Ts v Pu
[2019] ACTMC 22
•12 July 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | TS v PU |
Citation: | [2019] ACTMC 22 |
Hearing Date(s): | 30 and 31 May 2019 |
DecisionDate: | 12 July 2019 |
Before: | Magistrate Stewart |
Decision: | See paragraphs [29]–[43] |
Catchwords: | FAMILY VIOLENCE ORDERS – definition of family violence - matters to be considered where respondent has used family violence against the affected person(s) – where both parties have used family violence against each other – weight to be given to individual considerations – hardship to respondent – employment as police officer and consequential effect of firearm prohibition |
Legislation Cited: | Family Law Act 1975 (Cth) Family Violence Act2016 (ACT) ss 6-8, 12-15, 34-39, 42, 44, 65 Human Rights Act 2004 (ACT) Legislation Act 2001 (ACT) ss 139-140 |
Cases Cited: | Re Application for Bail by Islam [2010] ACTSC 147; (2010) 175 ACTR 30 |
Parties: | TS (Applicant) PU (Respondent) |
Representation: | Counsel Dr J Behrens (Applicant) Ms M Burgess (Respondent) |
| Solicitors Neilan Stramandinoli Family Law (Applicant) Yeend & Associates (Respondent) | |
File Number(s): | FVO 59 of 2019 |
MAGISTRATE STEWART:
BACKGROUND
The applicant seeks 24 month orders prohibiting the respondent from:
(a) being where the affected person(s) live except in accordance with an order or a parenting plan made under the Family Law Act 1975 (Cth);
(b) being on her mother’s premises in [redacted];
(c) being at the early childhood centre where the applicant and respondent’s child attends;
(d) being closer than 100 metres from the affected person(s) except:
(i) in accordance with orders under a parenting plan made under the Family Law Act 1975 (Cth);
(ii) in relation to the respondent’s children when spending time with them in accordance with orders or a parenting plan made under the Family Law Act1975 (Cth) or with the prior written consent of the protected person;
(iii) at a counselling/mediation session or restorative justice conference arranged with the consent of the affected person(s);
(e) locating or attempting to locate an affected person(s);
(f) contacting an affected person except:
(i) through a solicitor;
A. at a counselling/mediation session or restorative justice conference arranged with the consent of the affected person(s);
B. in accordance with orders or a parenting plan made under the Family Law Act1975 (Cth);
C. in writing including by SMS or email to discuss that safety or welfare of the children or to facilitate parenting applications contact handover of the children.
(g) engaging in behaviour that constitutes family violence;
(h) causing someone else to locate or attempt to locate an affected person;
(i) causing someone else to contact an affected person; and
(j) causing someone else to do anything that is family violence in relation to the affected person(s).
The applicant works for the Australian Federal Police (AFP) – the same police force that the respondent is employed by. The parties commenced living together as a couple in December 2014 when the applicant moved to Canberra. It was not disputed that the parties stopped living together on 24 April 2018. The respondent now lives and works in New South Wales. By virtue of s 44 of the Family Violence Act2016 (ACT) (the “FV Act”), and a decision by his local AFP commander, the interim family violence order granted on 29 March 2019 has the consequential effect of the respondent not being allowed to access service firearms as part of his duties with the AFP. Being precluded from using AFP firearms means that he is deemed to be non-operational as an AFP officer. He therefore has a non-operational posting in New South Wales, although he wishes to return to Canberra to work as an operational AFP officer. Hence, making a final order pursuant to the FV Act may affect his career and employability with the AFP.
The respondent has questioned the biological paternity of K – the child that he and the applicant share care of – but both parties appear to accept that even in a de facto sense the respondent is the father of K who was born in July 2017.
The applicant made her application for a family violence order (“FVO”) because she became aware that the respondent was to return to operational duty status with a firearm, and, she alleges that she is genuinely scared for her and K’s safety should the respondent do so.[1]
THE LAW
[1] Transcript 30 May 2019 (28).
