TS v DT [2019] ACTSC 295

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2019] ACTSC 295

APPEAL - FAMILY VIOLENCE - Appealing of the decision of a Magistrate to make a final Family Violence Order in accordance with s 34 of the Family Violence Act 2016 (ACT) - whether the Magistrate failed to take proper account of interim orders when making the final orders - whether the Magistrate failed to consider the appellant's living arrangements before making the final orders - whether the Magistrate failed to give proper weight to the living arrangements of the appellant before making the final orders - whether the Magistrate possessed enough evidence of instances of family violence before making the final orders - appeal dismissed

CRIMINAL LAW - EVIDENCE - Whether evidence of previous convictions relied-upon by the Magistrate should have been excluded - whether an application for leave to appeal out of time is an "instituted" appeal or review - where the Court was on notice as to the existence of the application - application of ss 91 and 92 of the Evidence Act 2011 (ACT) - Magistrate erred in taking account of convictions - error did not lead to miscarriage of justice

Court Procedure Rules 2006 (ACT) rr 5081, 5100, 5130

Domestic Violence and Protection Orders Act 2001 (ACT) s 40

Evidence Act 2011 (ACT) ss 91, 92

Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 48

Family Violence Act 2016 (ACT) ss 6, 7, 13A, 14, 31, 34, 35 36, 37, 38, 39, 65, 86, 92, 93, 95, ,

Magistrates Court Act 1930 (ACT) s 209, div 3.10.2

CM v TM and Anor [2011] ACTSC 53

CP v Director-General of Community Services Directorate and Ors [2017] ACTSC 394

Greenwood v Barlee [2018] ACTSC 46

Peverill v Crampton [2010] ACTSC 79

Australian Law Reform Commission, Evidence (Interim)(ALRC Report 26), Report No 26 (1985) vol 1 para 776

1. This is an appeal against a final Family Violence Order (FVO) which was made against the appellant (TS). The respondent (DT) was the "protected person" referred to in the order. The order was made by Chief Magistrate Walker (Chief Magistrate) on

14 March 2019. The orders of the Chief Magistrate were as follows:

Having heard an application dated 16 October 2017 regarding the behaviour of [TS] ('the respondent') in relation to [DT], under section 34 of the Family Violence Act 2016 the Court orders that for a period of 2 years from 14 March 2019:

1. The respondent is prohibited from:

(a) being on the premises of [the family home];

(i) except on one occasion in the company of a member of the Australian Federal Police for the purpose of collecting and returning personal belongings;

(b) being within 100 metres of the protected person(s)

(i) except when the respondent is attending at the protected person's residence specified above in the company of the Australian Federal Police;

(ii) except at a Court or Tribunal proceeding;

(iii) except at a counselling or mediation session or restorative justice conference arranged with the protected person's consent;

(c) contacting the protected person(s):

(i) except through a legal practitioner;

(ii) except at a counselling or mediation session or restorative justice conference arranged with the protected person's consent;

(d) engaging in behaviour that constitutes family violence towards the protected person(s);

(e) causing someone else to contact the protected person(s), except as permitted by this order;

(f) causing someone else to do anything that is family violence in relation to the protected person(s)

THE COURT DIRECTS THAT:

2. The Registrar send a copy of this order to the ACT Registrar of Firearms.

[Personal particulars removed.]

2. The appellant represented himself at the hearing before me. Mr B Hamack appeared on behalf of the respondent.

3. The Notice of Appeal filed by the appellant is dated 11 April 2019. The grounds of appeal were:

(1) 2 years from 14 March 2019 is unreasonable (sic) because through an interim order I was already not allowed (sic) to go to my house from October 2017. So when this order expires I would be totally 3 and a half years banned from my house (sic).

(2) At the hearing the respondent admitted that her son has a town house.

(3) The magistrate gave the order without seeing whether I have accommodation or not.

(4) The respondent gave only one incident that happened 10 years ago where a musical instrument was broken (indiscernible)... where were the other incidents (sic) no pattern of violence previously.

4. Unfortunately, on the return date of the Notice of Appeal on 23 May 2019 the appellant was overseas. He "appeared" before the Deputy Registrar over a very poor telephone line. He had failed to provide a draft index of appeal papers as required by r 5130 of the Court Procedure Rules 2006 (ACT) (CPR). As a result no index has been settled and indeed, no appeal papers have been prepared.

5. The matter came before the Deputy Registrar again on 6 June 2019. Again, the appellant appeared by telephone from Sri Lanka. The parties indicated that neither intended to apply to call further evidence. The respondent wished to adjourn the listing hearing to consider making an application to stay the appeal, having regard to criminal proceedings which were under way against the appellant (as to which see [14] - [17] below). The Deputy Registrar adjourned the hearing to 20 June 2019.

6. The respondent filed the Application in Proceeding seeking a stay of the proceedings on 20 June 2019. That Application was supported by copies of the transcript of the hearing before the Chief Magistrate on 21 February 2019, and that of her reasons for decision which were delivered on 14 March 2019. The Application was made returnable on 15 July 2019.

7. At the hearing on 20 June 2019, the Deputy Registrar granted leave for the respondent to serve the Application in Proceeding and supporting documents on the appellant by email. He also directed the appellant to appear in person or by legal representative at the hearing of the Application in Proceeding (the appellant had again appeared by telephone on this occasion).

