This is a ruling on the matter of Andrew Towns[1] and Nathan Towns.[2]
[2]
Andrew Towns was born in 1951. Nathan Towns was born in 1958. They are brothers.
Nathan Towns applied for and was granted an interim intervention order made pursuant to the Family Violence Protection Act2008 (Vic) ('the Act') against Andrew Towns. This interim intervention order was made on 3 October 2014.
Nathan Towns sought to make the interim order a final one. That application initially came on for hearing in about 2016.
A further contested hearing was conducted over three days in the Moorabbin Magistrates' Court and concluded on 16 November 2018. At that time numerous witnesses were called and submissions were made. It appears the Magistrate handed down a decision by way of oral reasons. The Magistrate granted Nathan Towns' application for a final intervention order against Andrew Towns on 16 November 2018. The order was to last for a period of five years until 16 November 2023.
In December 2018 Andrew Towns appealed the making of that order to the County Court. Nathan Towns alleged that the appeal was out of time and the County Court had no jurisdiction to entertain it. Her Honour Judge Robertson of the County Court accepted that argument and Andrew Towns' appeal was struck out on 25 October 2023.[3]
On 13 March 2025 the Court of Appeal upheld Andrew Towns' appeal and remitted the matter to this Court for hearing of this appeal.[4]
Both parties then filed submissions as to whether the jurisdiction to hear the appeal was enlivened, that is, could Andrew Towns demonstrate that the decision of the Magistrate on 16 November 2018 was attended by legal, factual or discretionary error sufficient to enliven the jurisdiction of this Court.
In accordance with the orders of the Court each party was permitted to file eight pages of submissions. No material other than that was considered, even though Andrew Towns filed a large amount of material. The Court considered the matter on the papers.
The primary point raised by Andrew Towns is that legal error has been made by reason of the destruction of the Magistrates' Court's audio recordings of the hearing and the reasons for decision.
This ground has assumed fundamental importance for three reasons:
[3]
(a) the significant lapse of time since the allegations said to amount to family violence - 2014 at the time of the interim order - some 12 years ago;
(b) the significant lapse of time since the hearing in the Magistrates' Court - in 2016-2018 - some 8-10 years ago; and
(c) the change in the understanding of the nature of appeal pursuant to s119 of the Act: at the time the appeal was instituted in 2018 such appeal was to be a hearing de novo. After the decision of Dixon J in AAA vThe County Court of Victoria[5] it was understood that the appeal could only succeed if Andrew Towns could demonstrate a legal, factual or discretionary error in the hearing or decision below.
[4]
The relevant part of the Act which governs appeals is in the following terms:
[5]
119 Conduct of appeal
>
> (1) The appeal is by way of the rehearing by the County Court or the Supreme Court.
[6]
In AAA, his Honour Justice Dixon stated at paragraph [67]:
[7]
**"**Considered altogether, s 119 contemplates a rehearing in the sense of a broad appeal where new evidence may be led; the court may determine the case at the time of the appeal, in the light of the record of the first instance court and the additional evidence before the appellate court at the time of the appeal, applying the law at the time of the appeal." (My emphasis).
[8]
It seems clear to me that the appeal rights of an aggrieved party rest heavily on the following:
[9]
(a) the recording by the Magistrates' Court of the evidence of witnesses; and
(b) the recording of the decision of the Magistrate (either orally or in writing).
[10]
Failure to record either of the above categories of materials substantially undermines the rights of an appellant, such as Andrew Towns, and may amount to an error of law.[6]
I consider this position is also supported by the decision in AAA where his Honour J Dixon J considered that the transcript of evidence and the Magistrate's reasons for decision, which were a usual incident of Magistrates' Court proceedings, supported the interpretation of s119 that his Honour ultimately found.[7] His Honour said at paragraph [64]:
[11]
"The Magistrates' Court possesses coercive powers, is subject to the laws of evidence (subject to s 65 of the Act), there is (if requested) a transcript of the evidence available, the parties may be legally represented, and magistrates give reasons for their decision;" (My emphasis).
[12]
This Court has made enquiries with the Magistrates' Court of Victoria. My chambers have been informed that all audio recordings before the Magistrate in November 2018 have been destroyed.
