AB v CD
[2015] ACTMC 9
•18 June 2015
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | AB v CD |
Citation: | [2015] ACTMC 9 |
Hearing Date(s): | 25 March 2015 & 12 June 2015 |
DecisionDate: | 18 June 2015 |
Before: | Chief Magistrate Walker |
Category: | Decision |
Catchwords: | Application for a personal protection order – intellectual disability - examiner appointed - personal violence established – order will not provide a legally enforceable mechanism to prevent violent conduct – hardship to the Respondent - recommendation that the Respondent, the aggrieved person or another relevant person take part in a program of counselling, training, mediation, rehabilitation or assessment. |
Legislation Cited: | Crimes Act1900 (ACT). Domestic Violence & Protection Orders Act 2008 (ACT) ss 6, 7, 14(1), 46, 47, 89. Domestic Violence and Protection Order Regulations 2009 (ACT) s 40. Human Rights Act 2004 (ACT) s 8. |
Cases Cited: | Farthing v Phipps [2010] NSWDC 317. |
Texts Cited: | Defendant Incapacity and AVOS Issue Paper, Intellectual Rights Service, December 2014 |
Parties: | AB by his Legal Guardian (Applicant) CD by his Legal Guardian (Respondent) |
Representation: | Self-represented (Applicant) |
| Mr Werner of Pappas, J. – Attorney (Respondent) | |
File Number(s): | RO 141 of 2015 |
CHIEF MAGISTRATE WALKER:
On 26 February 2015, the Applicant, AB, made an application for a personal protection order pursuant to the Domestic Violence and Protection Orders Act 2008 (‘the Act’) against the Respondent, CD, his housemate. Both are middle-aged men who suffer with intellectual disability. Both had family members appearing as litigation guardians. Disability ACT, who manage the house and provide carers for its occupants, sought to appear as a party but were refused. They were invited, however, to provide information to assist the Court. The matter was listed for hearing on 25 March 2015. AB’s sister was his litigation guardian. She is also legally qualified. She was given leave to assist her brother to present his case. It became apparent when he started giving oral evidence that it was inappropriate for the matter to proceed formally in that way, not least of all because AB appeared to become quite anxious even in evidence in chief. The matter was adjourned to allow the Court to appoint an examiner pursuant to section 40 of the Domestic Violence and Protection Order Regulations 2009.
The Court arranged for individuals with expertise in advocating on behalf of people with intellectual disability to conduct recorded interviews with each the Applicant and Respondent which the parties had agreed would form part of the evidence in the case.
Being an unusual procedure, it took some time to make the appropriate arrangements and the matter was not relisted for hearing until 12 June 2015.
Evidence before the Court consisted of:
(a) An unsworn statement from AB (‘the Applicant’);
(b) Affidavits from the Applicant’s mother, initially the Applicant’s litigation guardian;
(c) An Affidavit from the Applicant’s father;
(d) An Affidavit from the Applicant’s brother, which was supplemented by oral evidence;
(e) An Affidavit from the Applicant’s sister who took over the responsibility as litigation guardian and also assisted the Applicant in the presentation of his case to the Court
(f) Transcripts of recordings of interviews with both AB and CD,
(g) Two reports to the Australian Federal police dated 29 May 2015 and 3 June 2015;
(h) A report prepared by Disability ACT in respect to the functioning of the joint household dated February 2015 (‘the House report’);
(i) A letter dated 3 February 2015 to CD’s sister and litigation guardian;
(j) A National Disability Insurance Scheme (‘NDIS’) fact sheet;
(k) A document headed ‘CD’s Personal Profile’;
(l) Three reports to CD’s guardians from October 2013 to January 2015, February, March 2015 and 4, 25 and 29 May 2015;
(m) Two workers from the house (Worker A and Worker B) were called to give evidence.
Much of the evidence was untested.
AB is aged 44 and has been diagnosed with an intellectual disability.[1] CD is aged 42 and is also diagnosed with an intellectual disability.[2]
[1] House report February 2015
[2] House report February 2015
These two men have lived in shared housing accommodation, along with a third person, since the second half of 1999.[3] The house is rented from Housing ACT through Disability ACT and is a four-bedroom, two-bathroom residence. Each occupant has his own room and the fourth is used as an office and sleepover room for support staff.[4]
[3] House report February 2015
[4] Request for proposal for support services at Group House
The men have lived in relative harmony until recent years.
