IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Appeals and Post Sentence Applications List

JOSEPH MURCADO (a pseudonym)	Appellant	
		
v		
		
ACTING SERGEANT RYAN HUGHES 

AND

CLARA MURPHY (a pseudonym)	Respondent

Respondent	

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JUDGE:	His Honour Judge Pillay	
WHERE HELD:	Melbourne	
DATE OF HEARING:	6 September 2023	
DATE OF JUDGMENT:	18 October 2023	
CASE MAY BE CITED AS:	Murcado (a pseudonym) v Acting Sergeant Hughes and Murphy (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1852 		

REASONS FOR JUDGMENT
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Subject:	Appeal against family violence intervention order
Catchwords: 	Legal, factual or discretionary error - Where appellant is self-represented litigant – Where complaint as to conclusion – Bias – Apprehension of bias - Where no reasons given for decision – Error having no material effect
Legislation Cited:	Family Violence Protection Act 2008 (Vic)
Cases Cited:	AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatido v Yarra Ranges Council (2017) 51 VR 624; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC; Devries v Australian National Railways Commission (1993) 177 CLR 472; Lee v Lee (2019) 266 CLR 192; Blunt v Blunt [1943] AC 517;  House v The King (1936) 55 CLR 499; Gett v Tabet (2009) 254 ALR 504; WS v Gardin BC201502131 (215) 48 WAR 494; Biogen Inc v Medeva Plc [1997] RPC 1; Jan v Minister for Home Affairs [2019] FCA 1837; Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety [2022] VSCA  101; De Winter v De Winter (1979) 23 ALR 211; Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328; Official Trustee in Bankruptcy v Shaw & Anor [2019] VSC 681;  Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Stead v SGIO (1986) 161 CLR 141, Wainohu v New South Wales (2011) 243 CLR 181; Dadashy v Scholte [2021] VSC 246; Ahamed v Coles Supermarkets Australia Pty Ltd [2023] VSCA 239

Judgment:	Appeal dismissed.

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APPEARANCES:
	Counsel	Solicitors	
For the Appellant	In person		
			
For the Respondent (Mr Hughes)	V Katotas	Victorian Government
Solicitor’s Office
	
For the Respondent (Ms Murphy)	G Davis	Borchard & Moore	

HIS HONOUR:

Introduction
1	The appellant in this proceeding, Mr Joseph Murcado, brings three separate appeals against Orders made in the Magistrates’ Court. The appeals are:
(a)	AP-21-0846 (“0846”) – Murcado v SC Hughes. This is an appeal in respect of a Family Violence Intervention Order (“FVIO”) made in favour of Ms Clara Murphy and her two children by the Broadmeadows Magistrates’ Court on 30 June 2021. In this case, police officer SC Hughes sought an FVIO on behalf of Ms Murphy regarding an event at Epping Plaza Shopping Centre on 5 November 2019. At that time, a physical altercation occurred which involved Mr Murcado, his daughter, Maisie Murcado, his ex-wife, Clara Murphy and her brother, Charlie Murphy.  After two days of evidence, Magistrate Hoare made the orders sought on the basis that Mr Murcado was the perpetrator of family violence that was likely to continue. The FVIO operates for a period of 10 years and is due to expire on 29 June 2031. Mr Murcado now appeals to this Court.
(b)	AP-21-0845 (“0845”) – Murcado v Murphy. This is an appeal in respect of orders of Magistrate Hoare on 30 June 2021 dismissing Mr Murcado’ application for an FVIO. The case before Magistrate Hoare was heard at the same time as 0846, as it centred around the same factual circumstance which occurred on 5 November 2019 at Epping Plaza Shopping Centre.  The application in the Magistrates’ Court was brought by Mr Murcado, as he alleged Ms Murphy had perpetrated family violence against him. The Magistrate found to the contrary and dismissed his application. Mr Murcado now appeals to this Court. 
(c)	AP-21-1214 (“1214”) – Murcado v Murphy. This is an appeal in respect of the Orders of Magistrate Hoare made 16 September 2021, dismissing Mr Murcado’ application for an FVIO against Ms Clara Murphy.  In this case, Mr Murcado alleges that Ms Murphy had instructed a man by the name of Dickinson to threaten Mr Murcado.  The Magistrate found to the contrary and dismissed his application. Mr Murcado now appeals to this Court.  
