking of the evil their mother was.

178 OP denied smashing EF's laptop computer. It was broken accidentally when she dropped it. He had it repaired within days.

179 There was some further quite misguided and inappropriate cross-examination about OP's "admitting guilt ... in order [to] receive ... diversion" for breaching the FVIO in favour of XY on the basis that LinkedIn messages were sent to XY, which was said to be inconsistent with his assertion that they were sent inadvertently. It was even suggested directly to OP that he had "pleaded guilty" and yet said he "had a defence". While "acknowledge[ing] to the Magistrates' Court responsibility for the offence" is precondition to participation in a diversion programme, there is no plea taken in a diversion matter.[17] Nor is there any finding of guilt.[18] In any event, it is commonplace for accused persons to accept diversion in minor or trivial matters even if they have a good defence to the charge. Experience tells that considerations such as pragmatism and a lack of the resources to fight the matter are often among the reasons why diversion is taken despite the availability of a good defence.

180 OP said that he sought an FVIO against XY because she was violent to him in front of the children and to the children.

181 OP also said that XY threatened that, if he notified the immigration authorities of the breakdown of their relationship, she would cause significant distress for him and his children.

182 When shown emails written around that time - in which OP was suggesting to XY that they see a sheikh, engage in ruqyah and get back together - he said the following things. The police advised him that, if he took his children back to the home while XY was present, he was at risk of losing them because he would be exposing them to violence. He was therefore in effect homeless with his five children at that point. He had been attacked by members of the Muslim community in the street and had to defend his children. In those circumstances, he wanted to resolve their differences.

Matter adjourned part-way through OP's cross-examination

183 OP's evidence was not completed on that day. Instead, the matter was then adjourned for further hearing on 22 March 2018.

184 In the interim, on 16 March 2018, OP's counsel filed and served a notice of abandonment of appeal. On 19 March 2018, XY's solicitor advised that her client opposed that application. The same day, the judge's associate wrote to the parties advising that the judge was not willing to grant leave to OP to withdraw his appeal without submissions from both parties.

185 On 22 March 2018, the judge refused OP's application to abandon the appeal. Her Honour gave the following reasons:[19]

[1] In my view, this matter has proceeded a long way down the track. It has been clear from the outset that [XY] is seeking a longer order [ - the] submission would be made for a longer order. The application to abandon at this late stage, I do not regard as appropriate in the circumstances, all the evidence having been - the amount of evidence having been led. Both parties, having given evidence and called witnesses to date and it being clear that [XY] was also in the course of seeking to have the - having the intervention order maintained via the appeal process, was also seeking a longer order.

[2] In my view, it would be a great waste of time and resources. I am not necessarily going to call it an "abuse of process", but it would be a great waste of time and resources if the matter were not to resume and the application to abandon is denied. Thank you.

186 Counsel for OP then called upon subpoenas issued concerning some police records and those of the Department of Health and Human Services ("the DHHS"). The judge said she would consider those materials (before deciding whether to release them).

Objection to calling OP's daughter as a witness

187 Counsel for OP indicated that, after his client completed his evidence, he wished to call his eldest daughter to give evidence of the conduct that she witnessed between OP and XY. (OP's daughter was aged 17, turning 18 that year, having been born in 2000.)

188 Counsel for XY then made an ill-considered objection, relying on s 150 of the FVPA. Counsel submitted that the child must not be present during the proceeding and that, in so far as an order may be made allowing her presence (pursuant to ss 150(2)(b) and (3)), such an order should not be made.

189 I shall not repeat the arguments put in support of the objection because the judge, sensibly, did not act upon counsel's objection and instead indicated that she would allow OP's daughter to give evidence.

190 The judge then indicated that she had read the material in answer to the subpoena to the police.

191 Her Honour said that she could not see the relevance of the material, which concerned an allegation that OP was assaulted by a group of men. (As will be remembered, OP had given evidence that he was assaulted by a group of men from the Pakistani Muslim community, which he believed was done at the behest of XY.)

192 The judge then indicated that she would stand down to read the material produced under the subpoena to the DHHS.

Consent to FVIO without admissions and inclusion of child not opposed

193 Upon the judge's return, counsel indicated that OP would consent, without admissions, to an FVIO. That, counsel said, would then leave the duration of the order to her Honour.

194 At that point, counsel for XY said that she needed to take instructions.

195 Counsel also indicated that XY wished to have her daughter named on the order. She submitted that, while the child was not born or was very young at the time the matter was in the Magistrates' Court,[20] the judge had wide powers on appeal under s 119 of the FVPA and could vary the order in any way the Magistrates' Court could have done.

196 The judge then opined that the material returned on the DHHS subpoena did not have any relevance to the proceedings. That material spoke of complaints made in relation to OP's children and a conclusion by the DHHS that there were no significant concerns.

197 Counsel for OP submitted that his client considered the material to be relevant because the notifier of the unsubstantiated allegations was XY. OP had been told that XY was the notifier. (In fact, XY had given evidence that she had made such a notification.) The judge said that she considered that this point was not a matter for her.

198 In any event, said her Honour, the material raised by both subpoenas went to peripheral issues and did not have the necessary relevance, such that she declined to release those materials.

199 After the matter was stood down briefly again, counsel for XY indicated that her client had no objection to the proposed course of OP's consenting to an order, without admissions.

200 Counsel for XY submitted that, pursuant to s 77 of the FVPA, the court could, "of its own initiative", add the child to the order.

201 Counsel for OP indicated that, while his client did not oppose the child being added to the order, he was unsure as to whether the judge had the power to do so. He submitted that, because the child was born after the separation and OP had had no contact with her, the child could not have been subjected to any family violence.

202 Equally, counsel submitted that OP saw it as in the best interests of the child that he not have any relationship with her because of the poisonous relationship between XY and him. Thus, explained counsel, OP could see no future in his playing a role in the life of the child.

203 The parties then made submissions about the duration of the order. I shall commence with the principal submissions of counsel for OP, as he was required by the judge to go first in time.

204 While counsel acknowledged that, pursuant to s 97(2)(a) and (b) of the FVPA, in making a decision as to the period for which a final order is to be in force, the court must take into account that "the safety of the protected person is paramount" and "any assessment by the applicant of the level and duration of the risk from the respondent", he also emphasised the highlighted part of s 74(1):

The court may make a final 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.

205 Counsel pointed to OP's sworn evidence that he wants nothing to do with XY or her child; that he had no contact with XY from the time the FVIO was imposed in July 2016 until the present day (being 22 March 2018); and that that period included a period of nearly 12 months during which the order had been set aside (from 9 November 2016 to 2 November 2017).

206 The only qualification to that submission was the "contact" via LinkedIn, which was inadvertent and instead resulted from emails generated automatically by LinkedIn itself, not by OP. Further, while those LinkedIn requests were generated on 28 October and 2 November 2016, XY did not make a statement about the matter until March 2017 (by which I took counsel to submit that they were of no moment to her).

207 Counsel submitted that, in so far as it was suggested that there would need to be contact between XY and OP regarding child support or obtaining a formal divorce, these things could be done via lawyers, so that there would be no contact between the parties.

208 Counsel pointed to the impact of a longer order on OP. First, he would be unable to maintain his interest in having firearms, unless he made a successful application for an exemption. Second, OP was concerned that the order may impact adversely on his business, which in part involved children, as he may consequently fail a Working with Children check.

209 Counsel submitted that such orders must not be any longer than is necessary to protect a person's safety. In his submission, the foregoing matters (as well as the fact that the level of family violence alleged was not at the higher end) all pointed to a much shorter order than any longer one.

210 Counsel for XY emphasised what she submitted was OP's lack of credit; his long-term pattern of abusive behaviour (physical, sexual, psychological and economic) throughout his relationships with XY and EF; his taking of two of EF's children out of the country in breach of family law orders (which, unfortunately, was raised for the first time in submissions, not in evidence); XY's fear that OP would exact retribution on her; his "punishment" of EF by taking her children from her; his fantasies about killing EF, which behaviour was repeated with XY; his justifications for Arthur Freeman's actions; his attempts to turn XY's parents against her; his "traversing of [his] plea [to the breaches of the order based on the LinkedIn contacts]" (which, I have explained, represented a fundamental misunderstanding of diversion); and doubts about whether OP's business is still going.

211 Counsel for XY submitted that, despite OP's assertion that he wanted nothing to do with the child, he may well initiate family law proceedings at the expiry of the FVIO. And, even if he did not, XY would apply, at some stage, when she felt safe, for financial support. Either way, this would result in contact between them. XY had not applied for child support to date because her address would be disclosed to OP. There would also be paternity testing of the child and investigations into OP's income, none of which would go down well with OP, she submitted.

212 In so far as there was no contact when the order was lifted for 12 months when the first appeal was allowed, counsel submitted that OP's behaviour was not tested with any applications for child support, divorce or the like.

213 Counsel for XY submitted that, if the judge accepted the evidence of XY and EF, there would be "no way ..., without an order, that he will not continue to commit family violence in its various forms against [XY], particularly as they have a child together".

214 Counsel said that XY had difficulty sleeping, had had weekly ongoing counselling for three years, had not had a relationship since her separation from OP out of fear of his reaction, and feared that he would track her down and seek retribution because she no longer wore a niqab. Counsel emphasised that, in OP's last letter to XY (in July 2015), he said that she would always be his wife, that she would always love him and that he would never move on.

215 Counsel submitted that, given XY's views, and the fact that they must be considered, an indefinite order was required or, alternatively, that an order until XY's child turned 18 was necessary, which was a further 16 years.

216 In reply, counsel for OP pointed out that it was OP's mother who took two of the children overseas on a holiday to her home country, which was allowed under the family law orders. The only breach was that EF was not informed beforehand. But none of this had anything to with the present application.

217 Counsel for OP also pointed out that there was nothing in the suggestion that OP's business was not operating. He offered to show his client's business profile on the internet, which offer the judge did not take up.

218 In so far as it was suggested that OP was "calculating", counsel pointed to the fact that he had no prior convictions at the age of 35. At most, he completed a diversion over the LinkedIn matters. Further, he was a single father raising five daughters.

219 Counsel also reminded her Honour that OP was now in a new relationship.

XY's further submission on adding child to order

220 Finally, counsel for XY returned to the question of adding XY's child to the FVIO. Counsel submitted that, while she understood it was not opposed, nevertheless, if the judge considered she needed to find that family violence had occurred to the child, she "could find it based on the evidence of family violence during the pregnancy". (As will be seen, yet again, that was another unhelpful submission by counsel for XY, which led the judge into error, albeit an error within jurisdiction, according to Ms Wong.)

Reasons for eighteen-year order and inclusion of child in the order

221 After standing the case down while she dealt with another matter, the judge then turned to her reasons for extending the FVIO to one of 18 years' duration and the inclusion of the child in the order:[21]

[1] The intervention order having been consented to by [OP] on a no admission basis, the question therefore remains for me as to its duration.

[2] In this case, I have been presented with two starkly contrasting bodies of evidence. On the one hand, [OP], and on the other hand, [XY] and [EF]. All witness[es] gave extensive evidence and were cross-examined and I had ample opportunity to assess them as witnesses.

[3] I found [XY] and [EF] to be compelling and believable witnesses. There was much similarity in their descriptions of [OP's] treatment of them when they lived with him as a wife. The similarity in their [accounts] was of such a kind that I did not conclude that it was the result of concoction. The details of their evidence which was similar in that regard related to physical abuse, sexual abuse, financial control, verbal abuse, the attitude of [OP] to [ruqyah], the comments about the Arthur Freeman incident. There were also other similarities, both women having met [OP] on an internet site, [XY] meeting him very soon after [OP's] marriage to [EF].

[4] Both of them described a situation where they were forced to undertake domestic drudgery doing all the cooking and cleaning and washing while he worked or napped. Both women describe incidents where they were threatened with death and [OP] would make it look like an accident and to both women he expressed an intense interest in guns and weapons.

[5] I accept their evidence [over] that of [OP]. Their accounts revealed a disturbing history of a determination by [OP], in my view, to assert what he saw as his overriding rights as a husband by all the means described by both witnesses and to make them subject to him. I regard his actions as serious examples of family violence. I do not accept the proposition advanced on [OP's] behalf that [XY] was seeking use her relationship with him to come to and remain in Australia as was said to be evidenced by her refusal to take the offer of a paid ticket home to Pakistan.

[6] I accept that once her marriage failed, [XY's] position in Pakistan either as a single, separated woman or a single, separated woman with a child would have been sufficiently invidious for her to be reluctant to take that course.

[7] I regard [OP's] actions in relation to his first wife and the arrangements for their children following the separation initiated by her to be demonstrative of a continued determination to dominate and control. I regard the emails generated by [OP] following his separation with [XY] to be indicative of a continued attempt by him to assert control over her.

[8] [OP's] failure to make contact with [XY] thereafter may as easily be attributed to [XY's] capacity to keep her whereabouts unknown as a demonstration by him, as was urged upon me, of his bona fides towards her. I accept [XY's] evidence that she has taken no legal steps in relation to the support her daughter is entitled to from [OP] due to a fear of consequence in dealing with him.

[9] In my view, and in light of the evidence that I state that I have accepted, she does require the protection of an intervention order to pursue those legal avenues. Though this will involve contact of some kind until the child is 18 ... I do not accept that the nature of the legal contact will necessarily be of an arm's length obviating any concerns of danger to her.

[10] In my view, the disturbing evidence of [OP's] treatments of both previous wives must raise a concern as to his likely response in the future once [XY] takes actions through the Family Court. Such actions quite likely along the way to lead to the revelation of her whereabouts.

[11] I am satisfied [XY's] daughter has been the subject of family violence of that kind which I found was meted out to her mother whilst pregnant with her. I am therefore satisfied to the requisite degree by which I mean this sliding Briginshaw scale which I accept must be of a higher order due to the seriousness of the allegations that [OP] presents a continuing threat of family violence to [XY] as she seeks the support to which her daughter is entitled until age 18.

[12] In all the circumstances, therefore I vary the terms of the intervention order to include [XY's] daughter and I order that the intervention order be imposed for a period of 18 years.

222 There was no discussion about the conditions of the order. In those circumstances, it is assumed that the conditions imposed by the magistrate were to remain in place. That assumption is borne out when regard is had to the terms of the orders both before and after the appeal, to which I turn now.

223 The terms of the order made by the judge are recorded in a document headed "Result of Appeal". That document names the appellant as OP and the respondent as the police officer who initiated the application, coupled with the following: "& other/s".

224 Curiously, the document is in the form employed in appeals in criminal matters. One example illustrating this point is that the document speaks of the "Sentence Appealed Against", under which there is a subheading "Charge 1". Then, under that heading is a description of the order made in the Magistrates' Court, which includes a reference to the name of the police officer who initiated the application and OP and also a reference to XY as the "First Named Affected Family Member".

225 In the same column, the other terms and conditions of the order appealed are listed, including the duration of that order (which is expressed to expire at midnight on 13 July 2018).

226 In the next column, under the heading "Result of Appeal" and the subheading "Charge(/s) 1", it is said that "The orders imposed at the Magistrates' Court of Victoria on 13/07/2016 are varied" and then that "The following orders are made and last until 13/07/2034". The document then sets out the order in the following terms:[22]

• commit family violence against the protected person(s). [A definition of family violence is then given.]
• intentionally damage any property of the protected person(s) or threaten to do so.
• attempt to locate, follow the protected person(s) or keep him/her/them under surveillance.
• publish on the internet, by email or other electronic communication ay material about the protected person(s).
• contact or communicate with a protected person by any means.
• approach or remain within 5 metres of a protected person.
• go to or remain within 200 metres of ANY place where a protected person lives or works.
• get another person to do anything the appellant must not do under this order.
• the appellant may:

(c) communicate with a protected person through a lawyer or mediator; or

(d) participate in counselling or mediation with a recognised mediation service.

BUT ONLY IF the appellant does not commit family violence while doing so.

227 Other than the reference to the appellant instead of the respondent, these conditions are precisely the same as those in the magistrate's order.

228 Strikingly, however, nowhere under the heading "Result of Appeal" in which the order is recorded is either XY or her child named as a protected person.

229 Further, the order generated and stamped by the County Court and addressed to the appellant OP - which is a separate document headed "Intervention Order" and contains a warning that a failure to obey the order may result in arrest and a charge for a criminal offence - does not contain any description of XY or her child as protected persons either. On the other hand, XY and her child's names are at least set out some distance under the heading "Respondent: [the police officer who initiated the original application] & other/s". Immediately under the names of XY and her child, the following information is set out:[23]

THE FOLLOWING INTERVENTION ORDER WILL LAST UNTIL 13/07/2034

This order Varies the Order made by the Magistrates' Court at [venue stated] on 13/07/2016

... THE COURT ORDERS THAT THE APPELLANT MUST NOT:

[Precisely the same conditions as contained in the Result of Appeal are then set out. I shall not reproduce them here.]

NB: This order is made as a result of an appeal from the Magistrates' Court

Dated: 22nd March 2018

[Signed]

Deputy Registrar

230 No point was made of these omissions by either party to the application in this Court. It is plain enough to the parties that XY and her child are the protected persons. That said, it is something that might be corrected if OP were to make an application for leave to revoke or vary the FVIO.

Overview of relief sought and grounds for review

231 I turn now to an overview of the relief OP seeks and the grounds for review upon which he relies.

232 In his originating motion, under the heading "The Plaintiff Claims", OP stated that he:

is seeking a judicial review under [s 120(2) of the FVPA] whereby an order was made for [an] 18-year Intervention Order against [him]. He is Appealing on the basis of Jurisdictional error by the Judge in the County Court of Victoria.

233 Under the heading "The Grounds Relied Upon Are", the following is said:

(1) The grounds relied upon in this case are on the basis of [h]er Honour failing ... properly [to] apply the Briginshaw test in a civil case on the balance of probabilities.

(2) Secondly, [her] Honour demonstrated a strong perception of bias.

See attached affidavit for more information.

234 Under the heading "Relief Sought", it is said simply that "The Plaintiff seeks to overturn the judge's decision in the County Court".

235 In OP's accompanying affidavit, the two grounds in the originating motion are repeated and developed. First, under the Briginshaw complaint, OP attacks several of the judge's findings of fact and the duration of the order.

236 Second, under the bias complaint, OP complains that he "felt he had no opportunity for a fair trial and was forced to consent to an intervention order without admissions". He went on to particularise several things as demonstrating this alleged bias or perception of bias.

237 As the application developed in the written submissions filed prior to, during and after the hearing and in OP's oral submissions - which, I should add, were influenced at least in part by questions raised by me and on which I sought further assistance from both parties - I understood OP's case ultimately to be framed in the following ways:

(a) First, he challenged the making of the FVIO on the basis that he felt he had no choice but to consent to the order. This resulted from the alleged actual or apprehended bias displayed by the judge, which, in turn, was demonstrated by various rulings and findings by her Honour.

(b) Secondly, he also challenged the making of the FVIO on the basis that the judge's refusal to allow him to abandon the appeal was afflicted by numerous jurisdictional errors, including actual and apprehended bias, failure to consider relevant matters, procedural unfairness, inadequate reasons, Wednesbury unreasonableness and illogicality.

(c) Thirdly, he challenged the duration of the FVIO on similar grounds, as well as a failure properly to apply the Briginshaw test.

(d) Fourthly, he relied on fresh evidence as going to both the making of the FVIO and its duration. As will be seen, that fresh evidence goes to different issues:

(i) First, there is evidence concerning the judge's release of transcript of the hearing to OP's business competitor after the appeal. This conduct is said to demonstrate bias or apprehended bias by the judge.

(ii) Secondly, there is evidence led principally to contradict EF's claims that, while she took an antipsychotic medication, she did not do so for antipsychotic purposes, and that her drinking was not excessive.

(e) Finally, OP submitted that, despite his lack of opposition in the court below, the judge exceeded her jurisdiction by including the child in the order.

238 It will be convenient to follow the foregoing structure in addressing OP's complaints, XY's responses and my resolution of each point. As will be seen, however, there is a good deal of overlap in OP's complaints, which in turn gives rise to both an element of repetition in dealing with the various points in issue and the need to depart from the proposed structure every now and then.

240 In his affidavit accompanying his originating motion, OP said that, because of the judge's "multiple actions ... during the County Court ... proceedings ... which gave the perception of bias [towards him]", he "felt he had no opportunity for a fair trial and was forced to consent to an [FVIO] without admissions". He also said that he consented without admissions "on direction from [his counsel] due to the perception of bias".

241 During the hearing in this Court, when asked what orders he was seeking, OP said that he would not go back on his consent to an FVIO without admissions. He simply wanted a shorter order (such as the original two-year order) so that he could move on with his life.

242 I should say at once that I recognise that there is no affidavit from counsel who appeared below led in support of OP's account as to why he consented to an order. Equally, however, I did not understand that there was any complaint from Ms Wong about that fact. Nor did she apply to cross-examine OP on the assertions in his affidavit. Instead, as I understood her, Ms Wong was content to deal with OP's application on the bases that his actions on the appeal speak for themselves and that there was no substance in any of his complaints.

243 It might be said that OP's consent to an FVIO (without admissions), made with the advice of counsel, and his reiteration of that stance in this Court, should stand in the way of any challenge to the whole of the FVIO in these proceedings. However, if OP's claims of actual or apprehended bias were established, I do not think that his consent could stand in the way of relief resulting in the setting aside of the whole order. While this would be especially so if a link between the perception of bias and his decision in that regard were established, I should have thought that proof of actual or apprehended bias would be so fundamental that the FVIO would have to be set aside even absent proof of any such link. This is because it is essential that justice be seen to be done.

