ZXC (a pseudonym) v VBN

(a) the Magistrate accepted false evidence from VBN (ground 2);

(b) the Magistrate (wrongly) allowed objections to the cross-examination of VBN (ground 3); and

(c) the Magistrate made findings that were inconsistent with the evidence that she would have given if she had been allowed to give evidence (ground 4);

1. ZXC claims the Magistrates' Court made discretionary errors as it unreasonably or inappropriately exercised a discretion:

(a) by failing to allow her to give sworn evidence or make full submissions (ground 5);

(b) by finding that ZXC was at risk of future family violence, particularly her attempts to advocate on her own behalf as a "vulnerable migrant woman" (ground 6); and

(c) in determining the duration and conditions of the FVIO (ground 7).

1. To understand the claimed errors, it is necessary to set out what happened in the Magistrates' Court and in this Court. I have focused on VBN's application for an FVIO as that is the application that led to the relevant decision that ZXC seeks to appeal. In doing so, I refer to ZXC's application for an FVIO and the order made in the application, but that is done merely to explain what happened. To be clear, there is no appeal in respect of the order made in ZXC's application for an FVIO.

1. On 21 June 2022, Victoria Police made an application and summons for an FVIO against ZXC on VBN's behalf. The Magistrates' Court made an interim FVIO on 22 June 2022.
2. On 14 June 2024, the Magistrates' Court made orders substituting VBN as the applicant and listing VBN's application for contested hearing, on the same day as ZXC's application for an FVIO against VBN.
3. On 3 December 2024, the Magistrates' Court commenced the hearing of each of VBN and ZXC's applications.
4. At the commencement of the hearing, Mr Cole, barrister, announced that he appeared for ZXC on briefs pursuant to ss71 and 72 of the Act.[5]
5. Section 70 of the Act prohibits cross-examination of protected witnesses, which can include an applicant for an FVIO, by a respondent in certain circumstances. Where there is a prohibition for the cross-examination of an applicant who is not legally represented, a court must order pursuant to s71 that Victoria Legal Aid offer a respondent legal representation to cross-examine the applicant. Similarly, under s72 of the Act a court must order Victoria Legal Aid to provide legal representation to an applicant where the respondent is legally represented for the purpose of any cross-examination by the respondent's legal representative.
6. Mr Cole's statement that he appeared pursuant to ss71 and 72 of the Act reflected the fact that at the commencement of the hearing there were two applications before the Court: ZXC's application in which she was the applicant and VBN was the respondent; and VBN's application in which he was the applicant and ZXC was the respondent.
7. Although a brief pursuant to ss71 or 72 is limited to cross-examination, there is a practice by some barristers retained on such a basis to agree to act beyond the scope of such a retainer.[6] This is a matter as between the barrister and the party. However, it means that a barrister may, depending on what arrangement he or she has with a party, represent that person more broadly, including for the whole of the hearing.
8. Mr Hume, barrister, announced an appearance for VBN. He did not initially state the basis for his brief, but later he indicated he was in the same position as Mr Cole, which I infer means he acted for VBN on briefs pursuant to ss71 and 72 of the Act.[7] Although Mr Hume's briefs were pursuant to ss71 and 72 of the Act, he represented VBN for the whole of the hearing including making submissions. The fact he did so is an example of the practice of some barristers, which I refer to in the previous paragraph.
9. The hearing had a rocky start with confusion about what prior orders had been made. Also, it was revealed that VBN and ZXC were required at 11.30am to appear by telephone in a proceeding relating to an application for a divorce.[8]
10. The Magistrate informed the parties that she would start by hearing ZXC's application first, that is the application where ZXC was the applicant and VBN was the respondent, although she noted that the evidence in each application would probably be similar. She informed the parties that if they could not resolve the matters, she would determine them and her decision would be based only on the viva voce evidence given by the parties and any information tendered throughout the course of the contested hearing.[9]
11. The Magistrate was informed that the parties desired some time to negotiate, and that the question in each application would be the necessity for further orders, which turned on whether there was a future risk of family violence.[10] The Magistrate said that she would stand the matter down to 12.00pm unless the parties wished to call her back earlier. Before departing the bench, her Honour sought to clarify with Counsel whether the divorce proceeding was by consent. Up to that time, all interactions between the Magistrate had been via Counsel. However, the transcript records ZXC calling out that she did not want to be divorced from VBN.[11] The applications were adjourned.