AB requires constant supervision and support in all aspects of his life. He has poor social skills.[5]
[5] Request for proposal for support services at Group House
10. CD is more independent than AB, travelling to work and around Canberra alone on the bus, attending movies and shopping alone.[6] He too, however, has poor social skills and requires supervision and support for most aspects of his life.[7]
[6] CD Personal Profile
[7] Request for proposal for support services at Group House
11. I observed that CD was physically larger than AB.
12. Disability ACT maintains an incident register for the house and a summary of incidents recorded in it has been provided. During the period January 2012 to January 2015, there were 35 reports involving “externalised emotion” relating to CD and seven such reports in respect to AB during the same period.[8]
[8] House report February 2015
13. Most of the incidents were short lived and directed towards staff or involved damage to property.[9]
[9] House report February 2015
14. Two of the incidents recorded involved physical assault, both being attributed to AB and involving visitors to the house.[10]
[10] House report February 2015
15. CD is known to be very loud.[11] This scares AB.[12]
[11] CD Personal Profile; interview of AB 29 April 2015
[12] Unsworn statement of AB dated 19 March 2015; interview of AB dated 29 April 2015; affidavit of AB’s brother dated 19 March 2005; affidavit of AB’s sister dated 19 March 2015
16. AB gets upset because CD dominates use of the television, insisting on having his programs on and putting his chair right in front of the television.[13]
[13] Affidavit of AB’s sister dated 19 March 2015
17. AB has been upset about CD entering his room uninvited.[14]
[14] Affidavit of AB’s sister dated 19 March 2015
18. CD’s shouting has been observed by others, for example the father of the third occupant.[15]
[15] Affidavit of AB’s mother dated 19 March 2015 annexure 3
19. It appears that on occasions CD lashes out physically. There have been allegations that he hit other people in the house, for example that he hit and kicked a carer on 29 May 2015[16] and pushed AB in the chest on 26 May 2015.[17]
[16] Report AFP 29 May 2015
[17] Report AFP 3 June 2015
20. CD grabbed AB on the shoulder at some point.[18][19]
[18] Interview of AB dated 29 April 2015
21. AB has also demonstrated physical aggression, albeit to the third occupant of the house.[20]
[20] Oral evidence of Worker B
22. CD has caused damage to property at the house.[21] AB has also caused property damage, including punching a hole in his bedroom wall.
[21] Affidavit of AB’s father dated 19 March 2015 annexure 9; interview of AB dated 29 April 2015
23. A lock has been installed on AB’s bedroom door at the house.[22] This was at the request of his parents.[23]
[22] Affidavit of AB’s father dated 19 March 2015
[23] Oral evidence of Worker A
24. AB suffers with a skin affliction which may be worsened as a result of anxiety. The evidence is equivocal as to whether there is a direct correlation between AB’s skin condition and what his guardians have described as conflict with CD.[24]
[24] Affidavit of AB’s mother dated 19 March 2015 annexure 5; House report February 2015
25. The relationship between AB and CD’s guardians has deteriorated making the ongoing arrangement more difficult for occupants of the house.[25]
[25] Affidavit of AB’s mother dated 19 March 2015 annexure 6; affidavit of AB dated 19 March 2015 annexure 2; affidavit of AB’s sister dated 19 March 2015
26. The Act defines personal violence in section 14 (1) as follows:
(a) causes personal injury to someone (the aggrieved person ) or damage to the aggrieved person's property; or
(b) threatens to cause personal injury to the aggrieved person or damage to the aggrieved person's property; or
(c) is harassing or offensive to the aggrieved person.
27. Based on the evidence available to me I am satisfied on the balance of probabilities that CD has engaged in behaviour which has involved the threat of personal injury to AB, by physically grabbing and pushing him, and behaviour which is harassing, namely loud shouting and domineering behaviour in respect to access to the television in the home. As this appears to largely be an expression of CD’s personality and a way of expressing his frustration in light of his intellectual disability, it is likely that such behaviour may continue in the future.