244 In view of the foregoing, I have proceeded on the footing that this complaint will stand or fall on whether the claims of bias or apprehended bias are established or not.

245 I should add that, because OP often referred to "perception of bias", Ms Wong assumed this complaint to be one of apprehended bias, rather than actual bias. It was not always clear to me whether OP was alleging actual bias, apprehended bias or both. In those circumstances, I have determined to treat all such complaints as if they alleged both actual bias and apprehended bias.

246 In his written and oral submissions, OP listed several matters as demonstrating bias by the judge or at least apprehended bias. These included her Honour's decisions:

(a) to decline to release the documents OP subpoenaed from the police and the DHHS;

(b) to allow questioning of OP about emails sent at the end of the relationship and before any FVIO was in place between XY and him;

(c) to allow OP's breach of the FVIO to be considered as evidence against him;

(e) to find that EF was a credible witness despite her being caught misleading or lying on several occasions;

(f) to refer to OP as "de-monstrouble" for actions pertaining to Family Court proceedings that were irrelevant;

(g) to accept those of XY's allegations made for the first time in three years and not raised previously;

(h) to accept XY's evidence that OP was supportive of Arthur Freeman;

(i) to ignore OP's evidence and historical information that supported his case;

(j) to fail to hear from all of OP's witnesses; and

(k) to make an extremely long FVIO despite the absence of contact between OP and XY's child.

247 As Ms Wong pointed out, actual bias arising from prejudgment involves:[24]

a state of mind by the decision-maker whilst exercising the decision-making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

248 Further, the question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.[25]

249 Moreover, a party asserting actual bias on the part of a decision-maker carries a heavy onus. The allegation must be "distinctly made and clearly proved".[26]

250 Ms Wong submitted, again correctly, that the test for apprehended bias in curial proceedings is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be tried".[27] The principle "gives effect to the requirement that justice should both be done and be seen to be done,[28] a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial".[29]

251 In Ms Wong's submission, however, the particulars on which OP relied under this complaint amount, in substance, to no more than an attempt to relitigate the merits of the matter, and do not give rise to bias or an apprehension of bias.

252 In my view, whether considered individually or collectively, the foregoing complaints - and all others of a similar type mentioned in OP's written and oral submissions - do not demonstrate actual or apprehended bias. My reasons follow.

253 As for the failure to release the subpoenaed materials, the judge concluded that they did not have the necessary relevance. Since only a description of those materials is before me, I am somewhat hamstrung in assessing the correctness or otherwise of her Honour's decision to decline to release those materials. Nevertheless, it will be remembered that, in declining to release the materials subpoenaed, the judge indicated that those documents "went to peripheral issues and did not have the necessary relevance". However, even if she erred in her assessment of relevance, to my mind, that would not indicate actual or apprehended bias. Instead, that would be merely an error within jurisdiction.

254 That said, I can see how, to OP, a failure to release - and therefore a failure to have regard to the contents of - the documents that he had subpoenaed might seem to be unfair. But, as we have seen, apprehended bias is tested, not by OP's subjective perception as an interested litigant, but by how a fair-minded lay observer might reasonably apprehend the judge's behaviour. Such an observer would understand that a judge must make judgments about matters of relevance, which her Honour did. In my view, on the material before this Court, it is not open to say that the fair-minded lay observer would or might have regarded the judge as acting partially just because she ruled adversely to OP's application. Instead, such an observer would say that, consistently with her duty, the judge simply decided a question of relevance in a particular way, for which she gave intelligible reasons.

255 Nor was there - and nor could there be - any bias or perceived bias in the judge's decision to allow questioning of OP about emails he sent at the end of the relationship and before any FVIO was in place between XY and him. Such information plainly was relevant to the relationship between the parties and OP's attitude towards XY.

256 As for considering OP's breach of the FVIO to be evidence against him, I have already remarked that I regard the cross-examination as misguided and as reflecting an apparent misunderstanding of the applicable law. Again, however, if the judge erred in her approach to this evidence (and I think she may well have done), that is an error within jurisdiction. It is not demonstrative of bias or apprehended bias.

257 (It will be convenient to defer dealing with OP's complaint about the judge's decision to allow EF to give evidence until dealing with the allied complaint about her Honour's refusal to allow OP to abandon his appeal, and how these things are said to be demonstrative of bias or apprehended bias.)

258 As for the judge's positive findings concerning XY and EF's credibility, despite some inconsistencies and/or failures to raise matters previously, and her rejection of aspects of OP's evidence, these were findings made after his decision to consent to an order without admissions. Nevertheless, assuming these findings may be used to show actual or apprehended bias in general, the submission still must be rejected, as the findings were open to her Honour on the evidence. The judge had the benefit of seeing and hearing the witnesses in the flesh across several days. While the matters raised by OP may have caused another judge to doubt or reject various aspects of the accounts of XY and EF concerning their relationships with OP and accept his account instead, there is nothing so striking about the evidence of any of those three witnesses that would render unreasonable her Honour's findings as to credit and/or reliability or as to the facts in general. Even if there were, it would not necessarily - and, in my view, it does not - bespeak bias or apprehended bias.

259 The same is true of her Honour's findings about OP's alleged utterances concerning Arthur Freeman. On the evidence, these were open to the judge and they do not demonstrate bias or apprehended bias.

260 As for the submission that the judge described OP as "de-monstrouble" for his actions pertaining to Family Court proceedings with EF, I fear that OP misconstrued or misheard her Honour's reasons. It is the following passage from the judge's reasons in which the impugned remark was alleged to have been made:[30]

[7] I regard [OP's] actions in relation to his first wife and the arrangements for their children following the separation initiated by her to be demonstrative of a continued determination to dominate and control. I regard the emails generated by [OP] following his separation with [XY] to be indicative of a continued attempt by him to assert control over her.

261 While I have not listened to the recording, OP did not submit that I should do so. But the notion that the judge might have distorted her pronunciation of the highlighted word to indicate some sinister thing is, well, just fanciful.

262 Further, in so far as OP submits that EF's evidence concerning his treatment of her vis-à-vis her children in the Family Court proceedings was irrelevant and amounted to "outright character assassination", again, if the judge made any errors in this regard, it was within jurisdiction to have regard to that evidence erroneously. Moreover, I can see no actual or apprehended bias in the judge's approach to these matters.

263 OP's complaint that the judge ignored historical information touched upon several factors. These included evidence that OP had had no contact with XY during the period of the existing FVIO, and even for the year it was set aside on appeal; that the only contact was the inadvertent breach via the LinkedIn messages; that he had a new partner and had moved on with his life; and his evidence that he wanted nothing to do with XY or the child. I would have added to that list the fact that EF conceded that she received no contact from OP after 2015. OP's argument was that this evidence showed an absence of risk of future family violence towards XY and that the judge's failure to reason in that fashion "gives the strong perception of bias".

264 As it happens, I agree that that evidence pointed very powerfully to a lack of risk of future family violence and, in turn, to the absence of any need for the extremely long order imposed by the judge. But, again, as much as I disagree with the judge's findings concerning risk and her selection of an eighteen-year order, and while it is a close-run thing in my mind, I do not think it is open to say that those decisions are afflicted with Wednesbury unreasonableness,[31] illogicality or irrationality.[32] On the contrary, it was within jurisdiction for the judge to make those findings and impose an order for that period. Less still is it open to say that those decisions reflect bias or apprehended bias.

265 OP also complains that the judge displayed bias by making her decision without his cross-examination being completed and without hearing from all of his witnesses. But, as Ms Wong submitted, this complaint is baseless. OP consented to the making of a final order in the middle of his cross-examination. He did not seek to call any further evidence or subject himself to further cross-examination. There can be no bias or apprehended bias in those circumstances.

266 As Ms Wong also pointed out, it is plain that the judge made several discretionary rulings in favour of OP in the course of the hearing. For example, OP was granted leave to call his eldest daughter despite the (baseless) objection on behalf of XY. Counsel for OP was also granted leave to put questions to XY upon her being recalled that he had omitted to ask her initially. In so far as I can see, her Honour did not cut counsel for OP off in any unfair way during his leading of evidence or in cross-examination. Similarly, there is no suggestion that the judge prevented counsel for OP from making any submissions or raising any issue that he was minded to make or raise.

267 For these reasons, I am not satisfied that the points argued under this ground - either individually or collectively - demonstrate actual bias or that a fair-minded lay observer might reasonably apprehend that the judge might not bring, or might not have brought, an impartial mind to the resolution of the questions to be tried.

268 I shall be returning to claims of bias and apprehended bias under other headings, including the next.

Refusal of application to abandon appeal to County Court

269 I turn now to OP's complaint that the judge's refusal to allow him to abandon the appeal was afflicted with numerous jurisdictional errors, including bias and apprehended bias; failure to consider relevant matters; procedural unfairness; inadequate reasons; Wednesbury unreasonableness; and illogicality or irrationality.

Power of County Court to require leave to be given before appeal can be abandoned

270 As a preliminary matter, I invited submissions on whether OP's appeal to the County Court may be abandoned as of right or whether the judge was correct in imposing a requirement of leave to abandon.

271 While OP did not make any submissions on this issue, Ms Wong did. In short, I accept her submission that, while there is no express provision addressing this matter, the relevant provisions and rules must be read in a way which makes it plain that an appellant must obtain leave in order to abandon an appeal of an FVPA matter in the County Court. The steps are as follows.

272 First, none of the Acts or regulations that were applicable at the time of OP's appeal in the County Court, and which might be thought to do so, contained an express provision concerning whether such an appeal may be abandoned as of right or whether there was a requirement of leave to abandon.

273 Secondly, however, s 121, which is contained in Subdivision 1 ("Appeals to County Court and Supreme Court") of Division 9 ("Appeals and rehearings") of Part 4 ("Family violence intervention orders") of the FVPA, provides as follows:[33]

121 Application of certain Acts to appeals

The provisions of this Act, the Magistrates' Court Act 1989 or the Children, Youth and Families Act 2005 (as the case requires) so far as applicable and with any modifications and adaptations as are necessary extend and apply to appeals under this division.

274 Thirdly, according to r 1.02 of the Magistrates' Court (Family Violence Protection) Rules 2008 (Vic)[34] ("the FVP Rules"), those Rules were made pursuant to s 209 of the FVPA and ss 16(1D) and (1E) of the Magistrates' Court Act 1989 (Vic), and all other enabling powers.

275 Fourthly, while the object of the FVP Rules is to make rules of procedure for proceedings in the Magistrates' Court under the FVPA, r 1.07(2) provided as follows:

1.07 Application

...

(2) These [FVP] Rules apply, so far as applicable and with any necessary modification, to every appeal commenced under Division 9 of Part 4 of the [FVPA] on or after the commencement date.

...

276 Fifthly, r 4.08 of the FVP Rules provided as follows:

4.08 Withdrawal of application

(1) An application under the [FVPA] may be withdrawn only with the leave of the Court.

(2) A party seeking to withdraw an application must -

(a) file a written notice of withdrawal, to be served on the respondent by the registrar; or

(b) if the person attends court, make an oral application to the Court.

277 Sixthly, while there is no definition of "the Court" in the FVP Rules, in s 4 of the FVPA, "court means ... (a) the Magistrates' Court; or (b) if the application is being dealt with in the Children's Court, that court". Thus, unless the context otherwise required, "the Court" in r 4.08 must be taken to adopt the definition in the FVPA. However, given the terms of r 1.07(2), the reference to "the Court" in r 4.08 must extend to the County Court (or, where applicable, to the Supreme Court) on appeal.

278 Seventhly, while r 4.08 speaks of an "application", not an "appeal", I think that, again, by force of r 1.07(2), for the purposes of an appeal to the County Court, r 4.08 must be read as if the word "application" also meant "appeal".

279 Finally, while, in my view, the foregoing would be enough to support the conclusion that r 4.08 imposes a requirement that an appeal to the County Court in an FVPA matter may be abandoned only with the leave of that court, Ms Wong submitted that r 15.04 also empowered that court to impose a requirement for leave to abandon an appeal. Rule 15.04 provides as follows:[35]

15.04 Directions

At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.

Additional submissions supporting a requirement of leave

280 While I considered it unnecessary to go any further in order to be satisfied that the forgoing provisions imposed a requirement of leave to abandon an appeal, out of deference to the quality of her submissions and lest others think more is required, I shall record Ms Wong's further submissions on the point.

281 First, Ms Wong submitted that, in relation to the implied powers of the County Court, it is well established that courts created by statute (such as the County Court) have implied powers to control their own proceedings. These implied powers arise by necessary implication from, and are confined by, statutory provisions conferring a particular jurisdiction.[36] The conferral of statutory jurisdiction carries with it the power to do whatever is necessary or convenient to effect its exercise, subject to overriding legislative provisions governing practice or procedure.[37] The implied powers of statutory courts are similar, if not identical, to the inherent powers of superior courts.[38]

282 Secondly, Ms Wong submits that the following provisions of the FVPA gave rise to the County Court's implied powers to impose a requirement of leave to abandon an appeal:

(a) Section 119 of the FVPA confers jurisdiction on the County Court to hear an appeal against a relevant decision of the Magistrates' Court. Section 119(1) provides that an appeal to the County Court is by way of rehearing. Section 119(2) relevantly provides that, on appeal, the County Court may (a) confirm the relevant decision, or (b) set aside the relevant decision, or (c) vary the relevant decision and make any order the Magistrates' Court could have made and exercise any other powers that the Magistrates' Court may have exercised.

(b) Section 1 of the FVPA relevantly states that the purpose of the FVPA is, inter alia, to maximise safety for children and adults who have experienced family violence, and to promote the accountability of perpetrators of family violence for their actions.

(c) Section 2 of the FVPA relevantly states that the FVPA aims to achieve its purpose by, inter alia, providing an effective and accessible system of FVIOs.

283 Thirdly, Ms Wong submits that the purpose of the FVPA could be frustrated if leave to abandon were not required and an appellant could abandon at any stage of the proceeding. Where an intervention order from the Magistrates' Court has been appealed by the respondent to the application in that court, an affected family member ("AFM") is effectively forced to participate in the County Court appeal if he or she wishes to defend the intervention order made in the Magistrates' Court. Since the appeal is by way of a de novo hearing, this usually would require the AFM and supporting witnesses to give evidence in the County Court (in circumstances where they may have already given evidence in the Magistrates' Court). If an appellant could abandon his or her appeal as of right at any stage of the County Court proceeding, this would deprive the County Court of its jurisdiction to make orders for the protection of persons who have experienced family violence regardless of the evidence before it (which could be different from the evidence before the Magistrates' Court). An appellant could use the County Court appeal as a vehicle to cause distress by forcing the AFM to give evidence again, without the appellant bearing any risk of a worse result.

284 Fourthly, Ms Wong submits that the risk of the FVPA's purposes being frustrated is heightened where the AFM is seeking a longer order through the appeal. This is particularly so if an appeal is heard towards the expiry of the Magistrates' Court order, as this is the time when an AFM would apply to the Magistrates' Court for an extension of the order. The AFM may choose to engage in the appeal with the aim of obtaining a longer order, but with the risk of the County Court making a shorter order or no order at all. If an appeal were abandoned in those circumstances, the AFM would need to go back to the Magistrates' Court and make another application for an extension of the order and possibly give evidence again if the extension application is opposed. If the Magistrates' Court grants the extension application, this could give rise to a further appeal by the respondent to the County Court.

285 Finally, Ms Wong submits that it is clear that r 15.04 applies in these circumstances to empower the court to impose a requirement of leave to promote the effective, complete, prompt and economical determination of the proceeding. Further, the power to impose a requirement of leave is necessarily implied from the FVPA for the effective exercise of the County Court's jurisdiction to hear and determine appeals in a manner that is consistent with the stated purposes of the FVPA, namely to maximise safety for persons who have experienced family violence by providing an effective and accessible system of FVIOs.

286 While there appears to be some force in Ms Wong's additional submissions on the point, I need not determine whether they are to be accepted.

Another consideration that usually should be weighed on an application to abandon

287 That said, I think the following factor also should be weighed in the balance when judges are considering whether or not to grant leave to abandon an appeal of this nature.

288 If an appellant against the imposition of an FVIO is not granted leave to abandon his or her appeal, and instead a much longer FVIO is imposed on appeal by the County Court (as occurred in OP's case), then, if aggrieved by that result, the appellant will be deprived of the usual appellate right to come back to the County Court on a de novo appeal that would have obtained had leave to abandon been granted and the applicant for the original FVIO had gone back to the Magistrates' Court and obtained a fresh or extended order.

289 In my view, that loss of a right is important, particularly because of the nature of such an appeal vis-à-vis the only other remedies that would be available to the aggrieved appellant fixed with a longer order. And, as in this case, those remedies are the extremely narrow confines of judicial review by this Court or a later application for revocation or variation of the FVIO,[39] which, unlike the appellate right, is governed by a leave requirement.[40]

290 That is not to say that the potential loss of that appellate right should carry the day in every application to abandon an appeal. Each case will turn on its own facts. If the appellant were thought to be using the appellate process as an abuse of process, then plainly that would be a powerful factor against granting leave to abandon. Similarly, a timely warning that the appeal appeared to be worse than hopeless - even impudent - or that the appellant was at risk of a worse result might be important factors in the scheme of things. The potential loss of an appellate right is only one factor that might be thrown into the mix in some cases and, where it is relevant, will attract more or less weight depending upon all the circumstances.

291 Indeed, that this factor appears not to have been even considered in OP's case does not, in my view, amount to a failure to have regard to a mandatory relevant consideration. Instead, if it be an error at all, I think it would be an error within jurisdiction. But, ordinarily, I think it is something that should be weighed in the balance.

292 As has already been observed, and as will be noticed again, I am of the view that, if the judge erred in her decision to refuse to grant leave to abandon the appeal (or in her approach to that decision), it was not an error of the type that could avail OP on an application for judicial review.

293 In the overview to these reasons, I indicated that, if this matter were in the nature of an appeal involving an assessment of the evidence below (together with any further evidence) and the substitution of my own view of the appropriate orders, I would have allowed the appeal and set aside the extended FVIO on the basis that the judge erred in refusing OP leave to abandon his appeal.

294 This is because, in my view, the evidence of EF was produced at such a late stage that it rendered the hearing unfair to allow XY to split her case and call EF at that time. The "warning" by XY's counsel at the outset of the appeal (of the intention to seek a longer order) did not extend to the production of the surprise witness EF after OP had gone into evidence to answer XY's case, especially in circumstances where she had such evidence in her possession prior to the hearing in the Magistrates' Court. If XY wanted a longer order, she could have brought her own fresh application in the Magistrates' Court to extend the FVIO.[41] While that may have been inconvenient for her, this would have been necessary by July 2018 in any event - i.e. in only five months hence - as the order would have expired by then. Moreover, simply allowing OP time to consider EF's statement was insufficient when he had already committed himself to an approach to the case in his own evidence. Finally, while he did not make the application until he heard EF's evidence, there was no hint that OP was attempting to abuse the court's process by seeking to abandon his appeal. Had that been his intention, I could understand why a different approach might be taken. But, as we have seen, the judge stopped short of making any such finding.

295 All of that said, in my view, and contrary to OP's submissions, none of this demonstrated actual or apprehended bias on the part of the judge. Indeed, while I would have ruled differently, I can see nothing in the judge's reasons or in her approach to this question that suggested prejudgment or apprehended bias. Her Honour simply considered that the concerns about the late notice of EF as a witness and the consequent splitting of XY's case could be, and had been, dealt with by allowing OP's counsel time to consider EF's statement and take instructions. Further, OP had not made the application to abandon immediately before or after the judge's decision to allow EF to give evidence. Instead, he did not make that application until EF had given evidence and a good deal of other evidence had been given. In the circumstances, despite the fact that a considerable amount of evidence had been given and would need to be given again if leave to abandon were granted and the matter returned to the Magistrates' Court at the instance of XY, I would have placed little or negligible weight on XY's having to run her case again in that court so that she might obtain an extended order. After all, it was not XY's appeal. If she wanted an extended order, there was an avenue open to her at the appropriate time. But these were matters to which her Honour was entitled to have regard in coming to her decision. That she weighed them differently from the way others might have done does not suggest bias or apprehended bias.

Whether failure to consider relevant considerations

296 With those thoughts in mind, I turn now to OP's complaint that the judge ignored relevant considerations. As will be seen, these complaints in part have been touched upon above and are capable of going to all aspects of the case, including the judge's decision concerning the length of the order.

297 Under the heading of "Ignoring relevant materials", OP submitted that, while the judge said that she regarded the emails generated by him following his separation from XY to be indicative of a continued attempt to assert control over her, her Honour nevertheless failed to have regard to the fact that those emails followed an attempted assault upon him, which in turn led him, in desperation, to attempt to mediate with XY. This, in OP's submission, also pointed up the importance of the material subpoenaed from the police and the DHHS, which the judge failed to consider.

298 OP also submitted that the judge failed to consider the following matters:

(a) No claims were made by EF until after she met XY.

(b) On multiple occasions, EF breached the intervention order OP had against her.

(c) There was no (or insufficient) particularisation of the acts of violence or the like allegedly committed by OP against XY or EF.

