Citation: Bassal v R [2015] NSWDC 257
Court: District Court of New South Wales
Date: 6 August 2015
Judge(s): Berman SC DCJ
Background
The appellant was the subject of an apprehended domestic violence order (ADVO) made by a magistrate following an allegation by his former wife. The couple were engaged in Family Court proceedings concerning their children, and the former wife had moved with the children from Sydney to Newcastle in breach of Family Court orders giving the appellant regular access.
The former wife alleged that, during a telephone conversation, the appellant said: "I'm going to send somebody up there. I swear to God if I get the girls back you'll never see them again." The magistrate accepted those words were spoken and made the ADVO. The appellant appealed to the District Court.
A significant factual complication was that the school the former wife wished to enrol the children in at Newcastle required either both parents to sign the enrolment form or, alternatively, an ADVO to be in force. As the appellant was not prepared to sign a form that would entrench the children's schooling in Newcastle contrary to Family Court orders, the existence of an ADVO was the only remaining pathway to enrolment.
Legal Issues
- Whether the words alleged to have been spoken were in fact said, assessed on the balance of probabilities.
- Whether, if the words were said, they were sufficient to justify reasonable fear of a personal violence offence and therefore warranted the making of an ADVO.
Decision
Berman SC DCJ expressed doubt about whether the alleged words, even taken at face value, were sufficient to justify a reasonable fear of a personal violence offence. The statement "I'm going to send somebody up there" could plausibly be interpreted as a reference to sending someone to return the children to Sydney in compliance with Family Court orders, rather than as a threat of violence.
The Court did not ultimately resolve that question, instead allowing the appeal on the factual issue. The central concern was the former wife's powerful motive to fabricate the allegation: an ADVO in force was the only practical mechanism by which she could enrol the children in the Newcastle school while the appellant refused to sign the enrolment form. That motive weighed heavily against accepting her evidence on the balance of probabilities.
The Court examined two competing credibility considerations. The appellant had, at some point, given his legal representatives instructions that led to a denial that an abusive voicemail message existed at all, which the Court was prepared to treat as suggesting he had not been entirely frank with his lawyers. However, this was balanced against a letter prepared by the former wife's own former solicitor that referenced an alleged threat to kill, which the former wife later denied ever making to that solicitor. The Court treated these matters as effectively cancelling each other out.
Taking all circumstances into account, the Court was not satisfied on the balance of probabilities that the alleged words were in fact spoken. The appeal was allowed and the ADVO was quashed.
Orders Made
- The appeal was allowed.
- The apprehended domestic violence order was quashed.
Key Takeaways
- The District Court confirmed that the balance of probabilities standard applies to findings of fact in ADVO appeals, and that a complainant's identifiable motive to fabricate an allegation is a material consideration in that assessment.
- Where a complainant stood to gain a concrete practical benefit from the existence of an ADVO (in this case, school enrolment for children whose relocation was itself in breach of Family Court orders), that benefit constituted a powerful factor weighing against accepting the complainant's account.
- Berman SC DCJ expressed, without finally deciding, that words susceptible of an innocent interpretation may not meet the threshold required to justify reasonable fear of a personal violence offence.
- Credibility findings based on what parties told their respective lawyers can carry some weight but may be neutralised where both sides are found to have similarly questionable conduct in their legal instructions.
- The absence of any recorded reliance by the magistrate on witness demeanour reduced the deference the District Court would otherwise owe to the tribunal of first instance when re-examining the evidence on appeal.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.