Be v NE
[2023] ACTMC 32
•30 August 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | BE v NE |
Citation: | [2023] ACTMC 32 |
Hearing Dates: | 27 April 2023, 22 June 2023 and 14 August 2023 |
Decision Date: | 30 August 2023 |
Before: | Magistrate Temby |
Decision: | See [83]. |
Catchwords: | CIVIL LAW – FAMILY VIOLENCE ORDER – considerations under Family Violence Act 2016 (ACT) |
Legislation Cited: | Family Violence Act 2016 (ACT) ss 6,8,14,34-42,73 |
Cases Cited: | Briginshaw v Briginshaw (1938) 60 CLR 336 |
Parties: | BE ( Applicant) NE ( Respondent) |
Representation: | Solicitors Legal Aid ACT ( Applicant) Tu’ulakitau McGuire ( Respondent) |
File Number: | FVO 698 of 2022 |
MAGISTRATE TEMBY:
Introduction
1․The Applicant seeks a final order against the Respondent pursuant to the section 34 of the Family Violence Act 2016 (ACT) (the Act). By application filed 11 August 2022 she seeks an order, for a period of 24 months, prohibiting the Respondent from:
(a)being where she lives;
(b)being at CIT Bruce;
(c)being within 100m of the Applicant;
(d)contacting the Applicant (subject to certain exceptions);
(e)engaging in behaviour that constitutes family violence; and
(f)causing someone else to locate or attempt to locate the Applicant, contact the Applicant or do anything that is family violence in relation to the Applicant.
2․The Applicant was granted an interim order in those terms on 12 August 2022.
3․In the Applicant’s application, the Applicant relies on allegations that:
(a)an incident occurred at the Belconnen Mall on or around 18 March 2022, when the Respondent approached the Applicant, in contravention of a family violence order (FVO) that had been obtained by the Applicant’s mother (which named the Applicant as a protected person); and
(b)the Respondent repeatedly sexually assaulted the Applicant in the family home between the ages of 14 and 16 when the Respondent was in a relationship with the Applicant’s mother.
4․The Applicant’s application came before me for hearing, initially on 27 April 2023, continuing on 22 June 2023 and concluding on 14 August 2023.
5․At the hearing on 22 June 2023, the Applicant placed reliance on an application she filed on 30 March 2022, also against the Respondent. In that application, the Applicant alleged that:
On 18/3/2022, [the Respondent] followed me around Belconnen Mall. I was with your [sic] mother and sister and he followed us to Kmart, tried to talk to us. We didn’t talk to him and walked out. He then followed us into Target.
Threats in the past to kill me and my brother.
Sexual Assault from the age of 14-16.
[The Respondent] has previously sent other family members to harass me, including his current partner.
I fear that [the Respondent] will try to kill me and my brother.
6․The Applicant and her mother both gave evidence for the Applicant. I note that no evidence was given by the Applicant or her mother in relation to the Respondent sending family members to harass the Applicant.
7․The Respondent gave evidence in support of his defence of the Applicant’s application.
The Act
8․The key provisions of the Act are set out below.
6Objects of Act
The objects of this Act include—
(a) to prevent and reduce family violence; and
(b) to ensure the safety and protection of people, including children, who fear, experience or witness family violence; and
(c) to encourage perpetrators of family violence to be accountable for their conduct.
8Meaning of family violence
(1)In this Act:
"family violence "means—
(a) any of the following behaviour by a person in relation to a family member of the person:
(i)physical violence or abuse;
(ii)sexual violence or abuse;
(iii)emotional or psychological abuse;
(iv)economic abuse;
(v)threatening behaviour;
(vi)coercion or any other behaviour that—
(A)controls or dominates the family member; and
(B)causes the family member to feel fear for the safety or wellbeing of the family member or another person; or
(b) behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour.
Examples—par (b)
1overhearing threats being made in another room of the house
2seeing an assault or seeing injuries on a family member who has been assaulted
3seeing people comfort a family member who has been abused
(2)Without limiting subsection (1), "family violence" by a person in relation to a family member of the person includes the following:
(a) sexually coercive behaviour;
(b) damaging property;
(c) harming an animal;
(d) stalking;
(e) deprivation of liberty;
(f) harmful use of, or interference with, technology.
Examples—par (f)
1use of an electronic device to publish intimate images of a family member without the member's consent
2causing a computer system to deny access to a family member who is an authorised user of the system
3using an electronic messaging system to send abusive or threatening messages or images to a family member
4using software to track a family member's whereabouts or computer use
5creating a false social media account to disseminate adverse information about a family member
6using social media to publish intimate images of a person without the person's consent
(3)In this section:
"economic abuse", of a family member, means behaviour by a person that is coercive, deceptive or that unreasonably controls the family member without the family member's consent including by the person's exploitation of power imbalances between the person and the family member—
(a) in a way that takes away the financial independence or control the family member would have but for the behaviour; or
(b) if the family member is wholly or predominantly dependent on the person for financial support to meet the living expenses of the family member or the family member's child—by withholding the financial support.
Examples
1stopping the family member from having access to money to meet normal living expenses
2requiring the family member to transfer or hand over control of assets or income
3stopping the family member from trying to get employment
4forcing the family member to sign a legal document such as a power of attorney, loan, guarantee
5forcing the family member to claim social security payments
"emotional or psychological abuse", of a family member, means behaviour by a person that torments, intimidates, harasses or is offensive to the family member including by the person's exploitation of power imbalances between the person and the family member.