(d) EF was fully aware of family law proceedings between OP and her.

(e) OP had moved on with a new relationship and his life after the relationship between XY and him broke down.

(f) EF's family members were police officers, yet she never brought up allegations of sexual assault or any other issues to them or to anyone else, including medical professionals.

(g) There was no direct contact between OP and XY for almost two years, including a period of one year during which there was no FVIO in place. The only exception was the automatic message sent by LinkedIn, over which OP had no control.

(h) XY admitted she never raised the issue of "rape" or multiple other allegations brought forth at the County Court during the initial Magistrates' Court hearing and that these in fact were new allegations made three years post-separation after already being questioned about them.

299 Ms Wong submitted that the ground of failure to take into account a relevant consideration can only be made out if the decision-maker fails to take into account a consideration which he or she was bound to take into account in making that decision - i.e. it must be a mandatory consideration. Further, not every consideration that a decision-maker is bound to take into account, but does not, will justify the court in setting aside the impugned decision. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. Finally, reviewing courts must not stray into reviewing the merits of the decision. Instead, it is generally for the decision-maker, and not the reviewing court, to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising statutory power.[42]

300 In Ms Wong's submission, the mandatory considerations concerning the length of the order arise from s 97 of the FVPA. In particular, s 97(2) provides that the court must take into account (a) the safety of the protected person (as a paramount consideration), (b) any assessment by the applicant (namely, XY) of the level and duration of the risk from the respondent (namely, OP); and s 97(3) provides that the court may also take into account any matters raised by the respondent (OP) that are relevant to the duration of the order.

301 Ms Wong submitted that the judge's reasons indicate that these mandatory considerations were taken into account as required. Her Honour recognised that there were two contrasting bodies of evidence. After hearing the evidence of all witnesses, the judge chose to accept the evidence of XY and EF over that of OP, for which she gave detailed reasons drawing on that evidence.

302 In Ms Wong's submission, the matters identified by OP are matters (a) that were not supported by evidence; (b) that the judge did actually consider; (c) were not mandatory considerations; and/or (d) that were not material to the decisions being challenged, namely the decision to refuse the application to abandon the appeal and the duration of the final order.

303 In relation to the alleged failure to consider the documents subpoenaed from the police and the DHHS, Ms Wong submitted that the judge did consider them and found them to be irrelevant. This, of course, was discussed in relation to the earlier complaints of bias or apprehension of bias. In any event, Ms Wong submits that her Honour correctly ruled that the subpoenaed material was irrelevant.

304 In relation to there being no claims made against OP by EF until after she met XY, this, submitted Ms Wong, was not supported by the evidence. EF gave evidence that she wrote her statement before she met XY. It was not put to EF in cross-examination that she had not written the statement before meeting XY.

305 In relation to the breaches of the intervention orders that OP had against EF, evidence regarding family law documents and EF's failure to disclose OP's conduct to her family members, these are not mandatory considerations. Instead, they are best characterised as matters going to EF's credibility as a witness. The reasons of the judge indicate that she carefully assessed EF's credibility. OP's complaint that her Honour failed to consider specific matters reveals no more than a disagreement with her assessment of EF's credibility.

306 In Ms Wong's submission, the lack of particularisation of the alleged behaviour and the evidence that OP was in a new relationship cannot be characterised either as mandatory considerations or as material to the decision being challenged.

307 In relation to the lack of direct contact between OP and XY, Ms Wong pointed out that this was in fact considered by the judge. In particular, her Honour said that "[OP's] failure to make contact with [XY] thereafter may as easily be attributed to [XY's] capacity to keep her whereabouts unknown as a demonstration by him, as was urged upon me, of his bona fides towards her". As I have intimated earlier, I would have taken a different view of this aspect of the evidence. But it cannot be said that the judge has ignored the issue or the evidence.

308 In relation to XY's delay in disclosing that OP had pressured her to have sex, Ms Wong submitted that this can be characterised as a matter going to XY's credibility and was the subject of some evidence given in cross-examination. In her submission, the reasons of the judge indicate that she carefully assessed XY's credibility. The complaint that her Honour failed to consider specific matters reveals no more than a disagreement with her assessment of XY's credibility.

309 For these reasons, submitted Ms Wong, this ground should be dismissed

310 In my view, Ms Wong's submissions are plainly correct. There is no need to elaborate on them, as I accept them. This aspect of OP's complaint should be dismissed.

311 OP submits that he was denied procedural fairness. EF was called as a surprise witness more than halfway through cross-examination. At the commencement of the appeal, the parties were asked which witnesses they were intending to call. OP's counsel complied. But there was no mention that EF was to be called. OP described this as an unfair tactic.

312 Since the appeal, the County Court has changed the Practice Note in family violence matters. The new Practice Note (PNCLD3 - 2019, "Family violence protection and personal safety intervention order appeals") states:

Further, unless the judge hearing the appeal directs to the contrary, the following shall apply:

(a) if either party intends to rely upon the evidence of a lay witness, that party shall file a witness statement which will stand as the evidence-in-chief of that witness.

...

(c) If one or other party seeks to cross-examine a lay witness or doctor proposed to be relied upon (save in relation to a witness referred to in s 70 of the [FVPA]), that party shall give notice to that effect at least 30 days prior to the hearing, and the party seeking to rely upon that evidence must arrange for that witness to attend.

313 OP submits that making decisions based on evidence after allowing EF to give evidence as a "surprise" witness failed to meet the requirements set out by McHugh J in Re Refugee Review Tribunal; Ex parte Aala ("Aala"),[43] which were in the following terms:

One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.

314 OP submits that he was not afforded a fair hearing because he was not warned by the judge:

(a) that consenting without admissions without finishing cross-examination could lead to an extended order being placed on him;

(b) of the potential for a more adverse finding for the whole case; or

(c) that evidence given by EF could be a determining factor in the duration of the order, especially in circumstances where EF was not a witness to the relationship between XY and himself.

315 OP asserted that, had he been warned by the court of those potential consequences, he would have continued his cross-examination and re-examination and called other witnesses. Nor, he submitted, was his counsel given the opportunity to make submissions rebutting these potential adverse findings.

316 In Ms Wong's submission, there was no procedural unfairness involved in the way OP's application for leave to abandon was heard and decided. OP had the opportunity to make submissions, and to respond to XY's submissions.

317 In Ms Wong's submission, any complaint regarding procedural unfairness would need to be framed in terms of the judge's failure to warn OP of the possibility of a worse outcome, which induced him to refrain from seeking to abandon the appeal at an earlier stage.

318 Ms Wong accepted that the judge did not expressly warn OP of the possibility of a worse outcome. In her submission, however, that is not sufficient to show that OP had been denied procedural fairness. Ms Wong referred to West v Creasey & Anor,[44] where Buchanan JA said this:

[17] In order to succeed in this appeal, the appellant must go further than showing that the appeal may have been better conducted if the County Court judge had been less reticent. He must demonstrate that the judge's silence denied him procedural fairness by unfairly inducing him or his counsel to refrain from leading evidence or making submissions or on a matter relevant to the judge's decision.

[18] Silence on the part of a judge may mislead a party or his counsel if the judge proceeds on a basis which is contrary to an assumption reasonably made by the party or his counsel. Examples of departures from the conventional basis on which a case is conducted, and as to which a warning should be given, are afforded by a judge on appeal by an accused against a non-custodial sentence determining to impose a sentence of imprisonment; a judge in an appeal against a custodial sentence determining to increase the sentence; a judge relying on evidence outside a statement of facts agreed upon by the parties; and a judge acting upon his belief as to a state of affairs in the community such as the prevalence of a particular crime or type of crime as to which no evidence has been led; or an increase in the supply of heroin to the streets known to the judge but not mentioned in the course of the case.

319 In Ms Wong's submission, the present case is not of that ilk. Unlike criminal appeals against sentence, there is no statutory requirement[45] or established convention for a warning to be given in appeals under the FVPA. On the first day of the hearing, counsel for XY announced that she would be seeking a longer order. Further, in the ruling regarding the admissibility of EF's evidence, the judge referred to the relevance of EF's evidence to XY seeking a longer order. In these circumstances, neither OP nor his counsel could have been in any doubt that XY was seeking a longer order and that the judge contemplated the possibility of making a longer order. In Ms Wong's submission, there was no obligation resting on the judge expressly to warn OP of the possibility of a longer order, as he should have been aware of that possibility. In the result, submitted Ms Wong, there was no breach of the rules of procedural fairness in the conduct of the appeal in the County Court.

320 In my opinion, while, as I have said, the judge ought to have granted the application for leave to abandon the appeal, there was not a sufficient denial of procedural fairness in the late calling of EF as a witness as to warrant the setting aside of her decisions allowing such evidence, refusing leave to abandon the appeal or as to the duration of the FVIO. It was within the judge's discretion to conclude that, in all the circumstances, such difficulties as the late calling and interposing of EF as a witness could be offset by other measures. Those measures or factors included giving OP's counsel time (a week) to consider EF's statement, giving him the opportunity to cross-examine EF generally and XY specifically on the last-minute production of the statement and the calling of evidence for OP, as well as the fact that (at that time) there was no requirement to disclose proposed witnesses in any event.

321 It may be accepted that, had the new Practice Note been in place at the time of OP's appeal, the judge would (or might) have refused to allow EF to be called to give evidence. The Practice Note represents a fairer and far more sensible approach to litigation of this kind. But, since it was not in place at the relevant time, it is of no assistance to OP.

322 Not only were OP and his counsel aware from the outset that XY would be submitting that a longer order should be made, but, to adopt and adapt the words of McHugh J in Aala (extracted above), it was obvious that the risk of an FVIO being made, and a longer one at that, "necessarily inhere[d] in the issues to be decided" once EF's statement was disclosed and the judge ruled that she would be allowed to give evidence. This was obviously so, at least because there was a higher chance that XY's more serious allegations of OP's behaviour were more likely to be accepted when EF gave evidence of similar behaviour by OP. No warning from the judge was needed to be aware that those risks were present.

323 And yet there was no application to abandon the appeal immediately upon disclosure of EF's statement or straight after the judge ruled her evidence admissible and that XY could split her case. Instead, OP carried on with the appeal, and did not make his application to abandon the appeal until EF had given her evidence, XY had been recalled, he had called a witness of his own (GH, although he was interposed) and he had resumed his own evidence. It was only after that further evidence was given that he made the application to abandon. By that stage, because so much evidence had been given, the judge had greater cause to refuse the application to abandon.

324 As for OP's complaint that the judge should have warned him that consenting without admissions and without finishing cross-examination could lead to an extended order being placed on him, well, that rather begs the question. We shall never know whether the judge might have taken a different view of whether an FVIO was necessary, or whether such a long order was required, if she had heard the balance of OP's evidence and the other witnesses he had been proposing to call. But, in any event, I do not accept that the judge was required expressly to warn of that possibility. For the reasons I have already given, OP and his counsel must have believed that, in view of the evidence heard to that point, there was at least some risk that the judge would impose a longer order. Further, OP must be taken to have made a forensic judgment to the effect that taking that particular course at that point (instead of pressing on) gave him the better chance of securing a shorter order. It is not for this Court, on an application for judicial review, to find procedural unfairness in the face of an informed forensic decision that OP might have decided differently if he had his time again.

325 Accordingly, I am not satisfied that OP was denied procedural fairness for any of the reasons advanced.

326 While I did not understand him to agitate a particular complaint about the adequacy of the judge's reasons (other than that he considered that those reasons were erroneous or that they failed to address various matters), nevertheless, Mr Wong made submissions on what she perceived to be a complaint of a failure to provide adequate reasons per se. Earlier, I set out the judge's reasons for refusing OP's application for leave to abandon the appeal. I shall not repeat them here.

328 Ms Wong accepted that courts are required to give reasons for final decisions and important interlocutory rulings, as this is central to their judicial function.[46] The scope of the duty - that is, the content and detail of the reasons to be provided - will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.[47] The overriding principle regarding the adequacy of reasons is that the reasons must reveal the path of reasoning which leads to the conclusion reached.[48]

329 Ms Wong accepted that a failure to provide adequate reasons, where they are required, is an error of law.[49] Although the question is not settled, there is suggestion that a failure to provide adequate reasons could amount to a jurisdictional error on the basis that it denies a party procedural fairness in respect of their right to appeal or seek review of a decision for which reasons were not given.[50]

330 Ms Wong concedes that the judge was required to give reasons for the decision to refuse OP's application for leave to abandon the appeal. It was an important interlocutory ruling because, if leave were granted, it would have ended the appeal proceedings and, if she wished to extend the order, XY would have had to go back to the Magistrates' Court to apply for such an extension.

331 However, Ms Wong submits that the judge provided adequate reasons and that there is no legal or jurisdictional error as a result of failure to provide adequate reasons. The reasons reveal the path of reasoning that led to the conclusion reached. The conclusion reached (that it was not appropriate to grant leave to abandon the appeal) was explained by reference to the particular circumstances of the case (namely, that it was clear from the outset that OP was seeking a longer order via the appeal process, the amount of evidence adduced by that stage, and the waste of time and resources if the appeal were abandoned). The content and detail of the reasons were appropriate in the context of how the application was made (orally, without any prior notice to the court), the limited submissions made in support of the application, the timing of the application (in the middle of a contested hearing) and the undesirability of the proceeding being delayed unnecessarily.

332 Other than noting that, as I understood it, some notice was given of the application to abandon (between the penultimate and ultimate hearing dates), I accept Ms Wong's submissions. In short, the judge's reasons for refusing the application for leave to abandon the appeal adequately revealed the judge's path of reasoning to her conclusion. Nothing more was required.

Whether Wednesbury unreasonableness or illogicality/irrationality

333 While I understood OP's complaints of Wednesbury unreasonableness and illogicality or irrationality to be directed at the judge's decision concerning the duration of the order, the substance of his argument at least implied that he considered that the refusal of leave to abandon the appeal was also unreasonable and illogical or irrational. Thus, for completeness, I shall attempt to address (albeit very briefly) what I infer to be his submissions on these points.

334 Again, while I have indicated that I would have ruled differently, I am not persuaded that the judge's decision to refuse OP's application to abandon his appeal was afflicted with Wednesbury unreasonableness or illogicality or irrationality. As I have indicated earlier, it was open to the judge to rule as she did, and she gave adequate reasons for her decision. Both Wednesbury unreasonableness and illogicality or irrationality are very stringent grounds for judicial review. Despite my doubts about the decision, I am not persuaded that those very high hurdles have been cleared.

335 In the result, I reject the complaint that the judge's decision to refuse the application to abandon the appeal is afflicted with any of the errors alleged.

336 I turn now to OP's complaint about the duration of the order imposed by the judge.

337 Once OP consented to an FVIO (without admissions), the ultimate issues to be determined by the judge were the duration of the order and (at the last minute) whether the child should be included in that order. I think it is clear that the judge's findings about the extent and level of family violence were among the matters that impacted on her decisions about those ultimate issues. It is in that context that many of OP's complaints about the duration of the FVIO amount to criticisms of the judge's factual findings concerning the evidence given by XY, EF and him.

338 While the factual substratum for any decision concerning the duration of an FVIO must be important, it is as well to note the following matters.

339 First, s 74(1) of the FVPA provides as follows:[51]

The court may make a final 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.

340 Secondly, s 97 of the FVPA provides that:[52]

1. 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 -

(a) that the safety of the protected person is paramount; and

(b) any assessment by the applicant of the level and duration of the risk from the respondent; and

(c) 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.

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.

342 Finally, as Cavanough J remarked in YY v ZZ:[53]

[109] However those matters may be, 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.

[110] Putting aside the remote possibility that in a particular case there will exist an assessment by the applicant or by the affected family member that actually favours the respondent in relation to the proper duration of the order, a respondent can hardly be heard to complain about a failure on the part of the magistrate or judge to take into account, or to refer in his or her reasons, to, any of the three matters specified in s 97(2).

343 It is against the foregoing background that OP's grounds attacking the duration of the order must be assessed.

344 In so far as OP attacks the duration of the order on grounds of actual or apprehended bias, failure to consider relevant considerations, denial of procedural fairness and inadequate reasons, I refer to and repeat the reasons already given under other headings, and add the following points.

345 I can see nothing suggesting bias or apprehended bias in the judge's decision concerning the duration of the order. I shall return to bias and apprehended bias when dealing with the events that occurred after the hearing and the fresh evidence on which OP seeks to rely.

346 Nor can I see any denial of procedural fairness. After OP consented to the FVIO without admissions, he was not prevented from leading any further evidence or making any further submissions in response to any points made on behalf of XY.

347 While I shall touch on the judge's reasons for the duration of the order under the Briginshaw and Wednesbury unreasonableness complaints, I am satisfied that her Honour's reasons adequately revealed her path of reasoning to her conclusion.

Whether failure to consider relevant considerations

348 Further, I can detect no mandatory relevant considerations to which the judge failed to have regard.

349 One thing that did concern me a little initially, however, was that the judge appears to have made no reference to the fact that there was an interim FVIO against OP in favour of XY from August 2015 until the conclusion of the hearing in the Magistrates' Court in July 2016. Instead, the focus appeared to be on the period when there was no FVIO in place (for about a year between the setting aside of the magistrate's final orders and the reinstatement of the appeal and those orders).

350 I invited submissions on whether the existence of the interim order was a mandatory relevant consideration in determining the length of the FVIO.

351 Ms Wong submitted that the answer to that question is no. In her submission, whether an interim FVIO was made against OP in favour of XY is a permitted, but not mandatory, consideration when determining the length of the final FVIO.

352 Correctly, Ms Wong submitted that whether or not a matter is a mandatory consideration is a question of statutory construction. A mandatory consideration may arise from the express words of a statute, by implication from the subject matter, scope and purpose of the statute, or both.[54] When a court determines duration of a final FVIO, whether an interim FVIO was made is not a mandatory consideration that arises expressly or by implication under the FVPA.

353 A court is required to apply s 97 when exercising the discretion to specify the period for which a final FVIO is in force. Section 97(1) confers a discretion on the court to specify the period for which the final FVIO is in force. The court may specify a period but is not required to do so. If no period is specified, the final FVIO remains in force until it is revoked or set aside on appeal.

354 In Ms Wong's submission, if the court does decide to specify the period for which the final FVIO is in force, then s 97(2) sets out the mandatory considerations that the court must take into account when deciding the duration. Section 97(2)(a) requires the court to take into account the safety of protected person as the paramount consideration. It does not specify the facts, claims or evidence that the court must consider when reaching that conclusion. The mandatory consideration is the court's factual conclusion about the risk to safety of the protected person. The facts, claims or evidence advanced to support or negate the conclusion are permissive considerations. It is for the court to determine the matters which it regards as relevant, as well as the comparative importance to be accorded to those matters.[55] Whether an interim FVIO was made, its terms and duration and the parties' conduct during such an order might be matters that the court chooses to consider relevant to its conclusion about the risk to the protected person's safety. However, in Ms Wong's submission, they are permissive rather than mandatory considerations under s 97(2)(a).[56]

355 These submissions are consistent with the remarks of Cavanough J in YY v ZZ, which I extracted earlier.[57]

356 Ms Wong submitted that grounds of judicial review that fasten upon relevant and irrelevant considerations are concerned essentially with whether the decision-maker has applied the correct legal test, not with the process of making particular findings upon which the decision-maker acts.[58] That is not to say that failure to consider the existence of an interim FVIO can never give rise to an error. However, it would not be under the ground of failure to consider a mandatory consideration. It is more likely to constitute an error of law[59] rather than a jurisdictional error,[60] which is the only basis on which an appeal from the County Court to the Supreme Court can be made under s 120 of the FVPA.

357 Ms Wong submitted that, for the sake of completeness, whether an interim FVIO was made is not a mandatory consideration under s 97(2)(b) or (c) because it was not raised in the County Court by either the original applicant (the member of Victoria Police) or the protected person (XY) during submissions regarding assessment of risk.[61] Nor was it a mandatory consideration under s 97(3) because it was not raised by OP in the County Court during submissions regarding assessment of risk. Even if OP did raise the interim FVIO in the County Court, it would have been only a permissible consideration since s 97(3) provides that the court may take into account matters raised by the respondent relevant to the duration of the order. As Ms Wong submitted, a decision-maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an "exhaustive list of all the matters which the decision-maker might conceivably regard as relevant".[62]

358 Ms Wong also submitted that the discretion under s 97 to specify the duration of an order is to be interpreted in light of the purposes of the FVPA, which are set out in ss 1 and 2. In her submission, these provisions reveal that the central purpose of the FVPA is to maximise the safety of persons who have experienced family violence, to prevent family violence to the greatest extent possible, and to provide an accessible system for FVIOs and safety notices. Ms Wong submitted that it would be incongruous with the protective purpose of the FVPA to imply into s 97(2)(a) a mandatory requirement for a variety of specific matters to be considered, such as whether there was an interim FVIO, since that would increase the complexity of the system for FVIOs and potentially compromise the accessibility of that system.

359 Ms Wong also submitted that, given the broad meaning of family violence in s 5 and the wide range of circumstances in which a final FVIO might be sought, it would be consistent with the central purpose of the FVPA to interpret s 97(2)(b) in a manner that gives a court a broad discretion to determine what factors were relevant to its assessment of the risk to the protected person's safety when specifying the duration of a final FVIO.