8. On 15 July 2019, the Application for a stay of the appeal came before me. On that occasion Mr Hamack appeared for the respondent. The appellant did not appear in person, by telephone or by a lawyer. Mr Hamack confirmed service of the Application. I stood the matter over to the next hearing before the Deputy Registrar, which was on 25 July 2019.

9. The appellant appeared by telephone before the Deputy Registrar on that date. He listed the Application for hearing before me on 9 August 2019 and made a direction in similar terms to that made on 20 June 2019 as to the appearance or representation of the appellant.

10. On 9 August 2019, the appellant appeared by telephone from Sri Lanka and

Mr Hamack again appeared for the respondent. Unfortunately the quality of the telephone line was very poor, making it extremely difficult to hear the appellant. After hearing from Mr Hamack, I determined that it was not appropriate in all the circumstances to order a stay. I stood the matter over with the intent of trying to arrange for a hearing time of the substantive appeal when the appellant could be available by land line from Sri Lanka, having regard to the time difference.

11. On that basis the matter was eventually listed for hearing at 1:00pm on

30 September 2019. The arrangements for a landline connection were not required as the appellant appeared in person.

12. It was a little difficult to follow precisely what had occurred in the Magistrates Court. Initially, when making his submissions on the appeal, the appellant said that he had understood the proceedings in the court below to relate only to the interim order which had been made against him on 16 October 2017. In relation to that matter, he had filed an Application in Proceeding on 9 January 2019 seeking a variation which would permit him to return to the jointly owned residential property. The appellant said that he understood that it was the extension of the interim order and his variation application which were the subject of the hearing on 21 February 2019. He tendered a copy of his Application in Proceeding to support this proposition.

13. On this point, Mr Hamack tendered a copy of the Application for a Family Violence Order, dated 16 October 2017. That document (which omits "Annexure A") makes it reasonably plain that the respondent was seeking a final order with a duration of two years, as well as an interim order. That she was seeking a final order was confirmed by the respondent's representative in opening before the Chief Magistrate on

14. The situation was complicated by the fact that the appellant had been charged with criminal offences arising from an altercation he had with the respondent and their son on 7 October 2017. Those charges were heard over various dates in 2018, culminating in findings of guilt in relation to three common assault charges and one damage to property charge. Two other charges were dismissed. The appellant was sentenced to a Good Behaviour Order for one year on 21 January 2019. He then filed an application for leave to appeal out of time in relation to the convictions. That leave was granted by McWilliam AsJ in this Court on 15 March 2019. The appeal was heard on 18 April 2019 and her Honour delivered her decision allowing the appeal on

15. The ground on which the appellant succeeded was that the Magistrate had erred by admitting into evidence a judgment against the appellant in an earlier matter in which he had been convicted of common assault charges involving the son and the daughter of the parties. The judgment was tendered into evidence and used by the prosecution to establish facts relevant to the new charges. This was in contravention of s 91 of the Evidence Act 2011 (ACT) (Evidence Act). The prosecution (the respondent on that appeal), conceded that the judgment should not have been admitted into evidence and that the Magistrate's reliance on it led to a miscarriage of justice. That outcome warranted the quashing of the convictions and the remitting of the matter for further hearing and determination in the Magistrates Court.

16. The appellant pressed another ground of appeal. He argued that the evidence called before the Magistrate was insufficient to justify a finding of guilt beyond reasonable doubt in relation to the four matters in which he was convicted. On that basis he sought an acquittal.

17. Her Honour rejected that argument and ultimately remitted the four charges to the Magistrates Court. Those charges were still pending at the time of the hearing before me on 30 September 2019.

18. It is apparent from the above chronology that when the application for a final FVO came before the Chief Magistrate the appellant had a potential right of appeal against his convictions contingent on leave being granted by this Court. That leave was not granted until the day after the Chief Magistrate handed down her decision.

19. In the course of the opening comments of the parties (see T2-5, 21 February 2019), it became clear that:

(1) The respondent was seeking a final FVO;

(2) The appellant opposed the making of such an order; and, alternatively,

(3) If such an order was to be made, he argued that it should not exclude him from living in their joint residence.

20. The appellant was self-represented in the hearing before the Chief Magistrate. The respondent was represented by Ms Theodore from the ACT Legal Aid Office.

21. After the issues in contest had been clarified, the respondent gave evidence. She was cross-examined through a Registrar of the Court (see s 48 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)). The appellant also gave evidence and was cross-examined. The following documents were tendered and admitted into evidence:

(1) Pages 3-5, 17-20 of the respondent's complaint to police (Exhibit "1");

(2) A letter from Dr Brand to Dr Hughes, dated 10 January 2019 (this was a referral for the appellant to consult a neurologist for treatment of severe headaches - it became Exhibit "2"); and,

(3) Page 2 of a Pre-Sentence Report, dated 7 November 2018, in relation to the appellant (Exhibit "3").

22. In the course of the appellant's evidence-in-chief, he informed the court that he had applied to the Supreme Court for leave to appeal from his conviction out of time. There was some debate about this, in the context of s 31 of the Family Violence Act 2016 (ACT) (FVA) (see T 27-30, 21 February 2019). It is clear that both parties wished the matter to proceed. Her Honour decided to adopt that course and the appellant returned to the witness box to complete his evidence.

