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

Jackie Greig (a pseudonym)	Appellant	
		
v		
		
Bernard Moran (a pseudonym) 	Respondent	
---

JUDGE:	Her Honour Judge Sanger	
WHERE HELD:	Melbourne	
DATE OF HEARING:	22 November and 6 December 2024	
DATE OF RULING:	27 February 2025	
CASE MAY BE CITED AS:	Greig (a pseudonym) v Moran (a pseudonym) (Ruling)	
MEDIUM NEUTRAL CITATION:	[2025] VCC 160		

RULING
---

Subject:	FAMILY VIOLENCE INTERVENTION ORDER
Catchwords: 	Appeal against final family violence intervention order- legal, factual or discretionary error – where appellant is self-represented litigant – final order made in absence of appellant – appellant in court building – whether Magistrate was functus officio following final orders being made
Legislation Cited:	Family Violence Protection Act 2008 (Vic); Magistrates’ Court (Family Violence Protection) Rules 2018 (Vic)
Cases Cited:	AAA v County Court of Victoria & Ors [2023] VSC 13; Tomasevic v Travaglini (2007) 17 VR 100; Lee v Lee (2019) 266 CLR 129; Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153; Hunt v Cupples [2023] VCC 2370; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; Roberts v Harkness (2018) 57 VR 334; Souben v Marson (Ruling) [2024] VCC 1638; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Torosidis v Department of Education and Training [2019] VSC 93
Ruling:	Appeal against final intervention order made in the Magistrates’ Court at Moorabbin on 4 May 2023 dismissed.

---

APPEARANCES:
	Counsel	Solicitors	
For the Appellant	The appellant appeared 
in person		
			
