Xiu (a pseudonym) v Xiu

1. The proceedings in the Magistrates' Court took place over four days on 4 and 27 April 2022 and 6 and 21 June 2022. Both parties were represented by counsel.
2. The appellant's application for a final IVO, which included the children, and the respondent's cross application, were heard together. In the words of the learned Magistrate, "the evidence [was] almost entirely contested."[3]
3. On the first day, the appellant was affirmed and examined. It is relevant to note that, due to a recording malfunction, some of the morning of the second day of hearing was lost. The transcript shows the appellant's cross-examination continued from late in the morning of the second day. The appellant's mother was then called, gave evidence and was cross-examined. Later, the respondent was sworn and gave evidence. He was cross-examined on day three and also called his mother on his behalf.
4. On the fourth day, the learned Magistrate delivered judgment with oral reasons. She granted the cross-application by the parties, meaning intervention orders were made against both the appellant and respondent. The children were included on both FVIOs. It is only the intervention order against the appellant that is the subject of this appeal.

1. In the decision of the Honourable John Dixon J in AAA v County Court of Victoria & Ors ("AAA"),[4] John Dixon J considered the terminology associated with s119 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:

(a) that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[5]

(b) 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;[6]

(c) the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[7]

(d) the Court is required to assess and evaluate the evidence for itself.[8]

1. 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.[9]
2. As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[10] 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.[11]
3. 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.[12] 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".[13]

1. Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[14]

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".[15] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[16]
2. The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[17]

"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."[18]

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:[19]

"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. Notwithstanding the statutory obligations placed upon appellate courts to scrutinise the evidence, inferences and conclusions before them, the general "tenor" of appellate court decisions on these issues is of a broad respect for the conclusions reached by trial judges.
2. To establish that a conclusion of a trial judge was incorrect, it is necessary for an appellant to satisfy the appellate court that the trial judge reached the wrong conclusion by reason of an error of law, fact or discretion, supported by evidence.[20]
3. In Gett v Tabet, Allsop P, Beazley and Basten JJA explained:

"Where no error can be identified and the conclusion of his Honour is not itself implausible, this court should properly give weight to the view formed by the trial judge, because to do so is to acknowledge the fact that in various respects, his Honour enjoyed a beneficial position in resolving conflicting evidence, drawing inferences and making the ultimate evaluative judgment."[21]

1. In circumstances where an error is identified, to succeed on appeal it must be established that the identified error puts the validity of the conclusion in doubt. If the error in question is inconsequential, the fact of the error is not of itself enough for an appeal to succeed.[22]
2. The High Court in De Winter v De Winter clarified the circumstances in which such an error would affect the ultimate decision on appeal:

"There are many other authorities, from Young v Thomas [1892] UKLawRpCh 60; [1892] 2 Ch 134 at 137 to Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.

It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themsleves [sic] have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations."[23]

1. Finally, where an appeal is brought on the basis that a trial judge ought to have attributed greater weight to certain evidence, or reached an alternative conclusion based on the evidence, it is necessary for the appellant to establish that the conclusion of the primary judge was not open on the material before them.[24]
2. Having set out those principles, I now turn to the grounds of appeal pressed by Ms Xiu.

1. By reason of the matters set out above, it is for the appellant, Ms Xiu, to demonstrate legal, factual, or discretionary error in the decision of the learned Magistrate below. To this end, the appellant filed grounds of appeal and submissions in support. The appellant's grounds of appeal were contained in an affidavit dated 6 May 2024 and attached documents.
2. In her statement of grounds of appeal[25] and response to submissions,[26] the appellant alleged a number of errors on the part of the learned Magistrate. The appellant's submission were contained in her Court Book. The respondent's written submissions were contained in an affidavit dated 6 May 2024 and attached documents.
3. The preliminary hearing in this matter was held on 3 June 2024. At the hearing, the appellant was represented by Counsel, Mr Moutsias. The respondent was self-represented. The appellant was asked to address the Court on her three strongest points. I then summarised these points for the respondent and he was afforded the opportunity to respond to each. The Court then adjourned temporarily to allow the respondent to consider his position. When the Court resumed sitting, the respondent made brief submissions referring to the sections of the Magistrate's decision and which, I consider, did not address the three primary points the appellant put in issue. For the following reasons the appeal is upheld.

