Charges: Murder x 1.
Proceedings: Appeal against conviction.
Facts: By special leave the defendant appealed the majority decision of the South Australian Court of Criminal Appeal (Parker and Livesey JJ, Nicholson J dissenting) to uphold his conviction following trial by judge alone (Lovell J) in the Supreme Court of South Australia for the murder of his wife. He argued that the trial judge’s verdict could not be supported having regard to the evidence.
Following a stroke in 2005 the female victim was confined to a wheelchair and she could no longer speak. For two years before her death she had been living in a nursing home. The Crown alleged that while on an outing her husband pushed her wheelchair into a pond, resulting in her drowning. Lovell J drew inferences adverse to the appellant’s credit from the appellant's behaviour during interviews with police ‘that his relationship with his wife had changed since she had been living permanently in the nursing home, such that he had come to see her as "taking up his time" and no longer had a caring relationship with her.’ In assessing the appellant’s account of his wife’s death as implausible, Lovell J found support for the prosecution case in circumstantial evidence that he had left his watch, wallet and a spare change of clothes in the car and had done internet searches on funerals in the month before. Lovell J found 2 distinct interconnected motives, financial and relationship, concluding the only rational inference available on the whole of the evidence was that the appellant deliberately pushed the wheelchair into the pond with intent to kill his wife and therefore his guilt was proved beyond reasonable doubt.
Ground: The majority in the Court of Criminal Appeal erred in how it approached the ground that the verdict was unreasonable or could not be supported having regard to the evidence. In particular, the majority misinterpreted and misapplied the approach required to be taken to that ground in accordance with M v The Queen [1994] HCA 63; (1994) 181 CLR 487 as applied in Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47.
Decision and reasoning: Appeal allowed, conviction set aside and the matter remitted for rehearing. Livesey J’s judgment in the Court of Criminal Appeal, with which Parker J agreed, erred. ‘What was missing from this analysis, because it had been eschewed as raising “jury” questions, was any independent consideration of whether the evidence left open reasonable hypotheses consistent with innocence’ [35].
Charges: Murder x 1.
Proceedings: Appeal against conviction.
Facts: The appeal concerned the partial defence of provocation, which operates to reduce what would otherwise be murder to manslaughter, under s 304(1) of the Criminal Code (Qld). Section 304 was amended in 2011 to exclude the defence (save in circumstances of a most extreme and exceptional character) in the case of the unlawful killing of the accused's domestic partner where the sudden provocation is “based on anything” done by the deceased, or anything the accused believes the deceased has done, to end or to change the nature of the relationship or to indicate in any way that the relationship may, should or will end or change. The 2011 amendments placed the burden of proof of the defence on the accused. The issue raised by the appeal is whether in discharging this burden the appellant was required to prove that the provocation was not "based on" anything done (or believed to have been done) by the deceased to change the relationship, notwithstanding that such conduct (or believed conduct) was not the conduct that he claimed had induced his loss of self-control. The appellant killed his wife in circumstances that left it open to find he was angered by a belief that the deceased had been unfaithful and planned to leave him. But the appellant’s case was that, for the purpose of s 304(1), his loss of self-control was ’based on’ the deceased “grabbing [a] knife, threatening [him] with it and cutting his right palm.” The jury found the appellant guilty of murder. On appeal, the Queensland Court of Appeal held that the trial judge was entitled to direct the jury to consider whether the exception set out in s 304(3) excluded the availability of the partial defence under s 304(1).
Grounds of appeal: The Court of Appeal erred in holding that the exclusion of the defence of partial provocation pursuant to the exception in s304(3) was not confined to the provocative conduct of the deceased which the defence relied upon as causative of the appellant's loss of self-control.
Held: Appeal was allowed. The majority (Bell, Gageler and Gordon JJ) found that, correctly understood, s 304(3) excludes the defence of provocation where the accused was in a domestic relationship with the deceased and his/her loss of self-control was induced by anything done (or believed to have been done) by the deceased to change the relationship. Whether the defence does not apply is a question of law.
Here, it was the appellant’s defence that it was the deceased’s conduct with the knife that induced his loss of self-control. There was no evidentiary foundation to suggest that the conduct with the knife was itself a thing done to change the relationship. It was therefore not open to find that the defence was excluded under s 304(3). The trial judge was wrong to direct the jury that, in addition to proving the elements of the defence, the appellant was required to prove that his loss of self-control was not based on anything done by the deceased to change the relationship.
Note: The appellant was subsequently retried and convicted of manslaughter (the sentencing judge found that the jury accepted the partial defence of provocation, and that the appellant’s belief that the victim had been unfaithful was reasonable) and resentenced: R v Peniamina (No 2) [2021] QSC 282 (25 October 2021).
Proceedings: Appeal from the decision of the Northern Territory Court of Appeal O'Neill v Roy [2019] NTCA 8 (4 September 2019).
Issue: Scope and limits of implied licence.
Facts: The respondent woman was the subject of a DVO that protected her male domestic partner (Mr Johnson, the victim). The DVO contained various conditions including that she was restrained from consuming and/or being under the influence of alcohol and other intoxicating substances when in the company of the victim [2]. In April 2018, the Northern Territory Police Force conducted Operation Haven which was designed to address issues concerning domestic violence and alcohol related crime and as part of that operation three officers from the Northern Territory Police Force visited the respondent and victim’s unit. One of the attending officers gave evidence that he had observed ‘antisocial behaviour coming from the property over the weeks prior to the operation’ [3]. One of the officers had previously observed the respondent in an intoxicated state ‘and she was in an intoxicated state every time he had dealt with her’.
Officers approached the shared unit and observed that the respondent "appeared to be just sort of laying on the ground" through the window and called her to come to the door "for the purposes of a domestic violence order check". Officers noted that the respondent’s eyes were bloodshot, her speech was slurred and had "a very strong odour of liquor on her breath", which lead them to conduct a breath test. The respondent was taken to Katherine Watch House after testing positive to alcohol for further breath analysis.
The apartment was accessible to the public and there were no signs suggesting the police were not welcome to approach the unit and knock on the front door. They were not asked to leave by the occupants.
The Northern Territory Court of Appeal held that the case involved an implied licence from the occupier of the premises for visitors to be on the footpath and approach the door of the unit rather than an implied licence for a specific purpose. The respondent sought special leave to appeal. The application regards the scope of the licence. It was agreed that the content of the implied licence is determined objectively while the infringement of the implied licence is determined by reference to some subjective characterisation of purpose.
Judgment: The Court per Kiefel CJ, Keane and Edelman JJ dismissed the appeal, having earlier granted special leave to appeal subject to noting that the proposed grounds of appeal might be reframed with greater precision HCATrans 43 (20 March 2020). Keane and Edelman JJ observed that the making of a coercive direction is beyond the scope of the licence generally implied by the law to enter the curtilage of a property but that there was no need for a coercive direction here as Ms Roy complied with the request for a breath test. No question of coercion would arise unless and until Ms Roy refused to consent to provide a breath test, and Constable Elliott decided to invoke the power conferred by reg 6(1)(a). [93]
Kiefel CJ held that either of two lawful purposes (to check compliance with a domestic violence order where Ms Roy was known to be invariably intoxicated or to ascertain the state of Ms Roy and Mr Johnson by way of a proactive domestic violence check) was sufficient for the law to imply a licence for Constable Elliott to enter the dwelling unit in question. He was not a trespasser. The evidence of the results of the breath test was admissible.
Charges: Incest x 2; Sexual penetration of a child under 16 x 1; Indecent assault x 1.
Appeal type: Crown appeal against sentence.
Facts: The charge subject of the appeal was one count of incest. The appellant pleaded guilty, and was sentenced to 3 years and 6 months’ imprisonment. The total head sentence was 5 years’ and 6 months’ imprisonment with a non-parole period of 3 years ([12], [23]).
Section 5(2)(b) of the Sentencing Act 1991 (Vic) provided that the court must have regard to current sentencing practices when sentencing an offender. The Court of Appeal stated that ‘but for the constraints of current sentencing practice’, it would have imposed a longer sentence ([33]).
Issues: Whether the sentence for the charge of incest was manifestly inadequate. In resolving this question, the High Court clarified the relevance of ‘current sentencing practices’ to sentencing.
Decision and Reasoning: The appeal was allowed, and the matter was remitted to the Victorian Court of Appeal for determination of the appeal against sentence ([77]). The High Court (Kiefel CJ, Bell and Keane JJ, Gageler and Gordon JJ agreeing) held that the Court of Appeal erred by treating the range established by current sentencing practices as decisive of the appeal before it ([2]).
Kiefel CJ, Bell and Hayne JJ stated: ‘the terms of s 5(2) are clear such that, while s 5(2)(b) states a factor that must be taken into account in sentencing an offender, that factor is only one factor, and it is not said to be the controlling factor’ ([9]).
Further, their Honours stated at [50]:
section 5(2)(b) of the Sentencing Act informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in sentencing should be maintained as an aspect of the rule of law. Reasonable consistency in the application of the relevant legal principles does not, however, require adherence to a range of sentences that is demonstrably contrary to principle.
Charges: Sexual offences against underage girls x 11.
Appeal type: Appeal against conviction.
Facts: The defendant was Robert Hughes, the star of the TV show Hey Dad! The 11 complainants were friends of his daughters or workers on the set. The prosecution sought to adduce the evidence of each of the 11 complainants to support each of the other counts. The prosecution sought to prove tendencies of ‘having a sexual interest in female children under 16 years of age’ and ‘using his social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them’ ([3]). The tendency evidence was admitted, and the appellant was convicted ([8]).
Issues: Whether tendency evidence is required to display features of similarity with the facts in issue before it can be assessed as having “significant probative value”. This issue had been the subject of diverging lines of authority between the Victorian and New South Wales Court of Appeal.
Decision and Reasoning: The High Court (4:3) dismissed the appeal.
The majority (Kiefel CJ, Bell, Keane and Edelman JJ) held that the evidence was admissible. The majority identified that there is likely to be a high degree of probative value when (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged ([41]).
The majority endorsed the test for “significant probative value” posed in Ford, that ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged ([40]). The majority at [40] added the following qualification:
it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
Gageler, Nettle and Gordon JJ dissented.
Gageler J advocated for a more conservative approach: his Honour argued that admitting all the evidence risks the jury placing too much emphasis on the series of allegations, and not assessing each charge individually ([109]).
Nettle J emphasised that the fact that an accused has committed one sexual offence against a child is not, without more, sufficiently probative of the accused committing another sexual offence against a child ([158]). Something more is required, for example a similarity in the relationship between the alleged victims, a connection between the details and circumstances of each offence, or a system of offending ([158]). Nettle J also reiterated the dangers in admitting tendency evidence ([174]).
Gordon J agreed with Gageler and Nettle JJ and set out her Honour’s own set of principles at [216].
Charges: Intentionally causing serious injury x 1; Using a prohibited weapon x 1; Dealing with suspected proceeds of crime x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The defendant and victim were in a relationship; the victim was 12 weeks’ pregnant with the defendant’s child ([5]). The defendant pleaded guilty to dousing the victim with petrol and setting her alight ([10]). The victim’s injuries were ‘horrendous’ ([11]), and she terminated her pregnancy ([13]). The sentencing judge said that he found it hard to recall a more serious example of the charge in his 38 years of working in criminal law ([14]). The sentencing judge imposed a head sentence of 15 years with a non-parole period of 11 years ([1]). The Court of Appeal allowed the defendant’s appeal against sentence on the basis that there was ‘such a disparity between the sentence imposed and current sentencing practice’ ([1]).
Issues: Whether the Court of Appeal erred in holding that the sentence was manifestly excessive.
Decision and Reasoning: The High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) overturned the Court of Appeal’s decision and reinstated the original sentence. The High Court discussed two aspects of the Court of Appeal’s decision: first, the Court of Appeal employing the term ‘worst category’ of offending; and second, the Court of Appeal’s interpretation of ‘current sentencing practice’.
First, the High Court held that it is an error to describe offences as being within ‘the worst category of cases’ if the offence does not warrant the maximum penalty ([19]), as the term is likely to cause confusion ([17]-[20]).
Second, the High Court remarked that ‘current sentencing practice’ is likely to change over time, ‘current sentencing practices for offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’ [21]. The High Court found that the cases were too few to establish a pattern, one case was 12 years old, and most did not occur in a domestic violence context ([25]-[31]). The High Court said that ‘violence perpetrated in the course of a domestic relationship against the offender's female partner … involve the abuse of a relationship of trust’, and such violence ‘must steadfastly be deterred’ ([28]). This was a distinguishing factor from cases with comparable serious injuries ([28]).
Charge/s: Manslaughter
Appeal Type: Appeal against sentence.
Facts: The appellant, an Aboriginal man, pleaded guilty to the manslaughter of his de facto spouse. He was sentenced to five years and three months’ imprisonment with a non-parole period of three years and three months’. The DPP appealed to the Court of Appeal on the basis that the sentence was manifestly inadequate. The Court of Appeal upheld the appeal and resentenced the appellant to seven years and nine months’ imprisonment with the same parole eligibility conditions. The appellant and the deceased had been in a relationship for approximately 16 years. On the day the deceased was killed, the appellant and the deceased spent the afternoon at a local tavern and both became intoxicated. After returning home, an argument ensued and the appellant assaulted the deceased in a prolonged and brutal way. He threw the deceased about the room, rammed her head into walls and repeatedly punched her on the face and head. There was a history of significant domestic violence in the relationship, including a conviction for grievous bodily harm for which the appellant was sentenced to 12 months’ imprisonment (conditionally suspended) as well as a conviction for common assault. The appellant was subject to a lifetime violence restraining order in favour of the deceased which prohibited him from having any contact with her. However, this order had been ignored by both parties and the relationship had continued.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was dismissed by majority (Bell J dissenting).
The joint majority (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) found no error in the Court’s approach to the issue of manifest inadequacy. In the Court of Appeal, McLure P made express reference to the gross over-representation of Aboriginal people in the criminal justice system (particularly in relation to manslaughter) which is directly related to alcohol and drug abuse. Her Honour also made reference to various ‘weighting errors’ in the sentencing at first instance. The Court held that there was no error in this approach. See in particular at [37], where the joint majority noted ‘her Honour was proceeding to make the point that, even in the context of the circumstances of social disadvantage in which domestic violence commonly occurs, the seriousness of the offence is such as to make a compelling claim on the sentencing discretion. And that is so notwithstanding that the number of Aboriginal offenders (and victims) is "grossly disproportionate".
See also McLure P’s statement quoted at [41] – "In this case, the offence is one of the most serious known to the law. The maintenance of adequate standards of punishment for a crime involving the taking of human life is an important consideration. While the role of the criminal law in deterring the commission of violent acts is problematic, and particularly so in relation to Aboriginal communities, it is important to indicate very clearly that drunken violence against Aboriginal women is viewed very seriously". The joint majority approved these remarks at [42] – ‘The passage of time has not lessened the force of that statement. While the appellant's offence may not have been in the very worst category of offences of manslaughter, it is not easy to think of worse examples. Given that the maximum available sentence was 20 years imprisonment, and given the prolonged and brutal beating administered by the appellant upon his de facto spouse, a conclusion that the sentence imposed at first instance was manifestly inadequate cannot be said to have been wrong.’
The appellant did not submit that ‘Aboriginality per se warrants leniency’ (see at [47]). Rather, the appellant contended that social and economic issues commonly associated with Aboriginal communities affected the appellant and that these should have been treated as mitigating factors. He also contended that he was likely to receive traditional Aboriginal and Torres Strait Islander punishment when released from prison and that he was ‘willing, and indeed anxious’ (see at [49]) to subject himself to this payback. He submitted that this should have received greater significance as a mitigating factor.
In dismissing these arguments, the Court noted that while mitigating factors such as social disadvantage need to be afforded appropriate weight in sentencing, this cannot result in the imposition of a penalty which is disproportionate to the gravity of the offending. In particular, the Court noted at [53] – ‘To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity’ and ‘Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.’
The Court also addressed the argument that general deterrence has less significance in relation to crimes which are not premeditated in the context of social disadvantage. In dismissing this assertion, the Court noted that the criminal law is not limited to the ‘utilitarian value of general deterrence’ and stated that the obligation of the State is ‘to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence’ (see at [54]). Furthermore, the gravity of the offending in this case was extremely high - see at [55] –
‘A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.’
In relation to the appellant’s alcohol addiction, McLure P held that this factor would increase the weight to be given to personal deterrence and community protection. The joint majority of the High Court agreed and noted that the fact the appellant was affected by an environment of alcohol abuse should be taken into account in assessing personal moral culpability, but this has to be balanced with the seriousness of the offending. See further at [57] where the majority of the High Court said– ‘It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.’
In relation to the relevance of traditional Aboriginal and Torres Strait Islander punishment, the High Court’s disposition was that the appellant’s willingness to submit to this punishment was not a relevant consideration in sentencing. However, the first instance judge did take it into account, which was not challenged in the Court of Appeal. While the joint majority of the High Court did not offer a conclusive opinion, they noted that the courts cannot condone the commission of an offence or ‘the pursuit of vendettas’ and held that the appellant did not suffer injustice because the prospect of traditional punishment was given only limited weight (see at [61]-[63]).
Bell J dissented. Her Honour held that it was open to the primary judge to reach the sentence that he did, based on comparable authorities. Bell J was also critical of the practice of giving too much weight to the maximum penalty, given the wide variety of circumstances in which manslaughter convictions can arise. Her Honour stated that a sentence well short of half the maximum penalty does not of itself give rise to legal error.
Charge/s: Assault occasioning bodily harm.
Appeal Type: Appeal against conviction.
Facts: Mr Roach was convicted of assault occasioning bodily harm of his female partner. At trial, Howell DCJ admitted evidence of previous (uncharged) assaults that Mr Roach committed on the complainant during their relationship. The relevant Queensland provision—s 132B of the Evidence Act 1977—applies to proceedings for assault occasioning bodily harm and provides that ‘[r]elevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding’. However, s 130 of the Evidence Act 1977 gives the judge power to exclude otherwise admissible evidence if it is deemed unfair to the accused to admit.
Issue/s: Whether the trial judge should have applied the test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and whether ‘viewed in the context of the prosecution case, there is a reasonable view of [the relationship evidence] which is consistent with innocence’. Only if there is no reasonable view, can the evidence be admissible because its probative value outweighs its prejudicial effect on the accused.
The appellant argued that in considering whether to admit evidence under s 132B, the trial judge ought not to admit that evidence if there was a reasonable view of that evidence consistent with innocence (‘the rule in Pfennig’). The appellant argued that the rule in Pfennig recognises the prejudicial effect of evidence used to prove a propensity of the accused ("propensity evidence"), and applies at common law to propensity evidence as a measure of the probative force of that evidence. (see Roach v The Queen [2010] HCATrans288 (5 November 2010)).
Decision and Reasoning: The appeal was dismissed. French CJ, Hayne, Crennan and Kiefel JJ of the High Court held firstly that s 132B has a ‘potentially wide operation’. Section 132B contemplates evidence of other acts of domestic violence throughout the relationship being admitted. The section could also be used to admit similar fact evidence to prove the accused’s propensity to commit similar crimes. The Court found it could also be used to admit other types of evidence including evidence of a person’s state of mind, evidence of the circumstances of the crime or to provide context to the history the relationship. It could also be used as evidence in a provocation or self-defence case, or where the offender is a victim of domestic violence. (See at [30]-[31]). The Court then held that the Pfennig test has no application to the common law residual discretion enshrined in s 130. As such, the test of admissibility under s 132B is whether the evidence is relevant, which is subject to the exercise of the discretion preserved in s 130.
The purpose of admitting the evidence here was not to show a propensity of the accused (re the rule in Pfennig); rather, the evidence:
‘was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear "out of the blue" to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury’ at [42].
The High Court noted the permissible ambit of ‘relationship evidence’, and the need for clear directions for juries about the use of such evidence and the purpose for which it is tendered:
[45] In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant's account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant's conduct in relation to the alleged offence intelligible and not out of the blue.
[47] The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true.
[48] The directions in this case were sufficient. At the conclusion of the evidence the trial judge directed the jury of the need to exercise care and that it would be dangerous to convict on the complainant's evidence alone unless they were convinced of its accuracy. His Honour told the jury that the history of the relationship between the complainant and the appellant had been led "for a very specific purpose" and that they must be "very, very careful in relation to the limited use that [they] may make of such evidence." He explained how evidence could be used as evidence of propensity and directed them that they were not to use the evidence in that way. His Honour informed the jury that the evidence was led so that the incident charged was not considered in isolation or in a vacuum but "to give [them] a true and proper context to properly understand what the complainant said happened on the 13th of April 2006."
Hearing: Appeal against decision to allow amendments to statement of claim.
Facts: ANU applied for an adjournment at trial to make substantial amendments to its statement of claim against Aon. The adjournment was granted and the primary judge allowed the application to amend the statement of claim. Aon appealed against the decision.
Decision and Reasoning: This case did not concern family violence but contained a number of relevant statements regarding adjournments. French CJ referred to the decision in Sali v SPC Ltd, which concerned the refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, the High Court held there ‘that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider ‘the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties’’ (see [26]). Brennan, Deane and McHugh JJ went on to say:
‘What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources’.
Toohey and Gaudron JJ dissented in the result but acknowledged that:
‘The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard’.
In the present case, French CJ stated at [27]:
‘The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn’.
Charge/s: Murder
Appeal Type: Appeal against conviction.
Facts: The appellant and her son were jointly tried in the Supreme Court of Victoria for the murder of her husband Mr Osland (the appellant’s son’s step-father). The jury convicted the appellant but was unable to reach a verdict with respect to her son. Her son was later retried and acquitted. The prosecution case was that the appellant and her son planned to murder her husband. The appellant mixed sedatives with her husband’s dinner in sufficient quantity to induce sleep within an hour. The appellant’s son later completed the plan by hitting Mr Osland on the head with an iron pipe while he was asleep. He and the appellant then buried Mr Osland in a grave they had earlier prepared. At trial, the appellant and her son relied on self-defence and provocation raised against ‘an evidentiary background of tyrannical and violent behaviour by Mr Osland over many years’ which had allegedly been ‘escalating in the days prior to his death’ (at [4]). The prosecution accepted that Mr Osland had been violent in the past but maintained that this behaviour had ceased well before he was murdered. The appellant raised expert evidence of the ‘battered woman syndrome’ (BWS) in support of her case. A psychologist’s evidence indicated that the appellant’s relationship with her husband was ‘consistent with it being a battering relationship’ (at [50]).
The psychologist outlined the general characteristics of battered women as follows (at [51]):
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was dismissed by majority (Gaudron and Gummow JJ dissenting). However, all members of the Court were unanimous in holding that the trial judge’s directions with respect to ‘battered woman syndrome’ (BWS) were appropriate.
Gaudron and Gummow JJ:
“Expert evidence is admissible with respect to a relevant matter about which ordinary persons are "[not] able to form a sound judgment … without the assistance of [those] possessing special knowledge or experience in the area" and which is the subject "of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience"” (at [53])
“…there may be cases in which a matter of apparently slight significance is properly to be regarded as evidence of provocation when considered in light of expert evidence as to the battered woman's heightened arousal or awareness of danger. And evidence of that may also be relevant to the gravity of the provocation, as may the history of the abusive relationship.” (at [55])
“So, too, expert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. And, of course, the history of the particular relationship may bear on the reasonableness of that belief.” (at [56])
“…there is an obligation on counsel to make clear to the jury and the trial judge the precise manner in which they seek to rely on expert evidence of battered wife syndrome and to relate it to the other evidence and the issues in the case. In circumstances where evidence of battered wife syndrome is given in general terms, is not directly linked to the other evidence in the case or the issues and no application is made for any specific direction with respect to that evidence, it cannot be concluded that the trial judge erred in not giving precise directions as to the use to which that evidence might be put.” (at [60])
Callinan J (while agreeing that the directions with respect to BWS were appropriate) held that to adopt a new and separate defence of BWS ‘goes too far for the laws of this country’ (see at [239]). His Honour also noted that these issues could be matters for expert evidence as well as matters of common sense for a jury to decide with the assistance from the trial judge.
McHugh J did not make any comments on BWS.
Kirby J:
His Honour discussed the relevance of the BWS defence in abusive relationships. His Honour was of the opinion that the term should not be restricted to women because there may be situations where men are the victims such as similarly abusive same-sex relationships, and ‘unlike conception and childbirth, there is no inherent reason why a battering relationship should be confined to women as victims’ (at [159]).
His Honour was broadly supportive of BWS evidence but did note some controversies around it and was somewhat critical of it: “…it appears to be an “advocacy driven construct” designed to “medicalise” the evidence in a particular case in order to avoid the difficulties which might arise in the context of a criminal trial from a conclusion that the accused's motivations are complex and individual: arising from personal pathology and social conditions rather than a universal or typical pattern of conduct sustained by scientific data’ (at [161]).
Further, he was critical of the term itself and stated it should not be used. He was also aware that the syndrome was ‘based largely on the experiences of Caucasian women of a particular social background’ (whose) ‘”passive” responses may be different from those of women with different economic or ethnic backgrounds’ (at [161]).
Ultimately however, his Honour was supportive – ‘Although BWS does not enjoy universal support, there is considerable agreement that expert testimony about the general dynamics of abusive relationships is admissible if relevant to the issues in the trial and proved by a qualified expert. The greatest relevance of such evidence will usually concern the process of "traumatic bonding" which may occur in abusive relationships’ (at [167]).
Proceedings: Appeal against custody order.
Facts: The trial judge made an order giving the wife guardianship and custody of the child. The wife alleged that the father had sexually abused the child and that the child’s welfare would be put at risk in allowing the father custody. The trial judge was not satisfied that the father had abused the child. However, His Honour considered that there was a possibility that the child had been sexually abused by the father. Accordingly, in the interests of the child, His Honour held that he should eliminate the risk of such abuse by denying access to the father. The father appealed this decision.
Issue/s: What is the correct approach in dealing with sexual abuse allegations and unacceptable risk?
Reasoning/Decision: The appeal was dismissed. The approach to be taken in these matters is not one of competing rights of the parents or ever purely a finding for or against either based on the evidence in support of the allegations. The approach is to determine on all of the evidence what is in the best interests of the child.
The Court concluded and held at [25]:
‘Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm”, “an element of risk” or “an appreciable risk”, “a real possibility”, a “real risk”, and an “unacceptable risk”. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse’.
With regards to the consideration of risk, it is in “achiev[ing] a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. A finding of sexual abuse need not be made to make a finding of unacceptable risk.
Charges: Murder.
Appeal Type: Application for special leave to appeal against conviction.
Facts: The facts of this case were summarised concisely by Martin CJ (with whom Pullin JA and Hall J agreed) in O’Driscoll v The State of Western Australia [2011] WASCA 175 (10 August 2011) [DT1] at [26] as follows -
‘[T]he appellant was convicted of the murder of his wife by shooting her in the back of the head. A critical issue at trial was whether she was deliberately shot or whether the gun had discharged by accident. The Crown led evidence that the deceased said to the accused, in the presence of other witnesses, 'I know you want to kill me for my money' and 'I know you want to kill me, why don't you get it over with'. These statements were admitted by the trial judge, subject to a direction that the jury should not treat them as evidence of the state of mind of the accused.
Issue/s:
Decision and Reasoning: The Court unanimously dismissed both grounds of appeal and held that the evidence was admissible.
Barwick CJ noted at [3] that, ‘The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone.’ Evidence of the ‘nature of the current relationship between the applicant and his wife’ was relevant to the appellant’s guilt. Evidence of a ‘close affectionate relationship’ could be used by the jury to conclude that the appellant was not guilty. Evidence of hostility in the relationship could be used by the jury to conclude that the appellant’s argument that the shooting was accidental lacked credibility. His Honour did concede that if the deceased’s statements ‘had not been part of the evidence of a quarrel of a significant kind’ ([8]), they would have been inadmissible. However, in this case the statements were part of a ‘quarrel’ between the parties and were indicative, ‘of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached’ (see at [8]). More generally, his Honour concluded that ‘evidence of the relations of the accused with others’ is admissible not only in cases where it establishes motive, though this may be the most common way in which it is used. This type of evidence could also be admissible if it explains an ‘occurrence’ or assists in the choice between two explanations of an ‘occurrence’ because such evidence satisfies the test of relevance (see at [7]).
Menzies J (with whom McTiernan J and Walsh J agreed) reached the same conclusion – ‘To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife’(see at [4]).
Proceedings: Petition for divorce on the ground of adultery.
Facts: The applicant sought a dissolution of his marriage to his wife on the ground of her adultery.
Issue/s: What is the standard of proof required in civil matters?
Decision and Reasoning: In explaining the civil standard of proof, Dixon J stated that ‘when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence…It cannot be found as a mere mechanical comparison of probabilities’. His Honour went on to explain that the standard is one of ‘reasonable satisfaction’:
‘But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency’.
Issue: Application for leave to appeal, application to adduce further evidence re criminal history and family violence.
Grounds:
Facts: The appellant fled New Zealand with the assistance of New Zealand Police with her two children, in mid-2019 she believed the children’s father posed a real risk to her and the children. The father had an extensive criminal history which demonstrated "a pattern of increasingly serious charges against the father (not all of which resulted in convictions), domestic violence offences and breaches of bail and parole" [29]. The mother gave evidence of her intention to remain separated from the father but argued that the extensive history of repeated reconciliations between them meant the court should not have accepted that her intention to remain separated would ensure the children’s safety if they were returned to New Zealand. The father invoked the Hague Convention on the Civil Aspects of International Child Abduction (the ‘Abduction Convention’) to secure the children’s return [1]. The application for recovery was made by the Secretary of the Department of Communities and Justice (NSW) as the "Central Authority" under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations"), an Independent Children’s Lawyer (ICL) was appointed and argued at first instance against the Hague Convention Application being granted, but the judge accepted the mother’s evidence she would not resume cohabitation with the father and the application was granted. The mother sought leave to appeal and applied to lead more evidence of the father’s criminal history and family violence history. The ICL did not participate in the application for leave to appeal despite the order for their participation remaining on foot.
Judgment: Leave to appeal granted. Appeal allowed on basis of the intolerable situation defence (not raised as a ground of appeal but by the Court).
Both Ground 1 and Ground 2 contended that the primary judge erred in finding that there is no immediate prospect of a resumption of the parental relationship. This error was based on the judge’s acceptance "of the mother’s evidence that she had permanently separated from the father and had taken necessary steps to keep him away from her and the children" [51]. In support of these contentions, the mother submitted that the primary judge should have considered her history of separation and reconciliation with the father and instead concluded that it was thus unsafe to assume she would cooperate with attempts to keep her and the children safe. The Court noted that this position was inconsistent with the evidence submitted by the appellant at trial and concluded that "given the manner the case was run at trial" the grounds could not succeed [534].
Ground 3 contended that the primary judge erred in assuming that the protection orders against the father in New Zealand would remain in place. As the mother did not submit as part of her case at trial that she would agree to the father’s application to discharge these protections orders being granted, nor was there evidence that the father’s application had any prospect of success, the third ground was "not made good" [55].
Ryan, Aldridge and Watt JJ all, in separate judgements, granted leave and allowed the appeal after considering the intolerable situation defence under reg 16(3) of the Family Law (Child Abduction) Regulations 1986 (Cth). It was noted that the father’s previous convictions and violence, the pattern of parental separation and reconciliation, and the totality of the circumstances in which the children would find themselves if they were to return to New Zealand were unsafe and intolerable [63].
Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the matter: [78] ‘We have been troubled by what occurred in this case and it is timely to mention the importance of adherence to Model Litigant guidelines. The NSW Guidelines, which apply to the Central Authority, requires more than merely acting honestly and in accordance with the law and court rules. Essentially, the guidelines require that the Central Authority acts with complete propriety and in accordance with the highest professional standards. Relevantly, this includes not requiring the other party to prove a matter which the state or an agency knows to be true.’
[79] ‘In this case, the application disclosed the father’s final term of imprisonment in NSW. Even though the Requesting Authority knew that the father was permanently banned from Australia, had effectively been deported and had lived in New Zealand for many years, it would seem that no attempt was made to establish his criminal antecedents or the involvement (if any) of child protection agencies in New Zealand in relation to his other children. The same applies in NSW. To be fair, the Requesting Authority and the Central Authority disclosed the mother’s application for a protection order and thereby flagged that, on the mother’s case, serious risk issues arose.’
[80] ‘It is our understanding that systems are in place in NSW which enable the Central Authority to access/request information from the NSW Police. We assume New Zealand operates in the same fashion. Thus, the Requesting Authority and Central Authority were able to examine and present the father’s complete criminal history and an entire set of COPS records. Instead, it was left to the mother and the ICL to gather records from New Zealand and domestically. It is no small thing to obtain records from abroad, particularly when time constraints are tight. Fortunately, the mother was granted legal aid, but, what we ask, if she was not? How would this young mother on social security benefits have managed to place this vitally important evidence before the court? The prospect that she would not have been able to do so is obvious.’
Case type: Appeal against interim parenting orders as to with whom the child, X, should live.
Facts: The parties separated in 2015 when X was around 6 months old. In 2015, the parties entered into a parenting plan. In early 2019, the mother and X moved from Town A to live in Sydney. The mother did not tell the father she was leaving Town A because she was afraid of what he might do to her or X, and said that, during the relationship, the father was aggressive and abusive towards her. After leaving Town A, the parties made arrangements for X to spend time with the father until March 2019. At the end of that time, the father refused to return the child to the mother. The primary judge ordered that the parties have equal shared parental responsibility of X and that if the mother returns to live in Town A, then X will live with her, but that if the mother does not return to Town A, then X will live with the father. At the heart of the Court’s decision was the denunciation of the mother’s unilateral decision to move away from Town A.
Issue: Whether it was in the best interests of X to live with his mother in Sydney or with his father in Town A?
Held: The Full Court of the Family Court of Australia allowed the appeal against the orders of the primary judge. Their Honours found that the primary judge did not engage in a careful consideration of the evidence, as he failed to take into account the mother’s evidence that she did not tell the father she was moving because she feared him. The Full Court was also perplexed as to why the father’s unilateral decision not to return X to his mother was not denounced in the same way as the mother’s unilateral decision to relocate without telling the father. The Full Court also found that the primary judge misapprehended the nature and extent of the family violence and misapplied legal principles.
At [45], the Court found:
“The allegations of family violence, together with the mother’s concern as to the father’s alcohol abuse were matters on which she relied to demonstrate that it would not be in the child’s best interests to live with the father and his Honour ignored a fundamental integer of the mother’s case which was that there was a risk to the child from being exposed to family violence. The orders she sought for time would however, provide for the maintenance of the child’s relationship with the father while he remained living with his mother. His Honour’s approach was erroneous in principle and to the facts.”
Case type: Appeal.
Facts: The husband was a tradesman and operated a business, called the Keating Group, through a complex trust and corporate structure. The Group traded throughout the marriage, and since the parties separated in 2010, the husband managed and operated it. Its value and dramatic increase in the husband’s director loan account to the Group were key issues in the proceedings. The primary judge separated the parties’ property into 2 pools: non-superannuation assets and property and liability, and superannuation. The non-superannuation property was worth $1,784,854; however as a result of the husband’s indebtedness to the Group and expenses associated with a failed taxation minimisation scheme, liabilities exceeded assets by $804,805. The husband’s and wife’s contributions were assessed at 70% and 30% respectively. Their superannuation contributions were assessed as equal. No adjustment was made under section 75(2) of the Family Law Act 1975 (Cth).
The wife was ordered to retain her personal possessions, her bank account, car and $12,000 previously received by way of partial property settlement. She also received a superannuation split of $119,000 and 50% of any payment received as a result of a pending class action relating to the tax scheme. The husband retained the Group, which had an annual turnover of $4 million and which provided him with a superior standard of living. He remained personally liable for his loan account and debts due in relation to the tax minimisation scheme.
The wife alleged that she was subject to family violence at the hands of the husband during and after their relationship. Her evidence included that the husband broke her nose, beat her on an overseas trip until she passed out, and that she suffered serious bruising and broken ribs. The primary judge dismissed all incidents of violence towards the wife except that which resulted in her broken wrist, apparently because her evidence was uncorroborated ([41]).
Issue: The wife appealed the property settlement orders on 7 grounds. Relevant grounds of appeal include that:
Held: The Full Court allowed the appeal against the property order.
Grounds 1 and 5.
At [23]-[24], Ainslie-Wallace and Ryan JJ held –
‘[H]is Honour went no further than to say that the wife was ‘aware’ that the investment scheme was unsuccessful…The issue was whether she knew of and supported the husband’s investment in the scheme to the extent that she should shoulder half of the resulting debt. In the result, his Honour’s decision to fix both parties with responsibility for the debt was made ‘…because [the debt] actually exists…’
‘His Honour’s finding that the wife was ‘aware’ that the investment scheme failed falls considerably short of engagement with the reasons why the wife said she ought not to be fixed with joint responsibility for the debt. The same applies to the finding that the debt ‘actually exists’. Although parties would ordinarily be expected to take the good with the bad, there was no active engagement by the primary judge with the wife’s case that the husband should bear sole responsibility for the debt and why.’
Given the primary judge’s failure to engage with the wife’s case on these matters, the Court held that Grounds 1 and 5 had been established.
Ground 4.
The wife argued that she was exposed to significant family violence by her husband during and after the relationship. She sought an adjustment under the principle in Kennon & Kennon (1997) FLC 92-757 where it was held that family violence, which is demonstrated to have a significant adverse impact upon one party’s contributions to a marriage, is a relevant consideration to the assessment of contributions within section 79. According to the Court in Kennon, it is necessary to adduce evidence to prove the incidence and effect of domestic violence, and to enable the court to quantify the effect of that violence upon the parties’ capacity to ‘contribute’ under section 79(4) ([37]). The Court in Kennon also stated that family violence will be relevant if the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party ([36]).
However, at [33] the Full Court held –
‘The fact that the wife gave evidence of family violence during periods when the parties were separated and after they separated for the last time ought not to have minimised the significance of her evidence of that which occurred during the relationship.’
The Court went on to state that Kennon should not be interpreted as laying down a precise rule that ‘post-separation family violence to a spouse who seeks to continue to contribute to the welfare of the family as a parent is irrelevant’. The reference to ‘quantification’ in Spagnardi & Spagnardi [2003] FamCA 905 appeared ‘to elevate the need for an evidentiary nexus or ‘discernible impact’ between the conduct complained of and its effect on the party’s ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence.’ Their Honours stated that perhaps the use of the word ‘quantification’ in Spagnardi was ‘infelicitous’ when in truth, the Court ‘was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions’ ([39]). Their Honours also affirmed the well-settled view that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted ([42]).
The Court could not conclusively determine whether the primary judge’s decision not to make a ‘Kennon’ type adjustment was wrong due to the absence of a transcript ([43]). While Kennon appears to remain sound law, its considerations apply to ‘a relatively narrow band of cases’ ([67]).
Proceedings: Father’s appeal against interim parenting orders, including a recovery order.
Facts: The mother applied for, and was granted, a recovery order for the return of the child after the father failed to return the child to the mother following fortnightly weekend contact. The father argued that the mother physically abused the child and the mother alleged that the father engaged in a pattern of emotional abuse such as to constitute family violence by persistent allegations that the mother physically abused the child.
Issue: Whether the primary judge erred in failing to appoint a single expert before making a recovery order.
Judgment: Appeal dismissed. Interim orders that the child reside with the mother.
In finding that the primary judge did not err in failing to appoint a single expert before making interim orders including a recovery order after the father retained the child Ryan J noted (Johnston and Thackray JJ agreeing):
Matter: Mother’s appeal against parenting orders that the children B and C reside with the father, he have sole parental responsibility and the mother have limited supervised contact, to progress to alternate weekends and half the school holidays.
Facts: Earlier orders made in 2010 had provided for the children to reside with the mother and have contact with the father. In 2014 and 2015 the children only spent time with the father intermittently. B, in particular, became reluctant to spend time with the father, and in 2016 twice avoided contact by running away from school. The trial judge found that the children were “at risk of longer-term psychological harm in the mother’s household” and would not have any real relationship with their father if they remained in the mother's care [4]. The Independent Children’s Lawyer (‘ICL’) supported the father’s position.
Grounds: The mother’s grounds of appeal were “difficult to follow and understand” and her submissions “did not seek to explain why the primary judge erred but were rather a lengthy and detailed assertion of wrongdoing by his Honour.
Decision: ICL granted leave to appear. No error established and appeal and applications in an appeal dismissed. Mother to pay the father’s costs of the appeal.
Parental alienation was considered in circumstances where the mother appealed against parenting orders on the basis that orders had been made with insufficient consideration of the alleged family violence of the father and the expert witnesses were biased (the Full Court - Bryant CJ, Strickland & Aldridge JJ).
[187] The primary judge was at pains to avoid the use of labels such as “parental alienation” or “enmeshment”. Speaking of the Associate Professor’s evidence, which included a discussion of these concepts, his Honour said:
The issues that he raises with respect to the concept of alienation as a syndrome are well set out in the literature. However, to become focused upon the academic discussion of alienation and whether or not it is a syndrome – and it seems clear that it is not – becomes more of a distraction than anything in this individual case. What is necessary in this case is a careful analysis of the evidence of the parties, the circumstances confronting these two children in each of the households and the behaviours exhibited in order to ascertain what is going to be in their best interests. (quoting from the primary judgment at [70])
[192] … There is therefore no need for us to consider whether or not the evidence justified a finding of parental alienation or enmeshment or whether or not they are valid concepts.
Proceedings: Appeal - parenting orders.
Facts: The trial judge made final parenting orders which included an order that the mother have sole parental responsibility for the child of the mother and the father. In making these orders, the trial judge found that the father’s behaviour towards the mother amounted to ‘family violence’ within the meaning of s 4AB of the Family Law Act. As a result of this family violence, the presumption of equal shared parental responsibility for the child in s 61DA of the Act did not apply: s 61DA(1). Further, even if the presumption had applied, the trial judge held that it would still not have been in the best interests of the child for the parents to have equal shared parental responsibility: s 61DA(4). The father appealed against these orders.
Issue/s: Some of the grounds of appeal included –
Reasoning/Decision: The appeal was dismissed. The Full Court held that the father’s appeal was always doomed to fail because it rested on a misconceived interpretation of s 4(1AB) of the Act. Relevant to the proceedings, the combined effect of s 4(1AB)(e) and s 4(1AC) was that the child was a member of the father’s and a member of the mother’s family. It was never in issue in the proceedings that the mother resided with the child at the material times, the child being a member of the father’s family. Thus, by operation of subparagraph (h) of s 4(1AB), the mother was a member of the father’s family. Further, within the meaning of subparagraph (i) of s 4(1AB) each of the mother and the father, respectively and alternatively, ‘is or has been a member of the family of a child of [the other]’. Accordingly, the father had engaged in family violence against ‘a member of his family’ (see [17]-[24]).
The father’s contention that the trial judge erred in rebutting the presumption of equal shared parental responsibility because the father had committed family violence was therefore dismissed. As demonstrated above, the contention that there was no family violence in this case because the mother was not a member of the father’s family was based on an erroneous reading of the Act.
Additionally, while the trial judge was correct to apply s 61DA(2) and conclude that the presumption did not apply, it was also well within her discretion to conclude that even if the presumption had applied, it would have been rebutted in the child’s best interests: s 61DA(4).
The father also argued that the mother wasn’t fearful, and so the finding of family violence was erroneous. For this argument to be effective, the words of s 4AB(1) would need to be read conjunctively, not disjunctively, as the section is worded. The family member being ‘fearful’ is one possible manifestation of family violence, but is not necessary to make a finding of family violence.
Appeal type: Appeal against interim parenting orders.
Facts: At the contested interim hearing, the mother made allegations of significant family violence perpetrated by the father in the presence of the children. In light of this and one of the children’s epilepsy and developmental delay, she sought an order directing the father’s care of the children to be supervised by another adult. The father disputed the allegations of family violence. In making interim parenting orders, the trial judge said (see [23]-[27]):
‘The evidence lead [sic] as to alleged family violence made by each parent is not capable of sustaining a finding at this interim stage of proceedings. In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.
[…]
Findings with respect to whether either party perpetrated family violence cannot be made at this interim stage given the conflicted evidence. The civil standard of proof is met by neither.
As such and for the same reasons the need for the father’s time with the children to be either in the “presence of” or “supervised by” another adult is not made out’.
Issue/s:
Reasoning/Decision: The appeal was allowed. The Court noted at [36] that, ‘[i]t is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial’.They continued at [39]-[40]:
‘In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
…Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH)’.
The Court held that while the trial judge was correct in stating that, at that point, he could not make findings on the disputed allegations, he erred by ignoring the allegations of family violence and finding that the presumption of equal shared responsibility applied. His Honour further erred in his treatment of the allegations of family violence by suggesting with that comment ‘given no other evidence’ that the mother’s allegations required corroboration or objective support and erred in incorrectly referring to the civil standard of proof (see [41]-[45]). Grounds two and three were also successful for similar reasons (see [60],[65]).
Proceedings: Appeal of interim procedural orders in relation to parenting proceedings
Facts: The parties reached agreement in November 2010 that the children live with the mother and spend time with the father. Almost a year later the mother was “psychiatrically unwell” and the children began to live with the father and spend time with the mother. After many years of litigation, including the appointment of an ICL, one child had returned to live with the mother and was to spend time with the father. The matter was listed for trial and an updated family report was ordered.
One ground of appeal was that “[t]he trial judge failed to give sufficient weight to the mother’s evidence of family violence and did not accept the mother’s evidence of it because she had not produced “third party evidence”.
Issues: In the context of apprehended bias, was the trial judge correct in not determining issues of family violence at an interim hearing?
Reasoning/Decision: The Full Court found that the mother’s assertions regarding the trial judge’s consideration of the evidence of family violence were “unsupported by the transcript”. In addition, her Honour was correct in not making findings “until such time as the evidence had been tested” – something which would happen at the final hearing of the matter. Despite the grounds purportedly being a challenge to the trial judge’s “failure to recuse herself”, it was apparent to the Full Court that they were really a complaint that the trial judge did not accept the mother’s evidence, including that of family violence, at the interim stage of proceedings.
The appeal was dismissed.
Proceedings: Appeal against parenting and property orders
Facts: There is one child of the marriage. The parties married in 2002 and separated in late 2008/ early 2009, continuing to live under the same roof until November 2009. The mother claimed that up until November 2004 she was the primary carer for the child and the father worked. In November 2004 the mother went back to work and the father became the primary care-giver for the child. The child had health issues which would require visits to the hospital. The father consulted medical practitioners about the child’s weight and would weigh the child after time in the mother’s care. Around “September 2009 the husband arranged for ongoing surveillance of the wife”. In October the mother became aware of the surveillance and asserted stress and digestive issues as a result. This also affected the child. A consultant psychiatrist provided a Family Report to the Court on 9 January 2011. This report included discussion of risk associated with physical violence during the marriage in addition to the conflict and hostility between the parties in association with the child’s medical issues. It also included risk to the child in regards to the father’s obsession with “health and welfare”.
Issues: Whether the judge erred in attributing significant weight to the family report.
Whether the judge should have made a finding in relation to family violence.
Reasoning/Decision: Despite the father having opportunity to cross-examine the report writer at trial, and opportunity to raise his concerns about the report with the writer, and opportunity for the father to submit to the judge that the report be given little weight, no such cross-examination was forthcoming at trial, and no like submission was made to the trial judge. It was determined that not only was the judge entitled to rely on the expert report as he did, the father was not entitled to make his complaint about its handling to the appeal court.
In the “background facts” of the judgment the trial judge discussed allegations of family violence made by the mother but made no finding that the violence, as alleged, had occurred. The trial judge was not in error by not making findings – “A court need only determine those facts that are necessary for the determination of the issues between the parties”.
Case type: Appeal against final parenting orders.
Facts: The parties had three children together and separated in 2006. In March 2010, Magistrate Coates made interim parenting orders. The father unsuccessfully appealed against those interim orders (see Slater & Light (2011) 45 Fam LR 41; [2011] FamCAFC 1 (11 January 2011)).
Subsequently, final orders were made providing that the mother have sole parental responsibility for the children, that the children live with the mother and spend supervised time for two hours per fortnight with the father. The order for supervised time was for an indefinite duration (see Slater & Light [2011] FMCAfam 1021 (22 September 2011 ) ([1]).
Magistrate Coates’ orders turned on a finding that the father posed an unacceptable risk of emotional harm to the children ([2]). The emotional harm was said to take the form of imposing on the children negative views of their mother, alienating the children from their mother and a chaotic regime for the children ([22]).
Issues: Whether Magistrate Coates erred in:
Decision and Reasoning: The appeal was partially allowed. The Court held that the Magistrate did not err in finding that the father posed an unacceptable risk of harm to the children ([69]). This conclusion was open on the psychiatric reports
However, the Court found that the Magistrate erred in ordering an indefinite supervision order, when this was not requested by either the mother or the Independent Children’s Lawyer ([69]-[70]).
The issue of the time and the circumstances in which the father should spend time with the children be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Coates (see Order 3).
Appeal type: Appeal against parenting orders and property orders.
Facts: Prior to the trial, the three children of the relationship lived with the father. In parenting and property proceedings, the Federal Magistrate concluded that the father had been physically and verbally aggressive to the mother and that the father had alienated the children from the mother. The Federal Magistrate accordingly made orders for the children to live with their mother. In reaching this conclusion, the Federal Magistrate referred extensively to external literature. The father appealed against this decision.