Relevant Factual Background
Facts specific to 0845 and 0846
2	Mr Murcado was born on 28 October 1966. Ms Clara Murphy was born on 21 December 1982. Mr Murcado and Ms Murphy met in approximately 2011 and were married in 2015. They have a daughter named Maisie Murcado, who was born in 2012. Ms Murphy also has a son from a previous relationship named Harry Rosso, who lived with Mr Murcado and Ms Murphy until their separation on 4 October 2019. 
3	Issues about parenting arrangements arose between the parties.  On 30 October 2019, Ms Murphy called Mr Murcado and said words to the following effect:
“You fucken mother fucker, I am going to make sure you never see Maisie again.”
4	On Monday, 4 November 2019, Ms Murphy dropped Maisie off at Mr Murcado’s home. At some point during that day, Mr Murcado messaged Ms Murphy that Maisie had been hurt and he was taking her to the doctors. Ms Murphy was unable to get in touch with Mr Murcado for the rest of that day.
5	Then on Melbourne Cup Day, Tuesday, 5 November 2019, Mr Murcado took Maisie to a movie at Epping Plaza.  He exited holding Maisie’s hand. Ms Murphy and her brother, Charlie Murphy, were waiting outside the cinemas.  Ms Murphy grabbed hold of Maisie’s arm.  Mr Murcado had Maisie’s other arm at this stage. They walked toward Mr Murcado’s car. Mr Murcado then struck Ms Murphy’s arm which caused her to lose her grip on Maisie. Mr Murcado then placed Maisie into his car and went around to start his car. Ms Murphy reached into the car to pull Maisie out.  At that point, Mr Murcado put the car into motion.  Ms Murphy withdrew from the car leaving the door open.  Mr Murcado then reversed back and braked suddenly. The car door closed.  Mr Murcado then drove off.
6	This event led to the cross applications for FVIOs which came before Magistrate Hoare. The first, 0845, was Mr Murcado’ where he asserted that Ms Murphy was the perpetrator of family violence in the incident on 5 November 2019. The second, 0846, was Ms Murphy’s, but brought by SC Hughes of Victoria Police, which asserted that Mr Murcado was the perpetrator of family violence in the incident on 5 November 2019.
7	The hearing proceeded before Magistrate Hoare on 24 May 2021 and 30 June 2021.  On the first day, Ms Murphy, her mother and her brother gave evidence. On the second day, Mr Murcado, SC Hughes, SC Meredith, Constable Santopietro, Sergeant Thompson, and a real estate agent, Mr Carnevale, gave evidence. The learned Magistrate then delivered an oral ruling on 30 June 2021 in which he:
(a)	accepted Ms Murphy as a witness of truth;
(b)	accepted that Mr Murcado perpetrated family violence;
(c)	did not accept that the incident of 5 November 2019 led to Mr Murcado being in fear, or that Ms Murphy or her brother had committed family violence against him;
(d)	took into account that as a result of the incident on 5 November 2019, Mr Murcado was charged with various counts of criminal offending, pleaded guilty and was sentenced to time served of 101 days;
(e)	had subsequent criminal charges relating to breaching family violence orders and other matters resolved by pleas of guilty, and had 60 days reckoned as time served;
(f)	considered that Mr Murcado would perpetrate family violence in the future such that an FVIO was required.
8	Only the second day of transcript for 30 June 2021 is available from that hearing. It contains the learned Magistrate’s reasons for decision. In due course, the learned Magistrate made the FVIO in favour of Ms Murphy and the children in 0846. He dismissed Mr Murcado’ application for a FVIO in 0845.
Facts specific to 1214
9	In May 2021, Ms Murphy was organising for the sale of her property at Shankland Boulevard, Meadow Heights.  Mr Murcado had previously lived at this property with Ms Murphy and the children. 