360 In Ms Wong's submission, the reasons of the judge indicate that she had proper regard to the mandatory considerations under s 97 when specifying the duration of the final FVIO. Ms Wong submitted that the following passages of the judge's reasons were of particular relevance to the mandatory consideration in s 97(2)(a) and the court's conclusion about the ongoing risk to XY's safety:

[5] ... I regard his actions as serious examples of family violence. ...

...

[7] I regard [OP's] actions in relation to his first wife and the arrangements for their children following the separation initiated by her to be demonstrative of a continued determination to dominate and control. I regard the emails generated by [OP] following his separation with [XY] to be indicative of a continued attempt by him to assert control over her.

[8] [OP's] failure to make contact with [XY] thereafter may as easily be attributed to [XY's] capacity to keep her whereabouts unknown as a demonstration by him, as was urged upon me, of his bona fides towards her. I accept [XY's] evidence that she has taken no legal steps in relation to the support her daughter is entitled to from [OP] due to a fear of consequence in dealing with him.

[9] In my view, and in light of the evidence that I state that I have accepted, she does require the protection of an intervention order to pursue those legal avenues. Though this will involve contact of some kind until the child is 18 ... .

[10] In my view, the disturbing evidence of [OP's] treatments of both previous wives must raise a concern as to his likely response in the future once [XY] takes actions through the Family Court. ...

361 In Ms Wong's submission, the foregoing passages indicate that the judge concluded that the risk to XY's safety justified the duration of the final FVIO until the child turned 18, having regard to the following matters:

(a) the evidence from XY and EF about family violence perpetrated by OP during their respective relationships, which the court accepted and regarded as serious examples of family violence;

(b) EF's evidence about OP's conduct after their separation, in particular in relation to the parenting (i.e. family law) arrangements for their children, which the court accepted was demonstrative of his dominating and controlling behaviour that continued after separation;

(c) the emails sent by OP following his separation with XY, which the court found was indicative of a continued attempt by him to assert control over her;

(d) the lack of contact from OP after the emails were as easily attributable to XY's capacity to keep her whereabouts unknown as a demonstration of his bona fides towards her;

(e) XY's evidence that she had not taken legal steps to pursue from OP support for her daughter due to her fear of him, which the court accepted; and

(f) the judge's concerns about XY's safety, in light of the above findings, about OP's likely response once XY took action through the Family Court in relation to support for her daughter, which would involve contact of some kind until the child turned 18 years old.

362 Ms Wong also pointed out that the emails referred to were sent by OP to XY and her family from 4 to 14 July 2015. They were discussed in XY's evidence and put into evidence before the County Court. During submissions regarding the duration of the FVIO, counsel for OP argued it was a significant matter that OP did not contact XY after 14 July 2015. Although counsel made no specific mention of the interim FVIO, the period of no contact referred to covers the duration of the interim FVIO made on 8 August 2015. In Ms Wong's submission, the judge specifically considered the fact that there was no contact during that period, but found that it was just as easily attributed to XY's capacity to keep her whereabouts unknown as a demonstration of OP's bona fides towards her. It was further submitted that, in circumstances where the judge had already made a high-level finding about the ongoing risk to XY's safety despite there being no contact from OP, including during the period where the interim FVIO was in force, there was no separate requirement or need for her Honour specifically to consider the existence and relevance of the interim FVIO when exercising her discretion under s 97 to specify the duration of the final FVIO.

363 Finally, Ms Wong submitted that, while OP may take issue with the merits of the County Court's conclusion about the risk to XY's safety, and the findings leading to that conclusion, those findings were open for the court to make and no jurisdictional error is evident.

364 In his further written submissions, OP expressly agreed with Ms Wong that the existence of the interim FVIO is not a mandatory consideration.

365 That might be thought to be the end of the matter. However, OP indicated that, since Ms Wong put further submissions, he was forced to respond to those submissions, including with what he perceived was necessary to address Ms Wong's additional points. While I think a fair reading of Ms Wong's additional submissions is that they were designed to explain why the existence of the interim FVIO was not a mandatory relevant consideration rather than an attempt to rehearse arguments put earlier again, in the circumstances, I can understand how OP might have perceived things differently. In those circumstances, I shall set out a summary of (most of) OP's response.

366 In summary, OP reiterated his claims that the judge:

(a) demonstrated significant apprehended bias in some of her decisions;

(b) potentially breached s 166 of the FVPA in distributing and allowing the distribution of transcripts to OP's business rivals;

(f) erred in failing to apply the Briginshaw test.

367 OP also submitted that Ms Wong's submissions ignore:

(a) his repeated statement that he wants nothing to do with XY or her child, which he repeatedly denied is his;

(b) the fact that he made no attempts to find XY as he was in another relationship and, regardless, had no interest in ever seeing, hearing or having anything to do with XY again;

(c) the fact that, when there was no order against OP (during the period when the appeal initially was allowed), he still had an FVIO against XY protecting him and his five children from her;

(d) the fact that OP "would never again expose his children to family violence perpetrated by [XY] and as such would never have a relationship with her again or attempt to do so"; and

(e) the fact that OP's explanation for the emails was that they were written in the face of an assault which occurred in the Muslim community for which, he maintains, there are police records.

368 Of course, these matters are dealt with elsewhere in these reasons. Out of deference to OP, I reconsidered each of them, but remain of the same view. In those circumstances, I shall not repeat those views.

369 Finally, OP also made criticisms of Ms Wong which, in my view, are wholly irrelevant to this case. Accordingly, I shall not repeat them.

370 The short point is that, despite my initial concerns, I accept the submissions of both Ms Wong and OP that the existence of the interim FVIO against OP is not a mandatory relevant consideration.

371 For the reasons urged by Ms Wong (which I shall not repeat), I accept her further submissions to the effect that the judge had regard to all mandatory considerations under s 97 when specifying the duration of the final FVIO.

372 I turn now to OP's complaint that the judge failed properly to apply the Briginshaw test[63] to the many serious claims of family violence made against him.

373 As OP pointed out, many of the allegations were especially serious and were even potentially criminal in nature. These allegations included:

• wanting to be a threat to Australian security interests;

• physical, sexual, financial, emotional and psychological violence in OP's family home;

• threatening to stalk and kill people, including slitting throats;

• being obsessed with firearms, pointing them at people in the street and threatening to snipe people;

• wanting to work overseas as a mercenary or executioner; and

• possessing and expressing severe hatred against non-Muslim women.

374 OP then focused on a few passages of the judge's reasons concerning the duration of the order (which, for convenience, I shall reproduce again at this point):

[2] In this case, I have been presented with two starkly contrasting bodies of evidence. On the one hand, [OP], and on the other hand, [XY] and [EF]. All witness gave extensive evidence and were cross-examined and I had ample opportunity to assess them as witnesses.

[3] I found [XY] and [EF] to be compelling and believable witnesses. There was much similarity in their descriptions of [OP's] treatment of them when they lived with him as a wife. The similarity in their [accounts] was of such a kind that I did not conclude that it was the result of concoction. The details of their evidence which was similar in that regard related to physical abuse, sexual abuse, financial control, verbal abuse, the attitude of [OP] to [ruqyah], the comments about the Arthur Freeman incident. There were also other similarities, both women having met [OP] on an internet site, [XY] meeting him very soon after [OP's] marriage to [EF].

[4] Both of them described a situation where they were forced to undertake domestic drudgery doing all the cooking and cleaning and washing while he worked or napped. Both women describe incidents where they were threatened with death and [OP] would make it look like an accident and to both women he expressed an intense interest in guns and weapons.

375 In OP's submission, despite the gravity of these and other allegations, the judge gave too much weight to the credibility of XY and EF as witnesses and failed properly to apply the Briginshaw test. He emphasised the following passage of Dixon J's famous reasons:[64]

Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.

376 In OP's submission, it was essential that the Briginshaw test be applied rigorously, not only because of the grave nature of the allegations and the consequences of adverse findings for him, but also given that, inter alia:

(a) the allegations by XY and EF were bereft of specificity as to date, time and place;

(d) he had been employed in responsible positions, including with the AFP, the Department of Health and as a psychiatric nurse;

(e) he had raised five daughters as a single father; and

(f) he had a new partner (who was Australian and non-Muslim).

377 In OP's submission, however, the judge's reasons and the conclusions to which she came demonstrate that she cannot have applied the necessary rigour.

378 In Ms Wong's submission, since s 97(2)(a) of the FVPA requires a court to take into account the safety of the protected person as a paramount consideration when making a decision as to the period for which the order is to be in force, that consideration also necessarily requires the court to assess the level and nature of the risk to the protected person's safety.

379 Ms Wong accepted that the Briginshaw standard applies to that statutory task in determining the duration of the order. She also accepted that failure to apply the Briginshaw standard in performing the statutory task can amount to a jurisdictional error.[65]

380 As Ms Wong pointed out, in reaching the conclusion that an order for a further 16 years until the child turned 18 was appropriate, the judge said the following:[66]

[8] ... I accept [XY's] evidence that she has taken no legal steps in relation to the support her daughter is entitled to from [OP] due to a fear of consequence in dealing with him.

[9] In my view, and in light of the evidence that I state that I have accepted, she does require the protection of an intervention order to pursue those legal avenues. Though this will involve contact of some kind until the child is 18 ... I do not accept that the nature of the legal contact will necessarily be of an arm's length obviating any concerns of danger to her.

[10] In my view, the disturbing evidence of [OP's] treatments of both previous wives must raise a concern as to his likely response in the future once [XY] takes actions through the Family Court. Such actions quite likely along the way to lead to the revelation of her whereabouts.

[11] I am satisfied [XY's] daughter has been the subject of family violence of that kind which I found was meted out to her mother whilst pregnant with her. I am therefore satisfied to the requisite degree by which I mean this sliding Briginshaw scale which I accept must be of a higher order due to the seriousness of the allegations that [OP] presents a continuing threat of family violence to [XY] as she seeks the support to which her daughter is entitled until age 18.

381 Thus, in Ms Wong's submission, it is clear - from the tenor of her reasons and her express reference to Briginshaw - that the judge applied the Briginshaw standard when making her findings and assessing the level and nature of risk that OP posed to XY and her daughter.

382 Ms Wong pointed out that it is also apparent, from the earlier parts of the judge's reasons, that her Honour made a number of findings regarding the evidence given by OP, XY and EF and also regarding many of the specific matters to which OP refers. In her submission, the judge's reference to Briginshaw must be taken as meaning her Honour was mindful of the need to apply that standard to those findings. And while Ms Wong conceded that there were several specific allegations that were not covered by the judge in the reasons, she also submitted that a court need not refer to every matter of fact, and it cannot be assumed that her Honour failed to apply the Briginshaw standard to those allegations as well.

383 In my view, there is nothing in this ground. It was not incumbent on the judge to spell out every step of her reasoning process on every disputed fact. But, as it happens, her Honour did expressly refer to Briginshaw towards the end of her reasons. As an experienced judge, and in any event, her Honour can be taken to have applied that standard to all disputed matters involving serious allegations and to the ultimate issues.[67]

Whether Wednesbury unreasonableness and illogicality

384 As I have indicated earlier, in my view, these complaints come closer to success than all others.

385 I think that an FVIO of 18 years' duration was way too long. While it seems that the evidence before the Magistrates' Court was neither as extensive nor perhaps as damning of OP as it was before the judge, it nevertheless strikes me as significant that, with all her experience and expertise in matters of this type, the magistrate considered a two-year order to be sufficient. So far as I can tell, nothing that had occurred in the meantime suggested that there was any greater need for an order than there had been previously. Indeed, if anything, that OP made no contact with XY in the intervening period (other than inadvertently via LinkedIn), and that for about a year there was no FVIO in place (because of the setting aside of the order on the initial appeal), there was a strong argument that the order was no longer necessary.

386 But, of course, that I would have decided the case differently is not to the point. Instead, the question is whether the judge's decision concerning the duration of the order manifests Wednesbury unreasonableness[68] or illogicality or irrationality.[69]

387 Well, in OP's submission, that decision was unreasonable and illogical.

388 By way of example, OP pointed to the following paragraphs in the judge's reasons as demonstrating his point:

[7] I regard [OP's] actions in relation to his first wife and the arrangements for their children following the separation initiated by her to be demonstrative of a continued determination to dominate and control. I regard the emails generated by [OP] following his separation with [XY] to be indicative of a continued attempt by him to assert control over her.

...

[10] In my view, the disturbing evidence of [OP's] treatments of both previous wives must raise a concern as to his likely response in the future once [XY] takes actions through the Family Court. Such actions quite likely along the way to lead to the revelation of her whereabouts.

389 In OP's submission, there was no reasonable or logical basis in the evidence to infer or find that he exhibited control over EF with respect to family law matters. He and EF signed consent orders over several occasions; documents were witnessed by an independent person; and EF made no application to set those orders aside in the several years that followed their signing.

390 Similarly, OP submitted that there was no logical basis to conclude that he was a risk to XY or her child in the future. In his submission, this was particularly so given the absence of any contact between him and XY (except for the inadvertent LinkedIn emails) or her child since the separation and given that EF had not raised any such concerns in the years following their separation, despite engaging in divorce proceedings, intervention order proceedings (against EF) and a document signed by EF stating that there was not any risk of family violence towards her or the children of the relationship.

391 OP also submitted that it was unreasonable for the judge to reason and conclude that the similarity between the stories of both XY and EF was not a result of concoction. In his submission, that neither XY nor EF had ever raised concerns of the type they gave in evidence (such as sexual matters) until after meeting each other suggested quite the opposite. Only after meeting, in OP's submission, did their new stories become identical.

392 (OP also made other claims under this ground, but they have been addressed already under other grounds or are to be addressed in subsequent grounds.)

393 Ms Wong pointed out that a reviewing court will generally not interfere with factual findings of a lower court. However, a reviewing court may intervene where there has been an irrational finding of a jurisdictional fact, including findings of jurisdictional fact that have no basis in evidence.[70]

394 In Ms Wong's submission, putting aside the question whether findings in relation to OP's actions towards EF and his likely response to XY in the future are jurisdictional facts, the judge's approach to and conclusions with respect to these issues cannot be characterised as irrational or having no logical basis in evidence. XY and EF gave extensive evidence and were cross-examined regarding OP's conduct towards them. The judge found them to be compelling witnesses and made findings accordingly.

395 In Ms Wong's submission, the complaint of irrationality or illogicality is no more than an attempt to revisit the merits of the judge's decision, and it should be dismissed in consequence.

396 As for OP's complaint of unreasonableness concerning the duration of the order, Ms Wong submits that it can be characterised as a complaint that the judge did not exercise the statutory power in s 97 of the FVPA reasonably.

397 Again, however, in Ms Wong's submission, OP's arguments reveal no more than a strong disagreement with the judge's decision, and merely seek to review the merits of that decision. Ms Wong referred to her points on the Briginshaw ground and submitted that the judge provided cogent and evidence-based reasons for extending the duration of the order until the child is 18 years old. In her submission, it is certainly not a decision that could be said to lack evident or intelligible justification. Accordingly, this complaint should be dismissed too.

398 Again, in my view, Ms Wong's submissions must be accepted.

399 Of course, 18 years (or, more accurately, an extension of 16 years) is a long time to be subject to an order of this type, especially in view of the evidence of OP's behaviour in the period following his final separation from XY. However, extreme though the order is, and as much as I think a much shorter order would have been sufficient and preferable, in the end, I am not persuaded that the decision is either irrational or illogical or unreasonable in the Wednesbury sense. There was evidence on which a rational decision-maker, exercising the statutory power in s 97 reasonably and logically, could come to the decision at which the judge arrived.

400 At the hearing on 7 November 2019, for the first time in this judicial review proceeding, OP claimed that the judge fell into error by adding XY's child to the FVIO.

401 As the matter developed at the hearing, I understood there to be two possible areas of complaint. The first concerned whether the judge exceeded her jurisdiction in including the child in the order. The second concerned whether the decision was unreasonable in any event. I shall address each in turn.

402 Before turning to the arguments, it is convenient to reproduce the relevant part of the judge's reasons again at this point:[71]

[9] In my view, and in light of the evidence that I state that I have accepted, she does require the protection of an intervention order to pursue those legal avenues. Though this will involve contact of some kind until the child is 18 ... I do not accept that the nature of the legal contact will necessarily be of an arm's length obviating any concerns of danger to her.

[10] In my view, the disturbing evidence of [OP's] treatments of both previous wives must raise a concern as to his likely response in the future once [XY] takes actions through the Family Court. Such actions quite likely along the way to lead to the revelation of her whereabouts.

[11] I am satisfied [XY's] daughter has been the subject of family violence of that kind which I found was meted out to her mother whilst pregnant with her. I am therefore satisfied to the requisite degree by which I mean this sliding Briginshaw scale which I accept must be of a higher order due to the seriousness of the allegations that [OP] presents a continuing threat of family violence to [XY] as she seeks the support to which her daughter is entitled until age 18.

[12] In all the circumstances, therefore I vary the terms of the intervention order to include [XY's] daughter and I order that the intervention order be imposed for a period of 18 years.

403 It is also necessary to set out the applicable provisions of the FVPA.

404 At the time of the orders, the relevant parts of s 74 were in the following terms:

(1) The court may make a final 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.

(2) A final order may be made for more than one affected family member if -

(a) the court is satisfied of the matters set out in subsection (1) in relation to each of the affected family members; or

(b) consent has been given, or the making of the order has not been opposed, in accordance with section 78 by -

(i) all the parties to the proceeding; and

(ii) if the application for the final order was brought with the consent of an affected family member's parent or guardian, that parent or guardian.

Note

See section 77 which provides that the court may, on its own initiative, also make a final order for the protection of children who are family members of the affected family member or respondent.

405 At that time, s 77 provided as follows:[72]

77 Protection of children on court's own initiative

(1) Before making a final order under section 74 or 76, the court must consider whether there are any children who are family members of the affected family member or the respondent who have been subjected to family violence committed by the respondent.

(2) If the court is satisfied, on the balance of probabilities, that a child who is a family member of the affected family member or the respondent has been subjected to family violence committed by the respondent and is likely again to be subjected to family violence committed by the respondent, the court may, on its own initiative -

(a) if the child's need for protection is substantially the same as that of the affected family member - include the child as a protected person in making the order under section 74 or 76; or

(b) otherwise - make a separate final order under section 74 or 76 for the child as a protected person.

(1) If the parties to a proceeding for a final order, or the variation, extension or revocation of a final order, consent to the making of the order or do not oppose the making of the order, the court may make the order -

(a) without being satisfied as to any matter referred to in -

(i) section 74 or 76; or

(ii) in the case of a proceeding for a variation, revocation or extension of a final order, section 100 or 106; and

(b) whether or not the respondent admits to any or all of the particulars of the application.

...

(4) Before making a final order or varying, revoking or extending a final order under subsection (1), the court may conduct a hearing in relation to the particulars of the application if, in the court's opinion, it is in the interests of justice to do so.

(5) A court may refuse to make a final order, or an order varying, revoking or extending a final order, to which the parties to the proceeding have consented if the court believes the order may pose a risk to the safety of one of the parties or a child of the affected family member or respondent.

(6) Section 77 continues to apply in relation to any children of the affected family member or the respondent, whether or not the court decides to make a final order under subsection (1).

(7) Sections 102, 103, 104 and 105 continue to apply in relation to any children of the affected family member or the respondent, whether or not the court decides to make an order varying, revoking or extending a final order under subsection (1).

407 At least initially, I did not understand OP to make any specific submissions on whether the judge's decision was beyond her jurisdiction.

408 Instead, I addressed this question to Ms Wong, who made helpful submissions.

409 Initially, at the hearing on 7 November 2019, Ms Wong submitted that the judge's power to include the child in the order flowed from:

(a) the requirement in s 77(2) of the FVPA to include a child as a protected person if the child's need for protection is substantially the same as that of the AFM; or alternatively

(b) OP's consent to the child being included in the order pursuant to s 74 of the FVPA.

410 On further consideration of ss 74 and 77, however, Ms Wong sought to correct the submissions previously made at the hearing. In her subsequent written submissions, Ms Wong submitted instead that:

(a) the judge may have fallen into error by adding the child to the order pursuant to s 77;

(b) the judge did fall into error in adding the child to the order pursuant to s 74 in the way that she did; and

(c) neither error amounts to a jurisdictional error.

411 Finally, after I had reserved my decision, I invited further submissions from the parties, particularly as there seemed to be some confusion as to which version of the FVPA was applicable. For the purposes of her submissions both at the hearing and in her further written submissions in which she sought to correct her position, it appeared that Ms Wong had relied on the version of the FVPA that came into force on 29 March 2018 (which was in Version 37), instead of the version in force on 22 March 2018 (which was Version 36), which was of course the date on which the judge made her decision and orders.[73]

412 At the outset of her most recent submissions, Ms Wong made it clear that she:

(a) abandoned any reliance on s 77 in relation to the inclusion of the child in the FVIO;

(b) maintained that the child was added to the FVIO pursuant to s 74 by OP's consent or without his opposition;

(c) conceded that an error arose due to the child's not being formally listed as an AFM on the application before she was added to the FVIO; but

(d) submitted that this was a procedural, rather than jurisdictional, error.