1. In the learned Magistrate's decision, she rightly stated that the power to make a final FVIO under s74 of the Act is a two-stage test. First, the Court must be satisfied on the balance of probabilities that the respondent has committed family violence against the affected family member. Second, the Court must be satisfied the respondent is likely to continue to do so.
2. In regards to the cross applications, the learned Magistrate stated:

"... I am satisfied on the balance of probabilities that each applicant has satisfied the first limb of the test, in that I am satisfied that each party has acted such to commit family violence against the other. This is largely based on the undisputed facts that each respondent has pleaded guilty to acts of family violence that gave rise to criminal charges during the operational period of the interim orders. I am of the view that being so satisfied, it is not necessary for me to try an unravel the contested facts any further in this regard."[27] (my emphasis)

1. The appellant submitted that the Magistrate erred in the above finding as the appellant had not pled guilty to an act of family violence, but had instead agreed to a diversion when it was alleged she had breached the FVIO.
2. I accept this submission. First, it is to be noted that the respondent could not point to any part of the transcript in which the appellant accepted that she had pleaded guilty to an act of family violence. Second, there is no material tendered in the Magistrates' Court proceeding which demonstrates that the appellant has pleaded guilty to a charge based on an act of family violence.
3. Third, the transcript makes clear that the appellant accepted that she had breached the terms of the family violence order in May 2018. However, she gave evidence that she acknowledged that breach and was entered into the diversion program of the Magistrates' Court as a result. Section 59(2) Criminal Procedure Act 2009 makes it a condition of eligibility for a diversion program that the accused acknowledges responsibility for the offence. Subsection (3) states that, "An accused's acknowledgment to the Magistrates' Court of responsibility for an offence is inadmissible as evidence in a proceeding for that offence and does not constitute a plea."
4. As a result the learned Magistrate made a clear error of fact in her judgment. She acted on a finding that the appellant had pleaded guilty to a charge of breaching the family violence order when there was no such plea. Her consideration of an irrelevant factor led to an error in her finding on the first limb, that the appellant had committed an act of family violence.
5. Even if it were said that the Magistrate had simply poorly expressed herself and was intending to convey the fact that the appellant had by her breach of the order committed an act of family violence this submission cannot be made out. This is because the Act does not automatically make any breach of an FVIO an act of family violence.[28] In that circumstance it was incumbent on the learned Magistrate to make factual findings as to the conduct of the appellant and then come to a conclusion as to whether such conduct constituted family violence as defined. She did neither of those things. Any argument put on this alternative basis must also fail. The appeal must succeed on this ground.
6. I consider the learned Magistrate's erroneous factual findings in this regard also infect her finding as to the second limb. In this regard the learned Magistrate stated:

"In relation to each application, I am satisfied on the balance of probabilities that each applicant has satisfied the second limb of the test in that I am satisfied that if a final intervention order is not granted in favour of each applicant, it is more likely than not the behaviour constituting family violence will continue to occur. This is largely based on the fact that the parties will continue to have ongoing contact to facilitate the co-parenting of their children.

Given the issues between the parties to date, I am satisfied that without the protection of a final intervention order there is a real risk of both parties behaving in a manner that constitutes family violence in the future."[29]

1. This is the only reason explicitly stated as to how the learned Magistrate came to be satisfied as to the second limb.
2. The learned Magistrate declined to make findings on the majority of the allegations made by the parties due to their credibility issues, save for stating there was an acrimonious relationship between the two.[30] In the absence of other clear factual findings, I infer that the finding on the second limb of s74 was based, at least in part, on the mistaken belief that the appellant had pled guilty to a family violence offence. It can be inferred that the learned Magistrate considered that past behaviour may well be an indicator of future behaviour. In that setting the learned Magistrate's incorrect assumption that there had been a plea of guilty to past acts constituting family violence was critical as such acts were those to be expected in the future. However where there was never an act of violence conducted in the past that constituted family violence (given no finding was made about the quality of the acts themselves but only a reliance on the false assumption there had been a plea of guilty in respect of such an act) there was no evidence on which to base this prediction as to future conduct. This finding on the second limb constitutes the use of an irrelevant fact on which to base a conclusion. This is a factual error in the sense described in Lee v Lee.
3. The appeal must succeed on this ground also.

1. As stated above, the learned Magistrate declined to make findings on the majority of facts. This raises what I consider to be a legal error.
2. In considering the content of the judicial obligation to give adequate reasons, I am indebted to the judgment of McWilliam J in Bourke v Styche.[31] The content of the obligation depends on the circumstances of the matter being considered.[32] In AK v the State of Western Australia ("AK"),[33] Heydon J stated at [85]:

"... Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed. ..."