Examples
1stopping the family member from visiting or having contact with family or friends
2stopping the family member from engaging in cultural or spiritual practices
3repeated derogatory or racist comments
4threatening to disclose personal information about the family member
5threatening to withhold medication, personal health care items or other things necessary to the family member's health or quality of life
6threatening to self-harm as a way of intimidating the family member
14Matters to be considered—family violence orders
(1)In deciding whether to make a family violence order, a court must consider the following:
(a) the objects of this Act in section 6;
(b) the affected person's perception of the nature and seriousness of the respondent's alleged conduct;
(c) the welfare of any child that is an affected person;
(d) the accommodation needs of the affected person and any child of the affected person or respondent;
(e) any hardship that may be caused to the respondent or anyone else by the making of the order;
(f) any previous family violence or personal violence by the respondent in relation to the affected person or anyone else;
(g) any previous family violence order made in relation to the respondent;
(h) any previous contravention of a family violence order by the respondent;
(i) the need to ensure that property is protected from damage.
Note An affected person includes any child who hears, witnesses or is otherwise exposed to family violence committed against another person (see s 8 (1), def "family violence", par (b) and dict).
(2)The court may also consider anything else the court considers relevant.
(3)A failure of the court to comply with subsection (1) in relation to a family violence order does not affect the validity of the order.
(4)In this section:
"family violence order"—
(a) means a protection order or an after-hours order under this Act; and
(b) includes the following:
(i)a protection order under the Personal Violence Act 2016;
(ii)a protection order under the Domestic Violence Agencies Act 1986 as in force at any time;
(iii)a protection order under the Domestic Violence and Protection Orders Act 2001 as in force at any time;
(iv)a protection order under the Domestic Violence and Protection Orders Act 2008 as in force at any time;
(v)a restraining order under the Magistrates Court Act 1930 before 27 March 2002;
(vi)an order under a law of a State, another Territory or New Zealand that has or had the same effect, or substantially the same effect, as a protection order under this Act or a protection order under the Personal Violence Act 2016.
34Final orders—grounds for making
(1)A court may, on application, make a final order if satisfied that—
(a) the affected person has reasonable grounds to fear family violence by the respondent; or
(b) the respondent has used family violence against the affected person.
Note 1The court must consider the matters mentioned in s 14 in deciding whether to make the final order.
Note 2An affected person includes any child who hears, witnesses or is otherwise exposed to family violence committed against another person (see s 8 (1), def "family violence", par (b) and dict).
Note 3This section does not apply to consent orders (see s 33 (2) (b)).
(2)For this section—
(a) if some or all of the respondent's alleged behaviour in relation to which the application is made appears to be minor or trivial when viewed in isolation, or appears unlikely to recur, the court must still consider whether the behaviour forms part of a pattern of behaviour by the respondent from which the affected person needs protection; and
(b) it is sufficient to establish that the affected person has reasonable grounds to fear family violence by the respondent, or that family violence has been used by the respondent in relation to the affected person, if the respondent has—
(i)engaged in behaviour mentioned in section 8 (1), definition of "family violence", paragraph (a) in relation to the affected person; and
(ii)the behaviour constitutes an offence.
(3)However, it is not necessary to prove that any particular behaviour constitutes an offence to establish that family violence occurred.
35Final orders—length
(1)A final order remains in force for—
(a) 2 years, regardless of whether it is stated in the order; or
(b) if a shorter period is stated in the order—the period stated; or
(c) if the court is satisfied that there are special or exceptional circumstances that justify a longer period—the stated longer period.
Note The Magistrates Court must, on application, extend a final order unless satisfied the order is no longer necessary to protect the protected person from family violence by the respondent (see s 86).
(2)However, a final order made as a consent order must not be longer than 2 years.
36Safety of affected person and children paramount
In deciding the conditions to be included in a family violence order, a court must give paramount consideration to the safety and protection of the affected person and any child directly or indirectly affected by the respondent's alleged conduct.
37Least restrictive principle
A court must ensure the conditions included in a family violence order are the least restrictive of the personal rights and liberties of the respondent as possible that still achieve the objects of this Act and give effect to section 36.
38Conditions—general
(1)A family violence order may include the conditions the court considers necessary having regard to section 36 and section 37.
(2)Without limiting subsection (1), a family violence order may do 1 or more of the following:
(a) prohibit the respondent from being on premises where the protected person lives;
Note Section 39 sets out matters to be considered when including a condition prohibiting a respondent from being on premises where the respondent lives.
(b) prohibit the respondent from being on premises where the protected person works;
(c) prohibit the respondent from being on premises where the protected person is likely to be;
(d) prohibit the respondent from being in a particular place;
(e) prohibit the respondent from being within a particular distance from the protected person;
(f) prohibit the respondent locating or attempting to locate the protected person;
(g) prohibit the respondent from contacting the protected person;
(h) prohibit the respondent from doing anything mentioned in section 8 (1), definition of "family violence", paragraph (a);
(i) prohibit the respondent from doing anything mentioned in paragraphs (e) to (h) in relation to—
(i)a child of the protected person; or
(ii)any other child if the court is satisfied that there is an unacceptable risk of the child being exposed to family violence;
(j) prohibit the respondent from causing someone else to do something mentioned in paragraphs (f) to (i);
(k) prohibit the respondent from taking possession of stated personal property that is reasonably needed by the protected person or a child of the protected person;
(l) require the respondent to give the protected person stated personal property that the respondent possesses that is reasonably needed by the protected person or a child of the protected person;
(m) state the conditions on which the respondent may—
(i)be on particular premises; or
(ii)be in a particular place; or
(iii)approach or contact a particular person; or
(iv)locate or attempt to locate the protected person;
(n) require the respondent to take part in a program of counselling, training, mediation, rehabilitation or assessment if satisfied that having regard to the respondent's circumstances—
(i)the respondent is reasonably likely to participate in the program; and
(ii)that the respondent's participation in the program is reasonably likely to reduce the risk of the respondent engaging in further family violence against the protected person.
