Ritchie (a pseudonym) v Morvarid

1. In the decision of the Honourable John Dixon J in AAA v County Court of Victoria & Ors ("AAA")[6], John Dixon J considered the terminology associated with s 119 and particularly the meaning of the term "rehearing by the County Court" which appears there. In that case, his Honour held that an appeal under s119 is a broad appeal by way of rehearing. The features of such a broad appeal are the following:
   1. that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[7]
   2. the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual, or discretionary error;[8]
   3. the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[9]
   4. the Court is required to assess and evaluate the evidence for itself.[10]
2. However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand. [11]
3. As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[12] He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal. It is then the appeal court's function to apply the law at the time when the appeal is heard to consider all of the admitted evidence. He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[13]
4. Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates' Court's decision to enliven the jurisdiction of this Court. Such error may be proved after an examination of the transcript in the Magistrates' Court, to examine the conduct of the proceeding and any reasons for decision.

1. What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[14] With that said, established legal principles operate to guide the courts through an assessment of claimed errors. I turn now to briefly consider those.

1. A legal error may arise in the way in which a court:

"undertakes its fact-finding, or ... in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning". [15]

1. Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[16]

1. A factual error arises when a trial judge's findings of fact are "glaringly improbable" and "inconsistent with facts incontrovertibly established by the evidence".[17] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[18]
   1. The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[19]

"A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'."

"If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal." [20]

1. Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
2. The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[21]

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion to which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

1. Having set out those principles, I now turn to the grounds of appeal pressed by Mr Ritchie.

1. Mr Ritchie's appeal to this Court seeks to demonstrate that there was both discretionary and legal error in the decision of the magistrate. Ms Morvarid filed submissions in reply which supported the magistrate's decision and denied there was any such alleged errors.
2. Dealing with the submissions as to discretionary error first.

1. The dominant feature of the submissions in relation to discretionary error concerned the weight the magistrate placed on the fact that Mr Ritchie had attempted to contact Ms Morvarid's therapist (who Mr Ritchie describes as a religious marriage counsellor). It was submitted that the magistrate had incorrectly assumed that person was a therapist and/or a psychologist, which was not the case.[22] Mr Ritchie submits that this was a material error. The submissions put the error in this way:

"The weight the Magistrate placed on the extraneous role of the marriage counsellor come therapist/psychologist, as a consideration for making the order, is evident throughout the transcript. The weighting on this extraneous matter meets the test as outlined in House v King,[23] and for that reason the appeal should be allowed and the order set aside."[24]

1. This submission cannot be accepted for the following reasons.
2. First, it is quite clear that the magistrate knew from the evidence that Ms Morvarid was consulting a therapist overseas.[25] In fact Exhibit 4 is specifically titled "Emails to therapist". It is certainly true that in introductory remarks and discussion with counsel the magistrate operated under the belief that the communication by Mr Ritchie to the therapist involved a psychologist.[26] However, that was in discussion with counsel and before the evidence which I have alluded to above.
3. Second, in the decision the magistrate correctly observed that she was concerned with Mr Ritchie's attempts to contact Ms Morvarid's therapist.[27] The magistrate clearly appreciated that Ms Morvarid was seeing a therapist, and clearly adopted and accepted the evidence she had given about that person.
4. Third, as to the materiality, the magistrate was concerned with contact with the therapist because - and this is clear from the interchange between the magistrate and Mr Ritchie during his evidence - such contact had been initiated after the intervention order was in place.[28] Clearly, in a situation where the intervention order prevented contact of Mr Ritchie to Ms Morvarid, the contact by Mr Ritchie with her therapist without her knowledge was a relevant matter to take into consideration. The magistrate was correct to do so.
5. Allied to this it is clear that the magistrate was concerned not so much with the professional status of the therapist as a registered counsellor/psychologist or doctor, but with the admitted attempted interference by Mr Ritchie with a relationship between Ms Morvarid and another person, which he had no role in at a time after the FVIO came into place. Clearly she did not accept that this was appropriate. It was not an extraneous matter because it informed her decision as to whether his behaviour towards Ms Morvarid was controlling behaviour and came within the definition of family violence in the Act. It was a basis for her finding that this formed part of behaviour that supported the imposition of the order.
6. Mr Ritchie also cites Vitalis & Kazan (No 2) ('Vitalis')[29] for the proposition that a therapist, psychologist or counsellor's code of conduct requiring confidentiality does not 'equal privilege' and that records of medical practitioner interviews are regularly required as evidence in court matters.[30] However, Vitalis is significantly different from the present case and does not stand for the proposition advanced by the appellant. It also does not affect the fact that Mr Ritchie had attempted to contact a person he had no relationship with, arguably as a means to interfere with and control Ms Morvarid's relationships.
7. Mr Ritchie also submits that the magistrate ignored that there was an interim FVIO in place which had not been breached.[31] Even if there had been no breach of the interim FVIO, this does not mean that family violence is unlikely to occur on a consideration of all the evidence which includes Mr Ritchie's intrusion into Ms Morvarid's private relationship with the therapist, without her knowledge.
8. This ground cannot be substantiated.