1. In regard to what may constitute adequate reasons at the Magistrates' Court level, Refshauge J in O'Connell v McMennemin[34] held that there is an obligation on a magistrate, as part of the exercise of his or her judicial office, to adequately state the findings of fact and reasons for decision, for the purpose of enabling a proper understanding of the basis upon which the findings of guilt were reached. I consider this case of particular relevance as Refshauge J was dealing with a matter on appeal by way of rehearing from the Magistrates' Court. Such a rehearing required an analysis of whether the Special Magistrate had fallen into legal, factual or discretionary error. That situation is particularly apposite to that before this Court.
2. In a summary jurisdiction, the reasons must articulate the essential ground or grounds on which the decision rests, although a detailed explanation is not always required.[35] Similarly in Greenwood v Barlee,[36] Mossop J stated:[37]

"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."

1. Even having regard for the significant demands on magistrates, in particular in dealing with family violence matters, I cannot be satisfied the learned Magistrate fulfilled her judicial obligation to provide adequate reasons for her decision to make an FVIO against the appellant. The learned Magistrate did not make findings on almost all of the facts in relation to the allegations of family violence. By itself this is a breach of one of the fundamental tasks imposed on a judicial officer in the course of coming to a judgment, as expressed by Heydon J in AK and set out above.
2. What findings she did make were errors of fact, as stated above, and could not support the ultimate decision.
3. The learned Magistrate found that the parties would likely continue to commit family violence, "largely based on the fact that the parties will continue to have ongoing contact to facilitate the co-parenting of their children."[38] This is the only reason explicitly stated to support the finding that the second limb of the test was satisfied. I consider contact between the parties alone cannot form the basis for a finding the parties are likely to commit family violence in the future. The only other finding she made that could have informed her decision was that the parties had an "acrimonious relationship". I do not accept an acrimonious relationship between former spouses constitutes family violence or even a predisposition to future family violence, without something more.
4. Even if the appellant's historical breaches of intervention orders were taken into account, they would not support the Magistrate's finding without a rational path of reasoning to explain how that would be the case.
5. Unfortunately, it appears that part of appellant's evidence at the Magistrates' Court is not available due to a recording malfunction.[39] What transcript is available indicates that it was alleged that in April 2018, Ms Xiu attended Mr Xiu's address and was "bashing on the doors and bullying [him]" in front of the children.[40] The appellant denies this and it is presumably amongst the contested matters on which the learned Magistrate did not make a finding. Later, Ms Xiu gave evidence that she received two diversions. These appear to be for the "technical breach" the appellant refers to in her submissions. According to the appellant's account and the record of material tendered at the hearing below, this alleged breach or breaches were for posting two photographs of her children on Facebook in contravention of the intervention order on 20 February 2019 and 4 March 2019;[41] sending the appellant an email regarding financial assistance she was providing him; and sending an email "pleading" with the respondent to stop making allegations against her amongst the community on 18 June 2018.[42]
6. It seems, then, that the appellant's most recent breaches occurred in March 2019. While the Magistrate raised issues with both parties' credibility, it does not appear the essential circumstances of these breaches came under attack. This means that the most recent breach occurred more than three years before the learned Magistrate's decision. Even if it were accepted that they constituted family violence, in the absence of findings to the contrary they should have been weighed against the applicant's substantial adherence to the FVIO over the period of time from the accepted breaches to the date of the hearing. The weighing of those matters needed to be conducted by the learned Magistrate. There is simply no way of knowing if they were. The failure to set out a path of reasoning robs parties of an opportunity to understand how the decision was arrived at. This failure was an error of law.
7. Having found the grounds of both error of fact and law are made out, it is not necessary that I consider the appellant's other grounds of appeal. For these reasons, I uphold the appeal.

1. After I handed down my decision that the grounds of appeal were upheld, I invited submissions on the orders I should make.
2. The appellant's Counsel submitted that the FVIO against the appellant should be revoked. The respondent stated that the FVIO should be maintained or extended. I took this to mean that he wanted to relitigate the application for an FVIO against the appellant.
3. The range of options open to the Court once its jurisdiction is enlivened are set out in s119 of the Act. The Court may:

a) confirm the relevant decision; > > b) set aside the relevant decision; > > c) vary the relevant decision and make any other order the Magistrates' Court could have made.