The paucity of case citations in this decision reflects the paucity of case law relating to the legislation relevant to this decision. As such, I have relied on principles of statutory interpretation. The Legislation Act 2001 (ACT) requires at ss 139 and 140 that, in working out the meaning of an Act, I must prefer the meaning that would best achieve the purposes of the Act and read individual provisions in the context of the whole Act.[2]
[2] See, for example, Re Application for Bail by Islam [2010] ACTSC 147; (2010) 175 ACTR 30.
The present legislation was enacted in 2016. It sets out several tests and considerations for making final orders.
I have set out the sections of the FV Act relevant to the granting of final orders below:
6 Objects 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.
8 Meaning 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.
(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
12 Principle about procedures
Procedures for this Act are to be as simple, quick and inexpensive as is consistent with achieving justice.
13 Balance of probabilities
If a court or a judicial officer is required to be satisfied about something under this Act, the court or judicial officer must be satisfied on the balance of probabilities.
14 Matters 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.
NoteAn 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.
34 Final 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 3 This 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.
35 Final 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.
NoteThe 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.
36 Safety 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.
37 Least 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.
38 Conditions—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;
NoteSection 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
1personal clothing
2toiletries
3books
4photographs
5house or car keys
Examples—par (n)—respondent's circumstances
1the respondent's work or educational commitments
2the respondent's transport options
3any disability the respondent may have
(3)A regulation may prescribe requirements for subsection (2) (n).
39 Exclusion 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.
42 Conditions 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.
44 Firearms licences
(1)If an interim order or an after-hours order is made against a respondent who is the holder of a firearms licence, the respondent's firearms licence is suspended until the interim order or after-hours order ends.
Note For the application of this section to consent orders, see s 33 (3).
(2)If a final order is made against a respondent who is the holder of a firearms licence, the respondent's firearms licence is cancelled.
(3)If a respondent's firearms licence is suspended or cancelled, the court or judicial officer may order—
(a)the seizure of the firearms licence; and
(b)the seizure of any firearm or ammunition in the respondent's possession.
ISSUES
There are six issues to determine when considering whether or not to make a final order:
(i) Does the behaviour alleged amount to “family violence” (the s 8 tests)?
(ii) Are there any Family Law Act1975 (Cth) orders in place? Family Law Act orders must be considered in deciding whether or not to grant an order.[3] If any family violence order is made, the Court may decide to use the conferred power under s 68R of the Family Law Act 1975 (Cth) to revive, vary, discharge or suspend Family Law Act orders (the s 15 Family Law Act orders consideration).
[3] Note that this consideration must occur for both interim and final orders.
(iii) Is the Court satisfied that the affected person has reasonable grounds to fear family violence by the respondent, or is the Court satisfied that the respondent has used family violence against the affected person (the s 34 tests)?
(iv) If one of the s 34 tests is satisfied, should the Court make an order (the s 14 test)?[4]
(v) If the Court makes an order, what conditions should be imposed pursuant to s 38 having regard to s 36 (the safety of affected person and children are paramount) and s 37 (the least restrictive principle)? and
(vi) If the Court makes an order what length should the order be pursuant to s 35, and, should each condition be the same length as the order pursuant to s 42?
[4] And, in the individual circumstances of this matter, does any hardship to the respondent outweigh the other ss 6 and 14 considerations?
I have considered the operation of the Human Rights Act 2004 (ACT). There appears to be no inconsistency between that legislation and the FV Act in relation to the application of both Acts to this matter. The parties have confirmed that no s 15 issues arise as there are no Family Law Act orders in place.
THE HEARING
The Court heard evidence from witnesses for both parties including the adult parties themselves. Every allegation of what might fall into the category of family violence has not been dealt with in this decision because there are a number of incidents that are accepted, at least in part, by both parties to have occurred – the issue being do these acts amount to family violence under the FV Act? I am mindful that all family violence is serious and has repercussions for those that are exposed to it. However, I find that it is unnecessary in the circumstances of this matter to make findings of fact for each and every allegation. Where I have made findings they are on the balance of probabilities.[5]
A.THE PILLOW INCIDENT
[5] FV Act s 13.