Examples—par (k) and (l)—personal property
1 personal clothing
2 toiletries
3 books
4 photographs
5 house or car keys
Examples—par (n)—respondent's circumstances
1 the respondent's work or educational commitments
2 the respondent's transport options
3 any disability the respondent may have
(3)A regulation may prescribe requirements for subsection (2) (n).
39Exclusion conditions
(1)In deciding whether to include an exclusion condition in a family violence order, a court must consider the following:
(a) as primary factors—
(i)the physical, emotional and psychological needs of the protected people; and
(ii)any disability the protected people have; and
(b) as secondary factors—
(i)the accommodation needs of, and options for accommodation available to, the protected people, the respondent and any child of the protected person or respondent; and
(ii)the length of time required for a person mentioned in paragraph (b) (i) to find alternative accommodation.
(2)However, a court may include an exclusion condition in an interim order against a respondent who is a child only if the court is satisfied that adequate arrangements have been made for the child's care (including education) and safety.
Example
if a government agency responsible for the care and protection of children has found alternative accommodation for the child
(3)If an applicant for a protection order seeks an exclusion condition in relation to the respondent and the court decides to make the order without the condition, the court must give reasons for the decision.
(4)In this section:
exclusion condition means a condition in a family violence order prohibiting the respondent from being on premises—
(a) where the respondent lives; or
(b) if the respondent is a child—where the child normally receives care (including education) or protection.
protected people, in relation to a respondent, means the protected person and any child directly or indirectly affected by the respondent's alleged conduct.
40Personal property orders
In deciding whether to include a condition mentioned in section 38 (2) (k) or (l), a court must consider the income, assets and liabilities of the respondent and the protected person (other than a protected person who is a child).
42Conditions may apply for shorter time than order
A condition in a family violence order may have effect for a period stated in the family violence order that is shorter than the period of the order.
73Costs
(1)Each party to a proceeding for a family violence order is responsible for the party's own costs of the proceeding.
(2)However, a court may make an order about costs against—
(a) the applicant for a family violence order only if the court is satisfied the application was vexatious, frivolous or in bad faith; or
(b) the respondent if the court considers it appropriate to do so.
NoteIf the Magistrates Court orders that a proceeding be dismissed under s 54A (Neither party present at return of application), the court must not make an order about costs (see s 54A (2)).
(3)For subsection (2) (a), an application is not a vexatious or frivolous application or an application made in bad faith only because it is made then discontinued.
(4)If the court orders costs against a party to a proceeding (the payee ) for a family violence order, the amount must not be more than the costs reasonably incurred by the other party.
(5)The amount stated in the order—
(a) is a debt owed by the payee to the other party; and
(b) is a judgment debt enforceable in accordance with the rules under the Court Procedures Act 2004 applying in relation to the civil jurisdiction of the Magistrates Court.
9․Accordingly, the approach to be taken in determining an application for a final order under the Act is:
(a)as a threshold issue, I must be satisfied that:
(i)the Respondent has used family violence against the affected person in the past (s34(1)(b)); or
(ii)the Applicant has reasonable grounds to fear family violence by the respondent (s34(1)(a));
(b)I must be satisfied of these matters on the balance of probabilities, having regard to the definition of family violence in s8;
(c)if I am satisfied of those matters, I may make a final order (s34) which imposes conditions on the Respondent. A non-exhaustive list of the conditions which may be imposed are set out in s38;
(d)in determining whether to make a final order, and what conditions to impose, I must have regard to the matters set out in s14 (matters to be considered - family violence orders, which includes the objects of the Act in s6), s36 (safety of the affected person and children paramount), s37 (least restrictive principle), s39 (exclusion conditions), s40 (personal property orders), as well as anything else the court considers relevant;
(e)if I am satisfied that it is appropriate to make a final order, I must determine an appropriate length. The default period under s35 is 24 months. Under s42, I may order that any given condition be in effect for less than the period of the order; and
(f)under s73, the default position in relation to costs, is that each party is responsible for their own costs of a proceeding, however costs orders may be made in appropriate cases (noting that a threshold test must be satisfied before costs may be awarded against an applicant).
Evidence
Applicant’s evidence
10․The Applicant gave evidence that the Respondent touched her in a sexually inappropriate way when they were playing pool at iPlay in Belconnen in 2017 or 2018. At that time, the Applicant was 14 or 15 years of age.
11․The Applicant said that the Respondent also grabbed the Applicant in a sexually inappropriate way in the kitchen of the family home on a number of occasions between 2017 and 2018. She said that the Respondent would get angry if the Applicant told him to stop or moved away from him. He would display his anger by gesturing with his fists, yelling at the Applicant and/or by throwing objects such as a toy or plastic cup. The Applicant disclosed this kind of conduct to police in an interview on 13 December 2019.
12․The Applicant gave evidence that the Respondent asked the Applicant several times whether she had a boyfriend and said that, if he was the Applicant’s age he would date her, and that no boy was worthy of her love. The Applicant disclosed some of these conversations to her mother, including in a text message that she sent to her mother on 22 September 2019. She also reported these incidents to police it in an interview with police on 13 December 2019.
13․The Applicant said that the Respondent would sometimes put his hand on the Applicant’s upper thigh when driving her to debating in 2017 to 2018. This was also reported to police in the interview with police on 13 December 2019.
14․The Applicant gave evidence that the Respondent sexually assaulted the Applicant in November or December 2018 by engaging in non-consensual sexual intercourse with her. The Applicant also have evidence that the Respondent threatened that he would kill her, or hurt her family, if she told anyone.