10	On 20 May 2021, by arrangement with Ms Murphy, Ms Cathy Weir from Western Home and Garden Care entered the property at Shankland Boulevard, Meadow Heights to carry out cleaning duties. Mr Murcado was at the property at that time. There was an altercation between Mr Murcado and Ms Weir. Ms Weir subsequently left the property. 
11	On 28 May 2021, by arrangement with Ms Murphy, Ms Weir arrived at the family home and conducted cleaning duties. 
12	On 8 June 2021, by arrangement with Ms Murphy, Ms Weir and Mr Paul Dickinson from Western Home and Garden Care arrived at the property at Shankland Boulevard, Meadow Heights to carry out cleaning duties.  Mr Murcado arrived shortly after and requested Ms Weir and Mr Dickinson to leave the property.  Mr Murcado called the police after Ms Weir and Mr Dickinson failed to leave the property. Ms Weir and Mr Dickinson also called the police and requested assistance with removing Mr Murcado from the property.  The police arrived at the property and informed Ms Weir and Mr Dickinson to continue carrying out their cleaning duties at the property.  At some point, there was a physical altercation between Mr Murcado and Mr Dickinson.
13	Mr Murcado alleges that on or about 10 June 2021, Ms Murphy engaged the services of Mr Dickinson to make threats to kill him.  As part of this allegation, Mr Murcado alleged that Mr Dickinson had called him by phone and said “you fucking dog, when I find you I am going to kill you”. Mr Murcado reported the matter to Constable Entink.  On 14 September 2021, Mr Murcado applied for an interim FVIO at the Broadmeadows Magistrates’ Court against Ms Murphy.  The basis of the application was the threats made by Mr Dickinson on 10 June 2021, as well as the alleged family violence perpetrated by Ms Murphy on the following days: 
(a)	4 October 2019 – physical and verbal assault; 
(b)	30 October 2019 – verbal assault through the use of a mobile phone; 
(c)	5 November 2019 – assaulted the applicant and their daughter, Maisie Murcado, at the movies;
(d)	2019 - 2021 – numerous occasions of stalking and photos taken of Mr Murcado without his consent. 
14	Magistrate Hoare then made the alleged impugned decision on 16 September 2021, that is the subject of this appeal in the matter AP-21-1214. There is no transcript of the hearing and no reasons for decision.  The respondent was not present at the hearing.
Procedural History
15	Mr Murcado lodged appeals to this Court in respect of all three decisions of the learned Magistrate.  At all stages Mr Murcado has represented himself.
16	I now turn to consider the appeals.
17	These appeals come before this Court pursuant to s114 of the Family Violence Protection Act 2008 (“the Act”) after relevant decisions were made in the Magistrates’ Court.
18	Relevantly, s119 of the Act specifies the following:
“(1)	The appeal is by way of rehearing by the County Court or the Supreme Court.
(2)	On the appeal, the County Court or Supreme Court may—
(a) 	confirm the relevant decision; or 
(b)	set aside the relevant decision; or 
(c) 	vary the relevant decision and make any other order the Magistrates' Court or Children's Court could have made and exercise any other powers that the Magistrates' Court or Children's Court may have exercised; 
….”
19	The Court set an initial timetable for the hearing of these matters on 20 January 2023. The matters were listed together as they involved related factual issues. Prior to the trial date, the Supreme Court handed down the decision by the honourable John Dixon J in AAA v County Court of Victoria & Ors (‘AAA’).  
20	In that decision, his Honour 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 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;
(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;
(c)	the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;
(d)	the Court is required to assess and evaluate the evidence for itself.
21	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.
22	As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.  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. 
23	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.
24	As can be seen from the procedural history set out above, at the time that Mr Murcado initiated his appeal, the decision in AAA had not clarified the nature of the appeal in this Court.  Mr Murcado had proceeded in accordance with court orders on the basis that the hearing in this Court would be an appeal as if the case were heard de novo.  This meant he was not obliged to identify the legal, factual or discretionary error in the Magistrates’ Court below, he was not obliged to provide the audio, transcript, or reasons in the Magistrates’ Court proceeding below, and he did not have to identify any new evidence which he sought to adduce in these appeals.