Issue/s: One of the grounds of appeal was that the magistrate failed to accord the husband natural justice/procedural fairness because the husband was not given the opportunity to cross-examine, respond to or introduce contrary evidence in relation to a number of academic opinions relied upon by the magistrate in reaching his decision.
Reasoning/Decision: The appeal was upheld and the matter remitted for hearing. The Full Court held that the Federal Magistrate placed considerable reliance on the academic literature on the topic of alienation of children. None of it was introduced into evidence as opinion evidence, and accordingly no consideration was made by the Federal Magistrate as to whether to exclude the evidence and, if not, to consider what weight to give it. Accordingly, none of this evidence was able to be tested by the father nor was it the subject of submissions or contrary evidence. There was therefore a failure to afford the father natural justice and procedural fairness (see [118]-[121]).
Appeal type: Appeal against parenting and property orders.
Facts: The parties had twins. Serious incidents of family violence occurred during their relationship and after separation. At the hearing of the trial, the father was in prison having been convicted of aggravated assault on the mother. Mother granted sole parental responsibility and the children to live with her. The father was to have supervised time (these orders were interim). Property – 25% adjustment re Kennon.
Issues: In making findings regarding family violence and its effect on the mother and children, did his Honour impermissibly take account of extraneous material? Did his Honour err in making a “Kennon type adjustment”?
Decision/Reasoning: The Court held that despite including reference to the mother’s conduct in the courtroom when faced with the father and the discussion about a report, the passages of which were included and relied upon in Re: L (Contact: Domestic Violence) [2000] 2 FLR 334, a decision of the England and Wales Court of Appeal (Civil Division). They were on the public record and so “materially different from matters appearing in reports” which have not yet undergone judicial consideration. While this alone does not guarantee that procedural fairness is achieved in circumstances where the parties were not on notice about the report and did not have opportunity to cross-examine accordingly, the Full Court held that “anything said in Re: L was not necessary to establish the relevance of the findings” made by the Federal Magistrate.
Regarding the property settlement and the “Kennon type adjustment”, the Full Court found that while it represented the “top of the range” it did not “exceed the bounds of a reasonable exercise of discretion”. Regarding the violence that was perpetrated post-separation, the Full Court held it was correctly included by the Federal Magistrate and was a relevant consideration in determining whether the mother’s contributions as a whole were more arduous.
Matter: Hague Convention return order appeal.
Facts: The mother unsuccessfully opposed the father’s application for return of the children to New Zealand. There were ongoing parenting proceedings between the mother and father in New Zealand, where the mother conceded the children had been habitually resident for their whole lives. The current New Zealand orders (made following a hearing in which the mother alleged the father had abused the children and been violent towards her) provided that the children reside with the mother and have one and a half hours contact with the father each weekend. The mother’s new partner was violent towards her and the children were exposed to that violence. The mother fled New Zealand and returned to her native Australia after leaving her new partner. She gave evidence that the children were fearful to return to New Zealand due to concerns about her new partner.
Held: Appeal dismissed.
Bryant CJ, Finn and May JJ noted the first instance judge’s comments with approval:
“[i]n part, she relied on her own refusal to establish that a return of the children would place them in an intolerable situation”. Her Honour disposed of this aspect of the mother’s case by saying, correctly, in our view, that “[i]t is well established that, ordinarily, the objects of the Convention should not be frustrated by a parent’s refusal to return with children to their country of habitual residence”. [32]
Appeal type: Appeal against interim parenting orders.
Facts: The parties had three children together and separated in 2006. In March 2010, the Federal Magistrates Court made interim parenting orders. The effect of these orders was to allocate parental responsibility for the children solely to the mother, require the children to live with the mother and require the children to spend weekly supervised time with the father at a contact centre. The orders were made pending the preparation of a psychiatric report on the risk the father presented to the children. These orders radically altered previous arrangements, as the Federal Magistrate was concerned about the need to protect the children from physical or psychological harm that would arise from them being exposed or subjected to abuse, neglect or family violence. The father appealed against these orders.
Issue/s:
Decision/Reasoning: The appeal was dismissed. In dismissing the first ground of appeal, the Court held, amongst other findings, that if evidence of abuse or family violence is adduced at trial, the Court is obliged to deal with it. The Court must always critically assess the evidence placed before it in determining the issue (see [46]). It was also noted that a finding of family violence may be made in the absence of a Form 4 Notice.
The Court held that it was clearly open on the evidence for the Federal Magistrate to find that family violence had been perpetrated by the appellant.
In relation to the second ground of appeal, the appellant contended that the Federal Magistrate relied upon erroneous finding of family violence to then improperly find that the presumption of equal shared responsibility did not apply. The Court dismissed this argument by again noting that the finding of family violence was open to the Federal Magistrate (see [64]-[69]).
Note: final orders were subsequently made, but the finding of family violence was not affected (see Slater & Light [2013] FamCAFC 4 (5 February 2013)).
Proceedings: Appeal against parenting orders.
Facts: This was an appeal by the mother from parenting orders that challenged part of the process followed and some of the rulings made during the conduct of the trial. On the final day of the hearing, the self-represented mother sought to tender a 52 page document in response to the report of an expert witness.
Issue/s: One of the grounds of appeal was that trial judge failed to provide the mother with procedural fairness in not ascertaining the reason behind the preparation of this document and in not advising her that she may wish to seek legal advice before tendering the particular document, contrary to the litigants in person guidelines: Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001).
Reasoning/Decision: The appeal was dismissed as the mother here was not the victim of unfairness. Although this appeal did not relate to family violence, the Court relevantly observed that the Litigant in Person Guidelines were no more than guidelines.
See Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001).
Proceedings: Appeal against parenting and relocation orders.
Facts: The parties met online and were married in Belgrade. Their child, who had autism, was born in Belgrade. The mother and the son came to live in Australia with the father when the child was 20 months old. The parties subsequently separated, with the mother alleging that the father had perpetrated domestic violence and sexual assault against her. The father denied these allegations. In 2008, a Federal Magistrate made orders granting the mother sole parental responsibility for the child. The mother was also permitted to relocate to Serbia with the child and the father’s contact time with the child was reduced from weekly to possible annual contact. The father appealed against these orders.
Issue/s: One of the grounds of appeal was that the Federal Magistrate erred in accepting the mother’s uncorroborated evidence that domestic violence and sexual assault was perpetrated by the father on the mother.
Reasoning/Decision: This ground of appeal was dismissed but the appeal was allowed on other grounds. In dismissing this ground of appeal, the Court held that a positive finding may be made on the evidence of the victim without corroborating evidence. See [79].
The Court expressed concern at the manner in which the Federal Magistrate had expressed a finding of insufficient evidence re family violence. They were concerned that the Federal Magistrate had felt in some way constrained by law in being able to make a positive determination in relation to allegations of violence even if the evidence had satisfied her on the requisite standard that the violence occurred as alleged. See [95]-[96].
Proceedings: Appeal against parenting orders
Facts: The parties were together for approximately 7 years, separating in March 2006 – there were 2 children of the relationship. The mother had 6 children from previous relationships. The Federal Magistrate described their relationship as “extremely volatile”, ending in an incident of domestic violence. The Federal Magistrate made findings inter alia: that the parties were unable to effectively communicate with each other due to them being “aggressive, provocative … show[ing] a lack of maturity and complete absence of child focus”; that the mother used physical discipline on the children; and that on at least one occasion the mother’s behaviour at changeover was “appalling and did severely distress the children”. The family report included the opinion that the children “have positive attachments to both parents, but experience some trauma associated with the continuing conflict in their parents’ relationship”. Despite the conflict between them, the parties agreed to an order for equal shared parental responsibility. As such, the Federal Magistrate was obliged to consider equal time, or significant and substantial time with each parent. Orders were made that the children live with the mother 9 nights a fortnight and with the father for 5. The father appealed these orders.
Issues: Did the Federal Magistrate give appropriate consideration to the evidence and findings of family violence when making the parenting orders that he did?
Reasoning/Decision: The appeal was dismissed. The Full Court referred to the 2009 publication “Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged”, specifically Section F of the 2009 principles which sets out considerations where children are ordered to spend time with a parent where positive findings of family violence have been made against that parent.
The Full Court found that while they agreed with the argument of the mother’s counsel, that the discussion of weight in relation to family violence had been “clipped” they found that there was no appealable error established. The Federal Magistrate had evidence of both parties and their associates hitting the children, and that both parties were verbally and physically abusive of one another in the presence of the children. Despite acknowledging that the mother’s behaviour was, at times, worse than the father's, when taken in the context of the best interests of the children, the conclusion was that it was in their best interests to remain predominantly in the care of their mother.
Proceedings: Appeal against parenting orders.
Facts: Both parents were Aboriginal and Torres Strait Islander, and lived in the NT, one close to Darwin, one quite remote. There was family violence where the father would physically and verbally abuse the mother. On one occasion the paternal grandfather punched the father for hitting the mother. The mother had been the primary care giver of the children. At trial evidence was led about the communities in which each parent lived. The trial judge found that the children would have a greater connection to their father’s culture by living with him.
Issues: Whether the trial judge had adequately considered the evidence of family violence and its potential effects on the children.
Reasoning/Decision: The Full Court held that there was inadequate consideration of the risk to the children given the father’s history of violence and alcohol consumption. The lack of consideration of the evidence that the children had been primarily cared for by the mother, and that there was no evidence that her care was lacking was overlooked, was also an error. A finding was made by the trial judge that the mother’s parenting was reliant on others in the community, referring to it as “collectivist”. He based his finding on an anthropological report quoted in another judgment. There was no anthropological evidence that the mother’s community engaged in such “collective” parenting, and that the mother was not, herself, the children’s primary care-giver. The trial judge’s finding that the best interests of the children would be met by them living with their father cannot be sustained when evidence of the mother’s adequate care, the fact she was the primary care giver and the father’s violence towards the mother, is balanced against the finding of the cultural benefits to the children of living in the father’s community.
Proceedings: Appeal against residence and contact orders.
Facts: The proceedings involved competing applications for residence and contact to the child of the parties. The mother made allegations that the father sexually abused the child. While no finding of abuse was made, the Trial Judge did make a finding of unacceptable risk. On appeal, the father challenged the orders made for contact, in particular, the requirement that the contact be supervised.
Issue/s: The trial judge provided inadequate reasons supporting his finding of unacceptable risk of abuse.
Reasoning/Decision: Although this case did not relate to family violence, the Court made observations relevant to the assessment of unacceptable risk. Bryant CJ and Kay J held at [84] that:
‘There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper’.
Appeal type: Appeal against property orders.
Facts: The parties had two adult children and separated in 2000. The trial judge made a Kennon style adjustment in favour of the wife. His Honour held that the evidence clearly revealed that there had been some violent behaviour by the husband towards the wife. Although there was no explicit evidence from the wife as regards to the effect of the violence on her contributions, the trial judge accepted that the wife’s contributions must have been made significantly more arduous than they ought to have been because of the violence inflicted upon her by the husband.
Issue/s: One of the grounds of appeal was whether the trial judge erred in adjusting the wife’s contributions to account for the domestic violence perpetrated by the husband?
Reasoning/Decision: The appeal was allowed. Here, the evidence could not have properly led to a Kennon adjustment under section 79 (see [48]). In reaching this decision, the Court made a number of statements of principle, elaborating upon the decision in Kennon.
It was held that evidence of violence alone is not enough, but that the “violent conduct by one party towards the other” must be demonstrated to have an effect on contributions.
In addition, the Court also stated that the reference in Kennon to ‘exceptional’ cases should not be understood to mean rare. They adopted the trial judge’s comments that ‘the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. … It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernible impact’. (see [47]).
Proceedings: Appeal against parenting orders and division of property.
Facts: The parties had two children together. At trial, the mother made extensive allegations of physical, verbal and emotional abuse against the father, much of which the father conceded (see [38]). The trial judge made an order that the children should predominately be in the care of their father. Additionally, the trial judge rejected the wife’s submission that the division of property ought to be adjusted to 60/40 from 70/30 division on the basis of the decision in Kennon.
Issue/s: Some of the issues were –
Reasoning/Decision:
The Court held that the trial judge was ‘obliged to adjudicate the violence issue as raised by the wife and to make specific findings in respect of the course of conduct conducted by the husband in the course of the marriage so that he could properly assess relevant aspects of the behaviour of each of the parents in determining in whose care he should place the children’. However, from reading His Honour’s reasons for judgment, it was not clear that he considered and evaluated the relevant evidence and took all the relevant factors into account. The issues raised by the wife in the grounds of appeal could not be described as ‘pernickety or overly critical’ (AMS v AIF) when matters of such significant serious and prolonged violence were clearly raised and left virtually undiscussed in the judgment (see [32]-[53]).
Secondly, the Full Court found that, the trial judge did not attribute responsibility for the domestic violence to the wife: while the trial judge found the wife to have engaged in passive/aggressive conduct, His Honour indicated in the clearest terms that he was not condoning the husband’s conduct in response to such behaviour(see [54]-[57]).
Thirdly, the Full Court held that the application of the principles in Kennon is “not the equivalent of an award for damages”, but used to determine whether the husband’s conduct had the effect of making the wife’s contributions more arduous.
Proceedings: Appeal against parenting orders.
Facts: This was an appeal by the mother against orders made by the trial judge in relation to the residence, contact and other specific issues relating to the child of the parties’ relationship. The effect of the trial judge’s order was that the father was to have residence of the child and be responsible for the child’s day to day care, welfare and development; and that the mother was to have specified contact with the child. The mother was unrepresented for five days of the six day hearing. A claim by the mother of domestic violence at the hands of the father was raised but the trial judge did not accept the mother’s evidence. The trial judge instead made a number of adverse findings against the mother.
Issue/s: A major ground of appeal advanced on the Mother's behalf was that she did not receive a fair trial and that a new trial should be ordered. The gravamen of the Mother's case was that because she was a victim of domestic violence who was unrepresented at trial, she was unable to effectively meet the case of the Father and present her own case. As a consequence, and because the Mother suffered from a personality disorder, the trial judge made negative findings against her, and in particular against her credibility.
Reasoning/Decision: The appeal was allowed on the basis of further evidence tendered on appeal which contained detailed evidence of ongoing domestic violence by the husband, and reports from a psychologist and social worker providing evidence as to the effect of the domestic violence on the mother’s ability to conduct her case at trial. The Court held that if the evidence had been tendered before the trial judge, it would have produced a different result and the best interests of the child required a re-hearing.
Proceedings: Appeal against residence orders and property settlement.
Facts: The parties had two children. The trial judge made an order for shared residency of the children. The trial judge accepted evidence that the husband had anally raped the wife.
Issue/s: Did the trial judge give sufficient weight to the family violence the husband had inflicted on the wife and the subsequent effect or impact on her of that violence in making residence orders?
Reasoning/Decision: The appeal was dismissed. At [32] the Court noted the authorities referred to by counsel for the wife in support of the argument that the trial judge did not give sufficient weight to the effect of the domestic violence perpetrated by the husband against the wife: JG and BG (1994) FLC 92-515, Patsalou (1995) FLC 92-580, Blanch v Blanch & Crawford [1998] FamCA 1908; (1999) FLC 92-837, and Re Andrew [1996] FamCA 43; (1996) FLC 92-692.
The Full Court determined that consideration of the family violence and its effect upon the wife was adequate and orders for fortnight-about care of the children was within the trial judge’s discretion.
Appeal type: Appeal against parenting and contact orders.
Facts: While not a case specifically dealing with family violence, there is a large proportion of self-represented litigants in family law proceedings and as such the guidelines set out in this case pertain.
Issue/s: Did the trial judge contravene the guidelines in respect of the litigants in person set out by the Court in Johnson v Johnson (1997) FLC 92-764?
Reasoning/Decision:
The Full Court provided guidelines as follows (taking a number from Johnson v Johnson (1997) FLC 92-764):
Where the interests of justice and the circumstances of the case require it, a judge may:
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
Appeal type: Appeal against parenting orders.
Facts: The parties were married but separated after seven years. There were two children of the marriage. The wife made allegations of domestic violence against the father; these were denied by the father. The trial judge found at [325] that both parties were responsible for violence in the relationship, and that the relevance of family violence in custody proceedings was to be indicative of a risk ‘to … children in later years that … could cause them harm’. The wife brought an appeal against orders made by the trial judge that the children of the relationship reside with their father.
Issue/s:
Whether the trial judge erred in his findings regarding domestic violence?
Decision/Reasoning: The appeal was allowed.
Counsel for the wife submitted that the trial judge addressed the questions of the husband’s domestic violence ‘in almost a passing manner’, despite the presence of overwhelming evidence from the wife that she was the victim of consistent and frequent violence and abuse. It was held that “in cases such as this, where a case of sustained and severe domestic violence by one party is advanced by the other, the court is obliged to give a clear indication whether it accepts or rejects that case and, in any event, to explain why it has reached that conclusion” (see [333]).
In addition it was held that the trial judge’s conclusion that the responsibility for violence between the parties was fairly evenly shared was not available on the evidence.
Other aspects of His Honour’s treatment of domestic violence were also in issue. First, His Honour’s perception of the relevance of violence to the overall welfare of the children was inadequate. The trial judge failed to consider the significant risk of such violence to the children’s emotional development such as “insecurity, fear, unhappiness, anxiety and hyper vigilance”: Patsalou and Patsalou [1994] FamCA 118 and JG and BG (1994) FLC 92-515 (see [334]). Second, Lindenmayer J also strongly disapproved of the trial judge’s finding that the husband’s violence towards the wife was a product of the marital relationship rather than of the husband’s personality.
Proceedings: Property settlement.
Facts: The parties cohabited for approximately five years before separating. The husband was very wealthy and the wife had far more modest means. The property pool was nearly $9 million. There were no children of the marriage. In 1994, the wife filed a property application under s 79 of the Family Law Act. The husband filed a cross application. The wife subsequently filed an amended application which included a claim under the cross-vesting legislation that the husband pay her damages for assault and battery. The husband denied the allegations of assault and restated his position regarding the property claim. The trial judge accepted that a number of assaults had occurred and awarded damages, but found that the husband's conduct had not affected the wife's contributions to allow an adjustment in relation to s 79(4).
Issue/s: The wife did not challenge the trial judge’s finding that the husband's conduct had not affected her contributions. Consequently, the Full Court's comments on the relevance of domestic violence in claims under s79 of the Family Law Act were made in obiter.
Decision/Reasoning: The appeal was dismissed but the Full Court took the opportunity to clarify the relevance of violence in s79 property adjustments. The Full Court said that earlier authorities on s 79 precluding evidence of domestic violence were no longer binding, acknowledging that the ‘pervasiveness and destructiveness of domestic violence’ was now better recognized by the Australian community and courts.
The Full Court cautioned that s 79 of the Act is not a source of ‘social engineering’ or to be used as ‘a means of evening up’ the financial positions of the parties. They held:
‘Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of "negative contributions" which is sometimes referred to in this discussion’.
The Court also referred to this principle as including ‘exceptional cases’ and noted, ‘[i]t is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party’.
(See also subsequent interpretation in S & S (Spagnardi & Spagnardi) [2003] FamCA 905 (8 September 2003), Baranski & Baranski & Anor [2010] FMCAfam 918 (1 September 2010) and Damiani & Damiani [2012] FamCA 535 (9 July 2012).)
Proceedings: Appeal against supervised access orders.
Facts: The parties separated. Satisfactory access arrangements were in place for 3.5 years. However, the relationship between the parties deteriorated and the husband assaulted the wife. The wife held a genuine belief that the husband had tried to kill her and the child on this occasion and subsequently denied the husband access to the child. The husband filed an application for unsupervised access.
The trial judge found that each parent alone could provide adequately for the needs of the child. However, the wife’s fears had become even more entrenched over time and these fears were a major impediment to access, because they were genuine even if they may not be founded in fact. Her capacity to provide care to the child would be impaired and cause detriment to the child if the husband was given unsupervised access. The trial judge made orders for supervised access.
Issue/s: The trial judge gave too much weight to the mother’s attitude and not enough weight to the benefits to the child of unsupervised contact with the father.
Reasoning/decision: The Full Court dismissed the appeal. After citing extensively from past authorities, it was concluded that the finding that the wife’s genuine fear of the husband would significantly affect her ability to provide adequately for the needs of the child as custodial parent despite the benefits to the child from contact with the father was open to the trial judge.
Proceedings: Appeal against custody orders.
Facts: Not a family violence case, but it discusses principles in determining unacceptable risk in the context of sexual abuse allegations. In custody proceedings, the mother alleged that the father sexually abused their child and sought to have access by the husband to the child prevented. The trial judge was not satisfied on the civil standard of proof that the sexual abuse had occurred. However, he did not conclude that the abuse certainly did not happen. The mother was steadfast in her belief that the child had been abused by the father. The trial judge did not find the father unfit to have custody or access to the child by reason of sexual abuse or unacceptable risk of abuse, however, mitigated against the concerns and effect on the mother by making interim supervised contact orders.
Issue/s: Whether the trial judge erred in finding that the father was not an unacceptable risk?
Reasoning/Decision: The appeal was dismissed by majority. The Full Court held that the trial judge should not have made interim custody orders and failed to take into consideration the effect this would have not only on the child but also on the mother’s ability and capability to parent effectively. However, as the interim custody order was not challenged the Full Court did not set it aside. As regards to no finding of unacceptable risk, on the evidence, this was open to the trial judge.
Appeal type: Appeal against custody orders.
Facts: Allegations of family violence were made in custody proceedings. The trial judge accepted the wife’s evidence that prior to separation the husband had been hitting her on a regular basis, in front of the children on a number of occasions. Her Honour stated that the denigration of one parent by the other and the perpetuation of violence by that parent against the other is of importance when assessing where the interests of the children lie and what future arrangements might best advance their welfare. Her Honour also noted a number of articles on the effect upon children of inter-spousal violence including that such effects may be profound and long-lasting. The trial judge concluded that the children’s welfare would be best promoted by remaining in the custody of the wife.
Issue/s: Some of the grounds of appeal were –
Reasoning/Decision: The Full Court upheld the trial Judge's finding that allegations of domestic violence were relevant to custody proceedings and found that the reference by the trial judge to published social science literature about the impact of family violence on children was permissible as the published research was referred to as background information rather than evidence.
Evidence of family violence was held to be relevant in custody matters, to the extent that it assisted the court to determine what is in the best interests of the children, as its impact could be ‘profound and long-lasting’. The Full Court approved the comments by the trial judge that denigration and assault cause ‘considerable unnecessary strain’ to the victim and ‘may erode the confidence, dignity and self-esteem of the children’s other parent’. Baker, Kay and Tolcon JJ agreed with the trial judge that such conduct modelled inappropriate behaviour for children and could ‘impinge upon the quality of parenting able to be offered to the children’ and ‘reflects poorly upon the assailant’s capacity to provide children with a positive role model for their own behaviour and methods of resolving disputes and dealing with tensions and stress’.
Appeal type: Appeal against access orders.
Facts: Post separation, an access arrangement for the two children of the relationship was established. The relationship between the parties deteriorated and the mother refused to allow the husband access to the children. One child was found to have been sexually abused, but it was not possible to identify the perpetrator. The mother believed that the father was the perpetrator, however the trial judge was not satisfied that the father had sexually abused the child. The trial judge made orders giving the father unsupervised daytime access to the children to reduce the risk of the mother from making unfounded allegations in the future. The father appealed against these orders. The mother did not challenge the orders, but cross-appealed in relation to findings of fact made by the trial judge.
Issue/s:
Decision/Reasoning: The appeal was allowed in part. Amendments were made to the trial judge’s orders, clarifying the father’s access period and altering the proposed changeover location. The mother’s appeal against factual findings made by the trial judge and the father’s appeal against daytime access were dismissed.
The Full Court found that the relevant considerations when making access orders in cases involving sexual abuse of children were whether sexual abuse had occurred, whether the perpetrator could be identified, the potential risk of harm to the child from sexual abuse, the potential benefit to the child from parental access and the impact of the custodial parent’s beliefs on the welfare of the children. The Full Court said that the custodial parent’s beliefs regarding the child’s exposure to harm are relevant to the extent that they are likely to adversely affect that parent’s parenting ability and that a subjective test is used to assess the custodial parent’s beliefs.
The Full Court was satisfied that it was open to the trial judge to draw inferences regarding the likely future conduct of the mother. As the trial judge had found the mother genuinely believed the child had been sexually abused, that it was highly likely the mother would make further allegations of sexual abuse against the father if unsupervised overnight access was granted and that this risk did not apply to unsupervised daytime access, it was at the trial judge’s discretion to give the husband unsupervised daytime access.
Proceedings: Parenting and property proceedings.
Facts: The mother and father separated in 2016. The father was found guilty of assault and aggravated indecent assault in relation to their children. He was also found guilty of multiple assault and intimidation charges against the wife and children.
Issues:
Decision and reasoning: Parenting and property orders made.
Parenting orders: It was in the children’s best interests that they eradicate their father’s name from their names, given the damage and violence he inflicted on them, noting that “[t]he children need to close this chapter in their lives and this is one practical way of assisting them to do so” (at [124]).
Property orders: The decision of Kennon v Kennon was highly relevant to the facts: “where there is a course of violent conduct during the marriage which is demonstrated to have had a significant impact upon that party’s contribution to the marriage, this is a factor which the trial Judge is entitled to take into account in assessing the parties’ respective contributions under section 79 of the Act.” As per Baker J in Kennon at [84]:
“The incidence of domestic violence in a marriage would generally be a relevant factor when a court comes to assess contributions…for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.”
The wife’s entitlement was to 95% of the property comprising of the following:
The husband was entitled to 20% of the pool, reducing the wife’s entitlement to 80%.
Proceedings: Appeal against grant of recovery order.
Facts: The father had sought, and been granted, a recovery order for the return of the children following the mother’s unilateral removal of the children from the family home in Victoria. She took the children with her to her mother’s home in New South Wales. The mother alleged that the father has been violent to the children, independently of the allegations of his violent behaviour towards the mother.
Issue: Whether the recovery order ought to be revoked pending a final order hearing.
Judgment: Wilson J upheld the mother’s appeal against the father’s recovery order on the basis of family violence allegations against him, despite no expert report being admitted:
Matter: Application for children’s orders for relocation, mother to have sole parental responsibility, supervised contact
Facts: The German national mother wished to return the Germany with the child. The court considered whether the child faced an unacceptable risk in spending time with the father.
Issue: Application for leave to appeal.
Decision and reasoning: Relocation allowed; mother to have sole parental responsibility.
McClelland DCJ accepted that the child faced an unacceptable risk spending time with the father because (1) he had an extensive history of coercive and controlling behaviour towards the mother, and (2) his controlling nature manifest itself in physical violence towards the child.
[200] His Honour accepted evidence that the father had a history of engaging in controlling and coercive conduct in respect to the mother and that that controlling nature had manifested in physical violence to the child. Matters found to constitute controlling and coercive conduct during the relationship included setting up a camera in their home, telling the mother an investigator was following her while she was overseas, questioning her presence at her brother’s wedding, frequent accusations of infidelity, inspecting her used underwear and telling her it tested positive for sperm; attending her medical appointments and attempting to sexually belittle mother by asking questions of and making comments alleging her infidelity to multiple doctors, sending her a divorce kit in response to an argument about money and financially controlling her by draining her bank account and using her credit card.
His Honour accepted that the father’s post-separation manner of conduct of the proceedings and behaviour questioning medical treatment of the child amounted to coercive and controlling behaviour, as did calling the police for seven times for unnecessary police welfare checks. His Honour also accepted that the father’s assault of the child was child abuse.
Matter: Father’s application in a case for reinstatement of contact with the three children X, Y and Z, additional make up contact and that the child X engage in re-unification therapy with the father with a therapist to be agreed or as nominated by the Independent Children’s Lawyer.
Facts: The mother alleged serious family violence against the father. A previous interim order required the father to engage with either Mr B or another therapist nominated by the Independent Children’s Lawyer (“ICL”). The parties were in dispute as to whether the father had complied, the mother disputing the professional expertise of the father’s chosen therapist, who was neither Mr B nor nominated by the ICL. The father contended the ICL approved the father’s proposal to undertake the therapy with Mr F.
Earlier orders provided for the father to have contact with the children supervised by Mr and Ms C in the first week on Saturday from 2:00pm until 5:00pm and in the second week on Sunday from 2:00pm until 5:00pm save and except that the father’s time with X is subject to her wishes. The mother stopped contact pursuant to that order alleging he had spent time with the children without supervision. Berman J had previously held that the father had contravened the supervision order.
The mother referred to a report of Mr B dated 28 August 2017 which observed:
“[the father] was not open to consideration of any difficulties with reactivity or emotional regulation. He was not open to consider any role that he might play in the conflict with [the mother] or any contribution to [X]’s difficulties or possible dilemmas that might arise for the other children. I have decided to terminate contact with [the father] after 2 visits, rather that continue for 6 consultations as had been initially ordered. I did not feel that further contact would enable any helpful resolution to this matter and was concerned that continued discussion might only serve to further entrench a fixed and limited position.” [17]
The mother unequivocally stated she would reinstate the father’s contact once he had complied with the therapy requirement. Berman J expressed surprise that the parties had been unable to negotiate a resolution to the issues in the application.
Decision: Inter alia, Berman J ordered:
Berman J considered the father’s application for reunification therapy with his child:
[49] … For reunification therapy to be appropriate I consider that there needs to be an assessment undertaken that would satisfy the Court that the potential risk to the child of engaging in what can be an intensive program is outweighed by the reasonable prospect of a successful reinstatement of X’s relationship with her father.
[50] The concept of reunification therapy is not a matter of abstract consideration but rather, should be the subject of evidence that it is a proper therapeutic process and will be undertaken by a practitioner with demonstrated expertise.
[51] A report should be obtained from the nominated practitioner that brings to account the issues raised in the proceedings and provides an assessment as to the prospects of success, limited or otherwise.
Case type: Interim ruling.
Facts: The applicant and first respondent were in a de facto relationship for 14 years and have two children. They agreed that their respective contributions during the relationship (apart from the Kennon argument) should be regarded as equal ([8]-[10]). The first respondent alleged that the applicant’s conduct amounted to family violence, occurring during and subsequent to their relationship. Her evidence of such violence included a history of protection orders made against the applicant; allegations of physical, verbal, psychological, financial, emotional and mental abuse; allegations of property damage and animal cruelty; and allegations of exposing the children to family violence ([13]).
Issue: The applicant sought a ruling on whether or not family violence evidence relied upon by the first respondent sufficiently met the requirements of the Kennon principles and resulted in an ‘additional adjustment’ to the first respondent.
Held: Carew J ruled that the first respondent’s evidence was insufficient to establish that the Court should make an adjustment on the basis of the Kennon principles. Her Honour stated that ‘[w]hile it is settled at law that family violence can be a relevant factor in determining contributions in property proceedings, the difficulty often faced by a trial judge is the inadequacy of evidence to support any relevant finding and adjustment’. Even if there is no direct evidence as to how the conduct affected the victim’s ability to make his or her contributions, the impact may be inferred provided that the evidence clearly supports it. A person’s conduct will be relevant if it has had a ‘significant adverse’ or ‘discernible’ impact on the contributions of another ([6]).
The applicant submitted that the evidence failed to demonstrate a discernible or significant adverse impact on the first respondent’s contributions ([15]). In relation to direct and indirect financial contributions, the first respondent deposed to finding it difficult to contribute financially because of the domestic violence inflicted upon her by the applicant. In relation to non-financial contributions for the welfare of the family, she gave evidence that the applicant also made it difficult for her to contribute as a ‘mother’ ([17]). The applicant further submitted that the first respondent’s evidence to occasionally feeling nervous or humiliated represented a personal impact on the first respondent, but fell short of establishing that those feelings had any discernible or significant impact on her ability to contribute ([18]).
Carew J noted that the need to establish ‘fault’ has been replaced by a ‘no-fault’ system in order to obtain a divorce or other relief, such as a property settlement or spouse maintenance. The repeal of the ‘fault’ based system avoids the humiliation and expense associated with presenting the necessary evidence ([22]). Nevertheless, according to the Kennon principles, there are circumstances where conduct will be relevant to the determination of a property settlement application ([23]).
Her Honour accepted the applicant’s submission that the evidence relied upon by the first respondent was insufficient to establish the impact of the conduct on her ability to make contributions or the quantification of that impact on her contributions, either expressly or impliedly ([24]).
Issue: Parental responsibility.
Facts: The mother alleged that the child was repeatedly struck by the father causing bruising and that the father engaged in intimidating conduct towards her and the child, often following drug use by the father. The father was subject to several intervention orders, none of which successfully prevented his violent and intimidatory conduct. One incident of violence followed the mother’s discovery the father had spent money set aside for payment of bills. The father was persistently in arrears of his child support obligations and viewed child support as a benefit to the mother.
The mother led evidence that the father’s conduct towards her and the child made her highly anxious. The child allegedly made disclosures to the mother in July 2014 after spending time with the father that ‘daddy hit me’ and ‘he was just angry and he hit me’. The following day, the mother alleged a bruise appeared on the child’s hip. [344]
Decision and Reasoning: The mother have sole parental responsibility for the child, the father have no contact with the child and there be a moratorium on the father seeking further parenting orders for a period of two years. The father’s conduct towards the mother and the child had made the mother highly anxious.
It was held that that ‘the father’s behaviour ha[d] been manipulative and the violence, which has been physical violence as well as coercive controlling violence, insidious. It was often perpetrated in the presence of the child.’ [5]
Despite the father’s recent admissions regarding his conduct, the Court was unconvinced that he does not pose an unacceptable risk to the child’s safety and wellbeing.[5]
The Court considered the definition of ‘coercive controlling violence’. It was held that: ‘Coercive controlling violence is an ongoing pattern of use of threat, force, emotional abuse and other coercive means to unilaterally dominate a person and induce fear, submission and compliance in them. Its focus is on control, and does not always involve physical harm.’ [223]
Case type: Application by both parties for a vexatious proceedings order.
Facts: Mr Xuarez and Ms Vitela (both pseudonyms) had been involved in court proceedings in relation to parenting orders for over 10 years ([7]-[21]). The father had filed 19 separate Applications in a Case between 11 April 2012 and 16 November 2017 ([16]), which were all dismissed, and Notices of Appeal in relation to the dismissals ([17]). Both the mother and the father filed applications for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth).
Issues: Whether the Court should make the vexatious proceedings order against the mother or the father or both.
Decision and Reasoning: The application made by the mother was granted, while the application by the father was dismissed. An order was made prohibiting Mr Xuarez from instituting proceedings against Ms Vitela or any of her legal representatives and dismissing all extant applications ([45]).
Justice Carew at [29] cites Perram J in Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398 to set out 11 principles to consider when making an order in relation to vexatious litigants. Applying the principles to the father’s conduct, Carew J highlighted the facts that most of the applications were instituted without reasonable grounds, the father sought orders that the Court did not have jurisdiction to make, and the repetitive nature of the applications amounted to an abuse of process ([34]). It was noteworthy that in 2010, the father was declared a vexatious litigant in another court, in relation to proceedings where the father stalked the mother’s former legal representative ([37]). These facts justified the order being made against the father.
Proceedings: Application relating to the admissibility of evidence and application as to whether the rules of evidence ought to apply in a Family Court hearing.
Facts: On the first day of a four day hearing, counsel for the applicant (the mother) sought leave to tender voice recordings and transcripts that had been made without the knowledge of the father. Under s 7 of the Surveillance Devices Act 2007 (NSW), it is unlawful to record private conversations without the consent of the parties to that conversation unless the recording of the conversation falls within one of the exceptions in s 7(2) and (3).
Issue/s:
Reasoning/Decision: First, McClelland J held that both the voice recordings and the transcripts were admitted in evidence under s 7(3) of the Surveillance Devices Act 2007 (NSW) (the recordings were reasonably necessary to protect the applicant’s lawful interests) and, in the alternative, under s 138 of the Evidence Act (the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained improperly).
McClelland J noted the ‘floodgates’ caution from senior counsel for the father i.e. that there was a danger of parties to a marital relationship experiencing difficulties surreptitiously recording their partner. However, in this regard, His Honour stated that his decision was very much one based on the facts of the case, including the allegations that the father had maintained a charming public face but had engaged in conduct within the family home that was alleged to have constituted family violence in terms of the provisions of s 4AB of the FLA. His Honour also had regard to the potential difficulty of obtaining evidence of family violence when it occurs behind closed doors without any witnesses present other than the perpetrator and victim. Further, His Honour noted that the recordings and transcript would be directly relevant to the issue of credibility as to whether family violence occurred in the proceedings (see [6]-[14]).
Notwithstanding the findings above, senior counsel for the father submitted that the Court ought to exclude the voice recordings (permitting the inclusion of the typed transcript) because the danger of the evidence being unfairly prejudicial to the father outweighed its probative value (s 135 Evidence Act). This was because the mother had knowledge and control of the recording and the circumstances in which the conversation occurred and was recorded. McClellan J dismissed this argument and held the voice recordings were admissible. This could be a matter for cross-examination by the father: Huffman & Gorman (No. 2). Further, His Honour noted submissions from counsel for the applicant and counsel for the Independent Children’s Lawyer that an important aspect of the evidence contained in the tapes was not simply what was said but how it was said. This was relevant to whether the father’s behaviour could be modelled or mimicked by the children and whether the parenting abilities of the primary carer had been compromised as a result of the content and tone of the communication (s 69ZN of the FLA) (see [15]-[23]).
Second, McClelland J held that the rules of evidence were to be applied in respect to the issues of the events on 10 September 2013 (these events were the subject of criminal proceedings) and to the issue as to whether the father made threats to the children or to the mother in respect to the children (s 69ZT(3)). For the remainder of the issues, the rules of evidence would not apply (s 69ZT(1) and (2)) and His Honour would therefore have the discretion to consider the probative value of such evidence. His Honour stated, ‘evidence in relation to the question of family violence will have to be established clearly, and matters of opinion put in appropriate context and given appropriate weight, depending upon who was expressing the opinion and on what basis, and the establishment of the necessary background facts’ (see [24]-[34]).
Proceedings: Numerous applications including an application to discharge the ICL.
Facts: The mother and the father separated in 2009.There were three children of their relationship. In 2012, a final parenting order was made with the consent of the parties and the Independent Children’s Lawyer (ICL). There was continued conflict between the parents. Numerous applications were considered by the court in this case in particular, an application brought by the father to discharge the ICL.
Issues: Whether the ICL had been negligent and demonstrated bias towards the mother?
Reasoning/Decision: The application was dismissed. Forest J referred to his previous discussion (in Dean & Susskind [2012] FamCA 897 at [19]-[28]) of the principles applicable to such an application:
‘…
The role is to be discharged independently and professionally, but it is not inconsistent with that duty for an ICL to make submissions to the Court that particular findings of fact, supported by the evidence, be made or that particular evidence be preferred over other evidence, or that a particular course of action be taken by the Court. It is also beyond doubt that an ICL’s duty to advance what he or she independently considers is in the best interests of the children in the case, does not require the ICL to slavishly follow what the children might want or what either one or both of the parents consider is in the best interests of the children.[20]
I consider it to be accepted principle that a court should be slow to remove or discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL. [21]
…
It will, in my opinion, be a matter of considering the evidence presented on each application for the removal of an ICL to determine if it demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal. [26]
Parents, particularly in high conflict parenting litigation, must understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case’. [27]
The father submitted a number of facts as evidence of bias. First, the ICL sought the appointment of a new, female report writer (Ms C). The father argued that the ICL failed to give him an opportunity to argue against Ms C’s appointment and, by retaining Ms C, evidenced ‘significant gender bias’ by removing ‘the only male person within our entire court process’. The fact that the ICL disagreed with the father on the issue of appointing a new family report writer, as she was entitled to do, did not prove that the ICL failed to adequately consider the father’s argument. Further, the selection of a report writer alone, who happened to be female, did not demonstrate or prove gender bias (see [58]-[63]).
Second, the father argued that the ICL demonstrated negligence or bias against him because she would not give him a copy of her instructions to the report writer. Forrest J noted that there is nothing in the Federal Circuit Court Rules or the Family Court Rules that obliges an ICL to provide copies of her instructions to an expert retained by her to each of the parents. Further, the father did not actually request the ICL to provide him with a copy of her instructions; he instead asked whether he would receive a copy of the instructions to which the ICL replied ‘you don’t see the letter of instruction’. In these circumstances, the ICL had not demonstrated negligence or bias that warranted her disqualification (see [65]-[70]).
Third, on the day of the interviews for the report, the father argued that the ICL demonstrated bias in directing the waiting arrangements in her office for the parents and children. Forrest J held that, at the interim stage, where the evidence invited a number of possible findings that could not be made without cross-examination of deponents, he was not in a position to say that the ICL had acted in a way that warranted her immediate discharge (see [71]-[78]).
Finally, the father asserted that the ICL was incompetent as well as negligent and biased against him. Forrest J was not persuaded by the father’s evidence and held that (see [79]-[81]):
‘It is most certainly not the case that where a parent might be able to point to a mistake made by an ICL that the Court will necessarily accede to an application by that parent to discharge that ICL. The authorities I have discussed clearly disclose that significantly more than that is required’.
Proceedings: Application for final parenting orders.
Facts: The parties had one child together. During the relationship, the mother alleged that the father often forced her to have non-consensual sex with him. The parties separated and the mother obtained a DVO against the father. The mother initiated proceedings seeking parenting orders and over the next four years a number of parenting orders were made and amended. However, after an incident at handover, the wife formed the belief the husband would abduct or remove the child from her care, and she attacked the father whilst in a dissociative state. She was convicted of unlawful wounding and sentenced to 18 months imprisonment, and immediately released on probation.
The applicant father sought orders for sole parent responsibility for the child, who would live with him and spend supervised weekend and school holiday time with the mother. He argued that the mother presented an unacceptable risk of sexual, physical and emotional harm to the child (the mother suffered sexual abuse as a child). At the time of these proceedings, the father was committed to stand trial on six charges of rape of the mother and one charge of grievous bodily harm against the mother.
The mother sought orders, supported by the Independent Children’s Lawyer, that she have sole parental responsibility for the child, who would live with her and spend no time, nor have any contact or communication with the father. She later amended her orders and sought to include provision for a card or letter for her birthday and for Christmas. The mother sought no contact as she believed any continued interaction between her and the father in relation to the child, was likely to adversely affect her capacity to parent the child.
Issue/s: What parenting order was in the best interests of the child?
Reasoning/Decision: Orders were made providing for the mother to have sole parental responsibility for the child and sole custody of the child, and for the father’s access and communication with the child to be limited to postal correspondence twice a year until the child turned eighteen. His Honour also made a vexatious litigant order against the father, restraining him from bringing further proceedings without leave of the court.
In relation to making a no contact order, his Honour stated that it is a serious matter that a child neither spend time with nor communicate with a parent. Accordingly, such orders ought to be restricted to cases where the outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Three scenarios were considered in which ‘no contact’ orders had been made in the past. First, these orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child. Second, ‘no contact’ orders have been made where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed (on the basis of protecting the child from the consequences of that parent’s belief): Re Andrew. Finally, this approach was taken one step further in Sedgley & Sedgley where the Court held that while the welfare of the child may require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child. However, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation (see [55]-[58]).
The best interest considerations in s 60CC let the court to determine the child live with her mother. His Honour accepted that by time the child turned 12 she would likely come into conflict with the father and was at real risk of harm from his coercive, controlling, dominating and self-serving personality traits (see [177]-[178]). Further, the father was to have no contact with the child except for a card/letter at Christmas and on the child’s birthday. It was found that the father deliberately calculated his interaction with the mother with a view to destabilising her mental health conditions, and even the smallest opportunity for debate or conflict with the mother would be seized upon by the father. If the mother was required to continue to interact with the father in any form of co-parenting, there was a substantial risk that she will either attempt to kill herself, attempt to kill the father, or both.
It was ultimately decided that the prospect and magnitude of the risk of harm to the child if her mother was required to maintain contact with the father far outweighed any benefit the child would obtain by a continuation of any time or communication with her father. It was held that the best interests of the child lay with making a no contact order.
In relation to family violence, his Honour was satisfied that on occasion the father had engaged in non-consensual sexual intercourse with the mother. However, it was both unnecessary and undesirable to make a finding regarding the father’s conduct in relation to the criminal offence of rape (see [168]-[169]). However, the father’s controlling and domineering behaviour was considered and had bearing on the court’s decision for no contact (see [170]-[171]).
His Honour considered each of the many proceedings instituted by and conducted by the father and was “satisfied that on numerous occasions, either the proceedings have been instituted vexatiously or they have been conducted vexatiously.” He was “therefore satisfied that the father has frequently instituted or conducted vexatious proceedings.”[243]
At [246] his Honour stated:
I am satisfied that many of the applications that the father has brought or prosecuted in relation to the mother have been vexatious, although I accept that some, on occasion, have had merit. Some have been vexatious in the sense that they were intended to harass and intimidate the mother into either a further destabilisation and perhaps dissociation, or to attempt to otherwise coerce her to his will. Some were vexatious as being without reasonable foundation. Some may have been both.
And at [248]:
I accept that it is a grave matter to deny a parent the opportunity to litigate in relation to their child. However upon analysis, my order does not prevent the father doing so per se: if there is a legitimate basis for further litigation, sufficient to warrant a grant of leave, then he may do so. However he cannot be trusted with the unfettered right to issue proceedings against the mother in relation to the child, because he will abuse it. For that reason, any application for leave should be, in the first instance made ex parte: s 102QE(4).
Note: this case was confirmed on appeal, see Theophane & Hunt and Anor [2016] FamCAFC 87.
Proceedings: Parenting orders and vexatious proceedings order.
Facts: Over many years, the mother and the 12 year old child experienced harassment, physical violence and stalking behaviour by the father. The father had little or no insight into the impact of his behaviour on the child. This was the third final parenting hearing. The current proceedings were brought about by the father in circumstances where the application was doomed to fail. Seeing the profound impact of these fresh proceedings on her mother, the child resolved that she no longer wanted to see or communicate with her father. Benjamin J was satisfied that the views were her own.
Issue/s:
Reasoning/Decision: In making parenting orders, Benjamin J noted that the presumption of equal shared parental responsibility in s 61DA of the Act did not apply because there were reasonable grounds to believe here that the father had perpetrated family violence. This family violence included the father’s entrenched pattern of behaviour (referred to by a psychologist), the father’s stalking behaviour, the verbal abuse, harassment and the assaults by him on the child. Further, shared parental responsibility could not effectively operate given the views of the child, the approach adopted by the father and the impact upon the mother. Accordingly, Benjamin J made an order that the mother have sole parental responsibility for the child (see [379]-[384]). Benjamin J also made an order that the child spend no time with the father and have no communication with the father (see [387]-[404]).
Benjamin J made a vexatious proceedings order prohibiting the father from instituting further proceedings without leave. This order was made under s 102QB(2) of the Family Law Act 1975 (Cth). At [420], His Honour noted that the fundamental differences between the old section (s118) and s 102QB were: (1) the test was no longer a court having frivolous or vexatious proceedings before it but rather whether or not there was a history of a person having frequently instituted or conducted vexatious proceedings; and (2) Vexatious proceedings were now defined by statute in s 102Q(1).
To make an order under s 102QB(2), Benjamin J noted at [438] that a two part threshold test needs to be met, namely:
Applying this test, Benjamin J proceeded in three parts. First, His Honour determined a number of proceedings initiated by the father constituted vexatious proceedings on the facts (see [441]-[481]). Second, His Honour held that the proceedings amounted to the father ‘frequently’ instituting and conducting vexatious proceedings. In making this determination, Benjamin J noted that the test of ‘frequently’ was used as opposed ‘habitually and persistently’. The term ‘frequently’ is a relative term and is to be considered in the context of the facts of an individual case and, in this case, in the context of the litigation between these parties. This test was said to be satisfied on the facts (see [482]-[494]).
Finally, with the threshold being met, Benjamin J considered whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. His Honour noted that a vexatious proceedings order must be considered in the context where there is a need to balance the serious step of restricting a person from commencing proceedings against the need to protect the mother and the child from the constant impact of litigation. In the circumstances, a vexatious proceeding was made (see [495]-[540]).
Proceedings: Application for parenting orders.
Facts: The mother and the father, who both had compromised mental health: the mother diagnosed as Bipolar and the father also being previously diagnosed as Bipolar, had two children together. Both children had intellectual and developmental disabilities. The parties separated and reconciled several times before final separation, with the mother obtaining Apprehended Domestic Violence Orders (ADVO) on a number of occasions. The father breached one of these orders in February 2010 by breaking into the mother’s home and assaulting the mother. He was charged and spent time in a psychiatric facility. The mother formed a relationship with another man (‘the stepfather’). In 2011, one of the children went temporarily missing in a National Park under the care of the father, the father deliberately sent photographs of his penis to the mother, and one of the children told the mother that the father swore at her. Contact ceased between the father and the children and the mother received victim’s compensation in relation to domestic violence by the father. Proceedings were commenced in relation to the parenting of the children.
Issue/s: It was agreed that the mother and the stepfather would have parental responsibility for the children. However, some of the remaining issues were –
Reasoning/Decision: Orders were made giving the mother and stepfather equal shared parental responsibility for the children, giving the father no parental responsibility, making provision for the children to live with the mother and stepfather and to have no contact with the father, restraining the father from approaching the children, their school and residence and the parents from discussing proceedings with or near the children.