413 In developing those most recent concessions and submissions, Ms Wong made the following points.

414 As at 22 March 2018, s 77(2) of the FVPA conferred a discretion on the court to include a child on the final order if satisfied on the balance of probabilities that the child has been subjected to family violence committed by the respondent and is likely again to be subjected to family violence committed by the respondent. In other words, the provision imposed a two-limbed test which required the court to be satisfied, first, that there had been family violence towards the child in the past, and, second, that the child was likely to be subjected to family violence in the future. In this case, the first limb was addressed by the judge's finding that the child had been subjected to family violence of the kind which was meted out to XY whilst pregnant with the child. However, the second limb was not addressed by the judge and there was no finding made regarding the likelihood of the child being subjected to family violence in the future. Therefore, conceded Ms Wong, the legal test under s 77 had not been applied. In the absence of a further finding about the future risk to the child, s 77 could not be used to include the child on the final FVIO.

415 As Ms Wong pointed out, a new s 77 was inserted into the FVPA by s 10 of the Family Violence Protection Amendment Act 2017 (Vic), which came into force on 29 March 2018. In particular, in Version 37 of the FVPA, s 77 was (and, as it happens, still is[74]) in the following terms:[75]

1. Court must make final order for a child if court makes final order for affected family member

(1) This section applies if -

(a) the court makes a final order under section 74 in relation to an affected family member; and

(b) the court is satisfied, on the balance of probabilities, that a child has been subjected to family violence committed by the respondent (whether or not the child is also an affected family member).

(2) Unless the court makes a final order under section 74 by consent, subject to subsection (4), the court must -

(a) if the child's need for protection is substantially the same as that of the affected family member, include the child in the final order as a protected person; or

(b) otherwise, make a separate final order for the child as a protected person.

(3) If the court makes the final order by consent under section 74, and that order does not include the child, subject to subsection (4), the court must make a separate final order for the child as a protected person.

(4) The court is not required under this section to include the child in the final order or to make a separate final order to protect the child if the court is satisfied that it is not necessary to do so to protect the child from family violence committed by the respondent.

416 This amendment was a response to the recommendation of the Royal Commission into Family Violence to establish a rebuttable presumption that, if an applicant for an FVIO has a child who has experienced family violence, that child should be included in the applicant's FVIO or protected by his or her own order.[76] Under the new provision, the court's discretion to decline to include a child on an order is confined to circumstances where the court is satisfied that is not necessary to protect the child from family violence (s 77(4)). The new provision also removes the requirement that there be a finding that the child is likely to be subjected to future violence. However, the more recent version of s 77 has no application to this case as it was not in force at the time the FVIO was made by the judge (on 22 March 2018).

417 Ms Wong then turned to s 74 of the FVPA. Her previous submissions under this provision did not need to be altered, as the terms of s 74 were the same across both Versions 36 and 37 of the FVPA.

418 Ms Wong pointed out that, before the County Court, OP did not expressly consent to, but did not oppose, the child's inclusion on the order. His counsel said, "[I]n principle, he [i.e. OP] has no difficulty with a child being added to the order" and, "[OP] says if you want to put the child on the order, it's a matter for you."

419 Ordinarily, in Ms Wong's submission, where a child is an AFM, this would have been sufficient to allow the court to include the child on a consent order pursuant to s 74(2)(b), provided that the child's parent or guardian also consented or did not oppose. In this case, XY, as the child's mother, must be taken to have consented given that, through her counsel, she urged the inclusion of the child on the order.

420 Ms Wong conceded, however, that a problem arises in this case because the child was not formally listed as an AFM under the application for the order. When the application was made on 14 July 2015, the child had not been born and therefore could not be listed as an AFM.

421 A court's power to make a final order under s 74(2) is limited to those who are AFMs. Paragraph (a) of the definition in s 4 provides that an AFM is "a person subject of an application for [an FVIO] to protect the person or the person's property". Section 43(1)(a) provides that an application for an FVIO must include the information prescribed by the rules made under the FVPA. At the relevant time, those rules were the FVP Rules.[77] Rule 4.03(1)(c) provided that, for the purposes of an application for an FVIO, the information prescribed is, inter alia, the name and date of birth of the AFM.[78] As already indicated, that information could not be included on the original application because the child had not been born at that time.

422 Accordingly, in Ms Wong's submission, the judge fell into error in including the child on the order in circumstances where the child had not been included in the application for the order.

423 In Ms Wong's submission, however, the problem could have been addressed quite easily on the appeal, by which time the child was about two years old. The remedy was simply to order that the original application be amended to include the child as an AFM. In her submission, r 15.03 of the FVP Rules empowered the County Court to do this. Rule 15.03 provides as follows:

15.03 General power of amendment

For the purpose of determining the real question in issue between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document (including an application) in a proceeding be amended or that any party have leave to amend any document in the proceeding.

424 Ms Wong submitted that the error that the judge fell into was essentially procedural - in that her Honour failed to order amendment of the application to add the child as an AFM pursuant to r 15.03 before including the child on a consent order made pursuant to s 74(2)(b). This, she further submitted, was an error in the exercise of jurisdiction, rather than a jurisdictional error.[79]

425 Accordingly, the submission concluded, relief should be denied.

426 In his response to Ms Wong's most recent written submissions on the inclusion of the child in the order, OP made the following points in his written submissions.

427 OP asserts that he consented to a short FVIO vis-à-vis XY. He asserts that his counsel kept advising him that the judge was "demonstrating significant bias and hatred towards him". OP advised his counsel to consent without admissions based on legal advice and to consent in a way that would give as short an order as possible. He asserts that his counsel advised that, as he was seeking a short order, it did not matter as to the inclusion of the child. The concession as to the inclusion of the child on the order was made, OP asserts, because he felt the judge was biased and unfair against him and in the belief that the order may be for a short period only (most of which was already covered as it had been nearly two years since the order was made). OP also asserted that, during the appeal, he "repeatedly asked [his counsel] to withdraw proceedings after [one] hour of day [one]". OP "was not versed in law and was repeatedly being told by [counsel] that he could not withdraw once [it] had started". OP asserts that he "was repeatedly being told that the order could not get worse [than] its current form until day [five] of the [appeal]". OP asserts that he "feels very disadvantaged because he was given legal advice that cause[d] him to be in this situation".

428 OP reiterated his point that he had made no attempt in any way to have any relationship with the child during the period in which there was an order in force or for the one-year period when there was no order in force.

429 OP submitted that he would have been "well within his rights to apply to the Family Court ... and through a mediator to organize contact or attempt a relationship with the child at any stage regardless of an order". Yet, in his submission, this fact was ignored by the judge and counsel for XY in their submissions. OP pointed out that it is now (nearly) the end of 2020 and he still has made no attempt to have anything to do with the child.

430 OP reiterated that he does not believe the child to be his "as the date of conception is inconsistent with the duration of the sexual relationship he had with [XY]".

431 OP submitted that "no family violence occurred to the child and as such the inclusion of the child [in the order] should not [have occurred]". He went on to submit that, "[a]s such, the duration of the order is inappropriate".

432 OP said that he "holds no ill feelings or positive feelings towards the child". Instead, he "has had nothing to do with the child ever and has no opinion about the child". He "only knows of the child's existence but that is all".

433 In OP's submission, the judge's "decision to make an order as to the inclusion of the child as a determining factor for the duration of the FVIO is absurd".

434 It is convenient that I address OP's submission separately.

435 First, in so far as he makes assertions (not amounting to admissions) about the advice of counsel or his instructions to seek leave to abandon to his appeal earlier, I am not prepared to act on those assertions without evidence from counsel. It is also troubling that OP himself has not raised these instructions or this advice in such clear and explicit terms before this time. That said, it is plain that, whatever advice he may have had, OP made a forensic choice to consent to the order without admissions and to decline to oppose the inclusion of the child in the order.

436 Secondly, his other points are those that, in one way or another, he has sought to make previously and which are addressed elsewhere in these reasons and below.

437 Finally, while "absurd" is a strong word, as will be seen, I agree that the judge's reliance on s 77 of the FVPA to support the inclusion of the child in the order, which the judge plainly did, amounted to jurisdictional error and Wednesbury unreasonableness and was illogical and irrational. However, as will be seen, that does not mean that relief will be, or should be, granted.

Discussion - s 77 of the FVPA and jurisdictional error

438 I turn now to a discussion of Ms Wong's submissions under s 77.

439 While Ms Wong abandoned reliance on s 77 in relation to the inclusion of the child on the FVIO, she did so by conceding that the judge did not address, and made no finding in respect of, the second limb of the test in s 77(2). Of course, for OP's purposes, that concession - which, I should add, is plainly correct - is enough to defeat any reliance on s 77 as supporting the inclusion of the child on the order. Indeed, as will be seen, that, in my view, is a jurisdictional error, and the inclusion of the child in the order can be saved only if there is another source of power that was available to support the order (even if not relied on by the judge) and/or there is a discretionary reason to decline the relief OP seeks under this ground.

440 Ms Wong also appeared to proceed on the assumption that it was therefore unnecessary to deal with the judge's reliance on s 77 at all. Again, strictly speaking, that is so. Ms Wong, however, also observed that the first limb of s 77(2) was addressed by the judge's finding that the child had been subjected to family violence of the kind which was meted out to XY whilst pregnant with the child, but without any submission as to whether that too amounted to error of any kind, whether jurisdictional in nature or not.

441 In my view, it is appropriate that I address the judge's reliance on this first limb if for no other reason than to point out that it was, in my view, beyond jurisdiction to do so. In order to expose that reasoning, it becomes necessary to revive the submissions Ms Wong had made earlier in support of the judge's decision under s 77, albeit that those submissions were premised upon the wrong version of s 77. Nevertheless, the point is effectively the same, as both the applicable version of s 77 and the subsequent version upon which Ms Wong originally relied include the notion that the child "has been subjected to family violence committed by the respondent".

442 Ms Wong had submitted that it can be inferred that the judge found that (the equivalent of) the first limb of s 77(2) had been established, as her Honour said that she was satisfied that the child had been subjected to family violence committed by OP whilst XY was pregnant with the child.

443 In those earlier submissions, Ms Wong conceded that the judge may have fallen into error thereby, because it is unclear whether (the equivalent of) the first limb of s 77(2) would extend to family violence committed whilst a child was in utero, given that the term "child" is defined in s 4 as "a person who is under the age of 18 years".

444 However, Ms Wong put an argument that, she submitted, might justify the judge's conclusion. Section 5(1)(b) provides that family violence is "behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a)". Paragraph (a) provides that family violence is 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.

445 In some cases, the submission continued, it is possible that exposure to family violence in utero has an ongoing impact after the child is born. For instance, the family violence against the child's mother could affect the child's development in utero or have an ongoing physical or psychological impact on the mother to which the child is exposed after birth. In such circumstances, Ms Wong submitted, it could be argued that (the equivalent of) the first limb of s 77(2) extends to family violence that is committed whilst the child is in utero, and has ongoing effects to which the child is exposed to after birth.

446 Despite the foregoing, Ms Wong conceded that it is unclear whether the judge fell into error in her interpretation of (the equivalent of) the first limb of s 77(2).

447 However, Ms Wong also submitted that, even if the judge did err in this respect, it is not a jurisdictional error.[80] This issue, she said, was not explored in any detail on the appeal and it is unclear how the judge would have approached (the equivalent of) the first limb of s 77(2) if the submissions made now had been made. The brevity of the judge's consideration and reasons for adding the child to the order reflects the approach taken by the parties to the matter - namely, XY's ostensible consent, and OP's lack of opposition, to including the child on the order.

448 In my view, it is plain that the judge purported to act pursuant to the first limb of s 77(2) (or its later equivalent in s 77(1)(b)) of the FVPA in being satisfied that the child should be included in the order.

449 That said, ingenious though Ms Wong's (earlier) argument may be, I do not accept that, for the purposes of the first limb of s 77(2) (or its later equivalent), it can be said that the child "has been subjected to family violence". While, as I have said, strictly, I need not decide whether there ever could be a case in which a child-to-be in utero may come within the provision, I very much doubt it. Indeed, given that a "child" is "a person who is under the age of 18 years" and that the words "has been subjected to family violence" connote the present tense, I think it is extremely unlikely that the definition of family violence in s 5(1)(b) could extend to behaviour directed at or experienced solely by the mother when the child-to-be is in utero.

450 But, even if Ms Wong were correct to have argued that the family violence against the child's mother could affect the child's development in utero or have an ongoing physical or psychological impact on the mother to which the child is exposed after birth, and even if such a state of affairs could come within the first limb of s 77(2), there was simply no evidence in this case that could support any such finding.

451 In those circumstances, I am satisfied that the judge was in error to include the child in the order in purported reliance on the first limb of s 77(2).

452 Further, as I have said, I accept Ms Wong's concession that the judge neither addressed nor made a finding under the second limb of s 77(2) - namely, that the child "is likely again to be subjected to family violence committed by the respondent". Thus, a second error is established vis-à-vis s 77.

453 Further still, in my view, neither of these errors can be said to be errors within jurisdiction. Instead, the error under the first limb is jurisdictional in nature because it is neither rational nor logical, nor for that matter a reasonable exercise of statutory power, to hold that the provision is engaged when there is not a skerrick of evidence to engage it. Employing the language of the authorities in this area, this aspect of the judge's decision is "so unreasonable that no reasonable repository of the power could have taken the impugned decision or action".[81] Similarly, it is so arbitrary - so wanting in logic or rationality - that this aspect of the decision amounts to "a purported exercise of public power in the absence of the necessary jurisdictional fact".[82]

454 Similarly, to purport to exercise power under s 77(2) without either addressing or making a finding as to whether, pursuant to the second limb, the child "is likely again to be subjected to family violence committed by the respondent" is also neither rational nor logical; nor could it be a reasonable exercise of statutory power. While it need not be decided, this must also be regarded as a failure to have regard to a mandatory relevant consideration.

Discussion - s 74 of the FVPA and discretionary refusal of relief

455 Accordingly, unless there is another head of power supporting this aspect of the FVIO or a discretionary basis for declining to set that aspect of it aside, I think I would be compelled to grant relief. As it happens, however, I am of the opinion that the existence of another head of power and discretionary factors, in combination, compel the denial of relief, despite the jurisdictional errors made by the judge. The steps in my reasoning are these.

456 First, s 119(2) of the FVPA provides that, on an appeal, the County Court may, inter alia:[83]

(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 could have made and exercise any other powers that the Magistrates' Court may have exercised.

457 Secondly, although the child-to-be was merely in utero at the time the police officer filed the original application for an FVIO on behalf of XY, she had been born by the time of the hearing before the Magistrates' Court.

458 Thirdly, given the terms of r 15.03 of the FVP Rules and ss 74(2)(b) and 78(1)(a)(i) and (b) of the FVPA, had there been consent (or no opposition) by OP and consent by XY, the magistrate would have had power to amend the application to include the child as an AFM and then include the child as a protected person under the FVIO.

459 Fourthly, given the terms of s 119(2)(c), on the appeal to the County Court, the judge would have had the same powers.

460 Fifthly, given the submissions made to the judge and her reasons for including the child in the order, as I have already said, I think it must be inferred that her Honour purported to act pursuant to the power in s 77(2). Nothing in her reasons suggested that the judge purported to rely on OP's lack of opposition, XY's consent and s 74(2)(b) to add the child to the order. While counsel for OP mentioned s 74, and that the child was "not on any of the paperwork at this stage", no application was made to amend the original application.

461 Sixthly, in those circumstances, the question becomes whether the inclusion of the child in the order can be supported on the basis of the power in s 74(2)(b), given OP's lack of opposition and XY's consent to such an order, despite the judge's failure to act under that provision and despite the absence of any amendment to the original application.

462 As I have foreshadowed, for the additional reasons that follow, I am satisfied that OP's lack of opposition in the court below to the inclusion of the child provides a basis for holding that the judge's order is supported by s 74(2)(b) and that, as a matter of discretion, that same lack of opposition below denies him relief in the nature of certiorari, despite his about-face in this Court. As will be seen, there are three cascading alternative ways in which the inclusion of the child in the order may be supported. Let me explain.

464 In administrative law, there is no requirement that a decision-maker refer expressly to the statutory source of an order for an order to be made. Instead, it is whether the exercise of power is authorised that matters. As Mortimer J pointed out in Luck v University of Southern Queensland ("Luck"), the "authorities go so far as to recognise that a decision-maker may refer to an incorrect source of power, but if there is an available source of power, the exercise of power will be supported".[84]

465 Justice Mortimer referred to three judgments of the High Court in support of her reasoning: Eastman v Director of Public Prosecutions (ACT);[85] Australian Education Union v Department of Education and Children's Services;[86] and Attorney-General (SA) v Corporation of the City of Adelaide.[87] Those cases, like Luck, all involved administrative decisions, not judicial decisions.

466 However, I see no reason why the same principle cannot apply to a decision of the type made by the judge in this case. This is especially so given that OP did not oppose the order; that his counsel, while unsure as to the judge's power, expressly mentioned s 74 as a source of power; and that XY consented (indeed, through her counsel, she urged the inclusion of the child).

467 In Ms Wong's submission, the only additional thing required to justify this aspect of the order under s 74(2)(b) was an amendment of the original application for the FVIO so as to include the child as an AFM. I should say that I am not so sure that Ms Wong is entirely correct about that. It seems to me to be arguable that the operative part of s 78(1)(a)(i) of the FVPA - namely, that "the court may make the order ... without being satisfied as to any matter referred to in ... [s] 74" - means that, despite s 43(1)(a) of the FVPA and r 4.03(1)(c) of the FVP Rules, the child need not be named as an AFM on the application. Instead, it seems to be enough that there is the required consent or lack of opposition to the inclusion of the child in the order. If that is correct, then that would be sufficient to dispose of this complaint, as all of the other conditions to the making of that order were present.

468 Accordingly, that is the first basis on which the order is supported.

469 If, however, I am wrong about that, and the original application had to be amended, then I am satisfied that there is a second basis on which the order is supported.

470 Given OP's lack of opposition to the inclusion of the child in the FVIO, it can be assumed, reasonably, that, had the parties or the judge been aware of the need to amend the application to include the child as an AFM in order to support the exercise of power under s 74(2)(b), XY would have urged that application, there would have been no opposition by OP to that course, and the judge[88] would have granted the application. To borrow from another branch of the law that seems apposite, equity considers done what ought to be done.[89]

471 Accordingly, in those circumstances, I am satisfied that, despite the jurisdictional error in purporting to include the child in the order pursuant to s 77(2), that aspect of the order was nevertheless within power by virtue of satisfaction of s 74(2) as a result of OP's lack of opposition and XY's consent to it, and an acceptance that XY would have urged, OP would not have opposed, and the judge would have made, the necessary amendment of the original application to include the child as an AFM.

472 If I am wrong in that conclusion, then I turn to the third and final basis for supporting the order - which is that I would refuse relief on discretionary grounds in any event.

473 While I am mindful that views have differed over time as to whether certiorari should be declined on discretionary grounds when the litigant claiming relief is a person directly affected by the decision, the error is jurisdictional in nature and/or the error is manifest - all of which apply here - I think the trend of authority in more recent times is towards an acceptance that certiorari is not granted as of right and that, instead, its grant lies in the discretion of the Court.[90]

474 Perhaps it is wrong, or to go too far, to impute to OP a lack of opposition to an application to amend the original application, especially given the stance he now takes in this Court.[91] While that is as may be, in my opinion, it does not deny the fact that OP's lack of opposition below nevertheless must be an important factor in considering whether relief should be declined on discretionary grounds now, despite his change of stance. It is one thing to challenge the making of an FVIO to which OP has consented (without admissions) when it is alleged, as here, that the proceeding was afflicted with bias or that the contested decision to refuse to allow him to abandon his appeal was afflicted with apprehended bias and other jurisdictional errors. Further, as I have said, if the only basis purportedly capable of supporting the inclusion of the child in the order were the basis upon which the judge acted, but without jurisdiction, then I think relief might still have to be granted, despite OP's lack of opposition below. But, to my way of thinking, it is entirely another to ignore that lack of opposition below for the purposes of considering discretionary refusal of relief when, as here, there was another statutory power for the judge's inclusion of the child in the order.

475 Putting it more directly, in my view, to decline to refuse relief on discretionary grounds would be to ignore the reality that OP did not, in the court below, oppose the inclusion of the child in the order. In circumstances where there was an alternative statutory power supporting the inclusion of the child in the order - indeed, his counsel referred the judge to the very provision in which that statutory power is contained - his lack of opposition to the order below should carry the day, even though the basis on which the judge acted was beyond jurisdiction. Were it otherwise, the administration of justice would be brought into disrepute.

476 While OP is not to be blamed for this at all - indeed, as I have said, OP's counsel even flagged the importance of s 74 and the absence of the child's name on the application and it was XY's counsel who led the judge into error by relying, at the very last minute, on family violence during pregnancy - nevertheless, it does seem overwhelmingly likely that, in view of OP's lack of opposition, the judge would have made the necessary amendment to the original application and acted instead and solely under s 74(2)(b) had she been apprised of those requirements and had counsel for XY not led her astray.

477 Accordingly, this ground for relief must fail too.

Whether Wednesbury unreasonableness or illogicality/irrationality

478 I turn now to an additional complaint of Wednesbury unreasonableness, illogicality or irrationality concerning the inclusion of the child in the order.

479 Understandably, in my view, OP submitted that, because there was no family violence towards the child, there was no basis for including the child in the order. I have treated that submission as extending to the judge's conclusion to the effect that family violence had occurred to the child in utero.