12. The Court resumed after the adjournment. Immediately on resumption, Mr Cole told the Magistrate that ZXC had advised him that she wished to represent herself in the applications save for cross-examination. Her Honour clarified with ZXC and she said "at this moment"[12] she was representing herself. After a brief exchange with Mr Cole, the Magistrate asked him to sit down. From then up to when VBN commenced giving evidence, the Magistrate spoke only with Mr Hume and ZXC, which was consistent with ZXC representing herself and being given the opportunity to represent herself. The interactions between the Magistrate and ZXC sought to clarify what ZXC was seeking, and while she had difficultly at times responding with an answer that related to the question, she was given the opportunity to represent herself. This continued up to a short adjournment at about 12:40pm for about 10 minutes to enable the parties to see whether they could resolve any application by consent.[13]
13. On the resumption of the hearing, it was clear that ZXC's application against VBN had resolved by consent.[14] This is consistent with an order from the Magistrates' Court made on 3 December 2024 that listed ZXC as the affected family member and VBN as the respondent. The order extended the existing interim FVIO until midnight on 2 December 2026 and prohibited VBN from committing family violence against ZXC, intentionally damaging any of her property or threating to do so, and having another person do anything to ZXC that he was prohibited from doing under the order.
14. The Magistrate called VBN's application on for hearing. Mr Hume called VBN, who was sworn in and gave evidence. Mr Hume led his evidence-in-chief. Mr Cole made objections during VBN's evidence-in-chief, consistent with his retainer under s71 of the Act. During VBN's evidence-in-chief there are examples of ZXC interjecting.[15] The Magistrate, appropriately, told her to be quiet. The evidence-in-chief concluded with VBN tendering documents.[16]
15. After VBN had completed his evidence-in-chief, he was cross-examined by Mr Cole. This was consistent with his retainer under s71 of the Act, and that ZXC was prohibited from cross-examining VBN because of the prohibition in s70 of the Act. Mr Cole's cross-examination of VBN was consistent with him having instructions from ZXC, in that he put to VBN matters that he said ZXC would give evidence about.[17] There is one example from the transcript of ZXC interjecting during the cross-examination about what VBN was saying and the Magistrate appropriately asking her to be quiet.[18] There are multiple examples of exchanges in the cross-examination where Mr Cole puts matters to VBN on the basis that ZXC would give evidence including him stating that his client would give evidence.[19] At one point during the cross-examination, the Magistrate explained to VBN that Mr Cole was asking him about matters that ZXC would give sworn evidence about.[20]
16. After Mr Cole had cross-examined VBN, Mr Hume briefly conducted a re-examination. After the re-examination concluded, Mr Hume told the Magistrate that was the evidence for VBN, save that if the matter was adjourned he may seek to tender a certified translation of a foreign court order that had been the subject of VBN's evidence.[21] VBN was excused from the witness box.
17. After VBN was excused from the witness box there was an extended exchange between the Magistrate, Mr Cole and Mr Hume about an available date for a second day of hearing. In that exchange, Mr Hume suggested that Mr Cole may no longer be needed given that VBN had completed his evidence, but Mr Cole said that part of his role was to represent ZXC when she was cross-examined so that he could make objections, which the Magistrate agreed with.[22] Even though ZXC had said that she wished to represent herself save for the cross-examination, the exchange was appropriate given it concerned a purely administrative matter.
18. On 9 April 2025, the hearing resumed for a second day. It is important to appreciate that this was about five months after the initial hearing date. The transcript for the 9 April 2025 starts with a reference to a recording malfunction. It is not clear what it was and for how long. The transcript does not record appearances, but it is apparent from the transcript that Mr Hume was representing VBN and Mr Cole was representing or purporting to represent ZXC. ZXC was present at the hearing as she spoke in Court at one stage.
19. There was an extended exchange between the Magistrate, Mr Hume and Mr Cole about the issues of whether there was a proper translation of the foreign court order discussed at the end of the first hearing, the status of various matters, including the divorce proceeding, and whether Mr Hume could reopen VBN's evidence-in-chief, which was refused.
20. Relevant to the issue of whether Mr Cole was representing ZXC, there are multiple examples in the transcript for the second day of Mr Cole making statements to the Court based on claimed instructions from her. The most striking is that at one point he informed the Court that ZXC wished to make a submission to the Magistrate, even though there was a real issue about whether Mr Cole's cross-examination of VBN had concluded:

Mr Cole: What [ZXC] has instructed me is that in terms of cross-examination she wants to be able to address the court about some matters herself and what I would like to say just before she does that is that my position is in terms of cross-examination, that it's my submission that there ought not be any further material that was not provided to the court and that we have had no notice of until today, put into evidence.

And on that basis I'd be saying that it's really what [ZXC] is saying is she doesn't want me to continue with the cross-examination now, she wants to address the court and then at the end of that it will be a matter for Your Honour whether you wish the cross-examination to continue or not. I know it's unorthodox but that's what I've been told.[23]

1. The Magistrate sought clarification from Mr Cole about what the submission would be about, but he could not say. The Magistrate then sought clarification from ZXC, and the following exchange occurred:

Her Honour: Without giving me detail, what is the topic that you want to talk about; you say that you want to address the court before cross-examination. What is the topic that you want to address the court about?

Her Honour: No, no, no. No. I'm asking you, without giving me detail, just the topic, what's the topic that you want to talk about?

ZXC: I - I want to let you know that I got a house vacate notice.

ZXC: House vacate notice. House vacate notice, that is - that is I submitted to you, if you can look at - - -

ZXC: Because [VBN] is not paying this house mortgage payment from 2021 to 2023 while my cross-examination is ongoing process in Sunshine Magistrates' Court but I never - - -

Her Honour: You're the respondent in this matter - - -

Her Honour: So the question from me to be satisfied by the court is one, have you committed family violence, and two, is it likely to continue without an order being made. That has no relevance to that question today.

ZXC: I understand it is not relevant but I have - - -

Her Honour: Therefore anything that's not relevant doesn't come in to these proceedings. So your request to make a submission to the court interposed in with the correct process is refused. So if you just take a seat behind your legal representative, we'll go back to where we were up to.

Her Honour: I've made a decision. Could you please take a seat?

1. Eventually, after much discussion between the Magistrate and Counsel, it was determined that VBN's evidence had concluded. In that context, the Magistrate asked Mr Cole whether there was anything else to be added into evidence and he answered that he did not believe so.[25]
2. ZXC did not give evidence.
3. The Magistrate then sought submissions from Mr Hume about why a final FVIO should be made.
4. After Mr Hume had finished his submission, the Magistrate asked Mr Cole about whether he or ZXC would make submissions and he made a submission:

Her Honour: And in relation to [ZXC], Mr Cole would you like to make a submission or would you like to leave it to [ZXC] to make a submission?

Mr Cole: Look, perhaps if I could just (indistinct words). I'll be very brief, Your Honour. What my learned friend has alluded to is Family Court proceedings. I'm aware, and I'm instructed that there are property orders being sought in that proceeding. So there is an issue still to be litigated there or resolved without it going to a full hearing. But the kind of communication involved in that obviously I very likely to involve lawyers and be through legal persons, and in any case, any communication for it to be family violence, it has to be actually have the complexion of family violence in that it's either threatening or intimidating or coercive and so on. So just simple communication about trying to resolve the dispute in the Family Court in my submission would not amount to family violence.