23. Both parties made submissions. Ms Theodore, for the respondent, submitted that the evidence of the respondent established the grounds for making a final FVO under s 34 of the FVA. Ms Theodore also relied on the fact that the appellant had been convicted of assault in 2008 as a relevant factor, in accordance with sub-s 14(f) of the FVA.

Ms Theodore also relied upon the conviction of the appellant in relation to the

7 October 2017 events, which she submitted should be given "substantial weight".

24. The appellant commenced by raising the fact that the interim order made on

16 October 2017 had been made in his absence. Her Honour responded to that with the following:

... You do not have to address me on that. I accept that that document in the initial order was made without the benefit of hearing your evidence. As I said I have heard the evidence afresh and I am relying on what I hear today.

25. Her Honour then clarified for the appellant that she was dealing with the application for a final order, not the extension of an interim order.

26. The appellant relied upon s 37 of the FVA and referred to his rights and liberties. He noted that the respondent returned and lived in the residence after the incidents in 2007. He submitted that the altercation with his son was not relevant because he did not live in the house in 2017.

27. The appellant also relied on s 39 of the FVA and pointed to the difficulties he was having in finding appropriate accommodation given that his income was $1600 per fortnight. He submitted that an order excluding him from the residence would be an unnecessary restriction of his rights.

28. The Chief Magistrate reserved her decision to 14 March 2019.

29. Her Honour handed-down her decision orally on 14 March 2019. She recounted the evidence of the respondent at T2 l42 - T5 l2. That evidence included the details of the alleged assaults and the use of a knife to damage a couch in the residence on

30. Her Honour referred to the evidence of the appellant at T5 l4 - 47. She recorded his denials, and his claim that the respondent's allegations were exaggerated. Her Honour also noted his evidence about the unsatisfactory nature of his accommodation since his exclusion from the residence, and the medical issues to which Exhibits "2" and "3" related.

31. At T6, the Chief Magistrate referred to s 34 of the FVA and then to s 14. Her Honour referred to sub-paras (1)(b), (c) and (f) in particular. She also referred to ss 36 and 37. She noted that the paramount consideration was the safety and protection of the affected person, and that the applications were to be determined on the balance of probabilities.

32. Her Honour then set out her findings and conclusion as follows:

The respondent was concerned that an interim order had been made in his absence and that matters stated in the original application had been changed. I have placed no weight on the existence of the interim order but have considered afresh the evidence before me in these proceedings. The applicant presented as plausible and persuasive and significantly as genuinely afraid of harm from the respondent. Her allegations of specific instances of violence directed toward her and her son are supported by the respondent's criminal convictions. The respondent accepted some elements of the allegations she made, such as that he in anger broke her musical instrument, an instance of personal property violence. And more recently, that he threw food at her.

The respondent's evidence tended toward the rambling, was largely self-referential and smacked of an exaggerated sense of grievance. He attributed no significance, even to the acts of violence he accepted having engaged in, evidencing a lack of insight as to the effect of his conduct. His explanation for the applicant's complaints was that she was overly attached to her children and that she had got all she wanted from him and now, wished to discard him. Neither complaint, even if true, provide any explanation as to why the applicant would go to such lengths to exclude him from her life. Fear of her safety is a more plausible explanation.

The respondent's primary concern appears to be the financial one associated with his access to adequate accommodation. This is a valid consideration. It is one which could and ideally should have been addressed by both parties, long before now. However, it is one to be resolved in a jurisdiction other than this. I have taken into account the fact that the respondent would not have access to live in a home which he has a financial interest, if an order were made. However, I note that he is in receipt of regular income in the form of compensation payments.

I am not satisfied that the respondent is particularly vulnerable as a result of the neurological and psychological issues, which he has brought to the court's attention. I am satisfied that there have been instances of violence directed toward the applicant and toward her son and that she has reason to fear for her safety and that of her property, if within proximity of the respondent.

33. The appellant did not file and serve a written outline of submissions. He addressed each of his grounds of appeal in the course of oral submissions on 30 September 2019.

34. In relation to ground one, the appellant argued that as a consequence of the interim order he had already been excluded from the residence for two years and that the effect of the final order would be a total exclusion of three-and-a-half years, or even four years.

35. As to ground two, the appellant pointed to the evidence that his son had a two bedroom townhouse. He asserted that there was no reason why the respondent could not go to live with their son in his townhouse. Later, in reply, he argued that there was no evidence to support the comments made by the Chief Magistrate about the reason why the respondent could not live with the son - indeed the appellant asserted that her Honour had "concocted" the reasons.

36. Ground three, related to the appellant's difficulties with alternative accommodation. I understood his submission to be that the Chief Magistrate did not take those difficulties into account as she was required to under the FVA.

37. Ground four, related to the allegation that the respondent had only given evidence of incidents in which the appellant had broken a musical instrument belonging to the respondent, and having commented about the respondent's leg. It was these incidents which the Chief Magistrate had relied upon in circumstances where he had not been cross-examined about them. In relation to the events on 7 October 2017 I understood the appellant to submit that her Honour could not take those incidents into account because the convictions were subject to an appeal.