480 For the reasons I have already given, I accept OP's submission in so far as there was no evidence of family violence to the child and no finding that the child was "likely again to be subjected to family violence committed by [OP]". To that extent, this part of the judge's decision justifying the inclusion of the child in the order was afflicted with Wednesbury unreasonableness, irrationality or illogicality.

481 Equally, however, for the reasons I have just given, there was another head of statutory power that supported that aspect of the order. I shall not repeat those reasons here.

482 The result is that, for the same reasons I refused relief on the previous ground concerning the addition of the child to order, I must refuse relief under this ground as well.

Impact of age of child and family violence in utero on length of order?

483 This is an opportune time to consider two additional arguments which occurred to me when drafting these reasons, but which I did not understand either OP or Ms Wong to raise. Given that OP is unrepresented and that his major complaint concerns the length of the FVIO, I consider it appropriate that I at least record my thoughts about these points, albeit that I did not have the benefit of either party's submissions on them.

484 That said, it might be thought that part of OP's most recent submissions concerning the inclusion of the child in the order - namely, that "no family violence occurred to the child and as such the inclusion of the child [in the order] should not [have occurred]" and "[a]s such, the duration of the order is inappropriate" - raise at least one of these points, if only obliquely.

485 It is plain that the judge, at least to some extent, sought to link the duration of the order to the age of XY's child. So much is apparent from the judge's reasons, parts of which, for convenience, I shall reproduce again here:

[8] [OP's] failure to make contact with [XY] thereafter may as easily be attributed to [XY's] capacity to keep her whereabouts unknown as a demonstration by him, as was urged upon me, of his bona fides towards her. I accept [XY's] evidence that she has taken no legal steps in relation to the support her daughter is entitled to from [OP] due to a fear of consequence in dealing with him.

[9] In my view, and in light of the evidence that I state that I have accepted, [XY] does require the protection of an intervention order to pursue those legal avenues. Though this will involve contact of some kind until the child is 18 ... I do not accept that the nature of the legal contact will necessarily be of an arm's length obviating any concerns of danger to her.

[10] In my view, the disturbing evidence of [OP's] treatments of both previous wives must raise a concern as to his likely response in the future once [XY] takes actions through the Family Court. Such actions quite likely along the way to lead to the revelation of her whereabouts.

[11] I am satisfied [XY's] daughter has been the subject of family violence of that kind which I found was meted out to her mother whilst pregnant with her. I am therefore satisfied to the requisite degree by which I mean this sliding Briginshaw scale which I accept must be of a higher order due to the seriousness of the allegations that [OP] presents a continuing threat of family violence to [XY] as she seeks the support to which her daughter is entitled until age 18.

[12] In all the circumstances, therefore I vary the terms of the intervention order to include [XY's] daughter and I order that the intervention order be imposed for a period of 18 years.

486 Reading those reasons alone, it might be thought that the judge intended that the order would expire when the child turns 18 years of age. But, in fact, the child will be aged about 18 years and five months at that time, because she was born in February 2016 and the order expires on 13 July 2034.

Whether order five months longer than judge intended

487 Thus, the first arguable error is that, by the measure of her own reasons for imposing an FVIO of a particular length, the duration of the order exceeded that period by about five months. Put another way, despite her apparent intention to impose an order that would last until the child turns 18, the judge in fact imposed - mistakenly, it seems - an order that will last for another five months or so beyond that point.

488 That said, I think there are at least three possible explanations for this outcome, none of which amounts to a jurisdictional error, if there be error at all.

489 First, the submission of counsel for XY (in the alternative to an indefinite order) was that her client "would seek an order until her child turns 18, which is a [sixteen-year] order". The order of the magistrate was for two years and was due to expire on 13 July 2018. The varied order is to expire on 13 July 2034. Thus, the judge extended the existing order by 16 years to the day. It may be that her Honour was simply acting on what she was told by counsel for XY or that she thought that an extension of 16 years would achieve her aim in approximate terms, which she considered would suffice.

490 Secondly, while it may not be apparent from her reasons, the judge may have considered that a grace period, of sorts, was necessary following the child's eighteenth birthday. For example, her Honour may have thought that a five-month period beyond her birthday would allow both XY and her child time to consider whether they wished to make an application to extend the FVIO.

491 Or, thirdly, the judge may simply have miscalculated. There may be other explanations too.

492 However, it seems to me that all of these explanations, if they amount to errors at all, must be errors within jurisdiction and therefore do not give rise to relief.

493 It might be said that to impose an order that exceeds its apparent purpose and rationale by five months is necessarily afflicted with Wednesbury unreasonableness or illogicality or irrationality, any of which is a form of jurisdictional error. Such an order, after all, involves a restriction on OP's rights to freedom of movement and association, and may also have other adverse implications. Of course, such rights should not be limited any more than they need to be without evidence and good reason.

494 However, while any extra time subject to such an order will be something OP would rather do without, the difference between increasing the duration of an order by 16 years on the one hand, and 15 years and seven months on the other, seems to me to be an order of difference about which this Court should not be concerned on an application for judicial review.

495 I think that magistrates (and judges on appeal) should be allowed a degree of latitude in fixing the duration of an order of this type. I expect it would be a rare thing to see an order fixed or extended in terms other than in round figures - such as 12 months or two years or five years or, as here, 16 years, so as to bring it to 18 years - even though there is a very high likelihood that the order will become unnecessary on a day other than the day of its expiry (whether before or after that day). The limits of human ability and variations in human behaviour mean that predicting when an order of this type may become unnecessary simply cannot be done with the level of accuracy that turns out to align precisely with the existence of the reasons for its imposition.

496 For these reasons, if the judge did in fact mistakenly overshoot the length of the order by five months or so or if her Honour otherwise erred in any of the ways discussed, I am not satisfied that it is either jurisdictional error or in any event the type of error that warrants a grant of relief.

Whether length of order based in part on Wednesbury unreasonableness/illogicality

497 The second arguable error is related to, but different from, the first.

498 It is arguable that, in so far as it can be said that, for the purposes of her decision vis-à-vis the length of the order, the judge factored in the need for protection of the child from family violence, that was totally without basis. This is because, as I have accepted, to have concluded that there was any family violence towards the child-to-be when in utero (there being no time when OP had any contact with the child once born) was legally unreasonable, irrational and/or illogical, as there was no evidence for that conclusion. Similarly, to have purported to act under s 77(2) without making any finding as to the likelihood of family violence towards the child in the future was behaviour afflicted with the same errors. For this purpose, it makes no difference that the inclusion of the child in the order is supported by a separate statutory power (namely, s 74(2)(b)) that does not rely upon any finding concerning family violence to the child, whether in the past or the future, but instead turns upon lack of opposition and/or consent of the relevant parties to that inclusion.

499 However, I think the answer is this. A close reading of the judge's reasons reveals that her Honour considered that, because there would be contact - but not at arm's length - between OP and XY as the latter pursued "legal steps in relation to the support [of] her daughter", which would be ongoing until she turned 18, and because she was concerned about OP's "likely response" once such actions were taken through the Family Court, he would present a continuing threat of family violence to XY "as she seeks the support to which her daughter is entitled until she is 18".

500 Thus, the judge did not rely upon her finding that the child was the subject of family violence in utero (or in the future) in determining the length of the order. Put another way, even if the child were not included in the order, the judge's reasons still would have supported an order that lasted until the child was 18 because of the risk to XY during that period.

501 It follows that the potential point is, in the end, of no substance.

Release of transcript to non-party: Bias or apprehended bias

502 I turn now to the fresh evidence concerning the release of the transcript of the appeal after the orders were made by the judge.

503 Under this ground, OP submitted that, following the appeal, the judge displayed bias or apprehended bias:

(a) by allowing transcript of the appeal to be released directly from her associate to his business rival ZZ, a person unrelated to the appeal entirely;

(b) by causing ZZ to be informed that no suppression orders concerning the appeal were in place without causing him to be to be apprised of the restrictions on publication of FVIO proceedings set out in s 166 of the FVPA; and

(c) by failing to cause transcript of the appeal to be released directly from her associate to OP's solicitor and instead merely directing him to a link.

504 For the purposes of this ground, it will be convenient to set out a chronology of key events.

505 On 14 July 2016, the magistrate made a two-year FVIO against OP in favour of XY (expiring 13 July 2018).

506 On 22 March 2018, the judge varied the FVIO by extending it by 16 years to 13 July 2034 and by adding XY's child to the order.

507 On 5 May 2018, OP's business rival ZZ emailed the County Court seeking "a copy of the judge's decision in [OP v XY] made on 22 March 2018". He cited the case number and the judge's name. In a long rant, ZZ gave his reasons for seeking a copy of the decision. His email included the following allegations and assertions:

(a) OP had illegally used ZZ's registered trademarks, causing harm to his business and reputation, and had ignored his requests to "cease and desist".

(b) Following the judge's decision on 22 March 2018, ZZ received numerous complaints alleging it was he "who had been found guilty ... of sexual and physical violence against two women (as per the judgment)".

(c) Details of the case have been posted elsewhere, including on OP's own Facebook page and the Victoria Legal Aid webpage, including the result being an "IVO" for 18 years and findings against OP.[92]

(d) To counter the damage to his business reputation, ZZ was "forced" to post on his Facebook and elsewhere a statement divorcing himself from the case, denying being found guilty of sexual or physical violence against two women and confirming that OP had been illegally using his trademarks.

(e) On 19 April 2018, OP took out an interim intervention order against ZZ (ex parte). The order included an order that ZZ remove all relevant Facebook posts. As a result, ZZ posited that he was unable to counter this action and its damage to his business and him.

(f) ZZ explained that, at the forthcoming intervention order hearing (on 29 May 2018), he wished to tender a copy of the judgment made on 22 March 2018 so that there would be no dispute about what occurred.

508 On 8 May 2018, the judge's associate emailed ZZ, indicating that she would ask the judge and get back to him.

509 On 11 May 2018, the judge's associate emailed ZZ, attaching the transcript of the appeal, which, she said, the judge had authorised her to send to him. The same day, ZZ acknowledged receipt of the associate's email and thanked her.

510 On 25 May 2018, ZZ emailed the judge's associate again. He asked for the order made on 22 March 2018 (as he was advised that the magistrate would prefer that to transcript). ZZ went on to make further claims about OP.

511 On 29 May 2018, the judge's associate emailed ZZ asking whether he still required final orders and, if so, she would ask the judge whether she consents to these being sent.

512 On 9 September 2018, ZZ emailed the judge's associate asking for confirmation that no appeal had been lodged and that the time to lodge an appeal had expired. ZZ went on to make other allegations about OP and seek further advice about the appeal process.

513 On 12 March 2019, ZZ wrote to the judge and the judge's associate. He repeated much of the history he had asserted in his email of 5 May 2018. He advised that, the previous month, the magistrate hearing the intervention order application by OP against him passed him a copy of a page from an Act and told him that his posting of information about OP and XY's case on his website placed him at risk of a prison sentence for being in contempt of court. ZZ said that he removed the information, although somewhat begrudgingly, it seems, given the tone of his letter. ZZ said that he understood that there may be some form of "suppression rule for the matter of [OP v XY]". He asked for a statement from the judge to the effect that the details of the case were not suppressed or, alternatively, that the judge lift any prior suppression order. ZZ then spent the balance of the letter traducing OP's services and skills in the common field in which their businesses operated.

514 On 13 March 2019, the associate emailed ZZ and advised that the judge had asked her to inform him that "no suppression orders were placed on publication of the proceedings before her Honour in the County Court appeal [of OP v XY]". The associate noted that a copy of the order made was attached to her email, and that he would see that it contained no suppression order.

515 On 11 October 2019, OP's solicitor emailed the judge's associate and advised that he was acting for OP in an "appeal" to this Court in "[OP v XY]". He requested a copy of the transcript of the hearing in the County Court.

516 On 23 October 2019, the associate responded to the solicitor's email. She said that the "process to obtain transcript is detailed here" (and then she set out a link to a website connected with the County Court). She also said, "Unfortunately, I cannot assist you from chambers. Please let me know if you have any further queries."

517 I shall also set out the relevant parts of s 166 of the FVPA, which provided as follows (and have not altered since):

166 Restriction on publication of proceeding in Magistrates' Court

(1) This section applies to -

(a) a proceeding under this Act, other than in the Children's Court; or

(b) an order made under this Act, other than by the Children's Court; or

...

(2) A person must not publish, or cause to be published, a report of the proceeding or about the order that contains -

(a) if a party to or a witness in the proceeding, or a person the subject of the order, is a child -

(i) the locality or any particulars likely to lead to the identification of the particular venue of the court; or

(ii) any particulars likely to lead to the identification of the child or any other person involved in the proceeding, either as a party to the proceeding or as a witness in the proceeding, or the subject of the order -

unless the court orders under section 169 that the locality or particulars may be published; or

(b) if paragraph (a) does not apply - any particulars likely to lead to the identification of any person involved in the proceeding or the subject of the order, unless the court orders under section 169 that the particulars may be published; or

(c) a picture of or including a person concerned in a proceeding for a family violence intervention order or a variation, extension or revocation of a recognised DVO, unless the court orders under section 169 that the picture may be published.

Penalty: In the case of a natural person, 100 penalty units or 2 years imprisonment or both;

In the case of a body corporate - 500 penalty units;

518 OP submitted that, for several reasons, the judge's decision to allow the court, through her associate, to release the transcript of the appeal hearing to ZZ, and subsequent related decisions by her Honour, demonstrated bias or apprehended bias.

519 First, ZZ was not in any way a party to the appeal. Secondly, as is apparent from ZZ's correspondence with the judge's associate, he was OP's business rival, and appeared likely to publish the information in the transcript to others. Thirdly, given the misunderstanding of the process that was apparent from the language used in his correspondence - including the notion that he had been "found guilty in the County Court of sexual and physical violence against two women" - it was obvious that there was a high risk that he would use the information in a misleading way that may do damage to OP's reputation. And yet, fourthly, the judge did not cause ZZ to be disabused of his obvious misunderstanding of the nature of the appeal.

520 Fifthly, the judge did not cause ZZ to be advised of the restrictions on publication set out in s 166 of the FVPA. OP went so far as to submit that the judge may have breached s 166 by publishing information caught by that provision when causing the release of the transcript to ZZ.

521 Sixthly, OP submitted that the transcript was released in violation of the County Court's Practice Note PNCI 4 - 2014 ("Release of Tape-recordings in Civil Proceedings"). The Practice Note requires, inter alia, that there must be "an undertaking in writing, or in court, by the requesting party ... [that] [t]he transcript will not be used for the purpose of broadcast or other publication". This did not occur. I should add that the Practice Note also provides that it remains solely within the discretion of the judge whether or not to grant the request.

522 Seventhly, when ZZ later conveyed to the judge and her associate that he had been told that he may be in contempt of court by publishing information about "[OP v XY]" on his website, and he requested that any suppression order be removed, while the judge caused ZZ to be informed, correctly, that no suppression orders concerning the appeal were in place, her Honour did so without causing him to be to be apprised of the restrictions on publication of FVIO proceedings set out in s 166 of the FVPA.

523 Finally, when OP's solicitor subsequently made a request for the transcript for the purposes of an "appeal" to this Court, unlike the way in which ZZ - the business rival and non-party - had been treated, the judge failed to cause the transcript to be released directly from her associate to OP's solicitor. Instead, he was told by the judge's associate that she could not help, and instead she directed him to a link connected with the County Court.

524 In OP's submission, while this behaviour occurred after the appeal had been decided, it is demonstrative of an adverse actual or apprehended bias against him that must be taken to have been operative at the hearing and infected all aspects of the judge's decision-making.

525 While he did not say so in terms, it would seem to follow that, if this complaint were established, the relief sought would be to set aside the orders varying the duration of the FVIO and including the child in the order, and that an order granting him leave to abandon his appeal should be substituted (or the matter otherwise should be returned to the County Court to make the latter order).

526 While Ms Wong submitted that it is unclear whether s 166 of the FVPA would apply to a court releasing transcript or its order, and that the point need not be decided, she also conceded that "the release of the transcript [to ZZ] was unfortunate in the circumstances". That said, in her submission, I could not be satisfied of judicial bias. There is no evidence that the judge read the emails closely or at all. Nor is there any evidence that the judge (or her associate) was even aware of s 166. It could not be inferred that the judge, by allowing release of the transcript, was attempting deliberately to harm OP or that she had any ill-feeling or carelessness towards him or his rights. As Ms Wong pointed out, the judge sits primarily in criminal cases and would not usually come across FVPA matters. In those circumstances, submitted Ms Wong, the release of the transcript could not be anything more than an honest mistake.

527 As for the Practice Note, Ms Wong pointed out that it relates to the release of tape recordings in civil proceedings, not to transcript in appeals. No such recording was released. The Practice Note is therefore inapplicable. While Ms Wong conceded that it might be said that the release of the transcript was contrary to the spirit of such a Practice Note, she submitted that it is not indicative of actual bias. Again, in her submission, I could not be satisfied that it was anything but an inadvertent error.

528 In Ms Wong's submission, the difference between the judge's responses to requests for the transcript from ZZ on the one hand and OP's solicitor on the other can be explained easily by the following additional facts. On 23 April 2019, OP's solicitor forwarded to the judge's associate information showing that OP was making a formal complaint regarding the judge's release of the transcript to ZZ. It is against that background, submitted Ms Wong, that, when the solicitor, in October 2019, made a request for the transcript, the associate directed him to the court's formal process for requesting the transcript rather than risk falling into the same alleged error about which OP was complaining in respect of the release of transcript to ZZ.

529 Initially, Ms Wong understood OP's complaints under this ground to be confined to actual bias. However, it became apparent during the hearing that OP was alleging apprehended bias as well. In response, Ms Wong simply asked that the substance of her submissions concerning actual bias be taken also as submissions on apprehended bias, and adapted as required. More formally, she added that in her submission, a fair-minded lay observer, armed with all of the foregoing information, would not reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the questions that were tried on the appeal.

530 I should say at the outset that I would add the following point to OP's list of relevant factors in support of his submission. While the appeal was heard in open court, when the request was made by ZZ, no inquiries were made by the court of the parties to the appeal whether they had any objection to the proposed release of the transcript. I should have thought that, putting aside cases in which suppression orders or provisions like s 166 of the FVPA were operative, that would be the usual - and more prudent - course to take if any serious consideration were being given to releasing the transcript via the judge's chambers.

531 As I indicated much earlier in these reasons, however, a party asserting actual bias on the part of a decision-maker carries a heavy onus. The allegation must be "distinctly made and clearly proved".[93]

532 In view of Ms Wong's submissions, and having regard to the material before me, I am not satisfied that the claim of actual bias is clearly proved. Instead, I think it is far more likely that the judge authorised the release of the transcript without fully realising the true relevance of the situation concerning ZZ and without even being aware of s 166 of the FVPA or its potential importance in this case. In my view, the fact that, in response to ZZ's queries about suppression orders, the judge's associate conveyed her Honour's assurance that there were no suppression orders, but failed to mention s 166, tends to prove that neither the associate nor the judge was aware of s 166 and its potential importance.

533 I also accept Ms Wong's submissions about the inapplicability of the Practice Note and the likely explanation for the different way in which the request for transcript by OP's solicitor was handled.

534 All of that said, I have found the claim of apprehended bias more difficult. It seems to me that reasonable minds might be troubled about this series of events concerning the release of the transcript. I expect that some would find it hard to understand that a judge might not be aware of a provision like s 166 and may well be troubled by the release of the transcript, especially in view of ZZ's non-party status, the tone of his correspondence and some of the more striking things he said about OP.

535 While the public is entitled to expect, and I think does receive, a very high standard of rigour from its judicial officers, things can go wrong. That there is an appellate process available is premised, at least in part, on that reality. Judges are human. Like all other human beings, we all make mistakes too. These may be caused by numerous things. We are busy. Judges of the County Court often have little time for reflection (and magistrates often have even less time). Sometimes, things are done in a rush in the name of efficiency and, unfortunately, points are missed in consequence. Further, while some have a more encyclopaedic knowledge of the law than others, none of us knows every provision of every statute or regulation or every relevant decided case in every one of the law's many and varied areas. That is an impossible feat. This is all the more so in areas of the law in which we tend not to specialise. While we do our best to bone up when in unfamiliar (or familiar) territory, mistakes are made.

536 The judge whose decisions are attacked on this application sits primarily in criminal cases, not in FVPA appeals. It is commonplace that, when charged as crimes, breaches of FVIOs are reported in the usual way, as is the concomitant fact that there was an FVIO in place between the accused and the victim, both of whom are usually named in the judge's reasons for decisions, whether they be rulings or a sentence. Thus, it would not be surprising to me if the judge assumed that appeals concerning FVIOs were treated in the same way, or that it did not even occur to her that things might be any different from criminal matters, whether on appeal or at first instance in that court.

537 Sometimes, judges disagree about things as well. The applicability of s 166 of the FVPA may be one of those areas. A quick scan through the AustLII database reveals that there are, in this Court, judgments in appeals or applications for judicial review arising out of proceedings under the FVPA in which the names of the parties and other details have been published. It may be thought that, on the face of it, s 166 would require the anonymisation of the parties and other potentially identifying details in those judgments. But no one would suggest that the judges in those cases deliberately sought to flout s 166. Either they determined that the provision did not apply, or they were not aware of it.