Mr Cole: And on that basis I would say that there is no evidence going forward on which Your Honour could be satisfied that there is a likelihood of family violence occurring without an order.[26]

1. Her Honour then proceeded to give her reasons for decision, which were as follows:

"This is an application for a family violence intervention order. The application is made by [VBN] where [ZXC] is the named respondent. There are no children named on this order. This is an arranged marriage. The respondent has one son and that son remains with grandparents in [foreign country] and it is her intention ultimately to have her son brought to Australia.

The application was originally brought by Victoria Police however leave was granted to withdraw on 14 June 2024 and [VBN] continued his application solely alone. In relation to the proceedings before the court day 1 commenced on 3 December 2024, day 2 commenced late today, however we were into day 2 for the production of a NAATI translation of a [foreign] court proceeding which did not eventuate. And on that basis both parties have now closed their case.

At the present time the interim order has been in place since 22 June 2022 and that interim order is effectively a full no contact order with the exceptions (c) and (d), allowing for communication through lawyer or mediator and to arrange and/or participate in counselling or mediation. In relation to other parallel proceedings there is family proceedings in relation to divorce next listed on 27 July 2025. There are property proceedings to be negotiated. And there continues to be an ongoing dispute in the AAT regarding the status of the respondent's visa situation.

Interestingly enough, it is the respondent who is contesting the intervention order, she is contesting the divorce, she is contesting the visa status and I am told that there will be ongoing issues in relation to the property. It appears to me that the respondent, whilst not technically systems abuse, is using every opportunity for her future benefit but not considering the impact that her behaviours have on [VBN].

Does this fall within the definition of family violence? Family violence is defined as physical, sexual, emotional, psychological or economic abuse. It also includes controlling, coercive or dominating behaviours. In relation to the behaviour that has been described in the evidence given by [VBN] on 3 December 2024 the ongoing proceedings in many different jurisdictions it is clear that [ZXC] is holding onto this relationship potentially for self-serving reasons and on that basis there is a level of coercion, there is a level of control, but most importantly there is a level of psychological abuse.

And on that basis I am satisfied that not only will she continue to commit family violence if a final intervention order is not in place, but there is also risk that she will use third parties to do so. On that basis I am going to make a final order for the protection of [VBN]. It will be in the same conditions as the interim order last varied on 2 May 2023 and I will go through that with [ZXC]. That order would be for a period of five years."[27]

1. On 9 April 2024, the Court made a final FVIO with VBN as the protected person and ZXC as the respondent. The order is set to expire at midnight on 8 April 2030 (five years from the date it was made). It prohibits ZXC from committing family violence against VBN, intentionally damaging any of his property or threating to do so, ZXC from having another person do anything to VBN that she is prohibited from doing under the order, attempting to follow VBN or have him under surveillance, publish on the internet, by email or electronic communication any derogatory material about VBN, contact or communicate with VBN by any means, approach or remain within five metres of VBN, or go or remain within 200 metres of any place where VBN lives or works.

1. On 2 September 2025, I held a directions hearing in the appeal. Both parties were, and remain, self-represented, however a further order has been made for legal representation limited to cross-examination of protected witnesses for the appeal proceedings in the County Court (if cross-examination takes place). As such, ZXC was assisted by Ms Williams, the legal representative appointed to her pursuant to that order, at the directions hearing, though ZXC herself appeared.
2. At that hearing, after discussion with the parties I ordered ZXC to file and serve written submissions about whether the County Court's appellate jurisdiction had been enlivened, that is, outlining the alleged legal, factual or discretionary errors in the relevant decision.
3. ZXC filed written submissions. VBN filed written submissions in response. A further directions hearing was conducted before me on 8 October 2025, in which both parties agreed that my decision as to whether to grant leave to appeal could be determined on the basis of the filed written material without a further hearing.
4. I informed the parties, and they agreed, that my decision would be made in reference to the following materials only:

(a) the appellant's statement of grounds of appeal (Form A) and submissions for preliminary hearing (Form B) dated 16 September 2025;

(b) the respondent's statement of grounds of appeal (Form A) and submissions for preliminary hearing (Form B) dated 30 September 2025;

(c) the appeal documentation provided by the Magistrates' Court at Sunshine, namely:

(i) notice of appeal dated 15 April 2025;

(ii) final FVIO dated 9 April 2025;

(iii) application and summons for an intervention order dated 26 June 2022;

(iv) certified extract of the Magistrates' Court at Sunshine dated 14 June 2024, substituting the respondent for the police applicant and ordering Victoria Legal Aid to provide the parties appellant legal representation for the purposes of cross-examination of protected witnesses pursuant to s71(1) of the Act; and

(d) the transcript of the hearing at the Magistrates' Court dated 3 December 2024 and 9 April 2025.