The Court found that the s 61DA presumption of equal shared parental responsibility did not apply as the father engaged in family violence. Further, in relation to the children’s best interests, including consideration of the evidence about family violence, the Court determined that in any case the presumption would be rebutted on the evidence. It was held that any further contact between the father and the mother would destabilise the mother and prevent her from being able to adequately care for the children (see [197]-[205]). Additionally, on this basis, it was ordered that the father spend no time with either child (see [206]-[210]).
Loughnan J also made a number of orders restraining the father from communicating with the children or the mother or stepfather. These orders were necessary for the physical and mental protection of the mother, especially in light of the evidence of family violence. However, Loughnan J ordered that, if required, the father communicate with the step-father through a post office box and be notified if the family relocated from the region (see [217]-[232]).
Proceedings: Application for parenting orders.
Facts: The parties separated and made consensual arrangements for the care of their child. In June 2012, the father detained the child citing a belief that the child had been sexually abused by the mother’s partner. Subsequently the mother, having happened upon the child and the father’s partner, attempted to detain the child herself. This resulted in an Apprehended Violence Order (AVO) being made against the mother in favour of the father’s partner. It applied to the child and the father as well as they lived with Ms E.
The mother refuted the allegation of sexual abuse but her relationship with her partner had ended and the mother acceded to an order precluding any future contact between the child and her former partner. The father then contended that the mother’s deteriorated emotional state constituted a further risk of harm to the child and militated against the child’s return to live with the mother.
Issue/s: What orders regarding the residence of the child and shared parental responsibility were in the best interests of the child?
Reasoning/Decision: The Court was persuaded to make an order for the parties to have equal shared parental responsibility for the child, consistent with their mutual wish, the Independent Children’s Lawyer’s suggestion and the Family Consultant’s recommendation (see [95]-[100]). His Honour ordered that it was in the child’s best interests to live predominately with the mother. Although both parents were equally capable of meeting the child’s intellectual needs, he considered that the mother was better able to meet the child’s physical and emotional needs (see [106]). The child was to spend substantial and significant time with the father (see [105], [109]-[116]).
The parenting orders were inconsistent with the existing family violence order, as the AVO prohibited the mother from approaching and contacting the child or the father. Although the order made an exception for contact that occurred pursuant to the Act, it was only for the restricted purpose of ‘counselling, conciliation, or mediation’. It was noted that where the terms of the parenting and family violence order were inconsistent, the parenting order should take precedence to facilitate communication between the parents regarding the child and to ensure the child was exchanged for periods of contact (see [91]-[94]).
Proceedings: Application for property orders.
Facts: The parties married and lived together for 19 months. They had one child. The husband contributed the bulk of the capital to the marriage and was on a far superior income. The wife had cared for the child since separation, nearly eight years prior. During the marriage, the husband perpetrated family violence against the wife on five occasions, over a period of 15 months. This caused the wife to suffer from post-traumatic stress disorder. The wife claimed the family violence made her contributions in the role of homemaker and parent significantly more arduous. The husband had financially supported the wife and the child during the period since separation.
Issue/s: Whether the court should make a Kennon style adjustment in the property settlement proceeding?
Reasoning/Decision: The Court referred to the Full Court in Kennon where the principles regarding family violence making contributions more arduous lie. The Full Court’s further refinement of the Kennon principles in Spagnardi & Spagnardi was also noted (see [138]-[144].
The Court discussed the approach regarding family violence in property proceedings as broken down into three steps: (1) Make findings of fact about one party’s conduct; (2) (If applicable) make findings about the physical or psychological effect of the conduct on the other party; and (3) Make findings of fact about the effect of the conduct of one party upon contributions made by the other party. It was also noted that it could not be assumed in a particular case that an effect on a party’s condition automatically means there is an effect upon the party’s contributions. At trial, the wife had to establish to the judge’s satisfaction a connection between any proven family violence in the case and the contributions she made (see [145]).
On the facts, Watts J first concluded that the wife’s contributions in the role of homemaker and parent during the period over which the violence took place were made significantly more arduous by the violence of the husband. Second, while His Honour also held that the wife’s role as parent post-separation was made significantly more arduous by the family violence during co-habitation, His Honour observed that it was more difficult to make such an assessment. The wife did experience apprehension and heightened emotion around dealing with the husband’s time with the child after the separation. However, the effect of violence on contributions was not constant over the previous eight years, with the wife’s post-traumatic stress disorder having significantly dissipated (see [174]-[179]). Accordingly, it was appropriate to increase the wife’s assessed contributions by 25 per cent for the duration of the relationship and by 5 per cent post separation to take account of the effect of the husband’s conduct on the mother (see [179].
Matter: Application for final parenting and child orders.
Proceedings: Final parenting and child orders hearing, including application for overseas relocation.
Facts: The mother had limited English skills, poor work prospects and no family support in Australia and there was a high level of conflict between the parties exacerbated by cultural issues. Both parties’ extended families remained in India. The mother alleged a history of family violence perpetrated by the father against the mother. The father stated that it was his intention to remain in Australia regardless of the final outcome. There were allegations that India’s dowry laws had been breached by the demand for and payment of dowry by the wife’s family to the husband’s family.
Issue: Was the presumption of shared parenting responsibility rebutted? Ought the mother be allowed to relocate to India with the child?
Judgment: Presumption of shared parenting responsibility rebutted, relocation allowed.
Young J found the presumption of shared parental responsibility was rebutted due to the conflict between the parties, their lack of communication and cultural issues.
The mother was permitted to relocate to India where she had family support available.
Proceedings: Nullity application.
Facts: Ms Kreet (the wife), an Australian born woman, married Mr Sampir (the husband) on June 2009 in India. She travelled to India with her parents believing she was going to marry her Australian boyfriend, Mr U. Upon arrival, her parents confiscated her passport and was introduced to Mr Sampir. Her father told her that he would have Mr U’s sisters and mother kidnapped and raped if she refused to marry Mr Sampir. Under duress, the wife married Mr Sampir and submitted his Australian visa application to the authorities. She returned to Australia, resumed her relationship with Mr U and withdraw her sponsorship of the respondent’s visa application. She obtained an indefinite Intervention Order against her father.
Issue/s: Whether the marriage was void?
Reasoning/Decision: Section 23B(1)(d) of the Marriage Act 1961 (Cth) states that a marriage is void if ‘the consent of either parties is not real consent because: (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony’.
While the legislation does not define duress in the context of a marriage, Cronin J found that ‘there was no reason to give it any other meaning than that which is normally known to the law. It must be oppression or coercion to such a degree that consent vanishes: In the Marriage of S (1980) FLC 90-820’ (see [39]).
Cronin J was satisfied that ‘the wife’s physical state at the time of the ceremony was such that she was physically and mentally overborne. Her consent was not real because it was obtained by duress’ (see [43]).
Proceedings: Parenting orders.
Facts: The father of the two children subject to the parenting proceedings was convicted of three offences involving child pornography.
Issue/s: What parenting orders were in the best interests of the child?
Reasoning/Decision: Although this case did not relate to family violence, it contains observations relevant to risk assessment. The Court held that an allegation of potential risk of harm ought not to divert the court from the central task of assessing the best interests of the children. At [53] Murphy J quoted from an article by psychiatrist and barrister, Mahendra, who stated that risk assessment in any situation involves, in essence, asking the following questions:
Matter: Application that mother have sole parental responsibility, the children live with the mother, the mother be permitted to change the children’s names and relocate without notice to the father, that the father be restrained from bringing applications in relation to the children for a period of time.
Facts: The mother alleged serious history of domestic and family violence throughout the history of the relationship, including “serious assaults of the mother, stalking, vandalism to property of the mother and her present partner, intimidation, threats of violence (including a history of death threats), verbal abuse, controlling behaviour, isolation and dominance”[4] such that the mother and children live in terror of the father and have done for years.
Held: Mother have sole parental responsibility for the children and they reside with the mother, the mother be permitted to everything necessary to change the children’s surnames, the mother be permitted to relocate the residence of the children to any place in Australia without notice to or permission of the father, the father be subject to a restraining order.
[396] “In many ways the facts as between the parties that I have determined in this case fit most, if not all, of the indicators of coercive controlling violence. The father has used coercion, control, violence, intimidation and threats throughout the relationship, including after separation. He seeks to intimidate and control the mother with the attendant violence, abuse, isolation and aggression. From time to time he focuses this on the children. He dominates and controls the children, particularly X, but his behaviour with regard to Y and her reaction to his verbal abuse of her in June 2008 is indicative of his continuing coercive controlling violence.
[397] The father exercised economic power to control and manipulate the mother and effectively the children. He endeavoured to isolate mother and in effect continues to do so. In that process he denies or minimises his involvement and culpability.
[399] The effect of that long term violence, control and manipulation imposed by the father on the mother has from time to time undermined the mother’s parental authority and undermined her parenting role…”
Note this case was subject to further litigation, although the judge’s comments about the type of family violence experienced were not challenged. See for example Maluka & Maluka [2011] FamCAFC 72; (31 March 2011).
Matter: The mother’s appeal against orders made by Bennett J on 11 April 2006 requiring the return to Greece of three children, C, D and E pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
Facts: The mother was an Australian-born woman of Greek parentage and the father was Greek. They met and married in Greece and throughout the marriage the mother and three children resided with the father’s parents in Greece. With the father’s consent the mother brought the children to Australia for what she said was a holiday and conceded that the habitual residence of the children was Greece. There was evidence of threatening text messages from the husband to the wife and the eldest child’s evidence of the father’s violence and threatening behaviour towards the mother and his own mother in the presence of the children supported the mother’s allegations.
Grounds: The trial judge erred in failing to find that Article 13(b) (grave risk of physical or psychological harm or place them in an intolerable situation) and Article 13(c) (the eldest child’s views should be taken into account) should prevent the return of the children.
Held: Appeal dismissed. The court was unable to identify error in the trial judge’s decision.
The court acknowledged the limitations of the Hague Convention in cases where domestic and family violence is alleged:
[48] The operation of the Convention which has the effect of potentially sending a mother back into a situation of risk to her own physical wellbeing has been a matter of significant academic criticism …
[75]…As we have already indicted, the return of these children to Greece was anticipated to be in their mother’s company. She had found accommodation for herself remote from that of the father. She led no evidence to suggest that the Greek authorities would be unable to provide her and the children with appropriate protection pending her utilising lawful means to relocate the children from Greece. The finding by the trial Judge that the mother had not persuaded her that the return of the children to Greece would raise a grave risk of harm to the children or otherwise place them in an intolerable situation was a finding clearly open to the trial Judge.
[78]…Given that these were children who were born in Greece and had spent effectively the entirety of their life in Greece until the mother unilaterally determined to retain them in Australia, Greece was clearly the appropriate forum for issues relating to the welfare of these children to be determined. In those circumstances it was appropriate for her Honour to place significant weight on the first of the objects referred to in Article 1 of the Convention namely the prompt return of the children who had been wrongfully retained in Australia.
Proceedings: Orders sought by consent for supervised and unsupervised time with the father
Facts: The parties had two children. There was a history of violent and abusive conduct by the father against the mother and one of the children (including that he bit the child as a baby). This resulted in a number of periods of separation and reconciliation, with a number of Apprehended Violence Orders being brought against and breached by the father (see [17]-[24], [27]-[28]). The father also regularly smoked cannabis (see [25]-[26]). In April 2001, the mother left the family residence without notice, taking the children with her. At the hearing, the parties attempted settlement. The parties and the Independent Children’s Lawyer proposed consent orders for children to progress from supervised to unsupervised to block periods of time with the father, who would give undertakings regarding his conduct, discipline of the children, substance use and participation in an anger management course.
Issue/s: What orders were appropriate in the best interests of the children?
Decision and Reasoning: Moore J declined to make the consent orders as proposed as the untested evidence raised concerns for the judge that the orders may not be in the children’s best interests. Instead, the judge made orders by consent for supervised contact only. The allegations against the father indicated him to be a violent and abusive person who represented a high risk of harm to the well-being of the mother and a high risk of harm to his children.
While Her Honour acknowledged that the parents’ consent to arrangements about their children is a powerful, and in most cases a deciding, factor, consent does not displace the obligation of the Court to make orders that are in the best interests of children (see [39]). Moore J also expressed her concern that the Independent Children’s Lawyer would provide support for the proposed consent orders in the face of behaviour that had the potential to place the children in serious jeopardy and in light of orders that would give no protection whatsoever to the children (see [40]).
Proceedings: Contact orders.
Facts: The parents had two children together (B and E) and the mother had another son from a previous relationship (D). The children had witnessed violence by the father against their mother, siblings and extended family. The father had several convictions for assault against the mother and one against D, and had been subject to AVOs. After separation, B and E lived with the father, with interim orders made for the mother to have contact with the children. At trial, the parties agreed that B and E should live with the mother but a number of issues were left to be determined. At hearing, a counsellor gave evidence that both children displayed concerning behaviours consistent with early onset and repetitive physical violence.
Issue/s: One of the issues was what contact should the children have with the father?
Reasoning/Decision: On the evidence, the Court held that it was in the children’s best interest that all but in the very short term they should have no contact with the father. Orders were made to reduce contact over the space of 12 months to minimise the distress that could be caused to the children by immediate complete separation (see [96]-[100]). The Court held that the father’s abusive behaviour presented a ‘multi-faceted danger for the children’ including danger of injury as well as “fear, insecurity & vigilance”. It was held there was a risk of the children learning behaviour from the father which would affect their future interactions e.g. the daughter accepting abuse as part of life and the son believing violence is acceptable. See [94]-[95].
Facts: The case concerned the custody of two children aged four and two. The wife alleged that the husband had been physically and verbally violent towards her on a number of occasions.
Issue/s: What is the relevance of family violence in custody, guardianship and access matters?
Decision and Reasoning: The court accepted that the relevance of family violence will vary according to the nature of the proceedings.
Chisholm J went on to consider the relevance of family violence in proceedings relating to children. His Honour considered at [257] that although it is ‘not the objective of the law in custody and similar proceedings to punish wrongdoers or to provide compensation or redress for victims’, family violence is by no means irrelevant. His Honour held that ‘[family violence] is to be taken into account if it is relevant to the determination of the child’s welfare, which is the paramount consideration’. The standard of proof is the civil standard on the balance of probabilities. However, the conduct of a parent is relevant in custody matters only to the extent that it relates to the welfare of the children.
Where violence is directed at the children themselves, or occurs in the presence of the children, it is obviously and directly relevant to their welfare (see [260]). However, other forms of violence could also be relevant to the welfare of the children such as violence affecting the custodial parent, threats, etc. The Court must assess the nature and extent of the harm in light of the evidence and findings before them. See [261].
The Court also stated that it may be possible for the court to decline to make findings in relation to family violence, where it could determine the case without reference to them.
Matter: Father, grandparents and paternal aunt’s appeal against orders granting sole guardianship and custody of the child to the maternal aunt and permission for her to remove the child from Australia to the United States where she resided.
Facts: The mother died and the father was charged with her murder and was awaiting trial at the time of the hearing before the trial Judge. Those proceedings concerned applications by the maternal aunt and the paternal grandparents and aunt for custody of the only child of the marriage. The applicant father indicated that he supported the application of the grandparents and paternal aunt that they be granted custody of the child. The trial Judge made a finding that on the balance of probabilities the husband shot the wife.
Grounds:
Husband:
Grandparents and paternal aunt:
Intervention by Commonwealth Attorney-General:
The case warranted the appointment of a separate representative pursuant to s 65 of the Family Law Act because (a) permanent removal of the child from the jurisdiction was contemplated which would likely lead to cessation of any contact with the father; and (b) the relationships between and circumstances involving the parties and interveners.
Decision and reasoning: Appeal dismissed.
In considering the Attorney-General’s intervention, the Full Court (Nicholson CJ, Fogarty and Baker JJ) suggested guidelines for appointment of separate representatives for children involved in proceedings, one of which was that separate representatives should normally be appointed where there is an apparently intractable conflict between the parents:
[95] In this regard we lay stress upon the words "intractable conflict". There is a dispute of course in all contested custody cases and there is usually a degree of conflict, but we have in mind that category of cases where there is a high level of long standing conflict between the parents. In such cases the child is very much a pawn in the dispute and is often used as such by either or both parents. In these circumstances we think it important that the child have the support and assistance of an independent person and that the Court similarly have the assistance of such a person to present the child's point of view.
[96] If the child is alienated from both parents, the need for such representation is obvious. Where the child is alienated from one of them, this may or may not be for good cause and may have been largely brought about or contributed to by the conduct of the parent from whom the child is not alienated. In most cases it seems to us to be highly desirable for the child to have access to a person independent of the conflict who will have his or her interests at heart and who will be capable of assisting the child and putting both the child's view and submissions as to the child's best interests to the Court: see Law Council of Australia (1989) "Law Council Submission on Role of Separate Representatives" Vol. 4 No. 4 Australian Family Lawyer, 15. In this regard we also see the separate representative as having an investigative role which may be of great assistance to the Court. Further, the separate representative may well, in this and the previous category of cases, perform the role of an "honest broker" as between the child and or the parents.
Matter: Appeal against Hague Convention return order.
Facts: The husband was a member of the New Zealand motorcycle gang known as “the Mongrel Mob”. The mother brought her children aged five, four and two to Australia from New Zealand. Her evidence was that she was the victim of several violent attacks which included head butting, punching, kneeing her at the base of the spine. She had received death threats. The acts of violence either took place in the presence of or in close proximity to the children.
She said the husband had an arsenal of weapons which included firearms, knives, chains and meat cleavers and was likely to use the weapons against her. The husband whilst admitting to a ‘turbulent’ relationship with the wife and some incidents of violence said her claims were exaggerated. The trial Judge had rejected regulation 16(3)(b) defence commenting that it was not possible to determine the veracity of the allegations and that the evidence relating to them would be available only in New Zealand.
Held: Appeal dismissed.
The Full Court in rejecting the mother's appeal characterised the evidence as:
“almost entirely directed at the prospective threat to the wife of a return to New Zealand and more particularly to a return by her to Dunedin.” [170]
They said:
[171] Whilst there is nothing that requires the wife to return to New Zealand, it is obviously desirable and from the point of view of the children that she does so. However, there is no requirement imposed by this court that she or they must return to Dunedin. It is open for her to return to another part of New Zealand where the danger to her may be less and it is of course open to her to seek orders from the New Zealand courts both for personal protection and interim and final custody immediately upon her arrival in New Zealand. She can also, if she wishes, seek leave from the New Zealand court to take the children to Australia.
[172] As his Honour pointed out, New Zealand has a system of family law and provides legal protection to persons in fear of violence which is similar to the system in Australia.
[173] It would be presumptuous and offensive in the extreme for a court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand courts or that relevant New Zealand authorities would not enforce protection orders which are made by the courts.
[174] In our view and in accordance with the views expressed by this Court in Gsponer's case, the circumstances in which Regulation 16(3) comes into operation should be largely confined to situations where such protections are not available…
[175] For us to do otherwise would be to act on untested evidence to thwart the principal purposes of the Hague Convention which are to discourage child abduction and where such abduction has occurred to return such children to the country of habitual residence so the courts of that country can determine where or with whom their best interests lie. These children are New Zealand citizens who have lived all their lives in New Zealand and it is for a New Zealand court to determine their future.
Proceedings: Interim custody application
Facts: Parties married in 1978 and separated under one roof in March 1993. There are 2 children of the marriage aged 13 and 9 at the hearing. There was corroborated evidence of violence perpetrated by the father on the mother. The husband was convicted of assault upon the wife earlier in the same year of the hearing. He was “ordered not to assault, molest or interfere with” the mother. Regardless of these orders he continued to contact the mother and make threats to her and her family. The husband also verbally abused and belittled the mother in front of the children during the marriage. There were also multiple occasions of physical abuse throughout the marriage. Since separation the husband had given the 13 year old daughter Rohypnol and shared a bed with her. He was advised by the Department of Community Services not to do this. Also post separation, the father took out a life insurance policy for the mother. The mother moved from the matrimonial home to her mother’s house in June 1993. The children remained with the father.
Issues: In light of the father’s history of domestic violence and threats, what interim arrangements should be made for the care of the children?
Reasoning/Decision: Due to the violence of the father, the Court held that he was a risk to the children both physically and developmentally (he is an “inappropriate role model”). It was held that the children were to remain in the former matrimonial home to “preserve stability for the children and for their safety” and their mother was to have interim care of the children. The father was restrained from coming within 2 miles of the home due to “serious concerns as to the safety of the wife and the children”.
Matter: Parenting applications: father’s application for interim orders that he and the child X attend ongoing reunification therapy at his expense and subject to the recommendations of the therapist, he spend supervised time with X; mother’s application that she have sole parental responsibility for X, X reside with her and X only spend time with the father in accordance with X’s wishes. The Independent Children’s Lawyer sought orders in the terms proposed by the mother, and a restraint on the father attending X’s school. Earlier final parenting orders made by consent had provided for X to have graduated contact from supervised contact to each Thursday to Sunday. Between 2013 and 2015 the father had sporadic contact with X and each alleged the other was to blame for the lack of contact. Proceedings were recommenced in 2018 and orders made for the parties and child attend therapy with a view to reunification. The reunification therapy was unsuccessful with the therapist reporting the session was terminated early due to the father’s inability to focus on the child’s feelings or regulated his behaviour in response to the child, pressuring the child who was crying and distressed, despite the therapists attempts to encourage the father to engage in behaviour which was not experienced by the child as threatening.
Among other orders the father sought orders for reunification therapy in circumstances where the mother argued it was not in the child’s best interests to see the father because of controlling behaviours, disrespect of women and extreme religious beliefs [98]. The father denies the mother’s allegations.[99]
Decision: Inter alia X reside with the mother, the mother have sole parental responsibility and the father have contact in accordance with X’s wishes, the father be restrained by injunction from attending or being within 500 metres of any school X attends, the mother obtain therapeutic counselling for X to better address her fears and anxieties.
Per Bender J:
[100] As has been set out in this judgment, therapeutic reunification counselling to assist in rebuilding the relationship between X and the Father was not successful and was a distressing and unhappy experience for X.
[101] [expert witnesses] both expressed the view that a further attempt at such therapy could be too distressing for X, especially given her current levels of anxiety and fear and her resistance to spending any time with the Father.
[102] Therefore, the real question for this Court is whether the risk to X of a meaningful relationship with the Father is outweighed by the emotional and psychological risk to X in forcing her to undertake further counselling in the hope that a relationship with the Father might be achieved.
Proceedings: Contested parenting application.
Facts: The father was physically violent and verbally abusive to the mother and children ([79]). There were two Domestic Violence Orders in favour of the mother ([217]). The two eldest daughters suffered from depression and anxiety, cut themselves, and had self-esteem issues ([2]). The youngest son was diagnosed with autism, but the father refused to accept the diagnosis, and refused to make arrangements to reduce the son’s emotional distress ([162]).
Issues: Parenting orders to be made.
Decision and Reasoning: Judge Willis identified ‘grave concerns’ about the father’s ability to regulate his emotions and about his parenting skills to independently parent ([248]). The children had ‘suffered catastrophically’ from their parents’ separation and their exposure to the family violence ([2]). Due to the father’s admissions to family violence, the presumption of equal shared parental responsibility was rebutted ([238]).
Judge Willis remarked at [247]:
I have the impression that the mother has significant insight into her own behaviour and that of all of the children. She is acutely aware and has the skills to deal with Z and Y cutting themselves, of them suffering depression and anxiety and having self-esteem issues. Some of these issues will, no doubt, be directly related to their exposure to family violence. Day in day out, experts in this Court talk about the effect of family violence in children and their inability to sustain relationships, become depressed and blame themselves for breakdowns. All of these things have happened for Y and Z.
Judge Willis ordered that the father undertake an anger management course, and that the mother undertake a Domestic Violence course in relation to the cycle of violence ([232]-[233]). The judge ordered that the son have limited contact with the father (see Orders).
Matter: Mother’s application for residence, sole parental responsibility and contact for child X; Father’s application for residence, sole parental responsibility and contact for child X.
Issues: Best interests of child, whether the Father has been violent towards the Mother; and whether the Mother suffered from any mental illness or disorder which “significantly negatively affects her parenting”.
Facts: Each party’s evidence was that the other was not an appropriate parent. The mother alleged the Father perpetrated family violence against her and the Father alleged the mother had a mental illness or disorder which caused her to manufacture malicious allegations against the Father. The father had engaged in a pattern of coercive and controlling behaviour by repeated texts and telephone calls and at least one late night attendance at her home. The Court expressed concerns that the Mother’s reports of the Father’s domestic violence towards her to hospital staff following hospital attendance whilst injured and pregnant were not investigated by the Department of Family and Children’s Services of New South Wales (“the Department”) as the parties had resumed their relationship when the mother refused service.
It emerged in cross-examination of the Father that he had failed to disclose his involvement in other litigation, in the Family Court with his ex-wife and various local courts in relation to other family violence matters. The Father had made repeated groundless, repeated, repeated allegations against the Mother to Police, the Department and various medical practitioners. He also failed to comply with procedural and counselling requirements expeditiously.
Decision and reasoning: Ordered that the mother have sole parental responsibility and reside with the mother, the father to have contact. The father denied all allegations against him and had a complete lack of insight into the impact of his behaviour.
The allegations raised by Mr Atkinson at various points in the proceedings have, on their face, appeared highly concerning. The Court has, accordingly, proceeded with some caution and consumed vast resources in the determination of serial Interim Applications. When each of those allegations, serious on their face, have been examined they have been found wanting substantial, if any, support. Indeed, the actions taken by Mr Atkinson in seeking to obtain evidence, photographing the child, presenting the child to a Doctor on a weekly basis and presenting the child to the Police, is, upon the evidence as it has unfolded, far more injurious to the child than that complained of. The repetition of those behaviours is a far greater concern as to future risk than anything complained of as regards the mother.[440]
In light of the findings that have been made by the Court regarding the perpetration of family violence by Mr Atkinson upon Ms Atkinson, it would be entirely unreasonable and onerous to impose upon Ms Atkinson a burden to consult and endeavour to make joint and consensual decisions with Mr Atkinson. To that end and whilst it is submitted on behalf of Mr Atkinson that the Court should find that these parents have “differing parenting styles rather than family violence”, I make clear that this submission is rejected. What has occurred in the relationship between Mr and Ms Atkinson is, I am satisfied, family violence.[473]
Proceedings: Application for the admissibility of evidence.
Facts: On the first day of the final parenting hearing in relation to the parties’ only child X, counsel for the mother sought the Court’s leave to tender four short audio recordings of conversations between the mother and father that took place prior to separation. The mother accepted that these recordings were made without the knowledge of the father, that they are ‘private conversations’ and were therefore prima facie made in contravention of s 7 of the Surveillance Devices Act 2007 (NSW). However, counsel for the mother submitted that the recordings were admissible because the recordings were ‘reasonably necessary’ to protect her lawful interests (s 7(3)) or, alternatively, the evidence ought to be admitted under s 138(1) of the Evidence Act 1995 (NSW) because the desirability of admitting the evidence outweighed the undesirability of doing so.
Issue/s:
Reasoning/decision: Sexton J held that the mother’s conduct was lawful under s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) and therefore the recordings were admitted on this basis. In making this finding, Sexton J held that first, s 7(3)(b)(i) was satisfied in relation to the term ‘lawful interests’ as the mother had the right to protect her interest not to be intimidated or harassed, and not to be forced to respond to the father’s demands for sexual activity: DW v R (see [19]-[23]).
Second, Sexton J was satisfied that the recordings were ‘reasonably necessary’ (‘reasonably appropriate’ as opposed to ‘essential’ and judged objectively at the time of the recordings) to protect those lawful interests: DW v R. Here, the mother made the recordings for the purpose of having evidence which she could use to convince others to believe her, or to corroborate her word, or to protect herself and the child from further behaviour. Sexton J stated that, ‘[w]hile the complainant in the present case is an adult, she was, if her evidence is accepted, caught up in an abusive relationship with a man who damaged her self-worth and left her miserable and exhausted. If this was so, as the Court found in R v Coutts, it may not have been a realistic option for her to report her predicament to police and obtain a warrant for conversations with her husband to be recorded’ (see [29]). The evidence also disclosed that the father may have had a very different public face to his private face. The mother was not trying to obtain a confession but to establish her credibility if there was ever a dispute about what actually happened (see [24]-[31]).
Although the matter did not turn on the issue, Sexton J also considered whether the evidence should be admitted on the basis that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence. Sexton J concluded that had it been necessary, she would have exercised the discretion to admit the evidence for a number of reasons including that the evidence was highly probative to making parenting orders in the best interests of the child, the allegations were extremely serious and it was necessary for the court to determine if the child was at risk in the father’s care, the impropriety of the mother in making the recordings was not of the “worst kind”, and it was “unlikely” the mother could have gained consent to make the recordings (see [32]-[36]).
Matter: Mother’s appeal from order for equal shared parental responsibility.
Facts: A final parenting order made 8 April 2022 provided that the parties have equal shared parental responsibility for their child, X, born in 2016. The order was made subsequent to a consent order which provided for a graduated increase in the father’s contact with the child to the point he spends alternate weekends and one night in the alternate week with the father. The father had been physically violent towards the mother on one occasion and the father accepted that he had held his hand over his older daughter, Y’s mouth to prevent her screaming. No criminal charges were laid re Y’s allegations but she was named as the protected person in a protection order issued against the father and had not had contact with him since September 2017. The primary judge held that the father’s admission of violence against the mother was relevant to the determination that the presumption of equal shared parental responsibility did not apply to the matter. The primary judge held that the mother’s conduct in limiting the time the child spent with the father and her insistence upon supervision amounted to controlling conduct for the purpose of the definition of family violence in s4AB of the Family Law Act 1975 (Cth).
Held: Appeal dismissed, costs certificates issue in favour of the mother, the father and the independent children’s lawyer.
The primary judge’s error in finding that the mother’s behaviour amounted to controlling conduct did not impact the result of the case, and therefore the appeal was dismissed.
McClelland DCJ and Campton JJ) observed that ‘controversially… the primary judge also found that the mother’s conduct in limiting the amount of time the child spent with the father and her insistence upon such time being supervised amounted to controlling conduct for the purpose of the definition of family violence as set out in s 4AB of the Act’ [6], noting:
[16] In the context of the facts and circumstances of this case, we respectfully agree with Bennett J that the conduct of the mother in limiting the amount of time that the child spent with the father could not reasonably be determined to be coercive or controlling conduct for the purposes of s 4AB(1). In that respect, there was no finding that the mother’s concerns for the welfare of the child were other than genuine in the context where she had herself been the subject of one violent assault by the father and had witnessed the father’s admittedly unacceptable conduct towards Y. There was no finding that the mother acted capriciously or maliciously. Indeed, as noted by Bennett J, the mother was acting in accordance with orders of the Court after 30 January 2019.
[17] The mere fact that the mother’s conduct in limiting the child’s time with the father could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence as defined in s 4AB(1). Context is all important. There was no finding that the mother was acting other than protectively towards the child. Such conduct, in the context of the Act, which has a strong focus on the promotion of the welfare of children and protecting them from being exposed to violence, cannot, in our respectful opinion, in the circumstances of this appeal, reasonably ground a finding of family violence as defined in s 4AB of the Act.
Bennett J observed:
[71] Section 4AB of the Act is drafted in very wide terms in order to catch behaviour which is thought to be undesirable. In so doing, the section also catches behaviour which is both acceptable and necessary (for example, exerting control over a child in the exercise of the parenting powers). Therefore, in practical terms and save for blatant acts of family violence, an evaluation of evidence to ascertain the context in which alleged behaviour took place may be a precondition to the Court characterising behaviour as family violence within the meaning of s 4AB. Contextualising the behaviour calls for findings of fact.
[85] In placing the mother’s behaviour in context, I assume that the relevant period during which the primary judge found that the mother’s behaviour constituted family violence was from the child’s birth until the first parenting order, that is, from 2016 to 30 January 2019. However, there is no analysis of evidence or reasoning by the primary judge as to why the mother’s behaviour around the child spending time with the father “initially” (or otherwise) is evaluated as behaviour that controlled the child in the sense contemplated by s 4AB(1) as family violence.
[87] Whilst it is uncontroversial that the mother did not allow unsupervised time between the father and the child when she and the father were living separately and apart prior to orders being made, the primary judge does not identify the extent to which the father’s limited participation in the first three years of the child’s life is attributable to the mother’s behaviour, or why the control exercised by the mother was not consistent with steps taken by a parent who is acting protectively.
[88] The primary judge refers to the mother’s behaviour as controlling of the child, the father and of the child’s relationship with the father. However, his Honour’s reasons do not include an analysis of the evidence or findings about the respects in which he was satisfied that the mother’s behaviour exceeded legitimate parental control and should be characterised as family violence.
Matter: Appeal against family law parenting decision.
Facts:
The appellant father and first respondent mother had four children. When he was nearly 7, their eldest son alleged that his father had sexually assaulted him. As a result, the mother sought to prevent the father from having access to all four children. The father argued that the mother had encouraged the son to make false allegations against him. The mother agreed to consent orders allowing the father to have unsupervised access to the children knowing that the second respondent, the Department of Communities, would intervene to prevent this [66]. The independent children’s lawyer was also party to the proceedings.
At trial, the central issue was whether the father posed an unacceptable risk of harm to the children [69]. The primary judge found that, although it was not possible to find on the balance of probabilities that the father had perpetrated the abuse, he posed an unacceptable risk to the children and contact should be supervised [75].
Grounds:
(1) In relation to the standard of proof, the primary judge misapplied s140 of the Evidence Act (balance of probabilities in civil cases) and should have made a finding about unacceptable risk on this basis.
(2) In relation to tendency evidence, the primary judge considered tendency evidence that should not have been admitted under Part 3.6 of the Evidence Act 1995 (Cth), regardless of the father’s failure to object [98].
Held: Appeal dismissed.
The court noted the comprehensive and prescriptive requirement to consider “unacceptable risk” when making parenting orders:
[58] …s 60CG of the [Family Law] Act [1975] exhorts courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interest will be advanced, s 60CC(2)(b) of the Act obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence”, for which purpose the terms “abuse” and “family violence” are very widely defined in ss4(1) and 4 AB of the Act respectively.
(1) On the standard of proof, the primary judge was correct in separating the need to make a finding on the balance of probabilities in relation to fact (ie did the father sexually assault his son?) and the question of future risk (ie is the father an unacceptable risk to the children?) [83]. While the question of future risk is ‘evidence-based’ and ‘not discretionary’ [85], the court held that even if the risk were only possible, not probable, it would be unacceptable [86].
(2) On tendency evidence, under Part VII of Family Law Act (children), large tranches of the Evidence Act do not normally apply [88]. However, given that the mother and Department sought a finding that the father had committed the criminal offence of sexual assault, the primary judge decided under s69ZT(3) before proceedings had commenced that the Evidence Act would apply [91]-[93]. The relevant tendency evidence was the father’s apparent sexual interest in other adolescents and his alleged interest in child exploitation material [103]. Although the father could have objected to the admission of this evidence at trial, he did not and so could not object on appeal [95, 97]. Despite the admission of this evidence, the primary judge was unable to find that the father had committed the sexual assault, so the appeal court held that the father had suffered no prejudice [103].
Matter: Mother’s application in a proceeding, seeking orders for reportable intensive family therapy to be conducted by Dr B. to address alleged parental alienation of the mother by the father.
Facts: The children resided with the father and there was evidence the children’s relationship with the mother was fractured and the children had been resistant to contact with the mother since March 2022 when they last had supervised contact with the mother at a contact centre. It appeared the children had refused to participate in contact pursuant to a consent order made September 2022 that the younger child have unsupervised contact with the mother from after school until 7 pm each Friday afternoon which the older child could join if he desired. The court was unable to consider the mother’s allegation that the father had alienated the children from her in the interim hearing.
Newbrun J considered proposals for children to attend intensive family therapy in the context of mother’s allegations of parental alienation by father:
[9] The Court has a real concern that the children may be exposed to a significant risk of psychological harm if they participate in the intensive therapy Reportable Intensive Family Therapy (“RIFT”) model proposed by the Mother to be afforded by the psychologist Dr B. And further, the Court has a real concern that should the children be required to participate in the proposed intensive therapy RIFT model that they may well become even more resistant to spending time with the Mother; if this risk comes to pass, then the prospect of restoring the children’s relationship with the Mother may become even more difficult.
[38] As to the Mother’s proposed order that Dr B be permitted to conduct intensive four day family therapy RIFT model [Reportable Intensive Family Therapy], and provide an expert report in relation to the issue of parental alienation, the Court is of the view that such an order would not be in the best interests of the children, and nor would such an order be in the interests of justice, and in reaching these views, and in summary, takes into account the following matters having regard to rule 7.04 and section 13C(1)(c) Family Law Act 1975 (Cth):
Case type: Appeal against parenting order.
Facts: The father was an Australian resident who met and married the mother in Country B. They moved to Australia where their daughter was born in 2017. The father made repeated notifications to the Department of Child Safety alleging that the mother used corporal punishment to discipline the child contrary to Australian standards [44], [68]. From videos posted on social media by the father, it was evident that the father did not listen to the child and coached her to make allegations of violence against the mother [56], [111]. The mother did not speak English well and she yielded to the father’s demands to agree to his unsupervised contact with the child in consent orders [26]-[30].
In previous proceedings the Court ordered the father be assessed for drug and alcohol use but he refused to participate [19]. In a search of the premises executing a recovery order for return of the child, police found weapons at the father’s house and charged him with offences under the Weapons Act [36]. In 2015, the father was self-medicating with anti-anxiety drugs when he admitted himself as an inpatient in a mental health unit. He said he had daily intrusive thoughts about killing the mother [124]. He discussed with other inpatients a plan to stalk his treating psychiatrist with intent to harm him and his family [129]. The father’s mother (ie the child’s paternal grandmother) applied for a domestic violence order against the father in 2019 [143]. The Court considered that there was ‘ample evidence’ that the father had engaged in family violence towards the mother [149].
Issue: The best interests of the child.
Held: The Court ordered that the mother have sole parental responsibility for the child, that the child live with the mother and that the mother be permitted to relocate with the child. The Court ordered that the father should have no time and no communication with the child.
The mother did not pose a risk to the child [116]. After an intervention by police and a social worker, the mother changed her approach and reduced her reliance on physical discipline [67]. The child was happy living with the mother [290].
The father was assessed by a forensic psychiatrist as being a high risk of suicide and murder-suicide, including kidnapping and absconding with the child, and an even higher risk to others generally [234]. He was also assessed as having a narcissistic personality and an anti-social personality disorder [219]. His postings on social media and abusive threats against his wife were in breach of a court order and he demonstrated contempt towards the Family Court and legal processes [305].
Although the father claimed to be the victim of physical violence from the mother, what concerned Judge Vasta was the father’s coercive control of the mother:
Proceedings: The proceedings were for the determination of parenting arrangements for a five-year old child (X) of the two parties.
Issue: The parties agreed that the child should live with the mother. However, at issue was:
The alleged risks posed by the father were that:
Facts: The mother left her home country at a young age for another foreign country for an arranged marriage with the father and the couple later moved to Australia. The mother had only a basic level of education and spoke very limited English.
The parties separated after living together in Melbourne for two years. The mother applied for a protection order and the child (X) lived with her. Pursuant to an interim parenting order, X spent a few hours of supervised contact with his father each week. Subsequently, unsupervised contact was ordered with changeover at a supervised contact centre. The mother was late to changeover on several occasions and eventually stopped bringing X altogether before moving with the child to Sydney.
The mother made extensive allegations of family violence against the father which occurred over the course of their marriage and afterwards. These included coercive and controlling behaviour, physical abuse such as choking and beatings, sexual assault, threats and humiliation (both from the father and family/community members), monitoring her movements, denying her economic autonomy and depriving her of liberty.
The alleged risks posed by the father were that:
Reasoning: Beckhouse J accepted the mother’s account, finding that:
Beckhouse J stated that it was not necessary to make factual findings about the occurrence of each alleged individual incident ([202], s4AB(1)). The lack of eye-witnesses, inconsistencies and delayed reporting were not an impediment, particularly given the cultural barriers to disclosure. The mother’s evidence was detailed and specific, corroborated by external agencies and was understood in the context of the cyclical nature of family violence and her cultural and personal background. The father’s ‘blanket denials’ offered no plausible explanation or alternatives.
Beckhouse J found that this risk could not be ameliorated. The father had displayed a lack of responsibility for his conduct and demonstrated no desire to change. His extensive familial and community support network was viewed as a ‘double-edged sword,’ as the paternal family potentially helped conceal his conduct and he failed to understand how ongoing communication with the maternal family impacted the mother.
It was determined that contact orders would cause the mother stress and anxiety, to the detriment of her parenting ability. Given this and the risk that X would be leveraged as a weapon, both supervised time and video communication were deemed unviable.
Orders: The child reside with the mother and she have sole parental responsibility. The child have no contact or communication with the father, the child be removed from the international travel watchlist and the mother be permitted to obtain a passport for the child and travel overseas without the father’s consent.
Additionally, the father was permitted to send X a birthday message every year.
Backhouse J noted at [243] that in establishing whether a person is ‘fearful’ under s4AB(1) : “fear can arise from a culmination of events and patterns of behaviour”.
Backhouse J observed at [202]:
…There are some specific individual characteristics in this matter that lead me to place less weight on inconsistent versions of events given by the mother. English was not the mother’s first language. She was poorly educated. She spoke through an interpreter. I cannot be satisfied she would have understood how domestic and family violence is defined in Australia.
Issue: Contact.
Facts: Orders for the children to reside with the mother and have alternate weekend contact with the father had been made following trial in 2003. The father has multiple criminal convictions for violent family violence offending against numerous former partners which predated the first trial for which he was convicted after the 2003 trial. The father commenced the current proceedings by filing a contravention application, which related to his lack of contact in accordance with the 2003 orders for a seven-year period (a portion of which time he was in custody serving a term of imprisonment for violent offending against the mother and two other former partners). Interim orders suspended all previous contact orders. The father sought orders for contact and to receive updates on the children’s educational progress.
The father had a long history of illicit drug consumption, controlling abusive behaviours to domestic partners, had mental health issues and conceded that, at the time of the hearing, had no meaningful relationship with the children. It was also conceded that the children were present in the same building in which quite serious family violence occurred up until 2004, though it was not conceded that the family violence was necessarily perpetrated against the mother.
Decision and Reasoning: It was ordered that the mother have sole parental responsibility for the children, the children reside with the mother and have no contact with the father.
At [30], the Court favourably refers to research quoted in the decision of the Court of Criminal Appeal on the Crown manifest inadequacy appeal in relation to the father’s sentencing, cited as R v Hamid [2006] NSWCCA 302 (20 September 2006) at [77]:
An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pages 6-7.
It was concluded, on the basis of the father’s criminal history, the children’s fear of and lack of relationship with their father that no order for contact or communication should be made. The children were found to be at risk of psychological or physical harm if their relationship with the father was to resume.
Charges: Assault occasioning bodily harm whilst armed x 1; common assault x 1.
Proceedings: Application for review of decision to refuse protection visa under s 65 of the Migration Act 1958 (Cth).
Facts: The female applicant and her husband were in an arranged marriage in Sri Lanka. Over the course of the marriage her husband was physically violent – including striking and choking her,– he humiliated her, verbally abused her with sexual language, tormented her about her religion and forced her to do sexual acts. He prevented her from contacting her family over a17 year period. The husband was emotionally and psychologically abusive towards their daughter and on one occasion threw their 8-year-old son against the wall when the applicant disobeyed him. Given her husband’s respected status as a doctor and the lack of responsiveness of the Sri Lankan police to domestic violence reports, the applicant never reported the conduct.
She fled to Australia in 2012 on the pretence of visiting her son and daughter who had moved here to study, ceased contact with her husband and subsequently applied for a Protection Visa.
Issue: Did the applicant have a well-founded fear of persecution from her husband upon returning to Sri Lanka such that she was a person to whom Australia has protection obligations as a refugee pursuant to s36(2)(a) Migration Act 1958 (Cth).
Decision and reasoning: The tribunal accepted the applicant’s evidence that she was subjected to domestic and family violence from her husband in Sri Lanka and she had a well-founded fear of persecution. The tribunal acknowledged that some confusion and possible exaggeration from the applicant in giving evidence “may be attributable to the impact of past trauma and her psychological disorder, as referenced by her treating psychiatrists”, citing the National Domestic and Family Violence Bench Book on trauma-informed judicial practice[28]. The tribunal accepted that the experience of domestic violence victimisation may negatively impact memory and recount in court. The Tribunal accepted that the applicant and her daughter’s evidence described constant controlling and threatening behaviour by the applicant’s husband, referring to the description of coercive control in the National Domestic and Family Violence Bench Book.
The Tribunal found that while the applicant had not had contact with her husband for ten years, his past behaviour, her defiance of him and his proximity to the applicant’s family home in Sri Lanka posed a real risk that he would try to harm her [36]. The intentional and selective nature of the harm involved systematic and discriminatory conduct [37], s5J(4)(c) and was characterised as gender-based violence, meaning that her fear of persecution related to membership of the social group of women in Sri Lanka [38], s5J(1)(a). DFAT country information evidenced the unchecked occurrence of such violence in Sri Lanka and lack of effective protection available [40]-[42]. Cultural factors also substantiated the applicant’s claim that internal relocation would not mitigate the risk of harm, as the presence of a single woman would attract attention and likely enable her to be found [43].
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.
Proceedings: Application for review of the decision made by a delegate of the Minister for Immigration to cancel Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).
Facts: The applicant, Mr X, came to Australia at the age of 7 and was 47 years old at the date of decision. He had an extensive criminal history commencing in 1996 including multiple series of domestic violence offending, the first commencing December 2001, the second commencing November 2007 and the third in 2009. There was also a series of domestic violence offences in 2016 and 2018. Mr X’s explanations did not fully correlate to the convictions and tended to minimize his offending. His former partner’s children were removed from her care following the offending and returned to her care after Mr X’s visa was revoked and he was taken into immigration detention. He has a history of breaches of community corrections orders, bipolar disorder and drug and alcohol misuse (addressed while in prison). He is the father of 4 children, 3 of whom are adults, the youngest 17 years old, and has contact with and good relationships with 3 of his children. He has no family or support in New Zealand. The delegate relied on his ongoing risk of offending to women with whom he may be in a domestic relationship pursuant to s116(1)(e) of the Act.
Issues:
is made out, and if so,
Decision and Reasoning: Decision to cancel the applicant’s Subclass 444 (Special Category) visa affirmed.
The Tribunal held that Mr X may be a risk to individuals in the community and in particular previous and future domestic partners and a risk to children in the household (shown by the removal of his former partner’s children). The factors which favour Mr X remaining in Australia do not outweigh the risk he poses to a segment of the community.
The Tribunal considered the distress and hardship Mr X would experience if returned to New Zealand, the likely impact on his children and mental health, his strong ties to the Australian community, his continued minimization of his offending, longstanding issues of aggression towards domestic partners and repeated non-compliance with court orders. The Tribunal also considered the fact that if the decision to cancel his visa is affirmed, he will be removed from Australia and be unlikely to be able to return. Consideration was also given to the fact that since his visa was cancelled he was sentenced to a further period of imprisonment, meaning he has a substantial criminal record as defined in s 501(7) of the Act; thus, if the visa cancellation is revoked his visa is likely be cancelled again.
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.
Proceedings: The mother’s application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) of a decision to dismiss her objection to the determination of Services Australia – Child Support (the Agency) that the care percentages of 80% to the mother and 20% to the father of the two younger children should be reflected in the child support assessment for an interim period.
Facts: The mother and father are parents of three children in respect of whom there has been a child support assessment in place since 8 January 2020, which reflected that the mother had 100% care of all three children In March 2021 the father advised the Agency that since September 2020 there had been court orders in place granting him 14 per cent care of the children and that the mother had withheld care since November 2020. On 7 December 2020 the father filed an application for interim orders seeking 100% care of the children and to enforce the existing orders and commenced contravention proceedings on 11 February 2021. The Agency made an interim care decision that from the November 2020 to September 2021 the care record must reflect that the father had a care percentage of 20% care on the basis the mother withheld care and the father was taking reasonable action to have the court-ordered care arrangement complied with. The mother’s evidence was that the children ran away from the father when he attended their school to collect them, that they are fearful of him due to his history of violence towards the mother during the relationship, and that they have not had contact with the father for three years. The mother consented to disclosure of confidential notes from counselling sessions with her psychotherapist (including some sessions with the children in which they expressed their fear of the father) spanning a 10 year period from the time of separation.
Issues:
Decision and Reasoning: The decision under review was set aside, and in substitution the tribunal decided that from 7 November 2020 the mother has had 100 per cent care of the children for the purpose of s51 of the Act.
The tribunal was satisfied that the father took reasonable action to ensure the court-ordered care arrangements were complied with for the purposes of section 51 of the Act. In respect of the father, as required by subsections 51(2), (3) and (4) of the Act, the first care percentage is 14% while the second percentage is 0%.
In the special circumstances of this case as they relate to the children of the assessment, the father should not have the benefit of an interim period. On balance, the tribunal was satisfied that the father’s own behaviour had significantly contributed to the care arrangements not being complied with. The tribunal placed significant weight on contemporaneous counselling records which reflected that the children had disclosed that they were exposed to family violence perpetrated by the father and were subsequently fearful of the father.
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.
Proceedings: The father’s application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) of the decision to dismiss his objection to the determination of Services Australia – Child Support (the Agency) pursuant to s51 Child Support (Assessment) Act 1989 that the mother’s actual 100 per cent care of the child should be reflected in the child support assessment and no interim care determination should be made.