For the Respondent (Victoria Police) 	Mr A. Grant	Solicitors for Victoria Police	
			
For the Respondent (Mr Moran)	In person		

HER HONOUR:
Introduction
1	This is an appeal by Ms Jackie Greig, from a decision of Magistrate Bott at the Magistrates’ Court in Moorabbin, granting a final Family Violence Intervention Order (“FVIO”) for the protection of Mr Bernard Moran and their twin daughters on 4 May 2023 (“the decision”). 
2	At the mention, the Magistrate heard evidence from Mr Moran and the submissions of the police prosecutor, Ms Bella Freeman. Ms Greig did not attend this hearing. Ms Greig states that she was seated with her interpreter outside the courtroom in the waiting room for the entire day, but the matter was not called. However, the transcript of the hearing from that day and Ms Freeman’s evidence in this proceeding indicated that the matter was called and heard in Ms Greig’s absence. Ms Freeman sought to finalise the order before the Magistrate unopposed, in accordance with the interim orders.
3	The Magistrate was made aware that Ms Greig was in the court building after she made final orders, and Ms Greig addressed the Magistrate later that day. The time of this exchange was disputed, but the content of the exchange was broadly agreed. 
4	The status of this exchange was the subject of discussion in this matter. I will return to discuss that later in my ruling. Suffice to say, the Magistrate did not vary her earlier orders. The certified extract of the final FVIO indicates that Ms Greig was provided with an explanation about the orders.
5	Before making her orders pursuant to section 61(2) of the Family Violence Protection Act 2008 (Vic) (“the Act”), the Magistrate relied on the original police application for an intervention order dated 19 December 2022, the evidence of Mr Moran, and the certificate of service dated 24 December 2022. The FVIO was made for a duration of five years, to expire on 3 May 2028. 
6	On 1 June 2023, pursuant to section 119(2) of the Act, Ms Greig filed an appeal against the decision. 
7	The preliminary hearing of the appeal was before me on 22 November 2024 and 6 December 2024. 
8	Pursuant to the principles in AAA v County Court of Victoria & Ors, the appellant is required to demonstrate a factual, legal or discretionary error in the decision of the Magistrate to enliven the appellate jurisdiction of this Court.
Background
9	It is useful to give a brief overview of the circumstances behind this proceeding, as it provides context to the hearing before the learned Magistrate on 4 May 2023 and the decision.
10	Ms Greig and Mr Moran were in a de facto relationship for approximately two and a half years from 2016 to 2018. There are twin daughters from this relationship (“the children”). 
11	While it is unclear whether the relationship ended acrimoniously, it was apparent that the relationship between Ms Greig and Mr Moran had been acrimonious for some time. There are Federal Circuit and Family Court of Australia orders in place regarding the care and supervision of the children. Two final Orders of that Court outlining the nature of those arrangements were tendered in this proceeding.
Interim FVIO
12	On 19 December 2022, Victoria Police applied for an interim FVIO for the protection of Mr Moran and the children. The application provided the following reasons why an FVIO was needed: 
“THE AFM AND RESPONDENT WERE IN AS (sic) TWO-AND-A-HALF YEAR RELATIONSHIP ENDING IN 2018 AND HAVE TWO DAUGHTERS TOGETHER. THE AFM HAS FULL CUSTODY OF BOTH DAUGHTERS, AND THE RESPONDENT IS ALLOWED TWO HOURS PER FORTNIGHT WITH THE CHILDREN IF AN APPROVED SUPERVISOR IS PRESENT AS PER THE FAMILY LAW COURT ORDER. ON THE 7TH OF DECEMBER 2022, THE RESPONDENT ATTENDED THE DAUGHTER’S [extracurricular A] CLASS IN [Suburb B] AND APPROACHED THE DAUGHTERS, SPEAKING TO THEM IN [Language C]. WHEN THE RESPONDENT SAW THE AFM, SHE LEFT IN A HURRY. ON THE 10TH OF DECEMBER 2022, THE RESPONDENT ATTENDED THE [Temple D] ON [Road E] AND ATTEMPTED TO HUG AND KISS THE AFM. THE AFM HAS TOLD THE RESPONDENT ON MULTIPLE OCCASIONS NOT TO HUG AND KISS HIM. ON THE 15TH DECEMBER 2022, THE RESPONDENT ATTENDED THE DAUGHTER’S [extracurricular A] CLASSES AGAIN AFTER THE AFM CHANGED THE DAY AND TIME OF THE CLASSES CAUSING THE AFM TO FEAR THAT THE RESPONDENT IS FOLLOWING THEIR EVERY MOVE. THE RESPONDENT RIPPED THE AFM’S PHONE FROM HIS HAND SO THE AFM COULDN’T CALL ANYONE. ON THE 17TH DECEMBER 2022, THE AFM SAW THE RESPONDENTS CAR PARKED NEAR THE [Temple D] ON [Road E]. THE RESPONDENT IS NOT [Religion F] AND DOES NOT ATTEND ANY [Temple D] WHEN THE AFM WAS LEAVING THE [Temple D] AFTER SERVICE, THE RESPONDENT DROVED (sic) AS THEY WERE WALKING HOME AND SAID SOMETHING TO THE DAUGHTERS IN [Language C]. THE AFM IS WORRIED THAT THE RESPODENT (sic) IS FOLLOWING THEIR MOVEMENTS AND WAITING FOR AN OPPORTUNITY TO TAKE THE CHILDREN AWAY. POLICE BELIEVE AN INTERVENTION ORDER IS REQUIRED TO PROTECT THE AFM AND TWO DAUGHTERS FROM THE RESPONDENTS STALKING BEHAVIOUR.” 