1. ZXC claims the Magistrates' Court made a legal error by denying her procedural fairness as she wished to represent herself at the hearing, but the Magistrate did not permit her to do so.
2. Procedural fairness required that ZXC had the opportunity to present her case at the Magistrates' Court. The implications of denying a party an opportunity to present their case were considered by Kiefel CJ, Keane and Gleeson JJ in Nathanson v Minister for Home Affairs:[28]

"There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration...a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case...[the Court] does not require demonstration of how that party might have taken advantage of that lost opportunity...To the contrary...[the Court] proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome."[29]

1. If the Magistrates' Court did deny ZXC the opportunity to present her case, either by not providing her with a reasonable opportunity to make submissions or give sworn evidence, that would be a legal error.
2. ZXC claims that the Magistrates' Court denied her procedural fairness in the following ways:

(a) Mr Cole was only instructed to represent her for cross-examination of VBN and not otherwise;

(b) the Magistrate denied her the opportunity to make submissions when she had said that she wanted to, and when she attempted to do so she was "shut down"; and

(c) the Magistrate did not provide her the reasonable opportunity to give sworn evidence.

1. VBN submitted that no legal error occurred as procedural fairness was afforded to ZXC. In support of his submission, he stated ZXC was explicitly allowed to represent herself and provide submissions, with Mr Cole acting within the limited brief of cross-examination only.
2. In terms of the opportunity to make submissions:

(a) in VBN's application in the Magistrates' Court, ZXC could not represent herself for the entirety of the hearing of the application because of the prohibition on her cross-examining VBN imposed by s70 of the Act. This meant that ZXC could not conduct the cross-examination of VBN. Insofar as Mr Cole conducted the cross-examination of VBN, including the discussions with the Magistrate about whether the cross-examination had concluded this was appropriate;

(b) in terms of the remainder of the proceeding, ZXC had to be given the reasonable opportunity to make submissions. These submissions could be made either by her or any legal representative that she instructed to make submissions on her behalf;

(c) Mr Cole appeared for ZXC at the hearing. He held briefs pursuant to ss71 and 72 of the Act. Those briefs limited his role to cross-examination, either by cross-examining VBN or making objections if ZXC was cross-examined. However, he indicated a willingness to act for ZXC for the whole of the proceeding in keeping with practice of some barristers;

(d) on 3 December 2024, after a partial hearing and adjournment, Mr Cole informed the Court that ZXC instructed him that she wished to represent herself in the hearing of the applications save in respect of cross-examination. Her Honour clarified with ZXC and she said "at this moment"[30] she was representing herself. After this exchange and up to VBN being cross-examined, the transcript records that the Magistrate spoke only with Mr Hume and ZXC, which was entirely consistent with ZXC representing herself (as she said she wished to do) and being given the opportunity to represent herself;

(e) the remainder of 3 December 2024 was taken up largely by the evidence of VBN. Mr Cole conducted the cross-examination of VBN including discussions with the Magistrate about the cross-examination. This was appropriate;