In early April 2018 the parties were living together at their apartment. The applicant told the Court that on 10 April 2018 she had organised an early return to work from maternity leave. Her plan was to work from home for a couple of days a week and have the respondent look after K whilst she was working. The applicant had organised to meet her new work team leader, SL at a nearby café at eight in the morning. She went into the bedroom that the respondent was sleeping in and asked if the respondent would look after K whilst she had a shower. The respondent requested that K be left on the bed. The applicant did so and K nearly rolled off the bed. It was the applicant who prevented K from falling as the respondent did not appear to move. He told the respondent that he had been out until 4.00 AM and that he had drunk a bottle of gin.
An argument started and the applicant gave evidence that the respondent commenced screaming and telling the applicant to get out of the apartment. The applicant told the Court that the respondent threw two pillows “directly at me while I was holding [K]”.[6] K was upset to the point of screaming whilst this all occurred. The applicant alleged that the respondent chased the applicant around the apartment whilst she carried K and stuffed a nappy bag with supplies. The applicant attended the meeting with her work supervisor. Her supervisor asked her what had happened and she retold her version of what had occurred earlier that morning. The applicant decided to take K for a walk in the pram but her supervisor organised a meeting with a police welfare body and she was picked up and taken into the police welfare office. I will refer to this incident as the “pillow incident”.
[6] Transcript 30 May 2019 (11) [8].
SL was called in the applicant’s case and gave an independent account of the state of the applicant and K following the “pillow throwing incident” on 10 April 2018. I found her to be a witness who was attempting to tell the truth and her evidence to be accurate, helpful and persuasive. Her recall of the presentation of the applicant and K supported the applicant’s contention that an incident had occurred. SL’s observations that the applicant was “quivering … shaking”[7] and K was clinging to his mother and not coming to the witness were observations consistent with an incident having occurred. I note that this witness was sure of receiving a complaint about the applicant being physically pushed by the respondent.[8] I accept that she was told that by the applicant and that SL was being honest about her recollection. There was no such allegation made by the applicant at hearing.
[7] Transcript 30 May 2019 (73) [40]-[41].
[8] Transcript 30 May 2019 (76).
The respondent agreed that he threw two pillows in the direction of the applicant and yelled out “[g]et out, get the fuck out”[9] at her.
[9] Transcript 31 May 2019 (9) [15]–[16]; see also Transcript 30 May 2019 (11) [8]–[9].
I am satisfied that there was an argument between the parties in front of K and that eventually the respondent yelled out “[g]et out, get the fuck out” at the applicant and threw two pillows in her direction. By virtue of his presence and proximity to his parents, I find that K witnessed the same behaviour and was exposed to the effects caused to the applicant as a result of the same behaviour. I do not accept that the complainant was chased around the apartment – to the contrary I find that this aspect of this allegation was embellished at the hearing and was untruthful just as much as the complaint of being pushed made to SL was an untruthful embellishment made on the day of the incident. I find that on the facts I accept as proven, that the “pillow throwing incident” amounts to family violence against the applicant and K and satisfies the tests set out in s 8(1)(a)(iii) (emotional or psychological abuse), (v) (threatening behaviour) and s 8 (1)(b) (behaviour that caused a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of that behaviour).
B.PLAY TUNNEL AND KNIFE INCIDENT
The applicant gave evidence that on 24 April 2018 she was sitting on the couch with K and the respondent and that the respondent became quite agitated. They were discussing the end of their relationship and he said “[d]o you want to see abuse? This is abuse”[10] and he then kicked K’s play tunnel causing it to travel from the living room to the kitchen area. The respondent then went to the kitchen and pulled out a chef’s knife. On the applicant’s version, the respondent then moved so that he was standing between the front door and where the applicant and K were positioned, all the time whilst still holding the knife. She then moved away to the balcony door. The respondent moved into the bedroom with the knife and several attempts were made by the applicant to call 000. In the end she ceased attempting to call 000 and called a mutual friend and requested that he attend. When that person attended he insisted that the respondent go with him and stay at his home for some time. The mutual friend was not called by either party.
[10] Transcript 30 May 2019 (9) [11].