538 It is important to understand that, when considering a claim of apprehended bias, part of the test is to consider the perspective of the fair-minded lay observer who is apprised of the relevant knowledge. In the end, while I can understand how it might look from OP's point of view, I am unpersuaded that a fair-minded lay observer who was fully apprised of all relevant information might reasonably apprehend that the judge did not bring or might not have brought an impartial mind to the resolution of the questions tried in OP's case. On the contrary, I am satisfied that justice should be regarded as being both done and seen to be done.

539 I also accept that Ms Wong's submissions about the inapplicability of the Practice Note and the likely explanation for the different way in which the request for transcript by OP's solicitor was handled should also carry the day when considered through the prism of a claim of apprehended bias.

540 I have also considered these claims of bias and apprehended bias in a cumulative manner with all of OP's other particulars of those claims argued under other grounds. Again, I am not satisfied that the claims are made out on a cumulative basis.

543 OP has put before the Court fresh evidence which, he submits, establishes perjury by the witness EF in her evidence in the County Court, or at least an attempt to mislead that court by failing to disclose information that ought to have been disclosed.

544 I agree with Ms Wong's submissions to the effect that, in this case, the fresh evidence cannot go to any claims of absence of jurisdictional facts, procedural unfairness, or actual or apprehended bias. Nor could that evidence go to a failure to consider relevant considerations. In theory, it might go to legal unreasonableness, but I do not think it can rise to that level in this case.

545 In so far as OP alleges that this evidence shows that EF perjured herself or attempted to mislead the court, it may be capable of going to fraud. As Ms Wong submitted, a decision proven to have been obtained by fraud may be quashed by relief in the nature of certiorari on the basis that there has been a jurisdictional error.[94] Further, this is so even where the fraud is that of a third party.[95] On my understanding, alleged perjury or misleading evidence by EF was the central thrust of OP's submissions arising from the fresh evidence. In those circumstances, I shall address only the fraud ground in detail.

546 Subsequent to the appeal in the County Court, OP was engaged in Family Court proceedings with EF.[96] In the course of those proceedings, OP became aware of reports by a clinical and forensic psychologist and a family consultant in which, he submitted, EF is recorded as saying things inconsistent with evidence she gave in the County Court. OP also relies on correspondence from EF's lawyer and the independent children's lawyer regarding consent orders, as well as Facebook posts by EF, all of which, he submits, are inconsistent with her evidence below.

547 I shall set out a summary of each piece of fresh evidence in turn, along with OP's accompanying submissions.

548 OP pointed to the following passage in the family consultant's report (dated August 2018), where the following was said:

[OP] alleged that [EF] has problematic alcohol abuse issues. [EF] acknowledged that post-separation she was consuming excess alcohol, but advised that this was in the context of it being the first time she'd experienced alcohol in her social circle. She reported consuming too much alcohol due to not seeing the children, but denied ever having engaged in driving under the influence of alcohol. She reported having a heart condition now and does not consume any alcohol.

549 By way of contrast, submitted OP, when several Facebook posts suggesting she had been drinking heavily after their separation were put to her in cross-examination on the appeal, EF said that she was only joking.

550 OP made the following observations and submissions about the psychologist's report (dated February 2019):

(a) The report reveals that EF disclosed that, at the time of the appeal, she was then in an abusive relationship with her husband JK, that he had significant alcohol issues, that he had abused her and that DHHS involvement had occurred as a result of allegations of physical abuse of their daughter. Further, JK was arrested, their children were subject to an intervention order and JK was deported to New Zealand. EF did not disclose these things in her evidence in the County Court appeal.

(b) EF also told the psychologist that she had an issue with "sexual touch from her father on one occasion at least, around six or seven years" and that she "experienced emotional abuse and neglect in her childhood". Again, this was not disclosed by EF in her evidence on the appeal.

(c) Also contrary to her evidence, EF disclosed to the psychologist the following:[97]

At age 16 or 17, [EF] was in Parkville Adolescent Unit and was prescribed Zoloft and Olanzapine due to problems with sleep, with fear about leaving the house and she felt that someone was watching, describing some potential issues with paranoia but she had also been attacked in public. She took Olanzapine, an antipsychotic medication, for a period of six months approximately, and took Zoloft, an antidepressant, for a longer period. She saw a Psychiatrist in Frankston. Her account was that she had a psychotic depressive episode. She was diagnosed with Post Natal Depression following the birth of her first daughter and had some support from a social worker.

(d) EF admitted to the psychologist that she "has seen a psychologist for about six sessions in Melbourne, and on the Gold Coast for about five sessions, and then more recently dialectical behaviour therapy with [another professional] for a period of six months". OP submits that this is directly contrary to her evidence on the appeal. OP also submits that dialectical behaviour therapy is used for the treatment of borderline personality disorder.

(e) The report also records the following:[98]

As indicated, [EF] had psychotic depression at age 16 or 17. She has had problems with depression and anxiety, Post Natal Depression and Panic Disorder. She presents with a history also of personality difficulties with borderline and dependent features, with ongoing Family Court proceedings.

(f) The psychologist opines that EF "can be best described as having personality problems with borderline and dependent features [and that these] factors represent parenting risk factors that are enduring".

(g) The report also records that EF "developed a relationship with the father of the older children but she has ultimately left that relationship, from her account due to issues of control".

551 In OP's submission, in summary, the foregoing information demonstrates that EF committed perjury, or at least misled the County Court, in the following ways:

(a) by failing fully to disclose her history with her current partner, including that it was a violent relationship;

(b) by her outright denial of the psychotic aspects of her depression and mental illness;

(c) by failing to disclose her personality disorder;

(d) by giving a different version of events regarding the allegations of abuse by OP; and

(e) by failing to disclose that she had been treated for personality disorder and for issues other than depression and "some anxiety".

552 OP referred to Facebook posts by EF which, in his submission, also contradict her evidence in the County Court.

(a) First, OP points to posts in July, August and September 2019 that, in his submission, suggest that EF had been repeatedly drinking alcohol to excess.

(b) Secondly, OP also points to posts in October 2019 that, in his submission, suggest that EF had been admitted to, and then released from, a psychiatric hospital.

553 Finally, OP relied on the following parts of the correspondence arising from the family law proceedings between EF and him:

(a) On 11 November 2019, EF's solicitor sent a letter to the independent children's lawyer and OP's solicitor proposing a resolution of the matter on the basis that OP have sole parental responsibility for the children and that they live with him, with EF being permitted to send cards and letters.

(b) On 21 November 2019, the independent children's lawyer sent a letter to the Family Court and OP advising that:

The parties have agreed to finalise all matters by way of consent orders. The consent orders reflect the current status quo where no time spent is taking place. This is a matter where the mother has not spent time with the children for some years, save for some recent supervised time which has not proceeded well.

(c) An annexure to the application for consent orders was a form in which EF certified that the children were not at risk from OP.

(d) On 20 December 2019, the Family Court issued consent orders granting OP sole parental responsibility for the children.

554 In OP's submission, these documents evidence further possible perjury or misleading evidence by EF.

555 He also submits that, if EF's evidence (on the appeal) of family violence by OP were true, she would not, as a mother, consent to OP having sole care of the children or state that they were not at risk of family violence from him.

556 Finally, OP submits that EF's ultimate stance in the Family Court also suggests that her evidence - to the effect that OP coerced or manipulated her into signing consent orders in 2012 - was false.

557 In Ms Wong's submission, a reviewing court must be careful not to find fraud unless it is distinctly pleaded and proved[99] on the balance of probabilities with due regard to the test in Briginshaw. It is insufficient for the fresh evidence to tend to establish there was fraud. A judgment can be set aside on the ground of fraud only if the reviewing court makes an affirmative finding of fraud.[100]

558 Further, even if fraud is proven, it will not necessarily vitiate a judgment. Except in very exceptional cases, fraud constituted by perjury by a witness is not a sufficient ground for setting aside a judgment.[101] The precept engaged has been the public interest in finality of litigation.[102] In Monroe v Schneider Associated (Inc) v No 1 Raberem Pty Ltd (No 2), the Full Court of the Federal Court said that the stringent principles established by the authorities confine the jurisdiction to set aside a judgment on the ground of fraud to the following circumstances:[103]

(a) First, the evidence of fraud has been newly discovered since the trial.

(b) Secondly, the evidence could not have been found by the time of the trial by exercise of reasonable diligence.

(c) Thirdly, the evidence is so material that its production at the trial would probably have affected the outcome.

(d) Fourthly, when the fraud charge consists of perjury, then the evidence must be so strong that it would reasonably be expected to be decisive at a rehearing, and if unanswered must have that result.

(e) Fifthly, the fraud must be directly material to the judgment. Evidence going to a collateral issue, such as the credit of witnesses who gave evidence and were cross-examined at the trial, may well lack the necessary materiality, given the reluctance of the courts to interfere only on the grounds of perjury.

559 I turn now to Ms Wong's submissions concerning each piece of the fresh evidence, commencing with the report of the family consultant.

560 It will be remembered that reliance was placed by OP on EF's admission to the family consultant that "post-separation she was consuming excess alcohol", which was to be contrasted with her evidence of denying excessive drinking. Ms Wong pointed out the following. First, in her evidence in the County Court, EF did not deny drinking but said that the appearance of excessive drinking created by the Facebook posts was only a joke. Secondly, however, she also conceded, "Sometimes, I would drink a lot, at one point." Thus, in Ms Wong's submission, EF's evidence and her account to the family consultant are not necessarily inconsistent.

561 Ms Wong also submitted that, even if there were to be an affirmative finding that EF had committed perjury in relation to her alcohol use, it could not be reasonably expected to be decisive at a rehearing or compel a finding in OP's favour if left unanswered. OP's case on the appeal was that he restricted EF's access to the children after their separation not because he was controlling but because she drank heavily, and that her alcohol use undermined the credibility of her account of events post-separation. But, submitted Ms Wong, as the judge below observed, the issue of drinking cuts both ways. The loss of her children could have driven EF to drink excessively, or she did not have access to her children because of the drinking. In those circumstances, submitted Ms Wong, the evidence could not be said to be reasonably decisive at a rehearing.

562 In Ms Wong's submission, none of the following pieces of information taken from the psychologist's report, when set against EF's evidence on the appeal, is capable of proving that she perjured herself:

(a) failing fully to disclose her history with her current partner, including that it was a violent relationship;

(b) failing to disclose her personality disorder; and

(c) failing to disclose that she had been treated for personality disorder and for issues other than depression and "some anxiety".

563 In the County Court, EF was not asked any questions and did not give any evidence about being in a violent relationship with JK, or about suffering from and being treated for a personality disorder. Thus, submitted Ms Wong, EF did not make any false statements about these matters.

564 As for OP's submission that the psychologist's report proves that EF gave a different version of events regarding the allegations of abuse by him, Ms Wong submits that he is simply wrong: there is no such inconsistency.

565 Ms Wong conceded, however, that, when set against her outright denial, in evidence, of the psychotic aspects of her depression and mental illness, EF's account to the psychologist appears to be inconsistent and arguably has a tendency to prove that she committed perjury.

566 That said, submitted Ms Wong, it is not clear, from the report, whether the psychologist is recounting what EF said about psychosis and the like or whether he is offering an opinion based upon her description of the symptoms that she recounted. Further, the inconsistency at most points to potential perjury; it does not prove the perjury. There is no evidence before this Court that proves that EF's evidence in the County Court was false (for example, medical records of her diagnosis and treatment), other than the account recorded in the psychologist's report (if it be EF's account). Further, a conversation with EF during an assessment in January 2019 appears to be the only source of information for the statements in the psychologist's report that EF described "some potential issues with paranoia" and that "[h]er account was that she had a psychotic depressive episode". Neither the psychologist nor EF has been made available for cross-examination in this Court regarding that conversation. Accordingly, only limited weight can be given in these proceedings to those statements in the psychologist's report.

567 In Ms Wong's submission, even if this Court made an affirmative finding that EF had committed perjury in her evidence, this would not be sufficient to vitiate the County Court's judgment. The primary factual issues to be determined on the appeal concerned the family violence perpetrated by OP towards his former partners, both during the relationship and after separation. Evidence regarding EF's mental health issues when she was 16 or 17 years old was not directly material to those issues when she was about 30, which was her age at the time of the breakup of her relationship with OP.

568 Finally, in Ms Wong's submission, the psychologist's report does not undermine EF's credibility in relation to the primary factual issues to a degree that it would be decisive at a rehearing; nor does it compel a finding in OP's favour if left unanswered.

569 In Ms Wong's submission, for several reasons, the Facebook posts in October 2019 suggesting that EF had been admitted to, and then released from, a psychiatric hospital are inadmissible for the purposes of establishing fraud.

570 In the County Court, EF was cross-examined about her mental health. Her evidence was to the effect that she began having problems with anxiety after she separated from OP in 2012. She also said she had depression throughout their marriage, but that it did not have paranoid features. At the start of the relationship (when she was 17 years old), she was taking antidepressants and an antipsychotic called Olanzapine, but it was not for the purpose of an antipsychotic. She stopped taking Olanzapine at the time of her first pregnancy.

571 In Ms Wong's submission, the relevance of EF's mental health history was not expressly identified in the County Court. Nor was it referred to in final submissions by counsel for OP. At its highest, it was a collateral issue going to EF's credibility or reliability as a witness. EF's evidence that she suffered from depression at the start of her relationship (when she was 17 years old) appears inconsistent with OP's evidence that she was diagnosed with schizophrenia at the age of 17.

572 In any event, submitted Ms Wong, these Facebook posts are incapable of proving that EF's evidence about her mental health is tainted by perjury. The mere fact that she was an inpatient at a psychiatric unit in October 2019 does not to prove that she lied in evidence in February 2018 about her mental health, particularly about her mental health during her relationship with OP between 1999 and 2012. This Facebook post is therefore irrelevant and inadmissible for the purpose of establishing the ground of fraud.

573 Ms Wong submitted that, even if fraud were established in relation to EF's evidence about her mental health, it would not have the materiality required to vitiate the judgment. The primary factual issues to be determined on the appeal concerned the family violence perpetrated by OP towards his ex-wives, both during the relationship and after separation. Evidence regarding EF's mental health was not directly material to those issues. At most, the difference between EF and OP's evidence about her mental health is a collateral issue that goes to her credit only.

574 As Ms Wong conceded, it can be assumed that some of the Facebook posts by EF from 2019 indicate that, at the times of the posts, EF was at various licensed venues and that the references to drinking alcohol, hangovers and getting drunk indicate that she had been drinking on those occasions.

575 In Ms Wong's submission, however, Facebook posts alluding to EF's alcohol use in 2019 are simply incapable of proving that she lied in the County Court about her alcohol use in 2012. EF has not given any evidence about whether the 2019 Facebook posts accurately depict the extent of her alcohol use. Even if EF abused alcohol in 2019, this could have only indirect relevance to whether she abused alcohol in 2012. The 2019 Facebook posts alluding to alcohol use are therefore irrelevant and inadmissible for the purpose of establishing the ground of fraud.

576 In so far as some indirect use may be made of the 2019 Facebook posts about alcohol, Ms Wong submitted that it was important to understand the following things. First, in the County Court, EF was cross-examined about her alcohol use in the period following her separation from OP in 2012. She was questioned about a number of her Facebook posts from September and October 2012 relating to alcohol use. As we have seen, EF maintained that the Facebook posts were a joke to her friends, that she was not drinking as much as the Facebook posts might suggest, and that she never saw the children after drinking.

577 Secondly, EF alleged that OP had prevented her from seeing the children. Her alcohol use became relevant because OP argued that he restricted EF's access to the children after their separation not because he was controlling but because she drank heavily, and that her alcohol use undermined the credibility of her account of events post-separation.

578 Thirdly, in her reasons, the judge said, "I regard [OP's] actions in relation to his first wife and the arrangements for their children following the separation initiated by her to be demonstrative of a continued determination to dominate and control." There was no specific finding regarding EF's level of alcohol consumption in 2012. However, as Ms Wong pointed out when addressing the family consultant's report, in the course of discussions with counsel, the judge observed that the issue of drinking can "cut both ways, that the loss of her access to her children could have driven her to that situation or she does not have access to the children because she's drinking. It can be either." OP's counsel agreed with that observation.

579 In those circumstances, the more recent posts regarding alcohol use are of no moment.

580 As for the correspondence in family law proceedings, Ms Wong made the following points.

581 In the County Court, EF gave evidence of the circumstances around the consent orders in 2012 that gave OP sole parental responsibility for their children. In cross-examination, EF said that she signed all the documents relating to the children on one occasion at a McDonald's restaurant but did not know the exact date. She was not seeing the children at the time. OP allowed her to see the children if she signed the documents. On that occasion, EF was allowed to see the children, but then she had to sign the documents. She did not have the opportunity to read each document before she signed them. OP explained to her what the documents were about. He told her that they were just an outline of their circumstances at the time, with the children living with him in one place and her living in another, and that she could see the children whenever she wanted. EF believed that this was a temporary arrangement. Her mental state was not so great at the time. EF had become a bit anxious and upset about not being able to see the children.

582 It is apparent, from the judge's reasons, submitted Ms Wong, that her Honour regarded EF's evidence concerning the circumstances of the 2012 consent orders as relevant to establish a pattern of controlling behaviour by OP towards his former partners following separation.

583 In Ms Wong's submission, the fact that EF consented to orders in 2019 does not demonstrate that she lied in the County Court about the circumstances surrounding the 2012 consent orders. There are many reasons why EF may have consented to orders giving OP sole parental responsibility in November 2019. There is no evidence that EF's reasons for consenting to the orders in 2019 are connected in any way to the circumstances or reasons behind the 2012 orders. Thus, in Ms Wong's submission, the 2019 correspondence regarding consent orders is irrelevant and therefore inadmissible for the purpose of establishing the ground of fraud.

584 Ms Wong also addressed OP's assertion that the 2019 consent orders prove that EF made false allegations about family violence during their relationship between 1999 and 2012. In Ms Wong's submission, those orders are irrelevant and inadmissible for this purpose as well. The 2019 consent orders cannot be construed as an admission by EF that family violence did not occur between 1999 and 2012.

585 Ms Wong then turned to OP's submissions concerning EF's behaviour in signing an annexure to the 2019 consent orders stating that the children were not at risk of family violence from him. It will be remembered that OP submitted that, if the allegations of family violence made by EF were true, then she would not sign a document stating that the children were not at risk of family violence from him.

586 But Ms Wong submits that this inference is not open, for two reasons. First, whether or not OP committed family violence towards his and EF's children had limited relevance to the County Court's decision about the duration of the order to protect XY and her child. OP's alleged family violence towards the children of EF was not referred to in submissions by either party before that court; nor did the judge make any reference to that issue in her reasons. Secondly, Ms Wong submitted that, in any event, a statement from EF that the children were not at risk of family violence in 2019 is not an admission that the children were not previously subjected to family violence prior to their separation in 2012, or that there is no future risk to the children.

587 In his submissions dated 19 February 2020, OP said that, if Ms Wong challenged his claim about EF's mental health arising from the Facebook post from October 2019, he would be seeking leave to apply for a subpoena for the mental health records at the relevant psychiatric unit as to the cause for the admission and that he would intend to use that as evidence.

588 Ms Wong opposed any leave being granted to OP to file any further submissions or materials in this proceeding, for three reasons. First, as already argued, EF's mental health condition in 2019 is irrelevant to these proceedings. Secondly, OP had been given ample opportunity to present his case already. Thirdly, there must be finality in respect of this application.

589 I agree. Enough is enough. While I cannot know what a subpoena to the psychiatric unit may produce, such material is likely to have no (or very little) relevance to this application; OP has been given ample opportunity to file material previously; and there must be finality in this matter. The case will be determined on the materials that have been filed thus far.

590 As for the substance of the arguments based on the fresh evidence that has been filed by OP, in short, I am not satisfied that any of that evidence establishes perjury by EF. Alternatively, even if I am wrong in that assessment, and that the evidence does establish perjury, or at least tends to do so, I am not satisfied that it is of sufficient materiality to warrant setting aside the judge's orders on an application for judicial review.

591 Perhaps the clearest inconsistency is between EF's denial (in the County Court) that the antipsychotic medication she was prescribed at 17 was not for antipsychotic purposes and her apparent concession (to the psychologist in 2019) that she "had a psychotic depressive episode". While that inconsistency, when coupled with what appears (from her Facebook post in October 2019) to be an admission to a psychiatric unit, may undermine her credibility, and in turn enhance OP's credibility (at least to the extent that he gave evidence that he believed she was suffering psychotic symptoms in 2017), it is difficult to see how that might have materially altered the judge's findings on the principal issues, including whether and, if so, to what extent OP perpetrated family violence against XY and the risk of his doing so in the future.

592 The same is true of the evidence concerning EF's alcohol consumption. Let it be assumed that the remarks in the family consultant's report of August 2018 and EF's Facebook posts in 2019 combined to portray a person who was drinking excessively both in 2019 and back at the time of her separation from OP. Let it also be assumed that, in her evidence in the County Court, EF lied about her level of drinking or at least sought to minimise it in a misleading way. Again, while that may have undermined EF's credibility, and in turn have enhanced OP's credibility, I still find it difficult to see how that might have materially altered the judge's findings on the principal issues in dispute.