28. Whilst it is possible that the situation in the house has led to aggravation of AB’s skin condition, I am unable to find that proved on the balance of probabilities in light of the equivocal evidence. I am therefore not satisfied that he has suffered physical injury, either directly or indirectly, as a result of CD’s behaviour.
29. The grounds for making of a personal protection order a detailed in section 46:
1) The Magistrates Court may, on application, make a final order (other than a workplace order) if satisfied that—...
(b) the respondent—
(i) has engaged in personal violence towards the aggrieved person; and
(ii) may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.
30. Having regard to my findings above, the grounds for making of a personal protection order are made out in that CD has engaged in personal violence as defined towards AB. That is a first stage of the determination.
31. Section 47 prescribes what the Court must take into consideration when determining whether to make an order, relevantly:
(1) In deciding an application for a final order, the Magistrates Court must consider the following:
(a) the objects of this Act (set out in section 6) and the principles for making protection orders (set out in section 7); ...
(c) the accommodation needs of the aggrieved person, each child (if any) of the aggrieved person, and each child (if any) of the respondent;
(d) any hardship that may be caused to the respondent or anyone else by the making of a protection order; ....
(j) the need to ensure that property is protected from damage.
(2) The Magistrates Court may also consider anything else that is relevant.
Section 6, the objects provision, details relevantly:
(b) to facilitate the safety and protection of people who fear or experience violence by—
(i) providing a legally enforceable mechanism to prevent violent conduct; and
(ii) allowing for the resolution of conflict without the need to resort to adjudication.
Clearly the object of allowing resolution of this particular conflict without the need to resort to adjudication has, sadly, failed.
Section 7, the principles provision, details relevantly:
(1) In deciding an application for a protection order, the paramount consideration is—
(b) for a personal protection order (other than a workplace order)—the need to ensure that the aggrieved person is protected from personal violence;
(2) If a protection order is to be made on an application under this Act, it must be the protection order that is least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect to subsection (1).
32. It is clear from a consideration of the above that even if the grounds for a personal protection order are made out, it does not follow as a matter of course that such an order will be made. The Court is required to take into account the impact on the Respondent of any hardship which may be suffered. The Court is also able to have regard to any other relevant matter, including the utility of an order.
Submissions
33. AB’s sister submitted that CD was a man who failed to follow instructions, lost his temper, exhibited poor control, had limited ties with his family and guardians and disliked spending time with his housemates. He was known to be aggressive and externalise his emotions and was responsible for causing holes in the walls of the share home. He was verbally abusive towards staff, often without provocation. Staff acted as a buffer for other residents and have identified an issue of safety in the house which they address by removing other residents to ensure their safety rather than managing CD’s behaviour. She submitted that AB was “involuntarily incarcerated in his bedroom”. AB had expressed his own views which could be relied upon. AB’s doctor and counsellor identified that he has suffered personal injury. An order was required to ensure AB’s safety as he is vulnerable.
34. She emphasised that AB’s disability ought not deny him access to his rights and the full protection of the law.
35. Mr Werner on behalf of CD stressed that the Court was dealing with intellectually disabled people. He noted that there was evidence that AB also had outbursts which impacted on other residents. On the evidence there was no risk of personal injury to AB. He said that there was evidence of 15 years of AB and CD living together without serious incident, that the evidence of violence was in fact quite limited and that the oral evidence of AB’s brother in respect to witnessing or not witnessing physical violence against AB was unreliable. He said that just as CD had punched holes in the walls in the property, so had AB. He said that there was evidence that AB also damaged property and physically and verbally assaulted other individuals. He noted that the lock on AB’s door was not proof of violence and was implemented at the request of AB’s parents. It was nonetheless a protective measure. AB’s skin condition could not conclusively be correlated to any actions of CD. AB’s evidence in his statement and interview reflected that he commonly looks to others to answer for him and its reliability should be assessed in that light. He relied on the conclusion in the House report of February 2015 that although there were challenging behaviours in the house, none of the residents had suffered either physical harm nor significant emotional distress. He disputed that there was evidence of an increase in incidents having regard to that report. It was his submission that there was a breakdown between the guardians of the parties rather than the parties themselves.
36. Mr Werner stressed the hardship that would be suffered by CD if he were excluded from his home by operation of the order sought.