4. Here the appellant simply sought that the FVIO made by the Magistrate against her be set aside. This would have the effect of removing the FVIO and implicitly the interim intervention order made against her.
5. In determining whether this was the appropriate course of action I could not locate any authority on the point to guide this Court as to the correct course to be adopted once its jurisdiction was enlivened.
6. In determining the dispute between the parties however it appears to me that there are a number of principles of broad application. First, the purposes of the Act need to be borne in mind. These are designed to achieve a variety of aims; to maximise safety, prevent family violence and promote accountability of perpetrators.[43]
7. Second, in coming to an assessment of the future conduct of the proceedings it is necessary to also have in mind that the definition of "family violence" in the Act is broad and encompasses the notion of systems abuse. Within that is the undoubted fact that a relitigation of issues previously ventilated in a contested hearing where the parties were both cross-examined is costly and stressful. This is not to make any finding that one or other party was a victim or a perpetrator but is no more than a recognition that litigation in such matters is difficult.[44]
8. Third, the underlying chronological facts of the case must be brought into account. Here a Court should look at the time of the alleged conduct, the time the order was sought, the term it was sought for, the time it was made and the facts since the order was made. Here the alleged acts took place, from around the start of 2018 to, at the latest, March 2019. The matter was, however, only litigated in mid-2022. The appeal to this Court was heard in June 2024. Those facts bring into sharp focus that a de novo hearing now would be to relitigate matters that occurred some years ago. Trial courts recognise that the length of time from the happening of events to the trial often works against the quality of justice.[45] That is particularly relevant here because the vast majority of evidence was oral evidence that was in contest. Such evidence is particularly prone to deterioration with the effluxion of time.
9. It is also relevant to note that the order made by the learned Magistrate was for three years. In that case the FVIO the appellant was subject to was imposed in June 2022 and is due to expire in June 2025. The appellant has abided by the FVIO for two years of the order already. There is no evidence that she has breached the order. If this matter proceeded to a full rehearing in essence the parties are in dispute over the remaining one year on the FVIO. It should be recognised that the party, as the respondent is here, can make fresh application to the Magistrates' Court for behaviour which occurred after 2018.
10. Fourth, the surrounding circumstances of the case. As is often the situation in matters such as these, Family Court orders also operate to regulate the way the parties interact. This fact can be brought to account in deciding whether it is necessary to conduct a de novo rehearing to determine whether the initial application for the FVIO should be granted.
11. Fifth, the intentions of the parties. If the parties express the view that it is necessary to conduct a de novo rehearing this is one factor which is relevant in determining whether that course is to be adopted. Here the respondent will be deprived of the FVIO which he has had in place for two years.
12. Applying those principles here I consider there is almost no utility in conducting a rehearing of the application for an FVIO as brought by the respondent in the Magistrates' Court. In the circumstances of this case I consider the necessary order is one which sets aside the relevant decision of the learned Magistrate. I come to this conclusion particularly because the allegations which formed the basis of the initial application are now some six years ago. To relitigate those matters now works directly against one of the aims of the FVPA which is to "...reduce the trauma for victims of family violence caused by being subjected to multiple court hearings where they are open to cross-examination".[46] This is particularly so where the order in this case is set to last for at most one further year. To order the parties back to a full hearing in a circumstance where they already have the protection of a Family Law Order to achieve an FVIO of at most one further year seems disproportionate to the aims of the Act and the cost and stress caused by such a course.
13. I will order that the Magistrate's FVIO against the appellant be revoked. I make it plain this also revokes the interim order against her. I will not order a rehearing in this matter for the reasons above.

[3] Transcript from Magistrates' Court hearing dated 21 June 2022 (the transcript is wrong as to the year 2023 and it is agreed that case was heard in 2022) ("T 21 June 2022") 4 Line ("L") 15-16

[4] [2023] VSC 13

[11] Ibid at paragraph [51(b)] relying on Matsoukatidou v Yarra Ranges Council [2017] VSC 61; (2017) 51 VR 624, 645 at [65]

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

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

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

[17] [2019] HCA 28; (2019) 266 CLR 129 at [55]

[18] Blunt v Blunt [1943] AC 517 at 526

[19] (1936) 55 CLR 499 at 504-505

[20] Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [22]

[22] WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 at [138-139]; see also Jan v Minister for Home Affairs [2019] FCA 1837 at [48]

[23] De Winter v De Winter (1979) 23 ALR 211 at 217-218

[24] Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety [2022] VSCA 101 at [20-21]

[25] Appellant's Court Book ("ACB") 2-3

[27] Transcript of Magistrates' Court hearing on 21 June 2023 ("T 21 June 2023") 5 Line ("L") 6-16

[28] See s5 of the Family Violence Protection Act 2008 as to the definition of the term "family violence"

[31] [2024] ACTSC 62

[32] Thorne v Kennedy [2017] HCA 49; 263 CLR 85 at [61]

[33] [2008] HCA 8; 232 CLR 438 (AK) (references omitted, emphasis added)

[34] [2014] ACTSC 112 (O'Connell) at [70]-[80]

[36] [2018] ACTSC 46

[39] Transcript of Magistrates' Court hearing dated 27 April 2023 ("T 27 April 2023") 1.

[43] Section 1 of the Family Violence Protection Act 2008

[44] AAA at [66], see particularly also [64](c) relying on the Explanatory Memorandum cl 118, 120 (n 20)

[45] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [4]-[6]