Farrell v Farrell - [2000] WASCA 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FARRELL -v- FARRELL [2000] WASCA 267

CORAM: MILLER J

HEARD: 12 SEPTEMBER 2000

DELIVERED : 21 SEPTEMBER 2000

FILE NO/S: SJA 1104 of 2000

BETWEEN: MURRAY JOHN FARRELL
Appellant
AND
ROCHELLE ELIZABETH FARRELL
Respondent

Catchwords:

Violence restraining order - Whether evidence to support test for - Duration of - Failure to impose condition in relation to carrying firearm - Turns on own facts

Legislation:

Restraining Orders Act 1997, s 11, s 12, s, 14, s 14(5), s 16, s 42

Result:

Appeal dismissed
Violence restraining order to be endorsed that the appellant be permitted to be in possession of and/or carry a firearm in the course of his duties as a police officer

Representation:

Counsel:

Appellant: Mr M T Trowell QC
Respondent: Mr S J Jones

Solicitors:

Appellant: Mark Andrews & Associates
Respondent: Legal Aid Commission

Case(s) referred to in judgment(s):

Kennedy v Claydon, unreported; SCt of WA; Library No 990192; 19 April 1999

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Coal and Shale Employee's Federation v The Commonwealth [1953] 94 CLR 621
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 62 ALR 53
Devries v Australian National Railways Commission (1993) 177 CLR 472
House v R [1936] 55 CLR 499
S S Hontestroom v S S Sagaporack [1927] AC 37
Teede v Wright [1999] WASCA 121
Warren v Coombes (1979) 142 CLR 531
Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999