1. Mr Ritchie submits that the magistrate made errors of law in the following ways:

"i. The Magistrate's failure to examine most of the evidence that was submitted by Mr Ritchie; and

1. The Magistrate's acceptance and overreliance, without examination, on the verbal testimony of the other party; and
2. The Magistrates admission of numerous articles of previously unseen evidence from the other party."[32]

1. It is clear from a fair reading of the transcript that the magistrate received all the evidence that the parties wished to put forward. Further, despite paragraph [24] (1)(i) of the appellant's submissions, there is no identification of what evidence was not examined by the magistrate and how this may have affected the magistrate's decision. Such identification is necessary to demonstrate any error was material to the decision.[33]
2. It is important to recall that the magistrate accepted that Ms Morvarid was a witness of truth, and accepted her evidence in preference to that of Mr Ritchie. While her reasons for that are not detailed, this must be understood in the context of the way the hearing was conducted. That is, Mr Ritchie did not have anyone representing him who could lead him through evidence. Rather, that task largely fell to the magistrate to attempt to elicit his evidence. In the course of doing that, she also clearly made comments to him which indicate why some of that evidence that he was giving was difficult to accept, for example, his evidence in relation to how he came to contact Ms Morvarid's therapist and his reasons for doing so after the FVIO was in place.
3. It must also be recalled that the hearing occurred in a situation where there was some time pressure on the learned magistrate, where there was an unrepresented party, and there was a need to assess the matter and deal with it expeditiously. Such matters have led superior courts to repeatedly be mindful of over-scrutiny of reasons. When looked at in context and overall, the magistrate here was clearly indicating, during the course of running, reasons to Mr Ritchie as to why some of his evidence was not being accepted. This is particularly clear in respect of how and why he came to contact the therapist, and the reasons for him putting material into his 40-page letter as to the importance of God in guiding the relationship between men and women and the circumstances under which a marriage could end.[34]
4. Turning then to deal with each of the paragraphs under this submission, and beginning with paragraphs [25]−[27].[35] It is submitted here that there is an assumption of coercion made by the magistrate in considering Mr Ritchie's travel to Iran and the role that Ms Morvarid's father would have in being able to bring Ms Morvarid back to the relationship. Two specific references are given to support this assertion.[36] The references specifically show that the magistrate considered that the behaviour of Mr Ritchie was controlling behaviour. She made that apparent in the course of the hearing at the cited references. However, that assessment was also made in the context of the Victorian legislation which she was applying, the fact that both Mr Ritchie and Ms Morvarid were residents in Australia, and they were consenting adults who had entered into a marriage relationship. They were clearly people who had made many decisions regarding their lives - such as Ms Morvarid relocating from her country and moving away from her family. All this indicates a real degree of independence from her family. In that circumstance, the magistrate was entitled to find that Mr Ritchie's behaviour in travelling to Iran unannounced, appearing at the family home and seeking to enlist Ms Morvarid's father to influence her, constituted what she considered "outrageous control".[37]
5. The magistrate was well aware of the fact that Ms Morvarid and Mr Ritchie had met in Iran and later married, and that Ms Morvarid had consulted with her family about a variety of matters involving her marriage and also their relationship. While these matters were contextual, they do not prohibit the magistrate from forming the finding that there was controlling behaviour exhibited by Mr Ritchie by failing to buy Ms Morvarid a ticket without her father's permission.
6. The next point raised, at paragraph [28],[38] is that a variety of documents were produced late, and Mr Ritchie was not given an opportunity to respond to them. A fair reading of the transcript reveals the following.
7. First, the documents were mainly documents produced by Mr Ritchie or in the course of an email exchange between Mr Ritchie and Ms Morvarid. Clearly Mr Ritchie knew of these documents and their contents.
8. Second, the magistrate made it plain that some time would be afforded to Mr Ritchie to see those documents and peruse them. He was given such time. He then elected to proceed. It cannot be said that he was surprised by the contents of the documents, given that he was the author of most of them, and, secondly, that he had been given some time to peruse them.
9. Third, at paragraph [30][39] it is submitted that the handwritten letter of Mr Ritchie was put into evidence and he did not have an opportunity to explain or discuss whether any of the content reflected his current position. This cannot be accepted. A reading of the transcript, reveals that the letter was put to Mr Ritchie and he was given opportunity to comment upon it.[40]
10. Mr Ritchie was given the opportunity to explain, I consider, and he at no stage said that it did not represent his current position. Rather, in relation to page 11 of the letter (the 'complete submission point'), he said:

"[...]---But that - that was, like I said to you, was the entire thing of our relationship, like that - I understand that might not be something that you agree with, or your beliefs, but it was the beliefs in our relationship based on our religious values - - -"[41]

1. Further, the appellant had the opportunity to clarify his current position when the magistrate referred him to various portions of the letter and his 'demand for complete submission':.