38. In relation to ground one, Mr Hamack referred the court to s 35 of the FVA, which provides for a default period of two years for FVOs. There is provision allowing the court to order a shorter period, however, as the respondent had sought an order for two years, the appellant carried the burden of calling evidence and making a case as to why a shorter period would be appropriate.

39. The submission the appellant made to the Chief Magistrate was that either there should be no order at all, or, if there was an order, that it should not exclude him from living in the residence.

40. As to ground two, Mr Hamack noted that it was unclear whether the appellant was arguing that the error was based in the failure of the Chief Magistrate to acknowledge the fact of the son owning a townhouse, or that she did not give it proper consideration. He submitted that her Honour had referred to the issue in summarising the respondent's evidence (this was at T4 l20-25 and 35-40 of her Honour's reasons). The Chief Magistrate, in accepting the evidence of the respondent, should be seen as having accepted her reasons for not living with her son.

41. Mr Hamack submitted that ground three amounted to the proposition that the

Chief Magistrate had failed to take into account the hardship which may be caused to the appellant as a consequence of him being excluded from the residence, as required by sub-s 14(1)(d) of the FVA. He relied on the third paragraph of her Honour's reasons set out in paragraph [32] above to indicate that her Honour had considered the matter.

42. In relation to ground four, Mr Hamack considered this to be a submission that the evidence was insufficient to allow her Honour to make a final order at all. He pointed to s 34 of the FVA and emphasised that a single act of family violence would be sufficient to enliven the discretion to make a final order. In any event, the evidence of the respondent supported the summary of the Chief Magistrate (at T 3 and 4), referring to the appellant exhibiting certain patterns of behaviour, which included hitting the respondent on the head and throwing things at her when he was angry. Mr Hamack drew the Court's attention to the fact that the respondent testified to the events on 7 October 2017 (when the appellant threw food at her, kicked her and then slashed the couch with a kitchen knife). Mr Hamack also made reference to the earlier episodes in 2007, involving threats to the son with a knife in the presence of the respondent. Mr Hamack submitted that there was therefore significant evidence to support the final order made by her Honour.

43. After the hearing on 30 September 2019, Mr Hamack, by email copied to the appellant, raised with the court an issue which had not been argued by either party. The

Chief Magistrate had taken into account the appellant's convictions in relation to the assault of his son in 2007, and then the assaults and property damage which occurred at the residence on 7 October 2017. Mr Hamack pointed to the exclusion rule under

s 91 of the Evidence Act and questioned the effects of

44. I directed the respondent to file and serve written submissions addressing these issues by 4 October 2019, and that the appellant file and serve any responding submissions by 11 October 2019 (subsequently extended to 15 October 2019). Submissions have been received from both parties.

45. Sections 91 and 92 of the Evidence Act relevantly provide:

1. Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in the proceeding.

(2) Evidence that, under this part, is not admissible to prove the existence of a fact may not be used to prove the fact even if it is relevant for another purpose.

(2) In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or person through or under whom a party claims, has been convicted of an offence, rather than a conviction -

(a) in relation to which a review or appeal (however described) has been started but not finally decided; or

(3) The hearsay rule and the opinion rule do not apply to evidence mentioned in this section.

46. Sections 13A and 65 of the FVA provide:

To remove any doubt, the Magistrates Court need not comply with the rules of evidence applying in the ACT in a proceeding under this Act.

Note The Magistrates Court may inform itself in any way it considers appropriate in a proceeding for a family violence order (see s 65)

The court may inform itself in any way it considers appropriate in a proceeding for a family violence order.

47. The respondent referred to r 5100 of the CPR. Under that rule an appeal is "started" in the Supreme Court by the filing of a notice of appeal. Rule 5103 applies the time limits imposed by the relevant law conferring the right of appeal. Here, that is

s 209 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). The appellant was out of time in which to appeal, which is why he had applied under r 5081 for leave to appeal out of time. That leave was not granted until 15 March 2009. This had the effect, it was submitted, of meaning that the appeal had not been "instituted" at the time of the Chief Magistrate's decision. It followed that her Honour was not prevented from taking the 2018 convictions into account.

48. In the alternative, Mr Hamack argued that the combined effect of ss 13A and 65 of the FVA, is that it was open to her Honour to disregard s 91 and to take the 2018 convictions into account. This is supported by the objects and stated means of achieving those objects set out in ss 6 and 7 of the FVA. The latter includes, "ensuring that access to the courts is as simple, quick and inexpensive as is consistent with justice".

49. The appellant, in his written submissions, returned to the allegation that it was only his Application in Proceeding to vary the interim orders that was before the Chief Magistrate on 21 February 2019. In support of this argument he attached to his submissions a letter from the Magistrates Court to him, dated 8 November 2017. It is not appropriate for a party, including one who is self-represented, to provide the Court with evidence in this way. The leave granted to the appellant was leave to file and serve written submissions. This did not extend to evidence. I do not know whether or not the respondent objects to the letter going into evidence. I have therefore not admitted it. I should add that in any event I do not see the letter as supporting the assertion made by the appellant that in some way the Chief Magistrate and respondent's representative wrongly converted the hearing of his Application in Proceeding into a hearing for a final FVO.

