MB v KK; KK v MB
[2023] ACTMC 12
•27 April 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | MB v KK; KK v MB |
| Citation: | [2023] ACTMC 12 |
| Hearing Dates: | 27 April 2023 and 11 May 2023 |
| Decision Date: | 31 May 2023 |
| Before: | Magistrate Temby |
| Decision: | See [77] |
| Catchwords: | CIVIL LAW – PERSONAL VIOLENCE ORDER – considerations |
| under Personal Violence Act 2016 (ACT) | |
| Legislation Cited: | Personal Violence Act 2016 (ACT) ss 11, 26 |
Parties: | MB KK |
| Representation: | |
| Solicitors | |
| Legal Aid ACT (MB) Bevan & Co Lawyers (KK) | |
| File Numbers: | PPO 366 of 2022 |
| PPO 231 of 2022 | |
| MAGISTRATE TEMBY: | |
| Introduction | |
| 1․ | In these proceedings, MB and KK seek personal protection orders against each other, |
| pursuant to the Personal Violence Act 2016 (ACT) (the Act). The catalyst for the parties’ | |
| respective applications was an incident that occurred in the early hours of 6 March 2022, during which the parties engaged in a serious physical altercation. | |
| 2․ | In proceedings PPO 231/2022, KK seeks an order protecting herself and her daughter, prohibiting MB from: |
(a) being where KK and her daughter live; (b) being at the Holt IGA; (c) being closer than 100 metres from KK or her daughter; (d) engaging in behaviour that constitutes personal violence or causing someone else to do so, in relation to KK or her daughter; (e) causing someone else to contact, or to locate or attempt to locate KK and or daughter; and (f) engaging in behaviour towards a child that poses an unacceptable risk of the child being exposed to personal violence.
3․ On 7 March 2022, an interim order was made in proceedings PPO 231/2022 which prohibited MB from:
(a) being where KK and her daughter live; (b)
being closer than 15 metres from KK or her daughter, subject to certain exceptions;
(c)
engaging in behaviour that constitutes personal violence or causing someone else to do so, in relation to KK or her daughter; and
(d)
causing someone else to contact, or to locate or attempt to locate KK or her daughter, except as permitted by the order.
| 4․ | The interim order was continued on 15 December 2022. |
| 5․ | In proceedings PPO 366/2022, MB seeks an order protecting herself and her daughter, prohibiting KK from: |
(a) being where MB and her daughter live; (b) being closer than 100 metres from MB or her daughter; (c)
locating or attempting to locate, or causing someone else to locate or attempt to locate, MB or her daughter;
(d) contacting MB and her daughter, or causing someone else to do so; and (e)
engaging in behaviour that constitutes personal violence or causing someone else to do so, in relation to MB or her daughter.
6․ On 20 April 2022, an interim order was made in proceedings PPO 366/2022 which prohibited KK from:
(a) being where MB and her daughter live; (b) being closer than 50 metres from MB or her daughter, subject to one exception; (c)
locating or attempting to locate, or causing someone else to locate or attempt to locate, MB or her daughter;
(d)
contacting MB and her daughter, or causing someone else to do so, subject to certain exceptions; and
(e)
engaging in behaviour that constitutes personal violence or causing someone else to do so, in relation to MB or her daughter.
| 7․ | The interim order was continued on 15 December 2022. |
The Act
| 8․ | The provisions of the Act relevant to the determination of the parties’ applications are set |
| out below. |
6 Objects of Act
The objects of this Act include—
(a) to prevent and reduce personal violence (other than family violence); and
(b) to facilitate the safety and protection of people who fear or experience personal violence
by—
(i) providing a legally enforceable mechanism to prevent personal violence; and
(ii) allowing for the resolution of conflict without the need to resort to adjudication; and
(c) to encourage perpetrators of personal violence to be accountable for their conduct.
8 Meaning of personal violence
(1) In this Act:
"personal violence" means any of the following behaviour by a person in relation to another
person:
(a) physical violence or abuse;
(b) sexual violence or abuse;
(c) threatening behaviour;
(d) stalking;
(e) harassing, intimidating or offensive behaviour;
(f) damaging property.
10 Balance of probabilities
If a court is required to be satisfied about something under this Act, the court must be satisfied on the balance of probabilities.