25	 As a result of the decision in AAA, I assumed judicial management of this matter. At the first listed trial date on 3 March 2023, Mr Murcado was self-represented.  Ms Murphy was legally represented by counsel and instructing solicitors.  Counsel for Ms Murphy submitted that, by reason of the decision in AAA, this Court ought to hear the matter by way of rehearing in the nature of a broad appeal.  This required at least the identification of the legal, factual or discretionary error which was alleged by the appellant, the production of audio or transcript from the Magistrates’ Court or, at the very least, reasons of the Magistrate for the decision.  In counsel’s submission, as none of that had been done, the appeal could not succeed. 
26	I conducted the initial hearing, handed the parties a copy of AAA, and explained that it affected the conduct of the appeal in each case.  Orders were made in plain terms given that Mr Murcado was self-represented.  Specifically, the orders required the filing of a document which set out the legal, factual or discretionary error complained of.  
27	As a self-represented litigant, Mr Murcado confirmed that he had received the decision and read it on his phone, but was not really able to understand in what way it affected his appeal rights.  The Court took some time to explain the decision in AAA to Mr Murcado.  Mr Murcado sought to press his appeal on the day.  However, an adjournment was granted for him to consider his position. Orders of a very detailed nature were provided to him, which set out the steps which he would have to take in order to bring the appeal into compliance with the decision in AAA.  Specifically, the orders required:
(a)	the audio recording or transcript of the Magistrates’ Court proceedings and, if such were unable to be obtained, a statement setting out why they could not be obtained;
(b)	Mr Murcado was to file and serve a document of no more than three pages, identifying the legal, factual, or discretionary error in the Magistrates’ decision appealed from;
(c)	the parties were to identify the additional evidence sought to be admitted and relied on at the hearing of this matter, and to file and serve a document of no more than three pages, setting out why such evidence should be admitted;
(d)	to file and serve submissions in support of the appeal.
28	As Mr Murcado is self-represented, an issue arose as to the availability of transcript.  Such is not made available to parties in Magistrates’ Court proceedings. Usually, an individual applies to the Magistrates’ Court and then pays a private fee for transcript to a commercial provider. Given Mr Murcado’s financial state (a disability pensioner) this Court arranged to obtain copies of the Magistrates’ Court audio recording with a view to having it transcribed.  Enquiries with the Magistrates’ Court in the end turned up only day two of the hearing in 0845 and 0846 before Magistrate Hoare.  That recording was then transcribed and provided to the parties. No audio of the hearing before Magistrate Hoare in respect of 1214 heard on 16 September 2021, was produced by the Magistrates’ Court.  Consequently, no transcript was available.
29	I record that as Head of the Common Law Division of this Court investigations into numerous matters by the Registrar of this Court, relating to FVIO and Public Safety Intervention Order (‘PSIO’) matters such as this, has revealed that it is often the case that the Magistrates’ Court has no audio recording of all or part of a hearing.  Further, very few participants in these cases have the financial means to obtain transcript. This Court is faced with a rising number of such appeals and, in most, transcript is not available to allow the Court to examine the record below. That record also usually contains the reasons for decision of the learned Magistrate, who will often deliver an oral judgment.  Without the transcript, it is extremely difficult for an appellant to identify the alleged error, or for this Court to rule on the appeal. The Registrar’s investigations also revealed that in the overwhelming number of appeals at least one party is self-represented. Where no audio recording is available, the Court has asked parties to provide a written statement as to what occurred in the Magistrates’ Court hearing. This Court’s experience is that self-represented litigants find this difficult and the information provided is rarely useful. 
30	In an attempt to comply with the orders, Mr Murcado contacted the Magistrates’ Court and subsequently filed a statement in which he set out his contact with the Magistrates’ Court, his attempts to obtain the audio and transcript of the proceedings in 0845, 0846 and 1214, and the response from the Magistrates’ Court.  In respect of 0845 and 0846, only the second day of two days of hearings were recorded. The Court then obtained transcription of that hearing. No such audio hearing recording could be obtained in respect of 1214. 