The applicant gave evidence that when the respondent kicked K’s play tunnel she was scared and she knew that K was frightened because she saw that he was crying. The applicant herself was scared to the point that when she saw the respondent with the knife in his hand she thought her choices were to remain stuck in the apartment or to jump off the balcony with her son. I will refer to this incident as the “play tunnel and knife incident”. This date is regarded by the applicant as the date of separation.
The respondent’s version of the physical act of kicking the play tunnel was almost identical to the applicant’s version. He agreed that he then took a knife from the kitchen, but, on his version, immediately went to the bedroom with the knife. I do not accept that he took the knife and stood between the applicant and the door. I find that this part of the incident was embellished by the applicant. I find that there had been an argument, the respondent then said “[d]o you want to see abuse? This is abuse”, he kicked the child’s play tunnel and retrieved a knife from the kitchen in view of the applicant and their son. The respondent then went into his room, recognised the foolish nature of his behaviour and returned the knife to the kitchen.
I find that the behaviour proved satisfies the following tests: s 8(1)(a)(iii) (emotional or psychological abuse), (v) (threatening behaviour) and s 8 (1)(b) (behaviour that caused a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of that behaviour).
C. PUPPET AND KNIFE INCIDENT
On 3 August 2018 the respondent was visiting the applicant and K in Canberra. They were supposed to attend a mutual friend’s wedding a couple of days later. The respondent was sitting on the couch and the applicant was sitting at the dining table breastfeeding K. The respondent became agitated and threw a puppet at the applicant and K. He then approached them and attempted to pull K out of the arms of the applicant. The parents tussled and K became upset. In the end, the applicant let K go and became frightened that the respondent would take him to Sydney. To stop this from happening she picked up a knife from the table and held it to herself. On her version, she thought that this “wouldn’t be a big, distressing scene for K”.[11] The respondent put the child down and left the apartment. I will refer to this incident as the “puppet and knife” incident.
[11] Transcript 30 May 2019 (17) [35]–[36].
At page 12 of the Transcript on 31 May 2019, the respondent confirmed throwing a soft toy puppet towards the direction of the applicant. I find that in the context of the previous family violence he participated in an argument that continued over to the morning from the evening prior and that he did throw the puppet at the applicant. I find the respondent’s behaviour in so doing amounted to family violence – on this occasion pursuant to s 8(1)(a)(iii) (emotional or psychological abuse).
The respondent’s account of the remainder of the incident was slightly different to the applicant in that the incidents were in different parts of the day. He broadly agreed with the evidence of the applicant about her production and use of a knife. The differences were minor and it is clear, and I find, that the applicant herself took up a knife in the presence of the respondent and K with the express intention of influencing the respondent’s choices about the child. Had I been required to do so I would have found that the applicant herself behaved in a way that amounted to family violence against the respondent and K.
D. PISTOL INCIDENT
Over the evening of 12 and 13 August there were a series of SMS messages between the parties. I need not repeat the whole content of the messages here, suffice to say that they contained a photo of the respondent’s service pistol accompanied by a threat to commit suicide with that pistol on that occasion. The respondent admitted to loading the pistol and placing it in his mouth. In doing so he mimicked suicide and behaved in a most serious manner of suicidal ideation. Whilst she may not have been aware of all of the physical acts performed by the respondent, the applicant felt frightened, helpless and manipulated by the behaviour of the respondent. This was not the first time that the respondent had attempted to commit suicide. The applicant was aware that at the commencement of their relationship the respondent had attempted to commit suicide by hanging.[12] I will refer to this incident of the 12 and 13 August as the “pistol incident”.
[12] Transcript 30 May 2019 (25) [41]–[47].
There was evidence that the respondent was then admitted to a South Coast private hospital between 31 August and 29 September 2018. This was for a mood and anxiety program following on from the suicidal ideation demonstrated by the respondent in the pistol incident.