MILLER J: On 9 June 2000 in the Court of Petty Sessions at Midland Mr F Cullen SM made a violence restraining order in favour of the respondent and against the applicant which was in the following terms:
"Save as provided for in an order of the Family Court of Australia or the Family Court of Western Australia,
The Respondent shall not:
Commit or attempt to commit a violent personal offence, as defined in the Restraining Orders Act 1997, against the person protected,
communicate or attempt to communicate by whatever means with the person protected by this order,
enter upon any premises where the person protected lives or be within 100 metres of the nearest external boundary of such premises,
approach within 100 metres of the person protected,
prevent or hinder the person protected from using Motor Car Reg 1ADW 060 Ford Maverick,
cause or attempt to cause damage to the property of the person protected,
behave in an intimidatory or offensive manner towards the person protected,
behave in a manner that is likely to lead to a breach of the peace,
cause or allow any other person to engage in conduct of the type referred to in the preceding paragraphs of this order.
This order to remain in force for a period of 5 years."
The question whether a violence restraining order was appropriate was the subject of a contested hearing before the learned Magistrate in which evidence was given by the respondent, one of her children and a number of other witnesses. The respondent also testified, and the hearing took several hours. At the conclusion thereof the learned Magistrate gave detailed reasons for his decision to grant a violence restraining order to the respondent. He declined to make any order which involved the children of the marriage of the appellant and the respondent because of proceedings in the Family Court of Western Australia in which certain orders had been made in relation to the rights of the parties as regards the children. However, insofar as the respondent was concerned, the learned Magistrate had no reservations about granting to her the restraining order sought. His Worship concluded that the respondent was a witness of truth whose evidence in relation to instances of violence during the course of the marriage of the parties should be accepted and his Worship said:
"The simple reason is that I accept without reservation everything that Mrs Farrell said with regards to the behaviour of Mr Farrell. I have no doubt that she has endured for the 16 or 17 years, as she outlined, a great deal of trauma and violence perpetrated towards her and of course she also has seen the same violence metered out to her children. The respondent denies that he struck his daughter and he said in the witness box that that's what she believed.
Well, that's what I believed. I believe what Melanie Farrell said with regards to her being struck by her father. It matters nothing now with regards to the other children as to the specific acts of violence conducted by him on them. I have already said of course that he has been violent toward those children over a long period of time, but they will not be the subject of this order. I have a great deal of sympathy with Mrs Farrell. I recall when she came before me on the last occasion and I have witnessed her again in this court when she gave evidence.
What she's done now with regards to the culmination of the last 16 or 17 years is finally divulge to all what has transpired to her. She has over that period of time, as I have said, suffered a lot of trauma and particularly, I might say, with regards to the incident at Kalgoorlie which no doubt has devastated her."
It was put to the learned Magistrate that because by the time of the proceedings before him the parties were separated and the respondent was firmly of the view that the marriage was over (and had instituted proceedings in the Family Court for divorce) there was little likelihood of any acts of violence being further perpetrated by the respondent. In answer to this submission the learned Magistrate said:
"It's put to me that there's little likelihood of any of these matters to re‑occur due to the fact that the respondent now says that the marriage is over. Well, I don't agree. His behaviour over that period of time has been --- it's very difficult to describe really. I once described a man who was in the Supreme Court as a monster. Well, he's just less than a monster because he has perpetrated on his wife and children violence which is not acceptable to anybody. I believe that if an order is not in place then the perception held by Mrs Farrell is real."
After considering the provisions of s 11 (and by implication s 12) of the Restraining Orders Act 1997 the learned Magistrate concluded that:
"There's no doubt of course at this stage of the situation with regards to the marriage, which no doubt - according to him - is over. Mrs Farrell is uncertain of that. Of course she must eventually face reality with regards to that. It is and will be no doubt an acrimonious time with regards to what will transpire from here on in with regards to all of these matters which will be dealt with by the Family Court. I am satisfied that if not restrained the applicant is capable and will behave in the ways that I have outlined as to the provisions of section 11 of the Violence Restraining Orders Act.
I am satisfied therefore to the required standard that the respondent will behave in that way if he is not restrained. Therefore I will make an order with regards to the respondent. That is a violence restraining order."
The learned Magistrate proposed to omit from the restraining order any condition in relation to the carrying of firearms by the respondent because he was a police officer, and in the order there was no reference to this question. That was an error, because the learned Magistrate was required to make a positive direction under the provisions of s 14 of the Act in relation to the issue. Section 14(5) provides that when making a violence restraining order a court may permit the respondent to have possession of a firearm, and, if necessary, a firearms licence relating to it, on such conditions as the court thinks fit. If the court is satisfied (inter alia) that the respondent cannot carry on his usual occupation unless permitted to have possession of a firearm. It follows that it was necessary for there to be a specific condition endorsed on the restraining order authorising the respondent in this case to carry a firearm in the course of his police duties. The omission in that respect involved a simple matter of correction on my part and at the hearing of the appeal I ordered that there be endorsed on the order a condition that the respondent be permitted to have possession of and/or carry a firearm in the course of his duties as a police officer.
