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Tuesday, 19 April 2011

AB & Anor v Magistrates' Court at Heidelberg [2011] VSC 61: judicial review of an intervention order

A respondent in a family violence proceeding who is dissatisfied with having an order made against them has a statutory avenue of appeal to the County Court: Division 9 of Part 4 of the Family Violence Protection Act 2008.



But that's not the only option. In AB v Magistrates' Court at Heidelberg [2011] VSC 61 the respondents to an application sought judicial review of the presiding magistrate's decision to grant interim orders effectively prohibiting them from having contact with their niece.



Mukhtar AsJ:



5 The plaintiff’s counsel, Mr Perkins, described what happened in the Magistrates’ Court as a muddle. But this was really a root-and-branch attack on the judicial integrity on the conduct of the case. He contends the interim orders against the brothers did not ban them from contact with child, and the real harm lay in the order made (by consent) against the grandmother which in effect did. He says the brothers had bonded with the child and the Magistrate’s orders “smashed” the family relationship on nothing more than the Magistrate’s concern for the child based on the mother’s untested allegations, and without disclosing any reasoning process or evaluation of the strength or credibility of the mother’s allegations against them.



6 He also says that the Magistrate’s conduct of the case put counsel for the brothers and the grandmother in such an invidious position that, in the end, the Magistrate’s will was overbearing to the point that the grandmother had no choice but to consent to final orders.



7 And, it is contended, the Magistrate was so apparently preoccupied with despatch of the cases in a busy Court list, and so resolved on taking a set course, that her Honour disregarded the requirements of the statute and disembarked from her judicial task and the jurisdiction conferred upon her. That is, it was a constructive failure to exercise jurisdiction.




None of these submissions were upheld. The proceeding was dismissed. In examining the circumstances, Mukhtar AsJ made some interesting observations about the way the intervention order process works.



43 There is before the Court a transcript of the recording of proceedings that took place that day. There is no need to refer copiously to its contents. It is important to keep in mind this was a mention hearing. It is an occasion on which the parties inform the Court about the state of the contest. That is, whether the matter is still proceeding, or whether interim orders are to be extended or varied by consent, or whether final orders can be made by consent. In the event that the order is to become contested, the purpose of the mention hearing is to fix a date for the hearing of a contest. In the meantime the interim orders can continue, without admissions, akin to an interim injunction. If no agreement can be reached on interim orders, then the Court can hear evidence for interim purposes on a standard under the statute to which I have already referred. In that regard, the legislation does not require that any alleged family violence be proved before an interim order may be made: see Zion-Shalom v Magistrates Court. What matters is the safety or well being of the child.



44 It ought be accepted that a mention date is or can be a busy day. The Court must deal with many applications, maybe in a milieu of despatch depending on judicial resources. Matters are mentioned, then stood down to enable parties to discuss their differences and try to agree on interim orders at least. The philosophy, naturally enough, is to let parties reach an acceptable position for themselves on an interim basis, rather than have an imposed legal intervention. It stands to reason that Magistrates will encourage continuation of interim orders consensually without admissions to minimise the inflammation of family conflict with interim contests, and defer the contest to a final hearing when evidence can be adduced and carefully considered.




Zion-Shalom v Magistrates' Court of Victoria at Heidelberg (No 2) [2009] VSC 477 was discussed here back in 2009.



Mukhtar AsJ went on to describe a magistrate's role in interim proceedings,



61 I think the statute is investing faith in the Magistrate to form a belief judicially, which is based not on caprice or convenience or personal value, but on some rational grounds. There is a natural inclination to say probative as well but there are bound to be cases where allegations may not be improbable but not manifestly so, and a Magistrate forms a belief conscientiously that “a risk may be posed” as s 78(5) says. Perhaps it could be a real and sensible risk. However one poses the test, in my view, a belief can be formed about a risk on the basis of allegations that are yet to be proven, but have to be taken seriously (or not dismissed as frivolous) until they are eventually tested. An element of judgment has to be involved, especially as a child is involved, and so much will depend on the circumstances. To that end, regard must be had to the evidentiary requirements and the inquisitorial flavour of s 65 which states that: “Subject to this Act, in a proceeding for a family violence intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.”




Mukhtar AsJ rejected the suggestion that the magistrate in the case before him had overborne the will of the parties, He observed [at 86] that a 'Sphinx-like' approach by the magistrate would have probably added to the problems of the hearing.



93 This Court is not here to judge the manner of magistrates or to make pronouncements about judicial etiquette. For one thing, the Magistrate cannot respond personally to the complaint or defend herself and maybe tell me what she was experiencing in Court. Magistrates are at the coal face and have to do practical justice in cases that are emotionally charged and troublesome. There is a growing expectation that Courts should take a more interventionist role than in the past and some may want to run a tight ship: see generally Thomas, Judicial Ethics in Australia. Courts have to act with courtesy but above all with authority. Instances of sharp words, incredulity, sarcasm or urgings may be no more than a technique to try and ensure parties concentrate on the issues before the Court and act constructively. Litigation in the courts would simply be unworkable if relief was available by way of certiorari each time a judge in effect was telling parties to “get on with it” or each time a judge revealed what his or her preliminary thinking was so as to encourage the parties to reach agreement. That is especially so in cases under this Act.




An entertaining review of the book referred to by Mukhtar AsJ above can be found here.

1 comment:

Habeas Corpus said...

Mukhtar knows how to write a judgment. Nice little reference to the Sphinx in there from Johnson v Johnson (2000) 201 CLR 488 at 492 -

. . . the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. . . . At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. . . . Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.