593 Finally, there is the correspondence in the family law proceedings subsequent to the County Court appeal. In short, I do not think that it should be concluded that, just because EF may have accepted in 2019 that her children were not at risk of family violence from OP at that time, or just because she consented to orders giving him sole care of the children in 2019, does not mean that her evidence in the County Court about his acts of family violence during their relationship from 2000 to 2012 or his manipulation of her into signing consent orders following the breakdown of that relationship is not true or is necessarily to be doubted.

594 For these reasons, I am not satisfied that the fresh evidence is of sufficient weight or materiality to the issues upon which the judge's conclusions turned to warrant setting aside her orders on the basis of perjury or fraud.

595 I should add, however, that none of the foregoing denies the fact that this fresh evidence might provide fertile ground for cross-examination of EF upon any application for revocation or variation of the order. If OP were to make any such application, it would be a matter for the court hearing that application as to whether such evidence might be permitted to be led or used in cross-examination of EF, were she to be a witness again.

596 Before turning to my ultimate conclusion on this application, I should address a preliminary question.

597 Given that OP's originating motion was filed about five months out of time, he requires an extension of time to bring this application for judicial review. OP sought to explain the delay in an affidavit and in his submissions. It is unnecessary to go into the detail of those explanations here. Suffice it say that, collectively, they seem to me to be plausible reasons for the delay.

598 Initially, XY opposed the application to extend the time for bringing this application. On the second day of the hearing, however, Ms Wong advised that she no longer pressed that issue.

599 I will grant the application for an extension of time. I am satisfied that a combination of matters establishes the necessary special circumstances[104] for doing so. Those matters include OP's explanations for the delay, XY's lack of opposition to the application and the fact that some of OP's complaints were at least reasonably arguable.

600 However, since, in the end, none of the grounds for relief has been established (albeit partly for discretionary reasons in one case), I must dismiss OP's application for judicial review.

(1) the application for extension of time be granted; and

(2) the application for judicial review be dismissed.

602 While I shall hear the parties on costs if they so desire, my preliminary view is that, despite XY's success in defending this application, there should be no order for costs. There are several reasons that, in combination, incline me to that view.

603 First, usually, costs are not awarded in family violence matters, at least when heard at first instance in the Magistrates' Court or on appeal to the County Court. Section 154(1) of the FVPA provides that "[e]ach party to a proceeding for [an FVIO] under [the FVPA] must bear the party's own costs of the proceeding". While this is an application for judicial review and may not be regarded as "a proceeding for [an FVIO] under [the FVPA]", I think the general rule that applies in the lower courts should have some relevance to the discretionary decision as to costs even on an application for judicial review.

604 Secondly, s 154(3)(a) relevantly provides that, despite subsection (1), "the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case". I am not aware of any exceptional circumstances that would warrant a departure from the general rule in favour of XY.

605 Thirdly, however, it was XY's eleventh-hour production of EF's statement - in the midst of OP's cross-examination - immediately after lunch on the second day of the appeal that added substantially to the hearing time in the County Court. The afternoon of that second day was lost, as the matter was adjourned off to allow OP's counsel time to take instructions. Then, on the third day, the morning was taken up with submissions and rulings as to the admissibility of EF's evidence and the splitting of XY's case. EF's evidence took up most of the balance of the third day and a good part of the fourth day. The evidence of GH and XY's further evidence took up the balance of the fourth day. The fifth day was taken up with the application to abandon the appeal, the submissions as to the duration of the order and inclusion of the child in the order, and the judge's decisions and orders. While it is difficult to be certain about this, I think that it is likely that, absent EF's evidence, this case would have concluded in two to three days. A conservative estimate is that the late introduction of EF into the case added about two days' worth of hearing time and, I would expect, another day of preparation in the interim.

606 I do not understand that any application for costs was made by either party in the County Court. Whether or not OP might have had an argument for a finding of exceptional circumstances that justified a partial costs order in his favour need not be determined now. However, the foregoing estimates do show that as much as two hearing days and another day of preparation were likely to have been added to the appeal by reason of XY's production of EF's statement at the eleventh hour. It will be remembered that this was a statement that XY had had in her possession since prior to the hearing in the Magistrates' Court and yet - incredibly, in my view - had seen fit to wait until the last minute to disclose it. Had the statement been disclosed in a sensible and timely manner, there may have been a good chance that the appeal would not have proceeded at all.

607 Fifthly, while I understand that quite a bit of work has gone into this case by XY's lawyers, not all of that should be sheeted home to OP. True it is that, as well as appearing on two separate hearing days, Ms Wong has provided at least five sets of very helpful written submissions. No doubt, a substantial amount of time and effort has also gone into the preparation of this matter out of court. There are, of course, the pre-hearing steps as well. But some portion of the two hearing days and the additional submissions was prompted by questions from me as part of my role in ensuring that OP's case was adequately presented. The fifth set of submissions was required, in part, as a result of Ms Wong's reliance on the wrong version of the FVPA. It would not be fair to apportion all of that work to OP's application.

608 Finally, it could not be said that OP's application was wholly without merit. On the contrary, as I have said, while OP failed to clear the very high hurdle of judicial review, I think the judge's refusal of the application to abandon his appeal was surprising. An even closer-run thing was whether legal unreasonableness was established in respect of the duration of the order. Also, I have held that the basis on which the judge purported to include the child in the order was beyond jurisdiction. That part of the order was saved only by other factors. One can also see how OP might have been troubled that the judge allowed the release of the transcript of the hearing to his business rival ZZ and that, when queried about whether there was a suppression order in place, her Honour failed to mention s 166 of the FVPA.

609 Thus, I think it is clear that, when the foregoing matters are all weighed in the balance, there is a strong argument for declining to order costs against OP and in XY's favour, despite her ultimate success in this Court. Instead, as I say, my present thoughts are that each party should bear his or her own costs.

610 That said, if, after considering these reasons, either party wishes to argue to the contrary, then I shall receive that argument in writing, at least in the first instance.

611 Finally, despite the dismissal of this application, all is not necessarily lost for OP. As I mentioned in the overview to these reasons, OP potentially does have an alternative remedy available to him. He may apply for revocation or variation of the FVIO.[105] By way of example, a variation could include a reduction in the duration of the order.

612 While the fresh evidence that OP put before this Court has not been sufficient to cause his application for judicial review to succeed, it seems plain enough that at least some of that evidence would provide more than a sufficient basis to grant leave to make such an application.[106] Of course, as I mentioned a little earlier, whether any such fresh evidence might be admissible, and its importance, would be matters for the court hearing the application.

613 I think there is an even more important basis for such an application. It is now more than five years since the original application by XY for an FVIO was made. Barring a period of about twelve months when the final FVIO was set aside and reinstated, OP has been subject to either an interim FVIO or a final FVIO in favour of XY since soon after his separation from her. The only evidence of a suggested breach of any such order in the period up to the hearing of the appeal was the inadvertent sending of an email or two via LinkedIn. If it turns out that there has been no other contact in the interim, I dare say that OP would have a powerful case for the revocation of the FVIO.

614 I hasten to add that, in offering the foregoing, I am still conscious of (what I presume still to be) the position of XY. Indeed, I am reminded of the famous remarks of Rose Fitzgerald Kennedy:

It is sometimes said that "time heals all wounds". I do not agree. The wounds remain. In time, the mind, protecting its sanity, covers them with scar tissue and the pain lessens. But it is never gone.

615 That said, while she must have had enormous pride and many great joys in her long and privileged life,[107] sadly, Mrs Kennedy's wounds were so deep - resulting, as they did, from such grave and profound tragedies - that her pain simply had to be everlasting.

616 None of this is to say that XY would not be entitled to maintain her belief, even over five years on, about the need for an FVIO against OP. On the factual findings made by the judge, the more extreme aspects of OP's behaviour are likely to be seared into XY's memory for as long as she lives. But, if it be true that there has been no meaningful contact over these past years, then, even if XY's thoughts remain the same, it would seem unnecessary and unfair to maintain an FVIO against OP. Thus, while time may not have healed XY's wounds, its further passage may well have proved the very case that OP ultimately sought to make in the court below.

[1] While the nature of the appeal to the County Court is described, in s 119 of the Family Violence Protection Act 2008 (Vic), as being "by way of a rehearing", it is in fact a de novo rehearing (YY v XY & Anor [2013] VSC 743 at [45] (per Cavanough J)), albeit the magistrate's orders below need not be set aside.

[2] The County Court, as the second defendant, has made a submitting appearance in the usual way.

[3] The names of the parties and witnesses to this proceeding, and to the earlier proceedings in the Magistrates' Court and the County Court, have been anonymised, pursuant to s 166(2) of the Family Violence Protection Act 2008 (Vic) (see YY v XY & Anor [2013] VSC 743 at [5]- [14] (per Cavanough J)). In order properly to give reasons for my decision, however, it is necessary to refer to some personal particulars of the parties, their children and witnesses (including style of dress, recreational interests and philosophical or religious beliefs) and of their relatives (including occupation). It is also practically impossible to avoid identifying the venue of this Court, but not of the courts below. Accordingly, to the extent required, pursuant to s 169, I allow publication of all information contained in this judgment because I consider it to be in the public interest and just to do so.

[4] Pursuant to s 114 of the Family Violence Protection Act 2008 (Vic).

[5] Pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). While s 120(1) of the Family Violence Protection Act 2008 (Vic) provides that there is no appeal against the decision of the County Court under s 119, s 120(2) provides that nothing in that section prevents an appeal from the County Court on the basis of a jurisdictional error.

[6] See ss 100 and 106 of the Family Violence Protection Act 2008 (Vic).

[7] Austin v Dobbs [2019] VSCA 296 at [88] (per Whelan and Kyrou JJA).

[8] See ss 100, 108 and 109 of the Family Violence Protection Act 2008 (Vic).

[9] See ss 109(2)(a) and (b) of the Family Violence Protection Act 2008 (Vic).

[10] See, in particular, ss 42-45 of the Family Violence Protection Act 2008 (Vic).

[11] Pursuant to ss 74 and 97 of the Family Violence Protection Act 2008 (Vic).

[12] Pursuant to Division 9 of Part 4 of the Family Violence Protection Act 2008 (Vic).

[13] Curiously, while the "Result of Appeal" records that "[t]he orders imposed at the Magistrates' Court of Victoria on 13/07/2016 are set aside, and in their stead the following orders are made", below that, an order is also recorded in these terms: "that this Appeal be STRUCK OUT for want of prosecution by the Respondent [XY]"; and the words "NO FURTHER ORDER" were set out a further line below. Surely the appeal was not struck out but instead was allowed for want of opposition or appearance by XY and the order of the Magistrates' Court was therefore set aside.

[14] It seems that there was also an unresolved suggestion that XY believed that her solicitors had had the statement from an early stage too (Court Book #1 at 311).

[15] For convenience, I have given each paragraph a number.

[16] To speak of "the accused man" is, I think, an unfortunate turn of phrase to use in reasons in a non-criminal context, as here. Of course, OP was accused of all sorts of things by both XY and EF, some of which may have amounted to crimes if alleged in a criminal proceeding and proved beyond reasonable doubt. And yet, in such a context, OP would be entitled to the greater safeguards that come with criminal proceedings and would be far less likely to have had the necessary adverse findings made against him. The judge is of vast experience and expertise in criminal matters and is no doubt used to using such language, and properly so, in such contexts. That said, while it was only a slip of the tongue and while OP made no complaint about it, to describe him as "the accused man" was at least apt to convey the wrong impression and should not have occurred.

[17] See s 59 of the Criminal Procedure Act 2009 (Vic).

[18] Indeed, if a person completes a diversion programme satisfactorily, no plea to the charge is to be taken, the Magistrates' Court must discharge the accused without any finding of guilt, the fact of participation in a diversion programme is not to be treated as a finding of guilt (except for certain specified purposes, none of which apply in the present case) and the fact of participation in a diversion programme and the discharge of the accused is a defence to a later charge for the same offence or a similar offence arising out of the same circumstances (s 59(4) of the Criminal Procedure Act 2009 (Vic)).

[19] Again, for convenience, I have given each paragraph a number.

[20] The child was not born at the time of the application made on behalf of XY, but was born a couple of months before the hearing commenced in the Magistrates' Court.

[21] Again, for convenience, I have given each paragraph a number.

[22] My emphasis in bold and italics; capitalisation in the original.

[23] Emphasis, including capitalisation, in the original.

[24] SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] (per von Doussa J), cited with approval in Bahonko v Moorfields Community & Ors [2012] VSCA 89; (2012) 34 VR 409 at 419[25] (per Warren CJ and Cavanough AJA).

[25] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531[71]-[72] (per Gleeson CJ and Gummow J).

[26] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531[69] (per Gleeson CJ and Gummow J) & 546[127] (per Kirby J).

[27] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344[6] (per Gleeson CJ, McHugh, Gummow and Hayne JJ).

[28] R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 (per Lord Hewart CJ).

[29] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344-345[6] (per Gleeson CJ, McHugh, Gummow and Hayne JJ).

[31] In the sense that her decision is "so unreasonable that no reasonable repository of the power could have taken the impugned decision or action" (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (per Brennan J)).

[32] In either of the senses described in, for example, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 620[23]-621[24] (per Gummow ACJ and Kiefel J) and 644[121]-650[136] (per Crennan and Bell JJ).

[33] See also YY v XY & Anor [2013] VSC 743 at [45] (per Cavanough J).

[34] Since 3 December 2018, these rules have been superseded by the Magistrates' Court (Family Violence Protection) Rules 2018 (Vic).

[35] Ms Wong also referred to the discussion of a similar provision in Guss v Magistrates' Court of Victoria and Another [1998] 2 VR 113 at 121-122 (per Batt J).

[36] Ms Wong referred to Guss v Magistrates' Court of Victoria and Another [1998] 2 VR 113 at 199-120 (per Batt J).

[37] Ms Wong referred to DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 240-241[25] (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at 188[23] (per Brennan CJ).

[38] Ms Wong referred to Jackson v Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612 at 623 (per Deane J).

[39] See ss 100, 108 and 109 of the Family Violence Protection Act 2008 (Vic).

[40] See s 109 of the Family Violence Protection Act 2008 (Vic).

[41] See ss 100 and 106 of the Family Violence Protection Act 2008 (Vic).

[42] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (per Mason J).

[43] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 121[101] (per McHugh J).

[44] West v Creasey & Anor [2000] VSCA 80 at [17]- [18] (per Buchanan JA).

[45] Such as in s 256(3) of the Criminal Procedure Act 2009 (Vic).

[46] Wainoho v New South Wales (2011) 243 CLR 181 at 213[54] (per French CJ and Kiefel J).

[47] Wainoho v New South Wales (2011) 243 CLR 181 at 215[56] (per French CJ and Kiefel J).

[48] Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38] (per Ashley JA, with whom Warren CJ and Nettle JA agreed), quoted with approval in Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53 at [31] (per Redlich, Kyrou and McLeish JJA).

[49] Fleming v The Queen (1998) 197 CLR 250 at 260[22] (per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).

[50] Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 (per Asprey JA), cited in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at 183 [129] (per Hayne J) and Police Federation of Australia v Nixon [2011] FCAFC 161; (2011) 198 FCR 267 at 284[67] (per Lander, Gilmour and Gordon JJ).

[52] My emphasis (other than in the heading).

[53] YY v XY & Anor [2013] VSC 743 at [109]- [110] (per Cavanough J) (footnote omitted).

[54] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (per Mason J).

[55] Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375 (per Deane J).

[56] In Ms Wong's submission, the reasoning of McHugh, Gummow and Hayne JJ, in their joint judgment in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 352[87]-353[92], provides an illustration of the application of this principle. While I found Ms Wong's expression of the point to be a little confusing, in the end, I understood her point to be this. In determining whether to grant a protection visa, the mandatory consideration was whether the claimant had a well-founded fear of persecution because of membership (in that case) of a particular ethnic clan. The details of the claimant's story were permissive, but not mandatory, considerations; and the tribunal could disregard her claims that attacks against her gave rise to a well-founded fear of persecution if it made a finding at a higher level of generality that the clan in question was not targeting the claimant's clan.

[57] YY v XY & Anor [2013] VSC 743 at [109]- [110] (per Cavanough J).

[58] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 348[74].

[59] Ms Wong submitted that, for example, it is an error of law for a decision-maker to fail to consider at all the way in which a party puts its case (Ma v FCT [1992] FCA 359; (1992) 37 FCR 225 at 231 (per Burchett J)) or to fail to consider submissions of substance which, if accepted, are capable of affecting the outcome of a case (Comcare Australia v Rowe [2002] FCA 1034; (2002) 35 AAR 410 at 412[12] (per Merkel J)).

[60] Ms Wong conceded that, hypothetically, failure to consider an interim FVIO might lead to a decision that is unreasonable in that it lacks any plausible justification (Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332), but submitted that that does not arise in this case for reasons that follow.

[61] As indicated earlier, Victoria Police did not take part in the appeal before the County Court. Counsel's submissions on behalf of XY were set out earlier.

[62] Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375 (per Deane J).

[63] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[64] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362 (per Dixon J) (my emphasis).

[65] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 196-197[64] (per Gageler J).

[66] Again, for convenience, I shall reproduce those passages of the judge's reasons at this point.

[67] I should add that, in considering all aspects of OP's complaints that touch upon the judge's reasons for her decisions, including the present complaint, I have had regard to the recent decision of the Court of Appeal in Makeham v Sheppard [2020] VSCA 242 (Priest, Kyrou and Weinberg JJA). While that matter concerned the reasons a magistrate was required to give in a criminal matter, the Court of Appeal provided helpful references to the general requirements concerning judicial reasons.

[68] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (per Brennan J).

[69] In either of the senses described in, for example, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 620[23]-621[24] (per Gummow ACJ and Kiefel J) and 644[121]-650[136] (per Crennan and Bell JJ).

[70] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 620[23]-621[24] (per Gummow ACJ and Kiefel J).

[73] As of 29 March 2018, the note to s 74 was expanded to two, and altered; s 77 was amended; ss 77A and 77B were inserted; and ss 78(6) and (7) were repealed. This was all achieved by force of the Family Violence Protection Amendment Act 2017 (Vic).

[74] See s 77 of Version 53 of the Family Violence Protection Act 2008 (Vic) (which version incorporates amendments as at 21 October 2020).

[76] Explanatory Memorandum to the Family Violence Protection Amendment Bill 2017 (Vic), clause 10.

[77] That is to say, the Magistrates' Court (Family Violence Protection) Rules 2008 (Vic).

[78] See r 4.03(1)(c) of the Magistrates' Court (Family Violence Protection) Rules 2008 (Vic).

[79] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 571[66]-573[70] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[80] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 571[66]-573[70] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[81] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (per Brennan J).

[82] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 620[23]-621[24] (per Gummow ACJ and Kiefel J).

[84] Luck v University of Southern Queensland [2018] FCAFC 102; (2018) 265 FCR 304 at 308[14] (per Mortimer J).

[85] Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 362[124] (per Heydon J).

[86] Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 at 16-17[34] (per French CJ, Hayne, Kiefel and Bell JJ).

[87] Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1 at 76[175] (per Crennan and Kiefel JJ).

[88] Even if, incongruously, OP opposed the application to amend the original application to add the child as an AFM, but maintained his lack of opposition to inclusion of the child on the order, it is hard to imagine that the judge would have refused the application to amend.

[89] Immediately, I recognise that courts must be careful in relying on equitable maxims in general and in seeking to extend their reach to other areas of the law (see, for example, McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843 at [105]- [122] (per Anderson J)).

[90] See, for example, Re McBain; Ex parte Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at 415[95] (per McHugh J).

[91] I do not think this could sensibly be said of the judge or XY. XY wanted her child included in the order, after all. And the judge, it must be inferred, was prepared to make the order on a basis that did not require OP's lack of opposition.

[92] In a later letter to the judge's associate, ZZ said that the Victoria Legal Aid website did not name the parties.

[93] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531[69] (per Gleeson CJ and Gummow J) & 546[127] (per Kirby J).

[94] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 175-176 (per Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[95] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 193[5]-194[7] & 196[17]-197[18] (per the Court); Sugar Australia Pty Ltd v Southern Ocean Pty Ltd & Anor [2013] VSC 535 at [119]- [120] (per Vickery J).

[96] While s 121(1) of the Family Law Act 1975 (Cth) makes it an offence to publish information that identifies, inter alia, the parties to or witnesses in proceedings under that Act, s 121(9) creates exceptions to that general prohibition, some of which would cover use of expert reports and the like in the present proceedings. Whatever the true reach of those provisions, in keeping with the prohibition in s 166 of the Family Violence Protection Act 2008 (Vic), I have determined to anonymise all persons connected with the family law proceedings, including professional witnesses and solicitors.

[99] Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713 (per Denning LJ).

[100] McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 at 534 (per Barwick CJ) & 537 (per Taylor J).

[101] McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 at 544 (per Windeyer J), cited in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 196[16] (per the Court).

[102] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 196[16] (per the Court).

[103] Monroe v Schneider Associated (Inc) v No 1 Raberem Pty Ltd (No 2) [1992] FCA 367; (1992) 37 FCR 234 at 241-242 (per Spender, Gummow and Lee JJ), also cited in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 196[16] (per the Court).

[104] See r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

[105] See ss 100, 108 and 109 of the Family Violence Protection Act 2008 (Vic).

[106] See ss 109(2)(a) and (b) of the Family Violence Protection Act 2008 (Vic).

[107] Mrs Kennedy lived to be 104 (22 July 1890 to 22 January 1995). She had an extraordinary life.