11 Matters to be considered—protection orders
(1) In deciding whether to make a protection order, the Magistrates Court must consider
the following:
(a) the objects of this Act in section 6;
(b) any hardship that may be caused to the respondent or anyone else by the making of
the order;
(c) any previous family violence or personal violence by the respondent in relation to the
affected person or anyone else;
(d) any previous protection order made in relation to the respondent;
(e) any previous contravention of a protection order by the respondent;
(f) the need to ensure that property is protected from damage.
(2) The Magistrates 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 protection order does
not affect the validity of the order.26 Final orders—grounds for making
The Magistrates Court may, on application, make a final order if satisfied that the
respondent—
(a) for a personal protection order—
(i) has used personal violence in relation to a person; and
(ii) may engage in personal violence in relation to the person during the time the order is
proposed to operate if the order is not made; or27 Final orders—length
(1) A final order remains in force for—
(a) 12 months, 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 Magistrates Court is satisfied that there are special or exceptional circumstances
that justify a longer period—the stated longer period.
28 Safety of affected person paramount
In deciding the conditions to be included in a protection order, a court must give paramount consideration to the safety and protection of the affected person.
29 Least restrictive principle
A court must ensure the conditions included in a protection 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 28.
30 Conditions—personal protection orders
(1) A personal protection order may include the conditions the Magistrates Court considers
necessary having regard to section 28 and section 29.
(2) Without limiting subsection (1), a personal protection order may do 1 or more of the
following:
(a) prohibit the respondent from being on premises where the protected person lives;
Note Section 31 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 that is personal violence in relation to the
protected person;
(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 Magistrates Court is satisfied that there is an unacceptable risk of
the child being exposed to personal violence;
(j) prohibit the respondent from causing someone else to do something mentioned in
paragraphs (f) to (i);
(k) 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.
34 Conditions may apply for shorter time than order
A condition in a protection order may have effect for a period stated in the protection order that is shorter than the period of the order.
67 Costs
(1) Each party to a proceeding for a protection order is responsible for the party's own
costs of the proceeding.
(2) However, the Magistrates Court may make an order about costs against—
(a) the applicant for a protection 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.
| 9․ | Accordingly, the approach to be taken in determining the parties’ application is: |
(a) as a threshold issue, I must be satisfied that: (i) the Respondent has used personal violence against the affected person in the past (s26(a)(i)); and
(ii) the Respondent may engage in personal violence in relation to the affected person during the time the order is to operate if the order is not made (s26(a)(ii));
(b)
I must be satisfied of these matters on the balance of probabilities, having regard to the definition of personal violence in s8;
(c)
if I am satisfied of those matters, I may make a final order (s26) which imposes conditions on the Respondent. A non-exhaustive list of possible conditions is set out in s30;
(d)
in determining whether to make a final order, and what conditions to impose, I must have regard to the matters set out in s11 (which includes the objects of the Act in s6), s28 (safety of the affected person paramount) and s29 (least restrictive principle), 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 s27 is 12 months. Under s34, I may order that any given condition be in effect for less than the period of the order; and
(f)
the default position in relation to costs (s67), 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
10․ The matters came before me on 27 April 2023 for final hearing. They were heard together,
and evidence received in one proceeding was taken to have been received in the other
proceeding. The hearing continued, part-heard, on 11 May 2023.
11․ At the hearing, evidence was given by:
(a) MB;
(b) MB’s daughter; (c) KK; (d) KK’s daughter; and (e) DS, a friend of MB’s.
12․ Several documents were also tendered, being:
(a) ACT Policing case summary 7050830, regarding the incident that occurred between MB and KK in the early hours of 6 March 2022; (b) ACT Policing case summary 7143536, regarding MB’s allegations that KK had breached the interim order made in proceedings PPO 366/2022;
(c) ACT Policing case summary 7180097, regarding an incident involving MB that is unrelated to KK; (d) A report provided by Kippax Medical Imaging, dated 9 May 2022; (e) A photograph that was taken of MB’s face, shortly after the incident which occurred in the morning of 6 March 2022; and
(f) Two still images that were taken, from one of KK’s security cameras at her house, of MB and her sister attending KK’s house on the afternoon of 6 March 2022.