I have considered whether parties should be asked to file affidavit material setting our their recollections of the evidence and reasons for decision. In some circumstances this can form the basis for proceeding where audio recording of transcript is unavailable. I decided against this course.
Any attempt to have the parties reconstruct and recall the evidence given some eight years ago, relating to events some 12 years ago is an almost futile attempt. Not only is this because of the significant lapse of time but because where there is conflict between the parties as to the events which occurred, this Court has no way to resolve that conflict.
A critical part of the demonstration of error arises in relation to the reasons of the Magistrate given eight years ago in oral reasons. I do not consider that this Court could be satisfied that any parties particular recall of those reasons would provide a true and comprehensive recitation of the Magistrate's reasons. This is partly because of the elapse of time, but also because if the parties were to differ as to their recall of the Magistrate's reasons there would be no way to resolve that conflict. The Magistrate could not be called to give evidence.
Further I do consider it relevant that the appellant Andrew Towns has not in any way been a cause of this unfortunate situation. It has firstly been caused by the Magistrates' Court's destruction of the recordings and secondly caused by the delay in this Court in hearing the appeal. That is the period from 2018 when the appeal was filed within time to the ultimate disposition in 2023. At some point in that period it appears that the Magistrates' Court has destroyed the recordings, which may at the time have been of little moment, but for the changing legal principles to do with the interpretation of s119 of the Act by reason of the decision in AAA. As was said by the NSW Court of Appeal in Pettit:
[13]
"...so the ambit of the difficulties confronting parties to an appeal will place the appellate court to which they look for the exercise of their statutory rights in many cases in a position which may prevent the court from giving effect to the paramount consideration of obviating a miscarriage of justice."[8]
[14]
Considering these matters overall I find that there has been legal error demonstrated by the Magistrates' Court's failure to make available an audio recording of the hearing and reasons for decision. This fundamentally undermines the appellant's ability to exercise his appeal rights pursuant to s119 of the Act. This amounts to a legal error and enlivens the jurisdiction of this Court.
By reason of s119(2) of the Act, on appeal, the County Court may:
[15]
(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 or Children's Court could have made and exercise any other powers that the Magistrates' Court or Children's Court may have exercised.
[16]
The Court notes that the appellant seeks that the Magistrates' Court decision be set aside and that there be a rehearing of this matter with the calling of limited evidence. The respondent has contended that there is no jurisdiction and the appeal is not enlivened. I consider the respondent has not had an opportunity to address the Court on the issue of what steps will be taken where jurisdiction has been found to be enlivened as I have done. For that reason, I will now permit the parties to 1 May 2026 in which to file submissions as to the relevant disposition they seek.
The Court also raises for consideration, and seeks submissions, of the parties on whether or not the order of the Magistrate on 16 November 2018 be set aside and no further order of this Court be made. The Court considers that submissions on this point are required given the very significant lapse of time since 2014 when the initial factual allegations of family violence were made. In that circumstance, and noting that evidence was only called in 2018 in respect of that, the Court seeks submissions on whether there is any utility whatsoever in calling for a rehearing on matters of such significant age noting that there may well be very significant changes in factual circumstances since that time. The Court particularly notes that one of the criteria for the imposition of an order is whether or not there is evidence that a party has committed family violence against an affected family member and is likely to continue to do so or do so again.[9] In respect of this latter criteria the Court notes that a party has the right to make application for a new intervention order given the previous order expired in 2023.
The Court will make orders in the following terms:
The Court's jurisdiction is enlivened and the respondent's application is denied.
The Court seeks submissions from the parties as to the further disposition of this matter within three weeks by 1 May 2026. Such submissions are limited to four pages each.
A determination as to whether or not an oral hearing is required will be made at the time of receipt of submissions. If the Court considers no oral hearing is required, the Court will proceed to hear the matter on the papers and hand down a decision in writing at an appropriate time.
[17]
[3] As the Court of Appeal subsequently noted in Towns (a pseudonym) v Towns (a pseudonym) [2025]
[18]
VSCA 32; 77 VR 594 at footnote [5]: "We note that the trial judge heard the matter on 15 September
[19]
2023 and handed down her decision promptly on 25 October 2023. It is unclear why the preliminary question concerning jurisdiction took so long to come on for hearing."
[20]
[4]Towns (a pseudonym) v Towns (a pseudonym)[2025] VSCA 32; 77 VR 594