31	I then sought evidence from Mr Murcado of what had occurred at the Magistrates’ Court hearing.  He filed a statement in which he stated that no evidence was called and no reasons given in relation to 1214, and that the application was dismissed by Magistrate Hoare. A statement was also filed by Ms Murphy in that proceeding in which her solicitors confirmed that they were not present at the hearing in relation to 1214. 
Grounds for appeal in 0845 and 0846
32	After obtaining the limited transcript in this case, Mr Murcado filed a document in which he set out the grounds of his appeal, being that:
(a)	‘[Magistrate Hoare] did not take into consideration Clara’s admissions of her calling [Mr Murcado] on the 30 October 2019, saying;
	“You fucken mother fucker, I am going to make sure you never see Maisie again.”’
(b)	‘evidence was also given of occasions where Clara pursued vehicles, taken [sic] photos of them, and telling police that [Mr Murcado] was stalking Clara;’
(c)	‘in conclusion, the error by the Magistrate is identifying the perpetrator of family violence.  Clara Murphy used the police as a tool to obtain sole custody of the children.’
33	The legal framework was explained to Mr Murcado at a pretrial directions hearing before me on 29 March 2023 and again on 28 July 2023.
34	At the hearing of this matter, a joint court book was filed.  Numerous documents were tendered. An application to have Ms Murphy called and cross-examined was made and denied.  A separate ex tempore ruling was provided in that regard.
Grounds for appeal in 1214
35	Despite orders and my repeated explanations to Mr Murcado that a notice of the grounds of the appeal identifying the legal, factual or discretionary had to be filed, Mr Murcado did not file such a document in relation to 1214.  Nor did he notify the Court that he had failed to file such a document.  He accepted that he had no reason for this failure.
36	The respondent tendered the material in her Court Book.  The respondent applied to have the appeal regarding 1214 dismissed given the non-compliance with orders and the failure to identify the legal, factual or discretionary error which was said to found the appeal.
37	Mr Murcado then made application to have Ms Murphy called and cross-examined. With no notice of the grounds identifying the error, I did not accede to that request. A separate ex tempore ruling was provided in that regard.
38	Over lunch, I had Mr Murcado draft a document setting out his grounds of appeal and identifying the error alleged.  He did this. The document alleged:
(a)	that the Magistrate was biased given his decision in AP-21-0845 and 0846 (Ground 1);   
(b)	the Magistrate had not taken into account that Mr Dickinson had received Mr Murcado’ number from Ms Murphy (Ground 2);
(c)	the Magistrate had failed to take into account the fact that Mr Dickinson had an IVO against him (Ground 3);
(d)	the Magistrate had failed to take into account that Ray White had not been engaged by Mr Dickinson (Ground 4);
(e)	the Magistrate failed to “…allow due process to occur and evidence to be heard” (Ground 5).
39	Mr Murcado stated that the appeal could proceed on the papers. I specifically asked him if he wished to file any evidence. He stated he did not seek to rely on any material which showed that Ms Murphy had instructed Mr Dickinson to make the threatening phone call.
40	The respondent then renewed its application to dismiss the appeal.  As part of that application, the respondent submitted that an adjournment to allow her time to prepare was not in the interests of justice, given the already lengthy delay in this matter coming on and the cost to her of instructing lawyers and counsel for another day.
41	I declined the respondent’s application to dismiss the appeal.  I was particularly mindful of the fact that the appellant is self-represented and ought to be afforded some accommodation, given the change in the legal requirements for an appeal to proceed after he had initiated proceedings.  I considered that an adjournment was not in the interests of the justice, given the fact this proceeding was linked to the factual matters in 0845 and 0846 and so had been timetabled together.  To split them at this stage would be a fragmentation of proceedings and cause considerable wastage of court resources.
42	Similarly, the costs to the respondent of any adjournment would be wasted, given she had instructed solicitors and engaged counsel for the day.  Given the matter could proceed on the papers, I considered that, overall, I should allow the appeal to proceed on the newly filed grounds of appeal.  A separate ruling was made and delivered orally in Court.  
43	In addition to the Court Book related to 1214 being tendered, I also had tendered the transcript of the hearing conducted by Magistrate Hoare in 0845 and 0846. 
Errors of law, fact and discretion 
44	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.  With that said, established legal principles operate to guide the courts through an assessment of claimed errors.  I turn now to briefly consider those.