13	On 19 December 2022, the Moorabbin Magistrates’ Court granted the interim FVIO sought. The certified extract of orders from this date states that the summons was not served on Ms Greig, she was not present at the hearing, and she did not agree to the order. The matter was adjourned to a mention on 23 February 2023. 
14	On 24 December 2022, the interim FVIO and the application and summons for the final FVIO were served on Ms Greig.
Proceedings in the Magistrates’ Court on 23 February 2023
15	On 23 February 2023, the proceeding was listed for a mention at Moorabbin Magistrates’ Court. Ms Greig’s evidence was that she was overseas caring for her elderly father at this time. The mention was adjourned to 4 May 2023. 
Proceedings in the Magistrates’ Court on 4 May 2023
16	On 4 May 2023, the proceeding was listed for a mention at Moorabbin Magistrates’ Court. Some aspects of this proceeding were in dispute between the parties. The uncontentious aspects are set out below. 
17	Ms Greig’s evidence was that she arrived at the Court at around 9:00am and confirmed her arrival at the front desk, where she was introduced to Ms Rebecca Stanley, the interpreter that was assigned to assist with her matter. 
18	Prior to her matter being called, Ms Greig approached Mr Jake Abbott, a lawyer with Victoria Police, to ascertain whether an agreed position could be put to the Magistrate. Ms Greig indicated that she would consent to the FVIO being made without admissions, provided it was for a duration of six months. These negotiations were unsuccessful as Victoria Police were of the view that the duration of an FVIO was a matter for the Magistrate, not Victoria Police. 
19	Ms Greig’s evidence was that she returned to the waiting area outside the courtroom with Ms Stanley, and they waited for her matter to be called. 
20	The mention was heard by her Honour Magistrate Bott. Present at the mention was the police prosecutor, Ms Freeman, and Mr Moran, who appeared via video link. Mr Moran confirmed that he had spoken to a lawyer from Victoria Legal Aid, but that he would appear on his own behalf. 
21	Ms Greig was not present in the courtroom when her matter was called. When asked by the Magistrate, Ms Freeman confirmed that as far as she was aware, Ms Greig had not left the building. Ms Freeman also advised the Magistrate that her understanding was that Ms Greig refused the assistance of a duty lawyer.
22	At the hearing, the Magistrate asked if Victoria Police were seeking to finalise the order that day, which Ms Freeman confirmed was the intention, and advised that Ms Greig “may or may not take a different view.” 
23	The Magistrate then confirmed with the clerk that Ms Greig had made no appearance, to which the clerk confirmed they could hear the page outside. 
24	Ms Freeman submitted to the Magistrate that the position of Victoria Police was to finalise the matter unopposed, in line with the interim order.
25	The Magistrate then heard the matter. Mr Moran requested that the length of the final FVIO be two to three years. Mr Moran also informed the Magistrate of three breaches of the interim FVIO by Ms Greig, which he confirmed had been reported to Victoria Police. 
26	The Magistrate proceeded to make a final order, as the application was proceeding unopposed. She noted that Ms Greig had not answered the page and was not present in the courtroom. She considered it appropriate to finalise the application in respect of Mr Moran and the children as protected family members.
27	She confirmed that service of the interim FVIO on Ms Greig was effected on 24 December 2022. The duration of the final FVIO was made for a period of five years, and operated from 4 May 2023 to 3 May 2028, unless extended, varied or revoked prior to that date. The Magistrate read out the conditions of the final order, and also explained the order to Mr Moran. The parties were then excused. 
28	At some time after the final FVIO was made, Ms Greig made it known that she was in the court building. It is a point of contention between the parties as to what time this exchange occurred. However, it was agreed that after the final FVIO had been made, Ms Greig entered the courtroom and discussed the order with the Magistrate. It was also agreed by the parties that Ms Freeman and Ms Stanley were also present during this exchange, however, Mr Moran was not. 
29	The Magistrate explained to Ms Greig that the final FVIO was made in her absence. There is no recording of this exchange, so there is no transcript of what transpired. However, I did have the benefit of the oral and affidavit evidence of Ms Greig and Ms Freeman regarding their recollections of this exchange, which I will discuss later.
30	The certified extract of the orders made on 4 May 2023 show that the following orders were made:
“FAMILY VIOLENCE APPLICATION
Final Order
….
This intervention order expires at midnight on 3/5/2028. 
The current INTERIM intervention order will remain in place until this
final intervention order is served on the respondent. 
Summons served on respondent
Respondent not present in hearing
Respondent did not agree to the order
Pursuant to the Family Violence Protection Act 2008 an oral explanation
was given to the respondent by the Court at 12:58pm.”