50. In relation to the s 91 Evidence Act issue, the appellant argues that the Chief Magistrate relied on the conviction evidence as an essential basis for making the final FVO. The quashing of those convictions removed the basis for that order, so it follows that it should also be set aside.

51. In relation to the argument that "instituted" should be given a narrow meaning, the appellant pointed to the context of sub-s 92(2)(a). I understood him to be submitting that the Chief Magistrate should have been acting in accordance with the substance of that provision, which is to prevent a court from acting upon a conviction which is not final. The 2018 convictions were not "final" in his case because he had already applied for leave to appeal against them.

52. The provisions in the FVA governing appeals to the Supreme Court from the Magistrates Court are:

The following decisions by the Magistrates Court under this Act are appealable:

(a) the making, amending or revoking of a final order;

(b) a refusal to make, amend or revoke a final order;

(c) a decision mentioned in section 91 made on the review of a consent order.

(1) A person may appeal to the Supreme Court against an appealable decision if the person was a party to the proceeding in which the decision was made.

(2) The person must file a notice of appeal with the Supreme Court not later than 28 days after -

(a) if the appealable decision was the making or amending of a final order and the respondent was not present when the final order was made or amended - the day the final order or amendment is served on the respondent; or

(3) However, the Supreme Court may allow a person to file a notice of appeal after the period mentioned in subsection (2) if satisfied that it is appropriate to do so.

In an appeal, the Supreme Court must consider the evidence given in the proceeding from which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.

(a) confirm, reverse or amend the decision or order appealed from; or

(b) make the decision or order that, in all the circumstances, it considers appropriate, or refuse to make an order; or

(c) set aside the decision or order appealed from, completely or partly, and remit the proceedings to the Magistrates Court for further hearing, subject to the directions the Supreme Court considers appropriate.

The filing of an appeal against the making or amending of a final order does not affect the operation of the order.

53. Refshauge J considered the appeal provisions under the Domestic Violence and Protection Orders Act 2001 (ACT) (DVPOA) in CM v TM and Anor [2011] ACTSC 53 (CM). Those provisions were relevantly indistinguishable from those which apply here. His Honour saw the appeal as a rehearing, saying (at [14]):

Having regard to those provisions and the approach that this court has taken to appeals from the Magistrates Court, it seems to me that the appeal is an appeal by way of rehearing. I described such appeals in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 as follows (at [78]):

Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has the power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.

[Internal references omitted.]

54. His Honour then referred to the need for the appeal court to give weight to the advantages of the Magistrate who saw and heard the evidence while at the same time drawing its own inferences where they were available from undisputed or established facts. He concluded with the following reference (at [18]):

The approach was restated by Kirby J (with whom Gleeson CJ agreed) in CSR Ltd v Della Maddalena where his Honour said (at 466; [21] to [22]:

Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbably' and 'contrary to compelling inferences'.

However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be re-determined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it'.

55. I apply the principles as summarised by his Honour.

56. As the respondent submitted, the default position under s 35 of the FVA is that a final order will operate for two years from the date it is made. It is important to note that there is provision for extension of the order after the two years. Section 86 of the FVA provides:

(1) The Magistrates Court must, on an application, amend a final order (the original order) by extending it for a stated period unless satisfied that a protection order is no longer necessary to protect the protected person from family violence by the respondent.

(2) If the parties consent to the application to amend the original order, the Magistrates Court must amend the original order without considering the matter mentioned in subsection (1).

57. It is unfortunate that the course of the concurrent criminal proceedings against him meant that it took much longer for the hearing of the respondent's application for a final order than would usually be the case. As the appellant submitted, this meant that by the time of the hearing he was excluded from the residence for nearly one-and-a-half years under the special interim order.

58. While the duration of such an exclusion is certainly a relevant factor, it must be weighed having regard to the statutory context. Under s 34 of the FVA, the Magistrates Court is empowered to make a FVO in the following circumstances:

1. **A court may, on application, make a final order if satisfied that - **

(a) the affected person has reasonable grounds to fear family violence by the respondent; or

(b) the respondent has used family violence against the affected person.

59. The power to make an order under s 34 is conditioned by ss 14(1), 36 and 37 of the FVA. They are in the following terms:

1. In deciding whether to make a family violence order, a court must consider the following:

(b) the affected person's perception of the nature and seriousness of the respondent's alleged conduct;

(c) the welfare of any child that is an affected person;

(d) the accommodation needs of the affected person and any child of the affected person or respondent;

(e) any hardship that may be caused to the respondent or anyone else by the making of the order;

(f) any previous family violence or personal violence by the respondent in relation to the affected person or anyone else;

(g) any previous family violence order made in relation to the respondent;

(h) any previous contravention of a family violence order by the respondent;

(i) the need to ensure that property is protected from damage.

1. Safety of affected person and children paramount

In deciding the conditions to be included in a family violence order, a court must give paramount consideration to the safety and protection of the affected person and any child directly or indirectly affected by the respondent's alleged conduct.

A court must ensure the conditions included in a family violence order are the least restrictive of the personal rights and liberties of the respondent as possible that still achieve the objects of this Act and give effect to section 36.

60. The objects of the Act are set out in s 6. They are:

(b) to ensure the safety and protection of people, including children, who fear, experience or witness family violence; and

(c) to encourage perpetrators of family violence to be accountable for their conduct.