In fixing the term of the restraining order which the learned Magistrate made his Worship said:
"Now then that order that I make would normally, had the matter not been objected to, be for a period of 2 years.
However, I'm of the view that because of the longevity of this matter and, as I've said, the situation the way it is I will make the order for 5 years as and from today."
Whether the learned Magistrate meant that it was the appellant's contesting of the proceedings which (inter alia) justified a five year order or whether his Worship was simply saying that had a final order been made by way of confirmation of an interim order without more, the term would have been two years, is uncertain. Under the scheme of the Act, an interim order may be made under Pt 2 Div III in the absence of a respondent. A final order hearing is under Pt 4 Div II of the Act and under s 42, a final order may be made in the absence of a respondent on such terms as the court considers appropriate. If the learned Magistrate was saying only that had there been no appearance of the respondent at the final order hearing he would have automatically made a two year order, but because the matter was fully ventilated and evidence established to him that an order longer than two years was necessary, that would be unexceptionable. If, however, the learned Magistrate was saying that the contest of the proceedings by the appellant of itself justified an order longer than two years, that was an unacceptable decision. However, that is not the end of the matter as the learned Magistrate made it clear that because "of the longevity of this matter" and "the situation the way it is", an order for five years should be made in lieu of the standard two year order.
The Act is silent as to the criteria for fixing the length of an order. Section 16 deals with duration of a violence restraining order and provides that such an order will remain in force in the case of an order made at a final order hearing for either the period specified in the order or if no period is specified, two years from the date on which the final order came into force. There are no guidelines given to Magistrates as to when it might be appropriate to specify the duration of an order for a period in excess of two years.
On 20 July 2000 the appellant was given leave to appeal against the decision of the learned Magistrate granting the violence restraining order against him. The grounds of appeal were amended by leave at the hearing and as ultimately formulated, were in the following terms:
"(a)the learned Magistrate erred in finding that the appellant was likely to commit an act of violence against the respondent or would behave in a manner that was likely to cause the respondent to fear that he would commit such an offence for such a decision was unsafe, unsatisfactory and against the weight of the evidence;
(b)the learned Magistrate erred in his approach to sentence by increasing the term of the order from 2 years to 5 years on the basis that the order 'had been objected to' by the appellant; and
(c)although the learned Magistrate stated that it was not his intention to make an order restricting the appellant's right to carry firearms in his occupation as a police officer, he made no such order as he was required to do under Section 14 of the Restraining Order Act 1997 and to that extent erred in law."
It was conceded by counsel for the respondent that the learned Magistrate had erred in failing to impose a condition upon the restraining order in relation to the carrying of firearms and with aspect of the matter I have already dealt. Insofar as that ground of appeal is concerned the appellant must succeed.
I have also dealt in part with the question of the term of the violence restraining order. Assuming such an order was appropriate, it seems to me that the learned Magistrate was entitled to fix the duration of it at five years. Granted that the learned Magistrate may have been influenced by the appellant's contest of the proceedings (which would be an irrelevant and erroneous basis upon which to fix the duration of the order) the fact remains that the learned Magistrate was primarily influenced by what he termed the "longevity of the matter" and the situation "the way it is" in fixing the duration of the order. That is to say, the learned Magistrate was concerned about the fact that there was evidence before him (which he accepted) of violence on the part of the appellant towards the respondent over a period of some 16 years which he described as "over a long period of time … (acting) in a brutal way towards Mrs Farrell and his family". Further, the learned Magistrate was clearly concerned about the fact that Family Court proceedings were on foot and were going to involve considerable acrimony between the parties from June 2000 onwards. It seems to me that it was primarily for these reasons that his Worship considered a five year order was more appropriate than what would otherwise have been a two year order if no other term had been specified. I find it difficult to see why the decision of the learned Magistrate in this respect should be varied. It was open to his Worship to conclude that the circumstances justified a five year restraining order, particularly as the history of the relationship between the parties was such that violence over a long period of time in the past could be taken as an indicator of the likelihood of future long term violence if the appellant was not restrained. There was nothing before the learned Magistrate to indicate that the appellant would be prejudiced in his employment by the existence of a five year violence restraining order rather than a two year order. Nor was there anything before me other than a general submission that it might be to the appellant's prejudice as a police officer to have such a long violence restraining order against him. However, I find it difficult to see how the Commissioner of Police, if alerted to the existence of such an order, would conclude anything more adverse to the appellant in relation to a five year order than a two year order. I was informed from the Bar table that the Commissioner of Police notes on the files of all officers the existence of any restraining order, but apart from that fact there is no evidence in relation to the likely prejudice (if there is prejudice at all) to a police officer by having such an order in place against him.