Facts: The mother and father are parents of one child (aged 12) in respect of whom there has been a child support assessment in place since 30 September 2009. Parenting orders dated June 2020 provide that the child will spend 5 nights per fortnight and half of each school holidays in the care of the father. The pre-existing care determination was 33% care to the father and 67% care to the mother, which accorded with the care provided for in the parenting orders. On 18 December 2020 the mother advised the Agency that the child was in her 100% care due to a medical crisis, namely that the child had threatened suicide if returned to the father’s care. The child’s psychiatrist directed the child should reside with the mother and not be required to reside with the father. Medical records confirming this advice were adduced at the hearing. The father disagreed with the care change due to the court orders. The father did not respond to a disputed care contact letter issued by the Agency and on 16 February 2021 a delegate of the Agency decided that care of the child was 100% to the mother and 0% to the father from 2 November 2020. The father provided the court orders and reason for decision which make mention of the child’s mental health and the mother provided a provisional protection order made on 8 March 2021 for the protection of the child (which was later withdrawn). On 24 March 2021 an objections officer disallowed the father’s objection and the father sought review by the tribunal.
Issues:
Decision and Reasoning: Decision affirmed.
From 20 November 2020 the child’s actual care was 100% to the mother and 0% to the father. The tribunal acknowledged that there was a court-ordered care arrangement in place that was not being adhered to, and that the father contended that he was taking reasonable action to have his court-ordered care restored. However, the tribunal found that special circumstances existed on the basis of the psychiatrist’s advice that the child remain wholly in the mother’s care due to his medical crisis, and that it was therefore appropriate to determine the respective care percentages based on actual care, rather than making an interim care determination by reference to the parenting orders.
Proceedings: Application for review of decision not to revoke cancellation of visa.
Facts: A delegate of the Minister (the respondent) mandatorily cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence. The applicant made written representations to the respondent requesting revocation of the cancellation of the visa. The respondent declined to revoke the cancellation.
Issues: Under s 501CA(4) of the Act, the original decision may be revoked if –
Decision and reasoning: Application for review of decision not to revoke cancellation of the applicant’s visa was dismissed.
Issues 1: The applicant had a “substantial criminal record”. He did not pass the character test defined in s 501(6) of the Act and could not rely on s 501CA(4)(b)(i) as a reason for the mandatory cancellation of the visa to be revoked.
Issue 2: The Tribunal was required to consider “Primary Considerations” under Direction 79 (as well as “Other Considerations”).
On Primary Consideration A “Protection of the Australian community from criminal or other serious conduct”, the Tribunal member noted that under the Direction she was “not limited to considering proven offences” but “required to consider the nature and seriousness of the applicant’s ‘conduct to date’.” This included an incident where the applicant damaged his ex-partner’s new partner’s car, grabbed his ex-partner, and threatened her and her new partner with violence. This was “very serious conduct” (at [52]). The applicant had also committed 34 criminal offences and had a lengthy traffic history. There was a moderate risk he would commit further offences. Primary Consideration A weighed heavily against revocation of the cancellation of the Applicant’s visa ([49]-[84]).
Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia
Proceedings: Application for review of the decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Partner (Temporary) visa (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
Facts: The applicant, Ms. D claimed that her relationship with Mr P, the visa sponsor, had ceased and she had been the victim of family violence. She applied for Partner (Temporary) visa (Class UK) visa under s.65 of the Migration Act 1958 (the Act). A delegate of the Minister refused to grant a visa to the applicant on the basis that she did not meet cl.820.211(2)(a) of the Migration Regulations (1994) because the evidence failed to demonstrate that the applicant was the de facto partner of the sponsor, as defined under section 5CB of the Act.
Issues: To grant a Partner (Temporary) visa (Class UK) visa, the Tribunal must be satisfied:
Decision and Reasoning: The Tribunal found that there was a de facto relationship and it had ceased but found there was no family violence, so affirming the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
After considering the financial and social aspects of the relationship, the nature of the household and the persons’ commitment to each other, the Tribunal member was satisfied that the applicant and sponsor had been in a de facto relationship, and the relationship had ceased [14].
Relying on statutory declarations provided by a social worker and a psychologist and a mental health plan written by a medical practitioner, the applicant made a non-judicially determined (see r1.24 and 1.25 Migration Regulations (1994)) claim of family violence.
After considering the evidence, the Tribunal member was not satisfied that the applicant had suffered relevant family violence. The Tribunal member found no evidence of physical violence and was not convinced that the psychological trauma experienced by the applicant met the test required by the legislation to sustain a claim of family violence [28]. The Tribunal sought the opinion of an independent expert.
The Independent expert report (the report) found that “the sponsor’s conduct did not cause [Ms. D] to reasonably fear for, or to be reasonably apprehensive about, her well-being or safety. … [Ms. D] said that she has maintained a friendship with the sponsor despite him reportedly continuing to verbally abuse her.”[33] The report found the applicant had not experienced family violence outlined in r1.21 Migration Regulations (1994).
The applicant challenged the report. The Tribunal member was concerned as to whether the applicant had been afforded procedural fairness [42] and a second hearing took place.
The Tribunal member considered the written responses of the applicant and her agent to the report, the responses of the independent expert to the matters raised by the applicant and her agent and discussed these issues with the applicant and her agent at the second hearing [62]. The Tribunal member found that the applicant had not suffered family violence committed by the sponsor.
Case type: Review
Facts: The female applicant sought review of the decision of the Administrative Appeals Tribunal Social Services and Child Support Division, which affirmed the decision of the Department of Human Services rejecting her new start allowance claim because she had a compensation lump sum preclusion period from 2 March 2010 to 21 April 2025. The applicant had received a workers compensation lump sum payment for injuries suffered in a motor vehicle accident. Her evidence was that she suffered severe financial hardship as her abusive male ex-partner had accessed and gambled her savings. She terminated the relationship and had to sell her home due to her financial difficulties, retaining about $400,000. The relationship resumed and he used her ATM card to take money from her bank account threatening to beat her if she did not provide access to her funds. The applicant finally terminated the relationship and said he had taken all the money which she had following the sale of her house which represented all that remained of the settlement sum she had received ([67]). The applicant was unable to obtain continuous employment and was experiencing severe financial hardship ([79]).
Issue: Whether special circumstances exist.
Held: The Tribunal set aside the decision and held that the applicant’s circumstances were "special" pursuant to s 1184K, such that much of her compensation payment should be treated as not having been made so as to reduce the preclusion period applicable to her compensation payment so that it ended on 21 May 2020 ([82]). The special circumstances in accordance with s 1184K(1) related to the totality of the applicant’s circumstances, including her financial hardship, her injuries, her financial deprivation following domestic violence and financial abuse ([79]).
The hearing was conducted via telephone in accordance with the provisions of the Tribunal’s COVID-19 Special Measures Practice Direction - Freedom of Information, General and Veterans’ Appeals Divisions ([29]).
Proceedings: Complaint under s 36(1) of the Privacy Act 1988 (Cth) (Privacy Act).
Facts: The female complainant was receiving Centrelink payments administered by Services Australia (the respondent) while living with her former male partner. She obtained an Apprehended Violence Order (which her partner was imprisoned for breaching). The complainant notified the respondent of her separation from the partner, but the respondent considered the separation unverified. Their online records continued to be linked meaning that if the complainant updated her address online, her partner’s address would also be updated. Her former partner posted a screenshot of the complainant’s new address to social media and made threats against her and her current partner.
Issues: Whether Services Australia interfered with the complainant’s privacy as defined in the Privacy Act 1988 (Cth).
Decision and reasoning: The Commissioner found that the respondent interfered with the complainant’s privacy by:
In addition to ordering compensation for non-economic loss (including re-activation of psychological symptoms and distress) and expenditure incurred in association with the privacy complaint, and ordering an apology, the Agency was required to undertake an audit of policies, procedures, and systems to ensure the privacy breach was not repeated or continued. The Commissioner noted at [156]-[160]:
The effect of this privacy breach on the complainant has been significant. This is in large part due to the fact that she feared harm from the former partner… While the changes the respondent has made are encouraging, I remain concerned that individuals are at risk of their personal information being disclosed to former partners.
[…]
It is appropriate for the respondent to put in place more robust measures where the consequences for individuals are more significant. It is therefore appropriate to have special measures in place to protect individuals identified as being at risk of domestic violence. However, I remain concerned about the risks to individuals seeking to update their own address and not that of their former partner, where the respondent is not satisfied that the individual has in fact separated from their partner, regardless of whether they have a history of family or domestic violence. The ‘reasonable steps test’ is one that takes into account all relevant circumstances, including what is practical and what is required where the adverse consequences to particular individuals are significant.
I therefore see no reason to limit the audit to a particular cohort of individuals, including those at risk of family domestic violence. It is appropriate in order to address the grievance to target the situation where an individual makes unverified claims to have separated from, or to be no longer living with, their partner, and seeks to update their address, whether online or in person.”
Proceedings: Complaint under s 36(1) of the Privacy Act 1988 (Cth) (Privacy Act).
Facts: The female complainant’s complaint concerned the disclosure of her personal information, collected by the former Child Support Agency for a Tribunal hearing, to the complainant’s ex-partner. She claimed that the personal information revealed the places she visited which she had attempted to keep hidden from the ex-partner as she feared harm.
Issues: Whether Services Australia interfered with the complainant’s privacy as defined in the Privacy Act.
Decision and reasoning: Services Australia interfered with the complainant’s privacy, breaching the Information Privacy Principles (IPP), by disclosing the complainant’s personal information in breach of IPP 11. The locational information disclosed was not relevant to the decision under review by the Tribunal and the complainant was therefore not likely aware that information of its kind would be disclosed.
In terms of damages, the Commission accepted that the complainant had already disclosed some of the places she had frequented through other processes. The Commissioner noted at [75]-[76]:
“I do not consider that the previously disclosed information negates the complainant’s claim to have feared the ex-partner locating her. The complainant clearly went to some lengths to redact certain information from the documents she provided in the primary decision process and I accept her claim that she thought carefully about what information to disclose.”
“However, I am of the view that in all the circumstances, the degree by which the disclosure contributed to the complainant’s fear of being located by the ex-partner was not significant. I place weight on the fact that the complainant had disclosed some locations to the ex-partner during the COA process and that she continued to maintain a PO Box at the same post office as the ex-partner. I also note the absence of any evidence showing that the complainant sought the assistance of police. While I accept the complainant’s claims to have feared being located by the ex-partner, these claims are not so specific and detailed (nor are they supported by specific and detailed corroborating evidence) as to cause me to form the view that the disclosure exacerbated her fear of being located to a significant extent.”
The Commissioner was satisfied that the privacy breach had caused the complainant distress, but no other claimed damage. She was awarded $3,000 for non-economic loss.
Proceedings: Review of refusal access decision under Freedom of Information Act 1982 (Cth).
Facts: The applicant applied to the Australian Federal Police (AFP) for access to “any notes made on myself by the Australian Federal Police. Not criminal records, but any and all police files/notes made on me.” The AFP exempted access to 13 folios in part under s 47F (the personal privacy exemption) of the Freedom of Information Act 1982 (Cth). Some exempt material included names, dates of birth and contact details of third party individuals, and information pertaining to an alleged domestic violence incident.
Issues: Whether the material the AFP found to be exempt under s 47F was conditionally exempt. If so, whether giving the applicant access to conditionally exempt documents would, on balance, be contrary to the public interest (s 11A(5)).
Decision and reasoning: Access to personal information of third party individuals and about an alleged domestic violence incident involving the applicant was refused.
Taking into account the nature of the information, that the information was provided for a limited purpose and was not well-known or available from other public sources, the Commissioner accepted the AFP’s submission that disclosure could undermine a range of processes intended to protect individuals and could discourage those who may be affected by domestic violence from coming forward to police. The Commissioner was satisfied disclosure would be unreasonable and the relevant material was conditionally exempt under s 47F. It was also contrary to the public interest to give the applicant access to the conditionally exempt documents at this time.
Proceedings: Complaint under s 36(1) of the Privacy Act 1988 (Cth) (Privacy Act).
Facts: The complainant worked as a judge in the family law jurisdiction. He requested that Telstra connect a phone line to his home for the sole purpose of an alarm system installed by the Court. Telstra set up the phone line and published the complainant’s name, address and the phone number in both the White Pages online and in the hard copy directory.
Issues: Whether Telstra had breached the complainant’s privacy.
Decision and reasoning: Telstra interfered with the complainant's privacy by failing to take reasonable steps to provide notice to the complainant that it would use and disclose his personal information for the purpose of publishing it in the White Pages, in breach of National Privacy Principle (NPP) 1.3. Telstra was ordered to apologise, review its processes and review its Privacy Statement.
Telstra was also ordered to pay the complainant $18,000 for non-economic loss. In reaching this amount, the Commissioner noted the following evidence from the complainant:
“Since the publication of my details a litigant from a matter decided by me has begun to loiter at and about our home. As my details and those of my partner are suppressed on every public register I infer his knowledge of our address is the White Pages site…
“We have just moved to our home and our enjoyment of it has been rudely interrupted…We both jump whenever the street bell rings. I have applied to be transferred interstate. On moving we will incur moving costs, expenses re sale of our home and costs of resettling… We will both have expenses travelling to visit family and friends as our lives, to date, have been in [omitted]…
“The invasion of and prejudice to my privacy and personal safety can be readily envisioned as arising for others such as victims of crime, women fleeing domestic violence and the like.”
In awarding compensation, the commissioner was guided by severity of the impact of the privacy breach on the complainant (with concerns for his/his partner’s safely leading him to move interstate); the added security threat he/his partner were exposed to; the responsibility of Telstra as an organisation to have appropriate measures in place; and the extent of the publication to a very wide audience in both online and hard copy form.
Proceedings: Review of refusal access decision under Freedom of Information Act 1982 (Cth).
Facts: The applicant applied to the Department to access specific documents related to his ex-wife. The Department refused access to 11 documents saying disclosure would reveal information provided in confidence and personal information about third parties, of which disclosure would be unreasonable and contrary to public interest.
Issues: Whether the documents were exempt under ss 45 (material obtained in confidence) and 47F (personal privacy exemption) of the FOI Act.
Decision and reasoning: Access refused.
Documents exempt under s 45 included statutory declarations made by the applicant’s ex-wife and other third parties in relation to her application for permanent residency in Australia, as well as a record of interview with the ex-wife and letter sent by a third party. The commissioner was satisfied that disclosure of the documents sought would cause detriment to the applicant’s ex-wife. The Commissioner was satisfied that disclosure of the documents sought would be a breach of confidence and the documents were exempt under s 45.
Documents exempt under s 47F were general correspondence in relation to the applicant’s ex-wife visa applications. The documents contained personal information of the applicant’s ex-wife, the applicant and or third parties, which was of a sensitive and personal nature (including names/other information). Disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy, and an agency’s ability to obtain confidential information and to obtain similar information in the future. Giving the applicant access to the documents was contrary to the public interest.
In reaching the decision, Acting Information Commissioner Pirani stated:
“[20] The Department has created Form 1040 for the purposes of a visa applicant providing documentation in relation to family violence matters. This was the form used by the applicant’s ex-wife in support of the visa application. Form 1040 states that the information provided in the form ‘is given and received on the understanding that it will be treated in confidence’.”
Proceedings: Review of refusal access decision under Freedom of Information Act 1982 (Cth).
Facts: The applicant’s relationship with his former partner ended and she applied for a Subclass 100 visa on domestic violence grounds. The applicant applied to the Department for access to all material in any form relating to his former partner. The Department applied the material obtained in confidence exemption (s 45) and the personal privacy exemption (s 47F) to statutory declarations made by the applicant’s former partner and a competent person in relation to a visa application made by the applicant’s partner under the family violence provisions of the Migration Regulations.
Issues: Whether the documents were, inter-alia, exempt under s 45 (material obtained in confidence).
Decision and reasoning: Access refused. In particular, the Commission was satisfied that the statutory declarations were communicated and received on the basis of a mutual understanding of confidence between the applicant’s former partner and the Department and the competent person. Disclosure “would result in detriment to the authors of the statutory declarations as it would reveal private matters relating to the allegations of family violence. The disclosure of this information may cause a level of embarrassment and discomfort to the authors of the statutory declarations”. The Commissioner was satisfied that unauthorised disclosure of the information contained in the documents would cause detriment to the applicant’s former partner and the competent person.
Charges: Common assault x 1; Contravening a Family Violence Order x 1.
Proceedings: Appeal from ACT Supreme Court against convictions imposed in the ACT Magistrates Court.
Facts: The male appellant and female complainant were married and living together. The appellant kicked the complainant’s leg during an argument. The applicant breached a family violence order by engaging in offensive or harassing behaviour towards the complainant or by harassing, threatening or intimidating her. The complainant made an audio-recording and a central issue in the appeal was whether the magistrate in the initial hearing had erred in ruling that the audio recording was admissible. The appellant’s appeal to the Supreme Court against his conviction was dismissed: NS v Hotchkis [2019] ACTSC 309 (8 November 2019).
Grounds of appeal: The primary appeal judge erred in dismissing the first appeal on grounds that:
Held: Appeal dismissed.
Ground 1: There was no error in the primary judge’s conclusion that ss 4 and 5 were not breached, as the complainant believed, on reasonable grounds, the recording was necessary for the protection of her lawful interests. Further, there was no error in concluding there was no prohibition in s 10 for the admissibility of the conversation. No question of the application of s 138 of the Evidence Act arose.
Ground 2: The primary judge reviewed the evidence, set out findings of fact and reasons given by the magistrate, and referred to the appellant’s submissions that the statements made did not breach the family violence order. There was no error in the primary judge’s conclusion:
“I have no hesitation in agreeing with the Magistrate that the evidence established a breach of the family violence order. Having listening to the recording on numerous occasions, I am satisfied that his conduct was, and was intended to be, harassing and intimidating. I agree with the Magistrate that he was yelling at [the complainant], and that his tone was aggressive. His suggestion that he was talking to the dog is improbable, but in any event I am satisfied that his conduct was really directed towards [the complainant], and intimidating her.”
“In finding the appellant guilty of assault, the Magistrate was entitled to take into account the clear aggression demonstrated by the appellant at the time that [the complainant] says she was kicked. She was also entitled to find that the appellant had threatened to “snot” [the complainant], and that this was a threat to hit her. The Magistrate was also entitled to find that the accused had kicked the rubbish bin just before he kicked the complainant, although his intention may have been to scare the dog. These were all circumstances supportive of the evidence of [the complainant]. Finally, the Magistrate had the benefit of seeing and hearing [the complainant] cross examined and the appellant giving his evidence. Her finding that [the complainant] was a credible witness, and the appellant was not, should not lightly be interfered with. I am satisfied that there was ample evidence upon which the Magistrate was entitled to convict the appellant.”
Proceedings: Appeal of Family Violence Order.
Facts: The matter was an appeal to the Court of Appeal following a final Family Violence Order (FVO) made against the appellant by the Chief Magistrate, and upheld on appeal by the Primary Judge: TS v DT [2019] ACTSC 295 (25 October 2019). The appellant sought that the FVO made by the Chief Magistrate be quashed, and no further orders made excluding the appellant from the premises of the family home (where the respondent was living).
Issues: The male appellant applied to adduce additional evidence in the appeal. The appellant also raised 12 grounds of appeal: the decisions of the Chief Magistrate (Ground 1) and Primary Judge (Ground 2) were unreasonable and not supported by evidence; the Chief Magistrate erred in running a final hearing on the FVO application (Grounds 3 and 10), making an FVO that was too long (2 years from final hearing) (Ground 4) and applying the Browne v Dunn principle (Ground 5); the Primary Judge attempted to cover up the Chief Magistrate’s alleged misconduct (Ground 6); the Chief Magistrate erred in law by relying on 2018 convictions (Ground 7) and the 2007/8 incident to support the making of the FVO (Ground 8); there was judicial misconduct by the Chief Justice in the conduct of the final hearing (Ground 9); and there was failure to have regard to evidence including relating to “property law issues” and the accommodation difficulties of the appellant (Grounds 11 and 12).
Decision and reasoning: The application to adduce additional evidence was refused ([52]-[64]), and the grounds of appeal were dismissed ([65]-[162]).
On Grounds 1 and 2, the decisions of the Chief Magistrate and Primary Judge were not unreasonable and were supported by evidence (including specific instances of violence against the respondent and her son, further supported by criminal convictions of the appellant) ([66]-[87]).
On Grounds 3 and 10, there was no error in making a final order excluding the appellant from access to the family home as the proceedings were run as a final hearing ([88]-[100], [142]-[143]). On Ground 4, the FVO’s duration was grounded in statute. Further, the Chief Magistrate weighed the competing interests of the appellant and the respondent (including the appellant’s accommodation difficulties) but found these could only be remedied by excluding the appellant from the family home ([101]-[112]). On Ground 5, there was no error in application of the Browne v Dunn principle ([113-[122]) and on Ground 6, there was no evidence of judicial bias ([123]-[125]).
On Ground 7, there was no miscarriage of justice relating to the 2018 convictions (which confirmed findings of instances of violence and substantiated the respondent’s fear) ([126]-[131]) and on Ground 8, appropriate regard was had to an incident in 2007/8 ([132]-[137]). On Ground 9, the Chief Magistrate’s conduct during the hearing was unremarkable ([138]-[141]).
On Grounds 11 and 12, the Chief Magistrate and Primary Judge had due regard to the evidence presented by the appellant, including evidence relating to “property law issues” and the accommodation circumstances of the appellant ([142]-[161]). On the property law issues, at [153]-[154], the Court noted:
“The appellant contends that the respondent had an additional purpose in seeking as a condition of the final FVO that the appellant be excluded from the family house – namely, an objective on the respondent’s part to obtain sole ownership of the family home. As I noted earlier, irrespective whether this was the case, there was clear evidence before the Chief Magistrate that the respondent would have difficulty relocating her place of residence and, further, that there was a history of violent conduct on the part of the appellant towards the respondent which supported the final FVO being made.
Further, and notwithstanding the submissions of the appellant to the contrary, the ultimate proper disposition of assets is a matter for the family law proceedings. That the respondent may seek sole ownership of the matrimonial home in those proceedings does not mean that her claims under the FV Act had no basis.”
Charges: Burglary x 1 (guilty); Unlawful confinement x 1 (guilty); Choking x 1 (guilty); Indecent assault x 1 (not guilty); Choking x 1 (not guilty); Intentionally causing property damage x 3 (not guilty); Stealing CCTV hard drive x 1 (not guilty).
Proceedings: Application for leave to amend notice of appeal and for leave to appeal (grounds 3, 4, 6 and 7) and appeal against conviction and sentence.
Facts: The trial court found that the appellant man broke into his former partner’s (the complainant’s) house before dragging her from bed and strangling her. The complainant’s evidence was that the appellant ‘made her stay’ in the room by threatening to strangle her if she tried to leave, strangling her multiple times and threatening to kill her. The appellant allegedly committed property damage. There was some delay before the complainant alleged that the appellant had indecently assaulted her. The appellant allegedly ripped out the CCTV hard drive before leaving. The appellant also allegedly slashed the tyres of the complainant’s car.
Grounds of appeal: (1) Verdicts were inconsistent; (2) Verdicts were unreasonable, unsafe and unsatisfactory; … (6) Trial judge erred in making factual findings; (7) Sentences were manifestly excessive.
Decision and reasoning:
Grounds (1)-(2) Dismissed.
There were rational explanations why the jury may have acquitted the appellant of some charges while finding the appellant guilty on others. One factor identified was that the complainant was upset and frightened; she ‘may have misremembered matters or failed to appreciate details’, although the complainant did make some errors in her evidence and did not directly witness some of the alleged charges/events. Where there were inconsistencies in the complainant’s evidence, the jury may have accepted that this was because she had just ‘survived a gruelling series of events’ [101].
Ground (6) Allowed.
Two of the trial judge’s factual errors did not reduce the objective seriousness of the offence to something less than ‘midrange’:
[155] The offence was committed in the complainant’s home, during the night. It was motivated by a desire to vent anger and assert physical control over the complainant in response to her termination of the relationship. The offence was of not insignificant duration. It was associated with violence and a threat to kill; whether the violence was properly described as “extreme violence” poses a semantic question that is unnecessary to answer.
A third factual error of substance required the Court of Appeal to resentence on Counts 1, 2 and 3.
Ground (7) Allowed. Total sentence reduced from 5 years and 5 months to 3 years and 6 months.
Offences: Common assault x2; possessing offensive weapon with intent x1; d amaging property x 2; make demand with threat to kill x1; aggravated dangerous driving x1
Proceedings: Appeal against sentence
Issues: The Crown submitted that the sentences were manifestly inadequate:
Facts: R (the appellant man) and C (the complainant woman) were in a relationship at the time of offending. An argument had broken out after R told C he wanted to commit suicide. R grabbed C as she tried to leave their shared bedroom and pushed her onto the bed (first common assault). He then retrieved a large axe from their wardrobe. R pushed C to the ground while they struggled over the axe (second common assault) and swung the axe at her head, narrowly missing. R used the axe to damage items within the house before forcing the couple’s four children into his car. He left and returned several times to demand C get in the car. He eventually threatened to kill their eldest daughter with the axe if C did not get in but drove away once more as police approached his vehicle. This led to a large-scale search. The R was located and arrested later that evening. While all four children were physically unharmed, the eldest daughter was later assessed by a paediatrician who thought it was likely that the offences significantly impacted her emotional and behavioural wellbeing.
On the day of offending, the respondent had failed to take his prescribed antidepressant medication and had consumed a significant quantity of alcohol.
Initially R pleaded not guilty to all charges. Following discussions between the parties the respondent pleaded guilty to six charges and was committed to the Supreme Court for sentence.
The sentencing judge imposed a total sentence of 16 months’ imprisonment.
Judgment: In addressing the first aspect, the Court noted that while the offender’s mental health condition somewhat reduced his moral culpability, it was still necessary to consider the sentencing purposes of general deterrence and denunciation. By failing to reflect these purposes, along with the high objective seriousness of the offence, the sentence starting point of 18 months’ imprisonment for the offence of making a demand with threat to kill was "plainly unreasonable" [69-71]. For the second aspect, the Court believed the degree of cumulation failed to achieve a total sentence that was just and appropriate to reflect the overall criminality [73]. The Court did not make a decision as to the third aspect as they had found they had already found the sentences to be manifestly inadequate for other reasons. Despite finding the sentences manifestly inadequate, the Court refused to resentence the offender on the basis that the appeal raised no point of principle, had limited precedent value and would disrupt the offender’s rehabilitation [97].
The Court also discussed the preliminary issue of the correct approach to sentencing for family violence offences and the correct manner of dealing with the effect of a sentence of imprisonment on the offender’s family [44]. The Court rejected the Crown’s contention that family violence offences constitute a special category of offence in relation to which different sentencing principles apply, and instead provided that absent a statutory provision to the contrary, the same sentencing standards should apply to all offenders (Bugmy v The Queen) [48]-[51].
Charges: Engaging in sexual intercourse without consent and being reckless as to whether the person was consenting x 1.
Appeal type: Defendant’s appeal against conviction and Crown appeal against sentence.
Facts: The complainant and defendant were in a relationship ([11]). The defendant asked the complainant to leave the house; she did not want to leave. The complainant alleged that the defendant held her down and digitally penetrated her ([13]). The defendant denied that he digitally penetrated the complainant, and alleged that she damaged a number of his belongings ([14]). The defendant called the police about the property damage, and the complainant called the police about the sexual assault 2 hours later ([20]-[21]). A medical examination of the complainant revealed abrasions consistent with assault ([23]).
The defendant was convicted at trial. He was sentenced to 2 years and 6 months’ imprisonment, served by way of intensive correction order (‘ICO’), and 100 hours’ community service ([2]).
Issues: The defendant appealed against conviction on 3 grounds: (a) the verdict was unsafe and unsatisfactory; (b) the trial judge caused a miscarriage of justice by failing to fairly put the defence case to the jury; and (c) the trial judge caused a miscarriage of justice by failing to direct the jury that the complainant had a motive to lie.
The Crown appealed on the ground that the sentence was manifestly inadequate.
Decision and Reasoning: Both the defendant’s appeal against conviction and Crown appeal against sentenced were dismissed ([8]).
Appeal against conviction
On ground (a), the defendant argued that the verdict was unsafe and unsatisfactory having regard to the unreliability of the complainant’s evidence. The Court (Murrell CJ, Bromwich J and Robinson AJ) held that while it was ‘somewhat implausible’ that the complainant did not cause the property damage, it was open to the jury to convict the defendant ([53]).
On grounds (b) and (c), the defendant argued that the judge should have directed the jury on the complainant’s possible motive to lie to avoid the consequences of her causing the property damage. However, the Court stated that the summing up was fair, given that the motive to lie was not a large issue in the trial ([66]-[68]).
Crown appeal against sentence
The Crown argued that by ordering an ICO, the trial judge failed to give adequate weight ‘to the principle that, for family violence offences, the sentencing purposes of general deterrence and denunciation are particularly important’ ([96]). The Court reiterated the importance of general and specific deterrence in sentencing family violence offenders ([97]), however, the Court emphasised the exceptional nature of the offending at [99]:
This was not a typical offence of family violence. There was no evidence of a history of domestic violence, controlling behaviour or psychological abuse. There were none of the typical indicia of power imbalance. Rather, the offence occurred in the context of a relationship ending, without those features apparently being present.
Imposing an ICO, while lenient, was justified by the defendant’s subjective circumstances, such as his lack of criminal history, and the fact that there was no history of domestic violence in the relationship ([129]-[130]).
Charge/s: Trafficking in cocaine, assault occasioning actual bodily harm (two counts), forcible confinement, perverting the course of justice. Grievous bodily harm.
Appeal Type: Appeal against sentence.
Facts: The sentence imposed at first instance related to three distinct instances of criminality: the drug offence, the domestic violence offences and the perverting the course of justice offence. The domestic violence offences involved the appellant severely beating his then domestic partner which caused horrific injuries. He also choked her in the presence of his young son, restrained her from leaving their premises and forced her to take prescription sedatives so as to prevent her from seeking medical treatment which would reveal the assaults. He detained her for 24 hours. The perverting the course of justice offence involved the appellant encouraging his (by then former) partner not to attend court in relation to the domestic violence charges and encouraging her to produce false evidence about her psychological frame of mind. The aggregate sentence imposed was 12 years and 11 months’ imprisonment with a non-parole period of 8 years and 4 months.
Issue/s: Whether the aggregate sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The appellant submitted that the domestic violence sentences should not have been made cumulative on the sentences for the drug offences. He also submitted that the sentencing judge did not apply the totality principle. The Court held that while the aggregate sentence could be considered by some to be somewhat harsh, it was not unreasonable and was appropriate having regard to all the circumstances. There was no overlap in the three instances of criminality, nor could it be said that the three incidents arose from a single episode or course of conduct, ‘such that the criminality involved in one of the incidents was subsumed or comprehended in the others’ (see at [29]). The sentencing judge did take accumulation, concurrency and totality into account and did impose a degree of concurrency.
Charge/s: Intentionally inflicting actual bodily harm, choking so as to render unconscious.
Appeal Type: Appeal against sentence.
Facts: The appellant’s marriage with his wife ended and she obtained a domestic violence protection order against him (though this was not in place at the time of the offence). The appellant went to the family home and an argument ensued, which developed into a physical fight. The appellant then took a chair from his wife (which she was threatening to throw at him) and struck her with it so forcefully that it broke into pieces. He then choked her until she became unconscious. He then wrapped a towel around her neck and used both hands to pull the material down toward the floor. A domestic violence protection order was previously in place in favour of the victim. He was subject to a good behaviour order at the time of the offences imposed for a prior breach of the protection order. He was sentenced to a total of four years and seven months’ imprisonment with a non-parole period of three years and one month.
Issue/s:
Decision and Reasoning: The appeal was dismissed.
Charge/s: Assault, contravention of a protection order.
Appeal type: Appeal against conviction and appeal against sentence.
Facts: The appellant was charged with assaulting his female partner (‘the complainant’) and contravening a protection order in her favour. He pleaded guilty to assault but not guilty to contravening a protection order. The offending came to light after a police officer (‘the informant’) attended the complainant’s premises. The informant observed that the complainant was very distressed and had bruises on her body. A conversation between the complainant and the informant was recorded. In this conversation, the complainant made some allegations that the appellant had hit her but she was largely unresponsive to questions and was affected to a considerable degree by alcohol (See [41]-[43]). At trial, the prosecution sought to prove the tape and transcript of this conversation only for its possible use in refreshing the complainant’s memory. However, counsel for the appellant, Mr Elmaraazey, tendered this document as evidence (‘exhibit 3’).
The complainant was called to give evidence after the informant. When asked about whether there was an incident between her and the appellant, she stated ‘I can’t remember the exact details’ and proceeded to give an account of the evening that made no reference to any physical violence. She agreed that she had a conversation with the informant but could not recall its contents. The prosecution then proceeded to cross-examine the complainant about the various bruises that had been observed on her that evening. The complainant said she could not remember how the bruises happened. The prosecution applied to the magistrate for leave to cross-examine the complainant on the basis that the witness had made a prior inconsistent statement with reference to exhibit 3. Mr Elmaraazey did not object. The complainant’s response was to accept that exhibit 3 accurately reflected what she had told the informant but she could neither confirm nor deny that it represented what actually happened (See [26]-[40]). Accordingly, absent the tender of exhibit 3 as evidence, there would have been insufficient evidence to convict the appellant (See [47]).
The magistrate found the appellant had assaulted the complainant and sentenced him to 12 months imprisonment for the assault and 3 months imprisonment for the breach of protection order. He was sentenced to an additional 6 months imprisonment for breach of an earlier imposed recognisance.
Issue/s:
Decision and reasoning: The appeal was allowed. First, in the absence of the tender of exhibit 3 by Mr Elmaraazey, it was, at the very least, unlikely that the statement would have been admitted as evidence that the appellant assaulted the complainant. It was open to the prosecutor to seek leave to give the statement to the complainant to refresh her memory, if s 32 of the Evidence Act were satisfied. However, the failure of this process to refresh the complainant’s memory meant the prosecutor could not tender the prior statement as evidence of the truth of its contents (See [145]-[180]). There was a resulting miscarriage of justice (See [181]-[191]).
Second, the sentencing judge erred in assuming that all the injuries resulted from the charged assault. Even if the terms of exhibit 3 had been properly proved, they included an allegation of assault that had occurred the previous evening. The only unequivocal allegation of recent violence was that the appellant hit her in the face on their return from the shops. It was an error not to attempt to distinguish between the violence inflicted the previous night and those in the hours preceding the interview with the informant (See [196]-[207]).
Proceedings: Appeal from Registrar of Magistrate Courts’ refusal to list application for a temporary extension of a final protection order for urgent hearing.
Facts: The female applicant sought an extension of a final family violence order (and temporary extension pending the hearing) due to expire the same day. She sought an urgent hearing of the application and that it be heard in the absence of the respondent.
The Registrar of the Magistrates Court refused to list the matter that day and the temporary application was listed a week later. The applicant was informed that the application in the proceeding must be served on the respondent. The applicant then appealed from the decision not to list the matter on an urgent basis and the requirement to serve documents on the respondent. The appeal was listed on an expedited basis.
Reasoning and decision: The matter was adjourned without making a decision on the application or appeal, as the judge found that the court did not have jurisdiction over the Registrar’s decision.
Loukas-Karlsson J considered the jurisdiction of the Supreme Court to deal with the matter under s 92 of the Family Violence Act, determining that the court would have power over a registrar’s refusal to make an amendment to the final order. However, Her Honour found the registrar’s decision in this case did not constitute a refusal and was effectively related to internal listing matters. The fact that the Registrar had listed the application for a week’s time was clear evidence that they had not refused the application.
The applicant had raised r 3803(c ) (Court Procedures Rules 2006 (ACT)), excluding family violence proceedings from appeals (r 6256), to argue that there was no avenue for an appeal in the Magistrates Court. However, Her Honour determined that the order could be varied at the Magistrate’s discretion as finding otherwise would leave the appellant with no avenue to challenge an order.
Her Honour considered that the appellant had taken reasonable steps to attempt to serve the application and affirmed that the Magistrate had the power to vary or amend the Registrar’s order requiring personal service.
In the addendum, Her Honour noted that the decision not to hear the application for a temporary extension on the day it was made was ‘remarkable’ and left the applicant with no protection.
Proceedings: DPP pre-trial application for:
Facts: The respondent had been charged with two counts of sexual intercourse without consent and plead not guilty to each.
The respondent and complainant had been in a relationship for a few months. The charges related to an incident during the relationship where the respondent digitally penetrated the complainant’s anus and had anal intercourse with her despite her objections and resistance. She claimed that she continued in the relationship for a short time following the assaults as a matter of self-preservation, feeling it would be dangerous for her to end the relationship. She sought medical assistance and subsequently disclosed the sexual assault before ultimately making a police complaint.
The complainant’s father, whose evidence included the changes he noted in the complainant’s demeanour after the alleged incident, suffered from a significant cardiac condition.
Reasoning and decision:
Baker J was satisfied that the complainant suffered anxiety, stress, PTSD and elements of depression. While there was no evidence of these conditions continuing, her Honour emphasised that the stress of giving evidence in court could lead to an exacerbation of the issues.
While the conditions were recognised as potentially affecting someone’s ability to communicate, HH found that there was no evidence from the police interview or medical records indicating that the complainant’s conditions had affected her ability to communicate. Her Honour highlighted that the purpose of a witness intermediary is not to reduce stress or be a support person but to facilitate communication and refused the application.
Proceedings: Bail application.
Facts: The applicant had been refused bail by a Magistrate. He subsequently pleaded guilty to multiple charges, including domestic violence offences against his former partner. The applicant gave evidence that he had remained drug free while in custody, despite drugs being readily available. He was unable to enter a rehabilitation program unless he was released and had the powerful motivating factor that he has been advised by Child Youth and Protection Services he would not have care of his two children until he completed a course of residential rehabilitation.
Reasoning and decision: Bail granted.
The applicant’s recent plea of guilty to a number offences constituted a change in circumstances, removing the risk to the applicant’s partner that she would be prevailed upon by him to withdraw complaints.
Special and exceptional circumstances were also found in the new incentives for the applicant to undertake residential rehabilitation. McCallum CJ reasoned that the fixing of the sentencing date would motivate rehabilitation and, more significantly, Child Youth and Protection Services has notified him that he had to undergo rehabilitation before they would restore care of his two children. This included the infant child he had with his current partner who was victim to some of the domestic violence offences.
While there was evidence of a history of conflict with his current partner, this occurred while he was addicted to ice and the Court accepted that he appears to have remained drug free since being in custody. While some risk of him returning to drugs was identified, McCallum CJ found that it was warranted to allow the applicant the opportunity to rehabilitate.
Proceedings: Sentencing following a plea of guilty to:
Facts: The offender and victim were in a relationship. A protection order had been granted on application of the victim but was ‘consensually not complied with’ and the relationship between the offender and victim continued [4].
Common assault: After an argument, the defendant took the victim’s phone from her and she went into the bathroom to take a bath. Further argument ensued in the bathroom, during which the offender put his hands around the victim’s throat without squeezing, before pushing her back against the vanity unit.
Choke, suffocate or strangle: After a verbal argument, the victim tried to make the offender leave. He forced his way into the house and carried the victim over his shoulder into the bedroom while she screamed for help. The defendant shoved her and pushed her down onto the bed, telling her to be quiet and placing his hand over her mouth. The victim had difficulty breathing and sustained a minor lip injury.
Sexual intercourse without consent: The offender visited the victim’s residence after she had been drinking all day and was substantially intoxicated. The victim fell asleep and woke to find the defendant rubbing her vagina. She initially responded consensually to avoid a fight but then feigned being asleep in the hope that by letting it continue, the seriousness of the offence would allow her to leave the relationship. While she pretended to sleep, the defendant had sexual intercourse with her.
Contravene family violence order: Following the sexual assault, the victim blocked the offender’s contact and social media but he continued to contact her. One evening he visited her residence and the victim activated security sirens, making him leave. She later told him to return to take away food he had left outside the house. He attended the premises several times that evening and during one visit the victim’s sister told him to leave. He also spoke briefly with the victim.
Reasoning and decision: An aggregate sentence of 24 months’ imprisonment with a non-parole period of 14 months was imposed.
Mossop J considered the objective seriousness of the four offences and the offender’s subjective circumstances.
The common assault was found to be in the mid-range of seriousness, attributable to the act’s demonstration of dominance and control within an intimate relationship. The strangulation was determined to be in the low-mid range, given the apparently short duration and fact that the victim did not appear to have approached passing out or sustained significant injury. The unusual circumstances of the sexual intercourse without consent charge – being the victim’s deliberate behaviour to first indicate consent and then pretend to be asleep in the hope that the offender would commit an offence – in the context of a relationship which included sexual intercourse led to a finding of low range objective seriousness.
The offender was found to have some relevant difficulties in his background, having been brought up with an alcoholic and abusive father. This moderated the significance of general deterrence slightly subject to the countervailing necessity for specific deterrence given his significant history of past domestic and family violence. This included assaults of the victim and a past partner and her child, and multiple contraventions of protection orders. Mossop J highlighted that while the present offending was not objectively high on a spectrum of seriousness, his criminal history revealed a disturbing pattern of offending directed towards intimate partners, making denunciation, deterrence and recognition of harm significant sentencing purposes.
While the offender had expressed some empathy about the victim and indicated a willingness to engage in family violence intervention programs, the evidence of his ‘patchy’ prior engagement in similar programs weakened his prospects of rehabilitation [41].
Charge: Stalking.
Case type: Appeal against sentence.
Facts: The offender was found guilty of stalking his ex-wife (the victim) under s 35 of the Crimes Act (1900) (ACT). A conviction was not recorded on the basis that the offending was at the lowest end of the spectrum and the offender was already being punished extra-curially by not being allowed to see his children. On six occasions over a period of around four months, the offender had followed the victim’s car after handover of the children, when the children, aged four, seven and ten, were either in his car or in the victim’s car.
Issue: The DPP appealed against the sentence on the basis that:
Held: appeal upheld on the basis that the sentence was manifestly inadequate. Kennett J ordered the previous sentence be set aside, that a conviction be recorded and that the offender be placed on a good behavior bond for 12 months.
In relation to the second ground of appeal, the offender believed that he had lost his job and lost access to his children as a result of the charges. His Honour noted that ‘some degree of career turbulence will often be a very predictable, if not inevitable, consequence of offending’ [21]. His Honour contrasted this with the position regarding loss of contact with children:
Loss of contact with his children was, for the respondent, a far from surprising consequence of committing a stalking offence against his former wife in circumstances where the children were present. However, it arises from his family circumstances; it is not something every stalker should expect. There was material before the Magistrate indicating it left the respondent distraught. As a discretionary factor it could legitimately be given little weight; however, I do not think that the Magistrate erred in principle by taking it into account. [23]
Matter: Appeal of decision of a Magistrate to extend the term of a protection order granted to the respondent woman DT, which among other terms prevented the appellant man, TS from residing in the matrimonial home (which protection order was the subject of TS v DT [2020] ACTCA 43 (27 August 2020) and an earlier appeal) for a period of 12 months (it having been extended a number of times previously on an interim basis).
Facts: The protection order, among other terms, prevented TS from residing in the former family home (that protection order was the subject of TS v DT [2020] ACTCA 43 (27 August 2020) and an earlier appeal) for a period of 12 months (it had been extended a number of times previously on an interim basis). TS argued DT had the means to obtain alternative accommodation and TS could not afford alternative accommodation, hence should be allowed to reside in the former family home, envisioning either the parties living separately under one roof (as they had between 2008 and 2017) or DT vacating the former family home so that TS could reside there. TS claimed the protection order application was a tactic to force TS to accept an outcome in property proceedings contrary to his best interests. DT gave (largely unchallenged) evidence that TS continued to subject her to daily abuse, and that she remained fearful of TS, particularly if they were to reside under one roof. TS had not filed a response to DT’s then Federal Circuit Court application for property orders in relation to the former matrimonial home and orders had been made in that court that if he did not respond orders would be made unopposed in terms of DT’s application (granting DT sole ownership of the former matrimonial home or proceeds of sale thereof). DT submitted evidence of his psychiatric disorder.
Grounds: (Taken from TS’s application)
Issues:
Whether the only consideration in an application to extend a protection order is whether the protection order is no longer necessary to protect the applicant from family violence (s86 Family Violence Act 2016) or whether the requirement to consider “hardship” to a respondent in s14 of that Act is a relevant consideration on an extension application.
Decision and reasoning: Appeal dismissed, decision appealed from affirmed.
While the Magistrate erred in considering s 14 of the Family Violence Act 2016, TS failed to demonstrate that there was any change in the circumstances (including his attitude or the circumstances of the parties reducing or eliminating the risk posed by TS to DT) justifying the grant of the protection order which had been twice affirmed on appeal. Kennett J held that in fact TS’s conduct of the proceedings and focus on his “right” to reside in the home demonstrated a continued need for the protection order, as did his continued minimisation of the 2017 events which resulted in his conviction for common assault and the original grant of the protection order. The parties’ continued conflict in relation to property matters in Australia and in Sri Lanka also indicated a continued need for the protection order.
Charges: Assault occasioning actual bodily harm x 5; Property damage; Possess offensive weapon with intent; choking (common assault x 2; Non-consensual sharing of explicit images; Trespass x 2; Property damage; Contravention of a Family Violence Order x 7; Aggravated stalking; Attempt to pervert the course of justice x 2; Stalking x 3; Attempt to contravene a Family Violence Order; Use of a carriage service to harass.
Proceedings: Re-sentence following appeal.
Facts: The male offender was 43 years old with no prior criminal history. The offending against his wife spanned nearly 10 years and included multiple offences on numerous occasions. The complaints came to light when the victim separated from the offender and sought a Family Violence Protection Order. The offender subsequently repeatedly breached the Family Violence Order, including whilst in custody.
The offender had a traumatic childhood and was diagnosed with Bipolar Disorder, Attachment Disorder and Complex Post-Traumatic Stress Disorder. He and his former wife married in 2000 and had two children. He successfully appealed his original sentence of a total period of imprisonment of nine years and eight months, with a non-parole period of five years and eight months in Morrison v Maher [2021] ACTSC 312 (8 December 2021) on the basis of conceded errors of reasoning in the original sentencing decision (Maher v Morrison [2020] ACTMC 26 (17 December 2020)).
Decision and reasoning:
Mossop J observed at [105]:
The offending involves serious domestic violence offending. It is offending directed to the maintenance of control over the victim. It occurred in the context of a relationship where physical and emotional tools were used to maintain that control. It occurred in the victim’s home. Some of the offences directly involved the children. Others indirectly involved the children through the creation of a climate of fear. The assessment of the objective seriousness of the offending must be made with due regard to that context.
Charges: Sexual intercourse without consent x 4; committing an act of indecency without consent x 8; committing an act of indecency in presence of a young person x 3; non-consensual distribution of intimate images x 7.
Proceedings: Sentence.
Facts: Between1 January 2011 and 22 April 2012 the male accused committed the first series of offences against his then partner, KD. Between 12 December 2017 and 28 September 2018 the accused committed the second series of offences against his then wife, NM. Following her separation from the accused NM discovered evidence the accused had taken photographs of her naked while she was asleep, which she later reported to police. Coincidentally KD’s mother discovered an SD card containing images and videos of the accused committing sexual offences against KD while she was unconscious. The execution of a search warrant on the accused’s premises revealed further images and videos of sexual offences committed against NM, including some committed in the presence of NM and the accused’s son. A number of the images and videos were uploaded to pornographic websites without the consent of either victim, and a number were distributed to another person via email.
The accused was a victim of childhood sexual abuse and multiple psychological report suggested he had symptoms consistent with PTSD, major depressive disorder, ADHD and alcohol misuse disorder, although it was apparent he did not disclose the full extent of his offending to all of the report-writers. He entered pleas of guilty at an early stage.
Decision and Reasoning: Aggregate sentence of 9 years and 10 months’ imprisonment, with a non-parole period of 5 years and 10 months’ imprisonment.
Only sentences of full-time imprisonment were appropriate and Burns J noted at [115]:
It is also important that the sentences I impose mark the community’s abhorrence of sexual offending, particularly against intimate partners. All women have the right to feel safe in their domestic relationships. Like all members of the community, they have the right to have their physical integrity respected.
Charge: Sexual intercourse without consent; contravention of family violence order (FVO); the pleas in full satisfaction of the indictment on the basis that the facts relating to a charge of choking, suffocating or strangling, and three transfer charges of common assault, would be taken into account in relation to the contravention of the FVO.
Facts: The offences were committed by the male offender against his female partner over 2 days in March 2020. Their relationship involved domestic violence, including controlling and abusive behaviour by the offender towards the victim. An incident of assault by the offender against the victim in February 2019 led to criminal charges and an FVO was made by the ACT Magistrates Court on 7 May 2019 for 12 months. On the offender’s release from custody after serving a sentence of imprisonment for the assault the parties resumed cohabitation. The victim sought to leave on 24 March, booking herself into a hotel. In a series of text messages the offender threatened suicide and urged the victim to return, which she did. The offender repeatedly applied force to the victim’s throat over a period of 10 minutes causing her to become short of breath, then removed her underpants and digitally penetrated her vagina without her consent and wiped his hands on her face. The offender forced the victim to drive him to McDonalds, and when they returned questioned her, and not accepting her answers, slapped her face. The victim was too frightened to leave. When the offender woke in the morning he elbowed her as he got out of bed, then they went to the hotel to retrieve the victim’s belongings. On the way out the victim was able to seek help from the receptionist who hid her from the offender, and police were called. The victim’s victim impact statement described a range of trauma-related impacts of the offending.