13․ The parties also filed chronologies of evidence.
14․ As a general observation, I do not consider that I am able to rely on the evidence of MB or KK as being reliable. The consequence of this is that, while some of the evidence the parties gave was uncontroversial, where there was a dispute between them as to nature of any given incident, it was not possible to make any findings as to what occurred.
15․ It is clear that both harbour considerable animosity towards the other, and both made allegations against the other that were based on suppositions. Each of the parties, particularly MB, were at times combative and evasive when responding to questions
asked of them under cross-examination. In addition, I found aspects of MB’s evidence
implausible and her claimed level of fear of KK to be exaggerated.
16․ In terms of the key incident of personal violence between MB and KK, which occurred in the morning of 6 March 2022, both parties were intoxicated and I do not accept that either party has a clear recollection of what occurred. Additionally, after being shown police
records which contradicted KK’s evidence, KK conceded she continued to act aggressively towards MB. It is also of note that KK’s chronology did not include
interactions between herself and MB that occurred after 6 March 2022 (aside from
mentioning that each party obtained a protection order against the other).
Chronology of facts
17․ The following chronology, relevant to the parties’ applications, emerges from the
evidence.
18․ MB and KK’s children attend the same school and MB and KK were introduced to each
other in that context. They met each other in December 2021 and caught up a couple of
times between then and March 2022.
19․ On 5 March 2022, KK attended MB’s house for an evening of drinking. There is a dispute
between the parties as to whether MB invited KK to her house, how much KK had had to
drink before arriving, and what time KK arrived at MB’s house. The evidence does not
allow me to make a finding in relation to those issues.
20․ The parties drank for around three hours at MB’s house before agreeing to go out. There
is a dispute between the parties as to how much each drank at MB’s, however it is clear
that KK had at least five or six beers and MB drank at least the equivalent of four standard
beers.
21․ At some point during the period the parties spent at MB’s house, KK’s daughter-in-law called KK with a baby-sitting request.
22․ There is a dispute between the parties as to what happened next. KK says that MB grabbed her phone and started screaming at KK’s daughter-in-law. MB says that KK
encouraged MB to get involved in the conversation but she refused. Again, the evidence
does not allow me to make any findings in relation to this issue.
23․ MB and KK went out at around 9.30pm. MB lent KK some clothes and shoes. MB says that, by that time, KK was pretty charged up, slurring her words and not walking straight.
24․ The parties first went to the Raiders Club in Kippax (briefly) and then to the Basement Club in Belconnen. At the Basement Club, MB met her friend, DS, who was a bartender
there. MB knew DS through MB’s daughter as DS had gone to high school with MB’s
daughter. DS gave evidence that he would only see MB now and again.
25․ MB, KK and DS stayed at the Basement Club until around 1.30am. KK says that she drank bourbon at the Basement Club. MB says that she drank three or four schooners.
26․ After the Basement, the parties went with DS to 88mph Nightclub in the city, where they continued to drink. MB says that she had a couple of bourbons.
27․ There is a further dispute between the parties as to what occurred at the 88mph Nightclub. It is agreed that they had a number of further drinks while they were there and it is agreed that KK was dancing with an unknown male. It is agreed that MB spoke aggressively towards the man, although it is unclear why this was the case. KK says that MB shouted at her at one point in relation to KK being responsible for the next round of drinks, however MB says that any shouting was just so that she could be heard over the music. DS gave evidence that it was necessary to speak loudly in the club to be heard.
28․ MB says that she observed KK taking drugs at the club, however I am not satisfied of this fact on the evidence before the Court. KK denies that she did and, while MB says that
she saw KK taking pills, it was dark and she didn’t see what was in KK’s hand.
29․ Both parties admit to being somewhat impaired from the alcohol they had consumed. KK
said that she had had at least 10 drinks to that point in the evening, including three
bourbons and three sambucas.
30․ The most significant incident occurred around 4am on 6 March 2022. MB, KK and DS went upstairs and exited the club.
31․ KK says that MB attacked her for talking to a female friend of MB’s, which resulted in a scuffle taking place on the ground with MB on top of KK, hitting her and pulling her hair.
KK says that she retaliated by pulling MB’s hair and punching her in the face three times.