61. In CM at [37] - [38], Refshauge J stated, in relation to the making of a domestic violence order (having regard to the criteria under s 40 of the DVPOA, which was similar to that under sub-s 34(b)):

The sections I have referred to above show, in particular, that:

- for domestic violence (s 40(1)(a)), there is no requirement that the magistrate be satisfied that the respondent may engage in domestic violence in the future, in contradistinction to the position in respect of personal violence. That is because of the recognition that in a domestic situation, where there are bonds between the parties, there is always a risk of future domestic violence, as a result of the power and personal relations involved.

- the domestic violence may be directed at a relevant person not the applicant and that includes the daughter or mother of the applicant.

It seems to me that this, taken in conjunction with ss 5 and 6 of the Protection Orders Act, means that where the court is satisfied that domestic violence has occurred, it should ordinarily make an order unless satisfied that there is no probable likelihood of such circumstances, like the ongoing relationship that the appellant and respondent have, that would put the applicant at risk. This may put a burden of proof on the respondent but, of course, it could only be and, in my view, is an evidential burden to raise the issue such that the applicant must then show, on the balance of probabilities, that such circumstances are not proven or do not outweigh the need for protection.

62. The difficulty for the appellant here is that there was no evidence of any mending of the relationship between the parties which would have discharged the evidential burden his Honour refers to. On the contrary, the evidence of the respondent was that she was in so much fear of the appellant that she could never live with him again (T 15-16,

21 February 2019). The Chief Magistrate clearly accepted that evidence (see her Honour's reasons extracted in [32] above).

63. It is implicit in her Honour's decision that she did not see an order which allowed the appellant to live at the residence while the respondent was living there as workable. In that sense, after considering the competing considerations in ss 36 and 37 of the FVA, her Honour could only determine the issue one way - that is, that the order should exclude the appellant from the residence. In the absence of any evidence to suggest that the risk of further family violence had abated, the ongoing need for the safety and protection of the respondent outweighed the difficult accommodation circumstances suffered by the appellant.

64. Her Honour considered that those circumstances should be addressed by a settlement, or if that was not possible, a judgment in Family Court proceedings. In my view, that conclusion was open to her Honour and I see no error in relation to the duration of the FVO.

65. The Chief Magistrate did not expressly refer to the issue of alternative accommodation for the respondent in her brief reasons for decision. However, I agree with Mr Hamack's submissions on this point. Her Honour did refer to the relevant evidence and it is reasonable to conclude that she accepted as reasonable the respondent's explanation for why she felt she could not impose upon her son, or for that matter, move to other premises. This ground of appeal must therefore fail.

66. Her Honour did expressly refer to the appellant's accommodation problems in the third paragraph of her reasons extracted at [32] above. She clearly had that issue in mind when considering whether an order should be made under s 34 of the FVA and the conditions to be included under s 38. Her Honour did not spell out in detail why she concluded that the evaluation of the competing concerns under ss 36 and 37 led to her conclusion that the exclusion condition should form part of the FVO. However, I take note of what Mossop J said in Greenwood v Barlee [2018] ACTSC 46 at [4]:

The reasons given by the magistrate need to be understood having regard to the realities of the work of that court and the pressures under which magistrates operate. Regard must be had to the substance of the reasons: Acuthan v Coates (1986) 6 NSWLR 472 at 479; DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15].

67. I have set out what I see to be the substance of her Honour's conclusion on the condition excluding the appellant from the residence in paragraphs [62] to [64] above. It is implicit in her reasoning that her Honour had accepted, notwithstanding the very real accommodation difficulties suffered by the appellant, that the paramount consideration when weighing up whether to grant the final order is that contained in s 36 of the FVA. On that basis, ground three must also fail.

68. Again, although the Chief Magistrate did not set out specific findings as to each episode of family violence alleged against the appellant, the substance of her reasons indicates that she accepted the evidence of the respondent, particularly as to the events on

7 October 2017. By accepting that evidence, her Honour was in the position to be able to make a final FVO. Her Honour's reference to the damaged musical instrument and the throwing of food was a direct reference to the incidents admitted by the appellant. It is clear from her reasons as a whole that these were not the only incidents which she found to have amounted to family violence.

69. I reject the argument that the Chief Magistrate was not able to take the 7 October 2017 events into account because they were the subject of a potential appeal. The extent to which her Honour could rely on the conviction in relation to those events is a separate matter, which I will address below. Aside from that, her Honour heard from the respondent as to what occurred on 7 October 2017. The respondent was not effectively challenged as to that evidence.

70. When the appellant commenced to give his evidence-in-chief her Honour was clearly under the impression that the 2018 convictions could be relied upon as evidence of the underlying facts (see T25 l5-10, 21 February 2019). However, the appellant then informed the court in the terms summarised at [22] above. As noted in that paragraph, after some debate as to the implications of the appellant's application for leave to appeal against his convictions, the parties requested her Honour to determine the application which was before the court.