(Emphasis added.)
Nature of appeal
31	Pursuant to section 119 of the Act, the appeal is conducted by way of rehearing. On rehearing, this Court may confirm, set aside or vary the Magistrate’s decision and exercise any other powers that the Magistrates’ Court may have exercised.
32	To enliven the jurisdiction of this Court, Ms Greig must first demonstrate that the Magistrate made a factual, legal or discretionary error. 
33	For reasons explained in this ruling, I find that Ms Greig has not demonstrated legal or factual error on the part of the Magistrate, and thus has not enlivened the jurisdiction of this Court.  
Appeal in the County Court
34	At the preliminary hearing of this appeal before me, Ms Greig called Ms Stanley as her only witness. Victoria Police called Ms Freeman as their witness. I also heard from Ms Greig and Mr Moran, as well as submissions from Counsel for Victoria Police. 
Evidence
Appellant’s evidence
Ms Greig’s evidence
35	Ms Greig provided an affidavit affirmed on 20 August 2024 stating that:
(a)	She was with Ms Stanley, at Moorabbin Magistrates’ Court from around 9:00am until 4:00pm on 4 May 2023; 
(b)	She spoke with the police prosecutor and attempted to negotiate a six-month FVIO without admissions; 
(c)	She was seated in the waiting room, in front of the courtroom, for the entire morning, until the Court closed for lunch, and then the entire afternoon from 2:00pm onwards; 
(d)	At close to 4:00pm that day, she enquired with the staff at the front desk about the matter. The staff member spoke with the police prosecutor and shortly afterwards, she was told to enter the courtroom;
(e)	She submitted to the Magistrate that she sought for the final FVIO to be for a duration of six months, with no admissions made.  Mr Moran was not present in the courtroom when these submissions were made;
(f)	She was informed by the Magistrate that the final order was made for a duration of five years, with the conditions of that order explained to her; and
(g)	After she left the courtroom, she attended the front desk to receive a copy of the final orders. At the same time, Ms Stanley had her hours signed off by the staff member at the front desk. This allegedly occurred several minutes after 4:00pm. 
36	At the preliminary hearing, Ms Greig reiterated the above, and further said:
(a)	She did not consent to the FVIO being made, and that the application was contested; 
(b)	Contrary to the timestamp on the certified extract of the orders made on 4 May 2023 and the evidence of Ms Freeman, she was not in the courtroom or orally served with the final FVIO at 12:58pm. She maintained that the only time she entered the courtroom was at the end of the business day, around 4:00pm; and 
(c)	She only became aware of what happened during the mention once she received the transcript of the proceedings. 
Ms Stanley’s evidence
37	Ms Stanley provided oral evidence at the preliminary hearing that:
(a)	She had to look at her diary to remember what occurred on 4 May 2023. She noted that her diary indicated she was at Moorabbin Magistrates’ Court for the full day, as she received payment for a full day. She then said that she could not remember details of what happened, but that she remembered sitting outside the courtroom all day;
(b)	She did not recall hearing Ms Greig’s name or the name of the matter being called;
(c)	She and Ms Greig were not called into a courtroom for a hearing;
(d)	She recalled entering the courtroom with Ms Greig briefly, but she could not recall what time they entered the courtroom. She thought she must have been at Court until 4:00pm as she was paid for the full day; and 
(e)	She did not accept Counsel’s submission that she could have been mistaken, as she stated that she would not have been paid by the Court for the full day unless she was there for the full day. 
First respondent’s evidence
38	Victoria Police tendered an affidavit of Ms Bella Freeman affirmed on 14 August 2024.
39	Ms Freeman’s affidavit outlined her recollection of events on 4 May 2023 at the mention, which was assisted by her review of the transcript, as follows: 
(a)	The matter was called just before 12:00pm and Ms Greig failed to appear. Ms Freeman indicated to the Magistrate that Ms Greig was present in the Court building;
(b)	Ms Greig was paged, however, she still failed to appear. The Magistrate heard from Ms Freeman and Mr Moran in the absence of Ms Greig, and the unopposed application for a final FVIO was made and granted by the Magistrate;
(c)	The Magistrate granted a final order against Ms Greig with full conditions for a period of five years; 
(d)	Following the order being granted, at approximately 12:55pm, the matter was “recalled” after Ms Greig made enquiries with court staff. Ms Greig entered the courtroom, which was not captured on the transcript;
(e)	The Magistrate allowed Ms Greig to provide an oral explanation for her absence; and
(f)	The Magistrate did not alter the final order. 
40	Ms Freeman gave oral evidence at the preliminary hearing confirming the above and further stated: 
(a)	There were no issues with the Court paging system on the day of the hearing, and she could hear that the page was working outside the Court while she was inside the Court;
(b)	Mr Abbott advised Ms Freeman that Ms Greig was physically present in the Court building, by marking as such on the brief and by sending Ms Freeman a Microsoft Teams message; 
(c)	It was not uncommon for a respondent or an affected family member to not be physically present in the courtroom but be present in the Court building on the day of their hearing. She stated that there was a coffee truck outside the Court that people would go to while waiting for their matter to be called, or that a party might be unhappy with the outcome of discussions with a police lawyer or sworn member of police and leave Court without attending their hearing;  and
(d)	She did not have any recollection of sitting at 4:00pm that day. Her recollection was that the matter was called before lunch. She recalled sending Mr Abbott a message over Microsoft Teams that the matter had been ‘recalled’ and that they would be continuing over the lunch period. 
Second respondent’s evidence 
41	Mr Moran provided a statement following Ms Greig’s viva voce evidence. He said that he was aware that there were speakers at Moorabbin Magistrates’ Court in the bathrooms and outside the Court building, as people may exit the building to have a break or get a coffee. 
Appeal grounds
42	In her notice of appeal dated 28 August 2024, Ms Greig relied on two grounds of appeal, stating that both grounds constituted factual errors. As those grounds of appeal concerned procedural fairness, I have instead characterised them as legal error.
43	These grounds were: 
“I was not given an opportunity to be heard at the IVO hearing that was held at Magistrates’ Court Moorabbin on 4 May 2023, prior to the Final Orders being made, despite being a Respondent, who was present in the Court and despite the Magistrate and the Police Prosecutor being aware of my presence.”