Sentence: 40 months and 12 days (three years, four months and 12 days), with a non-parole period of 28 months, approximately 70 per cent of the head sentence.
Mossop J observed:
[44] The circumstances of this case involve a disturbing example of domestic violence. The offender has a criminal history, including previous offences directed to the current victim, that means he is not entitled to leniency. I do not place any significant weight upon the remorse communicated to the author of the pre-sentence report. I accept that statements unsupported by evidence that is able to be tested should be treated with great caution: see Barbaro v R [2012] VSCA 288; 226 A Crim R 354 at [38] and Imbornone v R [2017] NSWCCA 144 at [57].
Charges: Grievous bodily harm x 1.
Proceedings: Sentencing.
Facts: The male offender applied force to the face of his pregnant female partner during an argument. The following day the victim’s face was observed to be swollen and red, she had a cut lip and blood coming from her mouth and nose. She attended the hospital and underwent a CT scan which revealed a fractured right eye socket and a blood clot around her right eye. The Forensic Medical Officer opined that her injuries were the result of blunt force trauma. The victim was reluctant to report the incident to police.
Issues: Sentence to be imposed.
Decision and reasoning: An aggregate sentence of 21 months, suspended after 13 months, and a good behaviour order were imposed. This reflected the guilty plea and earlier breaches of good behaviour orders/suspended sentence.
The offending was at the low end of the mid-range of objective seriousness for grievous bodily harm. It was an example of domestic violence, occurred at the victim’s home and while she was heavily pregnant. The offender was on conditional liberty at the time ([11]). Other relevant circumstances included that the offender had a disrupted childhood and an early introduction to illicit drugs. However, notwithstanding the likely lifelong effects of this, the offender was not a young man and there was little evidence of strong motivation to address his drug and alcohol problems. He had a long criminal history, including previous domestic violence offending directed against the same victim. There was a high risk of re-offending ([30]-[34]).
The victim faced difficulty in reporting the offending:
“She disclosed to the hospital staff that she had been injured at home. She also spoke to police but did not want to disclose who had injured her or how it had happened. That evening the offender attended the hospital to see her but was refused entry. The victim told police that she was scared and wanted to speak to the offender in the presence of the police. She did so, before the offender left and she returned inside the hospital.
“DVCS members later contacted police on the victim’s behalf to report that she had been assaulted by the offender. The victim decided that she was prepared to make a statement to police and she participated in a family violence evidence-in-chief interview on 8 February 2020.
Charges: Attempted murder x 2.
Proceedings: Sentencing.
Facts: The case concerned the sentencing for the offender’s attempted murder-suicide of herself and her 2 children by setting the house on fire.
Issues: Sentence to be imposed.
Decision and reasoning: A total head sentence of 9 years and 5 months was imposed, with a non-parole period of 6 years and 4 months. This reflected the guilty plea and a degree of cumulation for 2 separate victims with a single set of acts.
The offending was above the mid-range of objective seriousness for attempted murder. It involved the offender’s children in “the most extreme breach of her parental obligations,” and exploitation of her parental authority to achieve the children’s compliance. There was a degree of premeditation. It was a persistent and serious attempt that, but for a neighbour and the fire brigade’s actions, would have been successful ([23]-[28]).
Further, the offending occurred in the context of a long and acrimonious breakdown of the offender’s relationship with her ex-husband and associated Family Court proceedings relating to division of property and custody of the children, which affected her mental health. The offender was diagnosed with a major depressive disorder which was given some weight as it was long-standing and had the potential to distort her thinking to an extent. It was not accepted that the evidence established a diagnosis of post-traumatic stress disorder or chronic adjustment disorder. She had no criminal history, and was at low risk of re-offending. However, the sentence also needed to reflect accountability, denunciation, and just punishment ([29]-[56]).
Charges: Aggravated burglary; Assault occasioning actual bodily harm; Possessing a drug of dependence; Driving whilst disqualified from obtaining or holding a driver licence as a repeat offender; Contravening a Family Violence Order committed on three occasions x 2.
Proceedings: Sentencing.
Facts: Mr Tonna was in an intimate relationship with the female victim of the assault for about four years, before it ended in mid-2019. Mr Tonna breached Family Violence Order (FVO) made for the protection of the victim by attending her residence twice while she was sleeping, accusing her of having a man in the room and damaging property. Mr Tonna subsequently hit the victim with his car, causing injuries. Separately, Mr Tonna also broke into a block of units and was in possession of methylamphetamine. He pleaded guilty.
Decision and reasoning: A total sentence of 2 years and 4 months imprisonment was imposed.
The breaches of the Family Violence Order were serious. Refshauge J said at [26]-[27]:
“The reported comment made by Mr Tonna when attacking the victim’s window on 23 July 2019, namely accusing her of having a man in her room, apart from being none of his business, does show he had not accepted the end of the relationship. Difficult though that may be, it is something that he has to confront and acknowledge.
“It should be noted that the actions on that morning also constituted at least three separate approaches to the victim though relatively close together in time, at 6 am, 7:10 am and 7:30 am. Each could have constituted a separate offence. While not formally described in these proceedings as a rolled-up plea, it is appropriate to treat them in this way. I have described that approach in R v John [2017] ACTSC 144 at [106]- [107] and will follow what I there said.”
The assault, a violence offence, was also serious. Refshauge J said at [28]-[29]:
“It was, in the circumstances, in the nature of a family violence offence. It is the duty of courts to denounce such offences. It also shows an exercise by Mr Tonna of power which is, in reality, an abuse of power, an abuse that is often exacerbated by the vulnerability of women. The assault is an example of escalation and the use of the car, which can properly be described in this situation as a weapon, a potentially lethal weapon. Thus, such offending can escalate and lead, as family violence offences often do, to the death of the victim.
“Further, a victim who, as in this case, is on the ground is in a vulnerable situation (R v Hodge [2015] ACTSC 214 at [15]). The victim must have been terrified as her Victim Impact Statement shows. These are serious offences as explained in decisions such as:
Roberts v Smorhun at [120]-[127] and Goundar v Goddard [2010] ACTSC 56 at [32]- [36]. In relation to the assaults in the context of family violence, see R v Stanley [2015] ACTSC 322 at [65]-[66].”
Charges: Contravening a family violence order x 1
Case type: Appeal against conviction and sentence
Facts: The appellant man was convicted of contravening a family violence order protecting his female former partner (the victim) and her two children. A conviction was recorded and he was ordered to enter into a good behaviour bond for 12 months.
The family violence order prevented the appellant from being at the premises where the protected persons lived, being within 100 metres of them or engaging in behaviour that constituted family violence. He had attended her home at her invitation after mediation, they had rekindled the relationship and the police were called when the victim sent a text message to a friend asking her to call police. The victim said she sent the text message because the appellant "had begun playing psychological mind games on her and abusing her in relation to a number of morning after pills he had located" ([12]). The appellant claimed that because the victim initiated the contact, he thought that he did not breach the family violence order. The appellant was self-represented at the sentencing hearing. Further evidence of a forensic psychiatrist’s report was also admitted on appeal.
Grounds:
Held: The appeal was allowed, the Magistrate’s orders set aside and the appellant was ordered to enter into a good behaviour order for 9 months without conviction ([75]).
The appellant had faced prior charges of assaulting and resisting an officer and contravening a domestic violence order which were dismissed under the "Mental Health Act" ([18]). He suffered from autistic spectrum disorder which affected his thinking, increased his anxiety and interfered with his ability to maintain relationships. The offending was at the low end of the spectrum for this kind of offence. Extenuating circumstances included (1) the victim’s invitation to recommence contact; (2) the re-establishment of a physical relationship between the parties over a period of weeks before the conduct in question; (3) the victim’s consent to the appellant being at her home; and (4) the absence of any request for him to leave the house or cease contact prior to the police being called ([68]). Mossop J noted that the power in s17 Crimes (Sentencing) Act to not record a conviction will not often be deployed in family violence cases due to the need for general and specific deterrence, but the extenuating circumstances of the present case and the appellant’s personal matters meant a conviction should not have been recorded ([70]). The Magistrate made a specific error in failing to give consideration to the application of s 17 ([51]).
Charges: Burglary x1; Assault occasioning bodily harm x1; Choking a person and rendering them insensible x1;
Proceedings: Sentencing
Issue: Appropriate sentence
Facts: The male offender was convicted on his pleas of guilty. The female victim was his former partner. He entered her house while she was asleep and remained in the property despite the victim asking him to leave. The offender assaulted the victim after a verbal argument and choked her so as to render the victim unconscious. The offender had a significant criminal history and had been dealt with in the Magistrate’s Court for other offending against the same victim. He attributed his violent and abusive behaviour towards the victim to his struggles to cope with the victim’s psychosocial difficulties due to her long history of trauma and abuse [13].
Held: Justice Elkaim sentenced the accused to 10 months imprisonment for the burglary, 5 months’ imprisonment for the assault, and 20 months imprisonment for the choking offence. The sentences were to be served concurrently.
Elkaim J found the offence of burglary to have "just below medium objective seriousness" [6]. His Honour noted that "Although s 10 of the Crimes (Sentencing) Act 2005 (ACT) says full-time imprisonment should be a last resort, I can see no alternative here. Domestic violence is abhorrent. Choking a person is a serious crime. The offender should not have been anywhere near his victim. He was already on bail for family violence offences against the same victim. When she told him to leave he should have done so. He should not have assaulted her and he certainly should not have choked her." [15]. The seriousness of the offence and the domestic violence were aggravating factors and a 15% discount for the guilty plea was allowed.
Charges: Burglary x 1; Unlawful confinement x 1; Unlawfully choking, suffocating or strangling a person x 1
Case type: Sentence
Facts: The male offender was found guilty by a jury of burglary, unlawful confinement and unlawfully choking, suffocating or strangling a person. He was acquitted of 6 other charges. The offender and female victim (his former partner) were engaged in SMS text conversation about their relationship in the hours leading to the offending conduct. The victim made it clear that the relationship was over, and the offender was angry as a result of this conversation ([4]). The offender attended the victim’s home after midnight, dragged her from her bed into the neighbouring room and choked her ([5]). The offence was accompanied by a death threat, calculated to increase the victim’s fear. The offender and victim had been in an intermittent relationship since 2012, and have a 4-year old son. In her Victim Impact Statement, the victim explained the impact of the domestic violence. She suffers severe anxiety, PTSD and depression, and sometimes "feels very angry that her former partner hurt her so much, both physically and emotionally". At the time of the offending conduct, she felt helpless, fearful and thought that she might die ([6]-[7]).
Held: The offender was sentenced to 5 years’ and 5 months’ imprisonment, with a non-parole period of 3 years and 6 months. The offender has a very lengthy criminal history, including multiple convictions for burglary, assault occasioning actual bodily harm, aggravated burglary, recklessly inflicting grievous bodily harm, assault and drug and traffic offences ([8]). A significant aggravating feature of the offences was that they occurred in a family violence context ([9]). The unlawful confinement lasted for a minimum of 1.5 hours, and this was "impulsive and without any significant planning". The purpose of the confinement was to manifest his anger towards the victim for ending the relationship and to exercise control over her. During the course of the confinement, the offender inflicted extreme violence on, and instilled fear in, the victim, who now suffers continuing psychological consequences ([10]). The choking conduct was deliberate and sustained, and the victim’s ability to breathe was sometimes completely impaired ([11]).
Although the offender’s childhood was marred by instability, he now enjoys a supportive family relationship ([13]). In a pre-sentence report, the offender indicated that he had no intention to reunite with the victim and claimed to have been subjected to violence in the relationship ([14]). He also has a long history of alcohol and drug use, as well as Major Depressive Disorder, which was described as in full remission in 2017. He was also assaulted while in custody that same year. He plans to reunite with his son, with whom he is believed to have a "healthy, loving relationship" ([17]-[20]).
The offender has also shown no remorse for his current and previous offending. This gave rise to a concern regarding his ability and commitment to avoid criminal offending and to achieve a stable, co-parenting relationship with the victim. During his present period in custody, he did not take any steps to address his drug and alcohol abuse issues or his attitude to domestic violence. Therefore, his prospects of rehabilitation could not be described as good ([21]-[23]).
Charges: Sexual intercourse without consent x1; Administration of certain declared substances x1.
Proceedings: Sentencing
Issue: Appropriate sentence
Facts: The complainant woman and male offender were married and lived together. The offender engaged in sexual intercourse with the complainant while she was asleep. An audio recording taken during the time reveals that the complainant did not consent to the offender’s conduct and that when she woke up she immediately asked the offender to stop. The offender then left the bedroom, only to return ten minutes later and force a bitter substance into the complainant’s mouth. The substances administered were temazepam and zopiclone.
Judgment: In determining the objective seriousness of the offence, Mossop J noted that "while the offending did occur in a domestic context, the evidence did not establish that it was part of any pattern of oppression of the victim through violence or sexual violence. Nor does it establish that there was any marked inequality of power between husband and wife." [9]. The judge found the offending to also lack other aggravating factors as the offender did not use a weapon or violence, threaten the victim, or have a significant degree of premeditation and the victim was not injured, humiliated or degraded in a way more explicit than the conduct itself [7]. Justice Mossop also did not consider the presence of the sleeping child to be an aggravating factor as the child had no awareness of what was going on. The Court accepted that the offender’s depression and general anxiety disorder meant that "he is likely to find a sentence of full-time imprisonment more onerous than a person without those conditions" [40]. The sexual intercourse offending was held to be in the lower range of objective seriousness for this offence [10]. It was not possible to find on the evidence that the administration of a declared substance offence "was an intention to cause harm to the victim other than through interference with her recollection of events".
The offender was sentenced to 22 months’ imprisonment for the first charge, with the sentence to be suspended after four months upon the offender entering into an undertaking to comply with good behaviour obligations for 19 months. For the charge of administering a declared substance, the offender was convicted and sentenced to a suspended sentence of two months’ imprisonment.
Charges: Act of indecency x 1; Assault occasioning bodily harm x 1
Case type: Sentencing
Facts: The offender attempted to strangle the victim when she refused to engage in sexual activity, pushing the victim face-down against a pillow. After releasing the victim and letting her partially roll-over, the offender grabbed the victim’s throat and restricted her breathing for 5 to 10 seconds while threatening if she continued making noise. There was medical evidence of petechial bruising.
Issue: Sentence to be imposed.
Decision and reasoning: Loukas-Karlsson J discounted the penalty for each charge by 5% as the offender entered guilty pleas one week before a re-trial for the offences. His Honour only reduced the sentences by 5% rather than the usual 10% because the offender demonstrated a lack of remorse and tried to justify his actions. It was also noted at [60] that ‘it must be recognised by the Court that the offences committed against the victim had a serious and significant impact upon her. Both the short and the long-term consequences of being the victim of these offences must be acknowledged’.
‘In respect to the offence of an act of indecency…the offender [was] sentenced to a good behaviour order with the core conditions requiring him to sign an undertaking to comply with good behaviour obligations’ for a period of 20 months reduced to 19 months on account of the guilty plea. ‘In respect of the offence of assault occasioning actual bodily harm…the offender [was] sentenced to a good behaviour bond’ with the same core conditions for a period of 32 months reduced to 30 months on account of the 5% reduction for entering guilty pleas. [64]
Charges: 1 x common assault; 1 x contravention of a Family Violence Order
Case type: Appeal against convictions
Facts: The appellant allegedly kicked the complainant’s leg during an argument (assault charge). At that time, the appellant and complainant were married and living together. The complainant had obtained a Family Violence Order against the appellant, which the appellant allegedly breached during the argument by causing or threatening to cause injury to the complainant or by harassing, threatening or intimidating her ([3]). A central issue was whether an audio recording made by the complainant was admissible.
Issue: The appellant appealed the findings of guilt on the basis that 1) the learned Magistrate erred in ruling that the audio recording made by the complainant was admissible pursuant to s 5(2)(d)-(e) of the Listening Devices Act 1992 (ACT) (LDA), and 2) the convictions were unreasonable and could not be supported by the available evidence.
Held: The prosecution sought to adduce a recording of the alleged events said to have been made by the complainant on her mobile. The appellant objected on the ground that the recording was made in contravention of the provisions of the LDA ([10]). Burns J did not challenge the Magistrate’s finding that a ‘private conversation’, for the purposes of the LDA, existed ([13]), and turned his mind to whether any of the exception provisions applied such that the complainant’s use of the listening device was not proscribed by the LDA ([15]). In his Honour’s opinion, the Magistrate was correct in finding that the exception in s 4(3)(b)(i) was satisfied. The complainant feared that the appellant might seriously injure or kill her, and gave evidence that she had regularly been abused by him. Therefore, there were reasonable grounds for her to consider that the recording was necessary to protect her lawful interests ([21]). His Honour also found that the exceptions in s 5(2)(d) and (e) were established ([22]).
His Honour concluded that even if the recording had been obtained in contravention of the LDA, the proper exercise of the discretion found in s 138 of the Evidence Act would have resulted in its admission ([31]). The evidence was important, both in its own right and as support for the complainant’s evidence, and its probative value was significant. The gravity of the contravention was low, and there was no suggestion to the complainant that she knew that she was violating the LDA. Further, the offences charged against the appellant were serious domestic violence offences ([26]-[27]). At [30], Burns J noted that ‘[a] criminal has no right to keep their offending private, or to claim that the gathering of evidence of their crime is a breach of their privacy’.
As to the second ground of appeal, his Honour agreed with the Magistrate that the evidence established a breach of the Family Violence Order, as the conduct was harassing and intimidating. The Magistrate was entitled to consider the aggression by the appellant towards the complainant at the time she said she was kicked. As there was sufficient evidence on which the Magistrate was entitled to convict the appellant, the appeal was dismissed ([40]-[41]).
Offences: Common assault x 2; Assault occasioning actual bodily harm x 1
Proceedings: Appeal against conviction and sentence
Facts: The female appellant and male victim had been in a relationship for about two years (which was ‘volatile’ and ’they tended to be jealous’ of each other and had numerous ‘fights’) but they had broken up the day before the offending and the appellant had moved out. Early in the morning of the offending, the appellant entered the front door and started punching the victim in the head. The appellant saw another woman on the couch and started moving towards her, so the victim grabbed the appellant’s arm. The appellant bit the victim’s arm hard and grabbed his testicles. She then chased after the other woman before taking the victim’s phone, leaving the house and knocking over the victim’s motorcycle. The appellant was convicted and sentenced to a 12-month Good Behaviour Order. She appealed her conviction on the following grounds:
Judgment: The judge dismissed the appeal. His Honour found that the Magistrate accepted the evidence of the victim (the victim grabbed the appellant’s arm to stop the appellant coming further into the house, not to prevent her from retreating out of the house) and, as such, the basis for self-defence fell away [76]. Regarding Ground 2, his Honour held that "the bare fact of there being a guilty verdict in relation to some charges arising from a course of events and an acquittal in relation to one or more charges arising from the same course of events is not enough to establish that the guilty verdicts must be unreasonable. It is necessary for the appellant to demonstrate that the different outcomes cannot stand together as a matter of logic and common sense" [79]. His Honour found that the Magistrate was correct in distinguishing the verdicts in relation to events that occurred inside the house from those which occurred outside the house [82].
His Honour further held that the sentence imposed fell within the range of appropriate outcomes and was not excessive, let alone "manifestly excessive" [84].
Charges: Common assault
Case type: Appeal against convicions
Facts: The appellant was found guilty of two charges of common assault arising out of an altercation with the victim (his wife). The acts of assault included slapping the victim across the face, pushing her forehead backwards striking the wall behind, grabbing her hair, twisting her head and hitting her face on the wall, and striking his daughter’s shoulder. The charges fell into the category of family violence. The appellant pleaded not guilty to each charge and did not testify. The defence argued that the victim fabricated the assaults with the intention of terminating the marriage ([17]).
Issue: The appellant appealed on the ground that the Magistrate’s findings of guilt were unsafe and unsatisfactory on the basis that:
Held: Crowe AJ dismissed the appeal. His Honour rejected the first ground of appeal and saw no basis upon which to doubt the Magistrate’s rejection of the appellant’s version of events. His version of events changed as the interview progressed. For example, after he said that he had not touched the victim at all, he then said that he had tickled her ([35]). In relation to the second ground, the Magistrate was entitled to accept the complainant as a witness of truth, and reject the proposition that the victim fabricated the entire story in order to terminate her unhappy marriage with the appellant. The discrepancy between the victim’s evidence and that of her female friend did not provide a sufficient basis to reasonably doubt the victim’s evidence as to the appellant’s violence towards her. The discrepancy was explained by reference to the extent of the victim’s distress, and the physical and language communication difficulties at that time ([40]-[47]).Crowe AJ dismissed the appeal. His Honour rejected the first ground of appeal and saw no basis upon which to doubt the Magistrate’s rejection of the appellant’s version of events. His version of events changed as the interview progressed. For example, after he said that he had not touched the victim at all, he then said that he had tickled her ([35]). In relation to the second ground, the Magistrate was entitled to accept the complainant as a witness of truth, and reject the proposition that the victim fabricated the entire story in order to terminate her unhappy marriage with the appellant. The discrepancy between the victim’s evidence and that of her female friend did not provide a sufficient basis to reasonably doubt the victim’s evidence as to the appellant’s violence towards her. The discrepancy was explained by reference to the extent of the victim’s distress, and the physical and language communication difficulties at that time ([40]-[47]).
Charges: 1 x threaten to capture or distribute intimate images; 1 x use of a carriage service to menace, harass or cause offence; 2 x indecency; 1 x sexual assault; 1 x common assault; 1 x stalking
Case type: Sentencing
Facts: The offender and victim were in a de facto relationship for approximately 6 years and have a daughter. Despite the breakdown of their relationship, they remained on amicable terms ([7]). The offender was charged with a combination of Federal and Territory offences. The offender pleaded guilty to threatening to distribute an intimate image (Count 5) and using a carriage service to menace, harass or cause offence (Count 6). He was found guilty of 2 charges of committing an act of indecency (Counts 2 and 4) and a charge of sexual assault in the third degree (Count 3). A charge of common assault and stalking were transferred to the Court, which required consideration of the provisions on back-up and related offences in the Supreme Court Act 1933 (ACT) ([13]).
Issue: The issue for the Court was to determine the appropriate sentence for the offences.
Held: The Court sentenced the offender to 3 years’ imprisonment with a non-parole period of 18 months for the Territory offences, and declined to make a recognizance release order with respect to the Federal offence as the offender would still be serving a period of imprisonment for the Territory offences after the expiration of that offence. The charge of common assault was dismissed.
The offender’s subjective circumstances were observed at [32]-[40]. He had 2 daughters from a previous marriage and worked as a self-employed technician prior to custody. However, he had not been working for the past 6 months due to mental health issues, and suffered financial distress as a result ([35]). The offender reported infrequent social use of cannabis and his self-reported alcohol use was deemed ‘risky’ ([36]). The offender showed some insight into the impact of his offending, but attempted to minimise and justify some of his actions ([39]). The offender was also being treated for symptoms of depression ([40]).
The Court did not attribute significant weight to the offender’s expression of remorse ([41]-[44]). He had no relevant criminal history and was of prior good character ([45]-[46]). He pleaded guilty to 2 charges before the trial commenced, and the 2 further transfer charges in the course of the sentencing hearing. Accordingly, the Court allowed a discount of approximately 10% in each case ([47]-[54]). The Court also considered the time spent in custody ([55]-[56]), and analysed relevant cases and statistics ([57]-[69]). At [89], the Court found that all the offences committed against the victim significantly impacted her. The Court also took into account the principles of totality, concurrency and accumulation ([70]-[78]), and relevant statutory considerations ([79]-[88]). Significantly, it was noted at [88] that the ‘Courts have made it clear that women must not be treated by men as property’.
Charges: 5 x contravention of a Family Violence Order; 1 x use carriage service to harass/menace
Case type: Appeal against sentence
Facts: In early 2019, the appellant was sentenced to a total of 2 years’ and 8 months’ imprisonment, with a non-parole period of 18 months, following guilty pleas to 6 charges, namely, contravening family violence orders obtained by his parents and his ex-partner against him and using carriage service to harass/menace.
Issue: The appellant appealed against the sentence on various grounds, including that the total sentence was manifestly excessive and that her Honour erred in her approach to s 110(2)(a) Crimes (Sentence Administration) Act 2005 (ACT) by ordering that the suspended sentences imposed for the breach offences be served cumulatively.
Held: Murrell CJ noted that the appellant had a very significant domestic violence history ([52]). Her Honour considered the appellant’s prior convictions of matters of dishonesty, and contravening protection orders ([25]), for which he had been sentenced to 5 months’ imprisonment suspended for 12 months. Offences 1 and 2 were committed while he was subject to these suspended sentences, and Offence 3 was committed 3 days after his release from prison (for contravening a protection order) ([26]). Further, the appellant’s illicit substance abuse rendered him unsuitable for an Intensive Corrections Order (ICO) ([29]).
Murrell CJ held that the appellant’s continued contraventions of court orders required a significant total sentence to be imposed. Her Honour was not satisfied that, when considering the appropriateness of the total sentencing, the sentencing judge erred in exercising her sentencing discretion ([41]).
The appellant argued that, as the original suspended sentences were concurrent, the sentencing judge fell into specific error when she made them cumulative ([56]). After analysing the interpretation of s 110(2) in some detail, her Honour concluded that the sentencing judge fell into error ([95]). The appeal was therefore allowed and the appellant was re-sentenced to a total sentence of 2 years’ imprisonment with a non-parole period of 13 months ([100]).
Charges: Sexual assault in the third degree x 1, sexual intercourse without consent x 1; assault occasioning actual bodily harm x 3; common assault x 2; capturing visual data in circumstances where the capture is an invasion of privacy and indecent x 1; damage to property x 3.
Proceedings: Sentence.
Facts: The male offender and female victim had been in a relationship since 2017. The offences took place over three days.
While the victim was driving her car with the offender in the passenger seat the offender took the victim’s mobile phone, snapped it in half and threw the pieces out of the car window. That afternoon he headbutted her in the middle of the forehead causing her pain and told her to “get the fuck out” of the house. The victim left the residence on foot with her son as the offender had taken her car keys. [5]
While she was gone the offender slashed two of the car’s tyres with a knife.[6] When the victim returned the offender told her that he had lost her keys and that somebody had popped the tyres of her car. He told her to go inside the house otherwise he would “start shit” with the victim’s flatmate. [7]
Later that night the offender held a Stanley knife with the blade out to the victim’s throat and near her face and directed her to “suck [his] dick”. The victim felt forced to do so and the offender filmed the incident. [8]
Two days later the offender attempted to cuddle the victim but she did not wish to cuddle and did not reciprocate. The offender became angry and began yelling. He punched the victim in the back of the head a number of times. The victim tried to put on a dress and the offender ripped it off her then grabbed her left breast and twisted and squeezed it causing pain and bruising. The victim’s son was present. [10]
Decision and Reasoning: Four years and eight months imprisonment with a non-parole period of three years.
In considering the objective seriousness of the offence, Mossop J observed:
The offending had some of the typical features of domestic violence in that it involved attempts to control the victim’s behaviour and sought to place responsibility for the offender’s unlawful conduct upon the victim. It occurred in circumstances where the victim was particularly vulnerable by reason of the need to care for and protect her small child. [14]
Charges: Unlawful confinement x 1; choking, suffocating or strangling x 1; common assault x 1.
Case type: Conviction and sentence.
Facts: The offender engaged in controlling and violent behaviour towards the victim during their relationship and had threatened to kill her and her family if she ended the relationship. On 1 November 2016, the offender drove himself and the victim home. He did not allow her to exit the vehicle, pulled her hair and punched her in the face several times. On 21 March 2017, the victim visited the offender’s residence and an argument ensued. The offender grabbed the victim, pushed her down and squeezed her neck. Later that night, the offender choked the victim for ‘about 20 minutes’ and threatened to kill her, he intermittently released his hands [7]. On 22 March 2017, the victim fled and called her brother to get her. The offender later attended the brother’s residence, and made threats and attempted to drive his vehicle towards the brother. The brother was the victim of the common assault charge.
Issue: The Court determined the appropriate sentence for the offences in the circumstances.
Held: The Court considered the objective circumstances of the offending. The unlawful confinement charge was serious as it involved gratuitous violence against the victim, including punching her in the face. The choking charge was also serious as the victim felt that she could pass out and the conduct was accompanied by threats ([27]-[28]). The offender reported that he attended psychological counselling sessions in the past ([34]). His personal circumstances were also taken into account. His parents separated when he was young, he reported a supportive family environment, he has a four year son with an ex-partner with whom he maintains contact, and he is currently employed. He denied any past or current drug use. Although there was an almost decade-old matter for possession of prohibited drugs, no conviction was recorded ([33]). Further, his criminal history was limited. The Court refused to take into account a current family violence charge against him, as he had not yet been convicted and was entitled to a presumption of innocence ([44]-[45]). The offender’s remorse, references provided to the court, time already spent in custody, and sentencing principles, particularly rehabilitation, were also taken into account in determining the appropriate sentence ([38]-[43], [51], [80-[88]). The Court noted that the offender entered pleas of guilty 11 days prior to when the trial was listed to commence for a second time, and allowed a discount of approximately 15% ([46]-[50]). The offences were found to significantly impact the victim. ‘This sort of violence against women must be deterred and must be punished’ ([100]).
The Court recorded the convictions for the 3 offences. The sentence imposed was ordered to be served by way of an Intensive Corrections Order (ICO), which highlights the importance of rehabilitation. The ICO was made on the condition that the offender perform 400 hours of community service, continue to engage with psychological services to manage his mental health, and be assessed for and complete offence specific intervention ([114]).
Charges: Using carriage service to harass x 2; Demand accompanied by threat to endanger x 1; Threaten to inflict grievous bodily harm x 1; Blackmail x 1; Arson x 1; Recklessly inflicting actual bodily harm x 1; Possession of a prohibited item (as a detainee) x 2; Obstructing a public official x 1; Possessing an offensive weapon with intent x 1.
Proceeding type: Sentencing and application for reparation order.
Facts: The accused had been in a relationship with the female victim for three years, with their relationship ending three months before the offence was committed. After the relationship ended, the accused became a member of a motorcycle gang and the female victim commenced a relationship with her current partner. Upon learning of the victims’ relationship, the offender harassed and threatened his ex-partner (via text message and Facebook). He also threatened and blackmailed her new partner, demanding $5000 for ‘whoring out [his] missus’ [26].
The appellant was arrested for these offences. While in custody, the offender started a fire in his cell and possessed dangerous items out of fear he was at risk from members of rival motorcycle gangs. The offender then injured an officer while being restrained.
Issues: What are the appropriate sentences given the circumstances?
Decision and reasoning: Murrell CJ provided that ‘sentences must deliver appropriate punishment, and speak to the purposes of accountability, denunciation, and recognition of harm’ [81]. In reaching his decision, Murrell CJ consequently considered the high objective seriousness of the accused’s harassment of his ex-partner; the accused’s extensive criminal history; good behaviour during previous periods of imprisonment; his dysfunctional upbringing; and the fact that the accused had allegedly not been receiving proper treatment for his post-traumatic stress disorder.
The accused was sentenced to four years and two months imprisonment with a non-parole period of 33 months.
In sentencing the offender, Murrell J noted:
43. The family violence offences and associated offences bear the hallmarks of many serious family violence matters. At the time of the offences, the offender remained angry and distraught over the breakup of his relationship with Ms Lees. He was jealous, felt a sense of entitlement in relation to Ms Lees, and wanted to control her new relationship. He behaved in a volatile and irrational manner, elevating the danger and threat of danger perceived by the victims. In addition, the offender called his Nomads associates in aid, which would have considerably enhanced the fear felt by the victims.
Charges: Choking, suffocating or strangling a person x 2.
Proceeding type: No-case submission/Directed acquittal application.
Facts: The accused was charged with two counts of choking, suffocating or strangling his mother while in an argument. While the mother claimed that the accused strangled her in her initial accounts of the incident, she eventually recanted her allegations claiming she had fictionalised them while angry with the accused.
Issues: The proceedings focused on the questions of whether the words ‘chokes’ ‘suffocates’ and ‘strangles’ in s 28(2) of the Crimes Act 1900 should be interpreted with respect to their effects on the victim’s breathing and consequently whether the correct interpretations of these words warrant upholding the accused’s no-case submission.
Decision and reasoning: Although choking, suffocating or strangling is an offence under s 28(2), the terms are not defined within the legislation and prior to these proceedings were yet to receive judicial consideration in the ACT. Loukas-Karlsson J provided, in comparing s 28(2) of the Crimes Act to the corresponding offences in other jurisdictions, that the intention behind the provision may have been to build on the ACT’s existing offences which contain the elements of ‘choke, strangle or suffocate’ in an attempt to ‘lower the threshold of conduct to capture a broader range of conduct, particularly in the domestic violence setting’ [34]. Upon considering this intention along with the elements’ statutory context, ‘authoritative’ definitions from the Macquarie Dictionary and extrinsic material (such as the Explanatory Statement) Loukas-Karlsson J concluded that ‘the relevant element is constituted by the stopping of the breath’ [46].
In considering the accused’s directed acquittal application, Loukas-Karlsson J provided that “a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty” (Doney v The Queen [1990] HCA 51) [84]. Since the accused did not stop the victim’s breath on either attempt, his conduct failed to satisfy the necessary element. His Honour therefore concluded that there was a defect in the evidence such that a verdict of not guilty must be directed.
Charges: Five offences including two counts of common assault, one count of assault occasioning actual bodily harm, one count of choking to render insensible, and one count of possession of an offensive weapon with intent.
Case type: Appeal of sentence.
Facts: The victim and the appellant had been in a relationship for approximately two months. The two counts of common assault were constituted by the appellant putting his hands around the victim’s neck and pushing her into a wall, as well as saying intimidating and threatening words. The appellant also armed himself with two knives (count of possession of an offensive weapon with intent), and had wrapped his arm around the victim’s neck cutting off her circulation and causing her to lose consciousness (count of choking to render insensible). The count of assault occasioning bodily harm was established by the appellant kicking the victim numerous times, grabbing her hair and repeatedly hitting her head on the ground, and slapping the victim’s face. The victim suffered significant injuries ([18]). Notably, a total head sentence of three years and six months imprisonment was imposed, with a non-parole period of 18 months.
Issues: The appellant sought leave to appeal on the grounds that that the sentence with the respect to the charge of choke render insensible and the non-parole period were manifestly excessive. He sought leave to add two grounds of appeal: 1) that the Magistrate offended the R v De Simoni principle by punishing him for attempted murder; and 2) that the Magistrate erred by not applying the full discount of 20% to the sentence imposed for the offence to choke to render insensible. He sought orders setting aside the Magistrate’s order, and that he be re-sentenced in respect of that charge.
Decision and reasoning: The Court allowed the appeal and re-sentenced the appellant, in relation to the offence of choking to render insensible, to three years’ imprisonment, with a non-parole period of 17 months. At [43], the Court held that a head sentence of three years and two months was not manifestly excessive. With respect to the non-parole period of 18 months, the Court found that ‘as expressed as a percentage of a head sentence of 3 years and 2 months of imprisonment, the relevant percentage is approximately 47%’. This is outside the usual range of non-parole periods in the ACT. The proper approach to fixing a non-parole period is to have regard to all the sentencing purposes, the objective seriousness of the offence, and the appellant’s subjective circumstances and prospects of rehabilitation. The proportion of the sentence served by way of non-parole period is a matter of judicial discretion, and ordinarily, the non-parole period is a significant part of the total sentence ([52]). The appellant’s youth was important to his prospect of rehabilitation. It was necessary to fix a non-parole period that is relatively low, but also reflected the total sentence and was consistent with sentencing purposes ([53]).
Charges: Attempted sexual intercourse without consent x 1.
Case type: Sentence.
Facts: The accused pleaded guilty to an offence of attempted sexual intercourse without consent. The accused and the victim lived together for two years prior to the accused entering custody, and had a child together ([21]-[22]). The victim was lying on her back when the accused pinned her down and repeatedly placed a pillow over her face. He then attempted to have non-consensual sexual intercourse with her ([4]).
Issues: The Court determined the appropriate sentence for the offence in the circumstances.
Decision and reasoning: Loukas-Karlsson J found that the offence approached mid-range seriousness. The objective seriousness of the offence was informed by the fact that the accused pinned down the victim and repeatedly placed a pillow over her face ([15]-[17]). His Honour considered the accused’s personal circumstances at [18]-[28]. He was young (24 years old), had been diagnosed with PTSD at the age of five as a result of witnessing domestic violence between his parents, reported to have been sexually abused by a family member, left high school early, worked in hospitality and as a removalist, and used drugs from an early age. The accused accepted responsibility for the offence and acknowledged the negative impacts of his actions. He indicated that he was willing to participate in programs and interventions. In considering the objective seriousness of the offence and subjective matters, his Honour held that the appropriate sentence for the offence of attempted sexual intercourse without consent is two years and nine months imprisonment. However, his Honour reduced the sentence to two years and four months due to the guilty plea.
Charges: Recklessly inflicting grievous bodily harm x 1.
Case type: Conviction and sentence.
Facts: The offender pleaded guilty to the offence of recklessly inflicting grievous bodily harm after the matter was committed for trial, but before the trial date was set.
The offender attended a friend’s party in the ACT, but started arguing with his girlfriend and left the party. Later that night, the victim heard the argument and, specifically, a female screaming. Concerned for her safety, the victim approached them. The offender stabbed the victim 3 times, and then ran away, followed by his girlfriend. The offender was arrested and granted bail the following day. He was subsequently imprisoned for offences (involving stabbing another person with a knife) committed in NSW while on bail.
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Burns J held that the recent offending demonstrated that the offence in question was not an isolated incident. He was also found in possession of an instrument capable of being used to stab after he was extradited from NSW. These matters strongly suggest the need for specific deterrence. His Honour found the offending was unprovoked. The offender’s personal circumstances were also considered. He is a 20 year old Indigenous man, his parents separated when he was young, and he has anger management, drug and alcohol issues. However, he maintains a good relationship with his family, with whom he had remained in contact since he was incarcerated. It was noted that the offender is in good health, has a positive attitude, has employment available to him, and had completed an anger management course. His Honour was satisfied that the offender had reasonable prospects of rehabilitation, provided that he ceases carrying weapons, and addresses his anger management, drug and alcohol issues and employment. Even though the offender said that he carries a knife for self-protection, Burns J held that ‘no law-abiding citizen in this country, not associating with criminals or engaging in criminal conduct, needs to carry a knife for self-protection’ ([30]).
Notwithstanding his young age and rehabilitation prospects, Burns J held that the sentence needed to reinforce the fact that using knives to seriously harm others will be met with harsh punishment. Nothing less than full-time imprisonment would sufficiently address the sentencing requirements ([31]). The offender was convicted and sentenced to 3 years and 1 month imprisonment, with a non-parole period of 18 months.
Appeal type: Appeal against conviction and sentence.
Facts: The appellant had previously been served with an Interim Family Violence Order (the Order). Among other things, the Order prohibited the appellant from being within 100 metres of the protected person, his wife, except when handing over their child. The wife alleged that shortly after being served, the appellant breached the Order by walking in front of her house at a time she was home. She claimed that when the appellant was walking past her property, he stopped and looked into the residence. She also claimed that the appellant returned twice after leaving and began to follow her when he saw her outside.
The appellant pleaded guilty to the breach in the Magistrate Court. This plea was later withdrawn, but then reinstated during these proceedings.
Issue: Whether the sentence imposed by the magistrate was manifestly excessive.
Decision and reasoning: During the proceedings in the Magistrate Court, the appellant attempted to tender a document detailing the events of the day the offence allegedly occurred. The magistrate rejected this document on the grounds that it sought to ‘traverse’ the plea of guilty [9]. While Burns J disagrees with the grounds on which the magistrate refused the document, His Honour believed it should have been rejected because it was self-serving. The contents and rejection of the appellant’s document formed the main focus of Burns J’s judgment.
Burns J had great difficulty accepting most of the appellant’s evidence both in the document and that which the appellant gave before Burns J. The appellant claimed that he visited the area near to his wife’s residence to find a spot for his daughter to wait for him to pick her up the next day. The appellant also claimed that he had recently undergone a procedure to his eyes which resulted in him being unable to see more than one metre in front of him. Burns J provided that given the condition of the appellant’s eyes and the fact that he visited the residence at 10 pm, ‘it does not make any sense whatsoever that in his circumstances’ he visited the residence for the reason he claimed [13].
Burns J also found it difficult to accept the appellant’s submissions as he had made no challenge to the Statement of Facts that were read before the magistrate. The Statement of Facts did not include any of the above claims and instead provided that the appellant walked passed the protected person’s house while he was out walking to take care of his health (as the appellant claimed to be diabetic). His Honour concluded that he was “not now prepared to find that the events occurred in the way in which the appellant now suggests that they did. On that basis, [Burns J] propose[d] to proceed on the basis that the circumstances of the offence went as put before the magistrate’ [17].
Burns J dismissed the appeal, commenting ‘it has not been demonstrated that the sentence [was] manifestly excessive, nor [was Burns J] satisfied that there was any relevant error which would have affected the outcome of the proceedings before the magistrate’ [21].
Charges: Assault occasioning actual bodily harm x 1; Minor property damage x 2
Facts: The offender was in a relationship with the complainant for 12 years. They had a child, aged seven at trial. The relationship ended late 2017. The offender visited the complainant’s home to visit children. He entered the house, damaged property, and assaulted the complainant with a baton by hitting her on the arms and on the back of the head.
Issues: Sentencing
Decision and Reasoning: The offender pleaded guilty and was sentenced to 12 months’ imprisonment for assault occasioning actual bodily harm, one month’s imprisonment for the first count of damaging property, and one month’s imprisonment for the second count of damaging property. The sentences were to be served concurrently. The term of imprisonment for the offence of assault was suspended on the condition that the offender enter a Good Behaviour Order for 18 months.
The offender had a significant criminal record, which included a contravention of a protection order against the complainant for which he already served a period of time in custody. He grew up in difficult circumstances – his mother had a drug addiction and did not adequately support him. The offender also had a long-standing history with drugs and alcohol which was exacerbated by his separation with the complainant. Whilst in custody, he completed a drug and alcohol awareness program and commenced an anger management course. His Honour noted that domestic violence is an ‘appalling crime’ and ‘offends the most basic norms of society’ ([11]). There were positive signs of rehabilitation, such as the fact that the offender was in a stable relationship, had ongoing accommodation and employment, and was a valuable member at his workplace. The complainant had sent an email to the offender saying she had ‘moved on’ and wanted the offender to attend their child’s graduation. His Honour stated: ‘Expressions of reconciliation by victims of domestic violence are often a regrettable reflection of the dominance of the abuser. However, in this case, primarily because the offender is in a new relationship, I am prepared to accept the sincerity of the victim’s request.’
Charge: Common assault.
Appeal type: Appeal against conviction.
Facts: The appellant had a history of heavy drinking. Despite having been prescribed medication to assist with his alcohol dependence, the appellant was heavily intoxicated on the night the offence occurred. His intoxicated state led him to punch his wife in the back on at least four occasions while she was pretending to sleep and to later threaten to strangle their youngest child to stop him crying. This threat prompted the mother to call the police.
In the magistrate’s judgment, he noted that the wife declined to participate in the Family Violence Evidence-in-Chief interview as she did not want the appellant to know she was the one who had contacted the police. The wife declined out of fear of losing the children due to the husband’s past behaviour and conduct in the relationship. The magistrate attributed the appellant’s behaviour to his dependence on alcohol.
Along with appealing the magistrate’s sentence, the appellant also sought to admit further evidence and to have the sentencing proceedings reopened.
Issues: (1) Was the sentence imposed manifestly excessive; and (2) did the magistrate fail to consider or give proper weight to the subjective circumstances of the appellant; (3) should further evidence be admitted and the sentencing proceedings reopened.
Decision and reasoning: Mossop J dismissed the appeal and confirmed the sentence imposed by the magistrate. His Honour was satisfied that the magistrate considered all possible consequences of a conviction for the appellant’s employment and other subjective circumstances and that the appellant’s submissions failed to demonstrate otherwise. As such, the appellant’s first ground for appeal was unsuccessful.
When considering the second ground, Mossop J used the wife’s fear of making a complaint and of losing her children, and the history of similar events during the relationship as evidence ‘that the offending conduct in the present case occurred in a context of typical domestic violence cases …[This] history of conduct within the relationship indicates that the offending conduct had a more objectively serious character than it would have had if that history was not present’ [21]. Mossop J used these facts to reject the appellant’s claim that the magistrate’s sentence was manifestly excessive.
In relation to the third issue, the appellant sought to admit evidence detailing the consequences of the conviction on his employment and job prospects given that the conviction caused his employer to consider terminating the appellant’s employment and the appellant to consequently resign. Mossop J, however, did not consider the admission of further evidence to be in the interests of justice as the evidence was of limited scope and addressed a matter already considered by the magistrate.
Charges: Unlawful confinement x 1; Threat to kill x 1; Inflicting actual bodily harm x 1; Common assault x 2; Aggravated dangerous driving x 1.
Proceeding type: Sentencing and application for an intensive corrections order.
Facts: At the time the offences were committed, the accused was on bail in relation to family violence charges against his partner. The accused’s bail conditions prohibited him from assaulting or intimidating his partner, being near her, having contact with her and from attending her home. While on bail, the accused assaulted his partner, unlawfully confined her and threatened to kill her. When attempting to flee the home, the accused also struck his partner’s current boyfriend with a car, recklessly inflicting actual bodily harm.
Issues: (1) What are the appropriate sentences given the accused’s offences; and (2) is an intensive correction order appropriate for the accused?
Decision and reasoning: Burns J rejected the submission for an intensive corrections order on the grounds that the accused’s imminent deportation from Australia (due to his visa being revoked) made it unlikely that the accused would comply with the order. The accused was instead sentenced to two years and four months’ imprisonment. Burns J reached this decision by considering the relatively low seriousness of the harm inflicted upon the victim; the victim’s vulnerability; and the fact that the accused was on conditional liberty at the time of committing the offences.
Burns J notes at [5] [The offence of unlawful confinement] ‘involved an attempt by you to control the victim by means of intimidation. Some factors which are relevant to determining the objective seriousness of this offence, but also relevant to all of the offences, were that the offences occurred in the victim's own home and, in fact, in her bedroom. With respect to the particular offence, there was force and intimidation used to stop the victim leaving the room. It occurred in the context of threats being made to the victim. The victim was five and a half months pregnant at the time with your child. There was also another child in the house at the time of the commission of these offences. The offences which occurred with regard to KS, in the first tranche of offending, involved a breach of trust because you were only able to gain access to the premises because you had been in a relationship with the victim.’
Charges: Assault occasioning actual bodily harm x 1; Choke, suffocate or strangle x 1; Assault occasioning actual bodily harm x 1; Unlawful confinement x 1; Threat to kill another person x 1.
Proceeding type: Trial by judge alone.
Facts: The accused and the complainant went out to dinner. At about midnight the accused, apparently intoxicated, went out alone. Some hours later, he returned and although not obviously intoxicated, soon became violent. He dragged the complainant, hit her in the face, held a knife to her throat, and detained her in the flat for about four hours. During this time, he threatened to kill her, and demanded information from her about her mobile phone.
Issues: Whether or not the events as described by the complainant occurred; Whether or not the Court could be satisfied beyond reasonable doubt.
Decision and reasoning: A verdict of not guilty was entered as to each of the six counts in the indictment. The Court was satisfied that the complainant ‘was probably telling the truth’, but noted that the required standard was beyond reasonable doubt. Therefore, his Honour could not accept the complainant’s evidence. The emails, particularly, appeared to seriously contradict her version of events, such that they had a significant effect on her evidence being accepted beyond reasonable doubt.
Charges: Aiding and abetting the commission of an offence - caused damage to two vehicles by fire and intended to cause, or was reckless about causing damage to the vehicles.
Proceeding type: Sentencing.
Facts: The offender aided and abetted the co-offender to set fire to his former partner’s car using accelerant, which caused the destruction of the vehicle. As a result, an adjacent vehicle also caught fire and suffered damage.
Issues: Burns J determined the appropriate sentence for the offender.
Decision and reasoning: In determining the sentence, the Court took into account the age of the offender (19 years old), the fact that he had no previous convictions, his attempt to contact the owners of the vehicle to apologise for his actions, the contents of the Pre-Sentence Report (which revealed that he had continued family support and a positive peer network), the fact that he was in stable employment and that he was considered to be at low risk of re-offending. His Honour also took into account the offender’s plea of guilty, albeit that it was not entered at the earliest opportunity. These matters were relevant to a finding that he had good prospects for rehabilitation ([10]). A sentence of imprisonment should only be imposed as a last resort, and accordingly, the Court ordered a Good Behaviour Order for a period of 12 months and recorded a conviction. He was also required to complete 150 hours of community service and accept supervision of ACT Corrective Services for that period.
Charges: Assault x 1
Appeal type: Appeal against decision to refuse adjournment; appeal against sentence.
Facts: In the course of sentencing submissions, the Magistrate was not willing to accept a submission relating to the likely impact of a conviction upon the appellant’s employment. The appellant sought an adjournment to obtain evidence to put before the Magistrate. The Magistrate refused the request.
Issues: Whether the Magistrate fell into error in refusing the application for an adjournment.