15․The Applicant said that the Respondent sexually assaulted her again in December 2018 or January 2019 (non-consensual sexual intercourse), with the Respondent again threatening to kill or harm the Applicant or her family if she told anyone.
16․The Applicant also said that the Respondent threatened the Applicant and her brother in December 2018 or January 2019 when they were visiting Telstra Tower, saying that he would push them off and that he would kill them.
17․The Applicant gave evidence that the Respondent came out of the shower one day in early 2019, wearing only a towel. He followed the Applicant to her bedroom, grabbing her by the wrists and tried to push her against the wall. His towel came off and the Applicant saw his penis.
18․That incident was reported to the police, in the police interview of 13 December 2019, as having involved:
(a)the Defendant being half-naked (wearing only a towel) coming out of the shower, and being seen by the Applicant;
(b)the Applicant going to her room;
(c)the Respondent following her and trying to force himself on the Applicant;
(d)the Respondent’s towel coming off in the struggle;
(e)the Applicant being scared but managing to get away from the Respondent; and
(f)the Respondent saying that he would kill the Applicant if she told the Applicant’s mother what had happened.
19․This incident is reflected in an application for a FVO that the Applicant’s mother made on 11 February 2020 (FVO 161/2020), in which the Applicant’s mother wrote that the Applicant had disclosed to her in mid-2019 that the Respondent had tried to rape her and that the Respondent had said that he would kill the Applicant’s whole family if she told anyone about the incident.
20․The Applicant said in her evidence at the hearing that the Respondent sexually assaulted the Applicant (non-consensual sexual intercourse) a handful of additional times between 2019 and 2020. After one of those occasions, the Respondent took out a sharp knife from the kitchen and said to the Applicant and her brother that he would kill them if they told anyone. This scared the Applicant and made the threats he had been making more real. On another of the occasions, the Applicant reported suffering vaginal bleeding as a result of the intercourse.
21․In March 2022, the Applicant and her mother were shopping at Kmart in the Belconnen Mall. The Applicant said that the Respondent tried to talk to them and brushed past the Applicant’s mother. They left and the Respondent followed them to Target, where he tried to talk to them again. The Applicant was fearful as a result of the Respondent’s conduct.
22․The Applicant states in her application that this incident occurred on 18 March 2022. The Applicant’s mother gave evidence to that effect. In this respect, I note that FVO 161/2020 was in force at that time and prohibited the Respondent (amongst other things) from being within 100m of the Applicant and her mother.
23․The Applicant also gave evidence that:
(a)in September 2022, the Applicant was at a birthday party for her sister at a location in the city. The Applicant could not recall which venue. The Respondent entered the venue and walked towards the Applicant and her sister, so they left and reported the incident to police;
(b)in March 2023, the Respondent posted a video on social media. The Applicant has not seen the video but understood the Respondent to have said that the Applicant’s family were ruining his life; and
(c)in May 2023, the Applicant was at an event in the city when she saw the Respondent staring at her. She said that his face was angry and aggressive, and she left.
Applicant’s mother’s evidence
24․The evidence of the Applicant’s mother was largely based on what she had been told by the Applicant, rather than incidents that she had observed herself. She gave evidence of the Applicant telling her that the Respondent had been saying inappropriate things and that the Respondent had been having sexual intercourse with the Applicant by force.
25․In the application for a FVO filed by the Applicant’s mother in 2020 (which resulted in FVO 161/2020), the Applicant’s mother asserted that the Respondent had attempted to rape the Applicant. The Applicant’s mother gave evidence that the Applicant disclosed this incident to her in mid-2019. She said that the Applicant did not feel free to tell her until the Applicant went overseas, which was in November 2019. She said that the Applicant was not able to articulate what she meant by attempted rape, and that she was holding a lot of anger in. The Applicant’s mother said that the Applicant disclosed to her that the Respondent had threatened the Applicant with a knife.
26․The Applicant’s mother said that, even though the Applicant had disclosed to her that the Respondent had had sexual intercourse with the Applicant by force before the application for the FVO was filed by the Applicant’s mother in 2020, the Applicant’s mother did not refer to this in the FVO application because the Applicant was scared about someone reading it.
27․The Applicant’s mother gave evidence about a TikTok video that the Respondent had published after she had obtained FVO 161/2020. In that video, the Respondent asserts that people have accused him of horrendous things and notes that he is required to go to court. He said that the false accusations were ruining his life. The Applicant’s mother expressed her concern that the video painted her as a liar and asserted that the Respondent had been talking in the community in a way that was disparaging.
28․The Applicant’s mother also gave evidence about statements made by the Respondent at church, saying that he had spoken in front of the church, accusing the Applicant’s mother of making false allegations against him and lying to the court. The Applicant’s mother said that she heard the Respondent make those statements.
29․The Applicant’s mother gave evidence that she encountered the Respondent twice at Belconnen Mall:
(a)The first time, on 18 March 2022, when the Respondent followed her into, and out of, Kmart. On this occasion, the Applicant was with her; and
(b)on a second occasion, when she was coming into Belconnen Mall and the Respondent bumped into her shoulder. She said that the Respondent was supposed to be 100m from her, so she reported the incident to police. She said that the Applicant was not present on this occasion.
30․In terms of the Applicant’s mother’s concerns for the Applicant, she said that:
(a)there is a high risk of the Applicant being sexually abused or killed if an order is not made, given the Respondent’s past threats; and
(b)the Applicant’s mental wellbeing is being affected by the Respondent raising issues in the community and people asking question about the Applicant’s rape allegation.