32․ There was, before the Court, a photograph taken of MB’s face, showing a good deal of blood. I accept that MB’s appearance as shown by the photo was the result of KK
punching her and I find that KK punched MB with a good deal of force. There was also before the Court medical evidence to the effect that MB had, as at 9 May 2022, a non-
displaced fracture involving the nasal bone. MB’s evidence was that she spoke to a
medical practitioner in May 2022 about the impact of the incident. I suspect that the
fracture described in the report was the result of KK’s punches but there is insufficient
evidence to allow me to make a finding to that effect given the strictly observational nature
of the medical report and the absence of any evidence regarding MB’s medical history
prior to the incident.
33․ MB says that while she was having a cigarette, KK approached her from behind, grabbed her by the hair and began hitting MB in the face. She surmised that KK was jealous of
MB’s relationship with DS.
34․ DS, who I accept gave honest evidence to the Court, and who I consider was the most reliable of all the witnesses at the hearing, said that, while his recollection of the incident was slightly unclear, he remembered that he was outside the club having a smoke with someone else, that he heard KK and MB having an argument, that he turned to see if everything was ok and saw KK hit MB. He said that he saw KK hit MB from front on, with a closed fist, just below the neck.
35․ He said that they were standing. While he tried to intervene, he couldn’t stop the fight
and backed off. While DS didn’t hear anything physical occur prior to the point he turned around, he readily conceded that he was a bit over 5 metres away, wasn’t looking at MB
and KK and that it is possible that he turned to look at them when the fight was half-way
through.
36․ DS’s recollection of events, which I accept most accurately captures the truth of what
occurs, is more easily reconciled with KK’s version of events than with MB’s, but is not
entirely consistent with either KK’s version or MB’s version.
37․ The police report notes that police found MB and KK wrestling on a bench seat, pulling each other by the hair. The notes record that KK smelt strongly of intoxicating liquor, was slurring her words and was stumbling to the point she needed police assistance to walk. The notes record that KK made an attempt to walk back towards MB, yelling profanities at her and police.
38․ Ultimately, while it is not possible to make any findings in relation to which party instigated the altercation, it is clear that both parties engaged in physical violence towards each
other. I find that both parties hit each other and pulled each other’s hair. I specifically find
that KK hit MB three times in the face.
39․ At around 2pm on 6 March 2022, MB attended KK’s house. MB was accompanied by her sister, who drove. MB admits that she could still have had a little bit of alcohol in her system and admits that she was tired. MB stated that she asked her sister to park 100m
away as she didn’t want to be seen pulling up. She knew that KK had security cameras
and admitted attempting to spray paint the security camera near KK’s front door. A still
capture of the video recording MB doing so was received in evidence.
40․ MB asserts that she went to KK’s house to retrieve her clothes and shoes, however I do not find her evidence in that respect plausible. It is not plausible that she would need to recover her items so soon after she lent them, nor is it plausible that she would want to do so in circumstances where they had engaged in such a serious fight earlier that
morning. I note that KK and KK’s daughter say that MB did not ask for her belongings
back, but MB says that she did ask for them and KK refused to give them.
41․ KK’s daughter’s evidence was largely consistent with KK, although KK’s daughter
admitted swearing at MB, which KK denied occurring.
42․ I find that MB went to KK’s house to exact some sort of revenge for the fight. This is also
consistent with MB having her sister park out of sight, 100m away. MB admits that she sprayed the camera because of her anger towards KK. Whatever revenge she sought to
exact, all that MB did was try to spray paint KK’s security camera at her front door. As it
turns out, the wind prevented her from painting the camera in the way that she sought to.
43․ Again, there is a dispute between the parties as to what happened next. MB asserts that she was attacked by KK’s daughter. KK asserts that MB threatened her and KK’s daughter and that KK’s daughter tried to calm the situation. KK says that MB grabbed KK’s daughter’s shirt and aggressively swore at her, before swinging a punch at KK. KK
asserts that, as MB left, she said that she was going to get a carload of people and come
back and run through KK’s house. On the basis of the evidence before me, I am unable
to make any findings as to what occurred.