"HER HONOUR: How is it not controlling, and violent, and aggressive to suggest, and I quote you, same page, 'If you submit unconditionally for life I can guarantee you that no matter how bad you think it may be, it will humble me, soften me and make me love and care about you. The Bible commands a wife to submit unconditionally and goes even further to say if your husband is the problem, or isn't leading well, you should win his heart with a meek and quiet spirit and submission. Every time I've tried to teach you to submit, you argue with me saying you can't force it, and it's conditional, and it's my fault you won't submit. All of that is irrelevant because God's word about submission is very clear'. Leaving God out of the equation, if we may?---Yes. How is the demand for submission not family violence?---Well I think in the context of the way that you need to apply the law, everything is family violence. The - there's really nothing in relationship that wouldn't be considered family violence in some aspect - - -Let's not talk broadly. Let's talk about the demand for complete submission?---M'hmm.

What does that mean in real terms?---So it was in - it was in the context of like when we have arguments and fights, and when she would fight back with me, the fights would just progressively get more heated, to the point where I would leave and there wouldn't be any sort of resolution or - or good outcome. Um and in our relationship sometimes when things were really (indistinct) a lot of the fights that we would have where she wouldn't put up any sort of fight um, not - not like when I say fight, I'm not talking - - - You don't mean physical - - -?---Yeah, that's right - - - There's no suggestion of physical - - -?---Yeah, there's never been any physical stuff, but when we would get into ah heated arguments, I noticed that when she wouldn't like agitate me and like provoke me into a bigger argument, that firstly that the fight would stop, but secondly that I would think about whatever's happened that we were arguing about, and then I would go to her and either apologise or try to do the right thing by her. So from my perspective that idea of submission was um a more healthy way of trying to deal with ah like fights and arguments. It wasn't - I - I can see when you read it, it comes across as very like I'm controlling, if you don't do what I say I'll do anything to make sure you're lose, but like - like I've never been violent to her, I've never been abusive - - -"[42]

1. I consider a fair reading of the transcript reveals that the relevant matters were put clearly to Mr Ritchie and he had an opportunity to comment upon them. The magistrate clearly did not accept that he disavowed his notions of controlling and having his former wife submit to him. That much is clear by her reasons, which, though brief, clearly set out that she accepted Ms Morvarid's evidence in preference to Mr Ritchie's. Further, his own emails, actions, and the long letter, clearly formed the basis for her finding that he held attitudes which resulted in him wanting to control her in a way that constituted family violence within the meaning of the Act. In keeping with Xiu (a pseudonym) v Xiu (a pseudonym),[43] the magistrate used these matters to find that the second part of the test was satisfied, namely, that family violence was likely to continue. Those findings were well open to the learned magistrate.
2. With respect to Nathanson v Minister for Home Affairs,[44] the principles in the case can be accepted. However given the foregoing, Mr Ritchie had an opportunity to present his case, to answer the evidence put before him, and be heard on issues that required consideration, and the magistrate was entitled to come to the findings she did and act on them by the imposition of the order.
3. As a result, I find that there is no identified legal error or discretionary error in the learned magistrate's decision, and as such I dismiss the appeal.

[6] [2023] VSC 13

[13] Ibid at paragraph [51(b)] relying on Matsoukatidou v Yarra Ranges Council [2017] VSC 61; (2017) 51 VR 624,

[14] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

[15] Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at paragraph [23]

[17] Devries v Australian National Railways Commission (1993) 177 CLR 472 at paragraph [479]

[19] [2019] HCA 28; (2019) 266 CLR 129 at paragraph [55]

[20] [1943] AC 517 at paragraph [526]

[21] (1936) 55 CLR 499 at paragraphs [504-505]

[22] Appellants written submissions dated 3 June 2025 at paragraph [12]

[23] [1936] HCA 40; 55 CLR 499

[24] Appellants written submissions dated 3 June 2025 at paragraph [23]

[30] Appellants written submissions dated 3 June 2025 at paragraph [21]

[31] Appellants written submissions dated 3 June 2025 at paragraph [9]

[32] Appellants written submissions dated 3 June 2025 at paragraph [24]

[33] Stead v State Government Insurance Commission (1986) 161 CLR 141

[35] Appellants written submissions dated 3 June 2025

[38] Appellants written submissions dated 3 June 2025

[43] [2024] VCC 875

[44] [2022] HCA 26; (2022) 276 CLR 80