(f) the hearing resumed on 9 April 2025, and the Magistrate's interactions were with Mr Hume and Mr Cole. The unstated premise of the Magistrate interacting with Mr Cole was that he was acting as the legal representative for ZXC. I infer that Mr Cole was acting on 9 April 2025 as the legal representative for ZXC and on her instructions. Although at the hearing on 3 December 2024 ZXC said she wished to represent herself save for cross-examination "at this moment",[31] it does not automatically follow that some five months later she wanted to represent herself at the hearing rather than have Mr Cole represent her generally in the proceeding. It is apparent that on 9 April 2025, Mr Cole was acting on ZXC's instructions, and he was communicating them to the Magistrates' Court. The most obvious example was when Mr Cole told the Magistrate that ZXC wished to make a submission while there was general discussion about whether VBN's evidence had concluded. I am fortified in drawing this inference by that fact that at no stage during the hearing on 9 April 2025 did ZXC interject to say that she wanted to represent herself or that she did not want Mr Cole to represent her in circumstances where she had shown a willingness to interject at times during the hearing. Similarly, there is no evidence before this Court to the effect that ZXC had instructed Mr Cole not to represent her at hearing on 9 April 2025;

(g) while there was a live issue about whether VBN's evidence had concluded, ZXC said that she wished to make a submission before cross-examination had concluded. This was not the normal course of a hearing, but the Magistrate sought clarification from ZXC about what the subject matter would be of the submission. ZXC said it was about her having received a notice to vacate her home. The Magistrate identified correctly that the issues in contest in VBN's application for an FVIO were whether ZXC had committed family violence and whether she would likely continue to do so without an FVIO. Further, the Magistrate correctly noted that the proposed submission was not relevant to the issues in contest in the application, a proposition that ZXC agreed with, and leave to make a submission interposed within the normal course of the hearing was refused. While ZXC characterised the refusal as a shut down of her in her grounds of appeal, the Magistrate's refusal was appropriate given the proposed submission was in fact not a submission, but rather an attempt to give unsworn evidence about a matter that was not in issue in the application before the Court. The Magistrate was right to not allow the submission; and

(h) Mr Cole as the legal representative for ZXC was afforded the opportunity to make submissions including on the key issue of whether there was a risk that ZXC would commit family violence against VBN. Notably, the Magistrate asked Mr Cole whether he or ZXC wished to make the closing submissions, and it was he who made the submission. This is consistent with ZXC instructing him to do so. Significantly, there was no interjection from ZXC to the effect that she wished to make the closing submission despite the Magistrate expressly having raised whether she wished to do so.

1. Based on the above, I am satisfied that ZXC was afforded the reasonable opportunity to make submissions, and in fact that submissions were made on her behalf at the hearing.
2. In terms of the reasonable opportunity to give evidence:

(a) the hearing on 3 December 2024 proceeded on the basis that ZXC would give evidence. During Mr Cole's cross-examination, he put matters to VBN consistent with the requirements of the principle in Browne v Dunn.[32] The Magistrate explained to VBN that the reason why Mr Cole was doing this was to give him an opportunity to respond to matters which ZXC would give evidence about;

(b) consistent with the preceding sub-paragraph, it was clear to the parties that ZXC could give evidence in the proceeding. Importantly, however, she was not compelled to give evidence in the matter; and

(c) I have found that Mr Cole was acting for ZXC at the hearing on 9 April 2025. The Magistrate asked Mr Cole after VBN's evidence had concluded whether there was anything further to be added into evidence and he said that he did not believe so. This represented ZXC's opportunity to say that she wanted to give evidence. While earlier the hearing had been conducted on the basis that ZXC would give evidence, I infer that by 9 April 2025 a decision had been made that ZXC would not give evidence. I am fortified in inferring that by reason of the following: the lack of any intervention by Mr Cole or ZXC to the effect that the evidence had not closed because ZXC wished to give evidence; the fact that ZXC had unorthodoxly sought to make a submission during the issue of whether VBN's evidence had concluded, which was really an attempt to give unsworn evidence about an irrelevant matter; and the lack of any evidence in this proceeding that ZXC had instructed Mr Cole that she wished to give evidence and he had disregarded her instructions or more generally that she wished to give evidence on 9 April 2025.

1. Based on the above, I am satisfied that ZXC was afforded the reasonable opportunity to give sworn evidence even though she did not take up that opportunity during the hearing.