44․ Subsequent to this incident, KK contacted the police, who apparently recommended that KK obtain a personal protection order. KK obtained an interim personal protection order against MB on 7 March 2022. The interim personal protection order was served on MB on 12 March 2022.
45․ MB’s daughter gave evidence that calls were made to MB and to MB’s daughter, approximately 5 minutes apart, with the caller on each occasion making a threat to kill. It
appears that these calls were made in late March 2022 or early April 2022. MB’s evidence
is that having regard to the nature of the call, the call was made by KK from a private number, however KK denied making those calls. The evidence before me does not satisfy
me that the calls were made by KK, or anyone at KK’s urging.
46․ On or about 28 March 2022, KK said to a friend of KK’s daughter and MB’s daughter, AH, who was at KK’s house, words to the effect of: “if [MB] comes to my place, I’m going to put a pole through her head”. There is no evidence before the Court as to the context
for KK making this statement.
47․ AH relayed this statement to MB, although KK says that it was not her intention that her comments be passes to MB. MB asserts that AH was scared for MB and told MB straight
away. MB says that upon hearing the remarks she was scared for her safety. KK’s
evidence is that her statement was not a threat to MB, it was simply a statement as to
what KK would do if MB came to her house again. Despite the obfuscation in KK’s
characterisation of what she said, I do not consider that KK in fact intended to put a hole
through MB’s head if she came to KK’s house. I consider that her statement involved a
good deal of bluster.
48․ On or about 14 April 2022, there was an incident between MB and KK at the Kippax shopping centre. MB asserts that, when MB was sitting in her car, KK approached her
and shouted at her words to the effect of “I’ll see you in Court”. KK was within 15 metres of MB’s car. MB says that she left the area so as to avoid any allegation of having
breached the personal protection order. She reported the incident to police.
49․ KK’s version of events is that she was walking out of the shops with KK’s daughter and came across MB, that MB yelled abuse at KK, and that in response KK told her to shut her mouth and that she would see MB in Court. KK said that she then went to her car. It is not possible to make any findings as to which of KK and MB accurately recalled how the incident arose. At its worst, it involved MB yelling abuse at KK which, if it occurred,
would no doubt have been unpleasant for KK, but KK’s response shows that she wasn’t
at all perturbed by the conduct.
50․ On 19 April 2022, MB applied for a personal protection order against KK. An interim
personal protection order was granted on 20 April 2022 and served on KK on or around
22 April 2022.
51․ MB says that, later that day, as she was returning to her car at the Kippax shopping centre, she saw KK driving in circles around the carpark. MB says that she loaded her car and drove away, but that as she did, KK drove up behind her, shouting obscenities and putting her middle finger up. MB said that she continued to drive away. Even if the Court were to accept that this incident occurred as MB recalled it, it is an incident of a similar kind to the earlier incident in the carpark. That is, it would have been unpleasant for MB, but I do not consider that she would have suffered any fear as a result of it.
52․ On 11 May 2022, MB called police to make a statement. At that time, she could not recall what had happened in the morning of 6 March 2022. She said that she recalled the incident after that time and went to the police station a couple of times to make a
statement but the police didn’t take a statement from her.
53․ I note that police notes from their interaction with MB on 11 May 2022 record that MB could not recall the incident – only that her hair was pulled and she was punched at some
point; that she told police that she did not wish to proceed with the matter; and that she told police that KK had recently obtained a personal protection order and MB felt that she should not be blamed for the incident. The police notes record that the police informed MB that, due to the lack of evidence, it was unlikely the matter would progress to Court.
54․ On 29 May 2022, MB spoke to police, who informed her that there was no CCTV of the incident. Police notes record that MB understood that, due to a lack of evidence, the matter could not proceed to Court. MB advised police that she had recently moved house and no longer held concerns that KK would approach her.
55․ On 23 or 24 June 2022, KK and KK’s daughter say that a person called KK’s step- daughter, from a phone with no caller ID. KK’s daughter understood the caller to be MB’s
ex-partner, however insufficient evidence was led to establish this fact.
56․ On 19 September 2022, MB contacted police again, who said that they would not be progressing any charges in relation to the 6 March 2022 incident as there was insufficient evidence, no witnesses with a clear recollection, no CCTV and neither MB nor KK could recall the events in detail because they were intoxicated. Police notes record that at this time MB stated that she now recalled the incident.