I find that:
a. the respondent very nearly committed suicide with his AFP pistol over the night of 12 and 13 August;
b. the respondent sent SMS messages accompanied by an SMS photo of the pistol revealing that fact to the applicant;
c. the respondent was (at the very least) reckless about the effect of that knowledge on the applicant and K;
d. any mental illness operating in the mind of the respondent at the time has no part to play in finding (c) above – it is the fact of the behaviour and the effect on the applicant that is the operating feature at work; and
e. the conduct amounted to family violence pursuant to s 8(1)(a)(iii) (emotional and psychological abuse), and (v) (threatening behaviour) and satisfies those tests.
FURTHER RELEVANT EVIDENCE
EM, a serving AFP police officer, gave evidence about the likely effect of a final order being made with a focus on the effects of s 44 and cancellation of firearm licences. His evidence can be summarised as follows:
(a) if a member of the AFP becomes the subject of a FVO, the area manager will generally err on the side of caution and remove the firearm from the member, notwithstanding the fact that AFP members have professional possession and use of firearms without holding firearms licences;
(b) once an AFP officer has firearm restrictions, they are subject to deployment on restricted duties and are deemed to be ‘non-operational’. There is also a loss of a 22 per cent salary loading for being confined to non-operational status;
(c) a non-operational officer can be promoted to higher pay bands but cannot be promoted to the rank of sergeant; and
(d) the ACT presently has no positions available for non-operational AFP officers. This situation may or may not change in the future.
I accept this evidence as being truthful. I accept it as being accurate as at the time of the hearing. There was no evidence as to whether the local employment prospects for non-operational AFP officers will change or remain static.
QI, the respondent’s current partner, gave evidence about her relationship with the respondent. She is also a serving police officer in the AFP. They have been in a relationship since December 2018. She gave evidence of their joint desire for the respondent to live and work in the ACT. QI was pragmatic (and, I find, accurate) about her perception of the mutually toxic nature of the prior relationship of the parties. She had apparently come to a favourable conclusion about the respondent’s suitability for spending time with her own children aged 11 and 16 saying that “he’s amazing with them, just incredible”.[13] I found her to be a witness of truth and her evidence to be accurate, helpful and persuasive.
DECISION
[13] Transcript 30 May 2019 (86) [36].
I find that both of the parties have behaved in ways that constitute family violence. I find that the “pillow incident”, “tunnel and knife incident”, “the puppet and knife incident”, and “pistol incident” all amount to acts of family violence and my power to grant a final order is therefore enlivened the pursuant to s 34(1)(b) of the FV Act. There is no cross-application by the respondent.
The parties are now separated and have no contact other than through legal representatives or for the purpose of organising for the respondent spending time with K. The respondent presently resides in New South Wales although he visits Canberra regularly and wishes to work here again. There are no allegations of family violence post-2018. After considering s 34, I am satisfied that the adult affected person has reasonable grounds to fear family violence by the respondent and I am also satisfied that the respondent has used family violence against the affected persons. Both parties have threatened and coerced each other and have emotionally or psychologically abused and manipulated each other as a result. Much of this family violence has occurred in the presence of K. Both have resorted to the use of knives in the presence of K. If K was old enough to be cognisant of his parents’ behaviour with those knives, he would have been terrified and, in all likelihood, he has suffered emotional and psychological abuse. Both parents are responsible for this.
It is a very clear intention of the FV Act to preclude those that are the subject of FVOs from owning or possessing firearms. The parties came to know each other through their AFP careers and they are acutely aware that carrying firearms is a usual feature of policing in Australia. I am mindful that any order made will cause professional (and probably financial) hardship to the respondent because it will affect his operational status and employability in the AFP. A final order under the FV Act may negatively affect his ability to be employed in the ACT and, therefore, also affect his ability to spend time with K. The flip side is that a final FVO would not preclude the respondent from employment as a non-operational AFP officer or police civilian or any other position he might apply for in the ACT.
Section 14 of the FV Act dictates that hardship to the respondent is one of several matters that must be considered when making a family violence order. Section 14 must be read in the context of the whole Act. In that sense, hardship is one of many compulsory considerations that may override each other or take reign as the consideration to be afforded the greatest weight whilst bearing the s 6 principles in mind.