1. ZXC claims the Magistrates' Court made factual errors in finding there was a risk she may commit family violence against VBN, which was a necessary factual finding to making a final FVIO,[33] by accepting false evidence from VBN.
2. A factual error results where a court has made findings of fact by accepting evidence which was "glaringly improbable" or "inconsistent with facts incontrovertibly established by the evidence".[34]
3. The relevant principles were stated by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[35]

"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'."

1. And similarly in Blunt v Blunt:[36]

"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."

1. This ground can be dealt with quickly. The Magistrate did not err in accepting VBN's evidence and relying on it in making findings. While parts of it were challenged in cross-examination, it was not contradicted or inconsistent with any other evidence that was admitted at the hearing.

1. ZXC claims the Magistrate (wrongly) allowed objections to the cross-examination of VBN.
2. During Mr Cole's cross-examination of VBN, Mr Hume made objections to the questioning.[37] I have reviewed the objections and the Magistrate's handling of those objections. A party can make objections about questioning. It is not a matter of a court allowing or permitting a party to object. Once an objection has been made, the party whose question has been objected to can respond to the objection. This can take the form of a rebuttal to the objection, but often involves the party withdrawing a question and either rephrasing it to overcome or deal with the objection, or moving on to different questions. That is what happened in this case. The Magistrate was not required to rule on the objections because, by and large, Mr Cole reworked his questions to deal with the objections, so the questioning moved on.
3. This ground has no proper basis.

1. ZXC claims the Magistrate made findings that were inconsistent with the evidence that she would have given if she had been allowed to give evidence.
2. This ground has no proper basis. The Magistrate had to base her decision on the evidence in the case rather than base it upon matters that were not in evidence. I have found that ZXC was afforded the reasonable opportunity to give evidence. She did not take that opportunity and now cannot challenge the decision by claiming that the Magistrate should have somehow made findings of fact based on evidence that was not before her.

1. ZXC claims that the Magistrates' Court made a discretionary error by failing to allow her to give sworn evidence or make submissions.
2. The legal principles for determining whether a discretionary error has occurred are the following:

"... The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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."[38]

1. The Magistrates' Court had to provide ZXC with the reasonable opportunity to make submissions and to give evidence. This was not a matter of discretion, and it so could not give rise to a discretionary error.
2. More generally, this ground is merely a reworking of the complaint that underpins ground 1, being an allegation of a breach of procedural fairness. I have found that there was no breach of procedural fairness.
3. There is no proper basis for the ground.

1. ZXC claims that the Magistrates' Court made a discretionary error by finding that ZXC was at risk of committing future family violence, particularly her attempts to advocate on her own behalf as a "vulnerable migrant woman".
2. Although ZXC has characterised this error as a discretionary error, it concerns how the Magistrates' Court made a finding of fact. In my view, if there was an error it would be a factual error rather than a discretionary error.
3. Regardless, I do not consider that the Magistrates' Court made an error, whether factual or discretionary, in finding that VBN was at risk of committing family violence because:

(a) the Court had evidence from VBN about the risk of ZXC committing family violence. That evidence was challenged in cross-examination but there was not conflicting evidence that was inconsistent with his evidence;

(b) the Magistrate in her reasons relied on VBN's evidence about the many proceedings involving ZXC and VBN and the stance that ZXC was taking in those proceedings. It was open for the Magistrate to rely on VBN's evidence and to find that ZXC was engaging in a level of psychological abuse, coercion and level of control in how she was conducting the proceedings. Such findings cannot be described as glaring improbable or contrary to compelling inferences;

(c) the Magistrate identified how the found conduct met the definition of family violence in the Act including the parts of the definition that were satisfied; and

(d) the characterisation by ZXC of herself as a "vulnerable migrant woman" is apt. But that status, in itself, does not mean she is incapable of engaging in family violence or being a risk of engaging in family violence. The task of the Court was to determine based on the evidence before it whether to make a final FVIO. It identified the factual issues it needed to consider and it made findings that were open to it based on the evidence before the Court.