…
“I was invited in the Court-room several hours after the Final Decision was made, around 4 pm and only after I made an enquiry at the Front-desk about the reasons why my case had not been heard. The Final Orders were not revoked while I was in the Court - Room nor was my communication with the Magistrate recorded.”
44	I have considered Ms Greig’s notice of appeal, written submissions for the preliminary hearing, supplementary written submissions dated 13 December 2024, closing submissions at the preliminary hearing, and my attempts to clarify the substance of the submissions in person at the preliminary hearing, noting the types of assistance which should be provided to a self-represent litigant. I have deemed it necessary to provide an alternative characterisation of Ms Greig’s grounds of appeal, synthesising all of the abovementioned considerations. 
45	Ultimately, Ms Greig alleges that the Magistrate made an error of law, as she denied Ms Greig procedural fairness in the following ways:
(a)	Failing to call Ms Greig into the courtroom at the time of her matter being heard, thereby denying Ms Greig the opportunity to make submissions, present evidence and respond to allegations; (“Ground 1”)
(b)	Making orders in Ms Greig’s absence, despite; (“Ground 2”)
(i)	Ms Greig being the respondent to the FVIO; and
(ii)	Ms Greig being present at the Moorabbin Magistrates’ Court, which both the Magistrate and Ms Freeman were aware of, but failed to direct Court staff to collect Ms Greig; and
(c)	Failing to revoke the FVIO after hearing from Ms Greig (“Ground 3”) 
Appellant’s submissions
46	During closings, Ms Greig submitted that:
(a)	I should not accept Ms Freeman as a reliable witness, because she was relying on her memory during the hearing, and that it was “puzzling” that Ms Freeman could remember the level of detail that she did after such a long period of time;
(b)	I should accept her evidence and the evidence of Ms Stanley, as Ms Stanley was not “inventing information” which was supported by the fact that the Court paid Ms Stanley for a full day; 
(c)	She was physically in the Court building, as she was waiting outside the courtroom, and that I should accept that she had an intention to attend the court hearing. This was supported by the fact that she attempted to negotiate with the police regarding the duration of the FVIO; and
(d)	Upon entering the Courtroom later that day, she was not sworn in when providing her explanation to the Magistrate. She further stated that the terms “recall” and “rehearing” were not mentioned at all when she was in the courtroom on 4 May 2023, and that she was unaware of such terms until the preliminary hearing.  
First Respondent’s submissions in reply
47	Victoria Police submitted that the Magistrate did not make a legal error on the basis of procedural fairness as raised by Ms Greig in her grounds of appeal.
48	In closings, Counsel for Victoria Police submitted that:
(a)	I should accept:
(i)	The evidence of Ms Freeman and the transcript evidence of the clerk stating that they could hear the page outside the courtroom;
(ii)	The transcript evidence of the exchange between Ms Freeman and the Magistrate confirming that the matter was paged; and
(iii)	That the Magistrate was satisfied that although Ms Greig was present in the Court precinct, she was not in attendance in the courtroom, and as such, the Magistrate proceeded to make the final FVIO in her absence;
(b)	The Magistrates’ Court is a busy jurisdiction, and that, as Ms Freeman stated during her viva voce evidence, the intervention order list is a busy list, with the Magistrate having between 30 to 50 cases before her a day. Counsel argued that due to this time pressure, the procedures do not have the same level of “gentrification” that a higher court would have, as such courts will have significantly fewer matters to hear in one day;