Decision and Reasoning: Burns J upheld the appeal.
The Magistrate’s refusal of an adjournment was unreasonable so as to bespeak error ([5]). Having received fresh evidence (a letter from the principal of the school where the appellant was employed), Burns J held that, if a conviction was recorded, she would lose her ‘working with children’ approval and, consequently, her job as a teacher. Such an outcome would be disproportionate compared to the nature of the offence ([11]).
His Honour took into account the appellant’s character, antecedents, age, health and mental condition, as well as the seriousness of the offence and extenuating circumstances in which the offence was committed.
His Honour noted that there is no rule of law that a domestic violence offence cannot be the subject of non-conviction order ([15]). Consequently, the conviction was set aside and a non-conviction order made. The Court also imposed a good behaviour order.
Proceeding: Appeal from Magistrate’s sentence order following conviction for damage property causing damage of no more than $5000.
Grounds:
Facts: The offence occurred when the appellant man was a guest in his former wife’s home so that he could take his son to football training in the morning. The appellant demanded to see his former wife’s phone and refusing, she retreated to her bedroom and locked the door. The appellant threatened to break the door down if she did not unlock it. The appellant’s daughter blocked his access to her mother’s bedroom door. The appellant went to the lounge room, picked up a flat screen TV and threw it to the ground, picked up the glass table it had been sitting on then threw the table onto the TV screen, causing it to shatter. His former wife declined to make a statement to police and police proceeded with the matter based upon the appellant’s admissions at the scene.
Decision and Reasoning: The appeal was dismissed. The Magistrate was simply identifying this particular offence as involving family violence, and taking place in the complainant’s home where a child was present. On that basis, she concluded that the particular offence is too serious to be dealt with under s 17. This is not a case in which, but for Mr Purcell’s admissions, either the offence would never have come to light or it would have been difficult to prove in a defended hearing. The judge noted that in R v Hamid [2006] NSWCCA 302, Johnson J (with whom Hunt AJA and Latham J agreed) said at [77]:
An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control.
Penfold J observed:
[48] … the incident giving rise to Mr Purcell’s conviction, and its source in Mr Purcell’s determination to examine the victim’s mobile phone, seem to reflect both an attempt to exercise power or control over his former wife and a belief that this was justified. For this reason, the incident as a whole may legitimately be treated as more serious than it would have been if the TV had been destroyed in anger or frustration generated by some event unrelated to conflict between Mr Purcell and his former wife.
Charges: Assault occasioning actual bodily harm x 1; Intentionally and unlawfully choking a person so as to render that person insensible or unconscious x 1.
Case type: Sentence.
Facts: The defendant headbutted his wife, causing her to become unconscious. He tightly wrapped a piece of rope around her neck, causing her to again become unconscious. She had lost control of her bodily functions and urinated ([1]). The incident occurred in 2013. The complainant was unwilling to provide a statement previously, because she wanted to continue in her relationship with the defendant ([4]).
The defendant pleaded guilty to the charges ([5]).
Issues: Sentence to be imposed.
Decision and Reasoning: The defendant was sentenced to 2 years and 9 months’ imprisonment, wholly suspended ([17]). Mitigating factors included the defendant’s: pleas of guilty; limited criminal history; childhood trauma; mental health issues; and engagement in psychological services ([11]). Burns J considered that the defendant had very good prospects for rehabilitation ([16]).
Charges: Blackmail x 1; Stalking x 1.
Case type: Sentence.
Facts: The defendant and complainant were in a relationship for 2 years. They sometimes filmed consensual sex ([6]-[7]). After the relationship broke down, the defendant sent the complainant emails and text messages threatening to release the video unless the complainant paid him $20,000 ([8]-[9]). The complainant obtained a protection order, and the defendant breached the order three times ([11]).
Issues: Sentence to be imposed.
Decision and Reasoning: Elkaim J remarked on the seriousness of the blackmail in the context of a domestic relationship at [16]: ‘blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant’. While the defendant had promising prospects of rehabilitation and had taken steps to reduce his consumption of illicit drugs, Elkiam J considered that a period of imprisonment was necessary ([21-[22]). The defendant was sentenced to a head sentence of 9 months’ imprisonment, to be served concurrently with 6 months’ imprisonment for stalking [22].
Justice Elkaim remarked on the seriousness of the blackmail in the context of a domestic relationship at [16]: ‘blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant’.
Charges: Making a false accusation x 3; Public mischief x 6.
Appeal type: Appeal against conviction.
Facts: The defendant and ‘EK’ had been in a relationship. After the relationship had ended, the defendant made allegations to the police that EK had sexually assaulted her, had followed her in his car, and had broken into her house ([5]-[12]). The police made investigations, but eventually determined that the accusations were false ([14]).
At trial, the prosecution relied upon the following evidence to show the defendant’s tendency to make false complaints: the fact that there were many allegations supported the inference that each one was false; a complaint of sexual assault made by the defendant against a neighbour when she was 17; and three other allegations made by the defendant against EK’s family ([26], [29]). The defendant was convicted of two counts of making a false accusation and three counts of public mischief (for wasting police officers’ time). She had not yet been sentenced.
Issues: One issues was whether the Magistrate correctly applied tendency evidence.
Decision and Reasoning: The appeal was partially upheld. Justice Refshauge found that the Magistrate applied the tendency evidence incorrectly for two reasons.
Note: this case was subsequently remitted to the Magistrates Court for retrial before a different Magistrate, see Parkinson v Alexander (No 2) [2017] ACTSC 290 (9 October 2017).
Charges: Murder x 1; Recklessly inflicting grievous bodily harm x 1; Assault occasioning actual bodily harm x 1; Contravene protection order.
Case type: Sentence.
Facts: The defendant and the deceased had formerly been in a domestic relationship and had a child together ([9]). The deceased had taken out a domestic violence order (DVO) against the defendant the day before the defendant killed her ([17]-[19]). When the defendant received the order, he bought an axe, drove to the deceased house and cut her neck with the axe, severing her spine. She was holding his newborn child at the time, and her two sons were in the same room ([33]-[36]). The axe severed her sister’s finger, which formed the basis of the grievous bodily harm charge. He then assaulted her brother, which formed the basis of the assault occasioning bodily harm charge ([37]-[39]).
Issues: Sentence to be imposed. The defendant raised the mitigating factor of diminished responsibility.
Decision and Reasoning: Burns J described the objective circumstances of the murder ‘within the worst category of cases of murder, and would warrant a term of life imprisonment’ [133].
Burns J said at [131] ‘For many years now, the courts of this country have spoken of the need to protect members of the community, and particularly women, from domestic violence, and the need for courts to take seriously offences of domestic violence. If these statements are to have meaning, if the protection offered by the [Domestic Violence and Protection Orders Act 2008 (ACT)] is to have significance, it is incumbent on courts to recognise the heinousness of offences of violence committed in retribution for a member of the community invoking the protection provided by the Act.’
His Honour took into account as mitigating factors the defendant’s plea of guilty, his experience of abuse as a child, and his long history of mental health issues ([103]). Other contributing factors included his use of anabolic steroids, methylamphetamines and a personality disorder, but his Honour did not place significant weight on these circumstances ([120]). His Honour also had regard to victim impact statements tendered by the deceased’s family ([124]-[128]). His Honour concluded (at [151]):
‘The present offence of murder was vicious and cowardly. Those who witnessed your violence will have to live with their memories for the rest of their lives. Your actions deprived three children of their mother, including your own infant daughter Ayla. You have effectively deprived Ayla of both of her parents. The effects of your actions will be felt for decades to come. There is a very substantial community interest in retribution, deterrence and punishment. This can only be achieved by a very substantial period of imprisonment.’
His Honour imposed a sentence of 32 years and 2 months’ imprisonment.
Note: the Domestic Violence and Protection Orders Act 2008 (ACT) referenced in this decision has been repealed and replaced by the Family Violence Act 2016 (ACT).
Hearing: Breach of good behaviour order.
Facts: In 2012, Mr Ennis was involved in an altercation with his female partner of 27 years. He was convicted of assault occasioning actual bodily harm and was subject to a good behaviour order for 2 years with a condition to perform 100 hours of unpaid community service work. In 2014, Mr Ennis breached this order by failing to perform the community service work (‘the first breach’). The good behaviour order was extended by 12 months and Mr Ennis ordered to perform 108 hours of community service work (See R v Ennis [2014] ACTSC 369 (4 November 2014)).
However, before the end of the good behaviour order in 2015, Mr Ennis breached the order again (‘the second breach’). Mr Ennis and his partner, who had been drinking alcohol, argued outside their house. Mr Ennis pulled her by her hair and dragged her inside. He let her go and slammed the door in her face (common assault). In March 2016, a magistrate sentenced Mr Ennis to 5 months imprisonment, suspended immediately, and made a good behaviour order for 18 months with various conditions. His Honour then referred the matter to Refshauge J for breach of the good behaviour order that had been extended upon Mr Ennis’ first instance of breach.
Issue/s: Whether further action is warranted in light of Mr Ennis’ breach of a good behaviour order.
Decision and Reasoning: While Mr Ennis complied with nearly 2 years of the original good behaviour order without breach constituted by further offence and nearly 9 months of the additional period ordered by Refshauge J, Mr Ennis had failed at his attempts at rehabilitation. This offending was also facilitated by the consumption of alcohol. Further, the nature of offending was serious. Per Refshauge J, ‘It is, as his Honour Magistrate Morrison said, a family violence offence, and it is serious in that it was the commission of the offence against the same victim, although many years apart. It is a similar offence also, in that it is an assault and another family violence assault. Nevertheless, it is a much less serious version of the offence, although in this case, because of the earlier history, it attracted a sentence of imprisonment, although suspended’. It was relevant that Mr Ennis’ partner had moved away and it was unlikely that the relationship would resume in the near future (See [15]-[22]). Accordingly, the duration of the good behaviour order was extended to 2 years to run from the date of this decision.
Hearing: Application for evidence to be given by audio visual link from a location outside the courtroom.
Facts: The accused, BNS, pleaded not guilty to 2 counts of incest and 5 counts of committing an act of indecency on TN. At the time of offence, BNS was in a relationship with SN, the mother of TN, and was the step father to TN. SN was called to give evidence at trial. She was expected to give evidence of complaint made by TN and relationship evidence (of her and the child’s relationship with BNS).
Here, an application was made for SN to give evidence by audio visual link from a remote location. BNS was physically abusive to SN during the relationship. SN said she had ongoing anxiety and depression which would inhibit her ability to give her best evidence if she was required to give evidence in the courtroom. In light of the history of family violence, she felt intimidated in front of BNS. Finally, BNS also had a conviction for intimidating a witness.
SN did not have the right to give evidence by audio visual link from a remote location under Part 4 of the Evidence (Miscellaneous Provisions) Act because she was not a child, complainant, or a similar fact witness. In the absence of statutory provision, it was noted that there is no power at common law for a court to allow evidence to be heard by video link: R v Hampson [2009] EWCA Crim 1569. However, s 32 of the Evidence (Miscellaneous Provisions) Act empowered the court to direct a person to give evidence by audio visual link from a remote location.
Issue/s: Whether the application to give evidence outside the courtroom via audio visual link should be allowed under s 32 of the Evidence (Miscellaneous Provisions) Act.
Decision and Reasoning: The application was allowed as the pre-conditions set out in s 32 were met. First, the necessary facilities were available (See [10]). Second, the evidence could be more conveniently given from a remote location by video link. SN’s aversion to the accused would make it more convenient for her to give evidence remotely. It was also more convenient for the court to have the evidence given free of the inhibitions troubling SN (See [12]-[13]). Finally, BNS did not object to SN giving evidence remotely and, accordingly, it could not be said that it would be unfair to the accused for SN to give evidence remotely. Although the general rule is that prosecution witnesses should give evidence in the presence of the accused, it was noted that there have been numerous past occasions where the giving of evidence by video link has not been unfair (See [14]-[22]). Further, there were no discretionary matters requiring the application to be refused (See [23]-[30]).
Hearing: Breach of a good behaviour order.
Facts: Mr Curtis assaulted his female partner by punching her a number of times, causing her bruising. He was charged with assault occasioning bodily harm. In October 2013, Refshauge J sentenced Mr Curtis to 12 months imprisonment, wholly suspended, and imposed a good behaviour order with a probation condition for 2 years (See R v Curtis [2013] ACTSC 291 (16 December 2013)). In April 2015, within the period of the good behaviour order, Mr Curtis was found in possession of a number of electronic and other items reasonably suspected of being stolen. In December 2015, he pleaded guilty in the Magistrates Court and was sentenced to a further good behaviour order for 18 months with a community service condition. The magistrate referred the breach of the earlier imposed good behaviour obligations to the Supreme Court.
Issue/s: Whether further action is warranted in light of Mr Curtis’ breach of a good behaviour order.
Decision and Reasoning: The offence subject of the breach was of a different character and less serious to the offence that Mr Curtis was originally sentenced for. This offending was not part of a life of serious criminal offending but a stupid criminal offence prompted by his perceived necessity. Mr Curtis had otherwise complied with the good behaviour order. His Honour was satisfied that this justified re-sentencing Mr Curtis rather than imposing the suspended sentence (See [45]-[49]).
In re-sentencing Mr Curtis, Refshauge J noted the need for general deterrence because the original offence was of family violence. He further noted that ‘Vindication of the victim is always important in family violence offences and, again, the expression of the court's displeasure with the offending by the imposition of imprisonment will meet that objective’ (See [52]). His Honour further noted Mr Curtis’ youth, his employment, and the birth of his child into a stable relationship (absent any family violence) (See [50]-[55]). Mr Curtis was re-sentenced to 12 months imprisonment to commence from 15 August 2015 (to take into account pre-sentence custody), wholly suspended. His Honour further imposed a good behaviour order for 18 months with probation conditions and a community service condition.
Note: the defendant subsequently breached his good behaviour order (although the breach was not related to further domestic and family violence) and was re-sentenced to 12 months’ imprisonment, wholly suspended (see R v Curtis (No 3) [2017] ACTSC 101 (27 April 2017).
Charge/s: Recklessly inflicting grievous bodily harm.
Hearing: Sentencing hearing.
Facts: After arguing with his brother, Mr Williams chased his brother down the street. He caught up with his brother and hit him with a guitar, rendering him unconscious. Mr Williams’ brother was found to have a depressed skull fracture and a haematoma on his brain. He underwent surgery and spent three weeks in hospital before being moved to a rehabilitation facility.
Decision and Reasoning: This was a serious offence, especially because it involved family violence. The offence was not premeditated but was aggravated because it took place at a time when Mr Williams was already subject to a NSW good behaviour order made in connection with an earlier family violence offence (against Mr Williams’ former partner). Further, Mr Williams tried to minimise his actions. The injuries sustained by his brother were quite serious (See [11]-[22]). Penfold J also had regard to Mr Williams’ subjective circumstances including his extensive criminal history (See [23]-[26]). He noted that Mr Williams had attended some anger management and drug and alcohol programs but these had not had an effective rehabilitative impact (See [27]-[31]).
In terms of general deterrence, His Honour noted, ‘This is an offence of a kind that requires general deterrence, and in some cases at least, general deterrence may be effective. I note defence counsel's comment that general deterrence in relation to the grievous bodily harm offence is particularly relevant in relation to “glassing” offences, but I consider that deterring violence within the family is at least as important as deterring alcohol-fuelled violence between strangers or acquaintances’ (See [33]). Personal deterrence was also relevant on the facts (See [34]). Penfold J sentenced Mr Williams to three years imprisonment with a non-parole period of 18 months.
Charge/s: Assault occasioning actual bodily harm, causing grievous bodily harm.
Hearing: Sentencing hearing.
Facts: After consuming a significant quantity of alcohol, Mr Pikula, a man with Aboriginal and Tongan ancestry, began arguing with his step-brother (Mr Mapa). Another step-brother, Mr King, tried to intervene but was stabbed with a knife in the back of his thigh by Mr Pikula (assault occasioning actual bodily harm). The following evening, Mr Pikula again became highly intoxicated and argued with Mr Mapa. He stabbed Mr Mapa twice in the back. The knife wounds punctured his lung (grievous bodily harm).
Decision and Reasoning: Refshauge J sentenced Mr Pikula to 22 months imprisonment for assault occasioning actual bodily harm and 27 months imprisonment for causing grievous bodily harm (cumulative). His Honour also recommended that a condition of Mr Pikula’s parole would include a requirement that he undergo treatment and counselling for alcohol abuse. In imposing this sentence, Refshauge J noted the importance of both general deterrence and specific deterrence (in light of his violent criminal record). The offending was serious here and warranted denunciation. While it had some association with alcohol, which may provide some opportunity for rehabilitation, this could not be said to overwhelm the other purposes of sentencing. His Honour also had regard to Mr Pikula’s troubled childhood and his long history of alcohol abuse.
At [1], ‘There can be no doubt that one of the marks of a civilised society is that its members can be protected from violence in their lives. While there can, of course, be no guarantee of such protection, nevertheless, the community expects that appropriate steps will be taken to maximise such protection. This is especially true of the need for safety within the family’.
Charge/s: Act of indecency without consent, assault with intent to engage in sexual intercourse.
Hearing: Sentencing hearing.
Facts: The male offender and the female complainant were married. They had been in a relationship for 17 years and had 3 children. The offender and the complainant had been drinking alcohol together when the offender requested oral sex. The complainant declined and went to bed. Five minutes later the offender walked into the bedroom and demanded the complainant perform oral sex on him. She refused repeatedly and started crying. The offender said, ‘Do you think your crying is going to get you what you want? It’s your job to do it’. He then took all his clothes off and positioned himself on top of the complainant. She pushed the offender off but he continued to talk angrily. The offender then dragged the complainant across the bed and pushed her head close to his penis. He tried to slap her twice but was blocked by the complainant. She fell off the bed, hurting her head. The offender continued to demand oral sex. He pinned her down on the bed and yelled, ‘You need to suck me off, it’s not about love or intimacy’. The complainant, crying, pleaded for him to let her go and the offender replied ‘What can you do about it?’ The offender then became upset and the complainant called the police.
Decision and Reasoning: These offences were objectively serious. The assault lasted almost an hour and included physical and mental abuse. Robinson AJ noted, ‘I take into account the fact that prior sexual relationship is relevant in assessing the seriousness of sexual assault. Here it is not a sexual assault by an unknown stranger which would give rise to extreme terror in the mind of the complainant’ (See [8]). His Honour also took into account a number of subjective circumstances. There had been some measure of reconciliation between the offender and the complainant. While these events were not an isolated incident of abuse and this mitigated the leniency that could otherwise have been shown in this case, the offender had taken opportunities to assist himself and took responsibility for his offending (See [9]-[14]).
In sum, His Honour noted: ‘I have come to the view that only a sentence of imprisonment is appropriate to the level of offending in this case. There is a need to punish this offending and to send a clear message by way of general deterrence to others that participation in sexual behaviour is a matter of choice not subjugation. I have also determined to deal with the offending as if it were only one transaction and impose concurrent sentences’ at [15]. The offender was sentenced to one year and nine months on the charge of unlawful assault and seven months imprisonment for an act of indecency. These sentences were wholly suspended upon the offender entering a good behaviour order for three years.
Charges: Assault occasioning actual bodily harm (two counts), damaging property, engaging in sexual intercourse without consent (two counts)
Proceeding: Sentencing
Facts: The offender and the victim were in a relationship. After drinking three bottles of wine one night, the offender smashed a bottle and jar because ‘he was angry’. The victim decided to stay at her mother’s house and that it was best to take the offender’s car keys. When she went to get them, the offender grabbed her by her hair, threw her to the ground, stood over her, stomped on her face and chest and punched her a number of times. During the attack, the offender told the victim ‘This is what you get for lying to me’ and threatened to kill her. He then put his hands around her neck and tried to strangle her (count 1). When the victim tried to phone someone for help, the offender snapped her mobile in half (count 2). About 15 minutes after the initial attack had ended, the offender grabbed the victim by the back of her neck, smashed a mug over her head and hit her multiple times with the smashed mug. After the mug broke, he went to get another mug and again hit her, causing a large laceration to the victim’s head (count 3). After the victim had a shower, the offender told her ‘Now that I have done that to you, we are going to do everything my way from now on. It is not your way, it is going to be my way, okay.’ He then put his penis into the victim’s mouth despite her resisting and turning her head away (count 4) and forced her legs apart and had sexual intercourse with her (count 5).
The next morning the offender asked the victim what had happened. When she told him and asked to be taken to the hospital, he refused until later that day. The offender later apologised to the victim and told her, ‘If you tell the police then we will not see each other again’.
In relation to this conduct the offender was charged and pleaded guilty to two counts of assault occasioning actual bodily harm (counts 1 and 3), one count of damaging property (count 2) and two counts of engaging in sexual intercourse without consent (counts 4 and 5).
Issue: What sentence the offender should receive.
Decision and reasoning: Refshauge ACJ began his judgement by emphasising the seriousness of domestic violence and the considerations relevant to sentencing offenders: ‘Domestic violence is a scourge in the Australian community. It has become so problematic that significant efforts are being made at the Federal, State and Territory levels to address it. Clearly, the courts have a part to play in denouncing such conduct and making it clear that in a civilised society it is completely unacceptable. In sentencing offenders who commit domestic violence against their partners, the courts must use the objectives to be achieved in sentencing: general deterrence, specific deterrence, accountability of the offender and vindication of the victim, as well as denouncing the conduct. Nevertheless, at all times a sentence for any criminal offence must be appropriate to the circumstances of the offence and proportionate to the criminality of the offence and the culpability of the offender’ ([1]-[4]).
The offender had a long history of alcohol abuse and alcohol related violence. He had previously been convicted of a violent assault on his previous partner, two offences of drink driving and driving while disqualified. While in custody, the offender completed the SMART Recovery Program and First Steps to Anger Management Program to address his alcohol abuse and violence. He also accepted that he had an alcohol problem and expressed remorse about the offending and its impact on the victim.
References about the offender were provided by his employer (he was employed as a wards person in a hospital), his brother-in-law and his pastor. All three references described him as a respectful and caring person of good character. His brother-in-law and pastor also commented on the positive changes the offender made while in custody. He developed his faith in God, was obedient and respectful of authority, enjoyed the education and rehabilitation programs available and was very remorseful about his conduct in harming the victim. The victim also prepared a victim impact statement in which she expressed her continued serious emotional trauma and its impact on all areas of her life including friends, family, work and finances.
The offending was very serious with the whole of the events constituting a ‘brutal, extended attack on a victim which not only left her with physical scars but with social and mental scars that will last for some considerable time’ ([70]). The facts the assaults occurred in the context of a domestic relationship and the victim suffered injuries were aggravating factors. The circumstances in which the property was damaged also made the offence more serious: ‘To deny a victim of a brutal assault the opportunity to gain assistance would have increased the terror she must have experienced and has aggravated the offence’ ([67]). The sexual assaults violated the victim’s integrity and were a serious intrusion into her personal life despite occurring in the context of a domestic relationship.
In sentencing, Refshauge ACJ emphasised the need for special and general deterrence to denounce the offences committed by the offender. While the offender had taken positive steps in rehabilitation, this could not overbear the other purposes of sentencing. Rather, it was taken into account in setting the non-parole period. The seriousness of the offending meant that imprisonment was the only appropriate sentence. After considering the principle of totality and ensuring the offender was not punished twice, Refshauge ACJ sentenced him to a total sentence of six years’ imprisonment, backdated for the time already spent in custody. A non-parole period of three years and three months was also ordered. The total sentence comprised of:
Charge/s: Breach of a domestic violence order.
Appeal type: Appeal against sentence.
Facts: The appellant had been in an ‘off and on relationship’ with the female victim for 10 years. A Domestic Violence Order was made in favour of the victim against the appellant. Subsequently, one evening between 9.13pm and 10.04pm, the appellant made 10 telephone calls to the victim. He left one message saying: ‘You wait cunt. Your house is smashed and that fucking cunt you’re rooting. I am going to kill that cunt’. The appellant pleaded guilty at the first reasonable opportunity to the breach and was sentenced to a period of imprisonment of 22 months with a non-parole period of 15 months.
Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld. The offence was very serious but the objective circumstances did not warrant a term of imprisonment of 22 months. As per Robinson AJ: ‘Significantly, there was no face to face confrontation, no infringement of the prohibition to be on the property of or within 100 metres of Ms BC and no weapon was involved. Ms BC did not answer the telephone calls’. His Honour referred to R v Loulanting [2015] ACTSC 172 as being a factually similar case. His Honour acknowledged that compliance with any type of protection order is essential to protect members of the community from violence and anti-social behaviour. It is therefore open to the Court to impose a stern penalty to achieve this end. However, the punishment must still be proportionate to the offending and here this could not be said to be the case (See [25]-[26], [32]-[35]).
The appellant was re-sentenced to 14 months imprisonment. Robinson AJ stated: ‘In my view substantial weight should be accorded, in the circumstances of this case, to deterring the offender and others from committing the same offence. His conduct was a defiance of the orders of the Court. This was by no means the first such defiance. There is value in our society upholding all orders of Courts. There could be said to be even more value in upholding protection orders in the context of the role that protection orders now play in our society in all jurisdictions’ at [54].
Charge/s: Common assault, damage to property.
Appeal type: Appeal against sentence.
Facts: The appellant and his former female partner had four children together. They separated two months prior to the offending but the appellant had been staying at the family home for a week prior to the offences. On 6 November 2014 at about 11pm, the appellant banged on his former partner’s window demanding she wake up. She let him in and went back to bed (where her 5 year old daughter was sleeping). The appellant went to the bedroom and punched a hole in the door. He started yelling and abusing his former partner. Despite the cries of the 5 year old daughter to stop, the appellant restrained his former partner and started hitting her. He woke up the couple’s 3 year old son. The appellant then hit the bedroom door several more times and started yelling again. The couple’s 13 year old daughter called the police. The appellant was sentenced to 12 months imprisonment for common assault and 6 months imprisonment for damage to property, suspended after 8 months. The appellant had previously been convicted for offences of assault against his former partner in 2006 and 2012. These offences were also committed under the influence of alcohol.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. First, the sentencing magistrate did not fail to consider the possibility of part of the sentence being served by way of periodic detention. Second, although counsel submitted that the appellant had been compliant with bail conditions imposed in 2014 (namely, sobriety), the magistrate was entitled not to place any great weight on this consideration. This was particularly so given that the appellant had assaulted his former partner before under the influence of alcohol. Finally, counsel for the appellant submitted that previous assaults had been dealt with by a non-custodial sentence and to impose a sentence of full-time imprisonment for at least 8 months was an oversized incremental step. Robinson AJ stated: ‘The argument regarding the oversized incremental step is answered by the proposition that the courts dealing with the earlier assaults allowed leniency (perhaps too much) in a desire to rehabilitate the appellant. Further there is no sentencing principle that requires courts to impose sentences incrementally according to some upward scale’ (See [18]).
Charges: Damaging property, assault, assault occasioning actual bodily harm
Proceeding: Resentencing
Facts: The offender was charged and pleaded guilty to damaging property for breaking a window in his partner’s house. He was convicted and sentenced to one month’s imprisonment. This conviction breached a good behaviour order that was made after he was convicted for assaulting his partner. He was sentenced to six months’ imprisonment, wholly suspended upon complying with a good behaviour order for two years. The good behaviour order was cancelled as a result of the breach and the six months’ suspended sentence was imposed, but was ordered to be served concurrently with another term of imprisonment. The offender successfully appealed this sentence. A sentence of six months’ imprisonment wholly suspended on the condition of a 12-month good behaviour order was imposed on appeal. A good behaviour order for the offence of damaging property was also made.
The offender was subsequently convicted of traffic offences, constituting a breach of both good behaviour orders. As a result, the good behaviour bond imposed for the offence of damaging property was extended for a further 12 months. He was also resentenced to six months’ imprisonment on the assault charge, suspended for a period of 12 months on the conditions of a further good behaviour order for 12 months and 80 hours of community service. This effectively increased the length of the good behaviour orders as well as requiring the offender to perform community service work.
The offender again breached these good behaviour bonds when he was convicted of assault occasioning bodily harm. This conviction arose when the offender choked his partner and threw a chest of drawers that hit her in the head. In relation to this offence, he was sentenced to 18 months’ imprisonment, suspended after nine months with a good behaviour order for two years thereafter.
Issue: How should the offender be resentenced for the final breach of the two good behaviour orders?
Decision and reasoning:
The offender suffered a difficult childhood in which he was sexually abused and had great difficulties in school as a result of having ADHD and dyslexia. After leaving school at 14, he was homeless for many years. He also had a long history of drug and alcohol abuse. The offender also suffered from various mental illnesses, including major depressive disorder, borderline personality disorder and antisocial personality traits, for which he was receiving treatment. He had a long criminal history with 122 offences on his criminal record. This reduced towards the time of offending in question and suggested his criminality was abating.
The final breach of the good behaviour orders was serious when considering ‘the offence was a family violence offence committed on a complainant who had been the victim of earlier offences of a similar type committed by [the offender], for which the current Good Behaviour Orders owe their genesis’ ([37]). However, there was a need to take into account the offender’s mental health. Refshauge J considered that ‘the option for rehabilitation can be given greater prominence without minimising the need for some level of special and general deterrence’ ([38]).
Refshauge J cancelled the good behaviour orders in accordance with s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). The conviction of assault occasioning actual bodily harm was confirmed. The offender was convicted to six months’ imprisonment, wholly suspended for a period of two years. A good behaviour order was made for two years with the conditions that the offender would be supervised, must complete 180 hours of community service, and must participate in the Detention Exit Community Mental Health Outreach Program for three months. The conviction for damaging property was also confirmed and the offender was sentenced to one month’s imprisonment, taking into account the time already spent in custody.
Refshauge J concluded by telling the offender, ‘If you are genuine in your efforts, the Court will support you in this, as I hope I have shown you, but if you are not, then you can expect further custodial sentences and a revolving door’ ([57]).
For Refshauge J’s previous decision on appeal, see Guy v Anderson (No 2) [2013] ACTSC 245.
Charges: Common assault, assault occasioning actual bodily harm, contravening a protection order, resisting a public official
Proceeding: Sentencing
Facts: When the offender returned home he tripped after his dogs walked in front of him. In front of his wife (the victim) and children, the offender became angry and started kicking the dogs. After the victim asked him to calm and stop hurting the animals, the offender punched her in the stomach (count 1). Approximately 10 minutes later when they were discussing the punch, the victim said ‘You grew up watching your dad hit your mum and now you think it’s okay to hit me too’. In response, the offender punched her again to the back of her head, causing her to fall to the ground. He then punched her twice more, kicked her in the head five times and stomped on her head. As a result, the victim suffered a large cut to her forehead requiring seven stitches and a bloody nose (count 2). Both children were present during this assault. When the offender was arrested by police he became aggressive, spat at one of the officers (count 3) and resisted the arrest (count 4). Approximately 3 months later a domestic violence order was made against the offender restraining him from engaging in conduct that constitutes domestic violence to the victim, including offensive, harassing or threatening conduct. The offender subsequently had an argument with the victim where he was abusive and threatening towards her (count 5). When someone attempted to intervene, the offender threatened to kick him. At the time this offence took place the offender was on bail for the previous 4 offences.
In relation to this conduct, the offender was charged and pleaded guilty to two counts of common assault (counts 1 and 3), one count of assault occasioning actual bodily harm (count 2), one count of resisting a public official (count 4) and one count of contravening a protection order (count 5).
Issue: What sentence should be imposed.
Decision and reasoning:
In assessing the objective seriousness of the offences, Burns J took into account that the offender was significantly larger than the victim, that the offences occurred in the context of a domestic relationship and that the children were present during the attack. Burns J considered the offender’s conduct to be ‘cowardly, shameful and rightly characterised as criminal’ ([7]). A victim impact statement was also prepared by the victim, explaining the trauma and anxiety the offences caused her and the children. Burns J noted that ‘As is so often the case in domestic violence offences, the long term burden of your violence will not only be felt by your wife, but also by your children’.
The offender’s childhood was marred by exposure to domestic violence and he ‘was disappointed in [his] actions and how [he] exposed [his] children to that type of domestic violence, which [he] despised as a child’ ([22]). He had secure employment to return to after being released from custody. The offender had a history of drug and alcohol abuse and mental health issues including suffering from posttraumatic stress disorder. Due to these concerns, he was assessed as being at moderate risk of reoffending. However, Burns J noted that the offender had been attending numerous rehabilitation programs for his alcohol and drug abuse and was receiving treatment for his mental health issues. Expert psychologist reports noted that the offender’s behaviour was ‘strongly influenced by [his] background of mental health issues arising out of [his] traumatic childhood, particularly [his] ongoing complex post traumatic stress disorder’ and that he was unable to make calm or rational choices at the time of offending ([32]).
The offender demonstrated a degree of remorse in his statements to psychologists and his guilty pleas. Therefore, the sentence was reduced by 25 per cent as a result of these early pleas. The offender’s mental illness was causally connected to his offending and to his abuse of alcohol. It also impaired his mental functioning at the time of the offences and reduced his moral culpability by impairing his ability to exercise appropriate judgement and make calm and rational choices. Full time imprisonment would have a deleterious effect on his mental health and prospects of rehabilitation. Burns J concluded that the need for general and specific deterrence should be moderate in light of the offender’s reduced culpability as a result of his mental illness.
Burns J convicted and sentenced the offender to:
Charges: Assault occasioning actual bodily harm, burglary and choking a person so as to render them insensible or unconscious
Proceeding: Bail
Facts: While on bail for previous offending, the accused allegedly entered his ex-partner’s (the victim) home and attacked her, placing his hand around her neck and squeezing until she felt light headed. At the time these offences were committed, the accused was subject to a protection order in favour of the victim. The breach of this order was a serious offence for the purposes of the Bail Act 1992 (ACT) (the Act) and therefore the presumption against bail did not apply to the accused. In order for bail to be granted, the court must have been satisfied that there were special and exceptional circumstances favouring the grant of bail under s 9D(2) of the Act.
Issue: Whether bail should be granted.
Decision and reasoning: Bail was not granted. The charge of contravening a protection order was ultimately withdrawn because of procedural issues relating to service. However, s 9D of the Act still applies where a person is on bail for a serious offence of which offence that person is acquitted. Therefore, the fact that the charge was withdrawn did not amount to special and exceptional circumstances in favour of granting bail. The accused allegedly committed very serious offences of family violence. He had a history of offending, having previously been convicted of two offences of assault occasioning actual bodily harm, four offences of assault, two offences of contravention of a protection order, numerous traffic offences including drink-driving offences and fives offences of failing to appear in accordance with a bail undertaking. He had also shown an unwillingness to obey and disrespect of court orders. Given the accused’s history and the real risk that he would not attend trial and reoffend, bail should not have been granted even if there were special and exceptional circumstances in favour of granting bail.
Charge/s: Threat to kill, breach of a protection order x 2.
Hearing: Sentencing hearing.
Facts: The offender was charged with and pleaded guilty to 2 counts of breaching a protection order (where the protected person was his former female partner) and making threats to kill. On 18 January 2015, the offender contacted the protected person, asking to see his son. She refused because he had been using ice and was acting aggressive and demanding. The offender then sent her a number of text messages that were indecent, offensive and aggressive. The protected person ignored these messages as he had sent similar messages in the past. However, the next day, the offender called again and left a voice mail and text messages threatening to kill her.
Decision and Reasoning: The offender was sentenced to a total sentence of 4 years imprisonment, including 12 months imprisonment for the breaches of the protection order and 2 years and 6 months imprisonment for the threat to kill. This sentence was appropriate in light of a number of factors. The offences required punishment and denunciation, and considerations of general and specific deterrence were also significant. Refshauge J accepted that the offender genuinely sought rehabilitation but noted that agencies the offender had been referred to in the past had had no significant impact on his behaviour. His Honour took into account the plea of guilty, the offender’s mental health and accepted that the offender felt remorseful (See [44]-[48]).
His Honour further took into account the seriousness of the offences, which were particularly concerning as they were committed in the context of family violence. First, the threat to kill was serious. The use of ice, earlier harassment and changed tone from the earlier conversation all showed the serious intent of the offender and the fear that this threat was likely to have had engendered in the victim. The fact that this offence was brought on by the use of ice was not a mitigating factor but Refshauge J took into the offender’s desire for rehabilitation and the, so far unsuccessful, attempts he had made at rehabilitation. The denial of access to his son also provided explanation for the offence but was not a mitigating factor in any way (See [37]-[40]). Second, the breaches of the protection order were also serious, albeit less serious than the threat to kill. The breaches were deliberate and intentional. While they were not the most serious versions of the offence, they were not made by personal approach, they were still serious as the contact was made over two days and was abusive and indecent (See [41]-[42]).
Refshauge J stated:
There is no doubt that the addiction to drugs creates significant problems for the community, as well as for the user and his or her family. When the drug is methylamphetamine, or ice, the violence that it also generates can create further problems, particularly if there are stressed family situations leading to family violence. When mental health issues are added to the situation, it creates great complexity in trying to deal with the multiple issues that arise (See [1]).
Charge/s: Recklessly inflicting grievous bodily harm, burglary x 2, common assault x 2.
Hearing: Sentencing hearing.
Facts: On two occasions on one evening, the offender attended the residence of his former partner. On the first occasion, the offender entered through a window and engaged in a physical confrontation with his former partner’s boyfriend. The offender then left the premises. He returned later in the evening and picked up a knife from the kitchen. The offender started a physical confrontation with his former partner’s boyfriend. To protect himself, the victim placed his hand on the blade of the knife and sustained a serious injury to his hand.
Decision and Reasoning: On the burglary charges, the offender was sentenced to 12 months imprisonment and 16 months imprisonment, with the balance suspended and a good behaviour order imposed. On the charge of recklessly inflicting grievous bodily harm, the offender was sentenced to 15 months imprisonment, wholly suspended upon entering into a good behaviour order. In imposing this sentence, Burns J took into a number of considerations that warranted greater punishment. His Honour noted that, ‘these offences [were] family violence offences and as such must be treated very seriously by [the] Court. [The] community views with great abhorrence the infliction of violence by people in family relationships’. It was also significant that the offences occurred in the victim’s own home. In mitigation, Burns J took into account the offender’s plea of guilty, the steps taken by the offender to address his alcohol abuse (which was a significant factor in all his offending), his remorse and general prospects for rehabilitation.
Order sought: Application for a domestic violence order (DVO).
Appeal type: Application for extension of time in which to bring an appeal from the decision of the Magistrates Court dismissing an application for a domestic violence order.
Facts: On 25 February 2014, the applicant applied for a DVO against her former male partner. Both parties were represented. The transcript of the proceedings extended over some 86 pages. The applicant gave evidence in chief of a number of incidents involving the applicant and her daughter being followed and stared at by the respondent, being grabbed and punched by the respondent, and the respondent sending threatening messages. Of particular relevance to the appeal, the applicant gave evidence of an incident that occurred on 1 December 2010 at the time of the couple’s separation. The applicant thought the respondent was overseas but he appeared in her house and dragged her into the hallway, sat on top of her, and smashed her head onto the floor (‘the December 2010 incident’). The next day the applicant made an application for housing assistance to the Commissioner for Social Housing stating that she was homeless and escaping violence from her partner.
On 27 May 2014, the magistrate found that the principal incidents of which the applicant gave evidence did not occur or did not constitute domestic violence. In particular, the magistrate was satisfied that the respondent was not in Australia on or about 1 December 2010 and he did not return until after the applicant had gone to the Commissioner for Social Housing. Although the applicant had been injured by someone at the time she went to the Commissioner for Social Housing, Her Honour was not satisfied on the balance of probabilities that the respondent caused that injury.
The application for leave to appeal was not filed until 2 January 2015 (a period of 7 months delay). The applicant was prompted to lodge this appeal because of an adverse decision of a judge of the Federal Circuit Court on 18 December 2014. The decision of the Federal Circuit Court related to parental responsibility and living arrangements for the child of the applicant and the respondent. One of the reasons the applicant sought to overturn the decision of the Magistrates Court was that this decision had an impact on the findings and outcome in the Federal Circuit Court decision.
Issue/s: Whether the grounds of appeal have any reasonable prospect of success and whether the extension of time within which to appeal should be granted.
Decision and Reasoning: Mossop Ass J dismissed the application for an extension of time within which to appeal. His Honour accepted that, at least in relation to the December 2010 incident, there was a reasonably arguable ground of appeal based on documentary evidence presented to the Supreme Court on appeal. Essentially, this paperwork demonstrated that there was at least a possibility that the dates originally provided were incorrect and the respondent could have been in the country at the time of the incident (see [82]-[92]).
However, there were other factors telling against the grant of an extension of time: the length of time since the decision; the limited prospects of ultimately obtaining an order even if domestic violence was ultimately established; the interests of SX in not having a long finalised decision reopened; and the availability of protection under the Act if circumstances warrant it. The way in which the Federal Circuit Court relied on the findings and decision reached in the Magistrates Court was a matter of significant concern to the applicant but the correctness of the Federal Circuit Court’s approach and conclusions was a matter to be resolved in that appellate hierarchy (See [112]-[113]).
Note: this case was affirmed on appeal (see LE v SX [2017] ACTCA 34)
Charge/s: Assault.
Appeal type: Appeal against conviction and sentence.
Facts: The appellant and his former partner had commenced family law proceedings relating to parenting orders for their son. The appellant, a solicitor, was self-represented while his former partner (the complainant) was represented by a firm of solicitors and a barrister. While at the Federal Magistrates Court, the appellant knocked on the interview door where his former partner and her counsel (the solicitor, barrister and a law clerk) were conferring. He asked if they had considered his proposal. When he was told they would be another 10-15 minutes, the appellant replied ‘that’s not good enough’. The barrister attempted to close the door with her left wrist but the appellant forced it open and said, ‘who are you?’ in a raised voice. The barrister called security. 30 minutes later she complained of pain in her wrist. The appellant was charged with assault and pleaded not guilty. The magistrate found the charge proved and fined the appellant $100 and ordered the appellant to pay costs of $69, a criminal levy of $50 and a victim’s service levy of $10.
Issue/s: The appellant appealed against his conviction and sentence. The notice of appeal was nearly 70 pages long and contained many convoluted and repetitive grounds of appeal. Two relevant grounds were:
Decision and Reasoning: The appeal against conviction and the appeal against sentence were dismissed. First, one of the grounds in relation to the appeal against conviction was that the evidence given by the barrister, the solicitor, the law clerk and his former partner was tainted because they all had an ulterior motive i.e. to gain advantage in the family law proceedings. Refshauge J held that there was no evidence to support this allegation and stated, ‘the incident was reported to a security officer of the Commonwealth Law Courts promptly, the evidence of the various parties was not identical, usually a matter indicative of truth, because identical recollections of different witnesses, especially as to inessential facts, is often an indication of concoction and it is not explained what benefit [his former partner] would obtain from such a device’. Further, the allegation that the witnesses perjured themselves was unsustainable. The evidence given was corroborated by the CCTV footage and by the evidence of the other parties(See [301]-[323]).
Second, in relation to the appeal against sentence, the magistrate did not err in placing significance on the fact that the assault took place in a court building. Refshauge J stated, ‘while [the appellant] certainly possessed the right to be within the bounds of the court precinct, this is not an unlimited right and does not give him the right to assault other people. A court precinct is a place where people should be able to expect the law to be observed at all times’. Further, His Honour quoted from Grimshaw and Mann [2013] ACTSC 189, ‘intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious’. However, this was not to state that assaults occurring in a private home are not serious (See [372]-[377]).
Note: this case was affirmed on appeal (see McElholum v Hughes [2016] ACTCA 37 (29 September 2016)).
Charge/s: Aggravated burglary (armed and intent to cause harm).
Hearing: Sentencing hearing.
Facts: S left her male partner, the offender, to be in a relationship with another man (the victim). Thereafter, the offender sent many abusive and threatening text messages to S. On the morning of 26 May 2013, the intoxicated appellant drove to the victim’s house, where S was now living. He was carrying a 1.2 metre spirit level and a bag with an angle grinder, cable ties, electrical tape, a kitchen knife and a timber-handled holding knife. The offender used the spirit level to smash the window of the victim’s bedroom, where the victim and S were asleep. The victim asked the offender what he was there for to which the offender replied, ‘You know what I’m here for; I’m going to kill you’ and ‘You’re sleeping with my wife’. He continued to scream at the victim as the victim walked away. The offender then struck the victim with the spirit level on the left arm and left side of his head, causing significant lacerations. S tried to intervene as the offender punched the victim in the face, threatening to kill him. The police were called and the offender removed.
Decision and Reasoning: The offender was sentenced to 3 years and 1 month imprisonment with a non-parole period of 18 months. In imposing this sentence, Murrell CJ took into account a number of considerations. First, the offender had a history of taking the law into his own hands. He was on bail for common assault at the time of the offences and had previously committed offences of common assault. Second, Her Honour took into the offender’s subjective circumstances namely, the offender’s intention to ‘settle down’ by continuing his employment in the building industry and removing himself from his involvement in the Rebels Motorcycle Gang. However, she noted that it was surprising that someone at age 63 had not ‘learnt his lesson from a series of prior similar incidents’. Third, the objective circumstances were of at least moderate seriousness (See [26]-[33]). Finally, Her Honour took into account general sentencing considerations (See [35]-[40]).
Charges: Engaging in sexual intercourse without consent (3 counts), assault, assault with the intent of engaging in sexual intercourse, theft
Proceeding: Bail
Facts: The applicant and his wife (the victim) lived together for some time after migrating to Perth from Syria. While living in Perth, the victim left the applicant and moved into a refuge as a result of domestic violence in the relationship. After the applicant and victim reconciled, they moved to Canberra where their relationship remained volatile. One day the applicant went into the bedroom and had sexual intercourse with the victim, despite her asking him not to, attempting to push him away and crying throughout. Later in the day, the applicant verbally abused the victim and threatened to withdraw his immigration sponsorship of the victim’s family to come to Australia. He then again had intercourse with the victim, who continued to cry but otherwise did not move. The next day, the applicant slapped the victim and dragged her by her hair, rolled her on her back and again had intercourse with her. The victim continued to struggle, hitting the applicant’s chest and pushing him away. The applicant was charged with three counts of engaging in sexual intercourse without consent, one count of assault, one count of assault with the intent of engaging in sexual intercourse and one count of theft. He pleaded not guilty to each charge.
While in custody, the victim visited the applicant every two or three days. She subsequently made a statutory declaration that she was ‘a little tired and confused’ at the time of making her complaint to the police. She sought to change her statement that all sexual intercourse was consented to and that she had been drinking before the assault. The victim wrote a letter to the Court in respect of the bail application, in which she said she did not object to the applicant being granted bail. She also stated that she was not pressured into writing the letter, that the applicant was not harmful to the community, and that as a pregnant woman she did not want her child to grow up knowing their father was in gaol.
Issue: Whether bail should be granted.
Decision and reasoning: Bail was granted on conditions including that his family pay a surety of $5000, he surrender travel documents, he not contact the victim, and that he reside in Perth.
The offences that the applicant was charged with were serious. However, Refshauge J determined he could not assess the strength of the Crown case given the absence of much evidence and the victim’s damaged reputation as evidence because of her apparent retraction of the complaint. The applicant also had a substantial cash surety available to him and proposed to live with his parents. He had no criminal record. His departure from Canberra to Perth immediately after the offences were alleged was an indication of his intention to flee. However, this risk could be mitigated by imposing conditions on bail such as the surrender of travel documents, that he report to police and be prohibited from being at a place of international departure. Refshauge J accepted that the applicant was likely to commit further violent offences against the victim if he had contact with her. However, this could also be mitigated by the applicant living in Perth and on the condition that he not contact the victim. The Crown’s submission that the applicant could intimidate and interfere with witnesses if bail was granted was rejected. The fact the applicant could withdraw his sponsorship of the victim’s family was unlikely to be affected by his bail status. Further, the victim had already retracted her initial complaint, with no evidence from the prosecution that this was a result of intimidation from the application.
Charge/s: Threatening to commit arson, stalking, breach of a personal protection order x 2.
Hearing: Sentencing hearing.
Facts: The offences arose out of the breakdown of a relationship between the offender and his former female partner. The relationship ended acrimoniously, particularly in relation to the care and access arrangements relating to the care of the couple’s child. The offender’s former partner obtained Domestic Violence Order against the offender and her parents obtained Personal Violence Protection Orders. Subsequently, the offender and his former partner had an argument over the telephone over the care and access arrangements for their daughter. The offender went over to the house of his former partner’s parents and began shouting and swearing at his former partner. He produced a cigarette lighter and threatened to burn her parent’s car. Further, the offender pleaded guilty to a count of stalking on the basis of 25 phone calls made to his former partner. Most were for relatively short periods and were made at varying hours of the day. Finally, the offender breached the Personal Protection Orders by calling his former partner’s parents on multiple occasions.
Decision and Reasoning: Refshauge J imposed a total sentence of 2 years and 4 months imprisonment, suspended for a period of two years. In imposing this sentence, Refshauge J took into account the purposes of sentencing and in particular, specific deterrence and vindication of the victims (in light of the Victim Impact Statements delivered in court — See [67]-[70]). He also took into account the offender’s plea of guilty and his subjective circumstances (including the offender’s drug problem).
These offences were serious and warranted a term of imprisonment. The offence of arson was serious because the offender produced a cigarette lighter, there was a threat with intent to achieve an objective to which he may otherwise not have been entitled, and it was committed at the home of the victim. The stalking offence was also a serious offence particularly because it was committed with a circumstance of aggravation, namely in the presence of a Domestic Violence Order. Finally, the breaches of Personal Protection Orders were serious because they involved a disregard of a court order designed to protect the subjects of the orders.