The primary ground of appeal advanced on behalf of the appellant is that the learned Magistrate erred in making the violence restraining order in circumstances where the parties were now separated, the appellant considered the marriage to have come to an end, and had instituted Family Court proceedings to dissolve it. There was evidence before the learned Magistrate that during prior periods of separation between the parties there had been no violence offered by the appellant to the respondent, and thus it was argued there was nothing before his Worship which could have led him to conclude that the appellant was now likely to commit an act of violence against the respondent or would behave in a manner that was likely to cause the respondent to fear that he would commit such an offence.
The evidence before the learned Magistrate led him to conclude that there had been numerous acts of violence on the part of the appellant towards the respondent. The respondent in her evidence referred to the relationship as a violent one for the last 16 or 17 years. She described the appellant's behaviour as verbally abusive and physically abuse with herself and/or the children. She described in general terms being punched, kicked and grabbed by the hair and the hurting of her children to in turn hurt her. She detailed an incident in 1990 in Kalgoorlie when after a severe argument the appellant grabbed her by the hair, threw her through the loungeroom into the hallway and kicked and punched her to such an extent that she lost a child. She gave evidence that in 1994 there was an incident in which she was punched and kicked whilst in bed and her head smashed against the bunkbed, leading to her hospitalisation for a period of seven days. She testified that in January 2000, whilst she was on crutches, the appellant became very angry with her, grabbed her crutches and pushed her onto the ground where he left her. Further incidents were the subject of evidence: one in March 2000 when the appellant was abusive towards the respondent, "got stuck into her" and pushed her down on the bed before chasing his daughter Melanie out of the property on which they lived; and another in April 2000 when "the boys" were kicked and the child Anthony had his hair pulled by the appellant. The final incident related by the respondent occurred on 11 May 2000 when the respondent left the children with her mother overnight and found during the course of the night that the appellant had left the house and taken the children from the respondent's mother's home.
The appellant denied the allegations made by the respondent, contending that although there had been physical contact between himself and his wife it was limited to slapping his wife across the face and slapping the children across the face. He contended that it was discipline and possibly "a little too much" from time to time but never "undue". As I have already indicated, the learned Magistrate refused to accept the evidence of the appellant in this regard. He found specifically that each of the incidents related by the respondent had occurred and declared the appellant to have been "evasive with regards to when he was being cross‑examined about many matters that were put to him … as to what had transpired".
During the course of the respondent's cross‑examination it was put to her that the relationship was finished. She answered that the relationship might have finished but the marriage had not and never would. She conceded that the relationship had finished insofar as living with the appellant, but when it was put to the respondent that because she would not be living with the appellant there were really no grounds for her to fear that her husband was likely to commit any offence against her, she said:
"I can't tell with my husband. I can --- I don't know what he's going to do next, and that is the honest truth."
The respondent conceded that there had been no violence between the parties in 1987 and 1984 when they were separated for a short period of time, but she said that on those occasions the appellant had been "attempting reconciliation". When re‑examined by her counsel about the matter the respondent said:
"MS YOUNG: --- how long have you been separated this time, Mrs Farrell? --- Maybe --- well, since the 11th of May.
Since the 11th of May. So almost a month. There is still a lot of unfinished business between you and Mr Farrell, isn't there? --- Yes, there is.
Yes. Do you think that there is any scope or potential for future conflict between you? --- I believe there's a lot of future conflict that's going to be between us."
Melanie Farrell, who was 15 years of age at the time she gave evidence, testified that she had seen her father hit her mother and stated that she had also been hit over the head by her father. She also testified to his violence towards other children in the family. Pauline Sanders, who is the mother of the respondent, testified as to violent acts on the part of the appellant, but she conceded in cross‑examination that when the appellant and the respondent were not living together there were no problems. The appellant himself was questioned by his counsel as to what the future held and he said:
"Now can I just put this to you? It would seem I think from your evidence --- and I don't mean to lead you but this has always occurred when you and your wife have been living together under the same roof. Is that true? --- Yes, it has.
When you separate what is the situation then? --- Well, we go our own way and, you know, we don't discuss anything. I suppose we just keep out of arm's length and --- with each other, and don't fight.
…
What are your intentions in that regard? --- My intentions --- what? To living with my parents?
Where are you going to live? --- Well, the marriage is finished. That's it. I'm not --- we're not going to get back together again.
This can't --- it's finished. I really don't know where my future lies but it's definitely not going to be together. We're going to be separated and divorced eventually.
MR PIDCO: So there is no future in the relationship? --- No."