Respondent’s evidence
31․The Respondent denied all of the allegations that have been put against him. He said that he was not aware of the allegations at the time the police contacted him about them, and noted that he was never interviewed by the police. Similarly, when Child Youth Protection Services (CYPS) called him to raise concerns that they had with respect to the allegations, he reports that they only asked him whether he had done what was alleged and he told them that he had not.
32․In terms of the specific allegations that are raised on the Applicant’s case, the Respondent gave evidence that:
(a)in terms of the alleged incident at iPlay in Belconnen Mall, he took the Applicant and her siblings to all sorts of places, including to iPlay, although he had not started playing pool at the time of the alleged incident and did not play pool with the Applicant during the time alleged;
(b)in terms of the alleged incident at the Belconnen Mall in March 2022, the Respondent had attended Kmart in Belconnen Mall to buy a present for his son and he happened to be leaving the store as the Applicant and her mother were coming in. He said that he just left and that there was no incident;
(c)in terms of the alleged incident in September 2022, the Respondent was at a club, waiting to drive his brother home. His brother was a DJ at the club. He said that the Applicant came into the club, saw him, and left;
(d)in terms of the TikTok video, the Respondent said that the allegations that have been made against him have affected him and his relationships with other people. He said that people have attempted to instigate fights with him over the allegations. He said that he just wanted to clear his name and that this was the motivation for the TikTok video; and
(e)in terms of the statements he made in church, in March 2023, the Respondent said he asked for prayers because he was going to court. He did not mention the names of the people who had raised allegations about him. The Respondent said that in March or April 2023, the Applicant’s mother attended his church, and that he simply spoke to the deputy pastor to advise that he could not stay because the applicant’s mother had a restraining order against him.
33․The Respondent said that the last time he had contact with the Applicant was when they were living together in 2019. He travelled overseas that year because his grandmother was ill and did not live with the Applicant’s mother and her family on his return to Australia.
34․The Respondent also tendered two character references from people who have known the Respondent for the past 12 years. Those character references generally attest to the Defendant’s good character, with one of the references suggesting that the Respondent’s character is such that he would be incapable of carrying out any of the serious acts of which he has been accused.
35․In cross examination, the Respondent gave evidence about the impact that a family violence order might have on his employment as a support worker and, in particular, his capacity to maintain (or renew) his working with vulnerable people card. His evidence appeared to be that he could maintain his employment but that he ultimately decided to resign in order to deal with the current court matters. He said that he did not know what the impact on him would be of a final order being made in these proceedings. In re-examination, the Respondent said that his working with vulnerable people card had not been renewed because his application had been referred for risk assessment following a CYPS investigation.
36․In cross examination, the Respondent gave further evidence in relation to the TikTok video that he had made. He accepted that people in his community and beyond could see the video, but that he was not reckless as to the impact of the video on the Applicant or her mother. He said that he was careful not to name the Applicant or her mother and that his intention was to clear his name. He said that he has a right to say that he has been falsely accused and that he has been considerably affected by the allegations. He said that while he loves children, he now fears being around anyone else’s children, including his nephews.
Documentary evidence
37․The police investigated a complaint made by the Applicant’s mother on 13 December 2019 that the Respondent exposed himself to the Applicant and asked to have sex with her. I note that the complaint was not that the Respondent had had sexual intercourse with the Applicant. The police summary notes that the Applicant was said to have run into her bedroom following the Respondent’s proposition.
38․The police summary relevantly records that the Applicant stated:
Mum and Dad got divorced and Mum got a new boyfriend who came to live with us
While he was living with us he would ask me weird questions like “do you have a boyfriend”; these questions made me feel really uncomfortable
He would come up behind me when I was in the kitchen and grab me on my sides or near the top of my chest/shoulder. I would try and move away from him when he did that
He used to pick me up for debating when I was in year 9 he used to pick me up and drop me off for debating. He would put his hand on my upper thigh and it would make me feel really uncomfortable. He would also do it when I was in the car alone with him.
A couple of weeks before my year 10 formal, he asked me who I was going to formal with and I told him. He said to me something along the lines of “if I was your age, I would be dating you”; it made me feel really uncomfortable.
When Mum was giving birth to my youngest brother and was in hospital, I went to help my brother get to school. When I came home he came out of the shower and was standing half naked. He was wearing a towel.
I went back into my room and he followed me.
He tried to force himself on me. He grabbed me by the wrists and tried to push me up against the wall. I was really scared and was screaming. His towel came off while he was trying to hold me and I saw his penis.
I don’t remember much about what happened exactly; I was really scared. I don’t remember how but I managed to get away from him and went for a really long walk.
He threatened me saying if I told my mum about what had happened he would kill me.
His name is … – Mum’s partner.
39․I note that the Applicant’s statement to police about the propositions that the Respondent had made to her are reflected in a text message that she sent to her mother on 22 September 2019.
40․The police summary also records the Applicant’s mother telling police that the Applicant’s younger brother told the Applicant’s mother that, when she was in hospital, the Respondent hurt him in his bottom using the Respondent’s “wee wee” (his penis). The Applicant’s mother said that the Applicant’s younger brother told her that the Respondent’s “wee wee” was massive. The Applicant’s mother showed police two videos, in which the Applicant’s younger brother is heard to say to the Applicant’s mother that the Respondent had hit the Applicant’s younger brother in his bottom with his “wee wee”.
41․The Applicant’s younger brother told police that the Respondent had hit him with one of his toy trains, that the Respondent had kicked and hit him, causing bleeding, and that the Applicant’s younger brother had seen the Respondent’s “wee wee”.
42․The police subsequently conducted an evidence-in-chief interview with the Applicant. Following the interview, Police formed the view that the Applicant had made disclosures that would be considered inappropriate comments by the Respondent but not of sexual or indecent acts.