57․ It was put to MB in cross-examination that she had recreated the incident, rather than
recalling it, given that she couldn’t recall it in May 2022. She denied that and said that
she recalled it later because she had been replaying the incident in her mind. I do not accept that MB, having not been able to recall the incident in May 2022, was able to recall it at a later time.
58․ It was put to her that a similar thing had happened at Moby Dick’s Tavern at some later
time, where she had been intoxicated and had told police that she had been punched in the face by a man, but she was forced to concede that that had not happened when she was shown CCTV of the incident. Police notes record that MB called police on 6 August
2022, claiming that she had been punched in the face by a male at Moby Dick’s. The
notes record that, when police attended the venue, staff advised police that they had made several attempts to ask MB to leave due to her level of intoxication and the fact that she had been yelling at other patrons and causing a scene.
59․ She admitted under cross-examination that what she had told police at the time was a lie. I also note that, in her answers under cross-examination, she was unable to recall, clearly or at all, various aspects of the relevant incident and her answers were, in certain respects, evasive, including to the question whether the man had thrown her or whether she had tripped over.
60․ On or about 2 February 2023, MB says that she was driving past the school of MB and KK’s children. MB says that she observed KK driving in the other direction, slow down
and shout an obscenity at MB. MB says that she did not say anything, but continued
driving. KK says that she hasn’t seen MB at the school and doesn’t recall seeing MB in
her car or swearing at her. I am not able to make any findings in relation to whether this incident occurred on the evidence before me however, as noted in relation to the incidents in the Kippax shops carpark in April 2022, even if it did occur, at worst it would have been unpleasant for MB.
61․ MB has not been to KK’s house since 6 March 2022. KK is not aware of MB having caused anyone to attend her house either. Similarly, KK has not been to MB’s house since that date. KK’s daughter confirmed that MB has not contacted KK’s daughter or KK’s step-daughter.
62․ MB stated that a final order is necessary because she needs safety. She said that if an order is not made, KK is going to engage in personal violence towards her, given that she has done so in the past. I also note that MB, in response to a question as to why she needed a distance condition in the personal protection order, said that she fears for her life. I do not believe that MB is in fact fearful for her life with respect to any possible
conduct on KK’s part.
63․ MB said that if the order sought by KK are not made, she would not contact KK anyway. MB gave evidence that she has no reason to interact with KK in the future.
Submissions
64․ Mr McBride, for KK, and Mr Carmichael, for MB, delivered oral submissions at the conclusion of the hearing. Some of those submissions related to evidentiary issues that
I have addressed above. The parties’ other submissions are summarised below.
65․ Mr McBride submitted that:
(a)
I should accept KK’s evidence as being truthful and that it was open to me to reject MB’s evidence entirely;
(b) if I have doubts about MB’s credibility in giving evidence, then I can also have doubts as to her general level of accountability;
(c) in any case, MB’s evidence demonstrates an absence of fear. In particular, Mr McBride pointed to MB attending KK’s house on 6 March 2022 to engage in an act of personal violence herself;
(d) on the other hand, KK retains some fear that MB will attend her property again, albeit that she accepts that MB has not done so whilst the interim order has been in place; (e) the incident involving the fight between MB and KK is so rife with uncertainty that the Court can’t make a finding as to who initiated it;
(f)
the parties would take a final order more seriously than an interim order because it will have been finally determined; and
(g)
the making of a final personal protection order would achieve accountability, which is relevant to achieving the objects of the Act.