Charge/s: Aggravated burglary, unlawful confinement, common assault, carry/use a firearm with disregard for own safety or safety of other persons.
Hearing: Sentencing hearing.
Facts: The 26 year old male offender and the 21 year old female complainant commenced a relationship after meeting on an online dating website. Five weeks after their first meeting, the complainant told the offender that she wanted to end the relationship but wished to remain friends. The complainant then went overseas for 2 months. Upon her return, the offender tried to re-commence their relationship but the complainant did not want to. At a meeting between the pair, the offender said the complainant was ‘cruel’, ‘yelled at him’ and ‘humiliated him’. A month later, the complainant was home alone in her apartment. The offender sprung out from behind a door, covered her mouth with a gloved hand and told her not to scream. In his other hand, he was holding a gun. There was a struggle in which the offender tackled the complainant onto the bed and held a gun against her chest. The complainant was confined to the apartment for 3 hours.
Decision and Reasoning: Imprisonment was the only penalty appropriate in the circumstances. These were very serious offences — the complainant was in her own apartment which the offender broke into, he carried a gun, he wore medical gloves, held the gun against the complainant’s chest, and confined the complainant in terrifying circumstances for 3 hours. However, on the balance of probabilities, Robinson AJ found that the offender was suffering from a depressive mental illness on the day of the offence. The moral culpability of the offender was reduced, although not eliminated, by this depressive illness. There was a moderate risk of reoffending but His Honour concluded the offender had very good prospects for rehabilitation in light of the treatment of his mental illness and his new relationship. In the circumstances, it was desirable to give weight to the promotion of the rehabilitation of the offender. Accordingly, the offender, was sentenced to a total effective sentence of 2 years imprisonment, suspended from 9 December 2015.
Note: the convictions in relation to this case were set aside and a retrial was ordered because the trial judge failed to provide a warning about having a support person (see Thompson v The Queen; The Queen v Thompson [2016] ACTCA 12 (6 May 2016).
Charges: Choking a person so as to render them unconscious, assault occasioning actual bodily harm, common assault
Appeal type: Crown appeal against sentence
Facts: The respondent and victim were in a domestic relationship for three and a half years and lived together with the complaint’s son. One afternoon the respondent and victim got into a fight that resulted in the respondent striking the victim across her face and placing her in a chokehold. The respondent then placed his knee on the victim’s shoulder. After the victim asked him to stop, he asked ‘You want to die?’. The respondent then placed his hand around the victim’s throat and started squeezing before placing his other hand over her mouth and nose. As a result the victim briefly lost consciousness. Later the same day the respondent grabbed the victim by her hair and began shaking her. Attempting to free herself from the respondent’s grip, she ended up on the ground when the respondent kicked her face, and jumped and stomped on her arm and head. When the respondent realised the victim’s son witnessed the attack he told him ‘I didn’t do anything wrong. Mum’s flipping out’.
In relation to this conduct the respondent was charged and made late guilty pleas to choking a person so as to render that person unconscious, for which he was sentenced to 15 months’ imprisonment; assault occasioning actual bodily harm, for which he was sentenced to 10 months’ imprisonment, with three months to be served cumulatively on the sentence imposed for the offence of choking; and common assault, for which he was sentenced to five months’ imprisonment concurrent with the sentence imposed on the charge of choking. A non-parole period of 12 months was ordered. While the offending occurred, the respondent was on parole for burglary, theft and unauthorised possession of a firearm. The respondent’s parole was subsequently revoked and he was liable to serve the remainder of his sentence. The sentence imposed for the offence of choking was ordered to commence at the expiration of the sentence the respondent was serving as a result of the cancellation of the parole order.
The respondent had an extensive criminal history, having been convicted for approximately 80 criminal offences in the past 20 years. He also had a long history of substance abuse and mental health issues including being previously diagnosed with antisocial and paranoid personality traits. A pre-sentence report noted that the respondent made derogatory comments about the victim and demonstrated minimal victim empathy. The report also considered the respondent was at high risk of reoffending.
Issue: Whether the sentence was manifestly inadequate.
Decision and reasoning: The appeal was allowed on the sentences imposed for the offences of choking and assault occasioning bodily harm. These sentences were set aside and the respondent was resentenced to a term of three years and one month’s imprisonment for the offence of choking and 20 months’ imprisonment for the offence of assault occasioning actual bodily harm.
The starting point of 18 months’ imprisonment adopted by the magistrate before a reduction for the guilty pleas was manifestly inadequate in relation to the choking offence when considering the maximum penalty of 10 years’ imprisonment, the objective circumstances of the offence and the subjective circumstances of the offender. Burns J held that an appropriate starting point was three years and nine months’ imprisonment with a reduction of eight months for the plea of guilty. Likewise, the starting point of 14 months’ imprisonment for the offence of assault occasioning actual bodily harm was also manifestly inadequate. An appropriate starting point when considering the seriousness of the offending was two years’ imprisonment, reduced to 20 months’ imprisonment to reflect the plea of guilty.
In coming to this conclusion, Burns J considered that the seriousness of offences of violence within intimate relationships requires sentences that strongly denounce and deter such offending. Citing Wood CJ in R v Edigarov [2001] NSWCCA 436, ‘such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence’.
Charge/s: Forcible confinement, damaging property, theft.
Hearing: Sentencing hearing.
Facts: The offender, who was on parole at the time, confined his mother in her home for 2 hours. During the course of confinement, the offender verbally abused his mother, threatened violence and damage to property, and damaged a heater and a wooden cedar door. The offender’s anger was based on his belief that his parents were communicating with Corrective Services, putting in jeopardy his parole order. His parents were in fact communicating with Corrective Services because they were concerned he had resumed his methamphetamine use. The offender completed a substance misuse program before being paroled in 2013. His initial response to parole supervision was satisfactory — his urinalysis results were negative and he obtained employment. However, at the time of the confinement, he had resumed his methamphetamine use.
Decision and Reasoning: A sentence of 2 years and 1 month imprisonment was imposed. Burns J took into account the circumstances of the offence (it was committed out of anger and a sense of betrayal, it caused a significant degree of fear but no injuries were inflicted). His Honour also noted the guilty plea, the youth of the offender and that rehabilitation was an important consideration (however, this had to be ‘considered guarded’ (see[16])). There was a need for both general and specific deterrence.
His Honour further took into account that this was a family violence matter and stated, ‘that is relevant because the only reason that you were able to commit this offence was because of the relationship of trust that existed between you and the victim. If you had not been a family member who was loved and trusted by your victim you would not have had the opportunity to commit this offence. I also note that the offence occurred in the victim's own home, where she should have been entitled to feel safe’ (See [17]).
Charge/s: Perjury.
Proceeding: Sentence.
Facts: The defendant gave false evidence in a bail application involving an allegation of assault that had been made against her ex-partner. It was alleged that her ex-partner assaulted his mother. The defendant’s ex-partner also assaulted her prior to the alleged assault on his mother. A psychologist’s report indicated that the defendant was suffering from ‘a major depressive disorder of moderate severity’ (see at [4]) when she was in a relationship with her partner. The report described the relationship as physically and emotionally abusive which resulted in a gradual deterioration of the defendant’s mental health and reported low self-worth and feeling overwhelmed. Notwithstanding this, she felt that her partner was the only person who she could rely on. The defendant had no prior convictions. She was 18 years old when the offence occurred.
Issue/s: The appropriate sentence to be imposed.
Decision and Reasoning: The defendant was ordered to enter into a good behaviour order for 15 months with conditions that she accept the supervision of ACT Corrective Service and not to associate with her former partner. No conviction was recorded. Burns J noted that this offence, while serious, was at the lower end of the spectrum for offences of this nature. His Honour accepted that her mental illness affected her judgment and also noted the fact she was in a controlling relationship with her ex-partner. The defendant had good prospects of rehabilitation. The offence of perjury is serious and normally results in the recording of a conviction and imprisonment. However, in this case, the mitigating factors including her youth and mental illness meant that rehabilitation, rather than general deterrence were the primary sentencing considerations. His Honour warned the defendant that relationships like those with her ex-partner are characterised by a significant degree of manipulation and that the defendant ought to be aware of the likelihood of her ex-partner to attempt to recommence the relationship using protestations that he has changed and is going to behave in a different way. He urged the defendant to be mature enough to understand that such change is not going to happen.
Charge/s: Forcible confinement, common assault.
Hearing: Sentencing hearing.
Facts: The offender was the complainant’s carer and partner. They had been in an ‘on again off again’ sexual relationship for 3 years and the offender had recently moved back into the complainant’s flat. On 14 October 2013, during an argument, the complainant told the offender to get his belongings and leave the flat. She then attempted to leave herself but the offender grabbed her arms and forced her back into the flat. The complainant made a number of unsuccessful attempts to escape and the offender took her mobile phone. The offender refused to leave. At one stage, he agreed to pack his belongings and asked the complainant for some money. When she refused, he forced her onto the couch. She tried to yell but the offender grabbed her throat, restricting her ability to breathe. After 5 hours, the offender gave the complainant her mobile and left the flat. These offences put the offender in breach of a good behaviour order imposed in respect of an earlier offence of a reckless threat to kill made against the same complainant. That offence involved the heavily intoxicated and distressed offender threatening his partner with a knife, a hammer and a piece of concrete.
Decision and Reasoning: The offender was sentenced to 22 months imprisonment, with a non-parole period of 10 months. Penfold J took into account a number of factors in imposing this sentence. In determining the charged offences to be of mid-range seriousness, His Honour noted that in some cases being confined in one’s own home by a partner might be less frightening than being confined in a strange place by a stranger (depending on past experiences with the partner); during confinement, the offender was physically violent to the complainant; the offender was on conditional liberty at the time of the offence; the domestic relationship put the parties into a position of trust and, to an extent, the offender abused this trust (however, the offender’s role as a carer did not mean that the offence involved any extra abuse of a position of trust because the complainant was 14 years older and the offender had a very disturbed upbringing); the offences had a distressing and more than short-term effect on the complainant; and the offender accepted responsibility for his actions (See [13]-[14]).
Penfold J also took into account the subjective circumstances of the offender. He did not seem to have any tendency towards criminal behaviour except in the context of this relationship. However, His Honour noted that ‘much of violent crime committed within domestic relationships is committed by men who otherwise live entirely within the law’. Further, the offender had a very disturbed upbringing. His mother suffered with severe mental illness and schizophrenia and would alternate between being a loving mother to being emotionally and physically abusive towards her children. He witnessed his mother kill herself when he was 8 when she set herself alight. The offender was then raised by his adoptive father, who would drink heavily to cope and belt the children (See [15]-[17]). The relationship between the offender and the complainant was ‘toxic’ and characterised by substance abuse and conflict (See [18]-[22]). Penfold J also took into account general and specific deterrence, the offender’s guilty plea and the offender’s acceptance of counselling.
Hearing: Breach of 12 month good behaviour order.
Facts: In February 2014, BJ was sentenced for burglary, minor theft and common assault. These charges arose out of the breakdown of a relationship between BJ, then aged 17, and the female complainant. He was sentenced to a 12 month good behaviour order, including a condition that he undertake the Cognitive Self-Change Program. Nearly 5 months after BJ was sentenced, he began another serious of offences against another ex-partner. These offences involved: taking his ex-partner’s car keys, damaging her car and stealing the car; using a false Facebook identity to taunt her with pictures of the car hidden in a forest; attempting to get her (alone) to meet him in the forest; further damaging the car; and making a series of harassing phone calls to his ex-partner. He was sentenced to a term of imprisonment for these offences, 3 months served in full time custody and 6 months suspended subject to a 24 month good behaviour order. The matter was referred to Penfold J here to deal with the breach of the earlier imposed good behaviour order.
Issue/s: Whether further action is warranted in light of BJ’s breach of a good behaviour order.
Decision and Reasoning: Penfold J noted that he was incorrect in his 2014 sentencing remarks and BJ did in fact have a tendency to behave inappropriately in the context of failed intimate relationships. He noted that this behaviour needed to be addressed as early as possible. Penfold J imposed a new good behaviour order for 2 years subject to the following conditions: accept the supervision of ACT Corrective Services and obey all reasonable directions, under take counselling courses, programs or treatments, and undertake either one or both of a Men’s Cognitive Self-Change Program and a Family Violence Cognitive Self-Change Program.
Charge/s: Assault occasioning actual bodily harm, common assault x 3, threatening to cause damage to the complainant’s property.
Hearing: Sentencing hearing.
Facts: The offender was a friend and former partner of the female complainant. The offender became jealous when the complainant received a phone call because he suspected it was from another man. The complainant asked the offender to leave her apartment. He refused. He pushed and attempted to choke the complainant and held a knife to the throat of her cat. The assaults were accompanied by verbal abuse and abusive text messaging. The offender also rifled through the victim’s belongings and demanded her phone. The incident lasted about 15 minutes.
Decision and Reasoning: The offender was sentenced to a good behaviour order for 3 years and fined $1750. In terms of the objective seriousness of the offending, Murrell CJ noted that the conduct constituting the assault occasioning bodily harm was extremely serious. It was a very forceful and frightening assault that involved the offender taking hold of the victim’s throat. The actual bodily harm that resulted was at the lower end of the spectrum but the incident had a considerable psychological impact. The other offences were less serious. The incident, while not fleeting, was relatively short. It was not only frightening but designed to humiliate. It occurred within the victim’s home, in circumstances where she had asked him to leave.
Further, this was an incident of domestic violence. Her Honour noted:
‘These offences occurred in the context of a previous relationship between the offender and the victim and involved violence within the victim's home, an apparent sense of entitlement on the part of the offender, and humiliation through verbal and text abuse of the victim.
The sentencing purposes of punishment, general deterrence and denunciation are very important, as well as the recognition of harm to the victim personally and the community generally through offences of this nature. The victim provided a victim impact statement in which she referred to impacts upon her of the type that frequently result from offences of domestic violence, including feelings of anxiety, difficulty sleeping, difficulty concentrating at work and elsewhere, and an adverse effect on her ability to form relationships. Since the incident, the victim has moved house because she felt unsafe in the apartment where the offence occurred’ (See [15]-[16]).
Her Honour also took into account the subjective circumstances of the offender including that the offender had been assessed as being at low risk of re-offending, he was employed, is a member of a close and supportive family and has no problems with drug dependence or mental health. However, Murrell CJ further noted that the offender lacked insight into the seriousness of his conduct and the impact on the victim. Although this was probably a one-off incident, Her Honour considered that it would be of assistance to the offender to undertake courses that may guide him towards greater insight and maturity in relation to interpersonal relationships.
Hearing: Breach of community service condition to a good behaviour order.
Facts: In 2012, Mr Ennis was convicted for assault occasioning actual bodily harm. Mr Ennis and his female partner, who had been together for 27 years, were both drunk and fought ‘over money’. During this argument, Mr Ennis caused his partner to suffer a fracture to the left forearm and a laceration to the outside of her lower leg. Mr Ennis had a long history of cannabis and alcohol abuse. He claimed that this alcohol abuse led to his criminality. The sentencing judge made a good behaviour order for 2 years, with a condition that Mr Ennis perform 100 hours of community service within 12 months. Mr Ennis breached this order by failing to complete the community service work conditions. He submitted that the breach was the result of his alcohol abuse.
Issue/s: Whether further action is warranted in light of Mr Ennis’ breach of a good behaviour order.
Decision and Reasoning: The order was amended by extending the good behaviour period to a further 12 months, extending the number of hours of community service work to 108 hours to be completed in 12 months, and requiring Mr Ennis to be subject supervision by the Director-General. In imposing this sentence, Refshauge J noted that while Mr Ennis’ breach was unsurprising in light of his alcohol abuse, this did not provide an excuse for his behaviour (See [16]). In favour of Mr Ennis, it was significant that he had not committed any offences in the two years since the order was made. His Honour noted, ‘This is a very important matter, for that is the fundamental objective of the criminal law, namely, as Brennan J described it in Channon v The Queen (1978) 33 FLR 433 at 437, the protection of society which is achieved by the prevention of crime and the eradication of recidivism’ (See [21]).
Further, Mr Ennis had taken steps towards rehabilitation namely, enrolling in a number of programs including drug and alcohol counselling, a Men and Anger Program and an Employment Pathway Plan (See [23]-[27]). Mr Ennis’ partner was also addressing her alcohol abuse and they were both accessing counselling at relationships Australia (See [28]). However, Refshauge J remained sceptical in his assessment of this reform and nevertheless extended the good behaviour order (See [30]-[33]).
His Honour noted: Despite the considerable contribution that illicit drug use makes to criminality in the community, alcohol remains a problem for those addicted to it. Alcohol abuse remains a very significant source of crime and leads the addict to unhealthy and anti-social behaviour and situations (See [1]).
See also R v Ennis [2016] ACTSC 72 (4 April 2016).
Charge/s: Assault.
Appeal type: Appeal against conviction and sentence.
Facts: The appellant pleaded guilty to an offence that he assaulted his former fiance and de facto partner of 2 years (the complainant). The offence occurred about 1 month after the appellant and the complainant had separated in the presence of the complainant, a friend, and the appellant’s young son. The appellant and the complainant argued and the complainant asked him to leave. The garage door hit the appellant on the head as he left and he turned around the pushed the complainant. She fell backwards into the car. The appellant spoke in a threatening manner to the complainant. He pushed her again, kicked her car twice, and left.
Issue/s: One of the grounds of appeal was that the primary judge erred in his assessment of what constituted an aggravating feature of the offence.
Decision and Reasoning: The appeal against conviction and appeal against sentence was dismissed. In relation to the appeal against conviction, the appellant submitted that the mere fact the offence was committed at the home of the victim is not enough to aggravate the offence; there must be some level of intrusion. Murrell CJ noted that a sentencing court must consider all relevant objective and subjective matters. She stated,
‘When considering the sentencing purposes set out in s 7 of the Sentencing Act, including general and personal deterrence, a sentencing court is entitled to consider the fact that an offence involved domestic violence, and that the violence has occurred at the victim’s home. An offence involving domestic violence is one that involves abuse of a partner, former partner or other family member (using the term “family” in the broadest sense). Frequently, such offences occur in the home, where the inhibitions of an offender may be lowered, the impact on the victim may be heightened (as she or he is made to feel that a formerly safe place has been violated) and the occurrence of the offence is more readily concealed. Further, where a domestic violence offence occurs in the victim’s home, it is often associated with secondary abuse to other family members’ (See [16]; See also R v Bell [2005] ACTSC 123 [30]-[31]).
Here, the primary judge did not approach the matter on the basis that the ‘mere fact’ that the incident took place at the complainant’s home was an aggravating feature. He considered the location of the offence in the context of other relevant circumstances namely that it occurred at a place where the complainant was entitled to feel safe, it occurred in the presence of the appellant’s son, and the appellant refused to leave.
Charges: Damaging property, breach of domestic violence order, assault
Appeal type: Appeal against sentence
Facts: The appellant, an Aboriginal man, and the victim were in a relationship and had a son together. The appellant and victim also both had a daughter each from previous relationships. He was charged and convicted of damaging property, assault and breaching a domestic violence order made to protect the victim. No further information about the offending or factual matrix was provided. Since his arrest and while on bail, the appellant attended Oolong House several times where he received rehabilitative treatment. The magistrate sentenced the appellant to 12 months’ imprisonment each for the assault and damaging property offences, to be served concurrently, and two years’ imprisonment for the breach of the domestic violence order. In sentencing, the magistrate stated ‘The current offences continue a pattern of behaviour that appears entrenched in the context of the relationship with the victim. Despite legal sanctions and protection orders, [the appellant] has yet to demonstrate the responsibility to abide by conditions to uphold the safety of vulnerable people in his life. Under the influence of substances his behaviour poses unacceptable risks for such people’ ([5]).
The appellant had a somewhat difficult childhood with his parents divorcing after his father suffered a stroke and his mother abusing alcohol. He finished school at year 10 and had very limited and sporadic employment since then. He had a long history of alcohol and drug abuse and engaged in residential rehabilitation several times. The appellant also suffered depression, stress and anxiety and was housed in the AMC Crisis Support Unit since his remand due to his risk of suicide and/or self-harm. He had an extensive history of criminal offending, including convictions for common assault, assault occasioning actual bodily harm and contravening protection orders against the victim.
Issues: Some grounds of appeal were:
Decision and reasoning: The appeal was dismissed.
Charge: Assault
Appeal type: Appeal against sentence
Facts: The appellant, his wife (the complainant) and their children moved to Canberra in order for him to complete a PhD. After their daughter complained that she did not like the lunch the complainant was preparing, the complainant struck the daughter’s hip with a plastic doll to ‘chastise her for her behaviour’. The appellant became angry at the complainant’s actions and slapped her. When questioned by police, the appellant said ‘I do not think I did anything wrong. In my culture, I did not do anything wrong’. He pleaded guilty to assault at the earliest opportunity and expressed remorse in a letter to the court.
At trial, the appellant was unrepresented but had a Bangladeshi interpreter. A conviction was recorded and the appellant was ordered to sign a good behaviour undertaking for two years. The magistrate noted that ‘cultural differences may be in play here, but I don’t accept them on the basis that you’ve been here for two years, you’ve acknowledged in your own statement to me today that you understand what you did was wrong’.
Issues: Some grounds of appeal were:
Decision and reasoning: The appeal was dismissed and the sentence imposed by the magistrate was confirmed.
The magistrate was obliged to provide an explanation to the appellant for declining to make a non-conviction order. He was unrepresented, inexperienced in the procedures of Australian courts and English was not his first language. The magistrate performed this obligation in explaining that a non-conviction order could not be made due to the nature and circumstances of the offence. However, the magistrate did not allow the appellant to put forward evidence or a proper explanation when he attempted to explain the detriment to his future should a conviction be recorded. Therefore, the magistrate erred in dealing with the appellant’s application for a non-conviction order by failing to give proper consideration to the application, having regard to the particular difficulties faced by the appellant.
Despite this error, the appeal was dismissed because re-sentencing was not appropriate. Having regard to the factors in s 17 of the Act, Penfold J held there were no grounds sufficient to make a non-conviction order. In particular, the appellant’s character, antecedents, age, health and mental condition; the seriousness of the offence; his extenuating circumstances; and the absence of any properly explained or substantiated claim that a conviction would have negative impacts on his future prospects, would not have excluded the making of a non-conviction order.
Charges: Unlawful confinement, assault occasioning actual bodily harm (two counts)
Proceeding: Sentencing
Facts: The offender and victim were in a domestic relationship. The victim had a son from a previous relationship. Six months after moving in together, the offender sat on the victim’s stomach, held both arms above her head and tied her wrists to the bed. The offender told the victim, “you’ve hurt my feelings. Now you have to pay. I’m going to take you for a drive to the forest and I’m going to kill you”. He then slapped her across the face several times and stuck a piece of clothing in her mouth. The victim was gagging and choking and believed that she would suffocate. The offender then hit the victim’s thigh with a car aerial and held a lit match to her face, threatening “have you ever played ‘light the match’ game?”. The next day the offender brought the victim flowers and apologised. Several days later the victim woke up to the offender slapping her face. Her son then walked into the room but returned to his bedroom after the offender screamed at him. The victim packed herself and her son into the car to escape after the offender had left. However, the offender returned and parked his car behind the victim’s car. He grabbed the victim’s shoulders, pushed her backwards causing her to hit to head and dragged her into the house. When inside, he grabbed her throat, kicked her, forced her face under a running tap, slapped her and threatened her.
The offender was charged with unlawful confinement and two counts of assault occasioning actual bodily harm. He maintained a plea of not guilty for nearly two years until changing his plea to guilty on the date the trial was to begin.
The offender had a long history of offending including convictions of nine common assaults, assault occasioning actual bodily harm, stalking and two breaches of domestic violence orders. He also had a history of dysfunctional relationships, with many of these convictions resulting from domestic violence. He abused prescription drugs and suffers from Attention Deficit Disorder, depression and bipolar. During one period of excessive drug use, the offender was diagnosed with amphetamine-induced paranoid psychosis. The offender engaged in the methadone program and drug and alcohol counselling to address his substance abuse. He reported that since the offending, he had ceased using drugs or drinking heavily and that he was no longer short-tempered and jumpy.
Issue: What sentence should the offender receive?
Decision and reasoning: Penfold J emphasised the need for general deterrence and denunciation for domestic violence offences. Having regard to the offender’s criminal history and his repeated failures to take advantage of rehabilitative opportunities, rehabilitation was not the highest priority in sentencing. His Honour accepted some concession was needed for the offender’s improved behaviour in the two years since the offending and his continued engagement with mental health services. However, no sentence other than imprisonment was appropriate when considering the gravity of the offending and the effect on the victim and her son.
The offences were all serious examples of the relevant offences. The presence of the victim’s son during the second assault occasioning actual bodily harm aggravated the offence. All the offences were further aggravated by the breach of trust that is ‘inherent is most if not all domestic violence offences, especially those that occur in the privacy of a home shared by the victim and the perpetrator, a circumstance which of itself — that is the sharing of the home — seems to me to establish a mutual relationship of trust’ ([7]).
Penfold J sentenced the offender to a total sentence of 38 months’ imprisonment, suspended after 24 months. This total sentence comprised of 25 months’ imprisonment for the offence of unlawful confinement, 18 months’ imprisonment for the first offence of assault occasioning bodily harm, and 20 months’ imprisonment for the second offence of assault occasioning bodily harm. The first assault occasioning bodily harm sentence was ordered to be accumulated so as to add three months to the unlawful confinement offence and the second assault occasioning bodily harm sentence was ordered to be accumulated so as to add 10 months to the total sentence.
Charge/s: Intentionally causing damage to property x 2, trespassing without reasonable excuse, assault, minor theft.
Appeal type: Appeal against sentence.
Facts: The appellant was in a relationship with a young woman, the complainant, and they had two children together. The relationship was characterised by ongoing conflict, caused largely by the appellant’s ongoing abuse of alcohol, and subsequently the relationship broke down. Later, the appellant went to the complainant’s house to see the children but she refused to let him in. The appellant damaged the front security door and shouted threats. He was arrested and granted bail for this offence. However, before the proceedings could be resolved, the appellant again went to the complainant’s property, and broke open the front door. The appellant began to strangle the complainant (assault). The complainant’s daughter rang the complainant’s mother who arrived and manage to calm the appellant down. The police arrived and the appellant ran off. On another subsequent occasion, the appellant was charged with minor theft for leaving a petrol station without paying.
The appellant pleaded guilty and was sentenced in the Magistrates Court to: intentionally causing damage to property — fine of $1,500; intentionally causing damage to property — 3 months imprisonment to commence on 1 August 2013; trespassing without reasonable excuse — fine of $500; assault — 17 months imprisonment to commence on 1 September 2013; minor theft — fine of $250. A non-parole period of 12 months was set on the total period of 18 months imprisonment.
Issue/s: One of the grounds of appeal was that the terms of imprisonment imposed, including the non-parole period, were manifestly excessive.
Decision and Reasoning: The sentence for the assault was manifestly excessive, the appeal allowed and the appellant re-sentenced (see R v Beniamini; Beniamini v Storman [2014] ACTSC 40 (22 January 2014)). The offence of assault was serious: it was committed late at night in the complainant’s home; it was an offence in the context of family violence; and the offence was protracted. It was more serious by the fact that the appellant was on conditional liberty at the time, the offence was committed in the presence of children, and the appellant had prior convictions for personal violence (but not family violence).
However, despite the seriousness of the assault, the sentence was manifestly excessive because the magistrate started her calculation of sentence on the basis that this was almost the worst category of the offence (See [119]). Since the time of offences, the appellant had made no further inappropriate contact with the complainant, had managed to resolve issues of access to the children, and had stopped drinking. This was also his first offence of violence in the family context. It was also relevant that the denial of access to his children at the time was arbitrary and not under any court order. He was remorseful and showed insight into his actions (See [94]-[104]).
Charge/s: Assault occasioning bodily harm.
Hearing: Sentencing hearing.
Facts: Mr Curtis, an 18 year old Aboriginal man, and the female victim were in a relationship. On 1 June 2013, Mr Curtis became agitated and aggressive towards the victim. He started punching her legs, arms, torso and stomach, causing bruising. When interviewed by police, he said that the victim had wanted him to teach her how to ‘stick up’ for herself and that they were just ‘mucking around’ but he stopped when he thought that what was happening did not ‘feel right’.
Decision and Reasoning: Mr Curtis was sentenced to 12 months imprisonment, suspended for 2 years, and ordered to comply with good behaviour obligations (a probation condition making Mr Curtis subject to the supervision of the Director-General and required to obey all reasonable directions as to counselling or treatment for his mental health and his abuse of alcohol and other drugs). In imposing this sentence, Refshauge J took into account Mr Curtis’ plea of guilty. He also took into account the subjective circumstances of Mr Curtis including his troubled childhood, his relationship with his 20 month old child, his current committed relationship, his use of alcohol and illicit substances, and his history of mental health issues (See [6]-[19]).
Refshauge J also took into account that the offence was serious especially because it was committed in the context of a relationship. His Honour quoted Higgins CJ in R v Bell [2005] ACTSC 123 at [30]: ‘I appreciate that personality disorders may often underlie the criminal behaviour of men who beat women. Alcohol or other substance abuse may sometimes be a triggering factor. Nevertheless, they must take responsibility for their actions and be seen to have done so. The offence is often hidden, so general deterrence is a factor that is quite prominent. So also is specific deterrence. No offender engaging in this kind of behaviour, nor their victims, should feel that it is to be treated lightly. Rather, it must be made the subject of condign punishment. That is not to say, of course, that any mitigatory factors or prospects for rehabilitation will be disregarded’ (See [28]-[32]).
Refshauge J further accepted that the youth of Mr Curtis and his prospects for rehabilitation were very relevant to the sentencing exercise. Per His Honour, ‘for youthful offenders rehabilitation is usually more important than general deterrence, especially when retributive punishment may in fact lead to further offending. A youthful offender should not be sent to an adult prison if it can be avoided’ (See [20]). A lengthy good behaviour order was warranted in light of the need for rehabilitation. In this context, His Honour noted the influence of excessive alcohol on the offending which, although not mitigating the offending, was very relevant to rehabilitation (See 36].
See also R v Curtis (No 2) [2016] ACTSC 34 (26 February 2016).
Charge/s: Contravention of a domestic violence order.
Appeal type: Appeal against sentence.
Facts: The female complainant and the male appellant had been in a relationship for 6-12 months and had lived together until mid-December 2012. After the complainant was granted an interim domestic violence order against the appellant, the appellant telephoned the complainant to meet him at a friend’s place so he could give her the keys back to her place. At this meeting, an argument developed and the appellant started chasing the complainant, yelling abuse. When he caught up to the complainant, he raised his arm as if to punch her, but instead he grabbed the complainant’s sunglasses, snapped them in half and threw them in her face. This caused the complainant injury. The appellant was sentenced to 32 months imprisonment for the charge of contravening a protection order, with no further penalty for the charge of assault occasioning actual bodily harm..
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld and the appellant re-sentenced to 23 months imprisonment. Refshauge J noted that there was no doubt that the offending was serious. The fact that the appellant had been convicted of 9 prior offences of the same character against another woman meant that he could be afforded little leniency. However, the sentence was nonetheless disproportionate to the offending conduct.
The prosecution submissions on sentence at first instance referred to the fact this was a family violence offence, referring to dicta of the Alberta Court of Appeal in R v Brown (1992) 73 CCC (3d) that:
When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.[81]
The court noted that this statement had been cited with approval by the Court of Criminal Appeal of the Supreme Court of Tasmania in Parker v R [1994] TASSC 94 (21 July 1994) and in the NSW Court of Criminal Appeal in R v Hamid [2006] NSWCCA 302. [82]
Three features listed by the sentencing judge as aggravating the offence, were not in fact aggravating features. First, while domestic violence orders play a special place in the criminal law’s efforts to prevent domestic violence, His Honour erred in finding that a domestic violence was a feature of aggravation for the offence of contravening a domestic violence order. Second, His Honour also incorrectly found that the fact the offence occurred in public was a circumstance of aggravation in this particular case as there were no people present at the time of offence. His Honour also previously referred to this issue in the case of Grimshaw v Mann [2013] ACTSC 189 at [49]-[51], where he expressed some difficulty with characterising the public nature of an assault as an aggravating feature, as it implies that a private assault is less serious. Finally, the sentencing judge inferred that the broken part of the complainant’s glasses was sharp and this aggravated the offending. However, this conclusion was not supported by the evidence (See [132]-[138]). Further, the sentencing judge did not take into adequately discount the sentence to account for the appellant’s plea of guilty (See [143]).
In dicta, His Honour considered the principles in Pearce v The Queen. The sentencing judge pointed out that the appellant’s assault covered most, if not all, of the conduct prohibited by the protection order, and decided to impose no penalty, other than the conviction, for the assault offence. His justification was that there was no element in the assault offence that had not been encompassed in the offence of contravening the protection order. Refshauge J stated that ‘[i]f that were strictly correct, then the conviction for the offence of contravening the protection order would have resulted in a requirement that there be a verdict of autrefois convict in respect of the offence of assault occasioning actual bodily harm. That would have been the appropriate response if the elements [were] such that the whole of the criminality of offence of assault occasioning actual bodily harm was contained in the offence of contravening the protection order.’ However, as the parties did not argue on this issue, it was unnecessary for His Honour to resolve it on the appeal. The appellant brought the appeal against the sentence on the charge of contravening the protection order. There was no cross-appeal that the sentence for the assault offence was manifestly inadequate, ‘which would be likely if it was thought that there was criminality in that offence separate from the other such that, for example, the plea of autrefois convict would not apply’ ([150]).In any event, Refshauge J concluded that the offence of contravening the protection order did not include any of the fault element of the offence of assault ([151]).
Refshauge J quoted from R v BG (an unreported judgment from December 2010):
Compliance with any sort of protection order is essential for the court in protecting members of the community from violence and other unwanted behaviour. Breaches of protection orders risk the success of the regime from achieving that purpose, especially if they encourage people to think that they can breach with impunity. A severe approach is necessary, consistent with fairness to the accused. Thus, the Court cannot punish beyond what is appropriate to the offence (See [4]).
Charge/s: Breaches of an interim protection order x 4, breach of a personal protection order, failure to comply with a bail undertaking to appear in court, common assault x 2.
Appeal type: Appeal against sentence.
Facts: The appellant, an Aboriginal man, had been in a relationship with the female complainant and they had 3 children together. The complainant was granted a personal protection order against the appellant. The appellant breached these orders on 5 occasions by being at the premises of the complainant. The common assault offences occurred when the appellant assaulted his father. The appellant pleaded guilty to 4 breaches of an interim protection order made on 23 July 2012 and breach then of the personal protection order subsequently made on 23 August 2012, a failure to comply with a bail undertaking to appear in court, and 2 offences of common assault. In the Magistrates Court, a total period of imprisonment of 16 months was imposed from 21 March 2013, with a non-parole period of 12 months.
Issue/s: The grounds of appeal were –
Decision and Reasoning: The appeal was upheld on grounds 2 and 3 but not ground 1. The magistrate failed to take into account a period by pre-sentence custody by starting the sentences on 21 March 2013 rather than 23 February 2013. Further, the good behaviour order for which the appellant had been sentenced had previously been cancelled (See [42]-[49]). However, the sentence could not be said to be manifestly excessive. Refshauge J stated,
‘While the offence against Mr Khan’s father could also be described as domestic violence, the fact is that the interim personal protection order and the personal protection orders are there to protect the complainant from what might be described as domestic violence in its widest sense. Therefore, such orders are an important component of the criminal justice system’s response to domestic violence. Breaches of personal protection orders are serious matters which the courts must treat seriously to ensure the integrity of the system which the protection orders are intended to put in to effect’ (See [52]).
Charge/s: Common assault.
Appeal type: Appeal against sentence.
Facts: The Aboriginal male appellant was involved in an altercation with his former female partner (the complainant) of 7 years. The relationship ended in 2010 due to the appellant’s use of drug and alcohol, and he had not seen the children since. In May 2012, the appellant moved to Canberra to be closer to his children and commenced proceedings in the Family Court for access rights. On 2 June 2012, outside a late night convenience store, the appellant started arguing with the complainant and struck her three times with a closed fist. She fell to the ground and hit her head. She was helped up by her two friends and threw a glass soft drink bottle at the appellant. She missed but smashed another glass bottle over his head. The appellant needed four stiches. The appellant voluntarily handed himself into the police two days later. The complainant had previously obtained two protection orders against the appellant. Both had expired at the time of offence.
At the sentencing hearing, a lengthy Victim Impact Statement was tendered. However, it contained a good deal of irrelevant and inadmissible material. Refshauge J on appeal stated:
‘Allegations of further serious offending cannot come within the definition of “harm suffered by the victim [as a result of, or in the course of, the commission] of the offence”: s 47 of the Crimes (Sentencing) Act 2005 (ACT). While defence counsel may be wary of exercising their rights to cross-examine a victim on a Victim Impact Statement, discussions with prosecutors should result in an appropriate response from responsible prosecutors about inadmissible material and such statements. Without that proper approach, it is likely that such statements will lose their value and that the courts will have to intervene to ensure that the legislation is respected to ensure inadmissible, and often inflammatory, material is not included in such statements’ (See [41]).
The appellant pleaded guilty to common assault and was sentenced to 10 months imprisonment, three months to be served by full-time custody, three months by periodic detention and the balance suspended and a two year good behaviour order made. The appellant sought assistance for his alcohol and drug issues, made contact with the Aboriginal Justice Centre, and enrolled in a men’s anger program.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed and the appellant re-sentenced to 10 months imprisonment to commence on 28 May 2013, suspended for two years from 27 August 2013. The sentence was manifestly excessive in all the circumstances. First, the sentencing magistrate did not take into account the appellant’s injuries caused by the complainant which occurred when the appellant was no longer a threat to the complainant. Second, the injuries sustained by the complainant, as apparent from photographic evidence, were not as serious as what was described in the Victim Impact Statement. Finally, the appellant’s criminal history, although containing prior convictions for violent offences, did not demonstrate a propensity to violence. He had not been charged with any domestic violence offences and he had not breached two personal protection orders (See [77]-[82]).
His Honour further stated:
‘The prosecution referred to the aggravating factor that the assault “took place in a public place.” I have some difficulty with that factor as an aggravating one. It implies that an assault in private is less serious. I am not sure that this follows.
Most family violence occurs in private yet is regarded as very serious. Indeed, privacy can emphasise the vulnerability and helplessness of the victim.
However that may be, intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [2009] QCA 290 at [30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard v Van Der Zanden [2013] WASC 163 at [41]. This is the not the place to consider the rationale for such an approach; that will have to wait for another day. It is enough that the reliance by the learned Magistrate on the fact that the assault occurred in public as an aggravating factor was not an error’ (See [49]-[51]).
Charges: Assault occasioning actual bodily harm (two counts)
Appeal type: Appeal against sentence
Facts: The appellant and complainant were in a relationship and resided together with their son. While arguing one day, the appellant grabbed the complainant’s arm and punched her in the face a number of times. In response, the complainant struck the appellant in the torso. The pair continued to exchange blows throughout the day with the appellant striking the complainant to the face and punching her thigh, and the complainant hitting the appellant in the torso and face and bitting his arm. A week later, the appellant became angry after having computer difficulties and started swearing at the complainant. When she told him to stop being pathetic and throwing tantrums, the appellant slapped the complainant and caused her eardrum to rupture.
In relation to this conduct the appellant was charged and convicted of two counts of assault occasioning actual bodily harm. He was sentenced to 11 months’ imprisonment for the first offence and five months’ imprisonment, of which two months’ was to be served concurrently with the sentence imposed for the first offence, for the second offence. The total sentence was therefore 14 months’ imprisonment. Five months of that sentence was to be served in full custody, with the following five months to be served by way of periodic detention, and the remaining four months suspended upon the appellant entering into a good behaviour order for two years.
The magistrate considered that it was an aggravating feature of the first offence that the assault was comprised of several violent, physical contacts that extended over a period of time. He also considered it was an aggravating feature of both offences that they included blows to the head and face of a female. Finally, his Honour considered the ruptured eardrum of the complainant was an aggravating factor of the second offence.
Issue: Whether the sentence imposed was manifestly excessive.
Decision and reasoning: The appeal was upheld and the appellant was re-sentenced.
The magistrate erred in considering that the nature and duration of the violence in relation to the first offence was an aggravating feature. Rather, it was a circumstance that was relevant to the sentencing of the appellant. Further, the fact the complainant suffered a ruptured eardrum was not an aggravating feature of the second offence. It was merely an element of that offence — namely, that the assault resulted in actual bodily harm. The magistrate also failed to properly consider a psychiatrist report put before him. That report noted that the appellant’s domestic violence was likely related to his on-going mental health difficulties including suffering from post-traumatic stress disorder.
Burns J considered the term of imprisonment with respect to the offences was excessive where there was evidence that the appellant’s conduct was either caused by or contributed to by mental health conditions. These conditions were capable of being treated. Further, the appellant did not have a significant history of violent offending, having only been convicted of two offences of common assault 11 years prior to the offending.
In resentencing the appellant, Burns J accepted that the offences warranted terms of imprisonment. The appellant was sentenced to six months’ imprisonment for the first offence and two months’ imprisonment for the second offence. The total sentence of seven months’ imprisonment was backdated to recognise the two months the appellant had already spent in custody, and suspended thereafter. Burns J imposed a good behaviour order for two years with the conditions the appellant accept supervision and obey reasonable directions; undertake programs or counselling as directed, including the Family Violence Cognitive Self Change Program if appropriate; and undertake counselling or treatment with respect to mental health issues.
Charge/s: Damaging property, assault occasioning actual bodily harm.
Appeal type: Appeal against sentence.
Facts: The male appellant was in an intermittent relationship with the female complainant. During the course of an argument, the intoxicated appellant shouted in the complainant’s face and hit her. The appellant then sat on top of the complainant and attempted to choke her. He stood up and kicked her in the ribs when she screamed for help. The appellant sat on top of her again and choked her until her vision went blurry. She started retching and the appellant dragged her to the toilet by her hair. When she finished retching, he poured half a bottle of wine over her head and again placed his hands around her throat. The appellant then pulled the complainant into the lounge room and the complainant tried to calm him down. She went to the police the next day. He was sentenced to 3 months imprisonment for common assault and 6 months imprisonment, wholly suspended and conditional on a good behaviour order, for assault occasioning bodily harm.
On a subsequent occasion, the complainant and the appellant again started arguing. The appellant went outside the house to have a cigarette and the complainant locked him out. She packed his bag and left it at the rear door. The appellant, who had not seen the bag, began knocking on the rear door and the window. As the complainant was on the phone to police, she heard the sound of the appellant breaking the window. The complainant told the appellant his belongings were at the front door and he left. He pleaded guilty to damaging property and sentenced to 1 month imprisonment. The conviction constituted a breach of the earlier imposed good behaviour order and the magistrate imposed the full 6 months of this sentence.
Issue/s: The sentence for damaging property and the action taken in respect of the breach of the good behaviour order was manifestly excessive.
Decision and Reasoning: The appeal was allowed. First, the sentence for the offence of damaging property was manifestly excessive in the circumstances. Although this was a domestic violence offence, this did not mandate a particular response and the circumstances as a whole needed to be considered. Refshauge J accepted the fact that complainant and the appellant had reconciled needed to be treated cautiously. He stated that, ‘Forgiveness by victims of domestic violence offences is highly problematic and must be treated with considerable caution for the reasons outlined by Simpson J in R v Glen [1994] NSWCCA 1 (19 December 1994) at 8. As her Honour said, “the victim’s attitude to sentencing … was not a matter which should have influenced the sentencing decision”.’ However, reconciliation of the complainant and the offender (as opposed to her forgiveness) can be relevant as to prospects of rehabilitation.
Second, the magistrate’s decision to impose the full 6 months suspended sentence was manifestly excessive. While the breaching offence was not trivial, it was at the low end of seriousness for the offence and was also of a different character from the original offence. Significantly, the appellant had also complied with the probation condition, sought mental health assistance of his own volition and participated in the Family Violence Cognitive Self-Change Program. See re-sentencing [1]-[5].
Charge/s: Assault occasioning actual bodily harm, assault.
Appeal type: Crown appeal against sentence.
Facts: During the course of an argument, the 31 year old respondent and his 60 year old mother (the first complainant) began pushing and shoving each other. This culminated in the respondent grabbing the complainant by the neck and pushing her, causing her to fall and fracture her wrist (assault occasioning actual bodily harm). Later that afternoon, the first complainant was visited by the male second complainant and his 4 children. The second complainant heard a revving noise and saw the respondent holding a chainsaw outside the window. The respondent said, ‘You fucking Australian cunt, come out here, I am going to cut you, like this’, and then tried to enter the backdoor. When he failed, the respondent picked up a fish gaff and swung it above his head (assault). The magistrate recorded a conviction and fined the respondent $1,000 for assault occasioning bodily harm and $1,500 for assault.
Issue/s: One of the grounds of appeal was that the sentences imposed were manifestly inadequate.
Decision and Reasoning: The appeal was allowed. The sentence for the assault occasioning actual bodily harm was manifestly inadequate. The respondent was not entitled to leniency in sentencing on the basis of his prior criminal history or on the basis of his plea. The sentence imposed gave little, if any, weight to the requirements of specific and general deterrence, nor did it reflect the objective seriousness of the offence, even taking into account the provocation from the complainant. The appellant was re-sentenced to a suspended sentence of 7 months imprisonment.
In reaching this conclusion, Burns J noted that this was clearly a domestic violence offence. He noted that, ‘It is now well settled that offences of domestic violence must be treated seriously, and frequently display aggravating features not present in offences occurring outside a domestic relationship. The only reason the respondent was in a position to commit the offence on his mother was because of that relationship. As such, the offence involved a serious breach of the trust reposed in the respondent as a son by his mother. Additionally, the age of the complainant was an aggravating circumstance attending the commission of the offence’at [12].
The sentence imposed by the magistrate in relation to the assault was also manifestly inadequate.
Charge/s: Common assault.
Appeal type: Appeal against sentence.
Facts: The appellant forcibly pulled sheets from on top of the complainant when she was in bed. The sheets caught on the complainant’s necklace and this caused pain and a red welt on her lower neck. The magistrate recorded a conviction.
Issue/s: A conviction should not have been recorded.
Decision and Reasoning: The appeal was allowed. The prosecution submitted that, as this was a family violence offence, it had a certain degree of seriousness and a conviction ought to be recorded. Burns J accepted that ‘there are circumstances and principles relating to family violence offences which that they must be taken particularly seriously’. However, the objective seriousness of the offence and the subjective circumstances of the offender are always relevant. Objectively, this offence came very close to the bottom of the range of seriousness of offences of this nature. Further, the appellant was otherwise a man of good character. He had no prior convictions and was spoken of highly in provided testimonials. Further, he was employed in an area in which the recording of a conviction would result in particular hardship (i.e. termination of employment). The conviction was set aside and a good behaviour order for a period of 12 months was imposed.
Charges: Contravening a domestic violence order (two counts)
Appeal type: Appeal against conviction and sentence
Facts: The appellant was subject to a domestic violence order that prohibited him from contacting his former partner (the applicant), behaving in a harassing manner towards her or threatening her. The appellant breached this order by making a number of phone calls to the applicant. He was charged with two counts of breaching the domestic violence order and was convicted of both charges. Those convictions amounted to a breach of two good behaviour orders previously made when the appellant was convicted of stalking and two additional counts of contravening a protection order in December 2007 and common assault in June 2007. He was sentenced to six months’ imprisonment on each of the counts of breaching the domestic violence order, to be served concurrently. On the breach of the first good behaviour order he was sentenced to four months’ imprisonment, one month of which was to be cumulative on the other sentences. All the imprisonment to be served by periodic detention.
In convicting the appellant, the magistrate accepted evidence from the applicant and a friend that they recognised the appellant’s voice. The phone calls were allegedly made using a public phone, so this voice recognition was the only evidence to support that the appellant was guilty of the offences.
The appellant had a long history of criminal offending comprising of 52 charges. A pre-sentence report stated that the appellant had suffered a dysfunctional, violent and unstable family background. His father was an alcoholic and was violence towards his mother. The appellant also abused alcohol, drinking about six stubbies every night. Since the offending, the appellant reported that he was still drinking but not at a problematic level. However, there was no evidence to support these assertions. The appellant suffered from depression and anxiety that ‘result in markedly diminished capacity in judgement’, according to a psychologist’s report. Another psychologist concluded that the appellant’s offending history was alcohol induced and based.
Issues:
The grounds of appeal against the sentence were:
Decision and reasoning: The appeal against the conviction was dismissed. In considering whether the appellant was guilty, the magistrate scrutinised the applicant’s evidence as to voice recognition carefully. Both witnesses knew the appellant well and recognised his voice on the phone. While the magistrate should have given a warning, it would have been confined to the fact that the conversations were limited and that people can be mistaken about the voices of those they know well. Despite the lack of warning, Refshauge ACJ held there was no miscarriage of justice, as even if a warning was given, it would not have affected the magistrate’s conclusion.
However, the appeal against the sentence was allowed and the appellant was ordered to be re-sentenced. The appellant’s offending was at the lower end of the spectrum of contravening a domestic violence order. However, the magistrate did not err in concluding that imprisonment was the appropriate punishment when considering his offending history and breaches of good behaviour orders. Rather, the magistrate erred in dismissing the option of suspending a term of imprisonment with a good behaviour order to include a community service condition. The offences were not so serious that a suspended sentence was too lenient.