(c)	The Magistrate relied on subsection 61(2)(b) of the Act to make the final FVIO as she was satisfied that Ms Greig had been served with the interim FVIO and had not attended Court on the mention date; 
(d)	The Magistrates’ Court (Family Violence Protection) Rules 2018 (“the Rules”) were relevant to this matter, in particular, rules 10.03 and 13.01.  Rule 10.03 deals with the absence of a party, and provides the Court with a wide discretion on what action it can take, which includes proceeding with the hearing. Rule 13.01 outlines what occurs with a rehearing under section 122 of the Act, and that this avenue was available to Ms Greig after the final FVIO was made; and
(e)	The Magistrate was functus officio, or that the Magistrate had no power to make further orders in the matter after making the final FVIO. This was consistent with the transcript evidence, the viva voce evidence of Ms Freeman, Ms Stanley and Ms Greig, and the fact that no formal application had made for a rehearing prior to that exchange occurring. 
Relevant legal principles
Factual error
49	The relevant legal principle applicable to factual error is found in the High Court case of Lee v Lee.  In that case, the majority of the Court said:
“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”. … .”
(Footnotes omitted.)
Legal error 
50	A legal error may result from 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”. 
51	A failure to afford a party procedural fairness will involve legal error if that failure could have materially affected the decision of the court. 
52	As explained by Kiefel CJ, Keane and Gleeson JJ in Nathanson v Minister for Home Affairs:
“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.”
Unrepresented litigants and the right to a fair hearing
53	Procedural fairness, and the correlative right of each party to a fair hearing, requires the court to provide all parties a reasonable opportunity to:
(a)	Present their case; and
(b)	Respond to the opposing party’s case, the court having enabled each party to be informed of the case to be advanced.
54	For this purpose, what is considered ‘reasonable’ will depend on the circumstances of the case.  In order to determine what fairness requires in a case, matters that can be taken into account include:
(a)	The nature of the decision to be made;
(b)	The nature and complexity of the issues in dispute;
(c)	The nature and complexity of the submissions each party wishes to advance;
(d)	The significance to the party of the decision; and
(e)	The competing demands on the time and resources of the court or tribunal.
55	Where a party is unrepresented, the question to be asked is “what is (or was) required to give the unrepresented person a reasonable opportunity to advance his/her own case and to be informed of and respond to the opposing case?”. The court must first assess the capability of the unrepresented person to formulate and communicate the case they wish to present. 
56	In Tomasevic v Travaglini, Bell J summarised the a judge’s obligation to provide a fair hearing to unrepresented litigants as follows:
“Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity.  Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds.  Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance.  Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial.  The proper scope of the assistance depends on the particular litigant and the nature of the case.  The touchstones are fairness and balance.  The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed….” 
Relevant provisions
57	The provisions of the Act relevant to the appeal are set out below. 
58	Section 1 provides:
“Purpose