43․In December 2019, the Applicant’s mother also made a report to CYPS about the above matters. Over subsequent months, CYPS had several interactions with the Applicant’s mother.
44․In January 2023, CYPS wrote to the Applicant’s mother with respect to their view that the two children that the Applicant’s mother and the Respondent shared (not the Applicant nor the Applicant’s younger brother) were at significant risk of sexual abuse. CYPS wrote:
It is acknowledged that [the Respondent] has not been substantiated for sexual abuse. However, on the balance of probability, it remains highly likely that both [the Applicant and the Applicant’s younger brother] have been sexually abused by [the Respondent]. On the basis of this likelihood, [the two children that the Applicant’s mother and the Respondent shared] are also at significant risk of sexual abuse by [the Respondent].
45․CYPS relied on statements that the Applicant’s mother had given to CYPS about alleged incidents involving the Respondent and the Applicant and the Applicant’s younger brother, on the “clear and concise disclosure from [the Applicant’s younger brother] to you in relation to the sexual abuse” and “Report from professionals that the sexual abuse is highly indicative has occurred” [sic].
Submissions
Applicant’s submissions
46․The Applicant submitted that her evidence was credible and corroborated by the CYPS findings and the police disclosure log. The Applicant submitted that she was frank and forthcoming in her evidence, and that it was clear that the application for the FVO is her own, and not done simply in support of her mother’s position with respect to the Respondent. The Applicant submitted that the Respondent’s evidence, on the other hand, was not credible, and that he displayed limited insight with respect to the impact of his actions.
47․The Applicant submitted that the Respondent engaged in the following conduct, each of which amount to family violence:
(a)touching the Applicant at the pool table at iPlay;
(b)touching the Applicant on her leg at school drop off;
(c)having sexual intercourse with the Applicant around the time of her school formal; and
(d)threatening the Applicant after the times when he engaged in sexual conduct towards the Applicant.
48․The Applicant submitted that the Respondent has engaged in ongoing emotional and psychological abuse with coercive behaviours, as evidenced by:
(a)cultural and community alienation, designed to ostracise and pressure the Applicant and her mother;
(b)the publication of the TikTok videos; and
(c)the public request for prayers at church.
49․The Applicant further submitted that the Applicant has reasonable grounds to believe that the Respondent will engage in further acts of family violence, having regard to:
(a)the CYPS findings;
(b)the ongoing threats and coercion;
(c)the Respondent’s defaming of the Applicant and her mother in his public (TikTok and church) statements;
(d)the fact that the Respondent will continue to defend the claims made against him in public; and
(e)the fact that there has been contact between the Respondent and the Applicant despite orders prohibiting the Respondent from contacting the Applicant.
50․The Applicant submitted that, having regard to the above matters, it is appropriate for me to exercise my discretion to grant the final order that is sought by the Applicant.
Respondent’s submissions
51․The Respondent submitted that the application brought by the Applicant has been driven by her mother, as a result of the bitter split between the Respondent and the Applicant’s mother at the end of their relationship. The Respondent submitted that that submission is supported by the fact that it was the Applicant’s mother who went to police and who went to CYPS, and by the fact that, when police interviewed the Applicant, the only disclosure she made was in relation to alleged inappropriate language used by the Respondent. I note that I place no weight on the fact that it was the Applicant’s mother who raised allegations about the Respondent with the police and CYPS given that both the Applicant and the Applicant’s younger brother were minors at the time.
52․The Respondent submitted that the only proper investigation of the allegations made against him was the one undertaken by police, who interviewed the Applicant and the Applicant’s younger brother, and who found no evidence of assault committed by the Respondent. The Respondent submitted that, while CYPS made findings adverse to the Respondent, CYPS is obliged to err on the side of caution in the protection of children and its findings need to be viewed in that context. I note that I place little weight on the submission regarding the approach that CYPS is obliged to take to matters. It may be true that they need to approach their work in a way that is protective of children, but such an approach does not require that conclusions or views be expressed with any particular degree of certainty. The view expressed by CYPS in this case, namely that it is “highly likely” that both the Applicant and her younger brother have been sexually abused by the Respondent, is notable for the degree of confidence with which it is expressed.
53․The Respondent submitted that the Applicant’s mother was not a credible witness, as evidenced in particular by the combative nature of her evidence. The Respondent submitted that the Applicant’s evidence seemed exaggerated, was potentially coloured by her relationship with her mother, and that the allegations of sexual abuse are not credible.
54․In terms of the alleged incidents arising subsequent to the end of the relationship between the Respondent and the Applicant’s mother, the Respondent submitted that they simply comprise three occasions of accidental contact in public places, during the course of three years, in circumstances where no harm was done.
55․The Respondent submitted that the TikTok video he published is not evidence of family violence – it does not refer to anyone by name and the Respondent was simply seeking to defend his name. Similarly, the Respondent submitted that his request for prayers at church were simply for his support and were not made in order to cast any aspersions on the character of the Applicant or her mother, neither of whom were in attendance at the church at the time.
56․The Respondent submitted that there is no reason why the Applicant would have anything to fear from the Respondent now, even if the more serious allegations are true, given the length of time that has passed since the relevant incidents are alleged to have occurred. Further, the Respondent submitted that, to the extent that I might find either that the Respondent has engaged in family violence, or that the Applicant has reasonable grounds to believe that the Respondent might engage in family violence in the future, I should exercise my discretion not to grant the order that is sought by the Applicant because:
(a)the Respondent requires a working with vulnerable people card for his employment, and a final order may impact his capacity to obtain that card; and
(b)it has been a long time since the more serious of the alleged incidents, and there has been very limited contact in the last three years.