Legal error
45	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”. 
46	Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.
Factual error
47	A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.  A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.
48	The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:
“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.”
49	Similarly, in Blunt v Blunt it was said:
“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.”
Discretionary error
50	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.
51	The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King: 
“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.”
Complaints as to Conclusion
52	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.
53	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.
54	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.”
55	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.
56	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] 2 Ch 134 at 137 to Australian Coal and Shale Employees’ Federation v Commonwealth (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.”
(emphasis added).
57	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.
58	Having set out those principles, I now turn to the appeals pressed by Mr Murcado.
Grounds of appeal in 0845 and 0846
Ground 1
59	Failure to take into account Ms Murphy’s phone call on 30 October 2019
60	As has been set out above at paragraph [32], Mr Murcado’s first ground of appeal was that the learned Magistrate had failed to take into account the comments attributed to Ms Murphy made in a phone call on 30 October 2019.  This ground was said to constitute an error of fact and an error as to discretion.  It was submitted it led to the learned Magistrate coming to the wrong conclusion that Mr Murcado was the perpetrator of family violence, and an erroneous further finding that he was not the victim of family violence.  This was said to arise in two ways.  First, that the learned Magistrate had not appreciated that Ms Murphy was abusive, as in the first part of her statement on the phone being “you fucken mother fucker”.  The second part of the statement, being “I’m going to make sure you never see Maisie again”, which was said to indicate an intent to act in a way to deprive Mr Murcado of custody of Maisie.
61	Mr Murcado’s submission must be rejected for the following reasons.  First, it is quite clear that the Magistrate received evidence of the phone call on 30 October 2019.  In his evidence-in-chief before Magistrate Hoare, Mr Murcado told the Magistrate the words that Ms Murphy had used.  That the learned Magistrate received that evidence and considered it can be seen in the learned Magistrate’s reasons for decision. The learned Magistrate made the following remarks:
“As far as the witnesses go, because Mr Murcado is – his account is that Clara Murphy is not a witness of truth, she’s an unreliable witness, she’s lied previously, she’s out to get him.  She called him, I think, a – well, she certainly used the – called him words such as a ‘mother fucking mother fucker’ – and – which she agreed to.”
62	The learned Magistrate even went on to recount that Ms Murphy had accepted that she had said these words.  Further, that she said them out of frustration and she regretted saying it.  Quite clearly, the learned Magistrate was aware of the comments, took them into account, and it can be seen they played a role in his ultimate determination.  The way the Magistrate expressed himself in his reasons for decision was to make it clear he understood that Mr Murcado was submitting to him that the comments showed an intent on behalf of Ms Murphy to deprive him of seeing his child.  Mr Murcado wanted the incident of 5 November 2019 to be seen in this light as a further attempt of Ms Murphy to make good on that intention.  The Magistrate clearly considered this when coming to his ultimate decision.
63	There is no error for failing to consider the phone call of 30 October 2019, or of weighing it in coming to the ultimate decision.  I dismiss this ground. 
Ground 2
64	Allegations by Mr Murcado against Clara Murphy
65	In his submissions regarding this ground of appeal, Mr Murcado stated, ‘Evidence was also given of occasions where Clara pursued vehicles, taken [sic] photos of them, and telling police that he was stalking Clara.’ Similar to ground 1, I consider Mr Murcado to be alleging the learned Magistrate failed to have regard to relevant facts, though the exact circumstances referred to are unclear.  Having regard for the transcript of the hearing before Magistrate Hoare, I note Mr Murcado made allegations against Ms Murphy of “Continual stalking, continual lies to manipulate the court system” and led evidence from witnesses about her allegations of stalking against him. That the learned Magistrate understood this was part of Mr Murcado’s case can be seen from the interchange the Magistrate had with Mr Murcado on this point, because immediately after Mr Murcado described his argument as to the characterisation of Ms Murphy’s behaviour, the Magistrate asked him to elicit evidence of those matters and was keen to ensure he was afforded procedural fairness in calling that evidence. Mr Murcado did not elicit any such evidence to support his assertion. As in ground 1, the Magistrate clearly had regard for the allegations of both parties. That can be seen in the learned Magistrate’s reasons as he traversed the evidence Mr Murcado put before the Court as to Ms Murphy’s alleged actions against him. This encompassed not just the incidents on 5 November 2019. The learned Magistrate first assessed the evidence given by the witnesses. He found Ms Murphy was a “truthful and reliable witness”. Next he found that none of the incidents raised put Mr Murcado in fear or at risk of harm from Ms Murphy. He further found that Ms Murphy had not committed family violence against Mr Murcado. These matters set out above lead to a conclusion that the learned Magistrate took into account the matters relevant to the submission made by Mr Murcado. There is no merit in this ground. I dismiss it.