66․ Mr Carmichael submitted that:
(a) there is no ongoing risk to KK, noting that MB has no interest in returning to KK’s house, MB has not engaged in any acts of personal violence since 6 March
2022, MB does not see KK and the fact that MB has taken out a personal protection order against KK shows that she does not want to have anything to do with her;
(b) KK has engaged in multiple instances of personal violence towards MB, being: (i) KK’s threat to put a hole through MB’s head;
(ii) that it was KK who made calls to MB and her daughter threatening to kill each of them;
(iii) the two incidents at the Kippax shops carpark, noting that the fact that KK did not identify the incidents in her chronology as having happened suggests that it was not MB who instigated these incidents; and
(iv) The incident outside the school of the parties’ children, which Mr
Carmichael submitted shows ongoing animosity;
(c) accountability, for the purposes of s6(c) of the Act, is not directed to holding perpetrator’s of violence accountable in a general sense – it is protective in
nature;
(d)
making a final order against MB when she has already been subject to an interim order for 14 months, would involve unreasonable hardship;
(e)
if the Court were to make a personal protection order against MB, its duration should be extremely limited and the condition should be limited to a prohibition against committing any acts of personal violence; and
(f)
in terms of the order that MB seeks, an order is necessary to prevent further personal violence, given the incidents which have occurred. Mr Carmichael submitted that the risk of violence outweighs the burden that a personal protection order would place on KK, that both distance and contact prohibitions
should be included, and that it would be appropriate to include MB’s daughter
as a protected person in the order.
Consideration
67․ I am satisfied that both MB and KK have engaged in personal violence towards the other. Specifically, I am satisfied that:
(a)
in the early hours of 6 March 2022, the parties committed acts of physical violence towards each other during the physical altercation that occurred between them; and
(b)
in the afternoon of 6 March 2022, MB damaged KK’s property by spray painting the security camera near KK’s front door.
68․ Accordingly, the criterion set out in s26(a)(i) is satisfied.
69․ Whether either party may engage in personal violence in relation to the other in the future is less clear. I do not consider that either party will seek out the other or their children. Even if I had accepted that the parties had made any of the threatening calls that each alleged the other had made (or, perhaps, had encouraged be made), it has been almost 11 months since the last of those calls. I do not accept that either party fears harm from the other.
70․ I am doubtful as to the parties’ capacity to be civil towards each other if they happen to
be in the same location, and note that their daughters continue to attend the same school
and the parties appear to frequent the same local shops.
71․ Having said that, it appears that they have only encountered each other, at most, on three occasions since the incidents which occurred on 6 March 2022. The only one of those encounters that has occurred since April 2022 (13 months ago) was the incident that MB asserts occurred (but which KK denies) in February 2023 when they drove passed each
other outside their children’s school. The other two incidents occurring in quick
succession in April 2022, around the time that the parties obtained interim protection orders against each other. At worst, each of the incidents involved one of the parties swearing at the other, briefly, in circumstances where the recipient of the abuse was not at all sensitive to it.
72․ On that basis, I find that it is possible that each of the parties might engage in personal violence towards the other, in the form of offensive behaviour (verbal abuse) but the likelihood of that occurring is low and the likely level of seriousness of any personal violence, if it did occur, is also low.
73․ The result of this finding is that I also find that the criterion in s26(a)(ii) is satisfied, but I am not satisfied that it is appropriate to make a final order in either party’s favour.
74․ In reaching this conclusion I note that:
(a)
I have had regard to the objects of the Act, set out in s6, but do not consider that they warrant a protection order being made in respect of either application. In particular, I do not consider that a protection order is necessary to achieve the objects of the Act, given my view as to the low likelihood of further acts of personal violence occurring and the likely low level of seriousness of any personal violence were it to occur; and
(b)
I have had regard to the other matters set out in s11 of the Act, but do not consider that any of those considerations, individually or cumulatively, warrant the making of a protection order. I also do not consider there are any other relevant considerations that warrant the making of a protection order.
Disposition
75․ In circumstances where I do not consider that it is appropriate to make a protection order
in relation to either application, it is appropriate that the applications made by each of the
parties for final orders be dismissed.
76․ 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 her own
costs of the proceedings. In particular:
(a) I do not consider that either application was vexatious, frivolous or made in bad faith, and therefore there is no basis for a costs order against either of the parties for their capacities as applicants for their respective proceedings; and (b) I do not consider that the way that either party conducted themselves in relation to the other party’s application makes it appropriate to make a costs order
against either party in their capacity as a respondent to the other party’s
application.
Orders
77․ I make the following orders:
(a) In proceedings PPO 231/2022: (i) The application made by KK for a final personal protection order is dismissed.
(ii) There be no order as to costs.
(b) In proceedings PPO 366/2022: (i) The application made by MB for a final personal protection order is dismissed.
(ii) There be no order as to costs.
I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.
Associate: Mason Britton
Date: 31 May 2023
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