The respondent’s behaviour with his AFP firearm was remote from and presumably outside of the knowledge of K. However, it is an extreme example of the type of family violence that does not involve the application of physical force. There would have been a flow-on effect to K because of how his father’s behaviour affected his mother. Both of these realities appeared to be completely lost on the respondent.[14]
[14] Transcript 31 May 2019 (21)–(22).
Those who have the professional privilege of using and carrying firearms in the workplace know full well that this grant of privilege for firearms can be revoked if their behaviour is inconsistent with a continued grant. The consequential effect of any order made in favour of the applicant relating to depriving the respondent’s ability to access firearms has weighed heavily in this decision. Ultimately, the respondent must take responsibility for his conduct in terms of the professional repercussions he has brought upon himself and the personal (and legal) repercussions caused by involving the applicant in his behaviour. Encouragement of him to so do is expressed in s 6 as an object of the FV Act.
Bearing all of the issues in mind, I find that in the circumstances of this matter, the level of hardship to the respondent caused by granting a final order does not outweigh the need to grant an order. That is, any s 14 hardship upon the respondent has not outweighed the s 6 and other competing s 14 considerations. I have decided to impose a final order and I turn my mind to the conditions of that order.
The s 38 conditions are not mandatory[15] and conditions should be ordered only where necessary if s 37 is to be given full effect.
[15] I note the words “may include the conditions the court considers necessary” and “may do 1 or more of the following” in the wording of s 38.
There has been little communication between the parties this year. As it may be inevitable that the parties have workplace contact, I have modified the s 38 non-communications order. Section 37 has influenced this decision.
I accept that s 37 must be read in terms of s 36 and the whole of the FV Act. However, in the circumstances of this case (including the fact that the parties are now separated, that they may well end up working in the same building or area in the AFP and that I have made a limited non-communication condition), I do not find that there is a need for an order prohibiting the respondent from being within a certain distance of the applicant sufficient to outweigh s 37.
I find that there is no basis to preclude the respondent from being at K’s child care centre. I have considered what I must pursuant to s 39 in relation to the exclusion condition sought about the child care centre. There was no evidence of any s 39 issues in relation to the child care centre. I do not see safety and protection issues pursuant to s 36 such that this order should be granted. I am mindful of the s 37 “least restrictive principle”.
I have not granted the remaining orders sought after giving paramount consideration to the safety and protection of the applicant and K as s 36 dictates, and after consideration of the least restrictive principle set out in s 37 and the particular facts of this matter.
Finally, in relation to s 35 I note that the default length of a final order is 24 months. After weighing up all of the considerations enshrined in the FV Act, and the findings that I have made on the evidence, I find that there is no proper basis to impose a shorter order than 24 months and also find that there are no special or exceptional circumstances that call for one longer than 24 months. I find that pursuant to s 42 there is no basis to make any of the conditions of a different length to 24 months.
ORDER
The order that I make is that for a period of 24 months from today, the respondent is prohibited from:
(a) being on premises where the adult protected person lives except in accordance with an order or a parenting plan made under the Family Law Act 1975 (Cth);
(b) being on premises at [redacted] except in accordance with an order or a parenting plan made under the Family Law Act1975 (Cth);
(c) contacting the adult protected person except:
(i) through a legal practitioner;
(ii) at a Court or Tribunal proceeding, or to take such a step;
(iii) at a counselling or mediation session or restorative justice conference arranged with the protected persons consent;
(iv) in accordance with an order or a parenting plan made under the Family Law Act1975 (Cth);
(v) in relation to the child K, through a recordable parenting application to be agreed in writing through the applicant’s legal practitioner and only for the purposes of facilitating contact or handover of K or to discuss K’s safety and welfare;
(vi) in the course of the employment of the parties.
(d) engaging in behaviour that constitutes family violence towards the protected persons; and
(e) causing someone else to do anything that is family violence in relation to the affected persons.
I direct that a copy of this decision and the transcript of the proceedings be provided to the Commissioner of the Australian Federal Police.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Stewart Associate: Angus Brown Date: 12 July 2019 |
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