Charge/s: Breach of a domestic violence order.
Appeal type: Appeal against refusal to grant bail.
Facts: Mr Hutchings breached an interim Domestic Violence Order by sending the female complainant a letter summarising his feelings towards her and the end of their relationship. This was also in breach of bail conditions imposed for a dangerous driving offence. He was granted bail with a condition included that he not contact the complainant in any way. The complainant later received a telephone call and message, alleged to be from Mr Hutchings. He was arrested and charged with breaches of the Domestic Violence Order. This activated s 9D of the Bail Act which provided that bail could not be granted unless there were special or exceptional circumstances favouring the grant of bail. The magistrate refused bail in those circumstances.
Issue/s: Whether there were special or exceptional circumstances favouring the grant of bail.
Decision and reasoning: The appeal was rejected. The Police were concerned that Mr Hutchings would commit further breaches of the Domestic Violence Order if allowed on bail. They noted that the complainant had made further complaints against Mr Hutchings but there was insufficient evidence to justify the commencement of proceedings. Burns J noted that the courts must be very cautious about relying on uncharged allegations but concluded that it was a concern to be taken into account [10]. While Mr Hutchings’ daughter was pregnant and needed Mr Hutchings to drive her around, Burns J noted that she could make other arrangements [12]. Accordingly, there were no special and exceptional circumstances justifying the grant of bail.
Charge/s: Assault occasioning actual bodily harm, assault, threatening to harm a public official, obstructing a public official.
Appeal type: Appeal against sentence.
Facts: The male appellant and the female victim of the two assaults were in a relationship. The first offence occurred when the intoxicated appellant swore at the victim and smashed a beer glass in her face. She required five stiches (assault occasioning actual bodily harm). At the watch house, the appellant threatened violence against police officers and resisted search attempts. On a subsequent occasion, the appellant and the victim were out drinking together and, during the course of argument, the appellant yelled, ‘I could kill you right now and no-one would ever know’. He then put the victim into a headlock, and head-butted and punched the complainant in the face (assault). A total head sentence of 36 months imprisonment was imposed with a non-parole period of 18 months.
Issue/s: The sentence for the assault occasioning actual bodily harm was manifestly excessive.
Decision and Reasoning: The appeal was allowed. The sentencing magistrate failed to take proper account of the appellant’s plea of guilty in sentencing (See [78]). Refshauge J noted that it is very desirable that a sentencing magistrate or judge makes express reference to the issue of a plea of guilty to show that it has been taken into account. Further, the sentencing magistrate did not address the relevant mental state of the appellant (intention or recklessness). Refshauge J stated, ‘there is no doubt that “glassing” is a serious offence, whether intentionally (significantly more serious) or recklessly. It is a cruel and vicious offence, especially where the damage done is to the victim’s face, the scars from which will be long obvious and distressingly disfiguring. It is a serious offence which ordinarily will need to be visited by a sentence of imprisonment, mostly served by full-time custody’ (See [88]). However, notwithstanding this, on the facts, it was more likely than not that the appellant did not intend to use the glass as a weapon (See [90]).
In re-sentencing the appellant, Refshauge J had regard to a letter from the victim. It showed that she was still devoted to the appellant and wanted to maintain their relationship. She stated, ‘ I know he is truly sorry for hurting me and the time he has spent in jail he has not wasted one day doing everything possible to completely turn his life around, every course available in the prison Egan has not only completed but done so with proud achievement’. This showed that the insight and rehabilitative opportunities noted in the original sentencing hearing had been fulfilled and the appellant had addressed his offending behaviour (See [92]-[94]). The appellant was re-sentenced to 2 years imprisonment for the assault occasioning bodily harm. The other sentences were confirmed leaving a head sentence of 30 months, with a non-parole period of 10 months.
Charge/s: Summary offence of assault.
Appeal type: Appeal against conviction.
Facts: The intoxicated male appellant started arguing with his partner (the female complainant) in their house. The appellant kicked a chair at the complainant and broke it. She threw the broken chair at him and he slapped her in the face. The complainant called the police. After discussion, the appellant agreed to plead guilty to a summary charge of assault and the prosecution agreed to make submissions not opposing the making of a non-conviction order. Her Honour refused to make a non-conviction order, convicted the appellant and imposed a 12 month good behaviour order.
Issue/s: One of the issues was that the sentencing process was flawed.
Decision and Reasoning: The appeal was upheld because the sentencing process in the Magistrates Court was flawed in light of further evidence provided about the agreement between the prosecution and the defence before the hearing. Although the appellant was not entitled to assume that the magistrate would make the orders that had been agreed upon, he was entitled to expect that the prosecution’s attitude to a non-conviction order would have been articulated during the hearing (See [26]-[42]).
Another sentence was appropriate in this case. The appellant had no criminal record nor any identified problem with alcohol or anger management. The offence was an isolated incident in which the complainant also took part. The couple had reconciled and were again living with their child. The appellant had a sound employment record, had already been punished by spending the night in police custody and was unable to return home for 3 weeks because of his bail conditions. Finally, the conviction would make it difficult for him to see his partner’s family in Vietnam (See [43]-[45]).
The appellant’s conviction was set aside and a good behaviour order imposed for 12 months. In re-sentencing the appellant, Penfold J stated:
‘However, the appellant should not interpret this conclusion as in any sense condoning of his use of physical violence on his partner (or anyone else for that matter). Rather, it is a recognition that while it is vital for domestic violence to be taken seriously by the police and the prosecuting authorities and the courts, it is also important for a victim of domestic violence to be able to call for help when she needs it in the belief that after her immediate needs have been addressed, the longer-term consequences of the call for help will be decided in a calmer environment in which her longer-term interests and wishes will also receive recognition. The appellant should be aware however, that if there were any repetition of this kind of behaviour by him, I expect that a sentencing court would take it very seriously’ (See [47]).
Charge/s: Assault occasioning actual bodily harm, assault x 3, damaging property x 2.
Appeal type: Appeal against sentence.
Facts: The male appellant and the female complainant were in a relationship. The appellant became very angry with the complainant and she got in her car with her daughter to leave. The appellant punched the driver’s side window of the car causing the window to shatter. He then punched the complainant in the nose and eye, causing her nose to bleed. On a subsequent occasion, in breach of his bail conditions, the intoxicated appellant went to the complainant’s house. He abused her saying, ‘he would kill her and hurt her,’ and put his right arm around her throat. He threw a jar and punched his fist through the microwave door. On a third occasion, again in breach of bail conditions, the appellant went to the complainant’s home with his teenage son. He grabbed her by the throat, punched her in the face, and kicked her. The appellant only stopped when the complainant’s 10 year old son called the police.
While the sentencing magistrate stated that she intended to impose a total sentence of 48 months, with a 24 months non-parole period, the accumulation of sentences the magistrate articulated in court was only a total of 30 months. However, amendments were subsequently made to the bench sheets to reflect what Her Honour intended.
Issue/s:
Decision and Reasoning: The appeal was upheld. First, the parties should have been given an opportunity to be heard before the sentences were amended. This failure amounted to an error requiring the sentence to be set aside (See [81]-[93]). Second, the offences of damaging property were not in the worst category of offences — the damage was not considerable and there were no matters of aggravation of either offence such as planning or premeditation. The magistrate erred in imposing the imposition of the maximum penalty on these offences (See [94]-[103]).
Third, the sentence of 15 months imprisonment imposed for the second assault was excessive in light of the sentence of 18 months imprisonment for the first assault. The first assault was more serious. It involved the smashing of a window, the appellant caused the complainant’s nose to bleed, it was committed in the presence of a child, and the appellant pleaded not guilty to this offence (See [105]-[109]). Further, by merely accumulating the sentences for the three episodes, the sentencing magistrate could not be said to have applied the principle of totality (See [109]-[116]).
The appellant was re-sentenced by Refshauge J to a total sentence of 34 months imprisonment, with a non-parole period of 15 months based on evidence that the appellant had taken steps to address his drug and alcohol use (See [121]-[130]). His Honour noted, ‘these offences are serious, particularly because they are offences of family violence, some committed in the presence of children, some committed whilst on bail and in breach of conditions of that bail. The repetition of assaults on the victim also makes the offences serious’ [122].
Charge/s: Assault.
Appeal type: Appeal against sentence.
Facts: The male appellant and his wife, the complainant, were involved in a lengthy argument regarding the conduct of the complainant’s daughter. The appellant swore at the complainant and said, ‘I’m going to kill you’. He then pushed the complainant on her forehead, causing her to fall backwards into her chair. The complainant went to her daughter’s bedroom and was followed by the appellant. The argument continued and at one point the appellant came so close he caused the complainant to stumble backwards onto the bed. The appellant pleaded guilty to assault. Counsel for the appellant sought a non-conviction sentence and the prosecution made no opposing submissions. The magistrate imposed a good behaviour order which required the appellant to subject to probation for 18 months and required the appellant to attend counselling on anger management and inter-personal relationships.
Issue/s: The condition of the good behaviour order requiring the appellant to be subject to probation for 18 months was manifestly excessive.
Decision and Reasoning: The appeal was allowed and the period of supervision set aside. This was an offence at the lower end of the scale of seriousness for such offences, notwithstanding that this was a family violence offence. It was committed by a person with no criminal history. Further, a substantial number of very positive references were submitted attesting to the appellant’s good character (See [44]-[47]).
The respondent submitted that weight had to be given to general and specific deterrence because this was a family violence offence. Refshauge J accepted this but noted that ‘supervision on probation is not ordinarily seen as part of the deterrent component of sentencing’. It is generally a rehabilitative part of sentencing. Here, unless actual supervision was required for a rehabilitative purpose, i.e. to ensure the appellant attended counselling, it was not appropriate to make a probation condition. There was no suggestion on the facts that the appellant would benefit from such guidance (See [48]-[59]).
Charge/s: Unlawful confinement.
Appeal type: Appeal against sentence.
Facts: The appellant unlawfully confined his former partner by forcing her into a taxi and compelling her to travel with him, against her will. He then took her to another person’s house where she was prevented from answering her phone. She was held captive for approximately 2 hours. The magistrate imposed a sentence of 20 months imprisonment, with a non-parole period of 15 months.
Issue/s: One of the issues was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The sentence could not be said to be manifestly excessive. This was a very serious offence. Its seriousness was not diminished by the fact that it occurred within the context of a relationship breakdown, that it was not carried out for financial gain, and that it was committed in the presence of third parties. Further, the appellant had a long criminal history (See [3]-[4]).
Charge/s: Threatening to kill, failing to surrender firearms x 3, possessing a quantity of cannabis.
Appeal type: Appeal against refusal to grant bail.
Facts: Mr Breen, an Aboriginal man, was in a relationship with a woman and they had three children. Mr Breen rang the mother of his partner, asking if she knew where his partner was. He was extremely agitated and said, ‘If we were married, we would now be divorced’ and ‘I’ve got big problems with my head’. Mr Breen then said, ‘and if [his partner] gets boyfriends out of this, I will get my gun and blow all their heads off. I will kill us all. Better that than have them molested as I was’. Mr Breen stayed on the phone to his partner’s mother for an hour and on two occasions he threatened to kill the whole family. When police later arrived, Mr Breen said he was depressed and ‘wanted to end it all’. A search of the property uncovered three unregistered rifles and cannabis. He was arrested and was refused bail by a magistrate for ‘mental health issues’ and his access to ‘illicit’ firearms.
Issue/s: Whether Mr Breen should be granted bail.
Decision and reasoning: Section 9B of the Bail Act meant that the presumption in favour of bail did not apply. Refshauge J noted that, in determining whether to grant or refuse bail, the court had to engage in an assessment of ‘future risk’. Given that refusal of bail is tantamount to preventative detention, the court should not make a decision on the basis of suspicion or speculation (See [57]-[61]). His Honour stated, ‘the appropriate initial view was that this was a serious offence which was engendered in emotional circumstances where very serious violence, at least to Mr Breen himself if not to his partner and children, was threatened and where there were apparent means to carry out such a threat. This was exacerbated by the fact that Mr Breen clearly [had] some mental health issues which [made] the likelihood of unpredictable outcomes greater’ at [61].
However, on the basis of tendered evidence, Refshauge J was satisfied that the imposition of strict bail conditions could manage these concerns (See [91]). Mr Breen’s behaviour was caused by a mental impairment that was treatable (and treatment were already occurring). While Mr Breen had a worrying fascination with guns and weapons, he was not in a realistic position or had the immediate capacity to carry out his threat. There was no evidence to satisfy Refshauge J that Mr Breen’s partner would be in danger with the provision of suitable bail conditions. Mr Breen had work available and his parents were prepared to offer a cash surety.
Charge/s: Common assault.
Appeal type: Appeal against sentence.
Facts: The appellant and the complainant had been married for eight years and had two children. An argument arose between the appellant and the complainant. Their 12 year old son stepped between them but was pushed away by the appellant. The appellant grabbed the complainant by the hair, pulled her into the bedroom and threw her on the bed. The complainant called the appellant’s mother a prostitute and he twisted her arm behind her back and slapped her face several times. The police were called. The appellant made full admissions. In sentencing submissions, counsel for the appellant informed the magistrate that a conviction would prevent the family from migrating to Canada and asked for a short adjournment to procure such evidence from his office. The magistrate refused. The appellant was convicted and made subject to a good behaviour order for 12 months.
Issue/s: One of the grounds of appeal was that the magistrate failed to provide procedural fairness by not permitting an adjournment.
Decision and reasoning: The magistrate erred in refusing to allow an adjournment for the material relating to the potential barriers of a conviction to migrating to Canada to be procured. The adjournment would only have been brief and the issue of migration status was of major concern to the family. It was not appropriate to deny the appellant the opportunity of putting his case before the court just because his legal representation had failed to have the requisite documents on hand. The appeal was allowed and it fell to Refshauge J to re-sentence the appellant (See [34]-[51]).
In re-sentencing the appellant, His Honour had particular regard to the issues of the migration process to Canada and the views expressed by the complainant in a letter to the court. First, Refshauge J accepted that there was a real likelihood that in a case of domestic violence the appellant would be refused admission to Canada. This would adversely affect the family (See [73]-[78]). Second, in relation to the letter from the complainant, His Honour stated that:
‘In my view, there is a great danger in putting a victim of domestic violence in the position where they are seen to have some power to influence a sentence. This is often likely to be an intolerable choice between the bonds of affection which often persist despite the violence and their need for protection against recurrence and for the offender to be held accountable’ at [82].
His Honour accepted the letter for the following: the appellant had previously good character, the incident was a one-off occurrence, he voluntarily participated in an anger management course, and it confirmed the effect on the family if they were unable to migrate to Canada. But, in light of the issues mentioned above, accepting the letter as evidence of reconciliation needed to be treated with caution (See [79]-[84]).
The appellant had no prior convictions and previous good character. The offence was serious but at the lower end of the criminal calendar and, as a matter of marginal extenuation, the victim was equally as abusive. A non-conviction order was warranted because of the appellant’s immediate engagement in a rehabilitation program, his plea of guilty and early confession, and the risk to the family if their immigration plans were thwarted (See [92]-[97]).
Charge/s: Contravention of a protection order.
Hearing type: Sentencing hearing.
Facts: On 16 January 2007, the offender was found guilty for breaching a Domestic Violence Protection Order, protecting Ms Perrin (with whom he had two children). He drove past Ms Perrin’s residence, yelled at her, and summonsed another man at the premises to fight him. The offence was committed in breach of two earlier imposed and unrelated good behaviour orders for aggravated robbery and assault occasioning bodily harm (‘the 2004 offences’). Accordingly, it fell to Rares J to sentence the offender for the breach of the protection order and re-sentence the offender for the 2004 offences. At the time of sentencing, the offender and Ms Perrin had reconciled.
Decision and Reasoning: The offender was sentenced to 12 months imprisonment, wholly suspended with conditions [2]. In sentencing the offender, Rares J was satisfied that the offender had made a serious and concerted effort to turn his life around — the offender had stopped taking cannabis and alcohol, had obtained employment, paid for his own attendance with Ms Perrin at a Relationships Australia course, and had the support of his family and Ms Perrin’s family to make a good life for their children. His Honour also took into account the fact that he had pleaded not guilty to the offence of breaching the domestic violence order and that he had a prior criminal history.
Rares J noted that while he did not want to undermine the offender’s ‘terrific’ improvement, a penalty had to be crafted that appropriately reflected the offender’s criminality, the seriousness of the conduct and general deterrence. His Honour noted:
‘In many, many cases before the courts, the subjective impact of a punishment on an offender once brought to justice can be seen to be great. But to do justice according to law, must be to uphold the laws themselves and their purpose to ensure that we all obey the law. The community must know that offenders, whatever their personal circumstances are, receive a punishment that is appropriate and recognises the seriousness of the offending and the breaches of the community’s standards embodied in its criminal laws’ at [17].
Charge/s: Contravention of a protection order x 2.
Appeal type: Appeal against sentence.
Facts: The female complainant obtained a protection order against the male appellant, her former partner. In breach of this order, the appellant attended her home. When she refused to let him inside, he began yelling and attempted to break down the door. She called for help and the appellant fled. The next day, the appellant again tried to obtain entry to the complainant’s home. He struck and damaged the front door when he was refused entry and again ran off when he was told the police had been called. In December 2007, the offender was sentenced to 10 and 15 months imprisonment respectively for these breaches. Earlier, in May 2007, the offender had been sentenced for a number of other offences, including four charges of contravening a protection order. For the most serious of these breaches, he was sentenced to six months imprisonment to be served as periodic detention.
Issue/s: One of the grounds of appeal was that the sentence of 10 months imprisonment and 15 months imprisonment was manifestly excessive.
Decision and reasoning: The appeal was allowed. Penfold J noted that:
‘To the extent that punishing an offender ever more severely because of repeat offending, rather than because the individual offences have become more serious, is justifiable, such an approach must relate to the need for specific deterrence of an offender who appears unwilling to learn from previous penalties. Even in that case, the penalty must still remain referable in some way to the actual offence committed’ at [38].
Here, the sentence was manifestly excessive (See [42]). In particular, the two sentences imposed were at least twice as severe as the most severe penalty previously imposed for breach of a protection order in May 2007. However, if the May 2007 breaches were so much less severe than the conduct here, it was hard to see how they would have justified imprisonment at all (See [37]). Further, at the time of the August breaches, the offender had not served any full-time custody or even any periodic detention. It could not be assumed that his actions in August were informed by any understanding of the reality of a custodial sentence (See [39]). Other relevant mitigating factors were taken into account (See [30]).
The appellant was re-sentenced to 6 months imprisonment for each breach.
Charge/s: Contravention of a domestic violence order x 2.
Appeal type: Appeal against conviction and appeal against sentence.
Facts: The appellant’s former wife, with whom he had a daughter, obtained a domestic violence protection order against him, prohibiting contact. Shortly before the appellant left for an extended visit to the United States, the Family Court made an order which vacated this contact order. It stated that while the appellant was out of the country, he could send gifts and correspondence or postcards to his daughter provided that the contact was directed to the child and that he could send a photograph from time to time. When he was back in Australia, the appellant sent his daughter a package containing photographs, gifts and a letter. Additionally, the appellant mistakenly sent his former wife an email when he sent a group message to his siblings. He had previously been interviewed by police for a similar mistake. The appellant had spent 42 days in custody on remand. The magistrate imposed a six month term of imprisonment from the date he was taken into custody and directed he be released after serving 42 days, effectively that he be released the day following the hearing. He also imposed an 18 month good behaviour bond, subject to some conditions (see[22]).
Issue/s:
Decision and reasoning: The appeal was dismissed. First, His Honour held that: ‘[I]t is certainly fair to say that if a person seeks to rely on a Family Court order that varies what is otherwise a clear domestic violence order, it is incumbent upon that person to take steps to understand what the Family Court order says. And it seems to me that the Magistrate was perfectly entitled to find that Mr Miller was at least reckless in assuming that that order, which on its face only covers the time that he was out of the country, continued to apply after he had returned to Australia’ at [5].
Second, on its own, the email sent in error to his former wife would have been unlikely to meet the requisite standard of intent or recklessness. However, given that the appellant had made the same mistake before and had been interviewed by police for this, there was at least recklessness in relation to the sending of that message.
Third, the sentence could not be said to be manifestly excessive. His Honour noted that these were low level breaches of a domestic violence order, they involved recklessness rather than intent, and the nature of the correspondence in both the letter and the email was non-violent and non-threatening. However, the appellant had three prior appearances relating to seven convictions for breaches of a protection order. Connolly J stated:
‘It seems to me that even though these were lower level, indeed very low level breaches in the sense that there was no actual or apprehended or threatened violence, repeated breaches however low level, do inevitably meet with an increase in sentence on the basic premise that when low level sentences do not stop the offending behaviour a court has little option but to continue a pattern of steadily ramping up the sentence’ at [20].
Charge: Assault occasioning actual bodily harm
Proceeding: Sentencing
Facts: The offender and victim had previously been in a relationship and had two children together. The offender and victim’s version of events differed. The victim alleged that after consuming alcohol with the offender one night, the offender dragged her out of bed, hit her three time in the face and put his hands around her neck and pushed his thumbs into her throat. While doing so, the offender said something to the effect of “Slut, I’ll kill you, I’ll kill you”. When she woke up the next morning the offender continued to follow and abuse her. The offender said that the offending occurred after he blacked out after drinking substantial amounts of alcohol. He said that the assault occurred after the victim, who was drunk, was following him between pubs and abused him verbally and physically by kicking him. After she got in an altercation with a patron, she was removed from the pub and was spoken to by police officers. The offender agreed to take the victim home, where they sat outside smoking marijuana and drinking bourbon. They then got in an argument over their children and the victim struck the offender. According to the offender, this is when he grabbed her throat and beat the victim.
Higgins CJ, after hearing corroborating witnesses, accepted that the assault occurred in the way described by the offender. However, he did not suggest that the victim was fabricating her account: ‘She was savagely beaten, she had a lot to drink and it is unsurprising that some of the details became confused in her mind’ ([26]).
In relation to this conduct the offender was charged and pleaded guilty to one count of assault occasioning actual bodily harm.
For three months prior to the assault, the offender had undergone rehabilitation at Oolong House. He had a long history of offending, including 28 prior assaults. Most of the previous offending occurred after the offender had consumed alcohol. While he acknowledged his alcohol abuse, the offender did not consider he needed drug and alcohol intervention. He also admitted to feeling ‘horrified by what he had done’ and said ‘violence towards women is not in his makeup and he has no excuses for what he has done’.
Issue: What sentence should the offender receive?
Decision and reasoning: The offender was sentenced to two and a half years’ imprisonment with a non-parole period of 18 months. While the preceding conduct on the night of the offending and the alcohol abuse engaged in by both the parties may explain the offending, it did not excuse it. There were some prospects of rehabilitation for the offender. However, having regard to the severity of the attack and the offender’s criminal history and alcohol abuse, a sentence of imprisonment was appropriate: ‘No other sentence will say to men who abuse women that such conduct is abhorrent and will result in severe punishment whatever the status or record of the offender’ ([32]).
In considering the purposes of sentencing domestic violence offending, Higgins CJ noted that while alcohol may have been a triggering factor, offenders must take responsibility for their actions and be seen to do so. As domestic violence offences are often hidden, general deterrence is also an important consideration in sentencing. So too is specific deterrence. Higgins CJ emphasised that domestic violence ‘is a pernicious and evil phenomenon not only because of the immediate trauma to the victim. Its evil influence spreads to children as well. It is no coincidence that, in my experience, young offenders, more often than not, present with a family history of domestic violence. It used to be regarded as a family matter, to be kept private. Victims would be made to feel humiliated, and ashamed to complain; in truth it is entirely the criminal conduct of the perpetrator which is at fault. It is entirely in the public interest that such conduct be exposed and deterred’ ([30]).
Appeal type: Appeal against refusal of a magistrate to revoke a Domestic Violence Order.
Facts: On 22 October 2003, a Domestic Violence Order was made by the Deputy Registrar of the Magistrates Court for the protection of the female respondent against the appellant, with whom she was in a sexual relationship. Both parties had disabilities. During their ‘physical relationship’, the respondent suffered three separate fractures of her legs. She had no history of such injuries prior to the physical relationship and no history of such injuries subsequent to the physical relationship. On 24 May 2004, the Order was varied by consent and in particular the Order restrained and prohibited the male appellant from taking certain actions in relation to the respondent. The appellant applied to have the order revoked but a magistrate declined to revoke the Order. His Honour concluded that the physical nature of the relationship represented a genuine risk to the well-being of the respondent.
Issue/s: The magistrate erred in failing to revoke the order. His Honour made three errors in reaching his decision to not revoke the order –
Decision and reasoning: The appeal was dismissed. First, the location of where the injuries occurred was not relevant because it was the physical relationship that caused the injuries. Second, there was no evidence that the counselling had been concluded nor that it would reduce the likelihood of injury if the physical relationship was to continue. Accordingly, this was not a relevant consideration. Finally, the magistrate did consider the fact that such a relationship was likely to continue on the basis of evidence before him.
Further, the magistrate did not fail to take into account the fact that persons with disabilities had the same basic rights as other members of Australian society. The magistrate specifically referred to the wishes of the respondent to continue the relationship with the appellant. However, His Honour concluded that the risk to the respondent resulting from such a relationship as such that he was unable to be satisfied that the order preventing such a relationship was no longer necessary for her protection.
Charge/s: Unlawful confinement, assault occasioning bodily harm.
Hearing type: Sentencing hearing.
Facts: The offences occurred after the male offender and his wife, the complainant, had separated and the offender had moved out of the family home. He occasionally stayed overnight to see the children. After seeing his wife kiss another man, the offender arrived at the family home late at night, when the children were present in the house. The complainant let him in and went back to bed. The offender followed her and sat on top of her. He placed a sharp object against her throat and said, ‘This is a knife. If you move I will fucking kill you’. He then placed pre-cut strips of duct tape over the complainant’s mouth and eyes. He bound her wrists and ankles and tied her hands and feet together. He said, ‘You’ll have your wish — you’ll see me die tonight, you’ll see me die’.
The complainant had difficulty breathing and the offender removed the duct tape. He interrogated her about her relationship with the other man, hitting her several times around the head and shoulders. He left the room saying, ‘If you fucking move I’ll kill you’ and returned with a telephone book. The offender asked for the other man’s phone number before leaving the room again. The complainant heard him enter the nearby bedroom, occupied by two of their daughters and heard him say, ‘Now take this darling. I know it tastes awful, doesn’t it’.
He returned to the complainant and resumed interrogating her, striking her. He said multiple times that he was going to kill himself and take the children with him. The offender eventually became tearful and untied the complainant. She rang the emergency number and asked for an ambulance, thinking her children had been poisoned. The police and ambulance arrived. The children were unharmed. The offender left the premises and went to the police station the next morning.
Decision and Reasoning: The offender was sentenced to 6 years imprisonment for unlawful confinement and 3 years imprisonment for assault, concurrent and a non-parole period of 18 months. Crispin J took into account a number of subjective factors in imposing this sentence. The offender pleaded guilty. At the time the offender entered the house, while there was some measure of pre-meditation in the appellant’s actions (the decision to confine and interrogate the complainant), the offender did not intend to threaten the complainant with a knife or to kill his children. The offender stopped the violence and threats of his own volition.
At the time of offending, the offender was suffering from serious psychological illnesses including acute depression and adjustment order. It was submitted on the offender’s behalf that, because of this illness, this made the offender an inappropriate vehicle for general deterrence. Crispin J disagreed and stated,
‘The extent of his psychological condition is relevant to the issue of general deterrence but, in my view, the need to protect former spouses or partners from conduct of this nature cannot be so easily dismissed. Many people no doubt experience great stress upon the breakup of their marriages or other close relationships and in some cases they may suffer from symptoms of an underlying psychological illness or even become psychologically ill for the first time. One may and should respond with sympathy. However, when a person commits serious criminal acts against a former spouse or partner the court must take into account the need to deter other people from similar conduct. The risk of serious injury and, as in this case, grave emotional trauma may be at least as serious when the offender is psychologically ill. Accordingly, the need for deterrence should be given due recognition, though the weight which should be given to that factor will vary according to the circumstances of the case, and the actual sentences must be determined by reference to all relevant factors’ (See [19]).
Other relevant factors included that the offender was remorseful, he had no prior convictions and was previously a committed father and a person of impeccable character. He had taken steps to obtain counselling and achieved a significant measure of rehabilitation. He had already been imprisoned for 8 months and this caused significant distress in light of his inability to see his children and his potential to be a suicide risk.
However, Crispin J was unable to accept counsel submissions that the offender should be released on parole immediately. The offences were too serious to be dealt with in that manner — the complainant was confined for an extended period and intended to cause significant fear in the complainant.
Charge/s: Robbery with an offensive weapon.
Trial: Judge only trial.
Facts: On 20 November 1996, Ms Lorenz (‘the accused’) entered a supermarket and attempted to purchase some cigarettes with her EFTPOS card from the complainant. The transaction could not be completed because there were insufficient funds in the account. The accused maintained she was sure there were funds in the account and re-tried the card but it was again declined. She then left the store. Ten minutes later, the accused returned to the store with a pen knife. She approached the complainant, held the knife out in front of her and said, ‘give me all your fucking money or I’ll slit your throat’. The complainant gave the accused $360 in cash and the accused left the store. While initially denying any involvement, the accused made admissions to the police.
Counsel for the accused argued that the accused was acting out of duress on the basis of a threat made by Ms Lorenz’s partner on the night before the robbery and repeated the following morning to the effect that if she did not obtain enough money to enable him to re-register his car he would kill her. This threat followed a pattern of violent and threatening behaviour towards the accused over a number of years (See [11]). On the morning of the robbery, the accused, who was pregnant with the couple’s third child, found out that she was unable to get the immediate payment of an advance payment from the Department of Social Security to pay the re-registration.
Decision and Reasoning: There was some discussion in this case of ‘battered woman syndrome’ (See [26]-[31]). Crispin J accepted that upon failing to receive advance payment from the Department of Social Security, the accused became frightened and confused and the robbery was an impulsive act due to her fear that her partner would kill her. His Honour stated: ‘In my view her failure to attempt to extricate herself from the situation whether by leaving him or otherwise is largely explicable by her fear and confusion. Furthermore, she may have thought that any escape would have been only temporary and that sooner or later [her partner] would have been bound to have caught up with her and carried out his threat’ at [30].
However, ‘a diagnosis of battered woman syndrome does not of itself give rise to any defence. The law does not recognise any general principle that people should be absolved from criminal conduct because they had been beaten or abused or because a psychological condition caused by such treatment may have led them to commit the offences with which they are charged. Nonetheless, evidence that such a person may have had a psychological condition of this kind may be relevant to several defences known to the law’ at [31].
Here, counsel for the appellant unsuccessfully attempted to rely on the defence of duress. In the accused’s favour, His Honour found that the threat was effective at the time of the offence, the accused did not fail to take advantage of a reasonable opportunity to render the threat ineffective, and, in light of the extremity of the actual and threatened violence displayed by the accused’s partner, a person of ordinary firmness of mind may have acted in the way the accused did (See [35]-[37]). However, the accused’s partner did not direct the accused to commit the offence and accordingly the defence of duress failed (See [38]-[41]). In the alternative, counsel for the accused attempted to rely on the defence of necessity. However, His Honour held that the imminence of danger fell well short of the required standard for the successful proof of the defence (See [42]-[45]). She was accordingly found guilty.
The accused left her partner shortly after the robbery and had formed a relationship with another man. She had just turned 23, had three children and was pregnant to her new partner. The new relationship was apparently a happy one. In these circumstances, and to give her the opportunity to start a new life for herself and her children, Crispin J found it appropriate to defer passing sentence on the condition that she enter into recognisance to be of good behaviour for a period of three years.
Proceedings: Application for final family violence order (FVO).
Facts: The male respondent and the female applicant both worked for the Australian Federal Police. An interim FVO prevented the respondent from working as an active officer as he was not allowed use of firearms. The circumstances of the offending included exposing the couple’s child to domestic and family violence, and text messages from the respondent threatening suicide including images of the respondent with a firearm in his mouth.
Decision and reasoning: A 24-month FVO was granted. In particular, the Magistrate considered the hardship to the respondent in making a FVO but noted at [34]-[35]:
“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.”
Charges: Common assault x 5.
Matter: Judgement.
Facts: The events relating to the charges took place between 2014 and 2017. The defendant male and complainant female were married and had one child. The 5 assault charges relate to the following alleged incidents:
Decision and Reasoning: In relation to charges 1-3, the Magistrate was not satisfied that the case had been sufficiently made out to justify a finding of the accused’s guilt.
In relation to charges 4 and 5, the Magistrate found the accused guilty.
Special Magistrate Hunter OAM observed:
Taken together the evidence if accepted of giving information to officials at Immigration, the refusal to recant that information, the bruise to the head which is consistent with the allegation on 18th and the general information such as not allowing Ms Devi to have a phone, not allow her to contact her brother and the like which could lead to a conclusion that the defendant was controlling her life, (which is not unknown in domestic violence situations). It also leads to a conclusion that Ms Devi is speaking the truth and should be believed. [207]
And:
I am also satisfied that she had been controlled at least to some extent. That is supported by uncontroverted evidence that she had to secret a SIM card so that she could contact her family and brother by phone. This is consistent with the evidence from her brother that she had no access to contact him except by public phone until he gave her the SIM card. I am also satisfied she had limited access to friends and family. That evidence was corroborated by her brother and by the fact she used the SIM card he gave her to make the various phone calls she made to family and friends. I also note the Defendant had alluded to that control in some of his answers in the ROI such as those referred to by Prosecution counsel in her submissions. [209]
[Note: This decision was unsuccessfully appealed: Kumar v Love [2019] ACTSC 238 (30 August 2019) – Australian Capital Territory Supreme Court]
Proceeding: Application for leave to appeal against striking out Statement of Claim in full.
Facts: The male applicant and female respondent were formerly husband and wife with financial and child proceedings pending in the Family Court. In 2018 there was an incident at Sydney Airport between them where it was alleged the applicant approached the respondent and her current partner and caused her humiliation and embarrassment [58]. The respondent made a written statement which led to the police obtaining a provisional protection order against the applicant [54]. It was dismissed in June 2019 [4].
The applicant sued the respondent for damages for malicious prosecution and for trespass to land. The malicious prosecution submission related to the protection order application [4]. The trespass to land submission related to the respondent entering the applicant’s property in July 2019 where the children, whom she was prohibited from approaching by a separate protection order, resided with him [4]. The respondent filed a Notice of Motion to the District Court seeking the claim be struck out, in full or in part pursuant to Uniform Civil Procedural Rules 2005 (NSW), rule 14.28 [5]. The primary judge ordered the applicants’ claim be struck out in full as the applicant commenced the proceedings for an improper purpose, namely to circumvent or derive some advantage in the family law proceedings. The applicant applied for leave to appeal.
Grounds of Appeal:
The Primary judge erred in finding the appellant’s actions for malicious prosecution and trespass were an abuse of process in that they were commenced for an improper or collateral purpose in that:
Decision and Reasoning: Leave granted, appeal upheld.
Wright J considered the evidence that the claimed amount was the same as the proceeds from the sale of the Lilydale house provided no basis for a claim of circumventing the family law proceeding or obtaining an advantage [87],[91]. Naming the children in the claim for damages for trespass was not an improper purpose [92]. The evidence was insufficient to cross the high threshold to prove the proceedings were instituted for an improper or collateral purpose and therefore the primary judge erred in his judgement.
Wright J found that the elements of malicious prosecution were sufficiently clear and the minor defects in the applicant’s statement did not justify the claim being struck out [117]. Further, the distress caused to the applicant by the children’s distress was relevant to his claims for damages and therefore was not liable to be struck out as tending to cause prejudice, delay or embarrassment [117].
Brereton JA and Belle P agreed with the orders proposed by Wright J [50].
Appeal Type: General civil appeal.
Facts: This decision was not concerned with domestic and family violence but is relevant in relation to the admission of expert evidence in cases involving domestic and family violence. The plaintiff was injured after falling down the stairs at work and sued her employer for negligence. At trial, her employer was found to have breached their duty of care because the stairs were slippery and this was the reason the plaintiff fell. This finding of fact made at trial was largely based on expert evidence adduced by the plaintiff. The expert attested to the slipperiness of the stairs. The plaintiff was awarded damages. But for the expert’s report, ‘a conclusion that the stairs were not slippery would have been inevitable’ (see at [56]). The defendant appealed on the basis that, inter alia, the trial judge erred in accepting the expert evidence.
Issues: Whether the trial judge erred in accepting the opinion of the expert regarding the slipperiness of the stairs.
Decision and Reasoning: The appeal was upheld. All members of the Court of Appeal agreed that the trial judge ought not to have accepted the evidence. Importantly, this appeal was concerned with whether the evidence ought to have been accepted by the trial judge, not with its admissibility. Heydon JA firstly considered whether the expert’s testimony ‘(complied) with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions’ ([59]). It was in this context that his Honour engaged in general discussion about the admissibility of expert evidence. Expert evidence cannot usurp the role of the trial judge (or jury if present) in making findings of fact. The task of the tribunal of fact is to make an independent assessment of expert evidence in forming its own conclusion. It cannot do this, ‘if the expert does not fully expose the reasoning relied on’ (see at [67]). The Court is not obliged to accept the opinion of an expert, even if no other evidence is called to contradict it (see at [87]). This is important especially where the evidence goes to the ultimate issue in the case. Evidence which goes to the ultimate issue is not inadmissible for that reason (see s 80 of the Evidence Act 1995 (NSW)). Essentially, an expert gives opinion based on facts, and as such must prove ‘by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based’ (see at [64]).
See at [85] where his Honour summarises the general principles of the admissibility of expert evidence –
‘In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).’
Charges: Sexual intercourse without consent x 1; Attempted sexual intercourse without consent x 1; Intentional choking so as to render unconscious x 2; Assault occasioning actual bodily harm x 2; Reckless wounding x 1.
Proceedings: Application for leave to appeal against sentence.
Facts: The male applicant was sentenced to 14 years imprisonment with a non-parole period of 9 years and 9 months, after entering a late plea of guilty to seven offences against his then female partner.
The sentencing judge found that the applicant’s personal history and mental health diagnoses cited in psychiatric reports were inconsistent. The sentencing judge was not satisfied of the accuracy or reliability of the history provided by the applicant and disregarded most of the applicant’s subjective circumstances [51].
Grounds:
Reasoning and decision: Hamil J (Mitchelmore JA and Davies agreeing) found error in ground 1 but dismissed the appeal.
Ground 1: The court held that the sentencing judge erred in declining to consider evidence of the applicant’s subjective circumstances. The sentencing judge was correct to find the applicant’s alcohol abuse did not explain his conduct [97] and the judge was entitled to be suspect in accepting the accuracy of his history [102].
However, the sentencing judge was not justified in rejecting almost all of the applicant’s subjective circumstances. The applicant was entitled to have his relative youth, lack of prior convictions, sexual abuse, neglect, and diagnosis of a paraphilic disorder considered. These factors were largely consistent and should not have been rejected [107].
Ground 2: This ground was rejected. The court held the applicant’s course of conduct represented sexual and violent offending of an extreme and depraved kind [111]. The applicant’s childhood experiences, and mental health conditions only had a modest impact on his moral culpability [119]. The Court found that the aggregate sentence and non-parole period would have been of at least the same magnitude as the sentence imposed in the District Court [139].
Charges: Sexual assault without consent x 8; aggravated sexual intercourse without consent x 1; indecent assault x 1; attempted choke with intent to commit an indictable offence (intimidation) x 1; use offensive weapon with intent to commit an indictable offence x 2; assault occasioning actual bodily harm x 5; common assault x 6.
Proceedings: Crown appeal against sentence.
Facts: The respondent was sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 5 years after a judge alone trial after pleading not guilty to 40 offences and was found guilty of 24 charges. All offences were committed against his then-wife (they were “married” in an Islamic ceremony which was not officially recorded) between 2007-2008 shortly after their marriage. The victim made a statement to police in 2009 but did not proceed to make a formal statement until July 2019. Expert evidence was led of the respondent’s schizophrenia and melancholic depression. The respondent had been exposed to family violence as a child. The offending included multiple counts of penile-vaginal and penile-anal rape. The respondent demanded that the complainant behave in a manner contrary to her religious beliefs, he assaulted the complainant as punishment for “hiding” things from him or seeking advice in relation to his financially controlling behaviour, he punched the complainant to the face breaking her nose and rendering her unconscious and deliberately caused injuries to the complainant’s legs and feet such that she had difficulty walking as punishment for perceived misdeeds on her part.
The respondent conceded grounds 2 and 3 but argued that the court should exercise its residual discretion to decline to intervene.
Grounds:
Decision: Sentence quashed (Price, Wilson and Dhanji JJ), resentenced to an aggregate term of 14 years imprisonment with a non-parole period of 9 years (Price and Wilson JJ).
Ground 1: The sentencing judge understated the objective seriousness of 9, 16 and 26 [171]. Re counts 16 and 26 (sexual assault without consent), the sentencing judge emphasised the spontaneity and lack of planning of these offences in assessing their objective seriousness. Price J (Wilson J agreeing) observed:
[167] How in these circumstances could the lack of planning reduce the objective gravity of the offending? As Adamson J (as her Honour then was) observed in Kennedy v R [2022] NSWCCA 215 at [51]:
“... it is typical of offences of domestic violence committed by persons such as the applicant that they are not “premeditated”. Thus, the lack of planning in this context is of negligible, if any significance.”
[168] This Court has observed that the short duration of a sexual assault would not ordinarily be considered as a factor which mitigates the objective seriousness of the offence: R v Daley [2010] NSWCCA 233 at [48]; Cowling v R [2015] NSWCCA 213 at [16]. In the present case, where the respondent’s sexual offending was a repetitive feature in a violent domestic relationship, the short duration of an offence could not amount to a mitigating factor.
[169] In the passage quoted at [151] above, the judge said that the offending in count 16 “was not associated with particular additional violence of the kind that characterised some of the offending.” It is unclear to which offences his Honour was referring, however, the infliction of actual bodily harm at the time of, or immediately before or after the sexual assault would have amounted to an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW).
Re count 9, neither the spontaneity or its short duration could reduce the objective seriousness of the offence, which involved chasing the victim, punching her to the face with a closed fist, causing her to fall to the ground, unconscious with a broken nose [170].
Ground 2: In finding that the sentencing judge erred in applying s10A CSP Act to impose no conviction for counts 2, 10, 36 and 38 Price J (Wilson and Dhanji JJ agreeing) observed:
[188] I recognise that the recording of a conviction may have serious consequences for an offender. However, general sentencing principles apply to the operation of the section. Where an offence is objectively serious and general deterrence, denunciation, and the protection of the community are of importance, the scope for the use of the section must necessarily be substantially diminished. I acknowledge that current sentencing legislation does not prohibit the application of s 10A to a domestic violence offence. Nevertheless, the appropriate use of s 10A in a domestic violence offence must be rare.
In addition no reasons were given for departing from a sentence of full-time detention or a supervised order as required by s4A(2) CSP Act.
Ground 3: Price J (Wilson and Dhanji JJ agreeing) held the aggregate sentence of 10 years imprisonment and non-parole period of 5 years is “so manifestly inadequate that it does not reflect the totality of the criminality involved in the respondent’s offending.”
Residual discretion to decline to intervene:
In agreeing with Price J’s refusal to exercise the residual discretion, Wilson J noted:
[269] This is not a matter in which the residual discretion should be exercised. The courts must ensure that those who seek to brutally dominate a domestic partner, and violently impose a claimed gender superiority on another, are held to account. The aggregate sentence proposed by Price J is one that achieves that aim, whilst giving proper ameliorative weight to the respondent’s subjective case.
Charges: Wounding with intent to cause grievous bodily harm x 1.
Proceedings: Application for leave to appeal against conviction.
Facts: The female accused was charged with wounding her male former domestic partner. At trial she claimed she acted in self-defence in wounding the complainant when he arrived at her home angry and in the company of a companion and initiated a physical altercation between them. The female accused is physically much smaller than the male complainant. Her case included evidence of the complainant’s past offending against a former female domestic partner:
[29] A tendency notice served pursuant to s 97(1)(a) of the Evidence Act 1995 (NSW) identified the tendencies of the complainant the applicant sought to establish:
[30] The notice identified a variety of evidentiary sources that were said to be capable of establishing these tendencies. The Prosecutor objected to the evidence, but Judge English accepted that the evidence had significant probative value and was admissible.
In relation to the adduced tendency evidence, which included a statement of agreed facts (s 191 Evidence Act 1995 (NSW)) that the complainant had admitted and been convicted of the offences of Use carriage service to menace/harass/offend and stalk/intimidate intend fear physical or mental harm against [the victim] in relation to a former partner. The statement included text messages and telephone calls heard by police containing threats to kill and bash the victim and calling the victim a “slut” and “cunt”, and that the accused was apprehended while actually causing damage to the victim’s home.
In directing the jury, the trial judge identified the nature of the evidence and tendency the applicant sought to establish:
Part of the defence case is that the complainant has a tendency to have a particular state of mind, namely, to become angry to an extreme towards ex-partners. It is also part of the defence case that the complainant has a tendency to act on that state of mind by making threats to kill ex-partners, threatening to bash them in front of family and/or friends, calling ex-partners words such as a ‘slut’, or a ‘dog’, or a ‘cunt’, or threaten to – or actually – visit ex-partner’s homes with the intention to commit violence. [34]
The applicant submitted and the respondent conceded that parts of the following direction were erroneous:
Whether you reason in the way argued by the defence, or the Crown is entirely a matter for you. You will need to be very careful about drawing the inference asked of you by the defence, and I will direct you to consider whether there be any alternative explanations for that evidence, and I direct you that you should not draw any inference from the direct evidence unless it is a rational inference in the circumstances. Very shortly I will give you a general direction about drawing inferences when you are considering this part of the defence case. But if you find the complainant did have the tendency alleged by the defence, then you can use that fact in considering whether it is more likely than not that he acted in the way alleged by the accused on 19 July 2020. That is, that he was the aggressor on this occasion. [Emphasis added.] [36]
Grounds:
Reasoning and decision:
Hamill J (Button and Sweeney JJ agreeing) observed:
[38] The applicant was correct to submit, and the respondent was correct to concede, that parts of that direction were erroneous. There were at least three flaws in the direction.
[39] First, the jury should not have been directed that it should be “very careful about drawing the inference asked of you by the defence”. There was nothing wrong with directing the jury that the process of drawing an inference should be a rational one, but it will rarely be appropriate for a jury to be warned that it needs to be “very careful” about drawing an inference favourable to an accused in a criminal trial. That is because the accused, except in unusual cases, bears no onus.
[40] Secondly, the direction introduced a standard of proof – “whether it is more likely than not” – that the alleged victim acted in accordance with the tendency on the day of the offence. This cast an onus on the applicant to establish that the complainant acted “in the way alleged by the accused on 19 July 2020”. The direction had the capacity to, and perhaps did, reverse the onus of proof. Other directions made it clear that the prosecution bore the onus and emphasised the high standard it was required to meet. Even considered in that context, the direction represented a significant legal error in the summing up.
And:
[43] Her Honour drew no distinction between drawing an inference of guilt against an accused person – where all other reasonable inferences must be excluded – and drawing an inference favourable to the applicant as part of her circumstantial case based on the tendency evidence.
[44] It is, by now, well established that tendency evidence is a species of circumstantial evidence and there is no requirement that it be proved to any particular standard, let alone (as these directions were want to suggest) that it must be proved beyond reasonable doubt
In rejecting the respondent’s arguments that the despite the misdirection no substantial miscarriage of justice occurred, and that the applicant’s account was “glaringly improbable”, Hamill J (Button and Sweeney JJ agreeing) was not persuaded that self-defence was eliminated beyond reasonable doubt.
Charges: Intimidation x 1; Aggravated kidnapping x 1; Contravention of a protection order x 6.
Proceedings: Application for leave to appeal against sentence.
Facts: The male offender accosted and detained his former de facto wife, contravening a protection order which protected her. For 9 hours, the offender drove the victim at a high speed and in an erratic manner, while abusing, threatening, and assaulting her. The period of detention ended when the victim ran from the car, despite the offender’s threats that he would kill her if she escaped.
The offender was sentenced by the District Court to 6 years and 6 months imprisonment with a non-parole period of 4 years, affording a 10% discount for late pleas.
Grounds:
Reasoning and decision: Wilson J (Gleeson JA and Davies J agreeing) dismissed the appeal.
Ground 1: It was held there was no error in the conclusion that the offender’s criminal history was an aggravating factor. It was a feature relevant to the overall determination, but not used to elevate the objective gravity of the offences [58].
Ground 2: The sentencing judge was correct to treat the offender’s moral culpability distinct from the objective gravity of the offences. The offender’s deprived background or mental health impairment are features that affect the weight to be given to considerations of moral blameworthiness and general deterrence [79].
Ground 3: The sentencing judge appropriately gave weight to the offender’s drug addiction as a manifestation of his deprived background. There was no need to have further regard to it [85]; Wilson J stated ‘it will be a rare case in which a drug addiction, of itself and standing alone, can be treated as a mitigating factor, no matter what age an offender was when the addiction commenced’ [85].
Ground 4: The sentencing judge did not err by double counting. Double counting is not established by the number of times a feature is mentioned, but the use of the feature [90].
Ground 5: The sentence was not excessive, if anything, it was lenient [101].