Consideration
Alleged sexual assaults involving sexual intercourse
57․Given the seriousness of the allegations of sexual assault involving non-consensual sexual intercourse, the probative value of the evidence supporting it needs to be higher, in order to persuade me as to the truth of the allegations, than is required in order to make findings in relation to less serious matters (Briginshaw v Briginshaw (1938) 60 CLR 336).
58․In my view, the fact that complaints were made by the Applicant to police, in relation to the Respondent making inappropriate remarks to her, in relation to the Respondent inappropriately grabbing her in the house, in relation to the Respondent putting his hand on her when driving her to debating, and in relation to the Respondent forcing her against a wall, but not in relation to the alleged sexual assaults involving sexual intercourse, suggests that those sexual assaults did not occur.
59․The Applicant’s evidence under re-examination, that there was only one occasion involving the Respondent attacking her in a towel, and that sexual intercourse took place on that occasion, but where that allegation is not reflected in the Applicant’s complaint to police about that incident, also suggests that it did not occur. Similarly, the fact that the Applicant’s mother’s FVO application from 2020 referred to an attempted rape (which I understand to refer to the incident in which the Respondent pushed the Applicant against the wall) but not to any allegations of sexual assaults involving sexual intercourse also suggests that they did not occur.
60․I note that the Applicant’s mother reported the incident to CYPS as something the Applicant had told her had happened around two years before (that is, around two years before December 2019). In the CYPS report, it is recorded that the Applicant’s mother said that the Respondent and the Applicant were both on the bed but the Applicant did not provide any further details. The Applicant’s mother considered that the Applicant may have been raped by the Respondent but the Applicant had evidently not told her that that had happened.
61․The Applicant’s evidence in relation to the alleged sexual assaults was quite vague. Given the Applicant’s age at the time of the alleged incidents and given her attempts, as she explained it, to block out her memories of stressful situations, this is perhaps not surprising, but the lack of detail and the absence of any contemporaneous complaints about the incidents (in circumstances where complaints were made about a number of other incidents involving the Respondent) suggests that the alleged sexual assaults did not occur.
62․The evidence of the Applicant’s mother, as to disclosures that the Applicant had made to her regarding the Respondent’s conduct, was also quite vague. It was also apparent that the Applicant’s mother had not observed any inappropriate conduct engaged in by the Respondent towards the Applicant. This was the subject of a number of questions asked of the Applicant’s mother under cross-examination, as to whether she saw or heard anything. Even though she said she saw things, in her answers she repeatedly said that the Applicant said it happened and she believed the Applicant.
63․The Applicant’s mother did seek to explain why the disclosures were made by the Applicant (and her younger brother) when they were. The Applicant’s mother explained that the disclosures were made when the Respondent was overseas because the children felt free to explain what had happened without the fear of being harmed by the Respondent. However, this is inconsistent with other evidence given by the Applicant’s mother who also stated that the disclosures were made in mid-2019 and September 2019 (before the Respondent went overseas in November 2019).
64․I accept that the timing of the report to police, in December 2019, may have reflected the fact that the Respondent was overseas at that time, and the Applicant’s mother was less concerned about the repercussions of making a complaint at that time. However, I am of the view that if the Applicant had disclosed instances of sexual assault between mid-2019 and September 2019, as the Applicant’s mother stated, the Applicant’s mother would have raised the matter with the police or CYPS before December 2019, regardless of where the Respondent was. Accordingly, I am not satisfied that the Applicant reported to her mother in mid-2019 and September 2019 that the Respondent had sexually assaulted her.
65․Having regard to the above, I am not satisfied, to the requisite standard, that any of the alleged incidents of sexual assault occurred, based on the evidence before me.
Other alleged incidents of a sexual nature
66․I accept, on the balance of probabilities, that the incidents the Applicant described to police, and about which she gave evidence at the hearing, occurred. In this respect, I have had regard to the serious step that the Applicant understood it to be, to speak to police, the fact that the Applicant made disclosures about the incidents close in time to when they occurred and to the assessment of CYPS that it is highly likely that the Applicant was the subject of sexual abuse at the hands of the Respondent. I have also had regard to the consistency of the description of the incident in the Applicant’s bedroom, as between the Applicant’s evidence, what she told police, and what is contained in the application for an FVO that the Applicant’s mother submitted in 2020.
67․Accordingly, I find, that:
(a)the Respondent grabbed the Applicant in a sexually inappropriate way in the kitchen of the family home on a number of occasions between 2017 and 2018 by grabbing her sides under her chest or touching her lower back. I accept that on at least some occasions the Respondent got angry when the Applicant told him to stop or moved away from him and that he would display his anger by gesturing with his fists, yelling at the Applicant and/or by throwing things;
(b)the Respondent asked the Applicant several times whether she had a boyfriend and said that, if he was the Applicant’s age he would date her, and that no boy was worthy of her love. This was particularly around late 2018;
(c)the Respondent put his hand on the Applicant’s upper thigh when driving her to debating in 2017 to 2018 on a number of occasions; and
(d)there was one occasion in early 2019 when the Defendant, wearing only a towel, followed the Applicant into her room and forced her against a wall, the Respondent’s towel coming off in the struggle, exposing his penis to the Applicant. The Applicant was scared but managed to get away from the Respondent, with the Respondent saying that he would kill the Applicant if she told the Applicant’s mother what had happened.
68․I find that these incidents meet the definition of family violence as involving, at the least, behaviour that caused the Applicant to feel fear for her safety or wellbeing. I note, however, that the last of these incidents occurred in early 2019.