1. ZXC claims that the Magistrates Court made an error in determining the duration and conditions of the FVIO.
2. VBN submitted that the Court's assessment of risk and conditions of the FVIO were appropriate, and consistent with statutory objectives.
3. The FVIO was an extension for five years of the then extant FVIO with the conditions described in paragraph 37 of my reasons.
4. Under s97 of the Act, a court has a discretion to specify in a final order the period for which it is in force, and the factors it must consider in making any such decision. It provides:

"Court may specify period for which order in force

(1) The court may specify in a final order the period for which the order is in force.

(2) In making a decision as to the period for which the final order is to be in force, the court must take into account - that the safety of the protected person is paramount; and

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

(b) if the applicant is not the protected person, the protected person's views, including the protected person's assessment of the level and duration of the risk from the respondent.

(3) The court may also take into account any matters raised by the respondent that are relevant to the duration of the order."

(a) if a period is specified in the order, for the specified period unless it is sooner revoked by the court or set aside on appeal; or

(b) if no period is specified in the order, until it is revoked by the court or set aside on appeal."

1. The power of a court to specify a fixed period is discretionary. In YY v ZZ, Cavanough J stated:

"... it is clear that the default position under ss 97 and 99 and Division 8 of Part 4 is that, unless a particular period is specified in the final order, a final order will be indefinite in duration, leaving it to the respondent to seek revocation or variation in the future if so advised. The structure and language of s 97 are very important for present purposes. Under sub-s (1), the power to specify a fixed period is discretionary. Under sub-s (2), the court must take into account three matters, the general tenor of which, in each case, is against setting a fixed period, namely, first, that the safety of the protected person is "paramount"; second, any assessment by the applicant of the level and duration of the risk from the respondent; and, third, the views of the protected person. By contrast, s 97(3) provides that the court may also take into account any matters raised by the respondent that are relevant to the duration of the order."[39]

1. A court in imposing conditions on a final FVIO must give paramount concern to the safety of the affected family member for the application for the FVIO and any child who has been subject to family violence to which the application relates.[40] Otherwise a court has a power to include in a final FVIO "any conditions that appear to the Court necessary or desirable in the circumstances".[41]
2. The Magistrates' Court's reasons for the duration and condition of the final FVIO made were limited to stating that it would be a final FVIO order of five-year duration on the same conditions as the then extended FVIO. It is apparent from the reasons, though, that the Magistrate in making the order was concerned with the safety of VBN and that she considered that the specified duration and conditions were necessary or desirable.
3. ZXC refers to the disparity between the final FVIO where she is the affected family member and the final FVIO obtained by VBN. The latter is for a longer period (five years as opposed to two years) and has more onerous conditions. But it is to be remembered that the final FVIO obtained by ZXC was by consent rather than after a contested hearing.
4. In my view the decision of the Magistrates' Court is not so plainly unreasonable or unjust as to enable me to infer there was legal error.

1. There is not a legal, factual or discretionary error in the relevant decision. Therefore, the appellate jurisdiction of the Court is not engaged. I dismiss the appeal.

[1] [2023] VSC 13.

[3] The appellant's statement of grounds of appeal dated 16 September 2025 and submissions for the preliminary hearing dated 16 September 2025.

[5] Transcript of hearing on 3 December 2024 and 9 April 2025, page ("T") 1, lines ("L") 7-8.

[6] The practice was the subject of bulletin No. 1 of 2020 from the Victorian Bar's Ethics Committee.

[15] See, for example, T28, L19 and 28.

[17] See, for example, the exchange at T47.

[20] See, for example, T47, L29 - T48, L1.

[28] [2022] HCA 26; (2022) 276 CLR 80.

[34] Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

[35] [2019] HCA 28; (2019) 266 CLR 129, [55].

[36] [1943] AC 517, 526.

[37] See T25, L19-21; T41, L12-24; T42, L13.

[38] House v The King (1936) 55 CLR 499, 504-505.

[39] YY v ZZ & Anor [2013] VSC 743, [109]; see also OP v XY [2020] VSC 754, [342].