The purpose of this Act is to—

(a)	maximise safety for children and adults who have experienced family violence; and

(b)	prevent and reduce family violence to the greatest extent possible; and 

(c)	promote the accountability of perpetrators of family violence for their actions.”
59	Section 5 reads as follows: 
“Meaning of family violence
(1)	For the purposes of this Act, family violence is—
(a)	behaviour by a person towards a family member of that person if that behaviour—
(i)	is physically or sexually abusive; or
(ii)	is emotionally or psychologically abusive; or
(iii)	is economically abusive; or
(iv)	is threatening; or
(v)	is coercive; or
(vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
(b)	behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).
…
(2)	Without limiting subsection (1), "family violence" includes the following behaviour—
(a)	assaulting or causing personal injury to a family member or threatening to do so;
(b)	sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;
(ba)  choking, strangling or suffocating (within the meaning of section     
34AB(1) of the Crimes Act 1958) a family member or threatening to do so;
(c)	intentionally damaging a family member's property, or threatening to do so;
(d)	unlawfully depriving a family member of the family member's liberty, or threatening to do so;
(e)	causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.
(3)	To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.”
60	Section 61(1) of the Act states:
“Mention date 
(1) 	 The court must not proceed to hear a contested application for a final 
       order on a mention date unless the court is satisfied that—
(a)     all the parties to the proceeding have had an opportunity to seek    
               legal advice and legal representation; and
(b)   all the parties to the proceeding consent to the hearing of the 
              contested application on the mention date; and
(c)    it is fair and just to all the parties to hear the application on the 
               mention date.
(2)     Subsection (1) does not prevent the court making a final order on a 
          mention date if—
     (a)    all the parties to the proceeding have consented to, or are not 
              opposed to the making of, the order in accordance with section 
              78; or
      (b)     the court is satisfied the respondent has been served with a copy 
              of the application for a family violence intervention order and has 
              not attended court on the mention date.”
61	Section 97(1) 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—
(a)	 that the safety of the protected person is paramount; and 
(b) 	any assessment by the applicant of the level and duration of the risk from the respondent; and 
(c)	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.”
62	Rule 10.03(1) of the Rules provides:
“Absence of party
(1) If, when the hearing of a proceeding is called on, any party is absent, the Court may—
(a)	proceed with the hearing; or 
(b) 	strike out or dismiss the application; or
(c)	adjourn the hearing; or
(d) 	make any other order which the Court considers appropriate.”
63	Rule 13.01 states:
“Application for rehearing
(1) A respondent for a final order may make an application for rehearing under section 122 of the Act by filing the application at the venue of the Court where the order sought to be set aside was made.
(2) The registrar must—
(a)	list the application for hearing; and
(b) 	serve a copy of the application and affidavit in support on the other parties to the proceeding.
(3) If the application for rehearing is struck out because the applicant failed to appear at the time fixed for hearing of the application, any further application for rehearing is taken to be an application for leave to reapply under section 122(4) of the Act.”
Analysis
Did the Magistrate fail to provide procedural fairness to Ms Greig?
64	Ms Greig submitted that she was not afforded procedural fairness before the Magistrate in this appeal. She argued that she was not provided with an opportunity to be heard, nor to hear or reply to the evidence of Mr Moran at the mention. 
Ground 1 – did the Magistrate fail to call Ms Greig into the courtroom at the time her matter was heard? 
65	I accept the evidence of Ms Greig that she and Ms Stanley remained outside the courtroom waiting for her matter to be called.
66	What happened next is in contest.
67	Neither Ms Greig nor Ms Stanley could recall Ms Greig being paged or her matter being called. Ms Greig’s evidence was that her matter was not called. She agreed that she heard other people’s matters being called over the paging system that day. 
68	While I accept that Ms Stanley did her best to recall what happened on that day, she did not remember very much. She used her diary and the invoice of her attendance of the day as aides for provision of her evidence. While I accept her evidence that she did not recall hearing Ms Greig’s name being called, I was not able to rely on a great deal of her evidence given her lack of independent recall.
69	Ms Freeman’s evidence was that Ms Greig was paged, and that she could hear that the paging system was working outside the courtroom. The transcript shows that the clerk advised the Magistrate that they heard the page outside the Court, and that the Magistrate accepted that Ms Greig had been paged. The fact that Ms Freeman’s evidence is consistent with the transcript has led me to conclude that Ms Greig was paged.
70	I therefore find that Ms Greig’s matter was called on the day of the mention, and therefore there was no legal error or failure to provide procedural fairness arising from this ground.
Ground 2 – was it open to the Magistrate to make orders in Ms Greig’s absence? 
71	Ms Greig relies on the fact that she was present at the Moorabbin Magistrates’ Court, and that both the Magistrate and Ms Freeman were aware of this, in support of this ground. She alleges that they, knowing she was present and that the paging system in the Court might fail, should have directed support staff to collect her from the waiting room when her matter was called.
72	After a short period of time following Ms Greig being paged and failing to appear, the Magistrate proceeded to make final orders pursuant to section 61(2)(b) of the Act, the content of which has been outlined above.
73	I find that it was open to her Honour to do so.