37. He also highlighted the risk of unintentional breach by CD in light of his disability and the potentially catastrophic effect that a prosecution based on such breach might have upon him. He provided a useful research document entitled Defendant Incapacity and AVOS Issue Paper: Intellectual Disability Rights Service December 2014. I was referred to the decision of Farthing v Phipps [2010] NSWDC 317 in regards to relevant matters which the Court may consider. At [33] Lakatos SC DCJ noted that:
As a matter of principle it follows that if the court concludes that the making of an order will not have the desired primary effect, then that will be a substantial reason in accordance with section 17 not to make the order. Furthermore, if the court concludes that a person against whom the order is made cannot properly comprehend the terms of its order, so that the effect might be that he or she unwittingly breaches the order and therefore exposes him or herself to imprisonment, that in my view would also be a sufficient other reason why an order should not be made.
Consideration
38. The Applicant has established that he has experienced personal violence as defined in the Act. It is violence towards the lower end of the scale, consisting largely of what might reasonably be considered harassing behaviour in terms of shouting and dominance within the household, property damage and minor physical contact.
39. The Act is silent as to the situation where there may be a degree of mutuality, as appears may be the case here. I take the view that this is a matter which can be considered as a relevant matter but that ultimately, that alone will be insufficient to prevent the making of an order in most instances, and certainly in this one.
40. It is relevant that the personal violence experienced has been in the context of a shared living arrangement for men with a significant disability which impacts upon their behaviour. From a lay observer’s perspective, it is not dissimilar to the behaviour of children who have not yet learned more sophisticated ways to express or manage their emotional responses. I note that there is 24 hour care at the house.
41. It is both trite and yet essential to state that AB ought not be denied access to the protection of the law. In the ACT that right is enshrined in legislation, in particular in section 8 of the Human Rights Act 2004 which states that:
(1) Everyone has the right to recognition as a person before the law.
(2) Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
(3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.
42. That is equally true for CD.
43. In the circumstances of this case, that principle is in tension with the need to protect CD’s rights, he also being a vulnerable person.
44. If an order were to be imposed on CD, I am satisfied that he would not fully understand it nor the implications of breaching it.
45. The effect of the order sought by AB would be that CD would lose his home. As a disabled man, he would lose that independence which residence there has given him. He has had some short-term accommodation with his immediate family but there is no evidence that is a suitable ongoing arrangement. No doubt the stigma of being ousted from his home by the imposition of a protection order would make his prospects of re-establishing a position in another share home more difficult.
46. If CD were excluded from the home, the evidence before me is that his habit is such that he is likely to return to that home and perhaps thereby inadvertently breach the order.
47. If CD were to remain in the home with a more limited form of order, an emotional outburst may be perceived as a breach of the order and, having regard to the history of this matter, would be actively pursued on behalf of AB. Of course if the matter were to proceed by way of criminal prosecution, it is unlikely that a conviction would be recorded having regard to the provisions of the Crimes Act1900 which are likely to be applicable to CD, such as those dealing with the issue of fitness to plead or the alternative disposition of criminal matters when the person suffers a mental impairment. Nonetheless he would be subjected to the criminal process and the stress associated with that. There is even the risk that CD would be incarcerated for a period of time until the issue could be considered by the Court.
48. The hardship to CD which would flow from the making of an order is significant and potentially catastrophic.
49. Ultimately, making the order sought will not meet a primary object of the Act in that it will not, in reality, provide a legally enforceable mechanism to prevent violent conduct.
50. I decline to make an order.
51. I note that the Court has the power pursuant to section 89 of the Act to recommend that the Respondent, the aggrieved person or another relevant person take part in a program of counselling, training, mediation, rehabilitation or assessment. I have insufficient information available to me as to what behavioural management support has been available to the men in the past. I also note that the guardians are looking to future options in light of the imminent commencement of the NDIS. However, if the present living arrangement is to continue, I recommend that both AB and CD be assessed as to their suitability for behaviour management counselling, addressing both assertiveness and conflict management.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker. Associate: Jessica Nemaric Date: 4 April 2016 |
[19] Affidavit of AB’s mother dated 19 March 2015 annexure 7