Ground 3
66	Error in Identifying the Perpetrator of Family Violence
67	Mr Murcado also submitted that ‘The error by the Magistrate is identifying the perpetrator of family violence.  Clara Murphy used the police as a tool to obtain sole custody of the children.’  Mr Murcado did not particularise whether this constituted a legal, factual or discretionary error. He provided no detail to substantiate this ground. Having regard for his position as a self-represented litigant, I consider that he raises a complaint as to the conclusion reached by the learned Magistrate rather than properly raising a legal, factual or discretionary error. As such, this is not a proper ground and I dismiss it.
Other grounds
68	It was also suggested during the running of these matters that Mr Murcado was not given the opportunity to elicit evidence by cross-examining Senior Constable Hughes.  I have assumed this is an attempt to add an additional ground of appeal, namely, the failure to afford Mr Murcado procedural fairness during the hearing.  I reject this ground, as it is clear that Mr Murcado himself called Senior Constable Hughes to give evidence during the second day of trial.  He was examined by Mr Murcado and re-examined by him.  There is no denial of procedural fairness.
69	As no error has been identified in the learned Magistrate’s decision, I will dismiss the appeals in both 0845 and 0846.
Grounds of appeal in 1214
Ground 1 
70	That the Magistrate was biased given his decision in AP-21-0845 and 0846   
71	As the Honourable John Dixon J stated recently:
“The test to be applied in determining whether a judicial officer is disqualified because of a reasonable apprehension of bias involves two elements. There is a substantive standard identified, albeit one requiring an evaluative judgement. It is necessary to ask whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” 
72	In that case, his Honour had decided a case in the Practice Court which had been subsequently overturned on appeal. The appellant brought a different case which was then listed before his Honour John Dixon J. The appellant submitted his Honour ought disqualify himself. In deciding that application his Honour stated:
“Importantly, it is the fair — minded lay observer’s assessment of the capability of the judge to determine the matter according to law, which is to be assessed on the basis of the evidence admitted at the relevant hearing and after hearing submissions from the parties, rather than the actual state of mind of the judge, either when the impugned conduct occurs or at the later time when the trial is listed. It is necessary to first identify what it is said might lead the judge to decide the case other than on its legal or factual merits. Having done that, it is then necessary to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.”
73	It is clear that Mr Murcado must do more than simply allege bias given that the Magistrate previously heard a matter of his.  There must be a nexus between that earlier hearing and its finding, and the subsequent hearing on 16 September 2021. That nexus must, in the minds of a fair-minded lay observer, lead to a reasonable apprehension that Magistrate Hoare would not bring an impartial mind to the resolution of the question before him. There is no such nexus alleged here. Mr Murcado was afforded the opportunity to establish bias in this court. He did not provide evidence of such or point to any particular conduct by the Magistrate, beyond dismissing his application, which would demonstrate bias. I would reject this ground of appeal on this point alone.
74	I would also add that when regard is had to the transcript of the second day in 0845 and 0846, the learned Magistrate displayed a clearly even hand. He afforded Mr Murcado every courtesy and latitude in the way evidence was elicited. He conducted a fair hearing on all issues and delivered detailed, comprehensive reasons.  His approach was judicial in every sense.  None of that behaviour relays an indication he would not bring an impartial mind to the AP-21-1214 case before him on 16 September 2021.  I would dismiss this ground for that reason also.