71. After the appellant returned to the witness box, the Chief Magistrate warned him that if he was successful in his appeal, one possible outcome could be that the matter would return to the Magistrates Court for rehearing. Her Honour gave the appellant the opportunity to obtain legal advice as to the advisability of giving evidence before her about the 7 October 2017 events, given the possibility of a rehearing of the criminal charges. The appellant decided against obtaining legal advice and then commenced a lengthy statement giving his version of what occurred on that day (see T32-35,

72. He was cross-examined by the respondent's representative. It was put to him that he had kicked the appellant. He denied that. He said that he "pushed her with (his) leg". In response to the assertion that he had thrown a plate of food at her, he said that he had thrown food at the wall near her. Some of that might have fallen on to her, but he denied that he threw the plate at her. As to the allegation that he stabbed the couch, he said that he was eating a mango and he slipped a bit causing the knife make a small cut in the couch.

73. It is apparent from this that the appellant consented to the matter proceeding before the Chief Magistrate based on the testimony given before her on

21 February 2019. There was no impediment, in those circumstances, to her Honour deciding the matter on the basis of the evidence given, notwithstanding the appellant's potential appeal.

74. It follows from the above that I reject the appellant's arguments in support of ground four.

75. I do not consider there to be an issue with respect to the Magistrate's consideration of the conviction in relation to the 2007 assault. Sub-section 92(2) of the Evidence Act makes this clear. The question for this Court is whether, in saying that the respondent's allegations of specific instances of violence against the respondent and her son were "supported by" the 2018 conviction, the Chief Magistrate fell into error? It is only if answered in the affirmative that the consequences of such an error need be considered.

76. I should say at the outset that I am not persuaded by the respondent's argument that, as a matter of strict technicality, the respondent's appeal had not "started", and therefore the exclusion under sub-s 92(2)(a) did not operate. It is apparent that the purpose of sub-s 92(2)(a) is to restrict the use of convictions in civil cases to those situations where the relevant criminal proceeding has been finalised. The proposal on which the section was based was discussed in the following terms in Australian Law Reform Commission, Evidence (Interim) (ALRC Report 26), Report No 26 (1985) vol 1 at [776]:

.. It may be advisable, although perhaps not strictly necessary, to define a conviction for the purposes of the proposal as not including a conviction that has been set aside, quashed subject to appeal or in respect of which the person convicted has been pardoned. Where a conviction has been appealed against but the outcome is yet unknown, the civil court should adjourn the proceeding or not take the conviction into account...

77. Having regard to the purpose of sub-s 92(2)(a), I consider that the words "a review or appeal (however described) has been instituted" should not be read narrowly. There is little doubt that they fail to comprehend a situation where there is a theoretical right to apply to extend time for an appeal many years after a conviction. Apart from anything else, there is nothing "instituted" in such a situation. However, the situation here was that the appellant informed the court that he had made an application for leave to appeal out of time. It was apparent that her Honour's initial reaction was that such an application could well engage s 31 of the FVA, in the sense that the charges were not "finalised" (see T27-30, 21 February 2019). Unfortunately neither party drew her Honour's attention to ss 91 and 92 of the Evidence Act.

78. I consider that the application for leave out of time was a "review or appeal (however described)" which had been instituted by the time of the hearing before her Honour. Until the application for leave was dealt with there was a prospect that the appeal might be permitted and, if so, that it might be successful, leading to a quashing of the conviction. In that sense, the criminal charge which led to the conviction was not finalised. It was unsafe and potentially unfair for the Court to rely on the conviction while such uncertainty remained. It follows that, unless ss 13A and 65 of the FVA applied to permit the evidence to be admitted, the evidence of the 2018 convictions should not have been taken into account by the Chief Magistrate.

79. In the matter of CP v Director-General of Community Services Directorate and Ors [2017] ACTSC 394, Refshauge J had cause to consider whether evidence in relation to other children CP had been unable to care for many years previously should have been admitted before the Magistrate who was considering whether care and protection orders should be made in relation to several younger children. The relevant statutory provision provided that the Court was not bound by the rules of evidence and permitted it to inform itself in any manner which it considered appropriate.

In my view, there are significant problems with that approach. The risk of such evidence is obvious. Although the rules of evidence do not apply to these proceedings (s 716 of the Childrens Act), they are not irrelevant and the Court should have regard to them unless, for some reason it is appropriate to dispense with them: A and B v Director of Family Services (1996) 132 FLR 172 at 177. Any evidence admitted, despite the rules of evidence being abrogated, must still be rationally probative: Roberts v Balancio (1987) 8 NSWLR 436 at 440-1.

Evidence of the prior applications is rather like tendency evidence which, under ss 97 and 101 of the Evidence Act 2011 (ACT), is admissible, but only where there are appropriate safeguards.

To hold that, a decade earlier, different children were in need of care and protection does not provide evidence of significant probative value of the likelihood that the children, the subject of these proceedings, are in need of care and protection. There needs to be specific evaluation of the circumstances of the latter children and an application to them of the statutory criteria in the first place to see whether they have been or are being abused or neglected or are at risk of abuse or neglect.

81. It seems to me that there are similarities between the risks his Honour was discussing and the risks of relying upon a conviction which might be set aside on appeal. The whole rationale for allowing a party in a civil matter to rely-upon the conviction of another party in relation to a relevant matter disappears if the conviction is at risk of being set aside. In that sense it is not safe to rely-upon the conviction to prove the essential facts on which it was based. Indeed, until it is final, the conviction cannot properly be considered to be "rationally probative".