Counsel for the appellant placed reliance upon the decision of McKechnie J in Kennedy v Claydon, unreported; SCt of WA; Library No 990192; 19 April 1999 where (at 11) his Honour said:
"The question which remains is whether unless restrained Mr Kennedy is likely to behave in a manner that could be reasonably expected to cause Miss Claydon to fear that Mr Kennedy will commit a violent personal offence: Restraining Orders Act s11(a)(ii).
This is an important provision within the scheme of the Act. Everyone in the community is a party to a series of relationships. These relationships may be as friends, neighbours, business associates, lovers, spouse, siblings or de facto partners. The law is designed to allow those relationships to proceed without one party fearing that the other party in the relationship will be violent towards them. Of course that fear must be reasonably held. It is not enough that a person says that they are fearful: there must be an objective basis for the fear."
The contention of counsel for the appellant was that it was not enough in the present case for the respondent to be fearful that the appellant would be violent towards her in the future and the objective evidence suggested that as the parties would now be living apart, she in fact had nothing to be fearful of. However, that in my view is an over‑simplification of the evidence in this case. What the evidence established was that there had been a long history of violence on the part of the appellant towards the respondent. On two occasions they had been separated and during the period of separation there had been no acts of violence. However, according to the respondent, that was because the appellant was actively seeking reconciliation. In those circumstances it is then hardly surprising that he would have refrained from violent acts towards the respondent.
The fact remained that on the evidence the respondent was herself fearful of the appellant committing violent personal offences against her in the future, and in my view the fear was not only subjectively, but also objectively based. The whole history of the relationship supported the respondent's fear and objectively suggested that notwithstanding the present separation of the parties, there is every reason to believe that the appellant, if not restrained, is likely to be violent towards his wife. The following passage from the testimony of the respondent eloquently sums up the problem with the appellant:
"I just don't think my husband is able to restrain himself from physically hurting the kids or myself. He doesn't do it to anybody else. He doesn't hurt anybody else. He's a really nice person but when it comes to my children and myself I don't feel as though he can control himself. I'm sorry. And I just don't know what he's going to do next. He's like a loose cannon. One minute he's punching into me, the next minute he's taking my kids. I just don't know where I am and I don't feel as though I'm safe from him."
It seems to me that the learned Magistrate was entitled to take into account the uncertainty as to whether the marriage would or would not survive, and in addition, the acrimony which was likely to be generated by Family Court proceedings which, I was informed from the Bar table, would be likely to take at least 18 months in relation to issues of custody and access.
In my view there was ample evidence before the learned Magistrate to justify his conclusion that within the meaning of s 11 of the Act the appellant, unless restrained, was likely to either commit a violent personal offence against the appellant or behave in a manner that could reasonably be expected to cause the appellant to fear that the respondent would commit such an offence. What the learned Magistrate said was that unless restrained the appellant "is capable and will behave in the ways that I have outlined as to the provisions of section 11 of the Violence Restraining Orders Act." His Worship was obliged to take into account the matters set out in s 12 of the Act, those of primary importance being (a) the need to ensure that the respondent is protected from personal violence; and (b) the need to prevent behaviour that could reasonably be expected to cause fear that the respondent will suffer personal violence. In looking at the matter generally the learned Magistrate was entitled to take into account (s 12(1)(j)) any previous similar behaviour of the respondent whether in relation to the person to be protected or otherwise. Adopting these criteria, the order made by the learned Magistrate was clearly open to him and I would not interfere with it. I would therefore dismiss the appellant's appeal, save for the need to endorse upon the violence restraining order the condition in relation to firearms to which I have earlier referred.