75	However, as noted earlier, no audio recording has been able to be recovered and therefore no transcript is available for 1214. The Respondent was not present. Mr Murcado’s evidence to the Court was that no reasons were provided.  I proceed on the basis that the learned Magistrate did not provide reasons in 1214.  In Wainohu v New South Wales, French CJ and Kiefel J stated that the duty on judges to give reasons for decision has been linked to the availability of rights of appeal and is an expression of the open court principle. Gorton J in Dadashy v Scholte relevantly held, ‘It now seems settled that a Court is ordinarily required to give reasons as an incident of the judicial process.’ While I do not consider a failure to provide reasons demonstrates bias, I do find it to be an error of law on the part of the learned Magistrate. Accepting that to be the case and for this Court’s jurisdiction to be enlivened, I still do not accept Mr Murcado’s argument as to Ground 1. This is because Mr Murcado was invited to make submissions and to provide fresh evidence to the Court which demonstrates bias or founds a reasonable apprehension of bias on the part of Magistrate Hoare in hearing 1214. He did not provide any new evidence or make any further submissions. He simply reiterated his prior submission that because Magistrate Hoare had heard the earlier matters of 0845 and 0846 he was biased in the hearing of 1214. For the reasons set out above, this submission without more cannot be accepted. I dismiss this ground.
Ground 2
76	The Magistrate had not taken into account that Mr Dickinson had received Mr Murcado’s number from Ms Murphy. 
77	In considering this ground I proceed on the basis that there has been an error demonstrated by the failure to provide reasons.  There is no evidence that Mr Murcado presented in his application before the learned Magistrate, or that he sought to produce in this Court, which establishes that Ms Murphy had given Mr Dickinson Mr Murcado’s number.  Even assuming she had, there is no evidence presented in the application before the Magistrate or in this Court that Ms Murphy had instructed Mr Dickinson to act as he did. This is particularly acute because I invited Mr Murcado to present fresh evidence and he did not.  
78	I consider that, even if there had been an error of the kind alleged by Mr Murcado in Ground 2, it would not affect the decision of the learned Magistrate because there is no evidence she instructed Mr Dickinson to act as he did.  For clarity, I note that I invited Mr Murcado to present fresh evidence on his appeal that may have supported this ground. He did not. I dismiss this ground.
Ground 3
79	The Magistrate had failed to take into account the fact that Mr Dickinson had an IVO against him. 
80	In considering this ground I proceed on the basis that there has been an error demonstrated by the failure to provide reasons. It is completely unclear how the alleged error in Ground 3 is said to be an error which could have affected the result. This is because the application made by Mr Murcado is for an FVIO against Ms Murphy.  Why the fact of Mr Dickinson being subject to a PSIO is relevant is entirely unclear.  I dismiss this ground.
Ground 4
81	The Magistrate had failed to take into account that Ray White had not been engaged by Mr Dickinson. 
82	In considering this ground I proceed on the basis that there has been an error demonstrated by the failure to provide reasons and therefore, this Court’s jurisdiction to entertain the appeal is enlivened.  It is completely unclear how the error in Ground 4 is said to be an error which could have affected the result. This is because the application made by Mr Murcado is for an FVIO against Ms Murphy.  I dismiss this ground.
Ground 5
83	The Magistrate failed to “…allow due process to occur and evidence to be heard”. 
84	In considering this ground I proceed on the basis that there has been an error demonstrated by the failure to provide reasons. Even accepting that Mr Murcado was stopped from putting the matters in Grounds 1-4 as I have set out above, the result would not have changed.  This is because Mr Murcado has not demonstrated any evidence that links Mr Dickinson to Ms Murphy.  Even more importantly, however, he has no evidence to show that Ms Murphy instructed Mr Dickinson to make the threats he did.  I record that orders were made several months prior to the trial for the filing of evidence.  Mr Murcado filed no evidence on this point.  Further, during the appeal of 1214 I asked Mr Murcado if he wanted to file any evidence.  He said he did not. With no evidence to support the ground it is no more than an assertion.  I dismiss it.
85	As a result of the above findings, I will dismiss the appeal in AP-21-1214.
86	The parties will be given liberty for seven days to make application for any consequential orders.