Other alleged incidents – recent interactions
69․I also accept the Applicant’s evidence that:
(a)in March 2022, the Applicant and her mother were shopping at Belconnen Mall in Kmart. The Respondent tried to talk to them, particularly the Applicant’s mother. They left and the Respondent followed them to Target where he tried to talk to them again. The Applicant was really scared as a result of this conduct. This conduct occurred when the Respondent was required, pursuant to FVO 161/2020, to be more than 100m from the Applicant and her mother;
(b)in September 2022, the Applicant was at a birthday party for her sister, at a location in the city. The Respondent entered the venue and walked towards the Applicant and her sister. This was at a time when the Respondent was required, from an interim order made in these proceedings, to remain more than 100m away from the Applicant; and
(c)in May 2023, the Applicant was at an event in the city when she saw the Respondent staring at her. I make no finding as to whether the Respondent had an angry face, as was suggested by the Applicant, as facial expressions are easy to misinterpret.
70․I note that the Applicant was not seriously tested in cross-examination as to the truth of her evidence in relation to the above incidents. On the other hand, it is my view that the Respondent sought to downplay the significance of the incidents raised by the Applicant’s application and, as reflected in my findings above, I prefer the Applicant’s evidence to that of the Respondent with respect to the conduct of the Respondent that the Applicant reported to police.
71․However, there is no evidence that the Respondent made a deliberate decision to be at any of the three venues in order to have contact with the Applicant. Further:
(a)in relation to the September 2022 incident, there is insufficient evidence to make a finding that the Respondent was moving towards the Applicant with the intention of having contact with her (including speaking to her), as opposed, for example, to simply moving around the venue; and
(b)in relation to the May 2023 incident, there is no evidence as to how far away the Respondent was from the Applicant, nor that he made any move to approach the Applicant.
72․Nevertheless, the fact that the Respondent, having seen the Applicant and her mother in March 2022, approached them to speak to them, meant that the Respondent disregarded the distance prohibition established by FVO 161/2020. That distance prohibition was designed to protect the Applicant and her mother from the Respondent. The Applicant’s evidence was that the March 2022 incident caused her fear and thus the Respondent’s actions on that occasion constitute family violence, being conduct that caused the Applicant to feel for her safety or wellbeing.
73․Turning to the September 2022 incident, in my view the evidence is insufficient to establish that Respondent’s conduct meets the definition of family violence. Even if the Respondent was within 100m of the Applicant, that does not necessarily mean that the Respondent has committed an act of family violence for the purposes of the Act.
74․The incident in May 2023 does not amount to family violence.
75․I find that the neither the Respondent’s TikTok video (and any comments he has made to others in his community to the effect of what is contained in that video), nor the Respondent’s request for prayers, constitute family violence. I do not consider that his comments controlled the Applicant or caused the Applicant to feel for her (or anyone else’s) safety or wellbeing.
Grounds for making a final order
76․Having regard to my findings, I am of the view that the Respondent has used family violence against the Applicant in the past. Specifically:
(a)a number of serious instances of family violence between 2017 and early 2019; and
(b)one less serious instance in March 2022.
77․However, I do not consider that the Applicant has reasonable grounds to fear family violence from the Respondent in the future. I accept that the Applicant is likely to feel a degree of discomfort, perhaps even fear, if she encounters the Respondent, given what has occurred in the past, but I do not consider that the Respondent is likely to engage in family violence in the future.
78․In this respect, I note that there has been little contact between the Applicant and the Respondent since 2019. The one instance of family violence in that period, which occurred in March 2022, appears to have arisen because the Respondent wanted to talk to the Applicant’s mother. I consider it likely that, with the resolution of the various FVO applications brought by the Applicant and her mother, the Respondent is likely to have less of a wish to speak to the Applicant’s mother (outside of whatever arrangements are put in place with respect to the care of the children they share together) and he does not appear to have any ongoing interest in speaking to the Applicant.
Disposition
79․The ultimate question is whether an order should be made, having regard to the historical instances of family violence, in circumstances where I do not consider that the Respondent is likely to engage in further instances of family violence. I note that I place little weight on the potential impact of a FVO on the Respondent’s employment, given the lack of clarity in his evidence as to the impact that a FVO would have on his employment (including his capacity to maintain a working with vulnerable people card).
80․I have reached the view that an order should be made, primarily in order to encourage the Respondent to be accountable for his conduct. An order will also provide the Applicant, as a person who has suffered family violence, some measure of comfort as to her safety and well-being. However, given the limited nature of any ongoing risk to the Applicant, I consider that the terms of the order, and the period for which it is to be in effect, should be limited. This also takes into account the fact that there may be some impact on the Respondent’s employment of an order being made.
81․I have concluded that the appropriate form of a final order is that:
(a)the Respondent should be prohibited from:
(i)being within 50 metres of the Applicant;
(ii)contacting the Applicant; and
(iii)engaging in family violence towards the Applicant; and
(b)the order is to remain in force for a period of 6 months. By the end of that period, it will have been more than five years since the more serious instances of family violence and more than two years since the less serious instance of family violence committed by the Respondent. This period will also give the parties some time to move on from the tension and anxiety of the court proceedings.
82․While the parties did not address me on the question of costs, I do not consider that it is appropriate to depart from the default position that each party is responsible for their own costs of the proceedings.
Orders
83․I make the following orders:
(1)The Applicant’s application for a final order, pursuant to section 34 of the Family Violence Act 2016 (ACT) is granted, for a period of 6 months, prohibiting the Respondent from:
(a)being within 50 metres of the Applicant;
(b)contacting the Applicant; and
(c)engaging in family violence towards the Applicant
(2)There be no order as to costs.
| I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby Associate: Mason Britton Date: 30 August 2023 |
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