82. In my view, notwithstanding ss 13A and 65 of the FVA, it would have been a wrong exercise of her Honour's discretion to admit and rely-upon the evidence of the 2018 convictions in circumstances where she was aware that the appellant had filed an application for leave to appeal out of time.

83. In relation to the appellant's complaints about the nature of the hearing before the

Chief Magistrate, I must say that I have some difficulty in understanding his apparent confusion. On my reading of Exhibit "1" and the transcript of the hearing, it appears reasonably clear that the hearing concerned the questions of whether an FVO should be made and, if so, whether the appellant should be excluded from the residence by that order. This is emphasized by the debate had at the hearing about s 31 (which can only be relevant in a final FVO hearing) and indeed by her Honour's explanation in the course of submissions by the appellant, where she said:

Her Honour: But I am not looking to extend an order. I am determining today for the first time, whether I make a final order. So, I am making that decision fresh from the evidence that I hear.

[Emphasis added.]

84. Having regard to the way the case was run and the nature and extent of the evidence called by both sides, I do not accept that there was any conversion of an interlocutory hearing on a limited issue into a surprise final hearing. Insofar as the appellant relies on this as a ground of appeal, I reject it.

85. Although I have rejected the grounds of appeal relied upon by the appellant, I have concluded that her Honour fell into error in admitting into evidence and taking account of the 2018 convictions. As I have indicated above, this raises the question of whether, flowing from this conclusion, the appeal should be allowed and the Chief Magistrate's decision set aside.

86. In Peverill v Crampton [2010] ACTSC 79, Refshauge J summarised the principles which he saw as applicable to an appeal under div 3.10.2 of the Magistrates Court Act. Those provisions are relevantly indistinguishable from ss 95 and 96 of the FVA. Relevantly, for current purposes, his Honour said at [24]:

Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:

...

1. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
2. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
3. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.

87. Later in that decision his Honour said at [117] - [119]:

Ordinarily, a failure to specify the correct test to be applied in relation to a principle, such as that relating to self-defence, would amount to inadequate reasons for decision and require the court to uphold the appeal and remit the proceedings back to the Magistrates Court.

It is desirable, however, to avoid this if it can properly be done without injustice. For example, where the outcome would inevitably be the same, it is not appropriate to remit a case for rehearing: R v Healey [2008] VSCA 132; (2008) 186 A Crim R 433 (at 442-4).

That is not the situation here, but the court should, nevertheless, take reasonable efforts, consistent with the interests of justice, not to remit cases for formal breaches of the obligations of judicial officers where the substance has not been breached. Thus, if the learned Magistrate has, in fact, applied the correct test and not misapplied or failed to apply it, then the failure to articulate it should not require a new trial with the attendance cost, stress to all involved and delay.

88. It seems to me that the power given to this Court under sub-s 96(b) of the FVA requires a similar process of analysis to be gone through as that carried out by his Honour in relation to criminal appeals from the Magistrates Court. Importantly, it permits this Court to determine whether the decision of the

Chief Magistrate was correct, notwithstanding the error made in relation to the 2018 convictions.

89. The crucial question is therefore whether the Chief Magistrate made her findings based on: her acceptance of the evidence of the respondent, and her rejection of the evidence of the appellant, with the evidence of the convictions providing only confirmatory support; or, whether the conviction evidence was relied-upon as an essential part of the evidence when making her findings. If the former is the correct characterisation of her Honour's reasoning, then there was no miscarriage of justice and the appeal should be dismissed. If the latter is correct, the appeal should be allowed and the matter remitted to the Magistrates Court for further hearing.

90. I have read the transcript of her Honour's reasons for decision several times. I have come to the firm view that her Honour did use the evidence of the 2018 convictions by way of confirmatory support for her findings. Her Honour clearly accepted the respondent as a reliable witness. The reference to her as "plausible and persuasive" and as being "genuinely afraid of him" leads me to this conclusion. By way of contrast, it seems to me that her Honour did not accept the claims of the appellant. Her Honour's reference to the evidence as "rambling", "self-referential" and suffering from "an exaggerated sense of grievance" strongly suggests that her Honour was unpersuaded by him. That is reinforced by the Chief Magistrate's reference to the appellant's lack of insight and what she saw as the implausibility of his explanation for why the applicant was seeking the FVOs against him.

91. The fact that her Honour, after learning of the appellant's application for leave to appeal, allowed him to give detailed evidence as to what occurred on 7 October 2019, suggests to me that she was engaged in a primary fact-finding exercise and did not merely rely-upon the convictions to prove those facts. I also conclude that her reference to respondent's allegations of violence being "supported by" the convictions (which must include the 2018 convictions) is more consistent with the first characterisation of the use of that evidence noted in paragraph [89] above than the second.

92. It follows from this that in my view her Honour's finding that there had been instances of violence on the part of the appellant toward the respondent and her son, and that the respondent had reason to fear for her safety and that of her property must stand independent of the 2018 conviction evidence. That, in turn, leads to the conclusion that there was no miscarriage of justice in the making of the FVOs. The appeal must therefore be dismissed.

(1) The appeal is dismissed and the orders of Chief Magistrate Walker, made on 14 March 2019, are confirmed.

I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.