74	I accept Ms Greig’s evidence that she presented to the Court in the morning, met Ms Stanley and had a discussion with Mr Abbott, indicating that she would consent to an order being made on the basis that the FVIO was for a period of six months, without admissions. I accept the evidence of Ms Freeman that this offer was not capable of being accepted as the duration of the order was an issue for the Magistrate to determine, and that Ms Greig was advised of this. Consequently, Ms Greig’s ‘offer’ was rejected. 
75	The evidence of both Ms Freeman and Ms Greig was that it was a busy Court that day. Ms Freeman’s evidence was that it was not uncommon for respondents to an intervention order to attend the Court building on the day their matter was listed, and then not appear in the courtroom when their matter was called.
76	I accept that evidence.
77	I am satisfied that the matter was listed for a mention on 4 May 2023 and that the Magistrate could make a final order if the Court was satisfied that Ms Greig had been served with a copy of the application for the FVIO, and that she had not attended Court on the mention date pursuant to section 61(2)(b) of the Act. 
78	While there was no dispute that Ms Greig had been served with a copy of the application for the FVIO as the respondent in the Magistrate’s Court proceedings, I was also provided with a copy of the affidavit of service filed with the Moorabbin Magistrates’ Court sworn 24 December 2022. I am thus satisfied that Ms Greig was served with a copy of the application for the FVIO.
79	I am also satisfied that she did not attend Court on the mention date. I am satisfied that to attend Court means that a party needs to be in the Courtroom and available to give evidence and present their case. It is the responsibility of each person to ensure they are able to attend the Court at the time their matter is called, to be in Court when their matter is considered, and to give sworn evidence and make submissions prior to the determination of the matter should they wish to do so. Should they fail to appear after having been called, and in the absence of an explanation having otherwise been provided to the Court, the presiding officer (in this case the Magistrate) is entitled to proceed on the basis that they have not ‘attended court’.
80	Had the Magistrate made final orders without giving Ms Greig an appropriate period to present to the Court after being called, that might have been a basis for finding that an error occurred.
81	However, the Magistrate waited until she had heard from Ms Freeman and Mr Moran (in his capacity as the affected family member) before proceeding to make her final orders in this case. 
82	I am thus satisfied that she provided Ms Greig with an appropriate period to attend Court before making final orders in her absence.
83	I therefore find that the Magistrate had power to make a final order pursuant to section 61(2)(b) of the Act at the conclusion of the mention of 4 May 2023.
84	Therefore, this ground has not been made out. 
Ground 3 – should the Magistrate have revoked or altered the orders following the exchange with Ms Greig? 
85	I note that Ms Greig raised in her written submissions that the order was not revoked upon her entering the courtroom in the later part of the day. 
86	It was clear that the exchange between the Magistrate and Ms Greig in the later part of the day was not a re-hearing or an application to vary or revoke the order. The Magistrate was no longer seized of the matter, as she had made her final orders earlier that day. 
87	Victoria Police submitted that the Magistrate was functus officio after making final orders in Ms Greig’s absence at the mention of 4 May 2023. That is, the Magistrate, as the decision maker, had disposed of all matters before her and did not have any power to make further orders. 
88	This issue was considered by Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic:
“… a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel because his power to do so is spent on the proposed second decision would be ultra vires.”
89	In the case of Torosidis v Department of Education and Training, Ierodiaconou AsJ said that:
“The concept of functus officio is applicable to bodies exercising administrative power. It reflects the importance of finality in their decision-making. There may however be occasions where ‘a rigid approach to the principle of functus officio is inconsistent with good administration and fairness’. In some situations, the decision communicated by the public body may be of such a character that warrants relaxation of the desire for finality. This approach accepts that there is convenience and flexibility attached to ‘a process by which a primary decision-maker may be persuaded on appropriate and cogent material decision that a decision taken ought to be re-opened.”’ 
(Footnotes omitted.)
90	I have reviewed the Magistrate’s notations on the certified extract of orders dated 4 May 2023. The Magistrate recorded that Ms Greig was not present in the hearing, that she did not agree to the order and that pursuant to the Act, an oral explanation was given to her by the Court at 12:58pm. 
91	As outlined earlier, although it was contested what time this exchange occurred, it is ultimately immaterial for the purposes of my findings and decision in this matter.
92	The fact that there was no recording or transcript of this interaction is consistent with the fact that this was not a further hearing. It is also supported by the statutory process that Ms Greig would have had to comply with had she been seeking either a re-hearing or a variation to the order.
93	At most, the exchange represented oral service of the order that was made earlier that day. 
94	However, this exchange was not relevant to the orders made. 
95	The relevant exchange happened earlier in the day, probably at around 12:00pm, when Ms Greig failed to appear in the courtroom when her matter was called.
96	I therefore accept the submissions of the Victoria Police and find that the Magistrate was functus officio once she made her final orders at the conclusion of the mention on 4 May 2023. 
97	Considering that, I find that Ms Greig was accorded procedural fairness and thus there was no legal error in this case. 
Conclusion	
98	Ms Greig has not established that there was any error in this case and thus her appeal is dismissed. 
---